Central Administrative Tribunal - Hyderabad
Unknown vs The General Manager (Rep. Uoi) on 1 October, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL: HYDERABAD BENCH:HYDERABAD
ORIGINAL APPLICATION NO.421 OF 2007
DATE OF ORDER: 1st OCTOBER, 2008
BETWEEN:
SHRI P.SHAFIULLAH KHAN,
Son-in-law of late P.Hameed Khan,
Aged about 47 years,
Ex-Traction Assistant, South Central Railway,
Secunderabad Division,
R/o C/o Md.Khaliq, D.No.22-12-194,
Urakrishnayya Vari Veedhi, Lalapet,
Guntur 522003.
AND
1. The General Manager (rep. UOI),
South Central Railway,
Rail Nilayam, 3rd Floor,
Secunderabad 500071
2. The Chief Operating Manager,
South Central Railway,
Rail Nilayam, 2nd Floor,
Secunderabad 500071,
3. The Addl. Divisional Railway Manager,
South Central Railway, Secunderabad Division,
Sanchalan Bhavan, 4th Floor,
Secunderabad 500071,
4. The Divisional Mechanical Engineer (Power),
South Central Railway,
Secunderabad Division, Sanchalan Bhavan, 2nd Floor,
Secunderabad 500071.
.. RESPONDENTS
COUNSEL FOR THE APPLICANT: SHRI S.RAMAKRISHNA RAO, ADVOCATE
COUNSEL FOR THE RESPONDENTS:ShriM.C.JACOB, SC FOR RAILWAYS
CORAM:
HON'BLE MRS. BHARATI RAY, MEMBER (JUDL.)
HON'BLE MR. HRIDAY NARAIN, MEMBER (ADMN.)
ORDER
(PER HON'BLE SHRI HRIDAY NARAIN, MEMBER (ADMN.) This application has been filed seeking to set aside the impugned order dated 27.1.2000 of the 4th respondent imposing a penalty of removal of the applicant from service, as confirmed by the 3rd respondent vide Appellate Authority's Order dated 5.1.2006 and further confirmed by the 2nd respondent (Revising Authority) vide order dated 13.6.2006, declaring the said impugned orders as arbitrary, illegal, unwarranted, misconceived and in violation of Articles 14 and 16 of the Constitution of India and consequently to direct the respondents to consider the case of the applicant for imposing lesser punishment proportionate to the gravity of offence as was imposed in similar other cases cited by the applicant, duly reinstating the applicant into service, with all consequential benefits.
2. The brief facts of the case, as stated by the applicant in the OA, are that the applicant was appointed on compassionate grounds as Loco Khalasi, Vijayawada Loco Shed, Vijayawada to work as a Bread-winner to the bereaved family of late Shri P.Hamid Khan, A-Grade Driver, Donokonda, who died while in service. He was promoted as Engine Cleaner in 1986, as First Fireman in 1987 and Traction Assistant in the same year. He was transferred from Vijayawada Division to Secunderabad Division on mutual transfer vide order dated 22.2.1994 and joined at Dornakal Railway Station on 2.4.1994. While working as such, the applicant fell sick from 23.7.1997 to 19.1.1998 and got treatment under a Doctor by name Dr.M.Venkatadri, MBBS, CMO/Civil Assistant Surgeon, Osmania General Hospital, Hyderabad who issued a medical certificate dated 15.6.1998 certifying sickness of the applicant from 23.7.1997 to 15.6.1998. The applicant reported to the Chief Crew Controller, S.C.Railway, Secunderabad Railway Station along with the said certificate. He was later on directed to the Railway Hospital, Mettuguda for medical examination and for issue of of duty fit certificate to enable the respondents to take the applicant for duty. The applicant was kept under medical observation at the Railway Hospital and later was issued with a certificate as 'not fit for foot plate duties' for a period of six months and accordingly he submitted the said certificate to the Chief Crew Controller, S.C.Railway, Secunderabad for further action. From then onwards, no orders were issued by the respondents which resulted in non drawal of salary of the applicant for all these years and the applicant was kept waiting without taking any decision. On 4.2.1998, a major penalty charge sheet dated 4.2.1998 was issued by the 4th respondent alleging unauthorized absence for the period from 23.7.1997 to 19.1.1998 which was never served on the applicant. The applicant himself procured the said charge sheet from the DME(P) office, S.C.Railway, Secunderabad. Subsequently, the penalty advice dated 27.1.2000 was also obtained through the applicant's colleagues soon after it came to the knowledge of the applicant, in which it is stated that the applicant had been removed from service on charge of alleged absence. Thereafter, the applicant submitted an appeal dated 13.6.2005 which was not replied. Aggrieved by the same, he wrote to the Director of Public Grievances, Cabinet Secretariat, New Delhi for taking up the matter with the Railway Board, New Delhi as there is no action on the appeal even after a lapse of six months. Thereafter, the appellate authority issued the impugned order dated 5.1.2006 confirming the penalty order of removal from service imposed on the applicant. The applicant submitted a revision petition dated 14.1.2006 to the 2nd respondent which was also rejected confirming the penalty order. The applicant, aggrieved by the said impugned orders, filed the present OA with the aforesaid prayer.
3. The main contention of the applicant is that the penalty of removal from service is harsh, excessive and disproportionate to the gravity of offence and in other similar cases, the employees were awarded lesser punishments. It is stated that the applicant was not given opportunity to engage defense counsel to assist him in the DAR proceedings. He was also not given opportunity for perusal of the records to enable him to submit his written statement of defence to the disciplinary authority to decide whether to proceed with the inquiry or drop the charge under Rule 9(1) of DAR Rules, 1968. The Inquiry Officer was appointed without the knowledge of the applicant and without intimating his appointment to the applicant in the standard prescribed format. The applicant states that he was not given opportunity to represent against the ex-parte inquiry report to enable the disciplinary authority to apply his mind into the various issues and decide the case. Principles of natural justice were not followed by the respondents. The applicant states that he was entitled for the leave salary as he was residing 2.5 Kilo meters away from the Railway Hospital, as per Railway Board's orders on the subject.
4. The respondents have filed reply statement on 1.2.2008 stating that since the applicant remained unauthorised absent from 23.7.1997 to 19.1.1998 without sanction of leave by the competent authority and without medical certificate issued by the Railway Doctor, he was issued with a memo dated 4.2.1998 under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 proposing to hold an inquiry against him and the said charge memo was served on the applicant on 16.6.1998. The applicant submitted a letter dated 12.10.1998 informing that he was under treatment for the period from 23.7.1997 to 16.6.1998 and a private medical certificate issued by the doctor of Osmania General Hospital for sick and fit dated 15.6.1998 was also enclosed to the same. The applicant did not attend the inquiry proceedings conducted on 4.1.1999, 15.1.1999 and 26.1.1999, 12.2.1999, 23.2.1999 and finally on 5.3.1999. The applicant did not attend the inquiry on any of these dates, inspite of issuing the last three notices by affixing them on the Notice Board . Hence, the inquiry was held ex-parte by examining the witnesses on behalf of the department. The Inquiry Officer submitted the report with a finding that the charge against the applicant is proved in the inquiry and the report of the inquiry, along with the other proceedings in the said inquiry, were sent to the applicant to submit his representation, if any, against the findings within 15 days from the date of receipt and the same was acknowledged by the applicant on 21.10.1999. As the applicant never submitted any representation against the said findings, the disciplinary authority after considering the entire material on record imposed the punishment of removal from service with immediate effect by proceedings dated 27.1.2000 with a further direction to file an appeal within 45 days from the date of receipt of a copy of the same and the same was acknowledged by the applicant. The applicant submitted an appeal dated 13.6.2005 to the 3rd respondent herein almost after five years after the proceedings dated 27.1.2000 and as the same was not disposed of, he submitted representation to the Secretary, Public Grievance, Directorate of Public Grievances at New Delhi on 15.11.2005 in regard to the punishment and the said authority forwarded the same to the Railways. The 3rd respondent, by proceedings dated 5.1.2006, confirmed the order of the disciplinary authority and the same was acknowledged by the applicant on 10.1.2006. Subsequently, the applicant filed a revision petition before the 2nd respondent on 14.1.2006 and the said authority granted personal hearing to the applicant on 18.5.2006 and by order dated 13.6.2006 confirmed the order of the disciplinary and appellate authority rejecting the revision filed by the applicant. The respondents have submitted that the entire proceedings have been done as per the rules and no reason much less valid is adduced for the long unauthorized absence of the applicant. It is stated that the entire rail system is inter connected and it is not known why the applicant could not inform the authorities at Secunderabad or his station his whereabouts more than a year. During the period of unauthorized absence, the applicant never informed the administration his whereabouts or sought for any leave or intimated his sickness. Though the applicant acknowledged the disciplinary authority's order dated 27.1.2000 on 25.4.2001, he submitted the appeal only on 13.6.2005 more than four years after the receipt of the same. Hence the contentions of he applicant that the appellate authority had not acted within the time etc. are untenable and liable to be rejected. The respondents further state that the applicant is very much aware that he was not paid any salary during the said period as he was on unauthorized absence and by reporting to the Railway Hospital he can avail free treatment and medical leave for the entire period of his sickness which he did not prefer to do. The contention of the applicant that he could produce private medical certificate as he stays beyond 2.5 Kms away from the Railway Hospital is also incorrect as he has to report to the medical Attendant at his Headquarters Dornakal Health Unit.
5. The applicant has filed rejoinder on 29.2.2008 reiterating the submissions made in the OA. It is stated that the approved method of serving charge sheet and date of intimation of inquiry letters ought to have been sent by Registered post with acknowledgment due to the applicant's known address. But, the respondents have adopted illegal method in serving the charge sheet in other means, namely, other than Postal Registered Letters. The respondents have also not sent the ex-parte inquiry proceedings by registered post to enable him to submit his objections against holding the ex-parte inquiry. The applicant further states that he is only the bread-winner appointed on compassionate grounds to look after his family, and, therefore, he cannot be imposed with such a harsh and excessive penalty of removal from service on the charge of the alleged absence which, in fact, not alleged absence but it was covered by a private medical certificate and his case is not a case of moral turpitude involved, but it is a case of neglect since he had, instead of reporting to the Railway Hospital, reported to a private doctor for treatment.
6. Heard Shri S.Ramakrishna Rao, learned counsel for the applicant and Shri M.C.Jacob, learned standing counsel for the respondents. Both of them have supported their respective pleadings.
7. Shri S.Ramakrishna Rao, learned counsel for the applicant emphasised various short-comings in the entire disciplinary proceedings like non-service of charge sheet and inquiry report on the applicant in a proper manner and lack of proper opportunity of hearing at every stage. He also requested that the records of the case should be summoned and accordingly the respondents' counsel produced the records. A perusal of the records shows that there is an acknowledgment signed by the applicant on 16.6.1998 regarding service of the Standard Form No.5 dated 4.2.1998. Similarly, there is on record an acknowledgment signed by the applicant on 21.10.1999 regarding receipt of the inquiry report. An acknowledgment regarding receipt of the disciplinary authority's order is also available on record which shows that the applicant received the said order on 25.4.2001. Therefore, the contention of the learned counsel for the applicant regarding non service of the important documents to the applicant is not accepted and it is held that there was no violation of principles of natural justice in the disciplinary proceedings so as to warrant any interference at the hand of this Tribunal.
8. The learned counsel of the applicant further submitted that in any case since the default of the applicant did not involve any moral turpitude, the punishment given was harsh. He relied upon a judgment of the Hon'ble Supreme Court in the case of Alexander Pal Singh v. Divisional Operating Superintendent and others, reported in [1987] 2 ATC 922. He also relied upon an order of the Central Administrative Tribunal, Jodhpur Bench in the case of Rajendra Kumar Pareek v. Union of India and others, reported in AISLJ 2001 (3) (CAT) 97.
9. We have carefully considered the arguments of the applicant's counsel and have gone through the materials on record. As already mentioned above, we do not find any infirmity in the disciplinary proceedings. As regards the punishment, the argument of the learned counsel of the applicant appears convincing in the first blush. But on deeper examination, we find that there is no case for interference even in the punishment awarded. The reason for this is that the applicant filed his appeal itself after more than four years and for more than a year, the Railway authorities were in the dark even regarding the whereabouts of the applicant. A Railway employee, who acts in such an irresponsible manner, does not deserve any sympathy and in any case this Tribunal interferes in the discretion of the disciplinary Authority only in those cases where the punishment given is extremely disproportionate to the default of the employee. In this case, we do not find that the punishment given is so disproportionate so as to require our interference in the matter. As regards the cases cited by the learned counsel of the applicant, we find that they are not applicable in the facts of the present case. In view of this, the punishment given is also upheld and thus the OA is dismissed. There shall be no order as to costs.
(HRIDAY NARAIN) (BHARATI RAY) MEMBER (ADMN.) MEMBER (JUDL.)