NAVANITI PRASAD SINGH, JJ.

Petitioner, who was the Head Clerk in the North Frontier Railway at Katihar in the State of Bihar, has filed this writ petition being aggrieved by the order of removal from service as passed by the Divisional Mechanical Engineer (Power), Katihar dated 23.03.2006 which was not interfered with in appeal or mercy appeal or by the Central Administrative Tribunal, Patna Bench, Patna (hereinafter referred to as the “Tribunal”).

2. The petitioner was charged with being unauthorizedly absent from 14.08.2004 to 09.09.2004 i.e. 27 days and that is the solitary charge against him. He was asked to show cause in the disciplinary proceedings so initiated and the disciplinary enquiry was conducted. Before the disciplinary authority, the petitioner submitted that as he was suffering from acute sinus infection, he had informed his colleague and consulted a private specialized doctor for specialized treatment after which he returned and he was allowed to join where-after these proceedings were initiated. The Inquiry Officer submitted his report dated 08.01.2006 merely holding that being Head Clerk, he should have informed his controlling authority directly or in written and should have sought leave. Not having done so, he was guilty of unauthorized leave. Petitioner was then given a copy of the enquiry report for the purposes of imposition of penalty and upon cause being shown, the disciplinary authority i.e. Divisional Mechanical Engineer (Power), Katihar holding that the petitioner had not intimated the authorities about his absence, he was guilty of unauthorized absence for the period aforesaid but while doing so, the disciplinary authority noted that even subsequently he went on unauthorized leave which proved that he was a habitual absentee and, as such, he was punished with removal from service with immediate effect. Petitioner then filed appeal, as statutorily provided, before the Senior Divisional Mechanical Engineer (Incharge). The appellate authority, while agreeing with the disciplinary authority, referred to not only past conduct of being absent on various occasions but also his subsequent conduct being absent during pendency of the disciplinary proceedings and, thus, affirmed the order of removal from service. The petitioner then preferred a mercy appeal before the Additional Divisional Railway Manager, Katihar who also affirmed the order taking into account past conduct and his leave account. The petitioner then moved the Tribunal and the Tribunal also did not interfere in the matter.

3. Mr. Tej Bahadur Singh, learned Senior Advocate appearing in support of the writ petition, raised a short issue. His submission would be that if the authorities in disciplinary proceedings intend to take into account past or future conduct of a delinquent, it must either form a part of the charge itself or before imposition of penalty, the same must be disclosed else it would be in violation of procedural fairness and thus violation of principles of natural justice. He would show with reference to the records that the charge was singular of 27 days unauthorized absence so was the report of the Inquiry Officer but without notice, the disciplinary authority took into account his absence during other periods and ordered for his removal from service. The appellate authority also based his order mostly on past conduct which was all beyond the charge and the allegations and, therefore, there being violation of procedural fairness the order of punishment is not sustainable. He would further submit that for being absent for about 27 days, removal from service was grossly disproportionate and too harsh punishment and would leave the petitioner with no employment opportunity being over age.

4. On the other hand, learned counsel for the Railways, Mr. Anil Singh, submitted that past conduct was known to the delinquent and was not denied. As such, there was no necessity of noticing the petitioner in this regard. He relied on