Central Administrative Tribunal - Ernakulam
U. Narayanan vs The Chief Operations Manager And Ors. on 23 November, 2001
Equivalent citations: 2003(2)SLJ87(CAT)
JUDGMENT
A.V. Haridasan, Vice Chairman
1. The applicant was regularly absorbed as Traffic Porter in the year 1975 and promoted as Switchman in the scale of Rs. 1200-2040. While working as Switchman at Uttukuly, the applicant was placed under suspension w.e.f. 15.5.96 and was proceeded against departmentally for a major penalty proceedings vide Charge Memo dated 10.7.96 issued by the 3rd respondent. The statement of imputation regarding the articles of charge reads as follows :
"Shri U. Narayanan SWM/YKL while on duty at B Cabin UKL on 15.5.96 refused to exchange PN with the SM and to give slot for the reception of 505 passr, which was blocked at 17.30 hrs. Shri P.R. Abhimanyu, PF Porter on duty, who was sent lo Cabin by the duty SM, found Shri. Narayanan not in a position to perform duties properly. By the time alternate arrangements were made, 505 Passr. suffered 45 minutes detention at Home. When DMO/ ED and TI/ED arrived at UKL, Shri Narayanan absconded from the cabin during duty hours without handing over charge.
Shri Narayanan has failed to maintain devotion to duty and has behaved in a manner quite unbecoming of a railway servant. He has violated Rule 3.1(ii) and (iii) of Railway Services (Conduct) Rules, 1966."
2. The applicant filed a statement, A-2 explanation in reply to the memorandum of charge denying the charges. He stated that at 17.00 hrs. on 15.6.99, he became giddy on account of diabeties and hyper tension and was not in a position to discharge his duties, that he left the cabin only when release reported and requested the Station Master to give him a sick memo which was not given. An enquiry was held. The disciplinary authority accepting the report and findings of the enquiry officer that the applicant was guilty of the charges, imposed on the applicant a penalty of reduction to the post of Traffic Porter in the scale of Rs. 775-1025 on a pay of Rs. 1025 permanently by order dated 14.11.96 (A6). Though the applicant submitted an appeal to the 2nd respondent, the Additional Divisional Railway Manager, the 2nd respondent confirmed the penalty by order dated 27.6.97 (A9). The applicant carried the matter in review before the first respondent who by order dated 26.2.98 (A11) refused to intervene. Aggrieved, the applicant has filed this application seeking to have the impugned order set aside.
3. It is alleged in the application that the 3rd respondent who belonged to the Safety Department, had no competence to award any penalty to the applicant who belonged to the Operations Department, that the applicant was not guilty of any misconduct, that the evidence adduced at the enquiry would not enable any reasonable person to hold the applicant guilty, and that the penalty imposed on him is grossly disproportionate to the misconduct alleged. It is also alleged that the appellate and revisional orders suffer from lack of application of mind.
4. We have gone through the detailed pleadings and materials placed on record and have heard Mr. Martin, the learned Counsel for applicant and Mr. James Kurian, learned Counsel of the respondents. There are two limbs to the articles of charge. The first one is that the applicant refused to exchange the private number (PN for short) with the Station Master and the other is the applicant absconded the cabin during the duty hours without handing over charge.
5. A reading of the statement of imputation itself would show that the applicant did not exchange the PN because he was unable to do so as it has been stated in the statement of imputation that Shri Abhimanyu PF Porter on duty when sent to the cabin by the Station Master found that Shri Narayanan was not in a position to perform duties. The evidence at the enquiry also discloses that the applicant had gone to the Station Master and sought sick memo which the Station Master declined to give for the reason that the DMO was arriving shortly. Further the evidence on record reveals that the failure of the applicant to exchange PN was on account of his health condition and that he had immediately reported sick and demanded sick memo. We, therefore, do not find any justification in the finding that the applicant refused to perform his duties. Regarding the 2nd aspect of the charge that the applicant absconded from the work spot without being relived, the evidence adduced at the enquiry shows that, Shri K.P. Hamsa relived the applicant. (See the answer to the Question No. 3 of the Cross Examination of Shri G. Somasekar, SM III/UKL Witness No. 1). It was only after the applicant was relived by K.P. Hamsa that he left the cabin. The finding that the applicant was guilty of absconding from the work spot also is therefore perverse. No reasonable person could have come to such a finding on the basis of the evidence available on record. We therefore, hold that the finding of the disciplinary authority that the applicant was guilty of the charges, is perverse and it is based on no evidence at all. On that score alone, the application has to be allowed and the impugned orders have to be set aside. It is also pertinent to mention here that the 3rd respondent who is an officer belonging to the safety department, has no jurisdiction to award penalty of any kind on the applicant, who belongs to the operations department. Paragraph 3 of Railway Boards Circular R.B.E. No. 82/97 dated 4.8.97 reads as follows :
"After taking into account all the relevant aspects of this issue, including orders of the Hon'ble Supreme Court in the SLPs filed before it, Board have decided the henceforth, only Sr. DOMs/DOMs will exercise disciplinary powers in respect of Operating Staff even in matters relating to violation of safety norms. Any practice contrary to the above that may be in force on the Zonal Railways, may be discontinued forthwith."
It is amazing that the appellate authority as also the disciplinary authority lost sight of this aspect.
8. In the light of what is stated above, the application is allowed. The impugned orders are set aside with all consequential benefits to the applicant. No costs.