Jitendra Prasad, Son Of Chhotu Prasad, Cabin Master- BPO Uttar Madhya Railway, Bhaupur, R/O Village- Jamalpur, P.O. - (Pratappur) Kolbigha, District- Nalanda (Bihar State) vs Union Of India & Ors

Mohan Pyare, Member (A)

Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:

"(A) That this Hon'ble Tribunal may graciously be pleased to quash impugned orders dated 22/24.01.2013 & 24/25.03.2014 passed by respondent nos. 4 & 3 respectively and treat the applicant to be in active service from 22/24.01.2013 and to pay arrears of salary and other benefits.

(B) That this Hon'ble Tribunal may graciously be pleased to direct the respondents to reinstate the petitioner on service as usual so that justice may be done.

(C) Any other suitable order or direction which this Hon'ble Tribunal may deem fit and proper in the light of facts and circumstances of this instant case.

(D) And award cost of the present Original Application in favour of the applicant."

Brief facts of this case as narrated in the O.A. are that the applicant Jitendra Prasad was working on the post of Cabin Master BPO at Bhaupur and during his service period he fell seriously ill in the year 2010. During his illness he was under the care of a private doctor. The doctor issued a certificate of fitness on 15.02.2011. In this certificate he explained his disease viz.. Mental disability and gross weakness. The applicant, with the said certificate, presented himself before the respondent no.-5. The respondent no.-5 through a letter dated 29.03.2011 referred the matter of the applicant before Senior DMO/CNB (L) NCR. The Director Central Hospital Kanpur by his referral form referred him to the Department of Psychiatry. The doctor started his treatment and put him under his observation from 06.04.2011 to 25.04.2011 and discharged the applicant on 26.04.2011. In the meantime the applicant informed through letter dated 09.04.2011 to the respondent no.-5 that he has been referred from Railway Hospital to Lala Lajpat Rai Hospital Kanpur. Thereafter the applicant was referred to the Central Hospital New Delhi for which OPD slip was made by the applicant but all of sudden he fell ill at his residence. Then he started taking treatment of Dr. K.P. Sinha Nalanda. Not being fit, the applicant was unable to join his duty. In the sequence of his treatment the applicant went under the treatment of Dr. N.L. Chaudhary. Dr. N.L. Chaudhary issued a fitness certificate dated 15.03.2013. Thereafter the applicant again fell ill and was confined to bed, during this period the enquiry was going on against the applicant and, regarding this, a letter dated 25/30.10.2012 was sent to applicant along with enquiry report dated 16.10.2012 and the impugned order dated 22/24.01.2013 was passed by the Disciplinary Authority of Mandal Parichalan Prabandhak Allahabad, by which the applicant was removed from service. During the 45 days from date of receiving order dated 22/24.01.2013, the applicant was not physically and mentally fit to appear before the authority concerned and was not in the position to file the appeal within time before the authority concerned. Therefore he filed the delayed appeal before the authority concerned on 19.08.2013 with the prayer to condone the delay of the appeal and hear the appeal on merit and to quash the order dated 22/14.01.2013 passed by the authority concerned on the basis of ex-parte enquiry report dated 16.10.2012 and reinstate the applicant on his original post. Thereafter, when the appeal was not decided, the applicant filed Ο.Î'. No. -330/00277 of 2014 before this Tribunal which was disposed of on 01.04.2014 with a direction to the respondent no.-3 to decide the Appeal of Applicant as per rules within a period of three months from the date of receiving of the certified copy of the order. Prior to the order dated 01.04.2014 passed by the Tribunal, the Appellate Authority i.e. respondent no.-3 rejected the Appeal of the Applicant by his order dated 24/25.03.2014 saying that medical records are not annexed and sent it through registered post to the Applicant.

Learned counsel for the applicant argued that the medical records due to which the Applicant was absent from his duty and failed to file Appeal within time was annexed with the O.A. No.-330/00277 of 2014 which was received by the respondents' counsel before 05.03.2014 at the time of intial arguments of this case which means it was well known to the respondents why the Applicant failed to file the Appeal within time. Therefore without going into the merit, rejecting the appeal of the Applicant on the point of delay is frivolous and illegal. It is further submitted that without giving the opportunity of hearing, only on the ex-parte enquiry report, passing an order for termination of service of the applicant by the authority is against the natural justice and against the provision of Article 311 (2) enshrined in the Constitution of India. It is also mentioned that the applicant had informed by his letter dated 09.04.2011 to the respondent no.-5 that he is under the observation of the Hospital, thus, the ex-parte inquiry proceeding against the applicant is not sustainable in the eyes of law.

Submission of learned counsel for the respondents is that it is a case of unauthorized absenteeism of the applicant from 15.1.2010 and his leaving Bhaupur station Headquarters from 15.02.2011. Even though such an emergency arose which required immediate medical attention, then it was open to the applicant to first approach the place Bhaupur station where he was residing for medical treatment available nearest to applicant, but he decided to ignore the nearest facilities in Kanpur area for treatment and left his Headquarter's without any information and reached a place approximately 500 Kilometers away from Bhaupur station for treatment under a private doctor located in a remote area in Bihar. This clearly reflects that it was an intentional act of the applicant to abscond from duty. He submitted that Senior Divisional Medical Officer (Line) Kanpur on receipt letter dated 29.03.2011 (annexure A-2 to compilation No. 2 of the OA), referred the employee to Medical Director, Central Hospital New Delhi on 01.04.2011 for opinion regarding fitness since it was a case of prolonged absence for approximately more than one year. But the applicant in spite of being referred to Central Hospital New Delhi, did not went to Central Hospital as directed. It is submitted that the applicant was again admitted in Lala Lajpat Rai Hospital, Kanpur on 06.04.2011. In this way the applicant again failed to inform his In-Charge Officer or any other competent authority that he has been referred to Central Hospital, New Delhi, and was spared by Senior Divisional Medical Officer (Line) Kanpur on 01.04.2011 and to cover up his story, he annexed the details dated 09.04.2011of his treatment in Lala Lajpat Rai Hospital Kanpur, which is strongly denied for want of sufficient proof which applicant has failed to produce in the past. It is stated that the applicant has concocted a false story to mislead the Hon'ble Court that the OPD slips of Central Hospital New Delhi did not permit the applicant to join his duties. The respondents have denied the plea of the applicant and argued that the applicant did not go to Central Hospital New Delhi for the further treatment or fitness and in addition to this he left his Headquarter after being discharged from Lala Lajpat Rai Hospital Kanpur on 25.04.2011, in an unauthorized way for Nalanda and started taking treatment by a private doctor N.L.Chaudhary at Nalanda, only to mislead the Hon'ble Court by twisting the facts. It is further argued that the applicant in the past has claimed to be suffering from Psychiatric Problems, but in the instant case he has annexed the report of a Heart Doctor which puts to doubt the genuineness of his sickness.

Learned counsel for the respondents next submitted that the applicant failed to comply with Railway Doctor's advise, did not give proper information about absence and failed to acknowledge the notices time to time sent to him and also the chaspa notice to attend D&AR proceedings initiated against him. It is stated that the appellate authority after giving due consideration to the appeal dated 19.08.2013 preferred by the applicant and after examining all the records, upheld the punishment of removal from service imposed by the Disciplinary Authority, vide letter dated 24/25.03.2014 which was communicated to the applicant by registered post on 26.03.2014.

Learned counsel for the applicant placed reliance on the judgement of the Hon'ble Apex Court in the case of Krushnakant B. Parmar vs Union of India & Anr 2012 (2) Supreme 254 and judgement of the Jabalpur Bench of this Tribunal in the case of Dhanna vs M/O Railways in O.A./218/2019 decided on 20.01.2023 and argued that absence on medical ground is not unauthorised absence and if the allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding the absence will not amount to misconduct.

We have considered the rival submissions of learned counsel for the parties and perused the entire documents on record.

Hon'ble Supreme Court in the case of Krushnakant B. Parmar (supra) in para 17 has observed as under:

"17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc. but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant."

The undisputed fact about the applicant's state of health is that the applicant was unwell for which he was referred to the Central Hospital New Delhi by the competent medical authority. The applicant has annexed his medical prescriptions with this O.A. by some private doctor in Rajgir, Bihar. The applicant had not informed the respondents about his absence from January 2010 for which, when the applicant failed to respond to the notices sent to him, an ex parte enquiry was conducted and he was removed from service vide order dated 22/24.01.2013. The applicant filed an appeal against the aforesaid order on 19.08.2013 with a prayer to condone the delay and with the plea that he was not in a position to submit his suitable reply against the notice dated 25/30.10.2012 or even file the appeal in time. The applicant has submitted that he could only send a letter dated 18.02.2013 by registered post to the Station Superintendent Uttar Madhya Railway Bhaupur about his illness but by then the removal order had been passed.

If the applicant has not informed the authorities about his absence, the respondents were also not unaware about the sickness of the applicant. In such a situation, the respondents ought to have dealt with the matter sympathetically especially when the applicant had approached the authorities in appeal explaining his inability to communicate with the department due to his poor medical condition. The point of whether the absence was willful or not should have been taken into account while holding the applicant guilty of the misconduct of unauthorised absence in an ex-parte proceeding. In any case, since the applicant has now retired from service, no fruitful purpose will be served in remanding back the matter to the respondents for fresh action, we hereby quash the impugned punishment order dated 22/24.01.2013 as well as the appellate order dated 24/25.03.2014 and direct the respondents to pass a fresh order treating the applicant as compulsorily retired from service from the date he has been dismissed from service vide the impugned orders. All the consequential benefits including the arrears of pensionary benefits at the rate of 6% simple interest per annum should also be granted to the applicant within a period of four months from the date of receipt of a certified copy of this order.

Accordingly, the O.A. stands allowed. All associated Miscellaneous Applications also stand disposed of. No order as to costs.