Central Administrative Tribunal - Allahabad
Awadhesh Bahadur Singh vs General Manager N C Rly on 31 May, 2024
OA No. 330/1424 of 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Allahabad this, the 31st day of May, 2024
Original Application No. 330/1424 of 2012
Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial)
Hon'ble Mr. Mohan Pyare, Member (Administrative)
Awadhesh Bahadur Singh, aged about 47 years, S/o Sri Shiv Bahadur
Singh, R/o 479, EF GRP Colony, Leader Road, Allahabad, presently
posted as Electric Loco Pilot (Passenger) North Central Railway,
Allahabad
....Applicant
By Advocate: Shri Shyamal Narain
VERSUS
1. Union of India, through the General Manager, North Central
Railway, Allahabad
2. The Divisional Railway Manager, North Central Railway,
Allahabad
3. The Additional Divisional Railway Manager, North Central
Railway, Allahabad (Revisional Authority)
4. The Chief Electrical Engineer, North Central Railway, Allahabad
5. The Senior Divisional Electrical Engineer, (Operations)/(C),
North Central Railway, Allahabad/Appellate Authority
6. The Divisional Electrical Engineer, (Operations)/North Central
Railway, Allahabad/Disciplinary Authority
......Respondents
By Advocate: Shri Vidya Pati Tripathi
Page 1 of 16
OA No. 330/1424 of 2012
ORDER
By Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial):
1. The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed for the following reliefs:-
I. "that this Hon'ble Tribunal be pleased to quash and set aside the impugned punishment order dated 11.09.2009 passed by the Disciplinary Authority (Annexure No.A-5 to Compilation No.I), the order dated 20.04.2010 passed by the Appellate Authority (Annexure No.A-4 to Compilation No.), the order dated 10.02.2011 passed by the Revisional Authority (Annexure No.A-3 to Compilation No.I), and the others order dated 07.10.2011 and 19.04.2012 passed upon the Review Appeal preferred by the applicant (Annexure Nos.A-2 and A-1 to Compilation No.I, repectively) .
II. That this Hon'ble Tribunal be pleased to direct the respondents to fix and restore the applicant's pay and other emoluments, ignoring the punishment imposed upon him vide the order dated 11.09.2009, and pay him the entire arrears on that account, along with interest, at such rates as might be found appropriate in the facts and circumstances of the case.
III. That this Hon'ble Tribunal be pleased to grant such other relief, as the applicant might be found entitled to in the facts and circumstances of the case.
IV. That this Hon'ble Tribunal be pleased to award the costs of this Original Application in favour of the applicant, throughout."
2. The brief facts as narrated in the instant Original Application is that the applicant while working to the post of Electric Loco Pilot/Crew Controller at the North Central Railway, Allahabad, served with a major Penalty Charge Memorandum dated 11.11.2007 in Standard Form-5, containing a single charge that 'he had prepared First Class Special Duty Pass No. G647681 fraudulently, he had filled up the class of journey different in employee folio than the office folio of Page 2 of 16 OA No. 330/1424 of 2012 the same with malafide intention. The office folio had been shown issued for 1st +2nd Class journey in favour of Shri U.S. Singh, Electric Loco Pilot with Assistant Loco Pilot, whereas, employee folio of the same had been issued deliberately only for 1st class journey for both the employees. Since Assistant Loco Pilot was not entitled for 1st class passes'.
3. Based upon the aforesaid allegation, it was stated in the Article of Charge that 'by his above act of omission & commission Shri A.B. Singh, Electric Loco Pilot (Applicant) has shown lack of integrity, displayed lack of devotion to duty and has acted in a manner unbecoming of a Railway Servant, contravening provision to Rule-3 (1)
(i), (ii) and (iii) of Railway Services (Conduct) Rules, 1966.'
4. In response to the above charge Memo, the applicant submitted his written reply of defence dated 10.12.2007, denying the charge levelled against him. It has been stated in the defence statement by the applicant that neither there is any act of malafide intention nor the ORS pass was prepared deliberately for misusing and as such, solitary charge framed against the applicant, was totally unjustified. The applicant was acting as a crew controller on 19.10.2006 and prepared first class ORS pass No.G647681 in favour of Shri U.S. Singh, Electric Loco Pilot with Assistant Loco Pilot valid from 19.10.2006 to 21.10.2006 as per system in vogue.
5. It is further stated in defence statement that there was no any movement register available in the office of maintaining the entire movement and system of the working. It was in practice that the ORS passes have been issued in favour of Loco Pilot along with Assistant Loco Pilot and as per prescribed entitlement, the staff have been Page 3 of 16 OA No. 330/1424 of 2012 travelling. As per such system in vogue, no one had ever fingered out and so the applicant had also been prepared the combined ORS passes to the Electric Loco Pilot and Assistant Electric Loco Pilot. respectively.
6. It is further stated in his defence statement that the pass holder was also responsible for utilizing the passes as per entitlement and under these circumstances, inquiry initiated against the applicant is liable to be dropped in favour of the applicant by disbelieving the charges and the proceeding initiated against the applicant is also liable to be dropped.
7. Thereafter; an Inquiry under Rule-9 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred as 'Rules of 1968') was ordered to be instituted and an Inquiry officer was appointed vide order dated 19.12.2007. During the inquiry proceeding, the applicant had given his defence statement on 03.12.2008 and denied the allegation of any mala fide or fraudulent motive on his part. Ultimately, the inquiry proceeding has been concluded and the Inquiry Officer submitted his inquiry report dated Nil to the Disciplinary Authority, who in turn, provided a copy of said Inquiry Report to the application vide letter dated 21.05.2009, calling upon him to submit his representation in response thereto, within a period of fifteen days. Thereafter, in response thereto, the applicant submitted a representation on 02.06.2009 against the said Inquiry Report.
8. Subsequently, the Disciplinary Authority passed the punishment order against the applicant vide order dated 11.09.2009, whereby, the applicant was awarded major penalty of reduction in the Page 4 of 16 OA No. 330/1424 of 2012 same time scale of pay by one stage for a period of one year with cumulative effect.
9. Aggrieved by the impugned punishment order dated 11.09.2009, the applicant preferred a statutory departmental appeal dated 23.10.2009 before the Senior Divisional Electrical Engineer (Operations/NCR/Allahabad) and the same was rejected vide order dated 20.04.2010.
10. Against the Appellate order dated 20.04.2010, the applicant preferred a Revision on 14.06.2010 before the Additional Divisional Railway Manager, North Central Railway, Allahabad, which too was dismissed by the Revisional Authority vide order dated 10.02.2011.
11. Subsequently, the applicant preferred a Review Appeal on 02.06.2011 before the Chief Electrical Engineer (Operations) / NCR/ Allahabad, which was also dismissed vide order dated 07.10.2011 on the ground that the applicant exhausted all his departmental remedies of appeal and revision. However, he preferred another Review Appeal on 16.02.2012 before the Chief Electrical Engineer (Main)/NCR/Allahabad, which was not maintainable and dismissed vide order dated 19.04.2012.
12. All the orders passed by the Disciplinary, Appellate and Revisional Authorities are impugned in the present Original Application.
13. The counter-affidavit has been filed from the side of the respondents on 12.08.2013, wherein it has been stated that the charges against the applicant are clearly in two parts viz. he prepared special duty pass fraudulently and he did it with malafide intention. Obviously malafide intention was not proved during the enquiry Page 5 of 16 OA No. 330/1424 of 2012 proceeding, but the applicant prepared special duty pass contrary to the rules, was proved and accepted by the applicant also. Hence, it is incorrect to interpret that charges on the applicant was solitary in nature and were not proved during the course of enquiry.
14. In fact the applicant was held responsible for preparation of special duty pass fraudulently, thus, he acted in a manner unbecoming a Railway servant. It is further stated that issuance of special duty pass contrary to the Rules is sufficient for imposition of punishment. The applicant are trying to mislead this Tribunal with hypothetical prepositions contrary to the fact of the case.
15. In reply thereto, rejoinder has not been filed by the applicant to the counter-affidavit in spite of last opportunity was granted by this Tribunal for filing the same vide order dated 25.02.2014.
16. We have heard Shri Shyamal Narain, learned counsel for the applicant and Shri Vidyapati Tripathi, learned counsel for the respondents at length.
17. Mr. Shyamal Narain, learned counsel for the applicant would submit as under:-
I. The charge against the applicant has not been fully proved with the categorical findings to the effect that it is established that the applicant filled the class of journey different in employee folio than the office folio of the same, but the malafide intention is not proved as it might be occurred due to human error.
II. Further, it has been substantiated that from amongst the Electric Loco Pilot and Assistant Loco Pilot whoever reached first, used to receive the ORS Pass in the lobby. Page 6 of 16
OA No. 330/1424 of 2012 The pass was being issued as per entitlement of the driver i.e., electric Loco Pilot and the assistant driver i.e., Assistant Loco PIlot enjoined in it. Therefore, there was no mala fide role of the Charged officer in handling over the said ORS pass deliberately to Shri Sailesh Kumar, Assistant Driver. Thus, the reasons for receiving the 1st class pass by Shri Sailesh Kumar Assistant Driver was justified being in the practice.
III. The findings recorded by the Inquiry Officer in favour of the applicant and in the absence of any dissent of the Disciplinary Authority from those findings, the solitary charge levelled against the applicant, namely he had prepared the pass fraudulently, deliberately and with malafide intetntion , falls to the ground and, therefore, there could be no question of the applicant being visited with any punishment once that charge stood falsified. IV. Despite the applicant having been given a completely clean chit by the Inquiry Officer in reference to the solitary charge mentioned in the Article of Charge framed against him, the Inquiry Officer, wholly inexplicably, has proceeded to observed in the concluding lines of his report that 'although no malafide intention of charged officer has been established neither orally nor documentary in issuing the said ORS pass even though charge is proved on the basis of above point.' V. This observation of the Inquiry officer is totally perverse and without any evidence when seen in the contest of his Page 7 of 16 OA No. 330/1424 of 2012 categorical and unambiguous findings that the applicant had not acted fraudulently, or with malafide intention or deliberately and that the error in question was only a human error and justified by the prevailing practice. VI. The allegation of violation of guidelines issued by Sr. DEE (OP), Ald to Sr. CCX/ALD vide letter dated 06.07.2005 by the applicant on the subject of avoidance in the matter of issuance of irregular passes is concerned, this allegation is not a part of the Article of Charge levelled against the applicant, but finds place only in the statement of imputation of misconduct in support of the solitary Article of charge which, essentially was to the effect that the applicant had issued the pass fraudulently, deliberately and with malafide intention. Thus, the allegation of violation by the applicant of any guidelines on the issue of passes cannot be read separately or independently as a different charge, but only in conjunction with, and in the contest of the article of charge as framed in the charge memo.
VII. Thus, only charge against the applicant was that he had issued the pass in question in violation of the guidelines, fraudulently, deliberately and with malafide intention and once, the inquiry officer had recorded his clear cut findings that malafide intention had not been proved and the error in question was only a human error justified by prevailing practices, it was wholly wrong on the part of the Inquiry Officer to observe in the last line of his report that 'the charge is proved on the basis of above point.' In other Page 8 of 16 OA No. 330/1424 of 2012 words, the observation made by the Inquiry Officer in the list line of his report is totally perverse and a clear case of his having travelled beyond the charge memo, which is wholly impermissible in law.
VIII. The Disciplinary, Appellate and even, the Revisional Authorities have all seriously erred in overlooking and glossing over the undisputed fact that the single Article of Charge levelled against the applicant, as framed in the Article of Charge and mentioned in the Charge Memo, namely, that he had fraudulently, deliberately and with malafide intention issued a wrong pass, had been found not proved. Instead the Disciplinary, the Appellate and Revisional Authorities have all proceeded to punish the applicant on an altogether different and distinguishable charge, namely, issuing a wrong pass in violation of guidelines, which charge, by itself, was neither the subject matter of the charge memo issued to the applicant nor the subject matter of the inquiry.
18. On the other hand, Shri Vidya Pati Tripathi, learned counsel for the respondents opposed the contention of the learned counsel for the applicant and submitted as under:-
I. The applicant prepared special duty pass contrary to the Rules, which was proved in the inquiry proceedings and accepted by the applicant also and as such, it is incorrect to say that charges on the applicant was solitary in nature and were not proved during the course of inquiry. Page 9 of 16
OA No. 330/1424 of 2012 II. The applicant was held responsible for preparation of special duty pass fraudulently as he acted in a manner becoming of a Railway servant.
III. The whole submission of the applicant is based on his hypothetical presumption that he was charged only for his mala fide intention, is not tenable as issuance of special duty pass contrary to the Rules, is sufficient ground for imposition of punishment.
IV. The Appellate as well as Revisional Authorities went deeply into the facts and circumstances of the case and upheld the order of Disciplinary Authority and there is no illegality or infirmity in the impugned orders. V. The applicant has himself accepted the charges levelled against him, therefore, there is no question of his innocence. Thereafter, the instant Original Application is liable to be dismissed.
19. We have considered the argument raised by the learned counsel for the parties and perused the records.
20. From perusal of Article of Charge dated 12.11.2007, it is apparent that solitary charge has been levelled against the applicant, which is quoted as under for ready reference:-
Article - I Shri A.B.Singh had prepared a first Class Special Duty Pass No. G 647681 fraudulently, he filled the class of journey different in employee folio than the office folio of the same with malafide intention. The office folio had been shown issued for 1st + 2nd class journey in favour of Shri U.S. Singh, Electric Loco Pilot with Assistant Loco Pilot, whereas, employee folio of the same had been issued deliberately only for 1st class journey for Page 10 of 16 OA No. 330/1424 of 2012 both the employees, since Assistant Loco Pilot was not entitled for 1st Class Passes.
21. Apart from the solitary charge, no other charge has been levelled against the applicant and for the aforesaid solitary charge, the Enquiry Officer has recorded the finding that there was no mala fide role of the applicant in handing over the said ORS pass deliberately to Shri Shailesh Kumar, Assistant Driver. Thus, the reasons for receiving the 1st class pass by Sailesh Kumar, Assistant Driver was justified being in the practice. It is further observed by the Enquiry Officer that though no malafide intention of Charged Officer has been established neither orally nor documentary in issuing the said ORS even though charge is proved on the basis of above point. The Enquiry officer also recorded in his Inquiry Report that charges regarding violation of guidelines dated 06.07.2005 have been proved against the applicant. Further, the charges regarding the violation of Guidelines dated 06.07.2005 is not a part of Article of Charge and finds place in the Statement of Imputation of Misconduct, for which, no opportunity of hearing or reply has been afforded to the applicant. The applicant was called for to submit his explanation with regard to solitary charge as mentioned in the Article of Charge and the Charge of misconduct for non-compliance of the violation of Guidelines dated 06.07.2005 has been mentioned in the imputation of misconduct, the relevant portion in this regard mentioned in the imputation of misconduct is quoted as under:-
It is also noted in this SDP that Shri A.B. Singh had issued it without mentioning the name of Assistant Loco Pilot in whose favour it was being issued and who was supposed to be deployed on duty to Kanpur with Shri U.S. Singh, Electric Loco Pilot. Shri A.B. Singh, also clubbed the two employees in one SDP, who were entitled for different class of journey. As a result, Shri Page 11 of 16 OA No. 330/1424 of 2012 Sailesh Kumar, Assistant Loco Pilot, had been able to misuse this SDP by making journey in AC-II Tier with impersonating himself as Shri U.S. Singh, Electric Loco Pilot. This has caused a direct pecuniary loss to Railway. By issuing such irregular SDP Shri Singh is also found responsible for violation of the guidelines issued by Sr. DEE (OP), Ald to Sr. CC/Ald vide letter No.230-Elect/RSO/Conf./Vig. Dated 06.07.2005 for avoiding the issuance of such irregular passes.
22. In view of article of Charge, it is apparent that allegation regarding violation of Guidelines dated 06.07.2005, is missing in the Article of Charge as the alleged violation of guidelines is not a part of Article of Charge, for which no explanation was called for from the applicant.
23. Further, the findings of the Enquiry Officer that the charge is proved without any basis and proof. The order of Disciplinary Authority imposing penalty against the applicant that 'Reduction in the same time scale of pay by one stage for a period of one year with cumulative effect', accepting the inquiry report, whereby the solitary charge against the applicant as per the Article of Charge has not been fully proved. The Disciplinary Authority had lost his sight that the violation of Guidelines dated 06.07.2005 is not a part of Article of Charge for which, no explanation has been called for from the applicant.
24. The order of Disciplinary Authority has been affirmed by the Appellate as well as Revisional Authorities are totally illegal and cannot be sustained in the eyes of law. The Appellate as well as Revisional Authorities had not considered the explanation dated 10.12.2007 to the charge appended at Annexure -7 (Page 62-64) to O.A. as well as reply dated 02.06.2009 to the show cause notice Page 12 of 16 OA No. 330/1424 of 2012 along with inquiry report, and as such, the said Authorities have not at all applied their mind while passing the impugned orders.
25. The Apex Court in the case of M. V. Bijlani vs. Union of India and in Appeal (Civil) 8267 of 2004 judgment dated 05.04.2016 held as under:-
"It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi- judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charge with".
26. A similar view taken by the Division Bench of the High Court of Judicature of Allahabad in the case of State of U.P. vs. Gopal Singh 2017 (35) LCD 2746.
27. The Apex Court in the case of Narinder Mohan Arya vs. United India Insurance Co, Ltd & ors., held as under:
"26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following : (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. (See State of Assam and Anr. v. Mahendra Kumar Das and Ors. [(1970) 1 SCC 709] (2) in a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Page 13 of 16 OA No. 330/1424 of 2012 Khem Chand v. Union of India and Ors. (1958 SCR 1080) and State of Uttar Pradesh v. Om Prakash Gupta (1969) 3 SCC 775]. (3) Exercise of discretionary power involve two elements (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. (See K.L.Tripathi v. State of Bank of India and Ors. (1984) 1 SCC 43] (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh v. State of Rajasthan (1986) 3 SCC 454] (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. [See Director (Inspection & quality Control) Export Inspection & Quality Control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Ors. 1987 (2) Cal.
LJ 344. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. (See Central Bank of India Ltd. v.s Prakash Chand Jain (1969) 1 SCR 735, Kuldeep Singh v. Commissioner of Police and Ors. (1999) 2 SCC 10]
28. The Apex Court in the case of J. Ashoka Vs. University of Agricultural Sciences (2017) 1 SCC (L&S) 517, its paragraph 24 is relevant which is reproduced as under :-
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject- matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We, therefore, are of the considered opinion that the relevant provisions of the Statute were fully complied with."
29. In case of G. Valli Kumar Vs. Andhra Education Society 210 (2) SCC 497, is has been duly held by the Hon'ble Apex Court as under:
"That the requirement of recording reasons by every quasi- judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of Page 14 of 16 OA No. 330/1424 of 2012 natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned."
30. The Inquiry Officer with regard to single charge mentioned in the Article of Charges, has not proved and the charge, which was not mentioned in the Article of Charge regarding the violation of Guidelines dated 06.07.2005 has been proved and considering the aforesaid charge, major punishment has been awarded to the applicant. The findings recorded by the Inquiry Officer with regard to solitary charge as mentioned in Article of charges is quoted as under:-
Therefore it is established that he filled the class of journey different in employee folio than the office folio of the same, but malafide intention is not proved as it might be occurred due to human error. The office folio had been shown issued for 1st + 2nd class journey in favour of Shri U.S. Singh, Electric Loco pilot with Assistant Loco Pilot, where as employee folio of the same had been issued only for 1st class journey for both the employees. Since Asistant Loco Pilot was not entitled for first class pass even than on the basis of Exhibit P/3 it is well established that Shri Shailesh Kumar had traveled in 1st /AC Coach.
This has caused a direct pecuniary loss to Railway. By issuing such irregular SDP Shri Singh is found responsible for violation of the guidelines issued by Sr. DEE (OP), ALD to Sr. CC/ALD vide letter No.230/Elect/RSO/Conf/Vig dated 06.07.2005 for avoiding the issuance of such irregular passes.
Further it has been substaintiated that from amongst the driver & asst. Driver whoever reached first, used to received the ORS pass in the lobby. The ass was being issued as per entitlement of the driver i.e., ELP and the Assistant Driver, ALP enjoined in it.
Therefore, there was no malafide role of the CO in handing over the said ORS pass deliberately to Shri Shailesh Kumar, Assistant Driver. Thus, the reasons for receiving the 1st class pass by Shri Sailesh Kumar, Assistant Driver was justified being in the practice.
Though no malfide intention of CO has been established neither orally nor documentary in issuing the said ORS pass even though charge is proved on the basis of above point.
31. The penalty imposed to the applicant i.e., reduction in same time scale of pay by one stage for a period of one year with Page 15 of 16 OA No. 330/1424 of 2012 cumulative effect falls under Part III of Rule 6 of Railway Servants (Discipline & Appeal) Rules, 1968, which is major penalty under the relevant Rules and as such, punishment awarded to the applicant does not commensurate with regard to the charges mentioned in the Article of Charge and the solitary charge has also not been proved by the Inquiry Officer.
32. In view of the above discussion, the impugned orders dated 11.09.2009 passed by the Disciplinary Authority, order dated 20.04.2010 passed by the Appellate Authority and order dated 10.02.2011 passed by the Revisional Authority and others order dated 07.10.2011 and 19.04.2012 passed in the Review Appeal are liable to be quashed and set aside and as such, same are hereby quashed and set aside.
33. In view of the quashment of the impugned orders, the applicant is entitled for all the consequential benefits and as such, the respondents are directed to release the same in favour of the applicant, within a period of three months from the date of receipt of certified copy of this order.
34. Resultantly, instant Original Application stands allowed.
35. Pending M.A., if any, also stands disposed of.
36. No order as to costs.
(Mohan Pyare) (Justice Rajiv Joshi)
Member(Administrative) Member (Judicial)
PM/
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