Sunil Kumar Srivastava vs The Central Administrative Tribunal

By way of this petition, the petitioner has assailed the judgment and order of the Central Administrative Tribunal whereby tribunal has dismissed

the OA preferred by the petitioner.

The facts of the case are that the petitioner joined the Railway Service as a Khalasi on 16.11.1988. However, on 11.7.2003, he was suspended

alleging unauthorized leave from his duties without information and on the ground that he did not submit any medical certificate or application

regarding his willful absence from 18.6.2002 to 9.7.2002. The petitioner preferred an appeal before the appellate authority on 27.08.2003, which

was dismissed vide order dated 22.10.2003. He also preferred a revision petition on 17.12.2003, which was also dismissed by the revisional

authority vide order dated 7.1.2004. He also submitted a mercy appeal before the Chief Manager Workshop, Kota, on 9.2.2004, but the same

was not considered for the reason that the same should have been preferred before the president of India.

Counsel for the petitioner contended that respondents have not followed Annexure-6, the circular issued by the respondents wherein conditions

No. 1 to 7 reads as under:-

When an employee is remaining on unauthorised absence for more than 7 days without any intimation, a letter is to be issued to the employee

by the controlling officer by Reg. A.D. to his/her last known address directing him/her to report immediately with warning that absenting from duty

DAR action will be intiated.

Inspite of the above, if the employee is not resuming within fortnight, second reminder by the controlling officer by Reg. A.D. should be issued

stating that is he/she is filling to resume duties, DAR action will be initiate. This will ensure natural justice.

Even after this, if the employee is not comming for duties, minor penalty charges may be issued.

By giving reasonable apportunity, the chargesheet should be finalised the stipulated time.

Even minor penalty DAR action, if the employee is remaining absent for more than 3 months is initiated above, 23 letters should be issued to the

employee by Reg. A.D. by the controlling officers.

If the employee is not turning up for duties issuing of major penalty charge-sheet may be thought of.

In no case the employee should be allowed to remain absent indefinitely. The major penalty charge-sheet so issued should also finalised within

the stipulated time limit.

He has also taken us through the report wherein question no.2 reads as under:-

VERNACULAR MATTER OMITTED

He contended that inspite of the aforesaid, the tribunal has dismissed the OA and in support of this contention, he relied on the judgment of the

Supreme Court in the case U.P. State Bridge Corporation Ltd. vs. U.P. Rajya Setu Nigam S. Karamchari Sangh reported in (2004) 4 SCC 268,

wherein it has been held as under:-

In this case, the appellant- Corporation had issued two notices calling upon the workmen represented by the respondent to return to duty. The

workmen did not respond to either of the notices. As we have noted it was not pleaded that the advertisement did not sufficiently comply with the

principles of natural justice. The notice was issued giving an opportunity to the respondent to show cause why the presumption should not be

drawn under CSO L-2.12. The respondent did not show cause. In the circumstances, the Management drew the presumption in terms of the

CSO.

The respondent said that the notice was invalid because it did not otherwise comply with the CSO L-2.12 because of the shortening of the period

of absence. This was not an issue raised at any stage. In any event, we do not see how the notice is not in compliance with the Certified Standing

Orders as quoted earlier.

The final submission of the respondent was that the UPIDA provided for penalty after a departmental enquiry, in respect of the workman who may

have gone on illegal strike and, therefore, there could be no termination of services on account of illegal strike. The submission is unacceptable as

we have said there is no proof that the respondents were on strike at all. Besides, merely because the action is punishable does not mean that the

consequence of an unauthorized absence is not available under the Certified Standing Orders if it so specifically provides.

Counsel for the respondent has supported the order of the tribunal and contended that the tribunal was right in observing as under:-

The respondents have contested this OA and it was submitted that the applicant has availed adequate and proper opportunity to defend

himself prior to his dismissal from service. The applicant submitted his defence on 23.6.2003 and after consideration of the same, the applicant was

dismissed from service. Personal hearing was also provided to him at the time of revision petition. As such, there has been no violation of the

principles of natural justice by the respondents.

As regards the rules referred to by the applicant (Ann. A/6), the procedure under the rules is prescribed to be followed at the first instance of

unauthorized absence by an employee, but the applicant has been habitual absconder and accordingly he has been penalized 18 times for

unauthorized absence from the duty. At last, when the applicant could not improve his conduct, he was penalized with a major penalty after serving

proper charge-sheet upon him. A proper inquiry was conducted and the applicant was given full opportunity to defend himself. No medical

certificate was received by the controlling officer from the applicant regarding his unauthorized absence.

After hearing the learned counsel for the parties and perusal of the documents on record, it is observed that the proper procedure has been

followed in this case and the applicant was given full opportunity to defend himself. It is also observed that the applicant was let off in the past on

many occasions by the respondents with the basic indention that he may improve in future. The applicant was also punished several times in the

past and the respondents had shown leniency, but to no avail and the applicant continued his habit of unauthorized absence from the duty without

any intimation. Accordingly, this Tribunal observes that it is not a fit case deserving any intervention by the Tribunal, hence, this OA is dismissed

with no order as to costs.

We have heard counsel for the parties.

In this case, the petitioner was suspended in the year 1988 and right from 1991 all throughout, he has remained on unauthorized leave. For 18

times, the department has shown leniency. In our considered opinion, if discipline is required to be maintained in any Government Service, the view

taken by the tribunal is required to be appreciated.

Hence, the petition stands dismissed.