CW2059/2010 CW2761/2010 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN 1. D.B. Civil Writ Petition No.2059/2010 Union of India and Others Vs. Central Administrative Tribunal Jaipur Bench Jaipur and Another AND 2. D.B. Civil Writ Petition No.2761/2010 Smt. Sangita Chandna Vs. Central Administrative Tribunal and Others Date of Judgment ::: 10.11.2010 Present Hon'ble the Acting Chief Justice Mr. Arun Mishra Hon'ble Mr. Justice Mohammad Rafiq Shri P.C. Sharma, Counsel for Union of India and others Miss Ashish Joshi, Counsel for Smt. Sangita Chandna #### By the Court (Per Hon'ble Rafiq, J.):- Both writ petitions arise out of same judgment dated 24.08.2009 of Central Administrative Tribunal, Jaipur Bench, Jaipur, in Original Application No.54/2004, therefore they are being decided by this common judgment. Writ petition No.2059/2010 has been filed by Union of India and its functionaries against the said judgment of Central Administrative Tribunal, Jaipur Bench, Jaipur, (for short, 'the Tribunal') which has, while CW2059/2010 CW2761/2010 // 2 // partly allowing Original Application No.54/2004 filed by Mrs. Sangita Chandna, widow of late Shri Vikas Chandna who was Assistant Driver, directed that penalty of removal awarded to Shri Vikas Chandna, her late husband, shall stand converted into penalty of compulsory retirement from service entitling her to pensionary and other consequential benefits within a period of three months from the date of the judgment. Writ Petition No.2761/2010 has been filed by Smt. Sangita Chandna, widow of late Shri Vikas Chandna, against judgment dated 24.08.2009 of Tribunal with prayer that original application should be allowed in toto and order of penalty should be quashed and set aside because procedure prescribed in the Railway Servants (Discipline and Appeal) Rules, 1968 (for short, 'the Rules of 1968') has not been adhered to and that enquiry was vitiated for various other reasons. Shri P.C. Sharma, learned counsel for Union of India, has argued that learned Tribunal erred in law in interfering with quantum of punishment because late husband of original applicant Smt. Sangita Chandna was found guilty of serious misconduct in that he CW2059/2010 CW2761/2010 // 3 // was willfully absent for number of days in different period of years 1998 and 1999. In September, 1998 he remained absent for 13 days from 18.09.1998 to 30.09.1998; in October, 1998 he remained absent for whole of the month; in November, 1998 he remained absent for 20 days from 01.11.1998 to 20.11.1998; in December, 1998 he remained absent for one day i.e. 17.12.1998; in January, 1999 he remained absent for 15 days from 17.01.1999 to 31.01.1999 and in February, 1999 he remained absent fro 22 days from 01.02.1999 to 22.09.1999. Learned counsel for Union of India also argued that since penalty was awarded to late husband of Smt. Sangita Chandna after holding enquiry in accordance with Rules of 1968 and providing him opportunity of hearing, no interference should have been made by learned Tribunal in the order of penalty. In any case late husband of Smt. Sangita Chandna did not complete qualifying period of service of ten years so as to entitle him or his widow of any pensionary/retiral dues because late Shri Vikas Chandna had merely completed 8 years 8 months and 28 days of service, after excluding the period of his absence. Per contra, Miss Ashish Joshi, learned CW2059/2010 CW2761/2010 // 4 // counsel for original applicant Smt. Sangita Chandna, has argued that enquiry procedure has not been fully adhered to and the enquiry was conducted ex-parte. Reply to charge-sheet submitted by late husband of Smt. Sangita Chandna was not considered just because it was filed with delay of one day. Mandatory provisions of Rules 9(7) and 9(8) of the Rules of 1968 were thus violated. Enquiry was conducted ex-parte and no efforts were made by enquiry officer to serve notices issued to late husband of original applicant Smt. Sangita Chandna on 24.02.1999, 06.09.1999, 15.09.1999 and 15.10.1999. Chargewise finding has not been recorded by enquiry officer because no finding at all has been recorded on charge no.2, which is contrary to Rule 10 of Rules of 1968. Entire order of penalty as also order of dismissing appeal be set-aside and Union of India be directed to grant all benefits to original applicant Smt. Sangita Chandna, consequent thereupon. Learned counsel for original applicant Smt. Sangita Chandna alternatively argued that when original application has been partly allowed with direction that order of removal shall stand converted into that order of CW2059/2010 CW2761/2010 // 5 // compulsory retirement from date such order of removal was passed, late husband of original applicant Smt. Sangita Chandna shall be deemed to be in service of Union of India right from date of his initial appointment in 1988 till order of removal passed on 17.04.2000. Order passed by learned Tribunal by excluding period of absence on which her husband had already been subjected to disciplinary proceeding and penalty, same period could not be then again taken into consideration while deciding this issue. Total period would come to two-and-a- half year, which was asserted by original applicant before learned Tribunal and not disputed by the disciplinary authority. We have given our anxious consideration to rival submissions and perused material on record. In the facts of case, we find that when late husband of original applicant Smt. Sangita Chandna has now expired and that despite number of notices issued to him, he did not choose to participate in disciplinary proceedings, the remand of matter would not be appropriate because in that event difficulty would arise for original applicant, who is widow of late Vikas Chandna, to arrange evidence in defence CW2059/2010 CW2761/2010 // 6 // but at the same time we find that absence of late husband of original applicant Smt. Sangita Chandna, even if considered for the purpose of gravity of charge, the charge does not appear to be enough grave as to justify imposition of extreme penalty of removal. There were two charges against him in charge-sheet dated 24.02.1999. Under charge no.1 what is alleged against him is that he remained absent from duty for following period:- September 1998 18.09.1998 to 30.09.1998 13 days October 1998 01.10.1998 to 31.10.1998 31 days November, 1998 01.11.1998 to 20.11.1998 20 days December, 1998 17.12.1998 01 day January, 1999 17.01.1999 to 31.01.1999 15 days February, 1999 01.02.1999 to 22.02.1999 22 days In charge no.2 it was alleged that after completion of required rest, he did not come to the lobby and did no work on following days:- June, 1998 09 days July, 1998 08 days August, 1998 20 days September, 1998 06 days November, 1998 01 day December, 1998 02 days January, 1999 01 day Total days in all aforesaid months of 1998 and 1999 would come to 149 days. Learned Tribunal, taking into consideration this aspect CW2059/2010 CW2761/2010 // 7 // and fact that delinquent has since expired, exercised its discretion by converting penalty of removal into that of compulsory retirement because in its view penalty of removal was excessive and disproportionate to gravity of charge proved. Learned counsel appearing for Union of India has not been able to persuade us to hold that such discretion has been illegally or erroneously exercised by learned Tribunal in the facts of the case. We therefore hold that learned Tribunal was justified in doing so. Coming now to question whether original applicant Smt. Sangita Chandna would be entitled to retiral/pensionary benefits in lieu of service rendered by her husband late Shri Vikas Chandna consequent upon converting penalty of removal into that of compulsory retirement, we find that stand of Union of India that late husband of original applicant Smt. Sangita Chandna had completed only 8 years 8 months and 28 days of service, is wholly unjust and illegal. Once the Tribunal has directed that order of penalty of removal shall stand converted into that of compulsory retirement from the date of removal from service itself, that would mean that the CW2059/2010 CW2761/2010 // 8 // delinquent would be deemed to be in service till date of removal i.e. 17.04.2000. Counting from the date of initial appointment in 1988 till date of removal, delinquent had admittedly completed more than 12 years of service and in that case he would have completed minimum qualifying period of service of ten years. His widow must therefore be held entitled to all the consequential benefits and judgment of learned Tribunal has to be construed as such and therefore his widow is to be held entitled for retiral/pensionary benefits accordingly. Both writ petitions stand disposed of accordingly. (Mohammad Rafiq) J. (Arun Mishra) Acting CJ. //Jaiman//