(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Ms. J.K. Hingorani, learned counsel for the petitioner and Mr Sudhir Mehta, learned counsel for the respondents. This writ petition has been filed challenging the order dated 7.1.2003 passed by the Central Administrative Tribunal, Ahmedabad in Original Application No.464/99 by which the Tribunal has upheld the removal of service of the petitioner on the ground of unauthorised absence.
2. The facts of the case in brief are that the petitioner was working as R. Khalasi at Diesel Shed Sabarmati. He was served with a charge sheet dated 11.4.1997 by respondent No.2 for unauthorised absence from duty. Departmental inquiry was initiated and after considering the inquiry report and the reply of the petitioner, the disciplinary authority passed order of removal from service. An appeal dated 25.5.98 was filed which was dismissed on 21.8.1997. These two orders were challenged by the petitioner in Original Application No.464/99 which was dismissed by the Tribunal by order dated 7.1.2003. This order is challenged in this petition.
3. Learned counsel for the petitioner has urged that the Inquiry Officer, instead of remaining to be an Inquiry Officer, he has also turned into a Prosecutor and has put questions to the delinquent which was not permissible. She submitted that the documents which were mentioned in the charge sheet were not supplied to the petitioner. Therefore, the inquiry proceedings were vitiated as the Inquiry Officer has relied upon the documents which were not mentioned in the charge sheet. She submitted that for a short period of absence, removal from service is too harsh. The arguments of the learned counsel for the petitioner has been strongly opposed by the learned counsel for the respondent and he has urged that the inquiry proceedings and the removal order passed against the petitioner by the punishing authority was perfectly justified and legal and the Tribunal has rightly not interfered with the removal order. The Tribunal has considered the submissions advanced by the petitioner before it in paras 6 to 10 of its order which is reproduced hereunder:
“6. After counsel for the parties have been heard, we find that the charge memo was issued and the penalty order was passed for absence during the period from 25.11.1996 to 11.4.1997. During this period, the applicant was never under the treatment of Railway Doctor. Prior to 25.11.1996 for some time the applicant was under the medical treatment of Railway doctor but that period is not included in the charge sheet. Therefore, only the period from 25.11.1996 to 11.4.1997 is to be considered. The applicant was under private doctor's treatment at Lucknow from 25.11.1996 to 24.1.1997 and under treatment of private doctor Jitendra P Joshi at Ahmedabad for the period 18.2.1997 to 4.4.1997. Nothing is stated in the O.A. for the period 25.1.97 to 17.2.97. As claimed, the applicant was under the treatment of Railway doctor at Ahmedabad from 7.4.1997 to 11.4.1997. The record, however, shows that during the period the applicant claims to be under the treatment of doctor Jitendra P Joshi, between 18.2.1997 to 4.4.1997, the applicant was in jail from 22.2.1997 too 15.3.1997. The applicant has not filed any treatment papers of Doctor Jitendra P Joshi. During inquiry, the applicant himself stated that he was under treatment of Dr. Jitendra P Joshi at Ahmedabad from 18.2.97 to 4.4.97 but he had not given this information to his office. The statement also reveals that even the information regarding his detention in jail from 21.2.1997 to 15.3.1997 was not given by the applicant to his office. If the applicant was in jail, he could not be under treatment of Dr. Jitendra P Joshi during the said period. Obviously the applicant's contention cannot be correct. The claim made by the applicant that he was under treatment of Doctor Jitendra P Joshi stands falsified from the records.
7. The applicant has not filed any document to show that he was under the treatment of Railway doctor at Ahmedabad between 7.4.1997 to 11.4.1997. Further, the absence from 25.1.1997 to 17.2.1997 is not explained nor claimed to be under treatment of any doctor.
8. As per para 535(2) of Indian Railway Medical Manual, if a railway employee, residing within the jurisdiction of railway doctor, desires to be attended by a non-railway Medical Attendant at his own choice, it is not incumbent on him to place himself under the treatment of the railway doctor. This, however, provides that it is essential that if leave for absence is required on medical certificate, a request for such leave should be supported by a sick certificate from railway doctor. It is not the case of the respondents that any of the sick leave was supported by a sick certificate from the railway doctor. Actually no medical certificate has been filed with this O.A. Even when service records was examined in the course of inquiry no question to that effect was put that any application for leave or medical certificate from private medical doctor, for th period in question, was given by the applicant to the office. This, obviously, shows that for the period in question actually no medical certificate from private doctor or leave application was actually given by the applicant to the office. Thus, the conclusion of the Inquiry Officer that the applicant was unauthorizedly absent between the period 25.11.1996 to 11.4.1997 cannot be faulted.
9. The submission of the learned counsel for the applicant that as copy of the muster roll was not given to the applicant the inquiry is vitiated, has no merit. As per the reply, the muster roll in original was produced during the inquiry and the same was also given to the applicant to defend his case. Otherwise also, we find that the contention of the applicant has no merit because it is not the case of the applicant that the applicant was present between the period 25.11.96 to 11.4.97. Muster roll can show the presence of the employee. Admittedly, the applicant was not present between the period 25.11.96 to 11.4.97. Consequently even if, for argument sake, the submission of the learned counsel for applicant be accepted, that was not relevant nor it caused any prejudice to the applicant.
The learned counsel for the applicant has placed reliance on the decision of the Hon'ble Gujarat High Court in the case of Amymiyan Pirmiyan Kadri vs. Gujarat State Road Transport Corporation and others reported in 1992 (2) GLH 21 wherein the Hon'ble High Court has held that even if no prejudice was caused, the contravention of the rule would be violation of principle of natural justice. It was a case where the Inquiry Officer himself cross examined the delinquent employee and acted both as a Judge and as a Prosecutor. The facts of the present case is different from the facts of the cited case.
In the case of Jayrambhai Thakorshibhai Italia v. The Gujarat State Road Transport Corporation reported in 1992 GLT page 310, the Inquiry Officer who was conducting the inquiry proceedings acted as a Presenting Officer and it was held that a Judge cannot be a Prosecutor.
The cited cases are of no help to the applicant.
10. Lastly, the learned counsel for the applicant submitted that for a short period of absence of five and half months, the punishment of removal from service is harsh. The submission is that the Tribunal can interfere as regards the quantum of punishment and award a lesser punishment. Learned counsel has placed reliance on the decision of the Apex Court in the case of Union of India v. Giriraj Sharma nAIR 1994 page 215. Besides the facts being different, the absence in the cited case was for 12 days only. Whereas in the case before this Bench, unauthorised absence of the applicant is for about five and a half months.
With reference to the decision in the case of H.P. Thakore v. State of Gujarat and others reported in 1979 GLR Page 109, the learned counsel for the applicant submitted that with regard to the quantum of punishment, the application of mind is necessary. In the said case, Hon'ble Court observed that:
“It will not be sufficient for him to say in a general vague and omnibus manner that having regard to the circumstances of the case the employee concerned deserves to be dismissed. The disciplinary authority was bound to take into consideration the gravity of the charge, the nature of its consequences, whether the charge warranted an inference as regards his honesty, integrity or uprightness, whether the fault was such as had resulted in serious detriment to the public interest. All those were questions which the disciplinary authority was bound to pose to himself and to answer to his own satisfaction.”
In the case in hand, we have noticed that the disciplinary authority has taken into consideration all facts and circumstances of the present case, and has applied its mind before passing the impugned order of punishment. We are, therefore, of the view that the applicant gets no benefit from the decision in the case of H.P.Thakore. In this connection reference may be made to the decision of the Hon'ble High Court of Gujarat in the case of Pathan Jamlkhan Mohmmedkhan vs. Director of Agriculture, Ahmedabad and anr reported in (2002) 6 SLR 405 wherein following the decision of:
(I) State Bank of India v. Samarendra Kishore, [(1994) 1 JT 217: (1994 (1) SLR 516 (SC)] (ii) B.C Chaturvedi v. Union of India (1995) 8 JT (SC) 65 : (1995 (5) SLR 778 (SC) It has been observed that :-
“This court sitting under Articles 226 nor 227 of the Constitution of India has very limited powers of judicial review in the matter of quantum of punishment to be awarded to the delinquent by the disciplinary authority for the proved misconduct.”
In the case of Colour-Chem Ltd, v. A.L. Alaspurkasr & Ors. reported in 1998 (2) SC p 127, the employee was found sleeping during night. Hence the order of dismissal was found grossly disproportionate. There was no past record against the applicant and the allegations regarding past records were found false.
In the case of Sardarsingh Devisingh v. The Diust.Superintendent of Police Sabarkantha District & Ors reported in AIR 1985 GLR 1368, the applicant was unauthorizedly absent for 150 days. The dismissal order was modified with lighter punishment as there was no previous conduct of remaining absent without leave.
The case of Siddharth Mohanlal Sharma v. South Gujarat University reported in 1982 (1) GLR page 233 was in respect of a student who had misconducted himself at an examination. So, the facts as given in the said case are not relevant so far as the case in hand is concerned.
The case of Kuldeep Singh vs. Commissioner of Police and others reported in (1999) 2 SCC 10 was a case of imposter and punishment was quashed as it was found based on no evidence.
In the case of Anantrai L. Vadnagar v. State of Gujarat, Special Civil Application No.11506 of 1994 decided on 18.l2.1999 the impugned order of punishment was quashed amongst other grounds that copies of documents were not supplied nor reply to an application for copy was given by the department to the applicant. In the case on hand, as has been mentioned in the preceding para, the muster roll was not a document relevant for deciding the absence of the applicant, still the muster roll in original was produced during the inquiry and the same was also given to the applicant to defend his case. Consequently the decision in the case of Anantrai L Vadnagra (supra) is not of any help to the applicant.
On consideration of all the cases cited by the learned counsel for the applicant and looking to the conduct of the applicant of the present case wherein though the applicant claimed that he was under the treatment of doctors during the period in question, no medical certificate has been filed nor any application for leave has been produced. Besides this though the applicant was between 18.2.1997 to 4.4.1997 in jail, the applicant did not inform the department so the applicant deserves no leniency with regard to the punishment.”
Learned counsel for the petitioner could not demonstrate as to how the Inquiry Officer has turned into a Prosecuting Officer. So far as non-supply of document is concerned, the Tribunal has adequately dealt with the documents mentioned in the charge sheet which were relied in the inquiry proceedings and no material has been produced by the learned counsel to demonstrate as to which documents not mentioned in the charge sheet has been relied upon by the Inquiry Officer. The punishment is not disproportionate to the charge.
3. In view of the aforesaid, we do not find any merit in this writ petition and it is accordingly dismissed. Rule is discharged.
[V.M. SAHAI, J.] [G. B. SHAH, J.] msp