Central Administrative Tribunal - Delhi
Smt. Sudarshan Devi vs Union Of India (Through: The General on 28 April, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1347/2012 Reserved On:21.03.2014 Pronounced on:28.04.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (J) Smt. Sudarshan Devi W/o Late Om Prakash, Ex. Khallasi/Parcel Porter, (Under Sr. Station Manager, Delhi Junction Railway Station) Present Address: C/o Shri Mahant Ram (BABBA), H.No.E-335, Gali No.19-20, Swatantra Nagar, Narela, Delhi-110040. Applicant By Advocate: Shri D.N. Sharma. Versus 1. Union of India (Through: The General Manager), Northern Railway Headquarters, Baroda House, New Delhi. 2. The Divisional Railway Manager, Northern Railways, Divisional Office, New Delhi. 3. The Senior Station Manager, Delhi Junction Railway Station, Northern Railways, Delhi Junction. .Respondents By Advocate: Shri Rajinder Khatter. ORDER
Honble Mr. G. George Paracken, Member (J) In this Original Application the Applicant has challenged the impugned Annexure A-1 Notice of the Respondents dated 11.01.2012 which reads as under:-
Northern Railway
Divisional Office
New Delhi.
NOTICE
In terms of NIP No.C-7/PP/Absent/Delhi/98 dated 12.10.2001 issued by the competent authority, i.e., Sr. Station Manager, Delhi Shri Om Parkash S/o Shri Bahgat Ram Luggage Porter under Sr. Station Manager/Delhi is removal from service.
Debits if any may be intimated to the directly to the settlement section of DRM Office/NDLS under advice to this office. His leave account compete in all respect may be sent to this office immediately for further action.
For Divl. Personnel Office New Delhi No.729E/7/7287-P-2 Dated 11.01.2012 Copy to the following for information and necessary action please:-
1. Sr. DCM/DRM office/NDLS.
2. Sr. Station Manager/Delhi.
3. Sr. DFM/NDLS.
4. APO/Bill/NDLS.
5. CMI/Delhi.
6. CMI/MPP DRM Office/NDLS.
7. SWLI/Delhi.
2. The brief facts of the case are that the Applicants husband was working as a Luggage Porter under the Senior Station Manager, Delhi Junction, Northern Railway, Delhi with effect from 27.05.1978. According to the Applicant, her husband was suffering from chest pain and vomiting blood. Therefore, she brought him to his Village Tehral, Tehsil Palampur, District Kangra (Himachal Pradesh) on 31.01.2001. It was diagnosed that he was suffering from Pulmonary Tuberculosis and Born Asthama. On 03.02.2001 itself, he sent an application to the Respondents to grant him leave. Thereafter, periodically he sent applications together with medical certificates seeking extension of leave. As there was no improvement in his condition, he was taken for treatment in the Government Hospital, Paprola, Himachal Pradesh. The aforesaid fact was also intimated to the Respondents through application for leave with medical certificate. He remained under observation of one Dr. Kuldeep Dixit, B.A.M.S. (Himachal Pradesh University) from 01.02.2001 to 14.01.2008. Despite all efforts, his life could not be saved and he expired on 15.01.2008. Copies of those applications, the medical certificates and the death certificate are also enclosed with this Original Application.
3. Thereafter, the Applicant has been approaching the Respondent-Railway Authorities for granting her the terminal benefits she was legally entitled to. In this regard she has annexed copies of her representations dated 11.08.2009 and 27.11.2009 addressed to DRM, New Delhi and Public Relation & Information Officer, Northern Railway, Baroda House, New Delhi respectively. She has also requested to the Respondents to appoint her or her son on compassionate ground after the death of her husband. However, according to her, till date she has neither received any reply from the Respondents nor they have given the terminal dues admissible to her. She has, therefore, again sent another representation to the Chief Traffic Manager (A.A.), Northern Railways, Divisional Office, New Delhi on 14.02.2010 followed by yet another representation on 04.05.2010 addressed to the Divisional Railway Manager, Northern Railways, New Delhi. Again, she made a representation to the Divisional Railway Manager, Northern Railway, New Delhi on 23.05.2011 to pay the dues admissible to her and also to appoint her son on compassionate ground. Finally, she came to know that the Respondents have issued the impugned Annexure A-1 Notice on 11.01.2012 wherein it has been stated that her husband was already removed from service w.e.f. 21.10.2001. According to the Applicant, neither she nor her late husband was aware of any such removal order earlier. By the said letter, the Divisional Personnel Officer, Northern Railway, New Delhi has asked the Sr. DCM/DRM office/NDLS, Sr. Station Manager/Delhi, Sr. DFM/NDLS, APO/Bill/NDLS, CMI/Delhi, CMI/MPP DRM Office/NDLS and SWLI/Delhi to intimate directly to the settlement section of DRM Office/NDLS regarding debits, if any, received from Applicants husband.
4. The submission of the Applicant is that her husband who put in long years of service was removed from service in an arbitrary and whimsical manner. She has also submitted that the Respondents have violated the Railway Boards Order No.E(D&A) RG-6-47 dated 30.08.1984 wherein the procedure to be followed in case of unauthorized absence has been prescribed. According to the said letter while conducting the ex-parte proceedings, the entire gamut of the enquiry has to be gone through. The notices of all hearings must be served on charged employee or communicated to him, the documentary evidences should be produced and marked. The Inquiry Officer should record the reasons why he is proceeding ex-parte and what steps he had taken to ask the accused official to take part in the enquiry. She has also submitted that there was no provision for issuing the Notice of Imposition of Penalty (NIP) in any rules as done in the case of her husband vide letter dated 12.10.2001 as revealed from the impugned order dated 11.01.2012. In this regard she has relied upon an order of the Mumbai Bench of this Tribunal in the case of Ramdass N. Vs. The U.O.I. & Others OA No. 186/1999 decided on 12.02.2004. In the said order the Mumbai Bench has also held that there is no provision for issuing the NIP under the Railway Servants (Discipline & Appeal) Rules, 1968. The relevant part of the said order reads as under:-
In this case, the notice of imposition of penalty has been actually treated as the order of removal passed by the disciplinary authority. The appellate authority has also heard the appeal against NIP and rejected the same. We do not find any order, removing the Applicant from service by following the procedure for imposing a major penalty as laid down in Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968. Further, we do not see any provisions of issuing NIP under Rule 6.
We find that the order of removal has been passed without following the proper procedure laid down in rules. Moreover, NIP itself mentioned that the orders will take effect from the date of receipt by the Applicant which is 28.11.1995. In the subsequent order of the appellate authority, the date given is 24.11.1995. This also clarifies that while passing the order there was no judicious application of mind. We, therefore, hold that the order removing the Applicant from service is bad in law and deserves to be quashed and set aside.
The employee will be treated as reinstated with effect from 24.11.1995 the date from which the impugned order was made effective. The Applicant has expired on 08.07.2001. For the period before these two dates the employee will not be entitled for any salary, etc., on the principle of No Work No Pay.
This OA thus allowed. The impugned order, dated 24.11.1995 of the Disciplinary Authority and order of Appellate Authority, dated 07.02.1996 are quashed and set aside. The intervening period till the death of employee or till his attaining the age of superannuation, whichever is earlier, will be treated as dies non. No order as to costs.
5. The learned counsel for the Applicant has argued that unauthorized absence from duty can held to be a misconduct only if the absence was willful and no employee can be punished on the basis of the alleged misconduct of unauthorized absence without holding an enquiry. In this regard he has relied upon the judgment of the Honble Punjab and Haryana High Court in the case of Amar Nath Vs. State of Haryana 2005 (3) SLR (DB) 832 wherein it has been held as under:-
..Absence from duty is misconduct Since no departmental proceedings held Violation of Article 311 (2) of the Constitution and rules of natural justice Impugned order quashed Petitioner ordered to be reinstated in service with all consequential benefits.
He has also relied upon the judgment of the Apex Court in the case of State of U.P. Vs. Vijay Kumar Tripathi decided on 07.12.1994 wherein it has been held as under:-
..Statutory punishment cannot be awarded without proper disciplinary proceedings and affording reasonable opportunity to the official.
Further, he has relied upon the judgment of the Principal Bench of this Tribunal in the case of Satya Wati Gupta Vs. U.O.I. & Others OA No.84/2003 decided on 08.03.2004 wherein it has been held that unauthorized absence cannot entail removal from service unless the absence is established as willful. The relevant part of the said order reads as under:-
18. We have carefully considered the rival contentions of the parties and perused the material on record.
19. In so far as admission of the charge is concerned, as held by the Constitution Bench of the Apex Court in Jagdish Prasad Saxena Vs. State of Madhya Bharat, AIR 1961 SC 1070 held that in order to be a clear admission the statement made should be unequivocal, unconditional and absolute in terms. Any statement admitting the charge with some explanation would not be an admission to be relied upon to hold a government servant guilty of the charge. We have perused the statement of applicant and his cross-verification. Applicant had denied the charges and stated that though he admits his absence but the same was not unauthorized. Applicant further states that he had informed the authorities. This, in our considered view, is not an absolute unconditional admission of the guilt. The Applicant has denied his unauthorized absence and qualified it with his communication sent. The authorities have wrongly construed it as an admission of applicant.
20. It is settled law that past record can be taken into consideration if the same is incorporated as a specific charge in the memorandum/charge sheet. We find that applicants absence from 19.02.2000 to 29.02.2000 was taken as a past record and also his earlier removal which was on compassionate grounds was set aside was considered as on remaining absent unauthorisedly. Aforesaid record has not been incorporated in the listed documents and no evidence has been tendered in support of it. What to talk of documentary despite citing Chief Senior Engineer as a witness he was not examined in the enquiry. Moreover, no finding has been recorded as to past record of applicant in th enquiry report.
21. In a quasi-judicial action, which, inter alia, includes discharge of duties as an EO sine qua non is reasonable opportunity to defend. Unless the documents are tendered and the past record is proved the same cannot be the basis of punishment against a Government servant. The habitual absenteeism has not been established. The DA in its order wrongly construed the earlier removal as past record to be imposed on absence whereas the aforesaid order dated 12.10.1998 pertains to an alleged charge of theft remotely connected with the unauthorized absence of the applicant. As such the authorities have with closed mind took into consideration the extraneous material unconnected with the charge and it is a case of no evidence in so far as habitual absenteeism is concerned.
22. The Railway Servants (Discipline & Appeal) Rules, 1968 under Rule 9 prescribes the procedure to be adopted for major penalties. It is incumbent upon the EO to deliver the concerned employee copies of the relied upon documents. On perusal of the memorandum the documents relied upon is a letter by a Senior dated 28.03.2000 whereas from the findings we find that the EO had relied upon a show cause notice served upon applicant on 29.08.2000 and a notice by the EO. These two documents have not been listed as documents and were also not exhibited has certainly prejudiced applicant and he has been deprived of a reasonable opportunity to effectively defend the charge.
23. Unauthorized absence alone cannot entail a punishment of removal unless the absence is established to be willful. What has been alleged against applicant is his unauthorized absence. In a disciplinary proceeding for misconduct of remaining absent from duty though Indian Railway Medical Manual prescribes sickness certificate from the Railway Doctor but private Doctors certificate is not barred if it is authenticated subsequently by the concerned Railway Medical Authority. It is not denied that applicant on joining duty was subjected to the Railway Doctor on 02.05.2000 and was declared fit and his medical record was authenticated. Accordingly, absence cannot be treated as willful and is on account of genuine sickness of the Applicant. The aforesaid conclusion is strengthened by a decision of the Tribunal in C.K. Makwana Vs. Paschim Railway, 1971(17) ATC 38 (CAT).
24. As regards punishment and appellate orders are concerned, as per Boards letters issued in 1978 and 1985 under Rule 22 of the Railway Rules it is incumbent upon the appellate authority as well as DA to deal with the contentions of the delinquent employee and also to record reasons. We do not find such an examination undertaken by the authorities and the orders are non-speaking.
25. In so far as revision is concerned, applicants absence of 130 days and 201 days in 1995 and 1996 and further also in 1998 were taken into consideration for which applicant has never been afforded an opportunity to rebut. Taking into consideration the aforesaid absence an extraneous matter is taken into consideration by the revisional authority, which makes the order unsustainable in law.
26. It is incumbent upon the appellate and revisional authorities to have considered the proportionality of punishment. We do not find any such consideration made by the authorities, referred to above. No finding has been recorded as to the proportionality of punishment.
27. However, we find on record that applicant had informed the authorities which has been acknowledged by the EO but yet no reasons have been recorded in support of the findings, which is non-speaking, abrupt and inconclusive in nature. The aforesaid communication clearly shows that absence was not authorized. While recording the findings of the EO he is mandated to record his reasons and the findings. There is more important when the aforesaid finding is to be commented upon by the delinquent and a final order affecting the service prospects of applicant is to be passed by the DA. Our view is fortified by the decision of the Apex Court in Anil Kumar Vs. Presiding Officer and Others, 1985 SC (L&S) 815.
28. For the reasons recorded above, the orders passed by the respondents cannot be sustained in law. Accordingly OA is allowed. Impugned orders are set aside. As applicant has died during the pendency of the OA he is to be deemed in service from the date of removal till he expired on 16.5.2003. His LRs are entitled to all consequential benefits. However, we restrict the back wages to 50%. Respondents are further directed to release the retiral benefits to applicant/LRs as due in accordance with law. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. No costs.
6. The other argument of the learned counsel for the Applicant is that the Applicant being the widow of the deceased Railway servant, she is entitled for all the terminal benefits with penal interest at the rate of 18% p.a. In this regard, he has relied upon the judgment of the Apex Court in the case of R.K. Kapur Vs. Director of Inspection decided on 24.09.1994 wherein it has been held as under:-
Any culpable delay in settlement and disbursement of Pension and Gratuity must be visited with the penalty of payment of interest at the current market rate till actual payment. In the instant case, penal interest @ 18% p.a. was allowed to the petitioner.
7. The Applicant has, therefore, filed this OA seeking a direction to the Respondents to reinstate her husband in service with retrospective effect, i.e., from 29.01.2000 with all consequential service benefits including refixation of his pay with effect from 01.01.2006, payment of arrears of pay and allowances which was admissible to her late husband till the date of his death etc. up to the date of his death on 15.01.2008. She has also prayed that she be granted all terminal benefits including family pension w.e.f. 16.01.2008 as provided under the law. She has also sought a direction to the Respondents to release the amounts admissible to her on account of DCRG, GPF, Group Insurance etc. with penal interest of 18% per annum.
8. The Respondents have filed their reply. They have raised a preliminary objection that this OA is not maintainable and, therefore, it should be dismissed on the ground of limitation. They have also stated that the Applicant has already been removed from service vide order dated 12.10.2001 as he was unauthorizedly absent from 10.10.1997 to 01.05.1998. They have also stated that the copy of the application for leave annexed with the OA has never been received by them. Again, they have submitted that the medical certificate issued to the Applicants husband by Dr. Kuldeep Dixit, Dixit Clinic, Baijnath, District Kangra mentioning therein that he was under his treatment for the last 7 years from 2001 to 14.01.2008 was not acceptable. Further, according to them, Applicants husband was working in Delhi and, therefore, he could have visited the Divisional Railway Hospital or Northern Central Railway Hospital, if he was seriously ill but he decided to go straight away to his home town in Himachal Pradesh and got the medical certificate from 2001 to 14.01.2008 from Dr. Kuldeep Dixit, Dixit Clinic, Baijnath, District Kangra. They have also pointed out that there was contradiction in the statements of the Applicant inasmuch as her husband was under the treatment of R.G. Government Ayurvedic Hospital, Paprola (Indian Medical System [Ayurved] and Homeopathy Department Hospital) from 27.12.2007 to 10.01.2008. Further, according to them, if Applicants husband was suffering from Pulmonary disease with chronic rental failure, he might have got the dialysis done but he has not enclosed any such certificate to that effect.
9. We have heard the learned counsel for the Applicant Shri D.N. Sharma and the learned counsel for the Respondents Shri Rajinder Khatter. In our considered view, this is a classic case of callous indifference, arbitrariness, whimsical attitude and total disrespect for rules and regulations by the concerned officials of the Respondent-Railway. Admittedly, the Applicants husband has been working as a Luggage Porter under the Respondent-Railways with effect from 27.05.1978. There is no dispute that he was a permanent Railway employee. Till the time he was absenting from duty w.e.f. 16.10.1997, he had already rendered nearly twenty years of service. According to the Applicant, her husband was suffering from chest pain and vomiting of blood. Later on, he was diagnosed as a case of Pulmonary Tuberculosis and Born Asthama. Finally, he succumbed to death on 15.01.2008. However, according to the Respondents since he was on unauthorized absence from duty w.e.f. 16.10.1997 to 01.05.1998, they have issued NIP (Notice of Imposition of Penalty) No.C-7/PP/Absent/Delhi/98 on 12.10.2001 and from that date he stood removed from service. The Respondents have no answer as to under what rules they have issued the NIP and as to how a permanent Railway employee is imposed with the severest punishment of removal from service by issuing a simple notice. Undoubtedly, unauthorized absence is a serious matter. But every unauthorized absence from duty is not a misconduct. There are a number of situations which prevents an employee from attending the service without proper applications and prior permission. Some of the situations may be beyond the control of the employee. Only if the absence from duty is willful, it becomes a misconduct on the part of the employee. Therefore, it was necessary to prove whether the absence of the Applicant was willful or not. When a railway employee is continuously absent from duty without any authorization, it is the minimum responsibility of the Respondent-Railways to find out his whereabouts. He should be given at least a notice to return to duty. In case he fails to do so and he willfully and unauthorizedly continues to remain absent, they shall initiate disciplinary enquiry proceedings against him in the manner provided under the rules. However, assuming that the Applicants husband while he was alive, did not inform about his absence contrary to what the Applicant has stated in this OA, the Respondents have not enquired even once what happened to the Applicants husband and what was the reason for his absence.
10. Article 311(2) of the Constitution of India states in clear terms that No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The Railways have framed separate rules known as Railway Servants (Discipline & Appeal) Rules, 1968 to deal with disciplinary matters of the Railway servants. It contains the prescribed procedure to initiate disciplinary proceedings against the employees who commit misconduct including unauthorized absence. But the Respondents did not find it necessary to follow any such procedure but in a most arbitrary and illegal manner removed the Applicants husband from service on 12.10.2001 on the mere allegation that he was on unauthorized absence. On the other hand, they were duty bound to hold an enquiry as required under the Railway Servants (Discipline and Appeal) Rules, 1968 before be was removed from service. Sub-rule (1) of Rule 9 of the aforesaid Rules reads as under:-
(1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 6 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 10, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850) where such inquiry is held under that Act.
They have also not issued any mandatory notice to the Applicant as required under sub-rules (6), (7) and (23) of the said Rules which are reproduced as under:-
(6) Where it is proposed to hold an inquiry against a Railway servant under this rule and Rule 10, the disciplinary authority shall draw up or cause to be drawn up -
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain -
(a) a statement of all relevant facts including any admission or confession made by the Railway servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(7) The disciplinary authority shall deliver or cause to be delivered to the Railway servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Railway servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow.
Note: - If copies of documents have not been delivered to the Railway servant along with the articles of charge and if he desires to inspect the same for the preparation of his defence, he may do so, within 10 days from the date of receipt of the articles of charge by him and complete inspection within ten days thereafter and shall state whether he desires to be heard in person.
XXX XXX XXX (23) If the Railway servant, to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte.
11. However, in this case, it is seen that the Applicants husband/Applicant has been informing the Respondents about the sickness and seeking leave. The Respondents have never responded to them. On the other hand, they removed him from service without even informing him. It is further seen that after the death of the Applicants husband on 15.01.2008, she has been running from pillar to post to get the dues admissible to her settled. She has also been making requests for appointment of her son on compassionate ground. She had made several representations to various authorities including the Divisional Railway Manager. The Respondents did not find it necessary to respond to her even once. It was only after 11 years of the removal and after 4 years of the death of the Applicants husband, the Divisional Personnel Officer, Northern Railway, New Delhi issued a notice to the authorities concerned to intimate the debits, if any, in respect of the Applicants husband to the DRMs Office/New Delhi. He has not bothered to endorse a copy of that notice to the Applicant. In our considered view, it is sad state of affairs in the Railways. The Personnel Department has no proper system to deal with their employees. There is miserable mismanagement and no accountability. It is high time that they introduce proper personal management system for the efficient functioning of the Railways particularly its personnel.
12. We, in the aforesaid facts and circumstances of the case allow this OA and quash and set aside the impugned un-communicated NIP of the Respondents dated 12.10.2001 removing the Applicants husband from service. Consequently, he shall be treated as reinstated in service with effect from the said date. The period from the date of his absence from duty, i.e., from 16.10.1997 to the date of his death, i.e., 15.01.2008 shall be treated as duty for all purposes but he will not be entitled for any salary etc. on the principle of No Work No Pay. We further direct the Respondent-Railways to ensure that the terminal benefits admissible to the deceased Government servant Shri Om Prakash shall be settled within a period of 3 months from the date of receipt of a copy of this order. They shall also consider the application for compassionate appointment made by the Applicant/her son and take appropriate decision in the matter under information to them within the aforesaid period of 3 months. The Divisional Personnel Officer, Northern Railway, New Delhi shall take personal interest in settling the terminal benefits of the Applicants husband within the aforesaid period.
13. In the above facts and circumstances of the case, the Respondents are liable to pay a cost of Rs.20,000/- (Rupees Twenty Thousand Only) in favour of the Applicant. The aforesaid amount shall be paid to the Applicant within period of one month from the date of receipt of a copy of this order.
14. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh