Central Administrative Tribunal - Allahabad
Smt. Ram Sheela Devi W/O vs Union Of India on 4 February, 2011
(RESERVED) CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD (Dated this__________ the 4th day of February, 2011) CORAM: HONBLE MRS. MANJULIKA GAUTAM, MEMBER-A HONBLE MR. SANJEEV KAUSHIK, MEMBER-J ORIGINAL APPLICATION NO. 545 OF 2004 (U/s, 19 Administrative Tribunal Act, 1985) Smt. Ram Sheela Devi w/o Late Dasharath, R/o Village Chareru Chaukatha, Post. Jigna District-Mirzapur. . . . .Applicant By Advocate: Shri S.Ram Versus 1. Union of India, through General Manager, North Central Railway, Allahabad. 2. Divisional Railway Manager, North Central Railway, Divisional Railway Manager Office, Allahabad. 3. Senior Section Engineer (Carriage & Wagon) Washing Line, North Central Railway, Kanpur. . . . . . . . . . Respondents By Advocate: Shri A.K. Pandey. O R D E R
PER: SHRI SANJEEV KAUSHIK, MEMBER-J) The Applicant has approached this Tribunal under Sec. 19 of the Central Administrative Tribunals Act, 1985 seeking a direction to direct the respondents to grant him family pension and other pensionary benefits as well as appointment on compassionate ground on account of death of her husband late Shri Dasharath son of late Shree Nath who was working as O.A.NO. 545 OF 2004 Khalasi under, Senior Section Engineer (Carriage & Wagon) Washing Line, Kanpur.
2. The brief facts of the case are that the husband of the Applicant late Shri Dashrath was working as Khalasi under Senior Section Engineer (C&W), Washing Line, North Central Railway, Kanpur. In the month of March, 1996 her husband fell ill due to mental disorder. He remained absent from duty. It is stated in the Original Application that he was under treatment from the Private Doctor but he could not be cured. He is the only male member in the family who has to look after the family. Since he was suffering from mental illness, therefore, he absconded from duty as well as from the house without any intimation. Ultimately on 3rd January, 2002 he was found dead near his native village leaving behind the widow, the applicant, minor daughter Kum. Sommari, and minor son Rohit. After his death on 3.1.2002 the Applicant approached the Respondent authorities to assist her for payment of pensionary benefits as well as to provide her compassionate appointment. On direction from Senior Section Engineer, Northern Railway, Kanpur an Application (Annexure A.I) was filed on 26.6.2002 along with necessary documents as desired by the office. The above stated settlement papers filed by the Applicant was verified by the Senior Sectional Engineer (C&W), C.R. Kanpur but surprisingly an amount of Rs. 1862/- only was paid to him on account of Provident Fund on 17.12.2002. For the first time the applicant came to know that her husband was removed from service w.e.f.
O.A.NO. 545 OF 2004 31.3.1998 as per punishment order passed by the Respondents on 31.3.1998 for unauthorized absence from duty w.e.f. 3.3.1996. Even along with this letter no order of removal whatsoever has been given to the applicant. It is from this letter the applicant came to know that her husband has been removed from service as no chargesheet or order whatsoever has ever been conveyed to her or her husband during his life time. Therefore, the application for amendment was moved by the applicant which was allowed by this Tribunal vide its order dated 1.11.2004 by which the Applicant was allowed to impugn the order dated 22.4.2004 passed by Divisional Railway Manager, North Central Railway, Allahabad and order dated 31.3.1998 i.e. order of removal of her husband from service which were never communicated to the Applicant. Necessary corrections were allowed to be made in the Original Application. It is alleged by the applicant that the order of removal dated 31.3.1988 was never communicated to the Applicant or her husband during his life time. It is further stated that no chargesheet whatsoever has been communicated by the Respondents for the absence. Therefore, the impugned order passed by the respondents removing the husband of the applicant from service is totally illegal, arbitrary, unconstitutional and is violative of the rules and thus the same is liable to be set aside.
3. Notice of the Original Application was issued to the respondents to file their Counter Affidavit. After putting the appearance, the Respondents filed their Counter Affidavit. In the O.A.NO. 545 OF 2004 Counter Affidavit as well as in the Supplementary Counter Affidavit filed by the respondents it is stated that the husband of the applicant was unauthorisedly absent from duty w.e.f. 3.3.1996 and on being absent from duty the respondents issued chargesheet for major penalty to the applicant under Sec. 9 of the Railway Servants (Disciplinary & Appeal) Rules 1968 (for the sake of brevity 1968 Rules) for major penalty. The above stated chargesheet was sent on the postal address of the applicant. Thereafter inquiry officer was appointed to afford opportunity to the applicant and to submit inquiry report. Even the inquiry officer afforded opportunity to the applicant to participate in the enquiry proceedings but despite the efforts made by the Inquiry Officer the applicant did not associate himself with the inquiry proceedings. Ultimately the Inquiry Officer concluded the exparte inquiry. The report submitted by the inquiry officer was accepted by the Disciplinary Athority and an order of major penalty was passed on 31.3.1998 whereby the applicant was removed from service. It is stated in the Supplementary Affidavit that a letter was issued on 19.1.1998 by the Disciplinary Authority which was sent under the Registered cover to the address of the Applicants husband. It is not in the knowledge of the respondents that the husband of the Applicant had become mentally ill and was missing from home . It is further averred in the Counter Reply that every effort was made by the respondent department to serve the chargesheet and finally the order of removal upon the applicant. It is finally stated in the Counter Reply that the O.A.NO. 545 OF 2004 disciplinary proceedings were concluded as per the procedure laid down in the Rules. Therefore, there is no violation of any Rule as alleged by the Applicant.
4. We have heard the ld. Counsel for the Applicant Shri Sudama Ram and Shri A.K. Pandey, Ld.Counsel for the respondents and have perused the record.
5. It is the admitted fact that a chargesheet was issued for major penalty for unauthorized absence to the husband of the Applicant on 23.10.1987 on his home address which was returned undelivered. This can be seen from the Annexure SA.I appended with the Supplementary Affidavit the undelivered Registered posts which was returned with the remarks that the same was undelivered as the applicant was not there. Meaning thereby that the chargesheet which is sought to be delivered to the applicant vide this letter was not communicated to the applicant as the same was returned undelivered. Thereafter on 22.10.1997/21.11.1997 the Disciplinary Authority nominated Shri Ekhesh Ahmed as Inquiry Officer vide standard Form No.7 It is clear from the report of the Inquiry Officer that vide letter dated 27.11.2007 he informed the applicant regarding pendency of proceedings through Registered post. The said registered letter was also returned by postal department which is at Annexure SA.II. Thereafter again a letter was issued by respondent No.3 on 17.12.1997 fixing the date of inquiry on 9th January, 1998 which was also returned with the postal remark, family member told that addressee has become mad and is missing from home and O.A.NO. 545 OF 2004 hence returned. From the above stated facts, it is abundantly clear that neither the chargesheet nor any other intimation has ever received by the applicant or his family members. Every letter sent by the department has been returned by the Postal Department with the remarks that the same has been undelivered or that the applicant has left the house as he is suffering from mental illness. On 19.1.1998 the exparte inquiry was conducted by the inquiry officer. From the record it is clear that no prosecution witness was examined to prove the charge which was leveled against the applicant. Finally, without adhering to the rule and the instructions issued there from an exparte inquiry was conducted and the report was submitted to the Disciplinary Authority. The Disciplinary Authority without appreciating the facts that neither the chargesheet has been served upon the Applicant nor he has been represented before the inquiry officer, an ex-parte inquiry has been conducted without giving any weightage to the report given by the Postal Department that the applicant is suffering from mental illness and is not residing at the given address and left the house. The Disciplinary Authority accepted the inquiry report and passed an order on 31.3.1998 of removal of the applicant from service. This order is stated to have been sent to the applicant through registered post which was also returned undelivered with the remarks eS izkIrdrkZ ds ?kj ckj ckj tkus ls ikrk pyk fd ikxy gksdj irk ugh dgka x;kA vr% okil fd;k O.A.NO. 545 OF 2004 From the above stated facts we are satisfied that despite having the knowledge that the Applicant is mentally ill and not residing at the given address the respondent department continued to hold the inquiry and ultimately order of removal was passed on 31.3.1998. The above stated order was never been communicated as indicated above to the applicant during his life time nor to the applicant till the present Original Application has been filed before this Tribunal.
6. For the better appreciation of the case in hand, the Rules which are relevant in the case are reproduced hereunder i.e. Rule 9 (7) and Rule 9 (23) of Railway Servants (Disciplinary & Appeal) Rules 1968 deals with the procedure to be adopted for imposing the penalties.
Rule 9 (7) of 1968 Rules:
Rule 9 (7): The disciplinary authority shall deliver or cause to be delivered to the Railway Servant a copy of the articles or charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Railway Servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow.
Note: If copies of documents have not been delivered to the Railway servant along with the articles of charge and if he desires to inspect the same for the preparation of his defence, he may do so, within ten days from the date of receipt of the articles of charge to him and complete inspection within ten days thereafter and shall state whether he desires to be heard I person. Rule 9 (7) specifically mandates that the copy of the articles of charges, the statement of imputation of misconduct or O.A.NO. 545 OF 2004 misbehaviour and list of documents and witnesses by which each article of charges is to be proved shall be sent to the delinquent officer so as to provide him an opportunity to rebut the charges and to submit written submissions of his defence.
Rule 9 (23) of 1968 Rules:
Rule 9 (23): If the Railway Servant, to whom a copy of the article of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this Rule, the inquiring authority may hold the inquiry ex-parte. Sub Rule (23) to Rule 9 says that if the Railway Servant to whom the article of charges has been delivered does not submit the written statement of defence on or before the specified date then an exparte inquiry can be conducted. The above stated Rule mandates that the Article of charges has to be delivered to the delinquent officer.
7. Rule 12 of the R.S. (D&A) Rules 1968 deals with the communication of the order which is reproduced hereinbelow:
Rule 12. Communication of orders Orders made by the Disciplinary authority which would also contain its findings on each article of charge, shall be communicated to the Railway servant who shall also be supplied with a copy of the advice, if any, given by the Commission, and where the disciplinary authority has not accepted the advice of the commission, a brief statement of the reasons for such non-acceptance. From the above, it is clear that the above stated Rule mandates that while communicating the final order to the Railway Servant, a copy of the Inquiry Report and other relevant documents should be sent with the same to the concerned employee.
8. Rule 26 states that every order, notices and other proceedings made or issued under these Rule shall be served in person on the Railway Servant concerned or communicated to him by Registered Post.
Rule 26 of 1968 Rules:
Rule 26:
26-A. Service of orders, notices etc. on behalf of the Railway Board or President.
Any of the following officers in the Ministry of Railways shall be competent to sign on behalf of the Railway Board or President, any, notice, process, order, etc. made or issued under, these Rules:
[(1) Secretary, Railway Board/Joint Secretary/Deputy Secretary;
(2) Executive Director/Director/Joint Director,] From the combined reading of above stated Rules, it is clear that the order passed under these Rules must be communicated and served upon the person against whom the order is to take effect. In this regard, Railway Board has also issued circulars from time to time for guidance of the concerned authorities. The earliest circular on the subject is reproduced below in extension which is printed at page 295 of Bahris Compilation of Railway Servants (Discipline and Appeal Rules 1968, 1968, 1997th edition.
O.A.NO. 545 OF 2004 Service of Notice of Imposition of Penalty: So far as possible actual service of the orders/notice which seeks to impose penalty, is desirable. For this possibility may be explored to:
(i) When the Railway servant is present in office, the notice should be served on him in person. If he refuses or evades on one plea or the other signatures should be taken of two witnesses in whose presence attempt to serve the notice was made.
(ii) The Notice shall be deemed to have come into effect on the date when it was attempted to serve notice on him, whether he received it or not.
2.(i) In case he is not present in office, notice will be sent per registered post A.D. at his last known address.
(ii) In case he accepts it, it shall come into force when he accepted it unless another date is specified in the notice itself.
(iii) It is received undelivered with remarks like not found or refused to accept etc. it should be pasted on the Notice Board of the Railway premises where he was last working as well as in a place in the last known address. The notice shall be deemed to take effect from the date of issue unless it itself specifies another date.
[Rly. Bds No.E (I)& A) 69 RG 6-29 dated 17.11.1970 (NR) 5174, 5533) In continuation of the aforesaid circular another circular was issued by the Railway Board which is also printed on page 295 of the Bahris above edition which is also quoted in extensor as under:
Order of Railway Administration on Part VII
1. Service of notice of imposition of penalty It has been laid down in para 2 (2) (iii) of O.A.NO. 545 OF 2004 Railway Boards letter of even number dated 17.11.1970 that in case the Railway servant concerned does not accept the order/notice, and the same is returned undelivered by the postal authorities with the endorsement, such as addressee not found refused to accept etc. it should be pasted on the Notice Board of the Railway premises in which the employee concerned was working last as well as in a place in the last noted address of the Railway employee.
2. It has been represented to the Railway Board that it is difficult to paste the order/notice in a place in the last noted address of the Railway servant who resides far away from the place of work; especially when such address given by the Railway servant at time of proceeding on leave happens to be a far away village/town/city.
3. In this connection it is clarified that the last noted address used in Para (2)(ii) of Boards letter referred to in preceding para means the local address of the employee i.e. the premises which the employee had been occupying before he proceeded on leave. In cases, where a last noted address of the employee who has proceeded on leave is in a distant town/village, the proper mode of serving would be to send the order/notice on the address of his home town/village by registered post and the question of pasting it in that place does not arise.
(Rly. Bd.s No. E (D&A) 69RG6-29 dated 19.11.1971 ER 7948, NR 5533, 7600 SC 328/71] From the contents of these two circulars, it is clear that if the Government servant is present in office he could be served in person but if he is not available in office then the notice/order should be served to the concerned Government servant by registered post acknowledgement due and on his refusal to receive the registered letter the substituted service of such order or notice is to be resorted to. Not only this, the Railway Board O.A.NO. 545 OF 2004 also issued a letter No. E(D&A)83, RG 6-47, dated 30.8.1984 wherein laying the procedure for delivery of Memorandum of Charges in major penalty which reads as under:
Sub.- Serving of Memorandum of charges in major penalty disciplinary proceeding to Railway servants who are unauthorisedly absent from duty or away from head quarters.
It is, inter alia, provided in sub-rule (7) of Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968, that the disciplinary authority shall deliver or cause to be delivered to the charged railway servant a copy of the article of charges etc. It is further provided in sub-rule (23) of the said rule that the Inquiring Authority may hold the inquiry ex-parte only if the railway servant to whom a copy of the articles of charges has been delivered does not submit written statement of defence on or before the specified date or does not appear in person before the Inquiry Authority.
2. In view of the above position under the rules Inquiry under the D&A Rules can be held ex-parte only if after delivery of the charge Me-morandum, the railway servant does not comply with the requirements cast on him by the rules. Delivery means actual delivery. Hence in cases of deemed delivery of charge Memorandum, the enquiry cannot be held ex-parte in terms of Rule 9 (23) of Railway Servants (Discipline & Appeal) Rules, 1968 because the charge Memorandum has not actually been delivered.
3. In cases of unauthorized absence from duty/headquarters or absconding, therefore, the charge Memorandum should normally be sent to the last known address of the railway servant. If that is returned un-delivered, it should be sent to all the addresses available on records of the office. If such communications are also returned undelivered, recourse should be had to the provisions of sub-rule (ii) of Rule 14 of Railway servants (Discipline & Appeal) Rules 1968. These guidelines should be kept in view in the matter of service of article of charges upon the delinquent railway servants in such cases and taking further action against them. From the perusal of the above, it is also abundantly clear that the Board also emphasizes upon the actual delivery of the charges O.A.NO. 545 OF 2004 and they have specifically stated that delivery means actual delivery.
9. In view of the above Rules, circulars and the letters issued by the respondent department, special provisions in Rule 26 regarding communication of such order actually communication is important and not the knowledge thereof. The mode of communication have been described in the aforesaid Rule, therefore, merely sending Registered letter is not sufficient that too without order of removal. Therefore, the same cannot be taken as sufficient service upon the delinquent officer against whom the order was passed. In the case in hand, admittedly no letter or any communication was ever served either upon the husband or upon the applicant with regard to the pendency of the disciplinary proceedings. Every letter which was sent by the respondents have been undelivered with the remarks that he is suffering from illness and not residing at home and therefore safely it can be concluded that the chargesheet and the subsequent orders in the case in hand is not served upon the applicant therefore, the present inquiry and the subsequent passing of order of removal is bad in the eye of law and is liable to be set aside on this count only. In this view of the matter that whether the service means actual service has been considered by the Honble Supreme Court in the case of State of Punjab vs. Amar Singh Harika AIR 1966 SC 1313.
O.A.NO. 545 OF 2004 The mere passing of an order of dismissal is not effective unless it is published and communicated to be officer concerned. An order or dismissal passed by an appropriate authority and kept on its file without communicating it to be officer concerned or otherwise publishing it does not take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. Held that the order of dismissal passed against the officer on the 3rd June, 1949 could not be said to have taken effect until he came to know about it on the 28th May, 1951. We also find support from the judgement passed by the Jodhpur Bench of this Tribunal in the case of O.A. No. 295/1996 in the case of Smt. Pushpa Devi vs. Union of India and Ors. 2000(3) AISLJ 22 wherein identical controversy had arisen before the Tribunal. There also the order of removal was passed and the same was sent but the same was not actually received by the delinquent officer, therefore by examining the R.S. (D&A) Rules 1968 the Tribunal has held at paragraph 10 & 11 as under:
10. We have considered this aspect. In our opinion, in view of the specific provisions in Rule 26 regarding communication of such order actual communication is important and not the knowledge thereof. The modes of communications have been described in the aforesaid rule and, therefore, mere knowledge of such removal order on the part of the delinquent cannot be taken to be sufficient in order to treat Shri Purshottam as having been removed from service.
11. Examining the inquiry file keeping in view the aforesaid ruling, we are of the opinion that there is no iota of evidence which may go to show that Shri Purshottam had knowledge of such removal order and, therefore, in our opinion the order had not achieved any finality also against him. If in the context of these facts, the present applicant states that for the first O.A.NO. 545 OF 2004 time, she came to know of her husband having been removed form service by respondents communication dated 15.03.1991 (Annex. A/5), there is nothing wrong in it. The removal order which was not served on the delinquent is ineffective and for all purposes nonest and cannot be taken shelter of for refusing the terminal benefits of Shri Purshottam and family pension to his widow. The arguments of the learned counsel for the respondents in this respect are devoid of any force and are hereby rejected.
10. In view of the above stated judgement wherein Rule 26 has been considered and it is held that the order of removal has to be actually served upon the Delinquent Officer and not mere sending of the same is sufficient. Not only this, we are also guided by the judgement passed in the case of UOI and Ors. vs. Dinanath Shantaram Karekar and Ors. 1999 (1) AISLJ 180 wherein the Honble Supreme Court has considered the matter with regard to the service of chargesheet and exparte inquiry and finally held as under in paragraph 3:
3. Respondent was an employee of the appellant. His personal file and the entire service record was available in which his home address also had been mentioned. The charge sheet which was sent to the respondent was returned with the postal endorsement not found. This indicates that the charge sheet was not tendered to him even by the postal authorities. A document sent by registered post can be treated to have been served only when it is established that it was tendered to the addressee. Where the addressee was not available even to the postal authorities, and the registered cover was returned to the sender with the endorsement not found, it cannot be legally treated to have been served. The appellant should have made further efforts to serve the charge sheet on the respondent. Single effort, in the circumstances of the case, cannot be treated as sufficient. That being so, the very initiation of the departmental proceedings was bad. It was ex-parte even from the stage of charge sheet which, at no stage, was served upon the respondent. O.A.NO. 545 OF 2004
11. Further, the Calcutta Bench of the Tribunal in case of Mrs. Chandra Kala Pradhan vs. UOI & Ors. 2002 (1) ATJ 573 has also considered the preposition in the case of employee absent from duty and it is held in paragraph 15 of the order that it is the actual communication of the order of the removal to the delinquent officer and not the mere sending the communication, which is reproduced hereinbelow:-
15. We are here concerned with the procedural fairness. Procedural propriety is also a part of the procedural justice. Its concern is to provide opportunity for the individual to participate in the decision making process that affect them. The other aspect is to advance the attributes, authenticity as well as the rationality of the process of decision making. Its aim is to provide the concerned individual a fair opportunity to influence the outcome of the decision. Participation is not to be averted as a barrier of effective administration. Fairness is to be shown to the individual and that is the essence of justice. In the instant case, admittedly, the notices sent to the applicant came back to the authority un-served as not found. No materials were made available before us indicating that any further efforts or steps were taken to serve the notice on the applicant. The respondents thereafter pasted the notice on the office notice board, knowing it well that the applicant was not attending the office and as a matter of fact the charge was for its continued unauthorized absence. The respondents were more concerned as to the communication and not on actual service. On the facts and circumstances of the case we are of the opinion that the respondents faltered in provision a reasonable and fair opportunity to the applicant before passing the impugned order of dismissal. In this context we took the aid of the decision of the Supreme Court in Union of India and others Vs. Dinanath Shantaram Karekar and others, reported in (1998) 7 SCC 569.
12. Also the decision of the Calcutta bench of this Tribunal in the case of Amal Kumar Parial vs. UOI & Ors. 1990 (1) ATJ 223 has considered Rule 9 (3) of R.S. (D&A) Rules1968 and held that if the chargesheet was not served upon the Officer and O.A.NO. 545 OF 2004 exparte inquiry was held resulting into the dismissal of the delinquent officer then the exparte inquiry and the removal order is bad as they have not followed the Rule 9 (3) of the 1968 Rules and subsequently the letters issued by the Railway Board.
13. In the light of the above stated judicial pronouncement we are of the considered view that the impugned order dated 31.3.1997 removing the applicant from service is not sustainable in the eye of law and the same is liable to be set aside.
14. It is the admitted case that the Applicant is absent from duty since March 1996 and his whereabouts is neither known to the department nor to his family members. Therefore when any communication was sought to be made by the respondents through registered post, the same was returned undelivered with the remarks that the husband of the applicant is not at home and his whereabouts is not known as he was mentally ill. For dealing with these type of cases, Railway Board has issued Circular dated 22.8.1991 under the subject: Cancellation of penalty of removal from service imposed on charge of unauthorized absence where it later transpires that the case is one of genuine missing and grant of consequential benefits to the missing persons family wherein the Board have considered the matter 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 O.A.NO. 545 OF 2004 order should be annulled. From the above circular it is clear that the Railway Board has considered this aspect of the matter that if a Railway Employee is absent from duty for long period therefore in terms of Sec. 108 of the Evidence Act it is presumed that he had expired and therefore the proceedings whatsoever initiated finally has to be dropped. In the case in hand, since 1986 the applicant is absent from duty and it has come on record that he is mentally ill and absconding, for this reason he was absent from duty. Therefore, it was imperative upon the respondents not to initiate the disciplinary proceedings further and to drop the same at that very stage. But for reasons best known to the respondents they have proceeded and ultimately passed the order of removal which is also against the above stated circular issued by the Railway Board which binding upon the respondents.
15. We have also considered the argument of the ld. Counsel for the Applicant that the impugned order dated 31.3.1997 is cryptic non speaking and has violated the Railway Boards instructions/circular which mandates that the disciplinary authority has to pass the speaking order. We have perused the inquiry report dated 19.1.1998 and have also perused the impugned order of removal. From the perusal of the same it is clear that the inquiry officer has not even been examined the witnesses of the prosecution cited and after noticing that the registered letters have been forwarded to the applicant and has given his finding that the charges framed in Annexure I and II SA O.A.NO. 545 OF 2004 V dated 23.10. 1997 issued to Shri Dashrat stand proved and that the delinquent official is guilty of the charges. The disciplinary authority who agreed with the inquiry has also not applied his mind while passing the impugned order because from the order it is clear that it only notices that the inquiry report was forwarded to the delinquent officer and therefore, the report of the inquiry officer was accepted and he was held guilty of charges. It is nowhere noticed by the disciplinary authority that no efforts have been made to serve the chargesheet and the inquiry report upon the applicant. Despite the fact that every letter sent by the respondents through registered post was undelivered with the remarks. It is no where recorded by any authority that applicant deliberately avoiding service. Further more no efforts were made even to make publication in the news papers in the locality to inform the applicant or his family about the pendency of the proceedings. Since the order of removal from service is one of the major punishment and before passing the order disciplinary authority is bound to take care of procedure laid down in the rules and to provide every chance to the delinquent officer to present himself to defend his case which is lacking in the instant case. Therefore, also the impugned order is liable to be set aside being non speaking. Since the basic principle of natural justice has been violated in this case as before passing the impugned order no effective opportunity was given to the applicant. Merely sending of letters does not ipso facto absolves the respondent department from this duty under O.A.NO. 545 OF 2004 the Rules. The Honble Supreme Court in a catena of cases has held that if any order is having civil consequences before passing the same affected person be given opportunity of personal hearing. In the case of State of Orissa vs. Binapani AIR 1967 SC 1269 the Honble Supreme Court has observed as under:
12. It is true that some preliminary enquiry was made by Dr. S. Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. Thereafter the first respondent was required to show cause why April 16, 1907, should not be accepted as the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even a administrative order which involves civil consequence, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken, the High Court was, in our judgement, right in setting aside the order of the State. It has also been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. UOI AIR 1978 SC 597 that arbitrariness violates Article 14 of the Constitution.
16. On this count also the impugned order is liable to be set aside being violation of well established principles of audi alteram partem.
17. The Honble Apex Court in the case of B.C. Chaturvedi vs UOI and Ors. AIR 1996 SC 484 has held that ordinarily the Courts/Tribunals restrain themselves from interfering with the O.A.NO. 545 OF 2004 orders passed by the disciplinary authority but if they find that the punishment is disproportionate to the charges leveled then the court can intervene and even set aside the punishment orders. The relevant part of the judgement in B.C. Chaturvedis case is reproduced hereinbelow:
Constitution of India, Arts. 226, 142 Administrative Tribunals Act (13 of 1985) Sec. 19 Imposition of Punishment on govt. servant by disciplinary and appellate authority Interference by High Court/Tribunal Punishment shocking conscience of High Court/Tribunal It can direct authority to reconsider punishment It may itself, to shorten litigation impose appropriate punishment with cogent reasons in support thereof. Disciplinary authority and on appeals, appellate authority are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. O.A.NO. 545 OF 2004
18. We are supported by the judgement passed by the co-ordinate Bench of the Tribunal in O.A. No. 965/1987 decided on 19.07.1991 in the case of Brij Bhan Sharma. Subsequent to this various judicial pronouncement have been given by the Honble Supreme Court which says that authorities are bound to pass speaking and reasoned order and to state reasons in the order for coming to the conclusion for imposition of major penalty. Since the husband of the Applicant has already died, therefore, no fruitful purpose will be served to remand the matter to the respondent to reconsider the same. In view of the law laid down by the Apex Court whereunder it is stated that if the conscience of the Court feels that the order is disproportionate to the charge leveled against the Delinquent Officer, then the Court can set aside the orders. Therefore, in view of the above stated fact the impugned order is liable to be set aside. Consequently, the husband of the Applicant shall be treated to have died while in service and his family shall be entitled to all the terminal benefits due as per Rules as if the husband of the applicant died in harness. The applicant shall also be eligible to be considered for employment on compassionate ground and a decision in this regard shall be taken by the respondent on merit. The above stated view is also strengthened from the decision of the Honble Supreme Court in the case of Indranibai (Smt.) vs. UOI 1994 SCC (L&S) 981 wherein the Honble Supreme Court has considered the matter that since the delinquent officer had already died therefore no purpose will be served to remand the O.A.NO. 545 OF 2004 matter to the authorities and therefore, they set aside the order and granted all consequential benefits to the Applicant in that case and held in paragraph 6 as under:
6. Under these circumstances, it is a clear case that the delinquent had not been afforded a fair opportunity, much leas a reasonable opportunity to defend himself. That has resulted in violation of the principles of natural justice and fair play offending Articles 41, 21, and 311 (2) of the Constitution. The orders of dismissal as confirmed by the appellate authority are accordingly quashed. The respondents are directed to grant the appellant the pensionary benefits according to rules and also to consider her case for suitable appointment on any post to which she may be eligible for rehabilitation on compassionate ground. The respondents are further directed to pay the full salary payable to the deceased delinquent to the appellant from the date on which he was kept under suspension till date on which he would have attained superannuation on 28.2.1985, the preceding dated of his death which is earlier, with all consequential benefits after deducting the subsistence allowance already paid, right from the date of suspension order till date of dismissal. The exercise should be done within three months from the date of the receipt of the order. The ratio of this judgement is squarely applicable to the facts and circumstances of the present case and hence the impuned order is liable to be set aside.
19. In the light of foregoing discussion and following the ratio of various judgements cited (supra) the impugned order of removal from service dated 31.3.1997 is hereby set aside and the Applicant is entitled for all consequential benefits including family pension etc. We also direct the respondents to consider the case of the applicant for compassionate appointment in terms of her application dated 18.8.2003 as per rules.
O.A.NO. 545 OF 2004
20. The above direction shall be complied with within a period of three months from the date of receipt of a copy of this order.
21. In the result, the O.A. is allowed. No order as to costs.
MEMBER (J) MEMBER (A)
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