Central Administrative Tribunal - Bangalore
P Praveen Kumar vs South Western Railway on 25 October, 2024
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OA.No.170/00079/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00079/2023
ORDER RESERVED ON 21.10.2024
DATE OF ORDER: 25.10.2024
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
P. Praveen Kumar,
S/o Shri Pooriya Naik,
Aged about 33 years,
Residing at No. 3748, 8th Cross, 10th Main,
G Block, Dattagalli 3rd Stage,
Mysuru 570 023 .... Applicant
(By Shri B.S. Venkatesh Kumar, Advocate)
Vs.
1. Union of India represented by
General Manager,
(Revision Authority)
South Western Railway, Headquarters Office,
Rail Soudha, Gadag Road, Hubli 580 020
2. The Principal Chief Commercial
Manager/Appellate Authority,
South Western Railway, Headquarters Office,
Rail Soudha, Gadag Road, Hubli 580 020
3. The Additional Divisional Railway Manager/
Disciplinary Authority, Personnel Branch,
Divisional Office, South Western Railway,
Mysuru Division, Mysuru 570 001
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OA.No.170/00079/2023/CAT/BANGALORE
4. The Divisional Railway Manager,
South Western Railway,
Mysuru Division,
Mysuru 570 001 ...Respondents
(By Shri S. Prakash Shetty, Senior Panel Counsel)
ORDER
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(a) Call for records of the case from the respondents and on perusal
(b) Quash and set aside the orders impugned herein viz. (1) Order No. Y/C. CONFIDENTIAL/PPK/2020 dated 2.3.2020 (Annexure-A11) passed by third respondent; (2) Order No. SWR/P/HQ.227/PPK/MYS dated 19.8.2020 (Annexure-A13) passed by second respondent and (3) Order No. SWR/P/HQ.227/PPK/MYS dated 18.11.2022 (Annexure A18) passed by first respondent.
(c) Issue a consequential direction to the respondents to reinstate the applicant into service forthwith with all consequential benefits like continuity of service, payment of pay and allowances from the date of removal till the date of reinstatement with such other orders as this Hon'ble Tribunal deems fit to grant to the applicant in the circumstances of the case in the interest of justice."3
OA.No.170/00079/2023/CAT/BANGALORE
2. The facts in brief as narrated by the applicant are that the applicant, a Mechanical Engineer, was appointed as Commercial Clerk on being selected in the recruitment conducted by the Railway Recruitment Board. Later on, he was promoted as Commercial Inspector and posted to Mysuru Divisional office. It transpires that a female staff working in the office, after noticing an electronic gadget planted in the women's toilet at about 1.45 pm on 13.02.2020, came out of the restroom and shouted about the same. Later, a few women employees lodged a written complaint before the 4th respondent on the same day, wherein it was stated that one of the lady staff detected spy camera with battery, antenna and memory card inside a pouch planted in the ladies toilet and requested for investigation and to take necessary action against the culprit.
3. A fact finding committee was formed to look into the said complaint. The Divisional Security Commissioner (DSC), Mysore in his report to the Sub Inspector, Mysore Railway Police submitted that a committee of three officers viz., Shri R. Prasad, Senior Divisional Personnel Officer (Senior DPO), Shri K.S. Kabbur, DSC, Mysore and Kum. Priya, Divisional Commercial Manager (DCM) was constituted and the spy camera along with its 4 OA.No.170/00079/2023/CAT/BANGALORE accessories was handed over to the Office Superintendent/General (OS/G) Smt. Prarthana Uttappa, for safe custody. The said committee met on 13.02.2020 wherein Smt. Prarthana Uttappa stated that there was some photographs available in the memory card. On 14.02.2020, the memory card was inspected but no clue of any suspicious element was noticed. Further, the seized memory card was subjected for further investigation with the assistance of Shri Deejith Uthaman, Crime Inspector, Mysore and deleted data was retrieved. It was stated that the retrieved data contained some photographs including that of the applicant.
4. On the evening of 18.02.2020, the applicant was summoned to the chambers of Senior DCM wherein the members of the fact finding committee were present. The applicant contends that, on seeing the police personnel in uniform (RPF), being frightened, gave the statement as desired on the assurance that no penal action would be taken against him if admitted. On the same day, i.e., on 18.02.2020, the fact finding committee submitted its report, wherein it was stated that when the device was investigated, some objectionable content was found and the committee retrieved deleted contents. The applicant was kept under suspension and 5 OA.No.170/00079/2023/CAT/BANGALORE major penalty proceedings were initiated by issuing the charge memorandum dated 19.02.2020.
5. The applicant states that he submitted a letter dated 28.02.2020 seeking for the documents mentioned in the list of documents which were not enclosed. It is the grievance of the applicant that without supplying the documents, the Disciplinary Authority passed an order dated 29.02.2020 appointing the Inquiry Officer. Further, the Respondent No. 3 usurping the power of the Disciplinary Authority on the ground that Senior DCM was a Member of the fact finding committee, ordered the said authority not to function as Disciplinary Authority and in the very same communication dated 02.03.2020 addressed to the applicant, has imposed the penalty of 'removal from railway service' with immediate effect. Being aggrieved, the applicant preferred an appeal before Appellate Authority/2nd respondent which came to be rejected, against which Revision Petition was filed by the applicant. Since the said Revision Petition was kept pending by the Revisional Authority/1st respondent, applicant preferred OA No. 274/2021 before this Tribunal. This Tribunal vide order dated 26.09.2022 issued a direction to the Revisional Authority to dispose of the Revision Petition dated 08.10.2020 in an expedite manner, after 6 OA.No.170/00079/2023/CAT/BANGALORE providing an opportunity of hearing to the applicant. On 22.11.2022, the Assistant Personnel Officer, Divisional Office, Mysore has forwarded the copy of the order of the Revisional Authority to the applicant dated 18.11.2022, wherein the Revisional Authority has confirmed the removal order passed by the Disciplinary Authority, upholding the order of Appellate Authority. Being aggrieved, the applicant has preferred this OA.
6. Learned counsel Shri B.S. Venkatesh Kumar representing the applicant submitted that the proceedings were concluded by the Disciplinary Authority in a hasty manner. The Inquiry Officer was appointed on 29.02.2020 and within 48 hours thereafter the Disciplinary Authority who would have otherwise been the Appellate Authority has passed the impugned removal order sans conducting inquiry under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 ('Rules' for short). It appears that based on the letter submitted by the Inquiry Officer expressing his inability to continue the inquiry on the ground that it being case of voyeurism, Rule 14 (ii) proceedings were initiated. The Disciplinary Authority ought to have followed the procedure laid down in Rule 9 (24) of the Rules by appointing a new Inquiry Officer, which has not been done. After initiating the proceedings 7 OA.No.170/00079/2023/CAT/BANGALORE under Rule 9 of the Rules, suddenly invoking Rule 14 (ii) of the Rules, imposing of major punishment is uncalled for. The entire exercise of the Disciplinary Authority is against the principles of natural justice.
7. Learned counsel further submitted that no reasonable opportunity was provided to the applicant to put forth his case though he has requested for certain documents to submit his explanation to the charge memo. The penalty order was passed hurriedly on 02.03.2020. The applicant has denied his involvement in the case, the charges framed against the applicant were on imaginary basis. Any submission/confession made by the applicant before the fact finding authority was due to fear and threat and obtained by pressure and coercion. The same cannot be taken as a basis for imposing the major penalty of dismissal from service sans the charges being proved in accordance with law. Learned counsel further submitted that the videograph of the entire proceedings before the fact finding authority said to have been made appears to have been taken from the mobile of someone and not from video camera just to ensure that the applicant is not aware of the entire proceedings being videographed. Merely stating that the inquiry is not practicable to as it is related to honour of women employees, 8 OA.No.170/00079/2023/CAT/BANGALORE invoking Rule 14 (ii) of the Rules and thereby imposing harsh penalty is totally unjustifiable. Appellate Authority and the Revisional Authority have failed to examine the matter in a right perspective. Both the authorities, in a casual manner, dismissed the appeal and the revision without adjudicating on the grounds urged. Accordingly seeks for interference of this Tribunal. Learned counsel referring to the order passed by the jurisdictional court in CC No. 694/2022 submitted that there was no reasonable belief that no witness/complainant would come forward to conclude the proceedings initiated under Rule 9 of the Rules. Learned counsel has placed reliance on the following citations:
1) Kripal Singh vs Govt. of NCT of Delhi in OA No. 1912/2015, DD: 11.03.2021 (CAT, Principal Bench),
2) Nagesh vs Union of India in OA No. 256/2022, DD:
07.09.2023 (CAT, Bangalore Bench).
8. Learned counsel Shri S. Prakash Shetty representing the respondents submitted that pursuant to the written complaint given by 33 lady staff of railways at Mysore division having found the spy camera with memory card and antenna - an electronic item kept in the ladies toilet situated near 'pass section' of Divisional 9 OA.No.170/00079/2023/CAT/BANGALORE Railway Manager (DRM) office building, Mysore, the fact finding committee consisting of two Junior Administrative Grade officers and two Senior Scale officers, including one woman officer was nominated. Denying the averments of the applicant that he was forcibly made to give a statement as false, learned counsel submitted that the applicant was summoned before the committee and the proceedings were videographed and the inquiry proceedings of the committee were drawn. The applicant planted a spy camera in ladies toilet and data has been viewed by the applicant. On departmental investigation, it was found that the spy camera was interconnected with the personal computer of the applicant. The Railway Protection Force (RPF) personnel of Mysore division swung into action and Divisional Security Commissioner of RPF, Mysore division filed complaint before the jurisdictional police station. The government railway police of Mysore filed FIR against the applicant under Section 354 (C) of IPC for outraging the modesty of the women.
9. The applicant had purchased the spy camera online on 15.01.2020 and on verification it was found that the online purchase made by the applicant from the website using transaction number was matching. An opportunity was provided to the applicant before 10 OA.No.170/00079/2023/CAT/BANGALORE the fact finding committee to prove his innocence and non-
involvement in the said complaint. The applicant being highly educated and worked as Commercial Inspector, cannot take the defence that he has been coerced, pressurized or frightened by someone before the fact finding committee. The applicant himself voluntarily admitted that crime was committed by him. The applicant was immediately placed under suspension as per the Rules.
10. After the incident occurred on 13.02.2020, the fact finding committee was constituted to investigate and conduct an inquiry on the genuineness of the complaint submitted by the women employees. Initially, the seized articles were in the custody of Smt. Prarthana Uttappa, OS/General Branch/DRMO/Mysore. Subsequently, for further investigation into the matter, the data in the memory card was retrieved from which some photographs including that of the applicant were found which clearly shows the involvement of the applicant in the said complaint. The applicant having voluntarily admitted that spy camera was purchased by him through online on 15.01.2020, and the transaction number having found matching with the spy camera planted in the ladies toilet, the 11 OA.No.170/00079/2023/CAT/BANGALORE Charge Memorandum was issued providing an opportunity to submit his explanation or defence statement by 10 days.
11. Since no such explanation or defence statement was submitted, after the lapse of the stipulated date of 10 days i.e., on 29.02.2020, Disciplinary Authority nominated an Inquiry Officer to inquire into the charges against the applicant. Very tactfully the applicant has sent his explanation/defence statement through post only on 28.02.2020 at 19.41 hours knowing well that it would not reach the administration within the stipulated time provided for filing defence statement in the matter. The appointed Inquiry Officer submitted a letter expressing his inability to conduct the inquiry because this is a case of voyeurism and also there was unrest of women employees for causing of an offence against the modesty of the women, hence, the respondents had come to the conclusion that it was not practicable to hold an inquiry, and accordingly, proceedings were initiated under Rule 14 (ii) of the Rules. Considering the documentary evidence available on record, penalty of removal from service was imposed, which is just and fair in the circumstances.
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OA.No.170/00079/2023/CAT/BANGALORE
12. Learned counsel further submitted that Additional Divisional Railway Manager (ADRM)/Mysore has acted as a Disciplinary Authority since the regular Disciplinary Authority was the Member of the fact finding committee. Such jurisdiction being vested with the ARDM/Mysore to conduct the disciplinary proceedings under Rule 14 (ii) of the Rules, the punishment imposed is justifiable. Appellate Authority and the Revisional Authority, after considering the matter in extenso, dismissed the appeal and revision and the same deserves to be confirmed by this Tribunal. Accordingly, seeks for the dismissal of the OA. Learned counsel has placed reliance on the judgment of the Hon'ble Apex Court in the case of Director, Navodaya Vidyalaya Samiti and Others vs. Babban Prasad Yadav and Another reported in 2006 SCC (L&S) 891.
13. We have carefully considered the submissions of the learned counsel appearing for the parties and perused the material on record.
14. Charge memorandum dated 19.02.2020 was issued to the applicant under Rule 9 of the Rules. Statement of article of charges reads thus:
13
OA.No.170/00079/2023/CAT/BANGALORE "STATEMENT OF ARTICLE OF CHARGES FRAMED AGAINST SHRI P. PRAVEEN KUMAR, CI/HQ @ SR.DCM/O/MYS Shri Praveen Kumar P., CI/HQ while working as Commercial Inspector in the office of Sr. DCM/MYS has committed serious misconduct on 13.02.2020 in which as much as:
Shri Praveen Kumar P., CI/HQ while working as Commercial Inspector in the office of Sr.DCM/MYS kept electronic device in ladies toilet situated near Pass Section at DRM Office Building, Mysuru. RPF staff immediately rushed to the toilet along with the lady employee and brought out the said item. During the check found that it was a Spy Camera connected with a memory card, small battery and antenna kept inside a black pouch. With the assistance of Sri Deejith Uthaman, Crime Inspector/CIB/Mysuru, some data retrieved and the data contained some photographs including that of Shri P. Praveen Kumar, Commercial Inspector/HQ/Mysore.
Thus, the said Shri has failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Railway Servant by this violated Rule No. 3 (1) (i), (ii) &
(iii) of Railway Services (conduct) Rules, 1966."
15. Statement of imputations of misconduct in support of the Articles of Charges framed against the applicant indicates that Smt. Ponnamma, OS/Pass Section/DRM/O/MYS on 13.02.2020 at about 13.45 hours informed to RPF staff Shri Sadik Khan stating that electronic item was kept in ladies toilet situated near Pass Section at DRM Office Building, Mysore. The said RPF staff immediately rushed to the toilet along with the lady employee and brought out the said item. During the check, found that it was a spy camera 14 OA.No.170/00079/2023/CAT/BANGALORE connected with a memory card, small battery and antenna kept inside a black pouch. On the written complaint submitted by the women employees working in DRM office, Mysore dated 13.02.2020, DRM, Mysore immediately decided to make an inquiry in this regard. The spy camera along with its accessories were seized by Sr. DPO/Mysore and kept in the safe custody for further inquiry.
16. DRM, Mysore has constituted a fact finding inquiry committee consisting of Sr. DPO, DSC and DCM, Mysore with an instruction to conduct an inquiry into this case and made efforts to retrieve the deleted data if any, from the seized memory card. On such exercise being done, the committee found the retrieved deleted data in the memory card with the assistance of Shri Deejith Uthaman, Crime Inspector, CIB, Mysore. The retrieved data contained some photographs including that of the applicant based on which, the applicant was summoned. On summoning the applicant to the chamber of Sr. DCM, Mysore by the committee, inquiry was caused in the presence of Sr. DCM/Mysore. The applicant admitted that he had kept the spy camera in the ladies toilet which was purchased by him through online on 15.01.2020. He had used it in his house as trial and further in the toilets of trains 15 OA.No.170/00079/2023/CAT/BANGALORE and earmarked ladies toilet in the DRM/office building. The fact finding authority on 18.02.2020 videographed the proceedings and drawn inquiry proceedings. The said employee (applicant) voluntarily produced 3 mobile phones, 3 spy cameras with accessories, 1 laptop, 1 pen drive and 3 card readers. The same were seized by the committee. The applicant was kept under suspension on 19.02.2020.
17. In the Charge Memorandum, explanation was called from the applicant/written statement of his defence within ten days of receipt of the memorandum, if he does not require to inspect any documents for preparation of his defence, and within ten days of inspection of documents if he desires to inspect documents. For the reasons best known to the applicant, though the applicant acknowledges the service of charge memorandum on 19.02.2020, request for the relied documents in the Charge Memorandum vide letter dated 28.02.2020 addressed to the Disciplinary Authority and Senior DCM, South Western Railway, Mysore was sent through post on 28.02.2020 at 19.41 hours. Had the applicant sought for the required documents immediately on receipt of the Charge Memorandum, it would have been different aspect of the matter but for the reasons best known to the applicant, such a request was 16 OA.No.170/00079/2023/CAT/BANGALORE made at the nth hour at the time of completion of ten days after the receipt of the Charge Memorandum, knowingly well that such request made through post would not reach the Disciplinary Authority before ten days of the receipt of the Charge Memorandum. Hence, the Disciplinary Authority after completion of ten days, appointed the Inquiry Officer vide order dated 29.02.2020. However, the Inquiry Officer expressed his inability to conduct the inquiry as the matter being a case of voyeurism, vide his letter dated 02.03.2020. Since the Disciplinary Authority i.e., Senior DCM, Mysore was the Member of the fact finding inquiry committee, ADRM/Mysore, exercising the power of the Disciplinary Authority under Rule 14 (ii) of the Rules, imposed the penalty order of 'removal from railway service' with immediate effect on the applicant based on the documents/records and evidences available which are as under:
Sl. Fact Finding Enquiry Report No. 1 Complaint of women employees working in EXIBIT-1 DRM/O/Mysore dated 13.02.2020 (in one page) 2 Statement of Sri P. Praveen Kumar, EXIBIT-2A CI/HQ/Mysore dated 18.02.2020 (in two pages) 3 Fact finding enquiry report dated EXIBIT-2B 18.02.2020 (in one page) 17 OA.No.170/00079/2023/CAT/BANGALORE 4 Three Mobile Phones (One JIO (LYP) & two EXIBIT-3 MI Mobiles) 5 3 Spy Cameras with accessories EXIBIT-4 6 One Laptop (White colour Sony Vaio make) EXIBIT-5 7 One Pen Drive (Sandisk - 32 GB) EXIBIT-6 8 Three Card Readers (Dark blue-1, Light EXIBIT-7 Blue-1 & 1 in Pink colour) 9 Soft copy of the videograph of the enquiry EXIBIT-8 proceedings (in pen drive) 10 Retrieved data from the seized Memory Card EXIBIT-9 (in pen drive) 11 Sr.DCM/MYS Lr. No. Y/C/Confidential/ EXIBIT-10 PPK/2020 dtd 19.02.20 12 DSC/RPF/MYS Lr. No. Y/SXC/Confidential EXIBIT-11 Reports/MYS/2020 dated 19.02.2020 13 DSC/RPF/MYS & Committee Member letter EXIBIT-12 No. Y/SXC/Confidential Reports/MYS/2020 dtd. 19.02.2020 addressed to ADRM/MYS
18. The Inquiry Officer appointed has been recused from the case. There cannot be any direct evidence to the subject misdeed.
Having come to the conclusion that it is not practicable to hold inquiry which relates to the honour of women employees, ADRM, decided to impose penalty under Rule 14 (ii) of the Rules. On analysing the material evidence on record, coming to the conclusion that the charge mentioned in the Charge Memorandum is proved, imposed the penalty of 'removal from railway service' with immediate effect.
19. Article 311 (2) (b) of the Constitution reads thus: 18
OA.No.170/00079/2023/CAT/BANGALORE "311 (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges;
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply--
(a) xxxx
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) xxxx"
20. Rule 14 of the Rules reads thus:
"Rule 14: Special procedure in certain cases:
Notwithstanding anything contained in Rules 9 to 13:
(i) Where any penalty is imposed on a Railway Servant on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) Where the Disciplinary Authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or
(iii) Where the President is satisfied that in the interest of security of the State, it is not expedient to hold an inquiry in the manner provided in these rules;19
OA.No.170/00079/2023/CAT/BANGALORE The Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit.
Provided that the Railway Servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case falling under clause (i).
Provided further that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule."
21. The main argument advanced on behalf of the applicant is that the proceedings initiated under Rule 9 of the Rules ought to have been concluded taking the matter to a logical end by holding an inquiry. That having not been done, imposing of penalty under Rule 14 (ii) is unsustainable. This argument requires to be examined in the light of the legal principles enunciated by the Hon'ble Apex Court in the case of Union of India and another vs. Tulsiram Patel reported in AIR (1985) SC 1416 and Director, Navodaya Vidyalaya Samiti and Others, supra.
22. The relevant paragraphs in Tulsiram Patel's case are as under:
"132. It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government 20 OA.No.170/00079/2023/CAT/BANGALORE servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of a charge-sheet upon the government servant or after he has filed his written statement thereto or even after evidence has been led in part. In such a case also the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word "inquiry" in that clause includes part of an inquiry. It would also not be reasonably practicable to afford to the government servant an opportunity of hearing or further hearing, as the case may be, when at the commencement of the inquiry or pending it the government servant absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte and on the materials before the disciplinary authority. Therefore, even where a part of an inquiry has been held and the rest is dispensed with under clause (b) or a provision in the service rules analogous thereto, the exclusionary words of the second proviso operate in their full vigour and the government servant cannot complain that he has been dismissed, removed or reduced in rank in violation of the safeguards provided by Article 311(2).
133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.
xxxxx
171. It was also contended that the punishments were arbitrarily meted out because in some centres the railway servants were dismissed from service while in some other centres they were removed from service. The quantum and extent of penalty would depend upon the gravity of the situation at a particular centre and the extent to which the alleged acts, though not serious in themselves, in conjunction with acts committed by others, contributed to the bringing about of this situation.21
OA.No.170/00079/2023/CAT/BANGALORE
172. In the context of an all-India strike where a very large number of railway servants had struck work, the railway services paralysed, loyal workers and superior officers assaulted and intimidated, the country held to ransom, the economy of the country and public interest and public good prejudicially affected, prompt and immediate action was called for to bring the situation to normal. In these circumstances, it cannot be said that an inquiry was reasonably practicable."
23. The language employed in Rule 14 (ii) is "not reasonably practicable", not "impractical". The Hon'ble High Court of Calcutta in the case of Jayanta Kumar Roy vs. Union of India and ors. CR 1388 (W) of 1981 while considering Rule 14 of the Rules in the background of removal of the railway employees owing to an unauthorized and illegal strike causing great hardship to the public and to the movement of the goods which resulted in complete disruption of loco running section, referred to Article 311 of the Constitution pre and post 42nd amendment. Having regard to Rule 14 (ii), it was observed in para 19 and 20 as under:
"19. Bearing the aforesaid facts in the background I have to determine whither in this case there were materials for the appropriate authority to pass orders removing the petitioners from service and secondly, whether there were materials before the appropriate authorities to come to the conclusion that enquiry in the manner provided in the rules were not reasonably practicable and thirdly, I have to consider whether in passing the impugned order there was proper consideration namely, consideration of the punishment that was required to be inflicted even it was considered that the petitioners were guilty and even if it was not practicable to 22 OA.No.170/00079/2023/CAT/BANGALORE hold any enquiry in the manner provided under the rules. These are the points upon which if is necessary to abjudicate.
20. On these points before I deal with the several authorities cited at the bar and rival contentions made on the points at issue in the instant case it would be necessary to bear in mind that in case powers are conferred on public authorities to exercise the same on fulfilment of certain conditions then the authority could only act objectively on fulfilment of those conditions and whether the conditions precedent for the exercise of the authority under the particular provisions have been fulfilled or not are matters which are justiciable in Courts of law. This position, in my opinion, follows logically from the ratio of the decision of the Supreme Court in the case of M.A. Rasheed v. State of Kerala AIR 1914 SC page 2249 where Chief Justice Ray observed that where powers were conferred on public authorities to exercise the same when "they are satisfied" or when "it appears to them" or when "in their opinion" a certain state of affairs exists;" or when powers enable public authorities to take "such action as they think fit" in relation to a subject matter, the Courts will not readily defer to the conclusiveness of an executive authority's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated. Where reasonable conduct was expected the criterion of reasonableness was not subjective but objective. The onus of establishing unreasonableness, however, rested upon the person challenging the validity of the acts. Administrative decisions in exercise of powers even if conferred in subjective terms were to be made in good faith on relevant consideration. In such case the Courts should enquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body was required to conform might range from the Court's own opinion of what was reasonable to the criterion of what a reasonable body might have decided. The courts would find out whether conditions precedent for the formation of the opinion had any factual basis. In this connection reliance may also be placed on the observations of the Supreme Court in the case of Rohas Industries Ltd. v. S.D. Agarwal AIR 1969 23 OA.No.170/00079/2023/CAT/BANGALORE SC 707. To this limited extent the Courts have jurisdiction and to the limited extent the orders passed in the impugned case are justiciable by this Court in the background of the facts and circumstances disclosed. Bearing the above propositions in mind I will have to examine in the instant case the facts and circumstances."
Referring to catena of judgments cited at the bar, legal principles are laid down in para 33 as under:
"33. On consideration of these materials and the principles enunciated by the Supreme Court it appears to me that Rule 14(ii) enjoins that the authority concerned must act reasonably, fairly and not arbitrarily and there must be materials upon which a person can reasonably arrive at the conclusion that an employee covered by the Rule 14 had to be imposed penalty and secondly there must be materials to come to the conclusion that enquiry in the manner contemplated under Rules 5 to 9 of the aforesaid rules was not practicable. (2) Upon these materials the reasons must be recorded. (3) The materials must be objective and should have a rational nexus on the points mentioned hereinbefore and whether there were such reasons in fact and whether in fact a belief on those reasons was formed and whether those reasons had rational nexus of the purpose of the two requirements namely, imposition of punishment and the practicability of the holding of enquiry and whether there was need for imposition of penalty without hearing the delinquent should be arrived at fairly, justly and not arbitrarily. Fourthly, whether these conditions have been fulfilled or not are justiciable in courts of law. The Court, however, is not concerned either with the sufficiency or even with the truth of these materials though these materials must have a factual basis to the grounds for the formation of the belief. To this limited extent and to the above extent only judicial review of the action, call it administrative or quasi-judicial, under S. 14(ii) is permissible."24
OA.No.170/00079/2023/CAT/BANGALORE
24. In Kripal Singh case, supra, in paragraph 20, it is held thus:
"20. In view of various judgments and the rules, referred to hereinabove, it is evident that before dispensing with an inquiry subjective satisfaction is to be arrived at by the disciplinary authority that it is not reasonably practicable to hold a regular departmental inquiry. The reasons must be recorded which must be based on objective criterion and not on the whims and fancy of the disciplinary authority. The reasons given by the disciplinary authority must reflect the actual ground reality which makes it impossible for the disciplinary authority to order departmental inquiry. The inquiry cannot be dispensed with lightly or arbitrarily or out of ulterior motive or merely in order to avoid holding of a departmental inquiry. If it is a case that preliminary inquiry has been conducted, statements there from may be brought on record of the departmental proceedings when the witnesses are no longer available. The Enquiry Officer may bring on record any other document from the file of the preliminary enquiry, if he considers it necessary after supplying copies to the accused officer. However, in absence of any document to support that the witnesses are not traceable, they are not willing to come forward to adduce their evidence or the said witnesses are threatened, intimidated or coerced, terrorised, influenced by and/or on behalf of the delinquent for leading their evidence or security of the State is likely to put under danger etc., it may not be sufficient to say that the departmental proceeding is not reasonably practicable. However, it may suffice in saying that departmental inquiry is not probable whereby an atmosphere of violence or of any general indiscipline and insubordination prevails or the delinquent is in affiliation with criminals. Furthermore, the provisions of Rule 15 of the Delhi Police (Punishment & Appeal) Rules, 1980 clearly indicate that the purpose is not only to judge acquaintance of default but also to collect 25 OA.No.170/00079/2023/CAT/BANGALORE prosecution evidence and to bring on record relevant documents to facilitate a regular departmental inquiry. Mere gravity of the allegations against the defaulter shall not be sufficient and good reason not to hold that the enquiry is not reasonably practicable. The word "Practicable‟ has been considered and explained by the Hon'ble High Court of Delhi in the case of R.K. Mishra (supra)."
Indeed, the Inquiry Report submitted therein was based on the statements, relevant documents and also the statement of victim under Section 164 of Criminal Procedure Code. Inspite of that, the Disciplinary Authority, in absence of any material, came to the conclusion about criminal propensity and immoral attitude of the delinquent employee and opined that in all probabilities witnesses/complainant would not come forward to depose against him in case a departmental inquiry is initiated against him. But, in the present case, the Inquiry Officer, at the outset, has recused from the case on the ground of voyeurism. The applicant by his own admission accepted the acts of misconduct by way of statements made in his own handwriting before the fact finding committee. The applicant had admitted the purchase of the spy camera involved in the incident in question through online and placing it in the ladies toilet. Having given such statements, the applicant cannot turn around and submit that the said statements were taken under 26 OA.No.170/00079/2023/CAT/BANGALORE due force and coercion. The statements made in writing at the first instance has some sanctity in the eye of law. If such statements are given under some pressure, action would have been initiated by the applicant immediately thereafter, not at the stage of filing the appeal/revision. On these aspects, the case on hand is distinguishable from Kripal Singh, supra.
25. In the case of Nagesh, supra, the applicant - Nagesh, while working as Dresser at Railway Health Unit, South Western Railway, Yeshwanthpur was arrested on the charge that 3 vials of Remdesivir injection during COVID period was stolen from Railway Hospital, Bengaluru. He was in judicial custody for some time and thereafter he was enlarged on bail. While the applicant was in judicial custody, the penalty advice of dismissal from service was issued without mentioning the reason for dispensing with the inquiry. Indeed, the said order was affixed on the door of his residence without even serving on the applicant therein. In such circumstances, this Tribunal having found that the reasons given by the Disciplinary Authority was certainly not cogent to form an opinion that it would not be reasonably practical to hold regular inquiry in the matter, held that the orders passed by the authorities deserves to be set aside being against the principles of natural 27 OA.No.170/00079/2023/CAT/BANGALORE justice, thereby directing the Disciplinary Authority to conduct a regular inquiry in the matter in accordance with law. The said case is also distinguishable in the background of the honour of several women employees involved herein, which would certainly be embarrassing in exposing them in the guise of holding a regular inquiry.
26. In Director, Navodaya Vidyalaya Samiti and Others, supra, the Hon'ble Apex court considering the case of termination order of an employee who had indulged in immoral conduct with one of the students of the school by writing undesirable letters/remarks to her observed that all that is required for the court is to be satisfied that the preconditions to the exercise of power under the rule dispensing with the inquiry are fulfilled. These preconditions are; (1) holding of a summary enquiry, (2) a finding in such summary enquiry that the charged employee was guilty of moral turpitude; (3) the satisfaction of the Director on the basis of such summary enquiry that the charged officer was prima facie guilty; (4) the satisfaction of the Director that it was not expedient to hold an enquiry on account of serious embarrassment to be caused to the student or guardians or such other practical difficulties and finally; (5) The recording of the reasons in writing 28 OA.No.170/00079/2023/CAT/BANGALORE in support of the aforesaid. In the said case, in the order of termination, it was recorded that the Director, while issuing the order of termination, was satisfied that the procedure of holding a regular departmental enquiry under the CCS (CCA) Rules, 1965 was not expedient as the same may cause serious embarrassment to the girl student and her parents.
27. The points that requires to be considered while taking action under Rule 14 (ii) are:
(i) It is not necessary for providing an opportunity of hearing to the delinquent employee. Rule 14 (ii) proceedings could be initiated at any stage, even after initiation of regular inquiry proceedings, the delinquent employee cannot complain that he has been dismissed in violation of the safeguards provided by Article 311 (2) even where a part inquiry has been held and the rest is dispensed with under clause (b) or Rule 14
(ii), a provision in the service rules analogous thereto.
(ii) The Disciplinary Authority must record reasons in writing regarding the satisfaction that it is not reasonably 29 OA.No.170/00079/2023/CAT/BANGALORE practicable to hold an inquiry in the manner provided in Rules 9 to 13.
(iii) The satisfaction of the Disciplinary Authority will be subjective but on objective consideration.
28. In the present case, the requirements of Rule 14 (ii) are fulfilled. The order of termination dated 02.03.2020 impugned herein clearly establishes the reasons for dispensing with the regular inquiry owing to the recusal of the Inquiry Officer appointed on the ground of voyeurism, and as such, holding an inquiry is not practicable as the same relates to honour of women employees. Accordingly, the competent authority decides to impose penalty under Rule 14 (ii) of the Rules dispensing with the inquiry based on the documents/records and evidences available. Competent authority concludes that the charges levelled against the applicant are proved, the details of which are also referred to in the penalty order. Taking an immediate decision by the Additional Divisional Railway Manager, acting as the Disciplinary Authority, since the regular Disciplinary Authority was a member of the fact finding inquiry committee cannot vitiate the penalty order. Learned counsel for the applicant fairly submits the competency of the 30 OA.No.170/00079/2023/CAT/BANGALORE higher authority passing the penalty order is not challenged in the present application. The allegation is that the penalty order is issued in a hasty manner, circumventing the regular inquiry after issuing the charge memo. At the cost of repetition, it is observed that that there is no legal impediment for shifting the proceedings initiated under Rule 9 to Rule 14 (ii) of the Rules. At any stage of the proceedings, Rule 14 (ii) can be invoked if it is satisfied that it is impracticable to hold an inquiry having regard to the facts and circumstances of the case.
29. The Appellate Authority having confirmed the order of punishment, Revisional Authority, on examining the correctness and legality of the orders passed by the Disciplinary Authority and the Appellate Authority, has given a finding that holding of inquiry was indeed not practicable, because there cannot be a witness to the applicant's misdeed; the circumstantial evidence available on record would establish the misdeed done by the applicant. The applicant being a Commercial Inspector, which was supervisory in nature, was expected to perform duties with utmost honesty and trust. Given the facts and circumstances, it was impracticable to conduct an inquiry as it would seriously compromise the identity of women employees in particular. The said reasons assigned by the 31 OA.No.170/00079/2023/CAT/BANGALORE authorities, in our considered view, cannot be held to be illegal. Invoking of Rule 14 (ii) sans concluding inquiry under Rule 9 has a rational nexus based on the material available with the subjective satisfaction of the Disciplinary Authority having objective consideration involving the privacy and honour of several women employees, the same cannot be held to be unfair in the circumstances of the case.
30. The plea taken by the applicant in the rejoinder to the reply statement that the proceedings before the fact finding committee were videographed from the mobile of someone and not from video camera just to ensure that the applicant is not aware of the entire thing being videographed denotes that the applicant was oblivious of the proceedings being videographed but the same is not denied by the applicant. The device from which the proceedings are videographed, whether from the mobile phone or videograph camera would not be significant. The fact remains that the proceedings before the fact finding committee were recorded.
31. Yet another point to be considered is that the statements made by the applicant before the fact finding committee that he has taken trial of the spy camera purchased by him through online by 32 OA.No.170/00079/2023/CAT/BANGALORE planting the same in the train and the women's toilet in the railways office cannot be brushed aside. Though the applicant has stated that he has not preserved or maintained such objectionable data collected, fear of reprisal in the minds of women employees cannot be ruled out. Such data can be used to threaten the women employees from participating in the inquiry proceedings. Indeed, the order of the jurisdictional court dated 15.10.2024 indicates that the learned Additional Public Prosecutor sought for treating PW3 - Smt. Ponnamma as partially hostile witness, and accordingly, permission was granted by the Hon'ble Court after recording the statements of the witness PW3 in chief examination. It is pertinent to note that the request made by the learned counsel for the accused in seeking time to cross-examine the said witness having not being substantiated with sufficient cause, cross-examination is taken as nil. Expectation of the authorities that recording of evidence of the complainant and witnesses would be hazardous in exposing them to face inquiry, cross-examination in particular has come true in treating the complainant PW3 in the criminal case as hostile witness partially.
32. The modesty of women being pivotal importance, to renounce practices derogatory to the dignity of women being one of 33 OA.No.170/00079/2023/CAT/BANGALORE the Fundamental Duties enshrined under Article 51 (A) (e) of the Constitution, no lenient view could be taken against such heinous crime of attempting to invade with the privacy of women guaranteed under the Constitution.
33. Such disgraceful conduct, outraging the modesty of women requires to be handled with iron hands to ensure a safe, secure and congenial environment to the women employees at working place. As such, we find no valid ground to interfere even with the quantum of penalty imposed. Viewed from any angle, we find no irregularity or illegality in the orders impugned.
34. For the reasons aforesaid, OA lacks merit. In the result, OA stands dismissed. No order as to costs.
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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