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2014 Supreme(All) 3278
ALLAHABAD HIGH COURT
Vivek Kumar Birla, J.
Vijay Kumar Singh - Appellant
Versus
State of U.P. & Others - Respondent
Writ - A No. - 30208 of 2004
Decided On : 09-04-2014
For the Petitioner:- Narendra Deo Upadhyaya,Ap.P. Tiwari
For the Respondent:- Tarun Verma,A.Kumar,S.C.,Vivek Singh
The main legal point established in the judgment is that unauthorised absence from duty without sufficient cause constitutes misconduct under the Railway Protection Force Rules 1957, and the disciplinary authority has the discretion to judge the facts and reach a conclusion based on the evidence.
Headnote:
Unauthorised Absence - Railway Protection Force - Railway Protection Force Act 1957, Section 9 - Rule 146.2 (iii) of Railway Protection Force Rules 1957 - The court discussed the unauthorised absence of the petitioner from service, the inquiry proceedings, and the legal provisions under the Railway Protection Force Act 1957 and Rules 1957. The court highlighted the provisions of Rule 146.2 (iii) and Section 9 of the Railway Protection Force Act 1957, emphasizing the requirement for good and sufficient cause for absence without leave or being late for duty, and the exercise of power for removal from service under Section 9.
Fact of the Case:
The petitioner, a Constable in the Railway Protection Force, was removed from service due to unauthorised absence from 17.11.1982 to 26.12.1996. The petitioner contended that his absence was due to illness and challenged the order of removal.
Finding of the Court:
The court found that the petitioner's absence was unauthorised and not justified by the medical certificate provided. The court held that the disciplinary proceedings were conducted in accordance with the law and the petitioner was given full opportunity of defense.
Issues: The issues revolved around the petitioner's unauthorised absence, the validity of the medical certificate, and the compliance of disciplinary proceedings with the principles of natural justice.
Ratio Decidendi: The court held that the unauthorised absence for a prolonged period without sufficient justification constituted misconduct under the Railway Protection Force Rules 1957. The court emphasized that the disciplinary authority is the sole judge of facts and that judicial review is limited to the manner in which the decision is made.
Final Decision: The petition was dismissed as the court found no reason to interfere with the decision of the disciplinary authority and appellate and revisional authorities.
Vivek Kumar Birla,J.
By means of the present petition the petitioner has challenged the order dated 6.8.2003, passed by the Security Commissioner (RPF), removing the petitioner from service, Annexure 7 A to the amendment application; the order passed by Deputy Chief Security Commissioner (RPF), Gorakhpur dated 21.10.2003 Annexure 9 to the petition and order dated 20.1.2004, passed by Chief Security Commissioner (RPF) NER Gorakhpur Annexure 11 to the petition.
2. The facts as alleged in the present petition are that the petitioner was appointed as Constable in the Railway Protection Force, (herein after referred to as RPF). He was sent for training and after completing the training period, he joined his service as Constable in RPF Reserved Company No. 26 in the Head Office Gorakhpur North Eastern Railway (NER) on 22.4.1982.
3. It is admitted fact that the petitioner did not attend the service /duty from 17.11.1982 to 26.12.1996. Allegedly on 2.1.1997 the petitioner moved an application for joining the service and thereafter on 30.10.2002 the petitioner was directed to go for medical examination before the Medical Officer L.N. Mishra Railway Hospital, NER, Gorakhpur. The Medical Report was given on 8.10.2002 and the Director of Railway Hospital granted certificate dated 15.11.2002 to the petitioner that he is able to join the duty in category 'B-1' in the Department.
4. It is further alleged that on 31.3.2003, the petitioner moved an application for joining the service and he was permitted to join the service on a supernumerary post.
5. On 1.4.2003 the petitioner was placed under suspension and subsequently he was given a charge sheet dated 29.4.2003. An inquiry proceeded against the petitioner and he was granted full opportunity of hearing. The Inquiry Officer submitted his inquiry report dated 21.6.2003, Annexure-7 to the petition. The Inquiry Officer categorically recorded a finding that the petitioner was absent from service from 17.11.1982 till 26.12.1996. He concluded that the petitioner was absent from service from 17.11.1982 to 17.9.1985 in unauthorised manner and without sanction of leave. He however observed that from 18.9.1985 to 26.12.1996 the petitioner was ill and was under treatment and therefore he had not attended the duty.
6. After consideration of the aforesaid inquiry report the order dated 6.8.2003, Annexure-7 A to the amendment application was passed. The order of removal from service was passed by Disciplinary Authority noticing the fact that the petitioner had served only from 22.4.1982 to 16.11.1982 i.e. for a period of two months and 5 days only and during the entire career he remained absent in unauthorised matter without sanction of leave. It was also noticed that as a matter of fact because of unauthorised absence of the petitioner he was charge sheeted vide Charge Sheet No. E/T/Pro-5/83 dated 2.7.1983. But since there was no record available of the service of said chargesheet on the petitioner and since much time had expired from the aforesaid date i.e. 2.7.1983, the aforesaid charge sheet dated 2.7.1983 was cancelled and a fresh charge sheet dated 29.4.2003 was given to the petitioner and the inquiry proceeded in accordance with law thereafter. It was clearly noticed in the aforesaid order dated 6.8.2003 that Medical Certificate for the period 17.11.1982 to 17.9.1985 was issued by a Doctor, who was not in service of the Railway Hospital and during this period the petitioner was also under going treatment in Ranchi Mental Hospital and as such the said Certificate issued by Private Doctor was not worth belief. The petitioner was found guilty of unauthorised absence from 17.11.1982 to 17.9.1985 and was removed from service for this reason treating it to be a misconduct as per Railway Protection Force Rules 1957. Rule 146.2 (iii)of the aforesaid Rules of 1957 provides that no member of the force without good and sufficient cause shall be absent without leave or be late for any duty. The order of remo
