Central Administrative Tribunal - Hyderabad
K. Srinivasa Murthy vs Sr. Divisional Commercial Manager And ... on 26 September, 2002
Equivalent citations: 2003(2)SLJ144(CAT)
ORDER
K.R. Prasad Rao, J. (Vice Chairman)
1. The applicant in the present application sought for a relief of setting aside the order of removal passed by the Senior Divisional Commercial Manager, Hubli bearing No. H/P. 27/III/95/1297 dated 29.6.1999, which is confirmed by the appellate authority by order No. H/P. 86/III/99/KSM dated 12.1.2001 rejecting the appeal dated 23.8.1999 filed by the applicant by declaring the said orders as arbitrary, illegal and unconstitutional and violative of Articles 311(1), 311(2), 14, 16, and 21 of the Constitution of India and to direct the respondents to reinstate the applicant into service treating him as in continuous service from the date of removal with all consequential benefits, such as, arrears of salary, allowances, promotions from the date when his juniors were promoted with all monetary benefits.
2. The applicant while working as Enquiry-cum-Reservation Clerk was served with a Charge-memoalleging that he remained absent unauthorisedly from 1.6.1995 to 17.12.1995 without prior sanction of leave from the competent authority on production of sick certificate issued by the Railway medical authorities and thereby he contravened the Rules 3(i) and (ii) of the Railway Services (Conduct) Rules, 1966.
3. One Sri A.D. Tripathi, C.I. Miraj was appointed as Inquiry Officer by the Senior Divisional Commercial Manager, Hubli. After conducting the inquiry, he submitted his report to the Disciplinary Authority stating that the charge has not been established against the applicant. But the Disciplinary Authority remitted back the matter to the Inquiry Officer directing him to frame the charge amending the period of unauthorised absence from 2.6.1995 to 1.12.1995 and hold a fresh inquiry. Accordingly the Inquiry Officer has amended the charge and conducted a fresh inquiry and submitted his report recording his finding that the charge has been proved against the applicant. Accepting the said finding, the Disciplinary Authority, namely, Senior Divisional Commercial Manager, Hubli imposed a penalty of removal from service on the applicant by order dated 29.6.1999. The applicant filed the present application challenging the said order of the Disciplinary Authority and also submitted an appeal to the Appellate Authority. During the pendency of this proceeding, the Appellate Authority rejected the appeal filed by the applicant by his order dated 12.1.2001. The applicant, therefore, filed M.A. No. 235/2001 for amendment of the prayer challenging the order of the Appellate Authority and the said M.A. has been allowed and he was permitted to seek the additional relief by way of amending the prayer. The applicant thus challenges the above said order of the Appellate Authority also in the present application.
4. The applicant has urged several grounds in the present application in support of his contention that the impugned orders passed by the Disciplinary and Appellate Authorities are not supported by the evidence on record and the entire inquiry was conducted in violation of the rules and principles of natural justice. His main contention is that the Disciplinary Authority has acted without jurisdiction in remitting the matter back to the Inquiry Officer for holding a fresh inquiry, without recording any reasons for disagreeing with the findings recorded by the Inquiry Officer that the charge has not been proved and without supply of a copy of the fresh Charge-memo, the Inquiry Officer conducted the inquiry and the whole procedure adopted by the above said authorities is highly illegal and in violation of the principles of natural justice and the relevant rules for conducting the departmental inquiries. In other words, the submission of the applicant is that the subsequent finding recorded by the Inquiry Officer stating that the charge has been proved against him is not based on any evidence and the subsequent report of the Inquiry Officer is vitiated by the illegalities committed in conducting the departmental inquiries and the impugned orders passed by the Disciplinary Authority as well as the Appellate Authority are liable to be set aside on the ground that they are based on 'no evidence.'
5. The applicant has also contended that the impugned order of removal is not passed by the competent authority and thus the order of removal is also a nullity and without jurisdiction. The applicant alleged that he was appointed first by order dated 27.6.1983 issued by the General Manager's office. Secunderabad and therefore, he can only be removed by the appointing authority or an authority of equal rank under the schedule of powers. Since the Senior Divisional Commercial Manager is not the competent authority under the rules to remove him from the service, the impugned order of removal is without jurisdiction and liable to be set aside on the said ground alone.
6. The respondents filed their reply contending that consequent upon the transfer order issued to the applicant transferring him to Hubli and directing him to report to the Controlling Officer--Senior Divisional Commercial Manager, Hubli, the applicant got himself relieved on 1.6.2000, and thereafter without reporting for duty at Hubli, he remained absent unauthorisedly from 2.6.1995 to 17.12.1995. The official had produced a medical certificate issued by the private Doctor. But the applicant has not obtained prior permission of the Controlling authority before availing the sick leave for the said period and has not obtained the sick certificate from the Railway Hospital. He produced a Fitness Certificate from the doctor of the Railway Hospital dated 6.12.1995 wherein it is clearly mentioned that the PMC from 2.6.1995 to 1.12.1995 is not covered. The competent authority therefore did not accept the private medical certificate produced by the applicant and as such the absence for the above said period was treated as unauthorised. Accordingly disciplinary action was initiated for major penalty for unauthorised absence from 1.6.1995 to 17.12.1995 vide Charge-memo (SF-5) dated 3.1.1996 issued to him. After the Inquiry Officer submitted his report, the Disciplinary Authority on perusal of the same found that the report was not based on evidence and found it necessary to remit the file back to the Inquiry Officer to conduct further inquiry by amending the charge specifying the period of unauthorised absence of the applicant from 2.6.1995 to 1.12.1995, as provided under Rule 10(2) of the Railway Servants (Discipline and Appeal) Rules, 1968. In response to the same, the Inquiry Officer conducted further inquiry on the amended charge and the applicant has participated in the said inquiry without raising any objection. The applicant has expressed his satisfaction on overall conduct of the inquiry and the said statement of his has been reflected in reply to the Q. No. 16 put to him in the inquiry. The report submitted by the Inquiry Officer after completion of the inquiry holding that the charge has been established has been accepted by the Disciplinary Authority and the punishment of removal from service was imposed on the applicant by the impugned order passed by him. As the reinquiry held is in continuity of earlier inquiry, the question of their nomination of Inquiry Officer or issue of fresh Charge-memo to the applicant did not arise. The finding recorded by the Inquiry Officer is based on the evidence adduced during the inquiry. The grant of leave on the basis of the private medical sick certificate is within the discretion of the competent authority and the competent authority is entitled to reject the private medical certificate if he is satisfied that it is not a genuine one. Definition of "appointing authority" given under Rule 1(a) (iii) of the Railway Servants (Discipline and Appeal) Rules, 1968 in relation to a railway employee means, an authority which appointed the railway servant to such service, grade or post as the case may be. The charged official has been appointed to the Railway service by the Assistant Personnel Officer who signed the appointment letter. At the time of finalisation of the above case, the applicant was in the pay grade of Rs. 3200-4900/- and as per the D and A Rules, an Assistant Commercial Manager would be competent to inflict the penalty of removal from service on the applicant. In the instant case, the Senior Divisional Commercial Manager who is higher in rank has powers to inflict the punishment of removal from service on the applicant. The respondents, therefore, contended that the impugned order of removal has been passed by the competent authority.
7. We have heard the arguments advanced by the learned Counsel appearing on both sides.
8. On the basis of the rival contentions urged by the learned Counsel appearing on both sides, two main questions arise for our consideration in the present application which are-
(1) Whether the impugned order of removal passed by the Disciplinary Authority dated 29.6.1999 is based on "no evidence" as claimed by the applicant for any of the grounds urged by him ?
(2) Whether the impugned order of removal has been passed by the Competent Authority ?
9. We have noticed one significant aspect in the present application, namely, the fact that the Inquiry Officer who conducted the inquiry himself has submitted his first report after holding inquiry recording a finding that the charge is not proved against the applicant. The same Inquiry Officer has recorded a contrary finding in the second report submitted by him to the Disciplinary Authority on the basis of the sale evidence adduced in the inquiry that the charge has been proved. This fact is evident from the copy of the inquiry report filed in this case which is Annexure-4. The said finding recorded by the Inquiry Officer is extracted hereunder:
"From the evidence recorded in the proceedings and the documents marked as an exhibit, we can easily arrive at the conclusion that the charged employee was not unauthorisedly absent for the entire period from 1.6.1995 to 17.12.1995 as charged."
It is further mentioned by the Inquiry Officer in the same para that-
"However, in view of the fact that the case was remitted back to I.O., to enquiry into the absence period from 2.6.1995 to 1.12.1995. The charge was accordingly modified and the inquiry was conducted."
The Inquiry Officer recorded a contrary finding after holding the inquiry that-
"The amended charge that the applicant was unauthorisedly absent from 2.6.1995 to 1.12.1995 stands proved."
10. It is significant to note that the period from 2.6.1995 to 1.12.1995 is covered in the first charge-memo supplied to the applicant mentioning the period of his absence as from 1.6.1995 to 17.12.1995. It is also relevant to note that both the above findings were recorded by the same Inquiry Officer on the basis of the same evidence adduced before him during the inquiry. It is further significant to note that the Disciplinary Authority has not recorded any reasons why he did not agree with the earlier findings recorded by the Inquiry Officer before he decided to remit the matter to the Inquiry Officer to conduct further inquiry on the amended charge, though the period mentioned in the amended charge is covered by the period mentioned in the earlier charge-memo issued to the applicant.
11. Further we are unable to understand as to why there was any need to amend the charge and direct the Inquiry Officer to conduct a fresh inquiry when the period mentioned in the amended charge has in fact been covered by the period mentioned in the first charge-memo supplied to the applicant on which basis of which earlier enquiry was conducted. It is no doubt pointed out by the learned Counsel for the respondents that Rule 10(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 empowers the Disciplinary Authority to remit the case to the Inquiring Authority for further inquiry and report if the said authority comes to the conclusion that the finding of the Inquiry Officer was not based on any evidence. But in the instant case, the Disciplinary Authority has not recorded any disagreement with reasons to the effect that the earlier finding of the Inquiry Officer that the charge has not been proved is not based on the evidence placed on record. On the other hand, according to the facts mentioned by the Inquiry Officer in his report (Annexurc-4), the case was remitted back to him only to enquire into the absence period from 2.6.1995 to 1.12.1995 by amending the charge. Apart from this, even according to the provisions of Rule 10(2) it is mandatory on the part of the Disciplinary Authority to record the reasons in writing before remitting the case back to the Inquiring authority for further inquiry and report. Since in the instant case, no such reasons are recorded by the Disciplinary Authority before remitting the case to the Inquiring authority, we are unable to hold that the procedure adopted by the above said authorities is in accordance with the rules.
12. Rule 10(3) of the Railway Servants (D&A) Rules, 1968 further makes it obligatory on the part of the Disciplinary Authority to record its reasons if he disagrees with the finding of the Inquiry Officer for such disagreement and record its own finding on such charge if the evidence on record is sufficient for the purpose. In the instant case, it is not the case of the respondents that the Disciplinary Authority has disagreed with the earlier findings recorded by the Inquiring Authority by recording reasons before remitting the case to the Inquiring Authority for holding further inquiry nor is it their case that the evidence adduced in the inquiry earlier was found to be insufficient on the article of charge framed. On the other hand, it is their case that the matter has been remitted back to the Inquiring Authority for conducting further inquiry for the purpose of amending the charge showing the correct period of absence from duty of the applicant from 2.6.1995 to 1.12.1995. Since it is found that the above said period has been covered in the earlier charge framed against the applicant, we are not satisfied that there was any real need for remitting the file back to the Inquiring Authority for conducting further inquiry by the Disciplinary Authority. We are, therefore, find merit in the contention of the applicant that because the first finding recorded by the Inquiry Officer is in his favour, the matter has been purposely remitted back to the Inquiring Authority instructing him to record an adverse finding against the charged employee under the pretext of amending the charge for holding further inquiry. We are also satisfied that the procedure followed by the above authorities in conducting the inquiry, against the applicant is not in accordance with the above rules.
13. Apart from the above fact, the learned Counsel for the applicant has relied upon Para-4 of Rule 538 of the Indian Railway Medical Manual, Vol.-I in support of his contention that the applicant has followed the procedure prescribed under the said rule before availing the sick leave from 2.6.1995 to 1.12.1995 and therefore, the finding recorded by the Inquiring Authority that he was unauthorisedly absent during the above said period is based on no evidence and the said finding is perverse and no reasonable man would come to such a conclusion on the basis of the material placed on record. We find substance in this contention. We find it necessary to extract the provisions of Para-4 Rule 538 of the Indian Railway Medical Manual, Vol. I as below:
(4) When a Railway employee residing outside the jurisdiction of a Railway doctor requires leave on medical certificate, he should submit, within 48 hours, a sick certificate from a registered medical practitioner. Such certificate should be as nearly as possible, in the prescribed form as given in the Annexure-XI and should state the nature of the illness and the period for which the Railway employee is likely to be unable to perform his duties. The competent authority may, at its discretion accept the certificate, or in cases where it has reasons to doubt the bona fides, refer the case to the Authorised Medical Officer for advice or investigation. The medical certificates from the Registered Private Practitioners produced by the employees in support of their applications for leave may be rejected by the competent authority only after a Railway Medical Officer has conducted the necessary verifications and on the basis of the advice tendered by him after such verifications. However, where the Railway Medical Officer could not be deputed for such verifications, the certificate from the registered private medical practitioner may be accepted straightaway.
Note : (i) Ordinarily, the jurisdiction of a Railway doctor will be taken to cover Railway employees residing within a radius of 2.5 K.M. of Railway hospital or health unit to which the doctor is attached, and within a radius of one kilometer of a Railway Station of the doctor's line jurisdiction.
(ii) To prevent misuse of private medical certificates, the Divisional Railway Managers may withdraw the privilege as given in the concluding portion of the above sub-paragraph by special notification to the staff for special periods. In respect of workshop employees, the power to withdraw the privilege of acceptance of certificates from registered private practitioners shall be exercised by the administrative officers in J.A.G. and S.A. Grades.
14. It is the case of the applicant that he is not residing in any railway quarters and that his place of residence is 14 Kms. away from the railway hospital and therefore, according to the railway medical rules, he is entitled to undergo medical treatment under a private doctor subject to the condition that before availing leave he has to inform his Controlling Officer within 24 hours of his falling sick. It is his further case that he has also complied with the said condition and to prove this fact, he has produced a copy of the letter addressed by the Station Superintendent, Hyderabad to the Divisional Railway Manager, Hubli which is Annexure 7 to the O. A. This letter dated 3.1.1997 shows that the applicant has reported PMC on 2.6.1995 and intimated to the Office of the Station Superintendent (Gaz), S.C. Railway, Hyderabad within 24 hours and submitted the certificate in time. He has also produced the medical certificate obtained by him, a copy of which is at Annexure-6 to the OA, issued by Dr. K. Satyanarayana, a Private Medical Practitioner of Golconda Civil Hospital, Hyderabad, A.P. In this certificate, the said doctor certified that the applicant was under his treatment for AC Asthmatic Bronchitis check and AC Poly arthritis from 2.6.1995 to 1.12.1995 and that he was fit to resume duty from 2.12.1995 onwards. The applicant has also produced the fitness certificate from the Railway doctor, a copy of which is annexed to the O.A., as Annexurc-5 in support of his contention that he reported for duty with the private medical certificate and he was directed to the Railway hospital by the Chief Reservation Inspector for obtaining duty fit certificate and accordingly he appeared before the Railway Medical Officer with the private medical certificate issued by the Civil Surgeon, Hyderabad and that the Assistant Medical Officer, Hyderabad issued him a duty fit certificate No. 478414 dated 6.12.1995. The applicant has also stated all these facts in his examination during the inquiry and has also produced a copy of the Attendance Register to show that he performed his duty on 1.6.1995 and that he has signed in the Attendance Register from 2.12.1995 onwards upto 17.12.1995, It is further explaining by him in the same examination during the inquiry in the answer to the Q.No. 10 that his wife went to CRI, Hyderabad and informed the CRI Hyderabad about his illness and thereafter the CRI directed her to the SS, Hyderabad and she has handed over the letter of the Private doctor explaining his sickness and private treatment and the SS, Hyderabad acknowledged the receipt of the said letter a copy of which is handed over to the Inquiry Officer by him during inquiry. He has further explained that his absence during the period from 2.6.1995 to 1.12.1995 is on account of the fact that he was sick and that he was under the treatment of a private doctor, who is his family doctor. He further explained in the same statement that the distance of Railway hospital from his house is 14 Kms. and the Clinic of the private doctor is very close to his house and therefore he preferred to take treatment under the said doctor.
15. It is pointed out by the learned Counsel for the applicant that the applicant has complied with the requirements of the above said rules before availing the sick leave and on the basis of the documentary evidence produced by him and statement given by him (applicant), the Inquiry Officer has rightly recorded his finding in the earlier report submitted by him to the Disciplinary Authority that the charge has not been established and that the applicant was not unauthorisedly absent during the period from 1.6.1995 to 17.12.1995.
16. Having regard to the above material placed on record during inquiry by the applicant, we are satisfied that the earlier finding recorded by the Inquiry Officer after conducting inquiry that the charge has not been established against the applicant is based on correct appreciation of evidence placed on record. Though it is vehemently contended by the learned Counsel for the respondents that the medical certificate produced from a private doctor is not genuine and that the applicant did not really fall sick, we are unable to accept the said contention since it is not supported by any material placed on record to show that the applicant was hale and healthy during the said period and that he avoided to attend duty purposely since he was transferred to Hubli. In fact, the entire burden of proof is on the applicant to establish that he really fell sick during the above said period and that he was under the medical treatment and therefore, his absence was not unauthorised. We find that the applicant has discharged the said burden of proof by placing all the above material on record during the inquiry, which has been rightly accepted by the Inquiring Authority in the first instance when he submitted his earlier report to the Disciplinary Authority. It is submitted by the learned Counsel for the respondents that the residential house of the applicant which situated at Malkajgiri is hardly at a distance of One Km. from the Railway Hospital at Lallaguda and that his house is not 2.5 Kms away from the Railway hospital as claimed by him. He produced a map of the survey of India showing various locations in the Hyderabad-Secunderabad Twin cities. But on the basis of the said map it is not possible for us to estimate the distance of various places and it would be hazardous to make any guess work in this regard. Suffice it to say that no such evidence has been adduced in support of this contention by the respondents during the inquiry held and in the absence of any such evidence, it is not possible for us to accept the above submission of the learned Counsel for the respondents. On the contrary, the applicant himself has given the distance of the Railway hospital from his house as 14 Kms. In the statement given by him during the inquiry which fact remained uncontroverted. The applicant in his answer to Q.No. 3 in the inquiry has stated that his sickness was informed to the CRI, Hyderabad by his wife over phone and she handed over the letter of the private doctor. It is further significant to note that in the inquiry report it is mentioned that in the further inquiry list of witness No. 1 S.S. Mirza has confirmed his evidence which he has already deposed and categorically stated that he was not aware of the absence period of the applicant prior to 19.12.1995. Thus it is clear that no new material has come during further inquiry conducted by the inquiring authority after the matter was remitted back to him for the purpose of holding further inquiry on amending the charge. So it is not known on what basis the Inquiring Authority could give a totally different finding in the second report submitted by him that the charge has been established, when on the basis of the same evidence, he recorded a finding earlier that the charge has not been established.
17. On a careful scrutiny of the entire material placed on record during inquiry, we have no hesitation to hold that the earlier finding recorded by the Inquiry Officer that the charge has not been established, is based on correct appreciation of the evidence placed on record and the second finding recorded by him in the final report submitted to the Disciplinary authority that the charge has been proved is based on "no evidence".
18. The learned Counsel for the applicant has no doubt pointed out several irregularities committed during the inquiry, such as, non-supply of the charge-memo in respect of which inquiry was conducted for the second time, non-supply of copies of depositions, not informing him about the nomination of the Inquiry Officer for the purpose of conducting further inquiry, non-furnishing of details of the charge etc. We do not find it necessary to go into the details of the above aspects when we found that the finding recorded by the Inquiring Authority in the second inquiry report is not based on material evidence placed on record.
19. The learned Counsel for the applicant has relied upon a decision of the Ernakulam Bench of the C.A.T. in P. Komla v. Union of India, 1994( I) SLR 500, wherein it was held that the Disciplinary authority has no powers to order de novo enquiry. It is only the appellate authority who has got powers to order a de novo enquiry under Rule 9 of the D & A Rules. In the instant case, since it is found that only further inquiry is ordered on the basis of an amended charge, it cannot be said that any de novo inquiry has been ordered by the disciplinary authority. So the above decision, in our view, is not applicable to the facts of the present case.
The learned Counsel for the applicant has also relied upon the decision of Ahmedabad Bench of the CAT in the case C.K. Makwana v. Paschim Railway Karmachari Parishad, (1991)17 ATC 38=1992( 1) SLJ 71 (CAT), wherein it was held that "the fitness certificate issued by the Railway doctor on the basis of the medical certificate of private doctor amounted to believing the case to be genuine. Hence rejection of sick leave and wages for sick leave, held erroneous."
He also relied on a decision of the Hyderabad Bench of the C.A.T. in the case A Prasad Rao v. G.M.S.C. Rly. Secunderabad and Ors., 1994(2) ATJ 434, wherein it was held that "mere absence from duty not authorised by grant of leave cannot be treated as a misconduct so as to attract disciplinary proceedings removal order set aside."
The learned Counsel for the applicant also relied upon another decision of the Ahmedabad Bench of the CAT in P.M. Patel v. Union of India, 2002( 1) ATJ 310, wherein it was held that "the applicant cannot be treated as guilty of the charge of unauthorised absence from duty and thereby the impugned order or removal from service had been quashed and reinstatement with full back wages ordered since the applicant has submitted the medical certificate for his absence from duty arid the period of absence was regularised by treating as leave without pay."
20. The above decisions are applicable to the facts of the present case on all fours and we find that the Disciplinary and Appellate authorities were not justified in passing the impugned orders of removal from service of the applicant, particularly when the charge itself has not been established on the basis of the evidence placed on record during the inquiry.
21. As rightly pointed out by the learned Counsel for the applicant that if the authorities have doubted the genuineness of the medical certificate produced by the applicant issued by a private doctor, they should have got it verified by the Railway doctor as provided under Para-4 of the Rule 538 of the Indian Railway Medical Manual Volume-I, and without subjecting the said certificate produced by the applicant to verification by the Railway Medical Officer, the authorities were not justified in rejecting that medical certificate doubting the genuineness of the certificate given by the private medical practitioner.
22. For the above reasons, we find that the applicant has already established that the second final inquiry report submitted by the inquiry authority is based on 'no evidence' and that the impugned orders passed by the Disciplinary and Appellate Authorities are liable to be set aside for the said reasons.
23. It is pointed out by the learned Counsel for the respondents that the appointment order issued to the applicant has been signed by the Assistant Personnel Officer as seen from his personal file and at the time of finalisation of the inquiry, the applicant was in the pay grade of Rs. 3200-4900/- and as per the D&A Rules Schedule of powers, the Assistant Commercial Manager would be competent authority to inflict the punishment of removal from service. He has shown the Schedule of Powers in support of this contention. It is also pointed out by him that in the instant case, Senior Divisional Commercial Manager, who is higher in rank has exercised the D & A Rules powers and passed the impugned order of removal from service against the applicant. Having regard to these facts, we find that there is no merit in the contention of the applicant that the Disciplinary Authority is not the competent authority to pass the impugned order of removal from service against the applicant.
24. In view of our findings on Point No. 1, this application deserves to be allowed and accordingly the O.A. is allowed. The impugned orders of removal from service passed by the Disciplinary and the Appellate Authorities are hereby set aside. We direct the respondents to reinstate the applicant into service treating him as in continuous service from the date of removal with all consequential benefits, such as, arrears of salary, allowances, and promotion from the date his juniors were promoted with all monetary benefits. Two months time is granted from the date of receipt of the certified copy of this order to comply with this order.