Central Administrative Tribunal - Ernakulam
Ajith Prasad Pk vs The General Manager Southern Railway Hq ... on 20 February, 2025
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.180/00469/2021
Thursday, this the 20th day of February, 2025
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mrs. V.RAMA MATHEW, ADMINISTRATIVE MEMBER
Ajith Prasad.P.K, Aged 56 years, S/o P.U Narayanan, Ex-Station Master/
Office Superintendent, Palakkad Division, Southern Railway, Residing at
Anugrah Pookodu.P.Ο., Pattiam, Thalasserry, Kannur District, Kerala
PIN CODE: 670 691.
-Applicant
[By Advocate: Mr.U.Balagangadharan]
Versus
1. Union of India, represented by General Manager, Southern Railway, Park
Town, Chennai-600003
2. Chief Operations Manager/ General, Southern Railway, Park Town,
Chennai-600003
3. Additional Divisional Railway Manager, Southern Railway, Palakkad
Division, Palakkad District. PIN 678 002
4. Senior Divisional Operations Manager, Southern Railway, Palakkad
Division, Palakkad District. PIN 678 002
5. Senior Divisional Personnel Officer, Southern Railway, Palakkad Division
Palakkad - PIN 678 002
6. Chief Medical Superintendent, Railway Hospital, Palakkad - PIN 678 002
- Respondents
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[By Advocate: Mrs. O.M.Shalina, SCGSC]
The application having been heard on 14.02.2025, the Tribunal on
20.02.2025 delivered the following order:
ORDER
Justice K.Haripal Applicant is a former Station Master/Office Superintendent of Palakkad Division of Southern Railway. By Annexure-A23 order of the 4 th respondent, after medical decategorisation and disciplinary proceedings, he was removed from service while working as Office Superintendent. Aggrieved by the same, he moved a statutory appeal which was allowed in part, modifying the punishment to one of compulsory retirement with full pension and 1/3rd cut in gratuity.
2. Applicant had commenced service in Southern Railway as Assistant Station Master on 14.03.1989. The said punishment was imposed after more than 30 years of service, while working as Superintendent on medical decategorisation. According to the applicant, after having suffered serious injuries in a road traffic accident, he is suffering from acute low back pain and lumbar disc prolapse since 1993.
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He was undergoing treatment in various hospitals including Railway hospitals and suffered permanent disability. Referring to Annexure-A1 it is submitted that he is suffering from disc prolapse, difficulty in standing erect and walk steadly due to excessive pain on both hip areas; mandatory gap between the nerves at L-5 is only 0.7 mm instead of 1.3 mm due to disc prolapse. Numbness and tingling sensation was felt as the pain was radiating down on the leg. He was under treatment in various Railway hospitals as well as in the General Hospital, Thalassery. He approached the hospital claiming benefit under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, PWD Act for short. The doctors advised to put him in sedentary job. But the authorities refused his prayer stating that there is no scope for light duties in Station Master cadre. Ultimately, he moved the District Disability Assessment Board, General Hospital, Thalassery where he was examined and found suffering from 40% permanent disability due to lumbar IVDP with bilateral radiculopathy and Annexure-A2 disability certificate was issued to him, proving permanent disability.
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3. According to the applicant, the respondents were not prepared to accept Annexure-A2. Though he was put in sick list, salary was not paid from 06.11.2017. Meanwhile, he was medically decategorized and found fit only in CEE ONE and below with effect from 17.07.2018. Thus he was asked by Annexure-A7 communication dated 19.07.2018 to meet the 4th respondent in person. When he went to meet the 4th respondent on 20.07.2018, the Traffic Inspector, Head Quarters, Palakkad handed over Annexure-A8 communication temporarily attaching him to the Station Manager's office at Palakkkad. Immediately, he protested and moved Annexure-A9 request stating that before examining him and certifying by the scrutiny committee for granting him alternate posting, he cannot be given such an abrupt attachment. He also insisted a formal transfer order from SS Mahe to Palakkad. But that was not given. He was awaiting for alternate posting after medical decategorisation, which was done only on 16.01.2019.
4. According to the applicant, meanwhile, to his utter dismay, he was served with Annexure-A11 charge memo dated 08.10.2018 proposing to initiate action against him for unauthorized absence, under 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 5 Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968, hereinafter referred to as the Rules.
5. The applicant submits that he had denied the allegations in the charge, after medical decategorisation he was awaiting orders of alternate posting and that he had never remained unauthorizedly absent. He has also challenged the stand of the respondents in not giving credit to Annexure-A2 disability certificate issued by the competent authority. It is very certain that he has suffered 40% benchmark disability, which cannot be ignored. He challenged the posture of respondents in not honouring Annexure-A2 which he challenged separately through O.A.81/2018. That O.A. was allowed by this Tribunal which was challenged by the respondents in OP(CAT); the OP(CAT) was later dismissed.
6. According to the applicant, he had appeared before the enquiry officer and submitted his statement of defence and also participated in the enquiry proceedings. However, without following the statutory provisions provided under the Rules, without giving him opportunity to explain the incriminating facts and circumstances 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 6 produced against him, a final report was filed which was acted upon and initially an order of removal from service was ordered against him. He preferred appeal against the same and ultimately the order of removal from service was converted into one for compulsory retirement with full pension and cut in 1/3rd of the gratuity. He accepted the amount under protest. He has also filed revision against the appellate order which is pending.
7. According to the applicant, Annexure-A6, A23, A24, A26 and A28 are illegal and liable to be interfered with. He seeks his immediate reinstatement in service and grant of all consequential benefits. He also prays for declaration that Annexure-A2 disability certificate is liable to be acted upon.
8. The respondents have filed a reply to the amended O.A. disputing all the contentions. They have admitted that while the applicant was working as Office Superintendent in the Operating Department of Palakkad Division, was removed from service on 15.07.2019 following initiation of proceedings under the Rules. He had commenced service as Assistant Station Master on 14.03.1989 and 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 7 became Station Superintendent on 01.11.2013. He was put in sick list on 11.09.2017 due to lumbar spondylosis with radiculopathy. He was discharged from the sick list on 17.07.2018 and was directed to report before the Station Manager, Palakkad on 20.07.2018 for temporary utilisation of his service as Office Superintendent in the Station Manager's office. But he had refused to join that post and absented from duty unauthorizedly from 21.07.2018 and reported before the Station Manager's office only on 07.12.2018. Later, he was absorbed in the alternative job of Office Superintendent in Operating Department, Shornur on 16.01.2019. Meanwhile, disciplinary proceeding was initiated for unauthorized absence from 21.07.2018.
9. According to the respondents, on proof of charge in the enquiry, the 4th respondent imposed on him a penalty of removal from service which was later modified into compulsory retirement. According to the respondents, after finding that he is suffering from lumbar spondylosis with radiculopathy, he was recommended for light duties for a period of two months. Since there was no scope for light job in Station Master cadre, he was offered a posting in Pollachy, where there were 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 8 only three trains passing in 24 hours, where he could work without any strain. But he refused the offer. Absorption to an alternative post after medical decategorisation would be possible only after recommendations of the special screening committee. As per Rule 561 of the Indian Railway Medical Manual, the applicant should have waited for constitution of a screening committee and assessment for alternate arrangement. Referring to Section 2(e) of the Act 49 of 2016, they say that the 'certifying authority', means an authority designated under sub- section(1) of Section 57. Therefore, Annexure-A2 certificate issued by the District Disability Assessment Board, General Hospital, Thalassery, Kannur, of the Department of Health Services, Government of Kerala cannot be accepted in derogation of the provisions of a Standing Medical Board at Railway Hospital, Palakkad.
10. The special committee had made alternate arrangements for the absorption of the applicant as Office Superintendent in Operating Division, Shornur, which he accepted.
11. According to respondents, as there was no post in Mahe, after medical decategorisation in CEE ONE and below classification, 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 9 where he was working, he was directed to report in the office of the 4 th respondent for gainful utilization of his service as Office Superintendent. This was purely a temporary arrangement till identification of suitable alternate post after conducting assessment by the screening committee. The applicant had reported at the office of the 4 th respondent on 20.7.2018 and then was directed to report at the office of the Station Manager, Palakkad to work as Office Superintendent on temporary basis. Though he acknowledged the communication, later, did not report and thereafter remained unauthorizedly absent from 21.07.2018 to 06.12.2018. That was how disciplinary proceeding was initiated against him.
12. After medical decategorisation he was placed in a supernumerary post with effect from 17.07.2018 with the same pay and scale of pay only for accommodating him outside the Station Master cadre till absorbed in a suitable alternate post.
13. After serving the charge memo and denial of the same by the applicant, Sri.Nithin Robert, Assistant Operations Manager, Palakkad was appointed as enquiry officer. A presenting officer was also appointed.
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The applicant had defended the case with the help of a Defence Assistant. From the proceedings of the enquiry, it is clear that he was satisfied with the enquiry proceedings. According to the respondents, if the applicant had any complaint regarding the conduct of the enquiry, he could have very well stated to the enquiry officer then and there. On conclusion of the enquiry, report was filed indicting the applicant. After service of copy of report and obtaining his remarks on the same, punishment of removal from service was imposed, which was later modified in appeal. The respondents have disputed the grounds urged in the O.A. touching the enquiry conducted and penalty issued which were in accordance with law. The appellate authority had found the punishment of removal from service was not fair and then it was modified into one of compulsory retirement with full pension and 1/3 rd cut in the gratuity. So, the O.A. is sought to be dismissed.
14. The applicant filed rejoinder reiterating the contentions in the O.A. and produced Annexures-A29 to A35. The respondents filed an additional reply and produced Annexures-R1(G) to R1(I).
15. We heard Sri.U.Balagangadharan, learned counsel for the 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 11 applicant and Smt.O.M.Shalina, learned Senior Central Government Standing Counsel for the respondents, in great detail.
16. The learned counsel for the applicant submitted that the applicant had never remained unauthorisedly absent. There cannot be any wilful misconduct unless he had remained unauthorisedly absent intentionally. According to him, till Annexure-A13 order was passed by the committee, posting him in the new place after re-arrangement, the applicant was waiting for the posting. That period cannot be held as unauthorised absence. He also relied on the decision in Krushnakant B.Parmar v. Union of India and another [(2012) 3 SCC 178]. But we notice that even before the issue of Annexure-A13, the applicant joined the Palakkad office on 07.12.2018 which is against the claim that he was waiting for Annexure-A13. Whatever it be, the learned counsel pointed out that the applicant was entitled to get disability leave as provided in the standing instructions and under the PWD Act. But the respondents are trying to blame him for unauthorised absence without giving any consideration. He also quoted Rules 1303 and 1306 of the IREM to support the claims. He reiterated that the applicant never remained 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 12 unauthorisedly absent, but was waiting for employment till the committee had given him alternate appointment as Office Superintendent in Shornur. He accepted the posting and there cannot be any charge on the applicant for unauthorised absence.
17. On the other hand, learned Senior Central Government Standing Counsel has disputed the contentions and submitted that neither the 1995 Act nor the 2016 Act does say anything about leave or salary. Referring to Annexure-R1(H) she said that after decategorisation he was put in a special supernumerary post. At that time, Rule 1306 of the IREM had to be followed pending identification of the post and location. Rule 1306 comes before the screening for the post of identifying the alternate arrangement. Once the process was completed, the applicant was appointed in the medically decategorised post. But after 21.07.2018 till 07.12.2018 the applicant remained hiding during the period his whereabouts were not known and now he wants to say that he is entitled to get the benefit of medical decategorisation from 17.07.2018 etc.
18. The learned Standing Counsel also justified the order 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 13 of compulsory retirement from service, which is commensurate with the gravity of the misconduct committed by the applicant and therefore, the matter does not warrant interference.
19. There are mainly two reliefs sought by the applicant. One relates to Annexure-A2 certificate of disability issued from the General Hospital, Thalassery and the second is touching the validity and correctness of Annexures-A6, A23, A24, A26 and A28. In the light of the subsequent developments the first aspect has paled into insignificance and does not trouble us. The question has since been decided by the Hon'ble High Court through Annexure-R1(G) order in OP(CAT) 11/2020 etc. Even though the respondents wanted to say that Annexure-A2 is not applicable to a Railway employee, that they have their own special provisions for examining the Railway servant and ascertain disability through the medium of Railway establishments and Railway hospitals through the Board constituted under the Indian Railway Establishment Manual, as noticed earlier, in the light of Annexure-R1(G) that aspect has become final and we cannot go behind the decision of the Hon'ble High Court. Even though the applicant was not entitled to move the General 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 14 Hospital, which is under the State Government, now he has produced such a document and has obtained the stamp of approval from the High Court. Therefore, the first aspect cannot be agitated again on account of the subsequent developments. At that time, he was working as Station Manager and appeared before the Medical Board of the General Hospital, Thalassery on 08.11.2017 and obtained a certificate to the effect that he is suffering from 40% permanent locomotor disability due to lumbar IVDP with bilateral radiculopathy. Whatever it may be, after realising his ailment he was put in the sick list first on the advice of doctors from the Railway hospital and then Annexure-A6 shows that on 17.07.2018 the Railway Medical Board had reviewed him and recommended his medical decategorisation and found him unfit for AYE TWO, AYE THREE, BEE ONE and BEE TWO categories and found him fit in CEE ONE and below category in a job not involving heavy manual labour. On that basis, the applicant was found not fit to do the job of a Railway Manager/Railway Superintendent/Station Master and was put in the sick list. Annexure-A10 shows that then he was placed in a supernumerary post in the Railway Station, Palakkad where he did not join till 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 15 07.12.2018.
20. The charges levelled against him were that from 21.07.2018 to 07.12.2018 he remained unauthorisedly absent, for four months and 16 days. Thus a charge sheet under Rule 9 of the Rules was served on him. The Articles-I and II of the charge read thus:
"I. Sri.P.K.Ajith Prasad, SS was medically decategorised and fit in CEE ONE and below, discharged from sick list on
17.07.2018. He was directed to SMR/PGT on 20.07.2018 for temporary utilisation as OS at SMR/O/PGT. Even though he received memo and assured to join at SMR/O/PGT he did not report on 21.07.2018 and unauthorizedly absented from duty from 21.07.2018 and still continuing.
II.Sri.P.K.Ajith Prasad, SS was medically decategorised and fit in CEE ONE and below, discharged from sick list on 17.07.2018. He was directed to SMR/PGT on 20.07.2018 for temporary utilisation as OS at SMR/O/PGT. Even though he received memo and assured to join at SMR/O/PGT, he did not report on 21.07.2018 and unauthorizedly absented from duty from 21.07.2018 and still continuing."
21. Referring to Annexure-A9, the applicant wanted to convince the Tribunal that he had never absented from duty, that he was asked to report before the 4th respondent on 20.07.2018 at Palakkad, went there.
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However, without affording an opportunity to meet him, was served with Annexure-A8 communication asking to report before the SMR/O/PGT in place of OS for temporarily utilising his service. According to him, it was an unusual course. So he insisted to get a transfer order and did not join the said post and gave Annexure-A9 reply. Thereafter he reported for duty on 07.12.2018 only. Meanwhile, the Annexure-A11 memo of charges containing the above stated allegations was served on him. He denied the allegations and gave a denial statement. Thereafter, the said Nithin Robert was appointed as enquiry officer and a presenting officer was also appointed. The applicant was also allowed to engage a defence assistant.
22. Annexures-A15 to A17 and A19 show that the enquiry was conducted on 29.01.2019, 08.02.2019, 21.02.2019 and 05.03.2019. After the applicant had given his defence statement, according to him, the enquiry report was filed abruptly, without following the usual procedures in the Rules. Therefore, the applicant submits that Annexure- A21 enquiry report was presented premature, without giving him opportunity of being heard and without following the salutary 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 17 procedures and thus he gave Annexure-A22 statement opposing the enquiry report. However, the Annexure-A23 penalty advice was imposed on him awarding punishment of removal from service with immediate effect. The correctness of Annexures-A23, A24, A26 and A28 is the crucial aspect to be decided by us.
23. The learned counsel for the applicant was very much critical about the procedures adopted by the enquiry officer. According to him, principles of natural justice has been flown to the winds and the enquiry report was filed without giving him opportunity to present his case and also without hearing him. On the other hand, the learned Senior Central Government Standing Counsel has tried to justify the Annexure-A21 report and submitted that the applicant was unauthorisedly absent and an establishment like Railway cannot be run if employees like the applicant do not turn up for discharging duties, that has caused considerable difficulties to the establishment and thus the punishment is commensurate with the gravity of the charges.
24. Regarding the rival contentions as to whether the applicant had unauthorsedly absented from duty or was entitled to remain absent, 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 18 awaiting alternate appointment for the period from 21.07.2018 to 07.12.2018, we must say, is the subject matter of the enquiry. The specific allegation of the respondents is that the applicant did not report before the Station Master, Palakkad on 21.07.2018 as directed and since then he remained underground, thereafter appeared only on 07.12.2018, there is no justification for his absence for the period and that was how proceedings were initiated against him, which culminated in his compulsory retirement. In our considered opinion, the enquiry officer was appointed for the purpose of considering the allegations of unauthorized absence raised against the applicant as shown in Annexures-I and II of the charge sheet. It is for the enquiry officer to form an opinion as to whether it was an unauthorized absence amounting to misconduct or the applicant was entitled to remain absent from duty owing to the principles or Rules of the Indian Railway Medical Manual, Establishment Code etc. Therefore, we are not expected to make any comment on the legality or correctness of his absence from duty from 21.07.2018 to 07.12.2018.
25. After all, a Court or Tribunal cannot act as an appellate 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 19 authority in a disciplinary proceedings. Its mission is to have an over view of the proceedings and ensure that principles of natural justice have been followed by the enquiry officer and the disciplinary authorities. So we will confine our role to the above extent only.
26. As seen from Annexures-A15, 16, 17 and 19, the enquiry officer conducted the proceedings for the prosecution/department and closed the evidence. Thereafter, Annexure-A19 shows that the applicant was questioned as to whether he was satisfied with the enquiry proceedings so far. He answered in the affirmative and said that 'I will submit my defence statement within 15 days (by 20.03.2019).' The Annexure-A20 shows that he had given the defence statement on 16.03.2019. But, thereafter, Annexure-A21 enquiry report was submitted finding him guilty of the charges as proved against the applicant. This procedure has been called in question by the applicant.
27. It is important to extract sub-Rules 19 to 22 of Rule 9, as follow:
"(19) When the case for the disciplinary authority is closed, the Railway servant shall be required to state his 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 20 defence orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Railway servant shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any.
(20) The evidence on behalf of the Railway servant shall then be produced. The Railway servant may examine himself in his own behalf, if he so prefers. The witnesses produced by the Railway servant shall than be examined by or on behalf of him and shall be cross-examined by or on behalf of the Presenting Officer, if any. The Railway servant shall be entitled to re-
examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
(21) The inquiring authority may, after the Railway servant closes his case, and shall, if the Railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Railway servant to explain any circumstances appearing in the evidence against him.
(22) The inquiring authority may after the completion of the production of evidence, hear the Presenting Officer, if any, and the Railway servant, or permit them to file written briefs of their respective cases, if they so desire."
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28. In other words, the enquiry officer need to proceed to sub- Rule 25 of Rule 9, for filing the report of enquiry after following these mandatory provisions. But here, it is obvious that, after the closure of the prosecution evidence and submission of defence statement by the applicant, a report was hurriedly filed midway, without affording opportunity to the applicant to give his evidence or even without questioning him on the incriminating statements or materials produced by the department against the applicant.
29. In fact the provisions quoted above from the Rules are pari materia with the the provisions of CCS(CCA) Rules and are guided by Article 311 of the Constitution.
30. No doubt, the applicant is holding a civil post. In relation to persons holding civil post under the Union or States, Constitution itself ensures compliance with the principles of natural justice where the proposal is to remove or dismiss him from service. Service Rules relating to Government servants as well as members of public services usually go further and provide for compliance with the principles before imposing any major punishment. It can safely be said that of all the grounds on 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 22 which disciplinary proceedings have been assailed in the Courts, violation of some aspects of natural justice takes the lead. The pervasive presence of the principles in the Service Rules and the high importance of the topic makes it necessary to consider whether principles of natural justice have been followed by the disciplinary authority.
31. After going through the materials made available before this Tribunal, we are overwhelmingly convinced that the enquiry authority had held the enquiry only on behalf of the prosecution, that is the enquiry conducted on four days, on 29.01.2019, 08.02.2019, 21.02.2019 and 05.03.2019 as shown in the statements and minutes produced by the applicants as Annexures-A15, A16, A17 and A19 respectively. After the closure of the prosecution evidence, no further step was taken and then the enquiry officer filed a report abruptly, indicting the applicant. We are afraid and astonished that such a strange course adopted by the enquiry officer has been given the stamp of approval by the disciplinary authority as well as the appellate authority. That cannot stand judicial scrutiny.
32. The applicant has highlighted the serious lacunae in the 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 23 procedure adopted by the enquiry officer in grounds F, G and I specifically. But in both the replies - replies dated 15.11.2022 and 09.05.2023 the respondents have evaded the contentions stating that 'the enquiry conducted and penalty advice issued is in accordance with law.' That means the serious allegations raised by the applicant highlighting procedural irregularities could not be met and explained by the respondents.
33. In this connection, it is appropriate to consider a Two Judge Bench decision of the Hon'ble Supreme Court in State Bank of Patiala v. S.K.Sharma [(1996) 3 SCC 364], where the Hon'ble Apex Court has summarised the position in relation to disciplinary proceedings as quoted below:
"33. We may summarise the principles emerging from the above discussion. [These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee]:
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 24 provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed.
Except cases falling under- "no notice", "no opportunity"
and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudicate, including setting aside the enquiry and/or the order of punishment. If no 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 25 prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity inspite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a mandatory characters the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 26 violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provisional which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirements either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could no be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B.Karunkar. The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called......................."
34. We have to notice that not only the enquiry officer, the disciplinary authority as well as the appellate authority did not have proper idea about the importance of following such principles of natural 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 27 justice. This aspect was stated by the applicant in Annexure-A22 statement filed by him immediately after filing the Annexure-A21 report. Annexure-A22 reads thus:
"II Constitutional Provisions and Statutory Rules disregarded/violated:
a) Sub-rules (17) to (22) of Rule No.9 of DAR'1968 extract is produced herewith as Annexure-B. In this regard, I wish to point out that the Enquiry conducted hitherto is only in half way stage and incomplete because I had delivered my written Statement of Defence under-Sub-rule 19. The Enquiry Officer didn't care to follow the Sub-rules 20, 21 and 22 before arriving at the conclusion. In other words; I was denied a reasonable opportunity as contemplated in Article 311(2) of the Constitution of India."
35. We have not seen the appeal memorandum. But in Annexure-A27 revision, applicant has highlighted this aspect. Therefore, in all probability, he must have raised this contentious aspect in the appeal memorandum also. It is unfortunate that the disciplinary authority and the appellate authority failed to note this vital aspect which cuts the root of the prosecution case.
36. What we want to highlight is the serious lapses committed 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 28 on the part of the enquiry officer, which has been given the stamp of approval by the disciplinary authority as well as the appellate authority. They did not understand the importance of following mandatory provisions containing principles of natural justice in an enquiry proceedings. Such a report cannot stand judicial scrutiny.
37. Basing on the dictum of the Hon'ble Supreme Court in State Bank of Patiala, quoted supra, it can be held that a half-baked report has been given after considering the evidence of the prosecution alone, without giving opportunity to the applicant to give his evidence or to admit his documents or oral evidence. It is very clear that he wanted to adduce his evidence. He was not permitted to adduce oral evidence nor he was questioned by the enquiry officer, which is a mandatory provision. That means, as pointed out by the Hon'ble Supreme Court, when the principle of prejudice is applied it is very clear that the applicant was very much prejudiced and a report was filed without giving him opportunity of being heard. We have no doubt that Annexure-A21 is a one sided report prepared behind the back of the applicant on crucial aspects and therefore, all the steps taken by the respondents pursuant 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 29 to such a report should fall down. Resultantly, Annexures-A21, A23, A24, A26 and A28 are quashed.
38. As a necessary corollary, the Original Application is allowed and the respondents are directed to reinstate the applicant forthwith. It has been pointed out that the date of retirement of the applicant is 31.05.2025. Therefore, the enquiry shall be resumed from the point where the enquiry officer had stopped, by giving opportunity to the applicant to adduce his evidence, and be concluded at the earliest, in accordance with the Rules, before 31.05.2025.
39. By this time, we do not know whether the enquiry officer, the presenting officer etc. are available in the very same station. If not available, it is open to the respondents to appoint a competent officer as enquiry officer and allow to resume the proceedings. The applicant shall co-operate with the enquiry. The period of absence from the date of removal from service till reinstatement shall be regularised by the respondents as per law.
40. We also make it clear that, considering the lapse of time and since the applicant has reached the age of superannuation, this order 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 30 will not stand on the way of the applicant and respondents reaching an amicable settlement, benefiting each other.
41. Before parting with, we express our deep anguish since the officials at responsible levels had handled the matter quite casually. Importance of following principles of natural justice in a disciplinary proceedings need not be overemphasized. Here, inept handling by the enquiry officer was not detected at the level of the disciplinary authority and the appellate authority. This is unwholesome. This sad state of affairs point towards importance of officials at appropriate levels adequately educated by making awareness programmes. A copy of the order will be forwarded to the Chairman, Railway Board, New Delhi for taking necessary action.
The Original Application is allowed with costs.
(Dated, this the 20th February, 2025)
V.RAMA MATHEW JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ds
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O.A.No.469/2021 31
List of Annexures
Annexure A-1: True copy of the certified dated 20.10.2016 issued to the applicant by Dr. Rajeev Raghavan, MBBS, D-Ortho, MRCS (Edinburgh) at the General Hospital, Thalassery.
Annexure A-2: True copy of the Certificate of Disability No.9367/2017 on 08-11-2017 issued to the applicant by the District Disability Assessment Board, General Hospital,Thalassery, Kannur District Annexure A-3: True copy of the prescription Memo of Railway Hospital/Kannur Annexure A-4: True copy of the letter No.J/P.721/S&WI EDVR dated 12.12.2017 by the 5th respondent Annexure A-5: True copy of the letter No.J/P.535/VIII/SS/TI/ Vol.II dated 20/22-12-2017 was issued on behalf of the 5th respondent Annexure A-6: True copy of the Order No. J/MD 94/AP dated 17.07.2018 addressed to the 5th respondent by the 6th respondent's office Annexure A-7: True copy of the letter No.MHE/PKA/19/01 dated 19.07.2018, enclosed with Emergent Duty pass No.515037 dated 19.07.2018 Annexure A-8: True copy of the order No.J/T.20/SNP dated 20.07.2018 Annexure A-9: True copy of the reply a reply No.PKA /Sr.DOM Lt/20/18 dated 20.07.2018 addressed to the 4th respondent by the applicant Annexure A-10 True copy of the Memorandum No.J/P/509/VIII/UT 911 dated 28.08.2018 issued by the 5th respondent 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 32 Annexure A-11: True copy of the Major Penalty charge memorandum No.J/T.227/18/PGT PKA P/5 dated 08.10.2018 issued by the 4th respondent Annexure A-12: True copy of the reply dated 11.11.2018 submitted by the applicant to the charge Memorandum.
Annexure A-13: True copy of the Order No.J/P.535/VIII/Mini restru/Opt/Vol.I dated 16.01.2019 Annexure A-14 True copy of the per letter No.J/.20/Clerk dated 17.01.2019 Annexure A-15: True copy of the proceedings of the preliminary enquiry held on 29.01.2019 Annexure A-16: True copy of the proceedings of the regular inquiry held on 08.02.2019 Annexure A-17: True copy of the proceedings of the second regular inquiry held on 21.02.2019 Annexure A-18 : True copy of the letter No.J/T.227/18/PGT/PKAP/5t dated 27.02.2019 without its enclosure Annexure A-19: True copy of the inquiry proceedings dated 05.03.2019 Annexure A-20: True copy of the letter No.J/T227/18 /PGT/PKA P/5 dated 15.03.2019 Annexure A-21 True copy of the letter No.J/T227/18/PGT/PKA P/5 dated 15.05.2019 issued by the 4th respondent.
Annexure A-22: True copy of the representation dated 24.05.2019 submitted by the applicant to the 4th respondent 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 33 Annexure A-23: True copy of the penalty advice No. J/T.227/18/PGT/PKA P/5 dated 15.07.2019 Annexure A-24: True copy of the memorandum No.J/T.227/18/PGT/PKA P/5 dated 04.09.2020 Annexure A-25: True copy of the letter dated 17.09.2020 to the 5th respondent by the applicant.
Annexure A 26 : True copy of the letter No.J/T.227/19/PGT PKA P/11 dated 17.11.2020 Annexure A-27: True copy of the Revision Petition submitted by the applicant Annexure A28: True copy of the order bearing No.J/T.227/18/TGT/PKAP/5 dated 01.12.2021 issued by the third respondent.
Annexure A-29: True copy of the relevant extract of the Indian Railway Medical Manual, 1971 Annexure A29(a)A true copy of the order passed by this Hon'ble Tribunal in OA 81 of 2018 Annexure A30: True copy of the Railway Board order RBE No.23 of 1992 dated 11.02.1992.
Annexure A31: True copy of the Railway Board order RBE No.71 of 2003 dated 29.04.2003 Annexure A32: True copy of the DoPT's OM Νο.Α.Β.14017/41/90-Estt(RR) dated 10.05.1990 Annexure A33: True copy of the privilege ticket order (802689) dated 11.08.2018 issued by the Station Master, Mahe 2025.02.20 DEEPA S 15:50:42 +05'30' O.A.No.469/2021 34 Annexure A34: True copy of the privilege ticket order (802690) dated 11.08.2018 issued by the Station Master, Mahe Annexure A35: True copy of the Railway Board Order RBE No. 107 of 2017 dated 30.08.2017 Annexure R1(A): True extract of Rule 561 of IRMM Annexure R1(B): True copy of letter dated 31.07.2018 addressed to the applicant Annexure R1(C): True copy of Railway Board's Letter No:E(P&A)I- 2019/CPC/LE-2 dated 23.04.2019 Annexure R1(D): True copy of Office letter No.J/P OP(CAT)11/2020 dated 25.07.2020 Annexure R1(E): True copy of PCPO/MAS letter dated 04.10.2021 Annexure R1(F): True copy of letter No.J/T227/18/PGT/PKAP/5 dated 01.12.2021 Annexure R1(G): True copy of judgement dated 27.02.2020 of the Hon'ble High Court Kerala in OP(CAT) 11 of 2020 and connected cases Annexure R1(H): True copy of relevant extract of Chapter 13 of IREM Vol-I Annexure R1(1): True copy of the Certificate dated 17.07.2018 issued on the basis of the proceedings and findings of the medical board held on 04.07.2018 Annexure MAI: True copy of the order bearing No.J/T.227/18/PGT/ PKAP/5 dated 01.12.2021 ********** 2025.02.20 DEEPA S 15:50:42 +05'30'