Central Administrative Tribunal - Delhi
A K Sharma vs M/O Railways on 23 May, 2019
Central Administrative Tribunal
Principal Bench
RA No.96/2019
In
OA No. 2806/2012
New Delhi this the 23rd day of May, 2019.
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Mr. Pradeep Kumar, Member (A)
Shri Anup Kumar Sharma,
S/o Shri Bhagwan Swaroop Sharma,
Ex. Senior Booking Clerk,
Shalaka, Presently R/o H.No.31/244
Rawli, Agra.
... Applicant
Versus
Union of India through
1. General Manager,
North Central Railway,
Allahabad.
2. Divisional Railway Manager,
North Central Railway,
Agra Cantt.
... Respondents
ORDER (By Circulation)
Hon'ble Mr. Pradeep Kumar, Member (A):
The applicant had filed OA No.2806/2012. This was dismissed vide orders dated 08.02.2019. The applicant has preferred RA No.96/2019 seeking review of these orders.
2RA No.96/2019
In OA No.2806/2012
2. The applicant had brought out the following in his RA:
2.1 A major penalty charge-sheet was issued to the applicant on 07.07.2005 as it was alleged that he had issued a letter in contravention of extant instructions and the authority delegated to him. It was thus alleged that he has contravened Rules 8 and 9 and Rule 1 (I), (II) & (III) of the Railway Service (Conduct) Rules. These charges were denied. However, an Enquiry Officer (EO) was nominated to conduct enquiry.
2.2 The EO completed the enquiry. However, during submission of the enquiry report he violated rule 2 as well as clause 9.12 and 9.21 of the Railway Servants (Discipline & Appeal) Rules, 1968. Thereafter the punishment order was passed by the Disciplinary Authority (DA) and the order passed by the Appellate Authority (AA) was a non-
speaking and non-reasoned order. Feeling aggrieved, the applicant had approached the Tribunal in OA No.1075/2010 wherein judgment was pronounced on 28.04.2011.
In OA-1075/2010, the applicant had pleaded that the penalty of compulsory retirement imposed on 01.05.2008 was passed by the Divisional Commercial Manager (DCM), 3 RA No.96/2019 In OA No.2806/2012 who is a subordinate authority to the one who had promoted/appointed the applicant as Senior Parcel Clerk in the grade Rs.1200-2040 in the year 1997. This promotion order was issued by Divisional Railway Manager (Establishment) [DRM (E)] and it was pleaded that DCM is a lower authority as compared to DRM (E) who had appointed him to the post of Senior Parcel Clerk and as such was not competent to impose the punishment. Non compliance with clauses 9.12 and 9.21 of Railway Servants (Discipline and Appeal) Rules, 1968 was also raised. Other grounds were also raised. The Tribunal passed the following orders:
"We accordingly quash the orders passed by the appellate and the revisional authority and remand the case back to the concerned authorities, leaving the other contentions open, with a direction to look into the appeal dated 1.10.2008 of the applicant afresh and after considering the contentions raised in the appeal/representation, as also the issue raised in the MA, of the order not having been passed by a competent authority, take a considered decision on the appeal/revision petition and pass appropriate speaking and reasoned orders in accordance with the rules and law. The applicant will have liberty to challenge the fresh orders passed by the authorities. This be done within a period of three months from the date of receipt of a copy of this order."
3. Thus, the orders passed by the DA were upheld by the Tribunal. However, the orders passed by the AA and RA were quashed. The AA and the RA have subsequently passed reasoned and speaking orders with which the 4 RA No.96/2019 In OA No.2806/2012 applicant was aggrieved and he filed another OA No.2806/2012. It is the judgment dated 08.02.2019 in OA No.2806/2012 for which instant RA has been filed.
4. The applicant had now pleaded that in respect of the competency of the DCM to issue the punishment order, ratio of the judgment of the Hon'ble High Court of Delhi in Union of India and ors. vs. Jagdish Prasad, WP (C) No.4847/2012 decided on 22.04.2013 has been ignored.
5. In respect of clauses 9.12 and 9.21 of Railway Servants (Discipline & Appeal) Rules, 1968, the applicant had relied upon the decision of the Tribunal in Hari Prasad Billore v. Union of India & Ors., (ATR 1987 (1) CAT 190 dated 28.11.1986), which was decided by a Division Bench and the decision of the Hon'ble Apex Court in Ministry of Finance v. S.B. Ramesh, [JT 1998 (1) SC 319].
6. In view of this, the matter has been reviewed in respect of the issues at hand in the cases now relied and the ratios applicable, if any, to the instant case.
i) In Union of India v. Jagdish Prasad, decided by the Hon'ble High Court of Delhi on 22.04.2013 in W.P.(C) No.4847/2012, certain punishment was imposed by DCM which in turn was enhanced by Senior DCM as Appellate Authority, who had signed on behalf of DRM. The 5 RA No.96/2019 In OA No.2806/2012 petitioner therein was working as Goods Supervisor in the pay scale of Rs.5500-9000. The fact of the case was that the petitioner was promoted as Goods Supervisor in this pay scale by the DRM and accordingly the Hon'ble High Court had taken that the Appointing Authority was DRM and the Senior Divisional Commercial Manager, who is an authority subordinate to the DRM, was not competent to issue the punishment order of compulsory retirement and the same was quashed by Tribunal with liberty to Railway to start the punishment process from the stage it went wrong. This was upheld by the Hon'ble High Court.
As against this, in the instant case the applicant is a Senior Parcel Clerk in the pay scale of Rs.1200-2040 for whom the order for promotion was issued by DRM (E) with approval of competent authority. Entire emphasis of the applicant has been to plead that the DRM (E) and DRM are one and the same thing and accordingly DCM who is an authority subordinate to DRM, is not competent to issue the punishment order.
It was mentioned by respondents that promotion order was issued with approval of competent authority, who happens to be DCM as per respondents. 6 RA No.96/2019
In OA No.2806/2012 It has nowhere been brought out by the applicant that the said promotion order for the post of Senior Parcel Clerk was approved by DRM and as such it cannot be said that the DCM who had actually imposed the punishment, was an authority subordinate to the one who had approved the promotion order of Senior Parcel Clerk.
Mere issue of promotion order by DRM (E) will not change the DA. The differentiation between DRM (E) and the DRM (Commercial) and DRM has already been delved at length in the order passed on 08.02.2019. Accordingly, since the competent authority for Senior Parcel Clerks is DCM and DRM (E) is only the communicating authority it does not take away the power of DCM to impose punishment.
In view of above, the ratio of Hon'ble High Court's judgment is not applicable in the instant case.
ii) The applicant has also relied upon another judgment of the Hon'ble Apex Court in the case of Narinder Mohan Arya v. United Assurance, [2006 (3) SLJ SC 211]. In this case the Hon'ble Apex Court has held that the Appellate Authority has to pass a reasoned and speaking order on all paras which were part of the appeal. It is noted that in the instant case, the orders passed by the Appellate Authority 7 RA No.96/2019 In OA No.2806/2012 and by the Revising Authority in compliance to orders in OA No.1075/2010 adequately addressed the issues raised by the applicant. This judgment by the Hon'ble Apex Court is of no help to the applicant.
iii) In regard to non-compliance with clauses 9.12 and 9.21, at the very outset, it is obvious that the requirement specified in clauses 9.12 and 9.21, both pertain to a stage before the enquiry report is finalized. The applicant had raised the non-compliance of clauses 9.12 and 9.21 in OA No.1075/2010 also. However, the punishment order passed by DA on 01.05.2008 was upheld by the Tribunal in its order dated 28.4.2011 in OA No.1075/2010. As such, raising the same issue in the instant RA is barred by res judicata.
6.1 However, the applicant has relied upon a judgment by Tribunal in Hari Prasad Billore v. Union of India (supra) and by Hon'ble Apex Court in Ministry of Finance v. S.B. Ramesh (supra).
It is noted that the provisions of clause 9.21 to give certain time to the charged officer, pertain to a period before punishment order is imposed. In the instant case, the applicant had not participated in the enquiry. However, the copy of the enquiry report was given to the applicant 8 RA No.96/2019 In OA No.2806/2012 and only after the defense was submitted, the DA had passed the punishment. This punishment was challenged before the Tribunal but was upheld by the Tribunal vide orders dated 28.04.2011 in OA No.1075/2010. It can be seen that the applicant had got adequate time to submit his defense which was eventually submitted also, before punishment was imposed. Thus the substantive requirement of clause 9.21 has been fulfilled in the instant case.
7. In view of foregoing, in respect of clauses 9.12 and 9.21 no ratio can be drawn even on merit from Hari Prasad Billore judgment (supra) and S.B. Ramesh judgment (supra) with respect to the instant case as no prejudice has been caused to the applicant.
The Tribunal notes that the question of reasonable opportunity to charged official to defend himself was adjudicated by a three-Judge Bench of the Hon'ble Apex Court in K.L. Shinde v. State of Mysore, [(1976) 3 SCC 76, decided on 26.03.1976].
While deciding this case, the Hon'ble Court also quoted the observation made by the Apex Court in State of Mysore v. Shivabasappa, [(1963) 2 SCR 943:AIR 1963 SC 375].
9RA No.96/2019
In OA No.2806/2012 It is the tribunal's view that the requirement of reasonable opportunity to defend himself has been afforded and availed by applicant in instant case.
8. In view of the foregoing, no new aspect has been brought out by the applicant in the RA. Accordingly, the RA is dismissed being devoid of merit. The order passed on 08.02.2019 stands.
(Pradeep Kumar) (Justice L. Narasimha Reddy) Member (A) Chairman 'San.'