K.G. Ajikumar vs Union Of India on 29 July, 2011

[Cites 4, Cited by 0]

Kerala High Court

K.G. Ajikumar vs Union Of India on 29 July, 2011

These cases relate to the interference made by the Tribunal with regard to the course and proceedings pursued by the Railways in inflicting punishment upon the delinquent employees with regard to a serious incident occurred on 8.12.2007, whereby a flash strike was conducted at the instance of the Association causing detention of the trains for hours, in turn causing utmost hardship and inconvenience to the general public/travellers and also causing huge loss to the OPCAT 4311/2011 & CONN.CASES 2 Revenue/Railways.

2. O.P.(CAT) No. 4311/2011 has been filed by the applicant in O.A. No. 3/2010, whereas the other Original Petitions have been filed at the instance of the Railways. O.A. No. 3/2010, from which O.P.(CAT) No. 4311/2011 has been filed, is taken as the lead case and reference is made to the parties and proceedings as given therein.

3. The sum and substance of the case is that the applicants were working as Loco Pilots. Honouring the call raised by their Association, they suddenly went on a flash strike, virtually making everything to a stand still. The train service got delayed by several hours, also causing loss and hardships as mentioned above. This led to issuance of charge sheet to the applicants, particularly the petitioner herein, who, as evident from the discussion made by the Tribunal, refused to accept the charge sheet, which made the Railways to exhibit it in the Notice Board on 1.2.2008 and it remained there for quite long. No explanation was submitted with regard to the delinquency OPCAT 4311/2011 & CONN.CASES 3 alleged and it was in the said circumstances, that the Inquiry Officer arrived at a finding on guilt and submitted the report before the Disciplinary Authority. The said Authority inflicted the punishment as per Annexure A1 order, effecting reduction of increment by five years with recurring effect and loss of seniority. He was also changed as Loco Pilot(Goods) from the Cadre of Loco Pilot (Passenger). This was sought to be challenged by filing an appeal, where some modifications were made by reducing the gravity of the punishment to 'three years' instead of five years.

4. The applicants challenged the above proceedings before the Tribunal. After hearing both the sides, the Tribunal observed, as per Ext.P1 verdict, that so far as statutory Rules framed by the authorities clearly stipulated for conducting an enquiry, no major punishment could have been inflicted by the authorities under any circumstances, irrespective of the fact whether any explanation was submitted or not. The OPCAT 4311/2011 & CONN.CASES 4 serious nature of the delinquency noted by the Tribunal and the discussions made in paragraphs 6 and 7 are relevant, which are reproduced below:

"6. We have heard Mr. T.C. G Swamy, the learned counsel for applicant and Mr. Thomas mathew Nellimoottil along with Mr. Varghese John, the learned counsel for respondents. In this case, th charge sheet was served on 08.03.2008. though the respondents had a case that the charge sheet was attempted to be served on him earlier and he had refused to acept the same and it was pasted on the Notice Board, except to record a statement on that fact by the Inquiry officer, there is no other material produced either in the inquiry or before this Tribunal nor even made the files available to prove the same. But that it may, it is not very relevant. Admittedly, the applicant had been served with the charge sheet on 08.03.2008. He did not submit any explanation. On the first sitting of the inquiry on 10.03.2008, he sought an adjournment and accoridngly it was adjourned to 19.03.2008. Then also he did not submit his explanaion before the Disciplinary authority or before Inquiry officer. But he denied his charges annexures A-6 and A-7. True, whether there is any explanation offered by OPCAT 4311/2011 & CONN.CASES 5 the applicant or not, it is incumbent on the authority to hold the inquiry in cases where the punishment to be imposed is a major punishment. Unlike the case where the disciplinary proceedings are governed by natural justice only and not based on any statutory rules, there is no option for the authority in the matter of holding an inquiry as it is mandated by virtue of statutory provisions under Article 311 of the Constitution of India. As per Article 311(2) of the Constitution of India "No person who is a member of a Civil Service of the Union or an all India Srvice or a Civil Service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed. No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges." Following the above Constitutional provision, the Railway Rules itself provides under Rule 9(1) that no order imposing any of the penalties specified in Clauses

(v) to (ix) of Rule 6 shall be made except after an inquiry held as far as may be, in the manner provided in this Rule and Rule 10, or in the manner provided by the Public Servants (Inquiries)Act, 1850 OPCAT 4311/2011 & CONN.CASES 6 where such inquiry is held under that Act. As per Rule 9(b) in a case where no written statement of defence is submitted by the Railway servant, the disciplinary Authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint, under sub-rule (2) an inquiry authority for the purpose and also inform the Railway servant of such appointment.

7. In the light of the above clear provisions, it becomes mandatory for the authority to hold an inquiry in cases they propose to impose a major punishment and rightly in this case an inquiry was held after an inquiry Officer was appointed for the same. But then the purpose of holding the inquiry is to pove the charges by placing materials before the inquiry and then considering such materials etc. to give a conclusion that the charges has been proved or not. In this case the inquiry proceedings clearly reveals that there was no witness examined even to formally prove the charges. No documents were also exhibited to prove the charges. We are surprised to find that in a case of this nature, where the allegations are very serious, the respondents ought to have taken the matter seriously and at least examined one witness formally to prove the sustenance of charge levelled against the applicant.

The delinquent denied the charges before the OPCAT 4311/2011 & CONN.CASES 7 Inquiry Officer. The fact that he is guilty is required to be proved by the employer and cannot cast the burden on the delinquent to prove the negative. First of all, the allegation that he had reported for duty late causing inconvenience to the public is required to be brought on record by examining somebody in which case, there would not have arisen the slightest doubt that nothing further remains to be proved unless the delinquent has got valid explanations against his non reporting for work at the proper time and the delay in reporting for work as the case may be. In the absence of any formal evidence is lacking to support the charges, this is a case of no evidence. Therefore, the purpose of holding an inquiry is completely lost. In a departmental inquiry, the rigour of the Evidence Act will not apply, and the quality and the degree of proof required could not be equated with criminal law. If there is some evidence, it may be sufficient and Court will not interfere but if there is a total lack of evidence in the einquiry, then the finding of guilt becomes a perverse finding which in a given situation will empower the Court of law to interfere. Though sufficiency or otherwise of evidence may not be a matter for the Court to look into, but where there is total want of evidence or when the findings are arrived at contrary to the evidence and OPCAT 4311/2011 & CONN.CASES 8 thereby perverse the Court can have judicial review of administrative action."

5. Ultimately, the Tribunal held that, since no evidence was collected, it was obligatory for the Department to conduct a fresh enquiry before any punishment was inflicted. It was accordingly, that Ext.P1 order was passed, which made the applicant to approach this Court contending that, when there is a finding that no evidence was there, no further direction could have been given by the Tribunal to conduct a fresh enquiry to fill up the lacuna. The verdict passed by the Tribunal in O.A. No. 3/2010 was virtually followed by the Tribunal in the other connected cases as well, thus leading to separate orders. The interference made by the Tribunal in a technical manner without any regard to the fact that the Railways had effected substantial compliance of the provisions made them to feel aggrieved, who have approached this Court by filing the Original Petitions OPCAT 4311/2011 & CONN.CASES 9 concerned.

6. After hearing both the sides, this Court finds that this is not a case where adequacy of evidence was considered by the Tribunal arriving at a finding whether there was evidence to find the delinquent guilty or to punish him. The observations made in paragraphs 6 and 7 clearly reveal that no proper enquiry was conducted in terms of the relevant Rules by examining any witness or collecting any evidence by way of documents or otherwise. This made the Tribunal to observe that, in view of the serious nature of charge, at least one witness could have been examined in a representative capacity, before arriving at the finding on guilt. It isa with this intent that the Department has been permitted to conduct a fresh enquiry, after intercepting the impugned orders. It is also settled law that if the enquiry is found as defective in any manner, the enquiry has to be set aside and it has to be permitted to be conducted from the stage where it came to be defective. This is the settled law OPCAT 4311/2011 & CONN.CASES 10 declared by the Apex Court in Managing Director, ECIL, Hyderabad & Othrs v. B. Karunakar & others [1993 (4)SCC 727]. This being the position, it cannot be said that the Tribunal has gone wrong in granting liberty to the Railways/Employer to conduct a proper enquiry in accordance with the statutory Rules to arrive at the guilt of the delinquent employees. As such, the challenge raised by the applicant in O.P.(CAT) No. 4311/2011 fails.

7. The Learned counsel for the petitioner in O.P. (CAT) No. 4311/2011 however submits that the petitioner in the present case as well as the respondents in the other cases filed by the Railways have already suffered the punishment and as such, nothing survives to be considered in these matters.

8. The learned Standing Counsel appearing for the Railways points out that their grievance in the Original Petitions filed by them is with regard to the interference made by the Tribunal to the orders passed by the Disciplinary Authority and the Appellate Authority. In so OPCAT 4311/2011 & CONN.CASES 11 far as there is no dispute that the statutory Rules envisage to conduct an enquiry in an appropriate manner, this Court finds it difficult to accept the proposition mooted by the Standing Counsel for the Railways so as to interfere with the orders passed by the Tribunal. Acoridngly, we find that the Original Petitions filed by the Railways are also liable to be dismissed.

9. We have come across an order dated 2.1.2012 passed by this Court referring to the serious nature of the chages levelled against the persons concerned and further course of action to be conducted so as to safeguard the Rule of Law. The learned counsel for the applicants submits that almost a decade has already gone; the workers have already suffered the punishment and further that no serious challenge is being raised from their part with regard to the punishment ordered and undergone. As it stands so, this Court finds it appropriate to declare that no further steps need be pursued, pursuant to the interim order dated 2.1.2012. It is made OPCAT 4311/2011 & CONN.CASES 12 clear that the punishment already suffered by the applicants, as put forth by the learned counsel for the applicants, will govern the field in so far as their case is concerned. In respect of others, if any, who have not suffered any punishment, it is for the Railways to conduct 'fresh enquiry' as ordered by the Tribunal and take the proceedings to a logical conclusion. The verdicts passed by the Tribunal stand modified to the above limited extent.

With the above observations, all these Original Petitions are disposed of.

Sd/-

P.R. RAMACHANDRA MENON JUDGE Sd/-


                                      SHIRCY V.
                                       JUDGE

ks.        True copy

                      P.S.To Judge

OPCAT 4311/2011 & CONN.CASES 13




                                P.R. RAMACHANDRA
MENON
                                  JUDGE




                                     SHIRCY V.
                                  JUDGE

ks.

Unlock Advanced Research with PRISMAI

Kerala High Court