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2017 DIGILAW 1288 (GAU)

UNION OF INDIA v. LALA PRASAD SINGH

2017-09-14

AJIT SINGH, MANOJIT BHUYAN

body2017
ORDER : Manojit Bhuyan, J. This writ petition by the Union of India in the NF Railway is directed against the order dated 30.09.2014 passed by the Central Administrative Tribunal, Guwahati Bench in Original Application No. 161/2013. 2. We have heard Mr. H.K. Das, learned counsel for the petitioners as well as Mr. D.C. Chakraborty, learned counsel representing the sole respondent. 3. Before the Tribunal, challenge was made to the order of removal from service dated 24.08.2006 as well as the appellate order dated 30.03.2013, whereby the order of removal was affirmed. Facts appearing are that the respondent was appointed as Grade-IV employee in the NF Railways, Lumding Division on 27.09.1978. On and from September 1982, he worked in the promoted post of Pointsman-A. On 15.09.2003 while he was on duty, he met with an accident at Lumding Sub Yard by falling into a drain, causing serious injuries to his head and legs. He received treatment at the Railway Hospital, Lumding and thereafter he was taken to Ranchi by the family members for medical treatment as he appeared to be suffering from acute mental illness and other psychiatric problems, as a fall-out of the accident suffered on 15.09.2003. For the period from 25.10.2003 to 17.02.2012 he remained absent from duty on ground that he was undergoing medical treatment at Ranchi. On being declared fit, he reported for duty at Lumding in February, 2012 but was not allowed to resume work as by that time he had already been removed from service. What had transpired during the period he was absent and undergoing medical treatment at Ranchi is that a Charge Memo was issued on 13.01.2005 under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 for violation of Rule 3.1 (ii) and 3.1 (iii) of the Railway Service (Conduct) Rules, 1966. The said violations are in respect of not maintaining devotion to duty and unbecoming of a Government servant. He was made to submit his written statement of defence. Copy of the said Charge Memo was dispatched on 28.01.2005 through Registered Post, Acknowledgement Due and thereafter again on 26.05.2005. On both occasions, no acknowledgment of receipt of copy of the Charge Memo nor any reply to the Memorandum of Charge was received. An Enquiry Officer was appointed on 16.11.2005 and enquiry proceedings took place on 10.03.2006, 31.03.2006 and 08.05.2006. Copy of the said Charge Memo was dispatched on 28.01.2005 through Registered Post, Acknowledgement Due and thereafter again on 26.05.2005. On both occasions, no acknowledgment of receipt of copy of the Charge Memo nor any reply to the Memorandum of Charge was received. An Enquiry Officer was appointed on 16.11.2005 and enquiry proceedings took place on 10.03.2006, 31.03.2006 and 08.05.2006. On all the above dates, neither the charged official nor his representative had attended the proceedings. Enquiry Report was submitted and the charge against the respondent was found proved. On going through the report of the Enquiry Officer, the Disciplinary Authority imposed punishment of removal from service by order dated 24.08.2006 and the same was circulated vide officer order dated 10.01.2007. On his return from Ranchi, he made an application to the Additional Divisional Railway Manager, NF Railway, Lumding Division on 15.03.2012 for review of the order dated 24.08.2006, followed by another representation dated 14.09.2012. As nothing was forthcoming, the respondent filed the first Original Application No. 379/2012, which was disposed of on 08.01.2013, with direction that the representations/appeals dated 15.03.2012 and 14.09.2012 be adjudicated upon by the Additional Divisional Railway Manager, NF Railway, Lumding Division after providing opportunity of hearing to the respondent and thereafter to communicate the decision taken. Pursuant thereto, a speaking order was passed by the Appellate Authority on 30.03.2013 finding that the punishment imposed by the Disciplinary Authority was commensurate with the gravity of offence. Accordingly, the punishment imposed was affirmed. Aggrieved, the respondent instituted the related Original Application No.161/2013. The petitioners herein had also filed written statement in the said proceedings. 4. The Tribunal considered the pleadings of either parties and made observations as follows : "(i) The accident while on duty on 15.9.2003 is admitted by both party. The applicant claimed leg injury as well as head injury, while the respondent solely relying on the Railway medical report concluded the applicant's suffering as small leg injury. (ii) The applicant has worked with the Railways form 1978 till the alleged date of beginning of unauthorized absence that is 25.10.2003. The applicant's claim that he has an unblemished service record to the satisfaction of his superiors and all concerned, the Railway has not been able to bring to notice of the court which might have shown that the applicant was malingerer and an indisciplined worker. The applicant's claim that he has an unblemished service record to the satisfaction of his superiors and all concerned, the Railway has not been able to bring to notice of the court which might have shown that the applicant was malingerer and an indisciplined worker. (iii) The applicant has himself claimed that he suffered from mental illness and gave it as the reason for remaining absent. The respondent however disputed the claim of mental illness and instead chose to attribute it to the indiscipline on the part of the applicant and also because of lack of devotion to duty. However, from the records it is clear that the respondents have not provided list of witnesses in support of their charge and only relied on one document SS/LMG letter No. ES/2005/01 dated 8.1.2005 filed in support of the charge of indiscipline and lack of devotion to duty. (iv) It is also not disputed that the departmental proceedings were concluded ex-parte." Following the above observations, although the Tribunal refrained from interfering with the decision of the petitioners with regard to not permitting the respondent to join duty, however, took note of the fact that the respondent have served the Railways from the year 1978 to October, 2003 without any blemish and which fact was not controverted by the petitioners. The Tribunal reached a conclusion that removal of the respondent from service on the basis of an ex-parte departmental proceeding did not meet the ends of justice, particularly when the respondent had reached pensionable age of service. Accordingly, the Tribunal held that the respondent be allowed to retire with pensionary benefits and in that regard made a direction to the petitioners to treat the order of removal from service from 24.08.2006 as compulsory retirement and to disburse the pension and other retirement benefits from the said date. Further, the period of absence from 25.10.2003 till the date of removal be adjusted against the leave due, including leave on medical ground, and be counted towards pensionary benefits. Remaining period, if any, was directed to be treated as dies non. 5. Mr. H.K. Das, have reiterated the facts and submits that on account of more than 8 (eight) years of unauthorized absence from duty, the order of removal is bona fide and is not liable to be interfered with, even by applying the doctrine of proportionality. Remaining period, if any, was directed to be treated as dies non. 5. Mr. H.K. Das, have reiterated the facts and submits that on account of more than 8 (eight) years of unauthorized absence from duty, the order of removal is bona fide and is not liable to be interfered with, even by applying the doctrine of proportionality. He submits that due procedure had been followed before imposing the order of punishment, in that, endeavour had been made to issue notices on the respondent with regard to the initiation of departmental proceedings. Mr. Das also submits that with regard to the observation made by the Tribunal that the respondent had served the NF Railways in the past without any blemish, the same cannot be a relevant consideration to apply the doctrine of proportionality in favour of the respondent. In this regard, reliance is placed in the case of Chennai Metropolitan Water Supply and Sewerage Board and Ors. v. T.T. Murali Babu, reported in (2014) 4 SCC 108 , wherein it was held that it would be an incorrect approach to apply the doctrine of proportionality on the basis of the absence of past misconduct and first time desertion. The Supreme Court further held that by remaining unauthorizedly absent for a long period with inadequate reason would not only show indiscipline but also show an attempt to get away with it. In such circumstances, the doctrine of proportionality does not get remotely attracted. 6. In Chennai Metropolitan (supra), there was no discussion on the long years of service rendered by the respondent therein. In the instant case, the respondent was in the service of NF Railway, Lumding Division for the period from 27.09.1978 to 24.10.2003, covering a period of more than 25 years of continuous service. He was absent from duty for a period of about 8 (eight) years, which is sought to be justified on grounds of medical treatment at Ranchi. The long absence from duty would certainly go to support an action in not allowing an employee to join duty, if such absence was intentional. No materials have been placed by the petitioners demonstrating that the absence from duty was intentional, so much so, that notices and reminders had been issued for joining duty, which the respondent had received and yet did not comply with it. 7. No materials have been placed by the petitioners demonstrating that the absence from duty was intentional, so much so, that notices and reminders had been issued for joining duty, which the respondent had received and yet did not comply with it. 7. On the aspect that the respondent had served more than 25 years of continuous service in the NF Railway, Lumding Division and by virtue of the said period had also earned the right to pension, this relevant fact cannot be ignored or wished away to deprive him of his pension. On this count alone, the doctrine of proportionality comes into play. The right to receive pension is a valuable right and in the facts and circumstances of the present case, we find nothing adverse in the findings and decision of the Tribunal, whereby direction was made to treat the order of removal as compulsory retirement and for disbursal of pension and other retirement benefits from the date of removal i.e. 24.08.2006. On this, we stand fortified by the decision in Surendra Prasad Shukla v. State of Jharkhand and Ors., reported in (2011) 8 SCC 536 . In the said case, the Supreme Court took note of the fact that the person concerned had served the Government for about 34 years. The punishment of dismissal so as to deprive him of his pension was held to be shockingly disproportionate to the negligence proved against him. The said punishment was modified to compulsory retirement by preserving the retiral rights acquired by the appellant therein. In our considered opinion, the ratio laid down in Surendra Prasad Shukla (supra), comes to the aid of the respondent in so far as entitlement to retiral rights are concerned. 8. In view of the above, we find no good ground to interfere with the order of the Tribunal. Accordingly, the present writ petition stands dismissed, however, without any order as to cost.