Central Administrative Tribunal - Patna
Jitendra Kr vs Railway on 7 March, 2025
1 OA No. 334 of 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00334 of 2017
Reserved on: 4th March, 2025.
Pronounced on: 07.03.2025.
CORAM
HON'BLE MR. KUMAR RAJESH CHANDRA, MEMBER [A]
HON'BLE MR. RAJVEER SINGH VERMA, MEMBER [J]
Jitendra Kumar, Son of Madhuban, Ex-Telephone Attendant Cum Dak
Khalasi (Tadk) under Senior Divisional Electrical Engineer (G), East
Central Railway, Dhanbad, Resident of Village-Bankata, Post-Kanaila
District-Basti (UP).
.......... Applicant.
By Advocate: - Shri M.P. Dixit.
-Versus-
1. Union of India, through General Manager, East Central Railway,
Hajipur, P.O.- Hajipur, District-Vaishali (Bihar).
2. The General Manager (Personnel), East Central Railway, Hajipur,
P.O.- Hajipur, District-Vaishali (Bihar).
3. The Chief Electrical Engineer, East Central Railway, Hajipur, P.O.-
Hajipur, District-Vaishali (Bihar).
4. The Financial Advisor & Chief Accounts Officer, East Central
Railway, Hajipur, P.O.- Hajipur, District-Vaishali (Bihar).
5. The Divisional Railway Manager, East Central railway, Dhanbad.
6. The Additional Divisional Railway Manager, East Central railway,
Dhanbad.
7. The Senior Divisional personnel Officer, East Central railway,
Dhanbad.
8. The Senior Divisional Electrical Engineer (G), East Central
railway, Dhanbad.
9. The Senior Divisional Financial Manager, East Central railway,
Dhanbad.
10. The Divisional Electrical Engineer (G), East Central railway,
Dhanbad.
11. Sri S.C. Choudhary, the Senior Divisional Electrical Engineer (G),
East Central railway, Dhanbad.
........ Respondents.
By Advocate: - Shri Ravindra Rai.
ORDER
Per:- Kumar Rajesh Chandra, Member (A)
1. Instant OA has been filed by the applicant for the following relief: -
2 OA No. 334 of 2017
"8.1 That your Lordships may graciously be pleased to quash and set aside the order of Removal from service dated 05.11.2015 as contained in Annexure A/12 passed by the Respondent No.10 together with orders dated 03.08.2016 and 18/19.04.2017 as contained in Annexure A/14 and A/16 passed by appellate and Revisional Authority. 8.2 That Your Lordships may further be pleased to hold and declare the charge sheet dated 18.05.2015 based on no RUDs and PWs as contained in Annexure A/5 and also the Inquiry report dated 06.10.2015 as contained in Annexure A/9 as perverse and void ab initio wrong. 8.3 That your Lordships may further be pleased to direct /command the Respondents to re-instate the applicant in service against the post of Telephone Attendant Cum Dak Khalasi without any further delay.
8.4 That the Respondents be further directed to grant all consequential benefits including arrears of pay with interest thereupon with effect from 28.10.2014 to the date of his re- instatement in service.
8.5 Any other relief or reliefs including the cost of the proceeding may be allowed in favour of the Applicant."
2. The facts of the case of the applicant as narrated in the OA is that: -
(i) Applicant was appointed to the post of Substitute Telephone Attendant Cum Dak Khalasi in short Sub TADK in the pay scale of Rs. 5,200/- to Rs.20,200/-
Grade Pay of Rs. 1,800/- vide appointment letter dated 01.11.2013 by the Respondent No.6, i.e. Sr. DPO and he was attached with the Respondent No.11 and accordingly he resumed the duty on 01.11.2013. He was granted Temporary Status w.e.f. 01.03.2014 vide order dated 03.06.2014.
(ii) That the applicant has worked continuously up to 27.10.2014 but while the applicant was working at the residence of Respondent No.11, he was deprived to perform his duty without any rhyme and reason from 3 OA No. 334 of 2017 28.10.2014. It is stated that after his best effort he was allowed to work from 28.02.2015 but the salary from 28.02.2014 to 27.02.2015 has not been released to him and the respondent No.11 has disallowed him to perform duty after 10.04.2015 without any reason. Thereafter applicant sent representation on 22.05.2015 before the respondent authorities through registered post (Annexure-A/4).
(iii) In the meanwhile, the applicant has received one Major Penalty Charge Sheet without any relied upon documents/ prosecution witness dated 18.05.2015 (Annexure-A/5) issued by the Respondent No.10 wherein he has been alleged to be absent from duty since 28.10.2014. Thereafter, applicant submitted representation on 09.06.2015 denying the allegations leveled in the said Charge Sheet stating that he is not absent from duty which can also be seen from Annexure A/4.
(iv) That a Group-C employee was appointed as Inquiry Officer to conduct inquiry against the applicant on 22.06.2015 and preliminary inquiry was conducted on 10.08.2015 and regular inquiry was conducted and completed on 25.08.2015 in a single day itself in absence of any relied upon documents/ prosecution witness and applicant replied all the questions, denying all the allegations.
4 OA No. 334 of 2017
(v) It is further stated that charge sheet dated 18.05.2015 as contained in Annexure A/5 is not sustainable in the eye of law for the reason that the allegation leveled against the applicant is neither supported by any Relied Upon Documents nor supported by any Prosecution Witnesses and further the entire enquiry proceeding conducted by Inquiry Officer himself without any Presenting Officer and in absence of any supported RUDs and PWs is fully vitiated and as such the report of IO is treated to be perverse and also contrary to the order of Railway Board. It is further submitted that in the meanwhile the IO report was sent to the applicant through letter dated 06.10.2015 and from perusal of IO report it appears that the IO has said that the applicant has failed to bring documentary proof against the allegation which is clear lack of knowledge and law both for the reason that duty to prove the charges/allegation solely lies with the Prosecution and not with the delinquent employee. It is also submitted that the IO has completed enquiry in one day in absence of any RUDs/PWs and he himself put all questions and also cross examined the applicant which has been replied by the applicant which is evident from the proceeding dated 25.08.2015 as contained in Annexure A/8 and shows that even IO has failed to prove the charges against the applicant but even though he has submitted perverse report and applicant has 5 OA No. 334 of 2017 submitted his reply on 24.10.2015. Applicant submitted other representation on 07.10.2015 before the GM for allowing him to join on duty but nothing has been considered.
(vi) That in the meanwhile order dated 05.11.2015 was issued by respondent no.10 by which applicant has been ordered to be removed from service for un-authorized absent from duty on and from 28.10.2014 till the issue of charge sheet. Applicant preferred appeal against this order and also filed one OA No. 617/2016 before CAT, Allahabad which was withdrawn on 12.05.2016 being premature due to pendency of appeal. Appeal was rejected on 03.08.2016. Thereafter applicant filed revision petition on 19.09.2016 before respondent no.5 which was also rejected on 18/19.04.2017.
3. Learned counsel for applicant has averred that: -
(i) Applicant was working at the residence of respondent no.11 and he was never absent from duty but he was never allowed to mark his presence in the attendance register and he was marked absent from duty due to biasness by the respondent no.11.
(ii) Charge sheet dated 18.05.2015 is vague, non-specific, baseless and without any relied upon documents and witness.
(iii) Applicant denied all the charges. 6 OA No. 334 of 2017
4. Learned counsel for applicant has relied on the order/judgment dated 06.02.2025 passed by Hon'ble High Court in CWJC No. 7341/2024 and order dated 12.02.2025 passed by this Tribunal in OA No.386/2017 and prayed to allow this OA.
5. Respondents have filed written statement wherein it has been stated that: -
(i) The enquiry officer has been appointed by Disciplinary Authority as per provision available in the Railway Servant Discipline and Appeal Rules, 1968 for conducting DAR enquiry to provide the applicant opportunity to defend his case and to avoid violation of natural justice. On being appointed as the enquiry officer, Sri T.K. Sahau, Sr. Section Engineer (ELECT.)/Diesel/ECR/Dhanbad informed the applicant to attend preliminary D&AR enquiry on 03.07.2015. But the date of preliminary enquiry was subsequently re-fixed on 10.07.2015, 22.07.2015 and 10.08.2015 respectively due to failure of the applicant in attending the same at intimated date, time and place on every occasion till 22.07.2015 for the reason best known to him. Finally, the preliminary enquiry was conducted and concluded on 10.08.2015 and date for regular enquiry was fixed on 25.08.2015. Accordingly regular hearing was held on 25.08.2015 and concluded on date in presence of the applicant and his defense Counsel.7 OA No. 334 of 2017
(ii) It is further stated that applicant was attached with Sr. Divisional Electrical Engineer (General) Dhanbad Division where his duty was fixed and it is apparent from the absentee statement that the applicant was absent which is brought on record.
(iii) It is further stated that consideration of the representation made by the applicant was depending on finalization of disciplinary proceeding underway during the mentioned period.
(iv) It is also stated by the respondents that in terms of paragraph 9 of the Railway Servants Discipline and Appeal Rules, 1968 major penalty charge sheet (SF 5) was issued along with the statement of article of charge. The charge has been substantiated during inquiry and the applicant was found guilty for remaining unauthorized absent from duty since 28.10.2014. The entire inquiry proceeding has been conducted by inquiry officer in accordance with procedure laid down in the Railway Servant Discipline and Appeal Rules, 1968 having no influential percept of any other authority. Keeping in view the nature of offence which is definitely serious and unpardonable, the applicant was removed from Railway services with effect from 09.11.2015 by Disciplinary authority in his competence by the Railway Servant Discipline and Appeal Rules, 1968. The appellate authority was 8 OA No. 334 of 2017 satisfied with the disciplinary proceeding and considered the applicant an offender of remaining unauthorized absent and found the penalty imposed by Disciplinary Authority to be justified. The Revisional authority has also gone through the entire case and interviewed the applicant who could not able to provide any documents to prove himself innocent in this case. In absence of any new facts and any new supporting documents which can be relied upon, the said punishment stood good and upheld. Learned counsel for respondents requests to dismiss the OA.
6. Applicant has filed rejoinder wherein applicant has reiterated the same facts as stated in the OA and denied all the allegations levelled against him.
7. Heard learned counsel for parties and considered the submissions made by the learned counsels and also perused the documents available on record. We have considered the matter in its entirety and come to the following conclusion. (A) The Charge memo that has been served to the charged employee does not contain specific dates of so-called unauthorized absence. If it is starting on 28.10.2014 then it is not clear when did it end?
(B) The charge memo does not have any list of relied upon documents to prove the charge.
9 OA No. 334 of 2017(C) The charge memo does not contain the name of any prosecution witness against the charged employee, who will prove the charge.
(D) The enquiry proceeding where the charged employee participated and denied the allegation still no detailed enquiry was ever conducted as per the procedure for inflicting major penalty under Railway Service (Discipline & Appeal) Rules.
(E) The charged employee has already leveled allegation against the officer where he was deployed. This was not an afterthought rather as per A/4 of OA it was done prior to this whole process of his termination.
8. In view of the discussion made herein above this OA is allowed in the following terms:
(i) We quash and set aside the order of Removal from service dated 05.11.2015 as contained in Annexure A/12 passed by the Respondent No.10 together with orders dated 03.08.2016 and 18/19.04.2017 as contained in Annexure A/14 and A/16 passed by appellate and Revisional Authority.
(ii) We also hold and declare the charge sheet dated 18.05.2015 based on no RUDs and PWs as contained in Annexure A/5 and also the Inquiry report dated 06.10.2015 as contained in Annexure A/9 as perverse and void abinitio wrong.
10 OA No. 334 of 2017
(iii) The Respondents are directed to re-instate the applicant in service against the post of Telephone Attendant Cum Dak Khalasi without any further delay.
9. No order as to cost.
[Rajveer Singh Verma] [Kumar Rajesh Chandra]
Member [J] Member [A]
BP/-