Central Administrative Tribunal - Cuttack
M Raju vs M/O Railways on 30 June, 2022
1 O.A.No. 260/000674 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/000674 of 2019
Reserved on 19.05.2022 Pronounced on 30.06.2022
CORAM:
THE HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A)
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
MTSA Raju, aged about 51 years, S/o. M.E. Timothy,
Chief Commercial Clerk I presently, (reverted to
Commercial Clerk) O/o- General Booking Office,
Visakhapatnam, Andhra Pradesh.
......Applicant
VERSUS
1. Union of India, represented through its General
Manager, East Coast Railway, Chandrasekharpur,
Bhubaneswar, - 751017, Dist-Khurda.
2. Principal Chief Commercial Manager, East Coast
Railway, Rail Sadan, At/PO- Chandrasekharpur,
Bhubaneswar. - 751017, Dist-Khurda.
3. Addl. Divisional Railway Manager (DRM), East
Coast Railway, Waltair, At/PO- Visakhapatnam-
530004.
4. Sr. Divisional Commercial Manager Sr. (DCM), East
Coast Railway, Waltair, At/PO- Visakhapatnam-
530004.
5. A. K. Mallia, Inquiry Officer, O/o- Sr. Deputy
General Manager, East Coast Railway, Rail Sadan,
At/PO- Chandrasekharpur, Bhubaneswar- 751017,
Dist-Khurda.
2 O.A.No. 260/000674 of 2019
......Respondents
For the Applicant : Mr. A.Kanungo, Counsel
For the Respondents: Mr. A.Mishra, Counsel
ORDER
Swarup Kumar Mishra, Member (J):
The brief fact of the case is that on the allegation that the applicant resorted to multiple booking against privileged pass No. 546549 issued in his favour in violation of Commercial Circular No. 3 of 2010 (correction slip No. 21 of the IRCM Vol.I), which is unbecoming on the part of the railways servant contravening Rule 3.1 (i)(ii)&(iii) of Railway Services (Conduct) Rules, 1966, memorandum vide Annexure- A/2 dated 01.12.2017 under Rule 9 of Railway Servant (D&A) Rules, 1968 was issued to the applicant giving him an opportunity to submit his reply. Applicant submitted his written reply denying the allegation. Thereafter, the matter was inquired into, the I.O. submitted his report copy of which was supplied to the applicant, applicant submitted his written defence and the Disciplinary Authority vide order dated 25.06.2018 (Annexure-A/10) imposed the punishment of "reduction from the present post of CCC-I in Level-7 of 7th PC to the lower post of Commercial Clerk in Level-3 of the 7th PC and the pay is fixed at the 3 O.A.No. 260/000674 of 2019 minimum of Rs. 21,700/- for a period of three years with loss of seniority with further direction that on completion of the punishment period, he will progress in the same line from the date of his restoration". Appeal preferred by the applicant having been rejected vide order under Annexure-A/12 dt. 11.12.2018, the applicant submitted revision, which having been rejected vide order dated 03.11.2019 Annexure-A/14, the applicant has preferred the present O.A. praying inter alia to quash the order under Annexure-A/10 dated 25.06.2018, order under Annexure-A/12 dt. 11.12.2018, order under Annexure-A/14 dated 03.11.2019 and direct the respondents to grant him all consequential service and financial benefits on various grounds, which would be discussed at the time of dealing with the arguments of the respective parties.
2. The respondents filed counter inter alia stating therein that the applicant was charge sheeted as he misused the privilege pass issued in his favour in gross violation of Commercial Circular No. 3/2010 wherein it has been provided that the privilege pass holder can make maximum three time reservations provided the earlier one has been cancelled before chart preparation. If the confirmed reservation is not cancelled before preparation of chart, the pass would be treated as 4 O.A.No. 260/000674 of 2019 used. In reply to the charge sheet dated 19.12.2017, the applicant admitted his mistake and requested for grant of pardon. After preliminary inquiry, regular inquiry was conducted by granting the applicant adequate opportunity to prove his innocence. The charge framed against the applicant was held proved by the IO in his reported dated 08.05.2018, copy of which was supplied to the applicant giving him opportunity to file his defence. The applicant submitted his defence and after considering the entire matter with due application of mind, the Disciplinary Authority imposed the punishment, which was upheld in appeal and revision preferred by the applicant. Further, it has been stated that as per Rule 2(f) of Railway Servant (Pass) Rules, 1986 [1993 Edition], authority given by the Ministry of Railway to an employee to travel by rail gratuitously but not misuse the pass but in the instant case pass has been misused by the applicant. As per Clause 2 of Railway Servant's Pass Rules, 1986 misuse of pass is a serious misconduct and deterrent punishment of dismissal and removal from service can also be imposed on an employee. But, considering all aspect of the matter, a lenient view was taken and lesser punishment was imposed on the applicant. It has also been submitted that the Disciplinary Authority has been empowered to pass order of recovery against pecuniary losses apart from inflicting major penalty as per 5 O.A.No. 260/000674 of 2019 RS(D&A) Rules, 1968. As such, reduction to lower post and fixing at a lower stage is not a double jeopardy. In this regard, the respondents have relied on the Board's letter No. E(D&A) 62 RG 6-26 dt. 17.5.1962. Accordingly, respondents have prayed for dismissal of this O.A.
3. Applicant has filed rejoinder more or less reiterating the stand taken in the O.A., which shall be dealt into while dealing with the arguments advanced by the parties. According to the Ld. Counsel for the applicant, the order of punishment imposed by the Disciplinary Authority under Annexure-A/10, which was upheld by rejecting the appeal vide order under Annexure-A/12 and Revisional Authority vide Annexure-A/14, is not sustainable in the eyes of law on the following grounds:
(a) The Disciplinary Authority imposed the punishment without taking into consideration to the real fact of the matter that the applicant has not misused the privileged pass issued in his favour in violation of commercial circular No. 3/2010.
(b) The applicant has given detailed defence but the Disciplinary Authority without taking into consideration the reply of the applicant imposed the punishment without due application of 6 O.A.No. 260/000674 of 2019 mind and in a cryptic order contrary to the manner provided in the rules for the Disciplinary Authority to pass the order.
(c) The Appellate Authority without due application of mind and without considering as to whether the proceedings and the order passed by the Disciplinary Authority was in accordance with rules and principle of natural justice rejected the appeal in a cryptic matter by reproducing the order of the Disciplinary Authority.
(d) The Revisional Authority has also committed the wrong in the same manner as has been done by the Disciplinary Authority as well as Appellate Authority.
(e) The Disciplinary Authority or the Appellate Authority passed the order without giving any opportunity of being heard in compliance of the principle of natural justice to the applicant.
(f) The punishment of reduction in rank and recovery is shockingly disproportionate for the alleged allegation.
(g) The inquiry was conducted in gross violation of principle of natural justice and law without supplying the all the documents requested by him.
(h) The disciplinary proceedings ended with punishment was without any evidence and of that matter the evidence is such 7 O.A.No. 260/000674 of 2019 based on which proceedings and punishment could not have been initiated and imposed on the applicant.
(i) The applicant has also relied on the decision of the Hon'ble Apex Court in V.Vellaswamy Vs Inspector General of Police, Tamil Nadu, Madras & Anr. (1981) 4 SCC 247 to state that the matter should be heard on merit.
4. On the other hand, Ld. Counsel for the respondents has vehemently opposed the grounds stated by the applicant in support of the relief inter alia stating that it is not for this Tribunal to reappreciate the evidence, interfere with the conclusions in the enquiry conducted in accordance with law, go into the adequacy of the evidence, go into the reliability of the evidence, correct the error of fact however grave it may appear to be and go into the proportionality of punishment unless it shocks its conscience. Further, it has been stated that the court cannot substitute the findings reached by the Disciplinary Authority upheld by Appellate Authority based on some evidence. In the instant case, the proceedings were initiated against the applicant for violation of the specific provision of the Pass Rules. The applicant admitted his guilt and has prayed for pardon. However, considering the gravity of offence the IO proceeded with the inquiry 8 O.A.No. 260/000674 of 2019 giving adequate opportunity to the applicant to prove his innocence and in the inquiry applicant was allowed all reasonable opportunity and ultimately the IO held the charge proved. The Disciplinary Authority after taking into consideration all materials with due application of mind imposed a lesser punishment in a well reasoned and speaking order though for violation of the Pass Rules deterrent punishment of removal and dismissal was available to be imposed on the applicant. The Appellate Authority and Revisional Authority also considered and rejected the appeal and revision in a well reasoned order requiring no interference by this Tribunal.
5. We have given our thoughtful indepth consideration to the various arguments advanced by the respective parties and perused the pleadings and materials placed in support thereof.
6. The main grievance of the applicant is that he has not made multiple use of the pass issued to him and it cannot be said that there was violation of Pass Rules if earlier one is not cancelled when the reservation was not a confirmed one. The Commercial Circular No. 3/2010 (Correction Slip 21 of IRCM Vol.I) provides as under:
"(iii) In case of Confirmed Reservation on Privilege, Post retirement, Complimentary and other passes, the pass holder can make maximum three time 9 O.A.No. 260/000674 of 2019 reservations provided the earlier one has been cancelled before chart preparation. If the Confirmed Reservation is not cancelled before preparation of charts, the pass will be treated as used. In exception cases, discretionary powers for allowing reservation on such passes only once can be delegated to a JA Grade lever officer. At Divisional level, where any JA grade level Commercial officer is not available, the next senior most Commercial Officer may be deleted these powers."
From the rules, it is crystal clear that in case of Confirmed Reservation on Privilege passes, the pass holder can make maximum three time reservations provided the earlier one has been cancelled before chart preparation and if the Confirmed Reservation is not cancelled before preparation of charts, the pass will be treated as used. It is the repeated case of the applicant before the authority concerned that the ticket was not confirmed. Now, it is to be seen how the Disciplinary Authority dealt with the matter while imposing the order of punishment on the applicant. The relevant portion of the Disciplinary Authority order is produced below:
"Whereas Shri M.T.S.A Raju, CCC-I/V SKP had been provided adequate opportunity under Rule-9 (6 & 7) of Railway Servants Rule 1968, according to which he should submit his explanation within the extended time to the Disciplinary Authority. The CO submitted his explanation on 19/12/2017, wherein he stated that I have not resorted to multiple bookings against the privilege pass No.546549. I have not ever seen or heard about this commercial circular No.3 of 2010 and finally I would like to state that I made this mistake 10 O.A.No. 260/000674 of 2019 only with an intention to save my father like and ignorance to pass rules. Enquiry was held. Sri A.K.Mallia/IO/ECOR/BBS and Sri K.C.Sahoo, Ch.OS/Vigilance/ECOR/BBS have been nominated as Inquiry Officer & Presenting Officer respectively by Dy.CVO(T/BBS vide his letter No GM/V/ECOR/Major/09/17/977, dated 31/01/2018 Enquiry Report was submitted by IO on 08/05/2018 and concluded in his report that "Thus from the evidence mentioned in his report and discussion the IO/ECOR/BBS has arrived at conclusion that the charges levelled against CO in (SF-5) No.WCP/WAT/VIG/SF-5/M.T.S.A.R/CCC-I/VSKP/17/dated 01/12/2017 is substantiated. All opportunities were given under principle of natural justice to prove his innocence. The inquiry report submitted by IO was served to CO. The Charged Official had submitted his representation, dated 26/05/2018 (in 7 pages) as defence after having received the IO Report that (in last para of his explanation) "finally I submit that I have not misused my pass as alleged to attract the provisions of Conduct Rules 1966, and Commercial Circular No.3 of 2010 as alleged, nor violated the above provisions, as such I earnestly pray your goodself to kindly go through the entire case file once again very meticulously, judiciously in consideration of my defense statement dated 24/04/2018 addressed to the Inquiry Officer and exonerate me from the charges to meet the ends of justice.
Now therefore, the undersigned Disciplinary Authority under Railway Servants (Discipline and Appeal) Rules 1968 hereby after carefully going through the charges, the explanation/defence of the CO, IO report and all other relevant records, and after applying his own mind hold s that Shri M.T.S.A. Raju is guilty of the charges mentioned above."
The rule and law is crystal clear that the Disciplinary Authority imposing the penalty must apply his/her mind to the facts, circumstances, and records of the case and then record its findings on each imputation of misconduct or misbehavior. The Disciplinary 11 O.A.No. 260/000674 of 2019 Authority should give brief reasons for the findings to show that it has applied its mind to the case. The reasons recorded by the Disciplinary Authority shall be helpful to the affected employee to prefer an appeal. When the explanation of the delinquent has not been considered, the reason for rejecting must be recorded. The authority must be very careful while passing the penalty order. On going through the order of the Disciplinary Authority at no stretch of imagination it can be held that the order of the Disciplinary Authority passes the test of reasonableness inasmuch as in the manner provided and discussed above not even dealing with the points raised by the applicant especially the point that the tickets were in wait list and not confirmed one. In substance, it can be said Disciplinary Authority imposed punishment in an unreasoned order by not dealing with all the points raised by the applicant taking into consideration the Commercial Circular No. 3/2010, which amounts to violation of principle of natural justice, besides being arbitrary.
7. Next, we have gone through the order of the Appellate Authority which reads as under:
"Speaking Order I have gone through the appeal of the CO. Keeping in view the facts and circumstances and that there is no new evidence or 12 O.A.No. 260/000674 of 2019 thing brought to light, I decide to uphold the punishment imposed by the Disciplinary Authority and Pecuniary loss if any may also be recovered. "
8. The role of the Appellate Authority in disciplinary proceedings is very crucial as revealed from the rule 27 of the CCS (CCA) Rules, 1965, which states as under:-
"27. Consideration of appeal (2) In the case of an appeal against an order imposing any of the penalties specified in rule 11 or enhancing any penalty imposed under the said rules, the appellate authority shall consider -
(a) whether the procedure laid down in these rules have 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 server; 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 direction as it may deem fit in the circumstances of the case: provided that-
(i) The Commission shall be consulted in all cases where such consultation is necessary............."
9. Hon'ble Apex Court in the case of Ram Chander vs. Union of India, reported in (1986) 2 SLR 608, while examining the role of the Appellate Authority in a disciplinary proceeding, has held as under:- 13 O.A.No. 260/000674 of 2019
"Such being the legal position, it is of utmost importance after the Forty-Second Amendment as interpreted by the majority in Tulsiram Patel's case that the Appellate Authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. We wish to emphasize that reasoned decisions by Tribunals, such as the Railway Board in the present case, will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is beard and give a chance to satisfy the Authority regarding the final orders that may be passed on his appeal. Considerations of fairplay and justice also require that such a personal hearing should be given."
10. Going through the order of the Appellate Authority, we are at a loss to conclude that the order of the Appellate Authority is a reasoned one and is passed in accordance with rules and law.
11. The Revisional Authority rejected the revision without dealing with the stand of the applicant and even without taking note that the orders of the Disciplinary Authority and Appellate Authority were cryptic and not in accordance with rules and law. The order of the RA reads as under:
"I have gone through the entire case file, the punishment imposed by the Disciplinary authority, Appellate Authority and appeal made by the charged official. Considering all the above, I, as the Revisionary Authority, have the following observations:
1. Sri MTSA Raju, CCC-1/VSKP while working as such at booking office VSKP had resorted to multiple bookings against his Privilege Pass no- 546549 that violates 14 O.A.No. 260/000674 of 2019 Commercial Circular no- 3 of 2010(Correction Slip no-21 to the Indian Railways Commercial Manual Vol-01).
2. The C.O. in his lengthy appeal has not admitted his mistake and had appointed a DC to defend his case.
Accordingly, an inquiry was conducted and the charges were substantiated. The DA had then imposed the punishment on the C.O. Being aggrieved with that, the C.O. preferred an appeal to the AA, who upheld the punishment imposed by the DA.
3. I is seen from records that, the C.O. had made 3 reservations i.e. for 09.09.2015 & 12.09.2015 from VSKP to KZJ and WL to VSKP by 18509 & 12740 respectively and again for 12.09.2015 from KZJ to VSKP by 12728 Concurrently, on 12.09.2015, two separate PNRs have been generated for two return journeys i.e. WL to VSKP and KNJ to VSKP by 12704 and 12728 express on authority of the same privilege pass. The departure timings of 12740 from WL is 22.10 where as the departure timing of 12728 from KZJ is 19.30 hrs and the interval period is 2.40 hours only. It is evident that the C.O. did not travel by these two separate trains and it is conclusively established that multi reservations have been made by the CO on the same privilege pass by the above trains. By doing so, one berth has been blocked which could otherwise have been allotted to a needy passenger and Railways could have generated revenues in the process.
The C.O. was occupying a very sensitive post i.e. CCC- 1/VSKP. Apart from being well conversant with the rules, he was expected to lead by example and check against any such misuse at his workplace. He has instead indulged in irregularities for his own personal benefit at the expense of this parent organization. This I feel calls for exemplary punishment and I am therefore of the opinion that the punishment imposed by the DA and upheld by AA is adequate & I stand by the punishment imposed.
The Revision Appeal is, therefore, rejected."
15 O.A.No. 260/000674 of 2019
12. It is established law that the punishment order should be reasoned and speaking and must be passed after considering entire material on record. (vide: Jagdish Prasad Vs. State of U.P., 1990 (8) LCD 486; State of U.P. Vs. Shatrughan Lal, 1998 (6) SCC 651; Roop Singh Negi Vs. Punjab National Bank and others, (2009) 2 SCC 570.
13. Sustainability and maintainability of the orders passed by the authority concerned came up for consideration in very many cases and the observation of the Hon'ble Apex Court in the case of Competition Commission of India Vs. Steel Authority of India Ltd. & Anr., [JT 2010 (10) SC 26], are as under
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all courts and by virtue of judge- made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and therefore, proper reasoning is foundation of a just and fair decision."
In the case of S.N.Mukherjee Vs. Union of India, AIR 1990 SC 1984, the Hon'ble Apex Court was pleased to explain that reasons are necessary links between the facts and the findings recorded in the administrative orders, which visit a party with evil civil consequences. In absence of reasons, such an order cannot be permitted to stand. 16 O.A.No. 260/000674 of 2019
In the case of Raj Kishore Jha Vs. State of Bihar and others, (2003) 11 SCC 519, the Hon'ble Apex Court was pleased to hold that reasons are the heartbeat of every conclusion and without the same, it becomes lifeless.
In the case of Mc Dermott International Inc. Vs. Burn Standard Co. Ltd. & Ors., (2006) 11 SCC 181, the Hon'ble Apex Court referring to Law of Arbitration and Conciliation, 4th Edn., pp.855-56 in para 56 was pleased to hold that Reasons are the links between the materials on which certain conclusions are based and the actual conclusions.
The Apex Court in Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors., (2010) 9 SCC 496, held that the reasons must disclose how mind was applied to the subject-matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. It was further held that the reasons in such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two.
17 O.A.No. 260/000674 of 2019
14. Insofar as interference in the matter of disciplinary proceedings some of the decisions which are relevant for taking a just decision in the matter are referred herein below:
In the case of Allahabad Bank Vs. Krishna Narayan Tewari, (2017) 2 SCC 308, the Hon'ble Supreme Court has held as under:-
"7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the Disciplinary Authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the enquiry officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the Disciplinary Authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the Disciplinary Authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating 18 O.A.No. 260/000674 of 2019 the material on record, simply reproduced the findings of the Disciplinary Authority. All told, the enquiry officer, the Disciplinary Authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the Disciplinary Authority and the appellate authority."
The scope of judicial review with respect to the departmental proceedings is limited and Court can interfere in the matter of disciplinary proceedings if the disciplinary/enquiry proceedings were conducted in violation of manner prescribed and against Principle of Natural Justice and if the order of concerned authority is non speaking and unreasoned. This Court can interfere in the matter of disciplinary proceedings if the decision making process is in violation of Rules or against Principle of Natural Justice. The judicial review in the matter of departmental proceedings is permissible with respect to decision making process and not against the decision itself unless it is shown that the decision is without any evidence or suffers from malafide or malice or harsh or without jurisdiction. There is a catena of judgments of this Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of this Court on this topic viz. Nelson Motis Vs. Union of India [(1992) 4 SCC 711]"
19 O.A.No. 260/000674 of 2019
In Moni Shankar Vs. Union of India and Anr. [(2008) 3 SCC 484], this Court held:
"17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."
15. In view of the discussions made above, this Tribunal finds that the orders passed by the Disciplinary Authority, Appellate Authority and the Revisional Authority are not in accordance with the law and hence arbitrary and illegal. Accordingly, in the peculiar facts and circumstance, we are of the view of that the imposition of punishment by a cryptic order and in violation of rules and natural justice. Hence, the impugned orders under Annexure-A/10 dated 25.06.2018, Annexure-A/12 dt. 11.12.2018 and order under Annexure-A/14 dated 20 O.A.No. 260/000674 of 2019 03.11.2019 are hereby quashed. Consequently, the respondents are directed to restore the applicant to his original position after quashing of the impugned orders and to sanction/disburse the differential pay and other allowances as entitled to by him for the said period within a period of 90 (ninety) days from the date of receipt of a copy of this order.
16. The O.A. is accordingly allowed. Parties to bear their own costs.
(SWARUP KUMAR MISHRA) (DEVENDRA CHAUDHRY) Member (Judicial) Member (Admn.) RK/PS