Central Administrative Tribunal - Allahabad
Brijesh Kumar vs General Managar, N Rly on 15 July, 2025
OA No. 330/957 of 2018
(Reserved on 02.07.2025)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Pronounced on 15th day of July, 2025
Original Application No. 330/957 of 2018
Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial)
Hon'ble Mr. Anjani Nandan Sharan, Member (Administrative)
Brijesh Kumar, a/a 40 years, S/o Sri Bharat Singh, R/o Khushal Pur
Near Mata Mander, District Muradabad, presently working as Senior
Section Engineer (C & W), Northern Railway at Moradabad
....Applicant
PUNIT KUMAR
MISHRA
By Advocate: Vinod Kumar
VERSUS
1. Union of India, through General Manager, Northern Railway
Baroda House, New Delhi
2. The Divisional Railway Manager, Northern Railway Moradabad
Division, Moradabad
3. Additional Divisional Manager, Northern Railway Moradabad
Division, Moradabad
4. Chief Divisional Mechanical Engineer (C & W), Northern
Railway, Moradabad
5. Senior Divisional Mechanical Engineer (C & W), Northern
Railway, Moradabad
...... Respondents
By Advocate: Shri Bablu Singh
ORDER
By Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial):
Heard Mr. Vinod Kumar, learned counsel for the applicant and Shri Bablu Singh, learned counsel for the respondents at the time of hearing.
2. The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed for the following reliefs:
I. " To issue an order or direction in the suitable nature quashing the punishment impugned order dated 19.05.2017, appellate order dated 17.12.2017 as well as Page 1 of 6 OA No. 330/957 of 2018 revisional order dated 24.07.2018 passed by the respondent No.5, 4 and 3 respectively.
II. Issue a writ order or direction in the suitable nature directing the respondents department to restore the original position of applicant with all consequential benefit and pay the arrears of salary alongwith market rate of interest.
III. Any other order or direction to which this Hon'ble court may deem fit and proper in the facts and circumstances of the case.
3. The brief facts as apparent from the record of Original Application are that the applicant initially appointed as Khalasi under compassionate appointment on 27.11.1993 and lastly promoted to the PUNIT KUMAR MISHRA post of Senior Section Engineer (C & W), Northern Railway, Moradabad on 15.01.2015 and since then, he is working with the satisfaction of the respondents.
3.1 In the year, 2016, the mother of the applicant fell ill and was undergone for the treatment from the private doctor as her name was not included in the medical card of applicant at that point of time. Ultimately, the medical card has been issued in favour of the mother of applicant on 31.01.2017. Since the mother of the applicant was ill, he submitted his leave application on 15.12.2016 for 15.12.2016 to 20.12.2016 and again on 20.12.2016 for extension of leave till 26.12.2016. However, no recovery towards illness of his mother was made, the applicant submitted another application on 27.12.2016, 11.01.2017, 26.01.2017 & 01.02.2017 for extension of his leave. After the recovery of his mother, the applicant reported for his duty and requested from the Authorities to resume his duty, but he was permitted to join on 01.03.2017.
3.2 Surprisingly, a memorandum of Charge-sheet was issued on 01.03.2017 to the applicant on the sole charge of unauthorized absence w.e.f. 21.12.2016 to 28.02.2017 and an explanation was sought from the applicant. In reply, the applicant submitted his explanation vide his letter dated 11.03.2017 along with medical certificate. However, without considering the reply of the applicant, the Disciplinary Authority passed an order dated 19.05.2017 by which, a punishment of withholding of increment of one year without cumulative effect has been imposed upon the applicant.
Page 2 of 6OA No. 330/957 of 2018 3.3 Against which, the applicant preferred an appeal on 25.07.2017 before the Appellate Authority, but the same was dismissed vide order dated 17.12.2017 without considering the ground raised by the applicant in the memo of Appeal.
3.4 Against which, the applicant preferred a Revision Petition before the Revisional Authority on 09.02.2018, but the same was also dismissed vide order dated 24.07.2018.
3.5 Aggrieved by the aforesaid orders, the applicant has been constrained to knock the door of this Tribunal, challenging the order of Disciplinary Authority dated 19.05.2017, appellate order dated 17.12.2017 as well as revisional order dated 24.07.2018 passed by the respondent No.5, 4 and 3 respectively.
PUNIT KUMAR MISHRA
4. On the other hand, counter affidavit has been filed from the side of the respondents on 29.05.2019, wherein it has been stated that due to ailment of his old mother, the applicant was found unauthorized absence from duty w.e.f. 21.12.2016 to 28.02.2017 due to which he was served SF-11 by specifying therein the reason of issuance of SF-11. The applicant was posted as Senior Section Engineer (C & W) Break Down in charge on Accident Relief Train of Muradabad Depot, but he did not join as Senior Section Engineer /Accident Relief Train and applied for casual leave w.e.f. 15.12.2016 to 20.12.2016 on the plea that he will join on Accident Relief Train after leave period.
4.1 Later on, he again sent leave extension applications without sanction leave and as such, he deliberately remained absent from duty to avoid joining as Accident Relief Train Incharge, Muradabad. The applicant reported the office on 28.02.2017 and he resumed his duties on 01.03.2017 at down yard Moradabad when he himself assured that another SSE Break Down in charge has been posted on Accident Relief Train, Moradabad. Hence, Original Application is liable to be dismissed.
5. In reply, rejoinder affidavit has been filed by the applicant on 12.09.2019, wherein, reiterating the averments as made in Original Application.
6. Mr. Vinod Kumar, learned counsel for the applicant assailed the impugned orders on the ground that the respondents are Page 3 of 6 OA No. 330/957 of 2018 illegally and arbitrarily treating the period in question as unauthorized absence from duty without considering the fact that the applicant submitted leave applications within time along with medical certificate. The impugned orders are cryptic and non-speaking order. The leave of absence from duty is neither the intentional nor the deliberately as it is compelling circumstances, he was absent from duty due to illness of her mother for which, he submitted leave application within time and as such, impugned orders are not tenable in the eyes of law.
7. Per contra, Shri Bablu Singh, learned counsel for the respondents opposed the contention of the learned counsel for the applicant and submitted there is no illegality or infirmity in the impugned orders as the respondents have considering each and every PUNIT KUMAR MISHRA aspect of the matter, while passing the impugned orders. The applicant was posted as Senior Section Engineer/Accident Relief Train in charge at Moradabad, but he deliberately remained absent from duty to avoid joining as Senior Section Engineer/Accident Relief Train. When he came to know that another person has joined the said Accident Relief Train, then he joined the Department. The applicant was absent from duty without sanction of his leave and as such, charge sheet was issued against him and thereafter, imposed with minor punishment as he was unauthorized absent from duty. The explanation of the applicant was considered properly by the Disciplinary Authority and it was seen that though his mother was sick, but instead of getting her treatment in Railway Hospital, he sent to private Hospital even the medical diagnosis relates to hyper tension/cardiac issue, which is still prevailing but did not seek any prolonged leave after that. .
8. We have considered the submissions so raised by the learned counsel for both the parties and perused the records.
9. It reflects from the record that that it appears that the applicant was imposed with punishment of withholding of increment of one year without cumulative effect due to his absence from duty. For better appreciation of the matter, the impugned order dated 19.05.2017 is quoted as under :-
After going through the defence of employee, it is seen that though his mother was sick, but instead of getting her treated in Rly. Hospital, he went to Pvt. Hospital, even the medical diagnosis relates to hipertension/cardiac issue, which is still prevailing. The absence of duty on getting order to work on ART Page 4 of 6 OA No. 330/957 of 2018 and later keeping on delaying is a deliberate attempt by employee, showing his careless attitude towards Rly working. As such, he is now responsible and penalty of WIT of one year w/o cumulative effect is imposed.
10. From perusal of the impugned order, it appears that admittedly the mother of the applicant was sick as the Disciplinary Authority has already observed in the impugned order that though his mother was sick but instead of getting her treated in Rly. Hospital, he went to Pvt. Hospital, even the medical diagnosis relates to hipertension/cardiac issue, which was still prevailing. The applicant has already submitted his leave application and extension of leave application, within time, but the said fact was never considered by the PUNIT KUMAR MISHRA Disciplinary Authority. The applicant proceeded on leave due to compelling circumstances as the mother of the applicant was ill and as such, his absence was not wilful rather it was beyond his control due to illness of his mother and in this regard, the applicant submitted his leave application and extension of leave, within time. Similar issue fell for consideration before the Hon'ble Apex Court in case of Krushnakant B. Parmar v. Union of India, reported in (2012) 3 SCC 178, has held thus:-
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.
18. 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 the absence of such finding, the absence will not amount to misconduct.
19. 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 that the absence was wilful;
the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the court in judicial review in a departmental proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919] wherein this Court held: (SCC p. 95, para 25) "25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge.
Page 5 of 6OA No. 330/957 of 2018 Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
21. 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, PUNIT KUMAR MISHRA 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 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 29-9-1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty.
11. Further, neither the Appellate Authority nor the Revisional Authority has considered the aforesaid aspect rather, the both the Authority dismissed the appeal and revision by passing non-speaking order, which is not tenable in the eyes of law.
12. In view of above discussions, the order dated 19.05.2017 passed by the Disciplinary Authority, Appellate order dated 17.12.2017 as well as Revisional order dated 24.07.2018 are not tenable in the eyes of law and as such, same hereby set aside.
13. In view of the quashment of the impugned orders, the applicant is entitled for all the consequential benefits. Accordingly, the respondents are directed to release the same, within a period of twelve weeks'
14. Resultantly, instant original Application stands allowed.
15. All MAs pending in this O.A. also stand disposed off.
16. No order as to costs.
(Anjani Nandan Sharan) (Justice Rajiv Joshi)
Member(Administrative) Member (Judicial)
PM/
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