Central Administrative Tribunal - Delhi
Shri Sanjeev Kumar Saini vs Union Of India Through on 20 February, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA No.83/2012
MA No. 63/2012
Order Reserved on: 3rd January, 2014
Order pronounced on: 20th February, 2014
HONBLE SHRI G.GEORGE PARACKEN, MEMBER (J)
HONBLE SHRI SHEKHAR AGARWAL, MEMBER (A)
Shri Sanjeev Kumar Saini
S/o Shri Prem Nath Saini,
Presently residing at
C/o Shri Tarun Kumar,
C-19, Nenhai Park,
Uttam Nagar, Delhi-110059.
Applicant
(By Advocate: Sh. Yogesh Sharma)
Versus
Union of India through
1. General Manager
Northern Railway,
Headquarters Office,
Baroda House,
New Delhi.
2. FA & CAO/C/N,
Northern Railway,
Kashmere Gate, Delhi.
3. Dy. F.A./C,
Northern Railway,
Jammu Tawi.
Respondents
(By Advocate: Sh. Rajinder Khatter)
ORDER
By Honble Shri G.George Paracken, Member (J) In this Original Application, challenge of the Applicant against (i) order No.2003/Const/A/Cs/JURL/ JAT/Confdl/S.K. dated 15.4.2006 passed by the Disciplinary Authority imposing upon him the penalty of compulsory retirement, (ii) order No.XEN/C/D/DAR/ 2005/JAT dated 15.6.2006 whereby the Appellate Authority reduced the aforesaid penalty to that of reduction in time scale of pay by 5 stages to Rs.7100/- per month for a period of 5 years with cumulative effect with the direction that during the currency of penalty no increments will be granted and on expiry of penalty, at the time of re-fixation of pay, increments for the period withheld will not be taken into consideration and (iii) the order No. XEN/C/D/DAR/2005/JAT dated 9.11.2006 passed by the Revisionary Authority communicated through the Disciplinary Authority rejecting his revision petition.
2. The brief facts of the case are that, vide Memorandum dated 15.1.2003, the Applicant was proceeded against under Rule 9 of Railway Servant (Discipline & Appeal) Rules, 1968. The Article of Charge framed against him, the Statement of Imputation of Misconduct in support of the aforesaid Article of Charge, the lists of documents and witness by which/whom the aforesaid Article of Charges proposed to be sustained are as under:
Articles of Charges Sh. Sanjeev Saini, WA, under Dy. Chief Engineer/S&C-III at Udhampur, misbehaved with Sh. Nand Ram, XEN/S&C/IV/I/UDM by physically assaulting him and by using abusing language while Sh. Nand Ram, XEN was working in his office on 04.01.2003. This is an act of unbecoming of railway servant on part of Sh. Sanjeev Saini and tentamounts to failure of devotion to duty and is in violation of provision of Rule 3 (1) (ii) & (iii) of Railway Services (Conduct) Rules, 1966. Statement of Imputation of Misconduct As per letter No. S&C-4/E/1 dated 04.01.2003 from DyCE/S&C-IV, Northern Railway, Udhampur, enclosing representation from Sh. Nand Ram, XEN/S&C-IV/I/UDM, Sh. Nand Ram, XEN & Sh. D.P.Garg, JE/S&C/IV/UDM were working in the chamber of Sh. Nand Ram on 04.01.2003. At about 12.55 hrs Sh. Sanjeev Saini, WA/S&C/3 & Sh. Joginder Pal, CDM/S&C/1 went to the chamber Sh. Sanjeev Saini, started shouting and subsequently closed the door of the chamber from inside Sh. Sanjeev Saini, physically assaulted and used abusive language. When Sh. Nand Ram rushed to toilet and closed it from inside to save him, Sh. Sanjeev Saini kept on shouting and abusing from outside and from outside and tried to open the door forcibly. Sh. Sanjeev Saini, used unparliamentary language also.
By the above acts Sh. Sanjeev Saini, disrupted railway working while himself being on duty and insulted his superior and has shown lack of devotion to duty and acted in a manner unbecoming of railway servant thus contravening rule 3 (1) (ii) & (iii) of Railway Services (Conduct) Rules, 1966. List of Documents by which the Article of Charges framed against Sh. Sanjeev Saini working as W.A. under Dy. Chief Engineer/Survey & Const-III/Udhampur are proposed to be substantiated.
1. Medical prescription by CMP/Udhampur dated 04.01.2003. List of Witness by whom the Article of Charges framed against Sh. Sanjeev Saini working as W.A. under Dy. Chief Engineer/Survey & Const-III/Udhampur are proposed to be substantiated.
1. Sh. Ashwani Kumar, AEE/S&C/I/UDM
2. Sh. D.P.Garg, JE/W/S&C/IV/UDM
3. The enquiry officer submitted his report on 13.6.2005 with his conclusion that it was established that the Applicant has disrupted railway working and insulted his superior. According to the Enquiry Officer, as per the statement of the victim Sh. Nand Ram, the Applicant manhandled and physically assaulted him and, therefore, he had to rush to the bathroom to bolt himself from inside to save him from the Applicant. However, since there was no eye witness for the physical assault. Therefore, it could not be confirmed whether there was any physical assaulting or mishandling of Shri Nand Ram by the Applicant. But keeping in view the statement of the prosecution witness Sh. Ashwani Kumar and lack of evidences from defence side, it was proved that the Applicant used unparliamentarily language against Sh. Nand Ram and tried to open the door of bathroom forcibly by beating it. The relevant part of the said report is as under:
DISCUSSION OF CHARGES LEVELLED AND FACT FINDING DURING ENQUIRY:
As per Annexure-I (Article of charges) served alongwith S.F-5 of charge sheet no.S&C/3/DARS/SS dated 15.01.03 received by Shri Sanjeev Saini on 15.01.03. The following charge has been leveled that:-
Shri Sanjeev Saini, W.A under Dy.CF/S&C/3/UHP, misbehaved with Shri Nand Ram XEN/S&C/IV/UHP by physically assaulting him and by using abusing language while Shri Nand Ram was working in his office on 04.01.03.
In support of above article of charge the representation dated 04.01.03 of Shri Nand Ram XEN/S&C/IV/UHP(photocopy placed at S.No.24) states that at about 12.55 hrs. on 04.01.03 when he was working in his office along with Shri D.P. Garg, JE/S&C/IV/UHP, Shri Sanjeev Saini came to his office along with Shri Joginder Pal, CDM under Dy.CE/S&C/I/UHP and wanted to discuss some matter with him. After sitting on chair Shri Sanjeev Saini said in shouting to improve his working. At this moment Shri D.P. Garg JE/W had gone out, then Shri Sanjeev Saini closed the door of the room from inside and mishandled and physically assaulted him. Shri Nand Ram rushed to the toilet and bolted from inside to save him. Shri Sanjeev Saini kept on shouting and abusing and was trying to open the door forcibly with his goons who were waiting outside. At about 13.15 hrs. Shri Naveen Aggarwal, Dy.CE/S&C/IV came there and asked them to go away and asked Shri Nand Ram to open the door, then he opened the door and came to the office of the DY. CE/S&C/IV/UHP alongwith him. To enquire into the facts, the detailed enquiry has been held and outcome is as detailed below:
Was Shri Nand Ram working in his office on 04.01.2003 at about 12.55 hrs and Shri Sanjeev Saini came to him for some discussion regarding staff Members?
(a) It is proved by the statement dated 04.01.2003 (S.No.23) and reply to questions 1 to 5 of hearing dated 14.10.03 (S.No.132) and reply to question no.37 of hearing dated 04.08.05 (S.No.336/1-2) by Shri D.P.Garg, JE/W witness of the incidence.
This is also proved with the statement (S.No.19) of Shri Ashwani Kumar, AEE/S&C/I/UHP and witness in the case and reply to question 1&3 of hearing dated 14.10.03(S.No.136) As per statement (S.No.17) of Sh. Joginder Pal, who was with Shri Sanjeev Saini at the time of incidence, it is proved that Shri Sanjeev Saini went to the Chamber of Sh. Nand Ram, XEN/S&C/UHP on 04.01.03 Sh. Sanjeev Saini has been given full opportunity to produce evidence in his defence and cross examine the witnesses vide Q.No.1 to 9 of proceeding dated 18.08.05 (S.No.359/1-5) but he failed to produce any evidence in his defence and also failed to bring his defence helper on 15 hearing out of 17 calls of hearing.
In view of above, it is proved that Shri Sanjeev Saini came to the chamber of Shri Nand Ram, XEN/S&C/UHP for some discussion at about 12.55 hrs. on 04.01.03 Was the door of the office of Shri Nand Ram XEN/S&C/UHP bolted from inside by Shri Sanjeev Saini?
(a) As per statement of Shri Nand Ram the door of the room was closed and bolted from inside by Shri Sanjeev Saini.
As per statement dated 04.01.03 (S.No.23) of Shri D.P.Garg, JE/W, the room was closed from inside. Also in reply of question no.18 of hearing dated 14.10.03 (S.No.130) he states that door was closed and was not bolted from outside.
As per statement of Shri Ashwani Kumar witness (S.No.190) the door was bolted from outside he opened the bolt from outside and entered into the office which proves that room was no bolted from inside. He also confirms this in reply of question No.2 and 5 of hearing dated 14.10.03(S.No.136).
Shri Sanjeev Saini has denied the above charge vide his application no. Nil dated 28.01.03(S.No.06) As per statement dated 14.01.03(S.No.17) of Shri Joginder Pal, no misbehaviour has been done with Shri Nand Ram by Shri Sanjeev Saini. Since, Shri Joginder Pal was accompanying Shri Sanjeev Saini at the time of incidence. His denial does not carry much weight age.
Shri Sanjeev Saini has been given full opportunity to produce evidence in his defence and cross examine the witnesses vide Q No.1 to 9 of proceeding dated 18.08.05 (S.No.359/1-5) but he failed to produce any evidence in his defence and also failed to bring his defence helper on 15 hearings out of 17 calls of hearing.
In view of the above inquiries, due to contrary statement of witnesses, it is not proved that the door was bolted from inside or outside and by whom the door was closed. But it is proved that the door was closed at the time of incidence.
(iii) Was Shri Nand Ram mishandled and physically assaulted by Shri Sanjeev Saini?
As per statement of Shri Nand Ram he was mishandled and physically assaulted by Shri Sanjeev Saini.
The medical prescription (slip) by CMP/Udhampur dated 04.01.2003 which is part of list of documentary by which Article of Charges are proposed to be sustained (S.No.18) which shows that Shri Nand Ram XEN/S&C/UHP was having chest pain due to injury 1 day and anxiety -1 day.
The prescription slip does not bear the name of any medical institution i.e. Hospital, Dispensary, Health Unit, the name, designation & stamp of doctor. It also cannot affirmly be said about the medical prescription.
As proved in above (ii) that the door of the room of Shri Nand Ram XEN/S&C/UHP was closed and as per reply of question no. 20 of hearing dated 14.10.03 by Shri D.P.Garg loud sounds of speaking were coming from inside the room.
As per reply to question no. 1,2,6 & 8 of hearing dated 14.10.03 by Shri Ashwani Kumar witness (S.No.135-136) Loud sounds were coming from closed room of Shri Nand Ram XEN/S&C/UHP. Shri Sanjeev Saini was angry, using unparlimentary language and beating the door of bathroom.
Also as per reply of Question 7 & 9 of hearing dated 14.10.03 by Shri D.P.Garg, Shri Sanjeev Saini was not having any weapon and he heard no word of threatening from Shri Sanjeev Saini.
As per reply of Question no.9 of hearing dated 14.10.03 by Shri Ashwani Kumar, he also heard no threat from Shri Sanjeev Saini. Also as per reply to Question no.15, 16,17 & 18 of hearing dated 14.10.03 by Ashwani Kumar, Shri Sanjeev Saini was not intoxicated nor having any weapon, nor heard the sound of weeping.
Shri Sanjeev Saini has denied the above charge vide his application no. nil dated 28.01.03(S.No.6) As per statement dated 14.01.03 (S.No.17) of Shri Joginder Pal, no misbehaviour has been done with Shri Nand Ram by Shri Sanjeev Saini. Since Shri Joginder Pal was accompanying Shri Sanjeev Saini at the time of incidence. His denial does not carry much weight age.
Shri Sanjeev Saini has been given full opportunity to produce evidence in his defence and cross examine the witenesses vide Q.No.1 to 9 of proceeding dated 18.08.05 (S.No.359/1-5) but he failed to produce any evidence in his defence and also failed to bring his defence helper on 15 hearing out of 17 calls of hearing.
In view of the above inquiries, since no eye witness of physical assaulting are available so it cannot be confirmed whether any physical assaulting or mishandling was done or not.
(iv) If any shouting, abusing and try to open the door of bathroom forcibly was done by Shri Sanjeev Saini when Shri Nand Ram closed him self in the bathroom?
As per statement of Shri Nand Ram, he rushed to the bathroom & bolted from inside to save him from Shri Sanjeev Saini.
As per statement of Shri Ashwani Kumar (S.No.19) Shri Nand Ram XEN/S&C/UHP was inside the bathroom which was bolted by him from inside and Shri Sanjeev Saini was banding the bathroom door and shouting to get it opened by using abusing language.
As per reply to Question no. 6,7,8 &9 of hearing dated 14.10.03 by Shri Ashwani Kumar it is confirmed that Shri Sanjeev Saini was beating the door of bathroom, he was angry and using unparliamentarily language. Again in reply to question no. 26 & 27 of hearing dated 25.07.05 (S.No.314/1-2) by Shri Ashwani Kumar it was reconfirmed that Shri Nand Ram was inside bathroom and Shri Sanjeev Saini was beating the door of bathroom.
From the statement of Shri Ashwani Kumar witness it is proved that Shri Sanjeev Saini has used unparliamentarily language against Shri Nand Ram XEN/S&C/UHP and tried to open the door of bathroom forcibly by beating it when Shri Nand Ram XEN/S & C/UHP was inside it.
Sh. Sanjeev Saini has denied the above charge vide his application no. nil dated 28.01.03(S.No.6).
As per statement dated 14.01.03(S.No.17) of Shri Joginder Pal, no misbehaviour has been done with Shri Nand Ram by Shri Sanjeev Saini. Since Shri Joginder Pal was accompanying Shri Sanjeev Saini at the time of incidence. His denial does not carry much weight age.
Shri Sanjeev Saini has been given full opportunity to produce evidence in his defence and cross examine the witnesses vide Q No.1 to 9 of proceeding dated 18.08.05 (S.No.359/1-5) but he failed to produce any evidence in his defence and also failed to bring his defence helper on 15 hearings out of 17 calls of hearing.
Keeping in view the statement of Shri Ashwani Kumar witness and lack of evidences from defence side, it is proved that Shri Sanjeev Saini has used unparliamentarily language against Shri Nand Ram XEN/S &C/UHP and tried to open the door of bathroom forcibly by beating it.
Were any goons/supporters of Shri Sanjeev Saini waiting outside the room of Shri Nand Lal, XEN/S&C/UHP and raising slogans against him?
As per representation (S.No.24) of Shri Nand Ram, Shri Sanjeev Saini was abusing and trying to open the door forcibly with his goons who were waiting outside.
AS per statement (S.No.19) of Sh. Ashwani Kumar witness, Shri Sanjeev Saini came out and raised slogans with the crowd of other staff against Sh. Nand Ram. Also in reply to Question NO.4,12,20,24&25 of hearing dated 14.10.03 by Shri Ashwani Kumar it is proved that about 15-20 supporters of Shri Sanjeev Saini were outside the room of Shri Nand Ram, XEN/S&C/UHP, who also raised slogans along with Shri Sanjeev Saini. In reply to question no. 26 of hearing dated 25.07.05 by Shri Ashwani Kumar it is reconfirmed that there were some people outside the chamber of Shri Nand Ram XEN/S&C/UHP at the time of incidence.
As per reply to question no.17 of hearing dated 14.10.03 by Shri D.P.Garg it is proved that they were 10-12 people outside the room of XEN/S&C/UHP. In reply to Q.No.37 of hearing dated 04.08.05 (S.No.336/1-2) by Shri D.P.Garg that some crowd of staff was there outside the chamber of Shri Nand Ram XEN/S&C/UHP.
Shri Sanjeev Saini has denied the above charge vide his application no. nil dated 28.01.03 (S.No.6) As per statement dated 14.01.03(S.No.17) of Shri Joginder Pal, no behaviour has been done with Shri Nand Ram by Shri Nand Ram by Shri Sanjeev Saini. Since Shri Joginder Pal was accompanying Shri Sanjeev Saini at the time of incidence. His denial does not carry much weight age.
Shri Sanjeev Saini has been given full opportunity to produce evidence in his defence and cross examine the witnesses vide Q No.1 to 9 of proceeding dated 18.08.05 (S.No.359/15) but he failed to produce any evidence in his defence and also failed to bring his defence helper on 15 hearings out of 17 calls of hearing.
In view of above inquiry, it is proved that there were some supporters of Shri Sanjeev Saini outside the room of Shri Nand Ram XEN/S&C/UHP who raised slogans alongwith Shri Sanjeev Saini against Shri Nand Ram, XEN/S&C/UHP.
Did Shri Naveen Agarwal, Dy. CE/S&C/IV/UHP come there at 13.15 hrs, asked Shri Sanjeev Saini to go away, got the door of bathroom opened and look Shri Nand Ram along with him to his office chamber?
As per statement (S.NO.24) of Shri Nand Ram at about 13.15 hrs Shri Naveen Agarwal, DY. CE/S&C/IV/UHP came there and asked them to go away from here and asked him to open the door then he opened the door and came with him in his office and thus he saved him from their clutches.
As per statement (S.No.19) of Shri Ashwani Kumar witness, Shri Naveen Agarwal, Dy. CE/S&C/IV/UHP reached there, asked them to go away and called them in his office chamber for discussion. In reply to Q.No.13 of hearing dated 14.10.03 (S.No.135) by Shri Ashwani Kumar witness, it is reconfirmed that Shri Navneen Agarwal, Dy. CE/S&C/IV/UHP reached there but how and from which door Shri Nand Ram came out is not known to him.
In reply to Q.No.26 hearing dated 25.07.05, it is again confirmed that Shri Naveen Agarwal, Dy. CE/S&C/IV/UHP came there, asked the people assembled outside the chamber of Shri Nand Ram to go away and called 3-4 people for discussion.
In reply to Q no.23 of hearing dated 14.10.03 by Shri D.P.Garg, Shri Naveen Agarwal, Dy. CE/S&C/IV/UHP did not reach at the site of incidence in his presence but in reply to Q no.24, 26 & 31 of hearing dated 14.10.03 he confirmed that he left the site for taking lunch and came back at about 14.00 hrs and Shri Nand Ram, XEN/S&C/UHP was in the chamber of Dy.CE/S&C/IV/UHP.
Shri Sanjeev Saini has denied the above charge vide his application no. nil dated 28.01.03(S.No.6).
As per statement dated 14.01.03(S.No.17) of Shri Joginder Pal, he along with Shri Sanjeev Saini left the chamber of Shri Nand Ram at their own and brief the misconduct of Shri Nand Ram to Dy CE/S&C/IV/UHP. Since Shri Joginder Pal was accompanying Shri Sanjeev Saini at the time of incidence. His denial does not carry much weight age.
Shri Sanjeev Saini has been given full opportunity to produce evidence in his defence and cross examine the witnesses vide Q.No.1 to 9 of proceeding dated 18.08.05 (S.No.359/1-5) but he failed to produce any evidence in his defence and also failed to bring his defence helper on 15 hearing out of 17 calls of hearing.
From the above, it is proved that Shri Naveen Agarwal, Dy. CE/S&C/IV/UHP came there, asked the crowd to go away and called some representatives for discussion. But it cannot be said if the door of bathroom was got opened by him from Shri Nand Ram and was taken along with him.
As per Annexure-II served along with SF-5 Shri Sanjeev Saini disrupted Railway working while himself being on duty.
(a) As per para 4 of letter no S&C/3/D&AR/Pt II dated 01.10.03(S.No.124 of Dy CE/S&C/III/UHP Shri Sanjeev Saini had applied for = day C.L. for 2nd half on 04.01.03 which was sanctioned to him. The C.L was applied on 04.01.03 itself. Also as per attendance register (S.No.199) = CL has been marked on 04.01.03. So he was not on duty.
In view of above inquiries it is established that Sh. Sanjeev Saini has disrupted railway working and insulted his superior.
4. Considering the aforesaid report and the representation made by the Applicant on the same, the Disciplinary Authority came to the conclusion that the Applicant was guilty of violation of Rule 3.1 (i) & (ii) of Railway Service Conduct Rules and accordingly he was imposed with the penalty of compulsory retirement from service with immediate effect. He has also disagreed with the findings of the Enquiry Officer that since there was no eye witness it could not be confirmed that such an incident occurred. According to the Disciplinary Authority, from the substantial evidence brought out during the enquiry there was preponderance of probability that physical force was used or threatened to be used against Sh. Nand Ram. The concluding part of the Disciplinary Authoritys order is as under:
On careful perusal of the report of the inquiry and findings, it is seen that the following imputations of misconduct have been investigated and proved by the Inquiry Officer.
1. As per the Inquiry Report, Sh. Sanjeev Saini came to the chamber of Sh. Nand Ram, XEN/S&C/UHP for a discussion at about 12.55 hrs on 04.01.2003. It has been brought out in the Inquiry Proceedings that there was no prior intimation or agenda given by the charged official for this meeting nor was any spare letter obtained for the same from Controlling Officer.
2. The Inquiry Officer has also stated that it can be confirmed by the eyewitness accounts, that the door was closed at the time of the incident, although whether it was closed from outside or inside, cannot be clearly established.
3. It has also been proved by the Inquiry Officer that the Charged Officer used abusive and unparliamentary language with Shri Nandram, XEN/S&C1, based on eyewitness account of Sh. Ashwani, AEE/S&C-1.
4. The Inquiry Officer has stated in his report that since there were no eye witnesses, so it cannot be confirmed that such an instance occurred, but the Disciplinary Authority in this case finds from the circumstantial evidence brought out in the inquiry, that there is a preponderance of probability that physical force was used or at least threatened to be used against Sh. Nandram, XEN/S&C-1. The facts indicating that it was intended to use physical force, or that physical force was indeed used, are, firstly that the door of Sh. Nand Ram was bolted indicating that an attempt was made to confine Sh. Nand Ram to that room, assuming that he would want to escape. Secondly, there must have been some good reason for Sh. Nand Ram to lock himself in the bathroom, which has been confirmed in Sh. Ashwani Kumars eyewitness account where he has mentioned that Sh. Sanjeev Saini, the Charged Officer, was banging on the bathroom door and using abusive language to get it opened. It has been stated by Sh. D.P.Garg, JE/S&C that when Sh. Sanjeev Saini and Sh. Joginder Pal, who accompanied the Charged Official, had entered the office of Sh. Nand Ram, Sh. Nandram was seated in his chair and, he was asked to arrange for tea.
5. The collection of people and shouting of slogans is confirmed in the eyewitness account of Sh. Ashwani and cross-examination of witnesses, clearly showing the disruption of railway working during the incident. Sh. Nandram, XEN/S&C-IV, was prevented from doing his official work in which he was engaged at the time. He was later prescribed medication to restore his composure and well-being. Dy. CE/S&C/IV, had to leave his work and come to the scene of the incident, to prevent a worsening of the situation. Only after his intervention, the collected staff dispersed and order was restored.
Though Sh. Joginder Pal, CDM, in his statement (S.No.17) has denied the charge of misconduct, yet the Inquiry Officer has rightly pointed out that since Sh. Joginder Pal had accompanied Sh. Sanjeev Saini, not much weightage can be given to his statement.
Therefore, in view of the evidence brought out in the Inquiry and the findings of the Inquiry Officer, the imputations of misconduct supporting the charges stand proved. The Charged Officer is therefore found guilty of violation of Rule 3.1 (i) & (ii) of Railway Service Conduct Rules. In view of the above, the undersigned hereby imposes penalty of Compulsory Retirement on Sh. Sanjeev Saini, S.O./Accounts Office/JAT, with immediate effect.
5. The Applicant made an appeal against the aforesaid order of the Disciplinary Authority and the Appellate Authority, vide its order dated 15.6.2006, modified the order of the Disciplinary Authority and substituted it with the penalty of reduction in time scale of pay by 5 stages to Rs.7100/- per month, for a period of 5 years with cumulative effect with the direction that during the currency of penalty no increments will be granted and on expiry of penalty, at the time of re-fixation of pay, increments for the period withheld will not be taken into consideration. Though, the Applicant made a revision petition yet the same was dismissed on 9.11.2006 by the General Manager, Northern Railway with the observation that considerable leniency has already been shown to the Applicant by the Appellate Authority and no further enquiry is required to be shown to him. The relevant part of the said order reads as under:
1. I find the D&AR proceedings have been conducted in a fair manner following due procedure and in keeping with the principles of natural justice. As such the employee has been given ample opportunity to present his case and defend himself.
2. From the evidence adduced in the enquiry proceedings, it is established that Shri Saini acted in a manner unbecoming of a railway servant warranting severe punishment. However, keeping in view the fact that his past record of service has been good and considering that he has another 20 years of service left, the Appellate Authority had reduced the penalty of compulsory retirement imposed by the Disciplinary Authority, to that of reduction in the time scale of pay by 5 stages for a period of 5 years with cumulative effect. As such, considerable leniency has already been shown, notwithstanding the magnitude of the offence. In my view, no further leniency is called for and the penalty imposed by the Appellate Authority stands.
3. As regards treating the intervening period from the date of compulsory retirement to the date of his reinstatement as dies-non. I find the orders of Appellate Authority is within the framework of laid down rules and procedure.
6. The Applicant made another Revision Petition dated 25.8.2008 to the General Manager on the ground that the earlier Revision Petition was disposed of not in accordance with the procedure laid down by the Railway Board. However, Respondents did not give any reply to the same. He has, therefore, filed OA No.1841/2010 before this Tribunal. But the same was disposed of, vide order dated 3.6.2010, with a direction to the respondents to dispose of the aforesaid revision petition of the applicant by passing a detailed and speaking order within two months. The respondents filed a Review Application against the said order and considering the submissions made therein, the Applicant was permitted to file a fresh OA. Accordingly, the Applicant has filed the present OA seeking the following relief:
That the Honble Tribunal may graciously be pleased to pass an order of quashing of the order of Disciplinary Authority dated 15.4.2006, order of Appellate Authority dated 15.6.2006 and order of the Revisionary Authority dated 9.11.2006 communicated by D.A. declaring to the effect that the same are illegal, arbitrary, against the rules and against the principle of natural justice and consequently pass an order directing the respondents to grant all the consequential benefits to the applicant with the arrears of difference of pay and allowances. Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant.
7. One of the grounds adduced by the Applicant challenging the departmental enquiry proceedings against him is that the complainant Sh. Nand Ram himself was not a witness in the enquiry proceedings. On the other hand, Enquiry Officer, the Disciplinary Authority, the Appellate Authority and the Revisional Authority have relied upon his statement made during the preliminary enquiry made prior to the departmental enquiry. According to the learned counsel for the Applicant when the statement of Sh. Nand Ram were considered by the Enquiry Officer and the other authorities, he should have been made a prosecution witness giving the Applicant a reasonable opportunity to cross examine him. In this regard, he has relied upon the judgment of Apex Court in the case of Commissioner of Police, Delhi & ors. vs. Jai Bhagwan, JT 2011 (6) SC 63. The relevant part of the said judgment is as under:
10. The learned counsel appearing for the respondent, however, while refuting the aforesaid contentions submitted that the Mrs. Ranjana Kapoor, complainant of the case, was not examined as witness in the departmental enquiry and, therefore, there was no opportunity to cross-examine her and, therefore, there is a violation of Rule 16(iii) of the Rules.
8. The other contention of the learned counsel for Applicant is that the impugned order of the Disciplinary Authority is in violation of Rule 10 (2) (a) of the Railway Servants (Discipline & Appeal) Rules, 1968.
9. However, in the present case, without any disagreement note, the Disciplinary Authority disagreed with the enquiry report and held that the charges have been proved. Counsel for applicant has submitted that the aforesaid procedure adopted by the Disciplinary Authority is in violation of principles of natural justice. In this regard, he has also relied upon the judgment of Apex Court in Punjab National Bank vs. Kunj Behari Misra, (1998) 7 SCC 84, the relevant part of the said judgment reads as under:
18. Under Regulation - 6 the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar's case(supra).
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.
10. He has assailed the Enquiry Officers report also on the ground that what was proposed to be proved in the charge and what was stated to have been proved by the Enquiry Officer in his report are entirely two different things. According to the Article of Charge, the Applicant misbehaved with Sh. Nand Ram by physically assaulting him and by using abusive language while the said Sh. Nand Ram was working in his office on 4.1.2003. However, what the Enquiry Officer held to be proved in his report was that it was established that the applicant has disrupted the Railway work and insulted his superiors. According to the learned counsel for Applicant, there was no allegation that the Applicant had disrupted the Railway work and it was an extraneous factor. Not only the Disciplinary and the Appellate Authorities but even the Revisional Authority has also considered and followed it and held that applicant has disrupted the Railway working.
11. Again, he has submitted that the orders of the disciplinary authority/appellate authority/Revisional Authority are not reasoned and speaking. In this regard, he has relied upon the instructions issued by the Railway Board, vide its OM No.134/1/81-AVD-I dated 13.7.1981, which reads as under:
Sub: Disciplinary cases need for issuing speaking orders by competent authorities.
The undersigned is directed to state that as is well known and settled by courts disciplinary proceedings against employees conducted under the provisions of CCS (CCA) Rules, 1965, are under other corresponding rules, are quasi-judicial in nature and as such, it is necessary that orders in such proceedings are issued only by the competent authorities who have been specified as disciplinary/appellate/reviewing authorities under the relevant rules and the orders issued by the such authorities should have the attributes of a judicial order. The Supreme Court, in the case of Mahavir Prasad vs. State of O.P. (AIR 1970 SC 1302) observed that recording of reasons in support of a decision by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy, or reached on ground of policy or expediency. The necessity to record reasons is greater if the order is subject to appeal.
2. However, instances have come to the notice of this Department where the final orders passed by the competent disciplinary/appellate authorities do not contain the reasons on the basis whereof the decisions communicated by that order were reached. Since such orders may not confirm to legal requirements, they may be liable to be held invalid, if challenged in a court of law. It is, therefore, impressed upon all concerned that the authorities exercising disciplinary powers should issue self-contained speaking and reasoned orders conforming to the aforesaid legal requirements.
3. Instances have also come to notice where, though the decisions in disciplinary/appellate cases are taken by the competent disciplinary/appellate authorities in the files, the final orders were not issued by that authority but only by a lower authority. As mentioned above, the disciplinary/appellate reviewing authorities exercise quasi-judicial powers and as such, they cannot delegate their powers to their subordinates. It is, therefore, essential that the decision taken by such authorities are communicated by the competent authority under their own signatures, and the order so issued should comply with the legal requirements as indicated in the proceeding paragraphs. It is only in those cases where the President is the prescribed disciplinary/appellate/reviewing authority and where the Minister concerned has considered the case and given his orders that an order may be authenticated by an officer, who has been authorized to authenticate orders in the name of the President.
4. The contents of this O.M. may kindly be brought to the notice of all concerned for their information and guidance.
12. He has also relied upon the subsequent office memorandum No.134/12/85p. AVD dated 5.12.85 wherein the following instructions have been issued:
Sub: Disciplinary cases Need for issuing speaking orders by competent authorities Reiteration of instructions regarding.
The undersigned is directed to refer to this Departments O.M. No.134/1/81-AVD,I dated 13.7.1981, (copy enclosed for ready references) and to state that in spite of the instructions contained therein, it has come to notice that speaking orders are not issued passing Final orders IN DISCIPLINARY CASES. It is an essential legal requirement that, in the case of decisions by quasi-judicial powers, it is necessary that self-contained, speaking and reasoned orders should be issued while passing final orders in disciplinary cases.
2. The instructions contained in this Departments O.M. dt.13-7-1981, referred to above, are accordingly reiterated and it is requested that the contents thereof may be brought to the notice of all concerned for their information and guidance.
13. Respondents have filed their reply. Their preliminary objection was that this OA is not maintainable as the same is hopelessly time barred. In this regard, the learned counsel for the Respondents has relied upon the judgment of Apex Court in P.K.Ramachandran vs. State of Kerala & another, JT 1997 (8) SC 189. The relevant part of the judgment reads as under:
The law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the Honble High Court was, thus, neither proper nor judicious. The Order condoning the delay, therefore, cannot be sustained. He has also relied upon the judgment of Apex Court in State of Karnataka vs. S.M. Kotraya, 1996 (7) SCALE 179. The relevant part of the said judgment reads as under:
It is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-section (1) and (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the tribunal should be required to satisfy itself whether the explanation offered was proper explanation as prescribed under Section 21 of the Administrative Tribunal Act 1985. In view of above, it is the duty of the court to see whether the delay has been properly explained by the person who is approaching the court after inordinate delay. Accordingly filing of an application does not entitle the person to claim condonation of delay.
14. Further they have stated that the applicant was not fully cooperating in the enquiry. The enquiry was finalized after 18 hearings out of which applicant had appeared only on 13 occasions and his Defence Assistant was present only on two occasions. On the other hand, the applicant was given full opportunity to defend his case. On 18.8.2005 he was given the opportunity to cross-examine the witnesses on 18.8.2005 but he refused to do so. They have also highlighted the following major points which have been proved against the Applicant as stated by the Enquiry Officer in his findings:
(i) In view of above, it is proved that Sh. Sanjeev Saini came to chamber of Sh. Nand Ram, XEN/S&C-I/UHP for some discussion at about 12.55 hrs on 04.01.2003.
(ii) In view of the above enquiries due to contrary statement of witness, it is not proved that the door was bolted from inside or outside and by whom the door was closed. But it is proved that the door was closed at the time of incidence.
In view of the above inquiries since no eye witness of physical assaulting are available so it cannot be confirmed whether any physical assaulting or mishandling was done or not. They have also stated that the Disciplinary Authority has considered the case in detail and passed a reasoned and speaking order.
15. We have heard the learned counsel for the applicant and the learned counsel for the respondents. It is seen that the Respondents have made a formal preliminary objection of delay in filing the OA by the Applicant but it has no relevance in this case and accordingly the same is rejected. As far as the merits of the case is concerned, the allegations against the Applicant, according to the Articles of Charges, are that he had misbehaved with Sh. Nand Ram, XEN by physically assaulting him and by using abusive language against him on 4.1.2003. The only document by which the aforesaid Charges were proposed to be proved was the Medical prescription by CMP/Udhampur dated 4.1.2003. According to the Enquiry Officer himself, the prescription slip does not bear the name of any medical institution i.e. Hospital, Dispensary, Health Unit, the name, designation & stamp of doctor. Moreover, the doctor who alleged to have written the said Medical prescription has not been produced as a prosecution witness to examine him to establish its authenticity by giving an opportunity to the applicant to cross-examine him. As held by the Apex Court in its judgment in Roop Singh Negi vs. Punjab National Bank & ors., (2009) 1 SCC (L&S) 398, mere production of documents are not enough but the contents of those documents have to be proved by examining the witness. According to the Enquiry Officers report, there was a representation of Shri Nand Ram dated 4.1.2003 according to which while he was working in his office with defence witness Shri D.P.Garg, the Applicant came to his room with Sh. Joginder Pal, CDM and wanted to discuss some matter with him. Sh. D.P.Garg had gone out of the room. The Applicant closed the door from inside and physically assaulted him. He was also shouting, abusing and was trying to open the door forcibly with his goons who was waiting outside. The aforesaid representation dated 4.1.2003 was not a listed document but the Enquiry Officer has relied upon it. It is quite strange that Shri Nand Ram being the complainant in the case has neither offered himself to a witness nor the disciplinary authority has included him as a prosecution witness. The Apex Court in its judgment in Hardwari Lal vs. State of U.P., 1999 (8) SCC 582 held as under:
3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant. Again the Apex Court in Modula India Vs. Kamakshya Singh Deo (1988 (4) SCC 619), it was held as under:
It is a well settled proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross examination. The mere statement of plaintiffs witness cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross examination. In Commissioner of Police, Delhi (supra), the Honble Apex Court has held as under:
15. . There are many other shortcomings in the entire investigation and the enquiry like the statement of Mrs. Ranjana Kapoor was not recorded by the Inspector and the Inspector also did not take down in writing and also attest the complaint made by her. The statement of S.P. Narang was also not recorded by the Inspector nor did the Inspector seize Rs. 100/- note nor noted down its number. Mr. Narang was also not examined during the course of departmental proceedings. Non-examination of the complainant and P.S. Narang during the departmental proceeding has denied the respondent of his right of cross-examination and thus caused violation of Rule 16 (iii) of the Delhi Police (F & A) Rules, 1980.
16. Again the Enquiry Officer in his report has stated that Shri Naveen Aggarwal, Dy. C.E./S&C/IV came to the scene and asked the goons of the Applicant waiting outside Sh. Nand Rams room to go away and asked Sh. Nand Ram to open the door. It has also referred to the statement of Sh. Joginder Pal, who was with the Applicant. Both Sh. Naveen Aggarwal and Sh. Joginder Pal are not witneses in the enquiry proceedings. It is a well settled principle that the departmental enquiry being a quasi-judicial proceedings and the Enquiry Officer performs a quasi-judicial function, it is to see that the charges are proved on the basis of the material brought on record by the parties and the purported evidence collected during investigation by the Investigating Officer cannot be treated as evidence in the disciplinary proceedings. The Apex Court in its judgment in M.V.Bijlani vs. Union of India, (2006) 5 SCC 88 held as under:
25. .. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
17. Further, the definite charges against the Applicant were (1) he misbehaved with Sh. Nand Ram by physically assaulting him and used abusive language and (2) when Sh. Nand Ram rushed to toilet and closed the door from inside. The Applicant has abused him and tried to open the door forcibly. However, what is proved by the Enquiry Officer in his report is that the Applicant went to the room of Sh. Nand Ram for some discussion but it is not proved that the door was bolted from inside or outside and by whom the door was closed. Further, since no eye witness of physical assaulting are available so it cannot be confirmed whether any physical assaulting or mishandling was done or not. Again, some of the supporters of the Applicant raised slogans against Sh. Nand Ram and Shri Naveen Aggarwal, Dy. CE/S&C/IV/UHP came there, asked the crowd to go away and called some representatives for discussion. But it cannot be said if the door of bathroom was got opened by him from Shri Nand Ram and was taken along with him. However, the Enquiry Officer arrived at the conclusion that the Applicant disrupted railway working and insulted his superior. In other words, what the Enquiry Officer proved in his report has nothing to do with the article of charge.
18. The Disciplinary Authority not only outrightly rejected the findings of the Enquiry but also, without making any disagreement note, imposed upon the penalty of compulsory retirement upon the Applicant. The aforesaid action of the Disciplinary Authority is obviously against the provisions contained in Rule 10 (2) (a) of the Railway Servants (Disciplinary and Appeal) Rules, 1968 which reads as under:
(2) The Disciplinary authority
(a) shall forward or cause to be forwarded a copy of the report of inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority, its findings on further examination of witnesses, if any held under sub-rule (1) (a) together with its own tentative reasons for disagreement, if any, with finding of the inquiring authority on any article of charge to the Railway servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within 15 days, irrespective of whether the report is favourable to the Railway servant.
19. The Applicants appeal against the aforesaid order of the Disciplinary authority was also not appreciated by the Appellate Authority. It simply modified the order of the Disciplinary Authority and substituted it with the penalty of reduction in time scale of pay by 5 stages to Rs.7100/- per month, for a period of 5 years with cumulative effect with the direction that during the currency of penalty no increments will be granted and on expiry of penalty, at the time of re-fixation of pay, increments for the period withheld will not be taken into consideration. Even the Revisional authority did not apply its mind held that the D&AR proceedings have been conducted in a fair manner following due procedure and in keeping with the principles of natural justice. As such the employee has been given ample opportunity to present his case and defend himself. In R.P.Bhatt vs. Union of India, (1986) 2 SCC 651, the Apex Court held as under:
"4. The word "consider" in Rule 27(2) implies "due application of mind". It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.
5. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside."
20. In view of the above position, the OA is allowed. The impugned Enquiry Officers report, Disciplinary Authoritys order dated 15.4.2006, Appellate Order dated 15.6.2006 and the Revisional Authoritys order dated 9.11.2006. Consequently, the Respondents shall pass appropriate orders reversing the order of the Disciplinary authority as upheld by the Revisional Authority and restore the pay scale of the Applicant with all consequential benefits including arrears of pay and allowances within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( SHEKHAR AGARWAL ) ( G.GEORGE PARACKEN)
Member (A) Member (J)
sd