Central Administrative Tribunal - Allahabad
Krishna Kant vs General Manager D.L.W., Varanasi on 6 December, 2023
OA No. 330/00637 of 2016
(Reserved on 20.11.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Allahabad this, the 06th day of December, 2023
Original Application No. 330/00637 of 2016
Hon'ble Mr. Justice Om Prakash VII, Member (Judicial)
Hon'ble Mr. Mohan Pyare, Member (Administrative)
Krishna Kant Employee No.16662, S/o Shri Hiravan Yadav, aged
about 36 years, R/o Village-Sahuwari, Post-Deolash, District Mau, and
was posted as Electrician Grade-III, D.L.W., Varansi
....Applicant
By Advocate: Shri A.D. Singh
VERSUS
1. Union of India, through General Manager, Banaras Locomotive
Works, Banaras
2. Chief Mechanical Engineer, Banaras Locomotive Works,
Banaras
3. Work Manager Progress, Loco, Banaras Locomotive Works,
Banaras
4. Deputy Chief Mechanical Engineer, Loco, Banaras Locomotive
Works, Banaras
...... Respondents
By Advocate: Shri M.K. Sharma
ORDER
By Hon'ble Mr. Mohan Pyare, Member (Administrative):
Shri A.D. Singh, learned counsel for the applicant and Shri M.K. Sharma, learned counsel for the respondents were present at the time of hearing of the present case.Page 1 of 13
OA No. 330/00637 of 2016
2. By means of this OA, the applicant has sought the following reliefs :
I. Quash an impugned order dated 17.03.2015 and 25.05.2015 passed by respondent No. 3 and 4 (shown as Annexure No. A-1 and A-2) this original application in compilation No. I. II. Direct the respondents to reinstate the applicant in service and to pay the arrears of salary from the date of removal to the date of reinstatement with 18% interest per annum and all other consequential benefits like as increments, promotions, upgradation etc. which was not provided due to illegal order of removal.
III. Grant such other relief, as the applicant might be found entitle to, in the fact and circumstances of the case.
IV. Allow the original application with cost in favour of the applicant.
3. The aforesaid O.A. has been heard along with O.A. Nos.548/2012, 754/2017, 1560/2017, 1083/2015, 944/2017, 351/2020 and ongoing through the facts of the aforesaid cases, we find that each case has different issue and as such, the same cannot be decided by passing a common order and consolidated order. Therefore, we have decided to deal with each case separately.
4. The brief facts of the case are that the applicant was initially appointed as Technician Grade-III on 02.03.2009 in D.L.W. Varanasi and working to the satisfaction of the respondents. On 21.07.2014, the Senior Section Engineer/TAS progress prepared a false note sheet with the 10 official witnesses and submitted before the respondent No. 3 alleging that the applicant is not doing the work and refused the same but the real fact is that the said officer was previously prejudiced and not allowed the applicant to work before the inspection of CME(P) D.L.W. Varanasi. Thereafter, the applicant was suspended by the respondent No. 3 vide order dated 21.07.2014 under Rule 4/5 (1) of Railway Servant (Disciplinary and Appeals) Rules 1968 and later on, same was revoked vide order dated 12.01.2015 by the respondent No. 3. In the meantime, on 04.08.2014, respondent No. 3 issued a memorandum of charge sheet against the applicant under the Railway Servants (Disciplinary & Appeal) Rules of Form 5 of major penalty of Rule 9 of The Railway Servants (Disciplinary & Appeal) Rules 1968.
Page 2 of 13OA No. 330/00637 of 2016 The applicant made an application dated 07.08.2014 before the disciplinary authority i.e. respondent No. 3 to provide the documents to show that which allegation has been made against the applicant, but same has been. The applicant made a revision petition on 14.08.2014 under Rule 25 of The Railway Servants (Disciplinary & Appeal) Rules Rule 1968 before the Revisioning Authority Chief Mechanical Engineer production D.L.W. Varanasi to cancel the biased memorandum of charge sheet dated 04.08.2014, but the respondent No. 3 issued an order dated 28.08.2014 appointing the inquiry officer to Sri K.C. Pandey to hold the inquiry in the matter before deciding the revision petition dated 14.08.2014. The applicant thereafter made a representation dated 31.08.2014 before the respondent No. 2 to change the CME/production from revisioning authority and Deputy CME/Loco from the appellate authority on the ground of bias because they have already involved in the matter of the applicant but same has not been done before initiating the inquiry. The inquiry officer had issued a letter dated 03.09.2014 to the applicant with a direction to give the name of his defense assistant to hold to continue the inquiry. On 11.09.2014, the applicant submitted a representation before the disciplinary authority (Respondent No. 3) that first finalize the pending charge sheets dated 01.03.2012 and 08.11.2013 which were issued prior to the charge sheet dated 04.08.2014 and then to proceed in the inquiry on the charge sheet dated 04.08.2014 on the several grounds which has already been made prior to initiating the inquiry, but nothing has been done.
5. The inquiry has further proceeded vide reminder dated 29.09.2014 directing the applicant to submit the name of his defense assistant to continue the inquiry on the charge sheet dated 04.08.2014. The applicant made another representation dated 09.10.2014 before the inquiry officer in which it has been requested to first provide the order of the revisioning authority which was made earlier to cancel the proceedings which was conducted prejudicially by the authorities so that the applicant may submit the name of his defense assistant to continue the inquiry. The inquiry officer issued another letter dated 22.10.2014 to the applicant in which it has been directed to the applicant to submit the name of his defense assistant failing which the Page 3 of 13 OA No. 330/00637 of 2016 ex-parte inquiry will be conducted against the applicant. Thereafter, the applicant made a representation on 30.10.2014 before the disciplinary authority (respondent No. 3) to change the inquiry officer on the ground of bias and to take disciplinary action because the inquiry officer was seriously prejudiced from the date of initiation of the inquiry so that the inquiry may be finalized as earliest within 180 days as per the disciplinary and appeals rules 1968, but no action has been taken nor the inquiry officer was changed. The Senior Personnel Officer Works D.L.W. Varanasi issued a letter dated 02.12.2014 to the applicant in which it has been stated that the respondent No. 2 has passed an order nominating the revisioning authority as Chief Mechanical Engineer, Plant. The inquiry officer issued another letter dated 04.12.2014 to the applicant by which directed the applicant to participate in the inquiry otherwise the inquiry will proceed and same will be finalized ex-parte. The applicant submitted a representation dated 05.12.2014 before Senior Personnel Officer (Works), D.L.W. Varanasi to provide the order passed by the respondent No. 2 before starting the inquiry proceeding but same has not been provided to the applicant. The applicant submitted an application on 06.12.2014 before the inquiry officer to provide the gate pass and the documents relied against the applicant so that the applicant may appear in the inquiry proceeding on the scheduled date of inquiry failing which it will be presumed that the request of the applicant has been refused and whole responsibility will goes upon the administration but same has not been provided to the applicant. The applicant submitted the name of his defense assistant by his application dated 12.12.2014 to continue the inquiry on the charge sheet dated 04.08.2014. Thereafter, the applicant made another application dated 15.12.2014 before the inquiry officer requesting therein to produce the Chief Mechanical Engineer (P) D.L.W. Varanasi as a witness in the inquiry which was the dispute between the applicant as alleged in the charge sheet dated 04.08.2014.
6. The Inquiry Officer after conducting enquiry and considering the defense witness, held that charges are proved against the applicant and submitted his report on 24.02.2015 before the Disciplinary Authority, which was provided to the applicant by the Page 4 of 13 OA No. 330/00637 of 2016 disciplinary authority vide letter dated 27.02.2015, wherein it has also been stated that the applicant should submit the representation before the undersigned for consideration against the inquiry report for passing the final order. In view thereof, on 10.03.2015, the applicant submitted a detailed representation before the disciplinary authority against the inquiry report stating the correct facts and denying the charges with the request to cancel the inquiry report dated 24.02.2015 which has been illegally proved by the inquiry officer. However, the respondent No. 3 without considering the facts and circumstances as well as the ground raised in his representation dated 10.03.2015 illegally passed the removal order dated 17.03.2015, which is subject matter in this O.A. The applicant submitted a representation dated 22.03.2015 before the respondent No. 1 requesting therein to change the appellate authority to Deputy CME(Loco) D.L.W. Varanasi who is respondent No. 4 on the ground of bias. The request of changing the appellate authority has been rejected by the CME plant D.L.W. Varanasi and which was communicated vide letter dated 16.04.2015 by the Senior Personnel Officer Works D.L.W. Varanasi with a direction to the applicant to make the appeal within 45 days. Aggrieved by the removal order, the applicant preferred an appeal on 26.04.2015, raising all the correct facts and circumstances and requesting therein to cancel the impugned punishment of removal from service with all consequential benefits to the applicant, but the Appellate Authority has rejected the appeal of the applicant by impugned order dated 25.05.2015 upholding the punishment of removal. Hence, the applicant has been constrained to knock the door of this Tribunal, challenging the order dated 17.03.2015 and 25.05.2015.
7. Heard the learned counsel for the parties.
8. Mr. A.D. Singh, learned counsel for the applicant assailed the impugned orders dated 17.03.2015 and 25.05.2015 on the ground that the Disciplinary Authority and Appellate Authority did not consider the grounds raised by the applicant and in a most arbitrary manner, passed the impugned orders, imposing major penalty of removal from service. The allegation against the applicant is not of serious in nature, but the respondents on exercise of colourable power, passed the major Page 5 of 13 OA No. 330/00637 of 2016 punishment, which is disproportionate to the charges levelled against the applicant. The punishment of removal from service is a very harsh punishment. While proving the charges against the applicant, the Inquiry Officer did not consider the statement of the officials witnesses as they are not proving the charges against the applicant, which is not permissible in the eyes of law. The actions and proceedings are concluded in arbitrary manner on the ground of bias. The revision petition of the applicant for cancellation of biased memorandum of charge under Rule 25 of The Railway Servants (Disciplinary & Appeal) Rules Rule, 1968 has not been considered by the respondents. The representation of the applicant regarding change of CME/Production from Revisioning Authority and Deputy CME/Loco from the Appellate Authority has not been considered before initiation of inquiry, which is not tenable in the eyes of law. The representation of the applicant regarding finalization of pending charge-sheets dated 01.03.2012 and 08.11.2013 and then to proceed in the inquiry of charge-sheet dated 04.08.2014, but the respondents did not consider the same. The Inquiry Officer has failed to consider the correct facts, as stated by the applicant.
9. Per contra, counter-reply has been filed. Shri M.K. Sharma, learned counsel for the respondents, who drew the attention of the Court towards counter-reply and submitted that the applicant had joined DLW/Indian Railway as Electrician Grade-III on 02/03/2009 and from the very beginning, the delinquent employee has shown his reluctance to perform his duties and because of his adamant behaviour, he was counseled and given minor penalties and major penalties charge-sheets but delinquent employee had not mend his ways. After his refusal to work when instructed by Chief Mechanical Engineer/Production himself, a suspension note dated 21.07.2014 was issued to him stating therein reasons that because of refusal of work and non-acceptance of work order, he was suspended. Further, a major penalty memorandum of charge sheet no. WP/DA/14/238 dated 04.08.2014 was issued to the applicant with specific charges of indiscipline as manifested by his refusal of work i.e. not following lawful instructions (related to his official work) despite being repeatedly instructed by Chief Mechanical Engineer/Production.
Page 6 of 13OA No. 330/00637 of 2016 Regularly, the applicant was not performing his duties properly, Senior SSE/TAS was regularly facing a lot of problem due to the applicant's above conduct. It is a common approach and tendency of the applicant to term each and every official biased against him. The charge sheet dated 4.8.2014 has been correctly issued by the competent authority.The said indiscipline is entirely covered under the provisions of General Rule 3 Sub- Rule-I (ii) & (iii) of The Railway Service (Conduct) Rules, 1968 viz. Every Railway Servant shall maintain at all times (ii) Devotion to Duty & (iii) Do nothing, which is unbecoming of a Railway Servant, which has been clearly stated in the charge-sheet, therefore charge-sheet dated 04.08.2014 had been issued as per extent rules.
10. Learned counsel for the respondents further stated that the applicant had been issued charge-sheet with relevant annexure, which contains all the relevant information for framing the preliminary defence, which was required at that stage, however inquiry officer has taken note of the documents asked by the applicant and a considered decision has been conveyed to the applicant vide letter no. WP/DA/14/238 Dated 09/12/2014. The inquiry proceeding was as per extent rules and it has nowhere flouted any procedural rules. Inquiry officer has provided full opportunity to the applicant to examine/cross examine the relevant witnesses and thereafter, the Inquiry Officer held that the charges leveled against delinquent employee were proved. There was no material on record against CME/Production Dy. CME/Loco regarding their biasness against the applicant; as such allegations are after thought and without any basis. In view of applicant's request letter dated 30.10.2014, competent authority has decided to nominate CME (Plant) as revisionary authority instead of CME (Production). The applicant was repeatedly lingering the matter by making unnecessary correspondence and insisting for finalizing the charge sheet, whereas inquiry proceeding was already going on. Each and every details related to the Railway Servants (Disciplinary & Appeal) Rules case has been considered by the inquiry officer. The representation against the inquiry report was considered by the competent authority as per rules. Dy. CME (Loco) DLW, Varanasi, respondent No. 4 was prejudiced to the applicant prior to initiation of Page 7 of 13 OA No. 330/00637 of 2016 the departmental inquiry, same are afterthought and without any basis. Accordingly the same has been correctly rejected by the CME, DLW, Varanasi and communicated to the applicant vide his letter dated 16.4.2015. The applicant was further requested to submit his objection/written brief against inquiry report, the delinquent employee had submitted detail written objection vide letter dated 16.02.2015.
11. Learned counsel for the respondents further contended that after considering the facts and circumstances and other relevant material on record of proceeding and after due application of mind, Disciplinary Authority has shown his agreement with the findings of enquiry officer and passed impugned order of removal dated 17.03.2015. The appellate Authority also upheld the punishment of removal vide impugned order dated 25/05/2015 with the observation that "There are no mitigating circumstances which merit a reduction of the existing penalty". The said appellate order is reasoned and speaking order, there is no illegality or infirmity. He further stated that surprisingly, the applicant has not said anything about his removal from service in two different O.A. bearing No. 1066 of 2015 & 1083 of 2015, which were filed after the removal order dated 17.03.2015. Both these O.A.'s are filed before this Hon'ble Tribunal with different prayers, instead of challenging the removal order. The impugned order of removal dated 17.3.2015 as well as Appellate order was passed as per existing rules & regulations and after due application of mind and with proper understanding, which is also a reasoned and speaking order and as such, instant O.A. is liable to be dismissed.
12. In reply to the same, Mr. A.D. Singh, learned counsel for the applicant drew the attention of the Court towards rejoinder affidavit, wherein, it is stated as per the Railway Servants (Disciplinary & Appeal) Rules-1968 letter [D.G. P & T letter No. 201/43/76-DISC, II, dated the 15th July 1976] para 1-b (v) states that refusal or deliberate failure to carry out written orders of supervisory officers, can be ground for suspension and in inquiry CME/P has accepted that the applicant has not disobeyed any written order given by him, which proved that the applicant was suspended in a wrong way. There was no order given by CME/P to the applicant, hence the charge-sheet Page 8 of 13 OA No. 330/00637 of 2016 No.WP/DA/14/238 dated 04.08.2014 was based on the false and fabricated story and there was no violation made by the applicant of any rules under Railway Service Conduct Rules, 1966. In annexure of the charge-sheet, there was no including copy of written order given by CME/P and the name of that two men, who were talking with applicant. The enquiry completed by respondents is biased and against the provisions of The Railway Servants (Disciplinary & Appeal) Rules- 1968 and the objection made by the applicant were not decided by the respondents. The Ad-hoc Disciplinary Authority must be appointed in this matter because all the officers (I.O., D.A. and Appellate Authority) were direct under the control of CME/P, which are itself involved in this case and witnesses in the inquiry. The Appellate Authority did not consider the fact presented by the applicant and the appellate order was passed in an irresponsible manner. The respondents refused to receive the registered application regarding the document and proceeded the inquiry ex-parte without waiting the reply of the applicant. This action is against the provision of The Railway Servants (Disciplinary & Appeal) Rules-1968. It is further stated when charge- sheet was placed under revision as per rule 25 of The Railway Servants (Disciplinary & Appeal) Rules-1968, there was no chance for inquiry proceeding without decision of the Revising Authority and without waiting the decision of Revising Authority, appointment of the Inquiry Officer is violation of the provision of The Railway Servants (Disciplinary & Appeal) Rules-1968 and natural justice. The application dated 31.08.2014 have material witnesses against the CME/P and other officers which cannot be ignored anyhow but CME did not replied the application till date. As per principles of natural justice, earlier inquiry proceeding must be completed first and there are no rule in the Railway Servants (Disciplinary & Appeal) Rules-1968 in this regard. The respondents could not present any rule by which earlier proceeding can be kept pending for unlimited time without any reason. Since the decision of Revision Authority was pending against the charge-sheet, hence no proceeding can continue on the charge-sheet.
13. Mr. A.D Singh, further submitted that the biasness represented against the Inquiry Officer and Disciplinary Authority must be decided by Revising Authority under Rule 25 of The Railway Page 9 of 13 OA No. 330/00637 of 2016 Servants (Disciplinary & Appeal) Rules- 1968 since this decision is judicial in nature, hence cannot be passed by any other Authority /SPO/W, who are not authorized to sign on behalf of Revision Authority and as such, SPO/W order to proceed the inquiry against the biasness application is totally illegal. The Inquiry Officer did not followed the The Railway Servants (Disciplinary & Appeal) Rules Rules, 1968 and he followed the unauthorized instruction of SPO/W in place of Revising Authority and proceeded the inquiry. As per The Railway Servants (Disciplinary & Appeal) Rules-1968, decision of Revising Authority should be made available to the applicant before starting the inquiry and after an application, SPO/W cannot deny to give the decision of Revisioning Authority. The whole inquiry procedure is against the Railway Servants (Disciplinary & Appeal) Rules-1968 and in violation of natural justice and as such, impugned orders are liable to be quashed and set aside.
14. Be that as it may, having heard the rival submissions of the parties and on perusal of the records, it appears that charge sheet no. WP/DA/14/238 dated 04.08.2014 was issued against the applicant with specific charges of indiscipline as manifested by his refusal of work i.e. not following lawful instructions (related to his official work) despite being repeatedly instructed by Chief Mechanical Engineer/Production. Inquiry officer has provided sufficient opportunity to the applicant to defend his case and also applicant took part in enquiry proceeding though belatedly and examined/cross examined the relevant witnesses and thereafter, the Inquiry Officer held the charges levelled against delinquent employee „proved‟ based on available facts and on proper appreciation of evidences. Based on the inquiry report, the Disciplinary Authority has removed the applicant from the services vide order dated 17.03.2015. We do not find any lacuna in conducting the enquiry against the applicant. The Enquiry Officer has followed the procedures prescribed and provided due opportunity to applicant during the enquiry proceedings. The allegation of bias is taken as a generic allegation by applicant. The Officers alleged to have bias have not been made respondents in the instant O.A. Neither any specific instance has been quoted, leading to bias. It Page 10 of 13 OA No. 330/00637 of 2016 is very hard to believe that entire department was biased against an ordinary employee and that too without any rhyme and reason.
15. So far as contention of the learned counsel for the applicant regarding punishment of removal from service is very harsh is concerned, it appears from the record that there is a charge of refusal to work i.e. not following lawful instructions (related to his official work) despite being repeatedly instructed by Chief Mechanical Engineer/Production. The question of interference on the quantum of punishment has been considered by the Hon‟ble Apex Court in a catena of judgments such as, in case of Ranjit Thakur v. Union of India [Ranjit Thakur v. Union of India, (1987) 4 SCC 611, the Hon‟ble Apex Court observed as under : (SCC pp. 620-21, paras 25 &
27) "25. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.
***
27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review."
(emphasis supplied)
16. In case of B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749, the Hon‟ble Apex Court after examining its various earlier decisions observed that „in exercise of the power of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself Page 11 of 13 OA No. 330/00637 of 2016 impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, the court can also consider the circumstances under which the misconduct was committed'.
17. In case of V. Ramana v. A.P. SRTC [(2005) 7 SCC 338, the Hon‟ble Apex Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the Court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the court itself can impose appropriate punishment by recording cogent reasons in support thereof.
18. Further, the Hon‟ble Apex Court in case of Lucknow Kshetriya Gramin Bank Vs. Rejendra Singh, reported in (2013) 12 SCC 372 in the placitum has held as under:-
" However, the judicial review of the quantum of punishment is available with a very limited scope. The Court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the Court. Even in such a case when the punishment is set aside as shocking disproportionate, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be penalty in such a case."
19. In view of the above discussions made hereinabove and also the judicial pronouncement on the subject, we are of the considered opinion that the order of punishment i.e., removal from service is very harsh and disproportionate in respect to the charges levelled against the applicant, the impugned order dated 17.03.2015 Page 12 of 13 OA No. 330/00637 of 2016 passed by the Disciplinary Authority and order dated 25.05.2015 passed by the Appellate Authority are liable to be quashed and set aside to the extent of imposing punishment of removal from service and as such, impugned orders are set aside. Thus, the present O.A. stands partly allowed. The matter is remitted back to the respondent- authorities i.e., Disciplinary Authority to consider the case of the petitioner for grant of lesser punishment other than removal and dismissal, within a period of four months from the date of receipt of a copy of this order. It is made clear that applicant is also entitled for all consequential benefits.
20. No order as to costs.
21. All MAs pending in this O.A. also stand disposed off.
(Mohan Pyare) (Justice Om Prakash VII)
Member(Administrative) Member (Judicial)
PM/
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