Central Administrative Tribunal - Delhi
Shri Jatashankar (Age 43 Years) vs Union Of India And Others Through on 9 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 4279/2011 Reserved On:28.11.2013 Pronounced on:09.12.2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (J) Shri Jatashankar (Age 43 years) S/o Shri Ambika Prasad C/o Shri Rajman Tiwari R/o B-162/5-A, Gali No.10, Shanty Mohila (Shiv Mandir Wali Gali), New Usmanpur, Delhi-110053. Applicant By Advocate: Shri A.K. Bhakt. Versus Union of India and Others through 1. The Secretary, Ministry of Railway, Rail Bhawan, Rafi Marg, New Delhi. 2. General Manager, Northern Railway, Baroda House, New Delhi. 3. The Chief Material Manager, DMW Patiala. 4. District Controller of Stores, P.H.II DCW Patiala, Punjab. Respondents By Advocate: Shri Shailendra Tiwari. ORDER
Honble Mr. G. George Paracken, Member (J) In this Original Application, the Applicant is seeking an order setting aside the impugned order of the Respondents dated 02.02.2011 removing him from service. He has also sought a direction to reinstate him in service with all consequential benefits.
2. The brief facts of the case are that the Applicant was initially appointed as a casual labourer and later on, after granting temporary status, regularized in service. According to him, due to his mental disorder, he was not able to attend his duties with effect from 01.05.1999 (After-Noon). As the Applicant has not returned to his house on that date, one of his family members, namely, Shri Chandrika Prasad went to his office on 17.06.1999 to find out his whereabouts. It was only then he came to know that the Applicant has not been attending office since 31.05.1999. As the search of the Applicant by the members of his family failed, Shri Chandrika Prasad reported the incident to the local police station Urban Estate District Patiala on 27.06.1999. The Applicant has filed a copy of the said report with this Original Application. According to the Applicant, the said relative had also informed the aforesaid position to the Respondents by post on 27.06.1999 itself and a copy of the same has also been annexed with this OA. As there was no hope of tracing the Applicant and the family was in great distress, the Applicants wife has made a representation to the Respondents to grant her appointment on compassionate ground. However, the Respondents without going into the aforesaid facts, initiated disciplinary proceedings against the Applicant and finally he was removed from service vide order No.E-308/DCW/STORES/DEPOT/03-2002 dated 16.04.2003. According to the said order, the Applicant was found absent from duty from 31.05.1999 (After-Noon). A number of telegrams were sent to him to resume duty but neither he resumed duty nor he gave any intimation about his absence. Accordingly, a major penalty charge sheet No.E-308/DCW/STORES/DEPOT/03-2002 was issued to him on 03.04.2002. The Article of Charge framed against him was as under:-
During the month of May-1999 Sh. Jatta Shanker while functioning as Khalasi/Semi Skilled in the office of the undersigned indulged himself in act of serious misconduct/misbehaviour and failed to maintain devotion to duty as well as engaged himself in act which is unbecoming of Railway servant since Shri Jatta Shanker has absented himself from duty since 31.05.1999 (A/N) unauthorisedly. In spite of telegrams sent to him from time to time for resuming duty, Shri Jatta Shanker has neither resumed duty nor given information for absence from duty till date.
By Acting in such a manner Shri Jatta Shanker has violated the provisions of Rule 3 (I)(ii) (iii) of Railway Service (Conduct) Rules, 1966.
3. The aforesaid charge sheet was sent to him by Registered Post on 06.04.2002 but the same was returned undelivered with the remarks person who has to receive it remains out without intimation. No hope that he will return, hence returned. Thereafter, the charge sheet was pasted at his working place in the presence of three staff members on 03.05.2002. As the Applicant did not turn up, Shri Sunil Kumar, DMS-I was appointed as the Enquiry Officer. The Enquiry Officer sent a notice to his permanent address by Registered Post. The same was also returned unserved with the remarks the person who has to receive it remains out and his family members refuse to accept it, hence returned. Thereafter the Enquiry Officer fixed the date of enquiry on 18.09.2002, and the Applicant was directed to appear on that date vide letter No. No.DCW/P/DAR/03 dated 26.08.2002 through Registered Post. Since the Applicant failed to attend the enquiry on 18.09.2002 the Enquiry Officer adjourned the matter to 07.10.2002. Again the said letter was returned undelivered with the remarks the person who has to receive it remains out and his family members refuse to accept it, hence returned. The Enquiry Officer again fixed the date of inquiry on 28.10.2002 and the Applicant was informed about the said date vide letter No.DCW/P/DAR/03 dated 16.10.2002. He was also informed by Registered Post at his permanent address and the same was returned with the remarks the person who has to receive it remains out and his family members refuse to accept it, hence returned. Thereafter, the Enquiry Officer conducted the enquiry ex-parte and submitted his report on 02.11.2002. The findings of the Enquiry Officer were as under:-
As per records of attendance register he is unauthorized absence since 31.05.1999 (A/N) to till date and he has also failed to attend the inquiry even most of the envelopes received back with postal remarks that it is hoped he will not come. It proves the charges framed against him are correct.
4. A copy of the aforesaid report of the Enquiry Officer was sent to the Applicant at his permanent address by Registered Post on 16.01.2003 but the same was returned undelivered with the remarks the person who has to receive it remains out and his family members refuse to accept it, hence returned. Thereafter, the aforesaid enquiry report and daily proceeding report were pasted in the Notice Board at his working place on 04.02.2003 but no intimation was received from the Applicant. In the above facts and circumstances of the case, the Disciplinary Authority held that the Applicant was neither bothered to intimate the office about his absence nor he turned up to join his duty. During the enquiry also, the charge of unauthorized absence was proved beyond any doubt. Thereafter, the Disciplinary Authority came to the conclusion that the Applicant was guilty of lack of devotion to duty and ends of justice would be met if he is punished with removal from service. Accordingly, vide order dated 16.04.2003, he was removed from service with immediate effect. The relevant part of the said order is reproduced as under:-
I have carefully gone through the details in your case in reference to the memorandum of major penalty charge sheet bearing No.E-308/DCW/Stores/Depot/03-2002 dated 03.04.2002 due to unauthorized absence from duty since 31.05.1999 (A/N) till date and inquiry report of dated 21.11.2002 submitted by inquiry officer and several registered letters returned back with remarks of postal authorities as mentioned above. It has been seen that neither you have bothered to intimate this office about your absence nor you have turned up to join your duty till date. During inquiry, charges of your unauthorized absence have been proved beyond any doubt. By acting in such a manner you have violated the provision of Rule 3 (I)(ii) (iii) of Railways service conduct Rules, 1966.
After considering all the facts and circumstances of the case, I have come to the conclusion that you are guilty of lack of devotion to duty.
I have further decided that the ends of justice would be met if you are punished with the penalty of removal from service. As such you are removed from Railway service with immediate effect.
Under Rule 18 of the Railway servants (Discipline & Appeal) Rules, 1968, an appeal lies against these orders to Dy.CO-II/DCW/Patiala proved:
(i) The appeal is submitted through proper channel within 45 days of the receipt of this notice.
(ii) The appeal does not contain improper/disrespectful language.
You are to acknowledge the receipt of this letter.
5. According to the Applicant, he was later on found like a mad man in an Ashram in Ayodhya and one Shri Ram Shankar who was known to him took him to his house on 23.04.2006. Thereafter, the Applicants wife took him to the concerned police station in Patiala District on 27.04.2006 to report that he was found in the aforesaid manner. On the same date she has also made a representation to the Respondents to reinstate the Applicant and also to give him medical treatment. Thereafter, the Applicant himself was undergoing medical treatment for his mental problem as per the prescriptions produced by him from District Hospital, Faizabad dated 18.06.2006, 01.07.2006, 07.08.2006, 03.11.2006, 17.11.2006, 22.12.2006, 19.04.2007, 21.06.2007, 19.07.2007, 16.10.2007, 21.12.2008, 29.01.2008, 23.08.2008, 20.04.2009 and 27.02.2011. According to the aforesaid medical papers, he was getting treatment for his mental disorder and he has been taking various medicines for its care. He has also submitted that because of his sickness, he could not make as appeal against the order of the Disciplinary Authority dated 16.04.2003 within the stipulated period of 45 days. The Applicants wife has, therefore, made a representation to the Honble Minister for Railways but the Store Controller, Diesel Loco Modernisation Work where he was previously working, vide his letter dated 10.10.2008, informed the Applicant that he had already been removed from service vide order dated 16.04.2003 and he had not filed any appeal against it within the stipulated period of 45 days provided in the Rules. Therefore, it is impossible to reappoint him in service again. However, she was informed that if there was anything payable to her husband, she should contact to Chief Personnel Officer, DMW, Patiala.
6. Thereafter the Applicant filed revision petition under Rule 25 of Railway Servants (Discipline & Appeal) Rules, 1968 on 12.05.2009. However, the Respondents did not consider the same. He had, therefore, approached this Tribunal vide OA No. 182/210 and the same was disposed of vide order dated 29.04.2010. While disposing of the said OA, this Tribunal directed the Respondents to reconsider the case of the Applicant in view of the fact that there are no rules and instructions regarding missing Government employees and no such consideration was given to the Applicant. The relevant part of the said order is as under:-
We are, therefore, of the view that since there are rules and instructions relating to missing Government Employee, which do not seem to have been taken in view while passing the impugned orders, let the respondent reconsider the case of applicants husband in view of the submissions noted above as well as the other ground put forward by the applicant in the OA and take a decision on the prayer therein by treating it as the applicants representation in that regard informing her by a reasoned and speaking order within a period of 3 months from the date of receipt of a certified copy of this order. The OA is disposed off in the above terms. No costs.
7. After the aforesaid order, the Appellate Authority, vide its order dated 24.07.2010 stated that he had gone through the disciplinary case against the Applicant and observed that as per record, a complaint was lodged with Police Station Urban Estate-II, Patiala vide Daily Diary S.No.18 dated 27.06.1999 by Shri Chandrika Prasad, a relative of the Applicant that he was not traceable. On 23.12.2004 and 27.12.2004 the Police had also informed he was not traced. However, he was called by the Inquiry Officer vide Registered letters No.DCW/P/DAR/03 dated 26.08.2002, 24.09.2002 and 16.10.2002 sent at his home address to attend inquiry. But all the time, the registered letters were received back with the remarks by Postal department that the recipient reside outside without information and the family members refused to inform his whereabouts. The other relevant observations and decision of the Appellate Authority are as under:-
(vi) As far as your medical treatment is concerned, it is an afterthought since you have already been removed from service.
(vii) Based on the Inquiry report findings and available records, the penalty of removal from service was imposed by the Disciplinary Authority vide NIP bearing No.E-308/DCW/Stores/Depot03-2002 dated 16.04.2003 under provision of Railway Servants (Discipline & Appeal) Rules, 1968. Under the said provisions you could have filed an appeal to Appellate Authority which you failed to file within a stipulated period. Despite the fact, your wife made representation to the department regarding your reinstatement asserting that you have surfaced on the scene but the department had rejected her claim because the appeal made by your wife was not in accordance with the provisions as laid down under Rule 18 of Railway Servants (Discipline & Appeal) Rules, 1968 which emphasize the filing of appeal under Rule 18 only by the charged official and not by the relative.
(viii)Your have further failed to file an appeal to Appellate Authority within stipulated period of 45 days against the orders of Disciplinary Authority.
(ix) In the OA, you have asserted that you were found like a mad on 23.04.2006 and had been under treatment of your mental disorder which is considered as an afterthought and non-convincing in the absence of any solid and valid proof for the absence period.
(x) You were also afforded personal hearing by the undersigned on 02.07.2010. During the hearing I did not find any abnormal behaviour during your personal hearing and your mental status seems to be normal. During the personal hearing regarding your unauthorized absence, you stated that you met with some Sadhus in the train while you were on the way to your native village on 31.5.1999 and remained with them till you returned back to your home on 23.04.2006. Your contention to this effect without any appropriate antecedents is neither convincing nor justifiable.
(xi) From the remarks of Postal authority as mentioned under para II, it is clear that it was in the knowledge of family members, but they intentionally did not disclose your whereabouts and even refused to receive the registered letters sent to you by the Inquiry Officer as well by the Disciplinary Authority.
As far as claim of your missing is concerned, the contention does not seem to be authentic and you had reported in personal hearing on 02.07.2010, hence, it cannot be treated as a case of missing rather it is your unauthorized absence. Therefore, the course of action adopted by the Disciplinary Authority is just, fair and appropriate.
In view of above facts, I do not find any reasons to modify the decision of Disciplinary Authority for imposing the penalty of removal from service. Hence I uphold the penalty imposed by the Disciplinary Authority vide order dated 16.04.2003. The appeal is disposed of.
Under Rule 25 of Railway Servants (Discipline & Appeal) Rules, 1968, a Revision Petition against these orders lies to CMM, DMW/Patiala and under Rule 24 of COS, DMW/PTA provided-
Revision petition is submitted within 45 days of receipt of these orders.
It does not contain any disrespectful or improper language.
Your are requested to acknowledge the receipt of these orders.
8. The Applicant filed a Revision Petition against the aforesaid order of the Appellate Authority and the Revision Authority vide order dated 02.02.2011 observed that the Applicants submission regarding medical treatment was only an afterthought. As far as his claim regarding missing is concerned, the Revision Authority held that it was not authentic and his case could not be treated as a case of missing person rather it was rightly treated as a case of unauthorized absence. As far as the FIR filed by the Applicants relative was concerned, the Revision Authority held that mere filing an FIR does not provide a ground to believe that a person was really missing. Similarly, the letter was received on 08.07.2003 from his wife Smt. Sarla Devi in which she mentioned that her husband was missing since 01.06.1999 and an FIR in that regard was lodged at Urban, Patiala police post on 27.6.1999 by his relative was also not in disciplinary case file. However, after going through the Inquiry report and final order dated 16.4.2003 of the Disciplinary Authority it could clearly be made out that both the Inquiry Officer and the Disciplinary Authority were oblivious of the FIR No.18 dated 27.06.1999 upto to drafting of Inquiry Report and issuing of the notice imposing penalty (NIP). In fact the said FIR figured in the disciplinary case file only after imposition of penalty of removal from service vide final order dated 16.4.2003 of the Disciplinary Authority. The Revision Authority has also observed that the copy of the representation of the Applicants wife dated 27.6.1999 mentioned in the Applicants revision petition dated 13.09.2010 was not available in the record of the disciplinary case file. Further, according to the Revision Authority, if the Applicant was really missing during the period in question, his family would have responded to the correspondence made by the Disciplinary Authority and Inquiry Officer during disciplinary proceedings. Moreover, the Applicant himself has accepted in his revision petition that several letters were returned from his home address. Further according to the Revision Authority, it is on record that, vide letter dated 3.5.2006, his wife had informed about the return of the Applicant and she herself had attached some photocopies including the one dated 24.12.2001, inter alia, mentions that he had been recognized/seen in a Mahants asharam at Ayodhya which implies that his family was aware of his existence. However, he may not have been under their control or he was not willing to serve the Railway. In any case, neither he returned to his unit nor he advised about his whereabouts. Therefore, according to the Revision Authority, there was no reason to modify the order of the Disciplinary Authority imposing the penalty of removal from service upon the Applicant.
9. The Applicant has challenged the aforesaid orders in this OA on the ground that he had already rendered 11 years of continuous service and he had an unblemished service record. He has also stated that he was missing due to mental disorder and the Respondents are not appreciating the aforesaid fact. He has also stated that unless he was not suffering from mental illness, there was no need for the medical authorities to prescribe medicines for the same. He has also pointed out that his relative had filed an FIR before local police station at Patiala District, Punjab immediately when it was realized that he was missing. Again, when he was found, they informed the police accordingly. The other contention of the Applicant was that his wife has duly informed about his missing to the Respondents but they did not take up any action in the matter. The Disciplinary Authority, Appellate Authority and the Revisional Authority also did not apply their mind while passing the aforesaid orders.
10. The Respondents have filed a reply on the same line as in their impugned letter dated 02.02.2011 and in the earlier order of the Appellate Authority dated 24.07.2010.
11. We have heard the learned counsel for the Applicant Shri A.K. Bhakt and the learned counsel for the Respondents Shri Shailendra Tiwari. We have also gone through the relevant file of the Respondents made available to us. The admitted facts in this case are that the Applicant has not been attending his duty with effect from 31.05.1999. The relatives of the Applicant had reported the factum of his missing from 31.05.1999 to Police Station at Patiala on 27.06.1999 and his wife had informed the Respondents about his missing. The Revising Authority in its order dated 02.02.2011 has not denied those facts. Only what he says that the copy of the FIR and copies of the letters of the Applicants wife dated 27.06.1999 and 08.07.2003 were not placed in the Disciplinary Authoritys file and both the Disciplinary Authority and the Enquiry Officer were oblivious of those documents. His contention that mere filing of an FIR does not provide a good ground to believe that a person was missing cannot be accepted as an answer to the decision of the Respondents to assume that the Applicant was on unauthorized absence. In fact, the Respondents themselves have admitted that as per record, a complaint was lodged with Police Station Urban Estate-II, Patiala vide Daily Diary S.No.18 dated 27.6.1999 by Shri Chandrika Prasad one of the relatives of the Applicant that he was not traceable. They have also admitted that the police themselves have informed them on 23.12.2004 and 27.12.2004 that Applicant was not traced so far. When all the said information was in the knowledge of the Respondents, the Disciplinary Authority should not have taken the hasty and arbitrary decision to initiate disciplinary action against the Applicant on 03.04.2002 on the charge of unauthorized absence from duty. When an employee is reported to be missing, it is the duty of the Respondents to find out the veracity of such a report before jumping to the conclusion that he was on unauthorized absence. They should have been in contact with the police to find out the progress made by them in tracing the missing employee. After ascertaining that the employee was still missing, the only course available to the Respondents was to wait for 7 years to declare him as a missing person and settle his terminal dues. Section 108 of the Indian Evidence Act, 1872 which provides as under:-
108. Burden of proving that person is alive who has not been heard of for seven years.- 1[ Provided that when] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is 2[ shifted to] the person who affirms it.
Instead, the Enquiry Officer has chosen to continue with the disciplinary proceedings against the Applicant. As an empty formality, he was also sending telegrams after telegrams to the missing person and when all those telegrams were returned unserved upon the Applicant, he, in an arbitrary manner, assumed that the Applicant was not willing to join the duty back. The explanation given by the Respondents in this regard that the Disciplinary Authority was not aware of those missing person report with the police and the intimation given by the Applicants relative about his missing is also unacceptable. It only shows lack of coordination in the Respondents own administration and nothing else. The right hand did not know what the left hand was doing. Further, the Respondents own record shows that the Enquiry Officer vide his letter dated 22.12.2004 to the Chowki Incharge, Urban Estate Chowki, Patiala dated 22.12.2004 asked for status of the aforesaid FIR so as to deal with his case accordingly. The police authorities have informed the Respondents on 23.12.2004 and 27.12.2004 that he was still not traceable. Despite the aforesaid communications, the Enquiry Officer or the Disciplinary Authority arbitrarily came to a conclusion that the Applicants absence was un-authorized. When they are aware that there was an FIR regarding missing of the Applicant from 01.05.1999, they should not have ignored it. Again, it is surprising to see that even though the Respondents have claimed that the disciplinary proceedings under Rule 18 of the Railway Servants (Discipline & Appeal) Rules, 1968 was initiated against the Applicant and an enquiry was held, no evidence was brought on record against the Applicant during the enquiry. The Enquiry Officer did not record the statements of any of the listed witnesses. Even though there were two listed documents and four listed witnesses, none of them were summoned during the enquiry proceedings. According to the Enquiry Officer, ex-parte enquiry was held as per the records of the charge sheet. Thereafter, the Enquiry Officer submitted his report on 02.11.2002. The operative part of the said report as under:-
As per records of attendance register he is unauthorized absence since 31.05.1999 (A/N) to till date and he has also failed to attend the inquiry even most of the envelopes received back with postal remarks that it is hoped he will not come. It proves the charges framed against him are correct.
12. The Apex Court has held in Dr. Ramesh Chandra Tyagi Vs. Union of India 1994 (2) SCC 416 that ex-parte enquiry held without sending the notice properly is an invalid enquiry. The relevant part of the said judgment reads as under:-
May be that the appellant was avoiding it but avoidance does not mean that it gave a right to Enquiry Officer to proceed ex parte unless it was conclusively established that he deliberately and knowingly did not accept it. The endorsement on the envelope that it was refused, was not even proved by examining the postman or any other material to show that it was refusal by the appellant who denied on oath such a refusal. No effort was made to serve in any other manner known in law. Under Postal Act and Rules the manner of service is provided. Even service rules take care of it. Not one was resorted to. And from the endorsement it is clear that the envelope containing charge-sheet was returned. In absence of any charge-sheet or any material supplied to the appellant it is difficult to agree that the inquiry did not suffer from any procedural infirmity. No further need be said as the appellant having been removed for not complying with the transfer order and it having been held that it was invalid and non est the order of dismissal falls automatically.
13. In view of the above position, by no stretch of imagination, it can be said that the aforesaid enquiry proceeding is based on any evidence. Rather, report of the Enquiry Officer is without any evidence and, therefore, perverse. The Disciplinary Authority, the Appellate Authority and Revision Authority have also not bothered to apply their mind.
14. We have also seen that the Applicant has been undergoing treatment from the Government Hospital for his mental disorder. He has produced a number of prescriptions from the District Hospital, Faizabad which, prima facie, shows that he was a case of mental disorder.
15. In the above facts and circumstances of the case, we allow this OA. Consequently, we quash and set aside the impugned order dated 02.02.2011, Enquiry Officers report dated 02.11.2002, Disciplinary Authoritys order dated 16.04.2003, Appellate Authoritys order dated 24.07.2010 and the Revisional Authoritys order dated 02.02.2011. As the Applicant has been missing with effect from 31.5.1999 and he was traced only on 23.04.2006, the Respondents shall treat aforesaid period as per rules applicable in the cases of missing persons who have been traced later. In case there are no rules in that regard, the said period shall be treated as dies not (without any break in service). As the Applicants wife brought him to the Respondents on 27.04.2006 and requested them to provide him medical treatment and the Respondents refused to entertain her request, the Applicant shall deemed to have remained on medical leave from that date till 08.01.2010, i.e., the date on which the applicant has filed OA 182/2010 (supra) seeking reinstatement in service. From the said date, Applicant shall deemed to have rejoined duty and his service shall be treated accordingly. However, since the Applicant has not worked for all these years, his salary and allowances shall be restricted from 08.01.2010 as indicated above. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
16. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh