Central Administrative Tribunal - Hyderabad
Y.Yohan vs The Assistant Divisional Mechanical ... on 30 December, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL: HYDERABAD BENCH:
HYDERABAD
ORIGINAL APPLICATION NO.717 OF 2006
DATE OF ORDER: 30th DECEMBER, 2008
BETWEEN:
Y.YOHAN,
S/o Issack,
Aged 54 years,
Ex.C&W Khalasi Helper,
D.No.215-34, Undi Road,
Bhimavram Town,
West Godavri District.
.. APPLICANT
AND
1. The Assistant Divisional Mechanical Engineer,
C&W, South Central Railway,
Vijayawada,
2. The Senior Divisional Mechanical Engineer,
South Central Railway,
Vijayawada,
3. The Additional Divisional Railway Manager,
South Central Railway,
Vijayawada,
4. The Chief Rolling Stock Engineer,
South Central Railway,
Rail Nilayam, Secunderabad.
RESPONDENTS
COUNSEL FOR THE APPLICANT: Shri G.V.Subba Rao, Advocate
COUNSEL FOR THE RESPONDENTS: Mrs.A.P.Lakshmi, SC for Rlys.
CORAM:
HON'BLE MRS. BHARATI RAY, MEMBER (JUDL.)
HON'BLE MR. HRIDAY NARAIN, MEMBER (ADMN.)
ORDER
(PER HON'BLE SHRI HRIDAY NARAIN, MEMBER (ADMN.) The present OA has been filed by the applicant with a prayer to call for the records pertaining to the Senior Divisional Mechanical Engineer Memo dated 29.4.2004, dismissing the applicant from service with effect from 10.5.2004 and the Additional Divisional Railway Manager, Vijayawada Memo dated 22.9.2004 modifying the penalty of removal from service to compulsory retirement and the Chief Rolling Stock Engineer, Secunderabad Order dated 18.11.2005 rejecting the review petition, and quash the same by declaring them as arbitrary, illegal and violative of Articles 311(2), 14, 16 and 21 of the Constitution of India and treat him as in continuous service with all consequential benefits such as arrears of salary and allowances etc.
2. The brief facts of the case, as stated by the applicant in the OA, are that the applicant was originally appointed as Gangman on 10.11.1978 and subsequently transferred to the C&W Department from the Engineering Department. He was originally appointed by the Divisional Engineer, South Central Railway, Vijayawada and promoted as Khalasi Helper. He was issued a major penalty charge sheet by the Assistant Divisional Mechanical Engineer, who is a Group-B officer and not the appointing authority of the applicant, alleging unauthorised absence for different spells of 81 days intermittently during the period from 4.7.2002 to 7.12.2002. After due inquiry, a penalty of dismissal was imposed by the Senior Divisional Mechanical Engineer. Aggrieved by the said punishment, the applicant preferred an appeal to the Additional Divisional Railway Manager who modified the penalty to that of compulsory retirement. The review application preferred to the Chief Rolling Staff Engineer, Secunderabad was rejected vide order dated 18.11.2005. Hence the present OA.
3. The following grounds are urged by the applicant:-
(i) The penalty of compulsory retirement from service is contrary to law and violative of Articles 311(2), 14, 16 and 21 of the Constitution of India and the prescribed procedure for imposing major penalty under Rule 9 of the D&A Rules has not been followed.
(ii) As the Assistant Divisional Mechanical Engineer is a Group/B officer and not the appointing authority of the applicant, the charge sheet, basing on which the order of dismissal was issued, was without jurisdiction.
(iii) The Inquiry Officer should be from any other department to which the applicant belongs to and he should be sufficiently senior in rank to the charged employee, as per Serial Circular 149/90 and the said fact was ignored by the disciplinary authority while appointing the Inquiry Officer, which is violative of Articles 14 and 16 of the Constitution of India.
(iv) The order of dismissal passed by the disciplinary authority and the order of the Additional Divisional Railway Manager modifying the penalty to that of compulsory retirement is also contrary to law declared and principles of natural justice as it was done basing on the disciplinary proceedings which were ab initio void. The punishment imposed by the Additional Divisional Railway Manager is not maintainable as the punishment imposed by him, quoting the periods of absence which were not the subject matter of the charge sheet, is contrary to principles of natural justice and is arbitrary and illegal.
(v) The revision petition has been rejected without considering the grounds raised by the applicant and has been disposed of without application of mind.
(vi) The Inquiry Officer being the immediate subordinate of the disciplinary authority conducted the inquiry without following the procedure and recorded a finding of guilt purely out of prejudice and inherent bias since he belongs to the same department of the charged employee who was directed by the disciplinary authority to some how hold the applicant guilty of the charge. The applicant states that he brought to the notice of the Inquiry Officer that he was conducting the inquiry in a biased manner violating the principles of natural justice and the Inquiry Officer failed in his duty to get clarification from the reviewing authority and persisted in conducting the inquiry without following the prescribed procedure under the D&A Rules.
(vii) Since the absence from duty was due to the circumstance beyond his control viz.; sickness, the applicant states that according to medical rules, short periods of sickness covered by Private Medical Certificate does not constitute unauthorised absence even though Railway Medical Rules are not followed to attract disciplinary proceedings, as decided by the Central Administrative Tribunal in the case of A.Prasada Rao v. Union of India reported at ATJ 1994 (2) 434. The applicant states that he had produced private medical certificates in respect of the alleged absence periods for the period from 19.8.2002 to 16.10.2002 issued by Dr.G.Jayaprakash Narayan, Civil Assistant Surgeon for the said period and the duty certificate issued by the Railway Doctor accepting the certificates produced from the Private Doctor should be treated as genuine and the period of sick absence has to be regularised as leave due to him and denial of salary for the said period is not sustainable, as held by the Luckow Bench of the Tribunal. The Principal Bench of the CAT in the case of of Sohan Lal v. Union of India reported in ATJ 2006 (2) 88 held that once a Government servant tenders medical certificate issued by an authorised medical authority, the quasi judicial authority on administrative side is not an expert body either to comment on the reliability or genuineness of the certificate. In cases of doubt, the competent authority can verify the genuineness of the medical certificate by sending the concerned person for medical examination before a Civil Surgeon for a second opinion and can comment on the genuineness of the certificate only thereafter. The applicant further states that the Railway Doctor issued the fit certificate without covering the absence period for which Private Medical Certificates were produced and the controlling officer has no other alternative except to treat the sick absence as leave due to the employee. In the absence of verification without following the prescribed procedure, the charge sheet issued alleging that the applicant had not followed the medical rules is not justified and the duty certificate has to be taken as genuine.
(viii) The applicant states that the Inquiry Officer started the inquiry without recording the evidence of the prosecution and without complying with the requests made by the applicant with regard to supply of muster rolls etc., and hence the finding that the applicant did not cooperate with the Inquiry Officer has no relevance. The charge of unauthorised absence has to be proved by the production of the relevant documents viz., the private medical certificates issued by the private doctors under whom the applicant underwent treatment. The charge sheet is vague and not specific as required under the rules. The list of documents must be given in the charge sheet and witnesses should be quoted by name and not by designation. The documents based on which a charge sheet was issued must be furnished. The said documents were not enclosed to the charge sheet. He further states that the Inquiry Officer cannot cross examine the charged employee or witnesses and that at every stage he protested against the charge sheet and the inquiry proceedings before the Inquiry officer and the Inquiry Officer without complying with his request proceeded with the inquiry. Para 4 of Rule 538 does not prohibit against a Railway employee undergoing private medical treatment. The applicant states that he complied with the above provisions of the rule. In fact, the Controlling Officer was informed in writing about his sickness and also produced the private medical certificates and duty certificates based on which he was taken to duty after the alleged absence. The applicant further states that during the inquiry, a witness who is not included in the charge sheet has been produced as a witness and under what authority he has been asked to appear is not spelt out.
4. The respondents have filed reply statement on 13.4.2007 stating that,
(i) The applicant while working as Carriage & Wagon Khalasi Helper/Narsapur, remained absent from duties for a total period of 81 days in different spells during the period 4.7.2002 to 7.12.2002 without prior permission or proper sanction of leave or observing the Railway Medical Attendance Rules. He was issued major penalty charge sheet vide memo dated 20.5.2003. After the due inquiry, Inquiry Officer has recorded his finding that the charges framed against the applicant are proved. The disciplinary authority remitted the case to the appointing authority for imposing the penalty as he was of the opinion that it was not within his competent to impose the penalty warranted in the case. Hence, the Sr. Divisional Mechanical Engineer, Vijayawada ((2nd respondent herein) acted as the disciplinary authority and imposed the penalty of dismissal from service with effect from 10.5.2004 under Rule 10(3) of Railway Servants (Discipline & Appeal) Rules, 1968. On appeal, the penalty of dismissal from service was modified to that of compulsory retirement with effect from 28.3.2005 by the appellate authority. Aggrieved by the said order, the applicant submitted revision petition dated 18.10.2004 to the Chief Rolling Stock Engineer, Secunderabad (4th respondent herein). However, the applicant vide his representation dated 18.10.2005 to the Divisional Railway Manager, Vijayawada sought permission to withdraw the revision petition and filed OA No.698/2005 alleging that the revising authority had not disposed of his representation dated 18.10.2004. The above said OA was disposed of on 6.9.2005 directing the revising authority to dispose of the revision petition by a reasoned and speaking order. Accordingly, the revising authority disposed of the revision petition vide memo dated 18.11.2005.
(ii) According to Rule 2(1)(C)(iii) of Railway Servants (Discipline & Appeal) Rules, 1968 an authority who is competent to impose any one of the major penalties can initiate disciplinary proceedings against the employee and he need not be equivalent to appointing authority. Therefore, initiating of major penalty disciplinary proceedings by the Assistant Divisional Mechanical Engineer, Carriage & Wagon, Vijayawada against the applicant is in accordance with the extant rules. Hence the appointment of the Inquiry Officer by the Assistant Divisional Mechanical Engineer, Carriage & Wagon, Vijayawada is in order.
(iii) As per Rule 10(3) of Railway Servants (Discipline & Appeal) Rules, 1968, where the disciplinary authority is of the opinion that the penalty warranted is such as is not within its competence, he shall forward the records of the inquiry to the appropriate disciplinary authority who shall act in the manner as provided in these rules. As such, the applicant's case was remitted to the Senior Divisional Mechanical Engineer, Vijayawada by the Additional Divisional Mechanical Engineer, Vijayawada, the disciplinary authority to impose a penalty which is not within his competence. The Senior Divisional Mechanical Engineer, Vijayawada, after careful consideration of the case, had imposed the penalty of dismissal from service with effect from 10.5.2004 vide memo dated 29.4.2004.
(iv) The instructions communicated under the Establishment Serial Circular NO.149/90 referred to by the applicant are with regard to nomination of the Inquiry Officer in disciplinary cases arising out of vigilance checks but not to all departmental disciplinary cases. Therefore, the nomination of Shri P.Yesu Babu, Senior Section Engineer, Carriage & Wagon, GFCL, Kakinada, who is sufficiently senior to the applicant is competent to be nominated in all respects as the Inquiry Officer. Even though the applicant had questioned the competency of the Inquiry Officer, the inquiry was conducted by the Inquiry Officer as his nomination is not in violation of Rules/extant instructions. As per the instructions under the Establishment Serial Circular NO.107/71, the inquiry should be conducted by an officer who is sufficiently senior to the employee, whose conduct is being inquired into.
(v) The Inquiry Officer had conducted the inquiry in accordance with Rule 9 of Railway Servants (Discipline and Appeal) Rules, 1968. The applicant had not given any representation requesting for change of the Inquiry Officer on the grounds of bias with reasons. Therefore, referring the matter to the Revising authority to examine the grounds of bias does not arise.
(vi) It is further stated that the contention of the applicant that principles of natural justice are violated is not correct since he was given every opportunity to defend his case. The various spells of unauthorised absence of the applicant clearly show that he is a habitual absentee and he did neither inform about his whereabouts to his immediate Supervisor/Controlling Officer nor taken leave. He remained unauthorisedly absent form duties without proper sanction of leave or observing Railway Medical Attendance Rules which attracts disciplinary proceedings under Railway Service (Conduct) Rules, 1966 by issuing major penalty charge sheet. Accordingly, disciplinary proceedings were initiated against the applicant.
(vii) Even though a Railway Health Unit is very much available at Bhimavaram, the applicant chose to avail private medical treatment in violation of Railway Medical Attendance Rules and the private medical certificate produced by him was not covered by the Railway Medical Authorities. Rule 538 of Indian Railway Medical Manual stipulates that when a Railway employee who is residing within the jurisdiction of a Railway Doctor, is unable to attend duty by reason of sickness, he must produce, within 48 hours, a sick certificate from the competent Railway Doctor in the prescribed form. The applicant did neither comply with the said Rules nor adduced any evidence of permission to abstain from duty. If the applicant had taken treatment other than from Railway Hospital, nothing would have prevented him from informing the same either to his immediate Supervisor/Controlling Officer or to the nearest Railway Medical Authority.
(viii) There was no occasion to question the genuineness of the private medical certificate submitted by the applicant since the same was not covered by the authorised medical attendant ie.., Railway Medical Authority. The respondents state that the since the applicant was not cooperating in the inquiry, the Inquiry Officer concluded the inquiry basing on the records and deposition of the muster dealing clerk of the Depot and submitted the inquiry report to the disciplinary authority. However, the disciplinary authority after going through the report, advised the Inquiry Officer to attend to the objections of the applicant by providing the original muster and by examining the listed witness Shri D.Sudhakar Rao, Senior Section Engineer, C&W, Narsapur. Hence, the inquiry was again conducted on 20.1.2004 and the applicant has been permitted to peruse the original muster and cross examine Shri D.Sudhakar Rao, Senior Section Engineer, C&W, Narsapur. But the applicant refused and raised objections about the inquiry proceedings vide representation dated 18.10.2004.
(ix) The applicant had clearly stated in reply to Q.Nos.5 and 8 on 24.7.2003 during the preliminary inquiry that he had received all the documents. Hence, the contention of the applicant to the contra is not correct.
(x) As per Rule 3(1)(ii) of Railway Service (Conduct) Rules, 1966, every Railway servant shall maintain devotion to duty. Absconding from duty without intimation to the administration, remaining absent unauthorisedly tantamount to violation of the above rules and shows his irresponsibility/gross negligence. Therefore, issue of major penalty charge memo for his unauthorised absence for a total of 81 days in different spells is in accordance with the extant rules. No charge on the question of integrity is framed against the applicant in the charge memo. Since the penalty of dismissal has been modified to that of compulsory retirement by the appellate authority and confirmed by the revising authority, the applicant is entitled for service benefits under the modified penalty and can have no grouse at the orders passed by the revising authority.
5. The applicant has filed rejoinder on 22.2.2008 reiterating the submissions made in the OA. It is stated that the Senior Divisional Personnel Officer, who filed the reply is not one of the respondents cited in the OA and hence he is in no way concerned with the issue of the charge sheet, imposing penalty and the reply affidavit has to be rejected on this ground itself. It is further stated that the medical certificates issued by the private doctor and the duty certificates issued by the Railway doctor have not been produced at the inquiry and these facts have been suppressed by the respondents. The applicant states that this is not a vigilance case and hence sub para of Rule 149/90 applies and in the case of a Group-C employee the Inquiry Officer should be one from any other department other than the charged employee belongs and this has been violated. Therefore, the initiation of the Inquiry proceedings are not in order because the Senior Section Engineer belongs to the same Department. The applicant states that he had informed the controlling officer about his sickness and the statement made in reply by the respondents is not correct. Since there was no inquiry conducted by the competent authority regarding the genuineness of the medical certificates produced by the applicant, the applicant states that he has to be paid the wages for the sick periods as held by the Courts.
6. The learned counsels for the applicant as well as the respondents supported their respective pleadings.
7. We have carefully considered the arguments on both sides and have gone through the materials on record. In the first place, it is to be noted that the applicant's counsel could not produce any concrete proof regarding the applicant's claim that the higher authorities were informed of his sickness and his proposed absence from duty. Even the nature of sickness could not be disclosed by the learned counsel for the applicant. The learned counsel for the applicant could also not produce medical certificates issued by the private doctor. The objection raised regarding the issue of the charge sheet is also without any basis because the officer who issued the charge sheet was competent to impose major penalty on the applicant and hence we hold that the charge sheet was issued by the competent authority. Similarly, we do not find any irregularity either in the appointment of the Inquiry Officer or in the proceedings of the Inquiry Officer. The applicant has not been able to prove any violation of principles of natural justice on the part of the Inquiry Officer. The disciplinary authority who imposed the penalty on the applicant was competent to impose the penalty in question and we do not find any infirmity in the disciplinary proceedings so as to warrant our intervention. In fact, the appellate authority has already reduced the punishment of the applicant to that of compulsory retirement, We, therefore, hold that the relief prayed for by the applicant cannot be granted.
8. The OA is accordingly dismissed with no order as to costs.
(HRIDAY NARAIN) (BHARATI RAY) MEMBER (ADMN.) MEMBER (JUDL.)