Central Administrative Tribunal - Cuttack
Jaya Chandra Mishra vs M/O Railways on 29 October, 2021
O.A. 643.2019
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CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH: CUTTACK
O.A. No. 260/643 OF 2019
CORAM:
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER(J)
THE HON'BLE MRT.JACOB, MEMBER(ADMINISTRATIVE)
Jaya Chandra Mishra, aged about 59 years, S/o Sri Bhagabat
Mishra, Compulsorily Retired Chief Office Superintendent, Group-'C',
Office of Senior Divisional Operations Manager, East Coast Railway,
Sambalpur, PO-Modipara, Dist-Sambalpur, at present residing at Qrs.
No. AC/17/1, Railway Colony, Sector-D, PO-Khetrajpur, Dist-
Sambalpur, Odisha, Pin-768003.
......Applicant
VERSUS
1. Union of India, represented through Executive Director (ERP), Rail
Bhavan Railway Board, Raisina Road, New Delhi-110001.
2. General Manager, East Coast Railway, Bhubaneswar, Rail Sadan, 1st
Floor, South Block, PO-Chandrasekharpur, Bhubaneswar, Dist-
Khorda, Pin-751017.
3. Principal Chief Personnel Officer, East Coast Railway, Bhubaneswar,
Rail Sadan, 2nd Floor, South Block, PO-Chandrasekharpur,
Bhubaneswar, Dist-Khorda, Pin-751017.
4. Sri Umesh Singh, Ex- General manager, East Coast Railway,
Bhubaneswar and Notice to be served in his post-retirement address
through Principal Chief Personnel Officer, East Coast Railway,
Bhubaneswar, Rail Sadan, 2nd Floor, South Block, PO-
Chandrasekharpur, Bhubaneswar, Dist-Khorda, Pin-751017.
......Respondents.
For the applicant : Applicant in person.
For the respondents: Mr. K. C. Kanungo, counsel
O.A. 643.2019
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Heard on : 27.08.2021 Order on :29.10.2021
Per: Mr. Swarup Kumar Mishra, Member (J)
The applicant has filed the present OA under Section 19 of the Administrative Tribunals' Act, 1985 seeking the following reliefs :
i. To quash the orders dtd. 16.11.2018, 08.02.2019 and 12.04.2019 under Ann. A/17, A/21 and A/23 respectively and direct Respondent No. 2 to pass fresh revisionary speaking order in accordance with the spirit of SCPD's order under Ann. A/16 series within a short stipulated period, since it is not in accordance with the spirit of the order of SCPD, which subsists at present and not superseded by any other higher court/authority; ii. Direct the General Manager to take decision on applicant's pending medical fitness by Railway Medical Authority (AMO) of DRH, Sambalpur on the basis of requisite Medical fit certificate of SVNIRTAR dated 30.12.2012 under Ann. A/3 series to facilitate drawal of his salary for the Hospital leave and deemed duty period as well as reimbursement of his cost of treatment and cost of artificial limb pending since 01.11.2012 in view of nearing superannuation from service of the applicant on 31.10.2019. iii. Direct higher railway administration in Railway Board, New Delhi to initiate disciplinary action against Respondent No. 4 in terms of Railway Boards letter Nos. E (D&A) 94 RG6- 87 dated 23.01.1995 & No. 99/V- 1/CVC/1/9 dated 13.07.1999 for passing order under Ann. A/17 intentionally in view of his approaching superannuation from service within short date, completely against the spirit of SCPDs order under ann A/16 series without obtaining prior approval of Railway Board and further victimizing the applicant without releasing any financial benefit to him in spite of his pending salary/pension for last 07 (seven) years.
iv. To provide costs of this application in favour of the applicant. v. And pass any other order/directions as this Hon'ble Tribunal may deem fit and proper in the interest of justice.
2. The brief of the case as submitted by the applicant is that while working as Office Superintendent (OS1) he was served with charge memo dated 05.11.2009. The applicant submitted that he had sought relevant documents vide letter dated 24.11.2009 but it was not given to him. The applicant had challenged the authority of Sr. DOM to act as DA vide letter dated 28.11.2011 O.A. 643.2019 3 which was not disposed off. Thereafter the applicant was removed from service vide order dated 15.10.2012. The applicant submitted that the inquiry was done ex parte and punishment was imposed without communicating inquiry report to him. The applicant submitted a representation to appellate authority vide 23.11.2012 to set aside the disciplinary proceeding which was rejected vide order dated 04.01.2013. The applicant thereafter submitted a revision petition against punishment with request to refer it to Railway Rates Tribunal (RRT), Chennai for advice. The applicant submitted that the RRT had furnished advice to GM observing no misconduct rendering removal order invalid in law. The GM vide order dated 19.08.2013 reduced the punishment to compulsory retirement. The applicant thereafter submitted a review petition to President under Rule 25 (A) of RS (D&A) Rules 1968 which was disposed of as not maintainable. The applicant submitted that he had submitted a complaint before State Commission for People with Disability Odisha under section 47 & 62 of PWD Act, 1995 against punishment during disability. The SCPD passed order directing the applicant to approach CAT/High court. Applicant. The applicant submitted that he had filed WP (C) No. 22458/2016 challenging all the disciplinary orders including order of SCPD. Hon'ble High Court vide order dated 03.01.2018 set aside the order of the SCPD and remanded back the matter to pass order on merit. The applicant submitted that the SCPD Odisha passed order in applicants favour and directed GM to pass order afresh as per advice of RRT. The applicant submitted that GM, ECoR BBS passed unlawful order dated 16.11.2018 in compliance of SCPD order but it was against the order of SCPD & advice of RRT. The applicant submitted that he filed representation dated 13.12.2018 to GM/ECoR for review of order dated 16.11.2018 which was rejected by PCPO as not required. The applicant submitted that he had filed Contempt Petition No. 573/2019 against SCPD & GM/ECoR which was dropped with direction to the applicant to approach appropriate forum if aggrieved by the observation in the order. Hence the OA.
O.A. 643.2019 4
3. The respondents in their counter inter alia averred that applicant was transferred from Sambalpur to Titlagarh vide order dated 28.03.2008. The applicant received the transfer order on 31.03.2008 and appeared before the Railway medical authority on 03.04.2008 for replacement of B K Prostheis Rt. and was referred to SVNIRTAR, Oltapur for replacement of the same. The applicant after necessary remedies resumed duty on 04.06.2008. The respondents submitted that taking advantage of his sick period the applicant had filed OA No. 197/2008 challenging his transfer order. This Tribunal vide order dated 15.05.2008 had stayed his transfer as an interim measure and had disposed of the OA directing the respondents to reconsider retention of the applicant at Sambalpur keeping in view DOPT OM dated 10.05.1990 and not to disturb the applicant until issuance of final order. Respondents submitted that in pursuance to the Tribunal order dated 15.05.2008, the competent authority issued a speaking order dated 23.09.2009 explaining the reason for non applicability of DOPT Om dated 10.05.1990 as he was not recruited by RRB against the quota of PWD. The applicant was issued release order on 12.10.2009 with advice to the applicant to report for further duty. The respondents submitted that the applicant, in order to avoid aforesaid release order of transfer from Sambalpur to Titlagarh, did not turn up in office on 2nd half of 12.10.2009 and sent an application from his quarter on 13.10.2009 for sanction of 2 ½ days CL from 12.10.2009 to 14.10.2009 and 21 days leave on average pay from 15.10.2009 to 04.11.2009 in the pretext of his mother sickness. The respondents submitted that since the request for leave was not admissible under statutory provisions of leave rules enumerated in Indian Railway Establishment Code Vol. I, the sanctioning authority rejected it and the same was communicated to the applicant over phone by Chief Office Supdt and advised to resume office and apply LAP. The applicant did not join duty on 15.10.2009 and remained on unauthorized absence from duty for which the disciplinary proceeding was initiated against him.
O.A. 643.2019 5
4. The respondent further submitted that the applicant moved a contempt petition vide CP No. 59/2009 which was disposed of by this Tribunal vide order dated 19.01.2010 directing the applicant to file an application for transfer and for consideration of the said representation within 45 days of its receipt. The respondent submitted that the applicant did not comply with the said order and challenged the order as well as few other orders including the transfer order in WP (C) No. 3514/2010 before Hon'ble High Court. Hon'ble High Court vide order dated 23.02.2010 asked for status quo to be maintained with regard to present posting of the applicant till next date. But since the applicant was already removed from service by a major penalty on 05.11.2009, the stay in transfer order became infructous.
5. Heard the applicant in person and learned counsel for respondent through VC, gone through the records and citations relied by them.
6. The case of the applicant in brief is that on 16.04.1984 he joined in Indian Railway as asst. Station Master and in November 1999 he was promoted to the post of Station Master and thereafter to post of Deputy Station Superintended. On 9.12.2019 he met with an accident and lost his right leg below knee for which he have been declared as medially decategorized and was appointed as Office Supdt II on 20.10.2000. On 01.11.2003 he was promoted to the post of OS I which post was redesignated as Chief OS in the year 2010. Vide memorandum dated 05.11.2009, major penalty chargesheet was issued to him. At the conclusion of DP the applicant was imposed the punishment of removal from service vide order dated 15.10.2012. On 23.11.2012 the applicant submitted representation against the disciplinary inquiry proceedings initiated against him. According to him the order of punishment dated 15.10.2012 was communicated to them by registered post on 13.12.2012. Vide order dated 04.01.2013 appellate authority considered the representation of the applicant dated 23.11.2012 and upheld the order of punishment. On 22.01.2013 applicant submitted revision petition to GM against punishment with request to refer it to RRT, Chennai for advice. According to the applicant O.A. 643.2019 6 the Railway Rates Tribunal (RRT) vide letter dated 03/04.06.2013 advised to GM observing no misconduct, rendering removal order invalid. The GM, ECoRly Bhubaneswar modified the order of removal to that of compulsory retirement vide order dated 19.08.2013. On 04.09.2013 applicant submitted review petition against the order of GM dated 19.08.2013. The review petition was dismissed on 26.06.2015. He submitted another petition 24.08.2015 before State Commission of People with Disability (SCPD) Odisha and the SCPD intimated the applicant to take shelter before appropriate court of law. Thereafter he filed WP (C) No. 22458/2016 before Hon'ble High Court of Orissa and Hon'ble High Court vide order dated 03.01.2018 set aside the order of SCPD dated 20.09.2016 and remanded the matter to SCPD for consideration on merit. Railway filed writ appeal No. 195/2018 against the order of Hon'ble High Court dated 03.01.2018. On 22.09.2018 the SCPD Odisha directed the GM to pass order afresh as per advice of RRT. On 16.11.2018 the GM railway passed order in compliance of order of SCPD Odisha. On 13.12.2018 applicant submitted representation to the GM, ECoR for review of his earlier order. On 26.12.2018 applicant submitted another representation to GM praying for sanction of Rs. 20 lakhs towards his pending salary/pension. On 08.02.2019 the representation dated 13.12.2018 was rejected. On 20.03.2019 applicant submitted a complaint petition against one officer of railway which was considered and rejected by the GM on 12.04.2019. The writ appeal no 195/2018 filed by the railway was disposed on 31.07.2019 for being infructuous.
7. The memorandum of charge issued against the applicant is extracted below:
"Statement of imputation of misconduct and mis-behaviour in support of the article of charge framed against Shri Jaychandra Mishra, OS - I under Sr. DOM/SBP.
Article I O.A. 643.2019 7 That Shri Jaychandra Mishra, OS-I under Sr. DOM/SBP while working as OS-I under Sr. DOM/SBP has committed severe misconduct by absenting himself rom 2 nd half of 12/10/2009 to till date i.e. 04/11/2009. Shri Mishra on 13/10/2009 sent an application for 2 ½ days CL through a staff of DPO office SBP and was intimated by Shri Barla over cell phone that application for 2 ½ days CL from 2nd half of 12/10/2009 to 14/10/2009 been regretted, still he did not turn up for duty. Such unauthorized absent on the part of an Office Superintendent is highly irregular & shows lack of devotion to duty.
By his above acts Shri Jaychandra Mishra, OS-I under Sr. DOM/SBP failed to maintain devotion to duty and acted like unbecoming of a Railway Servant in contravention of Rule 3-1 9ii) & (iii) of the Railway Service Conduct Rules 1966 and thereby rendered himself liable for disciplinary action under Railway Servants (D&A) Rules 1968.
8. The relevant portion of the order of the disciplinary authority dated 15.10.2012 is extracted below:
I have read the case file and gone through all the facts and relevant documents. On perusal it is found that the memorandum of charges was issued to the C.O. on 05.11.2009 and was duly acknowledged by him on 16.11.2009. The C.O. has been given reasonable opportunity of submitting his representation. The depiction of details of various correspondences clearly establishes this and is given as under :
The major penalty Charge-sheet was served on 16.11.2009 and CO demanded some documents vide his representation dated 24.11.2009.
The representation made by C.O. vide letter dated 02.07.2010 regarding power of DA was disposed off by DRM clearly stating that no change in DA can take place as it is in accordance with statutory provision of D&A rules.
Further, the clarification and relevant documents in respect to representation was provided to C.O. vide letter No. DOM/SBP/D&A/Optg/JCM/OS-I/10 Dt. 31.12.2010 and thereafter C.O. has given no representation till 20.09.2011.
To meet the ends of natural justice another chance was given to CO to submit his defence representation, if any, within 10 days vide Letter No. O.A. 643.2019 8 Sr.DOM/SBP/D&A/Optg/JCM/OS/Optg/11 Dtd. 2009.2011. which was received by Shri J.C.Mishra on 21.10.2011. he submitted an appeal challenging the power of Sr.DOM which was not entertained and treated as frivolous in context of disposal of his earlier representation dated 02.07.2010.
After consideration of the representation Dtd. 30.09.2011, DA nominated Shri Fakir Minz, as I.O. to enquire into the case and submit his report in time vide No. Sr.DOM/SBP/D&A/Optg/JCM/OS/SBP/11 Dtd. 03.11.2011, which was acknowledged by Shri Mishra on 04.121.2011.
On Dtd. 08.11.2011 Shri Mishra submitted an appeal to the DRM for review of power of DA, which was disposed off by DRM on 21.11.2011 stating that nothing new has been found in his representation and that Shri Mishra has been wasting time of administration by making such representations.
On Dtd. 16.02.2012 Shri Mishra submitted another appeal to GM/HQ/BBS for passing ad interim order of stay on D&A inquiry proceedings initiated by Inquiry Officer and AOM (G)/Sambalpur against major penalty charge sheet, which was disposed of by CPO vide Letter No. ECoR/Pers/NG/D&A/Appeal/JCM/363 Dtd. 29.05.2012 and the same was received by Shri Mishra on 12.06.2012. The disposal stated that there is no provision of ad interim stay order in D&AR proceeding and that his allegations against DRM and Sr.DOM are baseless and have no bearing on the case.
After completion of inquiry I.O. Shri F.Minz, AOM(G) submitted his report, vide No. AOM(G)/SBP/D&A/Optg/JCM/OS/12 Dtd. 17.05.2012, which was accepted by DA and inquiry report was supplied to CO for submission of his final defence statement vide No. Sr.DOM/SBP/D&A/Optg/JCM/Ch.OS/SBP/12 Dtd. 21.05.2012.
After receiving the same on 21.05.2012, C.O. submitted his representation/objection Dtd. 31.05.2012.
Considering the final defence statement of Shri Mishra, the DA ordered to conduct de- novo inquiry on grounds of unintentional procedural error during previous proceeding and nominated Shri F.Minz as I.O. vide No. Sr.DOM/SBP/D&A/Optg/JCM/Ch.OS/12 Dtd. 16.06.0212.
During inquiry Shri Jaya Chandra Mishra appealed dtd. 24.07.2012 to DA for chance of Inquiry Officer, which was disposed off by DA vide Letter No. Optns/SBP/N&I/JCM/RR/12/1 Dated 03.08.2012.
O.A. 643.2019 9 Shri Mishra again appealed to the Revisionary Authority i.e. COM/BBS for change of Inquiry Officer and the same was disposed off vide Letter No. ECoR/Optg/D&AR/JCM/Ch.OS/SBP dtd. 03.09.2012 stating that Shri Mishra is indulging in dilatory tactics to delay the proceedings.
In the course of inquiry, apart from the preliminary D&A inquiry sitting which was attended by C.O. on 04.07.2012 and in which he had stated that "Yes, presently I am ready for regular D&A inquiry", three more sittings of D&A inquiry was fixed and none were attended by C.O. despite receiving inquiry notice for the same. Thus I.O. was forced to complete ex parte inquiry report.
Shri F.Minz, I.O. after completion of inquiry afresh submitted his report dtd. 08.09.2012 to the DA. The inquiry report was accepted and C.O. was asked to submit his final defence statement vide No. Sr. DOM/SBP/D&A/Optg/JCM/Dtd. 10.09.2012 with enclosure of inquiry findings.
As C.O. was on RMC from 21.08.2012, all the care has been taken to serve the Letter to Shri Jaya Chandra Mishra for submission of final defence statement and Letters were posted through registered post to his present Railway Quarter, Hospital Olatpur/Cuttack and permanent home address but were returned undelivered. The entire undelivered registries are available in the case file.
To further ensure that reasonable opportunity has been given to submit his representation a special messenger Shri A.P.Mishra, DTI/Planning was deputed accompanied with two staff to Railway Quarter of Shri Mishra for serving the inquiry report but was undelivered due to circumstances and following remarks is passed on the letter:
"As I am deputed to Shri Jaya Chandra Mishra, Ch. O.S/Optg in his Railway quarter address, vide above mentioned letter No. of dtd. 25.09.2012, I along with two witnesses (as mentioned above) proceeded to his Railway quarter on dtd. 25.09.2012, time 16.15 hrs., on pressing the calling bell, one lady came out and gave her identity as wife of Shri J.C.Mishra. I asked her to receive the above mentioned documents, but she refused and also did not allow us to paste them on the wall of the quarter. When asked about his whereabouts, she stated that he is at Olatpur on R<C for artificial limb and also stated that there is no certainty about his return".
Yet again as the enquiry report was neither received by his family O.A. 643.2019 10 members nor allowed to be pasted on his house, a letter containing enquiry report also sent through registered post to the Railway Quarter of Shri Mishra and was also returned undelivered to this Office. Thus as per provisions of D&A rules it was deemed to have been served.
In the meantime on Dtd. 27.09.2012 a discharge memo was received from Railway Hospital that due to absence, Shri Mishra has been discharged on 18.09.2012 and Letter No. Sr.DOM/SBP/D&A/Optg/JCM/Ch.OS/12 Dtd. 10.09.2012 for submission of final defence was pasted on the notice board of Sr.DOM's Office in presence of two staff as witnesses.
Thus an analysis of the facts of the case and correspondence between CO and Railway Administration, it becomes amply clear that right from the beginning there has been a deliberate attempt on part of C.O. to delay the disposal of case by way of making representation against DA inquiry officer as well as DRM. The same were appropriately disposed off at various levels.
During the course of enquiry it may be seen from records that out of a total 9 nine sittings conduct he attended only one sitting on 04.07.2012 i.e. preliminary inquiry sitting. The negative and non-co-operative attitude of C.O. has led to delay in finalization of case. Despite the best efforts of the administration to ensure his participation in enquiry, he remained elusive on one account or the other. Further even after best efforts of Railways to elicit a response from C.O. as per rules, the C.O. has not made any correspondence with Railway Administration since 21.08.2012, when he was referred to Olatpur Hospital on RMC, till date, though he has been discharged from Railway Hospital since 18.09.2012. Thus on the whole it is concluded that C.O. has adopted a deliberate non-co-operative attitude and a tactics of casting aspersions on DA, DRM and Inquiry Officer from time to time as a part of his dilatory strategy. He has been given reasonable opportunity of being heard and his various representations at various stages have been appropriately disposed.
In absence of his active co-operation in conducting inquiry the I.O. was forced to conduct ex parte enquiry. The ct of C.O. for remaining absent from 2nd half of 12.10.2009 to 04.11.2009 even after his leave application was regretted and the same being communicated to him over phone by Ch.OS Shri Barla is a grave misconduct and shows clear lack of devotion to duty. Such uncalled for act by a senior staff of OS-I grade sets a bad precedent for junior staff and vitiates the working environment of office. This extremely improper action of C.O. in the long run would O.A. 643.2019 11 lead to utter dilution of discipline, hierarchy and chain of command. This would adversely affect the functioning and efficiency of the department.
In view of grave and long term ramification of ignoring such act of indiscipline, DA is of the considered view that such staff should be kept as far as possible from the office environment, so that order, decorum and discipline of the office is not shattered. Thus after pondering over all the facts, circumstances, statements, records and deliberate non-co-operation attitude of C.O. to participate in the enquiry proceeding, the undersigned is compelled to take an ex parte decision and a punishment of removal from Railway service with benefits of compassionate allowance as per extant rules is imposed.
9. The appeal dated 23.11.2012 of the applicant to the appellate authority is extracted below:
"most humbly the following few facts are brough to you kind notice for needful orders since Disciplinary proceedings initiated against me as stated above are not conducted as per Railway Board's guidelines by the authorities of Operating Department of Sambalpur Railway Division.
2. That vide my above referred representation dated 24.07.2012 quoted under item (i) I requested the Disciplinary Authority and sr. DOM/SBP to replace the inquiry officer on the ground of bias as the activities of inquiry officer on 20.07.2012 was prejudicial to the charged official. The copy of the above representation was also submitted to the inquiry officer on the same date.
3. The Railway Boards letter No. E(D&A) 70 RG 614(1) dated 19.06.1974 para 2 is reproduced below for your kind information please.
"The matter was discussed and ultimately it was agreed that though there was no provision in the D&A rules for filing an appeal against the order appointing a person as an Inquiry Officer, in a disciplinary proceeding, such an order could, nevertheless be reviewed under the said Rules. It was accordingly decided that whenever an application is made by a railway servant against whom disciplinary proceedings are initiated under the Railway Servant (Discipline and Appeal) Rules, 1968 against the inquiry officer on grounds of bias, the departmental proceedings should be stayed and the application of the delinquent along with the other relevant material forwarded to the appropriate reviewing authority specified in Rule 25 of Railway Servants (Discipline and Appeal) Rules 1968 for considering the application and O.A. 643.2019 12 passing appropriate orders thereon expeditiously. The above guidelines was reiterated vide Master Circular 67 para 13 under subject important points to be kept in view by the disciplinary/appellate/revisionary authorities and inquiry officers while handling disciplinary cases and also reiterated vide Indian Railway Vigilance Manual, Chapter 9 para 903. Moreover vide GM/ECoR/BBS's office letter No. ECoR/GA/Secy/policy/1394 dated 30.03.2012 addressed to all PHOD and CHODs and all DRMs - WAT, SBP, KUR under subject "important points -DOSs and DONTs for Inquiry Officer" was also circulated. Vide para 4 of the above mentioned GMs office letter under the item "Do Not" it is clearly instructed to the inquiry officers "do not continue with proceedings if a representation of the charged official alleging bias against the inquiry officer is pending consideration". But in spite of all such instructions in force and their availability in SR. DOMs office at Sambalpur, the Disciplinary Authority and Inquiry Officer did not stay the proceedings and allowed continuation of the proceedings.
4. That the disciplinary authority should have stayed the disciplinary proceedings immediately after receiving the representation from the charged official against inquiry officer on grounds of bias and forwarded the petition to revisionary authority with all relevant materials for consideration and disposal. But the disciplinary authority instead of staying the disciplinary proceedings and forwarding the representation to revisionary authority, in complete violation of all the above guidelines disposed of the application himself, which he is not competent to do and communicated the disposal of representation vide letter dated 03.08.2012 which was received by the applicant on 08.08.2012, the very day of ex parte inquiry fixed. As per above guidelines only Revisionary authority is competent to dispose of the representation where allegation of bias against inquiry officer is raised by the charged official. The above action of disciplinary authority is illegal, bad in law and liable to be set aside.
5. That after receipt of such an unlawful order from Sr. DOM/SBP the charged officer was forced to submit appeal to the Revisionary Authority and COM/ECoR/BBS on 10.08.2012 through proper channel enclosing copy of the Railway Boards letter dated 19.06.1974 to dispose of the representation alleging bias against the inquiry officer. Subsequently as per referral letter dated 21.08.2012 by CMS/ECoR/SBP and keeping under RMC Sick for replacement of artificial limb the applicant remained under treatment at NIRTAR, Olatpur, Cuttack from 23.08.2012 to 30.10.2012 (copy enclosed). The applicant reported before concerned Railway Doctor at SBP on 01.11.2012 for certification of fitness to resume duty and still awaiting fitness from medical department, Sambalpur. Further his representation dated 02.11.2012 to CMS/SBP for certification of fitness is also pending till date. In the meantime since the applicant was out of his headquarter of posting and kept under regular treatment O.A. 643.2019 13 at SVNIRTAR Olatpur, Cuttak from 23.08.2012 to 30.10.2012 as an outdoor patient, no communication regarding disposal of his representation to revisionary authority and COM/ECoR/BBS or any other official communication has been received by him and still awaiting it.
6. That conducting disciplinary proceedings ex parte by same inquiry officer and AOM(G)/SBP in violation of all above mentioned Railway Boards instruction needs examination whose earlier inquiry report in this case was set aside and fresh inquiry ordered even after acceptance by Disciplinary Authority due to procedural lapses pointed out by the charged official, and this time similar error reiterated.
Grounds for appeal.
Disciplinary proceedings were not stayed by the disciplinary authority and proceedings were allowed to continue even after receiving the representation dated 24.07.2012 from the charged official against nominated inquiry officer on grounds of bias which is in complete violation of Railway Boards letter No. E(D&A) 70 RG 614(10 dated 19.06.1974, Railway Boards Master Circular No. 67, para 13, Indian Railway Vigilance manual 2006, Chapter 9 para 903 and GM/ECoR's office letter No. ECoR/GA/Sec/Policy/1394 dated 30.03.2012.
The representation dated 24.07.2012 by the charged official alleging bias against inquiry officer was not forwarded to Revisionary authority for disposal and disposed of by the disciplinary authority himself vide letter dated 03.08.2012 received on 08.08.2012 who is not competent authority to dispose it. This was done in complete violation of Railway Boards letter No. E(D&A) 70 RG 614(10 dated 19.06.1974, Railway Boards Master Circular No. 67, para 13, Indian Railway Vigilance manual 2006, Chapter 9 para 903.
That the disciplinary proceedings should have been stayed till the disposal of representation dated 24.07.2012 by the Revisionary authority. The disciplinary authority should not have disposed of the representation himself, forcing the applicant to appeal again to revisionary authority vide representation dated
10.08.2012.
That the applicant have continuously tried to draw attention of the disciplinary authority and the inquiry officer regarding violation of above discussed railway boards instructions by putting remarks on the sparring notices delivered to him to attend inquiry proceedings dated 25.07.2012 and 08.08.2012 but every time these violations of rules were ignored by both of them.
O.A. 643.2019 14 Prayer Hence in the light of all of the above discussed facts, it is humbly prayed before you to set aside all the disciplinary proceedings conducted after representation to the disciplinary authority dated 24.07.2012 on grounds of bias against inquiry officer by the applicant till date (since no communication has been received rom Revisionary authority till date), and because the disciplinary proceedings conducted were illegal and in violation of Railway Boards letter No. E(D&A) 70 RG 614(10 dated 19.06.1974, Railway Boards Master Circular No. 67, para 13, Indian Railway Vigilance manual 2006, Chapter 9 para 903 and GM/ECoR's office letter dated 30.03.2012"
10. The relevant portion of the order of the appellate authority dated 04.01.2013 is extracted below:
"I have gone through the entire case file. The major penalty memorandum pertains to the memorandum dtd. 16.11.2009. The departmental proceeding could be finalized after a long gap of about 03 years on 15.10.2012 at disciplinary authority level. Records on case reveal that charged officer is mostly responsible for such an inordinate delay in finalization of the case. The charged officer has concentrated more on probable procedural lapses instead of availing opportunities for defending the charges. The charged officer had resorted to numerous representations at different stages and seeking its disposal as pre conditions for further proceedings. His representations had been disposed off at different levels including from the apex level of ECoR i.e. GM. Timely disposal of departmental proceeding is defeated. It is mostly on account of wrong perception of charged officer on procedural lapses and biasness. It could also be due to intentional dilatory tactics on part of charged officer to delay the proceeding on issues other than merit or demerit of the charges.
I find disciplinary authority has followed all the procedure laid down in finalizing the proceeding. The disciplinary authority has issued punishment order examining all the relevant facts and with reasoned speaking order.
Further, I have examined the contents of the appeal as well. My reasoning and decision on the appeal is as under:-
The disposal dated 25.05.12 on the representation of CO from the apex level i.e. one of the defined Revisionary Authority under ule 25 may be noted. In his verbatim order, the Revisionary Authority had categorically authorized DA to decide on change of IO.
O.A. 643.2019 15 With the powers bestowed upon by above orders, the Disciplinary Authority is empowered to dispose the representation dt. 24.7.12 on behalf of revisionary authority. Therefore no stay is warranted in terms of guidelines highlighted in the appeal. The DA has also deliberated adequately in the disposal that grounds of bias represented for changes is not justified.
Not satisfied with disposed, the CO had made further representation to the COM on change of inquiry officer. Proceeding was held in abeyance till disposal on 03.09.12, though keeping the proceedings in abeyance was not warranted. It was perhaps done to provide further opportunity to clear any apprehensions of the charged officer. Unfortunately the authority did not find basis on charging the inquiry officer and disposed off accordingly.
The stay of proceedings was not required at any stage as per the guidelines as explained above. The contention in the appeal therefore is baseless.
The records available in the office reveal that charged officer was referred for medical treatment as outdoor patient. The CO had not provided the office his address during the out patient treatment. Therefore for all communications and deemed communications, procedure had been followed to communicate requisite correspondences at his last known official address. The official physical communications at his residences had been refused by one of the occupants. Therefore the communications are deemed served for all official purposes.
The departmental proceedings were carried out duly disposing off all his intervening representations with proper speaking orders. There is no procedural lapses as apprehended by the charged officer. Grounds of bias on inquiry officer represented by charged officer does not carry weight, as disposed off at negative terms at all levels.
The grounds of appeal as highlighted by the CO are not found convincing to set aside the punishment either on procedural lapses or on merit of the case.
I uphold the punishment of removal as ordered by disciplinary authority."
12. The relevant portion of revision appeal dated 22.01.2013 of the applicant to the revisionary authority is extracted below:
"3. That this revision application essentially challenges the basic necessity of furnishing a major penalty charge memorandum dated 05.11.2009 to the O.A. 643.2019 16 applicant/charged official (in short CO), the flagrant violations of Railway Servants (Discipline and Appeal) Rules (in short RS(D&A) Rules) and instructions issued there under, the notice imposing punishment (in short NIP) dated 15.10.2012 and the reasoning mentioned by the appellate authority (in short AA) in the order dated 04.01.2013, thereby ratifying the action of the disciplinary authority (in short DA) and inquiry officer (in short IO) leading to upholding of punishment.
4. FACTS OF THE CASE XXXXXXXXXXX
5. That this application is therefore filed for upholding rule of law and principles of natural justice inter alia on the following grounds:
GROUNDS Because the order dated 15.10.2012 by DA and the order dated 04.01.2013 by the AA being the end result of an illegal disciplinary proceedings are liable to be set aside.
Because CL application to which no other leave rules are applied (IREC Vol I, Rule 236) was rejected without any reason.
Because leave application dated 15.10.2009 was rejected without any reason which was in violation of RBE No. 133/2001 and RBV No. 13/2003.
Because the applicant sought leave at a time when his mother was ailing, no official duty was entrusted to him, no official work was pending with him and sufficient leave was available in his credit as evident from Annexure 3.
Because the relevant documents like the copy of leave applications dated 12.10.2009 and 15.10.2009, the telegram dated 03.11.2009 and the note sheet as mentioned in para 4.9 of this letter were not enlisted under list of documents to the charge memorandum. The note sheet dated 15.10.2009, copy of telegram and note sheet as per para 4.9 were also not supplied when the applicant/CO asked for all relevant document through application dated 24.11.2009.
Because the note sheet dated 15.10.2009 was prepared antedated i.e. before the receipt of leave application dated 15.10.2009 in the office of DA which renders it to be illegal.
O.A. 643.2019 17 Because the telegram dted 03.11.2009 requesting for extension of LAP that was received in the office of DA on 04.11.2009 went missing suddenly from the custody of DA and Sr. DOM/SBP when its copy was sought through RTI Act.
Because Sr. DOM/SBP is directly involved in this case and hence cannot act as DA as per para 19 (viii) of Master Circular No. 66 and para 2(e) of Master Circular No. 67 issued by Railway Board.
Because disciplinary proceedings were not stayed by the DA and proceedings were allowed to continue after receiving the representation dated 24.07.2012 from the applicant against IO on grounds of bias. This is in complete violation of Railway Boards letter No. E(D&A) 70 RG 6-14(1) dated 19.06.1974, Railway Boards Master Circular No. 67 para 13 and Indian Railway Vigilance Manual 2006, Chapter 9 para
903.
Because the representation dated 24.07.2012 by the CO alleging bias against IO was not forwarded to the Revisionary Authority for consideration and was disposed of by the DA, who is not competent authority to dispose it as per Railway Boards letter No. E(D&A) 70 RG 6-14(1) dated 19.06.1974, Railway Boards Master Circular No. 67 para 13 and Indian Railway Vigilance Manual 2006, Chapter 9 para 903.
Because the disciplinary proceedings should have been stayed till the disposal of representation dated 24.07.2012 by the Revisionary Authority. The Disciplinary Authority should not have disposed of the representation himself, forcing the applicant to appeal again to revisionary authority vide representation dated 10.08.2012.
Because the applicant have continuously tried to draw attention of the DA and IO regarding violation of extant rules and Railway Boards instruction by putting remarks on the sparring notices delivered to him to attend inquiry proceedings dated 25.07.2012 and 08.08.2012, but every time these violations were ignored by both of them though IO endorsed the remarks in the daily order sheets on these dates.
Because the IO did not abide by the instructions circulated from the office of GM/ECoR/GA/Secy/Policy/1394 dated 30.03.2012 wherein it has been instructed not to continue with inquiry proceedings pending consideration of appeals alleging bias against IO. The IO went ahead with inquiry proceedings on 25.07.2012 and 08.08.2012.
O.A. 643.2019 18 Because there has been several violations of principles of natural justice vitiating the entire disciplinary proceedings. Many communications like copy of inquiry report were sent through posts and person to the official residence of the applicant when the applicant was under RMC sick and undergoing treatment far away from headquarters with due referral from Medical Department and in the knowledge of the office of DA.
Because when a railway servant is under RMC sick and referred out of headquarters for medical treatment, he is neither considered to be as fit nor expected to deliver his duties in his official capacity.
Because the applicant has never received the revisionary authority's disposal order with respect to his appeal dated 10.08.2012.
Because the applicant has not received the final inquiry report and hence could not submit his final defence statement.
Because NIP was prepared in absence of final defence statement from the applicant.
Because the removal of the applicant during his treatment period likely to be regularized as hospital leave is illegal. Earlier when the applicant had undergone treatment from 09.04.2008 to 02.06.2008, the period has been sanctioned as hospital leave as per railway board guidelines.
Because the order dated 15.10.2012 and 04.01.2013 are illegal and bad in law.
Because the appellate authority has interpreted a verbatim order of GM/ECoR/BBS in his own way, which he is not competent to do and which is in violation of Rule 30 of RS(D&A) Rules 1968.
Because the orders and instructions issued by Railway Board with respect to disciplinary matters are supreme and cannot be changed by any other Railway Official (irrespective of rank) other than railway board or President.
Because the seal and letter no. of the order of AA dated 04.01.2013 pertains to different offices. This put a question mark on the legitimacy of the order dated 04.01.2013. It also shows that the AA has not applied his mind to the facts and circumstances of the case and acted in an arbitrary manner in passing the order mechanically.
O.A. 643.2019 19 Because the applicant/CO was not allowed a personal hearing before the AA as per Rule 24 (1) of RS(D&A) Rules.
Because conceding for a moment but not admitting that even all the charges against the applicant/CO has been proved, still then imposition of such a stiff major penalty of removal from service is extremely harsh, disproportionate and shocking to the conscience as per the facts and circumstances of the case. This will ruin the entire family of the applicant without committing any negligence or offence.
6. That the applicant had made an appeal before the appellate authority but to no avail and hence is constrained to invoke the jurisdiction of your good office. It is requested to refer the case to the Chairman, Railway Rates Tribunal for advice before disposal of the Revision Petition."
11. The relevant portion of the RRT advise dated 03.06.2013 is extracted below:
"We have carefully perused the charge memorandum, the oral and documentary evidence, the report of the enquiry officer, reply of CO, orders passed by DA, AA, grounds of appeal and also the revision.
In this case the CO was charged for unauthorized absence from duty amounts to failure of devotion to duty and behaviour unbecoming of Railway Servant Absence from duty without any application or prior permission may amount to unauthorized absence, but does not always means wilful. There may be different reasons due to which an employee may absent from duty including compelling circumstances beyond his control like his illness or illness of his family members, accident, hospitalization etc, but such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a railway servant. It is admitted by the administration that the CO has submitted two necessary leave application - one for 2 ½ days CL and another one for 20 days LAP. In both the leave applications the CO has mentioned the reasons that his aged mother was seriously ill and hospitalized. The administration failed to mark the said two leave applications before the EO, but chosen to mark only the abstract of attendance register in which absent for all the above days in dispute.
The question whether unauthorized absence from duty amounts to failure to maintain devotion to duty or unbehaviour unbecoming of a govt servant cannot be decided without the question whether the absence was wilful or because of O.A. 643.2019 20 compelling circumstances. If the absence was the result of compelling circumstances in which it was not possible for the CO to peform duty, such absence cannot be held to be wilful. Even the sole prosecution witness examined before EO has deliberately failed to mention the reasons assigned by the CO in the leave application. EO also failed to call for the leave applications submitted by the CO. in a departmental proceeding if allegation of unauthorized absence from duty is made, the DA is required to prove that the absence is wilful, in the absence of such finding the absence will not amount to misconduct. In this case the EO in appreciation of evidence though held that the CO was unauthorizedly absent from the duty for a period of 22 ½ days but failed to hold the absence was wilful.
In the case on hand the DA failed to prove that the absence from duty was wiful, no such finding has been given by EO.
The CO has taken a specific defence that he was forced to attend his aged mother who was seriously ill and critically ill and hospitalized that made him to apply for CL and LAP to attend her, but such valid defence and evidence were ignored. Though the above said facts were noticed by the AA, but ignoring such facts giving reference of extraneous allegations that the CO has challenged the appointment of EO, questioned the DA's competency to act as DA, delayed the DAR proceedings which were not the part of the charge, upheld the order of removal from service mechanically.
It is also necessary to mention that CL is not a recorded leave and a Railway Servant on CL is not to be treated as absent form duty.
As far as LAP is concerned, the same should not be ordinarily be denied to any employee, especially in the last 10 years of his career as per Railway Board Circular No. RBE 133/2001 dated 31.7.2001.
For the said reasons we are of the considered view that the punishment of removal from service is not valid in law.
Advise accordingly.
12. The relevant portion of the revisionary authority order dated 19.08.2013 after taking into consideration the advise of RRT is extracted below:
O.A. 643.2019 21 Disciplinary proceedings under Rule-9 of the Railway sErvants (D&A) Rules, 1968 were initiated against Shri J.C.Mishra, OS-I/Optg/SBP(CO) by Sr.DOM/SBP (DA) vide major penalty Charge memorandum No. Sr.DOM/SBP/D&A/Optg/JCM/OS-I/09 dated 05.11.2009 fro the following charges :
"That Sri J.C.Mishra, OS-I under Sr.DOM/SBP while working as OS-I under Sr.DOM/SBP has committed severe misconduct by absenting himself from 2 nd half of 12.10.2009 to till date i.e. 04.11.2009. Such unauthorized absent on the part of an Office Superintendent is highly irregular & shows lack of devotion to duty.
By his above acts Sri J.C.Mishra, OS-I under Sr.DOM/SBP failed to maintain devotion to duty and acted like unbecoming of a Railway servant in contravention of Rule 3.1 (ii) & (iii) of the Railway Services (conduct) Rules-1966 and thereby rendered himself liable for disciplinary action under Railway Servants (D&A) Rules, 1968".
2. Being the Revisionary Authority, I have gone through the entire case file of major Penalty Charge Sheet against Shri J.C.Mishra, OS-I/Optg/SBP, I've also gone through the "advice" rendered by the Railway Rates Tribunal. In addition to above, I had called Shri J.C.Mishra, and had given him a personal hearing on 6 th August, 2013 so that he gets a fair opportunity of personally representing his case and thee is no miscarriage of justice. Having gone through all the relevant papers, and after giving him personal hearing, my views are as follows :
History of the case :
Shri J.C.Mishra, OS-I/SBP was issued a SF-5 for unauthorized absence from duty from 2nd half of 12.10.2009 to 04.11.2009.
The charged Official (CO) has contended that he had applied for CL and subsequently for LAP; but the same was regretted and he had left headquarters without the applied for leave being sanctioned.
Meanwhile, after issue of SF-5, CO sent number of communications to Disciplinary Authority (DA) challenging his competency to act as DA but the fact remains that he did not submit his explanation to the SF-5 that was issued to him. DA thereafter appointed an Enquiry Officer (EO) whose competency was also challenged by the CO, CO's appeal against the DA and EO were rejected by the Competent Authority.
O.A. 643.2019 22 The CO had received communication from the EO to attend the inquiry but failed to do so despite number of chances being given to him. Subsequently, ex parte inquiry was held and charges were proved.
DA thereafter forwarded the EO's inquiry report to the CO who contended that day to day proceedings were not intimated to him and hence the inquiry report was not valid.
In order to meet the ends of justice DA ordered a fresh inquiry so that the CO gets a fair chance to represent his case and defend himself as per D&AR procedure.
Fresh inquiry was conducted and after examining the PWs, the EO again submitted his report to the DA.
After receipt of EO's inquiry report DA sent a copy of the report to the CO calling upon him to submit his reply. The same was returned back as "not available". Thereafter, the same was affixed at the Co's residence as per due procedure of D&AR.
No reply to the inquiry report was received from the CO.
Thereafter, DA passed orders for 'Removal from Service' with benefits of Compassionate Allowance as per extent rules.
Against the order of 'Removal from Service' CO had filed an appeal to the Appellate Authority (AA) which was dismissed by the AA.
CO had filed a revision application before the General Manager, the Revisionary Authority to refer the matter to RRT as per rule.
RRT's advice has since been received and they have opined that 'we are of the considered view that the punishment of removal from service is not valid in law'.
In keeping with the above 'advice' tendered by RRT, the punishment of 'Removal from service' has to be reviewed and a lesser punishment has to be imposed and as Revisionary Authority, General manager has to decide the quantum of lesser punishment that has to be imposed.
O.A. 643.2019 23 Discussion on the quantum of punishment :
To begin with, any kind of leave applied for cannot be taken for granted and no Railway employee can take the stand that once he has applied for leave he is at liberty to desert his working place and proceed on leave irrespective of whether it has been sanctioned or not. If font line staff of Railways, such as Drivers, ASMs etc. were to adopt this attitude, then the Railways would come to a grinding halt. Railways are in a position to provide 24x7 service throughout the year only because of a strict sense of discipline which is followed by all staff. This kind of brazen act of indiscipline cannot be condoned. After all, there can be any number of compelling reasons for the administration not to sanction an employee's leave.
If the CO's leave was not sanctioned by the Competent Authority and if the need was too pressing, then he should have approached the next higher authority and requested for leave. Railways like all other Government Organizations is hierarchical and an employee has the right to appeal to the next higher level or even the one above that in case of any pressing requirement. This the CO had not done.
The proper forum for proving his innocence or otherwise was the D&AR inquiry where he should have placed his case before the EO along with all supporting documents. Instead of doing that he had leveled all kinds of allegations against the DA & EO and refused to attend the inquiry even on a single day despite repeated intimations disciplined worker who refused to follow laid down D&AR procedure.
Be that as it may, the DA in order to give him full justice ordered for de-novo inquiry which the CO attended. But here again, he reverted back to his old self by neither receiving a copy of the Inquiry Report which was dispatched to his residence nor did he deem it fit to submit his explanation to the Inquiry Report. It cannot be CO's case that he will deliberately avoid participating in laid down procedure of D&AR by flouting the same and after the punishment has been imposed submit appeals to the AA and RA.
After receipt of the 'Advice' from RRT, Shri J.C.Mishra was given a personal hearing by me on 6th August. During the above hearing he was not at all repentant or apologetic about what he had done; in fact he wa defiant and arrogantly replied that whatever he had done was correct and the administration was merely being vindictive with him. This attitude of the CO was quite shocking.
An appeal can be considered sympathetically if the CO realizes his mistake and assures of not repeating the same in future; but here is a case where the CO even O.A. 643.2019 24 now is adamant that he had not done anything wrong and arrogantly states that his proceeding on unsanctioned leave was fully justified and he had a right not to reply to the D&AR inquiry report. The only point he kept repeating was that he was a handicapped person; as if that gave him the license to take the law into his own hands.
Since the CO has neither realized his own mistake nor is repentant of the same, there is very likelihood that he would repeat the same if taken back in Railway service. Moreover, it would set a bad example to numerous other hard working disciplined staff all of whom are following laid down rules and procedures in their day to day working.
In view of the above, the CO does not deserve to be shown much leniency. However, in keeping with the 'advice' rendered by RRT, I hereby reduce the punishment of 'Removal from Service' to 'Compulsory Retirement'.
The said Shri J.C.Mishra is required to acknowledge receipt of this order in writing.
13. The order of the Hon'ble President of India dated 26.06.2015 in response to applicant's appeal dated 04.09.2013 & 30.01.2014 is extracted below:
The President has carefully considered the review petition dated 4.9.2013 of Shri Jaya Chandra Mishra, retd. Office Superintendent-I (under Sr.DOM/SBP), East Coast Railway submitted under rule 25-A of Railway Servants (Discipline and Appeal) Rules, 1968 against the penalty of 'Compulsory retirement' imposed on him by the General Manager/ECoR in disciplinary case bearing No. Sr.DOM/SBP/D&A/Optg/JCM/OS-I/09 dated 5.11.2009, along with the case records.
2. As regards Shri Mishra's contention that the General Manager neither implemented the advice in letter and spirit nor did he seek approval of Railway Board to disagree with the advice of the RRT which is required as per the instructions of Railway Board, the President has observed that the advice of the RRT has been accepted by the Revising Authority who has reduced the punishment of 'removal from service' to that of 'compulsory retirement', which is distinct and lesser punishment under rule 6 of RS (D&A) Rules. Hence there is no question of differing with RRT advice and seeking approval of Railway Board.
O.A. 643.2019 25 2.1 With regard to the contention of the Petitioner regarding applicability of judgment of Hon'ble Supreme Court of India in Krushnakant B. Parmar case in this case, the President has observed that every disciplinary case has its own dynamics and issues and the Disciplinary Authority has to look at various issues before arriving at a final decision backed by should reasons and speaking orders. There cannot be a mechanical application of decision taken in one case to other cases. The President has thus held that this contention of Shri Mishra does not constitute a new evidence forming base for the review of the case.
2.2 As regards Shri Mishra's contention that the Revising Authority viz. The General Manager has not applied his own mind while passing the order dated 19.8.2013 and has simply put his signature on the order prepared by the officer of a lower ranking authority, the President has observed that after considering his case and after giving him a personal hearing on 6.8.2013, the Revising Authority had recorded his decision on the file on 14.8.2013 and the same was accordingly typed and signed by the General Manager/ECoR on 19.8.2013. The President has further observed that it is an accepted fact that the procedural matters of Disciplinary cases are facilitated by office of CPO on behalf of the competent authority. However, the application of mind and final decision rests solely with the concerned competent authority.
2.3 As regards withholding of petition dated 30.10.2012 submitted by Shri Mishra and illegal and arbitrary order of CMD/ECoRailway in discharging him from railway sick list, the President has observed that these issues do not have any relevance to the charges leveled against Shri Mishra and the procedural handling of various issues cannot be said to be new evidence as the Disciplinary, Appellate and Revisionary Authorities have taken all the aspects of Shri Mishra's unauthorized absence into consideration before passing final orders. Moreover, Shri Mishra was given ample opportunities to present his case before the Inquiry Officer and also before the Disciplinary Authority who sent a copy of the inquiry report to him asking for his comments but he failed to make use of these opportunities and he cannot cite them now.
3. Further, the President has observed that Shri Mishra has not brought out any new material or evidence in his review petition which may be considered to have any bearing on the findings relating to his guilty and the orders passed in his case. Hence, his review petition dated 4.9.2013 aforesaid is not maintainable under rule 25-A of Railway Servants (Discipline and Appeal) Rules, 1968 and is, accordingly, rejected.
BY ORDER AND IN THE NAME OF THE PRESIDENT.
O.A. 643.2019 26
14. The observations of SCPD in its order dated 22.09.2018 is extracted below:
"7 Observations of SCPD:-
The Hon'ble High Court of Orissa in judgment dated 31.12.2018 at Para No. 14 observed that taking into account of provisions of Sec. 47 of PWD Act as well as Section 62 of PwD Act the Hon'ble Apex Court clearly observed that the Commissioner is competent to take a decision on the order of dismissal or otherwise.
Further while remanding the case the Hon'ble High Court directed in Para No. 15 to re-look to the complaint raised by the complainant and take a lawful decision involving the issues therein and giving opportunity of material evidence as well as hearing.
The SCPD finds that the complainant was not removed from his service on account of his disability but it was on account of his absence from duty for the period from the 2nd half of 12.10.2009 to dated 04.11.2009 (i.e. for 22 and ½ days). The complainant claims that he remained absent for this period on account of his mother's serious illness. He has submitted leave application for the purpose for the period from
15.10.2009 to 3.11.2009. For this absence he was issued a major penalty charge sheet on 05.11.2009. But a fresh enquiry was ordered on 16.06.2012 and a preliminary sitting was fixed to 04.07.2012 whereupon the complainant (CO) attended. Therefore though notices of further sittings were sent to the complainant by his authority the complainant did not attend and he made representation to his authority on 10.08.2012 for change of IO (enquiry officer) on the allegation of bias.
The complainant claims that he was under hospital leave for the period from 21.08.2012 to 30.10.2012 for replacement of his artificial limb at SVNIRTAR, Olatpur in the district of Cuttack. He further claims that he was duly referred by the Railway Medical Authority and with the knowledge of his authority but during the period of hospital leave, his application for change of IO was regretted by the Chief Operating Manager-cum-Revisionary Authority and the disciplinary proceedings instituted against him for the period 2nd half of 12.10.2009 to 04.11.2009 was concluded and he was issued major penalty i.e. Removal from service. During above period of hospital leave on 27.09.2012, discharge memo dated 27.09.2012 was issued by the Railway Hospital, Sambalpur on the ground that he did not give attendance in the O.A. 643.2019 27 referral hospital during the period of hospital leave and on 15.10.12 notice of punishment for removal from railway service was issued.
Soon after his above claimed hospital leave period the complainant approached the railway medical authority where he was denied of giving fresh certificate and then on 13.12.2012, the complainant challenged the order of disciplinary authority by way of appeal, revision (GM) etc and Review. During the revision before the GM ECoR (Respondent) his case was forwarded to RRT for advice and the Revisionary Authority i.e. GM, ECoR concluded his order dated 19.08.2013 with observation that the C.O. (complainant) does not deserve to be shown much leniency. However keeping with the advice rendered by RRT the GM reduced the punishment from 'removal from service' to 'compulsory retirement'.
Against aforesaid order of GM the complainant represented to Hon'ble President of India by way of review and the entire procedure on disciplinary action reached its finality by disposal of such representation by the Hon'ble President of India by order dated 26.06.2015 in rejecting such representation of the complainant and upholding the punishment confirmed by the GM (Revisionary Authority).
Therefore the moot points those surface for determination are as follows:-
Whether the order dated 19.08.2013 of the GM ECoR (Revisionary Authority0 is as per advice of the RRT as mentioned in such order.
Whether submission of ex parte inquiry report by the IO and subsequently order of punishment of Disciplinary Authority for removal from railway service of complainant during his claimed period of hospital leave are proper.
Whether the complainant has been deprived of his right under section 47 of the Persons with Disabilities (Equal opportunity, protection of rights and full participation ) Act 1995 (in short referred as PwD Act, 1995) and/or where there is non implementation of laws, rules, bye laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate governments and the local authorities for the welfare of protection of rights of person with disabilities as mentioned in Sub- section (b) of Section 62 of PwD Act, 1995.
Sub-Rule (2) of Rule 24 of the Railway Servants (Discipline & Appeal) Rule 1968 states that:-
O.A. 643.2019 28 "A group C railway servant who has been dismissed, removed or compulsorily retired from service may, after his appeal to the appropriate appellate authority has been disposed of, and within 45 days thereafter, apply to the General Manager for a revision of the penalty imposed on him. In his application, he may, if he chooses, request the General Manager to refer the case to the Railway Rates Tribunal for advice before he disposed of revision petition. On receipt of such a request, the General Manager shall refer the case to the Chairman, Railway Rates Tribunal for advice sending all the relevant papers.
On receipt of the revision application by the General Manager or on receipt of advice from the Railway Rates Tribunal, as the case may be, the General manager shall dispose of the application in accordance with the procedure laid down in rule 25 and pass such order as he may think fit....."
The RRT after going through the details of the case rendered its advice dated 03.06.2013. The RRT has gone through the charge memorandum, oral and documentary evidence, the report of the enquiry officer, reply of CO., order passed by the DA; AA, grounds of appeal and also the revision. The RRT after various lacunae in the enquiry of EO, held that the absence of the CO (Complainant) is not wilful. The RRT also held at Page 6 in its advice that in a departmental proceeding if allegation of unauthorized absence from duty is made, the DA is required to prove that the absence is willful, in the absence of such finding the absence will not amount to misconduct. The RRT in the case of the complainant found that the EO has failed to prove that the absence was willful. Also the EO has ignored the specific defence of the CO that the was forced to attend his aged mother who was serious and critically ill and hospitalized that made him (CO) to apply for CL and LAP to attend her. The RRT at page 7 also observes as to how AA (Appellate Authority) ignored such fact and passed order mechanically. The RRT has mentioned the value of CL and LAP and mentioned that CL is not a recorded leave and the Railway Servant on CL is not to be treated as absence from duty. In referring to Railway Board Circular dated 31.07.2001 it is mentioned that LAP should not be ordinarily be denied to any employee, especially in the last 10 years of his career, finally with reasons as mentioned therein the RRT opined that 'punishment of removal from service is not valid in law'.
Ironically the reasons and lacunae in DA proceeding those were pointed out in the RRT advice dated 06.06.2013 were not taken into consideration by the GM (Revisionary Authority) in his order dated 19.08.2013. Under the caption "discussion on their quantum of punishment to be imposed" against serial no. 6 at point 15, the GM has compared the post of the complainant equal to front line staff of Railways such as Drivers, ASMs etc, is not proper as post of CO i.e. OS-I which does not come O.A. 643.2019 29 under line staff of Railway but comes under clerical staff. Discussions at point 16 and especially 17, are not relevant at the stage of revision. More importantly there is no discussion of the GM on the reasonings of the RRT on the fault and lacunae of EO, DA and AA. The relevant extract in Railway Boards letter No. E (D&A) 83 RG 6-8 dated 25.3.83 is as follows:-
"In terms of extant orders where the G.M. finds himself unable to accept the advice of the Railway rates Tribunal, he should not supersede the Tribunal's advice without obtaining Railway Board's prior orders Though the G.M. has mentioned in such order that decision is in view of RRT advice in fact the order of the GM is not in the spirit and advice of the RRT.
The next moot point is NO.2. The Estt. Serial No. 340/64, Circular No. P/R/30/4A dated 04.12.64 read with Estt. Srl. No.523/61, Circular No. SPO ® 37280 dated 24.11.1961 (in Annexure No. 24 and 25 respectively to petition dated 29.10.2015) clarifies that in case of employee with amputed limb, the whole period from the date an employee receives injury till he is discharged as fit for duty either in his own class or in a lower class plus journey time, if any, be treated as Hospital Leave.
As per RTI reply (in Annexure 26 ibid) it is mentioned that there is no specific provision in Railway Servants (DA) Rules, 1968 or any instruction issued there under that an employee under Hospital Leave can or cannot be removed from his service. If that being so the provision in Sec.73 (1) in ESI Act, 1948 and its spirit can be considered. Section 73(1) of ESI Act, 1948 says as follows :
"No employer shall dismiss, discharge or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit, nor shall he, except as provided under the regulations, dismiss, discharge or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as a result of illness duly certified in accordance with the regulations to arise out of the pregnancy or confinement rendering the employee unfit for work."
Taking into consideration of report dated 27.9.12 of medical Officer Sambalpur it is found that the complainant was on Hospital Leave but he was discharged from O.A. 643.2019 30 the sick list as he did not give his attendance in the referral medical authority. But on the other hand it appears that the referral Medical i.e. SVNIRTAR does not maintain daily attendance. Rather it has issued a Medical Certificate dated 30.10.2012 in favour of the complainant for the period from 23.8.12 to 30.10.2012, both dates inclusive.
On the other side during the leave period i.e. from 21.8.2012 to 30.10.2012 (which the complainant claims as Hospital leave), the Disciplinary Proceeding accelerated in taking action on 3.9.12 when the change of inquiry officer on the representation of the complainant was regretted; on 8.9.12 the IO submitted ex parte report; on 10.9.12 and 25.9.12 efforts were made to communicate such ex parte enquiry report to the complainant; on 27.9.12 discharge memo of Medical authority issued and on 15.10.2012 Notice for removal from railway service was imposed by the Disciplinary Authority. Such expeditious actions of the Respondent side are found not proper in absence of any reason. Thus it is presumed that the plea of discharging the complaint from sickness was taken to impose the punishment notice dated 15.10.2012 of the DA and to show that the Hospital leave of the complainant was discontinued. It appears that such action of the Employer side is not proper.
The final moot point is No.3. Section 47 of the PWD Act, 1995 states about non-discrimination in government employments due to disability. In this case the cause of removal from service or the compulsory retirement of the complainant is not on account of his disability but on account of absence in duty. But Section 62 of the PWD Act, 1995 states for implementation of laws, executive orders, guidelines or instructions made or issued by the appropriate governments for the protection of rights of persons with disabilities. The circulars in Estt. Serial No. 340/64, Circular No. P/R/30/4A dated 04.12.64 read with Estt. Srl.No.523/61, Circular No. SPO(R) 37280 dated 24.4.1961 (in Annexure No. 24 & 25 respectively to petition dated 29.10.2015) are the circulars for the welfare of railway employee with disability which has given some relaxation to employee with amputee limb and the whole of the period from the date an employee receives injury till he is discharged as fit for duty either in his own class or in a lower class plus the journey time if any be treated as Hospital lave. Thus the SCPD is of opinion that the benefit of such circular should be given to the complainant.
In view of the aforesaid discussion on the factual aspects relating to the controversy between the parties, the predominant fact which stands admitted is that the complainant needed medical assistance for replacement of his B.K.Prothesis for which he approached the Railway Medical Authority, Sambalpur and he was referred to SVNIRTAR for replacement. Complainant has submitted a Medical Certificate dated 31.10.12 which clearly indicates that the complainant was admitted in SVNIRTAR on O.A. 643.2019 31 23.8.12 and was discharged on 30.10.12. Though the Respondent side disputed the treatment of the Complainant at SVNIRTAR continuously from dated 23.8.12 to 30.10.12 they have not furnished sufficient satisfactory material to dislodge the correctness of the discharge certificate issued by the SVNIRTAR and the continuous period of treatment of complainant in the SVNITAR from 23.8.12 to 30.10.12 and as such it is obviously to be held that the Complainant was under treatment at SVNIRTAR from 23.8.12 to 30.10.12.
Though the departmental action was initiated against the Complainant for unauthorized absence for the period of 22 and ½ days in the year 2009, during the aforesaid period of the treatment of the Complainant at SVNIRTAR the departmental proceeding was continued ex parte against the Complainant and order of punishment was passed by the Disciplinary Authority which was served on the Complainant by way of affixture in the Notice Board in presence of two employees and subsequently it was sent by registered post to the Complainant which was received by him on dated 13.12.2012. The Respondent side has relied on a discharge certificate of the Complainant issued by the Sr.DMP, Sambalpur which shows that the period of illness of the Complaint was from 21.8.12 to 17.9.12 and the Complainant was fit to resume his duty on 18.9.12. It is asserted by the Respondent side that the Complainant was not sick after 17.9.12 and that though the departmental proceeding also continued after 17.9.12 he did not participate in the enquiry for which it ended with order of punishment against eh complainant.
It is argued on behalf of the Complainant that as he was referred for replacement of B.K.Prothesis at SVNIRTAR and he was discharged from the SVNIRTAR on 30.10.12 and to that effect the SVNIRTAR issued the Medical Certificate which covered the period of his treatment from 23.8.12 to 30.10.12 the certificate so issued by the referral hospital (SVNIRTAR) has its own genuineness and it is sufficient to counter the plea of the Respondent that the Complainant was discharged on 17.9.12 after being removed from the sick list. SVNIRTAR is an under taking of government of India and for that the Complainant was referred to that hospital .The Complainant alleges that his removal from sick list at Sambalpur was malafide and was aimed at creating a material to show that the complaint was not on Medical Leave and to continue the departmental proceeding knowing fully well that the Complainant was referred to SVNIRTAR and he was not discharged there from. The Complainant has alleged bias against the disciplinary Authority in as much as the Disciplinary Authority himself issued the major penalty charge memorandum against the Complainant and he functioned as Disciplinary authority. Thus considering the rival claim of both the sides relating to the period of treatment of Complainant at SVNIRTAR it is to be deducted that the Medical Certificate issued by the SVNIRTAR for the period from O.A. 643.2019 32 23.8.12 to 30.10.12 is sufficient to discredit the plea of discharge of the Complaint on 17.9.12 on account of his removal from sick list as claimed by the Respondents.
In so far as the challenge of the Complainant regarding the role of Appellate Authority and Revisionary Authority is concerned, the procedure adopted by the Revisionary Authority appears to be not in accordance with the standing circular of the Railway Board which clearly speaks that where the G.M finds himself unable to accept th4e advice of the Railway Rates Tribunal (RRT) he should not supersede the Tribunal's advice without obtaining Railway Board's prior orders. Complainant requested to refer his revision petition to the RRT for advice and in due course the RRT rendered advice for the reasons assigned in the advice and stating that the punishment of removal from service was not valid in law. Instead of going through the lacunae pointed by the RRT the Provisional Authority (G.M.) reduced the punishment from 'Removal from Service' to 'Compulsory Retirement', but without prior approval of the Railway Board. Though the G.M (Revisionary Authority) has tried to justify the stand that the advice rendered by the RRT was to reduce the punishment to compulsory retirement but in fact observations/advice of RRT have not been satisfactorily met.
Be that as it may, it appears prima facie that the observations given by the RRT to come to the conclusion that the punishment of removal from service was not valid in law were not strictly adhered to by the G.M in as much as irregularities committed by the EO and Appellate Authority, as pointed by the RRT, were not sufficiently addressed. It seems the G.M. (Revisional Authority) has not properly interpreted the spirit of the advice rendered by the RRT in as much as the view of the RRT that the punishment of 'removal from service is not valid in law' does not mean only reduction in punishment but it speaks of volumes of lacunae in the proceeding. That apart in the event the G.M opted to reduce the punishment he should have sought the prior approval of the Railway Board before imposing the sentence or he should have sent back the proceeding to the EO to hold the enquiry afresh in the light of the observation given by the RRT. As either of the above two courses was not adopted by the Revisionary Authority, the reduction in punishment from removal from service to compulsory retirement appears to be not proper,.
Under the foregoing discussion and analysis it is considered appropriate to observe that the Respondent shall do well to take necessary steps to meet the observation of the Railway Rates Tribunal in its true spirit, failing which the Complainant shall be at liberty to approach the Central Administrative Tribunal (CAT) for necessary redress as the East Coast Railway is a central government establishment and the Complainant's grievance is relating to his service matter under O.A. 643.2019 33 East Coast Railway and if so advised the Complainant may also resort to the forum of the Chief Commissioner for Persons with Disabilities, New Delhi.
With the above observation the case is closed.
15. The relevant portion of the order of General Manager, ECoR, Bhubaneswar dated 16.11.2018 in compliance to order of SCPD is extracted below:
The Hon'ble State Commissioner for Persons with Disabilities, Odisha while disposing of case SCPD No. 246/2015 vide Order dated 22.9.2018 observed that "the respondent shall do well to take necessary steps to met the observation of the Railway Rates Tribunal in its true spirit, failing which the Complainant shall be at liberty to approach the Central Administrative Tribunal (CAT) for necessary redress as the East Coast Railway is a central government establishment and the Complainant's grievance is relating to his service matter under East Coast Railway and if so advised the Complainant may also resort to the forum of the Chief Commissioner for Persons with Disabilities, New Delhi."
In obedience of the above directions of the Hon'ble SCPD, Odisha, the undersigned, being the Respondent and General Manager of East Coast Railway, Bhubaneswar, has gone through your case records vis-à-vis the advice of RRT and observed as under :
From the records, it is transpired that disciplinary proceedings under RS (D&A) Rules, 1968 was initiated against you contemplating the charges of unauthorized absence from duty for the period from 2nd half of 12.10.2009 to 04.11.2009 in terms of Rule 3.1(ii) & (iii) of the Railway Services (Conduct) Rules,. 1966. The charges leveled against you were proved during the course of enquiry and accordingly, the Disciplinary Authority vide Punishment Notice dated 15.10.2012 passed the order of punishment of "Removal from Service" with benefits of Compassionate Allowance as per extant rules. Thereafter you filed an appeal before the Appellate Authority who upheld the said punishment. You again filed a revision petition before the Revisionary Authority approaching therein to refer the matter to RRT for advice in terms of Rule 24(2) of Railway Service (D&A) Rules, 1968. Considering your request vis-à-vis rules governing the field, the then Revisionary Authority was pleased to refer the matter to RRT for necessary advice. The Learned Railway Rate Tribunal as an advisory body observed that "CL is not a recorded leave and a Railway Servant on CL is not to be O.A. 643.2019 34 treated as absent from duty. For the said reasons we are of the considered view that the punishment of removal from service is not valid in law."
Keeping in view that above 'advice' rendered by RRT, the then Revisionary Authority allowed you for a personal hearing and thereafter, reduced the quantum of your punishment of 'Removal from Service' to a lesser punishment of 'Compulsory Retirement' vide Speaking Order dated 19.08.2013. Further, you made an appeal before the Hon'ble President of India by way of filing a Review Petition dated 04.09.2013 against the punishment order of 'Compulsory Retirement' in terms of Rule 25A of RS (D&A) Rules, 1968 alleging therein that the advice of RRT was not followed in letter and spirit and Railway Board's approval on disagreement with advice of RRT was not obtained. The Hon'ble President vide order dated 26.6.2015 disposed of your Review Petition rejecting "the advice of the Railway Rates Tribunal has been accepted by the Revising Authority who has reduced the punishment of "Removal from Service' to 'compulsory retirement' which is distinct and lesser punishment under Rule 6 of RS (D&A) Rules. Hence, there is no question of differing with Railway Rates Tribunal advice and seeking approval of Railway Board."
After being exhausted all the privileges afforded under RS(D&A) Rules, 1968, you filed a complaint vide Case No. SCPD-246/2015 under Section 62 of PWD Act before the Ld. SCPD which was subsequently rejected vide its order dated 20.9.2016 on the ground of maintainability permitting you to approach the competent authority s the cause of disciplinary action is related to service matter, not the disability issue as alleged, which was further challenged by you in WP(C) No.22458 of 2016.
The Hon'ble High Court of Odisha allowed the matter vide its order dated 03.01.2018 duly setting aside the order dated 20.9.2016 of SCPD and remanded the matter back to SCPD 'to have a relook to the complaint raised by the petitioner and take a lawful decision involving the issues therein and giving opportunity of the material evidence as well as hearing to all the parties concerned'.
However, the matter has been examined in light of observations of Ld.SCPD vis-à-vis the advice of RRT and it is observed that the Railway Rate Tribunal is an advisory body and its advice is neither mandatory nor binding upon the administration. The RRT has already been merged with Railway Claims Tribunal since 2017. It is a settled principle of law that leave is not a matter of right in terms of Rule 503 of IREC, Vol.I and RBE No.133/2001. The intent of the casual leave is to enable an employee to take time off from his/her duty to meet an unforeseen, urgent or important need. Although Casual Leave is not as like as LAP but it needs to be sanctioned/granted either prior to go on leave or post facto. The sanction of leave should not cause any dislocation in the normal working of the establishment.
O.A. 643.2019 35 In your case, it is seen that you being a supervisor abstained from the office from the 2nd half of 12.10.2009 without obtaining any prior permission and applied for leave from the next date i.e. 13.10.2009 asking for Casual Leave from 2 nd half of 12.10.20089 to 14.10.2009 and again applied for 20 days LAP (Leave Average Pay) from 15.10.2009 to 4.11.2009 i.e. in continuation of your absence period beginning on 12.10.2009 and remained absent though the leave was not sanctioned. This is a grave misconduct and show clear lack of devotion to duty. However, despite this, at the stage of revision, the then Revisionary Authority taking a lenient view in the light of advice of RRT had reduced the quantum of penalty from 'Removal' to 'Compulsory Retirement' vide his Speaking Order dated 19.08.2013 which was confirmed by the Presidential order on review.
In view of the above, it is very clear that the advice of RRT has already been taken into consideration in its true spirit by awarding lesser punishment of 'Compulsory Retirement', which is reasonably commensurate with the gravity of your offence otherwise, you would not have received pensionary benefits i.e. Gratuity, Pension etc. and post retirement benefits like post retirement complimentary passes and Railway Medical facilities.
This issues in pursuance to the order of Hon'ble SCPD dated 22.09.2018 passed in SCPD Case No. 246/2015.
Please acknowledge receipt of this order in writing.
16. The scope of interference in disciplinary proceedings and punishment imposed by competent authority is well settled in series of decision of Hon'ble Apex Courts as well as various Hon'ble High Courts. We find from the record that the applicant was given adequate opportunity by the IO to represent and put forth his grievance, but one way or the other the applicant chosen himself to refrain from appearing before the IO. As regards to the treatment of the applicant for the leave period in question the said issue was duly taken into consideration by the authority in accordance with law and finally passed the order giving no scope for this Tribunal to substitute its findings over the findings reiterated by the authorities in accordance with law. The observation of the Hon'ble Apex Court in matters relating to scope of interference and substitution of findings in various cases are reproduced here under:
O.A. 643.2019 36 "In State of Andhra Pradesh & Ors. v. S. Sree Rama Rao AIR 1963 SC 1723 , a three Judge Bench of this Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under:
"7. ...The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence...."
In B.C. Chaturvedi v. Union of India & Ors. (1995) 6 SCC 749 , again, a three Judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical O.A. 643.2019 37 rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority isentitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya (2011) 4 SCC 584 , this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led inthe domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such O.A. 643.2019 38 conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B. C. Chaturvedi vs. Union of India - 1995 (6) SCC 749, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463, and Bank of India vs. Degala Suryanarayana - 1999 (5) SCC 762, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC416).
xx xx xx
12. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him."
In another judgement reported as Union of India v. P. Gunasekaran (2015) 2 SCC 610 , this Court held that while reappreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings:
"13. Under Article 226/227 of the Constitution of India, the High Court shall not:
i. re-appreciate the evidence;
ii. interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
iii. go into the adequacy of the evidence;
iv. go into the reliability of the evidence;
v. interfere, if there be some legal evidence on which findings can be based. vi. correct the error of fact however grave it may appear to be; vii. go into the proportionality of punishment unless it shocks its conscience."
O.A. 643.2019 39
17. In the instant OA the applicant impugned the order of the reviewing authority dated 16.11.2018 in other words the applicant has raised no grievance in so far as the order of the disciplinary authority, which was upheld by appellate authority. Therefore this Tribunal is called upon to examine as to whether the order passed by reviewing authority dated 16.11.2018 is in accordance with the order of SCPD dated 22.09.2018, as it is the specific case of the applicant that the order of revisional authority is not in accordance with observation of order of SCPD.
18. Hon'ble High Court of Orissa in its order dated 03.01.2018 in WP (C) No. 22458 of 2016 had in para no. 14 observed that the Commissioner, SCPD is competent to take a decision on the order of dismissal or otherwise and in para no. 15 had also observed that the State Commissioner has jurisdiction to deal with the aspects involved and had remanded back the matter to SCPD to have a re-look to the complaint raised by the applicant and take a lawful decision. Subsequently the SCPD in its order dated 22.09.2018 had directed that the "Respondent shall do well to take necessary steps to meet the observation of the Railway Rates Tribunal in its true spirit, failing which the Complainant shall be at liberty to approach the Central Administrative Tribunal (CAT) for necessary redress as the East Coast Railway is a central government establishment and the Complainant's grievance is relating to his service matter under East Coast Railway and if so advised the Complainant may also resort to the forum of the Chief Commissioner for Persons with Disabilities, New Delhi." In this context learned counsel for the respondent had strenuously urged that this Tribunal has no jurisdiction to entertain the matter since Hon'ble High Court had directed the SCPD, Odisha to decide the matter in question. He has drawn the attention of this Tribunal to the said order passed by Hon'ble High Court in this regard. This Tribunal has carefully gone through the materials on record but we are not able to accept the said submission of learned counsel O.A. 643.2019 40 for the respondent to the effect that this Tribunal has no jurisdiction to entertain the present the OA since it is seen that the Hon'ble High Court had directed the SCPD to consider and decide the matter with reference to Section 47 & 62 of the Person with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act 1995. Therefore for the said limited purpose of consideration in accordance with Section 47 & 62 of PwD Act, the SCPD had the necessary jurisdiction to decide the matter in question. But the said direction given to SCPD by Hon'ble High Court, Orissa did not take away the jurisdiction of this Tribunal to decide the matter under Section 19 of Central Administrative Tribunal Act, 1985. Hence this Tribunal is of the opinion that this Tribunal has got its power to entertain the OA and to decide the matter in accordance with law.
19. We have carefully gone through the order dated 16.11.2018 of the GM, ECoR, Bhubaneswar passed in compliance to the order of SCPD, Odisha and we find that the order of SCPD has been duly complied with in its true spirit. The SCPD had directed the respondents to take the advice of Railway Rates Tribunal (RRT), Chennai into consideration while passing order. The respondent department acted on the advise of the RRT which had held in its order dated 03.06.2013 that "for the said reasons we are of the considered view that the punishment of removal from service is not valid in law" and accordingly the revisionary authority vide order dated 19.08.2013 had reduced the punishment of "removal from service" to "compulsory retirement" which was again reiterated in its order dated 16.11.2018. It is also seen from the order dated 16.11.2018, that the respondents have also considered the observation of the SCPD order relating to leave application of the applicant. Hence, we do not find any illegality or irregularity in the action of the respondents in issuing the order dated 16.11.2018. The subsequent order dated 08.02.2019 and 12.04.2019 have also been dealt as per law since the representation of the applicant have already been dealt with previously vide O.A. 643.2019 41 order dated 16.11.2018 and the order has been upheld by the higher forum. For the discussions made above we find no force in the prayer of the applicant to direct the respondents to start disciplinary proceeding against respondent no. 4 for the order dated 16.11.2018 and the prayer to direct the respondent to take a decision on the basis of the medical certificate produced by him became redundant. After careful scrutiny of the materials on record, this Tribunal finds that the decision making process in the departmental proceeding in question has not been vitiated in any way and the applicant has failed to show that there has been any violation of principle of natural justice as due opportunity was given to the applicant and he did not opt to avail the same during the inquiry by not participating in the inquiry. So far as the punishment is concerned, we in the facts and circumstance of this case and taking into consideration the nature of duty expected from the applicant in the organization in which he was working, do not find that the same in any way is either disproportionate or harsh.
20. In view of the aforesaid observation the OA is dismissed being devoid of merit but in the circumstances without any order to cost.
(T.JACOB) (SWARUP KUMAR MISHRA) MEMBER (ADMN.) MEMBER (JUDICIAL) (csk)