Central Administrative Tribunal - Ernakulam
G Bhaskara Jyothi vs Southern Railway on 18 September, 2025
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. No.180/00327/2021 & O.A. No.180/00636/2021
Thursday, this the 18th day of September, 2025
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
HON'BLE Mrs. V.RAMA MATHEW, ADMINISTRATIVE MEMBER
O.A. 327/2021
G. Bhaskara Jyothi, Aged 50 years, S/o S. Guruswamy
Office Superintendent, Trivandrum Division, Southern Railway
Residing at: "Aalayam", Vakkom P.O.
Kadackavoor, Trivandrum District, PIN-695 308
-Applicant
[By Advocates: Mr. T.C.Govindaswamy, Mrs.Kala T Gopi, Mrs.Sreekala T.N. ]
Versus
1. Union of India represented by the General Manager, Southern Railway
Headquarters Office, Park Town P.O., Chennai-600 003.
2. The Sr. Divisional Personnel Officer, Southern Railway, Trivandrum
Division, Trivandrum -695 014.
3. The Additional Divisional Railway Manager, Southern Railway
Trivandrum Division, Trivandrum -695 014.
4. The Chief Personnel Officer, Southern Railway, Headquarters Office
Park Town P.O., Chennai-600 003
5. The Divisional Railway Manager, Southern Railway, Trivandrum Division
Trivandrum -695 014.
- Respondents
[By Advocate: Mrs.Girija K. Gopal, SC]
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O.A.Nos.327 of 2021 & 636 of 2021 2
O.A.636/2021
G. Bhaskara Jyothi, Aged 50 years, S/o S. Guruswamy
Office Superintendent, Trivandrum Division, Southern Railway
Residing at: "AALAYAM", Vakkom P.O.
Kadackavoor, Trivandrum District, PIN-695 308
-Applicant
[By Advocates: Mr. T.C.Govindaswamy, Mrs.Kala T Gopi ]
Versus
1. Union of India represented by the General Manager, Southern Railway
Headquarters Office, Park Town P.O., Chennai-600 003.
2. The Sr. Divisional Personnel Officer, Southern Railway, Trivandrum
Division, Trivandrum-695 014.
3. The Additional Divisional Railway Manager, Southern Railway,
Trivandrum Division, Trivandrum -695 014.
4. The Chief Personnel Officer, Southern Railway, Headquarters Office, Park
Town P.O., Chennai-600 003
5. The Divisional Railway Manager, Southern Railway, Trivandrum Division,
Trivandrum-695 014.
6. The Assistant Personnel Officer, Southern Railway, Trivandrum Division,
Trivandrum-695 014.
- Respondents
[By Advocate: Mrs.Girija K. Gopal, SC]
These applications having been heard on 11.09.2025, the Tribunal on
18.09.2025 delivered the following:
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COMMON ORDER
Justice K.Haripal, Judicial Member Applicant in both these Original Applications is one and the same, who was working as an Office Superintendent in the office of the 2 nd respondent. Evidently, he had started career as Junior Clerk on 02.02.1990. While working as Office Superintendent, on the allegation that he had unauthorisedly absented from duty, disciplinary proceedings were initiated under Rule 9 of Railway Servants (Discipline and Appeal) Rules, 1968, hereinafter referred to as the Rules, on the following charge.
"That Sri. G.Bhaskar Jyothi, OS/DPO/O/TVC, has committed serious misconduct in that he unauthorisedly absented himself from duty from 19.06.2015 onwards (up to till date) without proper sanction of leave from the competent authority or not following medical attendance Rule. He behaved in a manner quite unbecoming of a Railway servant and thus he violated Rule 3(1)(ii) &(iii) of Railway Services Conduct Rules, 1966."
2. The applicant did not submit any defence statement, following which Sri.M.K.Suresan, Chief Staff Welfare Inspector, was appointed as the Enquiry Officer. He conducted enquiry and submitted report finding the applicant guilty of the charge. Thereafter, penalty advice was issued by the 2 nd respondent, Annexure-A1 in O.A.636/2021, whereunder penalty of compulsory retirement with full pension and gratuity with effect from 04.11.2016 was 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 4 ordered.
3. It has been stated specifically in Annexure-A1 penalty advice that appeal, if any, can be submitted to the appellate authority within 45 days from the date of receipt of the advice. But the applicant did not prefer any appeal at that stage. Meanwhile, he was sanctioned pension and all retiral benefits including gratuity, leave salary etc. However, after two years and seven months, he preferred an appeal before the 3rd respondent. The 3rd respondent, through Annexure-A2, concurred with the finding of the disciplinary authority and rejected the appeal on the ground of delay as well. Thereafter, he filed a revision before the 4th respondent. The 4th respondent, by Annexure-A3 order dated 15.03.2021, though concurred with the enquiry report, modified the penalty and directed to reinstate him by imposing a penalty of reduction to lower grade from level 6 to level 5 with pay Rs.39,200/- for a period of five years with recurring effect. It was further held that intervening period from the date of compulsory retirement to the date of reinstatement will be treated as dies-non.
4. It is the common case that on receipt of the revision order, the applicant started pressing for reinstating him in service. After repeated representations the respondents informed that the revisional authority did not 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 5 mention anything about his pay in the intervening period and wanted to seek clarifications from the Headquarters. Ultimately, by Annexure-A2 order in O.A.327/2021 dated 27.05.2021 he was informed that on implementing the order of compulsory retirement he was paid a total amount of Rs.34,41,591/- including pension, fixed medical allowance, gratuity, RELHS, Group Insurance, leave salary and commuted value of pension, so, his reinstatement will take place only after remitting back the said amount.
5. Aggrieved by Annexures-A1 and A2 orders, initially he filed O.A.327/2021 seeking to quash Annexures-A1 and A2 and to direct the 2 nd respondent to allow him to join duty forthwith. The applicant has stated that he has moved the O.A. without prejudice to his right to challenge the penalty advice, appellate order and the revisional order in the disciplinary proceedings.
6. According to the applicant, putting condition of remitting back so much amounts through Annexures-A1 and A2 is without jurisdiction, arbitrary, discriminatory and violative of the statute under Articles 14 and 16 of the Constitution. He maintained that once the revisional order was passed by the 4th respondent, putting conditions is arbitrary, discriminatory and violative of the principles of natural justice. He has also challenged the calculation made by the respondents. According to him, when a person is compulsorily retired 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 6 and then reinstated, the amount of gratuity is to be adjusted only at the time of final retirement. Similarly, quantum of pay and allowances determined in terms of Rule 1343(4) of IREC would decide the amount and whatever amount is paid by way of pension would be adjusted thereafter. Similarly, commutation of pension received also to be adjusted at the time of superannuation in the normal course. So, he wanted him to be reinstated forthwith without insisting any refund.
7. Thereafter, he filed O.A.636/2021 calling in question the disciplinary proceedings as well as Annexure-A5 order issued by the Assistant Personnel Officer appointing Sri.M.K.Suresan as the Enquiry Officer.
8. According to the applicant, penalty advice, appellate and revisional orders are non-speaking, arbitrary, discriminatory and without application of mind and violative of Articles 14, 16, 21 and 311 of the Constitution. Further, it is averred that there is no provision in the Rule to delegate the power of the disciplinary authority to any lower authority for appointing the Enquiry Officer. The penalty of compulsory retirement has been issued mainly for the reason that the factum of illness was not reported within 48 hours as per the medical manual. According to him, such a failure, even if true, would not constitute a misconduct within the meaning of Rule 3(1)(ii) and 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 7
(iii) of the Conduct Rules. Even though habitual absenteeism is stated in the penalty advice, there is no such allegation in the charge memo. Moreover, the action of the respondents imposing a capital penalty of compulsory retirement, modified only as reduction to a lower scale caused him loss of more than Rs.10,000/- per month, which is highly disproportionate and shocking to the conscience of a person of ordinary prudence.
9. The respondents filed reply statement denying the allegations of the applicant. In the reply to O.A.327/2021 it is submitted that consequent to the issue of penalty advice on 02.11.2016 the applicant was compulsorily retired from 04.11.2016. He did not prefer any appeal within time and then applied for the retiral benefits on 07.02.2017. The entire retirement benefits were sanctioned on 04.08.2017 and as on 31.07.2021, he was paid Rs.32,20,758/- including pension of Rs.14,38,006/-, (Rs.24,500/- with DR per month), Rs.53,000/- as Fixed Medical Allowance, Rs.6,37,245/- as gratuity, Rs.26,845/- towards GIS, Rs.17,493/- towards leave salary and Rs.10,48,169/- as commuted value of pension. From November 2016 onwards the applicant draws pension. However, after two years and seven months he preferred appeal on 16.06.2019 before a wrong authority, which was returned. He re- submitted it on 22.10.2019 before proper appellate authority, which was 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 8 rejected on 08.01.2020. Thereafter, on 03.03.2020 he filed a revision before the 4th respondent. By order dated 15.03.2021 the revision was allowed by modifying the penalty, reducing his scale of pay from level 6 to level 5 with pay of Rs.39,200/- for five years with recurring effect, with a rider that intervening period from the date of compulsory retirement to the date of reinstatement will be treated as dies-non.
10. Immediately thereafter, the applicant wanted to rejoin duty. But the Personnel Department had found that till 31.03.2021 he had received a total amount of Rs.34,41,591/- as retiral benefits, which was required to be refunded as provided under sub-rule (5) of Rule 1343 of the IREC. Sub-rule (8) of Rule 1343 also makes it clear that payment, if any, earned by the Railway servant during the interregnum have to be adjusted to the payment, if any, to be made to the Railway servant, on his reinstatement. That means, while reinstating, he cannot be permitted to enjoy the whole benefit of pension and retiral benefits since the period is treated as dies-non.
11. According to the respondents, cases of Sri.Radhakrishnan and Sri.B.Gopinath cited by the applicant in the rejoinder are not applicable here. The said Radhakrishnan was not sanctioned any retiral benefits including monthly pension at the time of compulsory retirement, except his own 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 9 contributions like PF and GIS, which were refunded by him in monthly instalments. The said Gopinath, on reinstatement, was also advised to refund the whole pensionary benefits availed by him on retirement.
12. The claim of the applicant for reinstatement without refund of retirement benefits can be entertained only in the case of fresh appointment with forfeiture of earlier service and not in the case of reinstatement. If his claim is accepted, he will get two pensions for single service. Therefore, he is bound to refund the entire amount received on imposition of the penalty.
13. The applicant filed a rejoinder contending that there was a charge for unauthorised absence only for four months. He reiterated that the amounts already disbursed cannot be refunded. Referring to the Government of India order No.3 under Rule 1345 of IREC he said that separate and independent orders have to be passed on (a) pay and allowances for the period of absence and (b) whether or not the period of absence should be treated as duty. It is not necessary that the decision on (a) should depend upon the decision on (b). The respondents are bound to calculate and pay the pay and allowances, which should not be less than subsistence allowance during the period of absence. The amount so calculated should be much more than the pension the applicant would have received on account of compulsory 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 10 retirement. According to him, fixed medical allowance, gratuity, GIS, leave salary and commuted value of pension also are not liable to be refunded. Further, the applicant was not gainfully employed during the period from the date of his compulsory retirement. He also insists the production of service records of Sri.Radhakrishnan and the respondents are put to restrict proof with regard to the averments touching Sri.Gopinath.
14. The respondents filed another reply statement on 12.01.2022 more or less in line with the earlier reply. It is further stated that the applicant is a habitual absentee, details of such instances have been tabulated. In his entire service he had absented for 501 days, which is non-qualifying service either because of unauthorized absence, suspension or extraordinary leave. It is submitted that he is a person not interested in continuing employment. If he is interested in joining duty in compliance with the order in revision, he will have to remit the whole amount received by him. Non-remittance of the amount is clearly an abuse of the public fund.
15. In reply to O.A.636/2021 it is averred that the Enquiry Officer was appointed by the disciplinary authority himself, though the order was communicated by the 6th respondent in the O.A. That has not caused any prejudice to the applicant.
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16. According to the respondents, unauthorized absence of the applicant for the period from 19.06.2015 to 19.10.2015 is not disputed. He is in the habit of remaining unauthorisedly absent.
17. With the help of Annexures-R1(B) to R1(D) it is pointed out that on early occasions also disciplinary proceedings were initiated against him, which ended in imposing punishment.
18. We heard Sri.T.C.Govindaswamy, learned counsel for the applicant and Smt.Girija K Gopal, learned Standing Counsel for the respondents, elaborately.
19. Various authorities were produced by both the sides buttressing their respective contentions.
20. It is not disputed that the applicant had started his official career as Junior Clerk in the Railways on 02.02.1990. Disciplinary proceedings under Rule 9 of the Rules was initiated against him for unauthorized absence from 19.06.2015 onwards, as already quoted. On service of memo of charges and statements of allegations the applicant did not file any statement. Thus the 2 nd respondent, Senior Divisional Personnel Officer, appointed Sri.M.K.Suresan, Chief Staff Welfare Inspector as the Enquiry Officer, who conducted enquiry. The enquiry proceedings are produced as Annexure-A6 in O.A.636/2021. As 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 12 mentioned in Annexure-A4 charge memo, the Chief Office Superintendent was examined as the sole administrative witness and the copy of the muster roll was made available for examination of the applicant, the charged officer. Preliminary sitting was held on 05.02.2016 followed by second sitting on 26.02.2016. The applicant defended the case himself and cross examined the administrative witness. After the examination of the administrative witness and marking four documents for the applicant, prosecution evidence was closed. Annexure-A6 suggests that the applicant had requested for 10 days for defence brief. Records show that he did not adduce further evidence. Thereafter, Enquiry Officer submitted Annexure-A7 report concluding that the applicant had been unauthorisedly absent from 19.06.2015 to 19.10.2015, that he did not intimate his absence/sick within 48 hours from 19.06.2015 till 09.07.2015, as provided in paragraph 538 of the Medical Manual. Thus it was concluded that he had remained unauthoresedly absent for the above period and violated Rules 3(1), (ii) and (iii) of the Railway Services (Conduct) Rules.
21. In response to the Annexure-A7 report the applicant has explained in Annexure-A8 that he had been on prolonged treatment in Railway Hospital, Thiruvananthapuram as well as in Regional Cancer Centre, Thiruvananthapuram for papillary carcinoma thyroid and complex partial 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 13 seizure since 10 years. More often the disease turned acute and he had to seek treatment in hospitals nearby to his residence as well as in Railway Hospital. From 19.06.2015 onwards, absence was on account of the treatment at Government Hospital, Mayyanad and also Sheya Hospital, Mayyanad that he had produced documents before the Enquiry Officer. So, he sought sympathetic consideration on humanitarian grounds and to exempt him from charges. He assured that he will not repeat it. However, by penalty advice dated 02.11.2016 a punishment of compulsory retirement with full pension and gratuity with effect from 04.11.2016 was awarded to him.
22. There are reasons to think that the applicant had readily accepted the punishment and applied for pension on 07.02.2017, which was sanctioned on 04.08.2017. More than Rs.32 lakhs was disbursed to him towards pension arrears from November 2016 onwards, including fixed medical allowance, GIS, gratuity, commuted value of pension and leave salary.
23. It is also not disputed that after enjoying the retiral benefits, after a lapse of more than two years and seven months, he preferred an appeal under Rule 18 of the Rules. The appellate authority found that the findings of the disciplinary authority were warranted by evidence on record and that the appeal was delayed by over two years and 10 months and thus it was rejected.
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Thereafter, he filed a revision in terms of Rule 25. The 4 th respondent allowed the revision, having regard to his statement that he is a cancer patient with other ailments also. In view of the repentance expressed by him and the assurance that he would reform himself, as part of granting one more opportunity, the penalty was modified and he was ordered to be reinstated in service by modifying the penalty to reduction to lower grade from level 6 to level 5 with pay of Rs.39,200/- for a period of five years with recurring effect. It is further stated that the intervening period from the date of retirement to the date of reinstatement will be treated as dies-non.
24. Sri.Govindaswamy has submitted that the applicant is in acute stage of cancer, he is taking treatment from 2010 onwards, he was initially treated for thyroid cancer followed by epileptic seizures. He has already undergone two major surgeries and the 3rd surgery is scheduled in Amrita Hospital, Ernakulam. Earlier, his treatments were in Railway Hospital, Thiruvanthapuram, RCC, Thiruvananthapuram, hospitals at his residential place at Mayyanad and he is continuing treatment in Amrita Institute of Medical Sciences. Now, he cannot take solid food since he has no saliva. The cancer has spread to floor of the mouth and also to the tongue.
25. Regarding disciplinary proceedings it is submitted that there are 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 15 serious flaws since the Enquiry Officer was appointed by an incompetent person and Annexure-R1(A) is a fabricated document. Even though he was absent from duty for some time, that was not wilful. The fact that he is undergoing prolonged treatment is not in dispute. According to the learned counsel, provisions of Rules 9(19), 9(20) and 9(21) of the Rules have not been followed. The prosecution evidence was not closed and proceedings were not opened for defence brief. Referring to Annexure-A10 in O.A.636/2021 he submitted that disciplinary authority himself should appoint the Enquiry Officer, which evidently was not done. In the light of these, procedural irregularities, findings against him cannot be legally sustained.
26. According to the learned counsel, his absence during the period was not wilful, which cannot attract misconduct under Rule 3(1) of the Conduct Rules. In this connection, he relied on the decisions reported in Shri Bhagwan Lal Arya v. Commissioner of Police Delhi and others [(2004) 4 SCC 560] and Krushnakant B. Parmar v. Union of India and another [(2012) 3 SCC 178]. According to the learned counsel, since appointment of the Enquiry Officer is without jurisdiction, all proceedings taken by him cannot stand in the eye of law. It is also submitted that punishment imposed on the applicant is disproportionate to the proved misconduct and is shocking to the conscience 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 16 of a prudent person.
27. Regarding O.A.327/2021, the learned counsel submitted that there is no law or Rule which entails a person to refund the benefits received in such a situation. The amount of Rs.34,41,591/- has been fixed arbitrarily without reference to Rules 1343(4) and (5) of the IREC. Such a quantification is illegal. Moreover, Rule insists that independent hearing should be afforded to the applicant before fixing the amount, which has not been done.
28. On the other hand, according to Smt.Girija K. Gopal, Annexure- R1(A) clearly indicates that the Enquiry Officer was appointed by the disciplinary authority himself and the Assistant Personnel Officer had only communicated the order, which did not cause any prejudice to the applicant. The applicant was given fair opportunity to defend his case. It is evident that he is a habitual absentee. He has no case that he has been denied a fair opportunity. There is no procedural irregularities in the proceedings and therefore, without raising legal contentions either before the appellate authority or revisional authority, such contentions cannot be raised for the first time before the Tribunal.
29. According to the learned Standing Counsel, absence without intimation is unauthorised. The applicant is an experienced Office 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 17 Superintendent who is well versed in the Rules and standing instructions. This is not an isolated instance. The applicant has suffered punishments on numerous occasions before. She has also placed reliance on the decisions in Mithilesh Singh v. Union of India and others [(2003) 3 SCC 309], Union of India and others v. Dilip Paul [2024 (1) SLR 206 (S.C.)], Delhi Transport Corporation v. Sardar Singh [(2004) 7 SCC 574] etc.
30. Regarding the claims in O.A.327/2021, according to the learned Standing Counsel, after having availed retiral benefits from November 2016 onwards, now he cannot deny refund; he cannot approbate and reprobate. Therefore, in order to implement the order of revision, the applicant has to refund the entire amounts received by him with interest. Reliance has also been placed on the decisions reported in Shyam Telelink Ltd. v. Union of India [(2010) 10 SCC 165] and Ramesh Chandra Sankla Etc. v. Vikram Cement Etc. [AIR 2009 SC 713], Man Singh v. Maruti Suzuki India Ltd. and another [(2011) 14 SCC 662] etc.
31. In our opinion, following points arise for consideration:
1) Are there major legal infirmities in the conduct of the disciplinary proceedings initiated against the applicant under Rule 9 of the Rules, which ultimately ended in reduction of pay and 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 18 reinstatement with the interregnum period treated as dies-non, vitiating the proceedings?
2) Is the applicant entitled to be re-inducted in service without insisting refund of various amounts disbursed to him as retiral benefits?
32. On the first point the facts are not in dispute. When the applicant remained unauthorisedly absent from 19.06.2015 indefinitely, disciplinary proceedings for imposing major penalty was initiated against him. Though he received memo of charges and statement of allegations, no defence statement was filed by him. Thereafter, Sri.M.K.Suresan, Chief Staff Welfare Inspector, Thiruvananthapuram Centre was appointed as the Enquiry Officer under Annexure-A5. This document is seen signed by the 6 th respondent, Assistant Personnel Officer. As the legality and competence of the Assistant Personnel Officer was challenged, the respondents have stated that, in fact, Annexure-A5 only reflects the communication of the order passed by the Divisional Personnel Officer, who is the disciplinary authority. In order to support this version, copy of relevant page of the note file has been produced by the respondents, marked as Annexure-R1(A), which shows that when the matter of service of the memo of charges on the applicant was reported to the Divisional 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 19 Personnel Officer along with the fact that he did not respond to the same, the Divisional Personnel Officer appointed Sri.M.K.Suresan, Chief Staff Welfare Inspector, to conduct enquiry into the matter. To put it in other words, it is evident that the 2nd respondent disciplinary authority himself has appointed the Enquiry Officer. Annexure-A5 is just copy of communication of the order of appointment signed by the Assistant Personnel Officer. That means, the contention raised by the applicant based on Annexure-A10 master circular has no substance. The disciplinary authority himself has nominated the Enquiry Officer.
33. We have gone through the enquiry file and have ascertained that the decision was taken by the 2nd respondent himself. Merely for the reason that the Assistant Personnel Officer happened to communicate the decision to the applicant, that has not caused any prejudice to the applicant.
34. It has come out that the applicant had taken it as a ground in the appeal memorandum that the enquiry officer was not appointed by the disciplinary authority. But, in the light of Anenxure-R1(A), such a contention has fallen to the ground. The immediate consideration is whether on account of Annexure-A5, under which the decision was communicated by a subordinate officer, any prejudice has been caused to the applicant, to which answer is in 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 20 the negative. As rightly pointed out by the learned Standing Counsel, since the communication of the appointment of the Enquiry Officer was not done by the disciplinary authority himself, such a contention cannot be raised by the applicant. It is a procedural matter. In this connection, we extract the following passage from the decision reported in State of Uttar Pradesh v. Harendra Arora and another [(2001) 6 SCC 392]:
"13. The matter may be examined from another view point. There may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statute may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the inquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 21 substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing............."
That means, contention of the applicant that the enquiry proceedings were initiated without jurisdiction has no basis.
35. Then it was argued that the failure of the applicant in attending the office for the period from 19.06.2015 to 19.10.2015 would not constitute a misconduct within the meaning of Rules 3(1)(ii) and (iii) of the Conduct Rules. It is true that the applicant is going through hard times, suffering from serious ailments. But he is a senior officer functioning as an Office Superintendent having long experience in administrative matters. He must be conscious of the fact that whenever he is unable to attend the office, it should be intimated in advance or leave intimation should be given within 48 hours of the absence. But, here, till Annexure-A2 memo of charges was served on him, for about four months, he remained absent unauthorisedly. It is true that on 09.07.2015 he had sent a communication, but that did not satisfy the legal requirements. He did not file any application for leave nor medical certificate was produced to prove the inability or ailment to attend the office. Even if the communication dated 09.07.2015 is taken on its face value, it does not conform to the rules under the Medical Manual. The medical certificate appended to the 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 22 communication only states that the applicant was under treatment (of Dr.Radhakrishnan) and he needs rest for 20 days from 19.06.2015. The other medical certificate of Dr.Sheya is not bearing a date. It says that he is unable to attrend duty during the period from 09.07.2015 to 18.10.2015.
36. Secondly, had it been an isolated instance, this Tribunal would have supported the contention of the learned counsel that it does not constitute a misconduct. But, there are numerous materials to show that the applicant was not in the habit of submitting leave applications and remaining absent for long. On earlier occasions, he had suffered punishments for such unauthorised absence, which is evident from the documents produced by the respondents.
37. Annexure-R1(B) shows that he had unauthorisedly absented himself from duty from 19.05.2014 to 22.05.2014, 14.06.2014 to 18.06.2014, 16.07.2014 to 17.07.2014 and 29.07.2014 to 30.07.2014, for which minor penalty proceeding was initiated against him. Ultimately, by order dated 12.11.2014, punishment of reduction of pay from Rs.14,920 with grade pay of Rs.4,200 to Rs.14,360 for a period of three months with effect from 01.12.2014 was imposed without the effect of postponing future increments. It seems that the applicant did not prefer any appeal against this order.
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38. Annexure-R1(C) dated 06.08.2015 indicates that he remained unauthorisedly absent for the period from 29.04.2015 to 12.05.2015, for which minor penalty proceeding was initiated and again he was punished by reducing his pay by one stage from Rs.14,920/- with grade pay of Rs.4,200/- to Rs.14,360/- for a period of three years without cumulative effect, that did not have the effect of postponing future increments.
39. Annexure-R1(D) suggests that major penalty proceeding was initiated against him for unauthorised absence from 04.02.2014. At that time, he produced medical records and ultimately the file was closed by issuing warning letter, which was directed to be recorded in his service records. Annexure-R1(F) shows that during the pendency of Annexure-R1(D) proceedings, he remained unauthorizedly absent for three days from 31.03.2014 to 02.04.2014 and then for 28 days from 07.04.2014 to 04.05.2014.
40. Further, the second reply in O.A.327/2021 indicates that he had been unauthorisedly absent from 04.02.2014 to 11.02.2014, for which charge was dropped based on the explanation submitted by him. Further, it is shown that he was auauthorisedly absent from 31.03.2014 to 02.04.2014, 07.04.2014 to 04.05.2014, as referred to above, for which punishment of reduction of pay by one stage for 24 months was imposed. However, penalty was not 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 24 implemented. What we venture to say is that the unauthorised absence, which was the subject matter of the disciplinary proceedings, was not an isolated incident. In such a situation, the dictum in the decisions relied on by the learned counsel for the applicant in Bhagwan Lal Arya and Krushnakant, quoted supra, cannot be applied.
41. As held by the Hon'ble High Court in Delhi Transport Corporation, quoted supra, when an employee absents himself from duty without sanctioned leave, the authority can come to a conclusion about the employee being habitually negligent in duties and an exhibited lack of interest in the employer's work and unauthorised absence can be treated as misconduct. Burden is on the part of the employee to say that there is no negligence on his part. Here, there is absolutely no explanation apart from his contention that he is suffering from malignancy and consequential treatment etc. In fact the 4th respondent has shown sufficient indulgence by modifying initial punishment of compulsory retirement by reducing his pay from level 6 to level 5.
42. It is the settled proposition of law that the role of the High Court or Tribunal in such a situation is rather limited. The Tribunal is only expected to oversee whether principles of natural justice were followed while initiating proceedings under Rule 9 of the Rules. Here, it has come out that when he did 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 25 not reply after serving the memo of charges, the Enquiry Officer was appointed. He participated in the enquiry and cross examined the administrative witness. He also produced his documents for perusal. On closure of prosecution evidence an opportunity was afforded to the applicant for submitting defence brief, but he did not file any defence statement. Thereafter, enquiry report was filed holding him guilty of unauthorised absence for the period from 19.06.2015 to 19.10.2015 and that he violated Rules 3(1)(i), (ii) and (iii) of the Conduct Rules.
43. The learned counsel for the applicant raised various contentions, which, according to him, violated Rules 9(19), 9(20) and 9(21) of the Rules. We have already dealt with his contention touching Annexure-A5. Even though various other infirmities were pointed out by the learned counsel, we find that such contentions were not raised either in the appeal memorandum or in the revision petition. So, the contentions raised for the first time before the Tribunal cannot be taken on its face value.
44. After referring to the oft quoted decisions in High Court of Judicature at Bombay Through its Registrar v. Shashikant S. Patil and another [2000 (1) SCC 416], State of Andhra Pradesh v. S.Sree Rama Rao [AIR 1963 SC 1723] and B.C. Chaturvedi v. Union of India and others [(1995) 6 SCC 749] etc. 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 26 it can be held that grounds of judicial review in such a case would be justifiable:
a) where there has been violation of the principles of natural justice; or
b) the proceedings have been held in violation of statutory regulations prescribing the mode of such enquiry; or
c) the decision is vitiated by considerations extraneous to the evidence and merits of the case; or
d) if the conclusion reached by the authorities is so arbitrary or capricious that no reasonable person could have arrived at such a conclusion; or
e) others similar to above.
The Court/Tribunal cannot sit as an appellate authority in a domestic enquiry. If there are some legal evidence on which the findings could be based, then the adequacy or even the reliability of such evidence would fall outside the scope of judicial review.
45. Standard of proof in a departmental proceedings is not as same as in a criminal proceedings. It is much lower than that required in criminal proceedings. (see State of N.C.T. of Delhi v. Ajay Kumar Tyagi [(2012) 9 SCC 685]).
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46. On evaluation of the entire circumstances, we are convinced that the enquiry was conducted in a free and fair manner, the principles of natural justice have been complied with and the finding was reached after giving sufficient opportunity to the applicant. In fact, there are documentary evidence to prove that he had been unauthorisedly absent during the above period. He has no case that he had submitted intimation or leave as insisted under the extant Rules.
47. Considering the punishment imposed on the applicant also, having regard to the fact that he had remained unauthorisedly absent for four months and having regard to the antecedents it cannot be held as one that shocks the conscience of a prudent person. We do not find valid reasons to interfere with the disciplinary proceedings or the finding of guilt against the applicant. The first point is answered accordingly.
48. Turning to the second aspect, it is not disputed that after the punishment of compulsory retirement had come into effect, the applicant had voluntarily moved for releasing the retiral benefits and obtained an amount of Rs.32,20,758/- including pension arrears, fixed medical allowance, gratuity, group insurance, leave salary and commutation of pension. After allowing the revision, the applicant wanted him to be reinstated unconditionally, without 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 28 taking the burden of refunding any portion of the amount. Such a contention does not stand to common sense. He was granted pension treating him as a service pensioner. Even at the time of passing the revision order he was drawing pension and fixed medical allowances, which is granted to a Railway pensioner. As per Section 4 of the Payment of Gratuity Act, gratuity is the amount paid to an employee on termination of service. Similarly, group insurance, leave salary, commutation of pension etc. were granted on consideration of severance of his service from the Railways. Once the order of compulsory retirement is modified and he is ordered to be re-inducted he cannot be heard to say that he is not liable to refund any such amount. It is not a fresh employment, but re-induction on modifying the punishment in the disciplinary proceedings. Therefore, we have no doubt that, before re- admitting, he is liable to refund various components of the benefits disbursed to him on implementing the order of compulsory retirement. At the same time, there are certain amounts which cannot be refunded.
49. After having heard the learned counsel on both sides, however, we are of the view that the respondents should have afforded an opportunity to the applicant for being heard, as provided under Rule 1343 of the IREC.
50. In this connection, Rule 1343, which is similar to FR 54, reads thus:
2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 29 "1343 (F.R.54).--(1) When a railway servant who has been dismissed, removed or compulsorily retired is re-instated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension preceding the dismissal, removal or compulsory retirement, the authority competent to order reinstatement shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the railway servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and
(b) Whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority competent to order re-instatement is of opinion that the railway servant who had been dismissed, removed or compulsorily retired has been fully exonerated the railway servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
Provided that where such authority is of opinion that the termination of the proceedings instituted against the railway servant had been delayed due to reasons directly attributable to the railway servant, it may, after giving him an opportunity to make his representation and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the railway servant shall, subject to the provisions of sub-rule (7), be 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 30 paid for the period of such delay only such amount of such pay and allowances as it may determine.
(3) In a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes. (4) In cases other than those covered by sub-rule (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of noncompliance with the requirements of clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the railway servant shall, subject to the provisions of sub-rules (6) and (7), be paid such amount to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the railway servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed 60 days from the date on which the notice has been served as may be specified in the notice. (5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding the dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specific purpose; provided that if the railway servant so desires, such authority may direct that the period of absence from duty including 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 31 the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the railway servant.
NOTE:-- The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of--
(a) extraordinary leave in excess of three months in the case of temporary railway servant; and
(b) leave of any kind in excess of five years in the case of permanent railway servant.
(6) The payment of allowances under Sub-rule(2) or sub-rule (4) shall be subject to all other conditions under which such allowances are admissible.
(7) The amount determined under the proviso of sub-rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342 (F.R. 53). (8) Any payment made under this rule to a railway servant on his re- instatement shall be subject to adjustment of the amount, if any earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of re-instatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the railway servant."
51. Here, preceding the imposition of punishment, the applicant was not under suspension. The above Rule indicates that whenever a Railway servant is reinstated after dismissal, removal or compulsory retirement, an 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 32 order should follow as to how the period of absence should be treated. This Rule envisages two categories of cases, those who were fully exonerated of the charges and those whose cases other than that covered by sub-Rule(2) including cases covered by clause 2 of Article 311 of the Constitution. Here, Article 311(2) has no application. In the second category of employees, sub- rule 5 works as a statutory injunction against the competent authority in treating the period of absence as period spent on duty, unless the authority specifically directs.
52. It is the settled proposition of law, as held by the Hon'ble Supreme Court in M. Gopala Krishna Naidu v. State of Madhya Pradesh [AIR 1968 SC 240], consideration of this aspect involves application of mind by the competent authority after giving notice to the employee against the proposed action. Following the above decision, in Manzoor Ahmed Mazumdar v. State of Meghalaya and others [(1997) 11 SCC 374] it is held that though there is no express requirement in FR 54(3) for giving an opportunity to the employee before passing an ordeer, giving of such an opportunity is implicit in the exercise of power which has been conferred by the said provision.
53. Even when sub Rule (5) says that the period in question shall not be spent on duty, statute does not postulate a situation that the employee 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 33 shall not be paid any amount at all. From sub Rule(4) itself it is patent that, subject to sub Rules (6) and (7), he is entitled to an amount had he not been dismissed, removed or compulsorily retired from service. Firstly, a probe into the quantum of such amount has to be conducted. Secondly, determination of the quantum is possible only after giving notice to the Railway servant and consideration of his representation. It is here that Gopalakrishna Naidu and Manzoor Ahmed Mazumdar assume importance.
54. Here, the revisional authority has held that the intervening period shall be treated as dies-non. But, even at that time he did not consider the fact that huge amounts were already disbursed to the applicant and the necessity of making adjustment/refunds etc. Similarly, sub-Rules (7) and (8) of Rule 1343 provide for making adjustments either towards subsistence allowance or towards earnings through another employment. Here, it may be true that the applicant did not go for alternate employment. Still, an enquiry into those aspects has to be made after affording opportunity to the applicant.
55. The service of the applicant was terminated after due process of law. The period of absense consequent to the imposition of penalty cannot be treated as a period of 'no-payment'. It is a case when the employer-employee relationship was severed after initiating disciplinary proceedings. At that time, 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 34 he had put in more than 26 1/2 years of service. On imposing compulsory retirement, he was granted full pension and gratuity. After modifying the penalty, when reinstated, the applicant should be paid such amount towards sustenance, quantum of same should be worked out by the respondents after hearing the employee.
56. Moreover, by lapse of time, total amount granted to the applicant has swollen from the estimation made in Annexure-A2. The amount to be refunded/adjusted by the applicant can be arrived at only after detailed hearing.
57. Resultantly, the disciplinary proceedings initiated against the applicant does not suffer from any serious infirmity warranting interference. At the same time, the applicant cannot be allowed to be re-inducted unconditionally without the burden of refunding the amounts paid to him as retiral benefits like gratuity, commuted value of pension, leave salary etc. However, there are amounts to be adjusted, which can be done only after giving opportunity of being heard. Therefore, the respondents are directed to take a call on the actual amounts to be refunded by the applicant on the date of his intended re-induction, after hearing the applicant, within sixty days from the date of receipt of a copy of this order. If the applicant has any difficulty in 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 35 making oral submissions, he will be allowed to make submissions with the help of an assistant.
The Original Applications are disposed of as above. No costs.
(Dated, this the 18th September, 2025)
V.RAMA MATHEW JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ds
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List of Annexures
O.A.327/2021
Annexure A1: A true copy of Letter No. V/P.535/XII/OS/Vol.XIV dated
07.04.2021, issued by the 2nd respondent.
Annexure A2: A true copy of Letter No. V/P.535/XII/OS/Vol.XIV dated
27.05.2021 issued by the 2nd respondent.
Annexure A3: A true copy of Penalty Advice bearing No: V/P.227/GL/
Vol. II dated 02.11.2016, issued by the 2nd respondent. Annexure A4: A true copy of the order of the revisionary authority bearing no.P(A)89/2021/97 dated 15.03.2021 issued by the 4th respondent.
Annexure A5: A true copy of the representation dated 31.03.2021 addressed to the 2nd respondent.
Annexure A6: A true copy of representation dated 01.04.2021 addressed to the 2nd respondent.
Annexure A7: A true copy of representation dated 03.05.2021, addressed to the 2nd respondent.
Annexure A8: A true copy of representation dated 17.05.2021 submitted to the 2nd respondent.
Annexure A9: A true copy of the detailed representation dated 05.07.2021 addressed to the 5th respondent.
Annexure A10: A true extract of Rule 1343(FR54) of the Indian Railway Establishment Code Volume II.
Annexure A11: A true copy of an order bearing no. V/VO/Con./27 dated
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08.04.2009 issued by the Additional Divisional Railway Manager.
Annexure-A12: A true copy of the provisions of rules 1343, 1344 and 1345 of the Indian Railways Establishment Code Vol.II and the Government of India Orders thereunder.
Annexure R1(a): A true copy of the penalty advice No. V/P.227/2014/03/ GBJ dated 12.11.2014 issued by the DPO, Trivandrum. Annexure R2(b): A true copy of the penalty advice No. V/P.227/2014/03/ GBJ dated 06.08.2015 issued by the DPO, Trivandrum. Annexure -R2(c): True copy of the letter No.V/P.626/Settlement/GBJ/2017 dated 21.03.2023 Annexure-R2(d): True copy of the letter No.P.500/TVC/PEN dated 22.03.2023 Annexure-MAR1: True copy of the letter bearing No.P(A)89/2021/97 dated 24.05.2021 O.A.636/2021 Annexure-A1: A true copy of Penalty Advice bearing No.V/P227/GL/ Vol.II dated 02.11.2016, issued by the 2 nd respondent. Annexure-A2: A true copy of Appellate Order bearing No. V/P227/A/ 2019/124/PB dated 08.01.2020, issued by the 3rd respondent.
Annexure-A3: A true copy of Revision Order bearing No. P(A)89/2021/ 97 dated 15.03.2021, issued by the 4 th respondent. Annexure-A4: A true copy of major penalty Memorandum of Charges bearing No.V/P227/2014/03/GBJ dated 14.09.2015, 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 38 issued by the 2nd respondent.
Annexure-A5: A true copy of Order bearing No.V/P227/2014/03/GBJ dated 19.11.2015 issued by the 6th respondent.
Annexure-A6: A true copy of the proceedings of the Inquiry held on 26.02.2016.
Annexure-A7: A true copy of the Inquiry report communicated to the applicant in June 2016 Annexure-A8: A true copy of objections dated 04.07.2016, submitted by the applicant addressed to the 2nd respondent Annexure-A9 series: A true copy of the certificates and other medical records indicating the treatment of the applicant. Annexure-A10: A true copy of the Master Circular No.67 bearing No.E (D&A)/2001 RG 6-3, dated 20.10.2002 issued by the Railway Board.
Annexure-A11: A True copy of the Surgical Pathology Report dated 29.05.2025, issued by the Regional Cancer Centre, Thiruvananthapuram.
Annexure-A12: A True copy of the medical certificate issued by the Amrita Institute of Medical Sciences, Ernakulam dated 18.06.2025.
Annexure-A13: A True copy of the estimate of expenses required for surgical treatment of the applicant issued by the Amrita Institute of Medical Sciences, Ernakulam dated 18.06.2025.
Annexure R1(A): True copy of the paper marked as Pre Page-16 in the file pertaining to the disciplinary case against the applicant 2025.09.18 DEEPA S 13:20:05 +05'30' O.A.Nos.327 of 2021 & 636 of 2021 39 Annexure R1(B): True copy of the Penalty Advice No.V/P.227/2014/03/ GBJ dated 12.11.2014 Annexure R1(C): The true copy of the Penalty Advice No.V/P.227/2014/ 03/GBJ dated 06.08.2015 Annexure R1(D): The true copy of Major Penalty Charge memorandum No.V/P.227/2014/03/GBJ dated 05.03.2014 with typed copy of R1(D)/2 Annexure RI(E): A true copy of the written statement of defence dated 24.03.2014 along with the medical documents submitted by the applicant Annexure R1(F): The true copy of the relevant pages of the File noting in DAR case file of the applicant Annexure R1(G): The true copy of letter dated 09.07.2015 along with medical certificate dated 08.07.2015 issued by Dr.S. Radhakrishnan with translation of malayalam words Annexure R1(H): True copy of the letter submitted by the applicant dated 14.07.2015 marked as DD-2 in the inquiry proceedings along with a typed copy.
Annexure R1(I): The true copy of the Medical Certificate issued by Dr.M.B.Sheya, Sheya Hospital Mayyanad dated nil ************ 2025.09.18 DEEPA S 13:20:05 +05'30'