Central Administrative Tribunal - Delhi
Pinki Kumari vs M/O Railways on 5 September, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA/100/1871/2011
Reserved on: 28.08.2018
Pronounced on: 05.09.2018
Hon'ble Mr. K.N. Shrivastava Member (A)
Hon'ble Mr. Ashish Kalia, Member (J)
Pinki Kumari
Aged about 25 years
W/o Shri Rakesh Kumar
R/o P-128, Palanji Gaon
Near Sarojini Nagar Mkt.,
New Delhi ... Applicant
(Through Mrs. Meenu Mainee, Advocate)
Versus
Union of India : Through
1. The Secretary,
Railway Board,
Rail Bhawan, New Delhi.
2. The Chairman,
Railway Board,
Rail Bhawan, New Delhi
3. The General Manager
Northern Railway,
Baroda House,
New Delhi
4. Shri Ravish Kumar
Director Commercial
Railway Board, Room No.40
New Delhi ... Respondents
(Through Shri Amit Yadav, Advocate)
2
OA 1871/2011
ORDER
Mr. Ashish Kalia, Member (J) In this OA filed under Section 19 of the Administrative Tribunals Act 1985, the applicant has prayed for the following reliefs:
"8.1 quash the impugned order dt. 5.10.2010 and 5.07.2010, and order dt. 19.09.2010 and 18.01.2011.
8.2 to direct the respondent to post the applicant at the safe place on duty keeping dignity of women in view.
8.3 to take a necessary action against Shri Ravish Kumar after conductng the enquiry as per rules.
8.4 to release the arrears of salary to the applicant."
2. The applicant was served with the following Article of Charges:
"ARTICLE - I The said Ms.Pinki Kumari was engaged to work as TADK in the house of Shri Ravinesh Kumar. Over the period of time it was observed that she is not only discharging her duties in a callous & unsatisfactory manner but at times, misbehaving with the family members as well. She was verbally warned & cautioned in this regard a number of occasions.
ARTICLE - II The said Ms.Pinki Kumari developed some kind of intimacy with a man living in that area who used to visit the house to meet her in the absence of family members. A strict warning was given to her in this regard & told not to indulge in such activities. She was also told about the consequences if she continued with this type of conduct. Only on her assurance she was allowed to continue with 3 OA 1871/2011 her job. In the night of 29.05.08 she was caught with a man in a compromising position. The man was handed over to the police & subsequently a formal complaint was lodged by wife of Sh. Ravinesh Kumar Dr. (Mrs. Nilima Sinha) in the Sarojini Nagar Police Station. The very next day Ms. Pinki Kumari fled away from the house along with her belongings without anyone's knowledge.
ARTICLE - III The said Ms.Pinki Kumari is unauthorizedly absent from duty wef 29.05.08 as reported by the concerned officer vide letter dt.02.06.08.
By doing so she has willfully violated the terms & conditions of her engagement as TADK and thus she is guilty of indiscipline and unauthorized absence. This is a serious misconduct against a Railway Servant. By her above act of omission & commission the said Ms.Pinki Kumari failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a Railway Servant there by contravened Rule 3.1(i), (ii) & (iii) of Railway Servants (Conduct) Rules 1966."
3. Brief facts of the case are that the applicant was working as Telephone Attendant-cum-Dak Khalasi (TADK). She was selected through proper channel and recruited in the pay scale of Rs.2500-3200/-. She was deployed at Flat No.8-A, Sarojini Nagar, New Delhi, with Director Commercial (Railway Board), Shri Ravnish Kumar. She has made certain allegations of molestation against the said Shri Ravnish Kumar, when his wife was away. According to the applicant, she called her husband where after they both were locked in the room and later, the police took them to the Police Station. They were made to sign certain blank papers also. Due to this, the applicant went into depression and was under constant medical supervision. These facts were brought to the notice of the respondents on 4 OA 1871/2011 29.09.2008 and the applicant requested for putting her back on duty after getting fitness from the doctor. In reply to her RTI application, the applicant has been informed that her salary had been stopped. Thereafter, the applicant approached this Tribunal by filing OA No.2424/2008 and the Tribunal directed the respondents to hold an enquiry under the Discipline and Appeal Rules and, thereafter, they may take a decision in what manner the period of absence has to be treated in accordance with the rules. Pursuant thereto, a charge sheet has been issued to the applicant on 15.12.2009 and a full-fledged departmental enquiry was conducted by the respondents. The Enquiry Officer (EO) submitted his report, annexed with the OA at page no.190. The conclusion of the enquiry was that Article I was not proved and Articles II and III were proved. Thereafter the penalty order was passed on 5.07.2010. The applicant preferred an appeal under rule 18 of Railway Servants (Discipline & Appeal) Rules, 1968 to the Dy. CPO, who is appellate authority and the Dy. CPO upheld the penalty imposed. Thus, the present OA has been filed seeking setting aside of impugned orders dated 5.07.2010, 5.10.2010, 19.09.2010 and 18.01.2011.
4. Basically, the applicant has assailed the enquiry report as well as the penalty order on the following grounds:
i) That non-speaking orders have been passed by the disciplinary authority and the appellate authority;
ii) Documents demanded by the applicant were not given by the EO;5 OA 1871/2011
iii) As per rule 18 of the aforesaid Rules, three days time is to be given for cross-examination of witnesses and the same has not been given by the EO;
iv) The Charged Officer was not examined by the EO, which is mandatory as per rule 9 (21) of Railway Servants (Discipline & Appeal) Rules, 1968; and
v) The disciplinary authority has not given disagreement note by affording opportunity to the applicant to give her defence.
5. Notices were issued and respondents have filed their reply. They have submitted that the Tribunal should not interfere in the case of disciplinary proceedings unless and until it is a case of no evidence. While relying on following judgments, the respondents have stated that Courts cannot go into the correctness of charges and re-appreciation of evidence is also not permissible. It is further submitted that orders passed by the disciplinary authority and the appellate authority are reasoned orders. Referring to the judgment in Sushil Kumar Banerjee Vs. State of West Bengal & ors., (1980) 3 SCC 304, it is stated that in respect of Rule 9 (21) of Railway Servants (Discipline & Appeal) Rules, 1968, the Hon'ble Supreme Court held as under:
"Mere failure to comply with such a rule does not ipso facto lead to the departmental enquiry being vitiated. In addition to non compliance, what has to be shown by the delinquent officer is prejudice caused to him."6 OA 1871/2011
Reliance on behalf of respondents was further placed on:
i) State Bank of Patiala Vs. S.K. Sharma, JT 1996 (3) SC 722
ii) Apparel Export Promotion Council Vs. A.K. Chopra, JT 1999 (1) SC 61;
iii) Union of India & ors. Vs. S.L. Abbas, AIR 1993 SC 444
6. Heard the learned counsel for the parties and perused the pleadings available on record.
7. The first point raised by the learned counsel for the applicant was that three days time for cross-examination was not given by the EO. In this regard, rule 18 of the aforesaid Rules was referred, which reads as follows:
"18. If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the enquiring authority may, in its discretion, allow the Presenting Officer, if any, to produce evidence not included in the list given to the railway servant or may itself call for new evidence or recall and re-examine any witness and in such case the railway servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the enquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the enquiry is adjourned. The enquiring authority shall give the railway servant an opportunity of inspecting such documents before they are taken on the record. The enquiring authority may also allow the railway servant to produce new evidence, if it is of the opinion that they production of such evidence is necessary in the interest of justice."
8. The applicant made a representation on 12.04.2010, which was ignored by the EO submitting that she is already aware of 7 OA 1871/2011 the names of witnesses. The contention of the applicant is that she has not been given an opportunity to be heard and further, out of three witnesses, one witness did not turn up and the EO made no efforts to call that witness.
9. After perusal of the enquiry report, it is observed that the EO has not given three days time to the applicant for cross- examination of witnesses. The remarks of the EO that the names of the witnesses were already in the knowledge of the applicant, were uncalled for. Actually, the EO should have given list of witnesses in advance to the applicant so that she could have prepared her cross-examination in advance through her Defence Assistant.
10. On the point raised by the applicant herein that disagreement note was not given by the disciplinary authority, this Tribunal finds that the appellate authority i.e. Dy. CPO vide order dated 19.09.2010 has clearly submitted that Charges 2 and 3 were proved by the EO and it has been held by the disciplinary authority that no prejudice was caused to the applicant in this regard. The doctrine of merger comes into play as the order of disciplinary authority merges with the order of the appellate authority and the defect has been duly taken care of. Thus, the applicant has failed to convince this Tribunal on this point.
11. As regards the next point, it is seen from the record that the applicant has never been examined by the EO, which is mandatory as per rule 9 (21) of Railway Servants (Discipline & 8 OA 1871/2011 Appeal) Rules. The additional documents demanded before witnesses were called for cross examination, were not supplied to her, is also substantiated by the fact that the EO has not acceded to the request of the applicant.
12. In Chairman-cum-MD, Coal India Limited & Ors Vs. Ananta Saha & Ors., (2011) 5 SCC 142, the Hon'ble Supreme Court held as under:
"30. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.
13. Taking into consideration the totality of facts and position, this Tribunal is of the opinion that the applicant has not been given fair opportunity to defend her case in the enquiry. The EO is performing and executing statutory duty cast on him. He has to act in unbiased and fair manner, which requires rules of natural justice to be followed and both sides to be heard by giving reasonable opportunity to defend their cases. Surmises and conjectures are having no place in the enquiry. The EO has presumed certain things, which is not permissible in law. After detailed examination of facts and circumstances of the case, this Tribunal is of the view that enquiry report does not stand in law and is liable to be set aside.
14. Consequently, orders passed by the disciplinary authority, appellate authority and reviewing authority are also liable to be quashed and set aside. Hence, impugned orders dated 9 OA 1871/2011 5.10.2010, 5.07.2010, 19.09.2010 and 18.01.2011 are quashed and set aside with direction to the respondents to proceed in the enquiry by giving fair opportunity to the applicant to defend her case by supplying list of witnesses as per rule 18 of Railway Servants (Discipline & Appeal) Rules 1968 and rule 9 (21) of the said Rules by supplying additional documents as demanded and feasible. The OA is disposed of with these directions. No costs.
(Ashish Kalia) (K.N. Shrivastava)
Member (J) Member (A)
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