Central Administrative Tribunal - Madras
K Pugalenthi vs Posts on 13 December, 2024
1 OA No. 558/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00558/2023
Dated this, the 13th day of December Two Thousand Twenty Four
CORAM : HON'BLE MS. VEENA KOTHAVALE, Member (J)
K.Pugalenthi, S/o. Kalyanasundaram,
No. 113/63, Nethaji Salai,
Tiruvallur 602001,
Tiruvallur District. .....Applicant
By Advocate M/s. R. Malaichamy
Vs.
1.Union of India,
Rep by the Senior Superintendent of Post Offices,
Chennai City Central Division,
Chennai 600017.
2.The Inspector Police,
B1, Tiruvallur Town PS,
Tiruvallur District. ....Respondents
By Advocate Mr. M. Kishore Kumar, SPC
2 OA No. 558/2023
ORDER
(Pronounced by Hon'ble Ms. Veena Kothavale, Member(J)) The applicant has filed this OA praying for setting aside the order of the 1st Respondent issued vide Memo No. E11/ROHSC/RKS/Dlgs dt. 05.06.2014 and memo No. B2/OA 743/2022 dt. 11.05.2024 and to direct the 1st respondent to appoint the applicant on compassionate grounds on the ground of deemed death of his father as per the provisions of the Section 108 of Indian Evidence Act, 1872, from the date of issue of non-traceable certificate dt. 30.03.2022 by the respondent no. 2.
2. It is the case of the applicant that his father was working as Postman at Chennai. During 2009, the applicant's mother met with fire accident in which she sustained burn injury all over her body and continues to live with grave physical and mental suffering even to this date. The applicant's father was granted Rs. 1,85,000/- towards medical treatment of his wife and he was asked to submit discharge summary and other certificates on or before 10.04.2010 by the 1st respondent.
3. Vide letter dated 19.04.2013, the 1st respondent informed the applicant's mother that her husband was granted medical allowance for her treatment which are due to be paid to the department and the letters sent to him were returned with remarks "left without instructions" and therefore, she was directed to inform the respondents if the applicant's father was 3 OA No. 558/2023 residing with them and if not, any police complaint has been lodged and if so, to submit a copy of FIR and the outcome of the complaint. In this regard, another letter dated 13.05.2013 was sent again by the 1st respondent. Accordingly, the applicant's mother filed a complaint and FIR was registered on 09.04.2010 by the 2nd respondent police. The applicant's mother informed the same to the 1st respondent.
4. The applicant's mother submitted a representation dt. 20.05.2013 to the 1st respondent to consider her case for appointment on compassionate grounds since she is residing with her children in penury condition. In response, the 1st respondent vide letter dt. 21.09.2015, directed the applicant to submit report on the action taken on FIR lodged by the police authority.
5. Vide letter dated 12.10.2017, the 1st respondent informed the applicant's mother that she cannot be given compassionate appointment as her husband has been removed from service vide order dt. 05.06.2014 and there is no provision to give compassionate appointment in cases where disciplinary action has been initiated resulting in removal from service. Despite request by applicant's mother to serve a copy of the order dt. 05.06.2014, the same has not been served to the applicant or his mother till date. The applicant's mother thereafter filed OA No. 718/2022 praying for grant of family pension. The 1st respondent filed reply on 05.06.2014 annexing therewith the order of removal dated 05.06.2014 as Annexure R- 4 OA No. 558/2023
22. Hence, applicant's mother withdrew OA No. 718/2022 with liberty to file a detailed representation to the competent authority and the same was allowed vide order dt. 14.06.2023.
6. After continued effort with the police authorities to trace the whereabouts of the applicant's father and for issuance of certificate in this regard, the 2nd respondent issued the non-traceable certificate dt. 30.03.2022 with regard to missing complaint lodged on 09.04.2010 stating that whereabouts of the applicant's father could not be traced till date and the case is still pending. After receipt of non-traceable certificate dt. 30.03.2022, the applicant made a representation to the respondent on 02.04.2022 to consider his case for appointment on compassionate grounds. Subsequently, the applicant's mother also gave another representation on 03.06.2022 on the above lines. Thereafter, the applicant filed OA No. 743/2022 for relief of compassionate appointment to him and this Tribunal disposed of the said OA vide order dt. 05.09.2022 with a direction to the 1 st respondent to consider the representation and pass the order within a period of three months. The 1st respondent filed MA No. 43/2022 for extension of time of four months to comply with the said order which was granted vide order dt. 13.01.2023. However, the 1st respondent, vide impugned order dt. 11.05.2023 rejected the claim of the applicant stating that the applicant's father was removed from service and also the 2nd respondent issued a 5 OA No. 558/2023 certificate dt. 30.03.2022 stating that the whereabouts of the applicant's father is still pending. The applicant learnt that this Tribunal allowed similar nature of case in OA No. 356/2002, vide order dt. 16.12.2002. Therefore, the applicant is entitled to the benefit of the said judgment. Accordingly, he has filed this OA for the aforesaid relief.
7. On issuance of notice, the respondents have appeared through their counsel, Mr. M. Kishore Kumar, SPC and filed reply in the matter. It is stated in the reply that the applicant's father, Shri. R. Kalyanasundaram working as Postman at Greams Road Sub Post Office from 03.11.1998, was granted medical advance of Rs. 1,85,400/- towards the treatment of the applicant's mother. Vide letter dt. 15.05.2009, the applicant's father was asked to submit medical bills immediately failing which the amount of advance granted would be recovered from his pay and allowances. The letter was returned undelivered as absent. Hence another letter was sent to his residential address on 02.06.2009 and the same was duly acknowledged by him on 05.06.2009. The applicant's father submitted medical bills belatedly on 15.07.2009 but failed to submit discharge summary, Certificate 'B' and self explanatory letter and a letter containing the bill in submission of medical bills. Hence, vide letter dt. 23.07.2009, he was directed to submit the above documents on or before 25.08.2009 failing which order would be passed for recovery of the said amount from the salary and the reminder was 6 OA No. 558/2023 sent on 17.08.2009. In response, he submitted a request letter dt. 18.09.2009 to grant him one month's time to submit the documents. Since he failed to submit the documents within the prescribed period, the amount of Rs. 8373/- was recovered from his pay and allowances for the months of October and November, 2009. He submitted a request letter dt. 31.12.2009 requesting to stop the recovery of the amount and assured that he would submit the medical bill before 10.02.2010 failing which the amount of Rs. 3000/- may be recovered from his salary towards outstanding medical advance.
8. It is further stated that the applicant's father was issued with the show cause notice dt. 15.01.2010 to submit the requisite documents on or before 10.02.2010 failing which unadjusted medical advance would be recovered, besides taking disciplinary action against him. The said communication sent on 18.01.2010 was returned with endorsement "left without instructions". Hence, direction was issued to the Sr. Postmaster, T. Nagar HO vide letter dt. 17.02.2010 directing him to continue to recover the unadjusted medical advance from February, 2010. Final warning was issued to the applicant's father vide letter dt. 19.03.2010 to submit the requisite documents along with the medical bill on or before 10.04.2010 otherwise disciplinary action would be taken. The said communication sent through registered post was acknowledged on 23.03.2010.
7 OA No. 558/2023
9. Subsequently, the applicant's father was granted EL on 08.04.2010. But he was unauthorisedly absent from duty from 09.04.2010. As there was overstayal of leave, show cause notice dt. 22.10.2010 was issued informing him that he had applied for one day EL and on expiry of leave, he has not reported to duty on 09.10.2010 and till 22.10.2010. As there was no report from the applicant's father, he was directed to give explanation. The said letter was sent through RPAD, but the same was returned with remarks "no such person in delivery time and sent to sender". Another show cause notice was issued to the applicant's father on 15.11.2010, but the same was returned with remark "left". Subsequently, a 3rd show cause notice was issued to him vide letter dt. 21.12.2010, but the same was also returned with remark "Near Meera Theatre, Tiruvallur 602001". In this regard, the Superintendent of Post Offices, Kanchipuram Division was addressed vide letter dt. 28.08.2011 to verify whether the applicant's father was residing in the said address at No. 35, Arumugaswamy Koil Street, Tiruttani. Since the show cause notice was returned, he was also directed to arrange for re- direction of the letter to Tiruvallur HPO and to forward the reply early for taking further action. A report was received stating that "inquiry revealed that the applicant's father R. Kalyanasundaram was not residing at No. 35, Arumugaswamy Koil Street, Tiruttani" and only his brother is residing and that the applicant's father has moved to Tiruvallur.
8 OA No. 558/2023
10. It is further stated that disciplinary action under Rule 14 of CCS (CCA) Rule, 1965 was accordingly initiated against the applicant's father vide memorandum dt. 02.04.2012 for non-submission of mandatory documents and also for unauthorised absence from 09.04.2010. An inquiry officer and presenting officer were also appointed. The charge memo dt. 02.04.2012 was sent to the applicant's father through registered post to the last known residential address but the same was returned with a remark "left". It was reported by the Inspector Posts, Tiruttani East Sub Division to the Inquiry Officer vide letter dt. 20.09.2012 that the applicant's father was not residing at the said address. Hence, rule 14 charge sheet issued to the applicant's father could not be delivered and the same was returned. Further, it was reported by the Assistant Superintendent of Post Offices, Tiruvallur Sub Division vide letter dt. 22.09.2012 that the cover containing Rule 14 charge sheet addressed to Mr. R. Kalyanasundaram, Postman, Greams Road SO was entrusted to Mail Overseer, Tiruvallur for delivery and the same was returned with a remark "whereabouts of the addressee not known" and an inquiry with the applicant's mother Smt. E. D. Tamilselvi by the Mail Overseer revealed that she had lodged complaint to the Superintendent of Police, Tiruvallur to trace out her husband and that she did not have any copy of the complaint. Hence the cover containing copy of the charge sheet was returned. The Superintendent of Post Offices, Kanchipuram had vide 9 OA No. 558/2023 letter dt. 22.06.2013 intimated that the copy of the rule 14 chargesheet issued to applciant's father was affixed on the doors of the residential address of the applicant's father in the presence of two independent witnesses by the Asst. Supdt. Of Post Offices and the Mahazar in original dt. 11.06.2013 received from the Assistant Superintendent of Post Offices, Tiruvallur Sub Division was forwarded forthwith.
11. It is also stated that as per the departmental rules, the Assistant Commissioner of Police/The Sub Inspector of Police at Thousand Lights, Tiruvallur, Tiruttani and Chennai were requested vide letter dt. 19.03.2013 to register complaint regarding absconding from duty of the applicant's father from 09.04.2010 and to issue a certificate about the whereabouts of Shri. R. Kalyanasundaram after making inquiry. The applicant's mother was also appraised of all the above facts vide letter dt. 19.04.2013 and again reminded on 13.05.2013 to intimate the whereabouts of the R. Kalyanasundaram and whether any police complaint was lodged and if so, to forward copy of the FIR and outcome of the police complaint. In response, a copy of the FIR dt. 17.05.2013 for Case No. 200/2013 was forwarded by applicant's mother vide letter dt. 08.02.2013 which was received on 21.05.2013. In the said FIR, delay is noted as "delay due to the applicant". On receipt of the FIR, the news of absconding of the applicant's father was published in Dinamalar Advertisement column on 05.07.2013. Thereafter, in 10 OA No. 558/2023 the absence of the applicant's father, rule 14 inquiry was conducted and decided ex parte as the applicant's father neither submitted any representation nor attended any of the inquiry hearings. Accordingly, he was awarded the punishment of "Removal from service" vide memorandum dt. 05.06.2014.
12. It is stated that the applicant's mother vide her letter dt. 27.05.2017 and 29.05.2017 had requested for compassionate appointment for herself for which reply was given that her husband was removed from service and there is no provision for compassionate appointment for such cases. After lapse of 9 years from the date of filing FIR, the applicant's mother submitted a certificate dt. 30.03.2022 issued by Inspector, B1 Tiruvallur Town Police Station, Tiruvallur stating that her husband Shri. R. Kalyanasundaram is missing from the morning 07.30 of 09.04.2010 and the case is registered under Crime No. 200/2013 under section "Man Missing" and on inquiry, his whereabouts could not be traced. Further, vide letter dt. 20.07.2023, the Inspector of Police, B1 Police Station, Tiruvallur has stated that the complaint was under inquiry and the same is still pending.
13. Subsequently, representation dt. 02.04.2022 seeking compassionate appointment was received from the applicant and another OA No. 743/2022 was filed by the applicant for grant of compassionate appointment. The OA was disposed of at the admission stage with a direction to consider the 11 OA No. 558/2023 representation dt. 03.06.2022 and pass a reasoned and speaking order within a period of three months. The competent authority has informed that there is no provision to give compassionate appointment to the dependent of the Government servant who has caused loss to the department and absconded, and subsequently removed from service. Accordingly, after careful consideration, the representation of the applicant for compassionate appointment was rejected and a speaking order was issued vide letter dt. 11.05.2023 in compliance of the direction of this Tribunal. Accordingly, the respondents have prayed for dismissal of the OA as devoid of merits.
14. The applicant has filed rejoinder reiterating his contentions made in the OA and prayed for grant of relief.
15. The respondents have also filed reply to rejoinder and prayed for dismissal of the OA.
16. Heard both counsels and perused the records.
17. Learned counsel for applicant has submitted that the respondents could not have removed the applicant's father from service when his whereabouts was not known or when he could not be traced. Even then, the applicant's father has been removed from service vide order dt. 05.06.2014 and the same is arbitrary and illegal.
18. He further submitted that this Tribunal has allowed similar nature of cases in OA No. 352/2002 vide order dt. 16.12.2002 and that the applicant is 12 OA No. 558/2023 also entitled for the benefit of the said judgment. He further submitted that this Tribunal has also allowed similar nature of cases in OA No. 427/2014 vide order dt. 04.09.2015 and the applicant is entitled for the similar benefit. He also submitted that the Madurai Bench of the Hon'ble Madras High Court has also allowed similar nature of case in WP (MD) No. 13064 of 2009 vide order dt. 17.04.2013 and the Writ Appeal (MD) No. 1101/2013 has been dismissed vide order dt. 05.11.2015. Learned counsel for the applicant submits that the applicant is entitled to the relief prayed for and entitled to appointment on compassionate grounds.
19. Per contra, learned counsel for the respondents submits that the OA is barred under Rule 10 of CAT (Procedure) Rules, 1987 as the applicant has sought plural remedies viz., he has challenged the impugned order dt. 05.06.2014 under separate cause of action and has also challenged the order dt. 11.05.2023 and the same are impermissible under law. He further submits that the OA is not maintainable as the same is barred under limitation. The applicant should have filed this OA within one year from the date of accrual of the cause of action. Learned counsel relies on the decision of the Chennai Metropolitan Water Supply and Sewerage Board Vs. T. T. Murali Babu reported in 2014 (4) SCC 108 regarding doctrine of delay and laches wherein the Hon'ble Supreme Court has held that the doctrine of delay and laches should not be lightly brushed aside. As regards the judgment referred 13 OA No. 558/2023 by the applicant, learned counsel for the respondents submitted that the same cannot be considered as they are judgment in personam and therefore, the claim of the applicant that he is entitled to the benefit of the said judgment is not acceptable. The order passed in a particular case is in personam and not in rem. Therefore, as per the legal principles laid down by the Hon'ble Apex Court, if the applicant wants to get the benefit of another judgment, he shall have to satisfy that his application does not suffer from delay and laches. Learned counsel for the respondents also relied upon the recent judgment dt. 22.06.2023 passed in OA 464/2023 in which this Tribunal observed that the OA is not maintainable since the issue has already been considered by the Tribunal in the earlier round of litigation. Since the applicant has filed this OA on the similar grounds as that of his previous OA, this OA is barred by res judicata. Accordingly, he sought for dismissal of the OA.
20. On perusal of the Consolidated Instructions on compassionate appointment issued by DoP&T vide OM No. 14014/02/2012-Estt (D), dt. 16.01.2013, para 12 thereof provides that cases of missing Government servants are also covered under the scheme for compassionate appointment.
21. The judgments relied upon by the learned counsel for applicant are seen. On perusal of the judgment dt. 16.12.2002 passed by this Tribunal in OA 356/2002, it is observed that it contains similar sets of facts. In that case, the applicant's husband who was working as a Skilled Painter was missing from 14 OA No. 558/2023 September 1990 and she gave a representation in 1995 for appointment on compassionate ground. The respondents filed reply stating that since her husband was removed from service on 15.02.1993, there is no question of extending any compassionate appointment. She lodged missing complaint to the Inspector of Police only on 10.04.2001 after 11 years and thereafter, gave a representation seeking family pension and appointment on compassionate ground. This Tribunal under the peculiar circumstances of the case, condoned the delay and allowed the OA and directed the respondents to consider the applicant's case for grant of family pension from 25.06.2001.
22. In another similar case viz., OA No. 427/2014, the respondents were well aware that the applicant's husband was missing and his whereabouts were not known. The respondents issued charge sheet under Rule 14 of CCS (CCA) Rules, 1965 against the applicant's husband alleging unauthorised absence from duty for various periods and he was removed from service. The claim of the applicant's wife for retirement benefits and compassionate appointment were rejected. This Tribunal allowed the OA directing the respondents to treat the applicant as a family member of missing Government servant and process her claim for service benefits and compassionate appointment in accordance with the relevant rules/scheme 15 OA No. 558/2023 and directed the respondents to pass a reasoned and speaking order within 3 months.
23. In another case before the Madurai Bench of the Hon'ble Madras High Court in WA (MD) No. 1101/2013, the respondent's husband had disappeared without a trace in May 1999 and all attempts made by the respondent to trace her husband proved futile. The FIR was registered in Cr. No. 259 of 2009 for "Man Missing" and eventually a report was filed on 30.11.2000 that he was not traceable. In the meantime, the appellants issued a charge memo in the name of the respondent's husband on 30.06.1999 for unauthorised absence and the same was returned unserved as he had disappeared and by a final order dt. 09.04.2001, the department dismissed the respondent's husband from service. Therefore, the respondent filed WP (MD) No. 3796/2008 which was disposed of with a direction to consider and pass orders, but no orders were passed.
24. The respondents filed WP (MD) No. 13064/2009 challenging the order of dismissal of her husband and seeking a direction to grant consequential benefits. The said WP was allowed by the Single Judge. Against the said order the appellant Corporation filed Writ Appeal. In WP (MD) No. 13064/2009 against which the Writ Appeal was filed, the Hon'ble Single Bench, by raising presumption under Section 108 of Indian Evidence Act, 1872, observed that when a person is unheard for 7 years, such person 16 OA No. 558/2023 should be presumed to be dead and passed order that the respondent's husband should be deemed to have been dead on the basis of presumption available under Section 108 of Indian Evidence Act, 1872 and accordingly held that the order of dismissal was illegal and directed the department to settle the terminal benefits and also to provide compassionate appointment to the applicant's son. In Writ Appeal, the said judgment was upheld by the Hon'ble Division Bench and consequently, the Writ Appeal was dismissed.
25. In all the aforesaid judgments, though the facts vary, there is common thread which runs that the charge memo was issued against a missing employee and he was removed from service, the claim for compassionate appointment and grant of pension were rejected on the ground that there is no provision for compassionate appointment where the person is removed from service in a disciplinary proceedings. However, such action of the respondents have been set aside and appropriate directions have been passed holding that the applicant is entitled to seek service benefits as well as compassionate appointment as permissible under relevant rules and the relevant scheme of the compassionate appointment applicable to the family of the missing government employee.
26. In the present case also, the father of the applicant had availed one day EL on 08.04.2010 and thereafter did not report to duty from 09.04.2010 onwards. The applicant's mother filed a missing complaint and FIR was 17 OA No. 558/2023 lodged on 17.05.2013 vide Case No. 200/2013. She has intimated the same to the respondents vide her letter dt. 08.02.2013, but the respondents submit that they have received the letter on 21.05.2013. Despite knowing that the applicant's father is missing and that his whereabouts are not known, the respondents issued charge memo and held ex parte inquiry and passed the impugned order dt. 05.06.2014 removing the applicant's father from service. The non-traceable certificate has been issued by the 2nd respondent on 30.03.2022 and thereafter, the applicant made a fresh representation dt. 02.04.2022 to consider his case for appointment on compassionate grounds. OA No. 718/2022 was also filed for grant of compassionate appointment. This Tribunal while disposing of the OA directed the respondents to pass a reasoned and speaking order within a specified time limit. The respondents have rejected the claim holding that there is no provision for grant of compassionate appointment to the dependents of the Government servant who had absconded and was subsequently removed from service. The order dt. 05.06.2014 was passed by the respondents after the FIR was lodged by the applicant's mother regarding missing of her husband. The department, despite knowing that the applicant's father was missing and FIR has been lodged and that he was not traceable, his whereabouts are not known, have issued the charge memo and removed the applicant's father from service for unauthorised absence. The Inspector of Police being the appropriate 18 OA No. 558/2023 authority had issued endorsement about the missing person. It is seen that the applicant's father went missing right from 09.04.2010 and he was not traceable when the order of removal was passed on 05.06.2014. Even when the representations were given by the applicant as well as his mother in the year 2022 and till the impugned order dt. 11.05.2023 was passed by the respondents, the applicants father could not be traced or found even after 14 years. Under such circumstances, in many settled cases, a presumption under Section 108 of the Indian Evidence Act, 1872 is raised and the missing person is presumed to be dead when he is unheard of for 7 years or more by those who would have naturally heard of him. It is further held that the family members of such persons are entitled for all terminal benefits and compassionate appointment. In the present case, the applicant's father has been missing for more than 14 years. The respondents were well aware that he was missing and his whereabouts are not known. Under such circumstances, they ought to have considered the representations of the applicant for compassionate appointment as per the entitlement for the family of missing government employee as applicable under the relevant rules and the scheme of compassionate appointment and in line with various decisions of the Courts including the ones referred to above.
27. In view of the above, I am of the view that the applicant is also entitled to similar benefit as was available to the applicants in the above 19 OA No. 558/2023 referred cases. Therefore, the order dt. 05.06.2014 removing the applicant's father from service and the order dt. 11.05.2023 rejecting the claim made by the applicant for compassionate appointment are quashed and set aside. The respondents are directed to treat the applicant as dependent family member of the missing government servant and process his claim for compassionate appointment in accordance with the relevant rules and the scheme. The respondents shall pass a reasoned and speaking order after hearing the applicant within a period of three months from the date of receipt of a copy of this order.
28. Accordingly, the OA is allowed. No order as to costs.
(Veena Kothavale) Member (J) 13.12.2024 SKSI