Missing Railway Employee Removed Ex Parte: CAT on Unserved Charge-Sheet and RBE 150/91

When a Railway employee disappears in the middle of a disciplinary inquiry, the inquiry usually does not stop. It goes on without him, an ex parte report is filed, and a removal order is passed. His family is then told that nothing except provident fund and group insurance is payable. In Leela Pathrabe, the Central Administrative Tribunal at Allahabad examined exactly this situation and set the proceedings aside. This note explains what the Tribunal decided, what it left open, and what families of a missing Railway employee should check before approaching the Tribunal.

Facts: removal of a missing Railway employee

• The applicant’s husband joined the Railways as a Cashier in 1983 and was later working as Sub-Divisional Treasurer at Farrukhabad under the Cash and Pay Office.
• A major-penalty charge-sheet dated 17 June 1999 alleged a shortage or misuse of Government funds of Rs. 55,509.
• He was on unauthorised absence from 21 August 1999. His wife reported him missing, and after she moved the court under Section 156(3) Cr.P.C. an FIR was registered on 27 October 2001. The police closed the case with a final report on 23 December 2001 because the kidnapping allegation was not established.
• The inquiry went ahead without him. The second Inquiry Officer submitted his report on 26 April 2004, and the Disciplinary Authority removed him from service on 24 August 2004 under Rule 6(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968.
• Only his provident fund and GIS were treated as payable. The Railways described the removal as being for proved financial misconduct, not for disappearance.
• The widow approached the Tribunal in 2018. The respondents objected that the challenge came more than thirteen years after the removal order.

What the Tribunal found wrong with the proceedings

The Tribunal went through the record and listed several defects:

1. Knowledge of the disappearance. The office knew the employee was missing throughout the inquiry. The Inquiry Officer’s own report of 7 March 2002 records that he was absent or missing. Despite this, the inquiry proceeded one-sidedly and nobody took any step on the unauthorised absence itself.
2. Inquiry Officer was also a witness. The officer appointed to conduct the inquiry was a witness in the same case.
3. Competence to issue the charge-sheet. The charge-sheet was issued by a person who was not competent to issue it.
4. No service on the charged employee. Neither the charge-sheet nor the letters calling him to the inquiry ever reached him. On this the Tribunal relied on Union of India v. Dinanath Shantaram Karekar (1998) 7 SCC 569, where the Supreme Court held that when a charge-sheet or show-cause notice requires the employee to reply, actual service must be proved, and proceedings without it are vitiated. The Tribunal applied that rule and set aside the charge-sheet.

The Railway Board instruction on genuinely missing employees

The Tribunal also gave weight to Railway Board letter dated 22 August 1991 (RBE No. 150/91). The letter deals with cases where a Railway servant is removed for unauthorised absence and it later turns out that he was genuinely missing. In summary, it says:

• Where it is established that the employee was really missing and not unauthorisedly absent, disciplinary action rests on an invalid premise, and the pending proceedings or the punishment should be annulled.
• Annulment of a punishment already imposed can be done by the appellate or revisionary authority, and no formal review or revision procedure needs to be followed.
• After annulment, leave encashment, salary dues and retirement benefits can be extended, and compassionate appointment can be considered after the prescribed waiting period.

In this case the Financial Adviser and Chief Accounts Officer had, on 30 May 2007, directed that the case be processed under this letter after taking legal opinion. The Senior Divisional Finance Manager replied on 1 June 2007 that the letter covered absentees, not financial irregularity, and that no appeal had been filed against the removal. The Tribunal did not accept that position. It held that, since an FIR had been lodged and the employee was missing, the case should have been treated and processed as one of a missing person.

Directions given

The Tribunal set aside the charge-sheet and directed the Railways to process the applicant’s case for retiral dues and family pension in line with RBE 150/91 within four months of receiving the order. The O.A. was disposed of without costs.

Compassionate appointment was refused

The applicant also asked for appointment of her son. The Tribunal looked at RBE No. 164/98 (26 July 1998), the Railway instruction on compassionate appointment in missing-employee cases. That instruction allows a request to be considered after at least two years, provided an FIR has been lodged, the person is untraceable and the competent authority finds the case genuine. It excludes an employee suspected of fraud, and it requires the decision to be taken at General Manager level. It also says that compassionate appointment is not a matter of right and may be delinked from payment of settlement dues.

Because the husband had been charged with financial irregularity, the Tribunal held that the case for compassionate appointment was not made out, even though the inquiry itself was vitiated.

Points to keep in mind

• Limitation was raised but is not discussed. The respondents objected to a delay of more than thirteen years. In the reasoning of the reported order the Tribunal does not take up that objection. The order should therefore not be read as a ruling that such delay can be ignored. Section 21 of the Administrative Tribunals Act, 1985 prescribes limitation (one year, with provisions for cases where a representation has been made) and gives the Tribunal power to condone delay on sufficient cause. A family in a similar position should be ready to explain the delay and to show continuous efforts with the department.
• The suspicion of fraud still counted. The charge-sheet was set aside for want of service, so the financial allegation was never proved. Yet the same allegation was treated as a bar to compassionate appointment under the Board’s instruction. Families should expect this argument from the Railways wherever the charge-sheet involved funds.
• The answer was not to wait for an appeal. The Railways relied on the absence of an appeal by the employee. The Tribunal, following the logic of RBE 150/91, treated the matter as one where the punishment rests on an invalid premise, and no appeal was required to correct it. The Board’s letter itself says that no review or revision procedure is needed for annulment.
• Persuasive value only for Jabalpur. This is a decision of the Allahabad Bench. It does not bind the Jabalpur Bench, which hears matters of the West Central Railway, although it is a reasoned decision on a recurring issue.

Checklist for families of a missing Railway employee

1. Lodge an FIR promptly and keep copies of the FIR, the police progress reports and the final report.
2. Inform the employee’s office and the Divisional authorities of the disappearance in writing, and keep the acknowledgment. Proof that the administration knew is central to an argument about service of notices.
3. Collect every charge-sheet, inquiry notice, inquiry report and order, and check how and where each was served.
4. Check who issued the charge-sheet and who was appointed Inquiry Officer and Presenting Officer, and whether any of them is a witness in the case.
5. Represent to the Railway authorities under RBE 150/91 and RBE 164/98, and keep a dated record of every representation and reply.
6. Take advice on limitation before approaching the Tribunal, and do not delay beyond what is necessary.

Where this fits

This judgment adds to the Tribunal’s case law on disciplinary proceedings before CAT. Related reading: ex parte inquiry of a Gramin Dak Sevak and natural justice, where the same Bench considered an employee who stayed away from the inquiry by choice, and back wages and Fundamental Rule 54-B, on consequential benefits after a penalty is undone.

This note is general information on a published judgment and is not legal advice. Readers should read the judgment itself and take advice on their own facts.