IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 16.02.2010 Coram THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE T. RAJA W.P.No.1672 of 2010 and M.P.No.1 of 2010 1. Union of India, rep. by the Additional Divisional Railway Manager-I, Chennai Division, Southern Railway, Park Town, Chennai – 3. 2. The Senior Divisional Commercial Manager, Chennai Division, Southern Railway, Park Town, Chennai – 3. 3. The Divisional Commercial Manager, Chennai Division, Southern Railway, Park Town, Chennai – 3. ..Petitioners ..Vs.. 1. The Registrar, Central Administrative Tribunal, Madras Bench. 2. D. Vasantha Prabha ..Respondents Writ Petition filed under Article 226 of the Constitution of India, seeking to issue a writ of certiorari, to call for the records pertaining to O.A. No.473 of 2008 and quash the order dated 10.9.2009 passed by the Central Administrative Tribunal, Madras Bench. For Petitioner : Mr. T. Ravichandiran For Respondent : Mr. L. Chandrakumar for R2 https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Order of the Court was made by M. CHOCKALINGAM, J.) Invoking writ jurisdiction of this Court, the petitioners have brought forth this writ petition for the relief as under:- " to issue a writ of certiorari, to call for the records pertaining to O.A. No.473 of 2008 and quash the order dated 10.9.2009 passed by the Central Administrative Tribunal, Madras Bench. " 2. The Court heard the learned counsel appearing for the petitioner and also looked into the averments made in the affidavit filed in support of the writ petition. 3. This writ petition came to be filed under the following facts and circumstances:- (i) The second respondent is working as Ticket Collector in the office of the Station Master, Mambalam. By a letter dated 7.3.2007, a charge memo was issued to her, stating that she failed to maintain absolute devotion to duty while she worked as Ticket Collector, by absenting herself wilfully without prior sanction from the competent authority or following Railway Medical Rules during the periods viz. 21.3.2006 to 3.5.2006-44 days, 14.6.2006-1 day, 4.7.2006 to 22.2.2007-234 days and thus, she has violated Rule 3(1)(ii) of Railway Services (Conduct) Rules, 1966. (ii) A preliminary enquiry was conducted on 20.4.2007. On the said date, the second respondent did not appear, but her father sent a communication stating that his daughter met with an accident in March, 2006 while she was riding her Two wheeler, she lost her memory, her health condition was worsening and she was taking treatment. Under such circumstances, she could not attend the enquiry. The Enquiry Officer adjourned the hearing dates on 8.5.2007 and thereafter to 22.5.2007. Even then, there was no response from the second respondent. Hence, he proceeded with enquiry and passed an ex parte order. (iii) The enquiry report was actually sent to her, but the same was returned undelivered. Following the same, an order of removal from service was imposed by an order dated 26.9.2007. An appeal preferred by her was also dismissed by the Appellate Authority. She was also unsuccessful in the revision petition made by her. (iv) Under such circumstances, she filed O.A. No.473 of 2008 before the Tribunal seeking to set aside the order of removal. The writ petitioners/Railway Department were put on notice. They https://hcservices.ecourts.gov.in/hcservices/ opposed the said application. On enquiry, the Tribunal found that an opportunity should be given to the second respondent-employee and hence, set aside the order of removal and ordered for fresh enquiry. Aggrieved over the same, this writ petition has been brought forth by the petitioners/department. 4. Learned counsel, advancing arguments on behalf of the petitioners, would submit that in the instant case, admittedly, during the relevant time, she was employed as Ticket Collector in the office of the Station Master, Mambalam. She absented herself on three spells viz. 21.3.2006 to 3.5.2006-44 days, 14.6.2006-1 day, 4.7.2006 to 22.2.2007-234 days without any permission or leave granted in her favour and thus, it was a violation of Railway Services (Conduct) Rules. A charge memo was served upon her. A preliminary enquiry was followed. Even then, she did not appear at any point of time. Hence, there arose a necessity for passing the ex parte order. The appeal and the revision petition filed by her were dismissed by the concerned Authorities. 5. Learned counsel would further add that though the second respondent claimed that she met with an accident and she lost her memory all along the period, she has not given any medical Certificate to establish the same. According to the learned counsel, sufficient opportunities were given to her all along the period , but she did not care to appear for enquiry. Under such circumstances, the Tribunal should have taken into consideration those factors and dismissed the O.A., but not done so. On the contrary, it has taken the erroneous view. Hence, the order has got to be set aside by quashing the same. 6. After hearing the learned counsel appearing for the petitioners, the Court is of the considered opinion that the contention put forth by the learned counsel for the petitioners does not carry any merit whatsoever. It is not in controversy that during the relevant point of time, the respondent was employed as Ticket Collector at Mambalam Railway Station. She has also absented herself on three spells viz.21.3.2006 to 3.5.2006-44 days, 14.6.2006-1 day, 4.7.2006 to 22.2.2007-234 days 7. At this juncture, it is pertinent to point out that at the earliest when the initial preliminary enquiry was posted on 20.4.2007, a communication was addressed by her father stating that her mental condition was not alright and hence she was under treatment. Considering the same, the enquiry was adjourned to 8.5.2007 and thereafter to 22.5.2007, but she could not attend the enquiry, Under such circumstances, an ex parte order came to be passed. 8. At this juncture, it is pertinent to point out that for the first period of unauthorized absence indicated in the charge https://hcservices.ecourts.gov.in/hcservices/ memo, the second respondent submitted a Certificate from a private Medical Practitioner that she met with road accident and she was under treatment. It is pertinent to point out that the Railway department referred her to railway Doctor and she was declared fit and she was allowed to join duty on 4.5.2006. These are all admitted position. Under such circumstances, it would be quite clear that insofar as first spell was concerned, there was a medical Certificate given by her. The department found it justified to allow her to join duty. Accordingly, she joined. 9. However, what was contended by the petitioners before the Tribunal and equally here also is that insofar as other periods are concerned, the medical Certificate was not obtained and she did not report to the railway Doctor. At this juncture, it is pertinent to point out that once she proved the fact that she met with an accident, took treatment from the private Doctor and thereafter, she was allowed to join, but she could not continue and all would go to show that the reasons adduced by her were genuine. 10. The only question arises for consideration is whether the ex parte order and the subsequent order of removal should be sustained or not. The Court is of the considered opinion that both the orders cannot be sustained as the order of removal rests upon the ex parte order made against her. 11. During the relevant period, she met with an accident and thereafter, took treatment. These are the facts to be proved before the enquiry. Once the department accepted the case of the second respondent in respect of the part of the leave period and allowed her to join duty, in respect of other periods, she has to explain. Hence, it is a fit case, where ex parte order and the subsequent order of removal, which was based on the ex parte order, has to be set aside, which has been correctly done by the Tribunal. 12. This Court is unable to see any reason to interfere with the order passed by the Tribunal, setting aside the ex parte enquiry and the subsequent order of removal. The fresh enquiry ordered by the Tribunal is found justified. The writ petition stands dismissed. Consequently, the connected M.P. is also dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional Divisional Railway Manager-I, The Union of India, Chennai Division, Southern Railway, Park Town, Chennai – 3. 2. The Senior Divisional Commercial Manager, Chennai Division, Southern Railway, Park Town, Chennai – 3. 3. The Divisional Commercial Manager, Chennai Division, Southern Railway, Park Town, Chennai – 3. 4. The Registrar, Central Administrative Tribunal, Madras Bench. + 1 c.c. to Mr. T. Ravichandran, Advocate. S.R.No.10342. + 1 c.c. to Mr. L. Chandrakumar, Advocate. S.R.No.10712. W.P.No.1672 of 2010 and connected M.P. TM (CO) GSK 25.02.2010. https://hcservices.ecourts.gov.in/hcservices/