-HG—78 ^) 's^ '^wiw^, ©tilyis,f°«ni-Mi< fflTO-^f-©-^-.-^-g 3H^T^ ^W^ pfqisnt^'anriq? ^plisTfftl ^wvtf if is^S tfat^K PETmONER: RESPONDENTS: -V Dlvision Bench: Hon. Slui Dhfa'endraMishra& Hpn. Stu-i R.N. Chandrakai. JJ. 29-6-2009:- Shri B.P. Rao, counsel for flfie petitioner. Ms. Nausluna Afiia AU, coufasel for the respondents. / D.M. Rao, S/o Late Shri D. Venkat Rao, Aged about 60 years, Ex. Time Keeper Grade III, W^OD. Repair Shop, SEC Railway, Raipur, Residing at : Duiga Bhawan., Srmagar, Khamtarai, Raipur (CG) srsus- Uxiion of India, Through: The General Manager, South East Central Railway, G.M. Office, Bflaspur (CG) (Revisionaiy Authorily) Tbe Chief Meclianical Eugiaeer, South Easf Central RaUway, Bitaspiu-, Zone, G.M. Coinplex, Bitaspiir (CG) (AppeUate Authority) The Chief Workshop Maiiager, Soufh East Central Railway, Wagon Repair Shop, Raipur, Division, Raipiir (CG), (Discipliaaiy Authorily) jL^a*ima.AiatAdit^liHi Sne^=Sua^L-flftBl*A^>;. ^-•^(;^^^-,i»^»..Ai~rfA^i^3fe<R; ^, .<VvW, &'v\\wi<a, hviwy. XI.HE. •B]^?I'!T??7 (' 9. ttus coulasel ^i^iast The petitioner has filed order dated 6-5-2008 (Annexure-1 for direction to the respondec|ts quashiug the penalty order a^ appeUate and revisional aufhor(ties dismissed and his appUcation P/17) bas beea further dismisj 2008. Shri B.P. Rao, leamed parte enqiiiry was conducted fhe petttioner by fhe discip]ina(y The ex-parte enquiiy was held 4' envelopes seut to the petitioner^ been retumed undelivered by th^ Relying upon the judgmenjt others Versus Diaanath Shan) ai^ued that only on fhe basis of| of the registered envelope cont^iiui caanot legally be treated to havj authorities should have inade The actual serwce to the einploy^e to subiiiit his reply. AIR 1998 SUPREME COUiiT 2722 '^T?lf^T^T iTFT^ff ^ fs^ <ps!^« ^TsiRrasn^r writ petition for setting aside the P/17) whereby hls or^mal appUcation to reiastate 1iim in service after weU as the orders passed by fhe cortBniung the penalty has been br reviewiag the order of (Annexure- ied vide Annexure-P/18 dated 26-6- for the petitioner, aigued fhat ex- the petitioner , without notice to authority on his chaaged address. (nly on fhe basis of 3 retumed postal old residential address, wbich have postal authorities. ajt ia the matter of UBioa of India aad ijtaram Karekar and others1, it was sndorseinent ofnot found in the cover ^iniag cbarge sheet, the chax^e sheet been served on the petitioner. The ^irther efforts to serve the petitioner. is essential siace tfae delinquent has ^ss*!~: i", XI-HG—78 <?' . 'S^I -^WM^, wiwie, hwvy 'sii^ —3 •i-.l'ii<-I4k'WRfS'? feA <f"1^H On fhe other haad, leamed <j:ounsel for fhe respondents/raUways subiaitted that the charge sheet \^as issued to the petitioner 011 10-8- 92 for being irregular in attendajace, absent fiToni duty for abont 3 years and 9 inonths between Jaaijiaiy, 1987 and December, 1990 and continued absence from duty fiTon|L 16-1-91 tBl date. The chaays sheet could not be delivered to the peti^ioner ia person, as he coiild not be traced and fhe charge sheet was| enquiry was conducted and the findiag recorded ia fhe enqimy re| sent by the registered post to his known address, which was retum^d wifti remarks "Absenf "Retura to Sendei^. Thereafter, caU letter fc|r enquiry was sent to Tiim fhrough registered post and the sarne n(as again retiimed. Departmeutal lisciplmary authority accepting fhe port held the petitioner guilty of thc chai^es fi-aaied agaiast him and i^aposed fhe penally ofTeinoval firoin service vide its order dated 27th Fjeceinber, 1994. The petitioner ffled origmal appUcation ia the year 2p05 before the Tribiuial and as per directions of fhe Tnbunal, ttie peti deinaaded by hiTn. Thereafter, ffie petitioner preferred an appeal to the AppeUate Authorily. The pefitioner was afforded opportunily of personal hearing ia lus appeal. |ioner was provided with documents However, the AppeUate Aufhority upheld the penalty ofreniOval. Th|e revision preferred by the petitioner was also disinissed by the revi^ional aufhorily, agaiast which the petitioner preferred O.A. No.676/|2007, which was disiuissed by the iinpugned order passed by fhe T|-ibunal. The review petition of fhe Sfci3i': .> XI-HG—78 ai^i'^1 ^sr '<iw\<f^, wiSww, fsidiyy T(~" -^- uilder argi^ed Bdient petitioner against the final order vide Annexure-P/18. It was ai^ued tbat fhe absent for a long period, as detaile^. the Tnbitnal. The chai^e shee1 through registered post, as fh^ personalty, wliich fa permissible Referrmg to Rule 31 (2) of| Appeal) Rules, 1968, it was registered post wifh ackaowledgeB|i< of fhe eniployee is received undeli'( icfused to accept etc., fhe notice fhe date ofissue. Further relying upon the Kumar Sonkar Versus Ualon ordinarily priaciples of natural inatters of disciplmaiy proceediag^, caauot be put in auy straitjacket the given case unless prejudice principles of natural justice is upon fact aad situation obteiaed ii|i In fhe iastant case, the Jaauaiy, 1987 tiU date he was r( cjf the Tnbunal was again dismissed {jetitioner remamed unaufhorizedly ia para-2 ofthe impugned ordcr of was dispatehed to thc petitioner petitioner couM not be served fhe rules. |the Railway Servaats (Discipliue & that if fhe notice sent through due in the last kaomn address frered with reiuark ffike not found or bhall be deemed to take effcct from 2 (2007) 4 Supreme Court Gases 54 f '4 'ft^t <^»1'^1< oflAdta judgmcnt ia the inatter of Ashok aad others2, it was argued that iustice should be foUowed in the ^. However, it is weU settled that it ^rmula aad it may not be appUed in [s shown. The appUcabiIity of the to be coniplied wifh, depends each case. remanied absentfroin siuoved froin service. He reinamed redttLred ub petit^oner virtualty "~E Y'/C '?5f ^WW^, ytfl<H'l<o, fs|<>1l<H'j,< i^ aw^ YCTWtrita 311^1 s 3- >UD|S continuously absent without any n| he was reinoved fium service d appUcation before fhe Tribuaal onlj facts aad circunistaaces of the p| sheet upon the petitioner has not We have heard learaed counls< ftie enquiry report, the order ofj appeal by the appellate authority whereby fhe origiual appUcation c| by the Tribiuial upholding fhe ord) petitioner. The Tnbunal, after hearin^ disnussed the origuial petitioner has not deiued fhe On the contraiy, he has absence, as iadicated ia the petitioncr to ensure fhat changf brou^ht to fhe notice of emplo^ petitioner dld not care to do this the various origiaal applications circunistances, the respondents) correspondences or sending re^is recorded address. |otice or application froin 16-1-91 tOl ^n 27-12-94. The petitioner ffled j^ in the year 2005. Therefore, ia fhe tcsent case, not serviag ffae charge ^rejudiced the petitioner. ijsel for the parti.es. We have perused punislunent, the order passed ia as weU as fhe impugned order jf the petitioner has been dismissed ^r of purushinent imposed upon fhe appUcat4?n chajrges adnufcted chejrge 'v^t^ TFR^rf ^f 'f^t <f^re^R ^? aifin 3ii^?i i^ rival subnussions of the parties, wifh aa observation that the contaiued ia the charge sheet. chai^e of unaufhorized long sheet, It was the duty of fhe ^ of residence or address is duty ter aad in fhe of&ce record. The fn aU his correspoudences including IBled before fhe Tribunal. In fhese caimot be bkuned for making ^istered letters in his last kuown ' t '%? '^' ^ fif -HE—fSsssssSf ww B'-'.'/e T^ -41<41(yi<4, fftll'M'l'o, [sidiyy 'reTOR^TiCTai^?; ^ ^^f^efhT <tff4dlr ^ ^^ <^f^F< ^aifOTan^i iiapii^ned bslsed claitns Afier going through fhe iiapiit <|>f fhe opiaion that the same is ^nd fact. The ai^ument of the ^imexure-P/19 whereby he ^mmediate superior about the chan^ ^his stage, particularly, ia view of) (^isputed by ftie other side aad the ^bove. Even otherwise, looking to ^ias not been disputed by the Tribunal has i-^htly tield that ^ong period justiiics removal froia In vicw of the above, this tetition has no force, the same peUti^ner order of the Tribunal, we are on proper appreciation of law Ipctitioner based ou docuinent of to have coirunimicated lus j;e iu address cannot be accepted at fhe fact fhat fhe same has been [findiags of the Tribunal as quoted |the chat^e oflong absence, which ^ner, we are of the opiaion that fhe luiauthorized abseuce over a fi^qjiient sdrwce. Cbiut (ftisnussed. .::^....-—..A.. Sd/- Dhirendra Mishra Judge is of the view that this writ 4eserves to be aad is accordiagly Sd/- 4 R.N. Chandrakar Judge