Union of India & Others v. G. Suresh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 23RD DAY OF MAY 2017/2ND JYAISHTA, 1939** **OP (CAT).No. 594 of 2011 (Z)** **-----------------------------** **AGAINST THE ORDER IN OA 401/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 08-11-2010** **PETITIONERS:** - **-------------** **1. UNION OF INDIA** **REPRESENTED BY THE GENERAL MANAGER,SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3.** **2. THE SENIOR DIVISIONAL OPERATIONS MANAGER SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT.** **3. THE ADDITIONAL DIVISIONAL RAILWAY MANAGER SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT.** **RESPONDENT:** - **--------------** **G.SURESH** **S/O.K.GOVINDAN, (RETIRED MAIL GUARD), SOUTHERN RAILWAY, PALGHAT, RESIDING AT KARUNGAD HOUSE, MARUTHA P.O., PALGHAT.** **R,R1 BY ADV. SRI.T.C.GOVINDA SWAMY R,R1 BY ADV. SMT.KALA T.GOPI R,R1 BY ADV. SRI.G.SHYAM RAJ R,R1 BY ADV. SMT.S.SYAMALA DEVI R,R BY ADV. SRI.C.S.DIAS,SC, RAILWAYS** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 23-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No. 594 of 2011 (Z)** **-----------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **-----------------------** **EXHIBIT P1. TRUE COPY OF THE OA NO.401/2009 ALONG WITH ANNEXURES OF CAT/ERNAKULAM.** **EXHIBIT P2. TRUE COPY OF THE REPLY STATEMENT ALONG WITH ANNEXURES IN OA NO.401/2009, CAT/ERNAKULAM.** **EXHIBIT P3. TRUE COPY OF THE ORDER DATED 8/11/2010 OF CAT/ERNAKULAM IN OA NO.401/2009.** **EXHIBIT P4. TRUE COPY OF THE RELEVANT PORTION OF SERVICE REGISTER OF THE APPLICANT.** **EXHIBIT P5. TRUE COPY OF THE RELEVANT PORTION OF THE MEDICAL ATTENDANCE RULES.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **ks.** **True copy** **P.S. To Judge** ## **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **============================== O.P.(CAT) No. 594 of 2011** **============================== Dated this the 23[rd] day of May, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The correctness and sustainability of the order passed by the Central Administrative Tribunal, whereby the compulsory retirement with reduction of gratuity and pension by 10% of the eligible benefits ordered by the Department has been intercepted directing to have the employee considered as voluntarily retired from the date of the appellate order is under challenge in this original petition filed by the employer/Railways. 2. The respondent was working as Male Guard in the OPCAT 594/2011 2 Palakkad Division of Southern Railways. It is stated that a chain of delinquencies were noted in connection with the service being rendered by the respondent and every time the employer was compelled to initiate disciplinary action against him. On proving the misconduct, appropriate punishment was also being imposed by way of Censure, Warning, Reduction in increment, Reduction of pay scale scale and also by Reversion. Eventhough seven separate instances were there, the indulgence shown by the Railways did not improve the conduct and the respondent continued the perpetual misconducts. 3. It was found that the respondent was unauthorisedly absent from 26.01.2007 to 14.03.2007 without submitting any leave application or getting any clearance or orders from the employer during this period. On 14.3.2007 the respondent sought to join duty by producing Annexures-R1 and R2 Medical Certificates and also Annexure-R3 fitness certificate. The version of the respondent was that he was OPCAT 594/2011 3 suffering from fever and also from liver cirrhosis and hence was not in a position to move about. It was further stated that the absence was sought to be communicated to the authorities and in particular, to an officer by name Rajagopalan, who was contacted through the daughter of the employee and the position was intimated to him at that time. On issuance of Annexure-A3 charge memo/show cause notice, reply was given as per Annexure-A4. As the explanation was not satisfactory, a domestic enquiry was conducted in tune with the relevant provisions of law. On conclusion of the enquiry, the Enquiry Officer found the delinquent employee guilty of the charges levelled against him. It was accepted by the Disciplinary Authority who passed Annexure-A1 order dated 12.6.2008 imposing the punishment of 'removal from service'. 4. On being aggrieved by the said order, the respondent moved the Appellate Authority by way of appeal. After analysing the facts and figures, the Appellate Authority OPCAT 594/2011 4 extended some leniency and modified the punishment as 'compulsory retirement' from service with eligibility to have 90% of the pension and gratuity. Though it was mentioned that the respondent employee was at liberty to prefer revision, no such exercise was pursued, who moved the Tribunal by filing O.A.No.401/2009 seeking to interdict Annexures-A1 and A2 orders and to grant all consequential benefits, treating him as having continued in the service. 5. The claim was resisted from the part of the Department by filing reply statement. It was contended by the Railways that the claimant was virtually a habitual offender. In terms of the delinquency noted on each occasion, the matter was proceeded against him and on proving the guilt, appropriate punishment was imposed, as many as on seven occasions. Despite the leniency shown, the conduct of the respondent did never improve and it was in the said circumstances, that the matter was finalised on the last occasion, by imposing the punishment OPCAT 594/2011 5 of removal from service, as per Annexure-A1, which was modified by the Appellate Authority vide Annexure-A2 into compulsory retirement with reduction of pension and gratuity by 10% of the full compensation. It was contended that no interference was warranted; more so, when there was clear violation of Rule 538 of Indian Railway Medical Manual (a copy of which is produced as Ext.P5); whereby it was required to submit a sick certificate from the competent Railway Doctor within 48 hours in the prescribed form. 6. After hearing both the sides, the Tribunal observed that there was force in the contention raised by the applicant to the effect that, if at all the medical certificate submitted by the employee was doubted by the Department, it was quite possible for the Department to have him re-examined by the Railway Medical Board or by such other competent authorities, to arrive at the truth. There was clear provision in the Indian Railway Medical Manual in this regard. Since such a course was not done by OPCAT 594/2011 6 the employer/Railways, it was never open for the Railways to shift the entire liability to the shoulders of the employee, finding him guilty and imposing the punishment. At the same time, the Tribunal held that, considering the entire facts and circumstances, it was not desirable to reinstate the applicant. It was in the said circumstances that a direction was issued to consider the applicant as voluntarily retired with effect from the date of the appellate order and to recalculate and disburse the terminal benefits and pension accordingly. This verdict is under challenge in this original petition. 7. During the course of hearing, Advocate Bindu, who addressed the Court on behalf of the Railways, submitted that misplaced sympathy has been extended by the Tribunal to the respondent without any regard to the course and events and also to the earlier instances of proven misconduct, which stand unrebutted. It was also pointed out that, there was clear violation of Rule 538 of Ext.P5 and OPCAT 594/2011 7 hence there is no point in saying that the Railways did not cause the applicant to be re-examined by the Railway Medical Board. 8. The learned counsel submits that such occasion would be resulted only if any medical certificate was produced at appropriate time while submitting the leave application to enable the Railways to cause re-examination of the respondent by the Medical Board, if the contents of the certificate were doubted. In the instant case, admittedly, the respondent was remaining absent for 47 days from 26.1.2007 till 14.3.2007. Eventhough a case was put forth by the respondent that the factum of absence was informed to the Railways; in particular, to an officer by name Rajagopalan and the said officer was examined as a defence witness, it has categorically deposed by the said witness that at no point of time, was he told about the absence of the respondent/delinquent employee. Thus as per the version given by the defence witness himself, it is OPCAT 594/2011 8 quite evident that the version sought to be projected was quite wrong in all sense. Learned counsel further points out that the medical certificates, i.e. Annexures R1 and R2 dated 26.1.2007 and 7.3.2007 were never produced before the Railways at any time before and were produced only on 14.3.2007 along with Annexure-R3 dated 14.3.2007 while certifying the 'fitness' to rejoin duty. Since the fitness certificate was also produced on 14.3.2007, i.e. the date on which he sought to rejoine, no purpose was to be served by causing the respondent to be re-examined by the Medical Board, to ascertain the genuineness of Annexures R1 and R2 issued on a prior date; as he was already certified fit in fit in all respects as on 14.3.2007. This being the position, the appreciation made by the Tribunal is not at all correct, submits the learned counsel. We find considerable force in the said submissions. 9. With regard to the course and events in connection with the service of the respondent, the various instances OPCAT 594/2011 9 when proceedings were initiated, proceeded and finalized have been given in paragraph 9 of Ext.P2 reply statement. For convenience of reference, we extract the relevant portion/table as given below: |**_Sl._**<br>**_No_**|**_Date of_**<br>**_charge_**<br>**_sheet_**|**_Charges_**|**_Punishment_**<br>**_Details_**| |---|---|---|---| |1.|19.06.01|Not turned up for duty in time to<br>work T.No.6322 which resulted<br>inordinate delay to passenger<br>train|Withholding<br>of<br>Privilege pass for<br>two years| |2.|24.07.01|-do-|CENSURED| |3|12/05/04|Unauthorised<br>absence<br>from<br>18.10.03, 24.10.03 and from<br>11.12.03 to 17.12.03.|Annual increment<br>withheld for two<br>years.| |4.|18.10.04|Not turned up for duty in time<br>and detained passenger Train|Withholding<br>of<br>Privilege pass for<br>oneyear| |5|12.11.04|-do-|Two<br>sets<br>of<br>privilege<br>passes<br>were withheld| |6.|20.02.05|Absence from 19.01.05 to<br>16.02.05|Reverted as goods<br>guard in scale<br>Rs.4500-7000 for<br>twoyears.| |7.|01.06.06|Not turned up for duty in time<br>and detained Passenger Train|Annual increment<br>withheld for one<br>year.| 10. The above seven instances of punishment imposed upon the respondent have not been rebutted by the OPCAT 594/2011 10 respondent. This by itself is a pointer to the fact that the major punishment of removal from service imposed initially as per Annexure-A1 and modified as per Annexure-A2 by way of 'compulsory retirement' with reduction of pension and gratuity by 10% of the full compensation was ordered by the departmental authorities as the last instance. On every occasion earlier, only minor penalties were imposed and only at the last instance, did the Railway Authorities find it fit and proper to impose the major punishment, after following the prescribed procedure as per the relevant Rules. The interference made by the Tribunal is mainly based on the insinuation made against the Railways for not causing any re-examination to be conducted by the Railway Medical Board, if genuineness of the medical certificates produced was doubted. But since we have already arrived at a finding that no purpose was to be served by such course, as no medical certificates were produced by the respondent while proceeding on leave or immediately OPCAT 594/2011 11 thereafter, but for producing them along with the fitness certificate, on the date of joining, the finding rendered by the Tribunal is liable to be set aside. We do so. 11. The next question is regarding the gravity of punishment in relation to the proven misconduct. As mentioned above, even the Tribunal found that the appellant was not liable to be reinstated, but was to be treated as voluntarily retired from service. It is a fact that the applicant was about 54 years of age at the time of passing the relevant orders and he was having a left over service of nearly 'six' years, to attain the age of superannuation at 60 years. The Appellate Authority vide Annexure-A2 has modified the punishment of removal from service by converting the same as compulsory retirement, plus reduction of pension and gratuity by 10% of the total compensation payable to him. The question is whether such a punishment, that is reduction of the pension and gratuity in addition to the punishment of compulsory retirement from OPCAT 594/2011 12 service, denying the left over 'six' years of service and the service benefits to the respondent is warranted or could it be regarded as a proper punishment or proportionate to the gravity of proven misconduct of unauthorised absence of 47 days? Our answer is an emphatic 'No'. 12. Learned counsel for the Railways submitted that a sympathetic view has already been taken by the authorities and as a matter of fact, in respect of wilful unauthorised absence, it was quite possible to inflict the punishment of 'dismissal', by virtue of the law declared by the Supreme Court in **State of Rajasthan and Another v. Mohd. Ayub Naz [(2006) 1 SCC 589].** Reliance is also sought to be placed on the verdict passed by the Supreme Court in **North-Eastern Karnataka RT Corpn. v. Ashappa [(2006)5 SCC 137].** We have gone through the said verdicts. In both the above cases, the unauthorised absence was for more than three years. In the former case, Rule 86(3)of the Rajasthan Service Rules clearly stipulated OPCAT 594/2011 13 that, if there was unauthorised absence of more than one month, removal of service was possible to be inflicted. In the said case, the unauthorised was was more than three years. The version of the employer was accepted and the verdict was passed accordingly. It does not apply as such, to the case in hand, as in the instant case, it is only for a period of 47 days. In the second case **[(2006) 5 SCC 137]** (supra)] also, the unauthorised absence was of more than three years. The punishment of dismissal was substituted by the Labour Court by lesser punishment of denial of back wages and continuity of service from the date of dismissal till the date of reinstatement was ordered invoking the power under Section 11(A) of the Industrial Disputes Act. The Award of the Labour Court was affirmed by the High Court, which was challenged before the Supreme Court. Noting the factual aspects and the sequence of events, the Award passed by the Labour Court, which was affirmed by the High Court, was set aside; in OPCAT 594/2011 14 turn allowing the appeal. 13. As mentioned already, in the instant case, unauthorised absence was only for a period of 47 days. But it also remains a fact, that it is not an isolated instance of misconduct and as many as on 'seven' occasions, the Department was constrained to proceed against the respondent by way of disciplinary proceedings, leading to different punishments imposed, as extracted already. Almost all the minor punishments by way of Censure, Warning, Withholding of Increment, Withholding of Privilege Pass etc. were imposed showing much indulgene. Still the conduct of the respondent was never improved. This being the position, this Court is of the firm view that - the Department was justified in passing Annexure A2 order imposing the punishment of 'compulsory retirement' which otherwise will only extend misplaced sympathy. 14. It has been declared by the Apex Court on many an occasion, that misplaced sympathy is an evil and as OPCAT 594/2011 15 such, imposition of appropriate punishment is necessary to maintain discipline and to keep the purity of service in all sense. At the same time, considering the fact that the misconduct involved had not resulted in any loss to the employer/Department and that 'six' years left over service was done away with, by sending the delinquent employee out by way of compulsory retirement, that by itself will be an adequate and proportionate punishment in relation to the proven misconduct i.e. unauthorised absence of 47 days. Further the punishment by way of reduction of pension and gratuity to an extent of 10% would have a cascading effect and if it is let to sustain, it will only be quite excessive. As such, we delete that portion of the penalty awarded in Annexure-A2 and sustain the rest by affirming 'compulsory retirement' from service. 15. Ext.P3 order passed by the Tribunal is partly modified to the said extent and the Original Petition is allowed in part. The eligible benefits, if any, pursuant to OPCAT 594/2011 16 the modification of Annexure-A2 order, shall be disbursed to the employee/respondent as early as possible, at any rate within three months from the date of receipt of a copy of this judgment. Sd/- ## **P.R. RAMACHANDRA MENON JUDGE** Sd/- **SHIRCY V. JUDGE** ks True copy P.S. To Judge