Bombay High Court
Sudarshan S/O Haridas Awale And 5 Others vs Union Of India,Thr.G.M.Mumbai & ... on 5 July, 2017
Author: R.K.Deshpande
Bench: R.K. Deshpande, Swapna Joshi
wp.27.02
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.27/2002
* Haridas s/o Sadashiv Awale,
(Since Dead) : Through LRs
1) Sudarshan s/o Haridas Awale
(Since Dead): Through LRs:
1a) Usha wd/o Sudarshan Awale
Aged 42 years, occu: housewife
(wife)
1b) Akshay s/o Sudarshan Awale
Aged 19 years, occu: Education
(son)
1c) Sneha D/o Sudarshan Awale
Aged 22 years, occu: Education
(Daughter)
1d) Shreya D/o Sudarshan Awale
Aged 16 years, occu: Education
(Daughter)
Petitioner No.1(d) Minor Through
natural guardian mother
i.e. petitioner no.1 (a)
All R/o Takli (Sim), Hingna Road,
Nagpur.
(Amendment carried out as per
Court's order dated 24.11.2014.)
2) Rajesh s/o Haridas Awale
Aged abotu 32 years, occu: Driver
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3) Smt. Panchasheela wd/o Haridas Awale
Aged about 60 years,
occupation : Household
All R/o Takli (Sim), Hingna Road,
Nagpur.
4) Sau. Sangita Walde,
Aged about 35 years, occu: Nurse
At Yadav Hospital, Gandhibag
R/o Near Buddha Vihar, Santra Market
Nagpur.
5) Sau. Sharda w/o Ajay Sontakke
Aged about 309 years, occu: Agriculture
/ Labour,R/o Kawtha, Tah. Kamptee
Dist. Nagpur.
6) Sau. Babita w/o Anil Gujre
Aged about 25 years, occu: household
R/o Takli (sim)
Hingna Road, Nagpur. ..PETITIONERS
(Amended as per court's order
dated 05.09.2006).
VERSUS
1) Union of India
Through General Manager
Central Railway, C.S.T.Mumbai.
2) Additional Divisional Railway
Manager-cum-Revisional Authority
Central Railway,
Nagpur Division, Nagpur. ..RESPONDENTS
.
...................................................................................................................
Mr. A. M. Deshpande, Advocate for the petitioner
Mr. R.S. Sundaram, Advocate for respondents
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CORAM : R.K. DESHPANDE &
MRS.SWAPNA JOSHI, JJ.
DATED : 5 th
July, 2017
ORAL JUDGMENT: (Per R.K.DESHPANDE, J.)
The original petitioner-Haridas Awale was initially appointed in the year 1989 as Assistant Pointman in the services of Indian Railways and some time in the year 1989 he was promoted on the post of Assistant Guard, on 28.11.1995. A show-cause notice was issued to him containing three charges pertaining to the period from 21.05.1995 to 12.06.1995. Article I alleges that though the petitioner was asked to see the Station Superintendent, Nagpur on 25.5.1995, he did not report but marked 'rest' on his own. It is also alleged in Article I that the petitioner did not work on Train Nos. 1006/2859 on 09.06.1995 and 10.06.1995 and Train Nos. 2617/8238 on 11.06.1995 and 12.06.1995. Article II states that the petitioner is charged same as in Article I. Article No. III refers to the charge in Article I and further alleges that the petitioner produced mileage bill showing the period 25.05.1995 to 06.06.1995 that he has attended the Station Superintendent, Nagpur's office and in 12 days period, he has signed on/off for four days i.e. 27.05.1995, 01.06.1995, 05.06.1995 and 06.06.1995. In Article III, it is alleged that ::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:12:56 ::: wp.27.02 4 the petitioner did not work on the trains 1006/7839 on 09.06.1995, 10.06.1995 -10.06.1995 and 261/8238 on 01.06.1995 -12.06.1995. It is alleged that the petitioner put his remark marked in the bill, "this was the trip due to line box was not loaded on SLR". It is further alleged that he has put a note in the mileage bill, "please do not mark this period in my leave". It is alleged that such type of remarks is quite irregular and misconduct and threatening to the concerned staff and officers. It is also alleged that without any work, the petitioner has drawn the wages for the period from 26.05.1995 to 06.06.1995 and 09.06.1995 to 11.06.1995 and thereby has violated G & S Rule No. 2.06 and 2.07.
2. The Inquiry officer submitted his report on 25.10.1996 holding the petitioner guilty of all the charges. The Disciplinary Authority imposed the punishment of removal from service on the basis of the enquiry report, which was confirmed by the Appellate Authority. The revisional authority by its order dated 09.12.1996 modified the punishment and it was converted into one of compulsory retirement from service.
3. The petitioner preferred Original Application No.2075/2001 ::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:12:56 ::: wp.27.02 5 before the Central Administrative Tribunal which was dismissed by the judgment and order dated 21.06.2001. The Tribunal recorded the finding that the respondents have considered all the aspects of the matter. The petitioner claimed false mileage bill for the period between 09.06.1995 to 12.06.1995 and nothing has been brought on record to vitiate the findings recorded by the authorities. The question of proportionality of the punishment of removal is also considered and it is held that a lenient view is taken by the revisional authority, in respect of holding that the charges converting the order of removal from service into compulsory retirement, in spite of recording a finding that all the charges are proved.
4. With the assistance of the learned counsels appearing for the parties we have gone through the findings recorded by the Inquiry Officer which are confirmed in appeal as well as in revision. The appellant and revisional authorities as well as the Central Administrative Tribunal merely concurs with the finding recorded by the Inquiry Officer. Hence this petition.
5. The grounds of challenge raised in the petition are twofold. ::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:12:56 :::
wp.27.02 6 Firstly, the findings recorded are perverse and secondly, the punishment even of compulsory retirement is disproportionate to the acts of misconduct alleged and proved.
6. It is not in dispute that the management did not examine any witness in support of the charges levelled against the petitioner. The petitioner examined defence witness - Shri R.N.Karpe, a Telephone Clerk at Nagpur Railway Station. In Paragraph 3, the Inquiry Officer records the finding as under :
"3) In reply to Q.No.2, the defence witness has stated that as per the verbal instructions of SS NGP the DE was booked to see SS on 25.5.95, however, he did not attend on 25.5.95, and marked rest of his own and denied the receipt of instructions having received from Shri Karpe while replying Q. No.5.
4) When the DE was aware of his booking to see SS on 25.5.95, he should have obtained permission before availing rest. His absence on 25.5.95, amounts to disobedience."
The Inquiry Officer accepts the version of the defence witness that as per the verbal instructions of Station Superintendent Nagpur, the petitioner was booked to see him on 25.5.1995 though the ::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:12:56 ::: wp.27.02 7 petitioner denied to have received such verbal instructions. It is further held by the Inquiry Officer that the petitioner did not attend the Station Superintendent on 25.5.1995 and marked 'rest' on his own. Dr. Sundaram, the learned counsel appearing for the respondents submits that the marking of 'rest' is an admitted fact and, therefore, presumption has to be drawn that the petitioner did not attend the Station Superintendent on 25.5.1995.
7. As we see that it is not the charge framed against the petitioner that he was unauthorizedly absent from duty on 25.5.1995. In the absence of the Station Superintendent being examined as a witness to state that the petitioner failed to see him in spite of such message sent to him on 25.5.1995, it cannot be said that the charge is proved. In fact, the finding recorded by the Inquiry Officer that "the delinquent employee should have obtained permission before availing rest and his absence on 25.5.1995 amounts to disobedience", is not based on any such charge levelled against the petitioner.
8. In respect of Article II, the Inquiry Officer records the finding in paragraph no. 1 as under :
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wp.27.02 8 " In reply to Q.No.1, the evidence witness no.1 Shri R.N. Karpe stated that the DE has attended the office regularly, from 26.5.95 to 6.6.95, but he had no knowledge about the record of attendance in the signing ON/OFF register. When the reason for not recording the regular attendance was asked to DE vide Q. No.7, he stated that there was no need for him to sign off/on in the register as he was no booked to work any train. In fact, all entries as regards to the duties need to be recorded in the sign on/off register by the running staff since there is no separate register for marking attendance by the running staff is kept in the lobby."
The Inquiry Officer accepts the version of defence witness that the petitioner was on regular duty from 26.5.1995 to 6.6.1995. During this period, the petitioner has signed on and off on four days i.e. 27.5.1995, 1.6.1995, 5.6.1995 and 6.6.1995. The Inquiry Officer records the finding that when the petitioner was asked the reason for not recording the regular attendance, he states in response to Question No.7 that there was no need for him to sign the on and off register as he was not booked to work on any train. In fact, it is not the fact established that on the remaining dates during 26.5.1995 to 12.06.1995 ::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:12:56 ::: wp.27.02 9 he was booked for any train. In the absence of any such evidence such a charge cannot be held to be proved.
9. The Inquiry Officer has recorded the finding in paragraph 2 in respect of Article II, which is reproduced below :
" 2) It is revealed from the signing ON/OFF register that the DE has inserted the entries pertaining to his duties in an irregular manner without foreseeing the consequences of the manipulation of official record and thus the malafide intention to misled the administration is proved beyond doubt."
The findings are of serious nature holding that the petitioner has inserted the entries pertaining to his duties in irregular manner without foreseeing the consequences of manipulation of official record and with mala fide intention to mislead the administration. It is surprising that such a serious nature of findings are recorded in the absence of any such charge. The findings are also vague without specifying which entries were inserted by the petitioner in respect of his duties in the ON/OFF register and on which dates. There is no charge of manipulation of official record levelled against the petitioner. The ::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:12:56 ::: wp.27.02 10 findings are thus perverse. The findings in paragraph 3 under Article II are the same regarding manipulation of the official record and cannot therefore be held to be proved.
10. In respect of Article II it is held that on 9.6.1995, 10.6.1995, 11.6.1995 and 12.06.1995, the petitioner did not attend Train Nos. 1006 up / 2859 down and 2617/8238 and these trains were allowed without Assistant Guard. The petitioner accepts not to have attended the trains on those dates but raised a defence that he has put a remark in the mileage bill that "this was the trip due to line box was not loaded on SLR". The Inquiry Officer holds that the Assistant Guard is required to carry very few equipments which are torch, HS flags, two logs and a register and for thus the line box is not essential. There is absolutely no evidence on record to show that it was not essential to load a line box on SLR, as is the finding. The Inquiry officer accepts that the Railway administration neither provides line box nor any amount to the Guard for the line box. It is the finding recorded that the Assistant Guards have to carry line box on their own. This is without any evidence on record. In respect of this the justification put forth by the petitioner, the Inquiry Officer holds that there is lack of safety ::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:12:56 ::: wp.27.02 11 consciousness and the integrity is doubtful. It is surprising as to how such an act raises a doubt about the integrity.
11. Lastly, the charge proved against the petitioner is that the petitioner has drawn wages for the period from 26.5.1995 to 6.6.1995 and from 9.6.1995 to 11.06.1995 and has thereby violated Rule 2.06 and 2.07 of the G.S. Rules. In the absence of any charge of unauthorised absence from today on these dates, it is not possible to record the finding that the wages were drawn without any work. The Inquiry officer records the finding that the petitioner had never attended the office during this period and recorded the bogus entries in the ON/OFF register and passing remarks in the mileage bill proves the intention to camouflage the reality/facts. The findings are also without any charge in that respect being levelled against the petitioner. However we find that the petitioner should not have put a remark in the mileage bill, "not to mark this period as his leave period" and, at the most, this can be considered as an unauthorized act.
12. It is not necessary for us to discuss the findings recorded by the appellate/revisional authorities and also the findings recorded by ::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:12:56 ::: wp.27.02 12 the Central Administrative Tribunal for the reason that all the authorities have concurred with the aforesaid findings recorded by the Inquiry Officer with which we have dealt in detail. Once we hold that the findings recorded by the Inquiry Officer are perverse in the absence of there being any evidence on record and proper charges being levelled, the findings recorded by the appellate/revisional authorities and the Tribunal cannot be sustained. At any rate, it was not a case where either the punishment of removal from service or of compulsory retirement by way of punishment could have been passed.
13. The petitioner attained the age of superannuation on 31.05.2002 i.e. during the pendency of this writ petition and has expired on 5.12.2005. The legal heirs of the petitioners at brought on record and they shall be entitled to all the monetary benefits which the petitioner would have derived had he been alive on this date.
14. In the result, the Writ Petition is allowed as under :-
(i) The order dated 3.3.1997 passed by the Disciplinary authority removing the petitioner from service is hereby quashed and set aside along with the order dated 25.8.2000 passed by the ::: Uploaded on - 10/07/2017 ::: Downloaded on - 12/07/2017 00:12:56 ::: wp.27.02 13 Revisional authority converting the order of removal into one of compulsory retirement.
(ii) Consequently, the orders passed by the Disciplinary Authority as well as Central Administrative Tribunal on 21.06.2001 in Original Application No.2075/2001 are also quashed and set aside. The O.A. No. 2075/2001 is allowed.
(iii) The petitioner is directed to be notionally reinstated in service with effect from the date he was terminated i.e. 3.3.1997 on the post of Assistant Guard and he shall be entitled to all consequential benefits and the back-wages are restricted to 50% till the date of his superannuation.
(iv) The petitioners would be entitled to receive all the consequential benefits flowing from grant of such relief, with an interest at the rate of 8 per cent per annum on the monetary benefits payable to them, from the date on which the original petitioner attained the age of superannuation till the date of actual payment.
(v) The exercise be carried out within four moths from the date of communication of this order.
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wp.27.02 14 No costs.
JUDGE JUDGE
sahare
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