WP(C) 338/2002 BEFORE HON’BLE MR. JUSTICE B. K.SHARMA Heard Mr. R.P. Sarma, learned Sr. counsel assisted by Ms. R. Devi, learn ed counsel for the petitioner as well as Mr. R.M. Das, learned counsel appearing for the FISHFED. This writ petition was filed in the year 2002 making a grievance against the order dated 27.03.2001 by which the petitioner was removed from service as Fishery Extension Officer. He was so removed pursuant to departmental proceeding in which the petitioner was charged with 5 charges. All the charges were said t o have been established and consequently the aforesaid order of removal from ser vice was passed. From the materials on record, it appears that the petitioner was taken u p for departmental proceeding on some earlier occasion also and he was placed un der suspension by order dated 26.02.97. Thereafter, the charge sheet dated 05.06 .97 was issued levelling certain allegations of financial irregularities. Howeve r, the charges against the petitioner were dropped and the petitioner was reinst ated in service by order dated 16.02.2000 with a note of caution not to repeat s uch act in future. After less than five months of such reinstatement of the petitioner in s ervice, he had to be placed under suspension once again by order dated 05.07.200 0 on the ground of unauthorised absence from duty since May, 2000. Thereafter th e petitioner was served with charge sheet dated 25.07.2000 levelling as many as five charges including the one of unauthorised absence from duty w.e.f. 01.05.20 00. On conclusion of the enquiry, the enquiry officer held the petitioner guilty of all the charges. The petitioner was asked to submit his representation again st the enquiry report and the proposed penalty. On submission of such representa tion, the disciplinary authority in consideration of the materials on record, pa ssed the impugned order dated 27.03.2001 removing the petitioner from service wi th immediate effect. The departmental appeal preferred by the petitioner having not yielded any result, the petitioner approached this Court by filing the insta nt writ petition. The proceedings pertaining to this case have revealed that in absence of any steps being taken, the writ petition was once dismissed for default by orde r dated 22.08.07 which was affirmed by the Division Bench of this Court by order dated 16.11.07 passed in WA No. 399/07. The writ petition was restored to file in terms of the order dated 18.01.2010 passed by the Apex Court. Thereafter, the writ petition was heard on 01.06.2010 and the judgment was delivered on the sam e day. In the said judgment, it was held that the charges other than the charge of unauthorised absence from duty were not established in the enquiry and the on ly charge established was the unauthorised absence from duty only for a single d ay, i.e. on 01.05.2000. By filing a review petition in R.A. No. 70/2010, it was pointed out by t he learned counsel for the respondents that unauthorised absence from duty by th e petitioner, as had been held by the learned Single Judge was not for a single day, but was for few months. In fact, the charge itself had reflected that the p etitioner remained unauthorisedly absent from duty w.e.f. 01.05.2000. The charge sheet having been issued on 25.07.2000, the petitioner was absent from duty un authorisedly for almost three months. When the aforesaid fact was brought to the notice of the learned Single Judge, the said judgment and order dated 01.06.2010 was recalled by way of revie w of the same. Be it stated there that by the said judgment and order dated 01.0 6.2010 while holding that out of the five chares, four charges were not establis hed against the petitioner and the only charge established was that of unauthori sed absence from duty only for a single day, learned Single Judge remanded the m atter back to the disciplinary authority for passing appropriate order of penalt y. It was held that it is not for the writ court to take the task of imposing an y penalty as the same is within the domain of the disciplinary authority. In the counter affidavit filed by the respondents, it has been stated th at the petitioner while was in service was a habitual absentee from duty unautho risedly. In this connection, they have referred to unauthorised absence from dut y for the period from 03.05.96 to 21.05.96 pertaining to which a show cause noti ce was issued to the petitioner. In his reply dated 04.06.96, the petitioner adm itted his guilt and furnished an undertaking that he would rectify himself. Earl ier also the petitioner was found absent from duty without any intimation and ac cordingly due warning was issued to him. The respondents have also brought on record the decision of the Board in its meeting held on 25.03.98 by which the petitioner was imposed with the follo wing punishment: 1) Stoppage of two annual increments with cumulative effect. 2) Restriction of pay and allowance to the amount of subsistence allowance drawn during the period of suspension. 3) Realisation of defalcated amount of Rs.26,607.79 in three equal instalments. With the aforesaid imposition of penalty, the respondent Board reinstate d the petitioner in service upon furnishing the undertaking that he would refund the amount in three equal instalments. After the aforesaid two incidents, the petitioner had to be placed under suspension once again on 05.07.2000 for the aforementioned five charges includi ng the charge of unauthorised absence from duty. Since on the earlier occasion the learned Single Judge interfered with four char ges except the one pertaining to unauthorised absence from duty and the review o rder referred to above was only with that aspect of the matter, this order will have to confine to the charge of unauthorised absence from duty. This Court in t he earlier judgment and order dated 01.06.2010 duly took note of the fact that t he petitioner admitted the charge of unauthorised absence from duty. In this co nnection, the stand of the petitioner in his show cause reply is quoted below: That in reply to the charge No. 4 of the Statement of Allegation, it is humbly submitted that in view of the non-payment of my pay, which was lawfully due for payment my stay at Guwahati could not be made possible due to financial hardship , which fact was brought to you knowledge, on number of occasions. If may well b e taken into consideration of my application seeking my release from the assignm ent at Guwahati, which too had been ignored without assigning any valid reason w hatsoever. It was expected that you will reasonably act in view of my suffering s and the allegation of absenteeism cannot be construed as unauthorised as you s ought to make out. The paid and suffering which I had witnessed during the perio d requires no further narration and I had the benign hope that my prayer will be entertained. The absence was not celibate but due to circumstances beyond contr ol. The allegation as such are denied. Taking note of the aforesaid admission on the part of the petitioner, learned Si ngle Judge in the earlier judgment and order dated 01.06.2010 observed that ther e was an admission of unauthorised absence from duty and that non-payment of sal ary even if admitted cannot be the ground to justify the unauthorised absence fr om duty. As has been held by the Apex Court in Channabasappa Basappa Happali vs . State of Mysore reported in AIR 1972 SC 32, admission of the fact relatable to the charge amounts to admission of guilt. The petitioner having admitted his gu ilt of unauthorised absence from duty, cannot project his case to be one of viol ative of the principles of natural justice. Mr. R.P. Sarma, learned Sr. counsel for the petitioner has argued that the charg e sheet having not accompanied the list of witnesses and documents was incomplet e and that on that score alone the proceeding against the petitioner is liable t o be interfered with. Suffice it to say that any defence in the matter of depart mental proceeding will have to be decided in the touchtone of prejudice caused t o the delinquent. In the instant case, nothing is shown as to how the defence of the petitioner was prejudiced because of non furnishing of the list of document s and witnesses. Above aspect of the matter will also have to be considered keeping in mind the f act that the petitioner duly responded to the charge sheet and submitted his rep ly without any reservation. Moreover, when the petitioner himself admitted the c harge of unauthorised absence from duty, it cannot be said to be a case of causi ng any prejudice to the petitioner. Mr. R.P. Sarma, learned counsel for the petitioner has submitted that even if th e charge of unauthorised absence from duty is held to have been established on a dmission on the part of the petitioner, same by itself cannot entail the extreme penalty of removal from service. On the other hand, Mr. R.M. Das, learned couns el appearing for the respondents, submits that having regard to the conduct of t he petitioner during his service tenure and also having regard to the fact that there was unauthorised absence from duty, the disciplinary authority was within its competence and jurisdiction to impose the penalty of removal from service. H e further submits the disciplinary authority being vested with the power to deci de as to the nature of the penalty to be imposed on the delinquent, the High Cou rt exercising the power of judicial review under Article 226 of the Constitution of India, will not sit on appeal over such decision of the disciplinary authori ty. The order of removal from service was passed by the disciplinary authority takin g into note of the fact that the enquiry officer had held that all the charges a gainst the petitioner have been established. As to what would be the penalty of the petitioner, had the only charge of unauthorised absence from duty would have been taken into consideration by the disciplinary authority, is not discernible as the order of penalty with cumulative effect was passed by the enquiry office r holding the petitioner guilty of all the charges. The respondents in their counter affidavit have stated about the rules framed by the FISHFED. Rule 42 of the Staff Rules specifies the penalties which can be im posed for misconduct, breach of rules and negligence, unauthorised absence etc. Rule 34 of the said FISHFED Staff Rules, 1985 specifically provides that the emp loyees shall not be absent from duty or late in attendance without permission. A s to what was the conduct of the petitioner in respect of his attendance, has b een noted above. For all the aforesaid reasons, while not interfering with the impugned order of penalty dated 27.03.2001, the matter is remanded back to the disciplinary author ity to consider as to whether the charge of unauthorised absence from duty (char ge No. 4) if considered independent of the other four charges could entail the p enalty of removal from service. No opinion is expressed in this regard and the m atter is left to the sound discretion of the disciplinary authority. It is made clear that in the event of taking any decision to reinstate the petitioner in se rvice with any one of the lesser penalties, same will not entitle the petitioner back wages. The disciplinary authority shall now pass appropriate order in term s of this judgment and order and consistently with the observations made above a s expeditiously as possible preferably within 31.03.2011. With the above order, the writ petition stands disposed of.