IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY FOURTH DAY OF FEBURARY, TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE D.S.R. VARMA AND THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY WRIT PETITION NO. 6160 of 2004 Between: The General Manager, South Central Railway, Rail Nilayam, Secunderabad and others. ..... PETITIONERS AND Smt. Savitri Bai .....RESPONDENT The Court made the following: ORAL ORDER: (per the Hon’ble Sri Justice D.S.R. Varma) Heard the learned Standing Counsel appearing for the petitioners as well the learned counsel appearing for the respondent. 2. This writ petition is filed against the order, dated 16.06.2003, in O.A.No.63 of 2003, passed by the Central Administrative Tribunal, Hyderabad (for short “the Tribunal”), whereby the claim of the respondent/applicant was allowed. 3. For the sake of convenience, in this order, the petitioners and the respondent will be referred to as the respondents and the applicant, respectively, as per their array in the O.A. 4. For the sake of convenience and ready reference, the relief sought for in the O.A., is extracted hereunder, which is thus:-- “….. to direct the respondent authorities herein to annul the removal order dt. 9.11.1985 and extend the benefits like grant of leave encashment, salary dues, retirement benefits and family pension, etc., as prescribed under Serial Circular No.139/91 issued by the Railway Board dt. 27.9.1991 and consequently direct the respondent authorities to consider the case of the applicant’s son Mr. Chavan Sanay for compassionate appointment forthwith …..” 5. The facts, in brief, that led to the filing of this writ petition, are as follows: The applicant is widow of the employee of Railways, who was appointed as a Gangman in the year 1977 and while working in the said capacity, he abstained from attending the duty with effect from 22.10.1984 and as such, having waited for a considerable period, he was removed from service with effect from 07.11.1985. 6. The Tribunal, having considered the merits of the case, allowed the O.A. Hence, the present Writ Petition. 7. At the outset, it is pertinent to note that the said order of the Tribunal was pursuant to the Departmental enquiry. Since no averments are made about the conduct of the said enquiry, we are not intending to go into those aspects. 8. It is the case of the applicant that her husband was found missing since 1984, but he did not abstain from duty unauthorisedly and in such circumstances, placing reliance on the Serial Circular No.139/91, issued by the Board, dated 27.09.1991, the said relief was prayed in the O.A. 9. It is her specific case that as per the said Circular, if a person was found missing, the absence caused on that account shall not be treated as unauthorised absence and consequently any pending disciplinary proceedings, in that connection, shall be dropped and any order of punishment passed should also be annulled. 10. Taking clue from the advantages created under the said Circular, the applicant filed the present O.A., contending inter alia that her husband was found missing since long time i.e., from 1984, but all of a sudden surfaced alive on 14.07.2001. 11. In this regard, the learned counsel appearing for the applicant submits that, in the year 1989, the applicant had approached the respondents and informed that her husband was alive and was found missing. 12. It appears that the respondents have addressed a letter to the Mental Hospital at Hyderabad seeking clarification and other particulars relating to the husband of the applicant about the treatment, if any, accorded to him,in the year 1986. The above said letter was addressed in the year 1990. Obviously the said letter was addressed only upon the applicant approaching the respondents in the year 1989. 13. But, there is nothing on record as to whether any information was furnished by the Hospital Authorities to the respondents nor there was any other information coming forth from the side of the applicant as well. 14. The net result is that there was absolutely no information whatsoever about the alleged admission of the deceased – husband of the applicant in the mental Hospital at Hyderabad and his undergoing treatment in the said hospital. 15. It is also equally not on record that even if there was any such treatment, whether he was suffering from any mental ailment in the year 1984 when he was found absenting himself in the month of October, 1984. 16. The other particulars relating to the longevity of the treatment etc., also are not available on record nor were made available by the applicant. 17. Therefore, what ultimately apparent is that there is nothing on record that the deceased person was found missing because of the mental ailment but not any wilful abstinence from duty in order to invoke the benefits extended under the Serial Circular No.139/91. 18. The Tribunal had recorded a finding, while allowing the O.A., that the respondents themselves addressed a letter, in the year 1990, to the Mental Hospital at Hyderabad, seeking treatment and other particulars, if any, given to the deceased person in the year 1986. The said letter addressed in the year 1990, about the treatment, if any, given to the deceased person by the Mental Hospital at Hyderabad, was treated by the Tribunal as an admission that the Department itself accepted the contention of the applicant that the deceased person was found missing in the year 1986 and, therefore, the absence of the deceased person was treated as not wilful abstinence from duty and he was treated as if on duty, inasmuch as, he was found missing due to mental disorder. 19. In that connection, it has to be noticed that the applicant’s husband was found missing with effect from 22.10.1984 and he was removed from service on 07.11.1985, after conducting departmental enquiry. This order of removal was never subjected to challenge by the applicant alleging that her husband was not unauthorisedly absent but was found missing. In such circumstances, it may not be possible for the applicant to participate in the departmental proceedings representing her husband, but when the final order of removal was passed, which is presumably within the knowledge of the applicant, she ought to have taken steps to present her case effectively that her husband was only found missing but not unauthorisedly absent. No such steps obviously have been taken. 20. It was for the first time in the year 1989 the applicant alleges that she approached the respondents and represented that her husband had treatment in Mental Hospital at Hyderabad in the year 1986 and, perhaps, basing on such representation, the respondents have addressed a letter to the Mental Hospital at Hyderabad, seeking information as was discussed above. But, no such information is available either from the side of the respondent authorities or from the side of the applicant. 21. In the absence of any such information from the authorities, the only essential inference that can be drawn is that no person by name Govind Laxman was ever treated by the hospital authorities at Hyderabad in the year 1986. 22. Even assuming that there was any such treatment given to the deceased, in the year 1986, that must have been in the knowledge of the applicant for the simple reason that it is the applicant who has approached the authorities in the year 1989. 23. Again no plausible reason is coming forth as to why she waited for three long years in informing the authorities about the treatment taken by the deceased in the year 1986. This silence on the part of the applicant also raises the eyebrows. 24. Furthermore, it has to be seen that the applicant, having knowledge that her husband was removed from service with effect from 07.11.1985, did not chose to approach the authorities till 1989. No plausible explanation is made available to the court. The gap between the date of removal of the deceased till the applicant approaching the respondents in the year 1989 is quite long, which is about four to five years. The silence for this period also is another circumstance to doubt the conduct of the applicant. 25. The delay on the part of the applicant at two different stages, as pointed out, is fatal to the case of the applicant as the same is hit by the principles of laches. At no point of time, the applicant was diligent in prosecuting her case in a proper manner. 26. The most intriguing aspect is that the Serial Circular No.139/91 was obviously issued only in the year 1991. What was the position prior to 1991 in such cases is not known. Perhaps, the applicant wanted to avail all the benefits created under the said Circular issued in the year 1991. 27. It has to be noticed that by this time much water has flown under the bridge i.e. the order of removal was effected in the month of November, 1985 itself, and the benefits created by the Circular in the year 1991 cannot be made applicable for the cases of removal effected before 1985. Even otherwise, no application by way of review, revision or appeal before any authorities, prescribed under the said Circular, was ever filed and pending as on the date of issuance of the said Circular. 28. In other words, after the deceased stopped attending the duties in the year 1984, after waiting for more than one long year, the respondents have initiated disciplinary proceedings and effected the order of removal, but the same was not challenged, at least, within a reasonable time, by the applicant. No other proceedings, as stated above, are pending before any authority. In that view of the matter, it is difficult to apply the benefits created under the scheme in the shape of Serial Circular No.139/91 dated 27.09.1991. 29. For the foregoing reasons, we are of the view that the Tribunal is in error in arriving at the conclusion and granting the benefits only on the ground that the respondents have addressed a letter in the year 1990 to the Mental Hospital at Hyderabad, seeking some particulars of the deceased person about his treatment, which was treated as an admission on the part of the respondents that the deceased was missing. 30. In view of the said facts and the reasons stated above, the impugned order deserves to be set aside and accordingly set aside. 31. However, the respondents are directed to take appropriate steps to settle the financial claims, to which the deceased employee is entitled to till the date of his removal, in accordance with the Rules and Regulations in force. 32. In the result, the Writ Petition is allowed to the extent indicated above. No order as to costs. __________________ Justice D.S.R.Varma ____________________ Justice G.V.Seethapathy February 24, 2010 MAS.