Central Administrative Tribunal - Hyderabad
P.B. Dasan vs State Of Madhya Pradesh 1990(1) Slj 98 Sc ... on 22 October, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD O.A.No.411/2001 Date of Order:22.10.2008 Between: P.B. Dasan ... Applicant And 1.The General Manager, South Central Railway, Rail Nilayam, Secunderabad. 2.The Additional Divisional Railway Manager (O), Secunderabad Division, South Central Railway, Secunderabad. ... Respondents Counsel for the Applicant : Mr. K. Sudhakar Reddy Counsel for the Respondents : Mr. N.R. Devaraj, S.C for Rlys CORAM: The Hon'ble Mr.Justice P.LAKSHMANA REDDY, Vice-Chairman The Hon'ble Mr. HRIDAY NARAIN, Member (Admn.) ORAL ORDER
(As per Hon'ble Mr.Justice P.Lakshmana Reddy, Vice-Chairman) Heard the counsel for the applicant and counsel for the respondents.
2. This application is filed challenging the issuance of memorandum dated 23.2.2001 by the appellate authority in an appeal filed by the applicant. The relevant facts of the case in brief are as under:
3. The applicant is a railway servant and disciplinary proceedings were initiated against him under the following articles of charges:
Article of Charge-I: While working as Assistant Station Master, Vihirgaon on 23.1.1996, Shri P.B. Dasan has deserted the station and thereby violated the General Rule No.2.07 and 2.08(1) of the General Rules for Indian Railways (1976) as well as Rule No.3(1) of Railway Servants (Conduct) Rules, 1966.
Article of Charge-II: While working as Assistant Station Master, Vihirgaon, Shri P.B. Dasan has entrusted the job of operation of Block Instruments and panel board to an unauthorised person i.e. the pointsman at the Station Mr. M.A. Saleem and thereby violated the General Rule No.5.08, 5.01 (4) and 14.04 (1) of the General Rules for Indian Railways (1966) as well as Rule 2.2 and 3.1 of the Block Working Manual.
Article of Charge-III: While working as Assistant Station Master, Vihirgaon,on 23.1.96 Shri P.B. Dasan has endangered the safety of running trains by deserting the station and by delegating the duty of operation of block instruments and panel board to an untrained, unqualified, non-competent and unauthorised person namely Shri M.A. Saleem, Pointsman/VHGN. Thereby, the Assistant Station Master has failed to show devotion to duty and violate the rule No.3(1)(ii) of the Railway Services (Conduct) Rules, 1966.
Article of Charge IV: While working as Assistant Station Master, Vihirgaon, on 23.1.1996 Shri P.B. Dasan has misbehaved with the JE (S)/ SKZR Mr. Y. Divakar and thereby violated the rule 3(1) (ii) of Railway Servants (Conduct) Rules, 1966. An Inquiry Officer was appointed and he submitted his report finding the applicant guilty of all the charges and the said findings of the Inquiry Officer were accepted by the disciplinary authority and the disciplinary authority imposed punishment of reduction to lower time scale of pay from the existing scale of pay i.e. to Rs.4500-7000/- with pay fixed at Rs.4500/- for a period of one year with cumulative effect postponing his future increments. Aggrieved by the same, the applicant preferred an appeal before the appellate authority on 19.7.2000 challenging the findings of the Inquiry Officer accepted by the disciplinary authority on several grounds. On 22.1.2001, the appellant was given personal hearing. Thereafter on 23.2.2001, the appellate authority issued the impugned memo filed as Annex.A-III. It is useful to extract the said memo:
1. In exercise of powers conferred by the provisions of the Rule 22(2) of the Railway Servants ( Discipline and Appeal) Rules. 1968, the undersigned the appellate authority has gone through the appeal of Shri P.B. Dasan, ASM/ VHGN.
2.Shri P.B. Dasan has attended the personal hearing held on 22.1.2001. He has attended without any Defence Helper. During Personal hearing he stated that:-
a) The entire issue is a minor issue
b) He gets meals from BPQ, therefore, there is no change of going to meals at home
c) He may allow the operation of the block instrument in case of emergency but he has not allowed on that day
d) CSIMr. Y. Divakar, has acted in vindictive manner, since the delinquent employee has earlier complained against two cases.
i) On 21.10.93, WTRR VHGN Block Instrument Section cleared back
ii) On 4.9.95 VHGN Bye-pass-I-Up train- cleared back For both the cases, AO/MAGH Sri S.M. Ameer has verified.
e) All other points are in his appeals and also in the representation to President of India.
The Delinquent Employee's appeal dated 19.7.2000 along with the entire DAR case is seen. The Delinquent Employee has appealed to President of India under Rule 31 of D&AR 1968 to clear the doubts in terms of Rule 30. The Delinquent Employee wanted to revoke Rule 30, for which the `Prescribed Authority' has already disposed off, which was also communicated to Delinquent Employee vide letter No.C/T/194/ Safety/VHGN/96 dated 24.11.99.
On perusal of the case, it is seen that adequate opportunity was given to the Delinquent Employee as a number of times enquiry was fixed and a no. of times it is held. Based on the inquiry, the Enquiry Officer has submitted the findings, which is accepted by Disciplinary Authority, Disciplinary Authority has imposed the punishment of `Reduction to the lower time scale of pay from existing grade of Rs.5000-8000 to Rs.4500-7000 with pay fixed at Rs.4500/- for a period of one year with cumulative effect.' Considering the charges, which are very serious in nature, the punishment imposed is very lenient. It is proposed to enhance to that of `Removal from Service'.
3.Sri P.B. Dasan, ASM/VHGN is hereby given an opportunity to submit representation, if any, against the proposed enhancement of penalty within 15 days from the d ate of receipt of this memorandum, failing which it shall be construed that he has nothing to represent and a final decision will be taken.
4.Sri P.B. Dasan, ASM/ VHGN should acknowledge receipt of this memorandum.
4. Aggrieved by the said memorandum, the applicant filed the present OA stating that against the penalty orders, the applicant submitted his appeal dated 19.7.2000 to the Additional Divisional Manager (O), S.C. Railway, Secunderabad and requested to set aside the impugned penalty order on several grounds raised in the appeal. The appellate authority has to dispose of the appeal preferred by the appellant within one month as per the instructions of Railway Board but whereas the appeal preferred on 19.7.2000 is not disposed of within one month from the date of appeal but whereas the appellate authority after six months issued show cause notice to the applicant under Rule 22(2) of the Railway Servants (Discipline & Appeal) Rules, 1968. He further pleaded that the Railway Board issued instructions in letter dated 11.6.1971 fixing time limit for disposal of the appeals by the appellate authorities. The applicant further pleaded in the application that the respondents have clearly admitted before the Tribunal that the applicant submitted his appeal on 11.11.99 and once the appeal is preferred within the time limit prescribed, it is for the the appellate authority to dispose of the same within the time limit prescribed by the Railway Board but the respondents herein did not pass any orders on the appeal preferred by the applicant herein and suddenly now issued the present order which is clearly in violation of the instructions and is liable to be set aside as it affects the applicant's fundamental rights guaranteed under Article 14 & 16 of the Constitution of India and the applicant further pleaded that a similar point came up for consideration before the Apex Court about the time limit for disposal of the appeal preferred to the appellate authority in the case of S.S. Rathore Vs State of Madhya Pradesh 1990(1) SLJ 98 SC in which it is observed that three to six months is the maximum time that should be taken while dispoing an appeal. It is further submitted that the Hon'ble A.P. High Court also dealt with similar issue in the case of D.S. Bose Babu Vs APSEB reported in 1995 (3) ALT 37 and held that the appellate authority cannot enhance the penalty in the appeal preferred by the delinquent employee but for the appeal preferred by the delinquent employee, the appellate authority would not have any chance for enhancing the penalty. The applicant further pleaded that in view of the settled law, the action of the appellate authority in issuing the impugned memo of show cause notice for enhancement of the penalty to that of removal from service is without jurisdiction and in clear violation of the circulars of the Railway Board and also not as per the provisions of the Railway Servants (Discipline & Appeal) Rules, 1968 and it is liable to be set aside as illegal. The applicant prayed for setting aside the Memo dated 23.2.2001 declaring it as illegal, arbitrary and in violation of the Circulars of the Railway Board letter dated 11.6.1971 and also in violation of the Railway Servants (Discipline & Appeal) Rules, 1968.
5. The respondents contested the application and filed counter reply stating that the applicant while on duty on 23.1.1996 at Vihirgaon Railway Station as Station Master, deserted the station and entrusted the train passing duties to an untrained, unauthorised pointsman of the station infringing the safety of train operation. When objected to by one Sri Divakar, Chief Singal Inspector, the applicant misbehaved with him. Consequently, the applicant was issued with a charge memo for major penalty dated 6.3.1996 with four articles of charges. The respondents further pleaded that the applicant adopted a highly litigant and obstructive attitude through out the enquiry and procrastinated the same and ultimately the applicant remained absent from the further inquiry proceedings and the inquiry officer in the circumstances proceeded ex-parte and conducted due inquiry and submitted his report dated 8.3.1999 which was furnished to the applicant under proceedings C/T/194/Safety/ VHGN/ 96 dated 3.5.1999 which the applicant received on 18.5.1999 and the applicant submitted his representation dated 19.5.1999 alleging bias against the inquiry officer and the said allegation of bias was referred to the revising authority. The revising authority rejected the allegation of bias by order dated 18.11.1999. Thereafter the applicant was informed of the decision vide letter dated 24.11.1999 and was again furnished with inquiry report and the complete proceedings of inquiry vide letter dated 24.11.1999 which was acknowledged by the applicant on 25.11.1999. However, the applicant did not submit his representation. The disciplinary authority considered the inquiry report and passed a speaking order dated 30.5.2000 imposing a penalty of reduction to the lower time scale of pay from the existing scale of Rs.5000-8000/- to Rs.4500-7000/- with pay fixed at Rs.4500/- for a period of one year with cumulative effect, postponing his future increments. Against that order of the disciplinary authority, the applicant preferred an appeal on 11.11.1999 which was received on 24.7.2000 in the office of the Sr. Divisional Operations Manager and the same was put up on 14.8.2000 to the 2nd respondent who desired that some more letter and references referred by the applicant in the appeal be connected for his perusal and returned the file on 13.9.2000. The matter was thereafter referred to the Personnel Branch on 11.9.2000 for examining the references called for the appellate authority. Ultimately the file was put up to the appellate authority (R-2) on 23.10.2000 through the Personnel Branch. The 2nd respondent on consideration of issues, directed personal hearing to the applicant fixing the date as 22.1.01 and the applicant attended the personal hearing on 22.1.01 and the appellate authority on consideration of the entire issue and the points raised by the applicant during personal hearing issued the show cause notice dated 23.2.01, that the punishment imposed is proposed to be enahanced to that of removal from service. It is submitted that the applicant received the show cause notice dated 23.2.01 and filed the present OA and when it came up for hearing, this Tribunal passed an interim order directing that the applicant shall submit his explanation to the show cause notice and further directing the appellate authority not to pass final order till the disposal of OA and the applicant submitted his representation dated 4.3.2001 against the show cause notice. The respondents further pleaded that the Railway Board instructions for finalising the DAR proceedings in the given time are obviously in the nature of guidance and meant for disposal of appeals but not dispensing with the disposal. The various judgements relied on by the applicant also clearly show that the over-riding interest is in protecting the right of appeal and its disposal on due consideration. Hon'ble Supreme Court in the case of State of Punjab & Others Vs Chaman Lal Goyal reported vide 1995 (2) SLJ 127 held that mere delay is not a ground for quashing DAR proceedings and upheld the action after five and half years. The respondents submitted that the delay is due to administrative process involved and more particularly due to consideration of various references made by the applicant and the delay is neither wilful nor due to any malafides. The respondents prayed for dismissal of the application as devoid of merits and for vacation of the interim order dated 13.3.2001.
6. During the course of hearing, learned counsel for the applicant reiterated the contentions made in the application. Applicant's counsel submitted that the appellate authority has got no right to issue the impugned memo without disposing of his appeal in which he challenged the findings of the inquiry officer which were accepted by the disciplinary authority and that the impugned memo does not disclose the reasons for disposal of the appeal and further contended that the appellate authority did not apply his mind to the various grounds raised in the appeal and that in the impugned memo it is simply stated that Considering the charges which are very serious in nature, the punishment imposed is very lenient. It is proposed to enhance to that of `Removal from Service'. The counsel for the applicant further submitted that the applicant who is the appellant is entitled to know the reasons if any given for the disposal of his appeal before submitting any explanation to the memo and that without disposing of his appeal grounds, the appellate authority cannot issue any show cause notice as to why the punishment shall not be imposed. It amounts to pre-judging the issue. It is submitted that the appellate authority should first apply his mind to the merits of the case and decide on merits whether the findings on charges are sustainable in law and only when he comes to the conclusion that the findings on charges are sustainable in law, then the question of considering about the adequacy or otherwise of the punishment arises. But in the instant case, even before passing order on merits, the appellate authority issued the show cause notice and, therefore, it is not sustainable in law. On the other hand, learned counsel for the respondents vehemently contended that it is no where prescribed under Rule 22 that the show cause notice memo for enhancement is to be issued only after disposal of the appeal and that as per Rule 22(2) of the Railway Servants (D&A) Rules, 1968, the appellate authority got power to enhance the punishment but before doing so, the proviso-V mandates that no order can be passed unless the appellant is given reasonable opportunity in accordance with the provisions of Rule 11 of making a representation against such enhanced penalty and that only after receiving the explanation from the appellant, the appellate authority is supposed to dispose of the appeal not only in respect of the findings but also in respect of the punishment and not earlier. He submitted that the disposal of the appeal regarding the merits and regarding punishment at two stages is not contemplated under Rule 22 which deals with consideration of the appeal. He further contended that if such a procedure is adopted, the applicant may challenge the findings of the appellate authority on merits and in which case the appellate authority may not be able to pass an order of punishment even after receiving the explanation to the show cause notice of enhancing punishment. The points that arise for consideration are (1)Whether the appellate authority can issue show cause notice for enhancement of punishment even before applying his mind to the merits of the case touching the grounds of appeal ?
(2)Whether the appellate authority is required to disclose that he has applied his mind to the merits of the case and considered the grounds mentioned in the appeal and rejected the appeal for the particular reasons, in the show cause memo issued for enhancement ?
(3)Whether the impugned memo is sustainable in law ?
(4)To what result?
Points (1) & (2) It is not disputed that the applicant challenged the findings of the inquiry officer accepted by the disciplinary authority on various grounds referred to in the memorandum of appeal. It cannot also be disputed that the appellate authority in the impugned memo did not state that he considered the grounds of appeal and applied his mind to the merits of the case and rejected the grounds taken in the grounds of appeal. According to the learned counsel for the applicant, the appellate authority is supposed to pass the orders in the appeal only after receiving reply to the show cause notice and in those orders, the appellate authority is expected to touch the merits of the case and give reasons for his not accepting the grounds of appeal raised by the appellant. In our considered view, it amounts to deciding the quantum of punishment at the first instance even before giving a finding in the appeal on merits. The appellate authority is supposed to first apply his mind to the merits of the case and then decide the appeal whether the findings of the Inquiry Officer accepted by the disciplinary authority are sustainable in law. In case the appellate authority comes to the conclusion that the findings of the inquiry officer accepted by the disciplinary authority are based on evidence and needs no interference, the question of his application of mind regarding the quantum of punishment arises. Here in the instant case, even before recording the reasons for dismissal of the appeal on merits, the appellate authority proceeded to the inadequacy of the punishment for the charges framed against the applicant which were found proved by the Inquiry Officer and accepted by the disciplinary authority. The applicant preferred an appeal inviting a decision from the appellate authority whether the findings of the Inquiry Officer accepted by the disciplinary authority are sustainable in law. Even before giving finding about the sustainability or otherwise of the orders passed by the disciplinary authority, he applied his mind for the gravity of the charges and for the quantum of punishment imposed. This procedure adopted by the appellate authority is in our view not in accordance with the principles of natural justice. Nothing prevented the appellate authority to pass judgement on merits and confirming the findings of the inquiry officer which were accepted by the disciplinary authority and then expressing his view regarding the adequacy or otherwise of the punishment and in the event of his coming to a conclusion that the punishment imposed is inadequate he can make an observation that the quantum of punishment will be decided after giving due opportunity to the applicant as required under Rule 22 (2) proviso-V of the Railway Servants (D&A) Rules and communicate the same along with the show cause notice to the applicant so that the applicant will have an opportunity to know the fate of his appeal regarding merits. Regarding the contention of the learned counsel for the respondents that in such a case, the applicant may approach the revisionary authority or the Tribunal challenging the findings on merits even before giving explanation and thereby preventing the appellate authority from passing order of punishment. Nothing prevents the applicant from challenging such an order on merits, if he is advised to do so. Even it is assumed that the employee without submitting explanation to the show cause notice approaches the revisionary authority or this Tribunal, the appellate authority is not prevented to proceed to pass orders on the show cause notice issued if no explanation is filed within the time prescribed unless the appellate authority is prevented from doing so by a specific order passed either by the revisionary authority or by this Tribunal. Therefore, we find no force in the contention of the learned counsel for the respondents. In order to safeguard the fundamental rights of an employee, the appellant must know the reasons for dismissal of his appeal before answering to the appellate authority regarding the quantum of punishment as he has filed appeal against the findings of the Inquiry Officer accepted by the disciplinary authority. It is not fair on the part of the appellate authority to direct the appellant to first furnish the explanation regarding the quantum of punishment and thereafter he will decide about the merits of the appeal. In our considered view such a procedure is not in accordance with law and it is in violation of principles of natural justice and fair play. Hence these points are found in favour of the applicant.
Point (3) As the impugned memo which is extracted supra does not disclose that the appellate authority had applied his mind regarding the grounds of appeal before coming to the conclusion regarding the inadequacy of the punishment imposed by the disciplinary authority, it is not sustainable in law. The memo of the type issued in this case shall be only after giving findings on the merits of the case. That can be done by passing a separate order or by communicating the very same order along with the memorandum. At any rate, without passing orders on appeal on merits, the issuance of show cause notice for enhancement of punishment does not at all arises and is not sustainable. Here in this case admittedly no orders on merits have been passed in the appeal prior to issue of the impugned memo. The appellate authority ought to have passed an order on merits giving his conclusion and in case he found no merits in the appeal and also found that the punishment imposed by the disciplinary authority is not adequate, he ought to have stated so in the orders on appeal with an observation that the authority decided to issue show cause notice as required under the prociso for enhancement of the punishment imposed and a separate show cause notice be issued. But instead of doing so, the appellate authority first issued the show cause memo even before passing orders in the appeal on merits. For this reason, the Show Cause Memorandum is liable to be set aside giving liberty to the appellate authority to pass orders on merits in the appeal. In case he decides to confirm the findings of the inquiry officer accepted by the disciplinary authority and also comes to the conclusion that the punishment is inadequate, he is at liberty to serve a fresh show cause notice along with a copy of the orders passed on merits if a separate order is passed or in the alternative, the appellate authority can serve the orders passed on merits with an observation that the applicant is directed to show cause as to why the punishment shall not be enhanced within a particular time. This point is found accordingly.
Point (4) In view of the findings on points (1), (2) & (3), the impugned memo dated 23.2.2001 is set aside on technical grounds without going into the merits of the case and giving an opportunity to the appellate authority to pass orders in the appeal on merits and then issue a fresh show cause notice if necessary in the light of the observations mentioned supra. Accordingly the OA is disposed of with no order as to costs.
(HRIDAY NARAIN) (P.LAKSHMANA REDDY)
MEMBER(ADMN.) VICE CHAIRMAN
Dated this the 22nd day of October, 2008
Dictated in Open Court