Central Administrative Tribunal - Cuttack
Shri Jami Prasad vs East Coast Railway on 9 May, 2025
1 O.A.260/00470 of 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00470 of 2022
Reserved on: 07.05.2025 Pronounced on : 09.05.2025
Coram : Hon'ble Mr. Sudhi Ranjan Mishra, Member (J)
Hon'ble Mr. Pramod Kumar Das, Member (A)
Shri Jami Prasad, aged about 42 years, son of J.S.Rao,
presently residing at Raniguda Farm, At./P.O./Dist. Rayagada.
Applicant
......Applicant
VERSUS
1. Union of India represented through the General Manager,
East Coast Railway, Rail Sadan, Chandrasekharpur,
Bhubaneswar, PIN-751017.
2. The Divisional Railway Manager, East Coast Railway,
Sambalpur Division, Sambalpur, Odisha, PIN-768002.
3. The Senior Divisional Commercial Manager, East Coast
Railway, Sambalpur Division, Sambalpur, Odisha, PIN-
768002.
4. The Divisional Commercial Manager, East Coast Railway,
Sambalpur Division, Sambalpur, Odisha, PIN-768002.
......Respondents
For the Applicant: : Mr. S.K. Ojha, Counsel
For the respondents : Mr. R.K. Sahoo, Counsel
2 O.A.260/00470 of 2022
O R D E R
SUDHI RANJAN MISHRA, MEMBER (J):
That the applicant in this OA challenges Charge Memorandum as well as the Disciplinary proceeding initiated against him which culminated imposition of Punishment of Removal from Service has filed this O.A. under Section 19 of Administrative Tribunals Act, 1985 with the following relief(s:-
"(i) To quash the Charge Memorandum dated 07.08.2020 (Annex.A/6), Inquiry Report dated 20.05.2022 (Annex.A/13) and order of punishment dated 21.06.2022 (Annex.A/15) and communication dated 22.06.2022 (Annex.A/16) SO also order dated 18.08.2022 (Annex.A/26) passed by the so called appellate authority holding the same are against statutory rules and opposing the judicial decisions on the issue.
(ii) To direct the Respondents to restore the applicant in his earlier position with all consequential and financial benefits;
(iii) To direct the Respondents to extend all other benefits as due and admission under the law;
(iv) To allow this OA with costs."
2. The allegation levelled against the applicant in the charge sheet issued under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 Memorandum No.C/SBP/D&A/SF-5/J.P/PH/ MVAA/Sdg/AMB/20 dated 07.08.2020 (Annexure-A/6) reads as under:
"1. The undersigned propose (s) to hold an inquiry against Sri Jami Prasad, PH/MVAA/Sdg/AMB under e 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. The substance of the imputations misconduct or mis-
3 O.A.260/00470 of 2022 behaviour in respect of which the Inquiry is proposed to be held is set out in the enclosed statement of articles of cha ge (Annexure-1) A statement of the imputations of mis-conduct or ms- behaviour in support of each article of charge is enclosed (Annexure-II) A list of documents by? which and a list of witnesses by whom the articles of charge are proposed to be sustained are also enclosed (Annexures) III & TV) Further, copies of documents mentioned in the list of documents, as per Annexure-III are enclosed.
2. Sri Jami Prasad, PH/MVAA/Sdg/AMB is hereby informed that if he so desires, he can Inspect and take extracts from the documents mentioned in the enclosed list of documents (Annexure III) at any time during office hours within ten days of receipt of this Memorandum. For this purpose he should contact the undersigned immediately on receipt of this memorandum.
3. Sri Jami Prasad, PH/MVAA/Sdg/AMB is further informed that he may, if he so desires, take the assistance of another Railway Servant/an official of a Railway Trade Union (who satisfies the requirements of the rule 9 (13) of the Railway Servant (s) (Discipline and Appeal) Rules, 1968, and Note and/or Note 2 there under (as the case may be) for inspecting the documents and assisting him in presenting his case before the Inquiring Authority in the event of an oral Inquiry being held. For this purpose, he should nominate one or more persons in order of preference. Before nominating the assisting Railway servant (s) or Raik. Jy Trade Union Official(s), Sri Jami Prasad,PH/MVAA/Sdg/AMB should obtain an undertaking from the nominee (s) that he (they) is (are) willing to assist him during the disciplinary proceedings. The undertaking should also contain the particulars of other case(s), if any, in which the nominee (s) had already undertaken to assist and the undertaking should be furnished to the Undersigned/General Manager, East Coat Railway along with the nomination.
4 O.A.260/00470 of 2022
4. Sri Jami Prasad, PH/MVAA/Sdg/AMB is hereby directed to submit to the undersigned through CI/TIG, East Coast Railway a written statement of his defence (which should reach the said CI/TIG) within ten days of receipt of this Memorandum, if he does not require to inspect any documents for the preparation of his defence and within ten days after completion of inspection of documents if he desires to inspect documents and also, -
(a) to state whether he wishes to be heard in persons: and
(b) to fumish the names and addresses of the witnesses, if any, whom he wishes to call in support of his defence:
5. Sri Jami Prasad, PH/MVAA/Sdg/AMB is informed that an inquiry will be held only in respect of those articles of charge as are not admitted He shou'd, merefore, specifically admit or/ deny each article of charges.
6. Sri Jami Prasad, PH/MVAA/Sdg/AMB is further informed that if he does not submit his written statement of defence within the period specified in Para 2 or does not appear in person before the inquiring authonty o otherwise fails or refuses to comply with the provisions of rule 9 of the Railway Servants (Discipline a Appeal) Rutes, 1966, or the orders/directions issued in pursuance of the said rule the Inquiring authority may hold the Inquiry ex-prate.
7. The attention of Sri Jami Prasad, PH/MVAA/Sdg/AMB is invited to Rule 20 of the Railway Services (Conduct) Rules 1966 under which no railway servant shall bring or attempt to bring any portical nesthes fluence to bear upon any superior authority to further his interests in respect of matter pertaining in bis service under the Government if any representation is received on his behalf from another person in of any matter dealt within these proceedings, it will be presumed that Sri Jami Prasad, PH/MVAA/Sdg/AMB is aware of 5 O.A.260/00470 of 2022 such a representation and that it has been made at his instance and action will be taken agains Pum for violation of Rule 20 of the Railway Services (Conduct) Rules, 1966.
8. The receipt of this Memorandum may be acknowledged.
Sd/-
(S.Horo) Divl. Commercial Manager-II Annexure-1 Statement of Article of Charges framed against Sri Jani Prasad.PH/MVAA/Sdg/ AMB.
That Sri Jami Prasad,PH/MVAA/Sdg/AMB committed grave misconduct, in as much as:
Article-1 That, Sri Jami Prasad, Sr.CC (presently Parcel Hamal) MVAA/Siding/AMB was under RMC from 03.01 2020 under ADMO/TIG During course of his RMC, he was at Divisional Railway Hospital Sambalpur from 18.03.2020 to 24.03.2020 and was discharged from Divisional Railway Hospital on 24.03.2020 with instruction to report back to ADMO/TIG After being discharged from Divisional Railway Hospital, Sambalpur, he was supposed to remain at his headquarter at MVAA and report to ADMORTG Instead, he left his headquarter without any permission from ADMO/TIG For non attendance, he was discharged by ADMO/TIG vide discharge memo 368301 dated 15.04.2020 A discharge memo is not a fit certificate as claimed by Sri Jami Prasad. He should have approached Rly.
hospital to obtain fit for duty certificate which till date he has not done. This has been clarified by CMS/SBP vide his letter dated 09.06.2020 Sri Jami Prasad is still unauthorized absent from duty almost above three and half months i.e. since 15.04.2020.
By the aforesaid acts, Sri Jami Prasad, PH/MVAA/Sdg/AMB failed to maintain devotion to duty and acted in a manner which is unbecoming of 6 O.A.260/00470 of 2022 a Railway servant in contravention to Rule 3-1 (ii) and (iii) of Railway Services (Conduct) Rules, 1966 and therefore, rendered himself liable for disciplinary action in terms of Railway Servants' (Discipline and Appeal) Rules, 1968, as amended from time to time.
Sd/-
(S.Horo) Divl. Commercial Manager-II & Disciplinary Authority East Coast Railway, Sambalpur Annexure Statement of Imputation of Misconduct in support of the Charges framed against Sri Jami Prasad.PH/MVAA/Sdg/AMB Article-1 That Sri Jami Prasad, Sr.CC (presently Parcel Hamal) MVAA/Siding/AMB was under RMC from 03.01.2020 under ADMO/TIG During course of his RMC, he was at Divisional Railway Hospital Sambalpur from 18.03.2020 to 24.03.2020 and was discharged from Divisional Railway Hospital on 24.03.2020 with instruction to report back to ADMO/TIG, After being discharged from Divisional Railway Hospital. Sambalpur, he was supposed to remain at his headquarter at MVAA and report to ADMO/TG. Instead, he left his headquarter without any permission from ADMO/TIG. For non attendance and non response, ADMO/TIG discharged him from RMC vide discharge memo 3608301 dated 15.04.2020 with remarks "Discharge for non Attendance:.
Sri Jami Prasad came to Kesinga (the than nodal point for traffic of MVAA siding/AMB) on 17.04.2020 got a false memo from a local hospital in Kesinga after mis-declaring that, he was in Lanjigarh instead of Parvatipuram and forcefully 7 O.A.260/00470 of 2022 through unauthorized means marked himself present in the muster roll Due to this unlawful behavior the muster roll then was kept under lock by the commercial supervisor at Kesinga. On the strength of discharge memo issued by ADMO/TIG, Sri Jami Prasad insisted upon joining duty and gave continuous appeal to different authorities to take him to duty. But, the discharge certificate should not be treated as fit certificate. This has been clarified by CMS/SBP vide his letter dated 09.06 2020 which was informed to Sri Jami Prasad vide this office letter dated 13.06.2020, Sri Jami Prasad was advised to approach Rly. hospital for obtaining fit certificate for duty, so as to be taken to duty vide this office letters dated 05.06.2020 and 18.06.2020, which he did not follow and repeatedly appealed to different authorities for not being taken to duty.
Further, Sri Jami Prasad was advised to attend Divisional Railway Hospital, Sambalpur to report to CMS on 15.07.2020 in order to assess his fitness vide this office letter dated 13.07.2020. But, it was seen that though he reported CMS/SBP, but without the medical papers of his RMC period from 03.01.2020 to 14.04.2020 and left DRH/SBP without obeying the instructions of CMS/SBP. Again, S. Prasad was advised to report CMS/SBP on 20.07 2020 along with medical papers, so as to examine hi fitness for duty But, he declined to receive the official letter from his In-charge, so as to be spared for medical examination at Divisional Railway Hospital, Smbalpur, which was informed by his in- charge ani Sectional commercial Inspector vide their reports dated 19.07. 2020 and 20.07.2020 respectively. Sri Jami Prasad remained unauthorized absent from duty almost above three and half months i.e. sing 15.04.2020.
Being a responsible staff posted at one of the important siding of the division, he should maintain discipline and obey the instruction of Railway 8 O.A.260/00470 of 2022 Administration. But he felled to adhere to the same. His above indiscipline attitude is not acceptable. His indiscipline attitude is awful and tarnish the Image of Railway Administration and working atmosphere is being hampered seriously. By the aforesaid acts Sri Jami Prasad, Sr.CC (presently Parcel Hamal) MVAA/Siding/AMB failed to maintain devotion to duty and acted in a manner which is unbecoming of a Railway servant in contravention to Rule 3-1 (ii) and (iii) of Railway Services (Conduct) Rules, 1966 and therefore, rendered himself liable for disciplinary action in terms of Railway Servants' (Discipline and Appeal) Rules, 1968, as amended from time to time.
3. It is submitted by the learned counsel that the applicant filed his written defence statement on 15.08.2020(Annexure-A/7) in connection with the Major Penalty charge sheet dated 07.08.20 (Annexure-A/6). Thereafter the Disciplinary Authority on 10.09.2020 appointed the I.O for conducting Inquiry against the said the Major Penalty charge sheet dated 07.08.20 (Annexure-A/6). It is submitted that the Preliminary Hearing was conducted on 16.12.2020 (Annexure-A/9) and thereafter applicant filed representation dated 30.12.2020 (Annexure-A/10) for additional documents in connection with the said Major Penalty charge sheet dated 07.08.20 (Annexure-
A/6). It is submitted that the applicant submitted his written statement of defence on 15.03.202 (Annexure-A/11), It is submitted that Inquiry was conducted and Inquiry Report was prepared vide 9 O.A.260/00470 of 2022 letter dated 29.04.2022 (Annexure-A/13) where in the I.O. in Article of Charge-1 observed as follows:
"Being a responsible staff posted at one of the important siding of the division, he should maintain discipline and obey the instruction of Railway Administration. But he felled to adhere to the same. His above indiscipline attitude is not acceptable. His indiscipline attitude is awful and tarnish the image of Railway Administration and working atmosphere is being hampered seriously. By the aforesaid acts, Sri Jami Prasad, Sr.CC(presently Jr.CC) MVAA/Siding/AMB failed to maintain devotion to duty and acted in a manner which is unbecoming of a Railway Servant in contravention to Rule 3-1 (ii) and (iii) of Railway Service (Conduct) Rules, 1966 and therefore, rendered himself liable for disciplinary action in terms of Railway Servants' (Discipline and Appeal) Rules, 1968, as amended from time to time".
4. It is submitted by the learned counsel for the applicant that after getting the I.O. report applicant submitted his final defence statement dated 04.05.2022 (Annexure-A/13). It is submitted that the PWs are failed to provide documentary evidences to their deposition. Without providing documentary or corroborative evidences, the charges are framed. Thereafter, the Disciplinary Authority vide Speaking Order No.C/SBP/D&A/SF-
5/J.P/C.C/BGBR/22 dated 21.06.2022 (Annexure-A/15) issued the
following orders: Speaking Order
10 O.A.260/00470 of 2022
Sub: Major penalty charge sheet No.
C/SBP/D&A/SF-5/J.P/PH/MVAA/Sdg/ AMB /20
dated 07.08.2020 issued against Sri Jami Prasad, PH/MVAA/Sdg/AMB (now working as Commercial Clerk/BGBR).
Ref: (1) Charge Sheet No. C/SBP/DSA/SF- 6/J.P/PH/MVAA/Sdg/AMB/20 dated 07.08.2020. (2) Sri Pinaki Das. CCI/SBP & Inquiry Officer's report dated 29.04.2022.
(3) Your representation dated 04.06.2022.
Being the Disciplinary Authority, after going through the memorandum of charges, proceedings of enquiry, report of the inquiry Officer dated 29.04.2022, statement of witnesses and all other relevant documents connected with this case in detail, I am convinced to pass the Speaking Order herein as under that:-
(i) While working at MVAA/Sdg/AMB, you were under Railway Medical Sick (RMC) from 03.01.2020 under ADMO/TIG.
(ii)During the course of your RMC, you were at Divisional Railway Hospital, Sambalpur from 18.03.2020 lo 24.03.2020 and discharged from Divisional Railway Hospital on 24.03.2020 with instruction to report back to ADMO/TIG.
(iii)After being discharged from Divisional Railway Hospital/Sambalpur, you were supposed to remain at Headquarter at MVAA/AMB and report to ADMO/TIG, Instead, you left your headquarter without any permission from ADMO/TIG.
(iv)Due to non attendance and non response, ADMOSTIG discharged you vide discharge memo 368361 dated: 15.04.2020 with remarks "DISCHARGE FOR NON ATTENDANCE.
11 O.A.260/00470 of 2022
(v)Thereafter, you came to Kesinga (the then nodal point for traffic of MVAA siding/AMB) on 17.04.2020 and got a false memo from a local hospital in Kesinga after mis-declaring that, you were in Lanjigarh Instead of Parvatipuram and forcefully through unauthorized means marked yourself present in the muster roll.
(vi)That on the strength of discharge memo issued by ADMO/TIG for non attendance on 15.04.2020, you insisted upon joining duty and gave continuous appeal to different authorities to take you to duty, But, the said discharge certificate should not be treated as fit certificate which was clarified by CMS/SBP vide letter dated 09.06.2020.
(vii)Despite the above, you were advised to approach Railway Hospital for obtaining fit certificate to join duty vide this office letter dated 05.06.2020 and 18.05.2020, But, you did not adhere to the instruction of Railway Administration.
(viii)That you were again advised to attend Divisional Railway Hospital, Sambalpur and report to CMS on 15.07.2020 in order to assess your fitness vide-this office letter dated 13.07.2020. But you attended CMS/SBP without the medical papers of your RMC period from 03.01.2020 to 14.04.2020 and left Divisional Railway Hospital, Sambalpur without obeying the instructions of CMS/SBP
(ix)Again, you were advised to report to CMS/SBP on 20.07.2020 along with medical papers, but you declined to receive the official letter from your in- charge. The same was informed by your in-charge and sectional commercial inspector vide their report dated 19.07.2020 and 20.07.2020 respectively. You remained unauthorized absent from duty from 15.04.2020.
12 O.A.260/00470 of 2022
(x)From the above act you failed to maintain devotion to duty and acted in Rathway servant in contravention to Rule 3.1 (II) and (III) of Railway Services (Conduct) Rules 1966 and thereby, rendered yourself llable for Disciplinary Action in terms of Railway Servants (DSA) Rules 1068 as amended from time to time. A Major Penalty Charge Sheet (SF-5) No. C/SBPIDSA/SF.
5/J.P/PH/MVAA/Sdg/AMB/20 dated 07.08.2020 under Rule-9 of Railway Servants (D&A) Rules 1968 was issued.
(xi)Though, you had received the said memorandum of charge sheet on 13.08.2020, but you did not submit your explanation,
(xii)That, you were given ample scope under D&A Rules by nominating one inquiry Officer in this case, wherein, you had been given reasonable opportunity to prove yourself innocent so as not to deprive you of "Natural Justice". There also you could not substantiate any ground to get rid of the alleged charges which stand proved in the Inquiry proceedings.
(xiii)That, the allegations brought against you under Article-1 of said memorandum of charges dated 07.08 2020 have been proved by Inquiry Officer examining RUDs, testimony from witnesses during the Inquiry proceedings.
(xiv)In your representation dated 04.06.2022, you have denied all the allegations which is not convincing and acceptable.
(xv)You were issued with the aforesaid major penalty charge sheet while working as Parcel Hamal in downgraded post from Sr.CC and you were restored as Commercial Clerk in the appeal stage by RA.
Being a responsible front line staff and working at an important siding, you need to be more loyal and disciplined towards the organization. You did not adhere to the instructions of Railway administration and remained absent from duty for one and half years from 15.04.2020. Such 13 O.A.260/00470 of 2022 unauthorized absence of staff for a prolonged period from work affects the regular and smooth working of the system Such type of irresponsible and indisciplined working from a staff is not acceptable. After going through the case file and with proper application of mind, I being the Disciplinary Authority H the present case find you guilty of not maintaining devotion to duty, acting in a manner, unbecoming of a Railway servant in contravention to Rule 3.1 (ii) and (iii) of the Railway Services (Conduct) Rules-1966 and do impose the punishment of "Removal from Railway service with immediate effect along with compassionate allowance of one third of gratuity which would have been admissible to him",
5. It is submitted by the learned counsel that the applicant filed his appeal dated 29.06.2022 (Annexure-A/23) and additional appeal dated 01.07.2022 (Annexure-A/24) before the Appellate Authority against the above punishment order dated 21.06.2022 (Annexure-
A/15). It is submitted that, in the meantime, the applicant approached before this Tribunal by filing O.A. No. 386 of 2022, which was disposed of vide order dated 04.08.2022 (Annexure-A/25) with the following observation:-
"Respondents are directed to dispose of the appeal dated 29.06.2022 in accordance with law within a period of one month from the date of receipt of the copy of this order and communicate the decision to the applicant. While considering the appeal the respondents shall also taken into consideration the additional grounds stated to have been taken by the applicant in Annexure-A/13 14 O.A.260/00470 of 2022 dated 01.07.2022. With the above observation the OA is disposed of."
6. It is contended that in compliance to the orders of this Tribunal dated 04.08.2022, the Appellate Authority considered and rejected the appeal of the applicant by passing the following Speaking Order No.C/SBP/D&A/Appeal/J.P./CC/BGBR/OA386/22/2022-234-dated 18.08.2022 (Annexure-A/26):-
(SPEAKING ORDER) "Sub-Disposal of the appeal dated 29.6.2022 & 01.07.2022 in compliance of the Hon'ble CAT/CTC'S order dated 04.08.2022 passed in OA No.386/2022 with regard to punishment order dated 21.06.2022 passed by the Disciplinary Authority vide Major Penalty Charge Sheet (SF-5)No.C/SBP/D&A/SF-
5/J.P/PH/MVAA/Sdg/ AMB /20 dated
07.08.2020.
Ref: (1) Your appeal dated 29 06 2022 and 01.07.2022.
(2) Hon'ble CAT/CTC s order dated 04.08.2022 passed in O.A No.388/2022.
The applicant Sri Jami Prasad. Ex-CC/BGBR has filed O A No 388/2022 before the Hon'ble CAT/CTC inter alla praying for the following relief(s):-
1. To quash the Charge Memorandum dated 07.08.2020 (A/4), Inquiry Report dated 20.5 2022 (A/9) and order of punishment dated 21.06 2022 (A/10) and communication dated 22.06.2022 (A/11) holding the same are against statutory rules and opposing the judicial decisions on the issue.
15 O.A.260/00470 of 2022
2. To direct the Respondents to restore the applicant in his earlier position with all consequential and financial benefits.
3 To direct the Respondents to extend all other benelits as due and admission under the law.
The Hon'ble CAT/Cuttack after hearing both the parties, vide its order dated 04.08.2022 disposed of the said O A No 386/2022 at the admission stage and directed as follows:
"Respondents are directed to dispose of the appeal dated 29.06.2022 in accordance with law within a period of one month from the date of receipt of the copy of this order and communicate the decision to the applicant While considering the appeal the respondents shall also taken into consideration the additional grounds stated to have been taken by applicant in Annexure A/13 dated 01.07.2022."
In compliance of the Hon'ble Tribunal's order/direction dated 04.08.2022, the undersigned (the Respondent No 3/Appellate Authority) have gone through the applicant's appeal dated 29:08 2022 as well as the additional appeal dated 01.07 2022 attached as Annexure A/13 to the OA, vis-à-vis the rule position governing the field, factual aspects of the D&A case along with all official records and passed the following order:
You were issued with a Major Penalty Charge Sheet (SF-5) by the Disciplinary Authority, DCM/SBP vide charge Memorandum No C/SBP/D&A/SF-5/J.P/PH/MVAA/Sdg/AMB/20 dated 07.08.2020, on the charges of unauthorized absence from duty for a prolonged period. Now, you have preferred an appeal dated 29.06.2022 & 01.07 2022 to the undersigned as the Appellate Authority 16 O.A.260/00470 of 2022 against the punishment order dated 21.06 2022 imposed by the DA.
(1) You remained under Railway Medical Sigk (RMC) from 03.01 2020 under ADMO/TIG.
During the course of RMC, you were at Divisional Railway Hospital/Sambalpur from 18.03.2020 to 24.03.2020 and discharged from Divisional Railway Hospital on 24.03.2020 with instruction to report back to ADMO/TIG (2) After being discharged from Divisional Railway Hospital/Sambalpur on 24.03.2020, you were supposed to remain at your headquarter at MVAA/AMB and report to ADMO/TIG. But you did not do the same Due to your non-
attendance, ADMO/TIG discharged you vide discharge Memo. 368361 dated 15.04.2020 with remarks "DISCHARGE FOR NON ATTENDANCE".
(3) On the strength of discharge Memo issued by ADMDITIG on 15 04 2020 you instead upon joining duty and gave continuous appeal to different authorities to take you on duty. But the said discharge certificate should not be treated as fit certificate which was clarified by CMS/SBP vide letter dated 09.06.2020.
4. Despite the above, you were advised several times to approach Railway Hospital in order to assess your fitness and to obtain fit certificate to join duty vide this office letters dated 05.06.2020, 18.06.2020, 13.07.2020. But you did not show any response to it and you remained unauthorized absent from duty for more than one and half years i.e. since 15.04.2000.
All the above acts prove your lack of sincerity and indiscipline while on duty. By such act of yours, you have failed to maintain devotion to duty and acted in a manner of unbecoming of a Railway Servant in contravention of the Railway Service 17 O.A.260/00470 of 2022 Conduct Rule-1966-3.1 (ii) & (iii) and thus rendered yourself liable to be taken up under Railway Service (D&A) Ruels-1968.
I, the undersigned as the Appellate Authority have gone through the entire D&A case file as well as your appeal dated 29.06.2022 & 01.07.2022 and have observed that all extant procedures have been followed in this case. I also found that you were given adequate opportunities to represent your case against the DA's punishment order to meet the ends of justice.
After having a detailed observation, I find you at fault for remaining unauthorized absent from duty from 15.04.2020 to 11.10.2021 i.e, for more than one and half years. Your prolonged absence from duty had putt the administration in trouble and for which much difficulties ware faced in supervision of Commercial activities of the siding.
Your appeal dated 29.06.2022 and 01.07.2022 on the punishment order dated 21.06.2022 of Disciplinary Authority (DCM/SBP) is not convincing. Being unauthorized absent from duty for a prolonged period is в serious offence and needs to be taken up firmly. Such practices of unauthorized absence from duty by staff is to be discouraged in the overall interest of the organization. Also from your service record (S.R), it is observed that, since the date of your appointment from 07.01.2004, you have been taken up under DAR rules seven(07) times for various acts of misconducts, which are a reflection of your unbecoming of a Railway Servant.
On carefully examining and perusing the entire D&A files, inquiry report, RUDs, your explanation along with facts of the case, it is observed that the charges leveled against you are established in the inquiry conducted. After going through the defense documents submitted by you to the DA and speaking order of the DA, it is seem that the DA has explained each and every point raised by you 18 O.A.260/00470 of 2022 properly and in great detail it is only alter evaluating all the aspects of the case and due application of mind that the DA has arrived at the conclusion drawn by him through his speaking order. The Disciplinary Authority who imposed the punishment order of removal is the appropriate competent authority to impose the punishment as per extant rules. Thus, I find that the penalty imposed by the DA is in order it is also appropriate that the C.O. needs to be taken up for the charges proved against him.
Therefore, I as the Appellate Authority agree with the quantum of punishment imposed by the DA and uphold the Disciplinary Authority's punishment order dated 21.06.2022 (SF-05). The appeal is accordingly disposed off."
7. Respondents filed their counter in which it has been stated that the Applicant while working as Senior Commercial Clerk at MVAA siding/Ambodala was under Railway Medical Sick (RMC) from 03.01.2020. A medical care facility was extended by Railways to the Applicant. He was referred to Medical Director, Seven Hills Health Care Pvt. Ltd, Vishakhapatnam on 04.01.2020 and admitted in Seven TREER Hills Health Care Pvt. Ltd, Vishakhapatnam from 05.01.2020 to 10.01.2020 and discharged with advice to return after 02 weeks. It is submitted that as per treatment papers of Seven Hills Health Care Pvt. Ltd, Vishakhapatnam, he attended on 24.01.2020 and was advised review after one month. However, the Applicant was attended by ADMO/Health Unit/Titilagarh on 17.02.2020 for checkup 19 O.A.260/00470 of 2022 and he was referred to Addl.CMS(Surg)/District Railway Hospital/Sambalpur for further treatment. It is further submitted that the Applicant was attended by Addl.CMS(Surg.)/District Railway Hospital/Sambalpur on 18.02.2020 and he was advised for a review after 07 days. Thereafter, the Applicant was further referred from Divisional Railway Hospital/Sambalpur to Seven Hills Health Care Pvt. Ltd, Vishakhapatnam for Ortho review on 26.02.2020. It is submitted that, the Applicant was examined by Addl.CMS(Surg.)/Divisional Railway Hospital/Sambalpur on 14.03.2020 and advised for hospitalization. He was admitted at surgical ward Divisional Railway Hospital/Sambalpur on 18.03.2020 and discharged on 24.03.2020 with advice to attend ADMO/Health Unit/Titilagarh and review after 07 days at Divisional Railway Hospital/Sambalpur.
8. It is contended by the respondents that the Applicant was placed under sick list by ADMO/TIG and hence he had to report to ADMO/Titilagarh while he was in his sick list. It is submitted that due to non-attendance and non-response to Railway Hospital/Titlagarh after 07 days, ADMO/Titilagarh had to finally discharge him from RMC vide discharge memo 368361 dated 15.4.2020 with remarks DISCHARGE FOR NON ATTENDANC. It 20 O.A.260/00470 of 2022 is submitted that, this was necessitated by guidelines contained in Indian Railway Medical Manual(IRMM) Vol-1 Para 538 under Clause (6) Note:- (1). The Indian IRMM Vol-1 at Para 538 contains guidelines for sick certificate. Clause (6) Note:- (1) of this para is reproduced below:-
"Note: (1) A Railway employee who is placed on sick list by a Railway doctor should continue to report to him when fit to travel, or send intimation about his condition if he is bed-ridden, at such intervals as directed by the Railway doctor. If a Railway employee fails to do so, he is liable to be discharged from sick list for non-attendance".
9. It is further contended by the respondents that the Sectional Commercial Inspector/Titlagarh contacted to Applicant on 15.04.2020 to know whereabouts, so as to intimate him about his discharge memo. The Applicant was not available at his headquarter and he had said that he was staying at his native place at Parvatipuram (Andhra Pradesh). It is submitted that the Sectional Commercial Inspector counseled Applicant about his wrong doings of leaving headquarter during RMC period and that too during COVID-19 pandemic period. On 17.04.2020, the Applicant contacted the sectional commercial inspector stating his presence at Hqrs/Ambodala. It is contended that taking notice of unauthorized movement, the Applicant was advised by sectional commercial 21 O.A.260/00470 of 2022 inspector to report to local State Govt. Hospital and disclose his outside State journey and stay particulars in view of COVID-19 pandemic. It is submitted that, instead of reporting to local state Govt. Hospital at Ambodala, the Applicant further moved to Kesinga on the same day. It is submitted that the Sectional Commercial Inspector again counseled him to report to State Govt. Hospital at Kesinga and disclose his outside state journey and stay particulars for further course of action. But, the applicant instead of disclosing his journey history outside State to local authorities, he went on to obtain a memo from a local hospital in Kesinga after mis-declaring that he was in Lanjigarh.
10. It is the contention of the respondents that after obtaining a memo from CHC/KSNG on 21.04.2020 by furnishing wrong journey details, the Applicant forcibly marked himself present in the muster roll at Kesinga by misguiding his Commercial Supervisor. CS/KSNG then kept the muster roll under lock and key away from the intervention of Applicant and advised him to get a proper fit certificate from Rly.Hospital/TIG. It is submitted that the claim of the applicant that other staffs have been allowed to join on the basis of similar certificate dated 15.04.2020 cannot be accepted simply on the ground that negative equality cannot be claimed as matter of 22 O.A.260/00470 of 2022 right. It is further stated that a mistake might have happened erroneously but that does not bestow any claim for similar treatment.
When it came to notice that, on the basis of similar certificate a staff has been allowed to resume duty by his supervisor, for which Railway Administration issued stern warning to the supervisor vide letter dated 23.06.2020. Moreover, one wrong can't make the other right.
Hence, the applicant is stopped to claim parity.
11. It is submitted by the respondents that the Applicant had also been advised several times to attend Railway doctor and to obtain a proper Railway medical fit certificate to join duty vide letters dated 05.06.2020, 18.06.2020, 13.07.2020, 16.07.2020, 21.07.2020. The Applicant continuously disregarded the instructions given regarding obtaining of a FIT certificate and remained unauthorized absent from duty continuously. For which he was issued a Major Penalty Charge sheet on 07.08.2020 by the Disciplinary Authority. Thereafter, the applicant had challenged the certificate issued by ADMO/TIG for non-attendance and filed a petition before this Tribunal in O.A No.452/2020 the said O.A was dismissed by this Bench vide order dtd.25.03.2022 which reads as under:-
"7. Bare perusal of the above clearly suggests that the fitness certificate dated 15.04.2020 produced by the applicant so as to enable him to join cannot be 23 O.A.260/00470 of 2022 said to be so. The applicant had failed to appear before the concerned doctor for further evaluation as per instruction dated 24.03.2020 (Annexure R/1). Since the applicant did not appear before the concerned doctor, the doctor issued the certificate with remarks "discharged for non attendance" as per rules. The claim of the applicant that other staffs have been allowed to join on the basis of fit certificate dated 15.04.2020 cannot be accepted simply on the ground that negative equality cannot be claimed as matter of right. A mistake might have happened erroneously but that does not bestow any claim for similar treatment. Further the applicant was advised to report to CMS, DRH, Samablpur on 15.07.2020 vide office letter dated 13.07.2020and then again on 20.07.2020 vide letter dated 16.07.2020. The applicant failing to do so and not even receiving the letter dated 16.07.2020 and sparing letter shows the callous and careless approach of the applicant. As per rules, the applicant can only join his duty with fit certificate in proper format from the competent authority after availing medical leave. This Tribunal does not find any illegality on the part of the respondents, in not allowing the applicant to join his duty sans the fit certificate, warranting interference by us.
8. Accordingly the OA is dismissed being devoid of merit. No costs."
12. The applicant challenged the above order of this Tribunal before the Hon'ble High Court in W.P. (C ) No.11112 of 2022 and the same was dismissed for non prosecution. The applicant remained unauthorized absent from duty for a prolong period i.e from 15.04.2020 to 11.10.2021 (for more than one and half years (545 days), he was issued with a Major Penalty charge sheet on 07.08.2020 24 O.A.260/00470 of 2022 and the charges levelled against him was proved by Inquiry Officer in inquiry proceedings. Thereafter the punishment was imposed by Disciplinary Authority vide order dated 21.06.2022 i.e" Removal from Service with immediate effect along with compassionate allowance of one third of gratuity which would have been admissible to him". The same punishment was upheld by the Appellate Authority vide order dated 18.08.2022 in appeal stage. Hence besides lacks of merit the present O.A. being hopelessly barred by limitation is liable to be dismissed at the threshold.
13. The facts recorded above have been highlighted by the learned counsel appearing for the respective parties and after giving due consideration the same, perused the records.
14. The contention of the learned counsel for the applicant that the allegation that applicant was absent from 15.04.2020 is false, since his joining has been accepted from 17.04.2020 and he has been allowed to discharge his duty and salary paid for that period and Railway Passes issued to him from time to time. However, it is seen that the applicant was discharged from RMC on 15.04.2020 on the grounds of non-attendance vide discharge Memo No.368361 with remarks DISCHARGE FOR NON ATTENDANCE. The said Memo is not a Fit Certificate which has been clarified by the CMS/SBP on 25 O.A.260/00470 of 2022 09.06.2020. Even though the applicant was advised several time to attend Railway hospital and to obtain a proper Railway medical fit certificate to join duty but he did not do so. No regular salary was drawn in favour of the applicant for the month of March- 2020 and June- 2020. Only arrears against sanctioned commutation period from 03.01.2020 in June-2020 have been paid. Due to COVID-19 pandemic, salary for the month of April-2020 and May-2020 had been drawn on the basis of RMC. The overpayment made for the period from 15.04.2020 to 31.05.2020 has been recovered from his salary.
15. It is the stand of the applicant that the applicant cannot be prosecuted twice for the self same allegation. It is submitted that the Charge Memo dated 28.04.2020 and 07.08.2020 are for the self same charges. However, it is seen that the Charge Memo dated 28.04.2020 was for violation of COVID-19 guidelines, violation of instruction of Railway Hospital and leaving HQr during CORONA lockdown period without prior information to Railway Administration, while vide chargesheet dated 07.08.2020, disciplinary action was taken against the applicant for remaining unauthorized absent from duty from 15.04.2020. Both the charge sheets were 26 O.A.260/00470 of 2022 issued to the applicant for two different misconduct/violations of Railway Rules.
16. Further as regards to the contention of the applicant that not a single listed document was supplied to him. It is seen that all the relied upon documents listed in the charge sheet was supplied and received by the applicant. Next contention of the applicant that the punishment was imposed by the authority who is not the competent authority for doing so is also not tenable since the Divisional Commercial Manager is the Senior Scale Officer and competent to act as appointing authority in respect of level 1 to level 5 of 7th CPC under his control. The immediate higher authority is the Senior Divisional Commercial Manager who is the Appellate Authority as per the RS (D&A) Rules, 1968 and competent to dispose of the appeal of the applicant.
17. As per the settled law on the scope of judicial review of the disciplinary proceedings, the Tribunal can interfere in the disciplinary proceedings if there is violation of natural justice or statutory rules or if the findings are based on no evidence. In this regard Hon'ble Supreme Court in the case of B. C. Chaturvedi vs. Union of India &Anr..reported in 1996 AIR 484 has held as under:"
27 O.A.260/00470 of 2022 "Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
18. In the case of Union of India Vs. P. Gunasekhran 2015 (2) SCC page 610, Hon'ble Supreme Court has held as under:' ".........In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re appreciation of the evidence. The High Court can only see whether:
a) The enquiry is held by a competent authority;
28 O.A.260/00470 of 2022
b) The enquiry is held according to the procedure prescribed in that behalf;
c) There is violation of the principles of natural justice in conducting the proceedings;
d) The authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e) The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f) The conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g) The disciplinary authority had erroneously failed to admit the admissible and material evidence;
h) The disciplinary authority had erroneously admitted inadmissible evidence which influenced he finding;
i) The finding of fact is based on no evidence."
19. It is seen from the record that the disciplinary proceeding in question was held as per Rules and no procedural irregularity has been found. There is no violation of principles of natural justice and applicant has been given every opportunity to defend himself. The orders passed by the Disciplinary Authority and the Appellate Authority, have been passed after taking into consideration the grounds raised by the applicant in his defence. The punishment imposed on the applicant is also not shocking warranting interference by this Tribunal. As per settled law discussed above, this Tribunal does not find any illegality in the decision making 29 O.A.260/00470 of 2022 processes. Accordingly, the instant O.A. is dismissed being devoid of merit. No costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) KB/PS