Kerala High Court
Central Administrative Tribunal vs Union Of India Represented By The ... on 20 February, 2020
Bench: K.Vinod Chandran, P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941
OP (CAT).No.104 OF 2014(Z)
AGAINST THE ORDER IN O.A. No. 850/2011 DATED 24-07-2013 OF THE
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENTS IN O.A.
1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER,
SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN
P.O., CHENNAI-600003.
2 THE ADDITIONAL GENERAL MANAGER,SOUTHERN RAILWAY, HEAD
QUARTERS OFFICE, PARK TOWN P.O., CHENNAI-600003.
3 THE CHIEF PASSENGER TRANSPORTATION MANAGER
SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN
P.O., CHENNAI-600003.
4 THE DIVISIONAL RAILWAY MANAGER,SOUTHERN RAILWAY,
PALGHAT DIVISION, PALGHAT-678002.
5 THE SENIOR DIVISIONAL OPERATIONS MANAGER
SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT-678002.
6 THE SENIOR DIVISIONAL PERSONNEL OFFICER
SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT-678002.
BY ADVS.
SMT.SUMATHY DANDAPANI (SR.)
SRI.N.K.SUBRAMANIAN, SC, RAILWAYS
RESPONDENT/APPLICANT IN O.A.
K.R. MOHANDAS,S/O.K.G.R.PANICKER (LATE), STATION
MASTER GRADE I/SOUTHERN RAILWAY/OTTAPPALAM RS & P.O.
PERMANENT ADDRESS: GITHANJALI, PODHUVAL JUNCTION,
CHUDUVALTHUR, SHORNUR.
R1 BY ADV. SRI.T.C.GOVINDA SWAMY
ADV. SMT.KALA T.GOPI
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 20.02.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(CAT) No.104 of 2014 2
JUDGMENT
Vinod Chandran J.
The petitioners are Railways & their officers who are aggrieved with the order of the Tribunal which set aside the entire inquiry proceedings and the order of the disciplinary authority awarding compulsory retirement which punishment was modified by the appellate authority to reduction by three stages.
2. The Tribunal has found that the disciplinary authority at the second stage has also relied on PN Book which at the earliest stage was found to have been not produced at the inquiry. The Tribunal, thus, found that the disciplinary authority having not remanded the matter to the Inquiry Officer, could not have O.P.(CAT) No.104 of 2014 3 arrived at a different conclusion without notice to the charge sheeted employee (hereinafter 'CSE'). It was also found that dehors the PN Book there could be no finding against the CSE.
3. The entire controversy arose insofar as a level cross having not been closed when a passenger train was scheduled to pass through. The Station Master of the Station from which the passenger train started immediately before reaching the gate was the CSE. The Station Master has the responsibility to exchange the 'Private Number'(hereinafter 'PN') to the Gate Keeper for closing the gate when a train is scheduled to pass through. After the train passes through, the Gate Keeper informs a PN to the Station Master, on which the railway gate is ordered to be opened. The PN for a day is provided to both the Station Master and the Gate Keeper, to be used for the day. This PN has to be recorded in the PN Exchange Register, maintained at the Station as also by the O.P.(CAT) No.104 of 2014 4 Gate Keeper in the PN Book kept at the gate. The PN is unique to the train which is scheduled to pass through the level cross as ordered by the Station Master from the numbers supplied.
4. The CSE was proceeded with and an inquiry was conducted. The Inquiry Officer relied on the PN Book and PN Register maintained by the Gate Keeper and the Station Master to find that there was an error occurred at the hands of the Station Master. The Tribunal found that the PN Book of the Gate Keeper was not produced in the inquiry and in such circumstances, there could be no reliance placed on the said book which was maintained by the Gate Keeper. The matter was sent back to the disciplinary authority for the purpose of considering the representation made by the CSE.
5. In considering the representation, the disciplinary authority discussed the evidence once again. We first look at the finding of the Tribunal that there should not have been a O.P.(CAT) No.104 of 2014 5 different view taken by the disciplinary authority from that of the Inquiry Officer. It is argued that in which case necessarily there should have been notice given to the CSE. We are not convinced that the said principle applies here since it is based on the evidence recorded that the very same finding of guilt of the CSE was arrived at by the disciplinary authority. Only if the inquiry authority exonerates a charge sheeted employee and the disciplinary authority finds from the evidence that there is reason to find the CSE guilty, there arises a warrant for a notice to the CSE. The CSE in that circumstance has to be informed that the disciplinary authority intends to disagree with the Inquiry Officer and take a different view based on the evidence. But that different view is on the conclusion arrived at by the Inquiry Officer as to the CSE being not guilty. The findings of the Inquiry Officer does not bind the disciplinary authority and the disciplinary O.P.(CAT) No.104 of 2014 6 authority is entitled to arrive at his own findings on the basis of the evidence adduced at the inquiry. If the Inquiry Officer has found the delinquent guilty on certain evidence laid and if the disciplinary authority arrives at the same finding of guilt, on other evidence adduced, there is no requirement for a fresh notice. This is because the CSE was permitted to represent before the Inquiry Officer as to every material evidence against him produced or adduced at the inquiry.
6. In the present case, as noticed by the Tribunal, there was no further remand made to the inquiry authority. The disciplinary authority considered the evidence afresh. It is true that there was a consideration of the PN Book and PN Register. But completely eschewing the same from consideration we find after reading of the evidence that the disciplinary authority's finding can be substantiated from the evidence led and recorded.
O.P.(CAT) No.104 of 2014 7
7. The finding of the disciplinary authority we specifically refer to is available in Annexure A-1 at paragraph 3 of the conclusions arrived at, which is extracted herein below:
"Both the Engine Driver and Assistant Loco Pilot of the passenger train had deposed in the DAR enquiry that they noticed the Banner flag at the L C gate and the gate was not closed and hence they stopped the train. Thereafter the gate man closed the gate and removed the flag and the train restarted. The CE was given the opportunity of cross examination the Engine Driver and Assistant Loco Pilot. If the CE had found any evidence against him he could have cross examined the witness. But he did not avail the opportunity."
With this in mind, we look at the deposition of AW1, the guard of the train which was passing through the level cross, AW2, the driver, AW3, the Assistant Loco Pilot and AW4, the Gate Keeper. The evidence of AW1 to AW3 indicates that when the train, after leaving Kuttipuram Station, on approaching the level cross, banner flags were O.P.(CAT) No.104 of 2014 8 seen placed which warned the driver about the gate of the level cross having not been closed. This necessitated the stoppage of the train. The banner flags were placed because there was no communication from the Station Master of the PN for closing the gates was the specific deposition of the Gate Keeper. On hearing the whistle of the train as also the approaching train where there is a straight vision of one kilometer, the Gate Keeper closed the gate after the train came to a full stop. Then, he called up the Station Master and verified as to why PN was not given to him.
8. In this context, we find the evidence of the Gate Keeper to be very crucial. The Gate Keeper has deposed that the PN was not communicated to him. What is significant is that the PN Exchange Register was referred to by the CSE and the Gate Keeper who was examined as AW4 was confronted with the said register in cross examination. In cross examination, though the CSE O.P.(CAT) No.104 of 2014 9 quarried AW4 as to the time noticed in the PN Exchange Register; there is no question put by the CSE, on cross examination of AW4, as to the supply of PN for closing the gates.
9. The contention of the CSE, the respondent, is that the normal position of the level cross gate is closed for road traffic, which has been admitted by the Gate Keeper also. However, in cross-examination, AW-4, the Gate Keeper, was specifically asked as to when the passage of 387 passenger was informed and whether the PN was supplied by the Station Master. The answer was that the Station Master, Kuttippuram did not inform the details regarding 387 passenger and did not give any intimation to him and no PN was supplied. In cross-examination he was specifically asked by the CSE about the normal working of the gate as answered by him to question No.43. The answer indicates that the Station Master would inform the Gate Keeper over magneto phone and give train O.P.(CAT) No.104 of 2014 10 number, probable passage of the train and direction from which it comes and also issues a PN. On receipt of the PN, the Gate Keeper will close the level cross and give a PN to the Station Master. The Gate Keeper replied to the question that the procedure is correct.
10. We also notice from the reply statement filed by the respondents in the OA, wherein instructions at para 2.4 of the Station Working Rules issued under No.J/150 dated 14.02.1990 to Kuttippuram Railway Station, are extracted, which is as under:
"Before granting line clear for an up train from TUA or before despatching a down train towards TUA or before authorizing any shunt movement across the LC, Station Master, KTU will advise gateman through phone, giving the number description, direction and probable time of entering the train, into block section and issue a PN. The gateman will repeat the instruction and lower the barriers and lock the gate, if not already in that position and advise SM duty communicating a Private Number".O.P.(CAT) No.104 of 2014 11
11. Now we specifically look at question No.56 of the cross-examination of the CSE, which was specifically asked by confronting the Gate Keeper AW-4 with PN Exchange Register, as to what time the earlier exchange of PN occurred when Ey/N (the description of a train), which passed the Level Cross. It was stated that the gate was closed at 10.25 hrs and Ey/N passed at 10.27 hrs and gate opened at 10.30 hrs. When the next 387 passenger train came, there was no supply of PN which resulted in the gate being kept open for road traffic when a train was scheduled to pass through the Level Cross. The Station Master's negligence is clearly proved and there was not even a suggestion by the CSE, who was the Station Master, that he had supplied a PN and the number was so and so.
In such circumstances, we do not find any infirmity so gross and arbitrary as to interfere with the punishment which has been modified by the appellate authority to reduction by three stages. O.P.(CAT) No.104 of 2014 12
We, hence allow the appeal and set aside Exhibit P3 order of the Tribunal. No order as to costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
P.V.KUNHIKRISHNAN
Pkk JUDGE
O.P.(CAT) No.104 of 2014 13
APPENDIX
PETITIONERS' EXHIBITS & ANNEXURES:
EXHIBIT P1 COPY OF THE O.A.850/2011 ON THE FILES OF THE CAT (ERNAKULAM BENCH) EXHIBIT P2 COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN OA 850/2011 ON THE FILES OF THE CAT (ERNAKULAM) BENCH.
EXHIBIT P3 COPY OF THE ORDER DATED 24.7.2013 IN O.A.850/2011 OF THE CAT (ERNAKULAM BENCH) ANNEXURE A1 A TRUE COPY OF PENALTY ADVICE BEARING NO.J/T5/LC/169/8/2004 DATED 31/12/2009, ISSUED BY THE 5TH RESPONDENT.
ANNEXURE A2 A TRUE COPY OF ORDER BEARING NO.P(A)94/2006/781 DATED 18/11/2010, ISSUED BY THE 3RD RESPONDENT.
ANNEXURE A3 A TRUE COPY OF ORDER BEARING NO.J/P227/DAR/GENERAL DATED 22/11/2010, ISSUED BY THE 6TH RESPONDENT.
ANNEXURE A4 A TRUE COPY OF ORDER BEARING NO.P(A)94/2006/781 DATED 24/05/2011, ISSUED BY THE 2ND RESPONDENT.
ANNEXURE A5 A TRUE COPY OF MEMORANDUM OF CHARGES BEARING NO.J/T5/I/LC/169/8/2004 DATED 11/10/2004, ISSUED BY THE 5H RESPONDENT.
ANNEXURE A6 A TRUE COPY OF REPLY DATED 16/03/2005 SUBMITTED TO THE 5TH RESPONDENT.
ANNEXURE A7 A TRUE COPY OF PROCEEDINGS OF THE DAR INQUIRY HELD ON DIFFERENT DATES.
ANNEXURE A8 A TRUE COPY OF DEFENCE STATEMENT DATED 15/07/2005, SUBMITTED TO THE INQUIRY OFFICER.
O.P.(CAT) No.104 of 2014 14ANNEXURE A9 A TRUE COPY OF THE REPORT OF THE INQUIRY OFFICER, COMMUNICATED BY THE 5TH RESPONDENT, UNDER LETTER NO.J/T5/I/LC/169/8/2-4 DATED 01/08/2005.
ANNEXURE A10 A TRUE COPY OF DETAILED OBJECTIONS BY LETTER DATED 17/11/2005, ADDRESSED TO THE 5TH RESPONDENT.
ANNEXURE A11 A TRUE COPY OF ORDER BEARING NO.J/T5/I/LC/169/8/2004 DATED 12/12/2005, ISSUED BY THE ADDITIONAL DIVISIONAL RAILWAY MANAGER.
ANNEXURE A12 A TRUE COPY OF ORDER DATED 16/12/2005 IN OA NO.871/2005 RENDERED BY THE HON'BLE TRIBUNAL.
ANNEXURE A13 A TRUE COPY OF APPEAL DATED 20/12/2005, SUBMITTED TO THE 3RD RESPONDENT.
ANNEXURE A14 A TRUE COPY OF ORDER BEARING NO.P(A)94/2006/781 DATED 27/02/2006, ISSUED BY THE 3RD RESPONDENT.
ANNEXURE A15 A TRUE COPY OF REVISION PETITION DATED 07/03/2006, ADDRESSED TO THE 1ST RESPONDENT.
ANNEXURE A16 A TRUE COPY OF ORDER BEARING NO.P(A)/94/2006/781 DATED 08/11/2006, ISSUED BY THE 1ST RESPONDENT.
ANNEXURE A17 A TRUE COPY OF ORDER DATED 14TH AUGUST 2009 IN OA NO.375/2008 RENDERED BY THE HON'BLE TRIBUNAL.
ANNEXURE A18 A TRUE COPY OF APPEAL DATED 17/01/2010, SUBMITTED TO THE 3RD RESPONDENT.
ANNEXURE A19 A TRUE COPY ORDER DATED 05/10/2010 IN OA NO.852/2010 RENDERED BY THE HON'BLE TRIBUNAL.
ANNEXURE A20 A TRUE COPY OF REVISION PETITION DATED 21/12/2010 SUBMITTED TO THE 2ND RESPONDENT.
O.P.(CAT) No.104 of 2014 15ANNEXURE R1 TRUE COPY OF THE DEPOSITION STATEMENT DATED 23/08/2004 OF THE GATE KEEPER. ANNEXURE R2 A TRUE COPY OF THE PN BOOK AT THE LEVEL CROSSING GATE AND AT KUTTIPURAM RAILWAY STATION TAKEN IN A SINGLE SHEET AND PRODUCED FOR THE Inquiry.
ANNEXURE R3 A TRUE COPY OF THE LETTER DATED 04/05/2010 OF THE SENIOR DIVISIONAL FINANCE MANAGER, PALGHAT CERTIFYING THE ARREARS AMOUNT.
ANNEXURE R4 A TRUE COPY OF RAILWAY BOARD'S LETTER DATED 03/10/1996.