Central Administrative Tribunal - Cuttack
T Barik vs M/O Railways on 21 October, 2024
1 O.A.No. 260/00584 of 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00584 of 2016
Reserved on 10.10.2024 Pronounced on 21.10.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Trinath Barik, aged about 45 years, S/o Late Kamraj
Barik, of Vill. Sirbhattapada, PO. Titilagarh, Dist.
Bolangir-767033.
......Applicant
VERSUS
1. Union of India, represented through the General
Manager, East Coast Railway, Rail Vihar, At/PO.
Chandrasekharpur, Bhubaneswar, Dist. Khurda
2. The Divisional Railway Manager, East Coast Railway,
Sambalpur Railway Division, At/PO: Khetarajpur,
Dist.Sambalpur.
3. The Additional Divisional Railway Manager, East Coast
Railway, Sambalpur Railway Division, At/PO:
Khetarajpur, Dist. Sambalpur.
4. The Senior Divisional Signal Telecom Engineer, East
Coast Railway, Sambalpur Railway Division, At/PO:
Khetarajpur, Dist. Sambalpur.
5. The Asst. Signal and Telecom Engineer, East Coast
Railway, Titilagarh, At/PO: Titilagarh, Dist. Bolangir.
2 O.A.No. 260/00584 of 2016
6. Mr. Ambika Prashad, Sr.Section Engineer (Signal), East
Coast Railway, Titilagarh, At/PO:Titilagarh, Dist.
Bolangir.
......Respondents
For the applicant : Mr. B.S.Tripathy, Counsel
For the respondents: Mr. S.Behera, Counsel
O R D E R
SUDHI RANJAN MISHRA, MEMBER (J):
Heard. Perused the records.
2. It is the case of the applicant that he while working as Signal Maintainer-III in Arand under the Sr. Section Engineer (Signal) E.Co.Rly, Kantabanjhi was served memorandum of charge sheet dated 25.06.2012 under Rule 9 of the RS (D&A) Rules, 1965 calling upon him to show cause, alleging his absence from duty w.e.f. 01.01.2011 to 10.06.2012 (116 days) unauthorizedly that affected signal work in ARN Station and KBJ Station badly, which amounted to unbecoming on the part of the govt. servant violating Rule 3-1(ii) of Railway Servants (Conduct) Rules, 1966. The Inquiry Office (IO) although held three sittings, in the third sitting held on 03.10.2012 the applicant appeared and he was put certain questions, which was answered by him. In the inquiry, the applicant fairly submitted that his absence was due to his 3 O.A.No. 260/00584 of 2016 sickness yet the IO held the charge as proved vide report dated 06.10.2012. Whereafter, the Disciplinary Authority (DA) imposed the order of punishment of removal from service vide order dated 12.12.2012 against which, he preferred appeal on 28.01.2013 but the Appellate Authority (AA) confirmed the order of the DA vide order dated 20.02.2013. Thereafter, he preferred revision on 26.03.2013 but, it is stated that the Revisional Authority (RA) without considering his case sympathetically rejected his revision vide order dated 07.05.2013. Thereafter, the applicant preferred a mercy petition on 26.11.2013, which was rejected on the ground that since revision petition has already been rejected, question of consideration of mercy appeal does not arise and the said decision was communicated to him on 05.02.2014 whereupon, he preferred another mercy appeal on 07.02.2014 requesting to reconsider imposition of lesser punishment, which was also rejected on 16.05.2014 stating inter alia that there is no such provision for entertaining second mercy appeal. According to Ld. Counsel for the applicant, the order of punishment and rejection of his appeal, revision and mercy appeal is bad in law since no consideration was given to the fact that the absence of the applicant was on account 4 O.A.No. 260/00584 of 2016 of his illness. It is submitted that the AA rejected the appeal by holding the applicant remained absent for a period of 1068 days from the entire period of service, which was not the part of the charge. Lastly, it is submitted that he had two school going children having no other source of income and, therefore, the removal from service will have cascading effect to maintain the livelihood for the family. Further, he submitted that imposition of punishment of removal for such 116 days absence is too disproportionate and, therefore, he has filed this OA on 01.08.2016 accompanying with MA 470/2016 to condone the delay in filing this OA.
3. According to the applicant, after rejection of his mercy appeal on 16.05.2014, he lost his mental balance and, with much difficulty, he came to his lawyer and filed this OA praying for the following relief:
"(a) To pass appropriate orders quashing the impugned order dtd. 12.12.2012 in annexure-A/3 as well as the orders passed by the Appellate Authority and Revisionary Authority under annexure-A/4 and A/7 respectively;
(b) To pas appropriate orders quashing the orders dtd. 5.2.14 under annexure-A/9 and 16.5.14 under annexure-A/11; and
(c) To pass such further order........................"
4. Respondents filed counter objecting the very maintainability of 5 O.A.No. 260/00584 of 2016 this OA on the face of delay and laches/limitation and also sustainability on the merit. The points raised in support of their stand in the counter have been emphasized by the Ld. Counsel for the respondents in course of hearing that the applicant was a habitual absentee from his duty. He was once upon a time was removed from service for his unauthorized absence from duty on 19.08.2008 but, considering his grievance, the railway authority sympathetically taken him back to service. The applicant was working as Signal Maintainer- II/Arand under the Sr. Section Engineer (Signal) E.Co.Rly, Kantabanjhi in Signal and Telecom Department of E.Co.Rly. of Sambalpur Division. His absence seriously hampered/affected the signal maintenance work for train operation between Arand-Bhimkoj & Arand-Mahasamund stations. He was, therefore, charge sheeted. The IO held the inquiry on 10.09.2012, 25.09.2012 and 03.10.2012 but the applicant did not attend the inquiry on 25.09.2012. IO held the applicant guilty and submitted its report, copy of which was supplied to the applicant but he did not submit any reply thereto. The DA after considering the matter in its entirety imposed the punishment of removal from service with benefit of compassionate allowance not exceeding 2/3rd of pension as 6 O.A.No. 260/00584 of 2016 admissible under the rules vide order dated 12.12.2012. He preferred appeal, which was duly considered but rejected vide order dated 20.02.2013. He preferred revision, which was also duly considered and rejected vide order dated 07.05.2013. Again he preferred mercy appeal, on consideration of which, he was intimated that once the revision petition has been rejected, no further consideration is possible. Again he preferred mercy appeal on 07.02.2014, on which he was intimated that there is no provision of second mercy appeal vide letter dated 16.05.2014. Ld. Counsel for the respondents by drawing our attention to the order of the Appellate Authority dated 20.02.2013 has submitted that it is incorrect to state that the AA rejected his appeal by taking into consideration the fact which was not part of the charge sheet. In fact, the AA considered the appeal with due application of mind but took into account the total days of leave applicant had availed in his entire career of service with a view to justify as to why his case does not deserve consideration on sympathetic ground to interfere in the order of the DA. Insofar as delay is concerned, it is stated that in actuality cause of action for filing this OA had arisen after rejection of his revision on 07.05.2013 but conceding for a moment that the cause of 7 O.A.No. 260/00584 of 2016 action has arisen after the intimation vide letter dated 16.05.2014 that second mercy petition is not permissible still there is huge delay in filing this OA. It is contended that to the applicant since he lost his mental balance, he could not file the OA but no supporting document to the above extend has been filed by him. Hence, he has prayed for dismissal of this OA both on merit as also on delay and laches/limitation.
5. We have considered the arguments advanced by the parties with reference to their pleadings.
6. It is needless to state that the courts/tribunal is not to act as an appellate court and reassess the evidence led in the enquiry, nor interfere on the ground that another view is possible on the material on record is sine qua none. The judicial interference in disciplinary proceedings is permissible only where the proceeding is initiated and concluded by an authority not competent to do so or the same has been done in violation of rules and against natural justice. In the case of B.C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749, the Hon'ble Supreme Court has held as under:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the 8 O.A.No. 260/00584 of 2016 individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support there from, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co- extensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. HC Goel this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is 9 O.A.No. 260/00584 of 2016 perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
7. In the matter of Union of India v. P Gunasekaran, (2015) 2 SCC 610, the Hon'ble Supreme Court delineated the parameters as to when the High Court shall not interfere in the disciplinary proceedings:
"13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
8. In State Bank of Bikaner & Jaipur Vs Nemi Chand Nalwaya, (2011) 4 SCC 584, the Hon'ble Supreme Court held as under:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that 10 O.A.No. 260/00584 of 2016 another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations...."
9. It is not the case of the applicant that there was violation of any codified rules/procedure or violation of natural justice rather from the record, it is seen that the applicant was allowed all the reasonable opportunity but he did not avail the same. The applicant was working as Signal Maintainer-II having his duty most important for running the train where public life is involved. The DA was kind to the applicant and his family in allowing compassionate allowance while imposing the punishment of removal from service. Therefore, this Tribunal do not find any ground to interference in the impugned order coupled with the fact that the applicant has filed this OA after the period provided under Section 21 of the AT Act on the ground that he lost his mental balance 11 O.A.No. 260/00584 of 2016 without specifying any details and producing any documentary evidence in support of his stand. In the circumstances, we find no merit in this OA, which is according dismissed along with MA. Parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS