Central Administrative Tribunal - Kolkata
Mrityunjoy Gouda vs S E Railway on 4 May, 2020
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An application under Section 19 of the Administration Tribunal's Act, 1985
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BETWEEN
Mrityunjoy Souda, son of Harsha Kumar
Souda, residing at Flat No. D/2,
Dinabandhu Apartment, 2nd Floor,
Gopalpur, Sarkarpara Road, Maheshtala,
South 24-Parganas, Kolkata-700143.
.... Applicant.
AND
1. Union of India service through
the General Manager, South Eastern ;
Railway, Garden Reach, Kolkata - 700
043.
2. The FAA & Executive Director
Establishment (N), Railway Board,
Ministry of Railways, Room No. 433, New
Delhi-110001.
3. The Ghief Public Information
Officer-38 and DE(N)-II, Railway
Board, Railway Bhawan, Ministry of
Railways, Room No. 433, New Delhi-
110001.
4. The Dy. Chief Personnel Officer
(Gaz), Office of the Principal CPO,
• • u!'-i I1.1
South Eastern Railway, Garden Reach,
Kolkata - 700 043.
5. The Principal Chief Commercial
Manager, South Eastern Railway, Garden
Reach, Kolkata - 700 043.
6. The Deputy Chief Commercial
Manager (Claims), South Eastern '
Railway, 14, Strand Road, 10th Floor,
Kolkata-700001.
7. The Assistant Commercial
Manager (Refunds)-Cum-disciplinary
»•
Authority, South Eastern Railway, 9th
Floor, 14, Strand Road, Kolkata-700001.
-
.... Respondents.
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
No.O A.350/1434/2019
M. A.350/112/2020 Date of order: ^5
Coram : Hon'ble Mrs. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
MRITYUNJOY GOUDA
VS.
UNION OF INDIA & OTHERS
(South Eastern Railway)
For the applicant : Mr. A. Chakraborty, counsel
For the respondents : Mr. K. Sarkar, counsel
ORDER
Bidisha Banerjee, Judicial Member The applicant a discharged Bungalow Peon, has preferred this O.A. to seek the following reliefs:-
'V Chorge-sheet vide Charge Memorandum being No.E2/12/MG/RB/2019 dated 02.07.2019 issued by the respondent No.7, Office letter being No.E(NG)ll/2019/MISC./5 dated 23.05.2019 issued by the respondent No.2, Office Letter being no.SER/P-HQ/E-GAZ/740/RTI-IX/2019/MG/705 dated 27.05.2019 issued by the respondent No.5, Show-cause Notice dated 04.06.2019 issued by the respondent No.6 are not tenable in the eye of law and as such the same should be quashed; . .
ii) Grant all consequential benefits after quashing the impugned Charge-sheet vide Charge Memorandum being NO.E2/12/MG/RB/2019 dated 02.07.2019 issued by the respondent No. 7;
Hi) Costs of and incidental to this application;
"iJ--;
iv) Pass such further or other order or orders."
X. 2 The applicant has also filed an M.A.No.350/112/2020 seeking the r following reliefs:-
"In view of the above, it is most humbiy prayed that your lordships would be graciously be pleased to issue an appropriate order directing the respondents not to give any effect and/or further effect to the charge memorandum being no.E- 2/12/MG/RB/2019 issued by the Respondent No, 7 and also to the impugned Enquiry report dated 27.01.2020 prepared in connection with the said charge-sheet and to pass such further Order/Orders and/or Direction or Directions be given as Your Lordships may deem fit and proper"
2. The gravamen of indictments against the applicant are as under:-
4 ' ' Article of Charge -1 i ;^»T®Syunjy. Gouda, Bungalow Peon (TADK). attached to Shri Salbal 1 ^S KumaSBose/'Dy. CCM/Claims, South Eastern Railway, Kolkata has used 8 ''./^sscSiftisavofy^and intemperate language while preferring RTI First Appeal dt 1 ^JM6i9 to the Executive Director, Estt (N), Raik% Board, New Delhi and I -: V '@S^^ilate Authority.
}'
-*Shrl*Gouda was aware that CPIO who is a Director level Officer in the g^^jSaard but without considering the same he^fias uttered disparaging | j-j :c^ffl^ike "negligent" "irresponsible attitude" against;him. Shri Gouda in the- I ^c^^First Appeal has alleged that the CPIO had provided some misleading * : ^ 34J\irrelevant information under item - I and item - If which is completely ;f Useless and far away from die truth.
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^ . . '.^'Being a substitute Railway- Employee Shri Gouda has dictated Executive
•
-^Erector Estt (N), Railway Board, New Delhi to take disciplinary action against •c.
i thafCPIO which reflects audacious and insubordinate attitude for his part.
• s» ^It is, therefore, evident that Shri Mrityunjy Gouda, Bungalow Peon ^,i.:(TAbK) attached to Shri Saibal Saibal Kumar Bose, Dy. CCM/Claims, South ' ■ ' /tSasfern Railway, Kolkata deliberately violated the Service Conducts Rules in ■■■< wgfe" -
1N, 3 > Article of Charep-ll .?
B?
r "Ps per the directives of the Executive Director, Estt (N) , Railway Board, New ;
Delhi and Dy. CPO (Gaz), South Eastern Railway,; .Koikata vide letter .Nos :
; E(NG)II/2019/Mlsc/t5 dt . 23/05/2019. and ;SER/P-HQ/E/GA2/740/RTI- :
< ■'IX/2019/MG/705 dt 27/05/2019 respectively,. Shri Mrityunjy Gouda, Bungalow I ' Reon (TADK) attached to Shri^SaibaJ Saiba) Kumar Bose, Dy. CCM/Claims,- South ♦ • Eastern Railway, Koikata was asked to submit his explanation vide letter no "E2/12/MG(RB)/201? dt 04/06/2019 by Dy. CCM/Claims, S.E..Railway for using t some unsavory and;-intemperate* language while preferring RU First Appeal dt I.. 17/05/2019 to the. RfstAppellate Aumority. ' / . ; The e^lanadon \vas submltted by Shri Gouda on 06/06/2019 wherein he. I has.: tried ^o: establish ihis- innocence in a very audacious and unapologetic manner, wl&osjt msintaining'due courtesy and obedience.
Shri Gotca rias ciaimed that the CPIO (Directbr/Rly Board) is to be his r$£6n£i&sS.. Moreov'er/'heated that the First Appellate Authority (ED/E/N t Jb Span3) has failed ib apply his mind and also advised to consult the law
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'rjrtheitnbre^Shil Gouda sated that First Appellate Authority (ED/E/N, >■. Board)' has roamed beyond his jurisdiction and .FAA should withdraw his immediately.
;, ■ '-^Sudi^angUage used by a subordinate employee in railway services against .. j fe'sbperiofs is simply not acceptable and contrary to the Service Conduct Rules. V' By.thefabqve.acts of omission and commission Shri Mrityunjoy Gouda, ' . ^ga]dw fedh (TADK) a attached to Shri Saibal Kuma'r Bose, Dy. CCM/Ciaims-
-has. committed grave misconduct and acted in e-manner unbecdming of . . ».H . a- ^ativ/ay Servant by contravening Rule 3 (ii), (iii), (Xl).and (XXI) of the-Railway . * seryi'ce Conduct Rule 1966 and thereby rendered himself liable for Disciplinary
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• ^^nfunder Railway Servants (Discipline & Appeal) Rules 1968 as amended;
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3. The applicant has contended that he was engaged as Telephone Attendant cum Dak Khalasi (in short TADK)/ Bungalow Peon vide order dated 27.09.2016 and has been discharging his duties honestly and efficiently and to the utmost satisfaction of his superior and that upon completion of 120 days of continuous service he has acquired temporary status with effect from 25.01.2017.
He preferred an application dated 28.01.2019 seeking information under RTI Act ■G 4 '£ ' J i- / / ■ W'.-. -3 ■ regarding duties and responsibilities of TADK. JHe alleged that neither any information was provided nor his application was disposed of by / the respondents within the prescribed one month's period. He preferred an appeal before the First Appellate Authority being the >5 i-X', • Respondent No;2 vide his letter dated 17.05.2019 and urged before the said authority to invoke penal provisions under right to information statute against the Respondent No.3. On 21.05.2019 he received a reply dated 15.05.2019 where the delay in issuing the reply was admitted. The information as was sought for by the applicant was not.
provided to him for which he preferred appeal before the CIC on 25.06.2019. He was supplied with another letter dated 23.05.2019 alleging that he has used disparaging remarks against the CPIO. He was • served with a show cause notice dated 04.06.20i9. He replied to the same on 06.06.2019 stating that he had sought for information not as an employee but as a citizen of India. He was chargesheeted vide memo dated 02.07.2019. He preferred representations denying the charges and requested for withdrawal of the charge memo.
The applicant has alleged that the impugned charge memo is not tenable in the eye of law since the charges leveled against him is a subject matter of an appeal preferred under the provisions of RTl Act.
He has also alleged that the author of the relied upon documents as well as the complainant on whose recommendation such action was initiated were not named in the list of witnesses.
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4. At hearing it transpired that the proceeding is yet to be r ;
t concluded with a final order. The respondents have alleged that while discharging responsibilities as TADK Bungalow Peon he remained absent unauthorisedly from 07.08.2017 to 04.12.2017 which however is not the subject matter of the charge sheet under challenge.
6. We note that the power or scope to interfere with a pending proceeding which is yet to be concluded with a final order is very limited. We are fortified in our views by the following judgments:-
(I) Hon'ble Delhi High Court, in Than Singh - Vs - UOI[(2003) 3 ATJ 42] has summed up the following grounds upon which the conjectures of a chargesheet can be questioned, "(i) If it does not disclose any misconduct;
(ii) if it discloses bias or prejudges the guilt of charged employee;
(Hi) There is non application of mind in issuing the chargesheet;
(iv) If it is vague;
(v) If it is based on state allegations;
(vtj If it issued malafide"
We do not feel that the chargesheet is vague and does not disclose any specific misconduct.
(II) In Secretary to State Govt. Prohibition & Excise Department v. L Srinivasan (1998)3 SCC 157, the Tamil Nadu Y Administrative Tribunal, Madras had quashed a suspension order i as well as the charge sheet containing imputations of grave V 6 ■ i;
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misconduct. Disapproving the action" of the Tribunal Hon'ble
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"....we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal had committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum de hors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to, examine each case in detail, ft is high time that it is reminded."
(iii) The Hon'ble Apex Court has repeatedly cautioned in Union of India vs, Upendra Singh [(1994)3 SCC 357], Union of India vs. Ashok Kacker[1995 Supp.(l) SCC 180], Secretary to State Govt.
Prohibition & Excise Department v. L. Srinivasan(supra) that Court or Tribunal has to be circumspect and should refrain themselves from quashing charge sheet at the threshold;
(iv) In State of Punjab vs. Ajit Singh [1998 SCC (L&S) 154], the High Court dismissed the chargesheet as meritless, though charges were supported with documentary evidence. Hon'ble Supreme Court disapproved the decision of the High Court and held that unless the charges officer had replied to the charges, interference by Courts in the administrative function was premature.
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r i ^/ In view of the aforesaid proposition of law, we refrain from
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interfering with the chargesheet at the threshold. F i / 5. In the rejoinder the applicant has taken a new plea that the / ( General ManagerfG.M. in short) being the Appointing Authority, chargesheet ought to have been issued by an authority equivalent to the rank of Appointing Authority i.e. the G.M. and a charge sheet issued by an authority lower in form deserves to be quashed. On an earlier occasion, this Tribunal tried to ascertain whether the General Manager was in fact the Appointing Authority of the applicant, as it was evident '» '!■; i;* from the engagement letter dated 27.09.2016 that the applicant was appointed with the "approval" of the General Manager.
The respondents have amply clarified that the Assistant Commercial Manager (Refunds), South Eastern Railway was competent to issue the charge sheet against a Group 'D' staff in the Grade Pay of Rs.1800/- as per Establishment Serial No.1/2012 and 16/2011 and as the applicant was in the Grade Pay of Rs. 1800/- a junior scale Group 'B' officer was competent to act as his Appointing Authority. Therefore, the charge sheet was perfectly in order. > ' i ' The respondents further clarified that all the panels for ■I recruitment of Group 'C' and Group 'D' are approved by the General !' Manager of a Zonal Railway, while panel of Group 'A' recruited through ...
f UPSC are approved by the President of India but that does not made j> the G.M. the appointing authority for the Group (C and 'D7. That, the appointing authority and disciplinary authority are clearly defined in the if B Circulars/Establishment serials. In support, the respondents would produce the following f [|) Estt.Srl.No. 016 /2011 RBE No. 10/2011 No. P / D&A / Rul es / Pt J Dated: .10 .02.2011 Sub: Notification.
Railway Board's letter No. E(DaA)2009/RG6-1 dated 19.01.20.11-(RBE No. 10 . /2011) is as under. /•• • ....
G.'SifV. - In exercise of the powers conferred by the provisotparticlo.^ 309 of the Constitution, the President. Hereby makes the followings rules' f " *1*. ■ H further to arnend the Railway Servants (Discipline and Appeal) Rules, 19£ jf namely:-
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Short title and^Commeneement ■ (1) "i These rules may be called the Railway Servants (Discipli •and Appeal) First Amendment Rules, 2011 (2). ^ Tjiey shall come into force on the date of theirpublication jr-r
2.
^ > the Official Gazette, I;
Ih the Railway Servants (Discipline and Appfeal)'Rules, 1968, for Sche ule I and Schedule II, the fdUowirig Schedules shall be substituted, nameh
-SCHEDULE ~ I * LSee rule 4 and sub-rule (2) of rule 71 V $1. Authority Class of Nature of penalties Appellate No empowered' •i: -Railway mentioned in rule Authority ** nlace a, -
Railway Servants over . . whom -
6 which the authorities I! servant ^i; ^ disciplinary specified in 1 under. • V ^powers can be Column 2 are suspension-or ^exercised empowered to ' •} to impose impose on Railway .
penalties Servants
m mentioned in
corresponding
*-• :
.'■«s
1-. entries in Column .3 <
and powers' of that. .- fl$
authority to place •
them under
suspension /•i
1 2 ■*:r 4 *.*. •
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ti RAILWAY BOARD'S OFFICE
•.»
1 2 •I 3 4 5 •-
1 Secretary, All classes of All penalties and Railway
Railway hpn-gazetted suspension Board
Board ■ Railway ,?
/ servants
including
. Group 'B' non-
/gazetted
' Ministerial staff
9
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx r pr' Director), •. Appointing I subordinate.
Junior •V
Authority or
Administrative .above will impose
/
Grade Officers penalties under
• 'I
-clauses (viij,(viii)
■ andjix)
2. Senior Scale All classes of Next higher
Officers non-gazetted authority to
Railway whom the
Servants authority in
(a) With Grade (a) Penalties column 2 is
, i
Pay of up to ' specified in immediately
and including; clauses (i) to (iv) subordinate.
Rs.2400 /- and suspension
(b)forwhom (b) Penalties
the officer specified in
concerned is clauses (vii)
the appointing to (ix)
• authority.
3. Officer in All classes of Next higher
Junior Scale non-gazetted authority to
•
or in Group Railway whom the
j
■B Secants authority in
(Gaqzetted) ■; (a) with Grade (a)' Penalties column 2 is
• 1
Pay of up specified in immediately
to and clauses (i) to subordinate.
including (iv) and
Rs.2000/* suspension
(b) for whom ■ (b) Penalties
the officer ' specified in
concerned clauses (vii)
is the to(ix)
appointing
authority.
RAILWAY RECRUITMENT BOARDS
1 2 3 4 5
1. Chairman All classes of All penalties and Railway
non-gazetted suspension Board
Railway
Servants *
/
10
✓
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: a
RAILWAY RATES TRIBUNAL
/
1 2 3 4 5
1. Chairman All classes of All penalties and Railway
non-gazetted suspension Board
Railway
Servants
2. Secretary All classes of Penalties specified Chairman >
non-gazetted in clauses (i) to (iv) Railway
• <-■
' •»
- J Railway and suspension . Board -i
Servants t.
ii-
RAILWAY LIAISON OFFICE t
t
1 2 3 4 5
;
1 t Joint \ All classes of All penalties and Railway
Secretary,; non-gazetted suspension Board
S
Railway Railway
Board ' i> Servants
P
ALL OTHER OFFICES (NOT SHOWN ABOVE) 1 • ■ 2- ■ . . 3 .4 5 ;
1 1 Head of;. i All classes of All penalties and Railway V:
ii Office non-gazetted suspension Board 55■l Railway ; r Servants .
f ■
Note: '•4' •
■
(1) The Railway Board may impose any of the penalties specified in on all non-gazetted Railway Servants employed in offices mentioned * Schedule and place them under suspension. t (2) The penalty of compulsory retirement or. removal1 or dismissal fro vice shall- be imposed only by the Appointing Authority-or ah author equivalent rank or a higher authority. i 'T * SCHEDULE -.11 . :fSee rule 4 and sub-rule (2) of rule 7] Schedule of Disciplinary powers and powers of suspension, of different ■ of Railway Officers and Senior Supervisors in respect of nomgazetted s Zonal Railways, Cbjttaranjan Locomotive Works, Diesel Locomotive-' integral Coach'factory, Rail Wheel Factory, Metro Railway (Kotkata), Loco Modernisation Works (Patiala), Rail Coach Factory (Kapurthalaj way Electrification Projects and Metropolitan Transport Projects (Rail tor ftt , 11 / V Authority Class of Nature of Appellate ''iO. empowered to Railway penalties Authority t place a Servants over mehtibned in Railway whom rule 6 which servant under disciplinary the authority suspension or powers can be in column 2 to impose exercised is penalties empowered under rule 6 to impose on Railway Servants .
mentioned in corresponding entries in column 3 and powers Of .
that
AtvVsIra,
authority to
%C
i i place them
•A under
suspension
2. 3. 5.
1. Senior All staff who Penalties Assistant
Supervisors are three specified in Officers .
incharge with grades(Grade clauses (i) to (Junior
Grade Pay of Pay) below and (iv) (no such Scale and
Rs.4200/- and lower than the power can be 'Group 'B'j
' •:
above. Disciplinary exercised (Gazetted)
(Described as Authority. where inquiry
Supervisors In under sub-
charge by the rule1 (2) of
Railway rule 11 is
Administration required) and
for this suspension
purpose) subject to
report to
Divisional
Officeror
Assistant 9
Officer
incharge
w
. /
/
12
within twenty
four hours in
the case of
Group'C
staff.
55 Assistant \ All staff with Penalties Senior Scale
Officers (Junior Grade Pay of specified in Officers anc
/Scale and up to and clauses (i) to Assistant
Group'B'): including (v) and Officers
(Gazetted) RS-.2400/- suspension. (Junior
\ •• Also; Penalty Scale and
. • \^ . specified in' Group 'B'
clause (vi)on (Gazetted)
staff with holding
, \
Grade Pay of independen
up to and Charge)
including
•i. • Rs.1650/-
t. only.
3. Senior Scale' All staff with Penalties Junior
Officers and; Grade Pay of specified in .; Administrai
Assistant :. T- up to and clauses (i) to , Grade
Officers. including. (vi) and ■ Officers an
(Junior Scaled Rs.2800/- suspension senior Seal
and Group 'B' Officers
(Gazetted) . holding
holding •: independei
independent s charge or
charge) In-charge
of a
i
Departmer
v' . the Divisio
4. Junior All classes of Penalties ■Additional
Administrative non-gazetted Specified in .Divisional
Grade Officers: staff. clauses (i) to Railway
and Senior (vi) and Managers i
Scale Officers suspension relation tc
holding the
independent Departmer
charge or In- . attached
charge of a Divisional
13
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&
. .»
r- Department in Railway
A the Division Managers.
/f5 Additional All classes of Penalties Senior
Divisional non-gezetted specified in Administrative
Railway staff clauses (i) to Grade
Managers in (vi) and Officers in
relation to the suspension the Zonal
Departments Railways i
attached to Head
them or Quarters in
Divisional PayBand-4
Railway with Grade
Managers Pay
Rs.lOOOOA
inclqclinjf
Principal
Heads of
msm.
mmsm
Rs.12000/-.
6. Senior : : All classes of penalties Additional
Administrative nomgazetted specified in General:
Grade Officers staff clauses (i) to : Managers in
in the Zonal (vi) and relation to
Railways'Head suspension Departments
Quarters in Pay attached
Band-4 with to them or
Grade Pay Chief
Rs.10000/- Administrative
induding Officers or
Principal Heads General
of Departments Managers
in Pay Band-4
with Grade Pay
Rs.12000/-
7. Additional All classes of Penalties Railway
General non-gezetted specified in Board
Managers in staff i clauses (i) to
relation to (vi) and '
Departments suspension
14
attached to ,
JS«»
them or Chief
£7
Administrative
Officersor
A
General
Managers
!
8. Railway Board Alt classes of Penalties President
non-gazetted specified in
staff clauses (i) to
(yi) and
suspension
Note:
(1) An Appointing authority or an authority of equivalent rank or < j
higher authority shall be competent to impose penalties specifier clauses (vii), (viii) and (ix) of rule 6. (2) Where the post .of appellate authority as shown in column 5 vacant, then, in that case, the next higher authority shown in1 row just beiow that authdfity shall be the appellate authority. s (3) The appointing' authority or an authority of equivalent rank or;
higher authority who is competent to impose the penalty of dismi:
or removal or compulsory retirement from service, may also imp any lower penalty.
Note: ■ Principal rules were published vide notification number S.O. 31 \ dated the 14* September, 1968 and subsequently amended v numbers:-, f t
1. S.Q.No. 1531 dt. the 26* April,1969
2. S.O.NO. 1925 dt. the S* May, 1971 5
3. S.O No. 2501 dt. the 3* July, 1971 ;
4. S.O.No. 5078 dt. the O* November, 1971
5. S.O.No. 4050 dt. the 30* October, 1971
6. S.O.No. 5264 dt. the 4t'' December, 1971
7. S.O.No. 9467 dt. the 8th April, 1972
8. S.O.No. 3918 dt. the 25lh November, 1972
9. Notification No. E(D&A)69RG6-9 dt. the 5* February, 197
10. S.O.No. 2897 dt. the 6th October, 1973 i
11. S.O.No. 1413 dt. the 14tt May, 1977
12. S.O.NO. 2193 dt. the 29"'JUty, 1978
13. S.O.No. 364 dt. the 23rt December, 1978
14. Notification No. E(D&A)77RG6-30 dt. the 7"'April, 1978 : / '■ 15 do SOUTH EASTERN RAILWAY = :-.5ri.No.1/20T2 RBE No.Nil .
vc = D&A/Rules/Pt. I Dated : 16.01.2012 .reposition of penalties of dismissal, removal or compulsory retirement || of non-gazetted staff - Notification of Appointing Authority Ref : Estt. Sri. No.l05/2006 \ ' %.• in terms of Railway Board's letter No.E(D&A)2002/RG 6-36 dated \ 02.09.2003, circulated under Estt;Sri.No. 162/03, Zonal Railways may notify^ 'Schedule of Powers' which should notify the 'Authorities' authorized to make/'v appointments in respect, of each grade/category of. staff. Accordingly,. ^ 'Appointing Authority'-was defined under EsttiSrl.No.105/2006. *4 ■ Railway Board have revised the schedule of disciplinary powers and.'; powers of suspension in different grades of Railway Officers and Sr.Supervisors in respect of :non-gazetted staff of Zona) Railways, a copy of which w.aS''.^ circulated under Estt.Srl.No.16/2011.
Consequent on revision of pay scales under 6th Pay Commission and merger of various categories in various Departmenlts,.it has been decided tajjlj define 'Appointing Authorities' in respect oTpre'sent'scale/corresponding Gradsi||| Pay after introduction of 6th Pay Commission in connection with imposition^ of penalties of dismissal, removal or compulsory retirement of hon-gazettec0j| staff as under m Sri. Pay structure'. Authority who Thay appoint *' ^ No. Name of Corresponding Corresport ■fr pay band Pay scale ding .• (Rs.) Grade Pay (Rs.) • ■ l
1. •IS 4440*7440 1300 Jr.Scaie/Gr/BVSr.Scale ;
2.. -IS 4440-7440 ' 1400 •' Jr';Scaie/Gr/B7Sf.Scale
3. •IS 4440-7440 1600 . ., Jr.Scale/Gn-'BySrlScale m ■i i. -I'i.
4. -1S . 4440-7440 1650 : Jr.Sckl^c'BVSr.Scale •.
5. PB-1 5200*20200 1800-. : .JnSc^^G^BySr.Scale V. ti ^ -W [l6 PB-1 5200*20200 1900 Jr;Scal^(3r.'B7Sr.Scafe •;
'M
6. We note that the power or scope to interfere with a pending proceeding which is yet to be concluded with a final order is very limited. We are fortified in our views by the following judgments:-
(I) Hon'ble Delhi High Court, in Than Singh - Vs - UOI[(2003) 3 ATJ 42] has summed up the following grounds upon which the conjectures of a chargesheet can be questioned, ( •• ••• .• 16 "(i) If it does not disclose any misconduct;
(ii) If it discloses bias or prejudges the guilt of charged f employee;
(Hi) There is non application of mind in issuing the chargesheet;
(iv) If it is vague;
(v) If it is based on state allegations;
, , •. .. ,
(vi) If it issued malafide"
We do not feel that the chargesheet is vague and does not disclose any specific misconduct.
(M) In Secretary to State Govt. Prohibition & Excise ■■ j;'-': ■ :' - -
Department v. L Srinivasan (1998)3 SCC 157, the Tamil Nadu Administrative Tribunal, Madras had quashed a suspension order as well as the charge sheet containing imputations of grave misconduct. Disapproving the action of the Tribunal Hon'ble Apex Court held "....we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal had committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum de hors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is reminded."
(iii) The Hon'ble Apex Court has repeatedly cautioned in Union of India vs. Upendra Singh [(1994)3 SCC 357], Union of India vs. 16 "(i) If it does not disclose any misconduct;
(ii) If it discloses bios or prejudges the guilt of charged f employee;
(Hi) There is non application of mind in issuing the ■ • ii-
chargesheet;
(iv) If it is vague;
(v) if it is based on state allegations;
(vi) If it issued malaflde"
We do not feel that the chargesheet is vague and does not disclose any specific misconduct (II) In Secretary to State Govt. Prohibition & Excise Department v. L Srinivasan (1998)3 SCC 157, the Tamil Nadu £ £ %c Administrative Tribunal, Madras had quashed a suspension order & as well as the charge sheet containing imputations of grave misconduct. Disapproving the action of the Tribunal .Hon'ble Apex Court held "....we desist from expressing any opinion on merit or recording any.^of the contentions .raised by the counsel on either side. Suffice it to state that the Administrative Tribunal had committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum de hors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is reminded."
(Hi) The Hon'ble Apex Court has repeatedly cautioned in Union of India vs. Upendi'a Singh [(1994)3 SCC 357], Union of India vs ' *>.-
18j'
(iv) where the Railway servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment under the Ministry of Railways, the authority which appointed him to that Service or to any grade in that Service or to that post; whichever authority is the highest authority.
(b) 'Commission' means the Union Public Service Commission.
(c) 'Disciplinary authority' means -
(1) in reiatipn to the imposition of a penalty on a Railway servant, the authority competent, under these rules, to impose on him that penalty;
(ii) in relation to Rule 9 and clauses (a) and (b) of sub-rule (1) of Rule 11 in the case of any Gazetted Railway servant, an authority competent to impose any of the penalties specified in Rule 6;
(Hi) in relation to Rule 9 in the case of any non-gazetted Railway servant, an authority competent to impose any of the major penalties specified in Rule 6;
(iv) in relation to clauses (a) and (b) of sub-rule (1) of Rule 11, in the case of a non-gazetted Railway servant, an authority competent to impose any of the penalties specified in Rule 6.
(d) 'Head of the department' for the purpose of exercising the powers as appointing, disciplinary, appellate or revising authority, means the authorityr'declared to be head of the department in terms of clause (9) of Rule 2202 of Volume II of the Indian Railway Establishment Code;[ Rule 103 (21) of 1985 ed].
(e) 'Railway servant' means a Railway servant as defined in clause (13) of Rule 102 of Volume I of the Indian Railway Establishment Code [Rule 103(43) of 1985 ed] and includes any such Railway servant on foreign service or whose services are temporarily placed at the disposal of any other department of the Central Government or a State Government or a local or other authority;
(f) 'Service' means a service under the Ministry of Railways;
(g) 'Schedule1 means a schedule appended to these rules.
(2) All other words and expressions used but not defined in these rules and defined in the Indian Railways Act, 1890 (9 of 1890) , shall have the meanings respectively assigned to them under that Act" '
8. Having considered the matter in entirety and having delved into the claims, counter claims, rival contentions and Railway rules and 19 i i- • !U'' v>:.V Schedule of powers enumerated , supra, we , are of the considered 1/ opinion that the applicant has failed to establish that the General j Manager is only empowered to act as his Disciplinary Authority. The applicant has also failed to make out a case meriting interference with ■i ^ ;
the charge memo.
9. Hence, we dispose of the O.A. with a liberty to the applicant to participate at the enquiry proceedings and to cooperate with the authorities in concluding the proceedings within the statutory time frame.
10. In the event the applicant finds that he needs to cite witness in c a. defence, he may request the Enquiry Officer for the same which $ ;• • • *--V 3: • request, if made, shall be duly considered with an appropriate order.
Consequently the M.A. stands disposed of. No costs. ■ :
/ (Dr. IMandita Chatterjee) (Bidisha Banerjee) ?
Administrative Member Judicial Member
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