Unauthorized absence not misconduct without proof of willfulness; compelling circumstances like family illness excuse it.

ORDER

By Hon’ble Mr. Justice Om Prakash VII, Member (J)

The present original application has been filed by the applicant VA under section 19 of the AT Act, with the following reliefs:-

“(a) That the order dated 11.8.2000 passed by the Principal, Electric Training School, North Central Railway, Kanpur order dated 18.3.2010 passed by Senior Divisional Electric Engineer (RSO), North Central Railway, Allahabad and order dated 28.09.2011 received on 19.12.2011 passed by Additional Divisional Railway Manager, North Central Railway, Allahabad Division, Allahabad be declared illegal and same be quashed.

(b) That the respondents be directed to reinstate to applicant on the post hold by him with all the consequential benefits attached to the post.

(c) That any other and further relief which this Hon’ble Tribunal may deem fit and proper be also awarded to the applicant.

(d) Cost of proceeding be awarded to the applicant”.

2. The brief facts of the case are that the applicant, while posted under respondent no. 4, was served with two charge-sheets dated 20.10.1995 and 06.04.1996 alleging unauthorized absence for a total period of 31 days. The applicant’s case is that the said absence was not willful but occurred due to the serious illness of his wife, about which the competent authority was duly informed. After his wife recovered, the applicant reported back for duty along with the relevant medical certificate. Departmental enquiries were initiated pursuant to the charge- sheets. The applicant initially participated in the enquiry proceedings but sought deferment due to the illness of his wife and his own medical treatment at the Railway Hospital during the pendency of the enquiry. Despite this, after 11.12.1999, no intimation regarding the date, time, or place of further enquiry proceedings was communicated to the applicant, and the enquiry was proceeded with ex parte, thereby denying him a reasonable opportunity to defend himself. It is the applicant’s case that there was no material on record to establish that his absence was willful, nor was any categorical finding recorded by either the Enquiry Officer or the Disciplinary Authority on this crucial aspect. Further, the enquiry report was not supplied to the applicant and he was not afforded any opportunity to submit his representation against the findings before the extreme penalty of removal from service was imposed vide order dated 11.08.2000. Aggrieved by the punishment order, the applicant preferred a departmental appeal, which was rejected by a non-speaking order dated VA 18.03.2010. The revision petition filed thereafter was also dismissed vide order dated 10.10.2011 without proper consideration of the grounds raised. Being aggrieved by the punishment order as well as the appellate and revisional orders, the applicant has approached this Tribunal by filing the present Original Application.

3. The respondents, in their counter affidavit, have stated that the applicant was a habitual absentee. He was issued SF-5 charge-sheets dated 20.10.1995 and 06.04.1996 for unauthorized absence for prolonged periods. The first charge-sheet related to absence from 11.08.1995 to 11.09.1995 and the second pertained to absence from 20.11.1995 to 28.12.1995. Even thereafter, the applicant continued to remain absent from duty for long spells, namely from 17.05.1996 to 03.06.1997 and again from 31.07.1997 to 25.02.1999, without proper authorization. It is stated in the counter affidavit that the applicant failed to submit any medical certificate regarding the alleged illness of his wife for the relevant periods of absence except for a certifi