V.C.MISRA, J. - (1.) HEARD Sri P.N. Saxena, Senior Advocate assisted by Sri R.K. Tiwari, learned counsel for the petitioner and Sri Govind Saran, Advocate learned; standing counsel on behalf of the respondents Nos. 1, 2 and 3.
(2.) THE facts of the case in brief are that the petitioner was appointed as a constable in Railway Protection Force by posting at Allahabad on 18.5.1984. In July 1989, the petitioner was transferred to the outpost Mughal Sarai (MGS) under the Incharge Protection Force (IPF), Chunar.On 19.8.1992, the petitioner proceeded on medical leave by taking sick memo and remained as outdoor patient in the Railway Hospital, Mughal Sarai till 4.1.1993. On 5.1.1993, the petitioner was discharged from sick list by the Divisional Medical Officer -I, Eastern Railway (DMO -I, E.R.),Mughal Sarai in the midst of the treatment without mentioning the fact that the petitioner was fit for duty. The petitioner had to under -go treatment by a private doctor Dr. A.K. Mehta at Ballia with effect from 6.1.1993 and remained under his treatment till 20th August 1994. During this period, thepetitioner sent several notices and informations to the concerned authority through registered post with proper medical certificate (PMC) before the Incharge Protection Force, Chunar. The petitioner was referred by Dr. A.K. Mehta to Dr. D. Rai, at District Hospital, Ballia for further treatment where he remained under treatment from 20.8.1994 to 30.10.1994. Meanwhile, the disciplinary proceedings were initiated against the petitioner by the Railway authorities and in the proceedings, 2 charges -were framed against him, which are as under : - .........[vernacular ommited text]........... The enquiry officer Sri D.L. Shah vide its report dated 8.9.1994 submitted before the respondent No. l recommended that the proceedings be initiated against the petitioner under Rule 153 of the Railway Protection Force Rules, 1987 (hereinafter referred to as 'the Rules, 1987') and held that both the charges 1 and 2 mentioned hereinabove were proved. The disciplinary authority -respondent No. l vide its order dated 6.10.1994 compulsorily retired the petitioner prematurely at the age of 35 years by imposing the major penalty, under the provisions of Rules 148 and 153 of the Rules, though he had only completed 10 years of service.
(3.) THE relevant portions of Rules 148 and 153 of the Rules, 1987 are reproduced as under: - '148. Description of Punishments: 148.1. Any of the following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed on an enrolled member of the Force. 148.2 Major punishments: (a) Dismissal from service (which shall ordinarily be a disqualification for future employment under the Government.) (b) Removal from service (which shall not be a disqualification for future employment under the Government.) (c) Compulsory retirement from service. (d) Reduction in rank or grade. 148.3 Minor punishments: (a) Reduction to a lower stage in the existing, scale of pay. (b) Withholding of next increment with or without corresponding postponement of subsequent increments (c) Withholding of promotion for a specified period. (d) Removal from any office of distinction or deprivation of any special emoluments (e) Censure. 148.4: Petty punishments: (a) Fine to any amount not exceeding seven days' pay. (b) Confinement to quarter -guard for a period not exceeding fourteen days with or without punishment drill, extra guard duty, fatigue duty or any other punitive duty. (c) Reprimand. 148.5: Explanation: .... '153 Procedure for imposing major punishments. (1) Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction in rank shall be passed on any enrolled member of the Force (save as mentioned in Rule 61) without holding - an inquiry, as far as may be in the manner provided hereinafter, in which he has been informed in writing of the grounds on which it is opportunity of defending himself. (5) The disciplinary authority shall deliver or cause to be delivered to the delinquent member, at lease seventy -two hours before the commencement of the inquiry, a copy of the articles of charge the statement of imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and fix a date when the inquiry is to commence; subsequent dates being fixed by the Inquiry Officer. (10) At the commencement of the inquiry the party charged shall be asked to enter a plea of 'guilty' or 'not guilty' after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary. If oral - (a) it shall be direct, (b) it shall be recorded by the Inquiry Officer in the presence of the party charged; and the party charged shall be allowed to cross -examine the witnesses. (12) All the evidence shall be recorded, in the presence of the party charged, by the Inquiry Officer himself or on his dictation by a scribe. Cross -examination by the party charged or the fact of his declining to cross -examine the witness, as the case may be, shall also be recorded. The statement of each witness shall be read over to him and explained, if necessary, in the language of the witness, whose signature shall be obtained as a token of his having understood the contents. Statement shall also be signed by the Inquiry Officer and the party charged. Copy of each statement shall be given to the party charged who shall acknowledge receipt on the statement of witness itself, The Inquiry Officer shall record a certificate of having read over the statement to the witness in the presence of the party charged. (13) Documentary exhibits, if any, are to be numbered while being presented by the concerned witness and reference of the number shall be noted in the statement of the witness. Such documents may be admitted in evidence as exhibits without being formally proved unless the party charged does not admit the genuineness of such a document and wishes to cross -examine the witness who is purported to have signed it. Copies of the exhibits may be given to the party charged on demand except in the case of voluminous documents, where the party charged may be allowed to inspect the presence of Inquiry Officer and take notes. (14) Unless specifically mentioned in these rules, the provisions by the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 shall apply to the departmental proceedings under these rules.' 4. While passing the order of compulsory retirement against the petitioner, the respondent No. l held that only one charge regarding unauthorized absence stood proved whereas the other charge, i.e., absence from duty without intimation was not proved in view of the required information and notice sent by the petitioner to the concerned authority from time to time.;