Central Administrative Tribunal - Delhi
Through: H.P. Chakravorti vs The Union Of India Through on 26 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA NO.1417 OF 2012 Orders reserved on :03.09.2013 Orders pronounced on : 26.09.2013 HONBLE Mr. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Jawahar Lal Upadhyay aged about 54 years Son of late Ramesh Chandra Upadhyay, Clerk Chief Train Lighting Clerk, DRMs Office, Northern Railway, Delhi Division, New elhi; Resident of : 309, Shubham Apartment, Agra, District AGRA U.P. Through: H.P. Chakravorti, Advocate, Bar Room, CAT, P/Bench, New Delhi. ..Applicant. (By Advocate : Shri H.P. Chakravorti) Versus 1. The Union of India through, The General Manager, Northern Railway, Baroda House, New Delhi-110001. 2. The Divisional Railway Manager, Northern Railway, State Entry Road, New Delhi-55. ..Respondents (By advocate : Shri Shailendra Tiwari) ORDER Mr. G. GEORGE PARACKEN, MEMBER (J):
The grievance of the Applicant in this Original Application is that his service with the Respondent- Railways has been brought to an end by them treating him deemed to have resigned, under the provisions contained in of Rule 723 of the Indian Railway Establishment Code Vol.I.
2. The facts of the case, as stated by the applicant, are that he joined the Delhi Division, Northern Railway as a Junior Clerk on 4.10.1982 and he was posted in Workshop, Tuglakabad, New Delhi. In February, 1984, he fell ill and he informed his office accordingly. Even then, the Respondents treated his absence as unauthorized leave. Later, on his way to office on 3.4.1984, he fell down from the train and became unconscious and went in coma. In his state of unconsciousness, he was carried by some persons and got him treated till such time he recovered and could identify himself. As his wife was unaware of his whereabout, she lodged a missing person report at Police Station Hariparwat, Agra on 05.04.1984 with a copy to DRM Northern Railway, New Delhi. As there was no information about him, his wife submitted further applications on 03.11.1984, 3.11.1985 and 3.3.1987 to the Station In-Charge, Police Station Hariparwat, Agra. But, without taking into consideration of all the aforesaid facts, the Divisional Personnel Officer vide the impugned letter dated 16/29.8.1984 treated his absence from 22.02.1984 to 06.07.1984 as unauthorized absence and held that he deemed to have resigned from service under Rule 723 ibid. The aforesaid period was also treated as Leave Without Pay. However, the applicant was finally traced in an unsound state of mind on 30.3.1987 from village Dehat, near Gwalior Lashkar town and his wife took him to his native place in Agra and started treating him under Dr. K.C. Dubey, the Consulting Neuro Psychiatrist and Human Behaviour Disorder Centre, Agra. She had also intimated the aforesaid position to respondent no.4 vide application dated 5.3.1987. He remained under his treatment from March, 1987 to Feb. 2009. During this period also, she sent periodical intimations along with copies of the medical certificates to the respondent no.2. Copies of the intimations and the copies of the medical certificates sent by her on 7.3.1987, 4.3.1988, 3.9.1988, 4.4.1989, 03.10.1989, 4.3.1991, 11.11.1991, 04.03.1993, 15.10.1993, 04.03.1994, 03.09.1994, 22.03.1995, 21.06.1995, 21.01.1996, 21.08.1996, 03.03.1997, 04.11.1997, 04.03.1999, 03.07.1999, 04.03.2001, 03.10.2001, 07.07.2002, 02.11.2002, 04.03.2003, 27.09.2003, 10.08.2005, 16.11.2005, 06.02.2006, 03.06.2006, 06.01.2007, 30.05.2007, 06.12.2007, 05.04.2008, 15.09.2008 and 05.02.2009 have been annexed with this OA. Finally, the applicant was declared medically fit by the medical authorities of Mental and Behaviour Development Centre, Goverdhan Market, Delhi Gate, Agra vide its certificate dated 11.2.2009 addressed to D.R.M. (P), New Delhi. According to said certificate, the applicant was under treatment from 6.2.2006 to 11.2.2009 for Bipdar Mood Disorder (mental illness) and he is now mentally and physically fit to join his duties. On reporting for duty with the aforesaid letter, the office of the Divisional Railway Officer (Personnel), New Delhi did not allow his to join duty. However, later, vide its letter dated 17.4.2009, they asked the applicant to provide information with regard to the following points:-
1. Appointment date Post at the time of appointment Date of accident Copy of Police FIR Treatment related all the documents Whether information regarding accident was provided by your family to the office or not? If yes, then give proof.
Documents relating to Railway servant.
Document relating to information given by you to your office.
The applicant immediately, vide his letter dated 11.6.2009, furnished all the requisite documents to the respondents. As there was no further response from the Respondents, he made another application on 30.7.2009 requesting them to allow him to join duty. It was followed by yet another representation dated 16.9.2010. Finally, the Respondents, vide its second impugned letter dated 18.10.2010, informed him that he was no more required by them. The gist of the said letter is that he was appointed as Clerk in pay scale of Rs.260-400 on 4.10.1982 under Workshop Superintendent, Northern Railway, Tuglakabad. Thereafter, vide order dated 01.10.1983, he was transferred to CTLC, New Delhi. He was informed vide letter dated 17.7.1984 that he was unauthorizedly absenting from duty w.e.f. 22.2.1984 to 6.7.1984. Therefore, invoking Rule 723 of IREC Vol.I he deemed to have resigned from the post and as the matter is very old, i.e., 26 years, he is no more required by the Railways. The Applicant and his wife again submitted their representations on 09.11.2010 and 17.3.2011 against aforesaid order dated 18.10.2010 but they were rejected by the third impugned order dated 11.4.2011 addressed to the Applicants wife stating that her husband Ex.LDC remained unauthorizedly absent for a long time, therefore, in accordance with Rule 723 of IREC, he stood resigned from service and he was already informed about it vide their letter dated 18.10.2010.
3. In the above background, the applicant has filed this Original Application challenging the aforesaid impugned orders/letters dated 16.8.1984, 18.10.2010 and 11.4.2010 and seeking an order quashing and setting aside them. He has also sought a direction to the Respondents to reinstate him in service with all consequential benefits including back wages, seniority and promotion at par with his juniors.
4. According to the learned counsel for the Applicant Shri H.P. Chakarvorti, even if an employee was absent for few months, he could not have been treated as deemed to have been resigned from service and, therefore, the order passed to that effect by the Respondents is ab initio void particularly in view of the fact that he had already intimated the Respondents about his absence from 22.02.1984. He has further submitted that when the Applicant fell from train on 03.04.1984 and became unconscious and his whereabout was not known, his wife had lodged a missing person report on 05.04.1984 itself with the Police Station, Hariparwat, Agra and the aforesaid position was also intimated to the Respondents. In spite of it, they, vide their order dated 16.08.1984, held that he deemed to have resigned from service in terms of para 723 IREC. He has also submitted that the absence of the Applicant from duty w.e.f March 1987 to February, 2009 was not intentional but it was beyond his control as he was suffering from mental illness. Further, only when the doctor gave him fitness certificate, he could report for duty and accordingly he reported for duty on 11.2.2009.
5. The learned counsel for the Applicant has also submitted that it was without any application of mind the Respondents have held that the Applicant deemed to have resigned from service in terms of the provisions contained in Para 723 of IREC Vol.I quoted in the impugned order dated 16.8.1984, but no such rule exists in IREC Volume-I. Further, he has submitted that the aforesaid order itself has never been served upon him and he obtained it after he recovered from his illness. He has also stated that he is now overaged for any other Government service.
6. As regards, limitation for filing this OA, he has relied upon the judgment of the Apex Court in the case of State of M.P. Vs. Syed Qamar Ali 1967 SLR (SC) 228 and submitted that limitation does not apply in case of void orders or orders passed contrary to statutory rules. The relevant part of the said judgment reads as under:-
(20) We therefore hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under section 7 could be exercised, is totally invalid. The order of dismissal had therefore no legal existence and it was not necessary for the respondent to have the order set aside by a court. The defence of limitation which was based only on the contention that the order had to be set aside by a court before it became invalid must therefore be rejected.
7. The respondents in their reply have stated that the Applicant was working under Chief Traction Loco controller, DRM, New Delhi and he was a habitual offender by remaining unauthorizedly absent from duty without getting leave sanctioned by the Supervisor/officer concerned. As per available record, a number of D&AR cases were initiated against him but because of his written apologies and assurances, only minor punishments were inflicted upon him. In this regard, they have stated that after he was initially appointed on 4.10.1982, he remained absent w.e.f. 04.11.1982 to 27.01.1983, 28.05.1983 to 06.06.1983, 07.06.1983 to 20.06.1983 and further remained absent on 14.10.1983. He also remained absent from 22.02.1984 to 06.07.1984 without sanction of any kind of leave. Thereafter, he was removed from service under para 732 (inadvertently mentioned as 723 R1) vide DPO/NDLS letter No.724-E/3038/P.4 dated 16.08.1984. He has never filed any appeal or review against the said order, seeking reinstatement.
8. They have further submitted that the Applicant filed an application under RTI Act, 2005 after 25 years on 08.09.2009 seeking permission to join duty. In reply to the said application he was informed that he already stood removed from service under Para 732 ibid and as such he cannot be considered for further service.
9. The learned counsel for the Respondents Shri Sailendra Tiwari has also argued that in such situations, the Court and Tribunal cannot interfere with the decisions of administrative authority. In support of his submission, he has relied upon the judgment of the Apex Court in Shri Bhagat Ram Vs. State of Himachal Pradesh and Others 1983 AIR (SC) 454. The relevant part of the said order reads as under:-
10. Let us make it abundantly clear that we are not sitting in appeal over the findings of the Inquiry Officer. In a petition under Article 226, the High Court does not function as a Court of appeal over the findings of disciplinary authority. But where the finding is utterly perverse, the Court can always interfere with the same
10. He has also relied upon the judgment of the Apex Court in Union of India and Others Vs. Dwarika Prasad Tiwary 2006 (10) SCALE 233 according to which the scope of interference with quantum of punishment is very limited. Such interference also cannot be in a routine manner. The relevant part of the said order reads as under:-
15. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
16. To put differently unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed.
11. Further, the respondents have submitted that the present Original Application is barred by limitation as per Section 21 of the Administrative Tribunals Act 1985 because in the present original application, the applicant has challenged the last order dated 16.08.1984 in which it was held that he deemed to have resigned from service. Thereafter, he never approached the Respondent Department by way of any appeal or review. He has also pointed out that, as held by the Honble Supreme Court, representations would not be adequate explanation to take care of delay. In this regard, he has relied upon the judgment of the Honble Supreme Court in the case of R.N. Bose Vs. Union of India and Others AIR 1970 SC 470 wherein it has been held that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar will not explain the delay.
12. We have heard the learned counsel for the Applicant Shri H.P. Chakratory and the learned counsel for the Respondents Shri Shailendra Tiwari. In our considered view, that the Respondents have not acted in a legal or fair manner in this case. They have not applied their mind. It is seen that they have passed the impugned order dated 16/29.8.1984 in terms of Para 723-RI of IREC (Vol.I). In the reply affidavit, they clarified that it was an inadvertent mistake that they quoted the relevant provision as Para 723 but it is actually Para 732. But neither there is any Para 732 nor any Para 723 in the IREC (Vol.I). In fact, the Leave Rules are dealt with in Chapter 5 of the IREC (Vol.I) starting with Para 501 to Para 557. We have, however, gone through the said chapter. Nowhere in it, it is provided that an employee who is on unauthorized absence will be deemed to have resigned from service. The only reference to willful absence in the said chapter is in Para 518(a) which says willful absence from duty after the expiry of leave renders a railway servant to liable to disciplinary action. We fail to understand, without going through the relevant rules, how the competent authority could pass the impugned order. Therefore, the impugned order dated 16/29.08.1984 is an illegal, wrong and ab initio void one. Further, it is seen that admittedly the Applicant, did not perform his duty w.e.f. 22.02.1984. However, by the impugned Annexure A-1 order dated 16/29.08.1984, the Respondent-Railways, on their own, treated the period of absence of the Applicant from 22.02.1984 to 06.07.1984 as Leave Without Pay. There is no explanation as to how they could treat the absence for the aforesaid period as leave without pay when the Applicant has not applied for such leave or any other kind of leave. Another aspect of the case is that the Applicants wife has lodged a missing person report with the police on 05.04.1984 with a copy of the same to the DRM, Northern Railway, New Delhi. The Respondents have not taken any action on it as provided under the relevant rules. The Respondents have no excuse to say that they were not aware of the procedure to be followed if any employee is reported to be missing. The Respondents have not taken any effort to find out the whereabouts of the Applicant from the local police. If the Respondents were of the view that the Applicant was on unauthorized leave, they have also not issued any notice/direction to him to join duty failing which disciplinary action would be taken against him as unauthorized absence is undisputedly a misconduct.
13. In Roshan Lal Tandon Vs. Union of India and Another AIR 1967 SC 1889, a constitution Bench of the Supreme Court authoritatively laid down the proposition that although the origin of Government service is contractual, there being an offer and acceptance, in every case, yet once appointed to his post or office, the Government servant acquires a status and his rights and his obligations are no longer determined by consent of both the parties but by statute or statutory rules.
14. Generally, the jural relationship between the employer and a public servant can come to an end only for reasons of removal/dismissal from service for misconduct, termination of service for reasons other than misconduct, compulsory retirement, superannuation, voluntary retirement, resignation, abandonment of service by the employee and abolition of the post by the employer. There cannot be another mode called deemed resignation unless the rules provide for it for good and sufficient reasons. Admittedly, there are no such rules framed by the Respondents. The Apex Court in D.K. Yadav Vs. J.K. A. Industries Ltd. 1993 (3) SCC 259 held that it is difficult to acknowledge the presence of a rule of automatic termination in the public law field. The Andhra Pradesh High Court relying upon the aforesaid judgment of the Apex Court in D.K. Yadavs case (supra) held in its judgment in Dr. K. Subramanyam Reddy Vs. Sri Venkateswara University represent by the Registrar, Tirupathi and Another 1996 (1) SLR 168 (AP-DB) that there can be no rule of automatic termination for overstaying leave, without affording an opportunity of making a representation. The relevant part of the said judgment reads as under:-
It is difficult to acknowledge the presence of a rule of automatic termination in the public law field. Provisions which are not in consonance with principles of natural justice and mandates of Articles 14, 16 and 21 of the Constitution cannot be used as weapons by the employers to terminate the services of the employees. Law in this behalf has been candidly stated in the case of D.K. Yadav Vs. J.K. A. Industries Ltd. (1993) 3 SC 259 wherein it has been pointed out that if there is an allegation of unauthorized absence, that amounts to an allegation of misconduct and if there is an allegation of misconduct, termination of service without complying with the principles of natural justice would not be justified. The court has pointed out:-
8. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person.
9. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice
11. The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result, in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi- judicial inquiry and not to administrative inquiry. It must logically apply to both.
12. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable..
14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice.
15. Similarly the Apex Court in LAXMAN DUNDAPPA DHAMANEKAR AND ANOTHER Vs. MANAGEMENT OF VISHWA BHARATA SEVA SAMITI AND ANOTHER 2001 (8) SCC 378 held as under:-
There is no provision either in the Act or the Rules providing for automatic termination of services of a teacher on account of being absent without leave. If any teacher remains absent without any leave, it is open to the Management to terminate the services of such teachers only after complying with the provisions of the Act and the Rules or principles of natural justice. In the present case, we do not find any provision either in the Act or the Rules providing for automatic termination of service of a teacher in the event of a teacher remaining absent without leave. In the absence of such a provision in the Act or the Rules, the alleged deemed termination of services of the appellants without giving any opportunity to the appellants was unlawful and deserves to be set aside.
16. As far as delay is concerned, as rightly argued by the learned counsel of the Applicant, the impugned order dated 16/29.08.1984 of deemed resignation being a void order, having been made in breach of the rules, the defence of limitation raised by the Respondents cannot be sustained. Moreover, the contention of the Applicant that he was a missing person from 3.4.1984 has not been refuted by the Respondents. Therefore, the aforesaid order dated 16/29.08.1984 could not have been served upon the Applicant.
17. In the above facts and circumstances of the case, we allow this OA. Consequently, we quash and set aside the impugned orders dated 29.08.1984, 18.10.2010 and 11.04.2011. We also direct the Respondents to reinstate the Applicant in service with retrospective effect from 11.02.2009, the date on which he reported for duty with the fitness certificate of the same date, with all consequential benefits except back wages and allow him to join duty immediately but in any case within a period of two weeks from the date of receipt of a copy of this order. Thereafter, they shall take appropriate decision as to how the intervening period from 22.02.1984 till the date of his joining duty in terms of the aforesaid direction shall be treated. However, we make it clear that, if the Respondents consider that the Applicants absence during the aforesaid period was unauthorized, this order will not restrain or prohibit Respondents in any manner to take disciplinary action against the Applicant in consonance with the principles of natural justice.
18. In the above facts and circumstances, there shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) Rakesh