IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 19.11.2009 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.12118 of 2001 T.R.Ravimanoharan .. Petitioner Versus 1.The Director General, Railway Protection Force, Ministry of Railways, Railway Board, New Delhi. 2.I.G.-cum-Chief Security Commissioner, Railway Protection Force, Southern Railway, Chennai – 3. 3.Senior Security Commander, Railway Protection Force, Southern Railway, Chennai – 3. .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of certiorarified Mandamus, calling for the entire records connected with the Impugned Charge Memo No.MXP/227/23/96 dated 30.12.1996 and the Impugned Punishment Order No.M/P/227/23/96 dated 24.06.1997 on the file of the 3rd respondent and the Impugned Appeal rejection Order No.Proceedings of Chief Security Commissioner/RPF/S.Rly/MAS dated 17.05.1999 on the file of the 2nd respondent and the Impugned Order of rejection of Revision Petition No.99/SEC(E)/DAR-2/33 dated 31.07.2000 on the file of the 1st respondent herein and quash the same and to direct the Respondents to reinstate the petitioner into duty with all consequential benefits. For Petitioner : Mr.S.Ramaswamy Rajarajan For Respondents : Mr.V.P.Rajendran O R D E R By order dated 24.06.1997, passed by the Senior Security Commissioner, Railway Protection Force, Southern Railway, Chennai the 3rd respondent, the petitioner was removed from service for the proved charge of unauthorised absence. Aggrieved by the same, the petitioner filed an appeal dated 17.03.1999 to the I.G.-cum-Chief Security Commissioner, Railway Protection Force, Southern Railway, the 2nd respondent. The said appeal was dismissed as time barred and the appellate authority also found no merits in the contentions raised in the appeal. 2. Being aggrieved by the orders passed by the disciplinary as well as the appellate authorities, the petitioner has preferred a revision petition dated 29.06.1999 to the Director General, Railway Protection Force, Ministry of Railway, New Delhi and sought for reinstatement. The said revision petition was also rejected on 31.07.2000. All the above said orders are challenged in this writ petition. 3. Assailing the impugned orders, Mr. S.Ramaswamy Rajarajan, learned counsel for the writ petitioner, submitted that the petitioner had put in 16 years of service and for a solitary act of unauthorised absence, he should not have been inflicted with a major penalty of removal from service. 4. Taking this Court through the grounds raised in the appeal memorandum dated 17.03.1999 and the revision petition dated 29.06.1999, learned counsel for the writ petitioner submitted that the petitioner was examined and placed in the sick list by a memorandum of the Senior Divisional Medical Officer/NGO/MAS dated 06.08.1996 and accordingly he was issued Sick Certificate for the period between 19.09.1996 and 30.09.1996. He also submitted that due to some domestic problem, he had to stay away from his matrimonial home and took shelter in his cousin sister's house. As he was having psychological problems due to mental agony and stress, he became unconscious and was treated in a private hospital. In these circumstances, learned counsel for the writ petitioner submitted that the reasons for not attending the Railway Hospital for getting treatment, was genuine and the respondents have failed to consider the said aspect in proper perspective, but, has merely rejected the defence of petitioner, stated supra. 5. Learned counsel for the writ petitioner further submitted that the petitioner's unblemished service for 16 years has not been taken into consideration while considering the quantum of penalty. He further submitted that the petitioner has two sons and with the limited source of income, he is facing financial difficulty to run the family. In these circumstances, he submitted that if this Hon'ble Court is not inclined to set aside the penalty of removal, atleast the same be modified into one of compulsory retirement, so as to enable the petitioner to eke out his livelihood, with pension and other retirement benefits. 6. Based on the counter affidavit filed by the Divisional Security Commissioner, Railway Protection Force, Mr.V.P.Rajendran, learned counsel for the respondents submitted that the petitioner was unauthorisedly absent from 01.10.1996 to 23.06.1997 for almost seven months and 23 days, without proper intimation to the controlling authority. Disciplinary proceedings were initiated against him and after providing sufficient opportunity, the enquiry officer found the charge of unauthorised absence as proved. The petitioner did not submit any further representation on the findings recorded by the enquiry officer. The disciplinary authority after considering the material on record, fully agreed with the findings of the enquiry officer and for the proved charges of unauthorised absence from duty from 01.10.1996 onwards, on his own without prior intimation to the controlling authority, imposed a penalty of removal from service. 7. Learned counsel for the respondents further submitted that the appeal was belated and therefore the same was rejected. The revisional authority after considering the established facts in the departmental enquiry, the findings recorded by the enquiry officer, the propriety in following the procedure contemplated under the Discipline and Appeal rules, passed a speaking order rejecting the revision petition. On the aspect of non consideration of the medical records said to have been submitted by the writ petitioner, learned counsel for the respondents submitted that during the period of absence, the petitioner had not produced any medical records and substantiated his absence. However, the said aspect has also been considered by the revisional authority and the finding of fact recorded by the disciplinary as well as the other two statutory authorities cannot be termed as perverse or to be a case of no evidence, warranting interference. 8. On the aspect of quantum of penalty, learned counsel for the respondents submitted that the Railway Protection Force is a disciplined force and a member of the said force cannot remain unauthorisedly absent for a long period without intimation or authority. The petitioner being a Constable has got a responsibility to inform his superior officers for his absence and when they are provided with the best of the treatment available in the State, that is in Railway Hospital, he should have appeared before the medical officer for treatment. In these circumstances, as the absence is not justified, he submitted that there is no need to interfere with the quantum of penalty. For the above said reasons he prayed for dismissal of the writ petition. 9. Heard the learned counsel for the parties and perused the materials available on record. 10. The petitioner has joined Railway Protection Force as a Constable on 07.08.1981. While he was working, on 06.08.1996, he has fallen sick and was directed by the Senior Divisional Medical Officer/NGO/MAS for examination. He was given a Sick Certificate from 19.09.1996 to 30.09.1996 for treatment at Surgical Clinic. It is the case of the writ petitioner, that while he was getting treatment at the Railway Hospital, there was some domestic problem at home, between the spouses and he had to stay away from his family. It is also the further case of the writ petitioner that he was treated in a private hospital as an inpatient for some time. During the period of absence, he did not intimate to the controlling authorities which resulted in disciplinary action for unauthorised absence from 01.10.1996. The charge levelled against the petitioner is as follows: "Constable 524/NGO/OP Sri.T.R.Ravi Manoharan had absented himself unauthorisedly for duty from 01.10.1996 onwards on his own accord without prior intimation to his controlling authority" 11. Perusal of the averments made in the writ petition shows that the petitioner after receipt of the entire documents including the order of penalty of removal from his wife, had challenged the order of penalty before the appellate authority. Therefore, it is evident that the findings recorded by the enquiry officer were exparte and could not be challenged before the disciplinary authority. Another reason which could be deduced is that, he was away from his home. Though, the petitioner has assailed the order of removal from service, on the grounds that he had not absented intentionally and that on earlier occasion, he had attended the railway hospital for his illness and that due to family problem, he has chosen to stay away from his house, the appellate authority has rejected the appeal only on the grounds that it was time barred and did not go into the merits of the case. The order of removal was passed on 24.06.1997. The appeal was presented on 17.03.1999. 12. But when the petitioner, had submitted a revision petition dated 29.06.1999 to Director General, Railway Protection Force, Ministry of Railway, New Delhi, the said authority has considered the fact that the petitioner had not turned up for the enquiry and therefore an exparte enquiry was conducted which resulted in the findings, holding that the petitioner had unauthorisedly absented for the above said period. The revisional authority has also found that there is no procedural irregularity or lacuna in conducting an enquiry. Having regard to the nature of the charge, the revisional authority has rejected the revision petition. While considering the defence put up by the writ petitioner, for unauthorised absence on the basis of medical records, the revisional authority has observed that the records produced by the petitioner reflected outdoor treatment, and that the petitioner could have presented himself before the railway Doctor for treatment. The fact that the petitioner was under treatment during the period of absence has been considered. But the issue is that he has not informed the controlling authority or obtained a Sick Certificate from the Medical Officer. The contention that medical records submitted by the writ petitioner, have not been considered by the authorities cannot be countenanced. There is no information to the controlling authority or the superior officer during the relevant period and therefore absence is certainly not authorised. The finding cannot of said as perverse or it is a case of no evidence. It is well settled that in a disciplinary proceedings reappreciation of entire evidence cannot be made and Court cannot substitute the findings, unless it is proved to be perverse. In the case on hand, there are sufficient materials to show that during the period from 01.10.1996, the petitioner had not intimated the controlling authority and therefore this Court is not inclined to interfere with the finding of fact. 13. However, material on record shows that while the petitioner was working at NGO/OP/MAS, he had reported sick on 06.08.1996 and that he was directed to appear before the Senior Divisional Medical Officer/NGO/MAS for examination. The doctor who examined him placed him in the sick list. Accordingly, a sick certificate No.3074592 dated 19.09.1996 for the period between 19.09.1996 to 30.09.1996 had been issued, for the period of treatment in the Railway Hospital. It is the further case of the petitioner that he was having some domestic problems at home and therefore he became psychologically upset and stayed away from his house. The fact that the petitioner had taken some private treatment for his illness is also taken on record by the revisional authority. The contention of the writ petitioner that he had worked for 16 years in Railway Protection Force, without any punishment has not been repudiated by the respondents. 14. Having regard to the solitary incident of unauthorised absence, and medical treatment in railway hospital, duly certified by a Doctor, the petitioner probably, on account of some serious domestic problem did not appear before the Railway hospital or the enquiry officer. It could be seen from the pleadings that after a long time, he had collected the papers from his wife and chosen to file an appeal, which came to be dismissed summarily. 15. In the above background, this Court is of the considered view that the respondents while imposing the penalty ought to have considered the past record of service of the writ petitioner. At the time of removal, the petitioner was aged 37 years with two male children. Though, removal from service would not disentitle an employee from seeking employment elsewhere, but the age of petitioner at the time of removal would certainly be a bar. He had put in nearly 16 years of unblemished service and therefore the above factors could have been considered while imposing the penalty. Therefore, this Court is of the considered view that the penalty imposed is disproportionate for the solitary instance of unauthorised absence and warrants interference and hence the disciplinary authority is directed to modify the penalty into that of compulsory retirement. 16. Accordingly, the impugned orders are sustained in so far as the findings are concerned, but, the respondents are directed to modify the penalty into that of compulsory retirement and consequently settle all monetary benefits to the writ petitioner within six weeks from the date of receipt of a copy of this order. 17. With the above directions, the writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Director General, Railway Protection Force, Ministry of Railways, Railway Board, New Delhi. 2. The I.G.-cum-Chief Security Commissioner, Railway Protection Force, Southern Railway, Chennai – 3. 3. The Senior Security Commander, Railway Protection Force, Southern Railway, Chennai – 3. 1 cc To Mr.S.Ramaswamy Rajarajan, Advocate, SR.62459 1 cc To Mr.V.P.Rajendran, Advocate, SR.62666 W.P.No.12118 of 2001 bvn(co) pmk.3.12.2009