Central Administrative Tribunal - Ernakulam
Sathyanarayan Meena vs Southern Railway on 13 December, 2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.180/0033/2022
Friday, this the 13th day of December, 2024
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mrs. V.RAMA MATHEW, ADMINISTRATIVE MEMBER
Satyanarayan Meena, Aged 43 years, S/o Kalu lal Meena
Ex Clerk Mechanical/Mangalore Junction/ Southern Railway/
Palakkad Division Residing at: Village and Post Mitoon
Aklera tehsil, Jhalawar, Rajasthan 326032
-Applicant
[By Advocates: Mr. T.C.Govindaswamy, Mrs.Kala T. Gopi]
Versus
1. Union of India represented by the General Manager, Southern Railway
Head Quarters Office, Park Town P.O., Chennai-600 003
2. The Chief Rolling Stock Engineer/Coaching Southern Railway
Head Quarters Office, Park Town P.O., Chennai-600 003
3. The Additional Divisional Railway Manger Southern Railway
Palakkad Division Palakkad-678002
4. The Senior Divisional Mechanical Engineer Southern Railway
Palakkad Division Palakkad-678002
- Respondents
[By Advocate: Mr. Thomas Mathew Nellimoottil, SPC]
The application having been heard on 25.10.2024, the Tribunal on
13.12.2024 delivered the following:
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O.A.No.33/2022 2
ORDER
Justice K.Haripal Applicant is a native of Rajasthan. He commenced service in the Mechanical Department of Southern Railway, Palakkad Division on 23.05.2006 as Mechanic. Later, on being medically decategorised, he was declared unfit for Bee-One and Bee-Two posts and fit for Cee-One and below only, which does not involve safety. Thus he was charged against a supernumerary post from the date of medical decategorisation and was maintained as Technician Grade II (Signal). Then he was given alternate appointment as Office Clerk under the Senior Section Engineer/Carrier and Wagon with effect from 26.09.2012.
2. While so, it is the common case that he had applied for 10 days' leave on average pay and proceeded to the native place. He had to rejoin duty on 14.04.2017 on the expiry of the date. But he did not rejoin duty, which prompted the respondents to initiate disciplinary proceedings under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, the Rules for short, and was served with Standard Form No.5 Memorandum, as part of initiating disciplinary proceedings for imposing 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 3 a major penalty. He did not respond the same. Ultimately, disciplinary proceeding was initiated and an enquiry officer was appointed, who also issued notices to him, which also were not responded and finally, Annexure-R9 report was filed on 29.03.2018 finding him guilty of unauthorised absence from 14.04.2017. It is shown that the report was also sent to him which was not responded and thus by Annexure-A1 order dated 13.07.2018 he was found guilty of unauthorised absence and a penalty of removal from service was ordered.
3. Meanwhile, on 18.06.2018 he reported back for duty without producing any medical certificate for the period of absence from 14.04.2017 to 17.06.2018. As he did not produce any private medical certificate, he was directed to the Central Divisional Medical Officer, Mangalore for further procedure for medical fitness certificate for readmitting for duty. From there, he was referred to Railway Hospital, Perambur, where he underwent treatment and then on 17.07.2018, Senior Divisional Medical Officer, Mangalore issued a fitness certificate. He resumed duty on 18.07.2018 and on 19.07.2018 Annexure-A1 penalty advice was served on him removing him from service from that date. On 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 4 20.07.2018 he preferred an appeal before the 3 rd respondent, which was dismissed on 09.07.2020 confirming Annexure-A1 order. Then he filed a revision, which was also dismissed by the 2 nd respondent. There is near unanimity in the above sequences of events.
4. Annexures-A1 to A3 are under challenge. According to the applicant, he has been removed from service in an arbitrary manner without a speaking order and without due application of mind. Annexures-A1 to A3 were issued without following principles of natural justice and violative of Articles 14, 16 and 311 of the Constitution. He contends that he was denied reasonable opportunity to defend his case. He was not served with the proceedings of the enquiry including charge memo and enquiry report. It is not a case of unauthorised absence, but a case of overstay of leave, that too, for reasons beyond his control. There is no element of misconduct on his part. At the time when the disciplinary proceeding was initiated, he was under treatment for mental illness; Annexure-A2 is ultra vires Rule 22 of the Rules. Annexures-A1 to A3 were issued without considering his mental position. The penalty imposed is disproportionate to the charges levelled against him. He 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 5 belongs to Scheduled Tribe community and that injustice has been meted out to him. Therefore, Annexures-A1 to A3 are sought to be quashed and directions are sought against the respondents to reinstate him with all consequential benefits.
5. Respondents have opposed the claims of the applicant. As stated earlier, the sequences of events are not in dispute. According to them, everything was done following the provisions of law. Since he remained unauthorisedly absent from 14.04.2017, disciplinary proceeding with a view to impose major punishment was initiated against him and Standard Form No.5 charge sheet was issued. As he was absent from station, the charge memo was sent in his last known address in the native place and postal receipt has been produced. Rules also provide for sending communications in the last known address, if the addressee is not found. Similarly, the charge memo was pasted on the office notice board in the presence of two serving Railway employees. There was no response from his side. Then by Annexure-R5 order dated 14.11.2017 Sri.K.T.Sunil, Chief Loco Inspector was appointed as the enquiry officer. The enquiry officer had issued notices on enquiry 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 6 fixing dates on 05.01.2018, 15.02.2018 and 29.03.2018 by registered post in his last known address. But he did not respond. Thus after examining the administrative witnesses and verifying records, Annexure-R9 report was filed finding that the charge raised is proved. According to the respondents, then the Annexure-A1 order was passed imposing penalty of removing him from service. By the time, the applicant had rejoined duty and Annexure-A1 was served on him on 19.07.2018. Appeal and revisions were also rejected.
6. The respondents submitted that everything was done following the procedures laid down; sufficient opportunities were afforded to him to defend the charge sheet and to appear before the enquiry officer. All through out, he remained ex parte and now he cannot say that he was not afforded opportunity. So, the O.A. is sought to be dismissed.
7. Applicant filed a rejoinder reiterating that he was only overstaying after availing leave sanctioned to him. During the period he was undergoing treatment for schizophrenia, which is evident from records. He had also produced Annexures-A4 and A5 before the 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 7 appellate authority, which is evident from Annexure-A2 order. But it was never considered by the appellate or revisional authority. So, he contended that there was no misconduct on his part.
8. The respondents filed additional reply statement stating that he is a habitual absentee. Various spells of his absence from 19.08.2006 to 18.07.2018 have been tabulated. Earlier also, he was imposed with two punishments one by withholding one set of privilege pass and then was censured on 12.06.2013 and 06.12.2013 respectively. So, according to them, punishment was imposed after due consideration of his service records.
9. In the additional rejoinder it is submitted that since he was suffering from schizophrenia, which is evident from Annexures-A4 and A5, he could not contact the officials at Palakkad. The respondents also do not dispute the correctness of the genuineness of his illness or treatment in authorised hospitals.
10. In additional reply to the rejoinder it is submitted that during his entire service he was absent from duty for about 2 years 11 months and 23 days. He had reported for duty on 18.06.2018 without any 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 8 medical certificate.
11. We heard learned counsel on both sides at great length.
12. In order to buttress the contention that the applicant was only overstaying, Sri.T.C.Govindaswamy, learned counsel for the applicant relied on the decision reported in Bhagwan Lal Arya v. Commissioner of Police Delhi and others [AIR 2004 SC 2131]. According to the learned counsel, absence from 14.04.2017 is not in dispute. But it was not unauthorised. It was a case of overstay. Since he was suffering from mental ailment, even though documents were produced before the appellate authority, that were not considered and punishment is highly disproportionate. Annexures-A1 to A3 are not speaking orders. There is no discussion on the medical records in Annexures-A2 and A3. Absence from duty was not purposeful. His contention in appeal and revision were not properly appreciated.
13. On the other hand, Sri.Thomas Mathew Nellimootil, learned Standing Counsel for the respondents, submitted that the applicant does not deserve any sympathy. It is certain that he is a habitual absentee. This time he unauthorisedly absented for 461 days. Only after issue of 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 9 the penalty advice the medical records were produced, before the appellate authority. There is no procedural lapses. Orders were passed after giving sufficient opportunity. The learned Standing Counsel for the respondents relied on the decisions reported in Coimbatore District Central Co-operative Bank v. Coimbatore District Central Co-operative Bank Employees Association and another [(2007) 4 SCC 669], R.Mahalingam v. Chairman, TNPSC and another [AIR 2013 SC 2225], a Division Bench order of this Tribunal in O.A.822/2018, Union Of India v. Subrata Nath [2022 18 SCR 605], State of U.P v. Sheo Shanker Lal Srivastava & Ors [AIR 2006 SC 3548] etc. and submitted that the disciplinary authority had ensured that all procedural formalities are correctly followed, there is no procedural lapses. Every opportunity was given to the applicant that the punishment imposed on him, who is a habitual absentee, is not excessive or shocking to the conscience of the Tribunal. It is also meaningless to allow such an employee to continue in public employment and therefore, he sought for dismissing the O.A.
14. We have carefully considered the rival contentions and also the sequences of events that led to Annexures-A1 to A3 documents 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 10 passed by the respondents, by which the applicant stands removed from service.
15. It is true that Annexure-R9 is an ex-parte order. Annexure-R2 dated 22.08.2017 was sent to his last known address in Rajasthan. Similarly, the enquiry officer, who was appointed under Annexure-R5 dated 14.11.2017, also tried to appraise him the dates of enquiry on 05.01.2018, 15.02.2018 and 29.03.2018. Thereafter, the report was also sent in his last known address; the applicant had rejoined duty on 18.06.2018 and then was sent for getting a fitness certificate from the Railway Hospital, Mangalore. From Mangalore he was sent to Perambur hospital and after treatment for some times, he was found fit to rejoin duty and thus he reported on 18.07.2018 and Annexure-A1 was served on him on 19.07.2018 and he was terminated from service.
16. At the outset, we would like to point out that the applicant had proceeded on leave after giving Annexure-R1 application for 10 days from 04.04.2017 to 13.04.2017. The said application was allowed, following which he had proceeded to his native place. But he did not turn up till 18.06.2018. Meanwhile the entire proceedings were 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 11 completed and he was ordered to be removed from service. It has also come out that subsequently the Annexures-A4 and A5 documents were submitted before the 3rd respondent, the appellate authority. The Annexure-A4 is a medical certificate issued from the Office of the Government Community Health Center, Aklera, Distt-Jhalawar, Rajasthan. It has been issued by a Medical Board consisting of Dr.M.L.Meena, J.S.Surgeon, Dr.S.S.Naurawat, Senior Medical Officer and Dr.Mohd.Akber, Senior Medical Officer, which reads thus:
"We members of the Medical Board carefully examined Mr. Satyanarayana Meena S/o Kalulal Meena Age 36 yrs, Village Maithoon, Teh. Aklera, Distt. Jhalawar, who is suffering from Schizophrenia & Back Pain since 14-04-2017 to 17-06-2018 and under our treatment.
On examination the medical board is of the opinion that absence of duty from 14-04-2017 to 17-06-2018 was necessary to recover from Schizophrenia & Back Pain.
Now he is fit to resume his duty in the office of SSE/C&W/MAJN in Palghat Division Southern Railway as a Clerk Mechanical Department From 18-06-2018."
Annexure-A5 is a prescription issued on 14.04.2017, where he had attended for treatment for irrelevant talk and back pain for which 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 12 medicines were prescribed. That means, during the period from 14.04.2017 to 17.06.2018 the applicant was under treatment for schizophrenia and back pain in Government Community Health Centre, Aklera, for which the medical certificate has been issued.
17. It is very important to note from Annexure-A2 that such medical certificates were produced before the 3rd respondent appellate authority, but the appellate authority has ignored and preferred not to make any mention about these vital documents. Equally important to say that these documents were placed before the revisional authority as well and they have conveniently forgotten such vital documents, which, in our opinion, should not have been eschewed by the appellate and revisional authority.
18. It is true that the enquiry officer or the disciplinary authority had no occasion to consider the mental status of the applicant on the date when the memo of charges was issued or when enquiry was conducted which was an ex-parte proceedings. Only after issue of Annexure-A1 that the applicant had reported for duty and produced these documents so that the enquiry officer and disciplinary authority 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 13 cannot be blamed for not looking into such a vital aspect. We also should notice that appeal is a continuation of the disciplinary proceedings. The appellate authority should not have eschewed and ignored these vital documents which were produced before him. Both the appellate and revisional authorities proceeded as though such documents were not available at all.
19. In our opinion, Annexures-A4 and A5 give clear picture about the state of mind of the applicant on 22.08.2017, when the charge memo was issued and on subsequent dates when the enquiry proceedings were held. On all these occasions, the applicant was undergoing treatment for schizophrenia. Documents indicate that from 14.04.2017 to 17.06.2018 he was taking treatment for schizophrenia. It is also the admitted position that after rejoining duty on 18.06.2018, since he did not produce any medical fitness certificate, was sent to the Mangalore Railway hospital for obtaining report on his fitness. From Mangalore Railway hospital he was referred to Perambur Railway hospital, which is a higher centre, where he underwent observation and treatment. Even though the medical certificate issued from Perambur 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 14 hospital is not before the Tribunal, it is the undisputed case that he had undergone inpatient treatment in that hospital also and a fitness certificate was issued only on 16.07.2018 with which the applicant had reported for duty on 18.07.2018 and on the following day he was served with Annexure-A1.
20. In our considered view, at the relevant time, that is from 14.04.2017 till a fitness certificate was issued from the Perambur Railway hospital on 16.07.2018 the applicant was under treatment for schizophrenia and was under a a disability. Undoubtedly, schizophrenia is a mental illness, often chronic characterised by abnormal perception which may seriously impair one's thinking process. It is a major disability. Section 2(1)(s) of the Mental Healthcare Act defines mental illness thus:
"mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 15 incomplete development of mind of a person, specially characterised by subnormality of intelligence"
Therefore, he should not have been proceeded against while continuing under such a state of mind, under the provisions of the Rules.
21. In this connection, we cannot take a decision de hors the provisions of the Rights of Persons with Disabilities Act, 2016, hereinafter referred to as the Act. In Section 2(s) of the Act 'person with disability' is defined as 'a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others'. Section 3(3) of the Act says that 'no person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim'. Similarly, Section 20(1) of the Act issues a statutory injunction against a Government establishment from discriminating against any person with disability in any matter relating to employment (emphasis supplied). Section 20(4) says that 'no Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 16 or her service'. It is obvious that the respondents did not consider these very important and vital aspects while considering the case of the applicant. To put it in other words, during the period from 14.04.2017 to 16.06.2018 he was suffering from schizophrenia and everything was done ignoring this very crucial aspect.
22. This important mental state of the applicant was ignored by the respondents while dealing with the case. As noticed, we cannot find fault with the 4th respondent since the disability of the applicant was never conveyed to him at the time when Annexure-R2 charge memo was issued or during the period when the enquiry proceedings were in progress. The enquiry officer had no option but to proceed on the assumption that he was an able bodied person; since the applicant remained ex-parte, Annexure-R9 report was filed which was acted upon by the 4th respondent disciplinary authority and the punishment was imposed.
23. In this setting, since the entire proceedings are vitiated, we need not go into the proportionality of the punishment imposed on the applicant. The authorities relied on by the learned Standing Counsel 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 17 were all on the procedural aspect, on the proportionality issue, the power of this Tribunal in exercising judicial review etc. In the peculiar circumstances, we need not go into such aspects since it has become clear that the applicant was suffering from schizophrenia during the entire period and he could not have been proceeded against. He was suffering from a serious disability, as provided in the Act. Even though the extend of disability or the percentage of disability suffered by him are not before the Tribunal, it is very clear from Annexures-A4 and A5 and the treatment records in Railway hospital, Mangalore and Railway hospital, Perambur that the applicant was out of mind during the period. Annexures-A4 and A5 are not disputed. Similarly, from the Railway hospital also, the respondents might have been appraised that he was suffering from mental disorder, which is a disability as defined in the Act.
24. In this connection, this Tribunal is fortified by the decision of the Hon'ble Supreme Court in Ravinder Kumar Dhariwal another v. the Union Of India and others [2023(2) SCC 209], where an Assistant Commandant in CRPF was proceeded against for major penalty proceedings. At that time, he was suffering from Obsessive Compulsive 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 18 Disorder, OCD, and secondary major depression. Still he was proceeded against, disregarding his disability. Hon'ble Supreme Court considered the case of the said Dhariwal in the context of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and said that he was entitled to get protection under Section 47 of the Act which is pari materia in Section 20 of Act, 2016. We have noticed that under Section 20 such a person suffering from disability cannot be discriminated against and cannot be terminated from service. Hon'ble Supreme Court, after detailed examination of the provisions, have observed that mental health disorders pose a unique challenge in disability rights and adjudication. Very often, such persons are not aware of or are in denial of their mental disability. The duty of providing reasonable accommodation to such persons with disability is sacrosanct. According to the Supreme Court, all possible alternatives must be considered before ordering dismissal from service.
25. Similarly, the Hon'ble Apex Court held that Section 20 of the Act casts a net of protection wider than Section 47 of the PWD Act of 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 19 1995. Hon'ble Supreme Court on that basis quashed the entire proceedings against the applicant, Dhariwal. Concluding the discussion the Apex Court ruled:
"148.2..........Any residual control that persons with mental disabilities have over their conduct merely diminishes the extent to which the disability contributed to the conduct. The mental disability impairs the ability of persons to comply with workplace standards in comparison to their able-bodied counterparts. Such persons suffer a disproportionate disadvantage due to the impairment and are more likely to be subjected to disciplinary proceedings. Thus, the initiation of disciplinary proceedings against persons with mental disabilities is a facet of indirect discrimination."
26. We have no doubt that the said authority would come to the rescue of the applicant on all fours. As the applicant was suffering from a mental disorder like schizophrenia, he should not have been proceeded against and such a vital aspect should have been noticed in all seriousness during the appellate or revisional stage, but the appellate authority as well as the revisional authority winked their eyes to this vital aspect, which is illegal.
27. To sum up, during the period from 14.04.2017 to 17.06.2018 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 20 the applicant was under treatment for schizophrenia. Even though the SF-5 charge and the proceedings and Annexure-R9 report were tried to be communicated to him since he was not fit to stand trial, as always said in the context of a criminal trial, such a person could not have been proceeded against. Even the Annexure-R2, in this backdrop cannot stand judicial scrutiny.
28. Resultantly, we quash Annexures-A1 to A3 orders of the respondents and direct them to reinstate the applicant forthwith on himself producing a fitness certificate. The respondents shall also consider and pass orders as to how his period of absence from 14.04.2017 till the date of rejoining should be treated. The period of absence after the passing of Annexure-A1 also should be regularised, appropriately.
The Original Application is allowed as above. No costs.
(Dated, this the 13th December, 2024)
V.RAMA MATHEW JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ds
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List of Annexures
Annexure A1: A true copy of the Penalty Advice bearing No. J/M 226/
DAR/Abs/7133/MAJN dated 13.07.2018, issued by the 4th respondent.
Annexure A2: A true copy of the Appellate orders bearing No. J/P 226/DAR/Abs/7133/MAJN dated 09.07.2020, issued by the 3th respondent.
Annexure A3: A true copy of the Revisional orders bearing No. P(A) 90/2021/727 dated 13.10.2021, issued by the 2nd respondent.
Annexure A4: A true copy of the medical certificate issued by the medical board of the Community Health Center Aklera bearing dispatch No. 201/18 dated 14.06.2018. Annexure A5: A true copy of the prescription dated 14.04.2017 issued by the Government Community Health Center Aklera, (Govt CHC, Alkera).
Annexure A6: A true copy of the appeal dated 20.08.18 submitted before the 3rd respondent.
Annexure A7: A true copy of letter bearing no. J/M 226/DAR/Abs/SRR dated 29.10.2021 issued by the Senior Divisional Personnel Officer Southern Railway.
Annexure R1: A true copy of LAP request form dated 04.04.2017 Annexure R2: A true copy of Standard Form No.5 dated 22.08.2017 Annexure R3: A true copy of receipt of speed post sent on 27.10.2017 2024.12.13 DEEPA S 15:59:12 +05'30' O.A.No.33/2022 22 Annexure R4: A true copy of Railway Board's letter No. E (D&A) 69RG 6-29 dated 17.11.1970 Annexure R5: A true copy of letter dated 14.11.2017 appointing Shri. Sunil. K.T. CLI/MAJN as Enquiry Officer.
Annexure R6: A true copy of letter dated 20.12.2017 and the receipt of speed post sent on 21.12.2017 Annexure R7: A true copy letter dated 20.01.2018 and the receipt of speed post sent on 20.01.2018 Annexure R8: A true copy letter dated 01.03.2018 and the receipt of speed post sent on 06.03.2018 Annexure R9: A true copy of enquiry report conducted on 29.03.2018 Annexure R10: A true copy of tracking c details obtained from the website of Postal Department using consignment Number Annexure R11: A true copy of acknowledgment dated 19.07.2018 Annexure R12: A copy of the letter No.226/DAR/Abs/7133/MAJN dated 09.08.2018.
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