Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs Union Of India on 7 September, 2012
1 OA NO.414/2008 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.414/2008 DATED THIS FRIDAY THE 7TH DAY OF SEPTEMBER, 2012. CORAM : HON'BLE SHRI JUSTICE A.K. BASHEER, MEMBER (J). HON'BLE SHRI R.C. JOSHI, MEMBER (A) Shri Ashok Madhukar Wagh R/at. Ashok Nagarwad, Near New Railway Protection Force Barrack, RPD Road, Bhusawal. .. Applicant ( By Advocate Shri S.V. Marne) VERSUS 1. Union of India The General Manager, Central Railway Head Quarters, office, Mumbai CST, Mumbai 400 001. 2. The Sr. Materials Manager, (ACL), Central Railway, Bhusawal Division, Bhusawal, Dist. Jalgaon. 3. The Assistant Materials Manager (POH), Central Railway, Bhusawal Division, Bhusawal, Dist. Jalgaon. .. Respondents ( By Advocate Shri R.R. Shetty). O R D E R (Oral) Per: Shri R.C. Joshi, Member (A)
In this Original Application, the Applicant is aggrieved by imposition of penalty of removal from service on the charge of unauthorised absence.
2. The Applicant has sought the following reliefs:
a) This Hon'ble Tribunal may graciously be pleased to call for the records of the case 2 OA NO.414/2008 from the Respondents and after examining the same quash and set aside the impugned orders dated 12.04.2008 and 02.06.2008 with all consequential benefits.
b) This Hon'ble Tribunal may further be pleased to direct the Respondents to reinstate the Applicant in service w.e.f. 12.04.2008 with all consequential benefits including backs wages.
c) Costs of the Applicant be provided for.
d) Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed.
3. We have gone through the pleadings, documents enclosed and have extensively heard learned counsel Shri S.V. Marne for the Applicant and learned counsel Shri R.R. Shetty for the Respondents.
4. It is seen from the case papers that the Applicant was issued a charge sheet vide dated 30.11.2005 for unauthorised absence from 07.05.2005 to 04.11.2005. The Applicant after resuming his duties from 05.11.2005 worked till 28.12.2005. Thereafter he again was found to be absent from duty from 29.12.2005 onwards till 06.11.2006.
5. A perusal of case papers reveals that the Applicant was appointed as a Khalasi on 29.08.2003 on compassionate ground. The Applicant in their pleadings has not controverted the unauthorised absence of the Applicant from service but have stated that the Applicant was absent on duty for about six months from 07.05.2005 to 04.11.2005 since he was not in sound 3 OA NO.414/2008 mental health. He was treated by a Psychiatrist attached to the Mental Hospital, Thane from 07.05.2005 to 04.11.2005 and was, therefore, not in a position to inform the Respondents about his absence.
6. A departmental enquiry was held and the Applicant participated in enquiry on 18.12.2007 and as per the pleadings filed by the Applicant, he had explained to the Inquiry Officer about his mental condition and also accepted the charges. The Inquiry Officer in his report held that the charges against the Applicant are proved. The Disciplinary Authority vide order dated 12.04.2008 held that the Applicant guilty of the charge of unauthorised absence from 07.05.2005 to 04.11.2005 and imposed the penalty of removal from service. The Applicant, thereafter preferred an appeal before the Appellate Authority dated 12.05.2008 which was rejected vide the order dated 02.06.2008 passed by the Appellate Authority.
7. It is seen from written statement filed by the Respondents that the attendance record of the Applicant since the time he was appointed as a Khalasi shows that he was unauthorisedly absent from duty for 822 days till his removal. The Applicant remained unauthorisedly absent duty initially from 14.01.2005 to 06.11.2005 and thereafter from 07.05.2005 to 04.11.2005. Subsequently, he was also absent from 29.12.2005 to 06.11.2006. It is seen from the written 4 OA NO.414/2008 statement filed by the Respondents that the Applicant was in the custody of Railway Protection Force (RPF) in a criminal case involving theft of Railway material on account of which he was kept under suspension from 27.01.2005 to 29.03.2005. Owing to his unauthorised absence for a long period, he was issued a major penalty charge sheet vide dated 30.11.2005. In the meanwhile, the Applicant was acquitted of criminal charge vide judgment of the Railway Board dated 24.04.2008.
8. It has been pleaded by the Applicant that owing to his mental condition, he was not in a position to apply for leave and, therefore, could not intimate the Competent Authority about his absence. However, any of the Applicant's relatives could have informed the Competent Authority which does not appear to have been done in the present case. It is also seen that the Applicant has not informed the Respondents about his absence initially from 14.01.2005 to 24.01.2005, 05.05.2005 to 04.11.2005, 14.01.2005 to 24.01.2005 and was again unauthorisedly absent from 29.12.2005 to 06.11.2006. The Applicant participated in the departmental inquiry and accepted the charges fairly conceding that he was not mentally and physically sound during the period of unauthorised absence. The Applicant was given a copy of the Inquiry Report which he had acknowledged vide letter dated 08.08.2007 5 OA NO.414/2008 (Annexure R-1) and was finally issued the order dated 12.04.2008 by the Disciplinary Authority imposing the penalty of removal from service. The Applicant preferred an appeal which was rejected vide Appellate Authority's order dated 02.06.2008
9. It is, therefore, clear from the case papers that the Applicant has neither followed the Medical Rules nor intimated the Competent Authority about his sickness, which he was duty bound to do so. We have also perused the Inquiry Report submitted by the Inquiry Officer and find that the Applicant has not made any allegation of bias or discrimination against the Inquiry Officer. Due procedure has been followed by the Inquiry Officer and the Applicant was given all the opportunity to defend his case during enquiry and no infirmity has either been alleged or established by the Applicant. It is undisputed that the Applicant was unauthorisedly absent even after the charge sheet was issued to him. It has also been brought to our notice that the Applicant vide letter dated 04.12.2007 addressed to the Respondents had stated that his mental condition was not good and he was suffering from 'HIV' due to which he could not perform his duty and his sister be employed in the Railway service (Annexure R4). We have perused the order passed by the Disciplinary Authority as well as Appellate Authority and we do not find any infirmity in the said orders 6 OA NO.414/2008 passed by the Disciplinary as well as Appellate Authority. It is also seen that the Applicant was appointed on 29.08.2003 and from 2005 onwards, he started remaining an unauthorised absence from 07.05.2005 to 04.11.2005 and then from 29.12.2005 to 06.11.2006.
10. In view of the above, therefore, we do not find any merit in the Original Application. The same is dismissed being bereft of merit. No order as to costs. (R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J) ma.