(Reserved)

CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD

BENCH

ALLAHABAD

ALLAHABAD this the 22nd day of May, 2015.

Original Application Number. 927 of 2012.

HONBLE MR. SHASHI PRAKASH, MEMBER (A).

HONBLE DR. MURTAZA ALI, MEMBER (J).

Smt. Bitola Devi, W/o Late Jagdish Prasad, aged about

47 years, R/o House No. 21/12, Beli Gaon, P.O
Kachehary, District - Allahabad .

Applicant.
VE R S U S

1. Union of India through General Manager, North

Eastern Railway, Gorakhpur.

2. Divisional Railway Manager, North Eastern Railway,

Varanasi.

3. Divisional Railway Manager (Technical), North

Eastern Railway, Varanasi.

4. Divisional Personnel Officer, North Eastern

Railway, Varanasi.

..Respondents

Advocate for the applicant : Shri A.D. Singh

Advocate for the Respondents : Shri Avnish Tripathi

ORDER

(Delivered by Honble Mr. Shashi Prakash, A.M)

By way of the instant original application, the

applicant has prayed for following main relief/s : -

i. Quash and set aside the impugned order dated

18.4.2012, 24/28.6.1993 and 20/29.5.1993 (Annexure
No. A-1, A-2 and A-3).

ii. Directing the respondents to grant the family

pension and pay the differences of the arrears to the
applicant with interest as per Bank rate as well as all
the benefits after the death of her husband with all
consequential benefits.

2. As per the O.A, the facts of the case are that the
husband of the applicant while working on the post of
Foreman II absented himself from duty w.e.f.
19.02.1992 to 24.02.1993 due to his illness. He
informed the respondents about this fact alongwith
medical certificate dated 19.02.1992 (Annexure A-4).
However, the applicants husband was served with a
charge sheet dated 06.04.1993 regarding his absence
from duty for the aforementioned period. Late husband
of the applicant submitted reply to the charge sheet on
19.04.1993. It is further stated in the O.A that even
after receipt of the reply of the applicants husband no
proper inquiry was held by the respondents as neither
any date was fixed by the Inquiry Officer nor the
husband of the applicant was given any opportunity of
cross examination of the witnesses for the purpose of
defending his case and he was removed from service
by order dated 24/28.06.1993. Aggrieved by the order
of the Disciplinary Authority the applicants husband
preferred an appeal dated 25.08.1993 before
respondent no. 2. By a letter dated 24/27.12.1993,
the applicants husband was informed by the
Respondent no. 3 that major penalty charge sheet had
been issued to him on 16.10.1991 whereas the appeal
has been filed by him on 24/27.12.1993 as such the
appeal being time barred is not maintainable.
Thereafter the applicants husband filed another Appeal
dated 18.02.1994 against the order dated 16.10.1991,
which was rejected by the Respondent no. 3 as time
barred by order dated 20/29.05.1997.
3. It is stated that by earlier order dated
24/27.12.1993 the applicant was directed to file an
appeal against the order dated 16.10.1993 pursuant to
which he had filed appeal dated 18.02.1994, which was
not decided by the respondent no. 2. It is further
contended that subsequent appeal was also filed by
late husband of the applicant on 18.12.1996 (Annexure
A-9), which was also not decided.

4. Aggrieved by the order dated 20/29.05.1997

dismissing the appeal of the applicants husband as
time barred, he filed Revision dated 23.08.1997, which
has not been decided till date. As the revision petition
was not decided the applicants husband also preferred
a mercy appeal before Respondent no. 1 on
07.07.2000 but this appeal has also not been disposed
of. Being a continuously sick person the applicants
husband died on 19.12.2009. After the death of her
husband the Tehsiladar issued a family members
certificate to the applicant on 11.03.2010 for the
purposes of payment of dues accruable to her husband.
A notarized affidavit dated 08.11.2010 was filed before
the Respondent no. 2 by the applicant as the legal wife
of her late husband but her claim was not considered.
Thereafter she made representation on 23.12.2011 and
09.04.2012 against which no action has been taken by
the respective respondents. In response to her
representation for payment of retiral dues of her late
husband, she was informed by the impugned order
dated 18.04.2012 that by an order dated 24.06.1993
her husband had been removed from service therefore,
he was not eligible for retiral benefits. Aggrieved by
this order the applicant has filed the present original
application.

5. Learned counsel for the applicant submitted that

the impugned orders dated 24/28.06.1993 and
20/29.05.1997 being the orders of the disciplinary
authority as well as the appellate authority are
arbitrary and illegal. He argued that the applicants
husband had remained absent since 19.02.1992 to
24.02.1993 purely on account of his illness for which
had had sent information to the respondents alongwith
supporting medical certificate. Thereafter though a
charge sheet was issued to the husband of the
applicant but no proper inquiry, as required under the
rules, was conducted and no opportunity of defending
himself during the entire inquiry was afforded to the
husband of the applicant. In view of this fact, the
inquiry was vitiated and therefore, any decision taken
on the basis of such vitiated inquiry cannot be held to
be legally tenable. Accordingly the order of removal
passed by the disciplinary authority against the
applicants husband is non-sustainable and is liable to
be set aside. In support of his arguments, learned
counsel for the applicant has relied upon the judgment
of Honble Supreme Court in the case of Indrani Bai Vs.
UOI -1994-JT-3 (580), C.S. Raojee Vs. State of Andhra
Pradesh 1964 AIR (SC) O-962 and orders of this
Tribunal dated 27.01.1995 in O.A No. 830/1991 Smt.
Pratima Singh Vs. U.O.I & Ors and order dated
17.03.2008 passed in O.A No. 166/2007 Smt. Rama
Singh Vs. UOI & Ors. In the above citations the inquiry
held in the circumstances similar to the one of the
applicants husband have been treated as vitiated.

6. Shri Avnish Tripathi, counsel for respondents drew

attention to the C.A and stated that in the first place
the cause of action arose in the year 1997 therefore,
the O.A is highly time barred. He further stated that
since the husband of the applicant had been removed
from service by order dated 24/28.06.1993 and his
appeal was rejected by order dated 20/29.05.1997,
therefore, the applicant does not have any claim for
entitlement for payment of pension according to rules.
He pointed out that the action of the disciplinary
authority in removing the applicants husband was
based upon the inquiry which was conducted as per
rules after giving proper opportunity to the husband of
the applicant. As the charge brought against the
husband of the applicant was proved the disciplinary
authority proceeded to take action based upon the
finding of the Inquiry Officer. In view of the
circumstances stated above the learned counsel for
respondents urged that there is no cause of action for
interference with the impugned orders.

7. Heard Shri A.D. Singh, learned counsel for the

applicant and Shri A. Tripathi, learned counsel for
respondents. We have also perused the pleadings.
8. In the first place, as the counsel for respondents
raised the objection with regard to delay in filing this
O.A, it is seen that the applicant is continuously
agitating the matter regarding payment of dues
accruable to her husband, which is recurring cause of
action. Therefore, the objection of the respondents
with regard to delay in filing the O.A is not tenable.

9. On merits, it is seen from the pleadings that the

order of the respondents removing the applicants
husband from service is untenable for the reason that
no proper inquiry, as required under the rules, was
conducted against him and the disciplinary authority
acted in an arbitrary manner. The inquiry report ,
which was sought to be produced by the counsel for
respondents, could not be produced by him on the
ground that it was not available. Further, it is seen that
the appeal was rejected by the Appellate Authority only
on the ground of being time barred and without taking
into account the merits of the case i.e. the health
condition of the applicants husband. The revision filed
by the applicants husband has also not been disposed
of so far. Despite several representation the claim of
the applicant for terminal benefits of her late husband
has been rejected on the ground that her husband had
been removed from service during his life time.

10. It is to be noted that in absence of the inquiry

report it would be difficult to arrive at any conclusion
regarding its validity or otherwise. Even in the CA, no
details of the charge brought against the applicants
husband as well as the procedure followed by the
Inquiry Officer has been mentioned. In the
circumstances taking into account the balance of
convenience, the version of the applicant is to be given
due weightage and it can be reasonably inferred that
adequate effort had not been made to give proper
opportunity to the applicants husband to defend his
case in the inquiry. Late husband of the applicant was
under ailment and due deference should have been
given to the fact by the respondents while initiating any
action against him with regard to his absence. In this
regard it may be relevant to refer to the order of this
Tribunal dated 17.03.2008 passed in O.A No. 166/2007
Smt. Rama Singh Vs. UOI & Ors in which almost similar
set of facts have been dealt with. It is seen from the
proceedings that though the applicants husband had
filed revision on 23.08.1997 (Annexure A-10), it
remained un-disposed till date. In the CA also there
has been no reference to this averment made in the
O.A. This issued has been dealt in detail in above
mentioned O.A and it may be relevant to reproduce the
relevant extracts from it: -

We wanted to know from the parties counsel as to

what would be the legal fate of such statutory revision
on death of the delinquent officials. We put a pointed
query to both the counsels as to whether on death of
employee concerned during the course of revision,
revision itself will stand abated or will survive for
decision on merits. Shri S.K. Pandey, learned counsel
for the applicant has placed before us copy of one
circular dated 19.06.2000, which says that on death of
charged employee during the pendency of Disciplinary
case under the Rules of 1968, proceedings shall be
closed. It is not clear from this Circular as to what
would happen, if such employee dies during the
pendency of revision under Rule 25 of the Rules of
1968. A close reading of Rule 25 of the Rules of 1968
makes it clear that Revising Authority may confirm,
modify or set aside the orders or confirm, reduce,
enhance or set aside the penalty imposed by the order,
or impose any penalty where no penalty has been
imposed or remit the case to the Authority which made
the orders or to any other authority directing such
authority to make such further inquiry as it may
consider proper in the circumstances of the case and
also to pass such other orders as it may deem fit. What
we want to say is that power of the Revising Authority
under Rule 25 extends to setting aside the order of the
punishment or any order confirming that punishment in
appeal. We do not know what would have happened to
the fate of the revision of Late Shri Sanjay Singh, had
the same been heard and disposed of under the above
Rule of Rule 25. So in our humble opinion, revision
under Rule 25 will also be included in the expression
disciplinary case or disciplinary proceedings referred to
in the said Circular dated 19.06.2000. In that view of
the matter on death of the revisionist during the
pendency of the revision under Rule 25, not only the
revision but also entire proceedings including the
punishment and appellate order will meet a legal death
and will not remain alive. So, it can be said that Late
Shri Sanjay Singh died while still in service. His widow
and family members shall be entitled to all terminal
benefits as are admissible in the case of an employee
dying in service.

11. Keeping in view the above position and in absence

of the inquiry report it can be prima facie be inferred
that the action against the applicants husband taken by
the disciplinary authority imposing the penalty of
removal from service was without giving him proper
opportunity and therefore, against the principle of
natural justice.

12. Accordingly, the O.A is allowed. The order passed

by the disciplinary authority dated 24/28.06.1993 and
the order passed by the Appellate Authority dated
20/29.05.1993 both stand vitiated and set aside. The
applicant is held to be entitled for grant of terminal
benefit and family pension as per rules as of the late
husband of the applicant had died while in service of
the respondents and was never removed from service.
The respondents are directed to pass suitable orders in
this regard within a period of three months from the
date of receipt of certified copy of this order. No costs.

MEMBER- J. MEMBER- A.

Anand.

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O.A No. 927/12