Central Administrative Tribunal - Hyderabad
Balamani vs M/O Railways on 11 March, 2019
| And a OA LEQ 208 IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH: HYDERABAD Original Application Ne, 21/2/2018 4, yp Pronounced o on: | Tos 010 Between: Smt. Balamani, aged 31 years, Wyo, late R. Venkateswarfa, Ex. RR Bearer, Oro. Chief Crew Controller, Parl, SC: Railway, H. No, 1-4-258/9 /A61, Bolakpur, Secunderabad -- Telangana, Applicant UGH rep. by its, 1. The General Manager, South Central Railway, Secunderabad. 2. The Chief Personnel Officer, th 4" Floor, Rail Nilayam, § CR Railway, Secunderabad 3, The Divisional Raibvay Manager (P), Sanchalan Bhavan, Secunderabad Division, Secunderabad, . Respondents Counsel for the Applicant eee mG. Pavana Murthy, Adveeate for nS. Rao Si Sri Sam. A.P. Laksirni, 8C for Rivs Counsel for the Respondents CORAM: Hon'ble Mr. BV. Sudhakar wo Menther (4 dain ORDER
jAs per Hon'ble Mr. BV. Sudhakar, Member (Admin) }
3. Applicant is challenging the inaction of the respondents for non grant of family pension and for not considering her son for compassionate recruitment.
3. As per applicant's version, her husband joined the respondents organisation an 3.21484 and while working for them passed away on IT RS wet ae af atl pad DA 2/2/2018 24.12.2013, leaving behind the applicant and 2 children. Applicant claims that before the death of her husband he was declared medically unfit for all categories ee, by the Medical Board vide medical certificate di. 17.8.2004 as he hy, ¢ Vetta nappatt ff from schizophrenia, a serious mental diserder. In fact due to the we ow N REN x A deceased employee was referred by his superior vide lr dt 6.6.2000 to the Additional Divisional Medical Officer to treat and keep him under sick Hot. Deceased employee was accordingly treaicd as outpatient at Lalaguda Hospital of the respondents for schizophrenia from 6.6.2000 on wards. As the disease was degenerating the ex-employee was medically invalidated. Qn being found medically unfit deceased employee on 5.112004 sought compassionate appointment for his wife as he had still 10 vears of service left and two children to be brought up. 3" respondent! registered the request for compassionate appointment vide fr dt 3.112004, Further the deceased employee alsp and grant him pension on medical represented to permit hirn to retire voluntarily invalidation vide representation dt 28,6.20U5, In respanse the deceased employee was informed by the 3" respondent vide ly dt 23.9.2005 that he was compulsorily retired from service wie.f 21.12.2001 as a measure of punishment. Deceased employee responded by stating that f could be a case of mistaken identity and that he was declared medically unfit on 17.86.2004. After representing, unfortunately applicant passed away due to ill-health on 24.12.2013, On the ard gars £ "
death of her husband applicant represented on 6.8.2014/18.0.2018 to the 3°/2 respondents respectively seeking family pension and compassionate appointment SS to her son. As there was no response the OA has been fled. 2
4. The contentions of the applicant are that the deceased employee was taking treatment from the respendents hospital since 66.2000 Hll he was declared medically unfit by the competent authority on 17,8.2004. Therefore the Fe is) ' oF cS $e an a r.
+ cae with the signature of 2 2 witnesses, Disc' minary authority thereafter imposed the penalty of compulsory retirement on 21.12.2001, Appellate Authority on suo moto revision confirm ed the penalty vide ir dt 9.2.2005. Applicant represented on 71.2009 to the appellate authority staliag that her husband on 66.2000 was referred to respondents hospital for treatment explaining the consequences there af, but her pleas were rejected an 6.102009, Neither, the applicant nor the deceased employee challenged the disciplinary proceedings. Though the 3f deceased employee passed away on 24.12.2015 the cause of action commenves from 23.90.2005, the date on which the request for compassionate recruitment was rejected, Unless the delay is condoned, OA is barred by limitation as per judgment in Ramesh Chand Shama ete. vw. Udham Singh Karnal & ors. Subsequent representations made by the applicant are invalid. Besides remedies sought are plural namely compassionate appointment and family pension. That apart, when the applicant approached the Chief Medical Supdt, the later directed CC/PRLT to issue G.M-3 form for special medical examination not knowing that the applicant was compulsarily retired from service. On examination he was found to be unfit for all categories vide certificate di 17.8.2004, Master circular tree i@ provides for compassionate reeraitmment of the dependents of regula employees who demit office due to medical invalidation' medical de-categorisation/missing' or due to death. As the deceased employee was compulsorily retired his family members are not eligible for compassionate 2 recruitment. Further as the deceased employee was on unauthorised absence for 3360 days he was not having 10 years of service to be admissible for pension or compassionate allowance. Nevertheless, his PF amount with interest totallmg te Rs. 13,860 was paid. Further when the applicant fled this GA, on the directions of the Tribunal the representation dt JS 892016 made by the applicant was Pevevingnoes, a * * 8 "3 Sal = Nee "question of imposing any penalty is sen ext in law since the deceased e tad WAS not served with any notice / charge memo! inquiry renorlorder of penalty till he was declared medically unfit. Applicant had 10 years of service eft when he was declared unfit. As per Railway Board order dt. 304.1979 the son of the applicant is eligible to be considered for compassionate appointment, Deceased employee has put in nearly 20 years of service and hence his family is elaible for family pension and compassionate appointment en grounds of medical invalidation. Applicant cited the Hon'ble High court of Orissa judgement reported in AIR 1967 ORISSA 171] wherein it was held that there cannot be automatic rmunation of service as per Rule 8 of RS (O&A) Rules but has to be done in complance with Article 31] (2) of the Constitution, Besies, applicant claimed SOnp :
% that this Tribunal has held in different OAs that even if the deceased employ had & blemished record bis wards can be considered for compassionate appointment. Compassionate appointment is necessary for the applicant's son to take care of family which is in distress due to the death of the bread winner.
3. er Contra, respondents assert that the medical certificate de 17.8. 2004 has not been appended to the OA. It is 6 fact that the deceased employee has fequested for compassionate appointed on 3.1 1,2004 and that the same was registered instantly. The said request was rejected on 23.9.2005 since the deceased employee was imposed with the penalty of compulsory retirement "> ry Wed 21.02.2001 for unauthorised absence for a periad of 3360 days in different spells during the period [.1.1990 to 21.12.2001. Indeed a maior peralty charge sheet was issued. Applicant did not submit any explanation and therefore an inquiry was conducted. As the applicant did net appear before the imquiry officer, ex- parte proceedings were issued on 26.7.200] with the available 3 witnesses, The ex-parte proceedings were displayed on the notice board along Be nae damnosed as schizophrenic and therefore rightly su « .
£ SRA MASS Soria ~ SBA S22 PAGES disposed rejecting her claim for compassionate appointment vide Ir dt 28.2.2 The deceased employee had been sontimuously absent from duties si 16,5,.2000 & Heard both the counsel, Documents and material papers submitted been gone through in detail.
7. 1} Here is a case of an ex-empmoyee, belonging to the lower rung of the administration namely Yard porter and later table boy, who was diagnased to be schizophrenic on being referred te the respondents hospital, Schizophrenia is 'a mental disorder causing hallucinations and delusions, associated sometimes with hostile behaviour. The ex- employee was suffering from this disease for quite same time and because of ompraper attention from the family, society and the organisation, it is understandable that he would not have had the mental faculties to discharge the responsibility endowed upon him. Therefore, the long x * unsuthoerised absence of more than 8 years from 11.1990 to 2) P2200), in different spells. Learned counsel for the applicant informed that the family ameribers of the ex-ermployee came from a poor and Uiiterate background whe de not know the knitty gritty ef the RSCDA) rules to keep the respondents informed, as to what is happening to the employee. Therefore, the respondents were not aware of the whereabouts of the ex-enyployee. Nevertheless, the superior under whom the ex-employee worked, an observing that the applicant was on unauthorised absence since 16.58.2000 took sympathy and referred him to the concemed Medical officer to be treated for mental disorders and to keep hin under sick list vide Ir. df£.6.6.2000. On medical examination, employee was * aX bected to special medical examination by the medical hoard to assess as to whether he was medically fit to perform official duties. Medical Board found him unfit for all categories as per eee 6 GA BYR medical certificate dt 178.2004 which was annexed as page 45 of the GA. Thi answers the objection of the respandents that no certificate confirming th:
applicant was unfit for all categories was enclosed. For having been fov medically unfit the ex-employee represented to provide employment to his wife and allow him to retire under medical invalidation on $.11.2004 but was rejected on 23.9.2005, The grounds stated were that he was compulsorily retired on 2l.2.2001 which was indeed shocking. Appellate authority confirmed the penalty on 9.2.2005 without batting an eye lid. Ex-emplovee continued to represent tf his last breath on 24.12.2013. The saga of representations to seek relief sought was continued by the wife of the ex-employee who ts the applicant in the present OA. As per the interim directions of this Tribunal in the present 3 OA, representation af the applicant was considered and rejected stating the same ground that the ex-employee was compulsorily retired before being medically invalidated and therefore there is no case to provide the reflef sought. When the case came up for hearing, respondents were asked to submit relevant records pertaining to the disciplinary case initiated against the ex-employee for unauthorised absenes, Learned counsel for the respondents has submitted only 3 papers. Qne among them is the penalty order df 21.2.2001 issued to the ex- employee and the rest not so relevant. [tis clearly endorsed on the penalty order that the 'charge sheet was not handed over to the employes'. In addition there was no acknowledgment fled confirming that the penalty order was served to the ex-employee. Incidentally penalty order reads thai the penalty would come into effect from the date of serving the memo on the ex-employee. Learned counsel for the respondents argued stated that since the copy was marked to the controlling officer and to the other officials concerned, it should be presumed that the meme has been delivered to the ex-employee. It is an incomprehensible oF ahah "yp ACR fin é GA 20/872 submission devoid of logic. A serious issue Uke the penalty of compulsory retirement cannot be dealt in a casual marmer. The order as per the disciplinary authority endorsement is that i shall come into effect on serving the memo to the ex-employee. When the respondents have failed to produce any evidence to the effect that it was delivered the penalty order is as good as being imvahd. The general procedure is to paste the order at the last known address of ne ex-employee Whe cauld not be otherwise contacted. This procedure was not followed. Instead if was pasted on the office notice board, which does not serve any purpose since the ex-employee was not able to attend office in view of the mental disorder he was suffering from. The paradox Is evident from the fact that the respondents claim that the ex-employee was compulsorily retired on 21,12,2001 but they did not take steps to at least present the ex-employee with vw all the documents testifying that he was compaulserily retired when he represented for a job te his wile on $1 12004. Without serving the charge memo, inquiry report, penalty order om the ox-employes, penalty of compulsory retirement need to be construed as automatic imposition of penalty for prolonged unauthorised absence under Rule 8 of RS (D&A) Rules 1968. Hon'hle High Court of Orissa in Narerdranath Mehanty Vs. Union of India, AIR 1967 ORISSA 177 has held that any penalty carmet be automatically imposed unless provisions of Art 311(2) of the Constitution of India are followed. In the present case as the ex-employee was not invelved af any stage of the disciplinary proceedings. Therefore, Article 311(2} has been flagrantly violated. More over, Hon'ble supreme court has observed in State of West Bengal vy MLR Mondal in CA GI23/6124 of 200) that:
" An order passed but retained in Sie without being communicated to the plainuif can have no foree or authority whatsoever and the same has no valid existence tn the eyes of law or claim to have come into operation anc CL DA QUE ZOIR SCE, No reliance can he placed on the same to even assert aclaim hased contents"
Respondents relying on an order of compulsory retirement, which they have t AS i OR IRE oN - " . Fe as. eX Ty cy peing dy - N > oe + ' * \ served on the applicant, would therefore be invalid jin the context af th observation of the Hon'ble Supreme Court stated above, In fact, respondents did fot take proper care to associate the applicant at any of the stages of the ra disciplinary process, in an enquiry proceedings, notice has to be issued to the charge employee x at every stage in order to uphold the principles of natural justice. In the present tant case it was not done. Besides, Railway Services (D&A) Rules, in particular Rule 9(23) states as unde:
"HY the Railway servant, to whom a copy of the article of charge has heen delivered, does n "submit the written statement of defence on or before the date specified for the purpose ar does not appear in person before the quiring authority or otherwise fails or refuses to comply W th the provisions of this rale, the inquiring authority may hole the inguin v es-parte.™ Thus, as per Rules it is required to deliver a copy of the article of charge to the delinguent to enable him to submit written statement of deie nice. Burt, as can be seen from the facts of the case, charge memo was not delivered to the erstwhile employee. Hence, the question of submit! Ning Statement of defence does not arise. Therefore, it is as good as nat char ping the ex-employee. This also viclates the observations of the Hon'ble Supreme Court in Bachhittar Singh Vs. State of Punjab, 1963 AIR 398, wherein it was held thay an order which is not communicated will not stand scrutiny af law, Uy} Going further, respondents claim that by mistake the ex-employee was referred for special medical examination in 2004. The seminal issue that has to be examined is whether the mistake committed by the department can make the ex-employee suffer. The answer is it cannot. Hon'ble Supreme Court has wt dd observed that the mistake of the departmne as under:
() The Apex Court ina reeent case decided on 14, 12.2007 (ales of india vs. Sadiiana Khanna, CA. a. 820850 1} held that the mistake of the department cannot recoiled on employees. In yet another recent case of ALM Thinunaiah vs. UPSC. CA. No, 5883-399} af 2007 decided on 13.12.2007, it has been observed that 1 there is a falure on the part of the officers to discharge their duties the incumbent should not be allowed to suffer.
Gi) It has been held in the case of A¥raral Chanera Bhatiacharjee v, Union of fndia, 2991 Supp (2) SCC 363swherein the Apex Court has held "The mistake or delay on the part of the department should not be 'y <s permitted to reooil en the appellants Therefore the respondents are not empowered to rub their mistake on to the applicant and particularly in the case of sn ex-employee who has no conscious of his own te decide as to what is good or bad for him.
I Delving r into the case details it is seen that the fect af the applicant suffering thom schizophrenia came out officially only when his kind superior took pains to refer him for medical treatment. Had he been referred for medical check previously on observing that the applicant was & equently absenting himself, he would have been diagnosed as schizophrenic mach earlier. Unfortunately it did not happen. This js where the role of a mode! employer comes into play. Respondents are a model employer as per Supreme Court ation in 2013 (2) SCC S16. A model employer needs to get te the reat of Lan o the problem and take 4 justifiable decision, In the instant case the ex-employee and the applic: int have been repeatedly representing that the ex-employee was medically found unfit for all categories and that he be allowed to retire voluntarily on medical grounds. Without examining the same by proper application af mind respondents have clung on to the undelivered penalty order | of compulsory retirement, which is nom est In law. When the applicant represented for certain reliefs on being found medically unfic the fair option open to the respondents was to verify from medical authorities as to from when the applicant was suffering with schizophrenia. This would have helped the respondents to get the required details for taking a fiir decision and clear the mist surrounding the dispute. In the process the respondents would come to know about the actual reasons for frequent unauthorised absence, When the cause is cured the effect will he glorious, jf effect is acted upon harshly as in the present case, the cause becomes acutely painful. The ex-employee died for no fault of his. In fact when someone is mentally ill he needs to be supported anc hol condemned to face disciplinary action which obviously a mentally challenged person cannot fsee. Presuming that the charge meme was served on the ex-employee who is mentally unsound the question that would arise is whether he can defend himself He cannot, by any stretch of umagination. Therefore, the most humane decision which any reasonable j individual, could have arrived at was to allow the applicant to retire peacefully on medical invalidation afler being certified by the competent medical authority. Sadly it Was not fo be se, IV} [tis also not Known as to how the disci plinary authority has come to the conclusion that the ex-employee committed grave misconduct for unauthorised absence, when could not get the notice/charge mema/ penalty order served on the ex-employee. Principles of Natural Justice -have been extensiv ely NG ; OA RYS OLS AE ~~ wee injured in the process. Merely relying on the ex-parte proc nee employee is a colourable exercise of power. Reasons for absence have to be é gone inte to prove the misconduct in a fair and just manner. Was the absence dehberate or due to factors beyend the comtral of the ex-employee has to be scrutinized, Being mentally challenged # was beyond the menial ability of the ex-employee to discharge official duties. No such effort has evidently been made by either the disciplinary or the appellate Authority. Therefore their conclusions are neither just nor fair. Their orders toa were not reasoned and speaking.
V) Besides, this Tribunal in G)As SBO/200S and 146/301] while adjudicat hg a Suniilar issue involving the same respondents has allowed the . OAs and granted the relief of comypassicnate appointment and family pension as ~S is being sought by the applicant in the present OA. Respondents are aware of the same and henee they cannot discrimimate the anplicant. Such a decision of the s respondents goes against the observations Hon'ble Supreme Court ance again involving the same respondents as under:
hoes * » Which reads as ord Abid Hussain v. Union of Indis, (987) 1 SCC 43 under:-
it is not disputed that Anendants are being paid « exceeding 86 hours in Avo weeks in the Raiheay and Eastern Raiheay, evertne allowances on the Coach-fa-Charges-dtiendants fa the Northern accordingly direct the {inion af fadia amd the Administeation to HD ont duly fo PUSd the overtinie wHowances to fhe . Couch AedasChe Working in the Ne OF the i} Fp hoy ow wht Bye eT ed ose chee de -
alicwarnces up to date shall be paid ax early as possible and in ary ever? not later than four monte oda, The beneftt of this .. isan oy beet aw is Sd - a ee order shall be extended to all such emplovees tnehued ime those whe have retired and frase whe have sot joined as } Detitioners * her eu PHO Ot Eth a lr, Ce VI) The other objections raised by the respondents which d responded primarily the OA is barred by limitation. The objection raised does not sustain since the representation of the applicant dt 18.9.2016 was disposed on aS 22018 pursuant to a direction ef tis Tribunal in the present OA an O2OL2O18, The present OA was filed on O1.0)L2018 stating that the representation 18.09.2016 was nat being disposed. Secondary ground taken is that the remedies sought are plural. Even this does not stand to reason since they are consequential, Qnee it is established that the applicant is eligible for family persion, then she would be eligible to seek compassionate appointment. Tertiary objection was that the applicant does not have 10 years of service afier deducting the period of unauthorised absenes to qualify for pension. In this regard it is seen that the applicant joined the respondents organisation on $.2.1984 and the date of medical invalidation is 17.8. 2004. The period of service approximately works out to 20 years and & months. The unauthorised absence of the applicant's iste husband as reported by the respondents is 3360 days ie approx. 9 years 20 days. Qn deducting this period service rendered by the applicant would be around i] years S months, which prima facie makes him eligible for pension.
Respondents need to carefully examine this aspect reckoning any medical leave granted to ihe ex-employee as well, Lasily respondents contended that the disciplinary authority order and that of the appellate authority order were not challenged. Representation made by ihe applicant on 18.9.2016 questions the penalty of compulsary retirement imposed and the ex-ernployee has represented against the same through his representations. Even the OA filed deals ye A " ;
" ait ae » i .
4 . a S s,} x aS . BE extensively with the issue challenge th:
pees x is not much substance in the objection.
VU) Yo sum up the respondents decision of inyposing the penalty of compulsory retirement on 2) I22001 by not serving notice'charge memo/penalty is legal since it violates the Principles of Natural Justice and alsc the legal principle set by the Hon'ble Supreme Court in MR. Mandal case cited supra, Respondents have found him medically unfit for all categories as per order ay 17 8.2004. However, respondents claim that Ht is a mistake. A mistake of the department should not penalise the employee as per Hon'ble Supreme Court judgments cited supra. Therefore the respondents ought not to have penalised the ex-employee or the applicant. Orders af the disciplinary authority and that of the appellate authority are not reasoned and speaking. They have come to a conclusion of grave iisconduct without proving it and that too by not serving the documents through which they wanted to prove the misconduct. Article S11(2) of the Constitution was grossly inftinged and therefore the decision of imposing the penalty referred to, is against the observation of the Herourable gh Court of Orissa in ATR 1967 ORISSA [71]. Besides, the ex-employee is af unsound mind and therefore even if a charge sheet is served he would nat have been able to defend himself Rules provide for retiring such officials on medical ywalidation, which the respondents miserably falled ta invoke. Cases involving similar issue and the same respondents were allowed by this Tribunal in OAs 880/2005 and 146/201 1 Hence the present OA ix a covered case. Thus the penalty of compulsary retirement imposed by the respondents stands invalid.
Medical invalidation order issued by the competent medical authority holds good for reasons elaborated in paras supra. Consequently, applicant will be elig ible for OA EL e/a 8 x TRS bugs : > 5 oo : . ef ' as :
/himiuy pension and any of the dependent family member of the deceased oe ;
smmoyee will be eligible for compassionars appointment. WD} in view of the aforesaid, the QA succeeds. The decision of the respondents in negating the request of the applicant is arbetrary, unreasonable -- und dlegal, Therefore, the respondents are directed to consider as under :
a To treat the ex-employee as having being medically invalidated as on 7 PP8.c004, the date on whi ch ihe competent medical authority has declared the ex-employee as medically unfit for all categories.
& H}) AML eligible consequential like family pension, terminal benehits, gratuity etc as per extant rules al ong with arrears be granted j-
and paid to the applicant based on (1) above.
i} To consider the case of the son of the applicant for COMpassionatie recruitment, iv} Time allowed to implement | the order is 3 months from the date of receipt of this order.
Vv} With the above directions the OA is allowed.
fT as be costs, sae ant