WP(C) 6373/2005 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. C. Choudhury, learned counsel appearing for the petitioner. Also heard Mr. U.K. Nair, learned Standing Counsel for the respondents. 2. The petitioner who was appointed to the Railway Protection Force on 12.5 .1994 and has been removed from service in pursuant to a disciplinary proceeding , challenges his removal by contending the same to be in breach of the principle of natural justice. The rejection of the Appeal by the Appellate Authority aga inst the removal order is also under challenge in the present proceeding. 3.1 After joining service the petitioner was initially posted at Katihar and was transferred by order dated 27.6.1995 to join in an existing vacancy in the Lumding Division. On 3.11.1995 the petitioner reported sick and after receiving treatment in the Railway hospital, the Sr. Medical Officer in the Lumding Railwa y Hospital on 13.11.1995 declared the petitioner to be fit to resume his duty an d a Medical Fitness Certificate was also issued to the petitioner on the same da te. 3.2 However the petitioner did not resume his duty and left his place of po sting without any intimation to his superiors. Subsequently the petitioner claim s to have been under medical treatment at Kanpur. 3.3 After about 5 years of unauthorized absence, on 14.10.2000 the petitione r reported to resume his duties. But his joining report was not accepted as in t he mean time on 29.12.1997, an order was passed against him in pursuant to a dis ciplinary proceeding and an ex parte enquiry finding, imposing the penalty of r emoval from service against the petitioner. 4.1 Mr. Choudhury, learned counsel representing the petitioner submits that the entire disciplinary proceeding was conducted ex parte without affording any opportunity to the delinquent and under such circumstances, the order of penalt y is liable to be interfered with by this Court. 4.2 The learned counsel submits that under Rule 153(6) of the Railway Protec tion Force Rules, 1987 (hereinafter referred to as the RPF Rules ), when an enr olled member has absconded or deliberately evades service, the summons are requi red to be served by the inquiry officer by following the provisions of Sections 62, 64, 65 & 69 of the Code of Criminal Procedure (Cr.P.C), 1973 and since notic es by the inquiry officer were not served in the prescribed manner, there can be no presumption of valid service on the delinquent. 4.3 The learned counsel further submits that as the petitioner has been puni shed on the basis of an ex parte enquiry, the penalty be quashed and the matter be remanded for a de novo inquiry into the charges of unauthorized absence. 5.1 Supporting the penalty, Mr. U.K. Nair appearing for the disciplinary aut horities, submits that the petitioner is a member of the Railway Protection Forc e and unauthorized absence for members of a disciplined force is not to be treat ed as a minor matter. Mr. Nair refers to the provisions of Rule 104(3) of the RP F Rules to contend that no member of the force is entitled to leave his station even on holidays without specific authorization. He points out that under Rule 1 47(vii), absence without intimation or authorization is an offence, which entail s the punishment of removal from service under Rule 156(b)(iii). Since the deli nquent had not only remained absent without intimation and authorization and tha t too for a period of 5 years, and he never applied for leave, the action taken against such member of the disciplined force under the provisions of RPF Rules, is contended to be justified in the facts of the instant case. 5.2 As regards the ex parte proceeding, Mr. Nair refers to the averments mad e in the counter affidavit to submits that the inquiry officer was compelled to proceed ex parte as despite several efforts made to serve notice, the delinquent evaded service of notice. 5.3 Mr. Nair points out that after the ex parte inquiry proceeding, the deli nquent was served the Notice Imposing Penalty (NIP) on 5.8.1997 and even then, h e did not file any representation nor did he report back for duty and only on 14 .10.2000, after 3 years of service of the NIP, the petitioner for the first time reported to his superiors after 5 years. Accordingly it is submitted that this cannot be considered to be an ex parte proceeding as the petitioner deliberately avoided the multiple notices sent by the inquiry officer. 5.3. To show the limited scope of interference by a Court in a disciplinary p roceeding case against a member of the Railway Protection Force, Mr. Nair relie s upon the Supreme Court decision in Mithilesh Singh Vs. Union of India reported in (2003) 3 SCC 309 to show that absence from duty without proper intimation by a Railway Protection Force Personnel is a grave offence which may warrant rem oval from service and scope for interference by a Court in the awarded penalty b y disciplinary authority is extremely limited, unless the punishment is shocking ly disproportionate in a given case. 6. Section 62, 64, 65 & 69 of the Cr.P.C. are to be resorted to for serving summons and Section 64 provides that when summons cannot be served, the same ma y be served by leaving a copy of the summons with some adult male member of the delinquent’s family and if this is done, it can be considered as a sufficient pr oof of service of summons. 7. In the present case, the respondents proceeded under Rule 153 of the RPF Rules and the 1st communication dated 19.9.1996 informing about the disciplinar y proceeding was sent under Registered Post to the home address of the delinquen t. But the same was received back on 16.1.1997 with the postal remarks the Addr essee has gone to some relative for treatment and his family members refused to give his address. Hence returned. On failure to serve the notice, the inquiry officer sent 2 more notices dated 25.1.1997 and 20.2.1997 respectively and these 2nd and 3rd notices were also returned back without acceptance, with similar po stal remarks, as was noted in response to the 1st notice dated 19.9.1996. 8. On conclusion of the inquiry, a Notice Informing Penalty (NIP) was sent along with copy of the inquiry finding to enable the delinquent to furnish his r epresentation, and although the 4th notice was served on 5.8.1997 on the delinqu ent, he did not make any response nor did he send any communication to the disci plinary authority. 9. The question is whether in the above circumstances, having regard to the provisions enumerated in the relevant sections of the Cr.P.C. for service of no tices, can it be said that summonses were not duly served and therefore it shoul d be held that a fair opportunity was denied to the delinquent to defend the cha rges. An opportunity for a delinquent is envisaged to enable a delinquent to mak e his defence and establish his innocence. That is why strict requirements are p rescribed to serve notice and law specifies when service of summons can be assum ed against a delinquent. 10. In this case, on as many as 3 occasions, when registered post notices we re tendered at the recorded address of the delinquent by the Enquiry Officer, it came back to the sender with the intimation that the addressee is not available and the delinquent’s family members present at the address refused to give the delinquent’s address. If a solitary notice was refused in this manner, one can p erhaps assume that reasonable effort was not made to serve the summons on the de linquent. But considering that one after another 3 notices came back, with the s ame intimation from the postal authorities that the delinquent was not available and his family members refused to furnish the address of the delinquent, it wou ld be more reasonable in my view to conclude that the delinquent had deliberatel y avoided receipt of notice of the disciplinary proceeding and his family member s were also toeing the same line as the delinquent. Assuming that notices of the inquiry proceeding were not served on the delinquent, there is clear recording that the finding of the inquiry along Notice Imposing Penalty (NIP) was duly ser ved on him on 5.8.1997 and even then, the delinquent choose not to respond in th e matter and choose to remain absent for a further period of 3 years. Only on 14 .10.2000, he reverted back to his superiors after remaining absent from duty sin ce 13.11.1995. 11. Considering the fact that the delinquent was a member of the RPF which i s a disciplined force and considering the special emphasis under the RPF Rules and the prescribed penalty for authorized absence, the conduct of the delinquent cannot certainly be construed as an acceptable conduct of a member of a discipl ined force. That apart the delinquent refused to receive the summons issued by t he Enquiry Officer and of the disciplinary authority and in the context of the r epeated refusal of summons by his family, I am of the considered opinion that th is must be construed to be a case where summons were deliberately avoided and th at is how, they could not be actually served on the delinquent. 12. When summonses were deliberately refused and it is an ex parte disciplin ary proceeding on charge of unauthorized absence without any intimation, it woul d be wrong to permit the delinquent to gain advantage of law, when receipt of su mmons was deliberately avoided. When notices were refused to be accepted by the delinquent’s family members on 4 occasions, it can also be reasonably concluded that the delinquent must have been aware that summons were attempted to be serve d and yet the delinquent refused to respond in the matter. In the considered vie w of the Court, such conduct of the delinquent disentitles him to the benefit of equitable remedy of this Court. 13. Having regard to the limited scope of interference in a disciplinary pro ceeding pertaining to a member of the Railway Protection Force as has been laid down by the Supreme Court in Mithilesh Singh (Supra) , I do not consider this to be an appropriate case for interference with the impugned punishment as the ex parte proceeding is self inflicted by the delinquent and the disciplinary author ities cannot be held responsible for proceeding ex parte in the matter. Consiste nt with his past conduct, even the Appeal against the removal order dated 29.12. 1997 was filed belatedly on 1.1.2004 and in my view the Appellate Authority righ tly rejected the said Appeal, by considering the Appeal to be barred by time. 14. In view of the discussions made and the conclusion reached, I am disincl ined to entertain this writ petition and the same is hereby dismissed.