Central Administrative Tribunal - Allahabad
Unknown vs Union Of India Through Its General ... on 8 April, 2013
RESERVED ON 04.03.2013 CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 8th of April 2013) Honble Mr. Justice S.S. Tiwari, Member (J) Honble Ms. Jayati Chandra, Member (A) Original Application No. 1242 of 2002. (U/S 19, Administrative Tribunal Act, 1985) Lallan Pandey, Son of Shri Mahanand, posted as Cabinman at Khairahy Station Northern Railway. .Applicant Versus. 1. Union of India through its General Manager, Northern Railway, Baroda House, New Delhi. 2. Divisional Rail Manager (Parichalan) Northern Railway, Allahabad. 3. Senior Divisional Operating Manager, Northern Railway, Allahabad. 4. Additional Divisional Rail Manager, Northern Railway, Allahabad. 5. Divisional Operating Manager, Northern Railway, Allahabad. Respondents Present for Applicants : Shri V.K. Srivastava Present for Respondents : Shri A.K. Pandey O R D E R
DELIVERED BY Honble Ms. Jayati Chandra, AM By means of present O.A. filed under Section 19 of Administrative Tribunals Act 1985, the applicant seeks following relief(s):-
(a) That by means of suitable order or direction in the nature of certiorari quashing the impugned removal order dated 27.2.2001 passed by Divisional Operating Manager- respondent No.5, Order of Appellate Authority dated 25.4.2001 passed by Senior Divisional Operating Manager respondent NO.3, Revisional Order dated 19.7.2001 passed by Additional Divisional Rail Manager, respondent No. 4 and order dated 13.12.2001 passed by Divisional Rail Manager respondent NO.2 (Annexure 5, 6A and 10 to the Compilation A).
(b) That by means of suitable order or direction in the nature of mandamus commanding the respondents to reinstate the applicant to the post of Cabinman and provide the benefit of post and pay scale and further direct the respondents to make the payment of salary since the date of removal till date as are admissible under rule and arrears thereof with interest.
(c) To issue any suitable order or direction as this Honble Tribunal may deem fit and proper under the circumstances of the case.
(d) To award cost of the application to the applicant.
2. Facts of the case are that the applicant was posted as Cabinman at Khairahy. He was chargesheeted on 19.10.2000 (Annexure A-1) in which he was charged with the following charges:-
vuqcU/k 1 Jh yYyu ik.Ms;] dsfcueSu [kSjkgh ds fo:} fojfpr vkjksiksa ds vuqPNsnksa dk fooj.k% vuqPNsn Jh yYyu ik.Ms;] dsfcueSu tksfd fnukad 3-10-2000 dks [kSjkgh LVsku esa dk;Zjr Fks] ,d ds ckn ,d yxkrkj xYrh djrs x;s tSls lgk;d LVsku ekLVj dk;kZy; ds pkHkh okil ls Lo;a gh xyr pkHkh dk fudkyuk rFkk ckf/kr ykbZu ds fy;s flxuy dh pkHkh fudkyuk vkSj vkus okyh 8101 vi ds fy;s ckf/kr ykbZu ds flxuy dks yksvj djuk] ftlds dkj.k 8101 vi eqjh ,Dlizsl ykbZu la0 1 esa igys gh [kMh 4270 Mk0 f=os.kh ,Dlizsl ls le; 6 cts Vdjkrs &2 cp x;hA bl izdkj bUgksus LVsku lapkyu fu;e ds iSjk 6-4-1 rFkk 6-2-1 ,oa lk/kkj.k fu;e 3-40 ,oa 3-38@1 ch dk mYya?ku fd;kA vkj ,l pkSgku e.My ifjpkyu izcU/kd@m0 js0 bykgkckn vuqcU/k 2 vkjksi ds izRrsd vuqPNsn ds leFkZu ds vopkj ;k dnkpkj ds ykWNuks dk fooj.kA fnukad 03-10-2000 dks 8101 vi eqjh ,Dlizsl jkcVlZxat LVsku ls 5 ctdj 24 feuV ij izLFkku dh [kSjkgh LVsku dk vi gkse flxuy yky gksus ds dkj.k xkMh gkse flxuy ij 5-50 cts [kMh gq;hA blh chp dSfcueSu Jh yYyu ik.Ms; us 5@55 cts vi gkse flxuy ykbZu la0 01 yksvj dj fn;k ftlds dkj.k 8101 vi ykbZu la0 1 esa fjlho gq;h ,oa igys ls [kMh 4270 Mk0 f=os.kh ,Dlizsl ls le; 6 cts] Vdjkrs &2 cp x;hA bl izdkj Jh yYyu ik.Ms;] dsfcueSu [kSjkgh us LVsku fu;e ds iSjk 6-4-1 rFkk 6-2-1 ,oa lk/kkj.k fu;e 3-40 ,oa 3-38@1 ch dk mYya?ku fd;k ,oa buds fo:} izkmekQslh vk/kkj ij vuqkklukRed dk;Zokgh dh tkrh gSA vkj ,l pkSgku e.My ifjpkyu izcU/kd@m0 js0 bykgkckn
3. The applicant denied the charges. The Inquiry Officer was appointed. Inquiry Officer submitted enquiry report (Annexure A-3). In the enquiry report, Inquiry Officer failed to consider the facts that there was no proof to show that the applicant had taken the key himself from the office of the Assistant Station Master, Khairahy and lowered the signal giving clearance to the Train No. 8101 UP on a line which was already occupied by Train No. 4270 Down thereby creating a condition of near collision. Further, he has averred that near collision was due to the negligence and careless working of Assistant Station Master. Moreover, both the Assistant Station Master and the applicant were charged on grounds of dereliction of duty resulting into near collusion of the two trains but while the Disciplinary Authority passed the impugned order dated 27.02.2001, removing him service and the same was upheld by appellate order dated 25.4.2001 and revisional order dated 19.7.2001. In the case of Assistant Station Master, the termination order was changed by the Revisional Authority to reduction of pay from the existing pay scale of Rs.5000-8000 to the bottom grade of Assistant Station Master i.e. Rs.4500-7000. This is against the principle of natural justice and violation of Article 311 of Constitution of India as both officers were chargesheeted on similar grounds arising out of the same event. The applicant has filed the several documents in his favour.
4. The respondents have stated in the counter affidavit that the applicant while working as a Cabinman failed to observe the provisions of General Station Rule No. 6.4.1 and as such he was accordingly charged. They have quoted the provision of General Station Rule 6.4.1:-
6.4 Conditions for Taking off approach Signals 6.4.1: When a train has to be received, the Station Master on duty will advise the Leverman on duty about the train number, its description and the line on which it is to be received. The Leverman will first physically check the clearance of concerned line, set the necessary route and send the relevant route key to the Station Master through the Porter. The Station Master on duty after verifying that the correct route key related to the nominated line has been sent to him, will apply it in his key box to release the Home Signal key. The Station Master on duty will then take out the relevant Home Signal key and will take the followings actions:-
(a) In case of Down trains, he will handover the key of Home Signal (Home Signal Key NO. 24) to the Leverman who will release the Home Signal lever by applying the key and take off the relevant approach signals.
(b) In case of Up Trains, he will handover the key of Home Signal Key No. 23 to the Leverman who will release the Home Signal lever using key No. 23 and take off the relevant Home Signal.
(c) Before handing over the Home Signal key to the leverman, the Station Master must ensure that the resetting handle/Auxiliary lever is in its box duly padlocked and sealed.
(d) After arrival of the train, the Station Master on duty shall ensure the complete arrival of train in the manner as detailed in para 6.6 and take back the key of Home Signals lever from the Leverman.
5. As per aforesaid Rule, the route setting and receiving the trains on a particular line is the ultimate responsibility of the applicant and unless the applicant lowered the signals, it was not possible for any train to come on a line. The signal can be lowered only through the insertion of the route key. The facts are undoubted that a near collision between two important passenger trains was narrowly averted though the vigilance of the train driver who stopped the train when he saw that the line to which he was cleared was already occupied. The second train i.e. Train No. 8101 could only come on the same line on which the Train No. 4270 was already standing only after lowering the signal.
6. The Inquiry Officer has conducted the enquiry in accordance with all the Rules, Regulations and Procedure. The applicant was given a list of witnesses and the documents which were to be relied upon. Witnesses were examined and cross examined by the applicant on 21.11.2000 and 11.1.2001. The charge Officer (CO) given his statement on 12.01.2001 and defence statement was submitted on 31.1.2001. The applicant in his averment has not pointed to any kind of procedural irregularity or prejudice. He was given full opportunity. He has challenged the enquiry only on the grounds that Inquiry Officer failed to believe his story. It is clear from the statement and cross examination of the witnesses and documentary evidence etc. that key was taken by the applicant without informing the Station Master. The respondents have provided extract of General Station Working Rules No. 6.2.1, 3.40 and SR 3.38/1 (b) etc. to show that the primary responsibility of route setting etc. and final act of lowering the signal was that of Cabinman i.e. the applicant.
7. Initially the ASM was also removed from service. However, the Revisional Authority had applied his mind to the representation of the both applicant and Assistant Station Master. It is very clear from his order dated 19.7.2001 that level of responsibility being different. Revisional Authority awarded different punishment to the two charged persons. The Revisional Authority in his order has stated that he had personally interviewed with the applicant and the Assistant Station Master. Thereafter he has recorded the following:-
I also have no doubt, that this is a case deserving severe and deterrent punishment. However, I find that there is difference in the level of responsibility of the Cabinman and the ASM on duty. While on has actually caused the accident, the other has only failed to check him from causing it. While the ASM on duty, being the de-facto incharge of the operation of the station cannot escape responsibility, the accident is actually caused due to the irresponsible and unlawful working of the Cabinman, who, as has been clearly brought-out in the D&AR enquiry, single handedly short circulated the entire working system by taking over the key from the ASMs Box on his own and wrongfully lowered the Reception Signal of 8101 leading to the potential accident situation. ASM is clearly inclined to believe that the situation of an unlocked key Box in the station would be continuing in all the shifts for which other ASMs and the SS also need to share the responsibility for allowing this situation at their station.
Thereafter the Assistant Station Master was given the following punishment:-
....................... ASM on duty Shri V.K. Pandey from Removal from Service to Reduction from the existing pay scale of Rs.5000-8000 to the bottom most grade of ASM i.e. 4500-7000 with pay fixed at the minimum of the pay scale i.e. Rs. 4500/- permanently i.e. he will now continue to earn his increment from this level. Further, he should be booked for Refresher Course before being put back on duty and after completion of the refresher training, he should not be posted back to Chopan, Chunar Section (but to some other area) since he seems to have worked only here throughout his career.
8. The applicant has filed the Rejoinder Affidavit by which he has denied all the contentions of the respondents without saying anything new.
9. We have heard counsels for the parties and perused the records.
10. We have gone through the evidence and enquiry report. It is not the case of the applicant that he was given not ample opportunity to either cross examine the witnesses or that he was not heard. There was no allegation of any kind of introduction of extraneous evidence. The sum and substance of his averments are two. First, he has stated that no one could prove that he has taken the key from the office of Assistant Station Master but he has failed to satisfactory prove that the train No.8101 entered the occupied route without the reception signal being lowered or that someone else lowered the signal when he was the sole Incharge. We, therefore, place reliance on the pronouncements made by the Honble Supreme Court in Kuldeep Singh Vs. State of Punjab and Ors., 1996 (74) FLR 2378 in which Honble Supreme Court has observed as follows:-
whereas in criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceedings preponderance of probability would serve the purpose.
In fact in the case of Departmental action, the preponderance of probability is a greater practice is to be adopted rather than accepting and rejecting of strict evidence.
11. Moreover, the applicant has spun a long story that he had left his cabin to answer natural call for 2 to 8 minutes during which time somebody may have lowered the signal. There is nothing to prove that story is correct and nor is it acceptable the Cabinman should leave his Cabin unattended. It is prove from the various Rules and Regulations quoted above that no train can come into line unless the signal is lowered and signal can be lowered only by Cabinman on duty.
12. We also place reliance on the observations made by Honble Supreme Court in the case of State Bank of Patiala Vs. S.K. Sharma (1996) 3 SCC 364, in which the Honble Supreme Court has made an elaborate observation regarding the scope of review of the inquiry proceedings. The Honble Supreme Court has held that:-
A two Judge Bench of the Supreme Court, after an elaborate discussion (nothing leading authorities), has summarized the position in relation to disciplinary proceedings as follows:
We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under no _notice, no opportunity and no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this case there is no averment to the effect that the applicant was given no notice, no opportunity or no hearing. He has simply stated that the Inquiry Officer, Disciplinary Authority, Appellate Authority and Revisional Authority failed to appreciated his explanation.
13. Learned counsel for the respondents has also urged that ordinarily the Tribunal should not interfere with the punishment awarded by the departmental authorities if it is based on evidence and proper opportunity of hearing has been given to the applicant. Reliance has been placed on the observations made by the Honble Apex Court in the case of Union of India Vs. Parma Nanda (Civil Appeal No. 1709 of 1988) with Parma Nanda Vs. State of Haryana and others (Special Leave Petition (Civil) No. 6998 of 1988) (1989) 10 Administrative Tribunals Cases 30, the Honble Apex Court has observed as follows:-
The jurisdiction of the Tribunal to interfere with the disciplinary matters of punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. The power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry officer or the Competent Authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.
Therefore, we find no reason to interfere with decisions of Disciplinary Authority, Appellate Authority and Revisional Authority on this ground.
14. In so far as difference of punishment given to the applicant and Assistant Station Master are concerned, it is seen from the Revisional Authoritys order dated 19.07.2001 that Assistant Station Master has a different set of duties than from the Cabinman. It is also borne out by various Rules and Regulations quoted above. Therefore, we find no reason to interfere with the order which awards different punishment to two different persons based on different levels of responsibility. The Honble Supreme Court in the case of UT of Dadra & Nagar haveli Vs. Gulabhia M. Lad, (2010) 5 SCC 775 supports the difference in punishment if the levels of responsibility are different as the quantum of punishment, which depends upon many factors. The relevant portion of aforesaid decision reads:-
15. In a matter of imposition of punishment where joint disciplinary enquiry is held against more than one delinquent, the same or similarity of charges is not decisive but many factors as noticed above may be vital in decision making. A single distinguishing feature in the nature of duties or degree of responsibility may make a difference insofar as award of punishment is concerned. To avoid multiplicity of proceedings and overlapping adducing of evidence, a joint enquiry may be conducted against all the delinquent officers but imposition of different punishment on proved charges may not be impermissible if the responsibilities and duties of the co-delinquents differ or where distinguishing features exist. In such a case, there would not be any question of selective or invidious discrimination.
15. Therefore, there is no justification to interfere with the impugned orders. O.A. is dismissed. No costs.
Member (A) Member (J)
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