Rakesh Debbarma vs Chairman And Ors.

Heard Mr. A.K. Pal, learned counsel appearing for the petitioner as well as Mr. P. Dutta, learned counsel appearing for the respondents.

By means of this petition filed under Article 226 of the Constitution of India, the petitioner who is working as a Dipper cum Class-IV under the respondent No.1 has urged this court for quashing the memorandum under No.F.TKB/2(410)/95-96/1704 dated 27.08.2016 [Annexure-H to the writ petition], whereby the petitioner has been levelled with the following charges:

"Article-I

That during the period & while functioning in the aforesaid office the said Sri Rakesh Debbarma, Dipper (Group-D) suddenly left the Office without prior intimation & permission of the authority and absenting himself w.e.f 02.06.2016 as per Biometric attendance and accordingly he was asked to join within 3(Three) days but the said Rakesh Debbarma did not comply with the instruction of the authority and join the Office within the stipulated days thus failed to maintain the absolute devotion to the Govt. duty

Article-II

That during the aforesaid period & while functioning in the aforesaid office Sri Rakesh Debbarma, Dipper (Group-D) was asked to clarify the reasons of his unauthorized absent from duties w.e.f. 02.06.2016 without intimation/submission of any leave application within 3 (Three) days vide Memo No TKB/2(4)/1995-96/700-801 dated 13th June 2014 received by said Sri Rakesh Debbarma, Dipper (Group-D) on 14.06.2014 but even after expiry of prescribed periods of submission of clarification he did not care to reply to the aforesaid memo which is a clear refusal to carry out the order of the authority which is a serious negligence and dereliction of duty resulting the Board faces serious consequences.

Article-III

That during the aforesaid period & while functioning in the aforesaid office the said Sri Rakesh Debbarma, Dipper (Group-D) was further given an opportunity to clarify the reasons of his unauthorized absent continuously w.e.f 02.06.2016 till the date of issuing the memo vide No TKB/2(4)/1995-96/932 dated 21.06.2016 received by Sri Debbarma on 22.06.2016 but did not respond to the said memo which is clear refusal deliberate failure to carry out the written order of the authority. Thereafter, another Memo No TKB/2(4)/1995-96/1569 dated 06.08.2016 was again issued giving him one more chance to clarify the reasons of why the disciplinary action will not be taken against him for leaving the station and absenting from duties unauthorized without permission of the authority but no reply or response from the said Rakesh Debbarma, Dipper (Group-D) is received even after lapses of 87 (Eighty seven) days w.e.f 02.06.2016 which is a serious negligence and dereliction of duty thus violated the official norms and procedures liable for penal action."

[Emphasis added]

According to the petitioner, for his serious illness he was prevented from discharging his duties for the period from 02.06.2016 to 27.08.2016 and even thereafter the said period has been clearly mentioned in the charge.

Mr. Pal, learned counsel appearing for the petitioner has submitted that the petitioner in the departmental proceeding if is inclined to participate his written statement of the defence is accepted. There is no dispute that the petitioner could not file the written statement of the defence in terms of the memorandum dated 27.08.2016 i.e. within 10(ten) days from the date of receipt of the said memorandum dated 27.08.2016. Mr. Pal, learned counsel for the petitioner has further submitted that the respondents are not allowing the petitioner resume his duties even after submission of the certificate of fitness.

Mr. P. Dutta, learned counsel appearing for the respondents has immediately reacted to that submission by stating that the petitioner has been unauthorisedly absenting from the duties from 02.06.2016 till this date. He did not make any attempt to resume his duties despite notices were served upon him by the respondents.

Be that as it may, since the departmental proceeding has commenced, this court will not definitely interfere with that process irrespective of whether the absence was unauthorized or the petitioner was seriously prevented by any illness. As such, the respondents are directed to allow the petitioner another 10 (ten) days time to submit his written statement of defence from the day when the respondents will receive a copy of this order.

It is made further clear that if the petitioner prefers not to file the written statement of defence within the said stipulated time, the petitioner shall not be afforded with any further opportunity, whatsoever.

The petitioner has filed one interlocutory application seeking an interim direction on the respondents to allow him resume the duties. Even though it has been prayed to allow him join 'retrospectively' which prayer cannot be made until the disciplinary proceeding is drawn to its logical end.

However, having considered all these aspects of the matter, if the petitioner reports for resumption of his duties, the respondents shall not resist him in any manner and he will be allowed to work. However, regarding the fate of absence that can only be determined, having regards to the outcome of disciplinary proceeding and this court will not pass any order at this moment. The petitioner shall be paid the pay and allowances of the working period.

In terms of the above, this writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs.

A copy of this order be furnished to Mr. P. Dutta, learned counsel appearing for the respondents.