Allahabad High Court
Shiv Kumar Mishra vs Union Of India And 4 Others on 3 December, 2019
Bench: Bala Krishna Narayana, Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 Case :- SPECIAL APPEAL No. - 973 of 2013 Appellant :- Shiv Kumar Mishra Respondent :- Union Of India And 4 Others Counsel for Appellant :- Col. S.D. Tiwari,V.S.Chaubey Counsel for Respondent :- Vivek Singh,Rama Shanker Yadav Hon'ble Bala Krishna Narayana,J.
Hon'ble Rohit Ranjan Agarwal,J.
(Delivered by Hon'ble Rohit Ranjan Agarwal,J.)
1. Heard Sri Col. S.D. Tiwari, learned counsel for the appellant and Sri Rama Shanker Yadav, learned counsel appearing for the respondents.
2. This intra-court appeal under Chapter VII, Rule 5 of the Allahabad High Court Rules, 1952 arise out of order of learned Single Judge passed in Writ A- No. 37375 of 1997 dismissing the aforesaid writ petition by order dated 10.05.2013.
3. Facts in brief are that appellant was recruited in September, 1989 as constable (rakshak) in Railway Protection Force, Eastern Railway and was posted at Mughal Sarai. However, after one year, he was posted as clerk in office of Divisional Security Commissioner, Mughal Sarai. It was on 11.09.1993 that appellant was given certain work by his superior officer, but he refused to do so, as such he was suspended and was attached to the office of DIC. On 17.09.1993, he was served with a charge-sheet. According to appellant, he presented himself in the office of Divisional Security Commissioner till 23.09.1993, but due to mental ailment, he absented from 24.09.1993. Further, it is claimed that he was under medical treatment till 22.03.1995 and when he retained his mental balance, he resumed his duty.
4. As far as, departmental enquiry conducted against appellant is concerned, it resulted in order of punishment dated 04.03.1994, whereby appellant was reduced to three stages for three years with effect from 01.03.1994. His suspension was revoked on 15.10.1993, and thus, chapter in that regard stood closed and nothing further was required to be added.
5. However, in his absence from duty since 24.09.1993 and even after revocation of suspension a departmental enquiry having been concluded, a second charge-sheet was served on him on 22.03.1995, under Rule 153 of Railway Protection Force, stating therein that appellant absented himself without any leave, authorizedly. Inquiry officer so appointed after recording statement of witnesses as well as defence witnesses submitted his report and found appellant guilty of unauthorised absence for period 24.03.1993 to 23.11.1995. Findings of enquiry officer were accepted by disciplinary authority and appellant was removed from service on 07.07.1995. Against order of dismissal, appellant filed an appeal before higher authority which was also dismissed on 30.12.1996 with a finding that departmental enquiry has been held in accordance with rules applicable.
6. Aggrieved by orders of disciplinary authority as well as higher authority Writ-A No. 37375 of 1997 was filled before this Court on 10.05.2013. The learned Single Judge after considering the orders passed by both authorities and after appreciating the evidence came to conclusion as under:
"So far as the plea of punishment being disproportionate to the charges found proved is concerned, suffice is to record that the Railway Protection Force is a disciplined force. Long unauthorized absence for a period of one year and eight months is too long a period and a serious misconduct. Therefore, the punishment inflicted, in the facts of the case, cannot be said to be disproportionate to the charge found proved. No interference is warranted against the orders impugned.
Writ petition lacks merit and is accordingly dismissed.
Interim order, if any, stands discharged."
7. Sri Col. S.D. Tiwari, learned counsel appearing for appellant submitted that appellant who is an ex-army personnel had completed 18 years of unblemished service with his character assessed by Army authorities with the highest grade i.e. "exemplary. He, however, contended that appellant was suffering from neurotic depression between 08.09.1993 to 10.01.1995 and was under the treatment of doctors at Military Hospital, Danapur, as such he was given clerical job in the office of respondent. Further on 11.09.1993 as he had refused to do additional work, he was suspended for disobedience. But appellant continued to report at the office of DIC till 23.09.1993 in the initial stage of neurotic depression and absented himself from 24.09.1993, when he started feeling severe depression. He invited the attention of the Court to the order of dismissal dated 27.07.1995, wherein it has been recorded while awarding punishment of removal, that appellant was diagnosed with neurotic depression on 08.10.1993 and thus, tried to impress upon fact that he was under treatment of Army doctors at the Military Hospital, Danapur. Learned counsel for the appellant also stressed upon fact that finding recorded by disciplinary authority as regard the appellant being "mentally stable" as recorded in the prescription of medical officer on 07.12.1993 would not mean that he was not under the treatment of a psychiatrist. Thus, only on the basis of the remarks so made by doctor that disciplinary authority was not justified in inflicting punishment of removal from service for absence of one year eight months.
8. We have heard counsel for the parties and perused the material on record.
9. It is not in dispute that earlier suspension order passed against appellant on 11.09.1993 was revoked on 15.10.1993 and the charge-sheet which was earlier given, culminated in punishment order dated 04.03.1994 and he was reduced to three stages for three years with effect from 01.03.1994. There is no dispute to the earlier proceedings but it is for the period 24.03.1993 to 23.11.1995 that appellant is guilty of unauthorised absence. The disciplinary authority recorded that appellant failed to give any cogent reason for his absence nor could produce any evidence to establish the fact that he was not well to the extent to attend duties, nor in the medical report which was submitted by appellant, there was any advise for rest for the patient, thus it was found that he had left headquarter without permission for continuous period of one year eight months which was quite serious.
10. The learned Single Judge has also categorically recorded finding that Railway Protection Force is a discipline force, and unauthorised absence for a period of one year eight months is too long and a serious misconduct and thus, cannot be said to be disproportionate to the charge found proved.
11. After hearing the parties at length, we find that appellant could not prove his absence for such a long period for any valid reason so as to justify and qualify for a lesser punishment.
12. We, therefore, decline to interfere in the order passed by learned Single Judge which does not suffer from any legal infirmity, the special is hereby dismissed.
13. However, no order as to cost.
Order Date :- 3.12.2019 V.S.Singh