Central Administrative Tribunal - Kolkata
Snigdhendu Ghosh vs Clw on 18 March, 2025
1 o.a. 706 of 22
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A. 350/706/2022 Heard On: 21.02.2025
Date of order: 18.03.2025
Present :Hon'ble Mr. Manish Garg, Judicial Member
Hon'ble Mr. Anindo Majumdar, Administrative Member
Dr. Snigdhendu Ghosh, son of Late Nilkamal Ghosh, residing at
Village and Post Office- Dignagar, District-Purba Bardhaman,
West Bengal, PIN-713128.
.... Applicant
- Versus -
1. The Union of India, service through the Secretary, Ministry
of Railways (Railway Board), Department of Railways having it
registered office at Rail Bhawan, New Delhi, PIN 110 001,
2. Chittaranjan Locomotive Works, service through the General
Manager, having its office at Chittaranjan, District- Paschim
Bardhaman, West Bengal, PIN-713 331;
3. Kasturba Gandhi Hospital, service though the Principal Civil
Medical Officer, having its office at Kasturba Gandhi Hospital,
Chittaranjan, Paschim Bardhaman, PIN-713 331;
4. Director (Eastern), Spl., Railway Board, having its office at
Room No. 332, Rail Bhawan, New Delhi, PIN-110001;
5. Assistant Personal Officer, (GAz.), Railway Board having its
office at Rail Bhawan, New Delhi, PIN-110 001;
6. The Chairman, Railway Board, having office at Rail Bhawan,
1, Raisina Road, New Delhi, PIN-110 001, Central Accounts
Office, G.C.L. 18A, Brabourn Road (7th floor), Kolkata-700001;
7. Chief Medical Director, Eastern Railway, having its office at
Fairley Place, B.B.D. Bagh, Kolkata, West Bengal- 700001;
8. The General Manager, Chittaranjan Locomotive Works
having its office at Chittaranjan, District- Paschim Bardhaman,
West Bengal, PIN-713 331;
Digitally signed by Pampa Nandi
Debnath
DN: C=IN, O=Personal, T=1575,
OID.2.5.4.65=
133596280922834876S4dj74l44O
Oh8c, Phone=
feef9776669c46fe6184e820dd910d
d7d01593942dd0b54986bb0e3896
Pampa Nandi West
815227, PostalCode=700131, S=
Bengal, SERIALNUMBER=
965e50cc3fa0709cded2168635dee
Debnath 2247261f62bbbc47678dd5cb72a13
3ee6b9, CN=Pampa Nandi
Debnath
Reason: I am the author of this
document
Location:
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2 o.a. 706 of 22
9. The Chief Medical Superintendent, Chittaranjan Locomotive
Works, Kasturba Gandhi Hospital having its office at Kasturba
Gandhi Hospital, Chittaranjan, Paschim Bardhaman, PIN-713
331;
10. The Chief Medical Officer, Chittaranjan Locomotive Works,
Kasturba Gandhi Hospital having its office at Kasturba Gandhi
Hospital, Chittaranjan, Paschim Bardhaman, PIN-713 331;
..........Respondents.
For the Applicant : Mr. P. Majumder, Counsel
For the Respondents : Ms. T. Sinha Palit, Counsel
ORDER
Per Mr. Manish Garg, JM:
The applicant has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"a) An order do issue directing the respondent authorities to set aside the speaking order dated 25th May, 2016 issued by Disciplinary Authority in the disciplinary proceedings initiated by the Charge sheet bearing No. GMA/CON/273 (SG) dated 10th September, 2014 in so far as it holds that the period after 20th January, 2011 is not to be counted as qualified service and the applicant will not be entitled for retirement benefits;
b) An order do issue directing the respondent authorities no to take any action and/or further action and/or to otherwise act in terms of the speaking order dated 25th May, 2016 issued by Disciplinary Authority in the disciplinary proceedings initiated by the Charge sheet bearing No. GMA/CON/273 (SG) dated 10th September, 2014 in so far as it holds that the period after 20th January, 2011 is not to be counted as qualified service and the applicant will not be entitled for retirement benefits;
c) An order do issue directing the respondents to set aside the letter dated 19th January, 2022 issued by the Director (Estt.), Spl, Railway Board, having its office at Room No. 332, Rail Bhawan, New Delhi, Government of India in so far as it holds that the period from 20th January, 2011 to 16th January, 2022, shall be treated as 'dies non';
d) An order do issue directing the respondent authorities no to take any action and/or further action and/or to otherwise act in terms of the letter dated 19th January, 2022 issued by the Director (Estt.), Spl, Railway Board, having its office at Room No. 332, Rail Bhawan, New Delhi, Government of India in so far as it holds that the period from 20th January, 2011 to 16th January, 2022, shall be treated as 'dies non';Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone=
feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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e) An order do issue directing the respondents to release all the retirement benefits which falls due in favour of the applicant for his service under the respondent authorities till 16th January, 2022 to the applicant along with interest to the tune of 18% thereon calculated from the date of accrual of such retirement benefits till the date of payment thereof to the applicant;
f) Any further order or orders which this Learned Tribunal may deem fit and proper."
2. On 12.02.2025 the following orders have been passed:
"Ld Counsel for both the parties are present.
Heard.
Ld Counsel for the applicant submits that the applicant has submitted an application for voluntary retirement. He further submits that the applicant tendered resignation vide communication dtd. 04.10.2014 addressed to the General Manger, CLW, Chittaranjan and followed by the same the applicant has also made several representations seeking the fate of the communication dtd. 04.10.2014. However, no decision has been taken or no order has been passed by the competent authority regarding the said communication dtd. 04.10.2014. Thereafter, the said communication for resignation dtd. 04.10.2014 was withdrawn by the applicant within the reasonable period of time as contemplated under rules.
Ld Counsel for the applicant further submits that even thereafter the applicant has made attempt to get his case reconsidered and to be granted with benefit of voluntary retirement.
We observe that the word "Resignation" is missing in the communication/reminder dtd. 25.10.2018.
Ld Counsel for the applicant further draws our attention to the fact that finally the competent authority accepted the resignation of the applicant on 19.01.2022.
It is not disputed by the Ld Counsel for the applicant in the present matter that a charged memorandum dtd. 10.09.2014 was issued purportedly against the applicant under Rule 9 of Railway Servants (D&A) Rules, 1968 and the imputation of charge was as under:
"As per record, Dr. Ghosh is absenting from his duties w.e.f. 20.01.2011, and did not report to CLW Administration on or from 20.01.2011 to till date. Several letters were issued to him from time to time by the CLW Administration, last one on 02/05/2012 for reporting to duty, but neither he responded nor sent any intimation to CLW Administration, as such he is unauthorisedly absenting from his duty for the last 3½ years."
However, it can be seen that, thereafter, a detailed and appropriate reply dtd. 03.10.2014 was submitted by the applicant before the competent authority, interestingly 01 day prior to his resignation letter.
Ld Counsel for the applicant further submits that no inquiry report was ever submitted by the respondent authority, the applicant only received a punishment/speaking order dtd. 25.05.2016 which states inter alia:
Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone=feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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4 o.a. 706 of 22 "4. Taking a note that he has tendered resignation vide his Letter No. Nil, dated 04.10.2014 on the medical ground with immediate effect, appropriate view is being taken in the matter.
Dr. Snigdhendu Ghosh, Sr.DMO (Neuro) has not performed railway duty w.e.f. 20.01.2011 to till date. The period after 20.01.2011 is not to be counted as qualified service. He will not be entitled for any retirement benefits.
Taking an overall view, it is decided to impose the penalty of 'censure' on Dr. Snigdhendu Ghosh, Sr.DMO (Neuro) by reducing the charges from major penalty to minor penalty."
On query Ld Counsel for the applicant submits that neither any revision nor any review has been preferred qua the punishment/speaking order dtd. 25.05.2016.
However, he submits that the applicant made a representation dtd. 24.10.2016 which has not been disposed of by the Appellate Authority and last such representation was made on 15.12.2017.
Ld Counsel for the applicant relies on the Master Circular No. 60 on Pension and Retirement Death Gratuity, wherein, in para 1 it has been stated as under:
"1. Eligibility to Pension and amount of pension 1.1. Pension is admissible to a permanent railway servant with a minimum of 10 years qualifying service on his quitting service on account of either abolition of post or medical invalidation or retirement on completion of 30 years service or superannuation. However, with effect from 1.1.1986, temporary railway servants retiring on superannuation or on being declared permanently incapacitated for further Railway service by the appropriate medical authority with 10 years qualifying service shall be eligible for superannuation/invalid pension, retirement gratuity and family pension at the same scale as admissible to permanent employee. Temporary employees on seeking voluntary retirement after completion of 20 years service shall continue to be eligible for pension, retirement gratuity and family pension as per the Scheme of Voluntary retirement.
1.2. Railway servants retiring before completing 33 years qualifying service but after completing 10 years qualifying service, the amount of pension shall be calculated at 50% of the average emoluments and proportionate to the amount of pension for 33 years qualifying service."
Ld Counsel for the applicant further relies on the para 4 of the same circular where it is stated as under:
"RETIREMENT/DEATH GRATUITY With effect from 1.1.1986, in the case of a Railway servant who has completed five years qualifying service, retirement gratuity on retirement shall be paid equal to 1/4th of his emoluments for each completed six monthly period of qualifying service subject to a maximum of 16/½ times the emoluments provided that the amount of retirement gratuity payable shall in no case exceed one lakh of rupees There will also be no ceiling on reckonable emoluments for calculating the gratuity.Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone=
feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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5 o.a. 706 of 22 1.2. In the event of death in harness, the death gratuity shall be admissible at the following rates."
Now Ld Counsel for the respondents relies on the para 5 of the reply which states as under:
"Dr. Ghosh, the applicant, during his tenure, applied for 06 days of Leave on Average Pay (LAP) on 13.01.2011 excluding 18.01.2011, citing the treatment of his mother. However, he returned to duty on 17.01.2011 due to the exigency of service for the formation of a medical board, Subsequently, he applied for an additional 03 days of LAP starting from 20.01.2011. Unfortunately, he met with a severe road accident on 24.01.2011, and instead of reporting to the CLW Railway Hospital, he sought treatment elsewhere.
The applicant, was reported to be absent from duty in an unauthorized manner from 20.01.2011, as per CMS's CLW letter No. Made/PS/CON/01 (Dr. Ghosh) dated 05.05.2011 and CPO's letter No. GMA/GS/P-1832 dated 12.05.2012. Despite several letters from CLW authorities urging him to resume duty, he failed to do so. Consequently, a major penalty charge sheet was issued on 10.09.2014, resulting in a "Censure" as a minor penalty under Rule 6 of the Railway Servant (Discipline & Appeal Rules 1968). The Disciplinary authority decided that the service period from 20.01.2011 would not be considered for qualifying service, and the applicant would not be entitled to retirement benefits for the relevant period.
The applicant tendered his resignation from Railway service on 04.10.2014, which was accepted by the Railway Board on 19.01.2022. However, the voluntary retirement application submitted thereafter was not considered, as the initial appeal of resignation had already been decided. The period from 20.01.2011 to 16.01.2022 was treated as "Dies Non."
The applicant raised concerns about his appeals not being taken into consideration by the administration. However, multiple correspondences sent to the applicant's address were returned, indicating that Dr. Ghosh was not available at the provided address.
It is important to note that retirement benefits on resignation, as per Railway Board Master Circular No. 54 in Para 8 Chapter No-14, are not applicable, except for Provident Fund, Group Insurance, and 50% of the balance LAP as Leave Encashment (up to a maximum of 150 days). Therefore, the claim for retirement benefits, including pension, on resignation is not considered admissible and may be dismissed by the Hon'ble Court as per the applicable laws."
Ld Counsel for the respondents also files supplementary affidavit as was directed by this Tribunal vide order dtd. 20.12.2024. The said supplementary affidavit is taken on record. Paras 2, 3 and 4 of the said affidavit states as under:
"2. That the letter dated 25.10.2018 addressed to GM/CLW was received in original on 30.10.2018 and available at file No. GMA/Con/273 (SG).
3. That the photocopy of the letter dated 27.06.2019 was received as an Annexure to D.O. Letter No. 146 dated 28.12.2020 of Shri Pinki Ranjan Sarkar, Addl. Private Secretary, Union Minister of State Environment, Forest & Climate Change, Government of India. The D.O. letter was received in original on 04.01.2021.
Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone=feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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4. That the letter dated 25.10.2018 was received in original at CLW on 30.10.2018, another letter dated: 27.06.2019 was in photocopy received as an annexure with D.O. letter no. 146 dated: 28.12.2020 (received on 04.01.2021). Hon'ble President of India accepted resignation of Dr. Snigdhendu Ghosh w.e.f. 16.01.2022 and the period from 20.01.2011 to 16.01.2022 ie. the date of acceptance of resignation was treated as Dies- Non vide Railway Board letter no. E(0)III/RN/07 dated 19.01.2022). Both the documents are available at D&AR case file of Dr. Snigdhendu Ghosh, Sr. DMO/Neuro (File no. GMA/CON/273(SG). The letter dated 25.10.2018 & 27.06.2019 are subsequent to the letter dated 04.10.2014 and appropriate authority was still seized of the letter dated 04.10.2024, which was a request letter for accepting resignation. Until any decision on the letter 04.10.2024 was arrived at, subsequent letter could not be dealt with. A disciplinary proceeding for unauthorized absence was pending against the applicant from 10.09.2014 to 25.05.2016. Having apprehension of major punishment, the applicant tendered resignation. But as the NIP was issue after 25.05.2016, the applicant, having realised that he had over the possibility of rigorous punishment, turned around to apply for VR. His cunning voita-faced stands per-se is sufficient to disallow him any equitable relief.
Eventually, the resignation requested by the petitioner, was accepted and thus the letter dated 25.10.2018 & 27.06.2019 become futile. Hence no decision could be taken on stale matter. It is worth mentioning that the applicant, being a doctor, never had any intention to discharge any responsibility towards Railway or its employee. The petitioner after 20.01.2011 never reported to join duty. Even during Disciplinary proceeding from 10.09.2014 to 25.05.2016 petitioner did not join duty though he was never suspended. The applicant asks for all benefits without any service in return. The applicant has taken the Railway service for granted without playing his part of the service he was supposed to render. In spite of above irresponsible actions and omissions on the part of the petitions the DA has taken a lenient view, neither the punishment not the incidental order of dies-non should have been challenged. The employee who never intended to serve railways cannot ask for VR. Moreover as per Rule, the period which has been treated as dies-non cannot be considered for qualifying service, the total service period less the period of dies-non does not constitute 20 yrs. As such the application for VR could not be considered as total effective period becomes less than 20 yrs. So the application for VR was not considerable and hence not decided upon."
The matter is "Part Heard".
The respondents are directed to produce records of the disciplinary proceeding on the next date of hearing.
List the matter on 21.02.2025 under the heading "Specially Fixed Matters For Hearing".
3. In terms of the direction of this Tribunal dated 12.02.2025, the respondents have produced the Original Record of Disciplinary Proceedings.
Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone=feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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4. A charge sheet came to be issued vide order dated 19.01.2022 (Annexure A/7) with Memorandum dated 10.09.2014 in terms of holding an enquiry under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968. The substance of imputation of charges is as under:
"Dr. Snigdhendu Ghosh, Sr.DMO/BRSH/SDAH on being released from E/Rly reported to CLW on 15.07.2009 (F/N) and posted as Sr.DMO/Neuro/KGH/CLW/CRJ, vide Office Order No. GAZ/191/2009. As per record, Dr. Ghosh is absenting from his duties w.e.f. 20.01.2011, and did not report to CLW Administration on or from 20.01.2011 to till date. Several letters were issued to him from time to time by the CLW Administration, last one on 02/05/2012 for reporting to duty, but neither he responded nor sent any intimation to CLW Administration, an such he is unauthorisedly absenting from his duty for the last 3 years.
By the above act of commission/omission, Dr. Snigdhendu Ghosh, Sr. DMO/Neuro has acted in a manner which is unbecoming of a railway servant and shown lack of devotion to duty Thus, he has contravened Rules 3.1(ii) & (iii) of Railway Service (Conduct) Rules 1966."
The said Article of charges came to be a formal enquiry under the Provision of Rule 9 where Annexure 1, 2, 3 and 4 has been enclosed i.e. list of documents, list of witnesses etc. It is not in dispute that Rule 9 contemplates the procedure of imposing major penalty. Therefore, admittedly, as per rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968, major penalty has been invoked.
5. The applicant joined the Railway Service on 27.07.1993. Admittedly, the applicant tendered resignation on 04.10.2014. In the interregnum, a departmental proceedings was initiated vide memorandum dated 10.09.2014 as highlighted above. The said major penalty charge sheet converted to the speaking order by the competent authority vide order dated 25.05.2016 which reads as under:
"One major penalty charge sheet vide No. GMA/CON/273(SG), dated 10.09.2014 has been issued against Dr. Snigdhendu Ghosh, Sr. DMO (Neuro)/CLW/CRJ under Rule No. 9 of Railway Servants D&A Rule 1968. The CO has submitted reply to that Memorandum of Charges on 3rd October 2014. After going through the article of charges and the reply of the CO, the following observation is made:Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone=
feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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1. Dr. Snigdhendu Ghosh had applied for grant of LAP for 03(three) days we.f. 20.01.2011 to 22.01.2011 suffixing 23.01.2011 being a holiday which was regretted by the administration on the context of CMD visit. However, Dr. Ghosh had proceeded on leave without awaiting for sanction of the applied leave which directly contravene the provision of LLR where the employee should proceed on recorded leave with prior intimation and sanction of the competent authority. Subsequently it is noticed that he did not join duty till date. From the reply of the CO it is seen that he suffered a road accident and was under treatment at Burdwan Medical College & Hospital on 24.01.2011 wherein the CO was advised for bed rest for three weeks. However, no such intimation was sent to this office immediately and as per Service Conduct Rule the charged official is supposed to report to a Railway Medical Practitioner or report to his Headquarter for medical checkup and treatment as soon as he found fit to travel. The CO was also intimated by Dy.CPO/G through registered post vide Letter No. GMA/GS/P 1832, dated 16.02.2011 to resume duty immediately. Subsequently, CMS/CLW has also intimated the CO to report for duty failing which D&AR action would be initiated. Several letters were sent to CO to this effect.
2. However, from reply dated 03.10.2014 by CO as well as remarks from the postal department it is seen that subsequent letters were returned "undelivered". However, for a Railway Servant, absenting unauthorisedly proves the charges brought under Article No. 1 i.e. unbecoming of a Railway servant and lack of devotion to duty. Ample opportunity was given to him by the administration to report for duty and to submit his defence in respect of his failure to attend duty on time but in every occasion he failed to submit any reference or satisfactory documents which can disprove the charges. This indicates that he willfully avoided the duty and did not report to his headquarter. This proves the charges which contravene Rule 3.1(ii) & (iii) of Railway Service Conduct Rules 1986.
3. From the records it is revealed that his salary had been stopped since February-2011 and no payment towards his salary could be made till date under no work no pay'.
4. Taking a note that he has tendered resignation vide his Letter No. Nil, dated 04.10.2014 on the medical ground with immediate effect, appropriate view is being taken in the matter.
Dr. Snigdhendu Ghosh, Sr.DMO (Neuro) has not performed railway duty w.e.f. 20.01.2011 to till date. The period after 20.01.2011 is not to be counted as qualified service. (He will not be entitled for any retirement benefits.
Taking an overall view, it is decided to impose the penalty of 'censure' on Dr. Snigdhendu Ghosh, Sr.DMO (Neuro) by reducing the charges from major penalty to minor penalty."
6. The applicant's resignation was accepted on 19.01.2022 (Annexure A-18) which reads as under:
"The President is pleased to accept the resignation of Dr. Snigdhendu Ghosh , a Selection Grade Officer of Indian Railway Health Service, from Railway Service with effect from 10.01.2022, as requested by him subject to payment of all outstanding dues, if any, by him. The period from 20.01.2011 to 16.01.2022 i.e. the date of acceptance of his resignation shall be treated as 'dies non'.
2. Necessary formalities as per rules may be completed accordingly under intimation to Board's Office."Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone=
feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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7. In view of above background, the applicant seeks the aforementioned reliefs.
8. It is the bone of contention of the learned counsel for the applicant that the disciplinary proceedings even though not tenable under the law, the penalty is imposed without giving opportunity of being heard without following the principle of natural justice and without detailed enquiry in terms of the major penalty proceeding is being initiated and if the court arrive at a finding of vitiation of any proceedings in the fact and circumstances of the case the applicant shall be entitled to conversion of resignation to VRS.
9. Having heard the counsel for the parties and perused the records of the case.
10. ANALYSIS Challenge to Departmental Proceedings:-
In Food Corporation Of India vs Sarat Chandra Goswami arsing out of CIVIL APPEAL NOs. 7201-7202 OF 2008decided on 21 May, 2014, it was observed as under :-
"9. On a perusal of the order passed by the learned Single Judge, we find that he has taken note of the fact that there was no expression or formation of opinion. He has further recorded that the learned counsel for the Corporation had conceded that there was nothing to show that the Chairman-cum-Managing Director who had made the final order had recorded any opinion in writing before making the final order to the effect there was no need to hold a regular inquiry. From the principle stated by this Court in A. Prahalada Rao's case it is quite limpid that though in all cases where the employees disputes his liability, a full-fledged enquiry is not expected to be held as that would frustrate the purpose of interpreting the summary procedure for imposing minor penalties, yet the discretion conferred under the Regulation 1960 (1)(b), if exercised in a arbitrary manner, it is open to the employee to challenge the same before the appropriate forum. The Court had further opined that the Regulation 60(1)(b) mandates the disciplinary authority to form its opinion whether it is necessary to hold an inquiry in a particular case or not.
10. Once it is held that there has to be formation of opinion and such an opinion is assailable in a legal forum, we are of the view that the said Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 10 o.a. 706 of 22 opinion has to be founded on certain objective criteria. It must reflect some reason. It can neither be capricious or fanciful but demonstrative of application of mind. Therefore, it has to be in writing. It may be on the file and may not be required to be communicated to the employee but when it is subject to assail and, eventually, subject to judicial review, the competent authority of the Corporation is required to satisfy the Court that the opinion was formed on certain parameters indicating that there was no necessity to hold an enquiry. Thus, the High Court has correctly understood the principle stated in A. Prabhakar Rao (supra) and we do not find any fault with the same.
11. In the result, we do not perceive any merit in these appeals and the same stand dismissed with no order as to costs."
Challenge to non-conversion of resignation to VRS in backdrop of decision in affirmative to Challenge to Departmental Proceedings:-
Indian Railway Establishment Code, Vol. II Advance Correction Slip No. 360 Rule 2433(CSR 418)-R II The existing Rule and the note there under shall be substituted by the following: "2433 (CSR 418) Forfeiture of service on resignation:
(l) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the competent authority, or dismissal or removal from service entails forfeiture of past service.
10.2 Black's Law Dictionary, Eighth Edition, defines 'resignation' as "the act or an instance of surrendering or relinquishing an office, right or claim" and "a formal notification of relinquishing an office or position." Whereas 'retirement' has been defined as "voluntary termination of one's own employment or career, especially upon reaching a certain age."
10.3 In RBI v. Cecil Dennis Solomon [RBI v. Cecil Dennis Solomon, (2004) 9 SCC 461: 2004 SCC (L&S) 737], the Court while analyzing the Reserve Bank of India Pension Regulations, 1990, observed thus: (SCC pp. 467-68, paras 10-11) "10. In service jurisprudence, the expressions "superannuation", "voluntary retirement", "compulsory retirement" and "resignation" convey different Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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11 o.a. 706 of 22 connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same are not denied.....
16. In UCO Bank v. Sanwar Mal [UCO Bank v. Sanwar Mal, (2004) 4 SCC 412:
2004 SCC (L&S) 699], a two-Judge Bench referred to the decision in Cecil Dennis Solomon [RBI v. Cecil Dennis Solomon, (2004) 9 SCC 461: 2004 SCC (L&S) 737] and opined thus:
(Sanwar Mal case [UCO Bank v. Sanwar Mal, (2004) 4 SCC 412 : 2004 SCC (L&S) 699], SCC pp. 417-19, paras 6 & 9) " ... In the case of retirement, voluntary or on superannuation, there is a nexus between retirement and retiral benefits under the Provident Fund Rules. Retirement is allowed only on completion of qualifying service which is not there in the case of resignation. When such a retiree opts for self-financing Pension Scheme, he brings in accumulated contribution earned by him after completing qualifying number of years of service under the Provident Fund Rules whereas a person who resigns may not have adequate credit balance to his provident fund account (i.e. bank's contribution) and, therefore, Regulation 3 does not cover employees who have resigned. Similarly, in the case of a dismissed employee, there may be forfeiture of his retiral benefits and consequently the framers of the Scheme have kept out the retirees (sic resigned) as well as dismissed employees vide Regulation 22 .... *** 9 .... The words "resignation" and "retirement" carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment (sic is the same) but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions "resignation" and "retirement" have been employed for different purpose and carry different meanings.
10.4 In the case of Sheelkumar Jain v. New India Assurance Co. Ltd., (2011) 12 SCC 197, wherein it was laid down that "the court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 12 o.a. 706 of 22 way of voluntary retirement and while construing the statutory provisions, the court will have to keep in mind the purposes of the statutory provisions."
10.5 In Union of India v. Abhiram Verma, 2021 SCC OnLine SC 845, decided on 30-09-2021, the Hon'ble Apex Court observed as under :-
"If we see the avernment in the writ petition all throughout the word used by the respondent is "resignation". Therefore, only as an afterthought and to get the benefit of "late entrant" under Regulation 15, now it is the case on behalf of the respondent that what was meant by him at that time was praying for 'voluntary retirement' and it was not an application for 'resignation'" Noticing that the respondent had accepted that on 15-04- 2000 he was not eligible for "voluntary retirement" and therefore he used the word "resignation" to get out of the technical reason, the Bench stated that the respondent had tendered "resignation" for lack of promotional avenues/aspects and it was not a case of "voluntary retirement" as there is a distinction between "resignation" and "voluntary retirement" because a person can resign any time during his service, however, an officer cannot ask for premature/voluntary retirement unless he fulfils the eligibility criteria. The Bench further observed that such issue cannot be dealt with on a charity principle, therefore, having tendered "resignation", the respondent had to suffer the consequences and could not be permitted to take 'U' turn and say that what the respondent wanted was "premature retirement" and not "resignation"...
10.6 We emphasis the observations in Union of India & Another v. Abhiram Verma, Civil Appeal No. 1027 of 2020 that "though Pension Schemes are delegated beneficial legislation, yet their beneficial construction or interpretation "cannot run contrary to the express terms of the provisions." Such "issue cannot be dealt with on a charity principle. When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication."
10.7 A strong reliance has been placed on decision rendered in SD Manohara v.
Konkan Railway Corporation Ltd. & Ors. The case law relied upon by the Learned Senior Counsel does not support the facts of the present case which are quite Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 13 o.a. 706 of 22 distinct. We would highlight that in present case a detailed and appropriate reply dtd. 03.10.2014 was submitted by the applicant before the competent authority, interestingly 01 day prior to his resignation letter. A speaking order came to be passed on 25.05.2016 which states inter alia:
"4. Taking a note that he has tendered resignation vide his Letter No. Nil, dated 04.10.2014 on the medical ground with immediate effect, appropriate view is being taken in the matter.
Dr. Snigdhendu Ghosh, Sr.DMO (Neuro) has not performed railway duty w.e.f. 20.01.2011 to till date. The period after 20.01.2011 is not to be counted as qualified service. He will not be entitled for any retirement benefits.
Taking an overall view, it is decided to impose the penalty of 'censure' on Dr. Snigdhendu Ghosh, Sr.DMO (Neuro) by reducing the charges from major penalty to minor penalty."
Ld Counsel for the applicant has not disputed that neither any revision nor any review has been preferred qua the punishment/speaking order dtd. 25.05.2016.
However, he submits that the applicant made a representation dtd. 24.10.2016 which has not been disposed of by the Appellate Authority and last such representation was made on 15.12.2017. We may also take note of the fact even if we set aside the " censure" penalty , the applicant cannot be said to be gain said in as much as penalty of " censure " even otherwise had no bearing or effect on question of resignation on 4th October post initiation of major penalty proceedings though later converted into minor penalty proceedings on premises of taking into consideration said resignation. We would have applied the ratio of decision rendered in SD Manohara v. Konkan Railway Corporation Ltd. & Ors.
However, said decision cannot be applied to facts of present case as decision to initiate major penalty proceeding precedes the date of resignation. Another point to ponder is that in present case it does not stems from issue of withdrawal of resignation but conversion of resignation from VRS.
Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone=feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 14 o.a. 706 of 22 10.8 Applying the above ratio as well as Rule position to the facts of the case, the applicant who left a office in his own wisdom as had taken an cautious, concentrated and courageous decision to "resign" instead of seekign VRS ( which he could not have pending departmental proceedings in the year 2014 . The re-
course to an resignation was adopted "by choice" not "by chance". Expecting us to read and mean from a well qualified doctor that the "resignation" ought to be read and mean as " VRS " on the date of filing of the OA or in the year 2025 will be not only be to remote for arriving such an interpretation to Rule(s) but also have a cascading effect having wide ramifications. We also gather from the fact that while bare reading representation at belated stage, no such intention can be gather except seeking retiral due.
10.9 We have given careful consideration to the submissions. The application(s) made by the applicant for seeking resignation were kept pending by the respondents for no reason till 19.1.2022. No reasons are forthcoming in the counter filed by the respondents for keeping the application pending for such a long time. It is true that the conduct of the respondents in not deciding the applications for resignation cannot be supported at all. However, there was no reason for the applicant to take recourse sleep over his rights while a penalty of censure was imposed being a well qualified doctor. Neither, it is the case of the applicant that he had withdrawn his application for resignation. When the applicant found that his application(s) were not decided within a reasonable time, he could have adopted remedies in accordance with the law. We may also Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910d d7d01593942dd0b54986bb0e3896 Pampa Nandi West 815227, PostalCode=700131, S= Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635dee Debnath 2247261f62bbbc47678dd5cb72a13 3ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 15 o.a. 706 of 22 observe that the applicant of his own choice, upon initiation of major penalty proceedings took a conscious decision to seek resignation instead of seeking VRS.
11. CONCLUSION In view of the above detailed analysis, we do not find any infirmity in the action on the part of the respondents. The OA is liable to be dismissed. All pending applications, if any also disposed of. Cost made easy.
(Anindo Majumdar) (Manish Garg)
Member (A) Member (J)
pd
Digitally signed by Pampa Nandi
Debnath
DN: C=IN, O=Personal, T=1575,
OID.2.5.4.65=
133596280922834876S4dj74l44O
Oh8c, Phone=
feef9776669c46fe6184e820dd910d
d7d01593942dd0b54986bb0e3896
Pampa Nandi West
815227, PostalCode=700131, S=
Bengal, SERIALNUMBER=
965e50cc3fa0709cded2168635dee
Debnath 2247261f62bbbc47678dd5cb72a13
3ee6b9, CN=Pampa Nandi
Debnath
Reason: I am the author of this
document
Location:
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16 o.a. 706 of 22