Central Administrative Tribunal - Delhi
Sh. Naseem Ahmed vs Union Of India Through on 6 December, 2010
Central Administrative Tribunal Principal Bench, New Delhi.
RA-310/2010 in OA-2355/2009 New Delhi this the 6th day of December, 2010.
Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) Sh. Naseem Ahmed, S/o Sh. Moj ali, Ex. Assistant Loco Pilot, Under Chief Crew Controller, Tundla (UP). .. Review Applicant Versus Union of India through
1. General Manager, North Central Railway, Allahabad.
2. Divl. Railway Manager, North Central Railway, Allahabad. . Respondents Order (By Circulation) Dr. A.K. Mishra, Member (A) This application for review has been filed against the order dated 28.09.2010 in OA-2355/2009 in which the prayer of the applicant to set aside the penalty of compulsory retirement imposed by the Disciplinary Authority and confirmed by the Appellate Authority was not allowed.
2. The applicant has taken the following four main grounds in support of the contention that there was an error apparent on the face of the record, which justified a review:-
(i) The ruling of the Honble Supreme Court in the case of Anil Kumar Vs. Presiding Officer, SCC 1985 [L&S] 815 to the effect that an inquiry report, which does not contain reasons in support of its findings, should be treated as invalid was not taken into consideration.
(i.i) The ruling of the Honble Supreme Court was given in the context of an enquiry officer who, ipsi dixit, had straight away come to a finding without giving any reasons in support of his conclusion. In the present case, the applicant had admitted to the fact that the train had overshot the mark despite red signal warning and that he could not apply emergency breaks. In other words, there was a clear admission of the applicant that he had not applied emergency break, which he was under an obligation to do in an emergency. The plea made by him was that two miscreants had entered into the engine cabin, which prevented him from applying the emergency break. There was no evidence on record except for the statement of the co-accused driver in support of this plea. The inquiry officer as well as the disciplinary authority have dealt with this plea and come to a finding that there was no evidence on record which supported this plea of the applicant. Therefore, the contention of the applicant that there was no reason in the findings recorded in the enquiry report or in the order passed by the disciplinary authority is not borne out.
i.ii As a matter of fact, a copy of the report of a Committee set up to examine the causes for the accident annexed by the applicant at Annexure A-5 also refers to this plea; the observations of the Committee read as under:-
3.Unauthorized person entered the leading cab: During the inquiry the Driver and Asstt. Driver have contended that they could not control the train within the Starter because at the end of the platform DER Two person entered into the cab of the loco and started beating and misbehaving with them. They got some injury during the altercation and their cloths also were torn. These claims of Driver and Asstt. Driver can not be accepted on the following grounds The drier of the Asstt. Driver did not tell anything about the entry of some miscreants into the cab of Loco to the Guard or the on duty ASM/DER. Instead both the guard and ASM on duty have claimed during cross-examination that Driver accepted his fault when the Guard and ASM about the reason of passing of the signal at danger.
When SS/DER reached the engine along with Guard of the train, the Driver and Astt. Driver gave a memo to the SS/DER in which they mentioned that because of entry of one drunker person in the loco cab they could not control the train. However, later on during the course of enquiry and cross-examination at ALD they changed their version and stated that two persons had entered into the loco instead of one. These statements are self-contradictory and clearly established that both are trying to hide the facts.
In their statements and cross examination they have stated that they got injury marks on the body and their cloths also got torn during the altercation with the miscreants. This contention of the Driver and Astt. Driver is not established from any other source. On the contrary there are many witnesses who have stated that at the first instant when they met with driver and Astt. Drivers both were in perfectly normal condition. In this regard the statement and cross examination of SS/DER Guard of the train (as these two are the first once who were the Driver and Asstt. Driver after the occurrence of the incidence) are self explanatory. In addition to the SS/DER and Guard of the train on duty SI/RPF and SI/GRP have also stated in their statements and GD respectively that when after backing the train to Dadri Station at 19.18 hrs, they met the Driver and Asstt. Driver both were in perfect condition without any sign of injury of torn cloths. However, at 19.45 hrs when the Driver reached the SSs Office with a memo for GRP, the driver was having some scratch marks on the body and his cloths were also torn.
The train was backed at Dadri at 19.18 hrs. The Driver wrote a memo for GRP at 19.45 hrs. During cross-examination when the driver was questioned that what did he do after backing the train at 19.18 hrs, he replied that he talked to TLC/Tundla. On further enquiry as to why did he not first go to GRP for lodging the FIR at 19.18 hrs after backing the train, but instead went to talk to TLC, both the Driver and Asstt. Driver could not explain the discrepancy.
On the above mentioned grounds this contention of the Driver and Astt. Driver cannot be accepted that because of some miscreants entering the loco they failed to control the train within Down Starter Signal at Dadri. It is quite evident that Driver and Asstt have fabricated this story to hide the real cause of the overshooting.
Hence this aspect of miscreant entering the cab of the loco is ruled out. i.iii In the circumstances, although the decision of the Honble Supreme Court in the case of Anil Kumar (supra) had not been specifically discussed, yet the main principle behind the ruling was taken into consideration.
The second ground advanced is that this Tribunal in its judgment dated 21.09.2007 had declared the enquiry report as illegal and in that view of the matter the same enquiry report could not have been utilized to reach a verdict of guilt against the applicant and inflict the penalty on him.
(ii.i) In this connection, it would be worthwhile to extract the observations of this Tribunal in its order dated 21.09.2007 in OA-1667/2006:-
9. Another aspect of the matter is that the inquiry officer in its findings though maintained to deal with the defence contention of the applicant and to record reasons in support as per Rule 9(25) of the Rules ibid but has not discharged its obligation and on its ipsi dixit recorded a finding without considering the findings of the applicant, which is illegal in view of the decision of Apex Court in Anil Kumar Sharma v. Presiding Officer, 1985 SCC (L&S) 815.
This observation is followed by the Tribunal in the operative part of the order made in paragraph-11, which reads as follows:-
In the result, for the foregoing reasons, OA is allowed. Impugned orders are set aside. Respondents are directed to forthwith reinstate the applicant in service. Attendant consequences to follow. However, if so advised, respondents are at liberty in accordance with rules, instructions and law to resume the inquiry from the stage of inquiry report and in such an event, law shall take its own course. No costs. Although the Tribunal had discussed the enquiry report in paragraph No.9, yet without setting it aside it gave a direction to the respondents to resume the enquiry from the stage of enquiry report. In other words, the respondents were asked to proceed afresh from the stage of submission of enquiry report. Thereafter, the respondents afforded one more opportunity to the applicant giving a copy of the enquiry report and passed the impugned order in which reasons have been given about the finding of guilt and imposing the penalty of compulsory retirement in terms of the instructions of the Railway Board letter dated 23.04.1999, which speaks about the norms of punishment to be awarded in such situations.
Paragraph-8 of the order of the Disciplinary Authority, which dealt with this aspect, reads as under:-
In the Railway Boards letter number 99/Safety(A&R)/6/1 dated 23.4.1999, norms of punishments prescribed by the Board in different accidents are given. Here, Train passing signal at danger is specified in para 3 of Nature of accident, and corresponding minimum penalty is prescribed as Removal or Compulsory retirement where entirely due to neglect of driver, reduction to a lower grade if there are contributory factors like loss of brake power on the run which he could not have detected when he took charge of the engine.
(iii) The third ground taken is that applicant authorities had not applied his mind and passed the appellate order in terms of the provisions of the relevant rules. Learned counsel has cited the judgments of the Honble Supreme Court in the case of (a) Ram Chander Vs. Union of India, SLJ 1986(2) 249 and Narinder Mohan Arya Vs. United India Insurance Co., 2006(3) SC 213 in support of the contention that a cryptic and non-speaking order could not be sustained.
(iii.i) This aspect has been dealt with in the impugned order itself, which goes to say that:-
9. It is true that the impugned Appellate order at Annexure A-1A is cryptic in nature. It does not deal with the points raised by the applicant in his appeal petition in detail and as such cannot be sustained as a speaking order. Nevertheless, we feel that little purpose would be served in remanding this case to the Appellate Authority again in view of the fact that the contentions of the applicant have been discussed in the preceding paragraphs by us and we come to a finding that the Disciplinary Authority had passed a valid order, which does not require any interference.
(iv) Learned counsel for applicant has cited the case of State of U.P. Vs. Shatrughan Lal & Anr., 1999(1) AISL 213 in support of her contention that examining witnesses which were not mentioned in the charge sheet amounted to denial of reasonable opportunity. The case of Shatrughan Lal (supra) was dealing with a situation where copies of statements recorded in the Preliminary Enquiry were not given even after asking for them (iv.i) This objection of the applicant has been discussed in Paragraph-5 of the impugned order. It says that the additional witnesses had to be called to prove the documents as the applicant had challenged their authenticity. He had full opportunity to cross-examine the new witnesses. He did not raise any objection about it at the time of inquiry. Further, if he wanted copies of documents he should have filed his claim either before the Inquiry Officer, or the Disciplinary Authority, which is not the case here. Therefore, it was reasoned that his allegation of denial of reasonable opportunity was not borne out by facts.
3. The impugned order is a well reasoned one in which the grounds advanced by the applicant have been dealt with comprehensively. The scope of review is limited one. An error apparent on the face of it has been defined in the case of State of West Bengal and Others Vs. Kamal Sengupta and Another, (2008)8 SCC 612; in Para-22 of the judgment, the Apex Court has observed as under:-
The term mistake or error apparent by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.
4. In view of the foregoing discussions, we feel that we cannot sit in appeal over our own order. If the applicant is aggrieved, he is at liberty to seek legal redress at appropriate judicial forum. In the result, the R.A. is dismissed in circulation.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber) Member(A) Member (J) /vv/