Central Administrative Tribunal - Delhi
Banwari Lal Kothari vs M/O Railways on 14 December, 2018
Central Administrative Tribunal
Principal Bench
OA No.3435/2013
Order Reserved on: 13.12.2018
Pronounced on:14.12..2018
Hon'ble Shri K.N. Shrivastava, Member (A)
Hon'ble Shri S.N. Terdal, Member (J)
Banwari Lal Kothari,
Station Master,
Northern Railway,
Dehradun,
R/o 7 Doon Gati Karamchari Awash Samiti,
Dehradoon, U.K.
-Applicant
(By Advocate: Mrs. Meenu Mainee)
Versus
Union of India: Through
1. General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. Chief Operating Manager,
Northern Railway,
Baroda House,
New Delhi.
3. Divisional Railway Manager,
Northern Railway,
Moradabad.
-Respondents
(By Advocate: Shri Shailendra Tiwary)
2
OA No.3435/2013
ORDER
Shri K.N. Shrivastava, Member (A) :
Through the medium of this Original Application (OA) filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:
"8.1 That this Hon'ble Tribunal may graciously be pleased to allow this application and quash the impugned orders.
8.2 That this Hon'ble Tribunal may also be graciously pleased to direct the Respondents to restore the applicant to his original position and to give all consequential benefits, including back wages. "
2. The factual matrix of the case, as noticed from the records, is as under:
2.1 The applicant joined the Northern Railway as an Assistant Station Master in the year 1985 and was promoted to the grade of Station Master in the year 2000. On 06.01.2012 Annexure A-4 charge memo came to be issued to him alleging that he did not report for duty as Station Master Laxar on 09.11.2011 and when he was asked reason for reporting late, without saying anything he left the place. The second charge against the applicant is that despite having been allotted an official quarter at Laxar he was not residing at Laxar and instead was commuting from Dehradun to Laxar.
2.2 Pursuant to the charge-memo, inquiry was conducted. The Inquiry Officer (IO) concluded in his report that the charges against the applicant were proved.3 OA No.3435/2013
2.3 Acting on the IO's report, the Disciplinary Authority (DA), namely Senior Divisional Operating Manager, Moradabad, vide his impugned Annexure A-1 order 09.01.2013 imposed the penalty of compulsory retirement on the applicant.
2.4 The applicant preferred his statutory appeal before the departmental Appellate Authority (AA), i.e., Additional Divisional Railway Manager, Moradabad, who vide his impugned Annexure A-2 order dated 07.03.2013 converted the penalty of compulsory retirement imposed by the DA to reverting the applicant in the lower pay grade of Rs.5200-20200+grade pay Rs.2800/- and fixed his pay at Rs.10,160/. The order further stated that future increments should be granted accordingly and that the period from 09.01.2013, i.e., the date of compulsory retirement ordered by the DA and till the date of his joining duty will be treated as 'non-duty'.
2.5 The applicant preferred a revision petition against the order of the AA before the Revisionary Authority (RA), namely the Chief Operating Manager (G), Northern Railway, who vide his impugned Annexure A-3 order modified the punishment awarded by the AA in the following terms:
"4. From all the date provided to me the punishment appears to be on higher side & I propose to reduce the quantum of punishment to give opportunity to you to improve. Your punishment is reduced from grade 9300-34800 with grade pay Rs.4200 at which you were working originally to 9300-34800 at basic pay of Rs.9300 with grade pay Rs.4200/- without future effect for 5 years."4 OA No.3435/2013
2.6 Aggrieved by the impugned Annexures A-1, A-2 and A-3 orders the applicant has approached the Tribunal in the present OA praying for the reliefs as indicated in para-1 supra.
3. Pursuant to the notices issued, the respondents filed their reply to which a rejoinder was filed by the applicant.
4. On completion of the pleadings, the case was taken up for hearing the arguments of the learned counsel for the parties. Arguments of Mrs. Meenu Mainee, learned counsel for the applicant and that of Shri Shailendra Tiwary, learned counsel for the respondents were heard on 13.12.2018.
5. Mrs. Meenu Mainee, learned counsel for the applicant submitted that in terms of Annexure A-5 memorandum of the Railway Board it was mandatory on the part of the respondents to list the authors of all the documents relied in the inquiry proceedings as witnesses. She submitted that the IO has heavily relied upon the report of the Traffic Inspector but neither his report was made available to the applicant nor was he listed as a prosecution witness. The action of the respondents in not doing so was in violation of the aforementioned instructions of the Railway Board. She further argued that all the impugned orders are non- speaking orders. Mrs. Mainee also placed reliance on the following judgments of the Hon'ble Supreme Court to say that it is settled law 5 OA No.3435/2013 that suspicion, however strong, cannot be substituted for proof even in departmental proceedings:
i) Ministry of Finance & Anr. v. S.B. Ramesh, [JT 1998 (1) SC 319].
ii) Moni Shankar v. Union of India & Anr., [2008 (3) AISLJ SC 325].
She further argued that the past record of the applicant could not have been taken into consideration by the respondents in passing the impugned orders. She said that from Annexure A-1 order of the DA, it is quite clear that in passing the said order the DA has taken the past record of the applicant into consideration and as such this order is illegal and so also the orders of higher authorities, i.e., AA and RA, which are based on it.
6. Per contra, Shri Shailendra Tiwary, learned counsel for the respondents argued that both the charges against the applicant have been conclusively proved by the IO in his report. Shri Tiwary vehemently controverted the argument of Mrs. Mainee that a copy of the Traffic Inspector report was not made available to the applicant during the course of the inquiry. He said that a copy of the Traffic Inspector report was served upon him and a copy of the acknowledgement duly signed by the applicant is placed on record as Annexure R-1. The learned counsel for the respondents submitted that on the issue of taking into consideration the past service records of a Government servant in the matter of conduct of 6 OA No.3435/2013 disciplinary inquiry subsequently is well settled by the Hon'ble Apex Court. He submitted that such records can be taken into consideration. In this regard, he relied on the judgment of the Hon'ble Apex Court in the case of Dr. Umrao Singh Choudhary v. State of M.P., [(1994) 4 SCC 328].
7. We have considered the arguments of the learned counsel for the parties and have also perused the pleadings. The scope of judicial review in the departmental proceedings is highly limited. However, we consider it necessary to refer to some of the important decisions on the issue of judicial review.
7.1 According to Lord Diplock, in the case of Council of Civil Service v. Minister of Civil Service [1985 AC 374] -
"Administrative action is subject to control by judicial review on the following three grounds-
i) illegality;
ii) irrationality
iii) procedural impropriety
Principle of proportionality could also be a ground."
7.2 Laying down the scope of judicial review, the Hon'ble Apex Court in Union of India v. P. Gunasekaran, [(2015) 2 SCC 610] has observed as under:
"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In 7 OA No.3435/2013 disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;"
(Emphasis supplied) 7.3 In B.C. Chaturvedi v. Union of India & Others, [(1995) 6 SCC 749] the Hon'ble Apex Court on the scope of judicial review has held as under:
"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of 8 OA No.3435/2013 statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
7.4 The Hon'ble Apex Court in Ashif Hamid v. State of J&K, [(1989) Supp. 2 SCC 364] & Ekta Shakti Foundation v. Govt. of NCT of Delhi, [(2006) 10 SCC 337] has held as under:
"i) "While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Ashif Hamid v. State of J. & K. (AIR 1989 SC 1899), Shri Sitaram Sugar Co. v. Union of India (AIR 1990 SC 1277).
ii) The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere.
iii) The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation."
8. In the instant case, we find that the inquiry has been conducted as per the prescribed procedure and the principles of natural justice have been followed at every stage. The applicant has participated in the inquiry proceedings and has been provided ample opportunities to defend himself. The records indicate that a copy of the Traffic Inspector report was made available to the applicant. There is nothing on record to show that the applicant ever insisted on the examination of the Traffic Inspector during the 9 OA No.3435/2013 course of enquiry. As such, we do not accept the plea of Mrs. Meenu Mainee, learned counsel for the applicant that there has been any violation of the procedure in the conduct of the inquiry.
9. The charges levelled against the applicant of not reporting for duty in time and not residing at Laxar in his official quarter have been found to be true by the IO. The final punishment awarded by the RA, denying the applicant from earning increments for five years without cumulative effect, is not at all disproportionate to the misconduct of the applicant. The reference of his past misconduct by the DA in its order cannot be faulted upon which is matter of record.
10. In the conspectus of the discussions in the foregoing paras, we do not find any merit in the OA. It is dismissed accordingly.
11. There shall be no order as to costs.
(S.N. Terdal) (K.N. Shrivastava) Member (J) Member (A) 'San.'