Central Administrative Tribunal - Ernakulam
Johnykutty K.J. Konattu (H) vs The General Manager on 29 April, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH T.A. NO. 126/2008 Wednesday this the 29th day of April, 2009. C OR A M : HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER Johnykutty K.J. Konattu (H) Thidanadu PO, Erattupetta Kottayam now residing at Konattu (H) Karippalangadu PO Nadukoni, Idukki. ..Applicant By Advocate M/s S. James Vincent, Terry V. James & James Paliyil Vs. 1 The General Manager BSNL. 2 The Divisional Manager, Telecom., Kottayam 3 Sub Divisional Engineer Phones (Commercial) Divisional EngineerTelephones Erattupetta,Pala-686 575 ..Respondents By Advocate Mr. Mathews K Philip, ACGSC The Application having been heard on 1.4.2009 the Tribunal delivered the following:- O R D E R
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER The applicant who absented from service for six years, challenges the termination of his service without following the procedure prescribed under Rule 14 of the CCS (CC&A) Rules, without notice, without conducting inquiry and without payment of terminal benefits for the service rendered by him.
2. According to the applicant, he entered service of Telecom Department as a Line Staff on 2.5.1984. While he was working as Lineman under the Kunnoni Telephone Exchange within the Erattupetta Sub Division, on 30.11.1994 he went to Alleppey to get some financial assistance from one of his friends. As he could not find his friend and thinking about his inability to pay back the various loans availed from financial institutions as well as private individuals, he became mentally unbalanced, wandered around Alleppey for two long years and was admitted to a nearby hospital where he was unconscious and paralysed. The attempts by his family to locate him were not successful. After more than six years of treatment, he was declared fit and discharged. He returned home and approached the Sub Divisional Office, Erattupetta to join duty. He was directed to approach Sub Divisional Office,Kottayam. On enquiry it was revealed that his services were terminated. No notice of termination was served on him nor was he paid the terminal benefits. The applicant submitted representation to the 2nd respondent for reinstatement in service (Ext P-5) which was not responded. Hence he filed this O.A. on the grounds that the procedure prescribed under Rule 14 has not been followed, no opportunity was given to him, the means of livelihood has been taken away without due compliance of rules, no retiral benefits have been granted for the service rendered by him, the unauthorised absence of the applicant was not deliberate it was caused due to his mental illness and his termination was inconsistent with the principles of natural justice. Hence he filed this O.A. seeking to reinstate him in service with all attendant benefits or to pay retrenchment compensation, or to conduct a fresh enquiry from the stage of Ext. P-3.
3. The respondents in the reply refuted the averments in the OA and submitted that the applicant absconded from duty w.e.f. 22.11.1994 without submiting leave application. He took loan from the departmental cooperative society on surety of other officials and borrowed money from money lenders at higher interest. His mother submitted petition dated 14.2.1994 to the Police (Ext. R-1(a). On the above grounds, departmental enquiry was inititated against the applicant (Ext. R-1(b) notice of which sent to his address by registered post was returned undelivered with the remark "Addressee left the station, present address not known." Therefore, the proceedings were held exparte and the inquiry officer found him guilty of the charges. A copy of the inquiry report was sent to him by registered post which was returened undelivered with the postal remark "Absent Undelivered". Thereafter, the punishment of removal from service w.e.f. the afternoon of 1.12.1999 was imposed on him. A copy of the order sent to him was also returned with postal remark "Absent intimation served." They submitted that the representation alleged to have been submitted on 17.12.2002 has not been received by them. They submitted that action against the applicant was taken according to Rule 14 of the CCS (CCA) Rules, 1965. As per Para 63 and 64 of P & T Manual Vol. III, he was removed from service on account of voluntary abandonment of duty, so he is not eligible for retrenchment compensation under the ID Act, 1947.
4. The applicant filed rejoinder reiterating the averments in the O.A. He submitted that he did not abscond from service but was unable to join duty because of his prolonged mental instability. He submitted that neither he nor his family were aware of the imposition of punishment of removal from service.
5. We have heard learned counsel appearing on both sides and perused the documents produced before us.
6. The learned counsel for the applicant argued that the applicant went to Alleppey on 30.11.1994 and fell unfortunately ill and wandered in Alleppey for about two years when he was admitted in the private hospital where he was unconcious and paralysed. According to the learned counsel the applicant, he became fit only on 5.12.2002. He could report for duty only on 17.12.2002. He also reiterated that the enquiry and punishment of removal from service was without notice against the principle of natural justsice and that he has not been given any benefit for the service rendered by him.
7. The learned counsel for the respondents on the other hand argued that an enquiry was ordered against the applicant for absconding vide letter dated 21.11.1995. The notices issued on the given address of the applicant returned with postal remark that the "addressee is absent." The ex-parte enquiry ended in finding the applicant guilty of the charges and the punishment of removal from service w.e.f. 1.2.1999 was imposed on him. No representation as stated by the applicant in the O.A. has been received by the respondents.
8. Having heard the learned counsel for the parties and after perusal of the documents produced before us, we are of the view that the Department is bound to take a decision on the representation of the applicant that he has been wandering in Alleppey and nearby places for more than two years, that the family and the police were unable to trace him and that he was admitted in a private Ayurvedic hospital in Edathua for six years from 3.1.1996 to 29.6.2002. The CI of Police reported vide letter dated 19.2.1998 that applicant's whereabouts could not be traced. It is a fact that the notice of initiation of disciplinary proceedings, (Ext R-1 (b), enquiry report and the punishment of removal imposed on the applicant, sent to the known address of the applicant were returned unserved due to absence of the applicant in the address. The only point that comes up for consideration in the facts and circumstances of the case as submitted by the applicant is whether the Department is duty bound to look into the submission of the applicant in the represetnation submitted by him and take a decision. If the submission of the applicant in Ext. P-5 is true, then his absence from duty cannot be termed as abandonment of service as alleged by the respondents in the article of charges. In the interest of the Department and its employee, the Department should enquire into the facts as submitted by the applicant in his representation and find out the truth.
9. In this view of the matter, we are of the considered opinion that this T.A can be disposed of with the direction to the respondents to dispose of the representation at Ext. P-5 submitted by the applicant, by conducting a prima facie enquiry in to the veracity of the statement of the applicant that he went to Alleppey to meet a friend, fell ill and was under
the treatment of the private hospital for a long period and his present state of health. This shall be done within a period of two months from the date of receipt of this order.
Dated 29th April, 2009.
K. NOORJEHAN GEORGE PARACKEN ADMINISTRATIVE MEMBER JUDICIAL MEMBER