Central Administrative Tribunal - Delhi
Kanhaiya Lal S/O Sh. Puran Chand vs Union Of India Through The General ... on 9 September, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.353/2013
Order reserved on: 04.09.2014
Order pronounced on: 09.09.2014
Honble Mr. G.George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Kanhaiya Lal S/o Sh. Puran Chand,
R/o S-373, School Block, Sakarpur,
Delhi-110092. -Applicant
(By Advocate: Shri Yogesh Sharma)
Versus
1. Union of India through the General Manager,
Northern Railway, Baroda House,
New Delhi.
2. The Senior Commercial Manager (DB),
Northern Railway, IRCA Building,
Reservation Complex, New Delhi.
3. The Assistant Commercial Manager/Reservation,
Northern Railway, IRCA Building,
Reservation Complex, New Delhi. -Respondents
(By Advocate: Shri Shailendra Tiwary)
O R D E R
Mr. G. George Paracken, Member (J):
The applicant has filed this Original Application challenging the impugned order dated 13.08.2012 of the Respondent-Railways passed under Rule-9 of the Railway Service and Conduct Rules, 1968 read with Rule-14 (ii) of Railway Servants Discipline and Appeal Rules, 1968 imposing upon him the penalty of removal from service with immediate effect.
2. According to the said order, the applicant, while serving as Sr. Khallasi in IRCA Reservation building under Asstt. Commercial Manager/Reservation, spoke to the representative of the CNN IBN News Channel telecast on 10.08.2012 and made the following statement:-
1. 2.3 months before the festival season, touts buy tickets worth lacks, and then sell during the season.
2. The touts take a gamble. In emergency situations passengers pay any amount for tickets. For a Rs.1100/- ticket tout charge Rs.2000/-.
3. We charge Rs.5-8 per ticket. Pay the clerks at ticket counter. He will get it done.
4. just do as I have told you hire 3-4 boys to operate at reservation counters. Your work will keep happening.
3. According to the Disciplinary Authority, by giving the aforesaid statements to the News Channel which was aired in the entire country, the applicant had very grievously harmed the image and reputation of Indian Railways. Further according to the Disciplinary Authority, it was not reasonably practicable to hold an enquiry as per Rule-9 of the Railway Service and Conduct Rules, 1968. Therefore, in exercise of the powers conferred on him under Rule-14(ii) of the Railway Servants Discipline and Appeal Rules, 1968, he was imposed upon with the penalty of removal from service with immediate effect.
4. The applicant appealed against the aforesaid order on 22.08.2012 flatly denying the allegations made in the aforesaid impugned order of the Disciplinary Authority. He denied having spoken anything to the representative of the CNN IBN News Channel on 10.08.2012 as alleged against him. Further according to him, the whole contents of the impugned order are false, concocted, unfounded, baseless, malicious and it was issued to him with ulterior motive and fraught with malafide intention, purely with a view to shift the complete administrative failure to provide amenity to the Railway passengers, particularly the poor group D employees. He has also stated that he had completed more that 28 years of un-interrupted service with outstanding performance; he has been discharging his duty with utmost sincerity, honesty and devotion and there was not a single complaint against him. He pleaded that he was innocent and he was not aware of any such incidents mentioned in the impugned order. Further according to him, it was only a trick manipulated by the media persons to implicate the lowest ebb of the employees. He has also challenged the applicability of Rule-14 of the Railway Servants Discipline & Appeal Rules, 1968 in his case as there was no such situation that the enquiry was not practicably possible. The Disciplinary Authority has also failed to record the reasons as to why the enquiry could not be conducted under Rule-9 of the Railway Servants Discipline & Appeal Rules, 1968.
5. As no action was taken by the respondents on the aforesaid appeal, the applicant has filed this Original Application seeking an order to quash and set aside the impugned order dated 13.08.2012 and to declare the same illegal, arbitrary, against the Rules and the principles of natural justice. He has also sought a direction to the respondents to reinstate him in service with all consequential benefits.
6. During the pendency of this Original Application, the Appellate Authority has passed its order on 12.02.2013, rejecting his appeal. The relevant part of the said order reads as under:-
There is a vital document i.e. CD which was provided by Media. I have also examined the CD provided by the Media and found that there is a sufficient evidence to prove the charges levelled against you. The leading evidence on the basis of CD tantamount does not only establish your indulgence in touting activities but also the possibility of promoting touting activities cannot be ruled out. As such you are responsible to damage Railways Image and extorting money from innocent passengers.
You had committed the grave irregularity by giving these statement to News Channel which does not only tantamounts to promote touting activities but also reveals indulgence in touting activity & harmed/defaced the image and reputation of Indian Railway and contravened the provision of rule 8&9 of Railway Servant Conduct Rule, 1966 by giving such statement to Media for which you are not authorized.
Thus, as the charge is grave in nature and I find you are fully responsible for the charges levelled against you and does not find you a fit person to be retained in Railways service. Besides I do not find any merit tp deviate from the decision of DA as such I hold the punishment good awarded by the DA i.e. Removal from service with immediate effect.
7. Respondents have filed their reply reiterating what they have stated in the orders of the Disciplinary Authority and the Appellate Authority dated 13.08.2012 and 12.02.2013 respectively.
8. We have heard the learned counsel for the applicant Shri Yogesh Sharma and learned counsel for the respondents Shri Shailendra Tiwary. Rule-14 of the Railway Servants Discipline & Appeal Rules, 1968 is a Special Procedure to be followed in certain cases and it is an exception to the procedure prescribed in Rules 9 to 13 thereof. Rule-9 deals with the procedure for imposing major penalties which culminates in the submission of the report of enquiry by the Enquiry Officer. Rule-10 deals with the action to be taken on the enquiry reports. Rule-11 deals with the procedure to be followed in imposing minor penalties. Rules 12 and 13 deal with communication of orders and common proceedings respectively. However, according to Rule-14, in certain circumstances mentioned therein, no enquiry is required to be held as envisaged in Rule-9 or Rule-11. The said Rule reads as under:-
14. Special procedure in certain cases - Notwithstanding anything contained in Rules 9 to 13 -
(i) where any penalty is imposed on a Railway servant on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or
(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules; the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:
Provided that the Railway servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case falling under clause (i) above:
Provided further that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule.
10. Sub-Rule (ii) of Rule-14 does not given any unbridled power to the Disciplinary Authority to dispense with the enquiry as provided under Rules 9 and 11. In order to invoke the said provision, the Disciplinary Authority has to be satisfied itself that it is not reasonably practicable to hold an inquiry in the manner provided in those Rules. Before arriving at such a conclusion, the Disciplinary Authority is required to record his reasons in writing. In the impugned order of the Disciplinary Authority, no reasons whatsoever have been given as to why it was not practicably possible to hold an inquiry in the manner.
11. It is seen that Rule-14 of the Railway Servants Discipline & Appeal Rules, 1968 finds its origin from Article 311(2) of the Constitution of India which reads as under:-
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges [Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply-]
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.
12. The Apex Court considered the issues in its judgments in the cases of Union of India Vs. Tulsi Ram Patel (1985) 3 SCC 398 and Satyavir Singh & Others v. Union of India, (1985) 4 SCC 252. In Tulsi Ram Patels case, the Apex Court held as under:-
133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.
134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore find a place in the final order. It would be usual, to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing. the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry.
13. In its judgment in the case of Satyavir Singh & Others (supra), the Apex Court held as under:-
(55) There are two conditions precedent which must be satisfied before Cl. (b) of the second proviso to Art. 311(12) can be applied. These conditions are :
(i) there must exist a situation which makes the holding of an inquiry contemplated by. Art. 311(2) not reasonably practicable, and
(ii) the disciplinary authority should record in writing its reason for its satisfaction that it is not reasonably practicable to hold such inquiry.
(56) Whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so.
(57) It is not a total or absolute impracticability which is required by Cl. (b) of the second proviso. What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.
(58) The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. The disciplinary authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of the prevailing situation that Cl. (3) of Art. 311 makes the decision of the disciplinary authority on this question final.
(59) It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry. Illustrative cases would be
(a) where a civil servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so, or
(b) where the civil servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held, or
(c) where an atmosphere of violence or of general indiscipline and insubordination prevails, it being immaterial whether the concerned civil servant is or is not a party to bringing about such a situation. In all these cases, it must be remembered that numbers coerce and terrify while an individual may not.
14. In the present case we are of the considered view that the impugned order dated 13.08.2012 passed by the Disciplinary Authority is not in accordance with the Rule-14(ii) of Railway Servants Discipline & Appeal Rules, 1968 inasmuch as that the Disciplinary Authority has not recorded any reason for dispensing with the enquiry. Even otherwise in the facts and circumstances of the case, we are of the considered view that there are no such situations prevailing which prevents the Disciplinary Authority to hold the enquiry into the allegations against the applicant under Rule-9 of the Railway Servants Discipline & Appeal Rules, 1968. The order of the Appellate Authority rejecting the appeal is also illegal and wrong as the same has been passed without any application of mind. We, therefore, allow the Original Application and quash and set aside the impugned order of the Disciplinary Authority dated 13.08.2012 and the order of the Appellate Authority dated 12.02.2013. Consequently, the respondents shall reinstate the applicant in service forth-with with all consequential benefits. The aforesaid directions shall be complied with within a period of two months from the date of receipt of a copy of this order. However, liberty is granted to the respondents to hold an enquiry against the applicant in accordance with the provisions contained in Rule-9 of the Railway Service and Conduct Rules, 1968, if so advised.
15. There shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) cc.