Central Administrative Tribunal - Hyderabad
S Yasmeen vs South Central Railway on 10 September, 2024
OA.No.713/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
ORIGINAL APPLICATION NO.020/00713/2022
ORDER RESERVED ON : 19.07.2024
ORDER PRONOUNCED ON : 10.09.2024
CORAM:
HON'BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER
S.Yasmeen, w/o late S.Khaja Vali,
Aged 40 years, Ex.Helper/SSE/OHE & PSI/TIM,
H.No.13-165, Sanjeev Nagar, Kasapuram Road,
South Central Railway, Guntakal-515801.
Mobile 8919610596 [email protected] .....Applicant
(By Advocate Sri G.Trinadha Rao)
Vs.
1. Union of India, Rep. by the
General Manager, South Central Railway,
Rail Nilayam, Secunderabad-500 025.
2. The Principal Chief Personnel Officer,
Railnilayam, South Central Railway,
Secunderabad-500 025.
3. The Additional Divisional Railway Manager (INFRA),
Guntakal Division, South Central Railway,
Guntakal-515801.
4. The Senior Divisional Electrical Engineer/TRD,
Guntakal Division, South Central Railway,
Guntakal-515801.
5. The Divisional Electrical Engineer,
Guntakal Division, South Central Railway,
Guntakal-515801.
6. The Senior Divisional Personnel Officer,
Guntakal Division, South Central Railway,
Guntakal-515801.
....Respondents
(By Advocate Mr.G.Raghunath, Sr.PC for CG)
Page 1 of 22
OA.No.713/2022
ORDER
PER HON'BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER The applicant has filed the present OA seeking the following relief:
"(i) To call for the records leading to and connected with the charge memorandum No.G/E.150/III/18/TR/SKV/11, dated 31.12.2018 and the consequential punishment of removal imposed by the Disciplinary Authority in proceedings No.G/E.150/III/18/TR/SKV/II, dated 16.07.2019, and the punishment order issued by the Appellate Authority in proceedings No.SCR/P-GTL/425(a)/DAR/L2/SKV/38/2019, dated 22.09.2020, and to declare and set aside the same as illegal, arbitrary, contrary to rules and law, the principles of natural justice and violative of Article 14 of the Constitution of India; and
(ii) Consequently direct the respondents to consider the case of the applicant for compassionate appointment and grant all the consequential benefits; OR
(iii) in the alternative direct the respondents to consider the case of the applicant for appointment on compassionate grounds duly treating the delinquent employee‟s death as while in service in view of the fact that the delinquent employee‟s service has been reckoned upto his date of death and pass such other order or orders as deemed fit in the facts and circumstances of the case and interest of justice."
2. The brief facts of the case, according to the applicant, are that her husband by name Sri S.Khaja Vali, while working as Helper in the O/o SSE/OHE & PSI/TIM of Guntakal Division in South Central Railway was issued with a major penalty charge sheet (SF-5) No.F/E.150/III/18/TR/SKV/11, dated 31.12.2018 by DEE/ELS/GTL & Disciplinary Authority (Respondent No.7) under the Railway Servants (Discipline & Appeal) Rules, 1968, for 118 days unauthorized absence from duty on 11 different spells during the period from 16.06.2017 to 23.07.2018. On receipt of the above said charge sheet, her Page 2 of 22 OA.No.713/2022 husband Sri S.Khaja Vali submitted his explanation dated 24.01.2019 denying the charges. By proceedings dated 07.03.2019, the Disciplinary Authority appointed an Inquiry Officer to inquire into the chares framed against him. After the conclusion of the enquiry proceedings, he was awarded with the penalty of removal from service with immediate effect by proceedings No.G/E.150/III/18/TR/SKV/ II, dated 16.07.2019, issued by Sr.DEE/Tr/GTL, who is not the authority, who issued the charge sheet. Aggrieved by the above order of removal from service, he filed an appeal dated 07.08.2019, addressed to the Additional Divisional Railway Manager, South Central Railway, Guntakal, (Appellate Authority). After submission of the appeal dated 07.08.2019, he died on 27.12.2019, leaving behind wife (the applicant herein), minor daughter aged 16 years and son aged 12 years.
3. The applicant has further submitted that the Appellate Authority, after the death of her husband Sri S.Khaja Vali, without giving an opportunity her to represent in the capacity of legal heirs of the deceased employee, disposed of the appeal dated 07.08.2019, vide order No.SCR/P-GTL/425 (a)/DAR/L2/SKV /38/2019, dated 22.09.2020, observing as under:
".........
The delinquent employee was unauthorized absent for 118 days in different spells between 16.6.17 to 23.7.18. His mother was suffering from heart cardiac problem since 8 years and got heart stroke three times in 2014 to 2018. He is the only son to look after his mother and family. He could not attend the duty regularly as he was going to Bangalore Apollo Hospital for his mother treatment. Further, his mother expired on 9.3.18 and he could not attend duties due to depression. He has 2 kids (one of 14 years old and another of 8 years old) and he was the only bread winner for the family. He was facing both family & financial problems. He has promised on his two Page 3 of 22 OA.No.713/2022 kids that he would not repeat the same in future and requested to forgive him and regularize his service.
The delinquent employee also expired on 27.12.19. He has left two minor children and wife without any financial support for them to survive after his death. The unauthorized absent to duty is to take care of his ailing mother as a responsible sons, but not purely intentional. The punishment of „Removal from Service‟ will severely affect his family. Considering his 16 years of service, his family dependency on the employee and their economic conditions, thereby showing compassion on the poor deceased family, the punishment of "Removal from Service" imposed by the Disciplinary Authority is modified to "Compulsory Retirement". The intervening period from the date of "Removal from Service" to the date of death i.e. 16.7.2019 to 27.12.2019 shall be treated as "Dies-non".
Consequent to the Appellate Authority‟s order dated 22.09.2020, the Divisional Railway authorities, have paid the settlement dues to the applicant, as detailed in the Service Certificate dated 10.08.2021, issued by the Divisional Railway Manager, Personnel Branch, Guntakal, treating the delinquent employee as compulsorily retired. The period of service of her husband was shown as „from 27.12.2003 to 27.12.2019 i.e., the date of appointment to the date of death, and also issued a Pension Payment Order No.201970900631, dated 17.06.2021, sanctioning family pension of Rs.9000/- and dearness relief as admissible from time to time in her favour. She is in receipt of a monthly pension as sanctioned under the above Pension Payment Order dated 17.06.2021.
4. The applicant has further submitted that the Appellate Authority in his order dated 22.09.2020, taking note of the fact that the delinquent employee‟s absence was due to the fact that he was going to Bangalore Apollo Hospital for his mother‟s treatment and was not intentional, had modified the punishment of Page 4 of 22 OA.No.713/2022 removal from service to that of compulsory retirement, instead of setting aside the entire departmental proceedings on the ground that his absence is not wilful, which would not constitute misconduct as held by the Hon‟ble Supreme Court in Krushnakant B. Parmar v. Union of India & Another (2012) 3 SCC 178). The relevant paras 18, 19 and 20 of the above judgment are extracted hereunder:
"18. 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.
19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.
20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty."
5. The applicant has, therefore, contended that neither the charge sheet nor the order of the Disciplinary Authority dated 16.07.2019 discloses that the delinquent employee‟s absence was wilful so as to construe the said absence as misconduct to initiate disciplinary action against her husband Sri S.Khaja Vali, the delinquent employee, as held by the Hon‟ble Supreme Court, and the entire disciplinary proceedings are vitiated right from its inception and are void abinitio. Further, the Appellate Authority ought to have set aside the charge Page 5 of 22 OA.No.713/2022 sheet and also the consequential penalty of removal from service dated 16.07.2019, imposed by the Disciplinary Authority and the case of the delinquent employee ought to have been treated as death while in service and her case for appointment on compassionate grounds as per rules ought to have been considered as she being the widow of the deceased delinquent employee.
6. The applicant, in support of her submissions, has also relied on the judgments of the Principal Bench of this Tribunal in Shailender Kumar v. Union of India decided on 13.05.2015 in OA.No.2805/2013, and this Tribunal in K.Jaya Krishna v. The Divisional Electrical Engineer, Electric Loco (TRS),Visakhapatnam, decided on 20.11.2017 in OA.No.21/2013, and prayed this Tribunal to set aside the charge memorandum dated 31.12.2018 and the consequential punishment of removal from service imposed by the Disciplinary Authority, vide proceedings dated 16.07.2019 and the punishment order issued by the Appellate Authority in Proceedings dated 22.09.2020, declaring the same as illegal, arbitrary and violative of Article 14 of the Constitution of India.
7. The respondents have contested the OA by filing a reply statement. They have submitted that Sri S.Khaja Vali, the husband of the applicant, was initially appointed in Railways on 27.12.2003 in scale Rs.2550-3200 (RSRP) on pay Rs.2550/- and posted as Diesel Khalasi to work under SSE/DSL/GTL in Mechanical Department of Guntakal Division of South Central Railway. The said Ex. employee Sri S.Khaja Vali, while working as Diesel Khalasi was removed from Railway service vide order No.G/D.P26/227/Vol.II/64/2005, dated Page 6 of 22 OA.No.713/2022 19.11.2005, due to unauthorised absence from 17.01.2004 to 20.04.2005 for a period of 193 days in different spells. On submission of appeal by Sri S.Khaja Vali, he was reinstated to duty duly modifying the penalty of removal from service to that of withholding of his annual increment for a period of 08 years on recurring basis and joined duty on 01.08.2007 and posted as Khalasi to work under SSE/Diesel Shed/GTL as per order No.G/P.564/III/DSL/Vol.9, dated 30.07.2007. Again Sri S.Khaja Vali, went on unauthorized absence from 2008.2011 to 21.12.2011 for a period of 28 days in different spells and the Disciplinary Authority has imposed the penalty of withholding of his annual increment for a period of 24 months (NR), vide order No.G.D.P.24/103/DAR, dated 03.07.2012. Meanwhile, he requested for mutual transfer from SSE/DSL/GTL (Mechanical Department) to SSE/PSI&OHE/KDP (Electrical Traction) Department and the competent authority has agreed for such transfer and relieved him on 16.12.2013. Subsequently, the Ex-employee Sri S.Khaja Vali, was issued with a major penalty charge memorandum No.G/E.150/III/18/TR/SKV/08, dated 16.06.2017 for unauthorised absence from duty for the period from 27.12.2016 to 15.06.2017 for 171 days and on completion of departmental enquiry proceedings, the Disciplinary Authority imposed the penalty of reduction to a lower stage in time scale of pay by one stage for a period of 04 years without cumulative effect and not effecting his pension vide order dated 20.12.2017. Again a major penalty charge memorandum (SF-5) was issued to Sri S.Khaja Vali, vide memorandum No.G/E.150/III/18/TR/SKV/11, dated 31.12.2018, for unauthorized absence Page 7 of 22 OA.No.713/2022 from duty for a period of 118 days from 16.06.2017 to 23.07.2018 in different spells and on completion of the departmental proceedings, the Disciplinary Authority imposed the major penalty of removal from service with immediate effect vide order No.G/E.150/III/18/TR/SKV/II, dated 16.07.2019. On an appeal submitted by the Ex-employee Sri S.Khaja Vali, the Appellate Authority modified the penalty of removal from service to that of compulsory retirement vide order No.SCR/P/GTL/425 (a)/DAR/L2/SKV/38/2019, dated 22.09.2020. Consequent on the imposition of compulsory retirement on the Ex-employee by the competent authority, all the settlement dues were arranged to the applicant Smt.S.Yasmeen, who is the wife of late Sri S.Khaja Vali, Helper of SSE/OHE & PSI/TIM dated PPO No.20197090900631, dated 17.06.2021, as Sri S.Khaja Vali, expired on 27.12.2019.
8. The respondents have, therefore, contended that the Railway administration has given the Ex-employee Sri S.Khaja Vali, enough chances to change his habitual unauthorized absence from duties, but no change was witnesses by the administration from the Ex. Employee right from his date of appointment. However, the appeal of the applicant's husband was considered and modified the penalty of removal from service to that of compulsory retirement by the competent authority and accordingly, arranged all death benefits of the employee and also family pension was arranged to the applicant. Now, the applicant contends that the penalty should be set aside, which is not acceptable as per rules of the disciplinary proceedings. The Ex- Page 8 of 22 OA.No.713/2022 employee was unauthorisedly absent for duties several times from the date of his appointment. Prior to that of compulsory retirement in different spells and several punishments were imposed on him by the Railway officials. Further, the applicant's contention that the Ex-employee's absence is not wilful and it would not constitute misconduct, as held by the Hon'ble Supreme Court in Krushnakant B.Parmar's case (supra) would not apply in this case, as the applicant's husband was habitual absentee from duties in different spells for several times and he was counselled and punished several times, but he has not changed his attitude.
9. In support of their contentions, the respondents have relied on the following judgments of the Hon'ble Supreme Court :
(i) In M.H.Devendrappa v Karnataka State Small Scale Industries (1998 (3) SCC 732 (para 3), it has been held by the Hon'ble Supreme Court that "any action which is detrimental to the interests or prestige of the employer or undermines the position and efficient functioning of the organization, which he is working, amounts to misconduct".
(ii) In SAIL v Dr.R.K.Diwakar (AIR 1998 SC 2210), it has been held by the Hon'ble Supreme Court that "Disciplinary Proceedings initiated by the competent authority; not necessary that Disciplinary Authority should initiate proceedings. Controlling Authority of delinquent can also issue charge sheet".Page 9 of 22 OA.No.713/2022
(iii) In 1999(1) SLJ CAT 12, "Railway servant can be removed by the authority under whom he may be working for the time being".
10. The respondents have also relied on the recent judgment of the Hon'ble Apex Court in Civil Appeal No.5944;/2022 arising out of SLP (Civil) No.9933/2022, dated 05.09.2022, wherein it has been observed as under:
"Appointment on compassionate grounds cannot be extended to the heirs of the employees on their superannuation and/or retirement. If such an appointment is permitted, in that case, outsiders shall never get an appointment and only the heirs of the employees on their superannuation and/or retirement shall get an appointment and those who are the outsiders shall never get an opportunity to get an appointment though they may be more meritorious and/or well educated and/or more qualified".
11. The respondents have, therefore, contended that the Appellate Authority i.e., ADRM/Infra/GTL, having considered the appeal of Ex.employee, modified the penalty of removal from service to that of compulsory retirement in terms of Rule 22 © (i) of the Railway Servants (Discipline and Appeal) Rules. 1968. Further, after modifying the penalty, all the settlement benefits were paid to the wife of the Ex-employee duly taking his service from the date of his appointment to the date of his death by calculating the qualifying and non- qualifying services as per the Railway Services (Pension) Rules, 1993. The Ex- employee submitted his appeal to the Appellate Authority and in the meantime, he expired. The applicant cannot now claim that no punishment can be imposed on the dead person, as the punishment was already imposed on the Ex.-employee and also cannot claim compassionate ground Page 10 of 22 OA.No.713/2022 appointment as per Master Circular 16 as the said Master Circular states that Appointment on compassionate grounds relates to the appointment made for dependents of Railway servants who lose their lives in the course of duty or die in harness otherwise while in service or medically incapacitated/decategorised. In the instant case, the Ex-employee was compulsorily retired from service and not died during service. As such, the applicant is not entitled for the benefit of appointment on compassionate ground.
12. The respondents have, therefore, contended that there are no merits in the OA and prayed to dismiss the OA as being devoid of merits.
13. Heard the learned Counsel on both sides at length and perused the pleadings placed on record.
14. The applicant is the wife of late Sri Khaja Vali, who was an Ex-employee of the South Central Railway, Guntakal. She is seeking multiple reliefs in this OA, i.e., (i) to set aside the charge memo and the consequential punishment of removal imposed by the Disciplinary Authority in proceedings No.G/E.150/III/18/TR/SKV/II, dated 16.07.2019, which was upheld by the Appellate Authority in proceedings No.SCR/P-GTL/425 (a)/ DAR/ L2/ SKV/ 38/2019, dated 22.09.2020; (ii) the compassionate appointment to the applicant and grant all consequential benefits; or (iii) in the alternative, the respondents to Page 11 of 22 OA.No.713/2022 consider the case of the applicant for appointment on compassionate grounds duly treating the delinquent employee‟s death as well as service in view of the fact that the delinquent employee‟s service has been reckoned upto his date of his death and pass such other order or orders as deemed fit in the facts and circumstances of the case and interest of justice.
15. It is a fact that the applicant‟s husband, who was Helper in the office of SSE/OHE & PSI/TIM/Guntakal Division in South Central Railway, was issued a memo dated 31.12.2018 under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968, by the DEE/ELS/GTL & Disciplinary Authority, for being unauthorisedly absent from duties for 118 days in 11 different spells during the period from 16.06.2017 to 23.07.2018. The explanation submitted by the delinquent Ex-employee on 24.01.2019, is very casual and superficial without any support of the requisite documents. The delinquent employee has just mentioned that he asked many times the Junior Engineer to sanction him leave, but he has not submitted any proof of the leave letters so submitted by him. Following this explanation, the Disciplinary Authority appointed an Inquiry Officer to enquire into the charges framed against the said Sri S.Khaja Vali, Helper/SSE. The Inquiry Officer, after due inquiry, found all the articles of charges as proved. The Disciplinary Authority agreed with the inquiry report and made the following observation:
"The Charged Employee‟s unauthorised absence to his duties in different spells for a total period of 118 days between 16.06.2017 to 23.07.2018, without prior sanction of leave or without of observing Railway Medical Attendance Rules, leads huge inconvenience to the administration and Page 12 of 22 OA.No.713/2022 safety operation. Taking into account the gravity of charges and longevity of absent period, the undersigned impose the penalty of „Removal from service with immediate effect‟ with all compassionate allowance as per rules."
On 07.08.2019, the delinquent employee appealed against the penalty order of the Disciplinary Authority with a request to treat this as a special case and regularize his muster duly forgiving him. The Serial Circular No.189/85 (Circular letter No.P(1)227IVIII), dated 30.12.85, permits even if the employee dies, the appeal has to be finalized. In this case also when the appeal was pending, the delinquent employee died on 27.12.2019. The Appellate Authority, who is the ADRM/GTL(Infra), on 22.09.2020, taking a lenient view, modified the removal from service as imposed by the Disciplinary Authority to „compulsory retirement‟ and also ordered that the period from the date of removal to the date of death i.e., from 16.07.2019 to 27.12.2019, shall be treated as "dies-non". The Appellate Authority has given his order after the death of the employee on a compassionate ground considering the employee‟s 16 years of service and other facts. The applicant now is questioning the Appellate Authority‟s order with a request to quash the same. The Appellate Authority has modified the penalty from removal to compulsory retirement, though by the time the Appellate Authority passed the order, the employee is dead. The Tribunal does not find any logic or reason to interfere with the Appellate Authority‟s order, which has taken a lenient compassionate view not on the merits of the case. Following the order of the Appellate Authority, the respondents have made all the settlement dues to the applicant. Page 13 of 22 OA.No.713/2022
16. The applicant in this OA is seeking compassionate appointment as her second request. The application for compassionate appointment was given only on 12.11.2021 i.e., after two years of the death of the employee and approximately after one year of the order of the Appellate Authority, though the Service Certificate, issued by the South Central Railway, records the period of service of the Ex-employee from 27.12.2003 to 27.12.2019. But, it is also a fact that the Ex-employee was removed from service on 16.07.2019 and he died on 27.12.2019, but the Appellate Authority has treated this period as "Dies-non", and modified the punishment of removal from service to compulsory retirement. Therefore, the respondent-authorities have considered his period of service from 27.12.2003 to 27.12.2019. This punishment does not justify the request of the applicant to get the compassionate appointment. Moreover the past record of the employee is also not good as he was found to be in the habit of being absent without proper permission. Though the question in this OA is only of 118 days absence, but the respondents have brought it out that the employee was in the habit of being absent for long spells without any proper sanction and every time the authorities used to take cognisance of his unauthorised absence and pass appropriate penalties for example, the delinquent Ex-employee was absent from 17.01.2004 to 20.04.2005 i.e., 193 days. On submission of appeal, he was reinstated with modification of punishment from removal from service to withholding of his annual increment for a period of 8 years on recurring basis, and he joined duties on 01.08.2007. Secondly, time and again, he was unauthorisedly absent for 28 days from 20.08.2011 to 21.12.2011. The Disciplinary Authority again imposed the penalty of withholding of his annual increment for a period of 24 months . Third time from 27.12.2016 to 15.06.2017 Page 14 of 22 OA.No.713/2022 for 171 days, he was unauthorisedly absent and for this period, the penalty of reduction to lower stage in time scale of pay by one stage for a period of four years without cumulative effect and not effecting his pension was imposed. The 118 days unauthorized absence from 16.06.2017 to 23.07.2018, which is the fact of the present OA, is the 4th stage episode of the delinquent Ex-employee. The Railway administration has given enough opportunity to the delinquent Ex- employee for changing his habit and behaviour.
17. The applicant has also raised the issue whether the unauthorized absence from duty amounts to failure to devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether the absence is wilful or caused by the compelling circumstances. The Principal Bench of the Central Administrative Tribunal in OA.No.2805/2013, dated 13.05.2015 in Shailender Kumar v. Union of India, , observed the fact that the absence from duty without any application or prior permission may amount to unauthorized 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.
18. But, in the present case, the delinquent employee was unauthorizedly absent not in continuation, but in different spells and not for his own Page 15 of 22 OA.No.713/2022 treatment/illness /hospitalisation, but the so claimed sickness of his mother. It is difficult to believe that the delinquent Ex-employee was not having any time to inform his superior authorities over phone or by any other means. He is found to be absent for 118 days from 16.06.2017 to 23.07.2018, which is a long period though in different spells. Now a days, there are enough technologies of communication available for utilization. The delinquent Ex-employee has not even supported his contention by giving any medical treatment details, dates of heart attack etc., of his mother. He is simply making a defensive statement. If he was himself not well or hospitalized etc., it is possible to take a lenient view of his unauthorized absence. But, in his case, he is claiming leniency and special treatment because he attended his sick mother as a son. Therefore, it cannot be concluded that his absence from duties was not wilful. Moreover, the delinquent Ex-employee must have been getting his salary and other emoluments for which he must be contacting the concerned authorities because in OA, he has not mentioned any such fact that he was not getting his salary etc. Even while claiming his salary, he could have informed the concerned authorities for proper sanction of the leave etc. Therefore, it is proved that his absence from duties in different spells was wilful. Therefore, the respondents are right in concluding the modified penalty order. The Ex-employee was a habitual absentee unauthorisedly as per the historical records as presented by the respondents. He was unauthorisedly absent in different spells. So, when he attended duty in spells, he should have submitted his leave application and would have got his absence regularised as per rules in vogue. But, he miserably failed to do so. Therefore, the appellate authority‟ s order is not liable to be quashed. Page 16 of 22 OA.No.713/2022
19. The respondents, in their reply, have contended that the orders of the Hon‟ble Apex Court, cited by the applicant, cannot be applied in the instant case, as the Ex-employee was habitual absentee from Railway duties and the Railway administration was kind enough to modify his penalty of removal from service to that of compulsory retirement.
20. The respondents have further contended that it is well settled principle of law of the Hon‟ble Apex Court in the following:
(a) In the case of M.H.Devendrappa Vs. Karnataka State Small Scale Industries (1998 (3) SCC 732 (Para 3), "Any action which is detrimental to the interests or prestige of the employer or undermines the position and efficient functioning of the organization, which he is working, amounts to misconduct."
(b) "Disciplinary Proceedings initiation by the Competent Authority; not necessary that Disciplinary Authority should initiate proceedings.
Controlling authority of delinquent can also issue charge sheet" (AIR 1998 SC 2210) in SAIL v. Dr.R.K.Diwakar.
(c) SLJ 1999 (1) CAT 12 "Railway servant can be removed by the authority under whom he may be working for the time being."
21. The Appellate Authority i.e., ADRM/Infra/GTL, having considered the appeal of the Ex-employee, modified the penalty of removal from service to Page 17 of 22 OA.No.713/2022 that of compulsory retirement in terms of Rule 22 (c) (i) of the Railway Servants (Discipline and Appeal) Rules. 1968. Further, after modifying the penalty, all the settlement benefits were paid to the wife of the Ex-employee duly taking his service from the date of his appointment to the date of his death by calculating the qualifying and non-qualifying services as per the Railway Services (Pension) Rules, 1993. The Ex-employee submitted his appeal to the Appellate Authority and in the meantime, he expired. The applicant cannot now claim that no punishment can be imposed on the dead person, as the punishment was already imposed on the Ex-employee at the time of his death. The applicant cannot claim compassionate ground appointment as per Master Circular 16. The said Master Circular states that Appointments on compassionate grounds relates to the appointments made for dependents of Railway servants who lose their lives in the course of duty or die in harness otherwise while in service or medically incapacitated/decategorised. The circumstances in which appointments on compassionate grounds may be made are as below:
(i) When Railway servants lose their lives in the course of duty or get so crippled that they cannot do any work (this also in the course of duty -
for example, loco and traffic running staff in charge of trains involved in accidents);
(ii) When Railway employees die in harness in service, before retirement;
(iii) Dependent of totally medically incapacitated staff may be considered for compassionate grounds appointment on par with death cases, subject to their merit;
Page 18 of 22 OA.No.713/2022 (E(NG)II/2016/RC-1/SR/6, dated 29.03.2016)
(iv) In cases where an employee is totally incapacitated and is not in a position to continue in any post because of his medical condition he may be allowed to opt for retirement. In such cases, request for appointment on compassionate ground to an eligible ward may be considered. (E(NG)II/95/RC-1/94, dated 18.01.2000)
22. The appointments on compassionate ground is to be given to dependents of those Railway servants, who lose lives in the course of duty or get so crippled that they cannot do any work also in the course of duty or when Railway employees die in harness while in service before retirement. In the present case, the Ex-employee was given the punishment of removal from service for his long spells of unauthorized absence, but taking a lenient view of the applicant, who is the wife of the delinquent employee, removal from service was modified to the compulsory retirement and all the settlement dues were paid. Since the Ex- employee was awarded punishment, the case of the applicant for compassionate appointment cannot be considered as per Master Circular No.16. Therefore, the applicant is not entitled for the compassionate appointment, as claimed by her. The Ex-employee was frequently unauthorized absent for duties from his date of appointment to his compulsory retirement in different spells and as such the applicant cannot claim that her husband was not intentionally absent from duty. The Ex-employee was imposed with the penalty of compulsory retirement duly following the procedure in vogue as per D&AR 1968 is justifiable. In terms of SL.No.4 of Schedule-II of Schedule of powers under the Railway Servants (Discipline and Appeal) Rules, 1968, Junior Administrative Grade Officer can Page 19 of 22 OA.No.713/2022 exercise the disciplinary power over all classes of Non-gazetted staff and will not come under purview of contrary to Law.
23. It is well settled principle of law by the Hon‟ble Supreme Court in the following judgments:
(i) Umesh Kumar Nagal v. State of Harayana, 1994 SCC (4) 138/ (1995 (1) SERVLJ 229), circulated under Railway Serial Circular No.66/1995, "the compassionate grounds appointment is given solely on humanitarian grounds with the sole object of providing immediate relief to the employee's family to tide over the sudden financial crisis occasioned due to sudden death of the employee and it can't be claimed as a matter of right, the grounds for compassionate appointment in each such case is justified."
(ii) In Civil Appeal No.5944/2022 arising out of SLP (Civil) No.9933/2022, dated 05.09.2022, the Hon'ble Apex Court has observed as under:
"Appointment on compassionate grounds cannot be extended to the heirs of the employees on their superannuation and/or retirement. If such an appointment is permitted, in that case, outsiders shall never get an appointment and only the heirs of the employees on their superannuation and/or retirement shall get an appointment and those who are the outsiders shall never get an opportunity to get an appointment though they may be more meritorious and/or well educated and/or more qualified".
24. The delinquent Ex-employee has not submitted even a single leave letter in his defence. He was working in the office of SSE/OHE & PSI/TIM. The point raised by the applicant that the charge sheet was issued by the DEE/ELS/GT, who is the Disciplinary Authority also, but the penalty was Page 20 of 22 OA.No.713/2022 imposed by the Sr.DEE/Tr/GTL, who is not same, is also not correct as per the Rule 4 and Sub-Rule (2) of Rule 7 of the Railway Servants (Discipline & Appeal) Rules, 1968, Schedule II, Sr.DEE/Tr/GTL is rank higher in scale of the same cadre. ADRM/Infra/GTL is the Appellate authority.
25. The punishment of the Ex-employee was reduced by the Appellate Authority from „Removal‟ to „Compulsory Retirement‟; he is not exonerated from the charges, which are of serious nature. Therefore, this Tribunal does not find any merit in quashing the orders of the Appellate Authority as prayed for. Secondly, the historical records of the Ex-employee establishes very clearly that he was a chronic absentee without any permission from the duties and every time he has been penalised. The period for which this OA has been filed, his absence is treated as „dies-non‟ and he is not exonerated of his charges. Therefore, the applicant is not entitled for any kind of compassionate appointment. Thirdly, this Tribunal finds that though the respondents have issued Service Certificate showing the period of service of the Ex-employee‟s till his death, but he died when he was undergoing the punishment of removal and he has filed the appeal. He was not reinstated by any authority during this interim period. He died when the appeal was pending and the Appellate Authority has reduced the penalty only, not exonerated him and also finalised that the period of his absence to be treated as „dies-non‟. Therefore, at the time of his death, he was under punishment, he is not reinstated. Therefore, the applicant cannot claim any kind of compassionate appointment against a delinquent employee.
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26. With these observations, it is concluded that there is no merit in the OA, and accordingly the OA is dismissed. There shall be no order as to costs.
(SHALINI MISRA) ADMINISTRATIVE MEMBER DSN.
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