Central Administrative Tribunal - Delhi
Shri Milap Chand vs Union Of India Through on 4 April, 2011
faCentral Administrative Tribunal Principal Bench OA No.35/2011 MA No.51/2011 New Delhi, this the 4th day of April, 2011 Honble Mrs. Meera Chhibber, Member (J) Honble Dr.Ramesh Chandra Panda, Member (A) Shri Milap Chand, S/o Shri Mangat Ram, Working as Loco Pilot, Northern Railway, Delhi R/o 2079/80A, HBC, Sector-55, Faridabad (Haryana). Applicant (By Advocate : Shri Yogesh Sharma) Versus
1. Union of India through The General Manager, Northern Railway, Baroda House, New Delhi.
2. The Chief Mechanical Engineer, Northern Raiwlay, Baroda House, New Delhi.
3. Additional Divisional Railway Manager/OP, Northern Railway, Delhi Division, State Entry Road, New Delhi.
4. Sr. Divisional Mechanical Engineer/Power, Northern Railway, Delhi Division, State Entry Road, New Delhi.
Respondents (By Advocate : Shri P.K. Yadav) : ORDER :
Dr. Ramesh Chandra Panda, Member (A) Shri Milap Chand, the Applicant herein, has approached the Tribunal with the following prayers:-
(i) That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned orders dated 23.06.2009, A.A. order dated 14.10.2009, R.A. order dated 01.10.2010, charge sheet dt. 13.3.09, I.O. report and whole Inquiry proceedings declaring to the effect that the same are illegal, unjust, arbitrary, against the rules and against the principles of natural justice and consequently pass an order directing the respondents to grant all the consequential benefits to the applicant, deeming no penalty was imposed on the applicant with the arrears of difference of pay and allowances.
(ii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant with the costs of litigation.
2. Brief facts of the case that led the Applicant to come before this Tribunal would reveal the following. The Applicant, who was initially appointed to the post of Loco Cleaner on 1.09.1976, was promoted to the post of Loco Pilot Male. While posted at Delhi Junction Railway Station, he was served with a Charge Memorandum dated 13.03.2009 (Annexure-A6) for major penalty. The alleged misconduct in the said charge sheet was that the Applicant failed to observe gate signal of Gate No.B-23 between MOW-ASR and passed it in ON position resulting in collusion of Train No.2925 on which the Applicant was working as Loco Pilot with a Tractor Trolley No.PB-33-4389 at about 19:35hrs on 1.03.2009. It is also alleged that the Applicant man handled Sh. Mangal Singh, Gate Man on the duty and injured him and thereafter he took away all the records, evidence and tempered with the Gate Machine Key & Token. On the basis of the denial of the charges by the Applicant, an Inquiry Officer (IO) was appointed under Railway Servants (Discipline & Appeal) Rules, 1968 who submitted his report on 26.05.2009. The Disciplinary Authority after considering the Applicants reply to the Enquiry Officers Report imposed a penalty for removal from service vide his order dated 23.06.2009 (Annexure-A1). Feeling aggrieved by the said penalty, the Applicant submitted his appeal dated 23.07.2009 to the Appellate Authority who on consideration granting benefit of doubt to the Applicant vide his order dated 14.10.2009 (Annexure-A2) reduced the punishment imposed on the Applicant and ordered the reinstatement of Applicant by imposing punishment as Passenger Driver in Grade `5500-9000 (Revised PB `9300-34800+`4200 GP) and fixed his pay at `11650_`4200 GP for 3 years with cumulative effect (i.e. with loss of pay and seniority). The period of suspension and the period when he was out of service due to removal from service was ordered as leave due or admissible to him. On receipt of the said order on 15.10.2009, the Applicant submitted a Revision Petition on 13.04.2010. The Revisional Authority vide his Communication dated 01.10.2010 (Annexure-A3) rejected the Revision Petition terming the same as time barred. Being aggrieved by the orders of the Disciplinary, Appellate and Revisional Authorities, the Applicant is before us in the present OA.
3. Shri Yogesh Sharma, the learned Counsel for the Applicant, highlighting the background of the case contended that consequent to the accident a 4 person committee was constituted to conduct a joint enquiry which submitted the report in which inter alia other Members have stated that the Pilot Driver and his Assistant Driver have been held as responsible for not observing the Gate Signal aspect and following the Para No.337(1) (a) and (b) and Para 20 of G&SR. However, the ultimate findings are that the Applicant was A Class category Driver and possess accident free record and it was found that the Applicant could not be held responsible for the said accident. His contention is that inspite of taking into account the joint committee report, the IO though accepted the same but changed the findings altogether only on the directions and instructions of the Disciplinary Authority. It is, therefore, contended that the Enquiry officer was influenced by the Disciplinary Authority to punish the Applicant. His contention is that if the Disciplinary Authority was to disagree with the findings of the IO he could have sent the disagreement note which he did not do but influenced the IO to change his findings in his report.
4. Further, his contention is that Appellate Authority has held the charges as not proved but ultimately has modified the punishment which is not in consonance with the legal procedure. It is, therefore, urged that once the charges against the Applicant are not held as proved, no punishment should have been imposed on the applicant, less to speak of reducing the punishment imposed by the Disciplinary Authority. He further submits that the very fact that the Appellate Authority has found no charge as proved against the Applicant, the same benefit would accrue even at the stage of the Disciplinary Authoritys findings and, as such, the OA should be allowed and the charges framed against the Applicant should be closed.
5. Controverting the grounds taken by the Applicant, Shri P. K. Yadav, learned Counsel for the Respondents, very strongly opposed the contentions raised by Shri Yogesh Sharma. He drew our attention to the various aspects of analysis done by the Inquiry Officer to say that the enquiry has been held in a fair and free manner. The Applicant should have no grounds on the Enquiry Report. His contention is that admittedly the incident took place at the time when the Applicant was the Driver of the Train. It is further contended that the Inquiry Officer after considering the evidence on record has submitted the report and held the charge as proved against the Applicant. Therefore, to allege that there was pressure and biasedness on the part of the Disciplinary Authority on the IO, was far free from truth. Further he contends that Appellate Authority has taken into account the proportionality angle and having considered in a sympathetic manner has reduced the penalty of removal from service to a less punishment. The Applicant has been reinstated into service. He, therefore, submits that the OA is a fit case to be dismissed.
6. Having heard the rival contentions, we perused the pleadings as well.
7. We may examine now the charges framed, the findings of IO and the orders of Disciplinary and Appellate Authorities. The following charges were framed against the Applicant:-
(1) He failed to observe gate signal of Gate No.B-28 bet. MOW-ASR on 01.03.09 and passed it in On position resulted in collision with Tractor Trolley No.PB 33-4389-this charge has been found to be proven during the enquiry. (2) He manhandled Shri Mangal Singh, Gate man on duty and injured him and tampered with the which machine-the cahrge has also been found to be proven. (3) He had taken away all the gate records and evidences and also tampered with the token-this charge has not been found to be proven.
8. The above charges were supported by the following statement of imputation:-
Statement of Imputation of misconduct/misbehavior on the basis of which action is proposed to be taken against Sh. Milap Chand, Loco Pilot Mail/CLI.
That on 01.03.2009 he was working on Train No.2925Exp. Ex NDLS to ASR; has failed to observe gate signal of gate no.B-28 between MOW-ASR at 19:35 hrs. He failed to observe gate signal of gate no.B-28 and passed it in ON position which resulted in collision with the tractor trolley No.PB-33/4389. He along with his Asstt. Has manhandled with Gateman Sh. Mangal Singh FZR division, he injured him and took away all the records, evidences and also tempered with the Gate Machine Key and token.
Thus Sh. Milap Chand is responsible for negligent working and also failed to maintain devotion to his duty and acted in a manner which is unbecoming of Railway Servant contravening rule no.3 1(ii) & (iii) of Railway Service Conduct Rules, 1966.
9. The IO in his report analysed the evidence to reach his conclusion. The Counsel for the Applicant submitted that the IO was influenced by the Disciplinary Authority to change his findings as a result last 2 pages were added to the IOs report. This was refuted by the Counsel for Respondent. We do not find any evidence in support of the Applicants allegation except to note that the IO has signed on Page 6 and 8 on the same date i.e. 12.06.2009. It is appropriate to take the extract of the relevant part which reads as follows:-
10. After analyzing the IOs report and the Applicants submissions thereon, the Disciplinary Authority inflicted the penalty of removal from service on the Applicant vide his letter dated 23.06.2009. Being aggrieved by the said order, the Applicant filed an appeal. The Appellate Authority held the charges as not proved and instead of exonerating him, he modified the penalty.
11. In the context of the above, it is appropriate for us to take the extract of the order passed by the Appellate Authority dated 14.10.2009, which reads as follows :-
Sub : Appeal against punishment of Removal from service.
Ref: Your appeal dated-Nil-
In reference to subject cited above, it is to inform you that your appeal against the punishment of Removal from service, has been carefully considered by the appellate authority i.e. ADRM/OP, New Delhi and passed the following orders:-
I have gone through the Enquiry Report, speaking orders of DA, appeal of Sh. Milap Chand, ex LPM/DLI and other documents on the subject case file. Out of 3 charges levied against Sh. Milap Chand, the first charge that he took away all the gate record and evidences and tampered with the token is not proved in the enquiry. The second charge that Sh. Milap Chand manhandled the Gateman on duty, injured him and tampered with the winch machine though proven in the enquiry report but is not adequately substantiated by the prosecution witnesses and the evidence. The third charge that he failed to observe gate signal of Gate No.B-28 between MOW-ASR and passed it in ON position resulting in to collision with a tractor trolly is also not fully substantiated during the detailed enquiry proceedings, statement of PWs and other evidences, though the charge has been found to be proven in the final conclusion drawn by the Enquiry Officer.
In view of the above, I grant some benefit of doubt to Sh. Milap Chand. He is reinstated back on duty with immediate effect as Passenger Driver in grade 5500-9000 (Revised PB 9300-34800+4200 GP) and fix at Rs.11650+Rs.4200 GP for 3 years with cumulative effect (i.e. with loss of pay & seniority). The period of suspension and the period when he was out of service due to removal from service will be considered for conversion into leave due or admissible to him on further representation of Sh. Milap Chand, if he so desires.
Please acknowledge receipt. (Emphasis supplied)
12. The above highlighted part of the order of the Appellate Authority would indicate that all the 3 charges have been analysed taking into account the evidence of the witnesses and from the Inquiry Officers Report and the Appellate Authority has clearly concluded that these 3 charges are not proved. The Appellate Authority as per settled position in law, is under obligation to consider 3 main requirements; (i) whether the disciplinary procedure has been complied with; (ii) whether the findings of the IO and the Disciplinary Authority are based on evidence and (iii) whether the penalty is adequate? In this context, we draw our guidance from the law laid in the judgment of Honble Supreme Court in the case of R. P. Bhatt Versus Union of India [1985 (3) SLR 742].
13. It is noted that the Appellate Authority has held 3 charges as not proved after appreciating the evidence gathered during the enquiry. Once he has come to such a conclusion as a quasi judicial authority, the Appellate Authority cannot pass an order imposing the penalty though the penalty was reduced. Once the charges are not held as proved, what misconduct remains on the basis of which penalty can be imposed. The proportionality angle arises only when the misconduct exists. Appellate Authority exercises quasi judicial authority and he has the power to reappreciate the evidence. He examined in the sense that once the evidence reappreciated by him reveals that the charges are not proved the only alternative that was available to the Appellate Authority is to exonerate the Applicant. On the other hand, holding the charges as not proved, not adequately substantiated, not substantially proved, he would have no other alternative but to pass an order of allowing the appeal by exonerating the Applicant from the penalty imposed by the Disciplinary Authority. To the above extent, the Appellate Authoritys order has erred in imposing a reduced punishment on the Applicant. As per the doctrines of merger spelt out by the Honble Supreme Court in the judgment of Somnath Sahu versus State of Orissa [1981 (2) SLR 550 SC], the order passed by the Disciplinary Authority merges with the order passed by the Appellate Authority. Therefore, following the doctrine of merger, the Appellate Authority having passed his order coming to the conclusion that charges are not proved against the Applicant, the Disciplinary Authoritys order has already merged with that of the Appellate Authoritys order. Once the Appellate Authoritys order is found to be not in order as the penalty imposed is not called for, since the charges were not held as proved. We have no other option but to quash and set aside the order of the Appellate Authority as well as the order of the Disciplinary Authority dated 14.10.2009 and 23.06.2009 respectively.
14. Considering the above facts and circumstances of the case, we are of the considered opinion that the Appellate Authority having considered the evidence and found the same as not proved the Applicant is to be freed from the charges and, therefore, the charge memo issued to him vide letter dated 13.03.2009 would also be quashed.
15. As we accept the findings of the Appellate Authority holding all 3 charges not proved, we would have remitted the case to him to reconsider the penalty he has imposed by modifying the Disciplinary Authoritys order. He will have to exonerate the Applicant. Issue is why prolong the Applicants anxiety. We would decide the issue in this order itself.
16. The Ernakulam Bench of this Tribunal in the case of Abdul Karim Versus Deputy Director General, NCC [1992-8-SLR-CAT ERN-450] held that Appellate Authority is required to examine the entire evidence and decide whether the findings of the Disciplinary Authority are warranted by the evidence. We note that the Appellate Authority has considered the findings of the Disciplinary Authority in the backdrop of the evidence on record and found the evidence in support of the Applicant and held the charges as not proved. The Appellate Authority has acted under Rule 22 (2) of the Railway Servants (D&A) Rules, 1968. Order passed by the Appellate Authority should be a complete order sustainable on its own footing and not by subsequent padding up in the pleading through an affidavit. Thus, the Respondents now pleading that Appellate Authority has applied its mind in reducing the penalty does not stand to ground. Question arises what is the proved misconduct for which the Applicant has to suffer a penalty. There is no answer to the question from the Respondents. Having concluded like that, the Appellate Authority passed order imposing a penalty. It is patent from the said order that the Appellate Authority had totally disregarded the basic principles of disciplinary proceeding. His order is, therefore, legally unsustainable.
17. In view of the totality of facts and circumstances of the case, we are of the considered opinion that the Applicant has fully established his case. We, therefore, quash and set aside the Charge Memo dated 13.03.2009, IOs report dated 12.06.2009, Disciplinary, Appellate and Revisional Authorities orders dated 23.06.2009, 14.10.2009 and 1.10.2010 respectively. We also direct that no further action on the same allegation needs to be initiated and treat the Applicant as if he has not faced any charges. Resultantly, he would be entitled to get all consequential benefits including seniority, pay and allowances and increments etc.
18. In terms of our above findings and directions, the Original Application having merits is allowed, leaving the parties to meet their own costs.
( Dr. Ramesh Chandra Panda ) ( Mrs. Meera Chhibber )
Member (A) Member (J)
/pj/