CIVIL WRIT JURISDICTION CASE No.12513 of 2005 (In the matter of an application under Article 226 of the Constitution of India) ***** 1. UNION OF INDIA, through the Secretary, Department of Railway, Govt. of India, Rail Bhawan, New Delhi 2. Divisional Railway Manager, Dhanbad Railway Division, East Central Railway, Hajipur 3. Senior Divisional Operation Manager, East Central Railway, Hajipur 4. Additional Divisional Railway Manager, Dhanbad, Railway Division, East Central Railway, Hajipur 5. Senior Divisional Personnel Officer, Dhanbad Railway Division, East Central Railway, Hajipur…..Petitioners Versus 1. THE CENTRAL ADMINIS.TRIBUNAL, Patna Bench, through its Registrar 2. Smt. Sulochna Devi W/o Late B D Thakur, resident of Village Karikol, PO Barhonia, District Munger ….. …. Respondents ****** For the Petitioners : Mr. SHABBIR AHMAD, Advocate For Respondent no.2 : Mr. M P Dixit, Advocate ******* P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar, J. This writ petition is directed against the order dated 27.10.2004, passed by the Central Administrative Tribunal, Patna Bench, in OA No. 557 of 2000 (Smt. Sulochna Devi vs. Union of India & Ors.), whereby the original application preferred by respondent no.2 herein, in the capacity of the widow of late B D Thakur, had been allowed, the order of removal from service of the employee has been set aside with consequential benefits. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. B D Thakur, the late husband of respondent no.2 herein, had joined the services of the Indian Railways on 22.3.1965, as a Switch Man. He availed sanctioned leave from 26.2.1997 to 31.5.1997. He did not report for duty on 1.6.97, leading to the charge-sheet dated 12.2.1998, for major penalty, inter alia, alleging therein that he was on unauthorized leave from 1.6.1997 to 12.2.1998. The employee did not appear before the learned enquiry officer who submitted his ex- parte enquiry report dated 21.9.98. It further appears that copy of the enquiry report was forwarded to the employee along with communication dated 20.11.98 2 (Annexure 3), calling him upon to submit his explanation. The employee failed to submit any reply to the enquiry report leading to the order of removal from service dated 22.2.99 (Annexure 4). It is further stated in the writ petition that he had reported for duties on 28.12.98, he was allowed to resume his duties on 7.1.99, and continued as such till 11.3.99. The employee was sent for safety training during this period. 2.1) The employee died on 5.12.99, whereafter respondent no.2 herein, the widow, preferred statutory appeal which was lodged on 3.3.2000. The same was dismissed on the ground of delay by order dated 13.6.2000 (Annexure 5), leading to the original application, which has been allowed by the impugned order. 3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the question whether or not the employee was mentally sick and was undergoing treatment, is entirely a question of fact which should have been proved before the learned enquiry officer. The employee did not appear at all before the learned enquiry officer. He next submits that the learned Tribunal has erred in concluding that copy of the enquiry report was not served on the employee. He next submits that the order of removal from service was served on him during the period he was on duty notwithstanding which he did not prefer appeal till his death. He next submits that, on the own showing of respondent no.2, he was once again on unauthorized leave from 12.3.99, till his death on 5.12.99. He lastly submits that the relief granted by the Tribunal to respondent no.2 is a case of misplaced sympathy. He relies on the judgment of a single Judge of this Court delivered by one of us (S K Katriar, J.), in Ram Dani Singh v. State of Bihar [2007 (4) PLJR 332]. 4. Learned counsel for respondent no.2 has supported the impugned order. He submits that it was inherent in the situation brought about by the employee’s mental sickness that he went unrepresented before the learned enquiry officer. He also submits that it has to be appreciated that the employee and the widow belong to a low strata of society where education and legal awareness is wanting and, therefore, in the midst of such serious illness, it was not possible to prefer the appeal in time. He also submits that the period of unauthorized absence during the 3 earlier period is in close proximity with the period in question and indeed the precursor of his present illness. He also submits that it is evident on a plain reading of the order of dismissal that copy of the enquiry report was for the first time served on him along with the order of removal. Such action is hit by the judgment of Supreme Court in Union of India v Mohd. Ramzan Khan [(1991) 1 SCC 588]. He lastly submits that the appellate order is cryptic, and unsupported by reasons. He relies on the following reported judgments of the Supreme Court:- (i) AIR 1976 SC 1785 (Siemens Engg. & Mfg. Co. v Union of India) (ii) AIR 1979 SC 429 (Govt. Branch Press v. Beli Appa) 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. Much can be said on both sides about the employee’s non-appearance before the learned enquiry officer. It is correct to say that he and his family members belong to lower strata of the society and suffer from lack of education and legal awareness. It is equally correct to state that, in view of the nature of the illness, it may not have been possible for him or his family members to appear before the enquiry proceeding. Therefore, perhaps no blame can go to the employee for his non-appearance in the enquiry proceeding. On the other hand, it is equally possible to state that the learned enquiry officer, while exercising quasi-judicial power, is not expected to know the affairs unless materials are brought before him. It was open to the employee or his family members to be represented by a defence helper which was not done inspite of valid service of notice. 5.1) Much can be said on both sides about service of copy of the enquiry report on the employee. On one hand, we have on record copy of the communication dated 20.11.98, from the learned disciplinary authority to the employee, in the nature of a second show-cause notice along with a copy of the enquiry report. It is queer to notice that, if this position is accepted, then where was the need for the authorities to serve the order of punishment along with a copy of the enquiry report. Learned counsel for respondent no.2 has rightly highlighted the following portion from the order of removal from service:- 4 “1.(a) Copy of the report including the finding of the enquiry Officer is enclosed for information.” 5.2) Much can be said on both sides in so far as the delay in preferring the appeal is concerned. On the own showing of respondent no.2 before us that the employee was in a state of complete fitness since 28.12.98, the date on which he had reported for duties, he was allowed to resume his duties on 7.1.99, and indeed worked upto 11.3.99. Obvious position is that copy the order of removal from service was served on him during this period. There is no explanation as to why the employee did not prefer appeal during the period. There is also no explanation as to why the appeal was not preferred thereafter till his death. On the other hand, if the employee’s stand as to his mental illness were correct, then there was ample justification for the employee not to prefer the appeal because of his mental illness with which the employee allegedly suffered which is indeed very nagging, and ultimately died on 5.12.99, and the widow preferred the appeal on 3.3.2000 which was dismissed on 13.6.2000 (Annexure 5). 5.3) Much can also be said on both sides about the unsatisfactory manner in which the departmental appeal was disposed of. The text of the order of the learned appellate authority is reproduced hereinbelow for ready reference:- “Eastern Railway ---- No.ET-2/SW-Man/BDT/2K :: Dhanbad dt. 13.6.2000 Smt. Sulochana Devi W/o Late B D Thakur SW Man/RCGT Sub: Late B D Thakur, Ex SW/Man/RCGT Removed from service w.e.f. 25.2.99 Ref: Your appeal Nil dt. March 2000 Reference above, the competent authority has passed the following order as under:- “Any way it appeal was time barred even if had the candidate been alive, hence not considered”. This is for information please. Sd/- for Sr.Divl. Personnel Officer E.Rly/Dhanbad” 5 The learned appellate authority ought to have given due consideration to the issue of mental illness of the employee coupled with his death in close proximity, with the over-arching reality that the widow was the appellant, which did make out a case for condonation of delay in preferring the appeal, and consideration of the appeal on merits in a situation where the employee could not appear before the learned enquiry officer on account of mental illness. On the other hand, it can be stated that the learned appellate authority may have noticed the grandiloquent memorandum of appeal so thoroughly, exhaustively, and elegantly prepared, creating an impression that adequate legal aid was available to the employee and the widow and, therefore, the appeal should have been preferred in time. 5.4) The learned appellate authority has made the error of disposing of the appeal in a most summary manner, without assigning any reason. We are in this connection reminded of the following observations of the Supreme Court in paragraph- 6 of its judgment in Siemens Engineering & Manufacturing Co. of India Ltd. Vs. Union of India (supra):- “6. …..It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N M Desai v Testeels Ltd., C A No.245 of 1970 decided on 17.12.1975 (SC). But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated 8th December, 1961 which were repeated in the subsequent representation dated 4th June, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and thus rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the 6 requirement of law. The Government of India also failed to give any reasons in support of its order rejecting the revision application. But we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector. The reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application….” We are also reminded of the following observations of the Supreme Court in paragraph- 24 of the judgment in Govt. Branch Press v D B Belliappa (supra):- “24. ….“The giving of reasons”, as Lord Denning put it in Breen v Amalgamated Engineering Union (1971) 1 All ER 1148 “is one of the fundamentals of good administration” and, to recall the words of this Court in Khudi Ram v State of West Bengal (1975) 2 SCR 832 at p. 845 : (AIR 1975 SC 550 at p. 558) in a Government of laws “there is nothing like unfettered discretion immune from judicial reviewability.” The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on, reason is the essence of the guarantee epitomized in Arts. 14 and 16(1).” 6. The issue is obviously not free from difficulties. It is difficult to reach one conclusion or the other with any amount of certitude in such an ambivalent situation. We, however, take the view that we have taken for the reasons indicated hereinbelow. Learned counsel for respondent no.2 is right in his submission that the employee after all served the Indian Railways for 34 years, and nothing has been brought on record showing his poor performance, except the period of unauthorized absence prior to the one in question. He is further right in his submission that the same seems to have been explained by the position that it was in close proximity with his alleged period of illness. It may be taken to be the precursor of his illness which might have become graver during the period in question. His demise after submission of the enquiry report is also an important circumstance to show that he was really mentally sick during the period in question, during the period immediately preceding thereto, and immediately succeeding thereto. In such a situation, we would not like the widow to suffer for the illness of her husband, though not formally proved by the latter (the employee) during the course of enquiry, and fully mindful of the position that the onus to prove his illness was on the employee. It would bear repetition to state that illness of the employee in close proximity with the departmental proceeding is indicative of a situation of unwellness. We are, therefore, of the view that equitable considerations surely and strongly weigh in favour of respondent no.2. Cause of justice would be 7 served, and the widow would not be left high and dry in the evening of her life, if the relief is moulded, and the order of punishment is modified in the totality of the ambivalent situation. 7. In the result, we modify the order of removal from service and substitute it by an order of compulsory retirement with further conditions. Respondent no.2 shall be entitled to the post-retirement benefits admissible to the late employee, and also to respondent no.2 in the capacity of the widow. We note the submission of learned counsel for respondent no.2 that she shall not claim any arrears of salary, leave encashment, nor interest on delayed payment. Respondent no.2 shall be entitled to family pension with effect from 6.12.99, and the amount of gratuity. This Court will be pleased if the dues of respondent no.2 are paid to her within a period of four months from today failing which she shall be entitled to the dues as per the present judgment with interest @9% from today till the date of payment. 8. The order of the Tribunal is accordingly modified. The writ petition is allowed in part. ( S K Katriar ) Kishore K Mandal, J. I agree. ( Kishore K Mandal ) Patna High Court, Patna The 22nd of April 2010 AFR/mrl