Shri. Liyakat Ali Shaikh vs Union Of India & Ors.

It has been submitted that his marriage was solemnized on 12.11.2006 and he was staying with his widowed mother, who is in her late stage of age and she needs regular treatment and care.

It has been submitted that his daughter was born on Central Administrative Tribunal^{19.02.2009. She was diagnosed with Spastic Cerebral Palsy} (Spastic Diplegia).

In the year 2014, his family life got disturbed due to differences between him and his wife on the petty issues. It has been submitted that wife of the applicant has left his place of residence and further filed the settlement and divorce suit against the applicant for the alimony in the Family Court at Ahmedabad before the Hon’ble The Principal Judge, Family Court No. 01, Ahmedabad, Gujarat and the applicant was issued a summon to appear before the Court for the day fixed on 26.06.2018 at Ahmedabad and thereon also regularly the wife of the applicant was called for one or another petty reasons at Ahmedabad (Annexure-A-7).

The applicant was removed from service vide impugned order dated 28.03.2018 for unauthorised absence. The applicant is also aggrieved by the denial of opportunity of being heard before the Inquiry Officer for defence statement/written statement. The applicant was not given any opportunity of being heard either at the time of imposition of article of charges or at the time of closing of enquiry proceedings/prior to imposition of penalty. Thus, there has been violation of principles of natural justice.

The applicant was not given an opportunity to appoint any defence counsel and production of documents and witnesses in his favour in the preliminary inquiry under Rule 15(a) of Master Circular No. 67 of Indian Railway Servants (Discipline & Appeal) Rules, 1968.

It has been submitted that during the inquiry, the evidence on behalf of the Disciplinary Authority has to be produced first and it would be incorrect to examine the applicant first, as it will be against the principles of natural justice but the Inquiry Officer has examined his evidences after the completion of preliminary hearing on the same day without knowledge and presence of the applicant which is in violation of the rules as laid down in the 15(e) of Master Circular No. 67 of Indian Railway Discipline and Appeal Rules.

It has been submitted that penalty of removal from service is very harsh and disproportionate to the misconduct committed by the applicant. The applicant has informed from time to time to the respondent’s authority for reason of his absence and he submitted various documents to support that he was suffering from family problems in respect of his wife, widowed mother and treatment of his crippled minor daughter and therefore, the Central Administrative Tribunal^{absence from duty was not a misconduct but it was due to} compelling reasons as it was intimated to the respondents from time to time.

It has been further submitted that due to unforeseen incidences, quarrelsome atmosphere and his family disputes, the applicant had gone into the moral depression and the applicant was not in condition to attend the duty and he was taking the medical treatment before the private medical practitioner near to his residence and the doctor has strictly advised to take complete rest and sleep and it is further submitted that the absence was not wilful but due to conditions of the applicant, he was not able to devote his duties efficiently due to his medical treatment.

It has been submitted that the Appellate Authority has reduced the penalty from “Removal from service with immediate effect” to “Reduction to one stage in same time scale for the period of three years with future effect” vide letter dated 17.09.2018 (Annexure-A-8). Therefore, it is unfair on the part of the respondents that the order of the Appellate Authority was not intimated to the applicant.

It has been further submitted that the respondents have neither intimated to the applicant nor he received any acknowledgement that the appeal of the applicant has been considered and he has been reinstated in the railway services, which is intentional in nature on the part of the respondents’ authorities and against the natural justice.

The applicant was under impression that his appeal has not been considered, as the applicant has not received any documents in that regard. The applicant tried to enter into the premises on many occasions in the office but the security person (RPF) has not allowed him to go inside the office as he had no valid ticket to enter into the premises and when the applicant was described all the details of the applicant of appeal to the security, they simply replied that the intimation will be given through the postal department whether appeal has been accepted or rejected.

It has been submitted that due to no information/intimation from the respondents, the applicant had no knowledge that the applicants appeal has been considered by the Appellate Authority and he was reinstated into the railway services.

It has been submitted that the applicant was never given an opportunity to represent his case for non-reporting to the duty prior to the passing of imposition of penalty of removal from service of the impugned order dated 22.08.2019 by the Reviewing Authority, which is totally unjust and unfair on the part of the applicant. The respondents have violated the Rule 25-A of the Railway Servant Disciplinary and Appeal Rules, 1968 which provides that the President may at any time either on his own motion or otherwise review any order passed under these rules when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case has come or has been brought to his notice.

It has been submitted that applicant approached the respondent no. 2 & 3 through legal notice vide letter dated 17.08.2020 but in the reply of the legal notice, the respondents have denied the representation and condition of the applicant. The copy of the legal notice has been annexed as Annexure-A-15 and reply of the respondents is annexed as Annexure-A-16.

The applicant has placed reliance on the judgment of Hon’ble Supreme Court in the case of Shri Bhagwanlal Arya vs. Commissioner of Police, Delhi & Ors. 2004 SCC (L&S) 661 and the judgment of Hon’ble High Court of Madhya Pradesh (reported judgment of Hon’ble High Court of Calcutta in the case of Director (Inspection & quality Control) Export Inspection Council of India & Ors. vs. Kalyan Kumar Mitra & Ors. 1987 (2) CLJ 344.

It has been submitted that the Senior Section Engineer of CR Shop Parel under whom the applicant was working vide letter No. CR/PL/E308/0443/UNA/17 dated 05/04/2017 has reported along with all supportive documents that the applicant was unauthorisedly absent from 16/02/2017. After repeated letters from his section in-charge he has reported for duty on 27/03/2017 (BN) and absconded from duty from the same day and did not report back till the date the report made by the SSE vide letter dated 05/04/2017.

It has been further submitted that based on the report, the Disciplinary Authority issued memorandum of charges vide No. E 308/CW/LA/0443/29/2017 dated 24/05/2017, the charges have been framed as per Rule 9 of Railway Servants (Discipline and Appeal Rules, 1968). Further as per Rule 9 (2) of Railway Servants (Discipline and Appeal Rules, 1968) Inquiry Officer is Central Administrative Tribunal^{appointed vide order No. E308/CW/LA/0443/29/17 dated} 13/07/2017. Since the applicant was absent from duty, the letters by Inquiry officer to the applicant have been sent frequently asking him to appear for preliminary enquiry scheduled on 16/08/2017, 08/09/2017, 22/09/2017 and 06/10/2017. Since all these letters sent to the applicant at the address of Railway Quarter in his possession have been returned undelivered with the reasons unclaimed, a Welfare Inspector was nominated to handover the letter to the applicant. The Chief Welfare Inspector vide his report dated 04/10/2017 handed over the letter and obtained acknowledgement from the applicant.

Further, as per Inquiry Report dated 17/10/2017 submitted by the Inquiry Officer, it is revealed that the applicant appeared before Inquiry Officer for preliminary enquiry and demanded the copies of memorandum through which the charges were framed against him, the same have been provided. Later, the applicant appeared for enquiry on 11/10/2017 and submitted his statement that due to domestic problem he remained absent and did not inform to the respective authorities. The applicant also assured in his statement that he will attend duty punctually and never remain absent. As per rule No. 9(2) of Railway Servants (Discipline and Appeal Rules 1968), the Inquiry Report was sent to the applicant vide letter dated 01/11/2017, duly allowing 15 days’ time to represent against the report if not agreed to the Inquiry report. This has been acknowledged by the applicant on 11/11/2017. Since no representation is made by the applicant the Disciplinary Authority after going through the Inquiry Report, imposed penalty of Removal from service with immediate effect under rule 6 of Railway Servants (Discipline and Appeal Rules 1968) vide NIP letter dated 14/02/2018 and notified the same vide letter dated 28/03/2018.

It has been submitted that the applicant made an appeal vide application dated 22/06/2018. Although the grounds for remaining absent submitted by the applicant were fully domestic and personal, however, the appellate authority by considering his request and giving a chance to improve by exercising his power in terms of rule 22(2) of Railway Servants (Discipline and Appeal Rules 1968) have reduced the penalty to reduction to one stage lower for three years in time scale of pay with future effect vide letter dated 17/09/2018. The applicant is given reinstatement in Railway Service with effect from the issue of the letter. The said letter has been sent to the address of railway quarter in possession of applicant, however, neither the letter received undelivered nor acknowledgement is received to the office of respondents. It is learnt that the applicant has visited several times to his work place and his fellow staff. He cannot deny that he was not aware of his reinstatement in service. During his visit he rather than approaching to the DAR section for knowing the status of case and reporting duty he used to wonder in workshop place and returned back. He has submitted an application thorough Adv. Shri Ramesh S. Dubey dated 25/04/2019 stating his family issue and dispute with his wife and his unstable mental condition as a reason for not reporting to duty, this letter itself is an acknowledgement of his awareness that he has been given reinstatement in service.

Since, the applicant neither joined duty nor submitted any documents regarding his ailment and he also failed to report to any of the Railway Medical authorities where all medical facilities are available free of cost to the railway employees as such the authenticity of his medical problems cannot be established. It is revealed that the applicant is in habit of absenting from duty and not at all interested in Railway Service. The Reviewing Authority Central Administrative Tribunal^{after going through every aspect of the case has decided to revise} the penalty imposed and awarded to "Removal from Railway Service" with immediate effect vide letter dated effect communicated to the applicant on 22/08/2019 through registered post AD and subsequently office order dated 22.08.2019 was issued and the same has been acknowledged by the applicant. Reviewing Authority has exercised the power in terms of As per rule No. 25(IV) (b)(a) of Railway Servants (Discipline and Appeal Rules 1968).

It has been further submitted that in terms of Railway Servants (Discipline and Appeal Rules 1968) all procedure has been carried out within framed rules and penalty has been imposed. It is needless to mention that the family dispute is not acceptable reason to remain absent from duty. Further, regarding medical problems of self and family of employee, Railway has health units and two hospitals at WR and CR with all kind of facilities free of cost. It is seen that the applicant has never approached to the Railway medical authority at any time for his medical issues. The authenticity of medical problems is needed to be certified by the Railway Medical authority which has never got done by the applicant

Central Administrative Tribunal^{3.7 It has been submitted that the allegations made by the} applicant that the security person (RPF) did not allow him to come inside is baseless and without any evidence, a railway servant possessing Railway ID card are never restricted to enter in the Railway Workshop. It is learnt from his fellow staff that he used to visit workplace frequently but did not contact to the respective authority for any doubt if he needed clarification nor worried about reporting duty.

It has been submitted that the no documents of family disputes of the applicant before Hon'ble Principal Judge, Family Court at Ahmedabad exist on railway record. The family dispute issue quoted by the applicant is totally personal, Railway has no authority to get involved in family dispute of any railway employee. The penalty is imposed on the applicant is for unauthorised absent. The family issue of the applicant reveal that he is irresponsible person towards his social life also. The letters dated 25.04.2019, 14.11.2019, 06.02.2020 submitted by the applicant have been taken into account before finalising the DAR proceedings.

The respondents state that it can be seen that the copy of letter dated 17/09/2018 has been served to all concerned section Central Administrative Tribunal^{and also to the applicantthrough registered post AD. The said} letter is neither returned undelivered nor acknowledgement is received back to this office, however, the applicant is aware of the said action from his fellow staff during his several visit to the workshop. At every stage in the petition, the applicant has presented false picture and tried to escape from his deliberated negligence duly posing himself innocent and helpless where as his application submitted through Adv. Shri Ramesh S. Dubey dated 25/04/2019, duly stating his family issue and dispute with his wife and his unstable mental condition as a reason for not reporting to duty, itself is an acknowledgement of his awareness.

It has been submitted that the applicant’s representations dated 14.11.2019 and 06.02.2020 cannot be considered at this level, since the successive Revision is not permitted once the review (now revision) has been done by any of the authorities under rule 25, no further review (now revision) lies to any of the authorities. However, the applicant has a right under Rule 31 to submit the petition to the President of India. The ratio of the judgements referred to and relied upon by the applicants are not applicable to the facts and circumstances of the present case. It is clear that those judgements are distinguishable and not relevant to the controversy involved in the present case and as such no help to the applicant. The applicant after acknowledgement of letter dated 24.05.2017 and other relevant documents did not submit any written request that he has appointed any one for his defence.

It has been further submitted that the applicant has never been forced to answer any question against his will during the Inquiry nor forced to sign his statement under any influence. Looking into the past record of remaining absent habitually by the applicant, the charges for unauthorised absent has been framed against him. The departmental enquiry has been conducted within the four corners of rules of Railway Servants (Discipline and Appeal Rules 1968). The medical report unless not authenticate by the Railway Medical officer cannot be considered as document of evidence. The unauthorised absent was wilful, it can be established from the past absentee track record of applicant.

It has been submitted that all procedure in the case of applicant has been carried out and completed as per the rules framed under Railway Servants (Discipline and Appeal Rules 1968) as such the penalty imposed on the applicant after all Central Administrative Tribunal^{provisions of defence and representation has been exercised by} him stands good. No comments to be offered.

It has been submitted that the original cause of action arose on 22.08.2019. The successive representations do not extend the time limit for preferring OA before this Tribunal. The applicant has filed the O.A only in the month of December 2020 i.e., after a lapse of more than five months. The limitation period of one (1) year is provided as per section 21(1)(a) of Administrative Tribunal Act 1985. The O.A is also preferred without giving any justified reason or cause for delay in filing. Moreover, the applicant has not filed Miscellaneous Application for condonation of delay. The applicant is misguiding the Court that his O.A is filed within limitation. Hence, on this ground only the present O.A.is liable to be dismissed with costs.