Central Administrative Tribunal - Ernakulam
M. Ravi Kumar vs Union Of India (Uoi) And Ors. on 14 March, 2002
Equivalent citations: 2003(1)SLJ377(CAT)
JUDGMENT G. Ramakrishnan, Member (A)
1. The applicant, a Technician Grade-II (Electrical), Palghat Division, Southern Railway, aggrieved by A1 penalty advice dated 26-5-98 issued by the 2nd respondent, A2 appellate order dated 3-12-98/ 5-1-99 issued by the 3rd respondent and A3 revisional order dated 25-3-99 issued by the 4th respondent filed this original Application seeking the following reliefs:-
"(a) Call for the records leading to the issued of Annexures A1, A2 and A3 and quash the same, duly directing the respondent to grant the consequential benefits thereof.
(b) Award costs of and incidental to this application. (c) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case",
2. According to the Original Application, the applicant while working as Electrical Fitter Highly Skilled-II was issued with A4 charge memorandum dated 24.12.1997, the article of charges being as follows:-
"Article of Charges Shri M. Ravikumar, ELF/TL/HS-II/MAQ was nominated to attend the failure in the following slip coaches of 525 passenger of 25.11.97 which arrived at MAQ at 20.45 hrs.
1. No FSCN 6828 B/ON-G- Light condition dim.
2. CNY 6924 B/ON-NG- due to fixed fuse loose and negative fuse cut in junction box-light dim.
The coaches which left by 526 of 26.11.97 arrived at PGT without light and non-generation of CNY 6924. As a result the train suffered a detention of 1.30 hrs for remarshalling at PGT. Shri M. Ravikumar has not attended the coach properly at MAW. Thus he has failed to maintain devotion to duty and violated Rule No. 3 (i) (ii) of Railway Services Conduct Rules, 1966."
3. The applicant submitted A5 reply dated 13.1.1998 addressed to the 2nd respondent denying the allegations and explained, why he was not guilty of the misconduct and prayed that an enquiry be ordered to enable him to prove his innocence. The applicant was imposed with a penalty of withholding of his annual increments for a period of three years by A1 penalty advice dated 26.5.1998 issued by the 2nd respondent. Against A1 the applicant filed A6 appeal dated 4.7.1998 addressed to the 3rd respondent. By A2 order dated 3.12.1998/5.1.1999, A6 appeal was rejected by the 3rd respondent. The applicant filed A7 revision petition dated 19.1.1999 to the 4th respondent, which was rejected by A3 order. He submitted A8 representation dated 10.8.1999 to the 4th respondent, the revisional authority, to review A3 order. By A9 letter dated 29.9.1999 the 3rd respondent rejected the same stating that no further representation would lie with the 4th respondent. The applicant has assailed Al, A2 and A3 as totally contrary to law, arbitrary and discriminatory.
4. Respondent filed reply statement resisting the claim of the applicant.
5. Applicant filed rejoinder.
6. Heard the learned Counsel for the parties. Learned Counsel for the applicant assailed the impugned orders on the ground that the same had been passed without reasonable opportunity being given to the applicant and was violative of principles of natural justice. He explained that in the reply to the charge-sheet the applicant had requested for conducting an enquiry as provided under Rule 11 of the Railway Servants (Discipline and Appeal) Rules, 1968 and that his request for conducting an enquiry was not even considered. He alleged that the disciplinary authority conducted an enquiry behind the back of the applicant, gathered materials without his knowledge and reached his conclusion as in A1. Hence, A1, A2 and A3 are ultra vires of Rule 11 of the Railway Servants (Discipline & Appeal) Rules, 1968. They were also opposed to the principles of natural justice and hence, violative of Articles 14, 16 and 300-A. He also referred to A-10, Railway Board's order dated 11.2.1986. According to the learned Counsel for respondents, there were no merits in the various contentions raised by the applicant in the Original Application. According to him, due to the negligence and failure on the part of the applicant, a passenger carrying train suffered detention of 1 hour and 30 minutes. The charges were technical in nature. When failure of a coach had taken place due to failure on the part of the employee to carryout proper maintenance, charge memorandum had been issued to him. In the case of a minor penalty, there was no need for conducting an enquiry. The negligence on the part of the applicant was proved beyond doubt. They denied that any enquiry was conducted behind the applicant. The penalty order was passed considering the facts available on record and there was no violation of Articles 14, 16 and 300-A.
7. We have given careful consideration to the submissions made by the learned Counsel for the parties and the rival pleadings and have perused the documents brought on record.
8. It is not disputed by the respondents that the applicant had not asked for conducting an enquiry. According to them, when technical facts were available and when on such cases of technical nature where failure of a coach had taken place due to failure on the part of the employees to carryout proper maintenance, in the case of minor penalty, it was not warranted to conduct an enquiry. Hence, it was decided by the competent authority not to conduct an enquiry. The applicant's specific case was that he had sought for an enquiry and the disciplinary authority had not passed any orders on this request by him. Respondents do not deny that the applicant had not made a request for an enquiry. Their only plea was that for a minor penalty charge memorandum there is no need for an enquiry. Learned Counsel for the applicant drew our attention to A-10 order issued by the Railway Board. The said A-10 reads as under :
ANNEXURE A-10 R.B.E. No. 17/86 Subject : Rule 11(1) of Railway Servant (Discipline and Appeal) Rules, 1968--Holding of inquiry in specific circumstances--Recommendations of Committee of National Council (JCM).
No. E (D&A) 86 RG 6-3, dated 11.2.1986.
A copy of the Department of Personnel and Training's Office Memorandum No. 11012/18/85-Estt(A) dated 28.10.85 on the above subject is enclosed. The contents of the same may be brought to the notice of all concerned for compliance. Rules 16(1) and 16(1-A) of the CCS (CCA) Rules, 1965 mentioned therein correspond to Rules 11(1) and Rule 11 (2), respectively, of the R.S. (D&A) Rules, 1968 regarding procedure for imposition of minor penalties.
Extract from the Department of Personnel & Training O.M. No. 11012/18/ 85-Estt. (A), dt. 28.10.1985.
Subject : Rule 16 (J) Holding of inquiry in specific circumstances--Recommendations of Committee of National Council (JCM).
The undersigned is directed to say that the Staff Side of the Committee of the National Council (JCM) set up to consider revision of CCS (CCA) Rules, 1965 and suggested that Rule 16(1) should be amended so as to provide for holding an inquiry even for imposition of minor penalty, if the accused employee requested for such an inquiry.
2. The above suggestion has been given a detailed consideration. Rule 16(1-A) of the CCS (CCA) Rules, 1965 provides for the holding of an inquiry even when a minor penalty is to be imposed in the circumstances indicated therein. In other cases, where a minor penalty is to be imposed, Rule 16(1) ibid leaves it to the discretion of disciplinary authority to decide whether an inquiry should be held or not. The implication of this rule is that on receipt of representation of Government servant concerned on the imputations of misconduct or mis-behaviour communicated to him, the disciplinary authority should apply its mind to all facts and circumstances and the reasons urged in the representation for holding a detailed inquiry and form an opinion whether an inquiry is necessary or not. In a case where a delinquent Government servant has asked for inspection of certain documents and cross examination of the prosecution witnesses, the disciplinary authority should naturally apply its mind more closely to the request and should not rejected the request solely on the ground that an inquiry is not mandatory. If the records indicate that, not-with-standing, the points urged by the Government servant, the disciplinary authority could after due consideration, come to the conclusion that an inquiry is not necessary, it should say no in writing indicating its reasons, instead of rejecting the request for holding inquiry summarily without any indication that it has applied its mind to the request, as such an action could be construed as denial of natural justice.
2. Ministry of Agriculture etc., are requested to bring these instruction to the notice of all disciplinary authorities under their control."
9. It is evident from the above letter that whenever a request for conducting an inquiry is received from the delinquent employee in his defence statement, the same should receive proper consideration at the hands of the disciplinary authorities. They have to apply their mind to the request made by the delinquent employee and taking into account all other materials before them, they have to come to a conclusion regarding the necessity or otherwise of an inquiry. In this case, on going through A1, we find that no such decision had been taken by the disciplinary authority. Eventhough in the reply statement the respondents submitted that the competent authority had come to such a conclusion not to conduct an inquiry, in the absence of any such decision in A1 impugned order, we are of the view that A1 is liable to be set aside on this ground.
10. The applicant in his A6 appeal dated 4.7.1998 stated specifically regarding his request to the disciplinary authority regarding the DAR enquiry and no mention of the same in the punishment order. He repeated the request to the appellate authority. In the appeal he also referred to the reliance placed by the disciplinary authority on the statement of one Mr. Albert, trainee ELC and others, and alleged violation of the principles of natural justice. He also referred to his request made for an enquiry to the revisional authority in his A7 revision petition. Both in A2 appellate order as well as A3 revisional order, there is no indication of consideration of these aspects by the respective authorities.
11. Rule 22(2) of the Railway Servants (Discipline & Appeal) Rules, 1968 dealing with 'Consideration of appeal' reads as under:-
"22. Consideration of appeal (1) **** **** **** (2) In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider-
(a) Whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders-
(i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or
to any other authority with such directions, as it may deem fit in the circumstances of the case:
Provided that-
(i) the Commission shall be consulted in all cases where such consultation is necessary;
(ii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in Clauses (v) to (ix) of Rule 6 and an inquiry under Rule 9 has not already been held in the case, the appellate authority shall, subject to the provisions of Rule 14, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Rule 9 and thereafter, on a consideration of the proceedings of such inquiry make such orders as it may deem fit;
(iii) if the enhanced penalty which the appellate authority proposes to imposes is one of the penalties specified in Clauses (v) to (ix) of Rule 6 and an inquiry under Rule 9 has already been held in the case, the appellate authority shall, make such orders as it may deem fit; and (iv) subject to the provisions of Rule 14, the appellate authority shall- (a) where the enhanced penalty which the appellate authority propose, to impose, is the one specified in Clause (iv) of Rule 6 and falls within the scope of the provisions contained in Sub-rule (2) of Rule 11; and (b) where an inquiry in the manner laid down in Rule 9, has not already been held in the case,
Itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Rule 9 and thereafter, on a consideration of the proceedings of such inquiry, pass such orders as it may deem fit; and
(v) no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be, in accordance with the provisions of Rule 11, of making a representation against such enhanced penalty.
(3) **** **** ****"
12. Further, according to Rule 25(3) of the Railway Servants (Discipline & Appeal) Rules, 1968, an application for revision is to be dealt with as if it was an appeal under the said Rules. On going through A2 appellate order and A3 revisionary order, we find that the specific aspect of the non-consideration of the request made for an enquiry had not been dealt with at all. This leads us to conclude that the consideration of the appeal and revision petition had been done in accordance with the Rule 22(2).
13. When the Government of India and the Railway Board directed in their A-10 letter dated 11.2.1986 to consider the requests for enquiries made by the charged employees with due application of mind and to pass orders, the same is required to be followed by all the subordinate authorities. We have no hesitation in saying that in this case these directions have not been followed as is evident from the impugned orders.
14. In view of the foregoing, we are unable to sustain A1, A2 and A3 impugned orders.
Accordingly, we set aside and quash A1, A2 and A3 and direct the respondents to grant the consequential benefits to the applicant. We make it clear that the above will not stand in the way of the respondents proceedings afresh against the applicant from the stage of the receipt of A5 explanation dated 13.1.1998 in accordance with law.
15. The Original Application stands disposed of as above with no order as to costs.