S.A. Shah, J.
1. The petitioner is challenging the order of his removal from service dated 4-3-1975, passed by the Divisional Mechanical Engineer (E), Western Railway, Rajkot, produced at Annexure-F and the appellate order dated 4-10-1975 at Annexure-I and Review Order dated 3-8-1976 at Annexure-K on the ground that the authorities have not applied their mind and have relied upon extraneous material in arriving at the decision which has resulted into failure of justice and several other grounds.
2. The petitioner was recruited in Class IV cadre in April 1952 and was promoted as Storeman after passing necessary examination which post is now designated as Non-Matric Clerk in the pay-scale of Rs. 105-135. The petitioner was also confirmed in the clerical cadre in the above pay-scale and was further promoted to officiate as Store Clerk in the revised pay-scale of Rs. 260-400. According to the petitioner he was on sick leave from 10-11-1965, initially he was suffering from chronic bronchitis and thereafter he suffered from pulmonary T.B. and hemposis.
3. The petitioner was served with a charge-sheet dated 28-11-1970 for 'unauthorised absence-failed to observe Medical Rules and continued to remain absent without proper permission of authority even after issue of fit certificate by AMO, KKF on 4-12-1969.' The article of charge is produced at Annexure-A. By an order dated 4-9-1972 the departmental action initiated against the petitioner was dropped. The said order is produced at Annexure-B.
4. Again by a Memorandum dated 13-9-1972 a fresh departmental enquiry was initiated against the petitioner, and the charge material is reproduced below:
Shri Vadilal V. Brahmbhatt while working as a Clerk is under sick list from 10-11-1965 till date, thus liable to be removed from service in terms of Rule No. 2014(2) of Indian Railways Establishment Code, Volume II after followed the DAR procedure.
The inquiry proceedings were commenced and the Inquiry Officer, after considering the statement recorded and concerned official records in the case, found that the petitioner was under sick list from 10-11-1965 till the date of enquiry, i.e. 12-3-1973. The Inquiry Officer has recorded the statement in which the petitioner himself has stated that he was sick from 10-11-1965 and was under the treatment of a private doctor till the date of enquiry and he had also submitted sickness certificate till that date. He has further stated that on account of his grave disease, which takes long time to be cured, he was not in a position to attend his office.
5. The competent authority did not agree with the findings of the Inquiry Officer and issued a show-cause notice dated December 1974, 15-1-1975, arriving at a tentative decision that the petitioner has remained absent continuously for a period of more than five years even when the D.M.O. has certified that he was fit to join duty. The competent authority, therefore, came to the conclusion that the petitioner was not fit to be retained in service and had proposed to impose upon him a penalty of removal from service.
6. The Divisional Mechanical Engineer, the competent authority, after considering the representation of the petitioner removed the petitioner from service by his order dated 4-3-75 which is produced at Annexure-F. The petitioner filed an appeal, and the appellate authority who gave personal hearing to the petitioner made an offer, purely on compassionate ground, to resume duty at some place where there is a vacancy for some time so that the case of the petitioner to retransfer him to Ahmedabad could be considered. But the petitioner, unfortunately, did not agree and, therefore, the appellate authority was obliged to give a decision confirming the order of removal of the petitioner from service only on the ground of unauthorised long absence for a period of more than five years. The review application was also rejected and, therefore, the petitioner has filed this petition.
7. Mr. N.J. Mehta, learned Counsel appearing for the petitioner has challenged the dismissal order on the following grounds:
(i) The respondent-Railway had withdrawn the first charge-sheet dated 28-11-1970 unconditionally and, therefore, the petitioner is deemed to have been fully exonerated from the said charge and a second departmental enquiry cannot be initiated on the same facts against the petitioner.
(ii) As per rules governing the issue of medical certificates of non-gazetted Railway servants applying for leave, the certificates produced by the petitioner were valid certificates and, therefore, the petitioner was on sick list throughout and he cannot be dismissed from service on a true and correct interpretation of Rule 2014 contained in Indian Railway Establishment Manual.
(iii) The petitioner was absent on account of his sickness which has been fully established and the impugned order of dismissal has been passed on extraneous material which has resulted in miscarriage of justice and, therefore, the order should be quashed and set aside.
In order to appreciate the contention of Mr. Mehta, it is necessary to reproduce the relevant Rules as it stood prior to and after the amendment.
The Rule as it stood prior to the amendment was as under:
2014. (F.R 18)-(1) No railway servant shall be granted leave of any kind for a continuous period exceeding five years.
(2) Where a Railway servant does not resume duty after remaining on leave for a continuous period of five years, or where a Railway servant after the expiry of his leave remains absent from duty, otherwise than on foreign service or on account of suspension, for any period which, together with the period of leave granted to him, exceeds five years, he shall, unless the President, in view of the exceptional circumstances of the case, otherwise determines, be deemed to have resigned and shall accordingly cease to be in Railway service.
The Rule, after the amendment, which applies to the present case reads as under:
2014. (F.R. 18) - (1) No Railway servant shall be granted leave of any kind for a continuous period exceeding five years.
(2) Where a Railway servant does not resume duty after remaining on leave for a continuous period of five years, or where a railway servant after the expiry of his leave remains absent from duty, otherwise than on foreign service or on account of suspension, for any period which, together with the period of leave granted to him. exceeds five years, he shall, unless the President, in view of the exceptional circumstance of the case, otherwise determines, be removed from service after following the procedure laid down in the Discipline and Appeal Rules of railway servants.
It may be noted that prior to the amendment of the Rules, a railway servant who remained on leave for a continuous period of more than five years automatically ceased to be a Government servant. In other words his service will be deemed to have been terminated. After several decisions of the Courts that such rule of automatic termination violates the principles of natural justice, the rule has been amended and a provision has been made to follow the procedure laid down in Discipline and Appeal Rules for railway servants thereby giving the railway servant an opportunity to defend his case.
8. Rule 2014 contains two clauses. Sub-clause (1) is in mandatory terms which prohibits grant of any kind of leave exceeding a continuous period of five years. The mandate is in negative from prohibiting the authority from granting any kind of leave to a railway servant for a continuous period exceeding five years. The only exceptions as mentioned in Sub-clause (2) are on account of foreign service or on account of suspension which may exceed five years. Further, Sub-clause (2) again casts a mandatory obligation upon the Railway Administration to remove such railway servant who has continuously remained absent for a period exceeding five years, unless the President of India, in view of the exceptional circumstances of the case, determines otherwise. The combined effect of these two sub-rules is as under:
(a) No Railway Authority can grant leave of any kind to a railway servant for a continuous period which exceeds five years, except, the President of India, in view of the exceptional circumstances of the case, otherwise determines.
(b) The words 'any kind of leave' will include sick leave also.
(c) Absence on account of foreign service or on account of suspension is the only exception to the said mandate.
(d) If a railway servant is found to have remained absent for a period exceeding five years, the Authority is enjoined to remove the said railway servant from service by following the procedure laid down in the Discipline and Appeal Rules for railway servants.
9. The first contention of Mr. Mehta that the first departmental proceedings initiated by charge memorandum dated 28-11-1970 regarding the absence of the petitioner from 10-11-65 to 4-12-69 having been dropped the second enquiry which includes the said period also is illegal has no merits because the first charge-sheet was in respect of the absence of the petitioner without proper permission and regarding his failure to observe Medical Rules and non-joining the service even after the issue of fitness certificate by the A.M.O. The charge-sheet, therefore, was not in respect of his continuous absence for a period exceeding five years as contemplated by Rule 2014. Whereas the present charge-sheet in terms states that the petitioner was under the sick list and has remained absent from 10-4-65 to 2-9-73 (till date) and, therefore, has become liable to be removed from service in terms of Rule 2014(2). There is, therefore, no doubt that the causes of action for both the enquiries are different. The first charge-sheet was in respect of his negligence and misconduct by remaining absent without leave, whereas the second charge-sheet is in respect of his remaining on sick leave for a continuous period exceeding five years. In these circumstances, withdrawal of the first departmental enquiry cannot debar, the second enquiry when the petitioner remained continuously absent for a period exceeding five years. The second enquiry has altogether a different cause of action and is for in contravention of the mandatory Rule 2014. I, therefore, hold that the second departmental enquiry initiated by the Railway Authorities is legal and valid.
10. Mr. Merita argued that the petitioner was on sick list and the petitioner had proved his case by producing medical certificates of private doctors. According to Mr. Mehta such certificates issued by private doctors are not prohibited. He relies upon Rule 1480 of the Indian Railway Establishment manual which reads as under:
1480 (a): Every application for leave on medical certificate made by a non-gazetted railway servant other than Class IV shall be accompanied by a medical certificate in Form No. 59 of Appendix 9 given by a registered medical practitioner defining as clearly as possible the nature and probable duration of the illness or by a request, for the issue of a requisition for examination by a medical officer of Government.
He argues that the said certificates were in Form No. 59 given by a registered medical practitioner. The only remedy available to the Railway authority competent to sanction leave was to secure a second medical opinion, but till then the said medical certificates are binding to the Railway authorities. Mr. Mehta has drawn my attention to the averments made in para 6 of the petition which reads as under:
The petitioner states that he has always submitted certificates of a registered medical practitioner which were endorsed and accepted by the Assistant Medical Officer, Kankaria, i.e. a railway doctor. These certificates were also accepted by the departmental authorities.
As a result of the Inquiry, the Inquiry Officer held that the petitioner was legitimately on sick leave as per rules. The Divisional Mechanical Engineer, Western Railway, Rajkot has filed affidavit-in-reply and has not dealt with the petition parawise. However, in para 5 of his affidavit he has stated that the petitioner was under treatment of private doctors from 10-11-1965. As alleged by him the Divisional Medical Officer, Western Railway, Baroda, examined the petitioner on 4-12-1969 and certified him to be fit to resume duty vide the Divisional Medical Officer, Baroda's letter dated 9-12-1969. A copy of the said certificate is produced at Annexure-A to the affidavit-in-reply Mr. Mehta is right when he says that this contention of the petitioner has not been denied by the Railway administration and the averments regarding his transfer and non-joining the duty etc., are not relevant when the departmental actions are taken in terms of Rule 2014 of the Indian. Railway Establishment Code. I am, therefore, of the opinion that the petitioner was on sick list and there is no evidence produced by the Railway Authority to controvert the aforesaid averments and there was no evidence or justification for the Divisional Mechanical Engineer, the competent authority, to disagree with the findings of the Inquiry Officer.
11. Mr. Mehta next contended that the petitioner has established that he was sick and the findings of the Divisional Mechanical Engineer, the competent authority, that he was fit and that such certificate was also issued by the Divisional Medical Officer are extraneous materials on which the competent authority has relied. I am in full agreement with Mr. Mehta that the observation regarding the fitness of the petitioner and the advice rendered by the Divisional Medical Officer vide his letter dated 9-12-1969 that the petitioner was fit to resume duty were extraneous materials and cannot be relied upon by the competent authority. However, if we look to the Articles of charges at Annexure C it becomes very clear that the departmental enquiry was limited to only one and one charge, namely, that the petitioner has remained absent from 10-11-1965 to 2-9-72 (till date) continuously for a period exceeding five years, and therefore, he has become liable to be removed under Rule 2014(2) of the Code. It is pertinent to note that the statement of imputation in clear terms states that the petitioner while working as clerk was under sick list. Therefore, in my opinion, the charge-sheet proceeds on the assumption that though the petitioner was on sick list even then in terms of Rule 2014(2) he has become liable to be removed from service. In that view of the matter the observations of the competent authority are not only based upon extraneous materials but are beside the point.
12. Though the competent authority has disagreed with the finding of the Inquiry Officer that the petitioner was on sick list that decision of the competent authority is clearly uncalled for. In this case we are not concerned whether the petitioner remained absent continuously for a period of five years on account of his sickness or for other reasons. The real point at issue was whether the petitioner has remained absent for a continuous period exceeding five years and to this issue there is no dispute or denial by the petitioner that he has not remained absent exceeding the statutory period. Therefore, the real question that arises for my consideration is whether the removal of the petitioner on account of remaining absent for a continuous period exceeding five years even on account of sickness is legal and valid.
13. The petitioner filed an appeal against the finding of the competent authority before the Divisional Superintendent at Rajkot in which he has taken various contentions. But the appellate authority, by its decision dated 4-10-1975, has confirmed the decision of removal of the petitioner from service only on the ground of his unauthorised, long absence for a period of more than five years. The appellate authority has gone to the extent of making an offer to the petitioner to resume duty at some place where there is a vacancy and also has agreed to re-transfer the petitioner no sooner a vacancy occurred in Ahmedabad However, the petitioner has not accepted such a lenient offer since he was not prepared to go elsewhere on account of his ill-health and, therefore, the appellate authority had no option except to decide the appeal on merits and had confirmed the order of the competent authority. In this view of the matter any observation made by the competent authority which was extraneous and beside the point has not affected the decision because the petitioner had accepted that he has remained absent from 10-11-1965 till 1972 for a continuous period exceeding five years and, therefore, there was an obligation on the Railway Administration to remove the petitioner from service. When there is an admission which constitutes the delinquency then there is no necessity for further proof and a decision can be taken by the competent authority on admission. Even if the competent authority has taken into consideration some extraneous material which has no bearing with the charge-sheet issued, the same should be ignored. In the instant case the decision of the appellate authority is the final decision and not the decision of the competent authority. The decision of the competent authority, Divisional Mechanical Engineer, has merged with the decision of the appellate authority and Mr. Mehta could not point out any infirmity in the decision of the appellate authority. The appellate authority has not considered any extraneous circumstances or material and has chosen to decide the case of the petitioner only on the ground of his continuous absence for a period exceeding five years. In this view of the matter it is not possible to find any infirmity in any of the decisions when the decision rests upon a clear admission of the petitioner that he has remained absent continuously for a period exceeding five years. The rule being statutory and in a mandatory form leaves no discretion, even on compassionate ground, to the Railway Administration to give any relief to the petitioner and they are enjoined by the mandate of the Rule to remove the petitioner from service.
14. The review petition filed by the petitioner on 3-8-1976 was considered by the General Manager who declined to interfere with the penalty imposed and in that way the order of removal has become final. In the aforesaid view of the matter it is not possible to accept the contention of Mr. Mehta that the decision given by the competent authority or the appellate authority was suffering from any legal infirmity.
15. Lastly Mr. Mehta urged that his client was suffering from Tuberculosis and the wife of his client was a nurse and it was, therefore, necessary for the petitioner lo remain with his wife both for nursing as well as for taking medical treatment, at Ahmedabad. Mr. Mehta further says that the Inquiry Officer had also held that the petitioner was on the sick list against which the Railway authorities nave not produced any other evidence and the observations made by the Divisional Mechanical Engineer were based upon extraneous materials which were not brought on record. It is, therefore, clear that the petitioner has remained absent on account of his serious illness and T.B. is such a disease which cannot be cured within a short time. Mr. Mehta, therefore, urges that these were the exceptional circumstances under which the Railway Administration should have condoned his absence and ought to have referred the case of the petitioner to the President for determination. If the petitioner has become sick during the service, the benefits of his service cannot be wiped out by taking such action. A lenient view ought to have been taken when it was proved that the petitioner was suffering from a grave illness and has not remained absent on his own volition. In the circumstances, Mr. Mehta is right that the Railway Authorities ought to have taken a lenient view and ought to have referred the case of the petitioner to the President for determination, so as to save the petitioner from the rigours of the Rule. The service rendered by the petitioner cannot be wiped off on account of his illness and the Department ought to have sympathised with the petitioner.
16. It is true that the petitioner was suffering from T.B. The petitioner could have moved the Railway Administration to refer his case to the President. Even today, if the petitioner so desires, he can make an application to the Railway Administration to move the President and I have no doubt that if such an application is made the Railway Administration will give its due consideration because when a person has rendered service for a long time and if he becomes incapable to resume duty for a continuous period exceeding five years it is very harsh to take away all the benefits of his service and penalise him for no fault of his. If the petitioner was genuinely sick the Department should grant him all possible benefits which are available under the rules. However, it is not possible for the Court to grant any relief except to make the aforesaid recommendations.
In the result the petition is dismissed. Rule discharged with no order as to costs.