Union Of India & Ors vs Jatashankar
2014 Latest Caselaw 2168 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    W.P.(C) No.2053/2014 & Cav.No.291/2014 & CM Nos.4301-
     4302/2014

                                            Date of Decision: 30th April, 2014
     UNION OF INDIA & ORS                                    ..... Petitioners
                   Through                  Mr.+Jitendra Kumar Singh, Adv.

                                versus

     JATASHANKAR                                             ..... Respondent

                                Through     Mr.A.K. Bhakta, Adv.

     CORAM:
     HON'BLE MS. JUSTICE GITA MITTAL
     HON'BLE MS. JUSTICE DEEPA SHARMA

     GITA MITTAL, J (Oral)

     Cav.No.291/2014

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

     discharged.

     WP (C) No.2053/2014

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

respondent stopped attending his duties w.e.f. 31 st 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 16 th

January, 2003 was also returned undelivered with the same remark as

before. The respondent again pasted copy of the inquiry report on 4 th

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 16 th 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 9 th 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 16 th 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 10 th

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 3 rd

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.

16. The Tribunal has placed reliance on Section 108 of the Indian

Evidence Act, 1872 to point out that the petitioners could have drawn a

presumption against the respondent only after passage of seven years

after he had gone missing.

17. The Tribunal has also faulted the inquiry proceedings and held that

the same was not in accordance with Rule 18 of the Railway Servants

(Disciplinary & Appeal) Rules, 1968 and that there was no evidence

brought on record against the respondent. Despite two listed documents

and four listed witnesses, no evidence was recorded by the petitioner.

Reliance has been placed on the pronouncement of the Supreme Court in

1994 (2) SCC 416 Dr. Ramesh Chandra Tyagi Vs. Union of India that

an ex parte inquiry held without sending the notice properly is an invalid

inquiry.

18. Nothing has been pointed out to us which would enable us to take a

view which is contrary to the view taken by the Tribunal. We find no

infirmity in the order passed by the Tribunal quashing the order dated 2 nd

February, 2011; the inquiry officer's report dated 2nd November, 2002;

the Disciplinary Authority's order dated 16th April, 2003; the Appellate

Authority's order dated 24th July, 2010 and the revisional authority's

order dated 2nd February, 2011. The writ petition is therefore dismissed.

19. Detailed directions have been made in para 15 of the impugned

order which notes that the respondent's wife brought to him to the

petitioners on 27th April, 2006 and requested them to conduct medical

treatment. The Tribunal has directed that in view of the quashing of the

order of the removal from service, the respondent shall be deemed to

have re-joined duties on 8th January, 2010 when OA No.182 of 2010 was

filed and be paid his emoluments with effect from the same date. The

petitioner shall abide by the time bound directions within the period

stipulated.

20. Learned counsel for the petitioners has contended that it was the

respondent's stand that he was unwell. Medical prescriptions placed on

record show that the respondent was under heavy neurological

medication. Without commenting on the authenticity thereof, the

petitioners would be entitled to subject the respondent to a medical

examination.

This writ petition is disposed of in the above terms.

CM No.4301/2014

21. In view of the order passed in the writ petition, this application

does not survive.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE APRIL 30, 2014 aa