Document Fragment View

Matching Fragments

4. In the counter-affidavit filed by the Divisional Security Commissioner, it is, inter alia, stated that the petitioner, after performing night duty on 30.09.1994/01.10.1994, left headquarters without obtaining permission from the Sub-Inspector, Railway Protection Force on coming to know that his wife was behaving abnormally. The respondent denied the allegation that the petitioner had given a "Security control message" on 02.10.1994 seeking ten days leave on the ground that his wife had expired. According to the respondents, the petitioner only informed about his wife having committed suicide to the Sub- Inspector, Railway Protection Force through security control. The petitioner did not ask for leave and had not sent a telegram or a leave application. It is stated that the petitioner was arrested on 22.10.1994 in Cr. No. 59 of 1994. The Disciplinary authority placed the petitioner under suspension and issued a major penalty charge sheet under Rule 153 of RPF Rules, 1987. It is stated that an enquiry officer was appointed to conduct a regular departmental enquiry as per Rule 153.5 of the RPF Rules, 1987 and that the enquiry officer initially fixed the date of enquiry as 18.11.1994. It is stated that after obtaining permission from the Superintendent, Central Prison, Cuddapah, the departmental enquiry was conducted on 06.12.1994 and the preliminary statement of the petitioner was recorded, by the enquiry officer, in the central prison. Respondent denies the allegation that the petitioner's statement was taken under duress, and submits that the petitioner had stated in the preliminary enquiry that he had no objection to attend the enquiry. The petitioner is said to have submitted a representation on 06.12.1994 engaging the services of his friend Sri M. Sreeramulu as his Defence Counsel. It is stated that the enquiry officer examined two prosecution witnesses, Sri K. Subbarayudu, Asst.Sub-Inspector of Police C.K. Denne Police Station and Sri K. Hussainappa, Sub-Inspector, RPF, Adoni and they were subjected to cross examination by the petitioner. Respondents would submit that the petitioner was removed from service, for leaving headquarters without permission and remaining absent unauthorisedly and not for the criminal case, since the police case was a totally separate issue. According to the respondents, the petitioner was dealt with for the charge of leaving headquarters on 01.10.1994 without permission and for remaining absent unauthorisedly from 02.10.1994 and subsequently getting involved in a police case and since the charge of leaving headquarters without permission and remaining absent unauthorisedly was held to be proved in the departmental enquiry the petitioner was removed from service. It is stated that the petitioner had availed the opportunity of cross-examining the prosecution witnesses in the departmental enquiry conducted against him. It is admitted that the disciplinary enquiry was conducted while the petitioner was in judicial custody. It is stated that the petitioner expressed his willingness to attend the enquiry, when his preliminary statement was recorded by the enquiry officer. Respondents would submit that conducting departmental enquiry, without calling for the petitioner's explanation, was in order and that petitioner's acquittal in the criminal case would not preclude disciplinary action being taken against him. Respondents would deny the contention that the punishment imposed is disproportionate to the charges, since leaving headquarters without permission and absenting from duty unauthorisedly was an act of serious indiscipline in the armed forces. It is stated that since both the charges, which were levelled against the petitioner and were held proved in the departmental enquiry, were serious in nature the petitioner was removed from service. It is stated that the punishment of removal from service imposed on the petitioner by the 1st respondent, in proceedings dated 20.01.1995, was confirmed by the 2nd respondent on 16.04.1996, and again confirmed by the 3rd respondent on 06.01.1999 after carefully looking into and examining the material evidence on record.

5. Sri J.M. Naidu, learned Counsel for the petitioner, would seek to have the disciplinary proceedings instituted against the petitioner and the punishment of removal imposed on him quashed on the following grounds. (1) The Petitioner was not paid subsistence allowance resulting in violation of principles of natural justice. Learned Counsel would place reliance on Cap. M. Paul Anthony v. Bharat Gold Mines Ltd1 in this regard. (2) Since the petitioner had been acquitted in the criminal case, the punishment imposed on him for his involvement in a criminal case was liable to be set aside, more so since no disciplinary enquiry was held on the charges which formed the basis of the criminal case and the petitioner had been charged only for his involvement in a criminal case. Learned Counsel would place reliance on S.K. Ramju v. Regional Manager, APSRTC, Nalgonda, Nalgonda District 2001(4) ALD 535 (DB) in this regard. (3) Since the allegation, that the petitioner had murdered his wife and child, weighed with the respondent authorities in imposing the punishment of removal from service and as the petitioner was acquitted of this offence in S.C. No. 80 of 1995, and no disciplinary enquiry was held to enquire into this charge, the punishment imposed on him for moral turpitude was liable to be set aside and since this was the main charge, the punishment imposed on the petitioner of removal from service was liable to be set aside. Learned Counsel would submit that for the charge, of leaving headquarters without permission and for unauthorized absence, the petitioner ought not to have been imposed the severe punishment of removal from service more so since the petitioner was in judicial custody from 02.10.1994,and the disciplinary enquiry was itself held in the Central Prison, Cuddapah. According to the learned Counsel, the petitioner could not be said to have remained unauthorizedly absent from duty, since he was required to attend duty only on the after-noon of 2nd October 1994, on which date the petitioner was arrested and illegally detained by the police. Learned Counsel would submit that, though in fact the petitioner had been arrested on 2nd October 1994, the police authorities had shown his arrest only on 22.10.1994. According to the learned Counsel, even if the police version were to be believed, absence of the petitioner from duty was only for 20 days and this coupled with the fact that the respondents themselves admit that the petitioner had informed them about his wife having committed suicide, were circumstances which warranted taking a lenient and sympathetic view. The punishment of removal from service, in such circumstances, was grossly disproportionate and was liable to be set aside. Learned Counsel would place reliance on Syed Zaheer Hussain v. Union of India , Union of India v. Giriraj Sharma , M. Krishnam Raju Asst. Technical Officer, Commercial Electronics Group, ECIL, Hyderabad v. The Electronics Corporation of India rep.,by its Managing Director, Industrial Development Area, Hyderabad , K. Balangi Reddy v. APSRTC, Hyderabad , D. Ramulu v. The Government of India, rep, by its Director General Railway Protection Fore, Rail Bhavan, New Delhi Judgment in W.P. No. 6021 of 1999 dated 08.07.2005, K. Rambabu v. Union of India, rep., by its Director General, Railway Protection Force, Rail Bhavan, New Delhi Judgment in W.P. No. 20448 of 1997, dated 20.06.2000, and The Dy. Chief Security Commissioner, Railway Protection Force, South Central railway, Secunderabad v. Jahangir Judgment in W.A. No. 1659 of 2000 dated 13.11.2002, in this regard.

34. In State of Rajasthan v. Mohd. Ayub Naz , the Supreme Court held thus:

...Absenteeism from office for a prolonged period of time without prior permission by government servants has become a principal cause of indiscipline which has greatly affected various government services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, the Government of Rajasthan inserted Rule 86(3) in the Rajasthan Service Rules which contemplated that if a government servant remains wilfully absent for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service. In the instant case, opportunity was given to the respondent to contest the disciplinary proceedings. He also attended the enquiry. After going through the records, the learned Single Judge held that the admitted fact of absence was borne out from the record and that the respondent himself had admitted that he was absent for about 3 years. After holding so, the learned Single Judge committed a grave error that the respondent can be deemed to have retired after rendering of service of 20 years with all retiral benefits which may be available to him. In our opinion, the impugned order of removal from service is the only proper punishment to be awarded to the respondent herein who was wilfully absent for 3 years without intimation to the Government. The facts and circumstances and the admission made by the respondent would clearly go to show that Rule 86(3) of the Rajasthan Service Rules is proved against him and, therefore, he may be removed from service .

45. In D. Ramulu Judgment in W.P. No. 6021 of 1999 dated 08.07.2005, this Court held thus:

...Admittedly, the petitioner absented from duty without any intimation and without proper permission. In spite of there being letters sent by the respondents to report for duty, he did not do so. Therefore, he was kept under suspension and enquiry was conducted and thereafter he was removed from service as per the Railway Protection Force Rules, 1987. The petitioner had put in about 10 years of service before he was removed from service. In the counter affidavit also nothing was stated except that on earlier two occasions also, the petitioner submitted a sick certificate from a private medical officer and he was referred to the Medical Officer concerned and on the certification issued by the Medical Officer holding that he is fit to duty, he was permitted to join duty. However, the petitioner did not improve though some lenient view was taken on earlier occasions. But, I am of the considered opinion that the punishment of removal from service is highly disproportionate to that of the misconduct alleged and proved. The respondents should have imposed any lesser punishment, such as, stoppage of increments or reduction in the pay scale to the lower stage etc., which could have been a sufficient punishment in the nature of the misconduct alleged against the petitioner. While dealing with the present case, the respondents also referred to the earlier absence, which they themselves have condoned and accepted the sick certificates submitted by the petitioner. Except this, there is no other misconduct or any punishments suffered by the petitioner for the ten long years of service rendered by him with the respondent-RPF....