Central Administrative Tribunal - Kolkata
Aritra Nandi vs South Eastern Railway on 3 January, 2024
'1 O.A. No. 350/1455/2022 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A. No. 350/1455/2022 Heard on: 21/12/2023. WL) ' Date of Order: 03 pt/2024 Coram: .Hon'ble Mr. Anindo Majumdar, Administrative Member OY } 202y -Aritra Nandi, S/o Late Apurba Krishna Nandi, aged about 55 years, Ex. Office Superintendent under the overall control of the General Manager, South Eastern Railway, Garden Reach, residing at 86/38/1, Brojomoni Debya Road, P.O, Sarsuna, P.S. Thakurpukur, Dist. 24 Parganas (South), Kolkata-700061, Phone: +919163617168 - Email: [email protected] Applicant -V/s- | 1. Union of India through General Manager, South Eastern Railway, Garden Reach, Kolkata - 700043. | 2. Principal Chief Personnel Officer, 'South: Eastern Railway, Garden Reach, Kolkata- 700043. 3. Principal Financial . Advisor, South Eastern Railway, Garden Reach, Kolkata ; 700043. 4 Financial' Advisor & Chief Accounts Officer(F&B) South Eastern Railway, Garden Reach, Kolkata - 700043, 5. Dy. Chief Statistical & Analysis Officer South Eastern Railway, Garden Reach, Kolkata - 700043. . ..... Respondents For The Applicant(s) =: Mr. C. Sinha; Counsel For. The Respondent(s) : Mr. S. Banerjee; Counsel 2 O.A. No. 350/1455/2022 ORDER Per: Mr. Anindo Majumdar, Member (A)
This matter is taken up by the Single Bench for disposal with the consent of both the parties in view of the revised list dated 04:04.2000 issued under Sub-Section (6) of Section 5 of the Administrative | Tribunals' Act, 1985, and, since no complicated question of law is involved.
2. The applicants have filed this O.A. -under Section 19 of the ~ Administrative Tribunals Act, 1985, seeking the following relief(s):
'a) To set aside and quash impugned Speaking Order No. ST/E/174/Court Case/AN/133 dated 26.07.2022 issued by the FA. & C.A.0.(F&B); S. E. Railway, Garden Reach.
b)To direct the respondents fo grant Compassionate Allowance fo the applicant w.e.f 08.06.2016 with all consequential benefits in consonance with Rule 65 of Railway Services (Pension) Rules, 1993 read with RBE No. 164 of 2008 forthwith. .
c) Any other order or orders as fhe Hon'ble Tribunal deems fit and proper."
3. The submissions made by the applicant are summarized below.:
(a) He is an.ex-employee of the South Eastern Railway.
(b) Disciplinary proceedings were initiated against him vide charge memorandum dated 05.04.2016, which culminated in the imposition of punishment of removal from service upon him which was 'communicated to him vide notice dated 07.06.2016. His service was terminated from 07.06.2016, vide office order number '07/2019, dated 10/24.06.2019.
(c) While issuing the punishment notice, the disciplinary authority did not consider the aspect of grant of compassionate allowance in terms of rule 65 of the Railway Services (Pension) Rules, 1993, .
-read with RBE-No. 164 of 2008. He had submitted a representation ° oe, 4, 3 O.A. No. 350/1455/2022 dated 07.08.2019 to the.competent authority for consideration of | . the same. However, the said representation was rejected by the competent authority vide letter dated 17.12.2019. He submitted another representation dated 14.03.2022 on the matter, to no avail, -
j | (d) He filed an original. application being OA No. 545/2022, which -
was disposed of by this tribunal vide order dated 19.05.2022 wherein the respondent authority was directed to issue a reasoned and speaking order in accordance with law within 12 weeks from the date of issue of the said order. .
(e) Respondent No. 4 issued a cryptic and non-reasoned order dated 26.07.2022 by which he rejected kis representation for _ grant of compassionate allowance The submissions made by the respondents in their reply to the --
original application as summarised below:
(a) The disciplinary authority found no justification for grant of compassionate allowance to the applicant, considering his long period of unauthorized absence, failure to attend enquiry despite "all attempts by the administration and for his lack of | communication during the period of his unauthorized absence from duty. .
(b) As per clause 3(iv) inRBE No. 164/2008, award. of --
compassionate allowance should not be considered if the railway servant nas' been dishonest which was a ground for his removai/dismissal. The applicant did not report back for duty after
-- 30.04.2014 which. is tantamount to dishonesty towards his employer.
4 . O.A. No. 350/1455/2022 3(c) In the charge 'memorandum No. ST/E/A-- 63/L/15 dated 05.4.2016, 'issued to him for his unauthorised absence from duty, one of the articles of charges was that the "acts on the part of Shri Nandi is a gross misconduct negligence, lack of integrity and devotion to duty and highly unbecoming of railway servant leading fo violation of rule 3(1)(i ) (ii) and. (iii) of railway service conduct rules, 1966, . rendering. him liable for disciplinary action, commensurate with Railways servants (D&A) rules, 1968, as amended from time to time." |
(d) In the case of Mahinder Dutt Sharma vs Union of India and others in Civil Appeal (C) No. 2111/2009, decided on 41.04.2014, | the Hon'ble Apex Court has observed:
"14.3. (iit) Was the act of the delinquent, which resulted jn the infliction of the punishment of dismissal or removal from service, an act designed for personal gains from the employer? This would involve acts of corruption, fraud' or personal profiteering, through impermissible means by misusing the responsibility bestowed in an employee by an employer. And would include acts of double-dealing or racketeering, or the like. Such an act may or may not be aimed at causing loss to the employer. The benefit of the delinquent could be at the peril and prejudice third party.
' 14.4. (iv) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or- removal from service, aimed at deliberately harming a third-party interest? Situations hereunder would emerge out of acts of disservice causing damage, loss, prejudice' or even anguish to third parties, on account of misuse of the employee's. authority to control, regulate or administer activities of third parties. . Actions of dealing with similar issues differently, or in an iniquitous manner, by adopting double standards or by foul play, would fall in this category.
14.5. (v) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, otherwise unacceptable, forthe conferment of the: benefits flowing out of Rule 41 of the Pension Rules, 1972? llustratively, any action which is considered as depraved, perverted, wicked, treacherous or the like, as would disentitle an employee for such compassionate consideration.
15. While evaluating the.claim of a dismissed (or removed from service) employee, for the grant of compassionate allowance, the rule _ postulates a window for hope, "... if the case is deserving of special consideration...": Where the delinquency leading to punishment falls in one of the five classifications delineated in the foregoing paragraph, it would ordinarily disentitle an ernployee from such .compassionate consideration. An employee who falls. in any of the above five 5 O.A. No. 350/1455/2022 categories, would therefore ordinarily not be a deserving employee, for the grant of compassionate allowance. In a situation like this, the deserving special consideration, will have to be momentous. It is not possible to effectively define the term "deserving special consideration" used in Rule 41 of the Pension Rules, 1972. We shall f therefore not endeavour any attempt in the said direction, Circumstances deserving special consideration, would ordinarily be unlimited, keeping in mind unlimited variability of human environment. _ But surely where the delinquency levelled and proved against the punished employee, does not fall in the realm of misdemeanour illustratively categorised in the foregoing paragraph, ft would be easier than otherwise, to extend such benefit to the g punished employee, of course, subject to availability of factors of compassionate consideration." _ The. act of availing of advanced coaching/training abroad after 30.04.2014 by the applicant should be treated as personal profiteering | and not for serving the railways or the country and that as such, the applicant is not entitled for grant of compassionate allowance.
5.° | have heard the learned counsels for both the sides and have considered the material on record. During hearing, both the councils reiterated the' averments made in their pleadings. Learned counsel for the applicant relied upon the judgement of the Hon'ble Apex Court in Mahinder Dutt Sharma vs Union of India and others. and submitted that in terms of the said judgement, the applicant was entitled to compassionate allowance.. Learned counsel for the | respondents strongly contested the said submission -
6. Disciplinary proceedings for imposition of major penalty were were initiated against the applicant vide charge memorandum dated 05.04.2016 .The following Articles of Charge were framed against the applicant:
"Article: | Sri Aritra Nandi, while working as Office Superintendant (OS) in the Office of Deputy Chief Statistical & Analysis Officer, S.E. Railway, Garden Reach was on sanctioned leave (LWP) up to 30.04.14 and from 01.05.2014 to till date is absent from office unauthorizedly. Such long spell of unauthorized absence is tantamount to gross misconduct and violation of Rule 3(1)(i), (ii) & (ili) of Railway Service Conduct Lead 6 O.A. No. 350/1455/2022 Rules, 1966 rendering himself liable for action under Discipline & Appeal Rules, 1968. , Articie: I Despite all efforts made by the office, it was not possible to communicate to Sri Nandi due to his non-availability at the declared © residential address as recorded in the Service Record. Sri Nandi has failed to intimate the office regarding his whereabouts, present 'address and activities, and remained on unauthorized absence for a period of nearly one & half years, Even an email to the available email address i.e, aritranandy!@ rediffmail.com failed to evoke any response from him. Suppression or concealment of whereabouts "present address and activities etc. on his part is a gross misconduct 'and violation of Rule 3(1)(i), (ii) & (iii)-of Railway Service Conduct Rules, 1966 and has rendered him. liable for action under Discipline & Appeal Rules, 1968, The above acts on the part of Sri Nandi is a gross misconduct, negligence, lack of integrity & devotion to duty and highly unbecoming of a Railway Servant leading to violation of Rule 3(1) (i), Gi) & (iii) of Railway Service Conduct Rules, 1966 rendering himself liable for disciplinary action commensurate with Railway Servants(D&A) Rules, 1968 as amended from time to time."
7. The aforesaid disciplinary proceedings culminated in the imposition. of major penalty of removal from service upon the applicant. The services of the applicant were terminated vide Office Order No. 07/2019 dated 10/24.06.2019. The appeal-of the applicant for -
payment of compassionate allowance was rejected by the competent.
authority:
8. Rule 65 of the Railway Services (Pension)) Rules, 1993 reads as 4 under:
"(1) A railway servant who is dismissed or removed from service shall forfeit his pension and gratuity: ' Provided that the authority competent to dismiss or remove him from service may, if the case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension.
(2) A compassionate allowance sanctioned under the proviso to sub-rule (1) shall not be less than three hundred seventy-five rupees per mensem."
- 7 © OA. No. 350M 455/2022
9. . The applicant has been charged primarily of misconduct due to his unauthorised absence from duty as well as for concealment of his . whereabouts and activities. The applicant has not been charged . with fraud, dishonesty, racketeering, or any act of corruption in the disciplinary proceedings initiated against: him. After the said charges have been established during the Departmental-Inquiry initiated against him, the disciplinary authority has imposed the: punishment of removal _ from service from upon him. The contention of the respondents that the applicant has been punished by removal from service on the ground of d hig being dishonest cannot therefore be accepted.
10. The Honourable Apex Court, in Mahendra Dutt Sharma vs. Union of India' and Others (Supra) has observed that compassionate allowance- cannot be granted to an employee who has been dismissed or removed -from. service on. grounds of moral, turpitude, act' of dishonesty towards his employer, an act designed for personal gains from the employer, an act of fraud or corruption, an act aimed , at deliberately hurting third party intérest etc. In the instant case, the . applicant was charged -with misconduct resulting from absence from duty and not on account of the grounds mentioned above. After the said charge of misconduct was established during a Departmental Inquiry, the major penalty of removal from 'service was imposed upon the -- applicant 'The applicant is therefore entitled to grant of compassionate allowance. .
11. Para (iv) of RBE No! 164/208 states that award of compassionate allowance should not be considered if the railway servant has been dishonest, which was a. ground for his removal/dismissal. In the instant case, the ground for removal of the 8 : 0.A. No. 350/1455/2022 . applicant from service was his misconduct arising from his unauthorised absence from duty which was established during the Departmental enquiry. The applicant was not removed from service on grounds of dishonesty or corruption. |
12. The applicant was not removed from service on account of his | having committed grave offences like moral turpitude, dishonesty fraud, corruption, profiteering etc. Moreover the applicant had not been charged with action which can be considered as depraved, perverted, ' wicked and treacherous. The applicant is, therefore, entitled to the grant of compassionate allowance.
13. In view of the above discussion, | am of the view that the applicant 'is entitled to. Compassionate Allowance and that the Disciplinary. Authority ought to have sanctioned the same to him. The Original Application is accordingly allowed. There will be no order as to costs.
,, .
ajumdar) -
Member (A) SK/drh