Extraneous past regularized absences cannot justify disproportionate removal penalty; timely notice and medical proof negate wilful misconduct claim.

ORDER

By Hon’ble Mr. Mohan Pyare, Member (A)

Present Original Application has been filed by the applicant under section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

“(i) To quash the following orders:-

(a)the order dated 4.5.2013 issued by the Disciplinary Authority imposing the penalty of Removal from service.

(b)the order dated 19.6.2013 issued by the Appellate Authority maintaining the order of the Disciplinary Authority.

(c) the order dated 2.1.2014 issued by the Revisionary Authority maintaining the penalty imposed on the applicant.

(ii) To issue orders/ directions to the respondents to reinstate the applicant on the post of Carriage Khalasi where he was working with all consequential benefits and pay the arrears of pay and allowances so accrued with upto date interest @ 18% per annum.

(iii) To issue any other order/direction as this Hon’ble court may deem fit and proper in the circumstances of this case.

(iv) To award the costs of the suit.”

2. Brief facts of this case as narrated in the Original Application are that the applicant joined the services in the North Eastern Railways on 10.06.1993 as a Carriage Khalasi and was working under Senior Section Engineer (Carriage & Wagon), Azamgarh under the control of Coaching Depot Officer, N.E. Railway, Manduadih. On 27.09.2012, the applicant’s wife fell ill, therefore, he requested his In-charge for the permission to go home which was unsympathetically responded to. Thereafter, the applicant took his wife to Bhatni for medical treatment and when her condition improved, the applicant sent an application on 11.10.2012 through Registered Post to the Section Engineer explaining the condition of his wife and also requested him to sanction him leave for the period of his absence submitting that as soon as his wife recovers he would resume his duty. The applicant submitted his wife’s Medical Certificate dated 29.11.2012 and was allowed to join duty on 02.12.2012. Subsequently, the applicant was served a Charge Sheet dated 04.12.2012 under Rule 9 of the Railway Servant (Discipline and Appeal) Rules, 1968 with the charge that in past years during the period from 27.10.2008 to 02.12.2012, the applicant remained absent for a total period of 586 days. An inquiry was conducted and the report was submitted on 11.04.2013. The applicant represented against it vide representation dated 24.04.2013. The Disciplinary Authority awarded the penalty of Removal from Service with effect from 04.05.2013 on the report of the Inquiry Officer vide its order dated 04.05.2013. Against the order of the Disciplinary Authority, the applicant submitted an appeal dated 15.5.2013 to the Appellate Authority (respondent no.4) and also requested for personal hearing. The Appellate Authority rejected the appeal vide order dated 19.06.2013 after which the applicant submitted a Revision Application on 01.08.2013 to Additional Divisional Railway Manager which was also rejected vide order dated 02.01.2014.

3. We have heard learned counsels appearing for both the parties.

4. Submission of learned counsel for the applicant is that the Disciplinary Authority has wrongly shown the period of absence as 586 days in the past years, whereas the period of 65 days for which the charge sheet has been issued is also included in the total period of absence during the course of four years. Thus, the charge sheet is factually incorrect as the absence of the applicant during the period from 27.10.2008 and prior to the period of the subject matter of the charge sheet in question was already regularized by grant of