Patna High Court - Orders
Dwarika Prasad Pandey vs The Union Of India & Ors on 7 May, 2014
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2472 of 2013
======================================================
Dwarika Prasad Pandey, Son of Late K.N. Pandey, Resident of Village-
Bishawan, Police Station- Nawanagar, District- Buxar (Bihar)
.... .... Petitioner.
Versus
1. The Union of India through General Manager, Eastern Railway, 17,
Netaji Subhash Road, Kolkata- 700001
2. The Divisional Railway Manager, Eastern Railway, Asansol
3. The Senior Divisional Operating Manager, Eastern Railway, Asansol
4. The Divisional Operating Manager, Eastern Railway
5. The Divisional Safety Officer, Eastern Railway, Asansol
6. The Assistant Operating Manager [G], Eastern Railway, Asansol
.... .... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Munna Prasad Dixit, Advocate
: Mr. Sanjay Kumar Choubey, Advocate
For the Respondent/s : Mr. Anil Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH
C.A.V. ORDER
(Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP
SINGH)
10 07-05-2014The petitioner prays for setting aside the order, dated 21.01.2010, passed, in Original Application No. 199 of 2004, as well as the order, dated 06.09.2012, passed in Review Application No. 07 of 2012, whereby the learned Central Administrative Tribunal, Patna Bench, Patna, while dismissing the applications, refused to interfere with the order removing the petitioner from service.
2. The facts of the case may, in brief, be stated as follows:
The petitioner was appointed as an Assistant Station Master, on 26.11.1982, and, later on, promoted to the post of Station Master. On 01.06.1995, while he was 2 Patna High Court CWJC No.2472 of 2013 (10) dt.07-05-2014 2 / 10 working as Station Master Cabin, at Kalu Bathan Railway Station, under Asansol Division (Eastern Railway), at 16.22 hours, 3151 Up Express (Jammutavi) collided with a stationery Electric BK. SC Goods Train on account of which some persons died and some other persons sustained injuries. The Railways constituted an Enquiry Commission, on 05.08.1996, headed by a retired Judge of the Supreme Court, namely, Justice N. Venkatachala, who submitted his report, on 22.05.1996, holding the applicant and 02 (two) others, namely, Jalaluddin Ansari, ESM, and T.K. Ghosh, Signal Inspector, prima facie responsible for the accident.
3. On the basis of the enquiry report, Divisional Safety Officer issued charge sheet, dated 05.08.1996, under Rule-9 of R.S. (D&A) Rules, 1968, alleging violation of SR-19 (VI). The enquiry officer, on the basis of statements of some witnesses, found the petitioner guilty of the charge. On the basis of the enquiry report and after completing formalities under the relevant Discipline and Appeal Rules, the petitioner was removed from the service by the Divisional Safety Officer, Asansol, vide punishment notice No. 1/T/95/RB, dated 31.03.1997, with effect from 01.04.1997. The other two officials, namely, Sri Jalaudddin Ansari ESM/KAO and Sri T. K. Ghosh, SI, Gr I/MMU, having been found guilty, were punished with removal from service and reduction to a lower grade post and pay 3 Patna High Court CWJC No.2472 of 2013 (10) dt.07-05-2014
3 / 10 respectively. The appeal filed by the appellant, too, was rejected by the Senior Divisional Operational Manager, Eastern Railway, Asansol, vide office order, dated 16.05.1997.
4. Being aggrieved by the order, dated 16.05.1997, the petitioner filed O.A. No. 583 of 1997, which was allowed on 13.11.2003, with direction to the appellate authority to pass a fresh speaking and reasoned order in accordance with law meeting all the points. The Senior Divisional Operational Manager, as the Appellate Authority, passed a reasoned order, dated 17.02.2004, rejecting the petitioner's plea and the rejection of the petitioner's appeal was communicated to the petitioner vide letter, dated 01.03.2004.
5. The petitioner challenged the order, dated 17.02.2004 aforementioned, in O.A. No. 199 of 2004, which came to be dismissed, on 21.01.2010. The petitioner preferred Review Application No. 07 of 2012, which, too, was dismissed on 06.09.2012. Both orders, dated 21.01.2010 and 06.09.2012, dismissing the Original Application as well as the Review Application, are under challenge in this writ application.
6. We have heard the learned counsel for the parties.
7. The petitioner has, primarily, raised two 4 Patna High Court CWJC No.2472 of 2013 (10) dt.07-05-2014 4 / 10 objections. The Divisional Safety Officer is not competent to issue charge-sheet against him inasmuch as he is an employee of Operating Division of which controlling and disciplinary authority is Divisional Operating Manager. The petitioner also submits that the same mistake was, again, committed by Divisional Safety Officer, while passing the order of removal, inasmuch as he was not the competent authority or the controlling authority as already reiterated above. The petitioner next submits that the report of the Enquiry Commission, which was the only document, upon which reliance was placed by the enquiry officer, had not been supplied to him. Further-more, even after repeated requests, the statement of witnesses were also not furnished to him. The petitioner states that he did raise the issue of jurisdiction before the Divisional Safety Officer, Eastern Railway, Asansol, long before his removal and submissions of the respondents to the contrary are factually incorrect. In support of his submissions, the petitioner has referred to his representations, dated 09.12.1996 and 17.01.1997, as Anexure-5/1 Series to supplementary affidavit at page 169 to 172 of paper book.
8. In support of his submissions that disciplinary authority, for employees of Operating Division, would be Divisional Operating Manager or the Senior Divisional Operating Manager and not the Divisional Safety Officer, 5 Patna High Court CWJC No.2472 of 2013 (10) dt.07-05-2014 5 / 10 reliance has been placed on a number of orders of learned Tribunals across the country as well as the Circulars, namely, (i) RB Circular No. E (D&A) 60-RG-6-30, dated 28.07.1962, ER Sl. No.4968, (ii) RB No. E (D&A)-72-RG- 16-13, dated 16.10.73, E (D&A) 78-RG-6-15 dated 10.7.79 and 06.7.79. (iii) RB Circular No. Sl. No. ER 21/79 and 151/79, SE 222/79 ratifying prohibitory orders in the matter of reply to GM.
9. In a nutshell, the submission of the petitioner is that entire disciplinary proceedings, including the issuance of the charge memo as well as the order of removal, are without jurisdiction
10. On the other hand, learned Counsel for the Railways, submits that the enquiry was conducted in accordance with law and during the relevant period, Divisional Safety Officer was the disciplinary authority of the petitioner and, in the light of CPO/ER/Kol's letter No. E-308/0/4/Vol I, dated 15.05.1990, the Divisional Safety Officer was empowered to take disciplinary action against Operating Staff for violation of Safety Rules/Proceedings. However, the disciplinary power of Divisional Safety Officer was withdrawn vide Rly Board's letter No. E (D&A) 94 RG- 6-69, dated 04.08.1997, which was docketed by Sr. Divisional Personnel Officer, Asansol's letter No. EE (P&R) 30/0/Vol IV, dated 06.10.1997. The letter, dated 6 Patna High Court CWJC No.2472 of 2013 (10) dt.07-05-2014 6 / 10 15.05.1990, makes it abundantly clear, contends learned Counsel for the respondents, that Divisional Safety Officers, being the incharge of matters relating to safety aspects of operation of train services, are quite competent to take disciplinary action against staffs of the Operating Department for violation of Safety Rules/Programme.
11. Thus, neither the charge-sheet, dated 05.08.1996, issued under Rule-9 of R.S. (D&A) Rules, 1968, nor the order of punishment order, dated 31.03.1997, issued by the Divisional Safety Officer, Eastern Railway, Asansol, suffered, according to the learned counsel for the respondents, from lack of jurisdiction.
12. The issues are:
"(i) Whether the Divisional Safety Officer was the Disciplinary Authority of the petitioner during the relevant period; and
(ii) Whether he had jurisdiction to issue charge-
sheet and pass order of termination?"
13. The disciplinary proceeding against petitioner commenced with issuance of charge-sheet, on 05.08.1996, by the Divisional Safety Officer. The order of removal was passed on, 31.03.1997, by the same authority. Furthermore, as per letter, dated 15.05.1990, and C.P.O./ER/Kol, the Divisional Safety Officer was 7 Patna High Court CWJC No.2472 of 2013 (10) dt.07-05-2014 7 / 10 authorized to take disciplinary action against the employees of operating department.
14. From the various averments made in the writ petition and the annexures appended to the petitions, we find that similar issues had come up for consideration before different Benches of learned Central Administrative Tribunal. After detailed considerations of the issues, the learned Tribunal held that the operating staff and the safety officers work and operate in different and distinct spheres and, hence, are not favourably suited to become their controlling officers.
15. The petitioner has, therefore, to our mind, rightly placed reliance upon decisions in the case of (i) M. L. Gupta Vs. Union of India and Another of Central Administrative Tribunal, Allahabad Bench, [1988 8 Administrative Tribunals Cases 20], (ii). Akeel Mohammad Nayak Vs. Union of India and Others of Central Administrative Tribunal (Full Bench Jodhpur), [2002 (2) Administrative Total Judgments 270], and (iii) Suresh Prasad Rajak Vs. Union of India & Others of Central Administrative Tribunal, Patna, [V-1996(2) All India Services Law Journal 40]. In all these cases, the learned Tribunal has held that the Divisional Safety Officer cannot be empowered to be disciplinary authority Assistant Station Master/Station 8 Patna High Court CWJC No.2472 of 2013 (10) dt.07-05-2014 8 / 10 Master.
16. Again, in Original Application No.538 of 1998 (Sanjay Kumar Agrawal Vs. Union of India & Another), reported in 2003(3) [A.T.J.] 497 in paragraph Nos. 7 and 8, too, the learned Tribunal observed that the Divisional Safety Officer cannot be Disciplinary Authority of Assistant Station Master/Station Master. The said judgment of the learned Central Administrative Tribunal has been upheld by the High Court of Gujarat, on 02.04.2004, in The Union of India & Another Vs. Sanjay Kumar Agrawal, [2004(3) (Lab. I.C.) 2538].
17. We fully agree with the various orders of the learned Central Administrative Tribunals as well as of Gujarat High Court placed on record that the Divisional Safety Officer ought not to have been the disciplinary authority of employee of Operating Division because of different and distinct nature of their work inasmuch as Divisional Safety Officer belongs to safety organization and not to Operating department. Realizing its folly that Divisional Safety Officer cannot be made controlling or disciplinary authority for employees of Operating Department, the Circular, dated 15.05.1990, empowering such authority was withdrawn vide Railway Board's Letter No. E (D&A) 94 RG-6-69, dated 04.08.1997, which was docketed by letter, dated 06.10.1997, of Senior Divisional 9 Patna High Court CWJC No.2472 of 2013 (10) dt.07-05-2014 9 / 10 Personnel Officer, Asansol.
18. Thus, the Circular, dated 04.08.1997, withdrawing the disciplinary power of Divisional Safety Officer in respect of employees of Operating Department and, for that reason, the letter, dated 15.05.1990, of C.PO/ER/Kol vesting such power, in the Divisional Safety Officer, could have been of no consequence as Divisional Safety Officer lacked inherent jurisdiction to act as disciplinary authority of employees of Operating Department.
19. The learned Tribunal was, therefore, in the present case, not correct in taking the view that the Divisional Safety Officer ceased to become the controlling officer of Operating Staff only from 04.08.1997, i.e. the date on which such power was officially withdrawn by the higher authorities and, hence, Divisional Safety Officer was competent to issue charge sheet on 05.08.1996 and also to impose penalty of removal from service of the petitioner, on 31.03.1997.
20. In the result, this writ application succeeds and the impugned order, dated 21.01.2010, in Original Application No. 199 of 2004, and order, dated 06.09.2012, passed in Review Application No. 07 of 2012, dismissing the Original Application and Review Application, are set aside. The matter is remitted to the respondents with 10 Patna High Court CWJC No.2472 of 2013 (10) dt.07-05-2014 10 / 10 liberty to proceed afresh in accordance with law.
21. With the aforesaid observation, this writ application shall stand allowed.
(Samarendra Pratap Singh, J.) I. A. Ansari, J: I agree (I. A. Ansari, J.) Uday/-NAFR