Central Administrative Tribunal - Delhi
Sh. S.P. Singh vs Union Of India Through on 18 January, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-554/2011
New Delhi this the 18th day of January, 2011.
Honble Sh. G. George Paracken, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. S.P. Singh,
S/o Sh. Harbel Singh,
R/o H.No. 9/6107,
Main Road, Gandhi Nagar,
Delhi-31. . Applicant
(through Sh. B.S. Mainee with Ms. Meenu Mainee, Advocate)
Versus
Union of India through
1. General Manager,
Northern Railway,
Headquarters Office,
Baroda House,
New Delhi.
2. Chief Track Engineer,
Northern Railway,
Headquarters Office,
Baroda House,
New Delhi.
3. Divisional Railway Manager,
Northern Railway,
Ambala.
4. Divisional Railway Manager,
North Western Railway,
Jodhpur.
5. Sr. Divisional Engineer[C],
Northern Railway,
Ambala Cantt. . Respondents
(through Sh. Shailendra Tiwary, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant, who was promoted to the rank of Section Engineer on 14.10.1996, faced criminal trial and was convicted by the trial Court on 17.11.2008 and sentenced to rigorous imprisonment of two years with a fine of Rs.5000/-. His criminal appeal is pending with the Honble Punjab & Haryana High Court and he has been released on bail on 01.12.2008. A show cause notice was issued to him by the respondent authority why he would not be removed from service in view of his conviction in a criminal case. His reply to the show cause notice was rejected and he was removed from railway service by the impugned order of the Disciplinary Authority (DA) of 19/23.02.2009. According to the applicant, he made an appeal against this order on 04.11.2009 which was again rejected by the Appellate Authority (AA). Finally, his Revision Petition was dismissed by the Revising Authority (RA) in his order dated 18.08.2010; hence this O.A. has been filed with a prayer to quash the impugned orders and to direct the respondents to re-instate the applicant with all consequential benefits.
2. At the time of hearing, learned counsel for the applicant highlighted the following two grounds:-
(i) The order of removal passed by Senior Divisional Engineer (SDE) as the DA is invalid, ab initio, as the SDE was incompetent to inflict the penalty of removal on the applicant who was in the rank of Section Engineer for whom the appointing authority is Divisional Railway Manager and in terms of the provisions of the Railway Servants (Discipline & Appeal) Rules, 1968 the penalty of dismissal, removal from service and compulsory retirement can only be imposed by an authority who appointed the railway servant to the service grade or holding an equivalent post as the case may be.
(ii) The orders of DA and the AA suffer from the infirmity of non-application of mind and that the contentions raised by the applicant have not been dealt with in the impugned orders.
3. Learned counsel for the respondents submits that Senior Divisional Manager is the appointing authority with the competence of inflicting the penalty of removal from service. In this connection, he refers to the Schedule of Powers on Establishment Matters of Northern Railway annexed at pages 110-113. The Schedule of powers says that both Senior Administrative Grade and Junior Administrative Grade officers had full powers in the matter of appointment of non-gazetted Group-C&D staff on posts under their control. Similarly, Junior Administrative Grade officers either holding independent charge, or being kept in-charge of a department in a division have the powers of imposing penalties of dismissal/removal and compulsory retirement from service in respect of Group-C & D staff having pay scale upto Rs.5500-9000/-.
4. Learned counsel for the applicant placed reliance on the order dated 08.04.2011 of this Tribunal passed in OA-740/2010 and the order dated 04.11.2003 of the Honble High Court of Delhi in CW-1368/2003 to contend that the appointing authority in respect of the promotional post which the applicant holding would be the competent authority to inflict the penalty of removal from service in respect of an employee holding promotional post. Since this issue is no longer res-integra, we have no hesitation in following that proposition of law.
4.1 The issue for determination is whether the Senior Divisional Engineer is the appointing authority for the grade of Permanent Way Inspector (PWI) Grade-I now designated as Section Engineer, a post which the applicant admittedly was holding at the time of his removal.
5. Learned counsel draws our attention to the order dated 14.01.1996 issued by Divisional Personnel Officer in which he was granted promotion to the rank of Section Engineer. This order says that promotion was given with the approval of competent authority. It is not clear who was the competent authority who approved the promotion of the applicant to the rank of Section Engineer.
5.1 Learned counsel for the applicant draws our attention to the letter dated 20.04.1991 issued for Divisional Railway Manager dealing with the subject of proforma fixation of pay and salary of the applicant in a grade of PWI. Since this letter was issued from the office of the DRM, Jodhpur, it is contended that DRM is the appointing authority for the applicant. Therefore, it is contended that the impugned order of removal suffers from incompetence and cannot be sustained.
6. On the other hand, respondents have submitted that orders relating to promotion and other establishment matters are passed by competent officers of the department. Since Senior Divisional Manager under whose control the applicant was working is a Junior Administrative Grade Officer and had the powers of major penalties including removal from service on a Group-C employee drawing salary upto the pay scale of Rs.5500-9000/-, there was no irregularity in the penalty order of the DA on the ground of competence. He refers to the Schedule of Power which were revised in the year 1995 and the pay scale of the applicant who was a Group-C officer was Rs.2000-3200/- as on 14.10.1996 and for him the Sr. Divisional Manager is the competent officer under whose administrative control he was working. As far as the ground of the order of the DA & AA being non-speaking in nature, we cannot pass any comments about the order of the AA which has not been filed in the OA. The DA has stated that the applicant was convicted in a criminal case under Section 7 of Prevention of Corruption Act, 1988 and his reply dated 22/30-01-2009 did not bring any new facts on the merits of the case. He has also clearly mentioned that he was the DA under D&AR 1968 Rules to impose the penalty. He came to the conclusion that in the background of his conviction the applicant was not a fit person to be retained in railway service. Therefore, the penalty of removal was imposed by him.
6.1 Disciplinary Authority has been denied under Rule-2 (c) (iii) in the following manner:-
In relation to Rule 9 in the case of any non-Gazetted Railway servant, an authority competent to impose any of the major penalties specified, in Rule 6. The applicant is a non-gazetted Group-C officer and the Disciplinary Authority to inflict the punishment of removal has been indicated in Schedule-II as appointing authority or an authority of equivalent rank or any higher authority. 6.2 The Revising Authority (RA) in its order dated 18.08.2010 has passed a detailed order in which the contentions of the applicant that due weightage should have been given to the awards received by him during his service career, that a discriminatory treatment should not be meted out to him vis-`-vis one Darshan Singh who was also convicted in the same case and other pleas taken by the applicant have been dealt with and reasons have been given why his pleas were rejected. Since the orders of the DA and AA have been merged in the order of the RA, the plea of non-application of mind does not survive any longer. The import of Rule 14(1) of the aforesaid Rules is that the DA should consider whether the conduct of an employee which led to his conviction was such as to warrant imposition of major penalty of the nature of removal from service. In the present case, the DA has clearly mentioned that the applicant was convicted in a case under Prevention of Corruption Act and his conduct was not considered to be such as to make him fit to centime in railway service. The other grounds taken by him have been dealt with in the order of RA.
7. However, from the material placed before us, we are not clear as to who is the appointing authority for an employee of the rank of Section Engineer when the impugned removal order was issued. The show cause notice was issued by the same SDE, Northern Railway, Ambala Cantt. and the applicant had not challenged this Memorandum on the ground that the SDE was not the competent authority. Neither as this ground been taken even at the stage of filing Revision Petition, which is annexed at pages 81-83 of this OA. Nevertheless, competence being a legal ground could be taken at any time. In the circumstances, we remit this matter to the RA to examine with reference to the official records and determine the authority which granted him promotion to the rank of Section Engineer according to relevant Rules, determine who is the appointing authority or an equivalent officer who could impose the penalty of removal from service on the applicant. The RA should examine whether the Senior Division Engineer was the appointing authority, or was an officer of equivalent rank having the competence to impose the penalty of removal or not on the relevant date and pass a reasoned order according to Rules within a period of three months from the date of receipt of a copy of this order. The O.A. is disposed of accordingly. No costs.
(Dr. A.K. Mishra) (G. George Paraken) Member (A) Member (J) /Vinita/