Union Of India vs Union Of India on 9 October, 2018

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Kerala High Court

Union Of India vs Union Of India on 9 October, 2018

1.Union of India and its officers in the Railway Establishment, have come up before this Court challenging the order dated 14.9.2018 passed by the Central Administrative Tribunal in O.A.628/2018, raising various contentions. The said application filed by the respondent herein carried mainly the prayer for quashment of Annexure-A10. Further prayers of the respondent in the OA. are as follows :-

(i).direct the 5th respondent to sanction childcare leave to the applicant upto 16 November 2018 without any interruption as required in Annexure-A5 application.

(ii).direct the 5th respondent to regularise the period of absence of the applicant from 16.5.2018 as eligible chidcare leave and grant all consequential benefits and drop all disciplinary proceedings contemplated against the applicant.

(iii).direct the 5th respondent not to compel the applicant to resume duty immediately OP(CAT).178/2018 3 before the expiry of CCL sought by her as per Annexure-A5 application.

(iv).declare that the applicant is entitled to get family pension being the widowed daughter of the deceased Railway Pensioner from 4.2.2009 ie., the date of death of the family pensioner.

2. The petitioners herein filed a reply statement resisting the contentions. The Tribunal after considering the rival contentions, passed the impugned order by which the O.A was disposed of with a direction to the respondents to grant the applicant Child Care Leave ('CCL' for short) for 90 days from 16.3.2018 as sought for by the respondent as per Annexure-A5 leave application. It is in the said circumstances that this Original Application has been filed.

3.We have heard the learned counsel for the petitioners.

4. It is to be noted that going by the directions of the Tribunal, 190 days' leave have to be granted from 16.3.2018. Evidently that period had expired on 21.9.2018. True that the order was passed on 14.9.2018 and order in that regard OP(CAT).178/2018 4 was directed to be issued within 15 days from the date of receipt of a copy of that order. The order dated 14.9.2018 is admittedly received by the petitioners on 17.9.2018. Therefore, the decision in terms of the directions of the Tribunal, was to be taken on or before 1.10.2018. However, this OP was filed only on 5.10.2018.

5. Now we will consider the case on merits. The very pleadings of the petitioners reflected through their reply statement filed before the Tribunal themselves would reveal that the baby of the respondent was born prematurely with a weight of 1.590 Kgs. The narration of facts in the said reply statement would reveal that the application for maternity leave was submitted earlier by the respondent herein/the applicant in the O.A and the same was granted. Subsequently, the CCL for 90 days, applied as per Annexure-A2, was also granted. It is thereafter that she applied for leave from 16.3.2018 to 16.11.2018 as per Annexure-A5. The OP(CAT).178/2018 5 contention of the petitioners is that the said application was given to the 5 th respondent an authority incompetent to grant leave in excess of 90 days and therefore, that application was forwarded to the higher authority with a recommendation to grant leave for 90 days. It is the case of the petitioners that Annexure-A4 representation was not actually received. But at the same time, a careful perusal of Annexure-A4 would reveal that it contains an endorsement of the 5th respondent to the effect that she could be sanctioned 90 days leave. It is also the contention that as per Annexure-A5, she further sought leave from 16.3.2018 itself. The learned Standing counsel submitted that if Annexure-A4 representation was actually submitted and it was sanctioned, there was no requirement for the respondent to submit file Annexure-A5 seeking leave from 16.3.2018. Whatever that be, the fact is that Annexure-A5 was forwarded and the respondent herein/the applicant was granted CCL only for 60 days. Later, the respondent submitted Annexure-A8. which cannot be said to OP(CAT).178/2018 6 be an application for leave, though it was described as such by the petitioners. A bare perusal of Annexure-A8 would reveal it actually carries the grievance against the non- sanctioning of leave as applied for. It is to be noted that the applicant had applied for leave from 16.3.2018 to 16.11.2018. But it was granted only for 60 days. It is projecting the grievance against the action in limiting the leave only for 60 days that Annexure-A8 representation was submitted seeking leave upto 16.11.2018. Though it is addressed to the 5 th respondent, the contention of the petitioners is that since the 5th respondent being incompetent to consider such a request, it was returned. But a careful scanning of the reply statement would reveal that such a contention is raised for the first time and there is absolute absence of any such contention in the reply statement filed before the Tribunal. In this context, it is also relevant to note that no such specific contention was taken in this Original Petition, as well.

OP(CAT).178/2018 7

6. We have carefully considered the reply statement filed by the petitioners before the Tribunal. It is not stated therein that Annexure-A8 representation, submitted by the applicant before the 5th petitioner herein/5th respondent before the Tribunal, was returned with a direction to present it before the appropriate authority. In this context it is also to be noted the specific case of the petitioners is that Annexure-A5 application seeking leave in excess of 90 days was forwarded by the 5 th respondent to the competent authority. If that be so, we are unable to understand why as to Annexure-A8 representation was not forwarded by the 5th respondent to the competent authority especially taking note of the fact that the respondent herein was seeking leave to look after a child born prematurely. Annexure-A10 was issued by the 6th respondent/6th petitioner herein for the reason that the respondent had failed to re-join duty on 15.5.2018, ignoring all the aforesaid aspects.

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7.In Annexure-A10 it is observed thus :-

"It is reported by SE/PW/KGQ that you are on unauthorized absence from 16.5.2018 onwards without prior approval and not reported for duty till date. The period is treated as unauthorised absence and you are called upon to resume duty forthwith. If you are unfit to join duty by reason for your illness, you should immediately produce a Medical Certificate from the Railway Medical Officer. If you do not resume duty before 16.7.2018, you will be taken up under severe DAR."

8.It is further stated in Annexure-A10 thus :-

"This is without prejudice to any departmental action that may be taken against you for the reason of your unauthorized absence."

9. It is the common case that leave application was submitted by the respondent herein/the applicant for availing CCL. It was sought for upto 16.11.2018. When that fact is not in dispute, and in fact, that is the specific case of the petitioners as well, we do not know why the respondent/applicant was asked to produce a medical certificate if she was unfit to join duty. The respondent herein had never submitted an application for leave citing the ground of OP(CAT).178/2018 9 illness. She was also threatened with disciplinary proceedings in case of her failure to comply with the directions to re-join duty. Though the learned counsel appearing for the petitioners submitted that Annexure-A8 representation was returned to the respondent/the applicant, there is absence of any such pleadings in the reply statement as also in the Original Petition, as noticed hereinbefore. In such circumstances such a contention cannot be permitted to be taken up for the first time before this Court. Therefore, we are of the considered view that keeping the said application pending, the petitioners ought not have issued Annexure-A10. A perusal of the impugned order would reveal that the Tribunal had taken note of all such crucial aspects and also the fact that 'CCL', which is permitted under rule 551(E) of the Indian Railway Establishment Code, provides granting of leave to a woman railway servant having minor children below the age of 18 years for a maximum period of two years (730 days). When that be the OP(CAT).178/2018 10 provision, when a woman railway servant sought for leave to look after a child born prematurely with 1.590 Kgs, the petitioners were not at all justified in refusing grant the same and then threatening her with dire consequences, especially without passing any orders on Annure- A8 representation. It is to be noted that she was required to produce a medical certificate as if she is unfit to join duty by reason of her illness knowing fully that she had applied for CCL upto 16.11.2018. We have no hesitation to hold that the said action on the part of the petitioners would defeat the very purpose for which provision for granting CCL was provided under Rule 551 of the Indian Railway Establishment Code. If such leave is declined in a situation where a woman railway servant sought it for looking after her baby who born prematurely with only a weight of 1.590 Kgs, what else can be a better situation to avail 'CCL' ? The order of the Tribunal in such circumstances has to be taken as an order passed really realizing the soul of the provision of OP(CAT).178/2018 11 Rule 551 (E) of the Indian Railway Establishment Code. The Tribunal in paragraph 7 of its impugned order cited certain decisions to lead support to its view and to its consequential direction to grant grant the applicant/the respondent CCL for 190 days. We have no hesitation to hold that the by-product of the said order of the Tribunal is nothing but justice. We do not think it proper or just to interfere with such an order as according to us, any such interference could erase justice.

10. In the result, this Original Petition is liable to fail and it is accordingly dismissed.

Sd/-

C.T.RAVIKUMAR Judge Sd/-

A.M.BABU Judge Mrcs/10.10.

OP(CAT).178/2018 12 APPENDIX EXHIBITS:

EXHIBIT P1 TRUE COPY OF O.A. 180/00628/2018 FILED BY THE APPLICANT BEFORE THE CAT/ERNAKULAM.

EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER DATED 17.7.2018 IN O.A. 180/00628/2015 OF CAT/ERNAKULAM.

EXHIBIT P3 TRUE COPY OF ORDER DATED 26.7.2018 OF DPO/PGT TO THE APPLICANT.

EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED BY RAILWAY IN O.A. 180/00628/2015.

EXHIBIT P5 TRUE COPY OF M.A. 180/00919/2018 FILED BY THE APPLICANT IN O.A. 180/00628/2015 EXHIBIT P6 TRUE COPY OF ORDER DATED 14.09.2018 IN O.A. 180/00628/2018 OF CAT/ERNAKULAM.

/True copy/ P.S.To Judge

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