Central Administrative Tribunal - Ernakulam
Krishnan Kutty P vs Union Of India Represented By The ... on 1 July, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.966/2013
Friday, this the 1st day of July, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
Krishnan Kutty P,
S/o.Ponnan,
Ex Pointsman 'A',
Southern Railway, Shornur RS & PO.
Residing at Vishnu Sreenivas,
Kizhakke Muri, Vilayan Chathanoor,
Vilayanoor P.O., Palakkad Dist. - 678 671. . . . . . Applicant
(By Advocate Mr.T.C.Govindaswamy)
Versus
1. Union of India represented by the General Manager,
Southern Railway, Head Quarters Office,
Park Town P.O., Chennai - 3.
2. The Assistant Operations Manager,
Southern Railway, Palakkad Division,
Palakkad - 678 009.
3. The Senior Divisional Operations Manager,
Southern Railway, Palakkad Division,
Palakkad - 678 009.
4. The Additional Divisional Railway Manager,
Southern Railway, Head Quarters Office,
Park Town P.O., Chennai -3. . . . . . Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil)
This application having been heard on 14 th June 2016, the Tribunal on
1st July 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant an Ex Points Man 'A' of Shornur Railway Station of Palakkad Division of Southern Railway, is aggrieved by an arbitrary and illegal order of removal from service, confirmed in appeal and revision. The applicant was working as a Sweeper cum Porter at Shornur Railway Station. While so, the applicant was issued with a Annexure A-4 major penalty memorandum of charges bearing No.J/T Misc./PK/SRR/09 dated 18th October 2009. In Annexure A-4 it was inter alia alleged that the applicant had absented himself from duty unauthorisedly on 16.2.2009, from 27.3.2009 to 19.4.2009 and from 15.8.2009 to 30.10.2009. It was further alleged that thereby the applicant had failed to maintain proper devotion to duty and behaved in a manner unbecoming of a Railway Servant and thus violated Rule 3.1 (ii) and (iii) of the Railway Services (Conduct) Rules 1966. The applicant denied the allegations and accordingly an enquiry was conducted. The only witness in support of the allegation was an unnamed, 'SMR/SRR' (Station Manager/Shornur). The document in support of the charge was the muster roll maintained in the office of the Station Manager, Shornur for the period ending 10.3.2009, 10.4.2009 to 10.11.2009. Shri.Mohanan, Station Master (supernumerary post), Shornur, who was summoned as a defence witness at the applicant's request was converted into a prosecution witness. The muster roll was not produced or marked in the enquiry. The contention of the applicant was seen refuted by the Inquiry Officer in the enquiry report, by making a reference only to an attendance register kept in his case file. It may be noticed from the proceedings of the enquiry that the whole exercise was contrary to law and in a manner opposed to Rule 9 of the RS (D&A) Rules, 1968. In Annexure A-9 the charges against the applicant were held proved. The applicant submitted his objections to the findings of the enquiry officer, a true copy of which is not presently available with him. The applicant was imposed with the penalty of removal from service. The applicant submitted an appeal dated 16.2.2011 addressed to the 4 th respondent which was rejected by Annexure A-2. Thereafter the applicant submitted a revision petition addressed to the 5th respondent which was also rejected by Annexure A-3. Subsequently the applicant submitted a mercy petition dated 17.2.2012 address to the 1st respondent. There is no response so far.
2. The applicant submits that the facts on record would prove that there has been no misconduct on the applicant's part and the spells of alleged absence from 27.3.2009 to 19.4.2009 and 15.8.2009 to 30.10.2009 were covered by the recommendations of competent medical authorities. On 27.3.2009 the applicant was on authorised leave (casual leave). On 16.2.2009, the applicant was permitted to exchange the roster and the applicant had reported for night duty, which was refused to be permitted later by the SM on duty. The applicant avers that the entire proceedings adopted by the enquiry officer are ultra vires of the statutory rules. Applicant submits that the penalty imposed in the particular facts and circumstances of the case is highly disproportionate to the gravity of the charges. Relief sought by the applicant is to direct the respondents to reinstate him back to service with all consequential benefits as if Annexures A-1, A-2 and A-3 had not been issued at all.
3. The respondent in the reply statement submits that the applicant was imposed with a penalty of removal from service for a serious irregularity of unauthorised absence from duty on 16.2.2009from 27.3.2009 to 19.4.2009 and from 15.8.2009 to 30.10.2009 while he has working as Sweeper cum Porter at Shornur. Annexure A-1 penalty advice has been issued by the Disciplinary Authority viz. the 3 rd respondent after conducting a detailed enquiry in which the applicant had actively participated along with his defence helper. The charges were proved in the enquiry conducted. On an appeal to the Appellate Authority viz. the Additional Divisional Railway Manager/Palghat the penalty of removal from service imposed by the Disciplinary Authority was confirmed. Annexure A-2 was communicated to the applicant duly advising him to submit revision petition, if any, to the Revisionary Authority viz. Chief Passenger Transportation Manager, Chennai within 45 days from the date of receipt of Annexure A-2 order. Though the applicant received Annexure A-2 order on 28.3.2011 he had submitted the Revision Petition only on 25.10.2011 after a delay of more than 5 months. On considering the revision petition submitted to the Revisionary Authority, the penalty of removal from service was upheld by Annexure A-3/2 and the revisional order was communicated to him on 30.1.2012 by Annexure A-3. The penalty of removal from service was imposed on the applicant after complying with the provisions laid down under the Railway Servants (Discipline & Appeal) Rules, 1968.
4. Providing a background the respondent submits that the applicant was initially appointed as a Sweeper cum Porter on 12.3.1979 and was promoted as Pointsman A on 18.3.2001. While working so, he was taken up for disciplinary proceedings on the charge of unauthorised absence. After considering the enquiry report and the other material evidences on record, the Disciplinary Authority, viz. Senior Divisional Operations Manager, Palghat imposed a penalty of removal from service vide penalty advice dated 15.11.2002. The penalty was confirmed on appeal to the Appellate Authority, ADRM/PGT. However, the Revisionary Authority, viz., the Chief Passenger Transportation Manager, Chennai had passed orders reducing the penalty of removal from service to that of reduction to the lowest grade of initial appointment of Sweeper Cum Porter for a period of five years based on which the applicant was reinstated in service from 30.7.2003 and the period of penalty of reduction was to be over on 30.7.2008. But before completion of the specified period of penalty of five years of reduction, the applicant had again unauthorisedly absented himself from duty for the period from 24.11.2006 to 14.2.2007 and hence he was taken up for disciplinary proceedings again and was imposed with a penalty of compulsory retirement from service with effect from 3.6.2008. On an appeal, he was reinstated to service on 14.8.2008 duly modifying the penalty of compulsory retirement from service to that of withholding of the next annual increment for a period of three years without the effect of postponing the future increments duly treating the period from 24.11.2006 to 13.8.2008 as leave without pay. After re-entry into service on 14.8.2008, the applicant again proceeded on unauthorized absence on 16.2.2009, from 27.3.2009 to 19.4.2009 and from 15.8.2009 to 30.10.2009. Therefore, the applicant was issued with a major penalty charge sheet for unauthorized absence for the above periods by Annexure A-4. The disciplinary proceedings initiated through Annexure A-4 finally culminated in imposing Annexure A-1 penalty of removal from service with effect from 21.1.2011 which was upheld by Annexure A-2 order dated 18.3.2011 and Annexure A-3 order dated 18.1.2012.
5. Heard the learned counsel for the applicant and respondents and considered the written submissions made. The applicant has also filed M.A.No.1055/2013 to condone the delay of 240 days in filing the O.A. The same is allowed.
6. It is argued by the respondents that applicant is in habit of proceeding on unauthorized absence. Respondents argue that unauthorized absenteeism creates an artificial shortage in the system resulting in overwork by other co-workers and thus endangers the safety of train operations apart from creating a bad working culture in the workplace. By absenting himself the applicant had failed to maintain proper devotion to duty and behaved in a manner unbecoming of a Railway servant and thus violated Rules 3.1(ii) &
(iii) of the Railway Services Conduct Rules, 1966.
7. The Hon'ble Supreme Court in the case of North Eastern Karnataka R.T. Corporation Vs. Ashappa (2006) SCC (L&S) 942 has held that absence for a long time in public utility services needs to be tackled with heavy hand.
8. In Annexure A-4 charge sheet the Station Master was in the list of witnesses by whom the articles of charges framed against the applicant were proposed to be sustained. In the list of documents by which the articles of charges framed against the applicant were proposed to be sustained, the Muster Rolls maintained at the Station Manager's office, Shornur for the period from 10.3.2009, 10.4.2009 to 10.11.2009 were listed. The custodian of Muster Roll and the immediate superior under whom the applicant was working was Station Manager, Shornur. Therefore, the administrative witness in support of the allegation of unauthorized absence was the Station Manager, Shornur (SMR/SRR) since the muster roll is the basic document showing the attendance of an employee. Hence the applicant's contention of poaching his witness appears to be far fetched. The enquiry was conducted as per the procedure laid down in the Railway Servants (Discipline & Appeal) Rules, 1968. Shri.K.J.Johnson, Traffic Inspector, Shornur was the Inquiry Officer. Preliminary enquiry was conducted on 3.2.2010 and regular inquiry on 10.2.2010. During the regular inquiry the applicant requested for perusal of certain additional documents and the inquiry officer arranged for the perusal. The applicant had requested the Inquiry Officer for producing two additional administrative witnesses namely Krishnakaranavar, Station Master Grade I, Shornur and M.Mohanan, Station Master/SNP/Shornur and the same was allowed by the Inquiry Officer. The charged employee cannot ask for producing additional administrative witnesses. He can only request for calling defence witnesses who may depose in his favour and the Inquiry Officer can cross examine them. However, the Inquiry Officer had inadvertently permitted to examine additional administrative witnesses as per the request of the charged employee which is not covered by the statutory rules and was a procedural error. Hence the entire inquiry proceedings were cancelled and fresh inquiry was ordered by the Disciplinary Authority.
9. The earlier inquiry officer Shri.K.J.Johnson was meanwhile transferred and posted as Station Manager, Shornur and joined as such on 3.5.2010. Since it would have been difficult to spare a Station Master from his duties for the inquiry, Shri.C.Mohan, replacement Traffic Inspector was appointed as the inquiry officer. Preliminary inquiry was conducted afresh on 31.8.2010 by the Inquiry Officer. First sitting of the regular enquiry was conducted on 22.9.2010. The Inquiry Officer had requested for permission to the Disciplinary Authority to examine Shri.K.Nanu, who was functioning as the Station Manager, Shornur at the relevant time and was subsequently posted as Traffic Inspector, Shornur as additional administrative witness. The applicant, as the charged employee had requested for permission to examine Shri.M.Mohan, SM III/SNP/SRR as defence witness and to take into account the additional document perused and supplied by the administration. Both these requests were permitted. On examination by the enquiry officer, the then Station Manager, Shornur, Shri.K.Nanu while answering to Q.No.29 had deposed that the applicant had produced private medical certificate on 20.4.2010 for the period of his unauthorized absence from 28.3.2009 to 11.4.2009. The applicant had not produced the private medical certificate within 48 hours of his alleged sickness as laid down in Annexure A-14/2 and produced Annexure R-1 medical certificate only after the entire period of his unauthorized absence. The medical certificate is dated 30.10.2009 and the period of his sickness is for 77 days from 15.8.2009. The respondent would aver that the applicant had managed to get this sick certificate dated 30.10.2009 after the issue of the charge memo at Annexure A-4 on 18.10.2009 to cover up the absence knowing very well that he had not submitted any leave application for the period.
10. The applicant had expressed his satisfaction over the enquiry proceedings vide answer to Q.No.55 at Annexure A-6/7. The applicant had no case that the inquiry officers had any bias nor had the applicant at any time represented against the nomination of inquiry officers. The applicant had not explained as to how the appointment of the earlier enquiry officer Shri.K.J.Johnson (who was functioning as Station Manager at Shornur at the time of re-enquiry), as the administrative witness had affected his case. No plea of prejudice was raised or proved. In fact the applicant had availed the facility of cross examination of all the administrative witnesses. Rule 9(18) of the Railway Servants (Discipline & Appeal) Rules, 1968 specifies that :
' If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the presenting officer, if any, to produce evidence not included in the list given to the Railway servant or may itself call for new evidence or recall and re-examine any witness and in such cases the Railway servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned.'
11. The production of additional administrative witness was notified vide Annexure R-2 to the applicant by the inquiry officer by letter dated 8.9.2010 before conducting the inquiry on 22.9.2010 and 19.10.2010. Hence Rule 9 of Railway Servant (Discipline and Appeal) Rules, 1968 has not been violated in the inquiry. During the course of the inquiry the applicant had not produced any material evidence to the effect that he had followed Annexure A-14/2 Railway Establishment Code provisions relating to medical leave. The applicant had neither applied for any leave during the said period of unauthorized absence for which charge memo at Annexure A-4 was issued, to his controlling officer or the immediate superior, nor reported sick at any of the Railway hospitals/intimated his sickness to any competent Railway Medical Authority. Respondent argues that the charges of unauthorized absence had been proved in the inquiry. Habitual unauthorized absence is a grave misconduct. A copy of the inquiry report was given to the applicant. A representation was submitted by the applicant on receipt of the inquiry report. The Disciplinary Authority had passed orders after due consideration of the records of the case, inquiry report and the defence brief submitted by the applicant and thereafter, passed reasoned speaking orders imposing the penalty of removal from service by Annexure A-1. Annexure A-10 appeal submitted by the applicant was disposed of by the Additional Divisional Railway Manager/Palghat (ADRM/PGT in short) the Appellate Authority after giving personal hearing as requested by the applicant. The Appellate Authority has opined that the applicant who was punished five times in the past for unauthorized absence, removed from service on one occasion and compulsorily retired in another occasion and was given adequate opportunity to correct himself. But he has not learnt any lesson from the opportunities offered but repeated the unauthorized absence. His revision petition was also disposed of by the Chief Passenger Transportation Manager confirming the penalty of removal from service. The action of the applicant implies that he is not amenable to discipline and keeping such employees on rolls will only increase the work of his co- workers who would have to carry the burden of work of the applicant. The earlier Inquiry Officer had inadvertently permitted to examine additional administrative witnesses as per the request of the charged employee, by which there was a procedural error and the inquiry proceedings conducted in the first instance had to be cancelled and therefore, it was cancelled duly ordering a fresh inquiry. The Hon'ble Apex Court in IDPL vs. R.K.Shewaramani (2005) SCC (L&S) 808 has held that :
' In departmental inquiry, the charge sheet need not, indicate that previous pending proceedings had been dropped. Employer can proceed in as many inquiries as it considers desirable.'
12. The contention of the applicant that Sri.Mohan who was summoned as defence witness was converted as administrative witness and examined in the enquiry is not true as is evident from copy of the proceedings at Annexure A-6/5, wherein Sri.Mohan is seen enlisted as defence witness and was examined by the applicant along with his defence helper. As such the applicant was not deprived of his opportunity of defence as contended.
13. Applicant has been sanctioned 2/3 rd of pension only as compassionate allowance by Senior Divisional Operations Manager, Palghat. Later after considering the representation to Additional Divisional Railway Manager, Palghat for enhancing the compassionate allowance by sanctioning gratuity, the Additional Divisional Railway Manager, Palghat had passed orders extending the benefit of compassionate allowance also @ 2/3 rd of pension and gratuity in his favour and orders to this effect were issued on 3.4.2013. Hence permissible relief has been already afforded to the applicant despite his habitual absence from office. This is not a case of first instance of misconduct or that the applicant has been taken by surprise, in the action of the respondent. The applicant has been proceeded against for similar misconduct on two earlier occasions and has faced punishment for the same. This is a case of a habitual offender, who feels strengthened after each punishment, to repeat the offence instead of mending his way. The leniency of the appellate authority has been misunderstood as a defence for misconduct and subsequent condonation of repetitive misconduct which has been looked upon adversely by the Apex Court also in various judgements. In the case of State of Rajasthan Vs. Mohd. Ayub Naj 2006 (1) SLR 832 the Hon'ble Supreme Court has held that service rules provide for removal for long absence.
14. In the case of North Eastern Karnataka R.T.Corpn. Vs. Ashappa (2006) SCC (L&S) 942 the Hon'ble Apex Court has held that absence for a long time in public utility services needs to be tackled with heavy hand. In C.A.No.8948/2013 filed by Deputy Commissioner, K.V.S & ors Vs. J.Hussain the Hon'ble Supreme court by order dated 4.10.2013 has held that limited scope of judicial review is permissible in disciplinary cases and interference is available only when punishment is shockingly disproportionate. Merely because in the opinion of the Court, lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities. The Hon'ble Apex Court in Govt. of AP vs. Mohd. Taher Ali (2007) 2 SCC (L&S) 990 has held that :
' Previous misconduct can be considered by the disciplinary authority while imposing punishment. There is no hard and fast rule that merely because the earlier misconduct was not mentioned in the charge sheet, it could not be taken into consideration by the punishing authority. Consideration of past misconduct is only to reinforce the opinion of the disciplinary authority.'
15. The Apex Court in State of Rajasthan Vs. Mohd. Ayub Naz (2006) 1 SCC 589 has held that :
' Absenteeism from office for a prolonged period of time without prior permission by government servants has a principal cause of indiscipline which has greatly affect various government services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, the Government of Rajasthan inserted Rule 86(3) in the Rajasthan Service Rules which contemplated that if a Government servant remains wilfully absent for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service.' The Apex Court in Union of India Vs. Bishanibu Das Dogra (2009) 13 SCC 102, Burn & Co.Ltd Vs. Workmen AIR 1959 SC 529 and L&T Komatsu Ltd. Vs. N.Udaykumar 2008 (1) SCC 2243 had settled the legal proposition that habitual absenteeism is a gross violation of discipline. Judicial review of administrative action is not directed against a decision but against the decision making process. The Apex Court in H.B.Gandhi, Excise and Taxation Officer Cum Assessing Authority Vs. Gopi Nath & Sons 1992 Supp. (2) SCC 312 has held that it would be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself. Judicial review of administrative action by CAT has been aptly brought out in Government of A.P Vs. Mohd. Nassullah Khan (2006) 2 SCC 373 :
'12. We may now notice a few decisions of this Court on this aspect avoiding multiplicity. In UOI vs. Parma Nand, K.Jagannatha Shetty, J. speaking for the Bench observed at SCC p.189, para 27 as under :
'27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the inquiry officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rule made under the proviso to Article 309 of the Constitution. If there has been an inquiry consistent with the rules and in accordance with principles of natural justice, what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the inquiry officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.'
16. While past misconduct should not ordinarily be taken into account while deciding a disciplinary case, it would be difficult to ignore the same if subsequent misconduct is similar to past instances which gives the impression that such indiscipline if condoned repeatedly, creates an adamantive attitude of misconduct and indiscipline. The Apex Court in Chennai Metropolitan Water Supply and Sewerage Board and Ors. vs. T.T. Murali Balu 2014 (4) SCC 108 had described the attitude in such a case in para 31 as follows:
'31...As it appears, he has chosen his way, possibly nurturing the idea that he can remain absent for any length of time, apply for grant of leave at any time and also knock at the doors of the Court at his own will.'
17. The above apt quote also addresses the doctrine of proportionality argued by the learned counsel for the applicant, as repeated misconduct cannot be weighed against proportionality nor can proportionality over look repeated misconduct. In view of the facts and circumstances of this case we find no reason to interfere with the finding of guilt entered nor is there any irrationality or impropriety in the action taken by the respondents. Penalty imposed is not outrageously disproportionate so as to interfere with the same.
18. The Tribunal does not see any reason to interfere in this matter and accordingly the O.A is dismissed.
(Dated this the 1st day of July 2016) (P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER asp