Central Administrative Tribunal - Gauhati
Kushal Kumar Das vs M/O Railways on 11 September, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL GUWAHATI BENCH Original Application No.040/00422/2015. Date of Order: This, the 11 Day of September, 2017, THE HON'BLE MOHD. HALEEM KHAN, ADMINISTRATIVE MEMBER THE HON'BLE MR. S. N. TERDAL, JUDICIAL MEMBER Kushal Kumar Das son of Late Lalit Chandra Das JnCierk/G, Under 5 DME/D/NGC R/O-Q No.616/A New Guwahafi Railway Colony Bamunimaidam, Guwahalt-21. . Applicant By Advocates: Mr.N.Konwar, MoM.Phukan, = Mr.M.C.Rako#i, Mr.D Talukar, -Versus- L, The Union of india Represented by the General Manager (Personnel) N.F-Raliways, Maligaon, Guwahati-78101717. 3 The Chairman, Railway Board New Delhi-O1. Oo The Divisional Railway Manager (Personnel) NE. Railways, Maligaon, Guwahati-}]. 4 Tne Deputy Chief Personne! Officer/iR NE Railways, Guwahati} 7. 5. Tne Sr. DME (Diesel /NGC NUE LRaliway, New Guwahati Guwahat-? 1, .. Respondents By Advocote: Ms.UDas ORDER(ORAL)
Fah.
QA No.040/00422 /2015 MOHD HALEEM KHAN, MEMBER {A}:
MeM.Phukan, learned counsel for the applicant suomitted that applicant was appointed as JrClerk/G on 22.05.1984, promoted to the oost of Sr.Clerk/G on 05.12.1999 and further promoted as O$/G w.e.f. 31.10.2000. He was posted in in Toals & Plants Section in 1995. On 10.01.2014, a vigilance feam inspected and # was found that there is mismatch between ihe issue register and dead stock reaister and in the dead slock regisier some fools were not registered but they were found available and some materials/toals were entered in ine deod slack register but not physically available for venfication. According to the learned counsel, though the Lote appicant has been found wanting fet mainiaining recorcis properly, but there Is no charge against him for defalcation or misappropriation etc. Learned counsel also oraught our notice 'o the Annexure-5 and fo the hand written note in the top, quoted below:
"Individual item of each Category of store of this ledger No.) (Book No.1} have been Categorically shown in respective staff distribution register and other cilled Sub Section ledger.". OA No.040/00492
eS: a So EES eee EN oy he : a Signs Rae eg Ls AS, Ru SF Ss Se SSS ; Ferns es {2072 s = se RS ess x wt Be io COnvi ince this court that The issue registerjond 1 ne, e,degd s SHOCK register See being mainfained separaiiy. 'herefore. 'this confusion.
2. Learned counsel for the applicant submitted that against the oenally order of the disciplinary authority dated 16.02.2015, the apolicant preferred appeal on 07.04.2015, put his appeal was not considered on the ground thal if was preferred after expiry of siovulated period af 45 days.
3. Leamed counsel aiso drew our attention to the case ofone Dhyan fyor Das, who was similarly charged, however, in nis case, the punishment was as under frefer order Mo.E/283/D/M/ESTT/ dated 25.04.2016, Annexure-11 Serfes, Page 42 of the OA)» we OWRD reference 1O Memorandum No.F/283/D/M/Estt. Dated 28.08.2014 the undersigned nas passed the following remarks:-
"The enquiry report by E.O & ifs subsequent representation by C.O. have been duly noted by the D.A, Both have brought out valid arguments and exnlained their point of view. The E.O nee accepted me ambiquily and vagueness involved in the eae.
n same parts and the C.O. in his rep: esental on na also explained the situation that lead to these charges. The C.O. should have been nevertheless, more careful in his dulies and should view not S repeat such instances in future. As a pe rally for the charges, his increment should be withheld for per Hod of Iwo yeors non-cumulctive.?"
QA NO.040/00422/2015 While in the case of the applicant, punishment was more severe as under {refer No.E/283/D/M/ESTT Gated 16.02.2015, Annexure-8 ofthe OA}.
" Wh reference to Memorandum No.E/283/D/M/EsH. Dated 28.02.2014 the undersigned has passed the following remarks> "Srl Kushal Kr. Das, OS/G at DLS NGC has accepied the charges as per SrEC/HQ's Letter No/ZfCON/ENGQ/175/14(2) dated 03.02.2015. The charges framed against him are of very serious nature and have caused great loss fo the Railways. Non- availabilty of fool due to failure ta maintain dead siock has caused financial loss to the Railways as well as hampered smooth functioning of the shed. A serious Ccoanizance of this matter has been taken and as a penalty "he should be reverted to his recruliment grade Le. Jr. Clerk with Immediate effect."
» On the basis of above, learned counsel tied fo project gpparent disproportionateness of thé punishments? 4, Ms.U.Das, jieamed counsel for the -- railway respondenis, however, strondly supmitted thal applicant's duty was opty fo ensure that the railway fools are appropriately accounted for which the applicant falled to perform. Without emering info Ine register how the tools could be issued fo the use of staff and It pose lot of question about the working of the applicant, Learned counsel also emphasized that there cannot Page 4 of 7 OA No. 040/00422/2019 be a negalive equality fo justify the ciscroporionate of the punishments. The disciplinary authority has the prerogative fo ioak Info the various cases on individual merits, and therefore, the court should net get info the area fo equalizing the punishments as omissions of commissions of different charged officers may vary in details.
3. Learned counsel for the applicant relled on the aecision of The Hon'ble Supreme Coun in the case of Jal Bhagwan vs Commissioner of Police & Others, (2013) 11 §CC 187. Fara 10 of the same js reproduced below:
"TQ, What is the appropriate quantum of punishment fo be awarded Jo Qa delinquent is a meter thal primarily rest in the discretion of the disciniinary quihornty. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment as much as if is entitled fo econe whether the charges have been satisfactorily proved. Bul when any such order is challenged hetore Q service THouncl or the High Court the exercise of discretion by the competent Authority in determining ana awarding punishment is generally respected except where fhe same is found fo be so.
ourragesusly disproportionate fo the gravity of ine maisconauct that the Court considers if be orbit 'ary in thatil is wholly unreasonable. The superior Courts and he Trbuncl invoke the doctrine of propodionality which Ras been gradually acce spied as one of the facets. of judicial review. A punishment that is so excessive or disproportioncte fo ine offence as 4 smock The conscience of the Court is seen as unacceptable even when Cours are slow and generally reluctant to interfere with the quantum of OA No.040/00422 (2015 punishment. The law on the subject is well setlled by a series of decisions rendered by this Cour, a reTHQIN content with reference fo only some of them."
In the fight of the above judgment, learned counsel for the goplican? conceded that though quanium of penaly is not subject fo judicial review, however, in case the punishment is found to be excessive or disproportionate fo the offence as fo shock the conscience of fhe cour and found unacceptable, fhe same may be looked info.
é. In view of The fact that applicant's appeal was not snsidered on technical grourid ana also the grevance of the aoplicant that he has been deprived of his 30 years of service and Two promotions and also in view of the above observation of fre Hon'ble Supreme Coun in Jal Bhagwan {supra}, we direct the appellate authority fo treat this OA as an appeal aiong with fresh representation jo be fled by the applicant within 15 day ts from the date of the receipt of this order and decide the appeal an ments keeping In view fhe culpability of the applicant and against why je-giving ihe punishments The eg appellate authority will pass appropriate orders with disoatch criminated aiier going info the records of the case as well as giving Oopporiunily of being heard fo the applicant at the earliest but £ Sos ese a ew Page 6 of ?
wa SS RK OA No.040/00422/20 | the receipt of this e of the rec fer tran four months from the date not later thar order.
Tt HS na agate Sack | iq ber Ov '. iS gO i ae silage itself.
(MOHD. HALEEM en .
UDICIAL MeMe ADMINISTRATIVE MEM! .L MEAABER JUDICIAL MEM /BB/ 8