Central Administrative Tribunal - Mumbai
Shri Sunil Digambar Jagtap vs M/O Railways on 4 October, 2017
1 OA.No.46/2014
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
O.A.No.46/2014
Dated this Wednesday the 4th day of October, 2017.
Coram: Hon'ble Shri Arvind J. Rohee, Member (J).
Hon'ble Ms.B. Bhamathi, Member (A).
Mr. Sunil Digambar Jagtap,
Age: 49 years,
Working as Chief Commercial Inspector,
working under D.R.M. Central Railway
Solapur Division,
R/o at Shriram Nagar,
Raut Vasti Bhosare at Kurduwadi,
Taluka: Madha,
District: Solapur-413208. ...Applicant.
( By Advocate Shri D. N. Karande ).
Versus
1. Union of India
Through General Manager,
Central Railway,
CST Mumbai,
2nd floor, G.M. Office building,
CST Mumbai-400 001.
2. The Divisional Railway Manager
Central Railway,
Solapur Dn. ModiKhana,
Solapur-413003.
3. Chief Commercial Manager
(PS) Central Railway,
Annexed Accounts Office Building,
2nd Floor, CST Mumbai-400001.
4. Sr. Divisional Commercial Manager
Office of D.R.M. Central Railway,
Modikhana,
Solapur-413003. ... Respondents.
( By Advocate Shri V.S. Masurkar ).
Order reserved on : 31.07.2017
Order delivered on : 04.10.2017
2 OA.No.46/2014
O R D E R
Per : Arvind J. Rohee, Member (Judicial) The applicant who is presently working as Chief Commercial Inspector in Central Railway, Solapur Division under the respondent no.2, approached this Tribunal under Section 19 of the Administrative Tribunals Act 1985, since aggrieved by the impugned orders imposing punishment in a Disciplinary Proceedings against him by all the three Authorities namely Disciplinary Authority (Respondent no.4), Appellate Authority (Respondent no.2) and the Revisional Authority (Respondent no.3). The following reliefs are sought in this OA:-
"(a) That this Hon'ble Tribunal may call for the records pertaining to the case of Disciplinary proceeding at various level, which led to issue the impugned orders.
(b) This Hon'ble Tribunal may kindly quash and set aside the impugned order dated 08.10.2012 (Annexure A-1) of Revisionary Authority, which is merged in earlier order 06.01.2012 (Annexure A-13) of Disciplinary Authority, and appellate orders 19.03.2012 (Anneuxre A-15).
(c) Declare that punishment
ordered is invalid, void,
illegal.
(d) That the respondents be
directed to restore all the
increments with all
consequential benefit.
3 OA.No.46/2014
(e) Cost of this O.A. may
kindly be saddled on the
respondents.
(f) Any other relief that this
Hon'ble Tribunal deem for to be granted."
2. The applicant was initially appointed as Commercial Clerk on Compassionate ground by the Divisional Railway Manager vide appointment letter no.Sur/P/SAC/comp./class.III/ dated 21.11.1984 (Annexure A-2). Thus D.R.M. Central Railway, Solapur is the Appointing Authority of the applicant. The applicant then secured promotion as Chief Commercial Inspector and was posted in Solapur Division of Central Railway. According to the provisions of the Commercial Manual Volume.II as contained in Chap.XXIX, of the Indian Railways Establishment Manual, Chief Commercial Inspector is required to supervise the work of his subordinate officials viz. Parcel Clerks, Booking Clerks, Peons etc. and he is expected to ensure the discipline in the office amongst the staff members. Applicant exercised jurisdiction over 25 Railway Stations situated between Latur and Pandharpur covering area of 216 kms.
3. It is stated that one Shri C.R. Bokephode was working as Station Manager Barshi Railway Station in operating department and being the 4 OA.No.46/2014 Station Master he had developed a sense of superiority complex. He was posing himself to be in-charge of the activities at Railway Station. In fact Commercial Department is distinct from Operating Department. Since he was stationed at Barshi he expected that all the staff working at Railway Station should obey his orders and not of the applicant. The said Shri C.R. Bokephode joined Barshi town Railway Station on request transfer from Kurduwadi station. The applicant being Office bearer of Railway Employees Union, was called upon by the said Shri C.R. Bokephode to assist him in getting him transferred. However, since it cannot be effected at the earliest point of time as desired by the said Shri C.R. Bokephode, he developed grudge against the applicant that he was instrumental in delaying his transfer to Barshi Town Railway Station. It is, therefore, alleged that Shri C. R. Bokephode started instigating commercial staff as well as operating staff working at Barshi Town Railway Station against the applicant. It is also stated that on account of this, the said Shri C.R. Bokephode submitted a report dated 17.03.2010 against the applicant by making false allegations, on the basis of which a preliminary enquiry was 5 OA.No.46/2014 conducted.
4. This led initiation of a regular Disciplinary Proceedings against the applicant and he was served with a charge-memorandum dated 13.04.2010 (Annexure A-4) issued by the Senior Divisional Commercial Manager (Respondent no.4). According to applicant, respondent no.4 was not competent to impose penalty of removal from service since he was not his Appointing Authority. It is stated that the charges leveled against the applicant are frivolous, fabricated, arbitrary, malafide and disciplinary action was initiated without application of mind by the so called Disciplinary Authority. Since the charges were denied by the applicant, Enquiry Officer was appointed to proceed with the disciplinary action.
5. The applicant vide letter dated 13.01.2011 (Annexure A-5) made a request to the Enquiry Officer for supply of copies of R.U.D. (Relied Upon Documents) annexed with the charge- memorandum. However, the documents were not supplied to him which resulted in causing great prejudice to him since he could not defend him properly during the enquiry proceedings.
6. During the course of enquiry, departmental and defence witnesses were examined. 6 OA.No.46/2014 The Enquiry Officer then submitted his report dated 18.11.2011 (Annexure A-12) to the respondent no.4 holding that all the four charges levelled against the applicant stand proved. The said report was then served on the applicant, to which he submitted his representation dated 26.12.2011 (Annexure A-13) in which he denied the findings recorded by the Enqiury Officer and prayed for his exoneration.
7. The Disciplinary Authority did not find favour with the applicant and considering the material brought on record during enquiry proceedings, accepted the finding of the Enquiry Officer and imposed the penalty of removal from service vide impugned order dated 06.01.2012 (Annexure A-14).
8. The applicant challenged the above order of removal by way of appeal dated 21.02.2012 (Annexure A-15), before the Additional Divisional Railway Manager, Solapur. It is the applicant's grievance that without giving the opportunity of hearing to him the Appellate Authority by the impugned order dated 19.03.2012 (Annexure A-16) modified the punishment of removal from service to that of compulsory retirement.
9. The applicant again challenged the above 7 OA.No.46/2014 order by way of revision petition dated 02.05.2012 (Annexure A-18) to the respondent no.3, who by the impugned order dated 08.10.2012 (Annexure A-1) further modified the order of compulsory retirement to that of with-holding of increment for a period of three years with cumulative effect. Aggrieved by the impugned orders, the present O.A. is filed.
10. The reliefs sought in the OA are based on the following grounds as mentioned in para-5 of the OA. The same are reproduced here for ready reference:-
"5.1 Commercial Manual Vol.II as contained in Chapter xxix, Rule 2909 the duty of Chief commercial inspector is required to supervise the work of his subordinate such Parcel Clerk, Booking Clerk, Peons etc. his jurisdiction is on the Railway Stations situated between Latur to Pandharpur. Total 25 Stations situated on the aforesaid Railway Section are coming within his working Jurisdiction. Total jurisdiction area of 216kms is spread over the above section on which he has to exercise the Supervision over the staff working in the Stations and in view of this it is not possible to stick at particular Railway station. Thus the "charge of leaving H.Q. Without permission"
is unjust, unreasonable and
without application of mind.
5.2 While working in his
jurisdiction, he was required to give necessary working 8 OA.No.46/2014 instruction to the staff working under him. He has to face the public as well as the staff working under him. Being a Supervising Officer he is required to visit various Railway Station, including City Book officers if any, tourist Agencies and Out Agencies at specified interval under Rule 2904 of Indian Rly. Commercial Manual Vol.II, as notified from time to time by Chief Commercial Manager.
5.3 While working as Supervising Officer, he has to face lethargic work on the part of subordinate staff working under his jurisdiction. And for doing supervisory work he has to face the dis-satisfaction from his subordinate and due to which under the misconceived mind the sub-ordinate staff for not giving them latitude, formed the personal grudges against the applicant which has resulted in making complaints against the applicant...
5.4 Shri Bokephode, Station Manager, Barshi Town Railway
Station was working in Operating Department of Barshi Town Railway Station, being a Station Manager he has maintained his superiority complex. He was posing himself to be in charge of all the activities in Railway Station. As a matter of fact commercial department and Operating Department as different. He wanted that all the staff working at Railway Station should obey his orders and not of Chief Commercial Inspector and out of this Superiority complex said Shri C. R. Bokephode, the station Manager, has out of jealousy fabricated the evidence by installing the staff working in the said station.9 OA.No.46/2014
5.5 Mr. C.R. Bokephode Station Manager who came on transfer on his request to Barshi Town was expecting that the applicant should use his good offices in transfer and posting the of said Shri Bokephode, at Barshi Town, but unfortunately his transfer to Barshi Town Railway Station from Kurduwadi was administratively lingered for which he is holding the applicant responsible and due to which he has formed personal grudge against the applicant.
5.6 Mr. C.R. Bokephode has misused his power in managing the artificial resentment among the staff working in commercial department and also influenced the staff working under him to form a grudge against the Applicant. He was also jealous of Applicant's Supervisory nature and therefore, used to interfere in functioning of Chief Commercial Inspector.
5.7 The revengeful attitude on the part of Mr.Bokephode, made him to fabricate the report dated 17.03.2010 and also made the staff working under commercial department to lodge a complainant against the Applicant about so called "Un-parliamentary"
language by the applicant.
5.8 The charges leveled against the applicant are frivolous, fabricated, arbitrary, malafide and without application of mind at the level of Disciplinary Authority. Those are frivolous and concocted in as much as the bias has been created by the Station Manager Mr. Bokephode in the mind of Disciplinary Authority. It is concocted story in as much as the said Shri Bokephde has instigated staff 10 OA.No.46/2014 working in commercial department against the applicant and managed to collect the written complaints from the dissident staff in the commercial branch and operational staff working at the station "Barshi Town". IT is without application of mind, in as much as the 'Disciplinary Authority' has not taken into account the nature of work of the Applicant as stipulated in Indian Railway. Commercial Manual Volume II, Rule stated here in above. It is pertinent to note that during the period of Report i.e. 2009-2010, the Annual Confidential Reports of the applicants are very goof in all respects. Especially against the column 7 (seven) Part III of C.R., which pertain to the relations with higher and subordinate staff, it was mentioned that : relations of the applicant are very good. Thus the charges are concocted, fabricated etc. hereto annexed A-19 is copy of the ACR for the period 2009- 2010.
5.9 Charge of leaving H.Q. Is based on wrong footing and other charges are based on the special Report dated 17.03.2010, copy of which was not supplied to the applicant for giving his effective defence.
5.10 Under letter dated 1301.2011, demand for supply of copies of statements, copy of special reports and all the documents mentioned in the Charge sheet was ignored systematically depriving opportunity etc (A-5). In this context it is submitted during the course of preliminary investigation,statement of Mr. A. K. Bhat, P.w, No.4 and Mr. Sagar S. Mane were recorded and relied upon by the Department but the statements were not supplied to 11 OA.No.46/2014 the applicant. This was revealed during the course of deposition of Mr.A. K. Bhat and Mr. Sagar S. Mane. Statement of Mr. Sagar S. Mane is annexed as A-20.
5.11 Mr. R. P. Kamble was not mentioned as Prosecution witness, but applicant want to examine him just to testify his credibility while recording statement on 16.03.2010. I.O. Has not allowed the applicant to carry out the examination in Chief, but he himself started him examining thus there was procedural lapse on the part of Enquiry Officer.
During the course of cross examination by the applicant, Mr. R. P. Kamble admitted that he has not given his statement during the course of investigation on 16.03.2010, at his own but he was not mentally, prepared for the same as he was under medical treatment however his statement was got recorded through Mr. Lamture, Ticket Collector Kurduwadi: Hereto Annexed A-21 is the copy of Deposition dated 26.07.2011, of Mr. R. P. Kamble.
5.12 Article II of charge Memorandum pertains to the 'change in the duty Hours of
commercial staff at Barshi Town, Osmanabad. In this case applicant has specifically denied the charge stating that the said changes have been proposed by Station Manager Osmanabad in the capacity as Station in charge with intention to facilitate the common public due introduction of Passenger Reservation System (P.R.S.) The Article II is so ambiguously worded it is not specific. During the course of visit by Divisional Railway Manager to Railway Station Barshi Town, on 05.01.2010, has passed remarks that on the introduction 12 OA.No.46/2014 of Passenger Reservation System (UTS cum PR S) the duty Hours should be 8.00 am to 20.00 HR. (8 P.M.) Divisional Railway Manager visiting/inspecting the Barshi Town Railway Station instructed on the sport that duty roster should be 8.am to 8.pm. This means that the applicant has not acted on his own wish or power as alleged. Charge sheet does not specifically mention the allegation against the applicant. It is not happily worded. It also stated that Chief Commercial Inspector i.e. the applicant has not given any instructions to change the working Hours at is Barshi Town Railway Station. In this case it is pertinent to note that "charge in the duty roaster, if any has taken place, was at the instance or on the instructions of Divisional Railway Manager, who is the highest Administrative Authority so far as the entire Solapur Division is concerned.
The charge leveled in this Article II is therefore without application of mind at the level of Disciplinary Authority.
5.13 Article III of the Charge memorandum, pertain to "so called false claim of contingent bill for a period from 20.10.2008 to 05.12.2008, by the incident of charge is of two years back from the date of issue of charge memorandum. In support of this charge, disciplinary authority has not annexed any documentary evidence. No copies of contingent bill, etc. were annexed, supplied to the applicant in spite of the demand made from him. Charge is so vague, clumsy; ambiguous it was very difficult to understand by a man of ordinary prudent as to which of the period and on which dates the charges were 13 OA.No.46/2014 claimed.
5.14 As regards Article IV of the charge memorandum which pertains to leaving H.Q. (Barshi Town) without permission of the superior, it is stated that charge leveled is frivolous, false and not specific. As already stated herein above, applicant relies upon the facts as ground herein above averred. 5.15 Conduct of Departmental Enquiry, was an empty formality adopted by the Enquiry Officer, Disciplinary Authority etc. 5.16 The charge of "using un- parliamentary language, was not conclusively proved. Prosecution before I.O., has stated that the applicant Mr. S. D. Jagtap, did not abuse or used un- parliamentary language to him (question no.1 of cross examination). The prosecution witness no,6, has deposed before I.O. Stating that the applicant (charge-employee) did not misbehaved with him and other staff. (question no.4 of main examination during Inquiry).
prosecution witness 7, Mr. Abhishek Bhatt, Sr. Ticket Examiner, Barshi Town, has
deposed before I.O., during the cross examination, that 'no parliamentary was used by Mr. Jagtap (Applicant) Defence witness No.4, Mr. O.P. Verma, Sr. Booking Clerk Kurduwadi, deposed that Shri S. D. Jagtap, has not used un-parlimentary language to him. (question no.4 during the chief examination.) Defence witness No.5 Shri Sachin Sonawane Sr. Booking clerk Kurduwadi, deposed before I.O. That Shri Jagtap (the applicant) did not abuse or used un-parliamentary language to him., (question no.4), during examination in 14 OA.No.46/2014 chief), Thus there are out of 11 witnesses 6 witnesses have given deposition in favour of the applicant. Whereas five witnesses who were directly working under the said Shri C. R. Bokephode, were influenced by his boss i.e. Mr. Bokephode and obliged him by speaking lie against the applicant of which he could not defend his case in effective manner. The finding of the I.O.
Is therefore false, arbitrary, unilateral and denying the principles of natural justice to the applicant.
5.17 No reasons for the decision were discussed in the punishment orders. "non supply of the documents sought by the applicant vide his letter dated 13.01.2011 (A-5) resulted in depriving of reasonable opportunity and Natural Justice.
5.18 The Disciplinary Authority i.e. Sr. Divisional Commercial Manger, who is lower than the appointing Authority of the Applicant, has passed the orders of removal from service against the applicant vide his Disciplinary orders No. Sur/C/D&A/SDJ/CCI/BTW/10 dated 06.01.2012 (A-13).
5.19 Appellate Authority has not given the personal hearing in spite of clear demand. Appellate orders are cryptic and mechanically passed. As per the orders in M. Ramachander v/s Railway Board, reported in AIR 1986 SC 1173, orders should be speaking, reasoned and based on personal hearing granted to the aggrieved employee.
5.20 Applicant has been appointed by the Divisional Railway Manager. Thus the Authority lower 15 OA.No.46/2014 than the Appointing Authority cannot pass the punishment orders of removal from service violating Article 311 (1) and (2) of the applicant Senior Divisional Commercial Manager, who is lower in rank to the D.R.M. Has passed the original Punishment orders of removal.
5.21 Had the proper and competent Authority i.e. D.R.M. And above has passed the orders at initial stage, there would have been proper appreciation evidence, facts I the case and applicant would not have faced such punishment.
5.22 With-holding of 3 increments with cumulative effect is causing drop out in his emoluments permanently which will affect his pension and other benefits in perceptual manner."
11. Along with OA, MP-No.81/2014 is filed for condonation of delay in approaching this Tribunal on the ground of illness of the applicant and thereafter since he was on medical leave.
12. On notice the respondents appeared and by a common reply dated 02.05.2014 resisted the OA by denying all the adverse averments, contentions and grounds raised therein. It is stated that at every stage of the enquiry proceeding the applicant was given reasonable opportunity to defend him and personal hearing was also granted. There is no violation of rules or prescribed procedure while conducting the enquiry or taking a 16 OA.No.46/2014 decision by the authorities after carefully considering the materiel brought on record during enquiry. Thus there is no procedural lapse nor violation of statutory rules in the present case. The punishment imposed fully commensurates with the gravity of mis-conduct on the part of the applicant, which stands proved during enquiry. The O.A. is, therefore, liable to be dismissed. Regarding power of judicial review vested in this Tribunal to deal with the orders passed in departmental proceedings, number of citation/decisions are relied upon by the applicant as mentioned in para no.4 of the reply.
13. The grounds stated for condonation of delay are also denied.
14. It is stated that the applicant was supplied with all the Relied Upon Documents mentioned in the charge-memorandum which was challenged by him on 20.04.2010. He has also personally inspected all the required documents. All the enquiry proceedings along with the report of fact finding committee was supplied to the applicant through Station Manager which was acknowledged by him on 12.12.2011. The Enquiry Officer has considered the entire material on record and then only has rightly come to the 17 OA.No.46/2014 conclusion that the charges leveled against the applicant are proved.
15. It is denied that the Divisional Railway Manager is the Appointing Authority of the applicant and the respondent No.4 was not competent to impose penalty of removal from service. In this respect, It is stated that as per SOPEST (February,1985), item no.6 for non- gazetted officials, the Junior Administrative Grade Officer, (JAG) is the competent authority to make appointments of all the non-gazetted staff. Further as per schedule of Disciplinary powers, Junior Administrative Grade Officers and Senior Scale Officers holding independent charge of the department in the Division are empowered to initiate the Disciplinary action against all the non-gazetted staff as per schedule-II. In additional to that the Appointing Authority or a Authority of equivalent rank or authority higher in rank is competent to impose penalties specified in clause VII to IX of Rule 6 of the Railway Servants (Discipline and Appeal) Rules.
16. Relying on the decision rendered by Hon'ble Supreme Court in State of Tamil Nadu Vs S. Subramanian, AIR 1996, SC, 1232 in which it has been held that when the conclusion reached by the 18 OA.No.46/2014 authority is based on evidence, the Tribunal is devoid of power to reappreciate the evidence and came to its own conclusion. The Tribunal has power of judicial review of the Administrative Actions on complaints relating to service condition of employees. It is the exclusive domain of the Disciplinary Authority to consider the evidence and to record the findings whether charge levelled against delinquent employee is proved or not. It is also held that judicial review is not the appeal from the decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reached is necessarily correct. The Court or Tribunal while exercising power of judicial review is to consider whether the conclusion is based on some evidence on record and it supports the finding or whether the conclusion is based on no evidence. Thus the scope of judicial review is limited.
17. On the above grounds it is prayed to dismiss the O.A.
18. The applicant then filed rejoinder to the reply on 24.11.2014, in which all the adverse averments and contentions made in the reply were 19 OA.No.46/2014 denied and the grounds stated in the O.A. were reiterated for challenging the impugned orders. It is also stated that after examination of the defence witnesses the Enquiry Officer did not question him generally on the circumstances appearing against him in the evidence for the purpose of enabling the applicant to explain the same. Hence there is violation of the provision of Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules, 1968. This ground has been specifically raised by the applicant in the Revision Petition, but not considered.
19. The respondents then filed reply to the rejoinder on 27.01.2015 in which the averments made in the rejoinder are denied and the grounds of defence stated in the reply were reiterated.
20. We have heard Shri S.B. Karande, learned Advocate for the applicant and the reply arguments of Shri V.S. Masurkar, learned Advocate for the respondents.
21. We have carefully considered the pleadings of the parties and the documents produced on record. We have also gone through the original enquiry proceedings and the documents relied upon by the respondents.
FINDINGS 20 OA.No.46/2014
22. The only controversy involved in this OA for resolution by this Tribunal is whether the impugned orders imposing punishments on the applicant are liable to be set aside as illegal, improper or incorrect on the grounds raised by the applicant.
23. Before proceeding to consider the applicant's contentions on merit it may be mentioned here that the scope, extent and power of judicial review vested in this Tribunal to interfere with the orders passed by the authorities under the relevant Discipline and Appeal Rules is well settled. The scope of judicial review is limited in as much as there cannot be reapriciation of evidence brought on record during enquiry to come to a different conclusion and it is only required to be seen, if sufficient opportunity is granted to the delinquent to defend him and prescribed procedure is followed by the Enquiry Officer and subsequently by the Disciplinary Authority and higher authorities while imposing the punishment. Thus the manner in which the finding of guilt is recorded by the authorities is to be considered and if the conclusion is based on some evidence on record.
21 OA.No.46/2014
24. So far as delay of few months in filing the O.A. is concerned, considering the grounds and nature of punishment imposed, the delay is condoned.
25. The applicant disputed competence of the Disciplinary Authority for imposing the punishment of removal from service. According to him D.R.M. is his Appointing Authority and hence punishment of removal can be imposed by the said authority only or any higher authority to him and not by lower authority like Senior Divisional Commercial Manager (Respondent no.4). In this behalf the applicant has produced on record copy of his appointment order dated 20.11.1984 issued by the Assistant Personnel Officer. It is not disputed that the applicant was appointed on compassionate ground in Group-C post. However, since it is for non-gazetted post, Assistant Personnel Officer is stated to be the Appointing Authority, of course subject to approval of proposal by the D.R.M. In the present case the Senior Divisional Commercial Manager is higher in rank to the Appointing Authority i.e. Assistant Personnel Officer and hence he was also empowered to impose major penalty of removal from service.
26. In this behalf the respondents placed 22 OA.No.46/2014 reliance on delegation of power in respect of establishment matters, non-gazetted and entry at Sr.No.38, SOPEST-16, Part-D/1 in which Rule 215 of Indian Railway Establishment Code (IREC), Vol.I 1985 was considered. It is specifically mentioned therein that for initial appointment to Group-C and Group-D posts, JAG and above are having full power in respect of all (I to IV), Artisan (I to III*).
27. It is stated that Assistant Personnel Officer belongs to JAG rank. This being so the Assistant Personnel Officer is the Appointing Authority of applicant. Respondent no.4 being higher in rank to APO is thus empowered to impose the major penalty of removal/dismissal from service. Further it is obvious from record that the applicant has not raised the objection regarding competence of respondent no.4 to impose the penalty of removal, either in appeal or revision but has simply made a representation dated 09.05.2012 (Annexure A-17) to the D.R.M. pointing out that his appointment order has been issued by D.R.M. and hence officer below in rank of D.R.M. is not competent to issue the order of removal from service. Since this issue has not been raised either in Appeal or Revision there was 23 OA.No.46/2014 no occasion for Appellate or Revisional Authority to consider this aspect and to record a finding on it. In any case it cannot be said that the respondent no.4 was not competent to impose the punishment of removal from service and hence we reject the contention of the learned Advocate for the applicant in this behalf.
28. Now, turning to the case on merit as per the memorandum of charge-sheet the following four Articles of charges were framed against the applicant:-
"Article-I That the said Shri S.D. Jagtap while working as CCI/BTW has committed serious misconduct in that : He uses unparliamentary language to the commercial and operating staff working at BTW and UMD. Also harass them. He is also quite negligent in discharging his duties as CCI.
Article-II Shri S.D. Jagtap CCI.BTW has changed the duty Roster of Commercial Staff working as BTW and UMD in an unauthorized manner and made inconvenient to staff working in shift duty.
Article-III Shri S.D. Jagtap
CCI/BTW has claimed false
contingent Bill for the period from 20.10.2008 to 05.12.2008.
Article-IV Shri S.D. Jagtap,
CCI/BTW does not remain in
Headquarters round the clock and leabe headquarters without permission of his superiors from the date of posting as CCI/BTW.
By the above act Shri S.D. Jagtap 24 OA.No.46/2014 CCI/BTW failed to maintain absolute integrity, devotion to duty and behaved in a manner of unbecoming of Railway servant and thereby contravened the provision of Rule 3.1 (I), (ii) and (iii) of the Railway Service (Conduct) Rules 1966."
29. According to the applicant all the charges are unsustainable and few departmental witnesses did not support. However, in spite of this the Enquiry Officer held that all the charges are proved and the Disciplinary Authority accepted the said finding and imposed penalty of removal from service. Perusal of the order passed by the Disciplinary Authority reveals that adequate reasons are recorded while coming to the conclusion that the charges are proved. The Appellate Authority considering the family obligation of applicant and also to rule out the possibility of imposition of disproportionate penalty, modified the penalty of removal to compulsory retirement without prejudice to the other stipulation in the order imposed by the Disciplinary Authority namely with 2/3rd compassionate allowance. It is stated in the Appellate Order that as per Rule 25(1) of RS(D&A) Rules 1968, Revision lies to Chief Commercial Manager, CST, Mumbai against the Appellate Order The same was accordingly filed before the said 25 OA.No.46/2014 authority.
30. Before considering the legality and validity of the orders passed by the authorities it may be mentioned here that the applicant raised objection that he was not supplied with the relied upon documents annexed to the Memorandum. However, perusal of the original record clearly shows that there is no substance in this submission since all the relevant documents were provided which he acknowledged and further that full opportunity was given to the applicant to participate and defend him during disciplinary proceedings.
31. It is also stated by the applicant that the Appellant Authority has not given him a chance of personal hearing although specifically asked in the appeal memo and hence there is violation of principles of natural justice. In this respect the Appellate Order dated 19.03.2012 (Annexure A-
16) no where mentions that the applicant was given personal hearing. However, it is also obvious that even without giving personal hearing to the applicant the penalty of removal was set aside by the Appellate Authority and it was modified to that of compulsory retirement with all retiral benefits. This being so it cannot be said that 26 OA.No.46/2014 although personal hearing was not given to the applicant by the Appellate Authority any prejudice has been caused to him, especially when even this order of compulsory retirement was modified to that of withholding of increment for a period of three years with cumulative effect by the Revisional Authority, meaning thereby that the applicant was further benefited by reinstatement in service. This being so it cannot be said that simply because the applicant was not granted personal hearing by the Appellate Authority any prejudice has been caused to him or that it resulted in violation of the principles of natural justice.
32. During the course of arguments, the learned Advocate for the applicant submitted that after evidence of the parties is recorded and the applicant has submitted his defence brief, the Inquiry Officer did not record his statement by questioning him generally about the circumstances brought on record against him and straightway submitted the inquiry report to the Disciplinary Authority. According to the applicant this has resulted in causing injustice to him since provisions of R.S.(D & A) Rules are thereby violated.
27 OA.No.46/2014
33. It is true that there is a provision to question the delinquent employee generally regarding the evidence brought on record against him by the Inquiry Officer on conclusion of oral evidence by the parties so as to give him an opportunity to explain those circumstances. Although it may be stated that this provision is mandatory still in the given facts and circumstances of the case, it cannot be said that its violation by the Inquiry Officer has resulted in causing any prejudice to the applicant, for the reasons that on appeal the order of removal was set aside and modified to that of compulsory retirement and thereafter again to withholding of increment by the Revisional Authority by reinstating the applicant in service. He was, therefore, substantially benefitted by final order passed by the Revisional Authority in which the orders passed by the Disciplinary and Appellate Authorities stands merged. This being so, although there is some breach of the provision by the Inquiry Officer, it cannot be said that it resulted in causing any prejudice to the applicant.
34. From the above discussion, we do not find any force in the contention of learned Advocate 28 OA.No.46/2014 for the applicant that impugned orders are liable to be set aside on the above grounds raised by the applicant.
35. Now turning to the final order passed by the Revisional Authority, it is obvious that both the orders passed by Disciplinary Authority and the Appellate Authority stand merged into final order as stated earlier. Its perusal clearly shows that all the grounds raised by the applicant are not considered and a cryptic order is passed. The entire text of the final order passed by Revisional Authority is reproduced here for ready reference:-
"CENTRAL RAILWAY Headquarters Office, Personnel Branch, Mumbai CST.
HPE/309/T-DAR/SDJ/SUR Dated:08.10.2012 Shri S. D. Jagtap, Ex.BS SUR (Through Sr. DCM SUR) Sub: Revision Petition dated 02.05.2012 under Rule 25(1) of RS (D&A) Rules, 1968 I have carefully gone through the Revision Petition dated 02.05.2012 submitted by you, DAR case file, report of the Inquiry Officer and decision taken by the Disciplinary Authority and Appellate Authority.
Having carefully examined the Inquiry Officer's report and reasons given by him, I find that the charges are not proved conclusively. The DAR proceedings are although not strictly 29 OA.No.46/2014 judicial in nature but are nevertheless quasi-judicial in nature and therefore while recording the decision, all aspects of law and principles of natural justice should have been followed. In this case adequate care has not been built highlighting administrative lapses without any malafide intentions on your part.
Vide Article-1 you have been alleged that you have under unparliamentary language. Based upon the statements and witnesses this charge is partially proved. It can be implied that you should have exercise greater caution while giving instructions to your subordinates and used polite and parliamentary language. This could have been easily done by your surviving Commercial Officers on receipt of verbal complaint of misbehaving against you.
Article-2 is not conclusively proved since at BTW station UTS cum PRS has been installed for ticketing. There might have been some issues regarding the working hours of UTS cum PRS. No malafide can be imputed against you. These shows lack of supervision at officers level.
Article-3, It appears to be a technical and unintentional error on your part. There is no apparent reasons to believe that you have indulged in criminal misappropriation of funds. Nevertheless, you should have been more careful while calculating the contingency funds. Hence charge is proved.
Article-4 I disagree with the inquiry officer as the very nature of sectional inspectorate duty involves controlling many stations under your jurisdiction. Your place of residence is not of any relevance in this case as long as you were available for duty.
Having examined all the aspects I have come to the conclusion that the quantum of penalty imposed on you is not commensurate with the offences committed by you as examined above. Therefore 30 OA.No.46/2014 considering all the facts on record and the nature of working of sectional inspector, I have decided to re-instate you in Railway Service as Booking Supervisor in Pay Band Rs.9300-34800 + GP 4600 and modify the punishment of "Compulsory Retirement by imposing reduced penalty of with-holding of increment for a period of three years with cumulative effect."
The period from the date of compulsory retirement from service to the date of reinstatement in service be treated as dies non."
Receipt of this order be
acknowledged.
(C.P.Sharma)
CCM(PS)
The Revising Authority"
36. It is thus obvious from perusal of the above order that so far as charge Article-1 is concerned, although it is held that it is partly proved, further part of the order implies that the Revisional Authority held that the applicant should have been careful while behaving with his sub-ordinates. In such circumstances of the case, coupled with the fact that the departmental witnesses viz. Shri N.D. Devare, Shri Navnath Pralhad and Shri Abhishek Bhatt did not support the said charge, it is obvious that the Revisional Authority was justified in taking a lenient view to impose penalty of withholding of increment, which was most appropriate in this case.
37. So far as charge Article-2 is concerned, 31 OA.No.46/2014 as stated earlier the Revisional Authority has specifically held that the said charge is not conclusively proved, but blamed applicant for negligence in duty. Similarly so far as the charge Article-3 is concerned, it is held to be technical and unintentional error on the part of the applicant. The possibility of indulging in mis-appropriation of Government funds is also ruled out. However it is stated that applicant should have been more careful while dealing with the contingency funds. These observations again point out that Revisional Authority in fact intended to take a lenient view by modifying the penalty of compulsory retirement to that of withholding of increment for a period of three years with cumulative effect. As stated and discussed earlier it is the exclusive prerogative of authorities under Discipline & Appeal Rules to decide nature of penalty to be imposed based on evidence on record and this Tribunal cannot re- appreciate entire material to come to a different conclusion. Of course it is open for the Tribunal to investigate if the penalty imposed is proportionate to the nature and gravity of charge, full opportunity was extended to delinquent to defend him and prescribed procedure is reasonably 32 OA.No.46/2014 followed.
38. So far as charge Article-4 is concerned, the Revisional Authority disagreed with the finding of the Enquiry Officer, Disciplinary Authority and Appellate Authority. Thus the applicant was held to be not guilty of charge Article-4 since it is not proved and other charge having been partly proved. In such circumstances of the case, it can safely be said from record that the modified penalty of with-holding of increment for a period of three years with cumulative effect, is fully proportionate to the nature and gravity of charges proved against the applicant.
39. Thus considering the fact that the Revisional Authority has held charge no.1, 2 and 3 as partly proved and charge no.4 as not proved, we are of the considered view that the finding recorded by the Revisional Authority cannot be said to be illegal, improper or incorrect so as to set aside the same by exercising the power of judicial review vested in this Tribunal.
40. The OA is, therefore, liable to be dismissed, the same is accordingly dismissed, thereby confirming the penalty imposed by the Revisional Authority including that of dies-non 33 OA.No.46/2014 for the period from date of removal to reinstatement on imposition of modified penalty of withholding of increment. No order as to cost.
(Ms.B. Bhamathi) (Arvind J. Rohee) Member (A) Member (J). Vyc/-H.