IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11547 of 2006 MANOHAR PRASAD SINGH son of late Bal Krishna Singh, resident of village Silve Khairma, P.O. Gerua Pursanda P.S. Halsi District Lakhisarai. Versus 1. THE UNION OF INDIA through the Ministry of Railway New Delhi Govt. of India. 2. The chief Security Officer, Railway Protection Force Eastern Railway. IIIrd Floor, Multistoried Building 14 Strand Road Kolkatta. 3. The Security Officer II (HWH) Railway Protection Force Eastern Railway Howrah. 4. Assistant Security Officer Railway Protection Force R.P.F.) Jamalpur District Munger. 5. the Chief Security Force Eastern central Railway Hazipur (Sonepur) East Central Railway. 6. Director Central, Railway Protection Force Govt. Of India Rail Bhawan New Delhi. ----------- 7 09.03.2010 Heard Mr. Devendra Pd. Singh, learned counsel for the petitioner, Mr. Ashok Kumar Singh, learned J.C. to Mr. P.K. Sinha learned counsel for the Railways. The writ petitioner has filed the present case for payment of his post retiral benefits having superannuated from the service of Railways with effect from 6.4.2000. It is the case of the respondents that the petitioner though was enlisted as S.I. Cadet in R.P.F. on 30.4.1964 and upon completion of training was posted at different places but soon after his transfer from Pakur on 18.10.1980 he reported sick. A letter was sent on 14.11.1980 directing him to join duty - 2 - failing which departmental proceeding would be initiated but it is stated that the petitioner failed to comply with the directions. Subsequently a letter written by the petitioner on 12.11.1980 was received mentioning therein that he had been brought to Jamui by one of his relative for treatment and has been advised bed rest. In these circumstances, the petitioner was advised to report to the nearest railway doctor and submit a medical certificate of sickness, vide letter No. ASO/ E/ 7/ 80 but the said letter returned undelivered. Subsequently, another letter was written to the petitioner on 2.2.1981 but neither the acknowledgement nor the undelivered letter returned back. It is thus stated that the petitioner absented himself with effect from 10.11.1980 never to report back for duty thereafter. In these circumstances, a disciplinary proceedings was initiated and a major chargesheet was issued by letter dated 28.12.1989 (Annexure-A) and one R.A. Prasad, I.P.F was appointed as enquiry officer. Efforts were made to serve chargesheet upon the petitioner as in conformity with the legal - 3 - requirements but as the whereabouts of the petitioner was not known nor he informed about the same, hence the registered letter containing the chargesheet returned back undelivered with the remark that the petitioner was under going treatment this time at Ranchi. It is stated that even the subsequent attempts of the respondent, Railways proved futile. In such circumstances, an ex parte enquiry was held and the Enquiry Officer submitted his report on 19.2.1990 holding the charges proved against the petitioner beyond any shadow of doubt, copy of the report has been placed at Annexure-C. It is then stated that the finding of the enquiry officer together with the order containing the order of punishment was sent to the petitioner at the address available with the authorities but the same returned unserved and this fact is manifest from a letter dated 8.5.1990 of the Divisional Security Commissioner placed at Annexure-E of the supplementary counter affidavit. It is thus submitted that in the circumstances the petitioner was removed from service hence there was no question of payment of any post retiral - 4 - benefit. Learned counsel appearing on behalf of the petitioner submits that none of the aforesaid orders were received by him culminating in the order of penalty dated 8.3.1990. Despite repeated adjournments being given to the respondents the order of removal could not be placed on the record of proceedings. The chargesheet and the report of the Enquiry Officer have been placed at Annexures – A and C respectively of the said affidavit. Thus although an attempt was made by learned counsel appearing on behalf of the Railways to demonstrate with reference to the letter placed at Annexure-E that an order of removal was passed on 8.3.1990 but in absence of a copy of an order of removal the said submission cannot be accepted. No doubt the petitioner absented himself from duties since after 18.10.1980 and indeed was liable for imposition of major penalty including that of removal from service but the same has to be done by a positive order of removal and which is missing in the present case. Remitting the - 5 - matter back to the authorities, would not serve any purpose for the reason that in terms of the date of appointment the petitioner would have superannuated in regular course with effect from 6.4.2000 and in that view of the matter no disciplinary action entailing penalty as envisaged in the Rules can now be imposed. Admitted position is that the petitioner was in the service of the respondent railways with effect from 30.4.1964 until the date he started absenting i.e. on 18.10.1980 which is a period of about 16 ½ years. Learned counsel for the petitioner submits that he becomes entitled to pension and pensionary benefits upon completion of 10 years of service in terms of the relevant rules governing the Railways. He thus submits that the petitioner is entitled for payment of his admissible dues counting the admitted period of service from 30.4.1964 to 18.10.1980. Having given anxious consideration to the entire matter, nodoubt, the act of the petitioner entailed a major punishment but in view of the circumstances accompanying the present case in which no order of removal has been produced by the authorities of the - 6 - respondent railways in course of the proceedings, I am of the opinion that without going into the correctness or otherwise of the conduct of the petitioner and/or the ex parte decision of removal of the petitioner, the proof whereof is not to be found in the records of the proceedings, ends of justice would be served by a direction to the respondents to calculate the retiral dues as found admissible to the petitioner on the basis of admitted period of service rendered by him from 30.4.1964 up to 18.10.1980 and make the payment thereof within a period of three months from the date of receipt/ production of a copy of this order. The writ petition is disposed of with the direction aforesaid. Bibhash (Jyoti Saran, J.)