Central Administrative Tribunal - Ernakulam
Mohamed Ismail T.A vs The General Manager on 24 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.881/09
Thursday this the 24th day of March 2011
C O R A M :
HON'BLE Mr.GEORGE PARACKEN, JUDICIAL MEMBER
HON'BLE Ms.K.NOORJEHAN, ADMINISTRATIVE MEMBER
Mohamed Ismail T.A.,
S/o.Abdul Rahiman,
Working as Tower Wagon Driver, Ernakulam South.
Residing at Padijaraparambu, 50/1250A,
Jawan Cross Road, Elamakkara (PO),
Kochi - 682 026. ...Applicant
(By Advocate Mr.Martin G Thottan)
V e r s u s
1. The General Manager, Southern Railway,
Head Quarters Office, Chennai.
2. Chief Electrical Engineer, Southern Railway,
Head Quarters Office, Chennai.
3. Senior Divisional Electrical Engineer/Traction,
Southern Railway, Trivandrum Division,
Trivandrum.
4. The Senior Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum. ...Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil)
This application having been heard on 24th March 2011 this Tribunal
on the same day delivered the following :-
O R D E R
HON'BLE Mr.GEORGE PARACKEN, JUDICIAL MEMBER The applicant is aggrieved by the Annexure A-8 letter No.V/TRD/150/1/Sanction dated 21.4.2009 issued by the Senior Divisional Electrical Engineer, Traction, Trivandrum, informing the ADEE/TRD/ERS that the Tower Wagon competency of the applicant was cancelled after an interview and he should be taken off from operations of Tower Wagon with immediate effect and he should be repatriated to his parent cadre accordingly. He is further aggrieved by Annexure A-7 O.O.No.59/09/EL/TRD dated 4.12.2009 issued by Shri.S.Janakiraman, Assistant Personnel Officer, Trivandrum Division repatriating him to his parent cadre of Technician Grade I.
2. The brief facts of the case are that the applicant was initially appointed as Technician Grade III in Madras Division of Southern Railway with effect from 6.1.2001. He joined the Trivandrum Division on the basis of the mutual transfer on 29.12.2004. He is a holder of Diploma in Electrical Engineering. Pursuant to a notification issued by the 4th respondent, he applied for the post of Tower Wagon Driver (ex cadre post) in TRD Unit. On the basis of the written examination conducted for selection to the aforesaid post, he was selected and appointed as Tower Wagon Driver with effect from 16.1.2006. As there is a requirement that one should obtain the competency certificate before driving a Tower Wagon, he was sent for GRS training at Zonal Railway Training Institute, Thirichirapally. He completed the GRS training successfully and has secured the 1st position as seen from Annexure A-1 certificate issued by the Zonal Railway Training Institute, Thirichirapally. Thereafter, he has undergone road learning training and handling training along with a qualified driver. On successful completion of those trainings, the 3rd respondent issued him the competency certificate. Having declared as a qualified Tower Wagon Driver, he started running the Tower Wagon from 16.1.2006 onwards.
3. The applicant has submitted that he was instructed to take Tower Wagon bearing No.03877 for routine maintenance of Allapuzha-Haripad section on 2.4.2009. According to him, the said Tower Wagon loco was having a history of frequent failures and from 30.12.2008 onwards the said loco was not taken through main line and the same was used only in yards. He has also submitted that the aforesaid fact is clear from the log book and history book maintained in respect of the said Tower Wagon. In the said circumstances, the applicant, vide Annexure A-3 dated 2.4.2009, requested his superior to give in writing the instruction to take the said loco for routine maintenance through Allapuzha-Haripad Section and receipt of the same he took the loco but when it reached Ambalapuzha attending routine maintenance work, the engine failed and he could not restart the same. Despite all his best efforts and also those of his supervisor who himself was an experienced Tower Wagon driver who happened to be in the cabin at that time, could not restart the engine. Only after the arrival of the relief loco, the faulty tower car could be towed from the main line and taken to the yard. As a result, the Kurla Express was to be detained for 20 minutes.
4. It was, thereafter, that the Senior Divisional Electrical Engineer/Traction/Trivandrum vide impugned Annexure A-8 order dated 21.4.2009 has cancelled his competency certificate and recommended for his repatriation to his parent cadre. According to the applicant, since no notice was given to him before the cancellation of his competency certificate he was kept in darkness and he was not given any duty as a Tower Wagon driver from 2.4.2009. However, he came to know about the cancellation of his competency certificate only from the Annexure A-7 letter dated 4.12.2009 repatriating him to his parent cadre. The applicant has challenged the Annexure A-7 and Annexure A-8 orders stating that they are arbitrary and discriminatory as no notice was given to him before his competency certificate was cancelled and he was repatriated to his parent department. He has also submitted that the cancellation of the competency certificate involves civil consequences and it has been done in violation of the principles of natural justice. In this regard he has relied upon the judgment of the Apex Court in State of Punjab and another Vs. Iqbal Singh (AIR 1976 SC 667) wherein it has been stated as under :-
"4. Though the impugned order imposing cut in pension and gratuity is not one of reduction in rank falling within the purview of Article 311 (2) yet there can be no doubt that it adversely affected the respondent and such an order could not have been passed without giving him a reasonable opportunity of making his defence. Reference in this connection may be made with advantage to the decision of this Court in K. R.Erry & Sobhag Rai Mehta's case (supra) where after an exhaustive review of the case law bearing on the point, it was observed at page 413 as follows:-
"Where a body or authority is judicial or where it has to determine a matter involving rights judicially because of express or implied provision, the principle of natural justice audi alteram partem applies. See: Province of Bombay, v. Kusaldas S. Advani & Ors. [1950 S.C.R. 621 (725), and Board of High School & Intermediate Education, U.P. Allahabad v. Ghanshyam Das Gupta & ors. (1962) Suppl. (3) S.C.R.36. With the profiteration of administrative decisions in the welfare state it is now further recognised by Courts both in England and in this country, (especially after the decision of House of Lords in Ridge v. Baldwin (1964)A.C.40 that where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority affects, individual rights or interests, and having regard to the particular situation it would be unfair for the-body or authority not to have allowed a reasonable opportunity to be heard.. See: State of orissa v. Dr. (Miss) Binapani Dei & Ors. [1967) 2 S.C.R. 625 and in re H. K. (An lnfant) [1967] 2 Q.B.D. 617. In the former case it was observed as follows:-
"An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up`his version or drefence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed. It need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."
These observations were made with reference to an authority which could be described as characteristically administrative. At page 630 it was observed :
"It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidenve in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence."
"This case and the English case in re H.K. (An Infant) were spcifically referred to with approval in a decision of the constitutional bench of this Court in A. K. Kraipak & Ors. etc. v. Union of India & Ors. [1970] l S.C.R. 457".
5. The applicant has, therefore, sought a direction from this Tribunal to quash and set aside the aforesaid Annexure A-7 and Annexure A-8 orders and to direct the respondents to reinstate him as a Tower Wagon driver with all consequential benefits. The applicant has also submitted that his repatriation is nothing but a penal action against him as a number of Tower Wagon drivers who are much seniors to him are still being retained.
6. The respondents in their reply statement submitted that the lien of the applicant was being maintained in the post of Technician/OHE and even in the case of an employee having satisfactory record of work in the post of Tower Wagon driver, he needs to be reverted to his parent cadre where his lien was maintained on completion of the prescribed tenure of deputation. In the case of the applicant, he was posted as Tower Wagon driver with effect from 16.1.2006 and completed the maximum permissible period of four years of deputation as prescribed in the Chief Personnel Officer, Southern Railway, Chennai letter dated 16.10.2001. They have also submitted that in terms of the aforesaid letter after the expiry of tenure of the employee in the ex cadre post, the incumbent has necessarily to be posted back to his cadre post and he will become eligible for consideration for deputation to another ex cadre post, only after the minimum cooling period of two years in the cadre post. In exceptional circumstances, this period can be reduced to one year with the approval of the Principal Head of the Department concerned. They have further submitted that the post of Tower Wagon driver is a "safety post" and an employee having unsatisfactory performance/efficiency like the applicant cannot be retained in the post of Tower Wagon driver for any longer. They have submitted that the applicant's service was not satisfactory and he was given a warning report by his supervisory official on account of the failure of the Tower Wagon manned by the applicant on 22.3.2006. They have submitted that the explanation given by the applicant that he had less years of experience in the said post was not satisfactory. They have also submitted that the applicant was not taking any initiative as a Tower Wagon driver and he was remained on leave very often. He availed more than 60 days of leave during the period from January 2006 to September 2006, besides his normal weekly rests. He has been availing on an average 7 days of leave per month and it shows that he lacks initiative. They have also submitted that the meritorious award for service rendered by him during his earlier tenure of posting does not have any bearing with his deeds and behaviour during the present posting as Tower Wagon driver. Therefore, the awards received during earlier tenure cannot in any way form the basis for pleading ignorance/overlooking the official lapses committed during the present tenure. If the applicant was having any doubt regarding fitness/rail worthiness of Tower Wagon, he should have consulted Junior Engineer/Tower Wagon/Ernakulam, Shri.K.D.Baburaj, or taken written/verbal permission from him since it being a technical matter. As regards the cancellation of the competency certificate the respondents have submitted that because of certain administrative problems there was delay in communicating the decision taken in the matter and that was the reason why he was not given any duty during the interregnum period.
7. We have heard the learned counsel for the parties. The grievance of the applicant is two fold. The first one is that he has been suddenly without any notice repatriated to his parent cadre before the expiry of the normal period of deputation ie. four years. His contention is that when number of persons who have joined much earlier than him are being allowed to continue, picking up and choosing him alone for repatriation is arbitrary and illegal. The other grievance of the applicant is that his competency certificate has been arbitrarily cancelled by the 3rd respondent, namely, the Senior Divisional Electrical Engineer/Traction, Southern Railway, Trivandrum without any prior notice to him. The contentions of the respondents, on the other hand, in respect of his first grievance is that since the applicant has completed the normal tenure of deputation of four years, it is not a penal action against him. As regards cancellation of his competency certificate is concerned, the respondents have not offered any explanation. Only what they say is that there was delay in cancellation of the competency certificate.
8. As regards the question of repatriation is concerned, admittedly, the applicant completed four years of tenure which is the normal period of deputation. The applicant has no right to continue beyond that period unless the borrowing department itself has interest in retaining him and the permission of the parent department was obtained. According to the respondents, they were not satisfied with the performance of the applicant. In these circumstances, we do not find any illegality on the part of the respondents in repatriating the applicant to the parent cadre. As regards the cancellation of the competency certificate is concerned, it is not the case of the applicant or his counsel that the 3rd respondent is not competent to do so. He himself has submitted that the competency certificate was issued by the 3rd respondent after he had successfully competed in the written examination and completed the training. However, the contention of the applicant is that the manner in which the competency certificate cancelled was arbitrary, illegal and without affording him an opportunity of being heard. He has also submitted that the cancellation involves civil consequences. According to him, the certificate acquired by him after his earnest efforts could not have been withdrawn from him without any notice. We agree with the counsel for the applicant that the action on the part of the 3rd respondent in withdrawing the competency certificate without notice is arbitrary, illegal and against the principles of natural justice. We, therefore, quash and set aside the decision of the 3rd respondent in cancelling the competency certificate possessed by the applicant and direct the said respondent to restore the same to him within four weeks of the date of receipt of a copy of this order. However, the respondents are at liberty to initiate action against the applicant for the cancellation of the competency certificate issued to him duly following the principles of natural justice.
9. With the aforesaid direction the OA is partly allowed. There shall be no order as to costs.
(Dated this the 24th day of March 2011)
K.NOORJEHAN GEORGE PARACKEN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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