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2007 DIGILAW 884 (ORI)

Sabitri Patra v. Union of India and three

2007-11-22

ADMINIS TRATIVE, K.B.S.RAJAN, TARSEM LAL

body2007
ORDER DR. K.B.S.RAJAN, JUDICIAL MEMBER — The applicant’s husband was appointed as Senior Typist in 1973. After 28 years he suf¬fered from ‘sciatica’ and applied for leave which was allowed and was treated at S.C.B. Medical College, Cuttack. He required prolonged treatment and to avoid bus journey, strenuous work such as climbing of steps, riding of wheelers, rickshaw. While the applicant’s husband was undergoing treatment super cyclone devas¬tated his residential house in 1999 and high flood in 2001. A departmental proceeding was initiated against the applicant’s husband alleging unauthorisedly absent from duty since 2.11.1992 vide letter No.S.420 dated 22.7.2001. An enquiry was conducted. Applicant’s husband was in perturbed state of mind and ill state of health. Therefore, he could not submit his explanation nor attended the enquiry, due to circumstances beyond his control. The enquiry was conducted in his absence and final order had been passed behind applicant’s husband’s back vide Annexure-I order dated 22.9.2001. The applicant’s husband preferred an appeal against the order of removal from service on 5.11.2001. He had also approached this Tribunal vide O.A. No.269/2003 which was disposed of with a direction to the applicant to file a consoli¬dated appeal before the Appellate Authority within 30 days and in the event such appeal is filed, the appellate authority shall dispose of the said appeal vide Annexure-3. A consolidated appeal was filed vide Annexure-4. Applicant’s husband appeared before respondent No.4 who is the appellate authority. On 29.9.2003 the applicant’s husband appeared personally and submitted the medical certificate that by that time he was suffering from cancer. The appellate authority on 3.11.2003 communicated a speaking order upholding the decision of Annexure-1. The applicant’s husband died due to cancer. The applicant after the death of her husband sent a representation dated 29.9.2004 (vide Annexure-12) for sanctioning family pension. 2. Respondents have filed a counter. According to them, the husband of the applicant- late Rama Chandra Patra was working as Sr. Typist under Controller of Stores (COS), Eastern Railway, Kolkata. While working as such, he remained absent from Railway duty unauthorisedly from 2.11.1992 to 7.10.1996 for which disci¬plinary proceeding was initiated against him and he was served with charge sheet and he was removed from Railway on 22.9.2001. Subsequently his period of absence was regularized as Leave Without Pay under COS/KKK’s letter No.S.420/PR/3/RCP/Sr. Typist/HQ. Dated 24/26.9.2001 prior to the removal of service. Subsequently his period of absence was regularized as Leave Without Pay under COS/KKK’s letter No.S.420/PR/3/RCP/Sr. Typist/HQ. Dated 24/26.9.2001 prior to the removal of service. The period of unauthorised absence was from 2.11.1992 to 10.10.1996 against which major penalty proceeding was carried out and the Appellate Authority gave his opinion as legal and upheld the decision of Disciplinary Authority, regarding removal of service of Shri R. C. Patra with effect from 29.9.2001. Railway rules required that the employee must report to his office in case of his unauthorised absence as soon as it is possible for him to do so. The applicant’s husband was unauthorisedly absent from duty for almost 4 years during the period in question and during the period he did not consider it necessary to intimate the administration about his absence either by himself or through his family members etc. The applicant relies on a document which does not relate to the period of unauthorised absence from 2.11.1992 to 11.10.1996. 3. Counsel for the applicant submitted that in regard to treatment of the period of absence of the applicant’s husband in respect of which proceedings were initiated as per the own words of the respondents, vide para 2(b) of the counter. “subsequently, his period of absence was regularized as LWP under COS/KKK’s letter No.S. 420/PR/3/RCP/Sr. Typist/HQ dt. 24/26-09-2001, prior to the removal (sic removal) of service” This would mean that the respondents have regularized the irregularity. If so, the question is whether there be anything that survived to impose the penalty of removal from service. Here exactly, he has relied upon the decision of the Apex Court in the case of State of Punjab v. Bakshish Singh (1998) 8 SCC 222 . On the strength of the above, the applicant submitted that in the instant case, as the period of absence has been regularized, there is no question of any misconduct being fastened to the applicant’s husband and thus, the applicant is entitled to family pension as her husband had died. 4. Counsel for the respondent, however, invited the atten¬tion of the Court to the decision by the Apex Court in the case of State of Rajasthan v. Mohd. Ayub Naz, (2006) 1 SCC 589 wherein it has been held :- “9. 4. Counsel for the respondent, however, invited the atten¬tion of the Court to the decision by the Apex Court in the case of State of Rajasthan v. Mohd. Ayub Naz, (2006) 1 SCC 589 wherein it has been held :- “9. Absenteeism from office for a prolonged period of time without prior permission by Government servants has become a principal cause of indiscipline which has greatly affected var¬ious government services ........... In the instant case, oppor¬tunity was given to the respondent to contest the disciplinary proceedings. He also attended the enquiry. After going through the records, the learned Single Judge held that the admitted fact of absence was borne out from the record and that the respondent himself had admitted that he was absent for about 3 years. After holding so, the learned Single Judge committed a grave error that the respondent can be deemed to have retired after rendering of service of 20 years with all retrial benefits which may be avail¬able to him. In our opinion, the impugned order of removal from service is the only proper punishment to be awarded to the re¬spondent herein who was wilfully absent for 3 years without intimation to the Government. The facts and circumstances and the admission made by the respondent would clearly go to show that Rule 86(3) of the Rajasthan Service Rules is proved against him and, therefore, he may be removed from service. 10. This Court in Om Kumar v. Union of India while consider¬ing the quantum of punishment/proportionality has observed that in determining the quantum, role of administrative authority is primary and that of Court is secondary, confined to see if discretion exercised by the administrative authority caused excessive infringement of rights.” 5. On the above premises, the counsel for the respondent submitted that the applicant is not entitled to any relief as her husband had been removed from service on the ground of unau¬thorized absence. 6. Arguments were heard and documents perused. The fact is that the period of absence had been regularized, as per the words of the respondents; by way of grant of LWP (leave without pay), as extracted above. This would then lead to the question as to whether the absence could then be considered as unauthorized or would the absence of the applicant’s husband be treated as an act of misconduct. This would then lead to the question as to whether the absence could then be considered as unauthorized or would the absence of the applicant’s husband be treated as an act of misconduct. Here exactly comes in the decision of the Apex Court in the case of State of Punjab and others v. Bakshish Singh, heavily (and rightly so) relied upon by the applicant’s counsel. The facts therein are that the respondent therein who was a police constable in Punjab was dismissed from service on 1.6.1988 after a regular departmental enquiry on the charge of unauthorized absence from duty. This order was challenged by the respondent in a suit filed in the trial Court on 16.7.1990 which was decreed on 12.5.1993 and the order of dismissal was set aside as it was found by the trial Court that defendants having them¬selves regularised and treated the period of the respondent’s absence from duty as the period of leave without pay, could not legally say that he was guilty of misconduct for unauthorised absence from duty. The decision of the trial Court was challenged in appeal before the District Judge which was disposed of by the Additional District Judge, Jalandhar on 15.1.1996 with the following findings: “In view of the above brief discussion, I am of the consid¬ered opinion that once the period of absence is treated as leave of the kind whatsoever, the fact that the delinquent remained absent from duty cannot be sustained after the person has been treated on leave of whatsoever kind it may be. Thus the findings of the learned lower Court upon this matter are hereby confirmed.” 7. Having affirmed the findings of the trial Court that the charge of absence from duty did not survive, the lower appel¬late Court proceeded to consider the question whether absence from duty was a misconduct of the gravest kind so as to warrant the maximum penalty of ‘dismissal from service’ or it was a mere 'misconduct' for which lesser punishment would be appropriate. Having found that it was not a case of misconduct of the gravest kind, the lower appellate Court remanded the case back to the punishing authority for passing a fresh order of punishment. The appellant then filed a second appeal in the High Court which was dismissed summarily. Having found that it was not a case of misconduct of the gravest kind, the lower appellate Court remanded the case back to the punishing authority for passing a fresh order of punishment. The appellant then filed a second appeal in the High Court which was dismissed summarily. The Apex Court has considered the appeal filed by State and held as under :- “It will thus be seen that the trial Court as also the lower appellate Court had both recorded the findings that the period of absence from duty having been regularized and converted into leave without pay, the charge of absence from duty did not sur¬vive. Once it was found as a fact that the charge of unauthorised absence from duty did not survive, we fail to understand how the lower appellate Court could remand the matter back to the punish¬ing authority for passing a fresh order of punishment. .....The trial Court also recorded a finding that unauthor¬ized absence from duty having been regularised by treating the period of absence as leave without pay, the charge of misconduct did not survive. It was with this finding that the suit was decreed. The lower appellate Court confirmed the finding that since the period of unauthorised absence from duty was regula¬rised, the charge did not survive but it did not say a word about the finding relating to the opportunity of hearing in the depart¬mental proceedings. ...... “ Ultimately, the judgment and decree passed by the trial Court was upheld. 8. As far as the decision relied upon by the respondent’s counsel is concerned, true, long absenteeism cannot be treated lightly. However, where a conscious decision is taken to treat the absence as leave without pay and accordingly the period of absence is regularized prior to the removal from service, where is the question of treating the same as misconduct ? Thus, the decision in Bakshish Singh (Supra) applies on all the fours to this case. Consequently, the impugned order dated 22.09.2001 at Annexure-A-1 whereby the applicant’s husband had been removed from service and the order dated 03.11.2003 of the appellate authori¬ty, whereby the appeal was rejected, are hereby quashed and set aside. The applicant’s husband should therefore, be treated as having been in service till the date of his demise on 29.04.2004 (as he was by that time about 56 years). The applicant’s husband should therefore, be treated as having been in service till the date of his demise on 29.04.2004 (as he was by that time about 56 years). His period of service from November, 1973 till April, 2004 and his pay last drawn prior to his date of removal shall be taken as his last pay drawn. The same shall be taken as the base for working out the terminal benefit available to the applicant and her family pension. 9. The OA is allowed to the above extent. The amount due to the applicant shall be calculated and paid to her within a period of six months. Family pension shall also be accordingly worked out and the same shall be continued to be paid, in accord¬ance with law. The applicant shall complete due formalities in this regard, for which necessary assistance shall be rendered by the respondents. 10. No costs. O.A. allowed.