Central Administrative Tribunal - Allahabad
Smt Dulari Devi vs General Manager N C Rly on 16 November, 2017
(Reserved on 01.11.2017)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Original Application No. 330/01007/2014
ALLAHABAD this the 16th day of November, 2017
HON'BLE DR. MURTAZA ALI, MEMBER (J)
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A)
Smt. Dulari Devi, wife of late Kanchan Singh, posted as High
Skilled Fitter Grade-I, Village - Talaspur (Kalan), Ramghat
Road, behind Hotel, near F.C.I Police Station, Quarsi, District -
Aligarh.
..........Applicant
By Advocate: Shri Jaswant Singh
Versus
1. Union of India through General Manager, North Central
Railway, Allahabad.
2. The Divisional Railway Manager, North Central Railway,
Nawab Yusuf Road, Allahabad.
3. Senior Divisional Personnel Officer, N.C. Railway,
D.R.M.'s Office, Nawab Yusuf Road, Allahabad.
4. Senior Divisional Electrical Engineer (TRD), N.C Railway,
DRM's Office, Allahabad.
..........Respondents
By Advocate : Sri Prashant Mathur
ORDER
DELIVERED BY:-
HON'BLE MR. GOKUL CHANDRA PATI, (MEMBER-A) The applicant has filed this O.A. u/s 19 of the Administrative Tribunals Act, 1985 and prayed for the following main reliefs:-2 O.A No. 330/1007/2014
"(i) .....to direct the respondent no. 1 and 2 to consider the request of the applicant in terms of the RBE No. 150/91.
(ii) ..... to direct the respondents to pay the applicant entire retiral dues and compassionate appointment to one of the member of the family of Kanchan Singh who is missing while in service."
2. Facts of this case in brief as per the O.A are that the applicant is the wife of Late Kanchan Singh, who was working as Highly Skilled Fitter Grade-I in the respondents' department. Due to some differences in relationship, the applicant started living separately and filed a Suit No. 1711/11/98 under section 125 of Cr.P.C for maintenance. During pendency of the case under section 125, an application dated 03.10.1998 (Annexure A-3 of O.A) was moved for exemption on the ground that he was missing. It was also mentioned in the application that there is a probability of his murder by any of his opponent. The suit filed by the applicant was allowed by the A.C.J (Junior division) -II, Aligarh vide order dated 04.03.1999 (Annexure A-4 of O.A) ordering maintenance. Thereafter the applicant received a notice regarding departmental enquiry dated 09.04.1999 against her husband (Annexure A-1 of O.A) and order of removal from service (Annexure A-2 of O.A). She went to the office where 3 O.A No. 330/1007/2014 she came to know that her husband was removed from service due to unauthorized absence. Then she informed the office that her husband was on leave from 28.08.1998 to 29.08.1998 and he never returned to the office or home. Thereafter, the applicant made a complaint on 04.12.2000 to the Police Station, Civil Lines, Aligarh about missing of her husband and FIR was lodged by the police on 29.12.2000 (Annexure A-6 of O.A). Inquiry Officer submitted his report on 08.09.2001 that her husband was not traceable (Annexure A-7 of O.A). Thereafter, son of the applicant filed a representation dated 24.02.2001 (Annexure A-8 of O.A) alongwith copy of F.I.R to the Divisional Railway Manager for providing necessary documents in order to provide departmental facilities to her mother (the applicant). Vide order dated 11.09.2006 (Annexure A-8A) the respondent no. 2 informed that due to the order to removal from service the applicant is not entitled for any relief except Provident Fund. Again in Pension Adalat, the respondent no. 2 vide letter dated 07.11.2006 (Annexure A-9 of O.A.) informed that due to removal order dated 24.07.1999 and delayed F.I.R dated 04.10.2000 which was lodged after issue of removal order, the compassionate appointment could not be given to the applicants' son. It is the contention of the applicant in the O.A. that the Railway Board vide Instructions dated 22.08.1991 (RBE No.150/1991) (Annexure A-10 of O.A) had clearly instructed to 4 O.A No. 330/1007/2014 all the Railway authorities to consider the cases for grant of consequent benefit in case of genuine missing but the respondents have rejected her claim on the ground that her husband was removed from service for unauthorized absence. The applicant has also obtained declaration of civil death of her husband from ACJ ( J.D) Aligarh vide order dated 25.07.2009 and successors of the deceased (Annexure A-11 of O.A). The applicant represented to the respondents vide representations dated 10.12.2009, 19.04.2010, 15/22.07.2010 and 16.09.2013 (Annexure A-12, A-13 and A-14 of the O.A respectively) to consider her case in the light of Railway Board's Circular dated 22.08.1991 (RBE 150/1991). Having failed to receive any fruitful response from the respondent, the applicant has filed the present Original Application.
3. The respondents have filed the Counter Reply ( in short CR). It is stated by the respondents that the husband of the applicant was served with major penalty charge sheet dated 03.12.1998 for unauthorized absence w.e.f. 28.08.1998 till the date of his removal from service on 24.07.1999. It is stated that the order of removal has been passed by the competent authority on conclusion of the disciplinary proceeding. It has further been stated that despite sending registered letters on permanent address of the husband of the applicant as well as 5 O.A No. 330/1007/2014 on official address, on publication in news paper, he did not appear in the inquiry proceedings. Therefore, based on report submitted by the Enquiry Officer Shri Kanchan Singh was removed from service vide order dated 24.07.1999. It is stated that he was absent from duty w.e.f. 28.08.1998 whereas the FIR was lodged on 04.10.2000 and as such in view of the Railway Board's Letter dated 27.03.1991 (Annexure CR-1 to the counter reply), the benefit of family pension and gratuity will be reckoned from that way but the respondents decided that as the claim of the applicant is excessively time barred, the representation of the applicant had already been considered and rejected on 11.09.2006 (Annexure CR-1 to the counter reply) in respect of settlement dues and on 07.11.2006 in respect of the compassionate appointment. It was also stated that the present O.A is barred by limitation as it challenges the decision of the respondents taken in 2006 rejecting similar claim of the applicant and there is no application for delay condonation alongwith O.A. In the present case, in view of the statutory rules, the relief claimed by the applicant for cancellation of the penalty of removal imposed upon her husband and sanction of retiral dues are not permissible. 6 O.A No. 330/1007/2014
4. Heard Shri Jaswant Singh, learned counsel for the applicant and Shri P K Mishra, proxy counsel for Shri Prashant Mathur, learned counsel for respondents . Learned counsel for the applicant reiterated facts of the case as mentioned in the O.A. as argued that the case of applicant's husband shall be considered as per the Railway Board Circular No. 150/1991 dated 22.08.1991 ( Annexure A-10 of the O.A.). He also submitted that this Tribunal in O.A. No. 357/2011 has allowed the benefit of the Circular No. 150/1991 to the applicant in that O.A. whose case was similar to the husband of the present O.A. Copy of the order dated 22.01.2016 passed by this Tribunal in O.A. No. 357/2011 was handed over by the learned counsel in support of his case.
5. Learned counsel for the respondents submitted that since the F.I.R. was lodged on 04.10.2000 after issue of order of the removal, the claims of the applicant have been rejected as not being permissible.
6. We have considered the pleadings and submissions by the learned counsels. Admittedly, the husband of the applicant was missing and not traceable as revealed from the report of the police. Respondents have rejected the claims of the applicant on the ground of delay in filing of F.I.R. with police 7 O.A No. 330/1007/2014 by the applicant about her missing husband. Following contentions in paragraph 3 of the counter reply filed by the respondents are relevant.
" 3......... Admittedly the deceased Shri Kanchan Singh was absent on 28.07.1998 on the contrary the F.I.R was lodged on 04.10.2000 and as such in view of the Railway Board‟s letter dated 27.03.1991 and as per the instructions as referred above, the benefit of family pension and gratuity will be reckoned from that way, but admittedly the claim of the applicant is excessively time barred as the representation of the applicant had already been considered and rejected on 11.09.2006 in respect of settlement dues and on
07.11.2006 in respect of the compassionate appointment. The photocopy of the instructions dated 27.03.1991, order dated 11.09.2006 and 07.11.2006 are collectively being filed herewith and marked as Annexure No. CR-1 to this counter reply".
7. In view of above contentions in the CR, the respondents have rejected the claim of the applicant as it is time barred. The stipulations in the circular dated 27.03.1991 of the Railway Board enclosed by the respondents as Annexure No. CR-1 to the CR are very clear in this regard. Relevant portion of the circular is extracted below:-
" Attention is invited to this Ministry‟s letter of even number dated 19.09.1986 on the above subject as per which the families of disappeared employees are eligible for the family pension and other benefits 8 O.A No. 330/1007/2014 after expiry of one year from the date of disappearance of the Railway servant. As certain doubts are expressed in the application of the said order dated 19.09.1986, the matter has been further considered by the Government and it has been decided that the following clarifications / further instructions regarding the formalities to be observed, regulation of payment of the benefits etc be followed.
2. Board‟s letter of even number dated 19.9.86/ as well a this letter, will also be applicable in the case of missing pensioners mutatis mutandis.
3. The date of disappearance of the employee / pensioner will be reckoned from the date the First Information Report is lodged with the Police, and the period of one year after which the benefits of family pension and gratuity are to be sanctioned will also be reckoned from this date. However, the benefits to be sanctioned to the family, etc. of the missing employee will be based on and regulated by the emoluments drawn by him and the rules / orders applicable to him as on the last date he/ she was on duty including authorised periods of leave. "Family pension at normal / enhances rates as may be applicable in individual cases will be payable to the families or missing employees". Family pension where sanctioned at pre 1.1.1986 rates will be revised and consolidated w.e.f. 1.1.1986 in terms of this Ministry's letter No. FC-IV/87/Imp/PNI dated 20.4.87 as amended from time to time.
4. In the cases of missing pensioners, the family pension at the rates indicated in the PPO will be payable and may be authorized by the Head of the 9 O.A No. 330/1007/2014 office concerned. Where the PPO does not contain his information, the head of Office will take necessary action to sanction the family pension as due, as provided in the para 3 above.
5. Death gratuity will also be payable to the families, but not exceeding the amount which would have been payable as retirement gratuity if the person has retired. The difference between retirement gratuity and death gratuity shall be subsequent payable after the death if conclusively established or on the expiry of seven years period from the date of missing"
8. From the plain reading of the Railway Board Circular dated 27.03.1991, it is seen that there is no stipulation in the said circular that if the claim of the applicant for family pension and other retiral dues is not submitted within a specified time then it will be time barred. There is no other circular or rule mentioned by the respondents in the counter reply and submissions to corroborate the stand that the claim of the wife of a genuinely missing railway servant can be rejected as time barred. We are not able to accept the stand of the respondents that the rejection of claim of retiral benefits of the applicant is justified as it is time barred or as the F.I.R. has been lodged about the missing railway servant subsequent to passing of the order of removal from service.
10 O.A No. 330/1007/2014
9. As per the Railway Board's Circular RBE No. 150/91 (Annexure A-10 of the O.A.), the punishment ordered in the disciplinary proceedings taken against the genuinely missing railway servant for unauthorized absence is to be annulled . Paragraph 2 and 3 of the circular of the Railway Board are quoted below: -
"2. The Board have considered the mater and it is clarified that in cases of the type mentioned above where it is established that the railway employee was really missing and not unauthorisedly absent, the disciplinary action should be treated as initiated on invalid premises and the on-going disciplinary action or the punishment order should be annulled. While the annulment of the on-going disciplinary proceeding in such cases may be made by the disciplinary authority, in the case of punishment orders already issued, the annulment may be made by the appellate / revisionary authority, as the case may be. For this purpose, it is not necessary to follow any „Revision‟ or „Review procedure since the charges / punishment are obviously based on invalid premises. After the dropping of the disciplinary action and annulment of the punishment of removal, as the case may be, the relevant benefits like grant of leave encashment, salary dues, retirement benefits, etc. may be extended as outlines in Board‟s letter No. F(E)III/86/PN1/17 dated 19.9.1986.
3. In cases of the aforesaid type, the question of giving compassionate appointments to wards may also be considered after a period of 7 years/3 years 11 O.A No. 330/1007/2014 as provided in item (iii) of para 1 of Board‟s letter No. E(NG)III/78/RC1/1 dated 7.4.1983. "
Plain reading of this Circular would reveal that the applicant's case is covered fully under the Circular R.B.E No. 150/1991 and there is nothing in the pleadings of the respondents to contradict this contention of the applicant's counsel.
10. The learned counsel for the applicant has cited the order dated 22.01.2016 of this Tribunal passed in O.A No. 357/2011 to support his case. In the O.A No. 357/11, the applicant / railway servant was missing from 1991 to 2006 when he was traced and during the period he had lost his mental balance. The respondents had ordered for removal from service against the applicant as per order dated 30.08.1994, hence the applicant was not allowed any retiral dues. The Tribunal considered the case of the applicant in the light of the Circular R.B.E No. 150/1991 and found that this Circular fully covered the case of the applicant who was removed from service on the ground of unauthorized absence, not for any other misconduct. The Tribunal in the order dated 22.01.2016 decided the case with following observations: -
"In view of the above facts and circumstances, the O.A is allowed. The impugned order dated 12 O.A No. 330/1007/2014 23.11.2009 as well as the penalty order dated 30.08.1994 are hereby quashed. The respondents are directed to examine the case of the applicant in pursuance of R.B.E No. 150/91 and grant him all the consequential benefits like pension / pensionary benefits and also to consider the case for compassionate appointment to his wards. The aforesaid direction shall be complied with within a period of two months from the date of receipt of a certified copy of this order. No order as to costs."
11. We are of the considered view that the case of the applicant in the present case is similar to the case of the applicant in O.A No. 357/2011. It is noticed that the alleged misconduct of unauthorized absence for which the husband of the applicant was removed from service was genuine missing during the period as in the chargesheet and the impugned order of removal from service dated 02.07.1999 (Annexure A-2 of O.A), and there is no misconduct other than alleged unauthorized absence during the period in which applicant's husband was missing. Hence the Railway Board's Circular No. 150/1991 dated 27.03.1991 squarely covers the case of the applicant.
12. Regarding the contention of the respondents in the CR that the O.A is barred by limitation, it is noticed that the relief prayed for in the O.A is to consider the applicant's request in 13 O.A No. 330/1007/2014 terms of the Railway Board's Circular RBE No. 150/91 and then consider the case of the applicant for retiral dues and for compassionate appointment. Although the claim of the applicant was rejected by the respondents in the year 2006, her claim for family pension can be taken as a continuous cause of action for which the case is considered to be within limitation. Further, the request of the applicant is to considered as per the Railway Board Circular No. RBE No. 150/91, which does not specify any time limit. Hence, we are of the view that the claim of the applicant for family pension can be considered to be within limitation and can be considered by the respondents in the light of the Railway Board Circular RBE No. 150/91 and the judgment of this Tribunal in O.A No. 357/2011. However, we are not able to consider the claim of the applicant for other benefits since these are considered to be barred under limitation. We also note that the order of removal from service has not been impugned in this O.A unlike the O.A No. 357/2011.
13. In view of the above discussions, the O.A is partly allowed and the respondents / competent authority are directed to consider annulment of the punishment order of removal from service imposed on the husband of the applicant in the light of the Railway Board's Circular RBE No. 14 O.A No. 330/1007/2014 150/1991 dated 22.08.1991 (Annexure A-10 of the O.A) and granting of consequential benefit of family pension to the applicant as per the Railway Board's Circular RBE No. 150/1991 and Circular dated 27.03.1991 (Annexure CR-1 of the CR). Taking into account the delay, we direct the respondents to comply these directions within three months of receipt of a certified copy of this order.
14. No costs.
(GOKUL CHANDRA PATI) (DR. MURTAZA ALI)
MEMBER-A MEMBER-J
Anand...
15 O.A No. 330/1007/2014
APPENDIX
Applicant's Annexures
Sl. Date of order Annexure No. Particular
No.
1. 03.10.1998 A-3 of O.A Application for exemption
2. 04.03.1999 A-4 of O.A Order of ACJ (Junior
Division)-II, Aligarh
3. 09.04.1999 A-1 of O.A Notice regarding
departmental enquiry
4. A-2 of O.A Order of removal from
service
5. 29.12.2000 A-6 of O.A FIR was lodged by the
Police
6. 08.09.2001 A-7 of O.A Inquiry report
7. 24.02.2001 A-8 of O.A Representation of the son of
the applicant
8. 11.09.2006 A-8A of O.A Information given by the
respondent no. 2 to the
applicant
9. 07.11.2006 A-9 of O.A Information by respondent
no. 2 regarding rejection of
compassionate appointment
10. 22.08.1991 A-9 of O.A Railway Board Instruction
No. RBE 150/1991
11. 25.07.2009 A-11 of O.A Declaration of civil death
by ACJ (J.D), Aligarh
12 10.12.2009 A-12 of O.A Representation of the
applicant
13 19.04.2010 A-13 of O.A Representation of the
applicant
Respondents' Annexures
Sl. Date of order Annexure No. Particular
No.
1 27.03.1991 CR-1 Railway Board Letter
2 11.09.2006 CR-1 Respondents rejected the
representation of the
applicant
3.