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Allahabad High Court upholds dismissal of railway employee from service on the grounds of habitual absenteeism

The Allahabad High Court while upholding the dismissal of a railway employee from service on the grounds of habitual absenteeism without authorization observed that the petitioner is a habitual absentee from his duties since 2007-09 and he was absent about 600 days.

The Division Bench of Justice Vivek Kumar Birla and Justice Donadi Ramesh passed this order while hearing a petition filed by Mohammad Sabir.

The petition has been filed aggrieved by the order of Central Administrative Tribunal Bench, Allahabad dated 05.04.2021 in Original Application.

The petitioner has filed the original application assailing the order dated 1.4.2010 of the respondents herein. While working on the post of Khalasi/Helper in Railways, the respondents have issued a memorandum of charge on 11.9.2008 proposing to initiate a major penalty. Consequent on the said charge, an inquiry officer was appointed and the date 15.6.2009 was fixed for inquiry proceedings.

On the said date, the petitioner appeared before the inquiry officer and the charge memo was read over to him and his statement was recorded. Thereafter, the inquiry report was submitted by the inquiry officer finding the petitioner guilty of the charges.

Based on the above, the disciplinary authority issued proceedings on 30.11.2009, imposing punishment on the petitioner of his removal from service.

Aggrieved by the said order, the petitioner preferred a department appeal on 9.12.2009, which was decided by the order dated 1.4.2010 recording a clear finding that the petitioner is a habitual of absenting himself unauthorizedly and he has absented himself by total number of 801 days unauthorizedly. Accordingly, the punishment was affirmed. Assailing the said orders, he preferred the original application before the Central Administrative Tribunal, Allahabad.

The petitioner has raised several grounds before the Tribunal mainly on the ground that Rule 9 of the Railway Servants (Disciplinary and Appeal) Rules, 1968 (hereinafter referred to as the ‘Rules’) have not been followed by the inquiry officer while conducting the inquiry.

Though the inquiry officer, Deena Nath Singh was appointed, there is no mention as to who appointed Deena Nath Singh. No letter regarding appointment of inquiry officer was delivered to the petitioner.

Based on the statement recorded on 15.6.2009, the inquiry officer has submitted the report on 22.6.2009, which is non-speaking, vague and cryptic. No witness was examined during the inquiry proceedings. No documentary evidence was examined and the petitioner was not provided any opportunity to cross-examine any witness during the inquiry proceedings. Finally, the punishment order of removal from the service is harsh punishment and disproportionate to the charges leveled against the petitioner.

Based on the above facts, the Tribunal has framed the issue whether the inquiry proceedings have been vitiated due to the reason that several provisions of Rule 9 of the Rules, 1968 were not followed by the inquiry officer as quoted by the petitioner.

Aggrieved by the above said order, the writ petition has been filed.

Counsel appearing on behalf of the petitioner has contended that the Tribunal has failed to appreciate the legal contentions raised by the applicant therein, in fact, he has specifically contended that the respondents have not followed Rule 9 (9) (c), Rule 9 (13) (2) (I), Rule 9 (14), Rule 9 (17), Rule 9 (20), Rule 9 (22) and Rule 9 (25).

The Court observed that,

As contended in the case, respondents have not supplied any documents which are based for initiation of the charges against the petitioner, which is mandatory as per rules and above mentioned judgments of the Apex Court. The respondents failed to appreciate the procedure contemplated under the rules. Hence, requested to set aside the punishment order dated 30.11.2009 and the appellate order dated 01.04.2010.

On perusal of the above said clauses, it clearly indicates that written statement of his defence has to be submitted within ten days of receipt of memorandum, but in the case, even on perusal of the original application filed by the petitioner or contention of the counsel for the petitioner clearly discloses that the petitioner has not submitted any explanation as contemplated in clause 4 of the charge sheet. Furthermore, clause 5 clearly stipulates that an inquiry will be held only in respect of those articles of charge that are not admitted. But in the instant case, sole charge was framed against the petitioner, which is for continuously unauthorized absence from 17.12.2007 to 02.09.2008 and the said charge was admitted by the petitioner in his statement recorded on 15.6.2009. Hence, once the charge is admitted, there is no necessity to conduct any further inquiry with regard to the admitted charges.

Apart from the above, on perusal of the removal order, it is evident that the petitioner has absented himself from duties for 319 days in 2005, 44 days in 2006, 67 days in 2007 and 261 days in 2007-08. It clearly discloses that the petitioner is habitual absentee from the duties. Moreover, the impugned order clearly indicates that the inquiry report has been supplied to the petitioner on 8.7.2009 and no reply/explanation has been submitted by the petitioner. Hence, the contentions of the petitioner is not supported by any material, which is vague and baseless.

In view of the above said facts, counsel for the respondents further submitted that the respondent authorities have followed due procedure as contemplated under the rules and also the format given in the articles of charges. Considering the same, the Tribunal has rightly dismissed the original application filed by the petitioner and there is no ground to interfere with the orders impugned in the writ petition. Accordingly, requested for dismissal of the same.

“Considering the submissions made by counsel for the parties and perusal of the record, no doubt the petitioner has filed the original application assailing the orders dated 30.11.2009 and 1.4.2010 but there is no averment in the original application with regard to the submission of his reply to the charge memo issued on 11.9.2008 and the inquiry report has not been supplied to the petitioner without having any substantial basis and the averment in the pleadings, counsel for the petitioner has contented that the respondents have not followed the Rules, 1968. Bare perusal of the charge memo and the statement recorded by the inquiry officer clearly discloses that the petitioner has admitted the charge, and once, he has admitted the charge as per the standard format of charge-sheet, there is no requirement of further inquiry, but in the case, the fact remains that the respondents have issued charge memo to the petitioner, despite receipt of the charge memo, the petitioner has failed to submit any explanation within stipulated time. Hence, left with no option, the respondents have issued a notice for appearance on 15.6.2009 for inquiry, and accordingly, they have recorded the statement of the petitioner. On perusal of the statement recorded by the inquiry officer, it clearly discloses that he has accepted the charge and when once charge is accepted, other procedures may not be required to be followed by the authorities. Apart from that the impugned order clearly discloses that the respondents have supplied a copy of the inquiry report to the petitioner on 8.7.2009, but the same was not specifically denied by the petitioner. Hence, taking the admitted fact into consideration and the case laws, which are being relied on by the petitioner, would not be applicable in the case.

As the petitioner is a habitual absentee from his duties since 2007-09 and he was absent about 600 days. In view of the aforesaid circumstances, the Tribunal, while taking the facts of the case and case laws into consideration, has rightly dismissed the original application filed by the petitioner.

Hence, we are of the considered opinion that there is no good ground to interfere with the impugned order passed by the Tribunal”, the Court further observed while dismissing the petition.

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