BRAHAM PAL S/O SHRI KANHIYA LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) PENALTY of removal imposed on 12.10.2000, as maintained by the Appellate Authority rejecting applicant's appeal vide communication dated 16.11.2004, has been questioned in present OA.

(2.) Admitted facts of case are that applicant was appointed as Khallasi w.e.f. 17.7.1987. He was an accused in FIR No. 366/1992 under Section 302/34 IPC. He was in judicial custody w.e.f. 19.7.1991 to 25.5.1992 and was released after grant of bail on 27.5.1992. Thereafter, vide order dated 02.5.1995, he was acquitted in aforesaid criminal case by the Court of Learned Session Judge, Bulandshaher. Since he remained unauthorizedly absent from 19.7.1991 and approached department for joining duty on 08.11.1995, a charge memorandum under Rule 9 of Railway Servants (Disciplinary & Appeal) Rules had been issued vide memorandum dated 29.12.1997. During the course of departmental proceedings, he made a statement on 24.04.1999 whereby he, in unequivocal term, admitted that he was in judicial custody from 19.7.1991 to 25.5.1992 and was released on bail on 27.5.1992 but due to mental illness, neither reported for duty nor informed the department. He reported to duty only on 08.11.1995 after getting fully cured. He had submitted that his wife had sent letters to department from time to time but could not produce any documentary evidence. The Enquiry Officer submitted his report vide letter dated 01.5.1999, copy of which was made available to him and he submitted his reply dated 17.7.1999. After examining all aspects of the case, Divisional Engineer/ Estate, Northern Railway inflicted the penalty of removal with immediate effect stating that he had not informed and mentioned about his mental sickness in his assumption report dated 08.11.1995. No information had been received in the office during his absence period as stated by him in the enquiry. A statutory appeal preferred was rejected vide order dated 16.11.2004. On an earlier occasion, he had approached this Tribunal vide OA No. 1331/2004 challenging aforesaid penalty. Since his appeal had been pending disposal, OA was disposed of vide order dated 28.5.2004 with direction to respondents to pass an appropriate order. Pursuant thereto, the appellate order had been issued.

(3.) THE respondents resisted applicant's claim and stated that he remained unauthorizedly absent from 19.7.1991 till 08.11.1995. Even after he was bailed out on 27.5.1992, he did not report on duty. THEre was no justification for his absence at least after the said date. In any case, he admitted that he was facing criminal trial and remained in judicial custody. During the course of departmental proceedings he was provided reasonable opportunity of hearing and based on his statement before Enquiry Officer, charge was held to be proved. Disciplinary authority as well as appellate authority applied their mind judiciously and finding no substance and justification in his contentions, rejected the same and imposed punishment of removal from service. Shri Prabhash K. Yadav, learned Counsel for respondents contended that it has been repeatedly held by the Hon'ble Supreme Court that in case of unauthorized absence, lenient view should not be taken.