IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 13TH DAY OF MAY 2022 / 23RD VAISAKHA, 1944
OP (CAT) NO. 328 OF 2017
AGAINST EXHIBIT P3 ORDER OF THE CAT, ERNAKULAM BENCH IN
O.A.NO.180/00096/2014 DATED 03.04.2017
PETITIONERS/RESPONDENTS IN O.A:
THE CHIEF COMMERCIAL MANAGER/PS
1
SOUTHERN RAILWAYS HEAD QUARTER,CHENNAI-3.
2 THE APPELLATE AUTHORITY/THE ADRM
SOUTHERN RAILWAY, DIVISIONAL OFFICE, PERSONAL BRANCH,
PALAKKAD.
THE SENIOR DIVISIONAL COMMERCIAL MANAGER
3
SOUTHERN RAILWAYS, DIVISIONAL OFFICE, PALAKKAD.
BY ADVS.
SUMATHY DANDAPANI (SR.)
SRI.B.RAJESH, SC, RAILWAYS
RESPONDENT/APPLICANT IN O.A:
MOHAMMED ANSARI P.K.
S/O.LATE P.H.KUNHU MOHAMMED, TC 26/942, PULIKKALAKATH,
96 CHEMPAKA NAGAR, OOTUKUZHY, THIRUVANANTHAPURAM-695001.
BY ADVS.
SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
SRI.A.L.NAVANEETH KRISHNAN
THIS OP (CAT) HAVING RESERVED FOR JUDGMENT ON 29.03.2022, ALONG
WITH OP (CAT).29/2019, THE COURT ON 13.5.2022 DELIVERED THE
FOLLOWING:
O.P (CAT) Nos.328 of 2017 & 29 of 2019 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 13TH DAY OF MAY 2022 / 23RD VAISAKHA, 1944
OP (CAT) NO. 29 OF 2019
AGAINST THE ORDER DATED 3.4.2017 IN OA NO.180/00096/2014 OF
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/APPLICANT:
MOHAMMED ANSARI P.K.,S/O.LATE P.H.KUNHU
MOHAMMED, TC 26/942, PULIKKALATH, 96 CHEMPAKA
NAGAR, OOTUKUZHY, THIRUVANANTHAPURAM-1.
BY ADVS.
SRI.P.K.IBRAHIM
SRI.A.L.NAVANEETH KRISHNAN
K.P.AMBIKA
A.A.SHIBI
RESPONDENTS/RESPONDENTS:
THE CHIEF COMMERCIAL MANAGER/PS,
1
SOUTHERN RAILWAYS HEAD QUARTER, CHENNAI-3.
THE APPELLATE AUTHORITY/THE ADRM,
2 SOUTHERN RAILWAY, DIVISIONAL OFFICE,PERSONAL
BRANCH, PALAKKAD-678 001.
THE SENIOR DIVISIONAL COMMERCIAL MANAGER,
3 SOUTHERN RAILWAYS, DIVISIONAL OFFICE, PALAKKAD-
678 001.
BY ADV SRI.B.RAJESH, SC, RAILWAYS
THIS OP (CAT) HAVING RESERVED FOR JUDGMENT ON
29.03.2022, ALONG WITH OP (CAT).328/2017, THE COURT ON
13.5.2022 DELIVERED THE FOLLOWING:
O.P (CAT) Nos.328 of 2017 & 29 of 2019 3
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
==============================
O.P (CAT) No.328 of 2017
[Arising out of the impugned final order dated 03.04.2017 in
OA.No.180/00096/2004 of the CAT, EKM]
&
O.P(CAT No.29 of 2019
[Arising out of the impugned final order dated 03.04.2017 in
OA.No.180/00096/2004 of the CAT, EKM]
===============================
Dated this the 13th day of May, 2022
JUDGMENT
Viju Abraham, J.
OP(CAT) No.328 of 2017 is preferred by the respondent in O.A.No.96 of 2014 whereas OP(CAT) No.29 of 2019 is preferred by the applicant in the said O.A, aggrieved by the order dated 03.04.2017 in O.A.No.96 of 2014.
2. The parties will be referred to as they are arrayed in the Original Application and documents will be referred to as shown in OP(CAT) No.29 of 2019. The brief facts necessary for the disposal of the present O.P are as follows: The applicant is an employee of the Indian Railways and while working as Relieving Clerk at Mangalore, the applicant was sent on deputation as Commercial Assistant to the State Farming Corporation of Kerala Ltd. During this period the applicant became a psoriasis patient and was undergoing Ayurveda treatment. After the deputation period was over, the applicant was O.P (CAT) Nos.328 of 2017 & 29 of 2019 4 repatriated to Railways by order dated 16.06.1997. But due to the severity of the illness, the applicant could not report for duty for long and therefore he intimated about his illness to the respondent Railways. The applicant reported to Railway Divisional Office, Palakkad on 19.04.1999 and that the earlier period from 17.06.1997 to 18.04.1999 was treated as absent on medical grounds. After rejoining duty under the respondent, the applicant availed treatment at Railway Hospital, Palakkad from 20.04.1999 for psoriasis illness. Later he joined duty again on 08.05.1999 producing a medical certificate issued by the Senior Divisional Medical Officer, Railway Hospital certifying that he was undergoing treatment for the period from 20.04.1999 to 07.05.1999. The disease suffered by the applicant became severe and sore also surfaced over the skin and thereupon, he reported sick on 14.08.1999 before the Divisional Medical Officer, Kannur. Despite the gravity of the disease, the Medical Officer granted sick leave only up to 18.08.1999. The applicant in the meantime was undergoing treatment at Government Ayurveda Hospital, Thiruvananthapuram also sought leave by sending a telegram to the Railway official concerned and by forwarding Medical Certificate through registered post on 18.08.1999. The telegram seeking medical leave was sent to the station master followed by the O.P (CAT) Nos.328 of 2017 & 29 of 2019 5 submission of a medical certificate dated 18.08.1999. But the authority concerned did not pass any orders on the same. The absence of the applicant was marked as unauthorised on the advice of the Divisional Medical Officer therein and on the basis of the same, the applicant was treated as on unauthorised absence from duty. It is contended by the applicant that the Divisional Medical Officer has no authority to treat the service of the applicant as unauthorised absence in as much as it is only the Station Master who has authority to refuse or grant leave to the applicant. It is on the basis of the entry made by the Divisional Medical Officer that the Department initiated disciplinary proceedings alleging unauthorised absence from 19.08.1999. It is the contention of the applicant that the leave on medical grounds can be refused only if it is not genuine and that such genuineness of the claim can be ascertained only by obtaining a report from the medical board. In the enquiry proceedings, the applicant produced a postal receipt evidencing the issuance of a telegram requesting medical leave on 18.08.1999 and the officer who was examined in the enquiry stated that the absence of the applicant was marked as unauthorised on the advice of the Divisional Medical Officer. The applicant after a continuous period of treatment became fit for joining duty and he made a request for reinstatement in O.P (CAT) Nos.328 of 2017 & 29 of 2019 6 service. As there was no response to the said request, the applicant enquired the same with the authorities and he was intimated that he is terminated from service on the basis of enquiry report. It is the contention of the applicant that he received no communication regarding his dismissal from service. On knowing about the order passed by the authorities his disease became more severe and he had to undergo treatment again. The applicant's wife approached the authorities as per the provisions of the Right to Information Act seeking certain information regarding his service including a copy of the order of termination and thereupon she was furnished with the said documents including penalty advice dated 03.09.2002. The said penalty advice was challenged by filing in O.A.No.8 of 2011 before the Central Administrative Tribunal, Ernakulam Bench. The Tribunal after appreciating the contentions of the applicant directed as per Annexure-A2 order dated 11.09.2012 that the applicant should file an appeal within 60 days from the date of the receipt of the order. Consequently, the applicant filed Annexure-A3 appeal before the 2nd respondent. No steps were taken by the Appellate Authority for almost 6 months and it is only after the applicant had filed a Contempt Petition as C.P.No.75 of 2013 that the 2nd respondent O.P (CAT) Nos.328 of 2017 & 29 of 2019 7 passed Annexure-A4 order dated 11.07.2013 confirming the order passed by the 3rd respondent removing the applicant from service. Aggrieved by Annexure-A4 appellate order the applicant filed Annexure-A5 revision petition dated 23.08.2013 before the 1st respondent. Even after a lapse of 5 months, no steps were taken to dispose of the revision petition, and ultimately the said revision petition was rejected by the 1st respondent as per Annexure-A7 order dated 17.03.2014. It is aggrieved by the issuance of Annexure-A1, Annexure-A4 and Annexure-A7 orders that the applicant has approached the Tribunal filing O.A.No.96 of 2014. The Tribunal after considering the rival contentions of the parties disposed of the same as per order dated 03.04.2017 confirming the order passed by the appellate and revisional authority, but in the matter of proportionality of the punishment imposed on the applicant, which is dismissal from service, the Tribunal entered a finding that since the applicant was suffering from a serious ailment like psoriasis and was undergoing treatment during the relevant time, the order of dismissal of the applicant from service is found to be no justifiable and holding so the penalty imposed by the authorities was set aside with the further direction to the Appellate Authority to consider O.P (CAT) Nos.328 of 2017 & 29 of 2019 8 whether the penalty imposed by the disciplinary authority is just and proper and directed the Appellate Authority to pass orders on the same within a period of 60 days from the date of receipt of a copy of the order. The applicant is aggrieved by the order passed by the Tribunal in remitting the matter back to the authorities for reconsideration on the actual penalty that should have been imposed on the applicant. On the other hand, OP(CAT) No.328 of 2017 was filed by the Railways mainly contending that the order of the Tribunal dated 03.04.2017, in as much as it remitted the matter back to the Appellate Authority on the quantum of punishment to be imposed is against law and it is aggrieved by the same that they have approached this Court. Since it is challenging the very same order passed by the Tribunal on 03.04.2017 and is intrinsically connected, both these original petitions are heard and decided together.
3. It is contended that the petitioner was compelled to take medical leave only on account of chronic psoriasis disease and the fact that he is on leave was intimated to the authorities by way of telegram followed by a medical certificate, therefore his absence cannot be termed to be unauthorised absence without sufficient cause. After repatriation of the petitioner from the State Farming O.P (CAT) Nos.328 of 2017 & 29 of 2019 9 Corporation of Kerala Ltd, he could not join duty due to his serious illness from 16.06.1997 onwards. Later the applicant reported before the Railway Divisional Office, Palakkad on 19.04.1999. After rejoining duty, the applicant again availed treatment at Railway Hospital, Palakkad from 20.04.1999 and later he again joined duty on 08.05.1999 producing a medical certificate issued by the Senior Divisional Medical Officer, Railway Hospital certifying that he was undergoing treatment for the period from 20.04.1999 to 07.05.1999. Later his health issues became more severe and only on 14.08.1999, he reported before Divisional Medical Officer, Kannur. But, without taking into consideration the gravity of the disease, the Medical Officer granted sick leave only up to 18.08.1999. On 18.08.1999 the petitioner intimated the authorities by way of telegram and by forwarding a medical certificate by registered post requested for medical leave, but the authorities concerned did not pass any orders on the same and the absence was treated as unauthorised. The department initiated disciplinary proceedings alleging unauthorised absence only w.e.f. 19.08.1999. A perusal of the charge sheet dated 26.04.2000 and articles of charge framed against the applicant/petitioner, which is produced as enclosure No. 9 attached to Annexure A3 appeal produced by the petitioner in O.P. (CAT) No. O.P (CAT) Nos.328 of 2017 & 29 of 2019 10 29 of 2019 will clearly show that the allegation is that he has absented from duty from 19.08.1999 onwards. The relevant portion of the articles of charge framed against the petitioner reads as follows:
"Sri. Muhammed Ansari, Senior GLC/CAN while working at booking office, CAN, has absented from duty from 19.8.1999 onwards. He has thus failed to maintain devotion to duty and behave in a manner quite unbecoming of a Railway Servant and violated Rule 3(i)(ii) and (iii) of Railway Servants (Conduct) Rules 1966."
It is also relevant to examine the contents of the enquiry proceedings and the enquiry report which is produced as Exts.R1(a) and R1(b) in OP(KAT) No.328 of 2017. A perusal of the enquiry proceedings produced as Ext.R1(a) reveals that Shri. M. Velayudhan, CBS (Chief Booking Supervisor) Kannur, who was examined as SW1, has specifically stated that the petitioner is absenting duty only from 19.8.1999 and that he has reported sick on 14.8.1999 and the DMO has put him under "sick" up to 18.8.1999 and that from 19.8.1999 onwards his absence was marked as per the advice of the DMO. The said witness further deposed that he is aware of the fact that the petitioner is having difficulty in working at the counter due to his illness and that his opinion is that the petitioner should undergo treatment for the disease. Further, a perusal of Ext.R1(b) enquiry report would clearly show that the petitioner has produced copies of O.P (CAT) Nos.328 of 2017 & 29 of 2019 11 private medical certificate and receipt of telegrams from the postal authorities in proof of having sent telegrams to Railway Authorities i.e., to SS/CAN, DMO/CAN, Senior DCM/PGT and Sr.DPO/PGT. But the finding of the enquiry officer is only to the effect that the receipt does not give any evidence as to whom the telegram was sent. Further, on the medical certificate dated 18.8.1999 and 17.2.2000, produced by the applicant/petitioner, the enquiry officer entered a finding that the medical officers have reported that the applicant/petitioner has not been completely cured and needs more medication but found that he has not intimated his immediate supervisor about the private treatment undergone at Thiruvananthapuram and that he did not enquire about the outcome of the leave application submitted by him through telegrams. So even in the enquiry, it has come out in evidence that the petitioner is suffering from a serious ailment and he requires treatment and that on 18.8.1999 telegrams have been sent requesting for further leave to undergo the treatment. Further, it is also pertinent to note that the prescription memo of the Medical Department of Southern Railways produced as enclosure No.2 along with Annexure-A3 appeal, on page 61 of the paper book of OP (KAT) No. 29 of 2019 will show that there is an endorsement by the railway doctor himself on 27.04.1999 that O.P (CAT) Nos.328 of 2017 & 29 of 2019 12 the petitioner is suffering from "Psoriasis Vulgaris." A perusal of all these records will clearly show that the authorities were aware of the nature of the disease suffered by the petitioner and the severity of the same. The applicant/petitioner was absent from duty after 18-08- 1999 though he has intimated the authorities by way of telegram and by forwarding medical certificate by registered post requesting for medical leave. It is true that the applicant /petitioner did not submit a leave application in the prescribed proforma and therefore technically he can be considered to be unauthorisedly absent from duty but his absence from duty cannot be said to be without sufficient cause in as much as he was suffering from a serious ailment at the relevant point of time even going by the records maintained by the railway authorities. The finding of the Tribunal that the imposition of a serious punishment of removal from service is not justifiable is only reasonable, in view of the facts and circumstances enumerated above.
4. It is the specific contention of the applicant/petitioner that that though disciplinary proceedings were initiated, he was not communicated/intimated about the dismissal from service, in as much as no order dismissing him from service was served on him.
O.P (CAT) Nos.328 of 2017 & 29 of 2019 13 The petitioner came to know about it only when his wife approached the authorities under the Right to Information Act seeking information and it is only then penalty advice dated 03.09.2002 was served on him. The said penalty was challenged by the petitioner by filing O.A.No.8 of 2011 which was disposed of as per Annexure A2 order and paragraphs 4 and 6 of the same reads as follows:
4. In the rejoinder statement, the applicant submitted that the respondents are fully aware of the address of the applicant. The name of the place of the residence of the applicant is Oottukuzhy and not 'Oottukulmy'. Even in Annexure-R1 acknowledgement produced by the respondents, the name of place of residence was written as Oottukuzhy after making an overwriting as 'kulmy'. The unnoticeable mistakes in the address of the addressee in the acknowledgement card will not stand proof for service of the Registered post if in the postal cover the address is written correctly to identify the place. The applicant has not received any letter addressed to him in the postal cover showing the place of residence as Oottukulmy. There is no case that any communication addressed to the applicant in his place of residence 'Oottukuzhy' was returned unclaimed or refused. The applicant has got no case that the enquiry report and enquiry proceedings were not sent to him and that he has not received the same. The applicant's case is that nothing further was heard from the department. The applicant requested for reinstatement in service after he became medically fit to rejoin duty.
6. All the grounds raised by the applicant in this O.A deserve consideration in the first instance by the Appellate Authority. At this stage, we are not inclined to go into the merits of the case of the applicant. The applicant has to exhaust all the remedies available to him under the service rules before approaching this Tribunal for redressal of grievance as per Rule 20 of the Administrative Tribunal's Act, 1985. The applicant is unable to file an appeal against the order of his removal from service as he has not been served with the penalty advice. The applicant is having a copy of the penalty advice obtained under the RTI Act. We direct the applicant to deem the copy of the penalty advice received by him under the RTI Act as the penalty advice served upon him as per Rules on the date of receipt of a copy of this order. On this basis, he should file an appeal before the Appellate Authority, who in turn should dispose of the same by a speaking order after duly considering all grounds raised by the applicant O.P (CAT) Nos.328 of 2017 & 29 of 2019 14 within 60 days of the receipt of the appeal.
Therefore, there is a finding by the Tribunal in the earlier round of litigation that there is some mistake in the address written on the postal cover and that there is no case that any communication addressed to the applicant at his place of residence "oottukuzhy" was returned unclaimed or refused and that there is a finding in Annexure A2 order of the Tribunal that applicant is unable to file an appeal against the order of his removal from service as he has not been served with a penalty order. The Tribunal after considering the various contentions raised by the petitioner as well as the Railways found that the petitioner could not file an appeal against the order of dismissal from service as he was not served with penalty advice.In this context, the contention taken in the present case should also be examined. A perusal of enclosure No.13 produced along with Annexure-A3 appeal on page 78 of the paper book will show that the penalty advice was served on the petitioner only on 14.09.2010 and therefore the same could be treated to have been served on the petitioner only on 14.09.2010. Going by Rule 12 of the Railway Servants (Discipline and Appeal) Rules 1968 the order made by the disciplinary authority which would also contain its finding on each article of charge, shall be communicated to the railway servant. Rule O.P (CAT) Nos.328 of 2017 & 29 of 2019 15 26 further mandates that every order, notice and other process made or issued under these Rules shall be served in person on the railway servant concerned or communicated to him by registered post. The specific case of the applicant/petitioner is that the order imposing penalty was not served on him and he came to know about the same only when he obtained the same under the Right to Information Act. The Railway authorities in their reply affidavit answered the said contention on the strength of the Railway Board's letter Nos. E (D&A) RG 6-29 dated 17.11.1970 and 19.11.1971 which mandates the service of such notices/orders on the employees through personal service, postal service, or by substituted service. As per the said Board orders, substituted service by affixture in the notice board could be initiated by the Railways in case the railway servant concerned does not accept the order/notice and the same is returned undelivered by the postal authorities with an endorsement that such addressee is not found or has refused to accept, etc. In the present case the contention of the Railway authorities is that though the order was served through registered post, the same was returned undelivered. Even as per the contention taken in paragraph 16 of the reply statement the copy of the order sent to the applicant through registered post was returned with unclear remarks and therefore it O.P (CAT) Nos.328 of 2017 & 29 of 2019 16 could be presumed that the reason for the return of the postal article is not discernible. Even going by the aforesaid railway board letters regarding service of notice/orders, notice by substituted service could be invoked by the authorities only in a case where the notice sent by registered post has been returned with an endorsement that the addressee is not found or has refused to accept the notice, etc. The specific finding in Annexure A2 order of the Tribunal regarding the service of notice etc. has become final and therefore it has to be held that even though the penalty advice is dated 03.09.2002 the same could be treated to have served on the applicant/petitioner only on 14.09.2010. It is settled law that the mere passing of the order of dismissal/removal from service is not effective unless it is published and communicated to the officer concerned and therefore, an order of removal from service will take effect only after it is communicated to the petitioner. The Apex Court in State of Punjab v. Amar Singh Harika [AIR 1966 SCC 1313] has held mere passing of an order of dismissal is not effective unless it is published and communicated to the officer concerned. The said view taken by the Apex Court in Amar Singh Harika case supra has been followed in Union of India and Others v. Dinanath Shantaram Karekar and Others [(1998) 7 SCC 569] and Dulu Devi v. O.P (CAT) Nos.328 of 2017 & 29 of 2019 17 State of Assam and Others [(2016) 1 SCC 622] reiterating that passing an order of dismissal or termination would not be effective unless it is published and communicated to the employee concerned. In the light of the above, we find considerable force in the contention of the applicant/petitioner that he is deemed to have been removed from service only w.e.f. 14.9.2010 when Annexure-A1 order of removal from service was obtained by him under the Right to Information Act..
5. A specific contention was taken by the Railways that the Tribunal went wrong in remitting the matter back to the Appellate Authority so as to impose a lesser penalty on a specific finding that the applicant has been dismissed from the service may not be justifiable in as much as Annexure A1 order of penalty was only one removing the petitioner from service and not a case of dismissal. A perusal of the order passed by the Tribunal will show that what has been meant by the Tribunal while using the word dismissal from service is only removal from service as ordered in Annexure A1 order of penalty and the Tribunal wanted the Appellate Authority to reconsider the matter regarding the imposition of a lesser penalty. Therefore, we are of the view that the Railways cannot harp much upon the word dismissal used by the Tribunal in the order to contend O.P (CAT) Nos.328 of 2017 & 29 of 2019 18 that the Tribunal went wrong in directing the Appellate Authority to consider the imposition of a lesser penalty without taking into consideration that a lesser penalty has been imposed by the Railways.
6. During the course of the hearing, taking into consideration the serious nature of the illness suffered by the applicant and the fact that he has crossed the age of superannuation, and also taking into consideration the fact that the petitioner is not served with the order of termination dated 03.09.2002 and the same was served on him only on 14.09.2010 when applied under the Right to Information Act, this Court to put a quietus to the issue, specifically queried with the learned Senior counsel appearing for the Railways as to whether the applicant could be imposed with a lesser major penalty like compulsory retirement, etc. To the said request, a written reply received from the Railways dated 29.03.2022 was placed for our perusal in which it was specifically stated that as the applicant/petitioner has only 8 years, 7 months, and 26 days of qualifying service he cannot be imposed a lesser major penalty of compulsory retirement as he has no sufficient period of qualifying service of 10 years so as to make him entitled for pension.
7. We have already found that the allegation on which O.P (CAT) Nos.328 of 2017 & 29 of 2019 19 disciplinary proceedings were initiated was regarding alleged unauthorized absence from 19.08.1999. It is a fact that from 17.06.1997 the petitioner was absent from duty due to the serious nature of his illness. Even though the petitioner reported before the Divisional Medical Officer, Kannur on 14.08.1999, he was granted sick leave only up to 18.08.1999, and as the petitioner was undergoing treatment at Govt. Ayurveda Hospital, Thiruvananthapuram, he could not rejoin duty. He intimated the fact and requested for grant of leave through a Telegram sent on 18.08.1999 followed by the submission of a medical certificate dated 18.08.1999. But the respondent Railways did not take a decision on the same and the absence of the petitioner was treated as unauthorized and thereafter disciplinary proceedings were initiated alleging that he is unauthorizedly absent from 19.08.1999. It is a fact that the absence of the petitioner from duty was due to the serious nature of his illness and the fact that he was suffering from such a serious kind of illness which even caused a social stigma, was very well known to the Railway authorities. On a perusal of the medical records maintained by the Railways hospital itself which is evident from the document produced as Enclosure No. 2 in Annexure A3 in page 61 of the paper book, it could be seen that the Railways doctor O.P (CAT) Nos.328 of 2017 & 29 of 2019 20 itself has made an endorsement that the petitioner is suffering from "Psoriasis Vulgaris". It is common knowledge that the said disease is a particular dermatological condition the effect of which is not just limited to the skin but can produce systemic effects and be associated with many comorbidities like psoriatic arthritis, cardiovascular disorders, diabetes mellitus, etc. and the said disease significantly deteriorates the quality of life. The disease is normally a cause of depression and other psychological problems and patient with psoriasis are stigmatized by people around them and this result in social exclusion of patients with psoriasis. The patients normally tend to avoid others, limit their social relations, abandon their work, and eventually completely alienate themselves from society. So these physical, social, and psychological aspects relating to the said disease ought to have been properly considered by the authorities while imposing a harsh punishment like removal from service.
8. The Tribunal interfered with Exhibit P3 order only with regard to the proportionality of the punishment in as much as it directed the Appellate Authority to reconsider imposing a lesser penalty on a finding that the applicant/petitioner was suffering from a serious nature of illness during the relevant period. The Tribunal O.P (CAT) Nos.328 of 2017 & 29 of 2019 21 even though entered a finding that the punishment of removal from service is grossly disproportionate to the allegations raised against the applicant specifically taking note of the illness suffered by him, did not substitute the punishment by itself but only directed the Appellate Authority to reconsider the case regarding the imposition of a lesser penalty. As stated earlier, the difficulties suffered by the applicant due to the serious nature of his illness and the stigma attached to the same ought to have been seriously considered by the authorities in the matter of awarding punishment since the same should be commensurate to the seriousness of the allegations. It is only in the said circumstance the Tribunal directed the Appellate Authority to reconsider the same. The direction rendered by the Tribunal in remitting the matter back to the authority concerned to consider the imposition of a lesser penalty cannot be found fault with and therefore we do not find any illegality in the said direction issued by the Tribunal in Exhibit P3 order.
9. Since the matter has been remitted back for considering whether a lesser penalty could be imposed on the petitioner, we should also take note of the submission of the Railways that since the petitioner/applicant has only 8 years, 7 months, and 26 days of service, he does not have the minimum qualifying service of 10 years O.P (CAT) Nos.328 of 2017 & 29 of 2019 22 for grant of minimum pension. In this context, it is pertinent to note that even though Annexure A1 order of penalty was issued as early as 03.09.2002, the same was served on the petitioner only on 14.09.2010 that too only when he applied under the Right to Information Act. The fact that Annexure A1 penalty order was not served on the petitioner is clearly found by the Tribunal in the earlier proceedings as is evident from Annexure A2 order in O.A. No. 8/2011, which has now become final and conclusive. It may be true that the Railways is right in saying the appellant has only 8 years 7 months and 26 days of service and therefore he does not have a minimum qualifying service of 10 years for grant of minimum pension and therefore the imposition of a lesser punishment of compulsory retirement will not be of any benefit to the applicant/petitioner. But we feel that it will be only appropriate that the Appellate Authority while reconsidering the matter as directed by the Tribunal, to impose a lesser penalty on the applicant/petitioner, take note of the fact that the order of penalty was not served on him till 14.09.2010 and therefore the said period from 03.09.2002 to 14.09.2010 should also be given due consideration while issuing revised orders as directed by the Tribunal. The Appellate Authority may consider whether at least a portion of the said period could be O.P (CAT) Nos.328 of 2017 & 29 of 2019 23 treated as duty so as to enable the petitioner/applicant to have a minimum qualifying service of 10 years, while the Appellate Authority takes a decision on the imposition of a lesser major penalty on the applicant/petitioner so that the option to impose a punishment of compulsory retirement from service with effect from the date of completion of ten years from the initial entry in service could be effectively considered. The Appellate Authority shall take a final decision in the matter after hearing the petitioner/applicant. The hearing should be conducted within a period of six weeks from the date of receipt of a copy of this judgment and final orders shall be issued within a further period of six weeks thereafter.
The directions issued by the Tribunal will stand modified and substituted as directed above. With the above-said observations and directions, both the Original Petitions are disposed of.
sd/-
ALEXANDER THOMAS, JUDGE sd/-
VIJU ABRAHAM, JUDGE
pm
O.P (CAT) Nos.328 of 2017 & 29 of 2019 24
APPENDIX OF OP (CAT) 328/2017
PETITIONER'S ANNEXURES:
ANNEXURE A1 A TRUE COPY OF THE ORDER DATED 3.9.2002.
A TRUE COPY OF THE ORDER OF THE HON'BLE
ANNEXURE A2 CENTRAL ADMINISTRATIVE TRIBUNAL IN OA
08/2011.
A TRUE COPY OF THE APPEAL SUBMITTED
ANNEXURE A3
BEFORE THE APPELLATE AUTHORITY.
A TRUE COPY OF THE ORDER DATED 11.7.2013
ANNEXURE A4
OF THE 2ND RESPONDENT DISMISSING APPEAL.
A TRUE COPY OF THE REVISION PETITION
ANNEXURE A5 DATGED 23.08.2013 CHALLENGING ANNEXURE A-
4 ORDER.
A TRUE COPY OF THE ENQUIRY REPORT OF THE
POSTMASTER MENTIONING THE DELIVERY OF THE
ANNEXURE A6
REVISION PETITION SENT BY REGISTERED POST
ON 26.8.2013.
A TRUE COPY OF THE ORDER DATED 17.8.2014
CONFIRMING THE ORDER OF THE APPELLATE
ANNEXURE A7
AUTHORITY AND DISMISSING ANNEXURE A-5
REVISION PETITION.
TRUE COPY OF PRIVATE MEDICAL CERTIFICATE
ANNEXURE R1
DATED 18.8.1999.
TRUE COPY OF PRIVATE MEDICAL CERTIFICATE
ANNEXURE R2
DATED 17.2.2000.
TRUE COPY OF PENALTY ADVICE DATED
ANNEXURE R3
3.9.2002.
TRUE COPY OF THE LETTER DATED 21.10.2002
ANNEXURE R4 COMMUNICATING THE DISPLAY OF THE PENALTY
ADVICE AT THE WORK SPOT.
TRUE COPY OF THE LETTER DATED 3.5.2002
ANNEXURE R5
ISSUED BY THE POSTAL DEPARTMENT.
O.P (CAT) Nos.328 of 2017 & 29 of 2019 25
TRUE COPY OF THE LETTER DATED 11.11.2009
ANNEXURE R6
OF THE APPLICANT.
TRUE COPY OF THE POSTAL COVER RETURNED
ANNEXURE R7
UNDELIVERED.
TRUE COPY OF ANNEXURE A-1 UNDER RULE 511
ANNEXURE R8
OF THE IREC VOL.I.
TRUE COPY OF THE LETTER DATED 13.12.2001
ANNEXURE R9
FORWARDING ENQUIRY REPORT.
A TRUE COPY OF THE ORIGINAL APPLICATION
EXHIBIT P1
NO.180/00096/2014.
A TRUE COPY OF THE REPLY STATEMENT IN THE
EXHIBIT P2
AMENDED OA 96/2014.
A TRUE COPY OF THE ORDER DATED 03.04.2017
EXHIBIT P3
IN THE OA NO.96/2014.
RESPONDENTS' EXHIBITS
TRUE COPY OF THE PROCEEDINGS OF THE DAR
EXHIBIT-R1(A) CASE AGAINST THE RESPONDENT DATED
24/11/2000
TRUE COPY OF THE ENQUIRY REPORT CONDUCTED
EXHIBIT-R1(B)
BY K.BABU RAJAN
TRUE COPY OF THE PROCEEDINGS OF THE DAR
EXHIBIT R1(a) CASE AGAINST THE RESPONDENT DATED
24.11.2000.
TRUE COPY OF THE ENQUIRY REPORT CONDUCTED
EXHIBIT R1(b)
BY K.BABU RAJAN.
O.P (CAT) Nos.328 of 2017 & 29 of 2019 26
APPENDIX OF OP (CAT) 29/2019
PETITIONER'S ANNEXURES:
ANNEXURE A1 A TRUE COPY OF THE ORDER DATED 3.9.2002.
A TRUE COPY OF THE ORDER OF THE HON'BLE
ANNEXURE A2 CENTRAL ADMINISTRATIVE TRIBUNAL IN OA
08/2011.
A TRUE COPY OF THE APPEAL SUBMITTED
ANNEXURE A3
BEFORE THE APPELLATE AUTHORITY.
A TRUE COPY OF THE ORDER DATED 11.7.2013
ANNEXURE A4
OF THE 2ND RESPONDENT DISMISSING APPEAL.
A TRUE COPY OF THE REVISION PETITION
ANNEXURE A5 DATGED 23.08.2013 CHALLENGING ANNEXURE A-
4 ORDER.
A TRUE COPY OF THE ENQUIRY REPORT OF THE
POSTMASTER MENTIONING THE DELIVERY OF THE
ANNEXURE A6
REVISION PETITION SENT BY REGISTERED POST
ON 26.8.2013.
A TRUE COPY OF THE ORDER DATED 17.8.2014
CONFIRMING THE ORDER OF THE APPELLATE
ANNEXURE A7
AUTHORITY AND DISMISSING ANNEXURE A-5
REVISION PETITION.
TRUE COPY OF PRIVATE MEDICAL CERTIFICATE
ANNEXURE R1
DATED 18.8.1999.
TRUE COPY OF PRIVATE MEDICAL CERTIFICATE
ANNEXURE R2
DATED 17.2.2000.
TRUE COPY OF PENALTY ADVICE DATED
ANNEXURE R3
3.9.2002.
TRUE COPY OF THE LETTER DATED 21.10.2002
ANNEXURE R4 COMMUNICATING THE DISPLAY OF THE PENALTY
ADVICE AT THE WORK SPOT.
ANNEXURE R5 TRUE COPY OF THE LETTER DATED 3.5.2002
O.P (CAT) Nos.328 of 2017 & 29 of 2019 27
ISSUED BY THE POSTAL DEPARTMENT.
TRUE COPY OF THE LETTER DATED 11.11.2009
ANNEXURE R6
OF THE APPLICANT.
TRUE COPY OF THE POSTAL COVER RETURNED
ANNEXURE R7
UNDELIVERED.
TRUE COPY OF ANNEXURE A-1 UNDER RULE 511
ANNEXURE R8
OF THE IREC VOL.I.
TRUE COPY OF THE LETTER DATED 13.12.2001
ANNEXURE R9
FORWARDING ENQUIRY REPORT.
A TRUE COPY OF THE ORIGINAL APPLICATION
EXHIBIT P1
NO.180/00096/2014.
A TRUE COPY OF THE REPLY STATEMENT IN THE
EXHIBIT P2
AMENDED OA 96/2014.
A TRUE COPY OF THE ORDER DATED 03.04.2017
EXHIBIT P3
IN THE OA NO.96/2014.
RESPONDENTS' EXHIBITS:
TRUE COPY OF THE PROCEEDINGS OF THE DAR
EXHIBIT-R1(A) CASE AGAINST THE RESPONDENT DATED
24/11/2000
TRUE COPY OF THE ENQUIRY REPORT CONDUCTED
EXHIBIT-R1(B)
BY K.BABU RAJAN
TRUE COPY OF THE PROCEEDINGS OF THE DAR
EXHIBIT R1(a) CASE AGAINST THE RESPONDENT DATED
24.11.2000.
TRUE COPY OF THE ENQUIRY REPORT CONDUCTED
EXHIBIT R1(b)
BY K.BABU RAJAN.