Union of India & Ors. v. Jatashankar

1. The caveator is represented. Therefore, caveat notice is discharged.

2. The instant writ petition has been filed by the petitioners assailing the order dated 9th December, 2013 passed by the Central Administrative Tribunal allowing OA No.4279 of 2011. The facts giving rise to the instant writ petition are within a narrow compass. The respondent before us was appointed as casual labourer on the 23rd November, 1988 with the petitioners; was granted a temporary status in 1989 and his services were subsequently regularised. The admitted facts before us are that the 2014:DHC:2305-DB respondent stopped attending his duties w.e.f. 31st May, 1999. The respondent has contended that one of his relatives lodged a police complaint on 27th June, 1999 with the police station at Patiala with regard to his being missing. It is further claimed by the respondent that his wife and relative Chandrika Prasad made representations and informed the petitioners about this position. We may note that this fact was disputed on behalf of the petitioners.

3. On 3rd April, 2002, the respondent was issued a charge memo proposing to conduct disciplinary proceedings against him on the following charge:- “During the month of May-1999 Sh. Jatta Shanker while functioning as Khalasi/Semi Skilled in the office of the undersigned indulged himself in act of serious misconduct/misbehaviour and failed to maintain devotion to duty as well as engaged himself in act which is unbecoming of Railway servant since Shri Jatta Shanker has absented himself from duty since 31.05.1999 (A/N) unauthorisedly. In spite of telegrams sent to him from time to time for resuming duty, Shri Jatta Shanker has neither resumed duty nor given information for absence from duty till date. By acting in such a manner Shri Jatta Shanker has violated the provisions of Rule 3(I)(ii) (iii) of Railway Service (Conduct) Rules, 1966.”

4. The chargesheet sent to the petitioner by registered post was returned undelivered on 6th April, 2002 with the remark that “the person who has to receive it remains out without intimation. No hope that he will return, hence returned”. Despite this remark, the chargesheet was pasted at the respondent’s workplace on 3rd May, 2002 in the presence of three staff members.

5. The Disciplinary Authority proceeded to appoint an inquiry officer who also sent the notice on the inquiry proceedings on permanent address which was also returned with the same remark as before. The Inquiry Officer adjourned the matter on 7th October, 2002 & 28th October, 2002 notices for which hearings were also returned with the remark that “the person who has to receive it remains out and his family members refused to accept it, hence returned”. It is apparent, therefore, that neither was the charge memo served on the respondent who was not available at this address nor any other notices for the dates fixed. Even though it was the charge against the respondent that he was unauthorisedly absent from duty, the petitioners effected pasting of the charge memo at his workplace. Despite this position, the Inquiry Officer proceeded ex parte in the matter and submitted his report on 2nd November, 2002 holding that the charges framed against the respondent were proved correct.

6. It is noteworthy that the report of the inquiry officer which was sent under registered post to the respondent’s permanent address on 16th January, 2003 was also returned undelivered with the same remark as before. The respondent again pasted copy of the inquiry report on 4th February, 2003 on the Notice Board at the workplace of the respondent. The recommendations of the inquiry officer were accepted by the disciplinary authority which proceeded to pass an order dated 16th April, 2003 whereby the penalty of removal from service with immediate effect was also imposed upon the respondent.

7. The factual narration noted in the order dated 9th December, 2013 would show that vide a letter dated 22nd December, 2004, the Inquiry Officer made an inquiry from the chowki incharge, Urban Estate Chowki, Patiala asking for the status of the FIR lodged by Chandni Prasad on the 27th June, 1999 in respect of the respondent against diary no.S-18, Police Station Urban Estate II, Patiala. The Inquiry Officer was informed by the police authority on 23rd December, 2004 as well as on 27th December, 2004 that the respondent was still not traceable.

8. The Tribunal has noted that despite these communications which were on the record of the inquiry officer and also placed before the Disciplinary Authority, they arbitrarily concluded that the applicant’s absence was unauthorised. They were admittedly aware that the FIR regarding the respondent being missing since 1st May, 1999 was before them which ought not to have been ignored.

9. The respondent was finally traced out on 22nd April, 2006 by one Shri Ram Shankar, an acquaintance in a condition as that of a mad person in an ashram in Ayodhya. The respondent’s wife took him to the concerned police station in Patiala.. The respondent also submitted a representation dated 27th April, 2006 to the petitioners to reinstate him and to give him medical treatment.

10. The Tribunal has noted that the respondent was given medical treatment for a mental problem and has detailed several prescriptions in this regard commencing from 18th June, 2006 till 27th February, 2011. As per these prescriptions, the respondent was treated for some mental disorder for which he received medication as well. This sickness was the reason claimed by the respondent for the delay in making the appeal against the order of the disciplinary authority dated 16th April, 2003 within the statutory period.

11. It is also essential to note that the respondent’s representation to the Ministry of Railways, complaining that the respondent was not being permitted to join was answered by the Ministry by a letter dated 10th October, 2008 informing the respondent that he had been removed from service by the order dated 16th April, 2003 that he had not filed any appeal against it within the stipulated period and, therefore, it was not possible to rejoin him.

12. In this background, the respondent filed a revision dated 12th May, 2009 under Rule 25 of the Railway Servants (Disciplinary & Appeal) Rules, 1968. The petitioners failed to consider the same. As a result, the respondent was compelled to approach the Central Administrative Tribunal vide OA No.182/2010. This application was disposed of by the Tribunal by its order dated 29th April, 2010 directing as follows:- “We are, therefore, of the view that since there are rules and instructions relating to missing Government Employee, which do not seem to have been taken in view while passing the impugned orders, let the respondent reconsider the case of the applicant’s husband in view of the submissions noted above as well as the other ground put forward by the applicant in the OA and take a decision on the prayer therein by treating it as the applicant’s representation in that regard informing her by a reasoned and speaking order within a period of 3 months from the date of receipt of a certified copy of this order. The OA is disposed of in the above terms. No costs.”

13. In view of the afore-said directions, the Appellate Authority passed an order dated 24th July, 2010, holding inter alia that the medical treatment of the respondent was an after thought; that in the personal hearing on 2nd July, 2010, there was nothing abnormal in the respondent’s behaviour and that his mental status was normal and that the respondent’s family members knew of his whereabouts which they intentionally did not disclose and that the claim of the respondent that he was missing was not authentic. The appeal was, therefore, rejected and the penalty imposed upon disciplinary authority of removal from service was upheld by the appellate authority.

14. The respondent’s revision against this order was also rejected by an order dated 2nd February, 2011. Aggrieved by this order, the respondent had filed OA No.4279 of 2011 which has been rejected by the impugned order.

15. We have heard learned counsel for the parties and carefully scrutinized the record. It is not disputed that the respondent was not attending his duties w.e.f. 31st May, 1999. The petitioners had before them evidence of the police report as well as the confirmation by the police as late as on 23rd and 27th December, 2004 that the respondent was not traceable. The Tribunal has found the decision of the disciplinary authority to initiate disciplinary action against the respondent on 3rd April, 2002 on the charge of unauthorised absence from duties as arbitrary and hasty. Furthermore, the inquiry proceedings conducted by the inquiry officer has been held to be a formality inasmuch as telegram and registered letters were being sent to a person who was missing and was admittedly not available at the address to which they were sent. All these communications were returned to the petitioners who thereafter proceeded to paste the same at his workplace.