Central Administrative Tribunal - Hyderabad
G Dali Dora vs M/O Railways on 13 July, 2023
OA.No.020/1510/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
O.A No.020/1510/2015
ORDER RESERVED ON 14.06.2023
ORDER PRONOUNCED ON : 13.07.2023
CORAM:
HON'BLE MR. SUDHI RANJAN MISHRA, JUDICIAL MEMBER
HON'BLE MR. B.ANAND, ADMINISTRATIVE MEMBER
G.Dali Dora, s/o Demudu,
TPM "B"/SCMN, Sr.DOM,
Waltair, Visakhapatnam,
R/o Rly Quarter No.II, 56/A,
North Rly Quarters, Gopalapatnam,
Visakhapatnam. ...Applicant
(By Mr.M.R.Tagore, Advocate)
Vs.
1. The Divisional Operations Manager (G),
East Coast Railway, Waltair, Visakhapatnam.
2. The Senior Divisional Operations Manager (G),
East Coast Railway, Waltair, Visakhapatnam.
3. The Additional Divisional Railway Manager,
East Coast Railway, Waltair, Visakhapatnam.
4. Union of India, rep., by the Ministry of Railways,
New Delhi. ....Respondents
(By Advocate Mr.T.Hanumantha Reddy, Sr.PC for CG )
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OA.No.020/1510/2015
ORDER
PER HON'BLE MR. B.ANAND, ADMINISTRATIVE MEMBER This OA.No.1510/2015 has been filed under Section 19 of the Administrative Tribunals Act 1985, seeking the following main relief:
"To declare the action of the respondents herein in imposing major punishment of removal from service vide impugned proceedings No.WTI/2/UA/M/41/2014, dated 20.04.2015, and consequentially confirmed in appeal vide proceedings No.WTI/2/UA/M/41/2014, dated 10.06.2015 as highly illegal, arbitrary and violative of principles of natural justice and also disproportionate to the charges levelled against the applicant and consequentially to set aside both impugned orders with a direction to reinstate the applicant into service with all consequential benefits and to pass such order in the interest of justice.."
2. The brief facts of the case are that the applicant was appointed on 05.05.1999 as Token Porter and has been working in that capacity since then. While working as Track Point Man(TPM) -B at Simhachalam (SCMN), the applicant had applied for leave from 11-10-2014 to 13.10.2014, and the same was sanctioned by the Station Manager, SCMN, and after sanction of leave, he went to his native village. The applicant has also stated that due to certain domestic problems such as his parents being critically ill at his native place when he entered on leave, and thereafter his mother had also expired and his father was bedridden, and his wife had also filed a case against him for domestic violence, and due to all these disturb state of mind, there was a delay of 51 days in reporting to duty, which is neither wilful nor wanton. The applicant also stated that the respondents have treated the period from 14.10.2014 to 05.12.2014 as unauthorized absent. Later, when he reported to P a g e | 2 of 14 OA.No.020/1510/2015 duty by producing fitness certificate dated 20.01.2015, issued by the competent Civil Surgeon, the office of the 2nd respondent issued a letter dated 21.01.2015 addressed to SMR/SCMN, redirecting the applicant to SCMN Station, and directing the applicant for special medical to CMS/WAT along with Form-5, immediately on reporting, and after getting fitness certification from CMS/WAT, he may be allowed to resume his normal duties. In the said letter, the SMR/SCMN was directed to advise the applicant to submit his explanation for major penalty charge sheet after resuming his regular duties for further process of D&A proceedings. A major penalty charge sheet (SF-5) was served on the applicant vide memorandum No.WTI/2/UA/M/41/2014, dated 15.12.2014 framing two Articles of charge viz., -
(I) That the applicant while working under SMR/SCMN has subletted the Railway quarter No.56/A, which was allotted to him in June 2012 to the outsider by taking advance amount from him; and (II) That the applicant while working under SMR/SCMN was remained unauthorized absent from duty from 14.10.2014 to 19.12.2014. He did not submit any medical certificate from the competent authority, if he is sick as per extent rules. He is a regular habit of absenting without any intimation and submitting sick and fit certificates (PMC) at the time of joining. Vide letter dated 17.02.2015, addressed to the applicant, the Ch.DTI/MOV, Waltair, has informed that he has been appointed as an Inquiry Officer and the enquiry would be held on 20.02.2015 in the office of SMR/SCMN and instructed the applicant to attend the enquiry along with his defence counsel. Later, the applicant submitted his explanation dated 05.03.2015 denying the P a g e | 3 of 14 OA.No.020/1510/2015 charges. The inquiry officer conducted the inquiry and submitted his report holding both the charges as proved. The disciplinary authority after considering the explanation submitted by the applicant and the inquiry officer's report, passed the impugned order dated 20.04.2015 imposing the penalty of removal from service on the applicant. Against the orders of the disciplinary authority dated 20.04.2015, the applicant submitted an appeal to the 2nd respondent (Appellate Authority) on 18.05.2015, which was rejected vide proceedings dated 10.06.2015. Against the orders of the Appellate Authority, the applicant submitted mercy appeal to the 3rd respondent (Revisionary Authority) on 24.07.2015, requesting to modify the punishment orders passed by the Disciplinary and Appellate Authorities. The 3rd respondent, vide notice no.WTI/2/UA/M/41/2014, dated 14.12.2015, upheld the punishment imposed by the Disciplinary and Appellate Authorities.
3. The applicant has submitted that even without calling for an explanation from him for his alleged authorised absence, the respondents have straightaway appointed an Inquiry Officer, vide their proceedings dated 15.12.2014, and straightaway called the applicant for inquiry on 22.02.2015 and without even considering the explanation submitted by the applicant on 05.03.2015, when he had not even received the charge memorandum dated 15.12.2014, the respondents have straightaway imposed the major penalty of removal from service on 20.04.2015. As advised by the respondents in their order dated 20.04.2015, the applicant had appealed against the penalty to Respondent No.2, as per the provisions of Rule 17 to 20 of the Railway Servants (Discipline & Appeal) Rules, 1968 within a period of 45 days. However, without issuing a P a g e | 4 of 14 OA.No.020/1510/2015 well reasoned speaking order, the Appellate Authority had only dismissed the applicant's prayers and confirmed the order of removal from service imposed by the Disciplinary Authority.
4. The applicant has contended that these actions are illegal and contrary to the Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968. He has further contended that the relevant procedures have not been followed as contemplated in these Rules, and the first respondent had issued speaking orders without even supplying a copy of the inquiry report to the applicant and calling for an explanation/defense statement and mainly verification of records while imposing the major penalty.
5. The applicant has also defended the Charge No.2 about subletting his residential quarter allotted to him stating that he has taken a loan from a friend for his parents treatment but enable to clear the loan as he had absented from duty and not getting salary, he was not able to repay the loan and therefore the person who had lent the money to him occupied the Railway quarter till the applicant paid the debt taken from him. Later, when the applicant had cleared the loan, the unauthorized private person had vacated the quarter. Currently, it is only the applicant and his family members, who are staying in the quarters.
6. In support of the contentions of the applicant, the learned counsel for the Applicant has relied upon the judgment of the Hon'ble Supreme Court in State of Tripura & Others v Naresh Chandra Das (2007 (15) SCC 759), wherein it is seen that it was a case where disciplinary proceedings were initiated against P a g e | 5 of 14 OA.No.020/1510/2015 the employee for his unauthorized absence for which a major penalty of removal from service was imposed on him.
7. The respondents contested the OA by filing a reply statement. They have stated that the initial appointment of the applicant was on 05.05.1999. After completion of initial training at Safety Training School, Vizianagaram, he was posted at Jarthi Station as Token Porter vide office order dated 09.06.1999, and subsequently he was transferred to various stations viz., Visakhapatnam Steel Plant Siding, Rouli, again Visakhapatnam Steel Plant Siding and Simhachalam North.
8. The respondent have further stated that the working of the applicant from the date of joining as Token Porter was not satisfactory wherever he worked. He was very irregular and several punishments were imposed on him due to his frequent unauthorized absenteeism. While he was working at Simhachalam North, he was allotted a Railway quarter No.56/A, Type-II at Simhachalam North. As per the Railway Conduct Rules, when a Railway employee has been allotted with Railway quarter and residing in the said accommodation, the employee has to submit unfit certificate from the Railway Hospital. But, in the case of the applicant, he had a habit of frequently absenting himself from duty without any intimation to his Supervisors and only at the time of joining to duty, he submits both unfit and fit certificates issued by Private Medical Doctor.
9. The respondents have further stated that on the request of the applicant, leave had been granted by the Station Manager for two days and one day rest P a g e | 6 of 14 OA.No.020/1510/2015 availed from 11.10.2014 to 13.10.2014. Subsequently, he remained absent from duty without any intimation to SMR/SCMN from 14.10.2014 to 05.12.2014, and thereafter he reported to duty along with sick and fit certificates, for which a major penalty charge sheet (SF-5) was served on him vide memorandum dated 15.12.2014. The D&A proceedings have been conducted as per the procedure in vogue and as the charges were proved, the Disciplinary Authority imposed the penalty of removal from service with immediate effect on the applicant, vide Punishment Notice No.WTI/2/UA/M/41/2014, dated 20.04.2015.
10. The respondents have further stated that the applicant on an earlier occasion was absent from duty for about 214 days in different spells i.e., from 24.04.2012 to 23.04.2014, for which a major penalty charge sheet (SF-5) was issued, vide memorandum dated 22.05.2014. Thereafter, punishment of reduction to the lower pay for a period of 2 years with non-cumulative effect was imposed, vide Punishment Note dated 03.09.2014. Inspite of that the applicant did not change his attitude and continued to remain absent.
11. The respondents have denied the contention of the applicant that without calling any explanation from the applicant, straight away an inquiry officer was appointed and called the applicant for inquiry. The charge sheet was served on him and the same was acknowledged by the applicant on 12.01.2015. After the issuance of the charge sheet, the applicant reported to Station Manager, Simhachalam North on 19.01.2015 along with unfit and fit certificates issued by P a g e | 7 of 14 OA.No.020/1510/2015 the Private Medical Doctor. He was taken on duty after certification from the Chief Medical Superintendent, Waltair.
12. The respondents have further stated that on inspection of Railway Quarter No.56/A, Type-II, by the SMR, Simhachalam North on 06.12.2014, it was noticed that some non-railway employees were staying in the quarter, which was allotted to the applicant and accordingly a report was given by the SMR/SCMN. Therefore, on the charges of unauthorized absenteeism and subletting of the Railway accommodation to outsiders, the above said major penalty i.e, SF-5 was issued to the applicant. Since during his absence, he was not available at the Railway quarter allotted to him, an inquiry was ordered. The applicant attended the D&A inquiry held on 27.02.2015 and 09.03.2015 conducted by CDTI (Mov.)/VSKP. During the inquiry, the applicant had accepted the charges framed against him i.e., unauthorized absence from duty and subletting of the Railway Quarter allotted to him.
13. The respondents have further stated that all reasonable opportunities were given to the applicant during the course of D&A proceedings to prove his innocence. The D&A inquiry report was served on him on 26.03.2015 to enable him to submit his final defence statement. After verifying the documents and his final defence statement, the Disciplinary authority imposed the penalty of removal from service with immediate effect duly granting 2/3rd pension and without gratuity as compassionate allowance, if admissible to him, to meet the ends of justice, vide Punishment Notice No.WTI/2/UA/M/41/2014, dated 20.04.2015. Against the penalty order imposed by the Disciplinary Authority, P a g e | 8 of 14 OA.No.020/1510/2015 the applicant submitted an appeal to the Appellate Authority & Sr.DOM, and the Appellate Authority opined that the applicant does not have any genuine ground on any of the charges against him and upheld the punishment imposed by the Disciplinary authority, vide Punishment Notice No.WTI/2/UA/M/41/2014, dated 10.06.2015. Further, on the mercy appeal submitted by the Applicant, the Revisionary Authority and ADRM/WAT, also upheld the punishment imposed by the Disciplinary and Appellate Authorities, vide Notice No.WTI/2/UA/M/41/2014, dated 14.12.2015.
14. The respondents have further stated that when the employee retired/dismissed/removed from service, the quarter, which is under his occupation, has to be vacated and handed over to the department. However, in this particular case, the said quarter is still under the unauthorised occupation of the applicant. Since the applicant has given the Railway quarter for subletting to the outsider and on the same cause, he was removed from service, the Railway authorities advised him to vacate the quarter. As per the reports of the SMR/SCMN dated 12.08.2015 and 27.11.2015, the quarter is still under the occupation of the applicant.
15. The respondents have, therefore, contended that the OA itself, prima facie, is not maintainable as the applicant has been questioning the veracity of the proceedings of the inquiry as well as the punishment imposed on him by the Disciplinary Authority on the grounds of unauthorized absence and subletting of the Railway Quarter. Hence, prayed this Tribunal to dismiss the OA.
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16. Heard Mr.M.R.Tagore, the learned counsel for the Applicant and Mr.T.Hanumantha Reddy, the learned Senior Panel Counsel appearing for the Respondents, and perused the records.
17. It is seen from the records that the respondents have imposed eight punishments on the applicant for unauthorized absence as follows:-
(i) Stoppage of annual increment for a period of three months with Non-
Cumulative Effect (NCE) imposed on the applicant for unauthorised absence for the period from 01.11.1999 to 15.11.1999 at JRT (Jarthi) Station;
(ii) Stoppage of annual increment for a period of three months with NCE imposed on the applicant for unauthorised absence for the period from 04.04.2000 to 23.04.2000 at JRT (Jarthi) Station;
(iii) Stoppage of annual increment for a period of three months with NCE imposed on the applicant for unauthorised absence for the period from 20.02.2001 to 26.02.2001 at JRT (Jarthi) Station;
(iv) Stoppage of annual increment for a period of three months with NCE imposed on the applicant for unauthorised absence for the period from 11.01.2002 to 25.01.2002 at JRT (Jarthi) Station;
(v) Stoppage of annual increment for a period of one year with NCE imposed on the applicant for unauthorised absence for the period from 06.08.2002 to 16.08.2002 at JRT (Jarthi) Station;
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(vi) Stoppage of annual increment for a period of six months with NCE imposed on the applicant for unauthorised absence for the period from 22.10.2004 to 31.10.2004 at JRT (Jarthi) Station;
(vii) Stoppage of annual increment for a period of one year with NCE imposed on the applicant for unauthorised absence for the period from 14.04.2005 to 26.12.2005 in different spells at Visakhapatnam Steel Plant Siding;
(viii) Punishment of reduction to lower pay for a period of 2 years with NCE imposed on the applicant for unauthorised absence for the period from 24.04.2012 to 23.04.2014 in different spells at Simhachalam North;
18. The main thrust of the applicant is not to defend his past behaviour of unauthorisedly absent from duty, but only to contend that the punishment imposed on him by the impugned order by the respondents is grossly disproportionate to the misconduct of unauthorized absence from duty.
19. The applicant's counsel has relied on the Hon'ble Apex Court judgment in State of Tripura vs. N.C.Das in Civil Appeal No.653 of 2003 dated 24.01.2003 wherein the aggrieved employee appealed against the order of major penalty of removal before the Hon'ble High Court of Assam, Agartala Bench. The Hon'ble High Court held that the punishment is excessive and disproportionate and thereafter remanded the matter to the Disciplinary Authority to impose any other punishment other than dismissal or removal from service and/or compulsory retirement. However, the Hon'ble High Court P a g e | 11 of 14 OA.No.020/1510/2015 ordered payment of 25% of the backwages even if the said employee was previously awarded punishment 19 times for various types of dereliction of duties committed by him. The Apex Court rejected the contention of the State that the punishment of dismissal was not an excessive punishment and gave a direction to impose a lesser punishment and ordered for his reinstatement. However, the direction of the Hon'ble High Court to pay 25% of back wages was held to be unsustainable. Thus, the applicant's counsel submits that in case where an employee was earlier awarded punishment for having unauthorisedly absenting himself for 19 times, the Apex Court has taken a lenient view. In contrast, in the present case, the applicant had absented himself only for eight times. So, on that ground, the applicant should be shown some leniency.
20. However, we are not inclined to take that view because the applicant other than having unauthorizedly absenting himself from duty, had also illegally sublet his Railway Quarter to some unauthorized non-Railway persons. We are of the view that such unauthorized non-Railway employees, who could be of dubious character and could pose a security threat to the otherwise peaceful Railway colony, and their occupation of Railway quarters is a serious matter. We tend to agree with the view of the respondents that the applicant seems to have pledged the Railway quarter and taken a private loan and till such time the said loan is cleared by the applicant, the quarter will be used for stay by unauthorized private persons. This is against the Railway Servants (Conduct) Rules, and the applicant has also accepted the charges framed against him, which, in our view, is a very serious charge. Therefore, while we agree with the judgment passed by the Apex Court in State of Tripura & Others v Naresh P a g e | 12 of 14 OA.No.020/1510/2015 Chandra Das (2007 (15) SCC 759) , as relied upon by the learned counsel for the Applicant, we depart from the operative portion of its judgment as, in the instant case, the applicant, in addition to habitual unauthorized absence, has also committed the grave offence of subletting his official Railway quarter for commercial gain.
21. The Hon'ble Supreme Court in its judgment in State of Karnataka & Another v Umesh (2022 (6) SCC 563) in Civil Appeal Nos.1763-1764/2022, dated 22.03.2022, (Para 17) held as follows:
"17. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of misconduct is based on some evidence; (iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and
(iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct.11 However, none of the above tests for attracting the interference of the High Court were attracted in the present case. The Karnataka Administrative Tribunal having exercised the power of judicial review found no reason to interfere with the award of punishment of compulsory retirement. The Division Bench of the High Court exceeded its jurisdiction under Article 226 and trenched upon a domain which falls within the disciplinary jurisdiction of the employer. The enquiry was conducted in accordance with the principles of natural justice. The findings of the inquiry officer and the disciplinary authority are sustainable with reference to the evidence which was adduced during the enquiry. The acquittal of the respondent in the course of the criminal trial did not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding." (State of Karnataka v. N. Gangaraj, (2020) 3 SCC 423; Union of India v. G. Ganayutham (1997) 7 SCC 463; B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749; R.S. Saini P a g e | 13 of 14 OA.No.020/1510/2015 v State of Punjab (1999) 8 SCC 90; and CISF v Abrar Ali (2017) 4 SCC
507).
22. The Hon'ble Supreme Court in B.C.Chaturvedi v Union of India & Others (1995) 6 SCC 749), held as follows:
" ...............The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof."
We have been guided by the above Apex Court judgment and conclude that any leniency shown to the applicant will have a deleterious effect on other Railway employees, who may also be encouraged to unauthorizedly let out their official quarters for commercial gain. Any sympathy for the applicant is misplaced as he was not only habitually absenting himself in an unauthorized manner, but also financially gaining by subletting the Railway quarters for unauthorized private people thereby violating all the Conduct Rules of the Railways.
23. For all these grounds, this OA is dismissed, being devoid of merits. The Miscellaneous Applications, pending if any, also stand dismissed. There shall be no order as to costs.
( B.ANAND ) (SUDHI RANJAN MISHRA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
Dsn
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