- (1.) THE short point involved in this appeal by special leave is whether the punishment of removal from service inflicted upon the Appellant Guru Prasad, Diesel Assistant, Western Railway was in breach of the provisions contained in Note beneath R. 1701 read with R. 1709 of the Indian Railway Establishment Code, 1971 and being in violation of the rules of natural justice was vitiated. Further question is whether the punishment of removal from service imposed on the Appellant was wholly disproportionate to the nature of the charge framed against him.
(2.) AFTER hearing Learned Counsel for the parties we are inclined to the view -that the order of removal from service passed by the Senior Divisional Mechanical Engineer (Loco), Ratlam dated April 19, 1982 who having hold him guilty of unauthorized absence without leave under, R. 1708 CI. (4) of the Railway Establishment Code on the basis of the finding of the Inquiry Officer dated April 4, 1982, should have afforded a further opportunity of a hearing as to the nature of punishment proposed to be imposed. The order of removal from service was not in consonance with the procedure established by law. The Appellant was admittedly not given a hearing before the punishment of removal from service was imposed on him. The procedure for removal from service provided in R. 1709 of the Discipline Appeal Rules (Non -Gazetted), as it stood after the amendment in 1954, makes the procedure for dismissal under R. 1707 applicable also to a case of removal from service. It was, therefore, incumbent on the Senior Divisional Mechanical Engineer to follow the procedure laid down in R. 1707 and give the Appellant personal hearing as to the nature of punishment Note beneath R. 1701 of the Code reads as follows: A Railway servant shall also be given a further opportunity to show cause when it is proposed to impose the specific penalty of dismissal from service as a result of tentative conclusions either arrived at after an inquiry or otherwise. It makes no difference in principle as to the requirement of personal hearing in a case where there is an order for dismissal from service or in a case where there is an order for removal. The delinquent officer is visited with civil consequences in either case as it results in loss of employment and also other benefits. The impugned order for removal from service of the Appellant cannot, therefore, be sustained.
(3.) IN the facts and circumstances of the case we do feel that for a solitary lapse in a period of 23 years' service, the Appellant should not have been visited with the extreme punishment of removal from service. The Senior Divisional Mechanical Engineer while rejecting his review application observed that the Appellant had given no convincing reason for his unauthorised absence and even if his mother was involved in an accident at Indore, be could have come back after a few days and given a proper intimation. Further, he finds that in 1967 also the Appellant had been on unauthorized absence. He says that 'such a man is not fit for Government service'. As we felt that the punishment of removal from service was uncalled for, we adjourned the appeal to enable Learned Counsel for the Union of India to take instructions whether the Railway Administration were inclined to take a more lenient view in the matter of awarding punishment . When the appeal was taken up for hearing today, he expressed helplessness of the Railway authorities to intervene in the matter since the appeal preferred by the Appellant had already been dismissed by the Divisional Rail Manager, Western Railway, Ratlam by his order dated May 28, 1982 and the Senior Divisional Mechanical Engineer by his order dated July 15, 1982 had also declined his review application. We, therefore, heard Learned Counsel for the parties on merits. Taking an overall view we feel that the punishment of removal from service was rather harsh. Learned Counsel for the Appellant very rightly and properly makes a statement that the Appellant will forego his arrears of pay and allowances from the date of the impugned order of removal from service till the date of reinstatement but without break in continuity of service, loss of pensionary benefits and future promotion.;