IMPORTANT POINT
Unauthorized absence does not constitute failure to maintain devotion to duty without establishing willfulness, and the reasons for unauthorized absence must be considered before imposing a penalty.

JUDGMENT

RAVI NATH TILHARI,J. - Heard Sri K. Pavan Kumar, learned counsel for the petitioners and Sri Mallampalli Srinivas, learned Central Government Counsel for the respondents.

2. I.A.No.3 of 2023, is for setting aside the order dated 03. 07.2023 dismissing the writ petition for want of prosecution.

3. The cause for non-appearance on the date fixed 3/7/2023, is sufficient. The order dtd. 3/7/2023 is recalled. The petition is restored to its original number.

4. With the consent of the parties counsels, we have heard on the merits of the writ petition today itself.

5. The writ petition under Article 226 of the Constitution of India has been filed for the following relief:-

"It is therefore prayed that this Hon"ble Court may be pleased to issue writ of certiorari by calling for the records from the respondents and set-aside the order passed in OA.No.372 of 2011 on the file of the Central Administrative Tribunal Hyderabad Bench on 7/11/2014 pass such other order or orders as this Hon"ble Court may deem fit and proper in the circumstances of the case."

6. The petitioner No.1 is the deceased applicant, in O.A.No.372 of 2011, who died during pendency of O.A before Central Administrative Tribunal. The petitioner Nos.2 and 3 are the substituted heirs of the petitioner No.1. The deceased petitioner No.1 shall be referred as Applicant".

7. The Applicant was appointed on the post of helper/Kasim (Class IV) in the year 1992 on compassionate ground. With respect to his unauthorized absence for different periods, during 1/1/2005 to 31/8/2007, (1/1/2005 to 10/1/2005 = 10, 14/7/2005 to 21/7/2005 = 8, 29/9/2005 = 1, 2/10/2005 to 4/10/2005 = 3, 21/4/2006 to 26/4/2006 = 6, 6/9/2006 to 12/9/2006 = 7, 10/11/2006 = 1, 20/11/2006 to 31/12/2006 = 42 and 1/1/2007 to 31/8/2007 = 243) in total for 321 days, charge memo dtd. 17/9/2007 was prepared. It was served to the Applicant on 6/10/2018. The Applicant acknowledged the charge memo but did not submit any reply/explanation. The enquiry officer after concluding the enquiry submitted its report dtd. 17/9/2007 to the disciplinary authority against which the Applicant submitted representation on 20/10/2008. The disciplinary authority decided to impose the penalty of removal from service for which that disciplinary authority Coaching Depot Officer (CDO)/Bezawada (BZA) was not competent under the rules to impose such punishment. He referred the matter to the competent disciplinary authority under Rule 10 (3) of the Railway Servants (Discipline and Appeal) Rules, 1968 (in short, the Rules 1968). The Senior Divisional Mechanical Engineer (DME)/Bezawada (BZA) passed the order of removal dtd. 23/12/2008. The applicant"s departmental appeal was dismissed on 6/4/2009 by Additional Divisional Railway Manager (ADRM)/ Bezawada (BZA) and his review was also dismissed by the Chief Rolling Stock Engineer (CRSE) by order dtd. 29/6/2009. The applicant, thereafter filed representation before the Senior Divisional Personnel Officer of the Divisional office for reappointment on Merciful Consideration, which was also rejected on 6/7/2010.

8. The applicant then filed O.A.No.372 of 2011 before the Central Administrative Tribunal (CAT), Hyderabad, which was dismissed by order dtd. 07/11/2014.

9. Challenging the order of the CAT dtd. 07/11/2014, the writ petition was filed.

10. Learned counsel for the petitioners submits that the order of removal does not record that the applicant"s unauthorized absence was willful. He submits that in the absence of such a finding, the unauthorized absence will not amount to any misconduct under Rule 3(1)(ii) of the Railway Services (Conduct) Rules 1966 (in short, the Rules 1966). He places reliance in the case of Krushnakant B. Parmar vs. Union of India,Civil Appeal No.2106 of 2012.

11. Learned counsel for the petitioners further submits that the disciplinary authority did not consider the applicant"s representation on its merit nor in the correct perspective. It observed illegally that "whatev