Central Administrative Tribunal - Delhi
Through: H.P. Chakravorti vs The Union Of India Through on 28 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA NO.1417 OF 2012
Orders reserved on :24.04.2015
Orders pronounced on :28.04.2015
HONBLE Mr. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Jawahar Lal Upadhyay
aged about 54 years
Son of late Ramesh Chandra Upadhyay,
Clerk Chief Train Lighting Clerk,
DRMs Office, Northern Railway,
Delhi Division, New Delhi;
Resident of : 309, Shubham Apartment,
Agra, District AGRA U.P.
Through: H.P. Chakravorti, Advocate,
Bar Room, CAT,
P/Bench, New Delhi. ..Applicant.
(By Advocate : Shri H.P. Chakravorti)
Versus
1. The Union of India through,
The General Manager,
Northern Railway, Baroda House,
New Delhi-110001.
2. The Divisional Railway Manager,
Northern Railway, State Entry Road,
New Delhi-55. ..Respondents
(By advocate : Shri V.S. R. Krishna and Shri Shailendra
Tiwari)
ORDER
Mr. G. GEORGE PARACKEN, MEMBER (J):
This Original Application was earlier allowed vide order dated 26.09.2013 and its operative part reads as under:-
12. We have heard the learned counsel for the Applicant Shri H.P. Chakratory and the learned counsel for the Respondents Shri Shailendra Tiwari. In our considered view, that the Respondents have not acted in a legal or fair manner in this case. They have not applied their mind. It is seen that they have passed the impugned order dated 16/29.8.1984 in terms of Para 723-RI of IREC (Vol.I). In the reply affidavit, they clarified that it was an inadvertent mistake that they quoted the relevant provision as Para 723 but it is actually Para 732. But neither there is any Para 732 nor any Para 723 in the IREC (Vol.I). In fact, the Leave Rules are dealt with in Chapter 5 of the IREC (Vol.I) starting with Para 501 to Para 557. We have, however, gone through the said chapter. Nowhere in it, it is provided that an employee who is on unauthorized absence will be deemed to have resigned from service. The only reference to willful absence in the said chapter is in Para 518(a) which says willful absence from duty after the expiry of leave renders a railway servant to liable to disciplinary action. We fail to understand, without going through the relevant rules, how the competent authority could pass the impugned order. Therefore, the impugned order dated 16/29.08.1984 is an illegal, wrong and ab initio void one. Further, it is seen that admittedly the Applicant, did not perform his duty w.e.f. 22.02.1984. However, by the impugned Annexure A-1 order dated 16/29.08.1984, the Respondent-Railways, on their own, treated the period of absence of the Applicant from 22.02.1984 to 06.07.1984 as Leave Without Pay. There is no explanation as to how they could treat the absence for the aforesaid period as leave without pay when the Applicant has not applied for such leave or any other kind of leave. Another aspect of the case is that the Applicants wife has lodged a missing person report with the police on 05.04.1984 with a copy of the same to the DRM, Northern Railway, New Delhi. The Respondents have not taken any action on it as provided under the relevant rules. The Respondents have no excuse to say that they were not aware of the procedure to be followed if any employee is reported to be missing. The Respondents have not taken any effort to find out the whereabouts of the Applicant from the local police. If the Respondents were of the view that the Applicant was on unauthorized leave, they have also not issued any notice/direction to him to join duty failing which disciplinary action would be taken against him as unauthorized absence is undisputedly a misconduct.
13. In Roshan Lal Tandon Vs. Union of India and Another AIR 1967 SC 1889, a constitution Bench of the Supreme Court authoritatively laid down the proposition that although the origin of Government service is contractual, there being an offer and acceptance, in every case, yet once appointed to his post or office, the Government servant acquires a status and his rights and his obligations are no longer determined by consent of both the parties but by statute or statutory rules.
14. Generally, the jural relationship between the employer and a public servant can come to an end only for reasons of removal/dismissal from service for misconduct, termination of service for reasons other than misconduct, compulsory retirement, superannuation, voluntary retirement, resignation, abandonment of service by the employee and abolition of the post by the employer. There cannot be another mode called deemed resignation unless the rules provide for it for good and sufficient reasons. Admittedly, there are no such rules framed by the Respondents. The Apex Court in D.K. Yadav Vs. J.K. A. Industries Ltd. 1993 (3) SCC 259 held that it is difficult to acknowledge the presence of a rule of automatic termination in the public law field. The Andhra Pradesh High Court relying upon the aforesaid judgment of the Apex Court in D.K. Yadavs case (supra) held in its judgment in Dr. K. Subramanyam Reddy Vs. Sri Venkateswara University represent by the Registrar, Tirupathi and Another 1996 (1) SLR 168 (AP-DB) that there can be no rule of automatic termination for overstaying leave, without affording an opportunity of making a representation. The relevant part of the said judgment reads as under:-
It is difficult to acknowledge the presence of a rule of automatic termination in the public law field. Provisions which are not in consonance with principles of natural justice and mandates of Articles 14, 16 and 21 of the Constitution cannot be used as weapons by the employers to terminate the services of the employees. Law in this behalf has been candidly stated in the case of D.K. Yadav Vs. J.K. A. Industries Ltd. (1993) 3 SC 259 wherein it has been pointed out that if there is an allegation of unauthorized absence, that amounts to an allegation of misconduct and if there is an allegation of misconduct, termination of service without complying with the principles of natural justice would not be justified. The court has pointed out:-
8. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person.
9. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice
11. The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result, in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi- judicial inquiry and not to administrative inquiry. It must logically apply to both.
12. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable..
14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice.
15. Similarly the Apex Court in LAXMAN DUNDAPPA DHAMANEKAR AND ANOTHER Vs. MANAGEMENT OF VISHWA BHARATA SEVA SAMITI AND ANOTHER 2001 (8) SCC 378 held as under:-
There is no provision either in the Act or the Rules providing for automatic termination of services of a teacher on account of being absent without leave. If any teacher remains absent without any leave, it is open to the Management to terminate the services of such teachers only after complying with the provisions of the Act and the Rules or principles of natural justice. In the present case, we do not find any provision either in the Act or the Rules providing for automatic termination of service of a teacher in the event of a teacher remaining absent without leave. In the absence of such a provision in the Act or the Rules, the alleged deemed termination of services of the appellants without giving any opportunity to the appellants was unlawful and deserves to be set aside.
16. As far as delay is concerned, as rightly argued by the learned counsel of the Applicant, the impugned order dated 16/29.08.1984 of deemed resignation being a void order, having been made in breach of the rules, the defence of limitation raised by the Respondents cannot be sustained. Moreover, the contention of the Applicant that he was a missing person from 3.4.1984 has not been refuted by the Respondents. Therefore, the aforesaid order dated 16/29.08.1984 could not have been served upon the Applicant.
17. In the above facts and circumstances of the case, we allow this OA. Consequently, we quash and set aside the impugned orders dated 29.08.1984, 18.10.2010 and 11.04.2011. We also direct the Respondents to reinstate the Applicant in service with retrospective effect from 11.02.2009, the date on which he reported for duty with the fitness certificate of the same date, with all consequential benefits except back wages and allow him to join duty immediately but in any case within a period of two weeks from the date of receipt of a copy of this order. Thereafter, they shall take appropriate decision as to how the intervening period from 22.02.1984 till the date of his joining duty in terms of the aforesaid direction shall be treated. However, we make it clear that, if the Respondents consider that the Applicants absence during the aforesaid period was unauthorized, this order will not restrain or prohibit Respondents in any manner to take disciplinary action against the Applicant in consonance with the principles of natural justice.
18. In the above facts and circumstances, there shall be no order as to costs.
2. Thereafter, the Respondents have filed Review Application No.200/2013 in the aforesaid OA on the grounds that there were errors apparent on the face of record of the aforesaid order which needed to be rectified. They have pointed out that the Tribunal allowed the OA mainly on the ground that there was no Para 732 nor any Para 723 in the Indian Railway Establishment Code (IREC) (Vol-I). They have also pointed out that in Para-12 of the aforesaid order, this Tribunal held that Leave Rules are dealt with in Chapter 5 of IREC Vol. I starting from Para 510 to Para 557 and in those paragraphs also there is no provision that an employee who is on unauthorized absence can be deemed to have resigned from service. However, there is a specific statutory provision under Para 732 under the heading Other Staff and in the Note-2 below the said Rule, provision has been made for deemed resignation of an employee who remains absent from duty for any period which altogether with extraordinary leave granted exceeds the limit up to which he could have been granted such leave under sub-rule (1) of the Leave Rules. Consequent to the aforesaid submissions of the Review Applicant, this Tribunal allowed the RA and restored the OA to its original position vide order dated 22.08.2014.
3. Accordingly, this case has been again heard today, i.e. 24.04.2015. Admittedly, below Para 732 of Indian Railway Establishment Manual Volume-I, there is Note-2 which says that if a temporary Railway servant remains unauthorizedly absent from duty and the period of leave already sanctioned together with extraordinary leave granted exceeds the limit up to which he would have been granted such leave under the relevant rule, he shall be admitted to have resigned his appointment. The said Note is reproduced as under:-
Where a temporary railway servant fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him or where he is granted a lesser amount of extraordinary leave than the maximum amount admissible and remains absent from duty for any period which altogether with extraordinary leave granted exceeds the limit upto which he could have been granted such leave under sub-rule (1) above, he shall be deemed to have resigned his appointment and shall accordingly, ceased to be a railway employee.
4. In view of the complaints of arbitrary invocation of the said provision, the Railway Ministry has sought the factual position prevailing in the different Railways vide their D.O. letter No.E(P&A)I-84/CPC/LE-3 dated 19.06.1984. The said D.O. letter is reproduced as under:-
Sub: Removal from service of temporary Railway servant for unauthorised absence-Regarding.
Rule 2014 (F.R. 18)(2) enjoins that a Railway servant who does not resume duty after remaining on leave for a continuous period of five years or, after the expiry of leave, remains absent from duty, otherwise than on foreign service or on account of suspension, for any period which, together with the period of leave granted to him exceeds five years, he shall, unless the President, in view of the exceptional circumstances of the case, otherwise determines, may be removed from service after following the procedure laid down in the Discipline and Appeal Rules for Railway servants. This Rule does not make any distinction between temporary and permanent Railway servants.
Complaints are being received by this Ministry stating that temporary Railway servants are being removed from service without following the procedure laid down in the Discipline and Appeal Rules, for reasons of unauthorised absence, in terms of provisions contained in Note (2) below Rule 732-R-I. Could you kindly indicate the factual position prevailing on your Railway, as to whether a temporary Railway servant is removed from service on charges of unauthorised absence by following the prescribed procedure under the Discipline and Appeal Rules, or not.
Since the matter is one of extreme urgency I will be very grateful if you could kindly arrange to send your reply within a fortnight.
5. After getting the feedback from the Railways, the Railway Board vide letter dated 23.03.1985, amended the Note-2 under Para 732 under IREM Volume-I. The said letter is reproduced as under:-
Sub:- Removal from service of temporary Railway Employee for unauthorized absence amendment to Rule-732-RI.
Ref:- Replies in response to D.O. letter of even number dated 19/20-6-84.
1. In the light of the response to this Ministrys letter of even number dated 19/20-6-84, the Ministry of Railways have reviewed the provisions contained in Note (2) below Rule 732-RI.
2. Keeping in view the provisions contained in Rule-2011-RI and the current judicial pronouncements on the subject, it would not be correct to review a temporary Railway servant from service on grounds of Deemed resignation for reasons of unauthorized absence. Temporary railway servants also should be afforded an opportunity of being heard under the Discipline & Appeal Rules, before they are removed from service for unauthorized absence.
3. Accordingly, the President is pleased to decide, in exercise of powers conferred by proviso to Article 309 of the Constitution of India, that Note (2) under Rule-732 of the Indian Railway Establishment Code Volume-I shall be amended as in the advance correction slip No.419-RI from the date of issue of the said letter.
4. These instructions will not, however, apply to casual labour who have been granted temporary status and perquisites applicable to temporary railway employee, but have not been absorbed in regular temporary establishments. In their cases existing rules and orders will continue to remain in force.
6. Admittedly, the Applicant was removed from service on 16.08.1984, i.e. prior to issuance of the aforesaid letter dated 23.03.1985. Therefore, there is no merit in the contention of the Applicant that order of removal passed by the Respondents is ab initio void in view of the fact as no such Rule exist in IREM Volume at the time of issuance of order of removal.
7. We, in the above facts and circumstances of the case, are convinced that our order dated 26.09.2013 allowing this OA was based on erroneous facts. We, therefore, recall the aforesaid order and dismiss the OA. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) Rakesh