Kerala High Court
The Chief Commercial Manager/Ps vs Mohammed Ansari P.K on 13 May, 2022
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.
