Central Administrative Tribunal - Delhi
Mohan Krishan Sharma vs Delhi Metro Rail Corporation, Govt. Of ... on 7 August, 2023
1
OA No.1697 /2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No.1697/2016
Reserved on: 17.07.2023
Pronounced on:07.08.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Mohan Krishan Sharma 29 yrs.
Station Controller/Train Operator
Employee Number 11640,
Delhi Metro Rail Corporation Ltd.
S/o Sh. Vijay Krishan Sharma
R/o 327, Street No.-6
Durga Puri Extn., Shahdara,
Delhi-110093. ...Applicant
(Applicant in person)
Versus
Delhi Metro Rail Corporation Ltd., & Others
Through
1. DGM O II
Metro Bhawan, Fire Brigade Lane,
Bara Khamba, New Delhi 110001.
2. General Manager Operations
Delhi Metro Rail Corporation Ltd.
Metro Bhawan, Fire Brigade Lane,
Barakhamba, New Delhi 110001. ...Respondents.
(By Advocates: Shri V.S.R.Krishna)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
"1. To quash the suspension order dated 2.12.2013.2 OA No.1697 /2016
2. To quash the charge sheet dated 21.3.2014.
3. To set aside inquiry report dated 1.8.2014.
4. To set aside punishment order dated 24.9.2014.
5. To set aside rejection order dated 21.1.2015.
6. To direct the respondents to re instate me in my services, with all consequential benefit till 15.4.2014, and treat the period as spent on duty for all intent and purposes.
To pass such other order/orders as this Hon'ble Tribunal may deem just and proper in the fact and circumstances of the case."
2. The facts of the case, in brief, as indicated in the OA are that the applicant joined Delhi Metro Rail Corporation (DMRC) on 16.04.2010 and after completion of training was confirmed in the services. On 03.12.2013 while posted at Nehru Place Station suspension order dated 02.12.2013 (Annexure A1) was served upon him. In the suspension order, it was stated that the disciplinary proceeding against the applicant is contemplated/pending and therefore under Rule 37 of the DMRC Conduct, Discipline and Appeal Rules, 2005, the applicant was placed under suspension with immediate effect. Against the said 3 OA No.1697 /2016 order of suspension, the applicant approached this Tribunal on 28.03.2014. The applicant has alleged that even after more than 90 days of the issue of suspension order, no review was done by the Department and charge sheet dated 21.03.2014 was served upon him. The statement of articles of charge framed against the applicant was as under:
"ANNEXURE-I Statement of articles of charge framed against Shri Mohan Krishan Sharma, SC/TO, Emp No.11640 Article-1 Shri Mohan Krishan Sharma, SC/TO, Emp No.11640, while working as Station Controller at Nehru Place metro Station, failed to comply instructions of competent authority. He did not report to Pragati Maidan for IITF-2013 duty. He did not report to O/o DGM(Ops)-II on appointed date and time. He denied compliance of Office Order No. 45/2013.
Article-2
Shri Mohan Krishan Sharma, himself
unauthentically from the appointed place of duty.
Article-3 Shri Mohan Krishan Sharma is responsible for falsification and manipulation of station records.
By his intentional insubordination acts and gross indiscipline, he has failed to maintain devotion to duty and has acted in a manner which is unbecoming of a public servant and hence violated 4 OA No.1697 /2016 Rule 4.1 (I, ii, & iii), 5.6, 5.7, 5.8, 5.9, & 5.20 of DMRC Conduct, Discipline and Appeal Rules."
Statement of imputations of misconduct or misbehavior in support of the articles of charge framed against the applicant reads as follows:
"ANNEXURE-II Statement of imputations of misconduct or misbehavior in support of the articles of charge framed against Shri Mohan Krishan Sharma, SC/TO, Emp No 11640.
Article-1 Shri Mohan Krishan Sharma, SC/TO, Emp No 11640, was working as a Station Controller at Nehru Place Metro Station. Shri Mohan Kishan Sharma was assigned special duty at Pragati Maidan for IITF-2013 from 14.11.13 to 27.11.13 (14 days in total) Station Manager Nehru Place was asked by AM (Ops)/L-6 to prepare the revised duty roster as per the latest development and inform all staff and get it acknowledged. Sh. Mohan Krishan Sharma did not turn up for assigned duty, willingly and knowingly absented himself from the appointed place of duty on 14.11 13 & 15.11.13. Subsequently, he was booked by AM (Ops/L-6 to report O/o DGM (Ops)-II on 20.11.13 but he did not report there also Sh. Mohan Krishan Sharma reported to the O/o DGM (Ops)-II on 26.11.13 after 6 days of absconding period. He refused to receive the Office Order No. 45/2013 and refused the compliance of the same (RUD-1, 2, 3, 4, 5, 6 & 7) 29.11.13.
Article-2 Shri Mohan Krishan Sharma has been marked as absent on 14.11.13 and 15.11.13 in absentee statement of period from 16.10.13 to 15.11.13 and again marked as absent from 16.11.13 to 01.12.13 in absentee statement of period 5 OA No.1697 /2016 16.11.13 to 15.12.13 by AM (Ops)/L-6 due to unauthentic absence. During this period, he absented himself from appointed place of duty i e. at PRAGATI MAIDAN for IITF-2013 duty from 14.11.13 to 27.11.13 (14 days in total). He also did not appear before DGM (Ops)-II at designated date and time. Sh. Mohan Krishan Sharma kept his whereabouts concealed. (RUD-1, 2, 4, 5, 6, 7, 8, 9 & 10).
Article 3 On Dt. 17.11.13, Sh. Mohan Krishan Sharma appeared at station in absence of Station Manager and pretended to be in general shift duty whereas he was assigned duty at Pragati Maidan for IITF- 2013. He manipulated with the records of previous dates in the attendance register. Further also, he tempered with the records of date from 19.11.13 to 30.11.13. (RUD-1, 2, 4, & 8).
By his intentional insubordination acts and gross indiscipline, he has failed to maintain devotion to duty and has acted in a manner which is unbecoming of a public servant and hence violated Rule 4.1 (i, ii & iii), 5.6, 5.7, 5.8, 5.9, 5.18 & 5.20 of DMRC Conduct, Discipline and Appeal Rules."
3. The applicant contends that on 11.04.2014 without providing him time to file reply to the charge sheet, inquiry was ordered against him. The purported order No.45/2013, which was alleged to have been violated by the applicant and based on which the charge sheet was issued, was not provided to him even after a request. On 15.04.2014, the applicant was telephonically informed about revocation of the suspension but he was not allowed to join. He has also 6 OA No.1697 /2016 submitted in the OA that the inquiry was held in his absence during which copy of the transfer order No.45/2013 was changed by the P.O. In the daily order-sheet dated 18.06.2014, the I.O. had directed P.O. to submit his brief under the acknowledgment of C.O. by 26.04.2014, but on the stipulated date, neither he gave the briefs to him nor to the I.O. But the applicant on 07.07.2014 submitted the written briefs to the P.O. personally for which no acknowledgment was given. On 01.08.2014 without taking his representation dated 07.07.2014 on record, inquiry report drafted by I.O. where the principles of natural justice and provisions of article 311 were violated overlooking the pending OA in the Tribunal. Moreover, inquiry was done after stopping the payment of subsistence allowance from 01.04.2014 onwards and the same was not released even after the order of I.O. Majority of defense documents were not allowed by I.O. The electronics details of travel card were intentionally tampered. The disciplinary authority passed the impugned order dated 29.11.2013. The representation against the inquiry report submitted was rejected. A major punishment was awarded of the reduction in 7 OA No.1697 /2016 grade. Appeal against the penalty order was also turned down. On 09.07.2015, the case against suspension was dismissed as infructuous by this Tribunal, with liberty to challenge the orders passed by the respondents, through appropriate proceedings.
4. The basic claim of the applicant is that no office order regarding his special IITF duty or no office order regarding any transfer was given to him. He also contends that the inquiry held by the IO was completely biased, as requested, documents were not supplied to him for the purpose of cross examination of witness. He further draws our attention to order of the Hon'ble Supreme Court in Writ Petition (Civil) No.82/2011 (T.S.R.Subramanian & Ors vs. Union of India & Ors. decided on 31.10.2013) which reads as under:
"Rule 3(3)(iii) of the All India Service Rules specifically requires that all orders from superior officers shall ordinarily be in writing. Where in exceptional circumstances, action has to be taken on the basis of oral directions, it is mandatory for the officer superior to confirm the same in writing. The civil servant, in turn, who has received such information, is required to seek confirmation of the directions in writing as early as possible and it is the duty of the officer superior to confirm the direction in writing."8 OA No.1697 /2016
5. The applicant claims that the charge sheet dated 21.03.2014 based on fabricated transfer order and hence it is not legally tenable. He also submits that no show cause notice before suspension order dated 02.12.2013 was issued to him. After passing the 90 days from the date of issue of the order, the suspension order became invalid and no review of suspension order was done within 90 of suspension as the case of suspension was pending with the court (Tribunal), therefore, issuing a charge sheet after 90 days of suspension is against the rule.
6. The respondents in their counter have contended that the applicant was working as Station Controller in the office of DMRC. The applicant performed duty at Nehru Place Metro Station on 13.11.2013. As per the Station Duty Roster, he was detailed for IITF-2013 for special duty on 14.11.2013 at Pragati Maidan Metro Station for which necessary instructions were conveyed to the applicant by the concerned Station Manager but the applicant willfully absented from appointed place of duty. For this act of disobedience, the applicant was put under suspension on 9 OA No.1697 /2016 02.12.2013. The transfer order No.45/2013 issued on 27.11.2013 was displayed on the notice board and also conveyed to the applicant by the Station Manager. The applicant did not turn up for assigned duty willingly and knowingly absented himself from the appointed place of duty on 14.11.2013 & 15.11.2013. Subsequently he was asked by AM (Ops)/L-6 to report to the office of DGM (Ops)-II on 20.11.2013 but he did not report there also. He reported to the office of DGM(Ops)-II on 26.11.2013 after 6 days of unauthorized absent. The respondents have also submitted that the inquiry was conducted as per the relevant rules and after following due procedure, it was concluded followed by imposition of penalty by the disciplinary authority and the disposal of his appeal by the competent authority. Thus there is nothing to suggest that there has been any denial of natural justice or any illegality in the inquiry conducted or penalty imposed.
7. We have perused the pleadings on record and also heard the applicant Shri Mohan Krishan Sharma in person and Shri V.S.R.Krishna, learned counsel for the respondents.
10OA No.1697 /2016
8. During the course of hearing, the applicant has reiterated his claim that no transfer order was issued by the competent authority changing his station to Pragati Maidan. Learned counsel for the respondents, on the other hand, submits that such orders are normally oral or are put on the notice board as they are issued depending upon the exigency of the situation and if the applicant did not report at his new place of posting i.e. Pragati Maidan, he should have at least continued his duty at Nehru Place but he failed to do so. Regarding the claim of the applicant that the inquiry was not conducted properly, learned counsel for the respondents submits that the applicant was duly informed that a preliminary inquiry has been fixed on 06.05.2014. Further, the applicant was present for hearing on 28.05.2014. He did not participate in the regular hearing subsequently.
9. During the course of hearing, the applicant submits that he does not press for the relief sought at Sr.No.(1) to quash the suspension order dated 02.12.2013, which was revoked subsequently but he wants to lean on the remaining reliefs. Regarding his claim that the order which was issued to him at a later 11 OA No.1697 /2016 date was for his transfer from L-6 to L-2, i.e. a different station, whereas Pragati Maidan is L-3, the respondents have drawn our attention to the report at Annexure A-11 dated 30.11.2013 which states that the applicant was instructed to report at Pragati Maidan Metro Station for special duty and he was duly informed at his mobile through on duty Station Controller and by ASM. Moreover, there were serious discrepancies in the attendance marked by the applicant during the period from 16.11.2013 to 30.11.2013 and was not in conformity with his already assigned duties for IITF-2013 at Pragati Maidan from 14.11.2013 to 27.11.2013. Therefore, he violated the instruction of his superiors and willingly disobeyed the orders. Also, it has been reiterated by the learned counsel that no formal order was issued directing the applicant to report at Pragati Maidan Metro Station as it has been established practice to depute the employees to assign short term assignment through oral-verbal instructions. Therefore, the plea taken by the applicant regarding non-receipt of the order is an afterthought.
12OA No.1697 /2016
10. It is evident that the main challenge of the applicant is about the charge sheet, conduct of the departmental inquiry and the impugned orders of disciplinary and appellate authorities resulting in imposition of penalty.
11. It is not in dispute that for his alleged disobedience to the transfer order issued, a charge sheet for major penalty was served on the applicant along with the summary of allegations, list of documents and list of witnesses. This is also not in dispute that after his initial presence, the applicant did not take part in further proceedings on his own volition and inquiry had to be conducted ex parte. Had he participated in the inquiry, he could have raised all the relevant grounds including the purported non- receipt of transfer order based on which the charge sheet has been framed, but devoid of his participation, the IO was left with no option but to conduct the proceedings in his absence.
12. We have gone through the relevant departmental proceedings file to ascertain if there were any procedural lapse in the conduct of the inquiry. We find that the inquiry officer following the relevant rules 13 OA No.1697 /2016 governing the conduct of departmental inquiry examined the witnesses and took on record the joint statement submitted by the witnesses involved and after discussion and analysis of the evidence came to the conclusion that the charge leveled against the applicant was proved. The inquiry report was furnished to the applicant and he filed representation against the said inquiry report. The disciplinary authority took into consideration the deposition of witnesses, findings of the inquiry report and the grounds raised by applicant in his representation and imposed the penalty in question. Thus far no infirmity or irregularity is observed in the procedure followed.
13. However, the same cannot be said about the order dated 27.07.2015 (Annexure A-5) passed by the appellate authority. Rule 15 of CCS (CCA) Rules, 1965, while discussing the role and responsibility of the appellate authority lays down the following under the caption Government of India's decisions:
"GOVERNMENT OF INDIA'S DECISIONS (1)Self-contained, speaking and reasoned order to be passed and to issue over signature of prescribed Disciplinary/Appellate/Reviewing Authority.- As is well known and settled by 14 OA No.1697 /2016 Courts, disciplinary proceedings, against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under any 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 such authorities should have the attribute of a judicial order. The Supreme Court, in the case of Mahavir Prasad v. State of U.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 do not contain the reasons on the basis whereof the decisions communicated the final orders passed by the competent Disciplinary/Appellate Authorities by that order were reached. Since such orders may not conform 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."
14. Contrary to the above, we find that though a number of points have been raised in the appeal and the appellate authority should have given weighatage to these points before coming to any decision, the same is lacking. In fact in his representation to the 15 OA No.1697 /2016 appellate authority, the applicant vide his representation dated 22.10.2014 (Annexure A-16) had raised as many as 38 grounds requesting quashing the charge sheet, disciplinary proceedings and the punishment imposed by the disciplinary authority vide impugned order dated 24.09.2014, but to our surprise we find that none of these grounds has been dealt with by the appellate authority. His brief observation to the effect that they have been examined and not found tenable could not have satisfied the applicant. He has merely stated that most of the contentions though not substantiated in any way by the appellant, are well addressed in the inquiry report and other contentions are simply out of place. In fact, the appellate authority's order does not show any application of mind and it does not appear as if he has taken an independent decision. The formation of opinion by the statutory authority should reflect intense application of mind with reference to material available on record. The appellate authority cannot simply adopt the language implied by the disciplinary authority and proceed to affirm its order. Moreover, the appellate authority should consider the entire case 16 OA No.1697 /2016 only on the basis of materials already on record, but we find that the appellate authority's order is not only non-speaking but he has also brought in some extraneous consideration by recording that the applicant has not changed his attitude and is presently absent from duties with effect from 16.04.2014 till date.
15. We are conscious of the fact that while exercising judicial review over disciplinary proceedings on employees courts are not enjoined to sit in appeal but have to primarily ascertain if (i) the procedural safeguards have been followed; (ii) the order is not vitiated due to any extraneous consideration; (iii) the findings are so perverse, arbitrary that no reasonable conclusion could have arrived at the same on the basis of that evidence. In the instant case, we find that the impugned order passed by the disciplinary authority does not qualify the criteria of not bringing extraneous consideration.
16. In view of above we are of the considered view that the impugned order passed by the appellate authority is fit to be set aside as the appellate authority has not applied his mind in dealing with the 17 OA No.1697 /2016 appeal and has also based his order on external consideration that the officer is absent from duty presently, an issue which was not a part of charge sheet or deliberation at any stage of departmental inquiry. In such situation, we quash the appellate order and remit the matter to the respondent and direct the appellate authority to consider the same in accordance with law. However, it is clarified that during the interregnum, the applicant will not get any other relief, except that the appellate authority may dispose of the appeal as expeditiously as possible and in any event within three months from the date of receipt of order.
17. The O.A. is disposed of accordingly. No costs.
(Sanjeeva Kumar) (R.N.Singh)
Member (A) Member(J)
/kdr/