Central Administrative Tribunal - Delhi
Shri Om Prakash Yadav vs Union Of India : Through on 29 June, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.4399/2012 Reserved On:07.05.2015 Pronounced On:29.06.2015 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Shri Om Prakash Yadav Ex.Bungalow Khalasi Under Dy.CPM/ICMS Chanakya Puri, New Delhi R/o 1268, Bageechi Ram Chander Sant Wasan Paharganj, New Delhi-110055. Applicant By Advocate: Shri Rambhushan Pandey. Versus Union of India : through 1. The General Manager, Northern Railway, Headquarters Office, Baroda House, New Delhi-110001. 2. Chief Project Manager (FOIS) Northern Railway, CRIS Complex, Chanakya Puri, New Delhi-110021. 3. Deputy Chief Project Manager FOIs Northern Railway, CRIS Complex, Chanakya Puri, New Delhi-110021. 4. Smt. Seema Dheer Chief Operating Manager General, Northern Railway, Head Office, Baroda House, New Delhi. Respondents By Advocate: Shri R.N. Singh. ORDER
G. George Paracken, Member(J) The Applicants grievance in this Original Application is against the disciplinary proceedings initiated against him under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 which culminated in the order of the Disciplinary Authority imposing upon him the penalty of removal from service and the order of the Appellate Authority upholding the same.
2. The brief facts of the case: Vide Respondents order dated 26.10.2001, the Applicant was appointed as a Bungalow Khalasi/Telephone Attendant-cum-Dak Khalasi (TADK for short) and was posted at the residence of the Respondent No.4 Smt. Seema Dheer, Chief Operating Manager General, Northern Railway, New Delhi. As his service was found to be satisfactory, they first gave him temporary status, vide their letter dated 07.08.2002, screened him on 06.01.2005 for the purpose of regularizing him in service and finally, vide their order dated 09.03.2005, regularized him in service.
3. According to the Applicant, during the night of 28.06.2005, the Respondent No.4 got angry with him alleging that he did not cook her dinner properly and thrown him out of the servant quarter given to him. She has also directed him not to come for duty from the next day. However, he reported for duty on the next day also but she marked him absent in the attendance sheet. Later on, the Respondent No.3-Disciplinary Authority (Shri Dharamendra Kumar, Dy.Com. T&C/FOIS), vide Memorandum dated 16.02.2006, disciplinary proceedings were initiated against him under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968. The statement of Article of Charges against him was that he was on unauthorized absence for some days and it is reproduced as under:-
Shri OM Prakash S/o Sh. P.R. Yadav Bungalow Khallasi of Dy. CPM/FOIS committed the following serious misconduct.
Shri OM Prakash has been unauthorizedly absent for the following periods without any intimation or prior permission.
i) 28th June, 2005 to 15th July, 2005.
ii) 15th October, 2005 to 17th October, 2005.
iii) 10th November, 2005 and 28th November, 2005.
iv) 1st December, 2005 and 23rd December, 2005.
v) 1st January 2006 till date.
Thus he failed to maintain devotion to duty and contravened Rule No. 3.1 (ii) & (iii) of Railway Service Conduct Rules, 1966.
The said Charge Memorandum was also accompanied by the statement of imputation of misconduct and misbehaviour on the basis of which action was proposed to be taken against him which is also reproduced as under:-
Shri OM Prakash S/o Shri P.R. Yadav, Bungalow Khallasi of Dy. CPM/FOIS committed the following serious misconduct.
Shri OM Prakash has been unauthorisedly absent for the following periods without any intimation or prior permission.
i) 28th June, 2005 to 15th July, 2005.
(ii) 15th October, 2005 to 17th October, 2005.
(iii) 10th November, 2005 and 28th November, 2005.
(iv) 1 December, 2005 and 23rd December, 2005.
(v) 1st January 2006 till date.
In addition to above, he attended duties late despite warnings and absconded in midst of duty hours without any intimation.
Shri S.M. Srivastava, Sr. TI/COIS was sent to Railway Quarter No. 185 B2 Basat Lane, New Delhi which was the address of Shri Om Prakash to serve the notice on 12.1.2006 but Shri Om Prkash was not available at home. Again Shri Srivastava went on 13.1.2006 at 10.00 hrs on the above mentioned address and served the notice with the instructions to give reply within two days which he had not taken seriously.
He appeared in this office on 17.1.2006 and met Dy. CPM/COIS. He was asked to meet OS/FOIS for resuming duty and to give his written explanation. Neither did he meet the OS/FOIS nor gave any explanation and disappeared without intimation.
He reappeared on 8.2.2006 and met Dy.CPM/COIS in office. He was again asked to resume duty and report in writing to OS/ FOS. He met OS/FOIS and again did not resume duty and left telling him that he would resume duty on some other day.
Thus he failed to maintain devotion to duty and contravened Rule No. 3.1 (ii) & (iii) of Railway Service Conduct Rules 1966.
Those charges were proposed to be sustained by 12 documents and 2 witnesses. They are as under:-
List of Documents
1. Working report of Bungalow Khallasi sent to Dy. CPO/HQ.
2. Unathorized absence of Sh. Om Prakash Bungalow Khallasi sent to Dy. CPO/HQ and dealing clerk Baroda House, IRCA.
3. Letter regarding assistance for vacation of out-house from unauthorized occupation by Bungalow Khallasi sent to DSE/Estate.
4. Notice dated 7.7.05 regarding vacation of out-house given to Sh. Om Prakash, Bungalow Khallasi.
5. Warning letter dated 6.7.2005 regarding unauthorized absence given to Sh. Om Prakash, Copy to CPO/Admn. N. Rly.
6. Request dated from Sh. Om Prakash, Bungalow Khallasi regarding giving duty.
7. Letter No. CAO/FOIS/3/NG/OP/05 dated 15.7.2005 regarding duty given to Shri Om Prakash.
8. Note dated 12.1.2006 given to OS/FOIS & Bill Clerk copy to Dy. CPO/HQ.
9. Notice dated 12.1.2006 given to Sh. OM Prakash, Bungalow Khallasi Copy to CPM/FOIs. Dy. CPO/HQ/OS OS/FOIS, Dealing Clerk.
10. Report dated 13.1.2006 of Sh. S.M. Srivastava, Sr. TI/COIS.
11. Note dated 2.8.2006 regarding unauthorized absence of Bungalow Peon sent to Dy. CPO/HQ, copy HC/FOIS, CRS/Estt/IRCA, Dealing Clerk Baroda House, N. Rly.
12. Attendance register.
List of witnesses 1. Shri Gajender Kumar, OS-II.
2. Shri S.M. Srivastava, Sr.TI/COIS.
4. Thereafter, the said Disciplinary Authority issued a show cause notice on 01.09.2006 to the Applicant and he replied to it on 27.09.2006. Thereafter, vide its order dated 29.09.2006, the said Disciplinary Authority itself, prepared an enquiry report. Then, it itself commented on the charge sheet issued to the Applicant, his reply to the show cause notice and on its own enquiry report. According to the aforesaid order, even after his salary was deducted for his initial unauthorized absence from 28.06.2005 to 15.07.2005, he did not bother to take prior permission for his absence, he could not prove his sickness as he did not produce any reasonable cause for his long absence from duty and he had shown stark audacity to harass his Controlling Officer. Consequently, he was imposed upon the penalty of removal from service with immediate effect. The said order reads as under:-
The response from the CO Shri Om Prakash Yadav has been received on 27.09.2006 to the show cause notice served on him on 11.09.2006. The comments of the undersigned, as DA, on the basis of the charge sheet and the enquiry report are as under:-
You have been charged for absconding from duty and remaining authorizedly absent from duty without intimation for long/different periods. All the charges against you have been proved beyond any iota of doubt. Despite the fact that your salary was deducted for your initial authorized absence from duty (i.e. 28.06.2005 15.07.05), you still did not bother to take prior permission for, or intimate, your subsequent absenteeism. During your absence also you were tried to be contacted but due to your frequent change of addresses, that too without intimation to the administration, you could not be contacted. You were warned and were also given opportunity to explain, but you still did not bother to turn up on duty. Your dereliction of duty and indiscipline was more pronounced when despite being asked to join duty thrice by your controlling officer, during your visits to the office, you still did not join duty nor took permission to avail leave. You have not been able to prove your sickness and has not produced any reasonable cause of your long absence from duty. You have concocted the entire story of falling ill and have produced a fake certificate from a private medical practitioner which is not supplemented by any prescription of medicines, purchase of medicines, or blood tests reports etc. for a serious illness like Hepatitus which you have claimed in your reply. You have shown stark audacity by refusing to perform duty which seems to be done only to harass your controlling officer, who is a lady. You have been given all opportunities for a fair trial and without any prejudice. All the evidences, documents and cross-examination of the witness and you, has proved that you have exhibited lack of devotion to duty and acted in a manner unbecoming of a Railway servant.
Keeping all the factors in view I am imposing a punishment of Removal from Service on you, with immediate effect, without any prejudice.
The appeal against the above orders lies with CPM/FOIS provided it is submitted within 45 days from the date of receipt of this letter and the same does not contain any improper or disrespectful language.
5. The Applicant filed an appeal against the said order on 12.11.2006. As the Appellate Authority did not consider his aforesaid appeal, he approached this Tribunal earlier vide OA No.2246/2007 and the same was disposed of on 04.12.2007 directing the Appellate Authority to consider and to dispose of the same by passing appropriate orders within a period of one month. Thereafter, the Appellate Authority, vide its order dated 01.02.2008, held that the enquiry held was procedurally defective and cancelled the Disciplinary Authoritys order dated 29.09.2006 and remitted the case back to it for initiation of the enquiry in accordance with the rules. The said order reads as under:-
I have gone through your appeal dated 12.11.2006. I have also gone through the charges leveled against you, along with the D&AR proceedings. You were also personally heard in this matter on 22.01.2008 and till 25.01.2008 due to your own personal reasons. You have declined to give anything more than that you have already explained in the D&AR proceedings. After careful consideration of your appeal and various issues raised by you I found that
(i) The Disciplinary Authority has acted as an Enquiry Officer. Though the D&AR rules do not debar Disciplinary Authority to act as an Enquiry Officer, but in the interest of natural justice, it has been reiterated time and again that Disciplinary Authority should refrain from acting as an Enquiry Officer unless there are reasons to do so. No reasons to this effect are available on the case file.
(ii) In the enquiry process, the CO was cross-examined before the cross examination of the Defence Witnesses. It is also against the settled procedure of the D&AR enquiry.
Keeping in view the above weakness of the D&AR enquiry process, I conclude that enquiry report is procedurally defective. Therefore, the punishment of Removal from Service awarded by the Disciplinary Authority on the basis of the enquiry report, vide letter No.CAO/FOIS/NG/OP/2005 dated 29.09.2006, is cancelled and the case is remitted back to D.A. for initiation of D&AR enquiry in accordance with the rules.
6. Thereafter, in terms of Rule 5(4) of the Railway Servants (Discipline & Appeal) Rules, 1968, the Applicant was placed under deemed suspension w.e.f. 29.09.2006. The Disciplinary Authority has also appointed Shri S.P. Singh, Inquiry Inspector (Vigilance) as Inquiry Officer on 22.04.2008. He submitted his report on 04.12.2008, a copy of which was sent to the Applicant on 15.01.2009. The relevant part of the said report is reproduced as under:-
Prosecution Side:
Shri Gajendra, Office Supdtt. Has affirmed in his statement that the C.O. had not given any information to the office about his absence; nor did he appear in the office during the said period of absence. He has also stated that the C.O. had not given any information to the office about his illness or change of address. About the Attendance Register he stated that the Attendance Register remains under his custody and during his absence his junior takes over the custody of the Attendance Register. During the cross-examination by the Defence Helper, he in reply stated that no tampering his has been done with the Attendance Register. But, on the Exht.I, Exht.2, Exht.3 and Exht.4 on the dates 10.11.2005, 28.11.2005, 1.12.2005 and 23.12.2005 of the Attendance Register over-writing is clearly indicated.
Shri S.M. Shrivastava, T.I./FOIS has affirmed the truth of his statement that he was sent by the Controlling Officer to find out about the C.O. and about his absence. Due to change of address, he had to face a lot of difficulty, after which new address of the C.O. could not be traced out at which on the first day he (C.O) was not met, but on the second day he was met and after serving him with the notice the C.O. was asked to give reply within two days. Defence Helper did not ask any question from him.
EXAMINATION OF THE C.O. The C.O. avoided to appear on the dates fixed for hearing by the Inquiry Officer on 28.6.2008, 24.7.2008 and 25.08.2008 and did not appear. During this period a representation was received from him (C.O.) in this office, expressing his inability to attend the inquiry due to non-payment of subsistence allowance. The C.O. has stated in his statement that his appointment was on ad-hoc basis and his tri-monthly report was being sent to the office, on the basis of which his services were being extended and on this very basis he was declared successful in the selection held on 6.1.2005. From this, the fact appears to be correct that he (C.O.) was aware of the Rules. Besides, it is also true that an employee cannot be exonerated from the charge on the basis of innocence of Rules.
The C.O. has accepted in his statement that the behavior of the controlling Officer was proper and respectful and he considered her as a model employer and worthy ideal. No problem arose from the date of his appointment up to March, 2005, but after that, the problem started. It can be said from the circumstantial evidence that the main reason for this was his (C.O.) being appointed permanently and he was careless in his behavior. A Railway servant should have remained dutiful towards his officer by following the Conduct Rules and should have given information in time about himself.
Chage About Absence:
28.6.2005 - 18.7.2005:
The statement of the C.O. in connection with absence during this period is that his outhouse was locked and he was not taken on duty. His statement to this effect appears to be incorrect because on 7.7.2005 a letter was received in this connection but for proving about his not being guilty, he did not give any reply. Besides this, on 15.7.2005 for resuming duty he accepted his absence. Besides this, about deduction of this salary for this period he did not represent against this, which by itself proves to be correct.
15.10.2005 to 17,10.2005:
He (C.O.) could not submit any evidence about his presence and about the deduction of salary for this period he raised no objection and after receiving letter dated 13.1.2006 also he did not raise any objection. Therefore, this charge is proved.
10.11.05, 28.11.2005, 1.12.2005 and 23.12.2005:
In connection with the absence for these four days, due to objections raised by the Defence Helper, the fact about tampering with the Attendance Register and over-writing ( P to A) was noticed, which documents are enclosed as Exh.1,2,3 and 4. Therefore, on these four days the absence appears to be doubtful and not proved beyond doubt.
1.1.2006 to 17.4.2006:
According to the C.O., on 7.1.2006 after receiving the controlling officer at the station, his health deteriorated and he became unwell and, therefore, he went away from duty. Afterwards, his health and pulled down and then by telling his controlling officer he could have been provided with arrangement for some proper medical treatment. After that he could give information by telephone or letter. Besides this, he could give information through some other known person and could submit his defence. But, he did not do so. Even after having been served with notice dated 13.1.2006 by the T.I. Shri S.M.Shrivastava he did not give any reply nor did he give any information to his officer about his absence. If he was going out due to his family affairs, as has been accepted by him in this statement from this, it appears that was not seriously ill and was fit to give information. The educational qualification of the C.O. is 8th pass; therefore, he cannot be taken as illiterate. He has not been able to produce any evidence that he had got himself examined in the Central Hospital. The C.O. in spite of his presenting himself as poor and illiterate, by not getting treatment in the Railway Hospital, got himself treated in a private clinic; the hospital was 1 = K.Ms. away where he could get free treatment and other test facilities which is necessary for the said disease. From a glance at the prescriptions issued by the Sud Clinic it is clear these have been prepared on one day using different pens. The fact about a person suffering from the disease of Hepatitis C, who could not get a chance on 7.1.2006 to give information, but on 12.1.2006 he remained outside, is self-contradictory. Therefore, it appears an effort has been made to take the pretext of illness during the period of absence. On being given full opportunity about defence at every stage the C.O. could neither submit any evidence now any test report which could prove about his illness. Therefore, the charge leveled about his absence without any information on 10.11.2005, 28.11.2005, 1.12.2005 and 23.12.2005 is proved from all facts.
Your guilt is proved beyond any doubt.
7. The Applicant submitted his representation dated 28.01.2009 on the said report. He stated that he always remained with the Controlling Officer but he was not aware whether the Controlling Officer has been marking his attendance. Even though, due to certain unavoidable and compelling circumstances, he remained absent for sometime but he was shown absent on 10.11.2005, 20.11.2005, 01.12.2005 and 23.12.2005 when he was actually present on those days. He has also stated that during the enquiry he made it clear that his absence was neither intentional nor habitual as alleged in the Charge Memo. However, Shri S.K. Sharma. Dy. CPM (FOIS), the new incumbent Disciplinary Authority, vide its order dated 21/26.05.2009 again imposed upon him the punishment of Removal from Service. The said order reads as under:-
The response from you has been received on 28.1.2009 against the show cause notice served on you on 15.1.2009. The comments of the undersigned as D.A. on the basis of the charge-sheet and the enquiry report are as under:-
You have been charged for absconding from duty remaining unauthorizedly absent from duty without intimation for long/different periods. All the charges against you have been proved beyond any iota of doubt. Despite the fact that salary was deducted for your initial unauthorized absence from duty (i.e. 28.06.2005 to 15.07.2005) you did not bother to take prior permission for, or intimate, your subsequent absenteeism. The explanation provided by you is not convincing and is not supported by any documentary evidence. During your absence you were tried to contact but due to your frequent change of addresses, that too, without intimation to the administration, you could not be contacted. You were warned and were also given opportunity to explain, but you did not bother to turn up on duty. Your dereliction of duty and indiscipline was more pronounced when despite being asked to join duty by your Controlling Officer, during your visit to office, you still did not join duty nor took permission to avail leave. Your explanation of serious sickness as a reason for your unauthorized absence cannot be accepted as you have not produced any evidence to prove that you were on sick as to not even be able to inform administration or Controlling Officer about the same. You were not able to prove that your sickness was so serious and there was an emergency, which prevented you to get treatment at Central Hospital, which was within a radius of one and a half kilometer from your residence. You produced a medical certificate from a private practitioner, which was not supplemented by an prescription of medicines, purchase of medicines or blood test reports etc. for a serious disease like Hepatitis. It was after repeated requests that you submitted a list of medicines. You have shown stark audacity by refusing to perform duty and has failed to maintain devotion to duty and acted in a manner unbecoming of a Railway Servant and contravened Rule No. 3.(ii) & (iii) of Railway Service Conduct Rules, 1966.
Keeping all the factors in view I am imposing a punishment of REMOVAL FROM SERVICE on you, with immediate effect, without any prejudice.
The appeal against the above orders lies with CPM/FOIS provided it is submitted within 45 days from the date of receipt of this letter and the same does not contain any improper or disrespectful language.
8. He made an appeal against it on 29.07.2009 stating that the Respondent No.4 Smt. Seema Dheer has ill-treated him and he was made to work as a domestic servant, he was asked to do the work of cooking, cleaning and washing and he used to do those work like a domestic private servant. He has also stated that he tolerated all her scolding and harsh words but the problems got aggravated after he was screened and found suitable for regularisation in the job by the Respondents order dated 09.03.2005. He has also stated that as a Bungalow Khalasi he served the Respondent No.4 to his best of ability but the charges levelled against him were totally concocted. He has also stated that the Disciplinary Authority has passed order removing him from service without following the principles of natural justice. In the said appeal, he has referred to an Order of this Tribunal in the case of another Bungalow Khalasi - Dharamender Kumar Yadav Vs. U.O.I. ATJ 2006 (1) 408 wherein it was held that it was very illogical to say that Bungalow Khalasi could muster cause to do similar actions. The relevant part of the said judgment reads as under:-
It is very illogical that applicant, a lowerly paid bungalow khalasi, would have mustered courage to write to the General Manager regarding non-accord of duties by CCM. It is only when such an employee is constrained under the mitigating circumstances when an officer with whom he had worked earlier and acquired temporary status on his certificate on satisfactory performance why he is not willing to join him. In my considered view, a bungalow khalasi is just like a domestic servant to a JAG officer who does all sundries work and on a trivial issue having the discretion to recommend dispensation of service of such employee, the aforesaid provision is more misused rather than used. However, the fact situation cannot be adjudicated in these proceedings before me.
9. He has also stated that report of the Enquiry Officer was partisan. In this regard, he has relied upon the judgment of the Apex Court in the case of Anil Kumar Vs. Presiding Officer & Others U.O.I. AIR 1985 SC 1121 wherein it was held that the Inquiry Officer has to consider the evidence of both the sides and after discussion, he has to give reasons as to why the evidence given by the prosecution witnesses was more credible than that of the defence. The relevant part of the said order reads as under:-
5. We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the Enquiry Officer. It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the, evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not credit-worthy. He. did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India (1966) 1 SCR 466 : (AIR 1966 SC 671), this Court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be. deprived of this only safeguard. Similarly in Mahabir Prasad v. State of Uttar Pradesh (1971) 1 SCR 201 : (AIR 1970 SC 1302), this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order-sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a gross case of non application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court.
10. As the aforesaid appeal has not been disposed of by the Appellate Authority, the Applicant has approached this Tribunal again vide OA No.858/2010 and the same was disposed of vide order dated 16.03.2010 with a direction to the Appellate Authority to consider and dispose of the said appeal by a reasoned and speaking order within a period of 2 months. Thereafter, the Appellate Authority vide order dated 04.06.2010 dismissed the appeal of the Applicant. The relevant part of the said order reads as order:-
During the enquiry, you did not produce any documentary evidence to prove that you had applied Leave for the above mentioned period to the administration. Salary for the above un-authorized absentee period was not paid, for which you never represented to the administration. You produced a private medical certificate without supporting the valid and reasonable prescriptions of the private doctor though you were residing nearest to the Northern Railway Central Hospital, where you were entitled for free treatment of your sickness.
The allegations made by you in your appeal that Smt. Seema Dhir, Dy, CPM/COIS, under whom you were working, was angry with you for not preparing dinner properly, not allowing you for duty, entire enquiry and orders have been passed on the directions of Smt. Seema Dhir, passing the orders of D.A. without application of mind are not acceptable as the charges leveled against you of un-authorised absence from duty. The fair enquiry was conducted by deputing another Enquiry Officer Shri S.P. Singh by the D.A. The E.O. was transferred from CAO/FOIS officer to Railway Board and spared on 29.08.2008 and was no longer working under Smt. Seema Dhir. The enquiry was actually started after the transfer of the E.O. from this Office. Shri S.P. Singh was directed to continue the enquiry as E.O., who, after completion of the enquiry submitted the enquiry report on 04.12.2008. You have agreed in your statement given to the E.O. that the enquiry was conducted fair and satisfactory and your Defence Counsel Shri Ram Murti Yadav has also accepted the same.
In view of the above facts, I am fully satisfied with the Enquiry Report conducted in this case and punishment of Removal from Service awarded by the D.A. Shri S.K.Sharma, Dy. CPM/FOIS and found no justification to change in the aforesaid punishment.
11. Applicant challenged the aforesaid orders before this Tribunal vide OA No.1007/2011 and this Tribunal vide order dated 07.03.2012 quashed and set aside the order of punishment dated 17.04.2006 holding that the same was shockingly disproportionate to the charge for which indictment has come about. It was also observed in said order that the material relevant for determination of the penalty has not been considered and there was no finding of the Enquiry Officer that the charge of absence of the Applicant from duty was not proved beyond doubt. The relevant part of the said judgment reads as under:-
6. During the course of hearing, the learned counsel for the Applicant primarily canvassed the following points for consideration:
(a) The penalty imposed is absolutely disproportionate to the charge for which the Applicant stands indicted.
(b) The impugned order does not, at all, take into consideration the length of service rendered by the Applicant and also the fact that he had been accorded temporary status on the recommendation of the none-else or other than respondent No.3 on whose further recommendation only the Applicant was enabled to appear at the screening test for regularization of service (which he cleared as well).
( c) The Appellate Authority was not competent to have granted an order for holding of a de-novo inquiry and all that it could have ordered was the holding of a further inquiry which was, the plea canvassed proceeded in continuity, but in any case short of holding of de-novo inquiry. In support of the averment, reliance was placed upon AIR 1971 SC 1447, K.R. Dev Vs. Collector, Central Excise, Shillong.
7. The learned counsel appearing on behalf of the Respondents, on the other hand, argued that judicial pronouncements-based view is that the courts/Tribunals ought to refrain from sitting in appeal over the judgment recorded by the departmental authorities in the matter of adequacy of punishment.
8. We have given our considered though to the points in controversy. We find ourselves in complete agreement with the pleas argued on behalf of the Applicant. The reasons therefore are as under:
9. In K.R. Devs case (supra), the Honble Apex Judicial Dispensation declared in no uncertain terms that the holding of a de-novo inquiry could not be ordered and that if the disciplinary authority finds certain aberration in the inquiry conducted by the inquiring authority, it may direct the latter to conduct a further inquiry into the matter. That law is fully applicable to the facts of the case before this Tribunal, particularly when our attention was not invited to any law to the contrary.
10. It is further apparent from the order granted by the Disciplinary Authority and also the Appellate Authority that the material relevant for determination did not actually go into consideration. It may be noticed, in the context, that there is a precise finding by the inquiring authority that the absence of the Applicant for the period 10.11.2005, 28.11.2005, 01.12.2005 and 23.12.2005 is not proved beyond doubt. That finding was noticed by Appellate Authority in course of the order-dated 04.06.2010 (Annexure A-1) as well. However, the impugned order does not indicate the weightage given to that part of the fact finding by the Disciplinary Authority. The Disciplinary Authority and also the Appellate Authority have not further indicated whether any weightage, at all, had been accorded to the length of service rendered by the Applicant and also the fact that he had been granted temporary status and forwarded for the screening test, for purpose of regularization, on the recommendation of non-else or other than the Respondent No.3 only. Whether such like facts are entitled to any consideration in the facts and circumstances of the case, is to be decided by the Disciplinary and the Appellate Authority. That these are valid facts which ought to go into the consideration for the purpose of determination of the quantum of the penalty, has been announced in various judicial pronouncements from time to time. Of course, there might be certain eventualities which may not impel the Disciplinary Authority to accord a very favourable consideration to such like facts. In that case, however, the concerned authority would be well advised to notice those facts and to negate the same by recording, whatever reasons they opt to, in the context. The impugned orders, which are conspicuously silent on that point, cannot be validated.
11. In respectful accord with the law of the land, we must notice that, under a natural eventuality, the mandate is for a refrain on the part of the Courts/ Tribunals from interfering in the exercise of discretion by the administrative authority in the matter of quantification of punishment. At the same time, there is law as well which provides that interference may be justified in case it is found that the penalty imposed is shockingly disproportionate to the charge for which indictment has come about. The present is indeed a case of that category.
12. By the very nature of things, when a person would get into employment, he would get into the matrimony and raise a family. In that situation, the Administration authorities must always consider whether the imposition of a penalty, short of removal from service, could be deemed to be adequate. There may be certain eventualities wherein the indictment comes about on a very serious charge touching the very integrity etc. of the employee. In that eventuality, no fault could possibly be found with the grant of an order imposing the ultimate penalty upon the delinquent employee. However, the same cannot be said to be true of case of the former category wherein charge is only of unauthorized absence for a period which cannot be said to be very long in character.
13. In the light of the aforementioned discussion, we can safely cull out that the administrative authorities (disciplinary and Appellate Authority) do not appear to have granted an order which sustain itself even tested on the touchstone of legality. The O.A. shall stand allowed and the impugned orders (granted by the disciplinary authority and also Appellate Authority), shall stand set aside. The disciplinary authority shall be entitled to proceed afresh in the matter (from the stage of determination for the purpose of imposition of penalty). The relevant order must, in any case, come out in a clear announcement of the reasons which weigh with the disciplinary authority. If lady luck does not smile upon the applicant in the course of the order at the hands of the disciplinary authority and applicant is impelled to file an appeal, the sentiments qua the grant of a self-contained order, shall be equally applicable to the order which may come about at the hands of the Appellate Authority.
14. It is to state the obvious that the orders at the hands of the disciplinary authority must come about within a period of one month from the date of this order is presented its office. The Appellate Authority, too, shall have to take a decision within one months from the date of filing of the appeal if that situation ultimately arises.
15. Disposed of accordingly.
12. However, the Disciplinary Authority again passed order on 22.06.2012 removing the Applicant from service. The relevant part of the said order is also reproduced as under:-
Duties of Bungalow Peon (TADK):
On the Railway, Junior Administrative grade officers and above are entitled for services of bungalow Peons (also called as TADK) at their residence to meet the official work arising out of Railway operation at their residence also. Bungalow Peons are engaged specially to perform the following duties-
(i) To carry official files/Dak to the Bungalows of the officers to whom they are attached.
(ii) To attend to official telephone calls at the officers bungalows.
(iii) To deliver urgent messages to other officers.
(iv) To accompany the officers on tour at short notice.
(v) To carry telegrams in case of accidents.
(vi) To carry papers to officers bungalows and bring them back to the office on the next day.
(vii) Any other type of work as directed by the concerned officer to facilitate and in furtherance of official work.
The procedure for engaging bungalow peons is governed by special orders issued from time to time by the competent authority (PS No.10960/95/Mo.803E/I/Pt.X/EIV dated January 1995) Service conditions of Bungalow peons are not included in the IREC or IREM as bungalow peons is a special category as they are neither casual level nor substitute. Their service conditions are governed by the administrative orders issued from time to time with approval of the competent authority on the Zonal Railways, until they attain temporary status after completion of two years continuous service.
Performance of Shri Om Prakash Yadav ex.Bungalow peon.
Shri Om Prakash Yadav (Ex.TADK), since the date of his appointment in Railway Service on 01.10.2001 and up to the date of the screening test on 06.01.2005, has performed successfully under his Controlling Officer Smt. Seema Dhir, Dy.CPM/ICMS. There were no complaints by his controlling officer against Shri Om Praksh Yadav, bungalow peon before the screening test (January, 2005). Complaints of his unsatisfactory working against Shri Om Prakash Yadav started by his Controlling Officer after January 2005 and onwards, which are supported by the letters, warnings and notice given to Shri Om Prakash on various dates as mentioned in the relied upon documents.
After being added in the regular (Group D) category in the Railways in 2005, the nature of work assigned to him by the Controlling Officer, was not done as desired. Generally small mistakes done are not a matter of serious concern. But when repeated failures/mistakes recur and disobeying of instructions start increasing, it becomes intolerable to the Controlling Officer, which is reflected in the form of a written complaint, which was received by the office of CAO/FOIS about unsatisfactory performance, pronounced indiscipline of Shri Om Prakash Yadav towards the Controlling Officer.
Extreme situation of dissatisfaction arose on 28.06.2005 at the Controlling Officers residence, when Om Prakash Yadav, bungalow peon was asked to assist in the kitchen at the dinner time. Preparing Meals at the residence of the officer is also covered under the duty list of bungalow peon. The job assigned to him was not done in time in a proper way as desired. Shri Om Prakash was allowed by his Controlling Officer to stay in the outhouse to discharge his duties properly. As the work assigned to him was not done in a manner and time desired by his officer, he was asked to vacate the outhouse as his services to the officer are not as per her requirements. After that Shri Om Prakash, stopped providing services to his officer and remained absent from 28.06.2005 and onwards. On receipt of the written complaints from the Controlling Officer after failing from the warnings to Shri Yadav, the Disciplinary Authority suspended Shri Om Prakash Yadav for his unwarranted misconduct. As the conduct of TADK towards his service to his/her Controlling Officer was not satisfactory in spite of repeated warnings, letters and notices given to him, so it was the compulsion of the administration to start the disciplinary action against him.
XXX XXX XXX Reasons for imposing penalty for the charges proved against Shri Om Prakash:
(i) Absent from duty from 28.06.2005 to 15.07.2005 (18 Days) and 15.10.2005 to 17.10.2005 (03 Days) supported by reduction of salary of CO. He was silent on letters dated 07.07.2005 and 15.07.2005 for his unauthorized absence and also admitted his absence in his letter dated 15.07.2005. This is an evidence of irregularities to duties and a serious misconduct.
(ii) Absent from duty from 01.01.2006 to 17.04.2006 (107 Days) supported by no documentary evidence for his illness. He did not report about his illness in the office verbally or written. A service of CO was not provided during the period of his unauthorized absence for 107 Days, which is quite a long duration. The Controlling Officer was stressed during the above period while discharging the administrative duties without assistance. This is again an evidence of gross negligence and irregularity in discharging his duty.
(iii) He didnt bother to reply to instructions, letters and notices to him to the office or his Controlling Officer. He started absconding midst of duty hours and becoming more indisciplined by not caring out order/instructions by taking them not seriously supported by letters, warnings/notices dated 04.07.2005, 06.07.2005, 07.07.2005, 12.01.2006, 17.01.2006, 08.02.2006 and 23.02.2006. This is an offence to the magnitude of a serious misconduct.
(iv) He became more undisciplined by not providing adequate service to his Controlling Officer after being screened in January, 2005. He forgot his duties and responsibilities assigned to him as a bungalow peon vide PS No.10960/95/No.803E/I/Pt.X/IV dated January, 1995. This is again gross negligence and misconduct.
(v) He did not apply for any leaves to this office, even when he is literate. He was also aware that quarterly performance report is sent to bill section for making salary to him. This proves that hes aware of rules and literate as well. Hence submitting no leave application or to his Controlling Officer further adds to his serious misconduct.
Imposition of penalty to Shri Om Prakash Ex.Bungalow peon by the Disciplinary Authority:
Owing to the sensitive nature of the job of bungalow peon at the residence of the controlling officer when he/she shall be at work place/ on tours /on training, therefore the person engaged has to be a dependable /reliable/faithful person in whom officer should have full trust.
Induction into regular service in Rlys of Sh. Om Prakash as bungalow peon could possible only trough his controlling officer based on the satisfactory performance. In such situations the role of bungalow peon becomes more important towards his/her controlling officer against the assigned duties and responsibilities.
Bungalow Peons satisfactory performance only up to the period of getting screened to become eligible for regular group-D service in Rlys and later on exhibiting pronounced indiscipline towards the controlling officer became the root cause of the problem. Such actions result into mistrust for the officer and misconduct on part of CO.
He has not rendered the satisfactory services to his officer for such unauthorized absent periods, for which he was engaged. Disobeying the orders of his officer by not reply to the letters/warnings /notices and taking them not seriously has also been proved during the inquiry proceedings. This is a serious misconduct.
CO became more indsiciplined by not discharging his duties to this officer. He forgotten to his duties and responsibilities towards his controlling officer once screened for regular induction in Rly service. He also didnt apply for any leave either to office or to his controlling officer. This is gross negligence and serious misconduct.
The reasons for reaching to the conclusion imposing penalty are mentioned in the above paras from (i) to (v).
He committed grave offence by gross negligence to the instructions/warning /notices and exhibited serious misconduct against his duties.
He, thus, failed to maintain devotion to duties and his serious misconduct led to the unbecoming of Rly servant in contravention to rule No.3.1(ii) and (iii) of Rly service conduct rules 1966.
Keeping all the factors in view, I impose a punishment of removal from service on Sh. Om Prakash Yadav, ex. Bungalow peon (TADK) with immediate effects, without any prejudice.
The appeal against the above, orders lies with CPM/FOIS provided it is submitted with in 45days from the date of receipt of this letter and the same doesnt contain any improper or disrespectful language.
13. Applicant filed an appeal against the same on 13.08.2012 but the same was rejected vide the impugned order dated 12.09.2012. The relevant part of the said order reads as under:-
3. During the DAR inquiry, the COs unauthorized absence from 28.06.2005 to 15.07.2005 (18 days) and 15.10.2005 to 17.10.2005 (03 days) was proved as supported by deduction of his salary for that period. The CO was not only silent on the warning letters dated 06.07.2005 and 07.07.2005 issued to him mentioning his earlier unauthorized absence but he also admitted his absence during the said period in his letter dated 15.07.2005. He also did not respond/represent despite receipt of notice dated 12.01.2006 which was served on him on 13.01.2006 in this regard. Similarly, his absence from duty from 01.01.2006 to 17.04.2006, i.e., till he produced duty certificate issued by Railway Director (107 days) was also established as, as per the inquiry report, despite being given full opportunity to defend his case, the CO could not produce any substantive evidence/any test reports to produce that he was seriously ill during this period. The certificate of the private doctor submitted by the CO in this regard was not supplemented by any test reports to establish that he was actually suffering from Hepatitis C as claimed. Moreover, the CO also did not report about his illness to the office of the CAO/FOIS for the said period as seen from the fact that that he even didnt reply to the notice dated 12.01.2006 served on him on 13.01.2006 through Shri S.M. Srivastava, Sr. TI/COIS for submitting explanation for his absence. He should have replied to the notice and informed the office that he was sick during the said period as he later claimed. It was thus clear that an effort was made by the CO to take the pretext of illness for his further unauthorized absence during the period from 01.01.2006 to 17.04.2006 as an afterthought.
4. Apart from the COs unauthorized absence from duty during the period which was proved as per the inquiry report as mentioned above, the charge of late reporting and absconding during the duty hours and also not resuming duty despite being specifically asked to do so and disappearing without any intimation also appeared substantiated seen in the light of the fact that he did not bother to respond to the warning notices issued to him despite acknowledging the same. This reflected gross indiscipline, disobedience of the orders of the Controlling Officer, disregard for duty and a serious misconduct on the part of the CO. The DA in his NIP dated 22.06.2012 has also dealt with the reasons for his decision imposing penalty of removal from service on the CO in detail and in speaking manner chargewise.
4. Apart from the COs unauthorized absence from duty during the period which was proved as per the inquiry report as mentioned above, the charge of late reporting and absconding during the duty hours and also not resuming duty despite being specifically asked to do so and disappearing without any intimation also appeared substantiated seen in the light of the fact that he did not bother to respond to the warning notices issued to him despite acknowledging the same. This reflected gross indiscipline, disobedience of the orders of the controlling authority, disregard for duty and a serious misconduct on the part of the CO. The DA in his NIP dated 22.06.2012 has also dealt with the reasons for his decision imposing penalty of removal from service on the CO in detail and in speaking manner chargewise.
5. The COs contentions in his appeal that the OA No. 1007/2011 was allowed on 07.03.2012 setting aside the finding of the Inquiry Officer and also that during the inquiry he was not provided with the complete copy of the absence period by the Inquiry Officer were not found correct as in the orders dated 07.03.2012 the Honble CAT/NDLS had not set aside the IOs finding. Similarly, from the inquiry report it is seen that the CO in reply to a question during the inquiry had stated that he was satisfied with the inquiry proceedings. Thus it is clear that adequate care was taken by the IO to give full opportunity to the CO to defend his case and that the finding of the inquiry officer was reasoned and based on evidence taken on record during the inquiry.
6. The COs further contention that the penalty imposed on him by the DA was disproportionate to the charge of mere remaining absent from duty for few days is also not found tenable as being unauthorisedly absent which was establishing during the DAR inquiry not only deprived the COs controlling officer of the formers services with full satisfaction to the latter solely for which he (the CO) was engaged but also it showed an act of gross indiscipline, sheer disregard for duty on the part of the CO which could not be encouraged. Owing to the sensitive nature of the job of a bungalow peon at the residence of the controlling officer which he/she shall be at work place /on tours/ on training, the person so engaged has to be a dependable /reliable/faithful person in whom the officer should have full trust. Screening of the CO for his regularization in service as bungalow peon could become possible only on recommendation of his controlling officer based on his (the COs) satisfactory performance earlier. However, it is noteworthy that instead of continuing his satisfactory service to his controlling officer even after the clearance of his screening test (March, 2005), the CO started showing indiscipline thereafter ( June, 2005). The COs satisfactory performance only till the time of clearing the screening test and later on exhibiting pronounced indiscipline towards his controlling officer was a case of breach of trust also on his (the COs) part which was totally unacceptable and could not be overlooked. It clearly appeared that the COs earlier service was only with a view to satisfying his controlling officer to get a favourable recommendation for clearing the screening test for regular induction in Railway service. Once this achieved, it was conspicuously apparent that the CO no longer considered his responsibility to continue his satisfactory performance thereafter. Viewed in this context, no weightage could be given to the earlier service rendered by the CO while judging the gravity of the misconduct committed by him. Moreover, an earlier satisfactory performance was not a guarantee that there would be no deficiency in it in future. Seen in this light, the quantum of penalty imposed on the CO by the DA is considered commensurate with the gravity of the offence.
7. In view of the foregoing, the CO is found guilty of the charges leveled against him in this case and I do not find any reason to change the penalty of removal from service imposed on him by the DA. The appeal dated 13.8.2012 of the CO is disposed of accordingly.
14. The Applicant has challenged the aforesaid orders of the Disciplinary Authority as well as the Appellate Authority in this OA. According to him, the charges have been cooked up against him as his Controlling Officer, Smt. Seema Dheer was deliberately and intentionally showed him absent from duty. The Inquiry Officer himself has stated in his report that the absence of the Applicant from 28.06.2005 to 15.07.2005 was doubtful and there was overwriting showing his as absent. Further according to him, his performance was quite satisfactory and it was for the said reason that the Applicant was given the status and post of Group D employee in the Railway Service. The Disciplinary Authority as well as the Appellate Authority failed to consider the aforesaid aspect of the service rendered by the Applicant.
15. The learned counsel for the Applicant has stated that the Applicant was never given any fair treatment by the Enquiry Officer. The enquiry was held in a bised and whimsical manner without observing the principles of natural justice. He has also stated that the Inquiry Officers report was in violation of the law laid down by the Apex Court in Anil Kumars (supra). The Disciplinary Authority and the Appellate Authority were also arbitrary in their decisions to remove the Applicant from service. He has specifically stated that Smt. Seema Dheer, who was a material witness in this case, was not listed as a prosecution witness and she was not subjected to cross examination which is not as per the law laid down by the Apex Court in the case of Hardwari Lal Vs. State of U.P. and Others AIR 2000 SC 277. The relevant part of the said judgment reads as under:-
3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.
16. Further according to him, the Inquiry Officer has violated Rule 9(21) of the Railway Servants (Discipline & Appeal) Rules, 1968 which reads as under:-
(21) The inquiring authority may, after the Railway servant closes his case, and shall, if the Railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Railway servant to explain any circumstances appearing in the evidence against him.
In this regard, he has relied upon the judgment of the Honble Supreme Court in the case of Ministry of Finance Vs. S.B. Ramesh JT 1998 (1) SC 319 where in violation of Rule 14(18) of the CCS (CCA) Rules, 1965 which is in pari- materia with the aforesaid rule has been considered. The relevant part of the said judgment reads as under:-
After these proceedings on 18-6-91 the Enquiry Officer has only received the brief from the PO and then finalised the report. This shows that the Enquiry Officer has not attempted to question the applicant on the evidence appearing against him in the proceedings dated 18-6-91. Under sub-rule (18) of Rule 14 of the CCS (CCA) Rules, it is incumbent on the Enquiry authority to question the officer facing the charge, broadly on the evidence appearing against him in a case where the officer does not offer himself for examination as a witness. This mandatory provision of the CCS (CCA) Rules has been lost sight of by the Enquiry authority. The learned counsel for the respondents argued that as the inquiry itself was held ex parte as the applicant did not appear in response to notice, it was not possible for the Enquiry authority to question the applicant. This argument has no force because, on 18-6-91 when the inquiry was held for recording the evidence in support of the charge, even if the Enquiry Officer has set the applicant ex parte and recorded the evidence, he should have adjourned the hearing to another date to enable the applicant to participate in the enquiry hereafter/or even if the inquiry authority did not choose to give the applicant an opportunity to cross-examine the witness examined in support of the charge, he should have given an opportunity to the applicant to appear and then proceeded to question him under sub-rule (18) of Rule 14 of CCS (CCA) Rules. The omission to do this is a serious error committed by the enquiry authority.
17. Again, he has submitted that the Inquiry Officer was working under the Respondent No.4 for a long time and it was not possible to expect any fair enquiry from him which is evident from the fact that he did not give weightage to defence statements made during the course of enquiry. Thus the whole enquiry proceedings were vitiated by mala fide, ill will, illegality and ambiguity.
18. The Official Respondents have filed their counter affidavit stating that the Inquiry Officer had taken adequate cognizance of the over-writings/cuttings in the attendance sheet of the Applicant and he had given due benefit to them. Accordingly, he held that the absence of 4 days was not unauthorized. However, the remaining 128 days (18 days, 3 days and 107 days in three different spells) were unauthorized. They have also stated that the Applicant fabricated and concocted different versions of the incident of 28.05.2005 which has been vehemently denied by Mrs. Seema Dheer. The Applicant was, therefore, issued warning letters on 06.07.2005 and 07.07.2005 mentioning about his earlier unauthorized absence. Further according to them, the certificate from the private doctor submitted by him was not supplemented by any test report indicate that he was suffering from Hepatitis C, as claimed by him. Moreover, he did not report about his illness to the office of the CAO/FOIS during the said period. He also did not reply to the notice dated 12.01.2006 served on him on 13.01.2006 through Shri S.M. Srivastava, SR. TI/COIS for submitting explanation for his absence.
19. They have further stated that Disciplinary Authority held that the earlier enquiry was procedurally defective and it was passed in violation of the principles of natural justice as the Disciplinary Authority himself acted as Inquiry Officer also. The Appellate Authority has, therefore, remitted the case to the Disciplinary Authority, vide order dated 01.02.2008 and in pursuance of the said order, the Disciplinary Authority, vide SF-7 dated 22/28.04.2008 appointed Shri S.P. Singh, Sr. FOIS/Inspector as Inquiry Officer. They have also stated though Shri S.P. Singh at the time of his appointment as Inquiry Officer on 22/28.04.2008 was working under Smt. Seema Dheer yet he was transferred from CAO/FOIS to Railway Board and was spared on 29.08.2008. Later on, when he was asked to complete the enquiry, he was no longer working under her. In fact, the enquiry was actually started after his transfer to Railway Board and he functioned as fair, unbiased and independent Inquiry Officer. Further from his enquiry report, it is seen that the Applicant himself was satisfied with the enquiry.
20. They have also stated that this Tribunal, vide order dated 07.03.2012 in OA No.1007/2011 (supra), has directed the Disciplinary Authority to proceed afresh in the matter from the stage of determination for the purpose of imposition of penalty and the said order is a clear announcement of the reasons which weighed with the Disciplinary Authority. Accordingly, the Disciplinary Authority proceeded afresh in the matter with due care and application of mind and passed the fresh, reasoned and speaking order on 22.06.2012 again imposing the penalty of removal from service upon the Applicant. The Applicants appeal was also duly considered by the Appellate Authority and passed the order dated 12.09.2012 upholding the penalty of removal from service.
21. The Respondent No.4 Smt. Seema Dheer has also filed a separate reply affidavit stating that in the Railways, Officers of the rank of Junior Administrative Grade and above are entitled for services of Bungalow Khalasis at their residence to meet with official work arising out of Railway Operations. Due to the sensitive nature of job, presence of the Bungalow Khalasis in the residence of the officer when he/she shall is at work place/on tours/on training is needed. Assuming that the Applicant was dependable, reliable and faithful, he was recommended for appointment as Bungalow Khalasi and accordingly he was appointed w.e.f. 01.10.2001. Initially his performance was found to be satisfactory and accordingly he was granted temporary status on 29.01.2002 and later screened on 06.01.2005 and appointed to Group D post vide letter dated 09.03.2005. Thereafter, he did not consider it necessary for him to perform his duty satisfactorily and started exhibiting conspicuous indiscipline. He has also started remaining absent from duty without intimation and proper sanction. Thus he remained absent from 28.06.2005 to 15.07.2005, 15.10.2005 to 17.10.2005, on 10.11.2005, 28.11.2005, 01.12.2005, 23.12.2005 and further from 01.01.2006 onwards. She has also stated that the allegations made by the Applicant against her that she became angry with him as the food cooked by him was not tasty, directed him to vacate the out-house, put lock outside the room and the main gate, refused to meet him and to take him on duty, etc. were malicious and concocted.
22. We have heard the learned counsel for the Applicant Shri Ram Bhushan and the learned counsel for the Respondents Shri R.N. Singh. In our considered view, this is a classic case of the whimsical attitude of the Controlling Authority towards a Bungalow Khalasi now rechristened as Telephone Attendant-cum-Dak Khalasi. In this case, the Respondent No.4 Smt. Seema Dheer, on her own, engaged the Applicant as Bungalow Khalasi. Later he was regularized in the service of the Railways as a Group D employee. But he is now out of job for over 9 years from 01.01.2006. During this period two sets of enquiry proceedings have been held against the Applicant and he had already filed three litigations in the matter before this Tribunal. From the facts of the case mentioned earlier in this order would clearly reveal it was only due to the callous and indifferent attitude of the authorities of the Respondents that the case has prolonged for the last seven years. The first Disciplinary Authority Smt. Dharmendra Kumar, Dy.COM/T&C/FOIS simply relying upon the complaints of the 4th Respondent, Mrs. Seema Dheer claimed to have conducted the enquiry by himself against the Applicant. According to his own order, he just issued another show cause notice to the Applicant and after getting reply from him held that all the charges against him were proved without any iota of doubt. Thereafter, he was simply removed from service vide order dated 29.06.2006. The appeal filed by the Applicant on 12.11.2006 was kept pending by the Appellate Authority for over 14 months and it was disposed of only on 01.02.2008 after the intervention of this Tribunal in the first round of litigation. The Appellate Authority set aside the aforesaid order of the Disciplinary Authority as it was found to be illegal and remitted the case to the Disciplinary Authority for initiation of the D&AR enquiry in accordance with the rules. Thereafter, a Vigilance Inspector was appointed as the Enquiry Officer. He simply stated that the charge against the Applicant that his absence without any information on 10.11.2005, 28.11.2005, 01.12.2005 and 23.12.2005 is proved from all facts. Again the next incumbent Disciplinary Authority, namely, Shri S.K. Sharma, Dy.CPM/FOIS passed the same removal order on 26.05.2009. But the Appellate Authority again ignored the appeal dated 29.07.2009 made by the Applicant. He had no other option but to approach this Tribunal again and this Tribunal again directed the Appellate Authority to consider and dispose of the appeal and finally the Appellate Authority rejected his appeal only on 04.06.2010 after a period of 11 months. The Applicant then began the third phase of the litigation which resulted in the order of this Tribunal dated 07.03.2012 quashing both the Disciplinary and Appellate Authorities orders. Despite the directions contained in the said order, the next incumbent Disciplinary Authority, Smt. H.R. Rao, Dy. CPM/FOIS again passed its order dated 22.06.2012 removing the Applicant from service and the Applicants Appeal dated 13.08.2012 was rejected by the final order of the Appellate Authority on 12.09.2012 upholding the aforesaid orders of the Disciplinary Authority. During these 9 years, different sets of Disciplinary Authority and Appellate Authority, different lawyers and different members of this Tribunal have dealt with the case of the Applicant. In the representations, defence statement and appeals, even though the Applicant has taken different grounds for challenging the disciplinary proceedings initiated against him culminated in the order of removal from service, the last order of this Tribunal dated 07.03.2012 in OA No.1007/2011 (supra) considered mainly the question of proportionality of the punishment inflicted upon the Applicant. However, since this Tribunal has quashed and set aside both the Disciplinary Authoritys order and the Appellate Authoritys order and remitted the case to the Disciplinary Authority, it is the bounden duty of this Tribunal to examine the legality of the entire procedure adopted by the Respondents and to decide whether the impugned orders can be sustained or not.
23. Admittedly, the Applicant was proceeded under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. According to the said Rules, the enquiry shall be held in accordance with the procedure contained therein. The relevant parts of the said rules are reproduced below:-
(6) Where it is proposed to hold an inquiry against a Railway servant under this rule and Rule 10, the disciplinary authority shall draw up or cause to be drawn up -
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain -
(a) a statement of all relevant facts including any admission or confession made by the Railway servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(7) The disciplinary authority shall deliver or cause to be delivered to the Railway servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Railway servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow.
24. In the present case, the charge against the Applicant is that he has been unauthorizedly absent for the following periods without any intimation or prior permission:-
(i) 28th June, 2005 to 15th July, 2005.
(ii) 15th October, 2005 to 17th October, 2005.
(iii) 10th November, 2005 and 28th November, 2005.
(iv) 1st December, 2005 and 23rd December, 2005.
(v) 1st January 2006 till date.
and thus he failed to maintain devotion to duty and contravened Rule No. 3.1 (ii) & (iii) of Railway Service Conduct Rules, 1966.
The said charge was proposed to be sustained by 12 prosecution witnesses and 02 prosecution documents. The first document, namely, working report of Bungalow Khallasi sent to Dy. CPO/HQ. was prepared and sent by the Respondent No.4 Smt. Seema Dheer who was the Controller Officer of the Applicant and the 4th Respondent in this Original Application or on her behalf. Similarly, the second document and the third document, namely, the Unauthorized absence of Shri Om Prakash, Bungalow Khalasi sent to Dy.CPO/HQ and dealing clerk Baroda House, IRCA and the letter regarding assistance for vacation of out-house from unauthorized occupation by Bungalow Khalasi sent to DSE/Estate respectively have also been authored by her or on her behalf. The fourth document notice dated 7.7.05 regarding vacation of out-house given to Sh. Om Prakash, Bungalow Khalasi, the fifth document warning letter dated 6.7.2005 regarding unauthorized absence given to Sh. Om Prakash (with) copy to CPO/Admn. N. Rly., the sixth document request dated from Sh. Om Prakash, Bungalow Khallasi regarding giving duty, the seventh document letter No. CAO/FOIS/3/NG/OP/05 dated 15.7.2005 regarding duty given to Shri Om Prakash, the eight document note dated 12.1.2006 given to OS/FOIS & Bill Clerk (with) copy to Dy. CPO/HQ, the ninth document notice dated 12.1.2006 given to Sh. OM Prakash, Bungalow Khallasi (with) copy to CPM/FOIs. Dy. CPO/HQ/OS OS/FOIS, Dealing Clerk, the tenth document report dated 13.1.2006 of Sh. S.M. Srivastava, Sr. TI/COIS, the eleventh document note dated 2.8.2006 regarding unauthorized absence of Bungalow Peon sent to Dy. CPO/HQ, copy HC/FOIS, CRS/Estt/IRCA, Dealing Clerk Baroda House, N. Rly. and the last document attendance register were also authored/kept under custody either by the aforesaid Respondent No.4 or any other officer on her behalf. None of them, except Shri Gajender Kumar, OS-II and Shri S.M. Srivastava, Sr.TI/COIS who have nothing to do with the charge, have been listed as prosecution witnesses to prove those documents. Shri Gajender Kumar, the prosecution witness, has only stated during the enquiry that the Applicant did not give any information to office about his absence or about his illness. The other prosecution witness, Shri S.M. Srivastava simply stated he was sent by the Controlling Officer to find out about the Applicant and about his absence and he met the Applicant on his second visit nothing more. The Inquiry Officer did not mention about any of the other prosecution documents and there was none to even present them. The most important material witness was, undoubtedly, Mrs. Seema Dheer, the Respondent No.4. The Disciplinary Authority conveniently omitted her and other concerned officers from the list of documents. As held by the Apex Court in the judgment in the case of Hardwari Lal (supra), non-examination of the material witness would amount to non-observance of the principle of natural justice. Mrs. Seema Dheer was the Controlling Officer of the Applicant. It was in her residence that the Applicant was posted. It was she who made the complaint against the Applicant. Therefore, in the departmental enquiry, the Disciplinary Authority should have made her a witness so that she could be cross-examined by the Applicant/his Defence Assistant and the truth was brought on record. Non-listing of her and other concerned officers as the prosecution witness and having denied the opportunity to cross-examine them have completely vitiated the enquiry proceedings which have been rendered as perverse.
25. The Apex Court in Modula India v. Kamakshya Singh Deo (1988) 4 SCC 619, held that in a disciplinary proceedings documents are the tools for the delinquent-employee for cross-examining the witnesses who deposed against him. Unless there are witnesses to prove the charge, mere listing of documents is of no use. The relevant part of the said judgment reads as under:-
It is well settled proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross examination. The mere statement of plaintiffs witness cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross examination..
Again, the Apex Court in its judgment in Roop Singh Negi Vs. Punjab National Bank 2009 (2) SCC 570 held that mere production of documents is not enough but their contents have to be proved by examining the witnesses. The relevant part of the said judgment reads as under:-
..The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof..
26. Now let us consider the charge against the Applicant. According to the Disciplinary Authority, he was on unauthorized absence from duty on five different spells. As far as the first spell of absence from 28.06.2005 to 18.07.2005, the Applicant has stated that during the said period he was locked out from the outhouse given to him by Mrs. Seema Dheer and he was not allowed to perform his duty. Mrs. Seema Dheer, as stated above, being not a witness, was not there to dispute his statement. As regards the second spell from 15.10.2005 to 17.10.2005, the Enquiry Officer stated that the Applicant did not object to the deduction of his salary for the said period. As regards the absence for 10.11.2005, 28.11.2005, 01.12.2005 and 23.12.2005 the Enquiry Officer held that it was not proved as there was tampering in the attendance register. For the absence from 01.01.2006 to 17.04.2006, the Enquiry Officer stated that the Applicant could not produce any evidence that he was sick. The submission of the Applicant was that some spells of his absence from duty was due to his sickness and some other spells are due to physical prevention of the Respondent No.4 from performing his duties and marking him absent in the attendance Register. He has pleaded that all those spells of absence was beyond his control. He specifically stated that his absence was not at all intentional. The Enquiry Officer also in his report simply held that his absence without any information on 10.11.2005, 28.11.2005, 01.12.2005 and 23.12.2005 is proved from all facts. Nowhere in his report he has stated that absence of the Applicant from duty was willful or intentional. It is well settled that unless the absence is willful, it would not amount to misconduct. The Apex Court in the case of Krushnakant B. Parmar Vs. Union of India and Another 2012 (3) SCC 178 held as under:-
15. Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a Government servant and reads as follows:
"3.General. (1) Every Government servant shall at all times-
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant."
16. In the case of appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether unauthorized absence from duty amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
18. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct.
27. It is also a well settled principle that disciplinary proceeding is a quasi-judicial proceeding and the Enquiry Officer has to hold the enquiry in accordance with the principles of natural justice. The Enquiry Officer is required to prove the charge after considering both prosecution evidence and the evidence produced by the delinquent Government servant. He cannot merely record his ipse dixit that the charge has been proved. In its judgment in the case of Mahabir Prasad v. State of Uttar Pradesh AIR 1970 SC 1302, the Supreme Court held that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. The Apex Court in its judgment in the case of Mohd. Yunus Khan Vs. State of Uttar Pradesh 2010 10 SCC 539 again held the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the inquiry officer. The relevant part of the said order reads as under:-
16. We have to proceed, keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. Though, the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Indian Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the inquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice.
28. Again the Enquiry Officer cannot hold the enquiry in a slipshod manner without assigning any independent reason. Rather, he shall conduct the enquiry in a fair, just and reasonable manner. The Apex Court in the case of Man Singh Vs. State of Haryana and Others 2008 (12) SCC 331 held as under-
20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of 'fair play' and reasonableness.
29. The Enquiry Officer has not held the enquiry in a judicious manner. As rightly submitted by the Applicant, the Enquiry Officer failed to comply with the provision contained in Rule 9(1) of the Railway Servants (Discipline & Appeal) Rules, 1968 (supra). As held by the Apex Court in S.B. Rameshs case (supra) when the inquiry was held for recording the evidence in support of the charge, even if the Enquiry Officer has set the applicant ex parte and recorded the evidence, he should have adjourned the hearing to another date to enable the applicant to participate in the enquiry hereafter/or even if the inquiry authority did not choose to give the applicant an opportunity to cross-examine the witness examined in support of the charge.
30. The Enquiry Officer held the enquiry against the Applicant with a closed and biased mind. Without any material or valid evidence on record, he held that the charge has been proved. The Apex Court in State of U.P. Vs. Saroj Kumar Sinha 2010 (2) SCC 772 held as under:-
28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said "procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."
31. Again, admittedly the Enquiry Officer was a Vigilance Officer. As held by the Apex Court in the case of Union of India and Others Vs. Prakash Kumar Tandon 2009(1) SCC (L&S) 394, the order to be fair to the delinquent officer, appointment of the Chief of the Vigilance Department as Enquiry Officer should have been avoided. The explanation given by the Respondents in this regard is quite strange. According to them, even though the Enquiry Officer, at the time of his appointment was Vigilance Inspector, he completed the enquiry only after he returned from a posting in between against a different post in the Railway Board. However, from the report submitted by him, his partisan attitude is quite evident. As there were no material witnesses to prove the charge against the Applicant, the Enquiry Officer left the burden of proof upon the Applicant. For all the aforesaid reason, we are of the considered view that the report of the enquiry is very much perverse as there is no evidence of willful absence against the Applicant.
32. The Apex Court in its judgment in the case of Union of India vs. Prakash Tandon- Civil Appeal No.7349 of 2008 decided on 17.12.2008 has held that when the disciplinary proceedings have been initiated at the behest of the Vigilance Department, the Enquiry Officer could not have been from the Vigilance Department. The relevant part of the said judgment reads as under:-
14. The disciplinary proceedings were initiated only after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. He evidently being from the Vigilance Department, with a view to be fair to the delinquent officer, should not have been appointed as an enquiry officer at all.
15. From the evidence of another Assistant Engineer who had taken part in the raid, it is evident that the alleged loss caused to the railways was negligible and mere marginal allowances are permitted for measurement of `scantlings and planks'.
16. In the aforementioned situation, we are of the opinion that the Tribunal as also the High Court cannot be said to have erred in holding that the said Mr. Walia should have been examined as a witness.
This Tribunal in its order in OA No.740/2010-S. K. Saxena vs. Union of India & Ors. has held that a officer who was part of the vigilance dispensation could not have been appointed as the Enquiry Officer. The relevant part of the said order reads as under:-
15. We find the plea raised on behalf of the respondents to be indefensible. We repeatedly called upon the learned counsel for respondents to invite our attention to any part of the counter wherein it may have been averred that the Inquiry Officer did not belong to the Vigilance dispensation. The learned counsel was not in a position to invite our attention to any part of the counter wherein that fact may have been mentioned. He kept on asserting all through that the Inquiry Officer was not a part of the Vigilance Organisation and that he was under the administrative control of the Vigilance dispensation either. However, he was not in a position to categorically say where exactly was the IO posted. Information about his exact posting would have surely enabled us to find out his relatability or otherwise to the Vigilance dispensation. In the absence of a precise indication about the identification about the placement of the Inquiry Officer, either in the pleasing or in the course of presentation, we feel justified in holding that there is force in the plea on behalf of the Applicant that the Inquiry Officer was a part of the Vigilance dispensation and he could not have, thus, conducted the inquiry in the context which was based upon allegations of corruption against the applicant for which a trap had been laid by the Vigilance Wing itself.
33. Further, the pre-determined mind of the successive Disciplinary Authorities and Appellate Authorities to snatch the livelihood from the Applicant is evident from the very beginning. The first Disciplinary Authority, Shri Dharmendra Kumar, Dy. CPM/IT/TMS in most perverse manner passed the order dated 29.09.2006 and imposed the penalty of removal from service upon the Applicant. Admittedly, he did not conduct any enquiry at all in the case. Instead, he himself just issued a show cause notice to the Applicant again after serving him the Memo of Charges and obtained a reply from him. Thereafter, in an arbitrary and whimsical manner, he stated in the said order that all the charges against the Applicant have been proved as he was not able to prove his sickness and he concocted the entire story of falling ill, by producing fake certificates from private medical practitioner not supplemented by any prescription of medicines, purchase of medicines, or blood tests reports etc. He had also assumed that the Applicant had shown stark audacity by refusing to perform duty which seems to be done only to harass your controlling officer, who is a lady. However, the Appellate Authority set aside the said order of the Disciplinary Authority and remitted the case back to him for initiation of D&AR enquiry in accordance with the rules. It is further seen that the second Disciplinary Authority Shri S.K. Sharma, Dy.CPM/FOIS has also passed the order dated 26.05.2009 again removing the Applicant from service. A perusal of the aforesaid order would reveal that it was nothing but a print out of earlier order of the Disciplinary Authority dated 29.09.2006. From the aforesaid order of the Disciplinary Authority, it can be seen that he was very much callous and indifferent. It is also evident from the conduct of the said Disciplinary Authority that the Respondents have the single minded agenda of removing the Applicant from service. Rather, it is seen that for the Respondents it has become a matter of prestige that the Applicant is out from service.
34. It is a well settled position that it is the responsibility of the Disciplinary Authority to ensure that the enquiry was held in accordance with the procedure laid down in the Railway Servants (Discipline & Appeal) Rules, 1968 after complying with the principles of natural justice. However, the second Disciplinary Authority has also not discharged his duties in accordance with the rules. He has simply stated that the charge against the Applicant was proved as per the enquiry report. On the other hand, in terms of the Rule 10(2) of the Railway Servants (Discipline & Appeal) Rules, 1968 the Disciplinary Authority is expected to give due consideration to the Enquiry Report as well as the representation of the Railway Servant. The said rule reads as under:-
(2) The disciplinary authority:-
(a) shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority, its findings on further examination of witnesses, if any, held under sub-rule(1) (a) together with its own tentative reasons for disagreement, if any, with findings of the inquiring authority on any article of charge to the Railway Servant, who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Railway Servant;
(b) shall consider the representation if any, submitted by the Railway Servant and record its findings before proceeding further in the matter as specified in sub-rules (3), (4) and (5).
35. The Appellate Authority was also very casual, whimsical and arbitrary in his entire approach to the case. In the first two rounds of litigation, the Appellate Authority did not even bother to consider the appeals made by the Applicant. On both those occasions this Tribunal had to interfere and direct the Appellate Authority to consider and dispose of the appeals. The final order passed by the Appellate Authority is manifestly pre-determined. The requirements of consideration in a appeal from an order of the Disciplinary Authority by the Appellate Authority is contained in Rule 22 of the Railway Servants (Discipline & Appeal) Rules, 1968 which reads as under:-
22. Consideration of appeal -
(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Rule 5 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.
(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider :-
(a) whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders:-
(i) confirming, enhancing, reducing or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case.
36. In its judgment in the case of R.P. Bhatt V. Union of India [ (1986) 2 SCC 651] the Apex Court has considered the word consider" in Rule 27(2) of the of the CCS (CCA) Rules, 1965 which is pari materia to Rule 22(2) ibid and held as under:-
4. The word 'consider' in Rule. 27(2) implies 'due application of mind. It is clear upon the terms of Rule. 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in Clauses. (a), (b) and (c) thereof.
5. There is no indication in the impugned order that the Director-General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director-General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of Clause. (c) of Rule. 27(2), viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule. 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside.
37. We, in the above facts and circumstances of the case quash and set aside the impugned enquiry report dated 15.01.2009, the Disciplinary Authoritys order dated 22.06.2012 and the Appellate Authoritys order dated 12.09.2012. We also direct the Respondents to reinstate the Applicant forthwith, with all consequential benefits. However, for the period of his absence from duty the Applicant may apply for leave of the kind due, if not already applied. The period of leave availed by the Applicant on the ground of sickness supported by medical certificates shall be treated as leave on medical grounds. For the period of absence not supported by medical certificates he shall be granted other kind(s) of leave available to him. In the interest of justice, the Applicant shall also not be posted with Smt. Seema Dheer. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. No costs.
38. Before we part with this order, we are constrained to observe that in an earlier order in OA No.875/2013 Uttam Kumar Tewari Vs. U.O.I. & Others decided on 13.09.2013, this Tribunal observed that the engagements and subsequent regularizations of the Bungalow Khalasis are in violation of Articles 14 and 16 of the Constitution. We have also directed the Chairman, Railway Board, New Delhi to look into the matter and to take appropriate remedial measures. However, regrettably, it is seen that no action has been taken so far. We reiterate that the entire system of engagement of Bungalow Khalasi (TA&DK) is arbitrary and illegal. It is very often misused by the officers in whose residences the Bungalow Khalasis are posted. In many cases, they are exploited by such officers. If they do not perform the work at their whims and fancies, they are subjected to all kinds of ill treatment and harassments. Even though their designations have now been changed to TA&DK, they are still forced to work as domestic servants in the homes of the Railway officers. Several such cases have come to the notice of this Tribunal where the officers with whom such Bungalow Khalasis are attached are thrown out mercilessly.
39. It is also seen that they are employed through back doors at the instance of the concerned Controlling Officer or someone more influential in the Railway Department for extraneous consideration. Their merits are never tested along with other competing candidates. Their appointments are made by favoritism and nepotism which would lead to corruption. The Supreme Court in its judgment in the case of Indra Sawhney v. Union of India (1992 Supp (3) SCC 217: 1992 SCC (L&S) Supp 122 held that public employment always gave a certain status and power-it has always been the repository of State power-besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. The relevant part of the said judgment reads as under:
"644. The significance attached by the Founding Fathers to the right to equality is evident not only from the fact that they employed both the expressions 'equality before the law' and 'equal protection of the laws' in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18. ...
645. Inasmuch as public employment always gave a certain status and power-it has always been the repository of State power-besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1) expressly declares that in the matter of public employment or appointment to any office under the State, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to declare in clause (4) that nothing in the said article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State."
40. Again, the Constitution Bench in Secretary, State of Karnataka and Others Vs. Umadevi and Others JT 2006 (4) SC 420 the Supreme Court has held in unequivocal terms that any public employment has to be in terms of the constitutional scheme. The relevant part of the said judgment reads as under:-
2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme.
XXX XXX XXX
4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
XXX XXX XXX
6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed.
XXX XXX XXX
11. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Article 320 deals with the functions of Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognized by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the members of the scheduled castes and scheduled tribes for employment. The States have made Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and Regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein.
41. When the Government is incurring so much of expenditure from the public exchequer to give pay, allowances and other benefits to large number of Bungalow Khalaisis appointed from time to time, such back door entries cannot be permitted any further.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh