Central Administrative Tribunal - Kolkata
Phuleswar Prasad Verma vs Union Of India (Uoi) And Ors. on 11 February, 2003
Equivalent citations: 2003(3)SLJ19(CAT)
ORDER Nityananda Prusty, Member (J)
1. This case has a chequered history of litigation. In order to understand the' grievance of the applicant it is necessary to state very briefly the background facts.
2. The applicant joined service under the Eastern Railway as Clerk, Gr. II on 8.9.1956. After passing departmental examination, he was promoted to the post of Clerk, Gr. 1 and posted in the office of the Chief Accounts Officer at Fairle Place with effect from 11.5.1959 and was confirmed w.e.f. 10.10.63. The applicant went on leave from 7.10.1970 and left for his home town in Bihar during the Puja holidays. It is alleged that the applicant had been suffering from piles and hence he could not join his duties after the Puja holidays, and reported sick. It is his case that from his native place he had been sending leave applications with medical certificate and in the absentee statement issued by the office, against his name a remark "Reported sick" was shown. It is stated that in October, 1972 the applicant was declared fit by the B.R. Singh Railway Hospital and he joined his duty. Again he went on leave to his home state during the Puja vacation of October, 1972 and did not join thereafter. However, the respondent's case is that after 7.10.70, the applicant did not join his duty and it is not a fact that he was ever declared fit by the B.R. Singh Hospital during October, 1972. It is their specific case that the applicant after 7.10.70 did not report for duty nor did he send any leave application alongwith medical certificate granted by a Railway medical doctor as per rules whereas the applicant claims that he duly sent such leave applications with medical certificates. Subsequently in March, 1985 the applicant claims to have sent a representation to permit him to join his duty after having being declared fit. However, it is alleged that he was not allowed to join. Thereafter, again the applicant tried to join in the year 1987, but he was not allowed to join. The applicant claims that from time to time thereafter he tried to join his duties, but he was not allowed to do so. The respondents, however, deny that the applicant had ever sent any application in 1985. It is admitted that only 1987 that the applicant submitted a representation to allow him to join with a fit certificate issued by a private medical practitioner and not by any railway doctor as required under the rules. In any event, the applicant was served with a charge sheet dated 19.8.1988 by hand and an enquiry was started against him. Initially, the applicant participated in the enquiry, but subsequently he withdrew and the enquiry was concluded ex pane. The Enquiry Officer in his report dt. 10.1.89 held that the charge against the applicant was proved. Accepting the report of the Enquiry Officer, the Disciplinary Authority passed an order on 20.1.1989 and imposed upon the applicant the penalty of removal from services for his unauthorised absence from duty for about 18 years. Against the same, the applicant preferred an appeal, but the Appellate Authority rejected his appeal vide order dated 26.4.1989.
3. Challenging the charge sheet, enquiry report, removal order and the appellate order, the applicant filed the O.A., No. 674/1989 before this Tribunal. This Tribunal decided that O.A. by order dated 22.1.1992. It was observed by the Tribunal that the applicant was served with the copy of the Enquiry Report along with the punishment order and keeping in view the principle laid down by the Hon'ble Supreme Court in case of Union of India v. Md. Ramzan Khan, AIR 1991 SC 471=1991(1) SLJ 196 (SC), the Tribunal allowed the O.A. and set aside the removal order. It was directed that the competent authority shall complete the proceeding upto the appellate stage within six months. Against this order of the Tribunal the railway respondents went in appeal before the Hon'ble Apex Court in Civil Appeal No. 3038/1995. This civil appeal was decided by the Hon'ble Apex Court on 20.2.1995 wherein it was held that the decision in Md. Ramzan Khan's case (supra) was rendered on 20.11.1990 and it was clearly specified therein that the said ruling will have prospective effect only. Since in the instant case the punishment order was passed prior to 20.11.1990, the Hon'ble Apex Court set aside the order of the Tribunal and remanded back the matter to the Tribunal for decision on the other issues raised in the application on merit. Accordingly, the matter was heard again by this Tribunal on merit and by an order dated 4.8.2000 this Tribunal dismissed the O.A. being devoid of any merit. Challenging this decision of the Tribunal, the applicant filed a Writ Petition before the Hon'ble High Court bearing No. WPCT 828/2000 which was decided on 4.12.2000. The Hon'ble High Court set aside the order of the Tribunal dated 4.8.2000 only on the ground that the appellate order was not in accordance with the provisions of Rule 22(2) of RS (DA) Rules, 1968 in asmuch as the appellate authority did not consider the questions whether the procedure laid down in the rules had been complied with or whether the findings of the Disciplinary Authority were warranted by the evidence on record and whether the penalty imposed was adequate, inadequate or severe. Thus, the appellate order dated 26.4.1989 and also the order of the Tribunal dt. 4.8.2000 was set aside by the Hon'ble Court and the Appellate Authority was directed to consider the petitioner's appeal afresh and pass a reasoned and speaking order at an early date and preferably within a period of one month from the date of communication of the order of the High Court. Thereafter, the Appellate Authority passed a fresh order on 15.1.2001 rejecting the appeal of the applicant. Challenging the said fresh appellate order dated 15.1.2001, the applicant filed a writ petition directly in the Hon'ble High Court bearing No. WPCT. 139/2001. The Hon'ble High Court by its order dated 16.3.2001 held that the applicant ought to have challenged the fresh appellate order before the Tribunal and since this was not done, the said writ petition was not entertained. However, a direction was issued to the effect that if any application is made before this Tribunal for setting aside the order of the Appellate Authority, the Tribunal should dispose of the same as early as possible preferably within 3 months from the date of filing of the application.
4. It appears that thereafter the applicant has filed the instant O. A. before this Tribunal on 29.5.2001 challenging inter alia the charge sheet dated 19.8.1988, the disciplinary proceedings, the enquiry report, the removal order dated 20.1.1989 and the fresh appellate order dated 15.1.2001 and he has also prayed for direction to reinstate him in service with effect from the date of his removal from service i.e., with effect from 20.1.1989 and for paying all arrears and balance wages alongwith consequential benefits including pension etc.
5. It appears that through this O.A., the applicant has reiterated his challenge to the charge sheet, enquiry report, the order of the disciplinary authority and the appellate order on taking the same pleas as were raised in the earlier O.A. In sum, the applicant has mentioned that the charge sheet was issued against him after a lapse of long 18 years of his alleged unauthorised absence, the disciplinary proceedings was conducted in a manner prejudicial to his interest in asmuch as he was not provided with the necessary documents called for by him and that he was not given sufficient opportunity to defend himself in the proceedings and as a result he had to disassociate himself from the enquiry and the enquiry was finally concluded ex parte against him. The Disciplinary Authority passed the removal order without considering his objections raised in his representation and the fresh appellate order has also been passed without considering the points raised in his appeal and as such it was not in compliance with the Rule 22 of the RS (DA) Rules as directed by the Hon'ble High Court in the earlier Writ Petition No. 828/2000.
6. The respondents have contested the application by filing a written reply to which the applicant has also filed a rejoinder. During the course of hearing the ld. Counsel for the respondents has also produced the relevant departmental file for our perusal.
7. We have heard the learned Counsel for the parties at length and have gone through the departmental file as well as the averments made in the application and in the reply. Both the parties have also filed written arguments which we have also considered carefully.
8. From the facts narrated above, it will be clear that the applicant had earlier filed the original application before this Tribunal in which he had challenged the charge sheet, the enquiry proceedings, the enquiry report and the order passed by the Disciplinary Authority. The said O.A. was decided on merit by this Tribunal on being remanded by the Hon'ble Apex Court as stated above. Against the order of the Tribunal dated 4.8.2000 the applicant filed a Writ Petition before the Hon'ble High Court bearing No. WPCT. 828/2000 which was decided on 4.12.2000. The Hon'ble High Court held that the judgment and order passed by this Tribunal on 4.8.2000 could not be sustained only on the ground that the order passed by the Appellate Authority dated 26.4.1989 was not a speaking one. The Hon'ble High Court thereafter reproduced the Rule 22(2) of RS (DA) Rules and held that none of the factors mentioned in Rule 22(2) was considered by the Appellate Authority while deciding the appeal of the applicant. Accordingly, the appellate order along with the order of the Tribunal was set aside and the Appellate Authority was directed to consider the appeal of the applicant afresh and pass a reasoned order. Pursuant to the said direction the Appellate Authority has passed a fresh order on 15.1.2001. Challenging this appellate order the applicant moved before the Hon'ble High Court directly in Writ-petition No. WPCT. 139/ 2001. This Writ Petition was, however, not entertained and it was observed by the Hon'ble High Court that if the applicant filed an application before this Tribunal for setting aside the order of the Appellate Authority, the Tribunal should dispose of the same as early as possible.
9. From the above, it is clear that the Hon'ble High Court gave liberty to the applicant to challenge the fresh appellate order dated 15.1.2001 before this Tribunal by filing a fresh application which the applicant has done. Apart from challenging the appellate order dt. 15.1.01, the applicant has challenged additionally the charge sheet, the enquiry report, the punishment order as well, which were also challenged in the earlier O.A. and decided by this Tribunal on merit. The Hon'ble High Court while considering the writ petition against the judgment of the Tribunal dated 4.8.2000 did not make any comment so far as the findings of the Tribunal in relation to the charge sheet, the disciplinary proceedings, enquiry report and the punishment order were concerned. The Hon'ble High Court set aside the order of the Tribunal only on the ground that the appellate order was not a speaking one and not in conformity with the provisions of Rule 22(2) of RS (DA) Rules. Thus, it is obvious that the applicant can only challenge the appellate order in the instant application as per liberty granted to him by the Hon'ble High Court in its order dt. 16.2.2001 in WPCT No. 139/2001 and not the other ones which had already been decided by this Tribunal on merit earlier and not interfered with by the High Court.
10. In the circumstances, we are of the opinion that we should confine our discussion mainly on the challenge against the fresh appellate order dated 15.1.2001. However, since ordinarily appellate order merges with the order passed by the disciplinary authority we intend to make our observations in passing about the other allegations made by the applicant in respect of the charge sheet, enquiry proceeding, enquiry report and the order of disciplinary authority.
11. It is not in dispute that the applicant joined service under the Railways in the year 1956 and he was promoted as Sr. Clerk in 1959 and was confirmed in 1963. The charge against the applicant is that he absented himself quite frequently and with effect from 7.10.1970 he remained absent unauthorisedly and inspite of several notices to him to report to the nearest Railway Doctor and furnish a report of his sickness, he failed to do so. In fact the applicant remained absent unauthorisedly upto 10.8.1987 and thereafter he again absented himself unauthorisedly. A list of documents on which the charge was proposed to be substantiated contained 4 documents which were dated 19.8.1971, 16.9.1971, 4.12.1971 and 21.2.1972. There was no witness named in the charge-memo by whom the charge was proposed to be proved. An enquiry was conducted in which the applicant took part initially, but subsequently he withdrew and the enquiry was concluded ex parte holding that the charge against the applicant was proved. Thereupon the Disciplinary Authority passed a detailed order and imposed penalty of removal from services. The applicant filed an appeal on 17.2.1989 which was decided by the Appellate Authority. However, in terms of the order of the Hon'ble High Court as referred to above, the Appellate Authority has passed a fresh appellate order on 15.1.2001 which is available at Annexure A-4 to the O.A.
12. We have gone through the appellate order which is a lengthy order and the Appellate Authority has opined that the punishment of removal from services did not call for any interference. The applicant has challenged this appellate order through this O.A. alongwith other orders like the charge sheet, D.A. proceeding, the enquiry report and the removal order as stated above. So far as the challenge to the appellate order is concerned, it is contended by the applicant that the said order is not in conformity with the direction of the Hon'ble High Court dated 4.12.2000. He has stated that the points raised in his appeal dated 17.2.1989 was not considered by the Appellate Authority while passing the fresh appellate order. It is stated that in his appeal the applicant had raised several points as below:--
(i) The charge sheet was not authenticated by the Disciplinary Authority and as such it was void.
(ii) The applicant was shown in the official document as in sick list and in the seniority lists of 1986 and 1988 his name was also appearing and against his name he was shown to be on sick leave. His contention was that when the official documents showed that he was on sick leave, he could not have been treated to be on unauthorised absence for which the disciplinary proceeding was started against him with the impugned charge sheet. The Appellate Authority did not consider this point in his appellate order.
(iii) It was also stated that the major penalty charge sheet was issued on 19.8.1988 wherein the allegation against the applicant was that he was on unauthorised absence since 1970 whereas he joined his duty in 1972 just before Puja holidays after having being declared fit by the B.R. Singh Rly. Hospital and hence he could not be on unauthorised absence from 1970.
(iv) The charge sheet was issued to him after a long gap of about 18 years and as such the charge sheet should be quashed on that ground alone in view of several decisions of the Hon'ble Apex Court mentioned in the application.
(v) The next point taken by the applicant is that he submitted leave application alongwith the medical certificates from private medical practitioner during his long absence whereas there was no mention or discussion of the same in the appellate order.
(vi) He has also stated that in 1985 he wanted to join his duty but he was not allowed to do so. Again in 1986 and 1987 he tried to join his duty, but was denied to do so. According to the applicant there was no discussion of this particular issue in the appellate order.
(vii) He has mentioned that the enquiry was conducted without giving him the adequate opportunity to defend himself and that he was even denied the assistance of defence helper, that he was also not furnished with necessary documents asked for by him to defend his case and as such the enquiry was vitiated.
(viii) He has also challenged the enquiry proceeding which was concluded ex parts and doubted whether the enquiry was at all concluded. He has mentioned certain observations of the Enquiry Officer in this regard.
(ix) He has also contended that he was never suspended and no subsistence allowance was paid to him and as such he was prejudiced to defend his case in the D.A. proceedings. He has referred to several decisions of the Hon'ble Supreme Court in this regard.
13. Thus, according to the applicant the Appellate Authority while passing the impugned appellate order failed to discuss all these points raised in his appeal and has passed the appellate order mechanically and without applying the mind. Therefore, the said appellate order is vitiated and not in conformity with the provisions of the rules and as such it should be quashed and he should be reinstated in services with full benefits.
14. On a perusal of the appellate order, it appears that the Appellate Authority has stated the facts relating to the case of the applicant and referred to the report of the Enquiry Officer and the order of the Disciplinary Authority. She has also stated that the procedure laid down under Rule 22 of RS (DA) Rules as well as the principle of natural justice had been complied with in asmuch as full opportunity was given to the applicant and that there was no violation of any provision of the Constitution of India. It was also observed that the findings of the Disciplinary Authority were fully supported by the evidence on record. Accordingly the Appellate Authority opined that she had no other alternative but to conclude that the applicant was unauthorisedly absent from duty for a long period of 17 years and had shown gross negligence and total lack of devotion to his duties. As such, the Appellate Authority concluded that there was no reason to interfere with the order of removal passed by the Disciplinary Authority.
15. No doubt, the points raised by the applicant in his appeal as summarised above, were not discussed in detail in the appellate order. However, the enquiry report and also the Disciplinary Authority's order clearly indicate that the points raised by the applicant had been considered by the Disciplinary Authority in detail and the same has been relied upon and accepted by the Appellate Authority. In this context, it will also be relevant to mention that all these points were also considered and decided by this Tribunal in the earlier O.A. vide its judgment dated 4.8.2000 which was prior to passing of the fresh appellate order. As already pointed out, the Hon'ble High Court while setting aside the order of the Tribunal did not interfere with the findings of the Tribunal on those issues. Thus when most of the points raised by the applicant in his appeal, had already been decided judicially and not interfered with by any higher forum, the Appellate Authority being a quasi judicial authority cannot possibly differ from the same and as such no further discussion was considered necessary by the Appellate Authority on those points once again and as such for non-discussion of the issues already decided by this Tribunal earlier, by the Appellate Authority, cannot be held to be non-application of mind. The Appellate Authority has confirmed the enquiry report and also the disciplinary order, which had elaborately discussed the factual issues raised by the applicant in his appeal. In such circumstances, the appellate order cannot be faulted.
16. However, we may consider the contentions raised by the applicant as argued before us with reference to the reply and the departmental records. The first contention of the applicant is that the charge sheet served on him was not authenticated by the competent authority and as such it should be treated as illegal and void. The applicant has referred to Rule 14 of the RS (DA) Rule and has stated that according to the instructions below this Rule it was incumbent upon the disciplinary authority to put his signature on every page of the charge-memo. As the same was not done, the charge sheet itself is void. We are, however, not inclined to accept this argument. We have gone through the charge sheet kept in the departmental file and it is found that the same was approved by the competent authority and the draft charge sheet duly signed and stamped. In any event, only because the pages of charge memo was not signed by the competent authority, the same cannot be said to be illegal and void. It is not the case of the applicant that the charge sheet which was served to him was a different one from the one which was approved by the competent authority in the file.
17. The second contention raised by the applicant is that although he was charge-sheeted for his unauthorised absence from duty for a long period from 7.10.70, in the official documents issued thereafter he was shown to be on sick leave. He has also referred to the seniority lists of 1986 and of 1988 wherein against his name it was mentioned that he was on long leave. According to the applicant, had he not been on leave duly approved by the competent authority, his name could not have been shown in the official documents as on sick leave and as such the charge levelled against him cannot be substantiated.
18. It may be pointed out here in this context that from the records it appears that the applicant joined his duty after availing of leave on 6.10.1970 (vide page 34 of the departmental file). It is stated by the applicant in his joining report that he was joining after being sick from 17.10.1969. From the endorsement on the body of the letter/joining report of the applicant it appears that he was allowed to join duty on that date. However, the allegation against the applicant is that from the net date i.e. from 7.10.1970 he remained absent from duty. From the file we find that steps were taken to issue him show cause notice and in fact, on 19.8.1971 a letter was addressed to his hometown address at Muzaffarpur, Bihar to the effect that his absence from duty with effect from 7.10.1970 without any report was being treated as unauthorised and would amount to misconduct. He was asked to submit his explanation within 7 days. In reply, the applicant submitted a letter on 28.8.1971 which was received by the department on 6.9.1971 wherein he stated that he was sick and hence he could not attend office. He had also mentioned that he had already sent two applications alongwith medical certificates and he further stated that he will be able to join his duty within a few days after the Puja holidays. The respondents have denied the receipt of these two applications mentioned by the applicant. We also do not find anything in the record. However, from a note-sheet we find that this application of the applicant for leave was not sanctioned in the absence of medical certificate. Thereafter on 16.9.1971, the applicant was asked to submit medical certificate in support of his illness followed by another letter dated 25.10.1971. Thereafter, another letter was issued on 4.12.1971 asking the applicant to produce medical certificate from his nearest medical officer but there was no response from the applicant. In the meantime, a decision was also taken to issue charge sheet against the applicant. However, the charge sheet was not ultimately issued and it was proposed that before issuing the charge sheet, a final letter should be issued to the applicant by registered post to ensure that he did not refute the contents of the earlier letters mentioned above. Accordingly, a letter was issued to the applicant on 21.2.1972 by registered post. Still the applicant did not responce. Thereafter, internal correspondence were going on the frame charge against the applicant and this was going on upto 1975. It appears from the file that a letter was received from the applicant dated 11.8.1987 in which it is stated by the applicant that after 1970 he became sick with piles and stomach troubles and thereafter he joined in 1972 and again fell ill and was on leave and developed mental derailment. He stated to have submitted two medical certificates in 1985 alongwith a letter but he was not given any reply. He prayed for allowing him to join. Alongwith the letter he produced a medical certificate dated 23.3.1985 which he alleged to have submitted in 1985. From English translation of the said certificate from a Homeathetic doctor it appears that the applicant was suffering from recurrent attack of mental depression for the last two years. There are other correspondences in the file and it appears that in 1988 a final decision was taken to issue charge sheel against the applicant. In the meantime, however there were other steps taken by the department to know the whereabouts of the applicant during all these years and there is a letter from the General Manager, Vigilance dated 31.5.1988 wherein it was reported that the applicant was practising as a lawyer at Dumra in Samastipur district for a few years, but he changed his profession and started a business as a contractor with Electricity Department at Muzaffarpur. Ultimately the charge-memo was issued to the applicant and the enquiry was started.
19. It thus appears that the applicant was absenting since 1970. Even though he claims to have joined in 1972, there is no proof on the records in this regard. This points was discussed in the enquiry report and also in the order of the disciplinary authority. He has also claimed to have submitted some letters and medical certificates, but the respondents have denied to have received the same. However, the applicant was charge-sheeted only in the year 1988 and the enquiry was started thereafter. Till then the applicant was treated to be in the roll of the Railways and as such he was always shown to be on sick leave even though no formal leave was sanctioned to him. In the seniority list also his name was appearing for the simple reason that he was still considered to be an employee of the Railway as not removed from service in the meantime. There is no infirmity in this action of the respondents in treating him as on long leave or sick leave while admittedly at the initial stage he went on leave by declaring himself as sick. The applicant cannot take the advantage of these documents to contend that he was on leave on proper authority. In any event, as per the Railway Establishment Code, a Railway employee cannot remain on leave for more than 5 years at a stretch. It is also provided in the said Code that the authorities were within their rights not to accept any medical certificate issued by a private medical practitioner if the leave exceeds 3 days. There is a Railway Board decision of 1972 below Rule 521 in respect of grant of leave on medical certificate to Group 'C' Group 'D' employees to the following effect:-
"With a view to preventing misuse the Railway Administration may withdraw by a specified period from 1st April to 30th June....from 1st October to 15th November during Dewali and when mass sick reporting is contemplated by staff of any department, the privilege of acceptance of medical certificate from registered medical practitioners for grant of medical certificate to Group 'C' and Group 'D' railway servants."
20. It is the contention of the applicant that when in 1985 he wanted to join he was not allowed to do so. He alleged to have submitted a medical certificate issued by a private medical practitioner in support of his sickness as already mentioned above. The said certificate covers only a period of 2 years. As already stated above, under Rule 510 of the IRPC Code, no Railway servant can be granted leave for any account for a continuous period exceeding 5 years unless the President determines otherwise in exceptional circumstances. Similarly, the Railway Manual also provides that if the absence is more than 4 days, medical certificate from Railway Medical Officer is mandatory. In the instant case, the applicant was absent upto 1985 (even according to him) for long 13 years and without any proper medical certificate. Therefore, the applicant could not have been allowed to join without the sanction of the competent authority. Moreover, he was already intimated that he was on unauthorised leave and repeated requests from the department to produce proper medical certificate was not complied with. In such circumstances, the applicant cannot claim the benefit of his name being in the seniority lists or in the alleged sick list.
21. Similarly, as regards the ground taken by the applicant that there was long delay in issuing the charge sheet, it may be stated that steps were already taken to issue charge sheet against the applicant long back, but for reasons not known the same was not issued to the applicant and it was issued only in the year 1988. We find from the records that the Railway Board also enquired about this delay for the information of the then Railway Minister and a reply was given to the effect that the Administration initially did not take any action against the applicant in the expectation that the leave could be regularised at a latter stage and this view was taken on compassionate ground and to help a staff who was apparently unable to resume work due to prolonged ill health. It is admitted that there was some administrative lapses on the part of the administration to follow up the matter. Accordingly an instruction was issued subsequently by the Railway Board that such type of lapse should not recur in future.
22. So far as the contention of the applicant that he joined duty prior to Puja holidays in 1972 is concerned, it appears that during the enquiry, the applicant failed to produce any evidence in that regard. Instead for production of attendance register which could not be produced due to non-availability of old records. However, when the applicant stated that he was declared medically fit by the B.R. Singh hospital, there should be some evidence in his possession in that regard and the onus lies on him to prove that he actually joined at that time. In any event even from 1970 to 1972, there was no medical certificate from Railway Medical Officer as required under the rules and hence this contention of the applicant does not appear to be correct. This position was also discussed by the inquiry officer and also by the disciplinary authority.
23. One of the contention of the applicant is that he was not given opportunity to take help of his defence helper, one Shri Guha and he had to plead his case personally. Subsequently, he withdrew from the enquiry as he was not given proper opportunity. This point was also discussed in the order of the disciplinary authority. It is clarified that two other persons were named as defence helper, who were spared to assist the applicant. But the applicant insisted on appointment of Shri Ghua who was a retired Railway employee. Initially there was some difficulty in appointing Shri Guha but subsequently he was appointed. Moreover, the applicant himself is a legally qualified person and as such it is not understood as to how he was prejudiced in the enquiry. He has pleaded that short notice was given during the date of enquiry, but it appears from the proceedings that the applicant admitted that he received the notice and intimated his defence helper. This contention of the applicant, therefore, does not hold much water.
24. His other contention that he was never suspended nor subsistence allowance was paid to him, was already decided by this Tribunal earlier. It is not mandatory to suspend an employee if a proceeding is drawn up against him. It is the discretion of the authority. Since the applicant was on leave and never joined duty, there was no question of placing him under suspension or to pay him subsistence allowance. The plea taken by the applicant that he wanted to join during 1985 is also not correct as it appears from record that he simply sent a letter from his native place expressing his willingness to join, but he never actually came to the office to join. In 1987 also he gave a similar letter, but on this occasion also he left the office without intimation.
25. In view of this factual position and evidence on record, if the Appellate Authority decides not to interfere with the punishment order, no infirmity can be found with his decision. In our opinion, the three ingredients of Rule 22(2) of RS (DA) Rules have been taken care of. The appeal was considered and decided by the Appellate Authority with reference to the evidence on record as per rule. It is now settled law that Court or Tribunal is not competent to interfere with the quantum of punishment which is exclusively within the jurisdiction of the disciplinary authority unless of course it is shockingly disproportionate with the charge. In the instant case, the applicant, as it appears, was in the habit of taking leave frequently and in remaining absent unauthorisedly. Furthermore, he absented himself from duty since 1970 for long 17 years and did not submit any proper medical certificate during the entire period. Although his case is that he was suffering from piles, he left Calcutta for his native village in Bihar though he could have got better medical treatment in Calcutta. From the records it also appears that on enquiry it was revealed that the applicant was practising law and thereafter acting as a contractor during the period of his unauthorised leave. As such he was gainfully employed during the period. He came up for his service benefits at the end of his career with the hope to get the pensionary benefits by taking advantage of the inaction or leniency of the Deptt. to proceed against him long back although such a decision was taken as far back as in 1973.
26. For the reasons stated above, we are of the considered opinion that there is no infirmity/illegality in the departmental proceeding in any manner and as such we are not inclined to interfere with the impugned order(s). Consequently, this O.A, fails and is accordingly dismissed. However, there shall be no order as to costs.