Central Administrative Tribunal - Cuttack
Santosh Kumar Dwivedy vs M/O Railways on 18 January, 2021
OA NO. 168/2016 1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH O.A. No.168/2016 CORAM:
HON'BLE MR.SWARUP KUMAR MISHRA, MEMBER(J) HON'BLE MR.TARUN SHRIDHAR, MEMBER(A) Santosh Kumar Dwivedy, aged about 56 years, S/o Late Rajkishore Dwivedy, permanent resident of Vill/PO: Bedasasan, PS. Bantala, Dist. Angul, at present working as Chief Office Superintendent, under Asst. area Railway Manager, East Coast Railway, At/PO-Titilagarh, Dist. Bolangir.
............Applicant VERSUS
1. Union of India represented through the General Manager, East Coast Railwa, At/PO: Chandrasekharpur, Bhubaneswar, Dist.Khurda.
2. Divisional Railway Manager, East Coast Railway, Sambalpur Railway Division, At/PO-Khetarajpur, Dist-Sambalpur.
3. Senior Divisional Operations Manager, East Coast Railway, At/PO- Sambalpur, Dist-Sambalpur.
4. Divisional Operations Manager (G), East Coast Railway, Sambalpur, At/Po/Dist-Sambalpur.
5. Divisional Operations Manager (P), East Coast Railway, Sambalpur, At/Po/Dist-Sambalpur.
6. Assistant Area Railway Manager, East Coast Railway, At/PO-Titilagarh, Dist-Bolangir.
......Respondents.
For the applicant : Mr. M.K. Rath
For the respondents: Mr. B.B. Patnaik
Heard & reserved on : 03.12.2020 Order on :18.01.2021
O R D E R
Per Hon'ble Mr. Swarup Kumar Mishra, Member (J):-
The applicant is an employee of the East Coast Railway and has
approached this Tribunal seeking the following relief(s):- OA NO. 168/2016 2
"(i)To pass appropriate orders quashing the order dated 11.03.2016 in Annexure-A-9 so far as it relates to release of salary and further directing the respondents-authorities to release the salary for the months of February, 2016 and March, 2016 in favour of the applicant.
(ii) To pass appropriate orders directing the respondents- authorities to pay the current salary to the applicant regularly; and
(iii) To pass any other appropriate direction/orders as may be deemed fit and proper and allow the OA with cost."
2. The facts of the present O.A. are that the applicant joined as Chief Office Superintendent under the Assistant Area Railway Manager, Titilagarh (Res. No.6) in the year 2013 and is continuing as such till date. While continuing as such the Respondent No.3 vide his letter dated 16.12.2015 (Annexure-A/1) informed the Respondent No.6 to maintain the attendance register of staff for smooth management of the office. Thereafter on 11.12.2015 the attendance register and the computer which was under the control of Respondent No.6 was forcibly taken away by the Respondent No.3. On 29.12.2015 Respondent No.6 informed the Respondent No.3 that a new attendance register was opened and also lodged an FIR on 18.12.2015 before the GRP, Titilagarh alleging against Respondent No.3 for stealing of attendance register forcibly. Thereafter the applicant has also signed the newly opened attendance register by the Respondent No.6 and the muster rolls were also sent to the Respondent No.5 on each and every month for preparation and necessary passing of the salary bill of staff. Although the muster roll for the month of January, 2016 was sent to respondent No.5 but no salary was paid to the applicant and the salary slip for the month of January, 2016 shown as nil duty days.
3. Being aggrieved, the applicant made a representation dated 04.02.2016 (Annexure-A/5) before the Respondent No.2 ventilating his grievances therein interalia requesting to release his salary for the month of January, 20016. Thereafter, on 18.02.2016 the salary for the month of January, 2016 was released in faour of the applicant. It is submitted that again the salary of the applicant for the month of February, 2016 was stopped without any reasons. While the matter stood thus, the Respondent OA NO. 168/2016 3 No.5 vide order dated 26.02.2016 (Annexure-A/7) transferred and posted the applicant in the office of the Station Manager, Titilagarh, where there is no post of Chief Office Superintendent exists. Being aggrieved applicant made representation dated 03.03.2016 (Annexure-A/8) before Respondent No.2 challenging the illegal action on the part of the authorities in transferring him to a place where there is no post of Chief Office superintendent under the Station Manager, Titilagarh and that too without releasing his pay for the month of February, 2016. Thereafter vide order dated 11.03.2016 (Annexure-A/9) Respondent No.2 rejected the representations filed by the applicant on the ground that as he was marked absent in muster roll, no salary could be released for the month of February and March, 2016. Hence, the applicant has filed the present with the above mentioned relief(s).
4. The respondents have filed the counter, wherein it is mentioned that while the applicant was working as Chief Office Superintendent under Respondent No.6 was transferred from the office of the Station Manager, Titilagarh in administrative interest vide order dated 26.02.2016. However, a muster roll for the period from 11.01.2016 to 10.04.2016 was submitted by the AARM/TIG showing the applicant is present. Simultaneously another muster roll for the same period was submitted by the Station Manager/TIG showing the applicant is absent. Therefore, Respondent No.3 being the administrative authority decided that the applicant's absence in the muster roll submitted by SMR/TIG through respondent No.5 will be treated as unauthorised absence and hence no salary can be drawn and accordingly the salary was not released in favour of the applicant.
5. It is further submitted that the applicant while working under Respondent No.6 showed his indiscipline as a Railway servant towards the Railway administration by manipulating the muster roll covering the period from 17.03.2015 to 24.03.2015 which was once left blank but later the applicant put his signature illegally. The act of manipulation in muster roll OA NO. 168/2016 4 done by him in a mala fide manner was to achieve personal benefits for drawing salary from Railway. So, he was issued charge memorandum of minor penalty and imposed punishment of stoppage of annual increment for a period of 35 months with non-cumulative effect vide order dated 08.01.2016 (Annexure-R/1). It is further submitted that on 25.06.2015 a surprise inspection was conducted in the office of Respondent No.6 by the Respondent No.4 and it was found that the applicant was absent on that date. On enquiring, explanation was given by Respondent No.6 vide his letter dated 11.08.2015 that the applicant was on casual leave on the said date. On scrutiny of the muster roll of the applicant for the period from 11.06.2015 to 10.07.2015 it was found that instead of casual leave the applicant was marked present on 25.06.2015. It is clearly proved that the respondent No..6 who was controlling officer of the applicant was unduly favoured him and was not maintaining muster roll correctly.
6. It is further submitted that as per conduct rule every staff has to put their signature in muster roll and it has to be ensured by supervisor. But, respondent No.6 who is the controlling officer did not follow the rules and failed in discharging of his duties. It is further submitted that the muster roll for the month of January 2016 sent by respondent No.6 to respondent No.3 was illegal and not authentic. Hence, the same muster roll was not taken into consideration for release of salary. It is further submitted that the applicant made representation dated 04.02.2016 before the Respondent No.2 requesting him to release his salary for the month of January-2016. In reply to the representation of the applicant it was informed to him vide letter dated 11.03.2016 that respondent No.3 vide letter dated 16.12.2015 has directed the staff who were working under respondent No.6 to sign the muster roll in the office of the Station Manager/Titlagarh. But the applicant failed to carry out the said administrative order. Hence, the applicant was marked absent in the muster roll sent by the Station Manager/Titlagarh and no salary could be released.
OA NO. 168/20165
7. It is submitted that the salary for the month of January-16 was not paid to the applicant initially as the respondent No.5 has received two muster roll i.e. one submitted by the respondent No.6 wherein the applicant was marked present and the other one submitted by the Station Manager/Titlagarh where the applicant was marked absent. The muster roll submitted by the Station Manager/Titlagarh was as per administrative order and the other one submitted by respondent No.6 was in violation to administrative order, so, his salary for the month of January-16 was not released. It is submitted that the Respondent No.6 has violated the order dated 16.12.2015 passed by the respondent no.3 and illegally a new muster roll was created and maintained. The staff working under respondent No.6 failed to carry out the administrative order though the applicant was well aware that he has to sign his attendance henceforth at Station Manager Office/Titlagarh. Hence, the salary for the month of February, 2016 could not released. It is submitted that the case of transfer of the applicant has been considered by a duly constituted placement committee. The decision was taken to post the applicant at Station Manager office/Titlagarh to regulate his presence and improvement of working culture. Further, it is also felt that, no hardship will be caused to the applicant if he is to operate from the office of the Station Manager/Titlagarh as no change of headquarter was required. His grievance regarding transfer has already been disposed of by respondent no.2 in compliance to the order of this Tribunal dated 07.04.2016 passed in O.A. No.196/2016 vide order dated 25.05.2016 (Annexure-R/9). In view of the above, the O.A is not maintainable in the eyes of law and hence liable to be dismissed.
8. The applicant has filed the rejoinder to the counter filed by the respondents. It is submitted that in order dated 16.12.2015 of the Senior DOM (Respondent No.3) to the SMR/TIG for submission of Muster Roll and exercise his authority over salary. On the other hand the AARM(Respondent No.6) has also given his remarks on the same letter OA NO. 168/2016 6 dated 16.12.2015 through his letters dated 18.12.2015 and 29.12.2015 before the DRM (Respondent No.2) highlighting the irregularities done by the Respondent No.3 but no action was taken in the matter. It is further submitted that the order of transfer dated 26.02.2016 was challenged before this Tribunal in O.A. No.196/16, where in vide order dated 07.04.2016 this Tribunal was pleased to dispose of the said OA directing the Respondent No.2 to consider the representation of the applicant as per rules and regulations in force and also to direct to maintain status quo in respect of the service of the applicant. In compliance of the order of this Tribunal Respondent No.2 passed a speaking order dated 25.05.2016 rejecting the claim of the applicant. Being aggrieved, the applicant approached this Tribunal in OA. No.405/16 which was withdrawn on 20.06.2016. Thereafter, the applicant filed another OA No.470/16 which was disposed of vide order dated 15.07.2016 with a direction to the General Manager (Respondent No.1) to dispose of the grievance of the applicant. Thereafter, in pursuance of the order of this Tribunal the Respondent No.1 passed a speaking order dated 30.10.2016 directing the applicant to report at the office of the Station Manager, Titilagarh and accordingly, the applicant joined there on 19.10.2016.
9. It is further submitted that prior to the above order the applicant was never relieved of his duties and has been continuing in the office of the Respondent No.6 in pursuance of the order of the status-quo passed by this Tribunal and putting his signature in the attendance register regularly and as such he is eligible and entitled to the salaries for the said period as per the muster roll submitted by the respondent No.6. It is further submitted that as against the order of punishment dated 08.01.2016, the applicant has preferred an appeal before the appellate authority which is still pending consideration. It is submitted that the order dated 16.12.2015 was addressed to the respondent No.6, but not to the applicant and the respondent No.6 being his immediate authority, the applicant had to carry OA NO. 168/2016 7 out his orders and accordingly, he put his signature in the attendance register newly opened by the respondent No.6.
10. It is submitted by the applicant that the muster roll for the month of January, 2016 sent by the respondent No.6 was illegal and not authentic, but the salary for the month of January, 2016 was released in favour of the applicant, but the salary of subsequent months have not yet been released without any reasons or rhymes even though the muster rolls of each and every month has been sent to the competent authority. It is further submitted that no such written order has ever been communicated to the applicant advising/directing him to sign the attendance register at the office of the SMRT/TIG. It is submitted that the order dated 16.12.2015 was communicated to the respondent No.6 under whom the applicant is working and as such the applicant has obeyed the direction/instruction of respondent no.6. It appears for violation of the order by respondent No.6 the applicant has been made to suffer and his salary from the month of February, 2016 and onwards has not yet been released.
11. It is further submitted that the order of transfer was challenged before this Tribunal and by virtue of the order of status quo the applicant has been continuing in his post and recently he was relieved of his duties on 19.10.2016 in pursuance of the order of the Respondent No.1 and has already joined in the office of the SMR/TIG on 19.10.2016. But prior to this the applicant has never been relieved of his duties. It is submitted by the applicant that vide order dated 15.07.2016 of this Tribunal respondent No.1 was directed to dispose of the representation of the applicant by passing a reasoned and speaking order. Accordingly, respondent no.1 passed a speaking order on 03.10.2016. In view of the above stands taken by the respondents authorities in the counter are not sustainable and as such liable to be quashed and the O.A. be allowed with costs.
12. Admittedly no departmental proceeding has been initiated against the applicant for any unauthorised absence. There is no averment from the side OA NO. 168/2016 8 of the respondents to show that the applicant had wilfully remained absent from the duty for the period in question. On the other hand the materials on the record do not show that the applicant had remained absent from duty and had not performed his normal duty for the period in question i.e. for the period from 11.01.2016 to 10.04.2016. The mere non-signing of the muster roll before the Station Manager, Titilagarh cannot by itself be a ground to withhold his salary for that period since there are materials on record including the letter dated 11.01.2016 of respondent no.6 to show that the applicant had signed the muster roll which was maintained by respondent no.6. The applicant has been shown as present in the muster role submitted by respondent no.6 but the applicant was shown as absent in the muster roll submitted by the station manager Titlagarh. When there was communication gap and lack of coordination between the station master Titlagarh and respondent no. 6 regarding maintenance of muster rolls, it appears that the applicant has been made scapegoat as two muster rolls have been maintained, in one muster roll submitted by respondent no.5 the applicant is shown as present and in other muster roll submitted by station master the applicant is shown as absent. It was for the competent authority to make necessary communication to the concerned employees including the applicant regarding the exact muster roll they were supposed to sign during that period. Due to such lack of effective communication the applicant should not suffer. The ground taken by the applicant that there was no communication addressed to the applicant directing him that he should sign in the register newly opened by the Station Master Titlagarh as the letter/office order dated 16.12.2015 was not addressed to the applicant but was addressed to respondent no.6. The reason for which no departmental proceedings has been started against the applicant for not signing the muster roll by him before cannot be a ground to withheld his salary and other allowances to which he was entitled.
OA NO. 168/20169
13. Hence ordered. The OA is allowed with direction to respondent no.2 to release the salary and other allowances including arrears to the applicant within three months from the date of receipt of this order. No order as to cost.
(TARUN SHRIDHAR) ( SWARUP KUMAR MISHRA) MEMBER(A) MEMBER(J) K.B.