Central Administrative Tribunal - Delhi
Shri Dharmender Kumar Yadav vs Union Of India Through on 3 August, 2009
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.503/2009 Monday, this the 3rd day of August 2009 Honble Shri Shanker Raju, Member (J) Honble Shri N D Dayal, Member (A) Shri Dharmender Kumar Yadav s/o Shri Jagan Nath Yadav working as Khallasi under Sr. Section Engineer Northern Raiwlay Hazrat Nizamuddin, New Delhi ..Applicant (By Advocate: Ms. Meenu Mainee) Versus Union of India through 1. General Manager Northern Railway, Headquarters Office Baroda House, New Delhi 2. Divisional Railway Manager Northern Railway, State Entry Road New Delhi 3. Sr. Section Engineer (C&W) Coaching Depot Northern Railway Hazrat Nizamuddin New Delhi ..Respondents (By Advocate: Shri P K Yadav) O R D E R (ORAL)
Shri Shanker Raju:
On a civil consequence, i.e., loss of pay, principle of audi alteram partem is mandated to be followed as a pre-decisional hearing as ruled by the Apex Court of Tejshree Ghag & others v. Prakash Parashuram Patil & others, (2007) 2 SCC (L&S) 45.
2. In the above backdrop, applicant whose services stood dispensed with on termination on remaining absent allegedly, preferred OA-2867/2002, which was decided in his favour on 24.11.2005 directing the respondents to reinstate the applicant with all back-wages but giving liberty to them to take appropriate action in accordance with law.
3. An act of the respondents whereby after reinstating the applicant and granting him all back wages, an order passed on 21.4.2007 deducted 142 days as absence by treating it dies non and recovery has since been started against the applicant.
4. Learned counsel for applicant would contend that this has been done without affording any reasonable opportunity to show cause. Moreover, by referring to an RTI received by the applicant on 26.6.2008, it is stated that as per the records the employee was not found to be on unauthorized leave for a period of 142 days.
5. On the other hand, learned counsel for respondents vehemently opposed the contentions and stated that though no show cause notice was issued, yet the service records of the applicant clearly indicate that he had been found absent unauthorizedly for a period of 142 days.
6. With regard to intervening period, it is stated that the same has been treated as on duty and back wages have already been granted.
7. Learned counsel further stated that the question of remaining unauthrizedly absent has not been disputed.
8. On a careful consideration of the rival contentions of the parties and perusal of records, we are of the considered view that the question of fact and a contentious one cannot be gone into by the Court. However, an RTI clearly indicates that the Coaching Depot Office has acknowledged that there is nothing on the record, which shows that the applicant was unauthorizedly absent for 142 days. Moreover, our directions issued earlier were to the effect that for want of initiating disciplinary proceedings, the absence was not established. Having, despite opportunity, not initiated the disciplinary proceedings against the applicant, there is a presumption in law that the applicant was not unauthorizedly absent.
9. Leave apart the basic component of principles of natural justice when one may not be condemned unheard, as the applicants salary, which he has already drawn, being taken-away, non-issue of show cause notice and a prior reasonable opportunity not being afforded to the applicant, suddenly vitiates the order and the action of the respondents.
10. In the result, for the foregoing reasons, OA is allowed. Respondents are directed to treat the period of 142 days as on duty and recovery, if already effected, shall be restored back to the applicant. It is also pertinent to note that once the aforesaid period has been treated as not spent on duty, it will hold good for all purposes. This shall be done within a period of two months from the date of receipt of a copy of this order. No costs.
( N D Dayal ) ( Shanker Raju ) Member (A) Member (J) /sunil/