Allahabad High Court
Union Of India (Uoi) And Ors. vs Roshan Lal Madhok And Anr. on 12 November, 2002
Equivalent citations: 2003(2)AWC1040
Author: M. Katju
Bench: M. Katju, Rakesh Tiwari
JUDGMENT M. Katju, J.
1. This writ petition has been filed against the impugned order of the Central Administrative Tribunal dated 28.7.2000, Annexure-3 to the writ petition.
2. We have heard learned counsel for the parties.
3. The respondent No. 1 filed a claim petition before the Tribunal alleging that he was working as Loco Cleaner under Loco Foreman and was granted casual leave for certain urgent work from 26.4.1972 to 2.5.1972, i.e., for seven days with station leave permission. Thereafter he has alleged that he fell 111 and remained absent for about seventeen years, i.e., from 3.5.1972 to 28.2.1989. The respondent alleged that he became fit on 28.2.1989 and reported for duty before Loco Foreman, Northern Railway, Laksar on 1.3.1989, who directed him to report to Divisional Railway Manager, Moradabad and produce his appointment letter. However, the respondent No. 1 failed to produce his appointment letter. There was no record available with the railway administration about the appointment and working of respondent No. 1 in 'the railway, nor did the respondent No. 1 file any satisfactory report to the railway that he ever worked in the railway.
4. The petitioner (before the Tribunal) alleged that he was sick and had sent medical certificate showing that he was suffering from Tuberculosis. He further alleged that after a long period, he was cured and declared fit on 28.2.1989 and hence reported for work on 1.3.1989. The respondent No. 1 alleged that his date of birth is 1.10.1938 and he was due for superannuation on 31.10,1996.
5. In his O.A. filed before the Tribunal, the respondent No. 1 prayed for quashing of the order of deemed removal dated 2.7.1990 and 4.9.1992 being ultra vires and violative of the principles of natural Justice with all consequential benefits of seniority, emoluments and promotion etc. and for continuity of service between 1972 to 1989 and for paying of salary and other emoluments with increments. True copy of his O.A. is Annexure-1 to the writ petition.
6. The petitioner filed a counter-affidavit before the Tribunal and raised a preliminary objection regarding the maintainability of the O.A. It was alleged by the petitioner that no leave can be granted/ sanctioned if the employee has remained absent for five years or more. In this regard/the provisions of Indian Railways Establishment Manual were produced by the petitioner in support of his contention. In the letters dated 2.7-1990 and 4.9.1992, issued by the petitioner, it was clearly mentioned that the respondent No. 1 was deemed to have been removed from service due to long absence. In the counter-affidavit filed by the petitioner before the Tribunal, the petitioner sought to rectify the error committed in the letter saying that the respondent No. 1 (the petitioner before the Tribunal) was deemed to have resigned from service.
7. In paragraph 10 of the writ petition, it is alleged that the respondent No. 1 simply disappeared in May, 1972 and did not report duty till 1.3.1989 and hence in view of Section 108 of the Indian Evidence Act, he was presumed to have died. True copy of the counter-affidavit filed before the Tribunal is Annexure-2 to the writ petition.
8. The Tribunal in the impugned order held that in view of the long absence of the respondent No. 1, he cannot get the benefit of seniority and pay for the period of absence. He was however entitled to pay from 4.9.1992, i.e., the day on which the second impugned order of deemed removal was passed on account of the fact that he filed the O.A. only on 29.9.1992. The Tribunal held that the respondent No. 1 shall be entitled for pay in the scale of Rs. 750-940 and he may be given retrial benefits on the basis of this pay. True copy of the impugned order is Annexure-3 to the writ petition.
9. It is alleged in paragraph 12 of the writ petition that the Tribunal has committed an illegality in drawing an adverse inference because the petitioner had not produced the respondent's appointment letter. It is further alleged in paragraph 14 of the writ petition that the Tribunal committed an illegality in granting the benefit of pay, etc. The petitioner has alleged in paragraph 15 of the writ petition that no reasonable and plausible explanation was given by the respondent No. 1 for his long absence. The petitioner has further alleged that since the respondent No. 1 has failed to produce any record in this regard he was asked to produce documents relating to his appointment but he failed to do so. Hence, it is urged that it was incumbent upon the Tribunal to draw an adverse inference against the respondent No. 1 and the Tribunal committed a serious illegality in not doing so. It is alleged in paragraph 18 of the writ petition that no record of the petitioner is available with the Railways since he was absent after 1972 and filed a petition before the Tribunal only in 1992 after a gap of 20 years. In view of the Railway Board's circular the record of more than ten years are weeded out. It is alleged in paragraph 19 of the writ petition that the observation of the Tribunal that since Rs. 962 was lying with the Railways in Provident Fund account he will be deemed to be in service is wholly erroneous. The petitioner has alleged that in the decision of the Supreme Court in High Court of M. P. v. Mahesh Prakash, 1995 SCC (L & S) 278, it was held that if a representation is considered by the authority and rejected limitation does not get extended if the claim is already barred by time. This view is affirmed by the Supreme Court in Bhoop Singh v. Union of India, AIR 1992 SC 1414. The Supreme Court held that the if the petitioner cannot give good explanation for the delay he loses his right as well as remedy.
10. In paragraph 24 of the petition it is alleged that there is not an iota of evidence that the respondent No. 1 was employed with the Railways as Loco Cleaner as all the records have been lost by efflux of time.
11. Counter and rejoinder-affidavits have been filed and we have perused the same.
12. In paragraph 6 of the counter-affidavit of the respondent No. 1, he has alleged that he had applied for casual leave from 26.4.1972 to 2.5.1972 and was at his home where it was found that he was a patient of tuberculosis. It is alleged in paragraph 7 of the counter-affidavit that the respondent dispatched the medical certificates through registered post, copies of which are annexed with the O.A. before the Tribunal which are Annexures A-1 to A-5 and also annexed as Annexure-1 to the counter-affidavit before this Court. It is alleged in paragraph 12 that no opportunity of hearing was given to the respondent No. 1 before passing the impugned order deeming him to be removed from service.
13. In paragraph 13 of the counter-affidavit, the respondent No. 1 has quoted the relevant provision of the Indian Railways Establishment Code which reads as follows :
"Where a railway servant does not resume duty after remaining on leave for a continuous period of five years or where a railway servant after the expiry of his 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, be removed from service after following the procedure laid down in the Discipline and Appeals for railway servants."
The respondent has relied on paragraph 537 of Indian Railways Medical Manual quoted in paragraph 14 of the counter-affidavit.
14. A supplementary-affidavit has also been filed by the petitioner and in paragraph 4 of the same, it is stated that there is no record of proof that the respondent No. 1 has ever served as Loco Cleaner in the railway. The respondent No. 1 absconded from 1972 to 1989, i.e., for about 17 years. The matter was referred to the D.R.M., Moradabad, who asked the respondent No. 1 to show any record that he had ever worked as Loco Cleaner. The respondent No. 1 was asked to submit his appointment letter and other papers about his status in the railway department, but he refused to produce the appointment letter or any papers in this regard to show that he was a regular or casual employee and if so for what period. The railway is having no document as they have been weeded out although a thorough enquiry was held in this connection. The burden of proof was on respondent No. 1 to prove about his appointment, working and status in the railway but he did not discharge his burden. True copy of the railway circular regarding weeding out of the service record after long length of time is Annexure-1 to the supplementary-affidavit.
15. In our view the impugned order of the Tribunal cannot be sustained. There is no denial of the fact that the petitioner was absent for about seventeen years although leave had not been granted to him. Since he was absent for more than five years without leave, hence. in view of paragraph 2014 (2) of the Indian Railways Establishment Code, he was deemed to be removed from service. Moreover, in our opinion, the entire burden of proof regarding the appointment of respondent No. 1 and his service and status was on him but he failed to discharge this burden by not producing any record. The railway record has been weeded out as stated by the railway in view of its circular. In the absence of the relevant record and paper, we fail to see how the Tribunal could allow the O.A. of the respondent No. 1 since the burden of proof was on him. Merely showing some paper of the Provident Fund account was not sufficient discharge of the burden.
16. The Tribunal in paragraph 5 of its order has observed that the procedure for imposing major punishment was not followed before removing the respondent. In our opinion, that procedure has not to be followed in this case as this is a case of abandoning the job and not a termination of service in the strict sense. Hence, there was no question of giving opportunity of hearing to the respondent No. 1 in this case. An employee simply cannot be absent from work for seventeen years and then suddenly appear and claim that he should be given duty. Tuberculosis is now-a-days a curable disease and there is no Justification for absenting for seventeen long years. The O.A. was filed in 1992 that is after twenty years after the respondent No. 1 had stopped attending to his duties.
17. In Ratam Chandra Sammanta v. Union of India, 1993 (2) AWC 1147 (SC) : JT 1993 (3) SC 418. the facts were that the petitioners were employed between 1964 to 1969 and retrenched between 1973 to 1979. The petitioners approached the Court only after a lapse of fifteen years. The Supreme Court held that the delay deprived the person of remedy as well as the right in case of such long delay.
18. In Secretary to Government of India v. Shivram Mahadu, 1995 Supp. (3) SCO 231, the respondent was discharged from service from 7,10.1986 and he filed a claim petition before the Tribunal only in 1990. The Supreme Court held that the application was clearly barred by time even if it was true that the respondent was suffering from schizophrenia. A similar view was taken by the Supreme Court in Ramesh Chand Sharma v. Udham. Singh Kamal, 1999 (8) SCC 304.
19. In view of the above we allow this petition and set aside the order of the Tribunal dated 28.7.2000 and hold that the Tribunal should have rejected the O.A. of the respondent No. 1 in toto. No order as to costs.