Central Administrative Tribunal - Cuttack
Rakesh Kumar Maurya vs M/O Railways on 10 October, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK 8 ENC) 4, CUTTACK
OA. Ne. 260 (00004 of 2015
Reserved om S609 2025 Pronounced om fs ea f
CORAM:
*
HON'RLE MR. PRAMOD KUMAR DAS, MEMBER {A}
HON'BLE MR. RAJNISH KUMAR RAI, MEMBER (J)
Sakesh Kumar Maurya, aged about 40 years, san af
Ram Nath Maurya, Retd. Assistant Loce Pilot, under
Senior Divisional Mecharric ical Engineer, East Coast
Railway, Sarmbaipur Division, Sambalpur, presenthy
residing ina rented house C/o Vijay Barik, Madhav ban,
Rada Bazar, Po - Khetraiour, Dist- Sambalpur ~ 750009,
oo Applicant
For the Applicant : M/s S.Patra-!, Counsel
"Versus
1. Unien of India represented through Executive
Director (ERP), Railway Board, Rail Bhavan, Raisina
Road, New Delhi 1 L000).
2. General Manager, Bast Coast Raihway, Rail Sadan,
chan drasesharpuc Bhubsneswar, Dist - Khurda
Polo?
3, Additional Divisional Railway Manager, East Coast
Railway, Sambalpur, Po-Mocipara, Dist - Sambalpur -
7EROOR,
J
a LAS N SRO SOUNEES GP NTS
4. Senior Divisional Mechanical Engineer, East Coast
Railway, Sarmbs sips ur, Po Modipara, Dist - Sambalpur =
FEROO?,
&. SAN G. Bandyopadhyay, Chief Loco Inspector, O/o
the Senior Division al Mechanical Engineer, Rast Coast
Railway, Sambalpur Division, Po-Modipara, List +
Sambalpur ~ FOROS,
. Shri tndra Ghosh, Former General Manager, East
Coast F Railway, Bhubaneswar (to be served at Ris post ~
retirement address} through the Office of the Gene ral
Manager, East Coast Rallway, Rail Sadan,
Chandrasekharpar, Dist- Khurda « 7S1017.
www Respondents
Forthe Respondents: Mr oR Verma, Counsel
QO RD ER
AR DAS, MEMBER (A):
The facts of the case are that after being selected through RAB, on 14.12.2004 the applicant joined as Assistant Loco Plot in Sambalpur Division of E.Co.Ratbway. On O81 2006 he submitted application fer his transfer. While the request was pending for consideration, he submitted another application dated 24.10.2007 for his mutual transfer, The sald request of the applicant was rejected and communicated to him in letter dated 24.0 L.2008. After making correspondences and seeking information under RT Act. on fod.
wey, teat % if resentation directly te Prime TOA. 2009, the applicant submitted 6 oes Minister of India seeking inclusion of certain pravision under the RM Act, 2005. Applicant was called upon te explain for making such representation directly to the Prime Minister of India thereby violating the codified norms vide letter dated SQ10.2000. The applicant submitted reply on 26.10.2008, Chargesheet under Rule 9 of the Railway Servant [Discipline and Appeal) B dies, 1968 was issued to the applicant vide memorandum dated 15.0 22010 containing the following article of charge Ardele-t Phat the su Hid SN AN Mourye, ALPSSRP under Crew Controller Gn-charge}|sSBP. while working ax such had camplained to the President of India dir actly vide lig representation dtd. TOOK 2009 -- without exhousting departmental remedies and prior intimation /pen m issian af the railway administration.
By the aforesaid act, he had superseded the existing p revision of establishment rules, which is unbecoming af a raifwagy servant and thereby rendered pumnself t Halve for violating Rule SI{UQ(Q} of Rafhway Servic iCond: uct} Rules- 1968.
HH pede keg PF Anicie-d That the said Sri RK. Mourya, ALP/SBP hus adapted evasive attitude and declined to reply by stating that facts shaule be ascartatn ned Srom the Presidents fat. SELE him. 'He hus induiged 'himsel ip in di isob edict sACe vom Bs ae Ras aay Bs of AYES Be improper language Sty under fetter Na.
Prat Morya, | te TER pe did. 738) 9 aim and di sobes sed f Sap ae "} ix unbecoming of a _ raibwe ARN ea Hable fer fee [Conduct] = H ) "of Rallye ay Asi said Arik absent angHthons swan fack of ge Rude 3.0/8) of Ralavuy Senice (Conduct That the kMourva, ALP RP has r Per mained From Jaa s 2009 t fa SRT LUGS That the ee Sri RR Mourya, ILE/SBP Ags refusing fo scent pouty rettees d ed re T6T709, thereby shawn unbecoming of servant and rendered Afnwelf Noble for
--
3.4 fill) of Raiiway Service (Condy vet] Rule 2 Applicant submitted his reply to the memorandum af charge.
After considering the reply, the conmpetent authority appointed Inquiry ser vide order dated 07.12.2010. The mutual transfer sought by the 8 CLA, Nu. BAG ANNO oF BATS applicant and i rejected garlier was acceded fo by the competent authority vide letter dated 28. e420L1 bat the applicant was pot released. The LO. conducted the ingal iry and submitted its report fo the Disciplinary Authority on S8-VL2O11. The copy of the report ofthe LO. was communicated to the applicant wide letter dated 26.12.2011 fA/18} and applicant submitted dis defence an i SaL2012. The Disciplinary Authority did not accept the inquiry conducted an and after OF. 08.2011 and directed for conducting inquiry starting from 7.002011 vide order dated LOS. 2942. The applicant refused to attend the inquiry, which was sou ight to be conduct sd once again, vide representation dated 37 H4.2012. The LO, therefore, eonchided the inquiry on 26.04.2012 and submitted its report an OL O5.2012 (ASS). Cony of the said inquiry report was supplied fo the applicant in letter dated 24.05.2012 and the applicant submitted his defence of 82.06.2012. The Disciplinary Authority considering the repart of the inquiry, reply of the applicant and the materials on record, impor ad the punishment of dismissal from service vide order dated 22.06.001< (A/26). Applicant preferred appeal on 24 QO. 2012. The appeal was considered and rejected on o9.90,2012 {A/S1). Thereafter, the applicant submitted revision on S0.09.2012 and the Revisignal.
wo Autherity after considering all the materials available on record modified the order of punishment of dismissal to that of compulsary retirement vide arder dated 26.08.2015 (A/33). Applicant submitted application dated 29.09.2019 seeking review of the order of compulsory refirement imposed on him vide order dated OOS.2018.
The said Review Application dated 29.09.2034. of rejection was commumicated to the applicant vide letter dated 05.12.2014 (A/35). Being aggrieved, the applicant has filed this GA, anter alla praying as under:
} 2 Nes evs:
"(ip the Han Ne Tribunal may be please aside the arder dated 22.06.2012 under Annesuie A 26 order dated 28.09.2012 under Annexure ASK, wder dered 26.08 2073 under Annexure A338 gad arder dated O5.2220)4 under Annexure ASS ead enquiry report dtd 152012 under Annexure Ages * after declaring hose as iHeaal, unreasonable and tat debian state the : ith fh effect froin wa. 06 22 with all canse sqrienilal benefits by treading the intervening period as ad period spent an dugy fi) and be further pleased fo awe ord exoniplery casts in fovour of the applicant wha Aas been forced fp appre each the Nor'ble Tribunal:
OA Ne DEO SE GE STS 'vj and pass any ether order{s)]/direction(s) ny od At ad praper in the bonafides Spy ts ' ote pttge oF JUSTICE, 2 The main grounds taken by the applicant in support of the reliefs areas under:
fa} Since | Respondent No.8 is below in rank of the authority whe had conducted the fact finding inquiry, he ought not ty have heen appointed as LQ. in the disciplinary proceedings as the z said appointment is in violation of the Railway Board circular dated 10.04.1962 (A/11), nonetheless he being the subordinate to Disciplinary Authority (Respondent Nod} the Inquiry was net conducted ina fair way, fo) No Presenting Officer was appeinted thereby Rule 9 [ix}{c) of RS (DA) Rules, 1968 was violated. Further, in absence of the PG. the LO. conducted the examination and cross examination of the applicant.
fe} 10 did not maintain daily order sheets and only maintained the statement recorded during examination and cross examination. IO did pet examine the documents relied upon In the charge sheet, Thus the findings reached by the [Q are based on no evidence:
vos, wan A 10 allowed participation of unauthorized persons we Shri A.Dhan and Shri | Sindira during preliminary enquiry held en
27. 1.2011 and regular hearing | held on 284.20 12:
fe} 10 did not call the documents called for by the applicant ;
(f} Respondents No. 3 and 4 had examined the records which were not formed part of the enquiry and come to the conclusion which is in contravention ty Article 311(2) af Constitution of India read with Rule 10 (5) of RA(D&A} Rules 1968) 4 ~ Fo oygocars ERS.
AC OOS et AS o
(g) The respondent Noo r elected the eppeal of applicant without due application of min d and without aNording personal hearing to the applicant in coniray entien of Rule 22(2) and 24(7} of RS (QR A} Rules, 1968;
fh) Respondent No.6 without considering the matter in accordance with the Rule 25(3) of RS [L ISA) Rules, LUGS modified the ander ef punishment with oblique phatives G@) The respondent So. passed the order without taking approval ofthe Raibvay Board:
Q) The review petition preferred hy the applicant was rejected arbitrarily on the ground of normal intaimability which is bad in law:
fe) Last but not the least if is the case af the applicant that the punishment is based on ne evidence and In violation of the principles of natural justice ar nd the rules and thus the same is liable to be quashed.
3. The respondents have filed Counter inter alia conte:
& e oe ee of the applicant by stating that the applicant at no point of time has raised any such objection as has heen Taised in the OA regarding wolation of principles of natural justice oF there was any procedural lapses in the conduct of disciplinary proceedings thereby causing prejudice to him. It has been stated that starting from initiation af disciplinary proceedings Hl its conclusion the rules and the principle of natural justice were strictly followed and the authority concerned with due application of mind and keeping in mind the rules and law on the HOGI oF AOLS subject have considered the appeal, revision and review petition af the applicant. Thus there was no flaw in the pratter of initiation of disciplinary proceedings ull the end warranting Interference by this yribunal. Further it has been stated Urat even WY there was any erocedural irregularities that cannot he a ground for the Tribunal to interfere in disciplinary proceedings. In this connection the respondents have placed rellance of the decision of Hon'ble Apex Court in the case of State Bank of Patiala -vs- SR Sharma & Ors. Sharma P1996 SEC (L&S) 739. in so far as the grounds taken by the applicant are concerned the stand of the respondents are as under:
{) [Owas nominated by the DA in accurdance with rules and in Ene with Railway Board's instraction No. ECDSA) 62 RG G19 dated WAAIGE (NR 1966, S051). The fact finding enquiry report did not form part and parcel of the charge sheet. Thus the applicant is estopped under Jaw to question the appointment of the 1Q.
disciplinary proceeding as (legal. The disciplinary proceeding was conducted in accordance with the rules and the Railway Roard instructions issued from time to time. The 10 conducted the enquiry in accordance with rules and giving opportunity to the applicant. Thus the stand of the applicant in this regard is not sustainable in the eye of law.
ii} The non maintenance of the order sheets by the [0 is not correct.
fy} Shri Ahan and Shri | Sindira are not rhe outsiders. They being the. piicals: a the _department the {1D allowed therm to be
vi) Sapply o :
instruction cae F the § Raihvay 7 Board } ax » EIDRAY 6 69. AB? 16 det 3 Burther as per the Railway Board letter Na & fD&A) BS RG 6-€ dated 25.35.1983 priar appt roval af Ralbvay Board is required only when the revisionary authority Intends to supersede the advice of RAY in disposal of revision petition, This being not ONE SUC h case the stand taken by the applicant in WH) In substance it is stated that since there ig ne flaw in the matter oF disciplinary proceeding initiated against the applicant NU disposal af the review petition this OA is Hable to be dismissed.
4 'The applicant has Med rejoinder more or less reiterating the stand taken in the GA which will be discussed infra.
Ss Learned counsels for the respondents have reiterated the grounds taken in their respective pleadings and after giving Indepth consideration to the said arguments we have perused the materials placed on record, 6 Records of this case depict that the applicant preferred revision petition against the order of DA and BA under Rule 242) of the Railway Servants (D&A) Rules 196 8 wherein, as ibappears, advise was % } SAoe RS ESE pte ele Belg nee M3 TA. Noo SIRNAS OP R8 PS saught from the Railway Rates Tribunal of India, Ministry of Railways Govt. of India, based on which, vide order dated 03.06.2013 (A/S7) the matter was remitted back to the Revisional Autherity for reconsideration. Relevant portion of the letter dated O3.00.c019 is quoted herein below:
'The aggrieved CO has preferred this revision against the order of dismissal ef appeal which was fled against the order of dismissal from service passed by DA, with a request to seek the advise af RRT under Rule 24f2) af Railway Servants (D&A) Rules 1968, before passing final order, Accordingly the same was forwarded to us and we have received it on O6.05.2015.
We have carefully perused the charge memorandum, the oral and documentary evidence, the report of Enquiry Officer, reply of CQ, orders vaised hy DA, AA, the grounds of appeal and also revision.
The facts which were leading to issuance of charge memorandum are as follows:
The CO has submitted his application dated 14.10.07 far mutual transfer which was rejected on 14.12.06 wrongly quoting Raihvay Board circular which fs admittedly not ayplicable for mutual transfer but it apples any for infer Railway request transfer The CO has stated tt have obtained the said cireular after invals sing the provisions of RTL Act The CO has further stated that the administration realiged its mistake and recommended for mutual transfer by its order dated 24.09, however it was not acted upon. If was further alleged by CO thet CIC directed PIG ECob Rly SBP division by its order dated 18.6.09 to permit him fo peruse the file relating to mutual transfer and he appr ogehed the said officer on 15.7.09 where he was allegedly threatened : ident allegedly made him te and harassed. The said submit his representahan dated 108.09 to the Hon'ble PM and His Excellency the President of India, {tis stated by the CO that the said representaniens need not be sent through proper channel. After coming & know the said representabions rhe adavinistration ealted for the detalls of the said representations but the CO has evaded it If 18 alee stated by the administration shat the CO has made false and serimus allegations against them € the Hon'ble PM and Is Exeellency the President ef India. The administration has stated that on 7.21.08 Fact Finding Committec Wess appointed and notices were sent to CO to appear but he refused to receive it and thereby avoided his appearance, 'The said committee has submitted its report on 44.12.08 duly FAing responsibility on GU GX parte for violating the Rules 31.(1), ( of Railway Services (Conduct) Rules 19 6b.
he issuance of charge sheet is usually preceded by 8 preliminary inquiry or fact. nding inquiry before drafting the charge sheet. The report af the preliminary inquiry he scrutinized and the Andings should be reduced in the forin of definite articles of charges which was followed in Chis case, The CO has not attended to the fact firning Inquiry though he Was granted permission whith effect from 18.11.09 to 25 141.09 for which he has submitted certain axplanations denying the sume. i was stated by the administration that seme of the disrespectful pepresenalions lke 26 10.09 Exhibit Annexure WP ST Nobo were sent by the CO, which were false [It cannot ke forgotten that the CO has allege that all sequences of Incidents emanate from the wrong order of the administration rejecting his application gor mutual transfer thereby he was prevented from Joining his ailing father, As extracted above along with the charge memorandum, 10 documents and a list of S witnesses which were relied upon by the department were cerwesd on the CO. calling UpeH hint ra submit his reply. The CO has submitted bis reply dated weed 'aed i issuance of certain documents which were stated to have mot supplied to him. The DA has appointed the Enquiry Gficer on 7.A2.2010 which was received by the COQ on GIP F018. Gn 27.11, 128.04, 89.) and 78 11 enquiries were conducted and in which the CO, PW, PWS, PW4 and PWS were respectively examined, The EO has submitted the enquiry report dated 15 12 holding that all the five charges against the CG were proved. After receipt of the said stating that the EQ has concluded the enquiry without affording him any opportunity to submit his defence Qn receipt of the same, the [MM has directed the EQ te reopen the enquiry and to continue the same from where he has stopped. Accordingly, the RO has conducted the enquiry, received written defence of the CO, concluded his enquiry proceedings, and submitted his report holding that all the S charges against the CO were proved. The DA has received the report of EO an 12.2012 and forwarded the same to £0 calling upon him to give his reply if any. The CO has submitted his reply dated 27 4 2012 and thereafter the DA has passed an order of dismissal dated 19.0.c01 2 itis seen fram the above said praceedings of EO and DA that all mandatory procedures required for Inmposing maja penalties were followed. It is the duty of the DA after carefal pernsal of evidence and the clreumstances if any, lead the CO ro comamnit the misconduct and then decide the quantum af punishment commensurate with the gravity of charges. The punishment imposed should be neither too harsh nor teo which was rejected on 14.0 1.08, wrongly quoting an arder af the Railway Board, which Is admittedly not at all applicable oe ar OE SE NERS EE SD Y a a Th Ne. See SEOs ar Shas eaid officer on 187.09 where he was allegedly threatened and harassed. The said ancident allegedly made him to submit AIS TEpy sentation dated {0.8.08 to the Hon'ble PM and His Excellency the President of India. [tis stated by the cry chat the said represe) ations need not be sent through proper channel After coming know the said representadians the administration eailed for the details of the said representations but the CO has evaded it. [t is alse stated by the administration shat the CO has made false ang serious allegations against ghem te the Hon'ble FM and HIS Excellency the President of India. The administration has stated that on 74109 Fact Finding Commitics 8s appointed and notices WETS want to CO te appear but he refused to receive H and thereby avoided his appearance.
The said cammittee has submitted Its report on 1412.08 duly Haig responsiblity oo cO ex parte for violating the Rules 3.1.1), Gof Ralls Services (Conduct) Rules 1966, 23 x 'he issuance of charge sheet is usually preceded by a preliminary Nquiry oF ret, finding Inquiry before draiing the charge sheet. The report of the preliminary Inquiry be scrutinized and the Ancings should be reduced In the form of definite articles of charges which was followed in this ease. The CO has not attended te the fact Anding pqulry though he Was granted permissign with effect from 48.11.09 to 25 11.08 for which he has submitted certain explanations denying the same. If was stated by the administration that seme of the disrespectful avons Uke 76 U0 09 Exhibit Annexure HIST No. Td "i xy ch were false It cannot be forgotten tha O has alleged that all sequences af Incidents emanate from Gre wrong arder af the administration rejecting his application for mutasl transfer thereby he was prevented from joining Als aling father.
YS SAN As extracted above along with the charge memorandum, | Q documents and a list of S witnesses which were relied upon by the departiient were served on the CG, calling apon him ta submit his reply. The CO has submitted his reply dated roi LAE QA. No SAO ARS of 2535 equity which alms to promote honesty and fair play The AA has faited to follow the principles of natural justice.
The charges in Article 1V was that the CO remained absent anauthorisedly from 18.01.09 to 25,0..09 and that ft was alleged by him that he was spared for WOD (Walting On Daty} but not assigned any duty though he was ready. In suppert of the said contention he relied upan the "Sign On/O8 Register", which was not produced by the administration theugh he fled necessary applicatian, [ft is further alleged by him that no timation was received by him to appear before the fact finding committee during the relevant period, The witnesses PW, and PWS who were examined by the administration to speak abort the said charge IV, have not spoken in clear terms that he was legally intimated, It is also relevant to mention that no communication in writing or by post was sent to lyin. Even the alterations in the attendance register by the administration was made without any notice oF intimation to him. The administration has not placed any valid evidence to dispute the said averments of the co.
As far as the charges in Article HI & V are concerned, the administration has not produced any valid reason fo establish that the CO has refused to accept the letters. It is rather strange as to why such letters were not sent by postas the same is mandatory.
Regarding the charges in Article 1 & Hi are concerned no valid reasons are assigned by the CO to justify his stand.
it fg also necessary ta mention shat refusal to reveal the eantents of his representations and directly sending It to Womble PM and His Excellency Yhe President of India no doubt may be termed as misconduct. In this case the application of the CO fer mutual transfer was rejected, wrongly quating the Railway Beard order which Indeed was supporting him and the same was commnmicated belatediy to id ER ALS SOR TS bo the mutual transfer but applicable for Railway request ;
transfer. The CO has farther alleged that the sald order of rejection was served on him belatedly. In the mean time, he has Invoked the provisions of RTL Act to get the copy of the order of the Railway Beard and other reliefs, which prejudiced the Railway administration. The said mitigating circumstance was not taken inte account hy the DA before Imposing the capital punishment af dismissal. Agsrieved by the order of DA, CD has preferred an appeal hefore the Appellate Authority (ORM/ SBP} hereinafter referred ag AA, on (1.08 2012 The AA without affording opportunity for personal hearing, has concurred the vias of NA, dismissed the appeal on 289.12.
When the duty of decking an appeal is imposed, the AA must judicially deal with the questions referred to, without bias and he must give each of the parties the apportunmity of adequately presenting their case. Rule g4 of Rahway Servants (D&A) Rules 1968 provides special provisions for non-gazetted staff The Sub-Rule (1) of Rule 24 says Where the penalty of dismissal, removal, conypulsory rehrement reduction or withholding of Increment has been impo 1, the appellate authority may, at its discretion and i i considers it necessary, give the non-gazetted Railway servant a personal hearing before disposing of the appeal Al this personal hearing, the railway servant may be accompanied, if he so chooses, by another Railway servant employed on the same y Administration, OfAce af the Rallway Board, its attach ee or subordinate office, 8s the case may be, in which the appellant was or is working oF an official (who is nota legal practitioner) ofa Railway Trace Union recognised by the Railway Administratian on awhich the appellant was ar is employed. Unfortunately in his case the AA has not exercised his discretion of hearing the CO although it is a fit case for the same. The AA should take cognizance of entire facts and circumstances of the case and pass orders to give parties the complete and substantial justice keeping in mind the principles of Od: Ne. Sat (8) Discussion on the quantum of punishment to be imposed:
U. After receipt of the 'advice' from ART, Shri RK Maurya was given a personal hesring Gy me on 6th August. During the above hearing he was not at all repentant or a apologetic about what he had dene; In fact he was deflant and arrogantly replied thet whatever he had done was correct and the administration was merely being vindictive with him. This attitude of the CO was quite shocking, Shri Maurya was again reminded of the detaied discussions which the undersigned had with him on at 3 previous eceasions (2 during Stall Grievance Interviews and one apart from the above} during the course af the past ons year wherein Shri Maurya was repeatedly advised te shed his arrogance and submit a simple half page review application seeking pardon so that his case could be considered sympathetically, While Shri Maurya recalled all of the above discussions he remained adamant that he would not modify his G page application in which he had heaped all kinds of allisgations against the DA and AA and that his case should be decid adi as it was.
12. An appeal can be considered: sympathetically if the CO realises his mistake and assures of not repeating the Same in fubure; but here is a case where the CO even now is adarnant that he had not done anything wrong and arrogantly states that whatever he had done was justified.
12, Since the CO has neither realised his own mistake nor is repentant of the same, there is every likelihood that he would repeat the same if taken back in railway service. Moreover, it would set a bad examifle to nureraus other hard-working disciplined staff all of whom are following laid down rules and procedures in their day to day warking.
14. In view of the above, the CO does nut deserve ta be shown much leniency. Nuwever, in keeping with the advice' rendered fy RRP, | hereby reduce the pu nishment of (Nsmissal from Service to Compulsory Retirement, ee eee sf Spy EE LOLS aed, SA No DEQ OHOSS ELE 3 Thereafter, the applicant preferred appeal under Rule 284) of RS (D&A) Roles, 7IGH an S6.QG 2015, which was held to be not maintainable vide letter dated OS.12 2O14 (4/35) as under
whe President has observed that Shei Maurya in his review etition has mainly raised certain points of pr eacedure Hike appointment of an Inquiry Officer ower mn rank chan members of Committee which conducted fact finding MNQUIry:
non implementation of the advice af the Rathvay Rates Tribunal his representation dated 16.98.2009 to the President being In relation [fo RTT Act and not pertaining to departmental matter e&, All these grounds have alread ly been brought at the appeal and revision stage and concerned authorities have already passett suitable arders taken note of He has not brought out any Rew material or evidence in his review petition which may be consi 'dered to have any bearing sn the Andings relating to his quilt and the orders passed 18 his case. Hence, his review petition dated 29.9.2013 aforesaid is not maintainable under rule 2S-A of Raihvay Gervants (Oiseipline and Ap peal) Rules, 1968 and is, accordingly, rejected"
4% "Thus, it is crystal clear that the GM, EGoR exercised his revisional power in compliance af the order dated 03.06, 2013 (A/37} passed by the BRT quoted above. Qn esa smination of the order of the Rev! isional Authority dated 29 OR BOTS LASS. 3), itis established that the Revisional Authority in bis arder had taken down the history ofthe case at pages | 6 3 but without dealing with the points raised by the applicant in iss DA Ne SHOES ot eet support of his stand in the revision petition and the iHegality noted EES down in the order of the RT reduced the punishment of dismissal From service to compulsory retirement on the grounds surmmariged as under
(i) During the hearing, the applicant was nat at all repentant or apologetic about what he had dane; in fact he was defiant and arrogantly replied that whatever he had done was correct and the
-administration was merely being vindictive with him. This attitude of the CO was nite shacking.
(ii) The applicant was repeatedly advised to shed his arrogance and submit a simple half page review application seeking pardon so that his case could be considered sympathetically. But he remained adamant that he would not modify his 6 page application in which he had heaped all kinds of allegations against the DA and AA and that his case should be decided as If was.
(iii) An appeal can be considered sympathetically if the co realises his mistake and assures af nat repeating the same in firture; but the CO is adamant that he had not done anything wrong ard arrogantly states that whatever he had done was justified.
{iv} Since the CO has neither realised his owt mistake nor is repentant of the same, there is every likelihood that he would repeat the same if taken back in railway service.
{v} Te would set a bad example to numerous other hard-working disciplined staff ali of whom are rs ts GA Re TAR MES we.
ioe ook is Canal ae ee bd aa rete ee Nana?
a 'ene nee.
8 hereafter, the applicant preferred appeal under Rul RS (DSA) Rules, L268 on 2g.09 2013, which was held fo be nol maintginaiie vide letter dated 05.12.2014 (A/35) as wader "Phe President has observed that Shri Maurya in his review petition has mainly raised certain points of procedure like appointment of an tnquiry Officer lower fn rank than members of Conmmittes which eonducted fact finding Inquiry:
non implementation of the ad :
being in relation fo eT? Act and net pertaming departmental matter ete, All these grounds have already been brought at the appeal ard ree authorities have already passed suitable orders/taken note of Jon stage and concerned He has not brought out any new material or evidence in his review petition which may be considered to have any bearing an the findings relating to bis euilt and the orders passed Jn nis case. Hence, his review petition dated 29.9.2018 aforesaid is not maintainable under rude 2s. of Railway Servants (Discipline and Appeal) Rules, 1 968 and is, accordingly. rejected"
9 Thus, itis crystal clear that rhe OM, ECaR exercised bis revisional power in compliance of dhe arder dated 08.06.2015 CASS7) passed by the RRT quoted above. On examination af the arder of the Revisional Authority dated 29.08.2018 fAf33), 48 established that the Revisional Authority in his order had taken down the history of the case al pages q fy 3 but without dealing with the points raised by the applicant in al OA. Ne AOMORI would become a teol of harassmie ntte employee cancersed, A speaking order ensures that the principles af natural fustice are followed. To give reasons for the decision is a req uirement of the principles af natural justicg, that foo, Peasants must be substantial and cogent it must not be an apology for reasons. The order would show Ww hich particular cJyCuIAtance renstved dun consideration while arriving at the decision. Further, the authority taking 4 decision must apply his mind to the explanation f umnished, Application of sind must be apparent from the eyder as held by the Supreme Court in the case of Tar Lochan Dev Sharma v. State of Punjab P2001] 6 SCC 260. A mere running of eyes over the order of the RRT an ad order of Revisional Authority dated 2G. 08.2013 [A/33), 8 is established that thes Revisional Authority instead of considering the points t raised by the applicant in his vevision petition keeping sn mind the order af RRT caywerted the punishment of dismissal te compulsory retirement merely because the apglicant did not agree to apology or change the ground raised ih his petition and was arrogant, which is not the requirement of Rule ar law.
41. Facts of the matter are that the applicant entered info service on 44.12.2004. The charges against the applicant relate to submission of camplaint to the President of India directly In violation af the 4 {A OES procedures, non-acceptance af letter of the higher authority anc anauthoriged absence from duty for 8 days (1.11 3009 to 25.11.2009). He was dismissed from service as 8 easure © Ff punishment vide order dated 22.6.2012 which was upheld in appeal. However, by the order af the RET, the Revisions! Authority converted the arder of dismissal to that of compulsory retirement vide order dated 2982012. The applicant has Aled this original application on O8.0L2018, when he was aged about 40 years. in other words, by the time he was imposec doawith the punishment, he had completed near about @ years of service M ASS than 40 years of age. Thus, as per the extant Rules, by the order of dismissal, he was mot entitied fo any benelits, Heswever, Ue punishment of dismissal was converted to compulsory retirement:
which punishment In the tastant case aise tantamount to imposition of dismissal hecause, the applicant would net be entitled to any benef on aecpunt of such compulsory retirement since he did not complete minimem TO years service for getting pension or any pensionary benefits.
12. Ibis alsa note worthy that people are prone tom aking allegation of malice and malafide against the employer whenever the decision goes against the employee concerned but without any substantive basis Sn aes co ORS EETENTRS SMES we Oe. SME OO08S of QUES af such allegation and, therefore, the Court and the Tribunal may fake such allegation provided the allegation is based on concrete material. In the instant case, we find that except hald allegation of malice and malafide no material has been placed on record in support of such allegation and, therefore, this Tribunal is not prepared to accept the contention of the applicant that the entire gamut af exercise being suffered from vice of mala fide exercise of power is liable to be quashed. Hence, this plea of the applicant is held to be without any merit and is rejected.
13. We are conscious of the judicial decisions relating to the power and authority of the Tribunal to interfere in the order of punishment and suffice to take note of some of the decisions as under:
i} B.C. Chaturvedi vs. Union of India & Anr., 1 996 AIR 484, "radical review ia not an appeal from a decision but 3 review of the manner fn which the decision is made, Power of judicial review is meant fo 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 fs 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 ur whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conchisions are based on some evidence, the authority entrusted with the power to hoki inquiry has jurisdiction, power and authority to reach a finding of fact or conchision. But that finding aa Re OVA No. SSS AS of 2S procedures, nom-acceptance of letter of the higher authority and unauthorized absence from duty for § days MBLL2009 to 25.02. 2008}. He was dismissed from service as & Measure of punishment vide order dated 22.6.2012 which was upheld im appeal. However, by the order of che RRT, the Revisional Authority converted the order of dismissal to that of compnuisory retirement Wee order dated 28.2018. The applicant has Ned this or einal application on ORAM 2015, when he was aged about 40 years. in other words, by the time he was iraposed With the punishment, he had completed near about 8 years af service in les than 40 years of age. Thus, as per the extant Rules, by the order of dismissal, be was not entitled to sny benefits. However, the punishment of dismissal was converted to compulsory retirement, which punishment in the instant case also tantamount to imposition of dismissal because, the applicant would not be entitied to any benefit on account of such compulsory retirement since he did not complete minimum 10 years service for getting pension or any pensionary benefits.
49. It is also note worthy that people are prone fo making allegation of malice and malafide against the employer whenever the decision anes aguinst the erapleyee concerned but wi thoul any es stantive basis 3 A Na. BAO SOU Meat 2005 of such allegation and, therefore, the Court and the Tribunal may take such allegation provided the allegation ts based on concrete material. In the Instant case, we find that except bald allegation of mallce and maiafide no material has been placed on record in support of such allegation and, therefore, this Tribunal is not prepared to accept the contention of the applicant that the entire gamut of exercise being suffered from vice of mala fide exercise of power is Hable to be quashed. Hence, this plea of the applicant is held to be without any merit and is rejected,
13. We are conscious of the judicial decisions relating to the power and authority of the Tribunal to interfere in the order of punishment and suffice to take note of some of the decisions as under.
i: B.C. Chaturvedi vs. Union of India & Anr., 1996 AIR 484, "tudicial review is not an appeal from a decision but 4 review of the manner in which the decision Is made. Power of juclicial review is meant to ensure that the individual receives fair treatment and not to ensure that the eonchision which the authority reaches is necessarily correct in the eye of the court. When an Inquiry ls 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 Snding * wht Tea Nas:
must be hased an some evidence. Neither the technical rules af 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 therelrem, 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 proc eedings & gainst the delinquent officer inv a manner in a manner inconsis stent with the rules of natural justice or In viedation of statutory rules prescribing the mode of inquiry or w here ne conclusion or pang F Feached by the disciplinary ance. HP the conclusion or fading \ be suc ch aS NO jenconable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the Snding, and mould the relief so as to make if appropriate to the facts of each case.
XNK XNK NEN A review of the shove legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view fo maintain discipline. They are invested with the discretion to Impose appropriate punishment keeping in view the magnitude or gravity af the misconduct, The Nigh Court/Tribanal, while exercising the power of fudicial review, cannot normally substitute its own conclusion on penalty and inmipoase some other penalty. it the ponishment inypased by the disciplinary authority or the appellate authority shocks the canscience of the High Court/Tribunal, it would appropriately mould the reflef, elther directing the disciplinary/appellate authority to reconsider the penalty imposed, or te shorten the litigation, If may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereat' WES ee ey eae00 PAV ORES SOS RS at Qa No. SAO of SES i} In State Bonk of Bikaner and jaipur Vs. Nemi{ Chand Nalwaya (2011) 4 SCC 584, the Hon'ble Apes Court ohserved as under
*s3e now well settled that the courts will met act as an appellate court and reasgess the evidence led in the domestic enquiry, Ror interfere on the ground that another view fs possible on the material on record. Wo the enquiry has been fairly and praperty held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings im departmental enquiries, Therefore, cgurts will mot interfers ywith findings of fact recorded in departmental enquiries, except where such find ased an no evidence or where they are clearly perverse. The fost te find aut perversity is ta see whether 8 tribunal acting reasanably cud have arrived at such conchision ar finding, on the meterial on record, Courts wil however interfere with the findings in disciplinary matters. 1f principles of natural justice or statutery regulations have been violated or H the order is found to be arbitrary, capricious, mala fide or based cp extraneous considerations, iii} In State of Andhra Pradesh & Ors. Vs. Sree Rama Rao, AIR 7963 SC 1723, a three judge Bench of the Hon'ble Apex Court held as under "the High Court is not constituted in a proceeding under Art. 208 of the Constitution a Court of appeal aver the decision of the authorities holding a departmental enquiry against a public cervant: it is concerned to determine whether the enquiry is held by an authority competent in that hehalf, and according to te procedure prescribed In that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty te hold the enquiry has accepted and which evidence may reasonably support the ORRARER EE RE OTe GOR 26 SURES. al 2048 conchision that the delinguent Officer is guilby af the charge, Wis not the fiinction of the High Court in a petition for a writ under Art, 226 to review the evidence and (© arrive at an independent finding on the evidence'.
J4. In view of the law stated above, this Tribunal is not convinces Ato quash the charge memo, the DA and the AA order. However, On examination af the facts and law discussed above, this Tribunal is convinced: that gross injustice was caused to the applicant in the decision making process of the matter; especially by the Revisional Authority wide order dated 24.08.2019 (4/23) In compliance of the order of the RRP dated Oo {Af37). This Tribunal is alse eonvinced/felt that the punishment of compulsory retirement is shockingly disproportionateharsh to the charges levelled against the applicant. Hence, the order of the Revisional Authority dated 29.08.2018 (A/33) and the letter dated OS.12 2014 (4/55) are hereby quashed and the matter is remitted back to the Revi sional Authority/General Manage the punishment, other than dismissal /removal/compulsory retirement and issuance of consequential order to the above effect. While considering and passing the consequential order as directed above, authority concerned shall also deal with the matter relating to treating r, ECR, BESR for suitable modification of Ey teehee ate MASAS cigs sk a8 CLA, Bas, SEO SORE ak SO TS.
the period and payment of service and financial benefits from the date of dismissal dH fresh arder is issued. Since considerable Jong Nme has been lansed in the meanwhile, to aveld further delay, the concerned authority is directed to complete the entire drill within a period af 45 {forty five] days from the date of receipt of a copy of this order.
iS. With the aforesaid observations and directions, the QA stands disposed ofleaving the parties to bear their awn costs.
Member Judi) . Member (Admn J