Central Administrative Tribunal - Hyderabad
S V Ramana vs M/O Railways on 5 April, 2024
1
OA.No.575/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
ORIGINAL APPLICATION NO.020/00575/2016
ORDER RESERVED ON 14.11.2023
DATE OF ORDER: 05.04.2024
CORAM:
HON'BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER
S.V.Ramana, S/o S.Allam Naidu
Aged 44 years, Occ: Loco Pilot (Goods)
O/o The Chief Crew Controller
East Coast Railway
Waltair Division, Visakhapatnam. .....Applicant
(By Advocate Sri K.R.K.V.Prasad)
Vs.
1. Union of India represented by
The General Manager
East Coast Railway
Chandrasekharpur
Bhubaneshwar.
2. The Chief Operations Manager
East Coast Railway
Chandrasekharpur
Bhubaneshwar.
3. The Additional Divisional Railway Manager
Waltair Division
East Coast Railway
Visakhapatnam.
4. The Senior Divisional Mechanical Engineer (OP)
Waltair Division
East Coast Railway
Visakhapatnam. ....Respondents
(By Advocate Smt.B.Gayatri Varma, Senior Central Government Standing
Counsel)
2
OA.No.575/2016
ORDER
PER: HON'BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER
1. The applicant has filed the present OA with a prayer to quash and set aside the penalty orders dated 27/31.03.2015 passed by the Disciplinary Authority, dated 17.06.2015 of Appellate Authority and dated 14/19.01.2016 passed by the Revisionary Authority and grant all consequential benefits as if no penalty was inflicted on him.
2. The brief facts of the case are that while working as Loco Pilot (Goods) at Rayagada Depot in Waltair Division of East Coast Railway, the applicant was issued with a charge memorandum dated 01.07.2014 alleging that he was irregular to his duties. Whenever he falls sick, he submitted either a leave letter or private medical certificate supported by Fitness Certificate issued by a Railway Doctor while returning for duty. Hence, the charge of irregular attendance is not correct. The Chief Loco Inspector was appointed as Inquiry Officer(IO) to inquire into the charges. The applicant raised the issue of non- appointment of Presenting Officer during the cross examination of witnesses. The IO has also confirmed the said fact. In the absence of a Presenting Officer, the IO examined the lone State Witness who cited in Annexure-IV of the charge memorandum on 29.10.2014. The IO has also examined the applicant on the lines of cross-examination, as if the applicant volunteered himself to come as a witness in his own case. But such action of cross examining the applicant by IO is in violation of the statutory rule at Sub-Rule 21 of Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968 and the same was also in violation 3 OA.No.575/2016 of principles of natural justice. The applicant submitted his defence statement stating that even though a private medical certificate was submitted, he was marked absent from duties. The alleged misconduct is not covered under any Conduct Rules, hence the very charge memorandum is not sustainable. Without dealing with the defence of the applicant, the IO had submitted his report holding that the charges are substantiated and the applicant is found guilty. The said IO's report was supplied by the Disciplinary Authority(DA) vide letter dated 28/30.01.2015. Then the applicant submitted his representation on 23.02.2015 and specifically requested the Disciplinary Authority to look into his defence statement along with representation. Then the Disciplinary Authority by merely putting a heading 'Speaking Orders, imposed a penalty of stoppage of increment for three year with cumulative effect vide impugned order dated 31.03.2015. The said order of the Disciplinary Authority clearly shows that the alleged misconduct is not in violation of any specific conduct rule and the omnibus provision at Rule 3(1) of Conduct Rules was used to decide that the allegation is misconduct. The alleged misconduct has been proved with a pre-meditated mind in spite of the fact that there was justification for the applicant to remain away from duty due to sickness. Such approach is in violation of Railway Board instructions under RBE No.22 of 2009. Then the applicant preferred an appeal on 14.05.2015 emphasizing the illegality in the proceeding that followed the charge memorandum and requested to cancel the punishment as the same is harsh. The Appellate Authority also, without dealing with any of the contentions of the applicant, had upheld the penalty imposed by the Disciplinary Authority vide order dated 31.03.2015 which clearly shows non-application of mind and is in violation of law decided by the Hon'ble 4 OA.No.575/2016 Supreme Court in Ram Chander vs. Union of India 1986 SCC (4)12 and thus illegal and unjust. Thereafter, the applicant preferred revision petition on 05.08.2015 to the Revisionary Authority who also by putting a heading 'Speaking Order' had upheld the punishment vide order dated 14/19.01.2016. The said order of the Revisionary Authority is a non-speaking order as the same did not deal with any of the contentions of the applicant, which is also illegal, arbitrary and is in violation of Articles 14 and 16 of the Constitution. Though the applicant mentioned that the punishment is very harsh, none of the authorities by not passing 'speaking order' imposed/confirmed the impugned penalty resulting in miscarriage of justice.
3. On notice, the respondents have filed their reply statement wherein they submit that the applicant had joined in Railways as Trainee Assistant Driver (Diesel/Electrical) at Kharagpur on 09.09.1997 through RRB. Thereafter he was transferred to Crew Controller/Loco/Waltair and subsequently promoted as Sr.ALP and was transferred to Rayagada as Loco Pilot (Goods) on 03.01.2013. Ever since, he joined at Rayagada, he was irregular to his duties. As can be seen from the Abstract Muster submitted by Chief Crew Controller, Loco Rayagada for the period from 03.01.2013 to 23.06.2014, out of 537 working days, the applicant had worked for 399 days and for rest of the period, he had remained unauthorized absence for 70 days but leave was granted for 14 days and sick on Private Medical Certificate for 54 days. i.e. total 138 days. Unless period of absence is sanctioned in some form of leave by competent authority, it would remain unauthorized absence. In the present case, the period of absence was not sanctioned as leave or regularized by competent authority. To increase crew 5 OA.No.575/2016 availability of Running Staff to run the trains in time, ban on reporting sick on private medical certificate is generally being imposed. As the Loco Pilots play a vital role in running the trains, and if the Loco Pilots are not available, it will affect passenger train and freight services. In fact, the applicant should duty bound towards his work, as the post of Loco Pilot is paramount importance and in case of any exigency, he should avail leave or sick with prior approval/permission to avoid unnecessary complications. On the basis of the report, the applicant was taken under disciplinary proceedings by issuing a major penalty charge sheet on 01.07.2014. The applicant had submitted his explanation dated 12.07.2014. The Chief Loco Inspector, Waltair has been nominated as Inquiry Officer to conduct D&A inquiry on the charges levelled against the applicant. The competent authority has also accorded for nomination of defence counsel by the applicant who nominated one Sri A Bholanath, Loco Pilot as his Defence Counsel. Thereafter, preliminary inquiry was held on 27.08.2014 wherein the documents which are relevant to the charges were supplied to the applicant. During enquiry, the applicant did not reply to the questions put forth by the IO on one pretext or the other. Nomination of Presenting Officer(PO) is the prerogative decision of the Disciplinary Authority. The IO himself acted as PO which does not mean to say any violation to statutory rules or violation of principles of natural justice. All reasonable opportunities were extended to the applicant during inquiry. The applicant never cooperated with IO during enquiry proceedings and he replied that he would submit final brief/statement. Thus the applicant did not avail the opportunity to defend his case during the inquiry proceedings. The IO had conducted the inquiry proceedings in conformity with the rules in vogue and 6 OA.No.575/2016 submitted his report on 25.01.2015 concluding that the charges levelled against the applicant are substantiated with the available evidence and is found guilty. After going through the evidence on record, entire inquiry proceedings, inquiry report and the applicant's final defence, the Disciplinary Authority had held that the applicant is guilty of charges and imposed a penalty of stoppage of increment for 3 years with cumulative effect vide order dated 31.03.2015. The applicant after receiving the order preferred an appeal to Appellate Authority i.e., Additional Divisional Railway Manager/East Coast Railway/Waltair who had upheld the punishment vide order dated 17.06.2015 imposed by Disciplinary Authority. Further, the applicant made appeal to Chief Operations Manager, East Coast Railway/Bhubaneswar i.e. Revisionary Authority who, after going through the D&AR case file in detail, had observed that the applicant has been found guilty of the charges as substantiated in the inquiry and as accepted by the DA and there is no new fact brought into the notice of the RA to have any lenient view and certainly the applicant was irregular to his duties as has been brought out in the charge memorandum and hence upheld the punishment imposed by the Appellate Authority. It is submitted that the punishment imposed by the Disciplinary Authority is in commensurate with the gravity of the offence committed by the applicant. In view of the above, since the applicant has not made out any case, the OA is liable to be dismissed being devoid of merits.
4. Heard Sri K.R.K.V.Prasad, learned counsel for the applicant and Smt.B.Gayatri Varma, learned Senior Central Government Standing Counsel for the respondents and perused the materials placed on record.
7OA.No.575/2016
5. The applicant who was appointed as Assistant Driver at Kharagpur through RRB in 1997 was transferred to Rayagada on promotion as Senior Assistant Loco Pilot on 03.01.2013 and he has been irregular to his duties from 03.01.2013 to 23.06.2014. As against 537 working days, he worked only for 399 days and rest of the period, he was on leave for 14 days and sick on Private Medical Certificate for 54 days and had remained unauthorized absence for 70 days. Following the inquiry report, the Disciplinary Authority i.e. the Sr.DME has imposed the punishment of withholding of his annual increment for a period of 3 years with cumulative effect on 31.03.2015. Though he was claiming that he had applied for leave, he has not given any proof as required by the rules in vogue in support of his claim. This has been brought out by both the parties that he has given fitness certificate issued by Railway Doctor but for his absence period, he has furnished private medical certificates which were banned by the Railway authorities in different spells viz. 01.02.2013 to 31.03.2013, 11.05.2013 to 30.06.2013, 02.09.2013 to 16.09.2013, 04.10.2013 to 03.11.2013, 20.12.2013 to 20.01.2014, 10.03.2014 to 24.03.2014 & 01.05.2014 to 07.05.2014. The Disciplinary Authority has appointed Chief Loco Inspector as the Inquiry Officer(IO). The applicant's contention that the Presenting Officer(PO) was not appointed and therefore, the inquiry was not as per the rules is not correct as the nomination of Presenting Officer in disciplinary inquiry is not obligatory but only discretionary with the Disciplinary Authority. In case where no Presenting Officer is appointed, the inquiring authority may itself examine and cross-examine the witnesses to find out the truth in the charges as per R.B's.No.E(D&A) 70 RG 6-41 of 20.10.1971(N.R.5493). The applicant is also raising objection of his cross-examination by the IO as 8 OA.No.575/2016 violative of Sub-rule-21 of Rule-9 of Railway Servants(Discipline & Appeal) Rules 1968. But the Rule says that the inquiring authority may, after the Railway servant closes his case, and shall, if the Railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Railway servant to explain any circumstances appearing in the evidence against him. During the arguments, applicant has also raised the issue whether the unauthorised absence is a mis-conduct or not. The Hon'ble Supreme Court in its judgment in State of Punjab vs. Dr.P.L.Singla in Civil Appeal No.4969/2008 had categorically stated that 'the unauthorized absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stood condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct.' In the present case, applicant is nowhere denying the unauthorised absence as noticed and reported by the authorities. He is contending that he could not attend duties because of his sickness. This raises doubt as to how suddenly on getting transfer to Rayagada, the applicant started getting sick very frequently that he could not attend the duties. The applicant was working as Senior Assistant Loco Pilot which is running staff who has to be careful to maintain the timings of the train movements. It is also a fact that the applicant was given sufficient opportunities to explain the reasons of his absence but he had not cooperated during the inquiry and he has not given answers to questions whenever asked. The inquiry 9 OA.No.575/2016 was conducted in conformity with the rules prescribed by Railway Servants (D&A) Rules, 1968. As per the rules, whenever the Disciplinary Authority is of the opinion that there are grounds for inquiry into the truth of any imputation of mis-conduct or misbehaviour against the Railway servant, it may itself enquire into or appoint inquiry officer under the rules. There are no apparent procedural irregularities in the enquiry. Appellate Authority and Revising Authority have upheld the punishment as passed by the Disciplinary Authority. The applicant's frequent unauthorised absence is nothing but lack of devotion to duty. He has submitted medical certificate issued by private doctors when there was a ban but on the joining, he furnished the fitness certificate of the Railway Doctor. This also raises doubts about the genuineness of his illness during his un- authorised absence. In background of these facts, no merit is found in the applicant's contention and hence, the OA is liable to be dismissed.
6. Accordingly, the OA is dismissed. No order as to costs.
(SHALINI MISRA) ADMINISTRATIVE MEMBER /ps/