Central Administrative Tribunal - Ernakulam
K.Subramanian vs The Chief Passenger Transportation ... on 20 December, 2016
Author: P.Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 180/770/2014
Tuesday this the 20th day of December , 2016
CORAM
HON'BLE MR. JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE MRS. P. GOPINATH, ADMINISTRATIVE MEMBER
K.Subramanian, aged 55 years
S/o P. Kuppuswamy,
(Ex.SCP/POY, S.No.411) S.Rly.
N.220/D, Kakkan Street,
Palathurai (Via) Madukkarai Market,\
Coimbatore 641001 (Tamil Nadu) . . . Applicant
(By Advocate Mr.U.Balagangadharan)
vs.
1. The Chief Passenger Transportation Manager,
& Revisionary Authority,
Southern Railway, Headquarters Office,
Personnel Branch, Chennai 600 003.
2. The Additional Divisional Railway Manager,
Southern Railway, Divisional Office,
Palakkad-678 001.
3. Senior Divisional Operating Manager,
Southern Railway, Divisional Office,
Transportation Branch, Palakkad -678 001.
4. The Senior Divisional Personnel Officer,
Southern Railway, Divisional Office
Palakkad 678 001. ... Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil, Sr.PCGC )
( This application having been finally heard on 1.12.2016, the Tribunal on 20.12.2016
delivered the following.)
ORDER
Per: Mrs.P.Gopinath, Administrative Member:
The applicant was working in the respondent department as Sweeper-cum-porter. The applicant had sustained injury of disc prolapse during the course of employment. After decategorisation, he was working as a SCP. On 1.3.2011 he lost mobility due to sudden relapse of his earlier disease and he remained on bed for about five months. The officers were informed orally as they had visited the applicant. Inadvertently a formal application for leave was omitted to be given. He reported back with private medical certificate and was permitted to rejoin duty. However he was proceeded for unauthorised absence and was compulsorily retired. Applicant argues that the moot question is whether an instance of unauthorised absence itself would amount to misconduct unless it is proved to be willful. Applicant submits that the Apex Court has held that unauthorised absence cannot amount to misconduct unless it is proved to be willful.
2. The applicant commenced his service in the year 1984. While working as Gangman in the Engineering Department he had an employment injury. His shoulder bone was fractured while carrying a sleeper. After prolonged treatment it was diagnosed as prolapse of his seventh cervical disc and first thoracic disc. It resulted in limitation in cervical movements and hand movements. It also resulted in neurological problems like weakness in hand grip coupled with severe pain of back and limbs. The Railway hospital where he was undergone treatment, advised to undergo surgery. However, the applicant was not willing, apprehending serious post surgical problems. Applicant argues that a Sweeper-cum-porter having primary school qualification, cannot be expected to know the nuances of disciplinary proceedings or the consequences that were to befall after the inquiry. The Inquiry Officer held applicant guilty of unauthorised absence and imposed a penalty of Compulsory Retirement. The 2nd respondent who was the Appellate Authority held the charge of unauthorised absence as proved and relying on previous character antecedence of the applicant dismissed the Appeal upholding the order of penalty. The Revisionary Authority also upheld the decision.
3. Relief sought by the applicant is to direct the 3 rd respondent to consider reinstating the applicant in service with immediate effect treating the absence from duty from the date of Compulsory Retirement as duty for all purposes and further direct to grant all consequences benefits including Arrears of Pay and Allowances etc.
4. Respondent in the reply statement submits that the applicant was taken up for disciplinary proceedings for remaining unauthorisedly absent from duty from 01.3.2011 to 25.8.2011 without applying for leave, or intimating the reasons for his unauthorised absence. Applicant also did not follow the prescribed Medical Attendance Rules. Para 538 (4) of the Indian Railway Medical Manuel (IRMM in short) specifies that -
'When a Railway employee residing outside the jurisdiction of a Railway doctor requires leave on medical certificate, he should submit, within 48 hours, a sic certificate from the Registered Medical Practitioner. Such certificate should be, as nearly as possible in the prescribed form as given in the Annexure XI and should state the nature of the illness and the period for which the Railway employee is likely to be unable to perform his duties. The competent authority, may at its discretion, accept the certificate or, in cases where it has reasons to doubt the bonafides, refer the case to the authorised Medical Officer for advise for advice or investigation.' Further para 541 (4) of the IRMM specifies that 'when a Railway employee reports sick away from his/her headquarters, the local Railway Doctor will, if he considers that the Railway Employee is sick and unfit to work issue a medical certificate, but as soon as the employee is fit to travel, issue a transfer memo and transfer him/her to his/her headquarter station and forward the case papers to the Railway Doctor at the Headquarters, station for further action. The applicant had not applied for any leave nor intimated any reasons for his non- attendance for duty. He was thus treated as remaining on unauthorised absence from duty and was issued with charge memorandum. A detailed inquiry was conducted on the charges framed against the applicant in which he had actively participated.
5. Respondent argues that the applicant has not in O.A. placed any justifiable ground for a judicial interference. On medical decategorisation, the applicant had already been given an alternative employment and posted as Station Cleaner under the Station Manager/Polloachi. The applicant remained unauthorisedly absent for duties in the de-categorised post with effect from 01.3.2011. The Station Manager, Pollachi sent a report dated 24.6.2011 and 11.7.2011 to the 3 rd respondent stating that the applicant was on unauthorised absence. Based on the reports of the Station Manager, Pollachi, the applicant was issued with charge memorandum for the charges of unauthorised absence for the period from 01.3.2011 onwards. As the applicant was not on duty, service of the charge memo in person was not possible. Therefore, the charge memo was sent to his residential address by RPAD which was acknowledged by him 05.8.2011. The applicant did not submit any defence statement as instructed in Para 4 of the Annexure R1 charge memo, though he acknowledged the charge memo on 05.8.2011. He reported for duty on 23.08.2011, producing a Private Medical Certificate. As per Para 5389(1) of the Indian Railway Medical Manual, 'when a Railway employee, who is residing within the jurisdiction of a Railway doctor, is unable to attend duty by means of sickness, he must produce, within 48 hours, a sick certificate from the competent Railway doctor in the prescribed form.
As per Para 538 (2), should a Railway employee, residing within the jurisdiction of a Railway doctor, desire to be attended by a Non-Railway doctor of his own choice, it is not incumbent on him to place himself under the treatment of the railway doctor. It is, however, essential that if leave of absence is required on medical certificate, a request for such leave should be supported by a sick certificate from the Railway doctor.
6. The applicant had not submitted any medical certificate within 48 hours of absence either from the Railway doctor or from a non-Railway doctor even though he remained on unauthorised absence from 01.3.2011, for almost six months, but produced the private medical certificate only on 23.8.2011 at the end of leave period. He had also not submitted any leave application requesting for leave. Thus the applicant has failed to observe the Railway Medical Attendance Rules. Para 541 of the Indian Railway Medical Manual specifies that 'A railway employee who has been on leave on medical certificate shall not be permitted to resume duty till he/she has produced a fitness certificate or a duty certificate in the prescribed form from the competent Railway doctor.' The applicant was directed for medical examination before the Divisional Medical Officer Pollachi, on his reporting for duty on 23.8.2011, who declared him as 'Fit' for duty on 26.8.2011 and further endorsed in the certificate that 'Period of absence is not covered from 01.3.2011 till date.' Therefore, the applicant was taken for duty and Disciplinary Authority ordered continuation of inquiry into the charges already framed.
7. The applicant did not engage any defence helper and preferred to defend his case by himself. During the course of the regular inquiry while answering question No.28, the applicant had deposed that his nature of duty was Station cleaning assisting, ECRC (Enquiry-cum-Reservation Clerk), accompanying the SS(Station Superintendent for cash remittance at SBI, Pollachi and collecting stores items from Palghat. While answering Question No.30, the applicant had deposed that he was regularly taking Ayurvedic treatment for rheumatic back pain and leg pain for three years and due to severity of pain he proceeded for treatment on 01.3.2011 and he was unable to inform the Station Superintendent at Pollachi about his sickness since he did not have any phone. While answering Question No.32, the applicant had deposed that he was under the impression that his wife had informed the Station Superintendent at Pollachi and only on reporting to the Station after treatment, he realised that his absence was not advised to the Station properly.
8. The disciplinary Authority after considering the records of the case and the depositions recorded in the inquiry, imposed the penalty of compulsory retirement from service by Annexure A3 speaking order. The applicant submitted his appeal to the 2nd respondent which was disposed of by Annexure A5 orders confirming the penalty of compulsory retirement from service. Considering the 21 years of service rendered by the applicant, he was sanctioned full pension and gratuity under Rule 64 of the Railway Services (Pension) Rules, 1993. After receiving all the terminal benefits the applicant submitted a revision petition to the 1 st respondent, which was also disposed of by Annexure A6 orders upholding the penalty of compulsory retirement from service.
9. Respondent argues that the applicant sustained injury while in service. Though advised to undergo surgical correction, applicant continued on duty availing the benefit of decategorisation. Applicant chose to avail Ayurvedic treatment. As per the provision of IREC paragraph 21, treatment under a registered medical practitioner is permitted. The applicant had produced private medical certificate to prove his long drawn treatment. The private medical certificate produced by the applicant has not been doubted or disputed by the respondents at any point of time and had been accepted.
10. Applicant would argue: Having accepted the private medical certificate, and considering the past medical history of the applicant the respondents should not have initiated any proceedings. The absence caused due to illness, ought to have been regularized by granting eligible leave or leave without pay as the case may be. Unauthorised absence ipso facto will not amount to misconduct unless it is proved to be willful. The orders of the disciplinary authority and the Revisionary Authority do not hold that the absence was willful. The Revisionary Authority has travelled beyond the Charge Memo and the evidences before it and ventured to refer to past incidence of absence for arriving at a conclusion which shows that the authority was prejudiced.
11. We have gone through the rival submissions of the parties and perused the material placed on record.
12. In North Eastern Karnataka R.T.Corpn. V. Ashappa 2006 SCC (L&S) 942 the Apex Court has held that absence for a long time in public utility services needs to be tackled with a heavy hand.
In CA No. 8245 of 2013 [ 2014 (1) SK] the Apex Court had held by order dated 16.9.2013.
'that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non application of mind, malafide, perverse or arbitrary or if there is non-compliance of statutory duty by the statutory authority. Power to retire compulsorily, the Government servant in terms of service rule is absolute, provided the authority concerned forms a bonafide opinion that compulsory retirement is in public interest.' Applicant has not made out a case of non-application of mind, malafide or perversity.
13. While examining the jurisdiction of Tribunal in disciplinary proceedings and outcome, the following is brought to our notice:
In Shri Babulal (Conductor) v. Delhi Transport Corpn & Ors HC/Delhi 2004 (3) AISLJ 269 the Apex Court has held that
i) Court cannot interfere when there is some evidence
ii) merely because two views are possible Court cannot impose its own views.
In Government of Tamil Nadu and Ors. v. A. Rajapandian - S/C 1995 (2) AISLJ 216 the Supreme Court held that
i) High Court cannot act as a Court of Appeal in Domestic proceedings.
ii) Court cannot re appreciate the evidence on record and arrive at a different findings in a Domestic proceedings
iii) Court should not interfere when there is no flaw in procedure. In Transport Commissioner Madras v. A Radha Krishna Moorthy 1995 (1) SCT 728
-729 the Apex Court has held that Administrative Tribunal has no jurisdiction to go into the truth of the allegation/charges particularly at a stage prior to the conclusion of the Disciplinary inquiry or even after when the Disciplinary Authority on the basis of evidence has arrived at the conclusion and imposed the penalty.
14. Applicant alleges that Revisionary Authority has travelled beyond the charge memo and the evidences before it and ventured to refer to past incidence which arriving at a conclusion.
In Govt. of AP v. Mohd Taher Ali (2007) 2 SCC (L&S) 990 Apex Court has held that 'Previous misconduct can be considered by the disciplinary authority while imposing punishment. There is no hard and fast rule that merely because the earlier misconduct was not mentioned in the charge sheet, it could not be taken into consideration by the punishing authority. Consideration of past misconduct is only to reinforce the opinion of the disciplinary authority.
The Apex court in State of Rajasthan v. Mohd. Naz (2006) 1 SCC 589 has held that ' Absenteeism from office for a prolonged period of time without prior permission by government servants is a principal cause of indiscipline which has greatly affected various government services. In order to mitigate the rampant absenteeism and willful absence from service without intimation to the Government, the Government of Rajasthan inserted Rule 86(3) in the Rajasthan Service Rules which contemplated that if a Government servant remains willfully absent for a period exceeding one month if the charge of willful absence from duty is proved against him, he may be removed from service.'
15. This is a case where applicant proceeded on leave without intimation. This is not a case where applicant was rendered suddenly indisposed. He was suffering from a chronic complaint. Applicant is a person who has 21 years of service. He has had an earlier injury and so he should be presumed to be aware of the procedure of proceeding on leave on medical grounds on production of appropriate records and intimation of absence. Applicant has also not established that had he applied for leave, the same would have been denied or that there was a fear of refusal of leave. Applicant cannot have such assumptions also. Leave is a facility provided under the rules. Several citations of the Apex Court have been produced on prolonged absence without intimation and jurisdiction of courts in intervening in disciplinary proceedings. In this case we note that the applicant had sought to avail ayurvedic treatment, which justified his sudden or prolonged absence from duty instead of availing the railway medical facilities which was always available to him in an emergency. True, the applicant has the freedom to choose his line of treatment, but he should have intimated his unavailability, may be for a prolonged period as per advice of his ayurvedic doctor. We also note that on receipt of charge memo for absence, applicant returned to resume duty.
16. It is for the Inquiry officer to draw a conclusion from evidence that comes before him in an inquiry. This is not a case where the applicant had not been given opportunity to participate in the inquiry. Further applicant had submitted an appeal petition and a review petition which reveals that applicant was aware of the disciplinary process and the remedies available under the process. Hence it is difficult to accept the contention as argued that the applicant, being a sweeper, was not fully aware or conscious of the consequences. We find no illegality in the procedure or its outcome. This is a case where applicant remained unauthorisedly absent for 5 months, admitted his guilt, but failed to justify the absence in the inquiry. The belated medical certificate produced by applicant from the Divisional Medical Officer Pollachi on 23.8.201, had declared him fit for duty. An employee may proceed on medical leave, for long periods also; but after duly intimating his absence, so that office work will not be disrupted. (This is a case of keeping a frequently used public facility in a clean condition which is necessary in the interest of health of public users and ambience of a public utility.) But the proceeding on long leave without information or seeking permission, leaves one guess-estimating in a public service department regarding a person's attendance in office, whether substitute arrangements are required to be made or not, how the work will be managed and for what period of absence. Such an uncertainty would destroy office discipline and a sense of commitment to work. Such uncertainties divert attention and time in public service departments from core issues of operation, to other tasks which are required to flow smoothly, if properly addressed by every level in the command and work chain.
17. It is an admitted fact that applicant had a medical problem of back pain, but nowhere has the applicant established that his condition was such that he could not communicate by letter or phone to explain his absence, so that an impression of willful and unauthorised absence could have been averted. Applicant has also not established a case that had the leave been properly applied for and in time the same would have been denied, forcing him to proceed unauthorisedly. Absenteeism for prolonged periods without intimation in public utilities not only causes inconvenience but also encourages indiscipline. A disciplinary inquiry following the laid down procedure is a judicially evolved rule of administrative law now firmly established. This procedure has been duly followed.
18. Judicial review in disciplinary proceedings is not directed against a decision but against the decision making process. We note no bias, perversity, arbitrariness or mala fide intention of the respondent which merits an intervention. We are not to sit in judgement over the decision per se, as an inquiry consistent with rules has been held for the misconduct of absence without intimation. That reasons adduced subsequent to disciplinary proceedings in this O.A., would not justify a proved wrong or misconduct . Tribunal cannot substitute its own discretion for that of the authority.
19. The applicant has been compulsorily retired with full pension and gratuity. There appears to be no cogent reason meriting interference by the Tribunal.
20. In the result, O.A. is dismissed. No order as to costs.
(MRS. P.GOPINATH) (N.K.BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sj/*