IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WP(C).No. 27465 of 2005(S) -------------------------- OA.129/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF RAILWAYS, NEW DELHI. 2. THE CHAIRMAN, RAILWAY BOARD, RAILWAY BHAVAN, NEW DELHI. 3. THE CHIEF ROLLING STOCK ENGINEER, SOUTHERN RAILWAY, HEAD QUARTERS, PERSONNER BRANCH, CHENNAI. 4. THE ADDITIONAL DIVISIONAL RAILWAY MANAGER DIVISIONAL RAILWAY MANGER'S OFFICE, SOUTHERN RAILWAY, PERSONNEL BRANCH, MADRAS. 5. THE SENIOR DIVISIONAL MECHANICAL ENGINEER, DIVISIONAL OFFICE, SOUTHERN RAILWAY, MECHANICAL BRANCH, MADRAS. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENT(S): --------------- 1. C.SADASIVAN PILLAI, EX.C & 2 KHALSI, SOUTHERN RAILWAY DIVISIONAL OFFICE, MECHANICAL BRANCH,MADRAS.(RESIDING AT NEDIYATHU VADAKKETHIL THAZHAM WARD, EAST KALLADA P.O. KOLLAM 2. THE REGISTRAR, THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ADV. SRI.K.KARTHIKEYA PANICKER FOR R1 SMT.DAYA K. PANICKER FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WP(C) 27465/2005) PETITIONER'S EXTS. EXT.P1 TRUE COPY OF CHARGE MEMORANDUM DATED 10.8.1994 OF RAILWAYS TO 1ST RESPONDENT HEREIN. EXT.P2 TRUE COPY OF LETTER NO.RLY/1251/96 DATED 14.10.1996 OF SRI.K.K.PREMACHANDRAN, MEMBER OF PARLIAMENT TO RAILWAY. EXT.P3 TRUE COPY OF LETTER FROM 1ST RESPONDENT HEREIN TO 5TH PETITIONER HEREIN. EXT.P4 TRUE COPY OF SERVICE REGISTER/PARTICULARS OF SERVICE OF 1ST RESPONDENT HEREIN. EXT.P5 TRUE COPY OF O.A.NO. 129 OF 2004 FILED BY R1 HEREIN, BEFORE CAT/ERNAKULAM, ALONG WITH ANNEXURE A1 TO A4. EXT.P6 TRUE COPY OF REPLY STATEMENT OF RAILWAY IN O.A.129/2004 OF CAT, ALONG WITH ANNEXURES. EXT.P7 TRUE COPY OF REJOINDER DATED 29.6.2004 FILED BY R1 HEREIN IN O.A.129 OF 2004. EXT.P8 TRUE COPY OF ORDER DATED 5.7.2005 IN O.A.NO.129 OF 2004 OF CAT/ERNAKULAM. EXT.P9 TRUE COPY OF LETTER DATED 19.5.1994 OF R1. EXT.P10 TRUE COPY OF PARAGRAPHS/RULES 534 TO 542 OF INDIAN RAILWAYS MEDICAL MANUAL. EXT.P11 TRUE COPY OF APPEAL DATED 27.5.1997 OF R1. EXT.P12 TRUE COPY OF REVISION PETITION DATED 6.11.2002 OF R1. EXT.P13 TRUE COPY OF POSTAL A/D CARD BEARING SIGNATURE OF ADDRESS OF R1 WITH DATE 28.7.1997. EXT.P14 TRUE COPY OF APPELLATE ORDER DATED 23.7.1997 OF 4TH PETITIONER. EXT.P15 TRUE COPY OF LETTER DATED 4.7.1997 OF MEMBER OF PARLIAMENT TO 4TH PETITIONER. EXT.P16 TRUE COPY OF DUTY CERTIFICATE 19/5/1994 ISSUED BY SR.D.M.O TO RESPONDENT. RESPONDENT'S EXTS. EXT.R1 TRUE COPY OF THE DOCTORS' PRESCRIPTION DATED 2.2.1990 OF THE RAM X-RAYS AND BIOCHEMICAL LABORATORY, MADRAS. EXT.R1(a) TRUE COPY OF THE DOCTOR'S PRESCRIPTION DATED 7.10.1989 ISSUED BY MADRAS ISOTOPE LABORATORY AND RESEARCH CENTRE, MADRAS. EXT.R1(b) TRUE COPY OF THE CERTIFICATES DATED 28.10.1993 ISSUED BY THE DOCTOR OF JOEL HOSPITAL, KOLLAM. EXT.R1(c) TRUE COPY OF THE DOCTOR'S PRESCRIPTION DATED 15.10.1999 ISSUED BY HEALTH CENTRE, KIZHAKKE KALLADA, KOLLAM. EXT.R1(d) TRUE COPY OF THE BILL DATED 5.7.1997 ISSUED BY ASSISI ATONEMENT HOSPITAL, PERUMPUZHA. EXT.R1(e) TRUE COPY OF DOCTOR'S PRESCRIPTION DATED 14.3.2000 ISSUED BY SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, TRIVANDRUM. EXT.R1(f) TRUE COPY OF DOCTOR'S PRESCRIPTION DATED 19.12.2003 ISSUED BY DISTRICT HOSPITAL, KOLLAM. EXT.R1(g) TRUE COPY OF THE SCAN REPORT DATED 18.1.2000 ISSUED BY SANKAR SHASHTYABDAPOORTHI MEMORIAL HOSPITAL, KOLLAM. EXT.R1(h) TRUE COPY OF THE DOCTOR'S PRESCRIPTION DATED 1.8.2000 ISSUED BY OUSHADHI, BHARANICAVU. lgk K.BALAKRISHNAN NAIR & THOMAS P JOSEPH, J J. ........................................... WP(C).NO. 27465 OF 2005 ............................................ DATED THIS THE 2ND DAY OF JANUARY, 2009 JUDGMENT BALAKRISHNAN NAIR, J Respondents in O.A.129 of 2004 are the writ petitioners. First respondent herein was the applicant. Petitioners challenged Ext.P8 order of Central Administrative Tribunal( in short `CAT') dated 5.7.2005, setting aside the removal from service of first respondent for unauthorised absence and ordering his re-instatement. The brief facts of the case are the following. 2. First respondent, who was a Khalasi under the writ petitioners remained unauthorisedly absent from service from 12.10.1993 to 18.5.1994. Earlier, disciplinary proceedings were initiated against him thrice for unauthorised absence. His increment was withheld for three months for the absence from 17.9.1988 to 30.10.1988 and for nine months for the absence from 24.9.1989 to 18.1.1990. His pay was reduced for one year for his absence for 100 days on various spells between 3.3.1990 and 29.7.1991. 3. Ext.P1 charge memo was issued by registered post to WP(C) 27465/2005 2 first respondent for unauthorised absence from 12.10.1993 to 18.5.1994. It was returned with endorsement `party left without instruction'. The charge memo was exhibited in the notice board of the office where first respondent worked last. Later, three notices intimating the posting of the enquiry were sent by registered post on 29.9.1994, 21.10.1994 and 9.12.1994. All those notices were returned with the endorsement `party left'. Three enquiry notices were pasted in the notice board respectively on 15.10.1994, 14.11.1994 and 12.12.1994. Later the enquiry officer, by proceedings dated 26.12.1994, set the first respondent exparte. Enquiry was completed and enquiry report was submitted by the enquiry officer finding the first respondent guilty of unauthorised absence. Enquiry report was sent to him on 18.3.1995 by registered post to enable him to afford his explanation. The same was returned with the endorsement `left'. Therefore enquiry report was also exhibited in the notice board where first respondent worked last, on 20.3.1995. Thereafter penalty of removal from service was imposed on first respondent by order dated 8.5.1995. The said order was sent by registered post, which was returned with the endorsement `left' and the same was exhibited in the notice WP(C) 27465/2005 3 board on 18.5.1995. After a lapse of about two years, first respondent preferred Ext.P11 appeal against the penalty order. The said appeal was dismissed by Ext.P14 order dated 23.7.1997. Ext.P12 revision was filed against Ext.P14 appellate order. The said revision was also dismissed by order dated 25.6.2003. 4. Challenging the penalty imposed on him, the original application was filed. The applicant, first respondent herein contended that his wife was seriously ill and she was undergoing treatment in different hospitals for different spells and he was attending his wife. So, owing to mental strain, he could not attend duty or send any intimation seeking leave. Applicant further contended that removal from service was imposed in violation of the principles of natural justice without hearing him and therefore his constitutional rights guaranteed under Article 311(2) were infringed. Based on the above grounds, the applicant prayed for setting aside the order removing him from service and the orders affirming the same. 5. The writ petitioners filed a reply statement resisting the prayers in the original application and they pointed out that enquiry was completed in accordance with the relevant rules. WP(C) 27465/2005 4 The applicant never intimated the competent authority regarding his new place of residence. Notices were sent to the last known address and when they were returned unserved, they were exhibited in the notice board of the station where applicant worked last. So applicant should blame himself if notice is not received by him. Further he was not in need of employment. He must have other sources of income. Otherwise, he would have applied for leave or would have joined duty. Therefore writ petitioners prayed for dismissal of the original application. 6. The Tribunal, after hearing both sides, set aside his removal from service and ordered his re-instatement, treating the period of absence, as duty notionally without any monetary benefits. Writ petitioners were given liberty to treat the period of unauthorised absence as break in service or a leave of any kind due as they deem fit, in the light of the relevant rules. 7. This writ petition is filed challenging the above order of CAT. According to the petitioners, the misconduct of the applicant was proved in the enquiry and in the appeal memorandum also, he admits his unauthorised absence and he only gives some flimsy reasons for the same. In view of the above admitted facts, the order of CAT is perfectly legal. Further the WP(C) 27465/2005 5 order has been passed in accordance with the rules and notice was attempted to be served as provided under the rules. Therefore there is no violation of the principles of natural justice and so, the petitioners pray for quashing Ext.P8. 8. Ext.P11 appeal memorandum would show that first respondent, applicant admits his unauthorised absence. Some reasons are given in it but we agree with the contention of the writ petitioners that they are flimsy and they do not afford sufficient grounds to remain unauthorisedly absent from service. Further we find it difficult to agree with the contention of first respondent that there was violation of principles of natural justice. Everything possible from the side of the officials and as mandated by the rules was done to serve notice on the delinquent employee. The notice could not be served, because he did not make any arrangement for informing his controlling officer regarding the change of address. Further, even assuming there is violation of the principles of natural justice, in this case, on the facts, only one conclusion is possible. Going by Ext.P11, as mentioned earlier, first respondent has admitted his guilt. Therefore it is unnecessary to go into the alleged violation of principles of natural justice. So we find that first respondent WP(C) 27465/2005 6 was found guilty of the misconduct rightly and therefore appropriate punishment was liable to be imposed on him. The disciplinary authority has chosen to impose the penalty of removal from service. We find nothing illegal or improper about it. In the result, writ petition is allowed and original application is dismissed. But this judgment will not affect the right of the respondent to get compassionate pension, which shall be paid to him, unless there are compelling grounds to deny the same. K.BALAKRISHNAN NAIR, JUDGE THOMAS P JOSEPH, JUDGE lgk/-