Central Administrative Tribunal - Delhi
Rajesh Kumar vs Union Of India Through on 21 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.3411/2009 New Delhi this the 21st day of May, 2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Rajesh Kumar Aged about 42 years S/o Shri Gyasi Lal, Ex.Waiter Khallasi, (Group D) Commercial Branch, Northern Railway, Baroda House, At Parliament Street, North Avenue, New Delhi R/o Rly. Quarter No.175/D-4, Railway Colony, Basant Lane, Paharganj, New Delhi. .Applicant By Advocate: Shri H.P. Chakravorty. Versus Union of India through The General Manager, Northern Railway, HQ Office, Baroda House, New Delhi-110001. ..Respondents (By Advocate : Shri Shailendra Tiwari ) ORDER (ORAL)
Honble Mr. G. George Paracken, Member (J) The Applicant in this Original Application has challenged the impugned charge-sheet issued to him on 27.2.2004, Enquiry Officers report dated 30.04.2008, Disciplinary Authoritys disagreement note dated 12.05.2008, the subsequent order of penalty dated 19.06.2008 and the Appellate Authoritys order dated 15.10.2008. He is also aggrieved by the inaction on the part of the Reviewing Authority in considering his Review Application dated 18.11.2008.
2. According to the aforesaid charge-sheet, the Applicant, while working as Waiter/Khalasi in Parliament House catering complex, committed the serious misconduct of unauthorized absence from 27.10.2001 onwards. An enquiry was conducted in the matter and the Enquiry Officer, vide his report dated 30.04.2008, held that the charges have been partially proved. The relevant part of the said order reads as under:
Statement of PW-1, PW-2 & PW-3 are corroborated the charges leveled against the CO. Documents examined during the course of enquiry which are Ex.B, C-1 to C-9, D-1 to D-2 & E also confirm the charges.
Defence statement of the CO was also scrutinized which reveals that
1. CO admits the fact that he remained absent from duty from 27.10.01 to 23.08.04 (the date of first sitting of the D&AR enquiry conducted by Shri V.K. Joshi, the then EO of the case) due to serious illness of his mother, whose PMC had already been produced to Shri Joshi during the course of enquiry. But it is true that CO had requested for taking him on duty, supported by documents submitted by CO on 11.10.2004, which is Ex-F at S.No.78 as well as letter of date 28.09.2004 issued by the than EO at S.No.14 in which it is mentioned that the CO had attended the enquiry on 23.08.2004. Administration should consider his attendance in D&AR enquiry as on duty. Administration has not taken any cognizance on the repeated request of the CO for taking him on duty which leads the present situation of the case.
2. Plea taken by the CO that Shri V.K. Joshi the then EO of the case is not authorized to conduct D&AR enquiry against him is not correct as he was working under the supervision of Shri Bansi Lal Purohit, Sr. C.I/PHNA.
3. Plea taken by CO that Joshi had rude behaviour and apparently wanted to eliminate him is also not correct as it is out of competency of Shri Joshi to take him on duty. But it is correct that Shri Joshi should have appraised the situation of the case to his officers.
4. Plea taken by CO that Shri Joshi, the then EO has prolonged the D&AR enquiry from 2004 to 2008 due to which he is at the stage of penniless/starvation is correct. As D&AR enquiry should be finalized within the stipulated period as per rules.
5. Plea taken by CO that Shri Joshi, the then EO has prolonged the D&AR enquiry should be finalized within the stipulated period as per rules.
6. Plea taken by CO that he is trying that he is trying his best to taken him on duty from the last four years for the sake of his children is also correct from which he is deprived.
Findings:-
Charges framed against Shri Rajesh Kumar, Waiter Khalasi, PHNA vide SF-5 in question are partially proved in the light of the facts as explained above.
Sd/-
(Vilesh Sharma) (EO) CMI/MPP 30.04.2008
3. The Disciplinary Authority disagreed with the aforesaid findings of the Enquiry Officer vide his note dated 12.5.2008. The relevant part of the said note reads as under:-
While concluding the findings, it has been mentioned that charges framed against Shri Rajesh Kumar are partially proved.
During the course of enquiry Shri Sanjay Kumar, PW1, deposed that he had worked as Catering Inspector, North Avenue Canteen during the period from 2002 to 2005. He has confirmed that CO was absent from duties during this period. Shri Sanjay Kumar also confirmed that he had sent a report to SCM(Catering/PH) on 15.11.2002 informing about the unauthorized absence of the CO along with three other employees.
The attendance registers w.e.f. 2002 to onwards were also produced to prove that CO was absent from duties.
Similarly Shri Bani Lal Purohit, PW2 deposed that he worked as Catering Inspector, North Avenue Canteen from 06.07.2001 12.01.2002 and from 07.02.2005 to till yet. He also stated that CO was absent from duties during this period.
From the above, it is clear that the Catering Unit Incharges for the period for which the CO was absent, have confirmed that the CO was absent from duties w.e.f. 27.10.2001. The attendance registers for the period 2002 onwards have also been shown to the Enquiry Officer which proves that CO was absent from duties.
CO stated that he could not attend duties due to sickness of his mother w.e.f. 25.09.2001 to 28.11.2004 and due to his own sickness from 29.11.2004 to 26.05.2005. He produced P.M.Cs in support of his version which were confirmed to have been issued by Dr. C. Lal. CO stated that he requested Shri Joshi to take him back on duty but Shri Joshi did not talk with him.
CO was staying in the same city where his mother was taking treatment from a private doctor. He could have taken leave. It is not acceptable that he was unable to inform his office, or apply for leave during such a long period. Shri Joshi was EO and he was competent to take him back on duty. The version of CO that he was requesting Shri Joshi to take him back on duty is unacceptable.
While discussing the case, the above facts have not been brought in the enquiry report. The case is simple that CO is on authorized absence since 27.10.2001 to till date, on the basis of absentee statement, attendance register and statements of PW-1 and PW-2 and he had not been taken back on duty till date by the Competent Authority.
Due to the reasons mentioned above, DA does not agree with the findings that the charges are partially proved. Instead DA is of the view that the charges are fully proved.
Dy.C.C.M (Catering), DA.
4. According to the Applicant, he made a representation dated 22.05.2008 seeking copies of some of the relevant documents in the matter to enable him file a reply to the aforesaid disagreement note but the Disciplinary Authority did not furnish them. On the other hand, the said authority, vide its order dated 19.6.2008, dismissed him from service. He has also stated that he could not make any representation against the aforesaid disagreement note immediately as he was sick and the Respondents themselves have advised him to undergo medical examination by the Railway Authorities. The said order being a short one, is reproduced below:-
A major penalty charge sheet No.PH/C/staff/2002 was served upon you and inquiry under D&AR 1968 was conducted in which you have participated. A show cause notice along with the enquiry report and disagreement note was forwarded to you on 12.05.2008 with the request to reply within 10 days but you have failed to reply and vide your letter dated 22.05.2008, you sought some documents. The same were also forwarded to you vide this office letter No.PH/C/staff/2008 dated 27.05.2008 with further instructions to submit reply otherwise ex-parte decision will be taken. Since no reply has been received from you till date, ex-parte decision is being taken.
After carefully considering inquiry report, other relevant papers on record and keeping in view the disagreement note, I hold you guilty of the charge of unauthorized absence from official duties since 27.10.2001 leveled against you and have decided to impose upon you the penalty of removal from service. You are, therefore, removed from service with effect from 27.10.2001.
Under Rule 18 of the Railway Servants (Discipline & Appeal) Rules, 1968 an appeal against these orders lies to Chief Commercial Manager (R&FM) provided:-
(i) The appeal is submitted through proper channel within 45 days from the date you receive the orders and
(ii) The appeal does not contain improper or disrespectful language.
Please acknowledge receipt.
Dy.C.C.M (Catering), DA.
5. The Applicant filed an appeal dated 04.08.2008 against the aforesaid order of the Disciplinary Authority, but the Appellate Authority rejected the same vide its letter dated 15.10.2008. The said order is also reproduced below:-
In reference to above, the said file of papers has been perused. To briefly mention, you remained unauthorisedly absent from 27.10.2001 to till date. The report of the EO Shri Vikesh Sharma dated 30.04.2008 also brings out that you had neither reported for duty nor informed your office in writing, verbally or over telephone about your whereabouts during your absence. You have stated that your absence was owing to serious sickness of your mother and the bias of Shri Joshi, Sr. Catering Inspector. You have also claimed that you received no notice from the office that your absence from duty would attract the penalty of misconduct.
Your contention does not stand scrutiny since SF-5 was pasted on the door of your residence on 27.02.2004 by your own admission. The plea taken by you of rude behaviour by Shri Joshi and lack of authorization to conduct D&AR enquiry against you is also not proved. Your were staying in the same city where your mother was under treatment with a private medical practitioner, therefore, your inability to inform your office and to take necessary leave, for such a long period is not understood.
Under these circumstances I am of the view that the charges are adequately proved and there are insufficient grounds for further consideration on appeal, therefore, your appeal to quash/set aside the penalty, i.e., removal from service is regretted.
6. Thereafter, the applicant filed a Review Petition to the General Manager, Northern Railway, Baroda House, New Delhi on 18.11.2008. According to the Applicant, the said Petition has never been considered by the Competent Authority so far.
7. The respondents have filed their reply to this Original Application. They have stated that the aforesaid Review Petition was not received in the office of Deputy Chief Commercial Manager (CCM for short), Catering, Parliament House where he was working.
8. We have heard the learned counsel for the parties. It is a statutory right for the Applicant to make a Review Petition and the competent authority is duty bound to consider the same and to take decision on it. There is no dispute that the General Manager, Northern Railway is the Reviewing Authority in the case of the Applicant. The Applicant has produced evidence to show that his aforesaid Review Application was received in the office of the General Manager. Being a dismissed employee, he has every right to submit his Review Application directly to the Competent Authority. Hence we do not find any merit in the submission of the Respondents that it has not been received by the Deputy C.C.M., Catering, where he was working earlier. In view of the above position, we dispose of this OA with the direction to the General Manager to consider the Applicants Review Petition and dispose of it by a reasoned and speaking order, within a period of two months from the date of receipt of a copy of this order. However, we make it clear that we have not gone into the merits of the case. If the applicant is still aggrieved by the order of the Revisionary Authority so passed, he is at liberty to challenge the same bringing all grounds available to him in the facts and circumstances of the case.
9. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) /rk