Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs Union Of India on 14 March, 2013
1 OA.191/2011CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI.
O.A.No.191/2011.
Date of decision : March 14, 2013.
Coram: Hon'ble Shri Justice A.K. Basheer, Member (J) Hon'ble Shri R.C. Joshi, Member (A).
Ankush G. Mokalkar, Ex-Cleaner in the office of Assistant Commercial Manager, Central Railway, CST, Mumbai.
Residing at: Hanuman Nagar, Kanhan, Nagpur, Tal. Parshivne, Dist.: Nagpur-441 401. .. Applicant.
( By Advocate Shri S.V. Marne ).
Versus
1. Union of India, through the General Manager, Central Railway, Mumbai C.S.T.01.
2. The Dy. Chief Commercial Manager, Central Railway, Mumbai Division, Mumbai C.S.T.01.
3. The Senior Commercial Manager (G), Central Railway, Mumbai Division, Mumbai C.S.T.01.
4. The Assistant Manager (Coaching), Central Railway, Mumbai Division, Mumbai C.S.T.-400 001. ..Respondents. ( By Advocate Shri S.C. Dhawan ).
2 OA.191/2011 Order (Oral) Per : R.C. Joshi, Member (A).
In this Original Application, the Applicant has impugned Order dated 25.03.2008 (Annexure A-1) passed by Respondent No.4, Order dated 22.09.2008 (Annexure A-2) passed by Respondent No.3, Order dated 12.12.2008 (Annexure A-3) passed by Respondent No.2 and Order dated 16.08.2010 (Annexure A-4) passed by Respondent No.2.
2. The Applicant is aggrieved on account of removal from service on the charge of unauthorised absence from duty. His Appeal and Revision Petition have been rejected and a Mercy Appeal preferred by the Applicant for re-appointment has also been rejected by the authorities. Hence this Original Application.
3. Briefly, the Applicant was initially engaged as Casual Labour in the year 1989 and was thereafter regularized as Cleaner on 22.01.1998. The Applicant was charged vide charge-sheet dated 12.09.2007 for unauthorized absence. It is Applicant's contention that during the year 2005 and 2007 while he was working as Hamal, he was not keeping good health and took treatment from Railway Doctor and private Doctor from time to time as elaborated at Annexure A-5. On account of his 3 OA.191/2011 frequent illness, his family had taken him to his native place at village Parshivne and being a remote place at a distance of 50 kms. from Nagpur, he was, therefore, not able to inform the Respondents about his sickness and his absence. It is also contended that on many occasions the Applicant or his wife had informed the Railway Administration about his sickness. In this context, the Applicant has referred to letter dated 17.01.2008 issued by the Respondents to the Applicant (Annexure A-6) referring to the telephonic call dated 12.01.2007 made by the Applicant's wife informing the office that the Applicant is sick and was admitted to the Railway Hospital. The said letter refers to the sickness Certificate dated 12.11.2007 issued by Senior Divisional Mechanical Officer, Nagpur. However, the Applicant was placed under suspension vide order dated 28.11.2006. The Applicant has elaborated his unauthorised absence from duty during the following period:
i) 06.07.2006 to 15.10.2006.
ii) 26.10.2006 to 09.11.2006.
iii) 24.02.2007 to 22.08.2007.
4. The Applicant was issued a major penalty charge-sheet vide dated 12.09.2007 (Annexure A-8) in connection with his unauthorised absence during the above mentioned period. An inquiry was conducted 4 OA.191/2011 and the Applicant appeared before the Inquiry Officer and admitted that he could not attend the duties on account of his sickness and expressed regret about his absence. The Inquiry Officer examined two witnesses to establish that the Applicant was absent from duty for the period stated in the chargesheet.
5. In the Inquiry Officer's report dated 10.10.2007 (Annexure A-9) the charge against the Applicant was established. The Disciplinary Authority vide his order dated 25.03.2008 agreed with the findings of the Inquiry Officer and passed an order removing the Applicant from service. The Applicant thereafter preferred an appeal vide dated 08.08.2008 to the Appellate Authority in which he admitted his absence during the period of sickness and prayed for imposition of an alternative penalty.
The Appeal preferred by the Applicant was rejected by the Appellate Authority vide order dated 22.09.2008 on the ground that the Applicant did not prefer it within 45 days and did not show any reasonable cause for delay of four months in preferring the appeal. The Applicant thereafter preferred a Revision Petition vide dated 10.10.2008 (Annexure A-11) which was rejected vide order dated 12.12.2008 on the ground that no new ground had been 5 OA.191/2011 pointed out and that his past conduct during the 10 years of service was not satisfactory. It was also mentioned that the Applicant was punished on earlier occasions also.
6. The Applicant then preferred a Mercy Petition to the Chief Commercial Manager vide dated 16.01.2009 which was rejected vide dated 21.04.2009. Thereafter, the Applicant preferred yet another Mercy Petition to the General Manager on 09.06.2009 under Rule 402 of the Indian Railway Establishment Code (IREC) for grant of re-employment. The Applicant was informed by the Office of the Chief Commercial Manager vide dated 08.01.2010 that his Mercy Petition filed earlier under Rule 402 of IREC had already been rejected and, therefore, there was no provision to prefer a fresh mercy petition. The Applicant thereupon preferred yet another Mercy Petition for reinstatement in service to the Hon'ble President of India vide dated 12.03.2010 (Annexure A-17). However, the Chief Commercial Manager did not agree to forward the Mercy Petition to the Hon'ble President of India by passing a speaking order dated 16.08.2010 holding that the Mercy Petition to the Hon'ble President of India can lie only after exhausting all available remedies. On this ground the said Mercy Petition could not be 6 OA.191/2011 forwarded to the Hon'ble President of India under Para 6(6)(7) in Appendix-2 of Indian Railway Establishment Code.
7. The Applicant has sought the following reliefs:
8(a) This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same quash and set aside the impugned orders dated 25.03.2008, 22.09.2008, 25.12.2008 and 16.08.2010 and the Applicant be reinstated in service with all consequential benefits.
(b) Alternatively this Hon'ble Tribunal may further be pleased to direct the Respondents to reappoint the Applicant on the post of Cleaner under the provisions of Para 4 of Indian Railway Establishment Code.
(c) Costs of the application 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.
8. We have gone through the pleadings, perused the papers placed on record and have extensively heard the rival sides.
9. A perusal of the case papers reveals that the Applicant was engaged as Casual Labour in 1989.
His services was regularised in the year 1998 and was appointed as Hamal on 05.02.1998. The Applicant was alleged to have remained unauthorisedly absent 7 OA.191/2011 from duty from 06.07.2006 to 15.10.2006, 26.10.2006 to 09.11.2006 and 24.02.2007 to 22.08.2007 without following the leave rules or medical rules. He was issued with a major penalty charge-sheet dated 12.09.2007 for unauthorized absence for the period mentioned above. The Inquiry Officer submitted a detailed report to the Disciplinary Authority on 10.10.2007 in which the charge was held to be proved. The Disciplinary Authority after considering the report of the Inquiry Officer and the facts and circumstances of the case, passed an order dated 25.03.2008 imposing the penalty of removal from service on the Applicant. The Applicant preferred an appeal to the Appellate Authority which was rejected vide order dated 22.09.2008. A Revision Petition was filed on 10.10.2008 which was also rejected by the Revisionary Authority vide order dated 12.12.2008.
10. It is the Respondents case that the Applicant was a habitual absentee and on earlier occasions also, he remained unauthorizedly absent without seeking leave from the Competent Authority as required under the Rules. It was also maintained that in the past, the Applicant was issued a major penalty charge-sheet on 19.05.2000 for an unauthorized absence from 13.05.1999 to 09.07.2000 8 OA.191/2011 and after following due process of law, the Applicant was imposed the penalty of reversion to initial grade for a period of four years with effect from 10.12.2001. The Applicant was thereafter issued another major penalty charge-sheet vide dated 25.07.2003 and was removed from service vide order dated 04.08.2004. However, the Applicant's appeal was considered leniently by the Respondents on humanitarian ground and he was reinstated in service with effect from 20.04.2005. However, it was also contended that the Applicant had been given sufficient opportunities i.e. an Mercy Appeal earlier to help him improve but the Applicant did not improve inspite of lenient view taken in his case in the past.
11. A perusal of the period from 09.06.1998 to 20.02.2008 reveals that the Applicant was unauthorizedly absent from duty for 2379 days. It has also been revealed from the speaking order dated 19.11.2008 passed by the Reviewing Authority that during the Applicant's service of 10 years in Railways he was absent for nearly 6 and a half years. It has also been mentioned that the Applicant was punished on the same ground of unauthorized absence but he did not make any sincere attempt to improve his attendance on duty. The 9 OA.191/2011 details of penalties imposed on him are summarised herein below for convenience:
Details of punishment awarded on the Applicant S.No. Type of charge-sheet Punishment
1.
Major penalty charge sheet Reversed to initial grade dated 19.5.2000 for with effect from 10.12.01 unauthorized absence. For a period of 4 years.
2. Major penalty charge sheet Removed from service with dated 25.7.2003 for effect from 4.8.2004, but unauthorized absence. On his mercy petition, Applicant was reinstated w.e.f. 20.4.2005.
3. Major penalty charge sheet Removed from service w.e.f dated 12.9.2007 for 25.3.2008 clubbed with unauthorized absence charges contained in charge sheet dated 29.11.2006.
12. The contentions raised by the Respondents have not been controverted by the Applicant in his rejoinder.
13. The case papers in the present case reveal that the Applicant had been charged with unauthorized absence on several occasions and the Respondents had issued charge sheets accordingly and he was imposed major penalties in the past. Inspite of repeated penalties imposed on the Applicant, he has shown scant regard for rules and, therefore, has not shown a responsive behaviour towards his duty.
14. We have gone through the case papers carefully and we find that the Respondents had followed the laid down procedure and no allegation of either arbitrariness or bias have been made or 10 OA.191/2011 established in the present case.
15. In view of the above, therefore, we do not find any merit in the present Original Application, which is dismissed being bereft of merit. No order as to costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J).
H.