Absence from duty due to sickness which is beyond the control of the employee and is duly communicated to the employer cannot be held to be unauthorised.

1. - Babulal, petitioner, has preferred this writ petition challenging imposition of penalty of compulsorily retiring him from railway service vide order date 21.3.1990 (Ann. 3) passed by the Additional Security Commissioner, Kota which was upheld in appeal and revision petition vide orders dated 13.12.1990 (Ann. A4) and 17.5.1991 (Ann. A5) respectively in a departmental enquiry conducted under a charge sheet dated 1.4.1987 (Ann. A1).

2. The facts leading to this writ petition, briefly stated, are that the petitioner was appointed as a Constable in Kota Division on 18.3.1970. A charge sheet (Ann. A1) was issued to the petitioner on 1.4.1987 alleging therein that he is negligent and not fit for official duty because he remained absent from duty for (i) 24.8.1985 to 26.8.1985 (3 days) (ii) 1.11.1985 to 14.11.1985 (14 days) and (iii) 28.5.1986 to 11.6.1986 (15 days) without complying with railway medical rules but remained under private doctor's treatment, remained unauthorisedly absent from duty on (iv) 4.3.1986 (1 day), (v) 27.5.1986 (1 day) and (vi) 12.6.1986 (1 day). Shri R.P. Mathur, Enquiry Officer then conducted enquiry upon aforesaid charge-sheet (Ann. A1) and he submitted his report but upon representation of the petitioner, the Disciplinary Authority on 30.12.1988 ordered for de novo inquiry on 30.12.1988 appointing one She Liyakat Ali who completed the enquiry by submitting his report (Ann. A2) on 20.2.1990 wherein, he held that the petitioner remained under private doctor's treatment from (i) 24.8.1985 to 26.8.1985, (ii) 1.11.1985 to 14.11.1985 and (iii) 28.5.1986 to 11.6.1986 but without observing prescribed Railway Medical Rules and on 4.3.1986, 27.5.1986 and 12.6.1986 he remained absent unauthorisedly. The Disciplinary Authority agreed with inquiry report (Ann. A2) and referred the matter to respondent No. 3 for imposition of deterrent punishment. Respondent No. 3 by his order date 21.3.1990 (Ann. A3) awarded a punishment for compulsorily retiring the petitioner w.e.f. 21.3.1990. Against order of compulsory retirement the petitioner preferred an appeal which was also dismissed by order dated 13.12.1990 (Ann. A4) against which revision petition was filed but was rejected by order date 17.5.1991 (Ann. A5). Hence, this writ petition.

3. Shri A.K. Bhandari, learned counsel for the petitioner contended that admittedly the petitioner rendered 20 years service to the respondents railway administration but mercilessly he was compulsorily retired from service w.e.f. 21.3.1990 for the only charge of allegedly having remained absent because of his ailment though admittedly having been medically treated by a private doctor but not by railway doctor observing railway medical rules. Shri Bhandari also contended that in reply the respondents have admitted that the period of alleged absent has been treated as without pay and therefore once the absence of the petitioner on various dates was treated as without pay on the ground of sickness duly verified either by private or of railway doctor, the charge of unauthorised absence or any non-compliance of Railway Medical Rules loses its sanctity and does nullify the subject matter thereof under the charge sheet. Shri Bhandari then contended that the petitioner had timely informed of his sickness and leave to the railway authorities and in support of it, he had produced under posting certificates of various intimations as provided in GM Circulars and thus he had already complied with Railway Medical Rules. The petitioner has also produced a certificate of death of his father which took place on 23.10.1985 to show that death of father has caused him much mental stress resulting into his sickness.

4. Shri Bhandari also contended that certificate of death of son of the petitioner was submitted along with his letter dated 14.7.1988 which was duly received by the inquiry officer on 15.7.1988 so as to show the reasonable cause of his absence on the dates which is subject matter of the im