Central Administrative Tribunal - Ernakulam
C Unnikrishnan vs Union Of India Represented By The ... on 12 July, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.810/2013
Tuesday, this the 12th day of July, 2016
CORAM:
HON'BLE Mr.JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P. GOPINATH, ADMINISTRATIVE MEMBER
C Unnikrishnan,
S/o.C Govindan,
JE/II/PW/TCR,
Changuthodi House,
Srikrishnapuram, Ottapalam Taluk,
Palakkad District - 679 513. . . . Applicant
(By Advocate Mr.Ravi K Pariyarath)
Versus
1. Union of India represented by the General Manager,
Southern Railway, Park Town, Chennai.
2. The Senior Divisional Personnel Officer,
Southern Railway, Palakkad Division,
Palakkad District.
3. The Senior Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum. . . . Respondents
(By Advocate Ms.P.K.Radhika)
This application having been heard on 24 th June 2016, the Tribunal on
12th July 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicant an Ex-Servicemen joined the Indian Railways on 18/07/1990 as Permanent Way Inspector, Grade III at Palakkad Division. While working at Railway Division, Palakkad, he reported to the higher authorities a case of sabotage, which was likely to endanger the safety of the running of trains. Without looking in to the complaint lodged at the instance of the applicant, he was transferred to Trivandrum Division. Because of the transfer the applicant was unable to discharge his duties which compelled him to seek leave as he was ill treated by co-workers and superiors. The leave was not sanctioned and applicant was proceeded for unauthorized absence. Applicant was awarded with removal from service. Applicant argues that none of the authorities concerned cared to look into the reasons stated in the reply statement before finding the applicant guilty of the charges. Reliefs sought by the applicant is to call for the records leading to Annexure A-16, A-18 and A-20 and to set them aside on a finding that they are illegal, arbitrary and to direct the respondents to submit a report with regard to the action taken on the applicants complaint with respect to the alleged attempted sabotage and further to declare that he is entitled to merge his army service with the service he had undergone in the Indian Railways so as to make him eligible for full pension. The applicant has also filed M.A.No.910/2013 to condone the delay of 2216 days in filing the O.A.
2. Respondent challenges the delay of 2216 days in filing the O.A. The O.A challenges Annexure A-16 dated 28.2.2005, Annexure A-18 dated 9.6.2005 and Annexure A-20 dated 7.12.2005. Thus it may be seen that the challenge against Annexure A-18 was to have been made on or before 24.2.2006. Accordingly, the delay counted from 25.2.2006 to 31.7.2013 ie. the date of filing O.A, is 2713 days. Further no document showing the commencement of alleged medical treatment from June 2005 has been produced. Annexure A-1 does not state that the applicant had been bedridden, immobilized and admitted as an inpatient in the hospital for the alleged treatment from June 2005, forbidding him to move around. It is also pointed out that in none of the documents annexed in the O.A applicant had stated a word about the alleged treatment shown in Annexure A-1. Hence Annexure A-1 is an afterthought to bridge the abnormal delay. In support of their contention the respondents cites the case of Mohd. Khalkis vs. Union of India (1997) 3 SLJ (CAT) 54 in which the Hon'ble Supreme Court has observed that no application shall be admitted by the Tribunal unless it is made within a year from the date on which the final order had been given. In the case of Bhagmal vs. Union of India (1997) 2 SLJ (CAT) 54 it has been observed that delay cannot be condoned unless sufficient ground is shown. Further it is submitted that in Noharlal Verma vs. District Co- operative Central Bank Limited (2008) 14 SCC 445, the Hon'ble Supreme Court has held :
' If a suit, appeal or application is barred by limitation, a Court or an Adjudicating Authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.'
3. Sub section (1) Section 3 of the Limitation Act, 1963 reads as under :
(3) Bar of Limitation - (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.
4. The Apex Court held in Tridip Kumar Dingal & Ors. Vs. State of West Bengal & Ors. SLJ 2009 (2) 209 :
' We are in respectful agreement with the following observation of this Court in P.S.Sadasivaswamy Vs. State of TN (1975) 1 SCC 152. 'It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to forward stale claims and try to unsettle settled matters.'
5. The respondents therefore, pray that the M.A for condonation of delay is liable to be dismissed on the point of delay and laches and for want of sufficient grounds covering the delay in filing the O.A.
6. The respondent in reply statement submits that the O.A is having prayers which are inconsistent with one another. It is submitted that the applicant prays for a direction for submission of a report on the action on his complaint regarding alleged attempted sabotage; for a declaration that the applicant is entitled to all service benefits that a Railway employee is entitled at the time of superannuation; and for a declaration that he is entitled to merge his army service with his railway service so as to make him entitled for full pension. It is pointed out that these prayers are entirely different from one another and they are also not consequent to the main prayer. It is submitted that multiple prayers are not permissible in a single O.A. It is submitted that the prayer for a report on the complaint of 'alleged attempted sabotage' is not liable to be placed before this Tribunal. The applicant should approach the proper forum in this connection and hence the prayer in paragraph 8(2) does not have any maintainability. Respondent submits that the applicant has not furnished any fact which is in direct relation to the prayer in the O.A. It is submitted that the averments in the O.A are irrelevant or vague. Applicant has not cited any procedural irregularities in the DAR procedures in arriving at the Annexure A-16, A-18 and A-20. The averments in paragraph 4(1) are irrelevant to the prayer in paragraph 8(1), 8(3) and 8(4) in the O.A. It is also pointed out that it is more than 17 years since the alleged incident of 28.7.1996 and as the applicant has not provided any proof at the time of incident or in this O.A, the same are denied It is submitted by respondents that Annexure A-1 is in proof that it is not a proper leave application as it does not specify the period of leave applied or the number of days of leave required. To quote from the Annexure A-1 :
I am compelled to over stay the leave and until that I may please be exempted from works involving railway safety.
7. Annexure A-2 is also no different from this. To quote from Annexure A-2 :
I request your kind honour to sanction me leave until the problems (1) enquire into the sabotage matters and (2) provision of suitable railway accommodation are sorted out.
8. As a Junior Engineer Grade II in the Permanent Way Section of the Engineering Department, the applicant was in a supervisory capacity and as a responsible official of that status, he was not supposed to stay away from duty without proper leave sanctioned by the competent authority in advance. The respondents submit that applicant was absenting unauthorizedly. As he had not reported for duty after the sanctioned leave on 10.7.2000, a Charge Sheet in SF-5 for major penalty was issued to him on 8.1.2001 and penalty of reduction of pay by 3 stages for a period of 1 year (Non-Recurring) with effect from 1.9.2001 was imposed on him on 23.8.2001 after duly conducting an inquiry which proved him guilty. His appeal was considered by the Appellate Authority confirming the penalty with remarks that he did not find any bias or vengeance by the Disciplinary Authority as seen from Annexure A-9. The fact that the applicant himself accepted that he was absent is proved in the documents submitted by the applicant. Respondents submit that in Annexure A-4 he says 'I absented myself', in Annexure A-6 he says 'I am absenting from duty', in Annexure A-8 he says 'I absented myself' and 'regularize my absence period'. The documents from Annexure A-1 to Annexure A-9 to the extent of the charge of unauthorized absence from 10.7.2000 do not require a fresh look. Further the applicant has not challenged Annexure A-7 and Annexure A-9 punishment order and appeal order. It is also pointed out that Annexure A-10, A-11, A-12 and A-13 documents are sent directly to Chairman, Railway Board and are not seen routed through any of the recognized and appropriate authorities at the lower level who are the seniors/superiors of the applicant.
9. The applicant again absented himself from duty with effect from 9.2.2001 for which fresh charge sheet was issued on 12.8.2004. Inquiry was conducted and the inquiry report was sent to him on 12.11.2004. This was replied by him on 2.12.2004 giving no sound reasons for being away from duty for 4 years. The Disciplinary Authority, therefore, imposed the penalty of 'removal from service'. The appeal and revision petitions were considered by the competent authority who confirmed the penalty imposed on him. The Revisionary Authority who considered the Revision Petition, had clearly remarked that while probing the records and verifying the past service of the charged employee, it was found that the applicant was not at all interested in working in the category for which he had applied and got regularized as seen in Annexure A-20. Hence, the penalty was confirmed. The case of applicant is in relation to a charge of unauthorized absence for 4 years and cannot be taken leniently.
10. Heard the counsel for applicant and respondents and considered the written submissions made. 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. 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.'
11. 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. 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 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 affected 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.'
12. There is a delay of 2216 days in filing this O.A. No acceptable reason is there to condone the delay. Multiple prayers made in this O.A also affects the sustainability of the O.A. The medical certificate is produced not from a Railway Doctor but obtained from a private practitioner. Nothing in the medical certificate substantiates the cause of the 2216 days of delay in filing the case. The inquiry was conducted as stipulated in the rule and the applicant was given full opportunity to defend himself. The Apex Court in Ranjit Thakur vs. Union of India (1987) 4 SCC 611 had held that judicial review is not directed against a decision but against the decision making process. The choice and quantum of punishment is within the administrative jurisdiction of disciplinary authority. A review of the manner in which the decision of punishment was made does not point to any lacunae.
13. In Union of India vs. Parma Nand 1989 SCR (2) 19 it was observed at SCC Page 189, para 27 as follows :
'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.'
14. This inquiry is not vitiated due to non-observance of relevant rules, procedure or denial of reasonable opportunity to the applicant to defend the charges. There is also no arbitrariness, irrationality, unreasonableness, bias or mala fide in the administrative action of inquiry, appeal and revision. There is a plethora of decisions of the Apex Court which suggest non- interference in the above scenario.
15. Accordingly, the O.A is dismissed on the ground of merit and limitation as well. No costs.
(Dated this the 12th day of July 2016)
(P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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