Central Administrative Tribunal - Kolkata
Debasis Chakraborty vs S E Railway on 7 September, 2022
© Lo 1 0.A/350/311/2015 . , CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA 0.A/350/311/2015 _ Date of Order: 07.09.2022 Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member Debasish Chakraborty son of Samar Chakraborty working as O/S South Eastern Railway, Santragachi, residing at 22/2, BLC Mills Bye Lane, Mahesh, District Hooghly. Pin - 712 202. .. Applicant. - Versus - 1. Union of India service through the General Manager, South Eastern Railway, Garden Reach, Kolkata - 700 047, , 2. The Area Manager, (Appellate Authority), South Eastern Railway, Santragachi, District Howrah, Pin - 711 1 04. 3. Additional Divisional Railway Manager/Kharagpur Revisional Authority, South Eastern Railway, District Paschim Medinipore, Pin -- 721301. 4. Divisional Mechanical Engineer (C & W) South Eastern Railway, Santragachi (TA), District Howrah. Pin - 711 104. 5. The Divisional Personnel Officer, South Eastern Railway, Kharagpur, District Paschim Medinipore, Pin - 721 304. 6. The Senior Divisional Mechanical Office (Engineer) South Eastern Railway, Kharagpur, District - Paschim - Medinipore, Pin 721 304. .. Respondents. For The Applicant(s): Mr. A. P. Deb, counsel For The Respondent(s): Mr. S. Banerjee, counsel ORDER(ORAL) Per: Ms. Bidisha Baneriee, Member (J):
This matter is taken up Single Bench in view of the revised list dated 04.04.2000 issued under Sub-Section (6) of Section 5 of the 2 0.A4/350/311/2015
- Administrative Tribunals Act, 1985 and as no complicated question of law is involved and is taken up for disposal with the consent of both the parties.
9. Heard ld. counsel for both sides.
3. This application has been preferred to seek the following reliefs:
"a) i) that direction/order may be passed to transmit to this Hon'ble Tribunal all -
records relating to charge sheet so that conscionable justice may be rendered by setting aside the same.
i) to rescind recalled, revoke and quash the Charge Sheet No. C/IRS/D&A/SRG/525 Dated 24.08.2010.
iii) to rescind recalled, revoke and quash the Punishment Order No. C/RS/D&AISRC/525 dated 13.09.2010 passed by the Disciplinary Authority.
iv) to rescind recalled, revoke and quash the Order No. SRC/CC/C&W/SRC/OPINION/53 dated 31.08.2013 passed by the Appellate Authority.
v) to rescind recalled, revoke and quash the Order No. C/RS/D&A/SRC/52 dated 28.03.2014 passed by the Revisional Authority.
' b) Direction upon the concerned Respondents to restore and refund the 'increment so accrued to the applicant along with interest and with all consequential benefits.
c) Costs or incidental to and arising out of this application.
d) Any other order or orders as your Lordships may deem fit and proper by way of moulding the reliefs."
4. The grounds put forth by the applicant to challenge the aforesaid impugned order are the following:
() The charge sheet disclosed pattern pre determination and closed mindedness and, hence, it is bad.
ii) No preliminary enquiry was held before framing of the charge.
iii) No enquiry was held whereas charges are factual and the applicant has denied the charges 'and in terms of the decision rendered by Hon'ble Apex
- Court in O.K. Bhardwaj vs Union of India & Ors (2002) SCC (L&S) 188, when "the charges are factual and the same are denied by employee, "Even in the © _ 3 . 0.A/350/311/2015 case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with." Therefore, the manner of conduct of the proceedings and its culmination is bad.
iv) No satisfaction has been recorded for not holding of enquiry.
v) No ingredients of misconduct has been disclosed nor allegations of ill will or ill motive as the basis of such action which has been alleged to have been conducted is disclosed either, hence, the authorities have failed to establish any nexus on the ground of negligence which has directly caused any loss to have constituted a misconduct.
vi) In the previous round in O.A 699/2012, this Tribunal had particularly directed the Appellate Authority to delve into the allegations in each and | every paragraph, to apply its mind on the decision in O.K Bhardwaj, to see whether establishment sl. No. 261/78 was followed scrupulously while rejecting the prayer for supply of documents, and then to dispose of the appeal and pass necessary orders within 3 months.
_ Whereas, the Appellate Authority has informed that his prayer for supply of documents was not explicit as charge sheet was not issued under Rule (2) of RS (D&A) Rules and, therefore, the Appellate Authority's order is without application of mind. ~
vii) The applicant was informed with a letter dated 07.09.2010 to submit representation within 10 days and before expiry of the said 10 days, the order 4 0.4/350/311/2015 of punishment was issued by the Disciplinary Authority on 13.09.2010, which is bad. The Appellate Authority has failed to take note of the same.
viii) The Disciplinary Authority has imposed the punishment of withholding | the next increment to the period of 35 months with non-cumulative effect, having observed as under:
4 the undersigned, applied my own mind & came into conclusion that you have nothing * to represent on the above subject allegation served to you; as such | am of the opinion - | that you are guilty of the case and willfully did not communicate the 11 nos of punishment orders mentioned in the charged memorandum. No. C/RS/D&A/SRC/525 of dated 25.08.2010, to the concern staff and official, which has led to non-implementation of punishment order against guilty staff." :
Therefore, there is no discussion on the charges levelled, the evidence
5 in support of the charge and conclusion of guilt against the applicant. In absence of any enquiry, the applicant has been denied due opportunity to present his case. He has been deprived of effectively putting up his defense | due to non-supply of necessary and relevant documents. Ld. counsel would seek quashing of the impugned order on the aforesaid grounds.
5. The respondents by way of reply have stated that directives of the Tribunal were complied with, upholding the punishment of the Disciplinary Authority with a clear speaking order. The applicant preferred a revision petition to Revisioning Authority & ADRM, KGP. The revisional authority disposed of the revision petition upholding the punishment since there was no new point and no merit in the said revision petition.
6. The records of the case were duly perused and the following facts decipher:
() On 07.09.2010, the Divl. Mech. Engineer (C&W) S.E. Rly, Santragachi, -- gave a clear 10 days' time limit to the applicant to submit his written representation against the charge memo for further action on the subject, but 5 , 0.4/350/311/2015 without waiting for the said 10 days period, which would in normal course lapse on 17.09.2010, on 13.09.2010, the said DME issued the said punishment order. Non application of mind, violation of principles of natural justice and unreasonableness and arbitrary action is palpable and writ large on the face of the record.
(ii) On one hand, the applicant has been deprived of any documents to put up | his defense while on the other, the said disciplinary authority has concluded that. he had nothing to represent on the allegations served to him and was therefore guilty of having wilfully not communicating the punishment order in question and therefore being guilty of wilful disobedience.
iii) No rules or provisions brought to the fore to suggest that in minor penalty proceedings, access to the documents required by the delinquent to make effective representations against the charge sheet, can be denied.
7. The clarifications in regard to manner of conduct of minor penalty
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proceedings against Railway servants as provided by B. S. Mainee are as follows: (extracted with emphasis for clarity) "CLARIFICATIONS (1) Charge sheet:
a) Charges should be framed against the delinquent employee and communicated to him on the prescribed form-Standard Form No. 11, the specimen of which is given in Appendix I. , _b) The particular penalty to be imposed on the delinquent Railway servant must not be | specified on the charge-sheet but it should be simply stated that it is proposed to take action against him under Rule 11 of the Railway servants Discipline & Appeal Rules, 1968. |
c) The charges framed against the delinquent must be specific and not vague.
d) Alongwith the charge-sheet a statement of allegations is also supplied mentioning therein the charges in detail and also the basis on which the charges have been framed, ~
e) A list of documents relied upon, should also be supplied to the delinquent Railway servant alongwith die charge-sheet and statement of allegations.
f) The-annexures to memorandum of charge-sheet i.e. the statement of allegations .
and list of documents relied upon should also be signed by the competent authority signing the charge-sheet.
g) If the delinquent. Railway servant is unable to understand English, the statement of allegations may be supplied to him in Hindi.
oO 6 0.A/350/311/2015 [R.B's. No. E(D&A)66 RG-6-7 of 30-12-68; (N.R., S.N. 4557),]
(h) The period within which the employee should submit his explanation is specified in the charge-sheet, which is usually 10 days.
(i) In case, the Railway servant refuses to accept the charge-sheet issued for service on him, it shall, on the written statement of two persons to the effect that this refusal was witnessed by them or on an advice from the post office to the effect that the addressee _ refused delivery of the Registered Postal Cover, be deemed to have been served on him.
-- [R.B's. No. E 55 RG 6-20 of 4-2-56].
(j) Even if delinquent employee admits his guilt, the penalty cannot be imposed without issuing charge-sheet. ([RBE 130/2015] Note: For detailed comments and judicial decisions on "charge-sheet" please see -- Chapter. V.
2) Inspection of documents:- After receiving the charge-sheet the delinquent Railway servant may request the disciplinary authority for permission to inspect and take extract from the documents mentioned in the list accompanying the charge-sheet. The delinquent employee can also request the permission to inspect the additional
- documents which are relevant to the charges framed against him but have not been relied. upon by the disciplinary authority. After receiving such a request from the | delinquent Railway servant the disciplinary authority should fix up the date, time and place where the delinquent employee can inspect the documents and take the extract therefrom. So far_as additional documents are concerned the disciplinary authority should permit the inspection of a documents also if it is of the opinion that the . documents in question are relevant to the charges. If the disciplinary authority is of the view that some of the additional documents asked for by the delinquent are not relevant to the charges, it should advise the delinquent accordingly giving reasons therefor.
Note: For detailed comments in regard to the right of the delinquent to inspection of documents, please refer to Chapter V. In regard to issuance of speaking order, the Railway Board has specified as under:
"6.)Speaking orders: The disciplinary authority imposing the penalty must apply its mind to the facts, circumstances and record of the case and then record its findings on each_ imputation of misconduct or misbehavior. The disciplinary authority should give brief reasons for its findings to show that it has applied its mind to the case. The reasons recorded by the disciplinary authority shall be of great help to the delinquent Railway servant in preferring his appeal. The disciplinary authority must not pass non-speaking and cryptic orders, because the orders of imposition of penalty being appealable must be speaking orders. Railway Board in their letter No. E(D&A)56 RG-6-14 of 20-12-55 have laid down that when the explanation of the delinquent has not been considered satisfactory, the competent authority must invariably record reasons for rejecting the explanation. Sketchy and cryptic orders have been held by the court of law to be non- , speaking and as such illegal.
Further it clarifies the need of issuance of reasoned orders in the following way: '
- 7 0.A/350/311/2015 "(7) Reasoned order: The Railway Board has directed that in case of imposition of minor penalty where no enquiry was held, the disciplinary authority while passing the Order should communicate the employee concerned the brief reasons for final decision regarding the guilt of the employee.
[R.B's. No. E(D&A)86 RG-6-12, dated 17-2-86 (N.R., S.N, 8945) R.B. No. E( (D&A) The Supreme Court in the case of Mahavir Parshad v. U.O.I. AIR 1970 SC 1302) observed that recording of reasons in support of a decision by a quasi-judicial authority is obligatory as it can'show that the decision is reached according to the law and is not a result of caprice, whim or fancy or reached on ground of policy of expedience. It has been further held that the necessity to record reasons is greater if the order is subject to appeal.
[R.B's. No. E(D&A)86 RG-6-1 of 20-1-86 (N.R., S.N. 8904)]."
8. Having noted the glaring omissions and the defects in the conduct of \ proceedings as stated above as well as the law laid down in O.K Bhardwaj supra, which requires an enquiry even in minor penalty proceedings, I am of the considered opinion that penalty order and the consequent orders passed by the Appellate Authority as weil as the Revisional Authority deserve to be quashed.
9. Accordingly, the said orders are quashed with liberty to the respondents to act in accordance with law.
10. The present OA accordingly stands disposed of. No costs.
- (Bidisha Banerjee) Member (J) 58