Appellate authority must consider delay condonation application under Rule 20 proviso before rejecting appeal.

O R D E R

Per : Umesh Gajankush, Member (J)

1.The applicant before this Tribunal is challenging the order dated 05.10.2013 passed by the Disciplinary Authority imposing the penalty of compulsory retirement from service with all pensionary benefits admissible under Rule 65 of the Railway Services (Pension) Rules, 1993 and order dated 01.01.2016 passed by the Appellate Authority, rejecting the appeal on the ground of delay and further challenging the impugned communication dated 16.04.2016, by which the decision of the Appellate Authority was upheld.

2. Brief facts of the case are that the Disciplinary Authority has issued Memo dated 25.06.2013 under Rule 9 of Railway Service (Discipline & Appeal) Rules, 1968 in respect of unauthorised absence from duties for a period of 588 days in various spells. After receipt of the Memo, the applicant has submitted reply dated 03.07.2013 explaining the reasons for absence with a prayer that considering the health issue of the applicant she may be granted other suitable work. Taking aforesaid reply as an admission to the alleged charges, without conducting any departmental inquiry as per the rules, the Disciplinary Authority has issued punishment order dated 05.10.2013.

2.1. Against the aforesaid order, the applicant has filed statutory appeal before the Appellate Authority (Annex-A-8). Since there was a delay in filing the appeal, therefore, application for condonation of delay was also filed by the applicant dated 27.10.2015. The Appellate Authority on the basis of Office Note dated 01.01.2016 held that “the employee not submitted her appeal within 45 days so her appeal for delay condonation is regretted / not permitted.” Thereafter, on the legal notice, impugned communication dated 16.04.2016 was issued.

2.2. The aforesaid orders are challenged by the applicant on the ground that the Disciplinary Authority has committed an error in passing the impugned order without conducting any departmental inquiry merely on the basis of reply dated 03.07.2013. It is further submitted that challenging the aforesaid order appeal was submitted along with delay condonation application, however, looking to the order dated 01.01.2016, it is apparent that the Appellate Authority in fact has not taking into consideration the condonation of delay application and rejected the appeal without assigning proper reasons and thereafter when the legal notice was sent, the prayer was rejected.

3. After notice, the official respondents have filed their reply and contested the O.A.

3.1. It is submitted that the O.A. suffers from delay and laches as the orders passed by the Disciplinary Authority was dated 05.10.2013. On merits the impugned order of Disciplinary Authority and the Appellate Authority was justified. It is submitted that the applicant herself in her reply dated 03.07.2013 stated that she was unable to perform the duties and do not want any defence assistance in her case and, therefore, the Disciplinary Authority has rightly taken the decision to impose penalty of compulsory retirement.

3.2. It is further submitted that the applicant had completed all the formalities for her compulsory retirement from service and accordingly she was paid Rs.2,12,936/- towards her settlement and she is drawing monthly pension from public sector Bank vide PPO dated 16.06.2015. It is submitted that the entire action taken by the applicant is in fact afterthought. It is not in dispute that the statutory appeal was filed beyond 45 days. Therefore, on the basis of reply, the official respondents have prayed for dismissal of the O.A.

4. Shri Nagrani, learned counsel for the applicant, vehemently submitted that after issuance