Central Administrative Tribunal - Allahabad
Raj Kumari Devi vs Union Of India on 21 March, 2025
OA No. 57 of 2010
(Reserved on 24.02.2025)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Allahabad, this the 21st day of March, 2025.
Original Application No. 330/00057/2010
Hon'ble Mr. Justice Om Prakash VII, Member (Judicial)
Hon'ble Mr. Mohan Pyare, Member (Administrative)
Raj Kumari Devi, Wife of Late Amresh Prasad Shukla, resident of Village
Basdila, Post Sardar Nagar, District Gorakhpur.
.....Applicant.
By Advocate : Shri S.K. Om
VERSUS
1. Union of India, through the Secretary Ministry of Railway, New
Delhi, Rail Bhawan (New Delhi).
2. General Manager (Personnel) Northern Eastern Railway,
Gorakhpur.
3. General Manager Northern Eastern Railway, Gorakhpur.
4. Divisional Railway Manager, Northern Eastern Railway Varanasi.
5. Divisional Railway Manager (Personnel) Northern Eastern Railway
Varanasi.
6. Assistant Engineer, Northern Eastern Railway Ballia.
....Respondents
By Advocate: Shri Ajay Kumar Rai
ORDER
By Hon'ble Mr. Mohan Pyare, Member (Administrative):
Shri Pradeep Kumar Mishra having authorisation letter from Shri S.K. Om, learned counsel for the applicant and Shri Ajay Kumar Rai, learned counsel for the respondents are present.
RAJEEV KUMAR MISHRA Page 1 of 11 OA No. 57 of 2010
2. By means of this OA, the applicant has sought the following reliefs :
"(i) To issue an order or direction in the suitable nature quashing the impugned order dated 18.12.2009 and 14.12.2009 passed by respondents (Annexure no. and A-1 and A-II).
(ii) To issue a writ, order or direction in the nature of commanding the respondents to pay the retrial dues and family pension etc. alongwith all consequential benefits.
(iii) To issue a writ, order or direction in the nature of mandamus commanding the respondents to summon the original record.
(iv) Issue any other order of direction which the Hon'ble Court may deem fit and proper in the circumstances of the case.
(v) Award the cost of the petition to this petitioner.
(vi) To call for the record and issue a writ, order or direction in the nature of certiorari quashing the order dated 12.10.92, if any."
3. The brief facts of the case are that the applicant is widow of late Amresh Prasad Shukla (deceased employee) who was initially appointed in the Railway on 27.1.1974 as Gang Man. In the year of 1984, when the deceased returned back his home after sanction of leave, as the applicant was seriously ill and due to over exertion the deceased himself fell ill and was on bed for more than 9 months. Due to the illness the deceased lost his mental equilibrium and remained mentally disturbed. Since 26.11.1984 he had been continuously under the medical treatment, he died on 22.06.1999. The death of the deceased is evident from the death certificate issued on 25.03.2002 by the department of medical health and family welfare, Gorakhpur. The name of the deceased was not taken out from the muster sheet. There is no dispute in respect of the service rendered by the deceased as he was getting regular salary while serving the department. On 02.04.2008, the applicant sought intimation by moving an application for completing the required formalities regarding pension and retiral dues of the deceased employee but of no avail. Being aggrieved, the applicant filed an OA No.1005 of 2008 before this Tribunal, which was disposed of on 30.09.2008 with direction to the respondents to decide the pending representation of the applicant by passing a reasoned and speaking order RAJEEV KUMAR MISHRA Page 2 of 11 OA No. 57 of 2010 within a period of three months. In compliance of the order of this Tribunal dated 30.09.2008, the respondents have passed an order dated 02.01.2009 by which the claim of the applicant has been rejected. With regard to settlement dues, family pension and other retrial benefits payable to the applicant, the respondents issued a letter dated 09.01.2009 to Personnel Inspector Ballia stating therein that nothing has been paid to as settlement dues of late Amresh Prasad Shukla Ex Gangman and as such the office of D.R.M. directed Inspector Personnel, Ballia to send pension form duly filled by the applicant (wife of the deceased employee) so that the further steps of settlement dues may be taken. The Senior Section Engineer, Ballia wrote a letter dated 11.02.2009 to Personnel Welfare officer Varanasi stating that an Affidavit may be obtained from the applicant that she is the widow of deceased employee. The Divisional Personnel officer, Varanasi wrote a letter dated 30.07.2009 to Senior Personnel Office, Gorakhpur stating that since the employee was unauthorizedly absent for more than five years, and no departmental proceeding was initiated and that is why the matter shall be sent to Head Quarter for its regularization. The applicant has received a letter dated 26.10.2009 issued by the office of D.R.M. (P) Varanasi stating that no record is available in the office of D.R.M. and such the applicant was directed to produce the record so that settlement dues and family pension be paid to the applicant. In reply to the letter dated 26.10.2009, the applicant has sent a representation on 05.11.2009. The office of the D.R.M. (P) issued a letter dated 08.12.2009 by which it has been intimated that the settlement dues will be paid on 15.12.2009 through Pension Adalat. The applicant has received a letter dated 18.12.2009 issued by the office of the respondents stating therein that a letter dated 14.12.2009 issued by Senior Divisional Personnel Officer Varanasi has been received by which the services of the deceased employee has already been removed vide order dated 12.10.1992 and as such only provident fund and group insurance shall be payable. It is RAJEEV KUMAR MISHRA Page 3 of 11 OA No. 57 of 2010 submitted that the alleged charge sheet, inquiry report as well as removal order dated 12.10.1992 has never been served and nor copy of the same has been sent to the applicant. It is submitted that if the deceased was not available at home to receive the aforesaid order, it was incumbent upon the respondents to have pasted (Chaspa) the same at the residence of the applicant, which was never done. It is further submitted that according to respondents they sent a copy of the alleged charge sheet to the deceased by registered post and thereafter a notice in the shape of warning for ex-parte enquiry which is denied by applicant. Neither the charge sheet and thereafter any date of ex-parte enquiry was informed, nor the copy of inquiry report was sent, nor even the alleged order of removal dated 12.10.1992 was ever sent to the deceased and as such the entire disciplinary proceedings is a farce, illegal and is in violation of principles of natural justice and as such the same is liable to be quashed. It is further submitted that no disciplinary proceedings was ever initiated against the deceased nor any order of removal was passed against the deceased and he was continued to be in service until his death and as such the applicant is entitled for his entire terminal benefits, treating him in service, at the time of his death. In a letter dated 29.10.2009, Deputy Chief Personnel Officer has admitted that there is nothing on record that husband of the applicant was removed from service. At Sl. No 76 C in personal file of the deceased it is mentioned that DAR could not be disposed off. Hence, this OA.
4. In their counter affidavit, the respondents have submitted that the PF Account No. of applicant's husband was 563456 and in the year 1984 he was in the scale of Rs. 210-270. From16.05.1984, the applicant remained unauthorisedly absent. The applicant in her earlier application dated 10.12.2001 has shown the death of death of her husband as 20.06.1999 and as such it is not clear as to whether the applicant's husband died on 20.06.99 RAJEEV KUMAR MISHRA Page 4 of 11 OA No. 57 of 2010 or 22.06.99 or 22.01.99. It is submitted that it is incorrect that vide the letter dated 18.06.07 of the Assistant Divisional Engineer Ballia the name of the applicant's husband has not been deleted while as a matter of fact, the said letter dated 18.06.2007 of the Assistant Divisional Engineer Ballia itself disclosed that the name of the applicant's husband was deleted on account of his unauthorized absence for the period from 16.04.1984 till 26.05.1990. It is further submitted that the personal file, service book and entire documents of service folder of an employee like the applicant's husband is kept in the office of Assistant Divisional Engineer Ballia. For want of information in connection with the removal of the applicant's husband, the office of the Assistant Divisional Engineer Ballia vide letter dated 27.10.1999, informed the headquarter that there is no record available in the office of the Assistant Divisional Engineer Ballia to demonstrate as to from which date the applicant's husband has been removed from services. The Welfare Inspector was sent to the office of the Assistant Divisional Engineer Ballia for filling the pension forms but vide letter dated 12.12.09 of the establishment clerk of the office of the Assistant Divisional Engineer Ballia, it came to light that the applicant's husband was removed from services with effect from 12.10.1992. The information has been sent vide letter dated 14.12.09 to the Senior Personnel Officer (Misc.). It is submitted that as per rule, the payment of Samooh Beema and of Nirvah Nidhi which was due to be paid to the applicant. It is submitted that due to long absence of the applicant's husband, a major charge sheet dated 05.09.1991 was issued by the Assistant Divisional Engineer Ballia and sent at his residential address which was returned undelivered with the remarks of the postal department that "Baar Baar Jaane Par Mulakaat Nahin Hota Hai". Again vide letter dated 22/24.08.1992, the charge sheet was sent at his residential address directing that in case no reply is received within 15 days, an ex-parte proceedings shall take place and his services shall be dismissed but again the same was RAJEEV KUMAR MISHRA Page 5 of 11 OA No. 57 of 2010 returned undelivered with the remarks of the postal department that "Baar Baar Jaane Par Mulakaat Nahin Hota Hai" and as such under DAR Rules, the ex-parte proceedings vide letter dated 12.10.1992 was conducted and the applicant's husband was removed from service. It is also submitted that since there was no entry in the service book in respect of removal of the applicant's husband and as such for want of factual position, correct information could not be given to the applicant. On the basis of above submissions, learned counsel for the respondents has requested to dismiss the OA as devoid of merit.
5. In rejoinder affidavit, the applicant has reiterated the same facts as given in the OA and added that due to compelling circumstances and situation beyond control, husband of the applicant was not in a position to report for duty due to his mental ailment. It is also stated that although the applicant was continuously kept informing about the mental ailment of the deceased but even assuming that he was unauthorisedly absent then also no disciplinary proceedings whatsoever have been initiated against him nor the applicant or her husband (deceased) ever received any information with regard to any disciplinary proceedings and in the absence of same the services of the deceased cannot be terminated. Applicant made repeated representations to the respondents requesting them to supply her a copy of alleged termination order but the same has not been supplied and not even the date of alleged termination order has been disclosed to her. It is further erroneous for the respondents to take the plea that 'the records are destroyed' in as much as even if the same are destroyed then also a guard file containing the entire details would be there and the same is never destroyed and as such the plea taken by the respondents are misconceived and is liable to be rejected. The action of the respondents in not paying the RAJEEV KUMAR MISHRA Page 6 of 11 OA No. 57 of 2010 terminal benefits of the deceased to the applicant is wholly illegal and arbitrary.
6. Considered the rival submissions and verified the documents available on record.
7. The main issue involved in this OA is that deceased husband of the applicant took leave during 1984 to come to his home to take care of his ailing wife (applicant), he himself fell ill and has not reported for duty afterwards. The contention of the respondents is that due to long absence of the deceased husband of the applicant, a major charge sheet dated 05.09.1991 was issued and respondents took sincere effort to serve that charge memo to deceased husband of the applicant, the same was returned back undelivered. Again a letter dated 22/24.08.1992 along with the charge sheet was sent to the residential address of the deceased husband of the applicant mentioning that in case reply to the charge sheet is not received within 15 days, an ex-parte proceeding shall take place, which was also returned back undelivered. Accordingly, the ex-parte proceeding vide letter dated 12.10.1992 was conducted and applicant's husband was removed from service.
8. The applicant has not enclosed the alleged charge memo as he submits that charge memo was never served to the deceased husband of the applicant. The respondents also have neither enclosed the copy of the charge memo, nor the copy of the said letter directing him to give his reply within 15 days and failure to which department will start ex-parte proceeding. The copy of that ex-parte proceeding as well as copy of the final order passed by disciplinary authority is also not enclosed. The respondents have earlier taken various steps to verify the correct factual position regarding RAJEEV KUMAR MISHRA Page 7 of 11 OA No. 57 of 2010 service of the deceased husband of the applicant. In the meanwhile, deceased husband of the applicant died on 20.06.1999.
9. On page No.37 of the OA, there is a letter dated 18/21-06-2007 related to settlement of retirement dues after the death of the deceased husband of the applicant. On page No.39 in letter dated 14.06.2007, it is mentioned that deceased husband of the applicant was absent since 16.06.1984 to 26.05.1990. Due to long absence his name has been takeaway from master sheet. There is no order available for removing the name from the master sheet. In a letter dated 02.01.2009 speaking order has been passed denying compassionate ground appointment to the son of the deceased husband of the applicant, the department has taken action to complete the service book of the deceased husband of the applicant for release of pension and pensionary benefits. In a letter dated 11.02.2009, the applicant was informed that she should get an affidavit to get her pension. In a letter dated 30.07.2009, it is mentioned that the applicant was absent for more than 05 years and hence a proposal has been sent to Head Office for its regularization. In a letter dated 26.10.2009, it is mentioned that department does not have any information regarding the removal of the deceased husband of the applicant. All of sudden, one letter was produced by the respondents annexed as CA-5 dated 12.10.1992 mentioning that the deceased husband of the applicant has been removed. The relevant portion of the that letter is reproduced as below :-
"श्री अमरे श प्रशाद शक् ु ऱा राम प्यारे शक् ु ऱा गैगम ॊ ेन अनतगगत रे ऩनी/बलऱया ग्राम के उऩस्थथत न होने के कारण कोई भी अनश ु ासन की जाॉच ऩाया उऩरोक्त ऩररस्थथयों में अधेहथताऺरी अमरे श ऩर .....से सम्ऩकग करने का हर सम्भव प्रयास ककया गया ऱेककन वे उऩऱब्ध नही हो ऩया अत एवॊ ऩररस्थथयो को ध्यान रखते हुऐ श्री अमरे श प्रसाद शक् ु ऱा ऩत्र ु राम प्यारे शक् ु ऱा गैगम ॊ न ै अनतगगत रे ऩनन बलऱया का तत्काऱ गैगम ॊ ेन से रे ऱ सेवा से ररमव ू ककया जाता है ।"
RAJEEV KUMAR MISHRA Page 8 of 11 OA No. 57 of 2010
10. Under the circumstances, we are at the loss to accept the version of the respondents that deceased husband of the applicant was legally removed from service. Even we presume that from 1984 onwards he was absent, we do not have copy of the charge sheet to see whether charges were framed against him for willful absence or absence. Here it is relevant to quote the following judgments in order to examine the justification for removal of deceased husband of the applicant for long absence.
11. The Hon'ble High Court in Writ-A No.15295 of 2023 in the case of Union of India & ors. Vs. Yashpal decided on 20.09.2023 in which the operative portion of the judgment mentioned in para 10 is reproduced as below :-
"10. In the context of absence from duty without leave, all factors should have been examined by the disciplinary authority before award of major punishment of dismissal could be made. To that extent, the Tribunal has further protected the interest of the present petitioner by observing that the disciplinary authority may observe the past record of the respondent and all other factors taken note of by the Tribunal. At present the disciplinary authority had not offered any consideration to the material aspects of the matter."
12. The Hon'ble Supreme Court in Civil Appeal No.2106 of 2012 in the case of Krushnakant B. Parmar Vs. Union of India & ors. decided on 15.02.2012 in which the operative portion of the judgment mentioned in para 22 is reproduced as below :-
"22. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty."
13. The Hon'ble High Court in Service Bench No.1823 of 1985 in the case of Radha Raman Kulshretha Vs. State of U.P. decided on 14.02.2020 in RAJEEV KUMAR MISHRA Page 9 of 11 OA No. 57 of 2010 which the operative portion of the judgment mentioned in para 17 is reproduced as below :-
"17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant."
14. The Hon'ble Supreme Court in the case of Coal India Limited and another Vs. Mukul Kumar Choudhuri and others reported in 2010 (2) ESC 248 (SC) wherein it was held that :-
"26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months."
15. This is a peculiar case where we are not able to peruse the charge sheet, neither able to see nor believe that sincere action as per Railway Servant (Discipline and Appeal) Rules, 1968 was taken to serve the charge RAJEEV KUMAR MISHRA Page 10 of 11 OA No. 57 of 2010 memo against the deceased husband of the applicant, whether the inquiry was conducted in accordance with Railway Servant (Discipline and Appeal) Rules, 1968 and punishment awarded to deceased husband of applicant was commensurate to the charges framed. Even we presume that applicant was absent, in the light of above case laws, punishment of removal is very harsh.
16. On the basis of discussion made in para 09 above it is highly improbable to believe that charges were framed against the deceased husband of applicant. Charge memo has not been enclosed or produced by respondents. There is no proof that charge memo was sent for service as well proceedings of ex-parte enquiry and procedure were followed in ex-parte enquiry.
17. On the basis of above discussions, we are of the considered opinion that the OA is liable to be allowed and accordingly is allowed. The order dated 12.10.1992, 18.12.2009 and 14.12.2009 is quashed and set aside. The respondents are directed to treat the deceased husband of the applicant in service till his death and take steps for sanction and settlement of retiral dues including family pension to the applicant. It is made clear that as the applicant has not worked during the period of his absence, he is not entitled for any back wages. The above exercise should be completed within a period of four months from the date of receipt of certified copy of this order. No order as to costs.
18. All MAs pending in this O.A. also stand disposed off.
(Mohan Pyare) (Justice Om Prakash VII)
Member(Administrative) Member(Judicial)
RKM/
RAJEEV KUMAR MISHRA
Page 11 of 11