Central Administrative Tribunal - Kolkata
Samir Nath vs South Eastern Railway on 18 March, 2025
1 o.a. 2029 of 22
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A. 350/2029/2022 Heard On: 21.02.2025
Date of order: 18.03.2025
Present :Hon'ble Mr. Manish Garg, Judicial Member
Hon'ble Mr. Anindo Majumdar, Administrative Member
Samir Nath, son Rabindranath Nath, aged about 58
years, by occupation- working as TGT/SER/MHS/JSG,
presently residing at C/O P. K. Debnath, 93, Nayapatty
Road, Kolkata- 7000055.
..............Applicant.
-versus-
1. Union of India, service through the General Manager,
South Eastern Railway, Garden Reach, Kolkata-
700043.
2. The Principal Chief Personnel Officer, South
Eastern Railway, Garden Reach, Kolkata- 700043.
3. The Additional Divisional Railway Manager, South
Eastern Railway, Kharagpur Division,
Kharagpur,Paschim Medinipore- 721301.
4. The Sr. Divisional Personnel Officer, South Eastern
Railway, Kharagpur Division, Kharagpur,Paschim
Medinipore- 721301.
5. The Assistant Personnel Officer- III- cum-Inquiry
Officer, South Eastern Railway, Kharagpur Division,
Kharagpur,Paschim Medinipore- 721301.
For the Applicant : Mr. Arpa Chakraborty, Counsel
Mr. S. Roy, Counsel
Ms. P. Mondal, Counsel
For the Respondents : Ms. D. Nag, Counsel
Digitally signed by Pampa Nandi
Debnath
DN: C=IN, O=Personal, T=1575,
OID.2.5.4.65=
133596280922834876S4dj74l44O
Oh8c, Phone=
feef9776669c46fe6184e820dd910
Pampa dd7d01593942dd0b54986bb0e389
6815227, PostalCode=700131, S=
Nandi West Bengal, SERIALNUMBER=
965e50cc3fa0709cded2168635de
e2247261f62bbbc47678dd5cb72a
Debnath 133ee6b9, CN=Pampa Nandi
Debnath
Reason: I am the author of this
document
Location:
Date: 2025.03.26 13:22:28-07'00'
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2 o.a. 2029 of 22
ORDER
Per Mr. Manish Garg, JM:
The applicant has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"a) An Order do issue directing the respondents to act and proceed in accordance with the provisions of law;
b) Charge Memorandum dated 31.07.2018 issued by the respondent No. 4 is not tenable in the eye of law and as such the same should be quashed.
c) Enquiry Report dated 07.01.2019 prepared by the respondent No. 5 is not tenable in the eye of law and as such the same. should be quashed.
d) Punishment Order dated 30.01.2019 issued by the respondent No. 4 is not tenable in the eye of law and as such the same should be quashed.
e) Office Order dated 26.04.2019 issued by the respondent No. 3 is not tenable in the eye of law and as such the same should be quashed.
f) Show-cause notice dated 02.12.2021 and Order enhancing the punishment dated 30.12.2021 issued by the respondent No. 2 are. not tenable in the eye of law and as such the same should be quashed.
g) An Order do issue directing the respondents to grant all consequential benefits;
h) To grant Costs and incidentals;
i) Certify and transmit the entire records and papers pertaining to the applicant's case so that after the causes shown thereof conscionable justice may be done unto the applicant by way of grant of reliefs as prayed for in (a), (b), ( c ), (d), (e ) and (f) above.
f) Any other order or orders as the Hon'ble Tribunal deems fit and proper."
2. Learned counsel for the applicant submits that a departmental proceedings has been initiated against the applicant on the premises that the provision of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 have not been taken care of while passing the order. He would rely the Section 13 of that act where it has been stated that only after ICC recommendation; the departmental enquiry ought to have been initiated. Section 13 of the said act reads as under:
Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910Pampa dd7d01593942dd0b54986bb0e389
6815227, PostalCode=700131, S=
Nandi West Bengal, SERIALNUMBER=
965e50cc3fa0709cded2168635de
e2247261f62bbbc47678dd5cb72a
Debnath 133ee6b9, CN=Pampa Nandi
Debnath
Reason: I am the author of this
document
Location:
Date: 2025.03.26 13:22:28-07'00'
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"13. Inquiry Report- (1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.
(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be
(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of Section 15:
Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:
Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.
(4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him."
2.1. He further relies upon at para 5.7 of Railway Board Circular vide RBE No. 15/2015 which reads as under:
"5.7. Inquiry Report As per section 13 of the Act, the following action will be taken on the inquiry report of the Complaints Committee:
i. On completion of the inquiry, the Internal Committee shall provide a report of its findings to the disciplinary authority within ten days from the date of completion of inquiry and such report shall be made available to the concerned parties.
ii. Where the Internal Committee arrives at the conclusion that the allegation against the charged official has not been proved, Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
Date: 2025.03.26 13:22:28-07'00' Foxit PDF Reader Version:
2024.4.0 4 o.a. 2029 of 22 it shall recommend to the disciplinary authority that no action is required in this matter.
iii. Where the Internal Committee arrives at the conclusion that the allegation agains the charged official has been proved, it shall recommend to the disciplinar authority-
(a) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the charged official.
(b) to deduct, notwithstanding anything in the service rules applicable to the charged official, from the salary or wages of the charged official such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine in accordance with the provisions of Section 15 of the Act. Provided that in case the Railway is unable to make such deduction from the salary of the charged official due to his being absent from duty or cessation of employment it may direct to the charged official to pay such sum to the aggrieved woman. Provided further that in case the charged official fails to pay the sum, the Internal Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer. Such compensation awarded by the Internal Committee to the aggrieved woman or to her legal heirs shall not amount to penalty under Rule 6 of RS(D&A) Rules, 1968.
(c) The disciplinary authority shall act upon the recommendation within sixty days of its receipt by him.
Action is being taken to amend Rule 6 of RS(D&A) Rules to provide that such compensation will not amount to a penalty under Rule 6 of RS(D&A) Rules.
2.2. He further highlights that the Railway Board has issued vide RBE No. 15/2015 which also takes care of as per section 13 following action has to be taken on the enquiry report of the complainant committee. Here in the present matter, no enquiry report of complaint committee has been initiated, however, independent of the same the departmental proceedings constituted under the provision of Railway Rules.
Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910Pampa dd7d01593942dd0b54986bb0e389
6815227, PostalCode=700131, S=
Nandi West Bengal, SERIALNUMBER=
965e50cc3fa0709cded2168635de
e2247261f62bbbc47678dd5cb72a
Debnath 133ee6b9, CN=Pampa Nandi
Debnath
Reason: I am the author of this
document
Location:
Date: 2025.03.26 13:22:28-07'00'
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2.3. He also drawn our attention to the Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968, which reads as under:
"9. Procedure for imposing major penalties (1) No order imposing any of the penalties specified in Clauses (v) to
(ix) of Rule 6 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 10, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850) where such inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a railway servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, a Board of Inquiry or other authority to inquire into the truth thereof.
**Provided that where there is a complaint of sexual harassment within the meaning of rule 3 of the Railway Services (Conduct) Rules 1966, the Complaints Committee established for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for, holding the inquiry into the complaints of sexual harassment, the inquiry, as far as practicable in accordance with the procedure laid down in these rules.
***(3) Where a Board of Inquiry is appointed under sub-rule (2) it shall consist of not less than two members, each of whom shall be higher in rank than the Railway servant against whom the inquiry is being held and none of whom shall be subordinate to the other member or members, as the case may be, of such Board.
***(4) Where the Board of Inquiry consists of two or more than two members, the senior member shall be the Presiding Officer.
***(5) Every decision of the Board of Inquiry shall be passed by majority of votes, and where there is an equality of votes on the findings, the finding of each member shall be incorporated in the report prepared under Clause (i) of sub-rule (25).
Explanation:
Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (12) and in sub-rule (14) to sub-rule (25), to the inquiring authority shall be construed as a reference to the disciplinary authority.Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910
Pampa dd7d01593942dd0b54986bb0e389
6815227, PostalCode=700131, S=
Nandi West Bengal, SERIALNUMBER=
965e50cc3fa0709cded2168635de
e2247261f62bbbc47678dd5cb72a
Debnath 133ee6b9, CN=Pampa Nandi
Debnath
Reason: I am the author of this
document
Location:
Date: 2025.03.26 13:22:28-07'00'
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(6) Where it is proposed to hold an inquiry against a Railway servant under this rule and Rule 10, the disciplinary authority shall draw up or cause to be drawn up-
(1) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain:
(a) a statement of all relevant facts including any admission or confession made by the Railway servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(7) The disciplinary authority shall deliver or cause to be delivered to the Railway servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Railway servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow.
Note: If copies of documents have not been delivered to the Railway servant alongwith the articles of charge and if he desires to inspect the same for the preparation of his defence, he may do so, within ten days from the date of receipt of the articles of charge to him and complete inspection within ten days thereafter and shall, state whether he desires to be heard in person.
(8) The Railway servant may, for the purpose of his defence, submit with the written statement of his defence, a list of witnesses to be examined on his behalf.
Note: If the Railway servant applies in writing, for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (6), the disciplinary authority shall furnish him with a copy each of such statement as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority."
2.4. Learned counsel for the applicant further highlights at para 8.15 of Presenting Officer's Brief which reads as under:
"8.15 The Apex Court holds that each incident of sexual harassment of women at work place violates the fundamental rights guaranteed Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
Date: 2025.03.26 13:22:28-07'00' Foxit PDF Reader Version:
2024.4.0 7 o.a. 2029 of 22 by Indian Constitution viz. Right to Life and Livelihood. Sexual harassment refers to behavior that are unsolicited, unwanted and challenges women's right to safety, life, livelihood and dignity. It includes such unwelcome sexually determined behavior (whether directly or by implication)as :-
a) Physical contact and advances;
b) A demand or request for sexual favour;
c) Sexually coloured remarks;
d) Showing pornography;
e) Any other unwelcome physical, verbal or non verbal conduct of sexual nature.
Quid pro quo harassment occurs if something is given or promised in exchange for sexual favours. Holding the woman to ransom as her refusal to comply with a request may result in backlash action such as dismissal, demotion & difficult work conditions. Typically the perpetrator is quid pro quo situation would have to be in a position of authority over the victim.
Here, the CO being a Teacher used his power associated with his position in the disguise of fatherly affection."
3. Learned counsel for the applicant would contend that this aspect of the matter is also question of law which can be dealt with even if it has not been clearly spelt out either in defence statement or at the appellate stage, for which he relies upon the decision rendered in the case of Kunal Singh vs. Union of India & Anr. reported in 2003(4) SCC 524. The relevant portion of the said judgment is extracted hereinbelow:
" The appellant was recruited as a constable in the Special Service Bureau (for short "SSB"). When he was on duty, he suffered an injury in his left leg. The medical aid given to him did not help. Ultimately, his left leg was amputated on account of gangrene which had developed from the injury. He was invalidated from service by the respondents on the basis of the report of the Medical Board, Kullu under which he was declared permanently incapacitated for further service as per order dated 20-11- 1998 passed by the Commandant, Group Centre, SSB Shamshi (Kullu). He filed a writ petition in the High Court challenging the validity and correctness of the said order on the ground that it was arbitrary and that he could have been assigned with alternative duty which he could discharge Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
Date: 2025.03.26 13:22:28-07'00' Foxit PDF Reader Version:
2024.4.0 8 o.a. 2029 of 22 keeping in view the extent of his disability and having due regard to 17 years of his unblemished service. The writ petition was dismissed by the High Court holding that he had been permanently invalidated on the basis of the medical opinion and as such there was no scope for him to continue any further in service of any kind in SSB. Hence, this appeal is filed assailing the impugned order. It appears, before the High Court, no argument was advanced specifically in support of the writ petition on the basis of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short "the Act"). However, a specific ground is raised in this appeal based on Section 47 of the Act. Since it is a pure question of law, we have heard learned counsel for the parties on the contentions including the one based on Section 47 of the Act."
4. The allegations are for the period of 06.07.2018 to 10.07.2018. In the defence statement to the charge sheet, learned counsel for the applicant would draw reference to para 3.03 which reads as under:
"...................When the allegation was sent to Railway Authority, it was the intension of the Principal of the school that Sr. DPO being a constitutional authority will act in line of constitutional provisions to inquire into the matter in the proper forum before taking any action against the staff under D&A rules- 1968 because the truth in allegation has not been established as per constitutional manner by SCPCR or NCPCR though, a case has been registered in the Child Line by the complainant himself and Child Line authority has issued a letter to the Railway authority vide no.- PBST/SCL(KGP)- 2/275/2018-19 dated 14.09.2018. Besides, Divisional Personal Officer forwarded the case to the Chairperson of SHWW(PRR)/KGP for inquiry vide No. SER/P-KGP/Genl/435/9SHWW(PPR)/2018 which is still pending because it was the constitutional approach to deal with a case where a woman/girl has been assaulted."
5. Learned counsel for applicant also highlighted that in the present matter initially the punishment of termination from service was issued and later on an appeal, the same was modified to extent of reduction of pay.
The order dated 30.10.2019 passed by the Disciplinary Authority which reads as under:
"Sub: Imposition of Punishment.
Ref: SF-5 No.SER/P-KGP/Conf/410/9/SM/TGT/MHSS/KGP Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
Date: 2025.03.26 13:22:28-07'00' Foxit PDF Reader Version:
2024.4.0 9 o.a. 2029 of 22 I have carefully gone through the entire DA case file consisting of Major Penalty Charge Sheet No.SER/P-KGP/Conf/410/9/SM/TGT/MHSS/KGP dated 31.07.2018, PO's Brief dtd.18.12.18, Defence Brief dtd. 04.01.2019, IO's Enquiry Report dated 07.01.19, Defence of Inquiry Report dtd. 18.01.2019 and all other related documents.
It is observed that :-
1. You were issued with a Major Penalty Charge Sheet (SF-5) vide Charge Memorandum alleging that you were indulged in a delinquent act of sexual abuse of a minor girl student, Ku.Naina Sharma on 06.7.2018 and 07.7.2018 while functioning as an English Literature Teacher of Class-VI.
2. You have submitted your representation dtd. 16.08.2018 against the above Charge Sheet wherein you have denied the charge framed against you.
3. As per Article 311(i) necessary enquiry was conducted by nominating IO and you were given reasonable opportunities by cross-examining the witnesses and to make defence representation.
4. As per enquiry the Article-I of Charge stands sustained and fully proved. Article-II is partially proved & Article-III of Charge stands sustained and fully proved.
5. The defence statement dtd.18.01.19 submitted by you against the Inquiry Report is not convincing.
Hence I being the Disciplinary Authority, after applying of mind, I holding you responsible of the charges and impose the following punishment upon you to meet the end of justice.
"You are hereby removed from Rly Service with 2/3rd compassionate allowance i.e. Pension & Gratuity" with immediate effect.
However, you are at liberty to prefer appeal, if any, against the above punishment to the Appellate Authority, i.e., ADRM/KGP in polite and decent language within 45 days from the date of receipt of this Punishment Notice.
You are to acknowledge the receipt of this Punishment Notice.
6. Thereafter an appeal was preferred by the applicant whereby the following orders have been passed on 26.04.2019. The relevant portion of the same is extracted herein-below: -
".......considering all the above aspects as well as the earnest appeal of the CO and representation of his wife, financial hardship and the previous service record, I have decided to take a lenient view purely as an act of compassion to his family to reinstate the CO in Railway service as TGT, in Level-7 of CPC Pay Matrix at the minimum pay with bottom seniority. After completion of 04(four) years, the CO will be restored back to his earliest post from where he was removed from service, with original pay and seniority depending on his track report to be certified by the controlling Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 10 o.a. 2029 of 22 officer. The intervening period between the date of removal and the date of reinstatement is to be treated as "Dies Non".
7. The applicant preferred a Revision Petition on 01.03.2021 which came to be decided on 02.12.2021 under Rule 25 of RS (D&A) Rules, 1968, where the following orders came to be passed and this is the subject matter of challenge in the present OA.
"I, the undersigned, in exercise of power conferred under rule 25 of RS(D&A) Rules 1968, have carefully gone through the revision petition dt.01.03.21 submitted by Sri Samir Nath, Ex.TGT/MHSS (EM)/KGP, at present working as TGT/SER/MHS/JSG as also the entire D&A case initiated against him as Revising Authority.
The allegation of charge(s) against Sri Nath is that while functioning as TGT of SER/MHSS (EM)/KGP committed gross misconduct by indulging in a delinquent act of sexual harassment to a minor girl child, quite unbecoming of a teacher and detrimental to the safety and security of the students.
The offence committed was of the most heinous nature from someone who is a teacher holding a noble profession. His charges were proved for which he was terminated from service. Being reinstated in service as TGT at the minimum pay with bottom seniority for 4 years was an act of mercy by the Appellate Authority. Sri Nath being guilty was, at a point of time, ready for out of way settlement.
The undersigned being the PHOD of Personnel Department is not so inclined to show any sort of mercy which in turn would dilute the whole issue and sanctity of the profession besides citing a bad precedence.
As such, considering the serious nature of offence, Sri Nath is hereby advised to show cause as to why his punishment should not be enhanced to that of "continuation as TGT at bottom of the scale, with bottom seniority till 28.10.24." in (Level-7), which shall be a bar to the promotion of Sri Nath during such specified period to the time sale of pay, grade, level, post or service from which he is reduced with direction that on promotion to his former post of TGT (Sr. Grade) non functional in level-8 on expiry of the said specified period:-
(a) The period of reduction to the time scale of pay, grade, level, post or service shall operate to postpone future increments of his pay till 28.10.2024.
(b) Sri Nath shall not regain his original seniority in the higher time scale of pay, grade, level, post or service on restoration.
Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910Pampa dd7d01593942dd0b54986bb0e389
6815227, PostalCode=700131, S=
Nandi West Bengal, SERIALNUMBER=
965e50cc3fa0709cded2168635de
e2247261f62bbbc47678dd5cb72a
Debnath 133ee6b9, CN=Pampa Nandi
Debnath
Reason: I am the author of this
document
Location:
Date: 2025.03.26 13:22:28-07'00'
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2024.4.0
11 o.a. 2029 of 22
His reply should reach the undersigned within 10 days from the date of receipt of this notice, failing which, it will be presumed that he has nothing to say against the proposed punishment and the case shall accordingly be decided on its own merit.
Sri Nath is advised to acknowledge receipt of this notice."
8. Opposing the grant of relief as claimed by the applicant, learned counsel for the respondents relied upon the avernment contained in their counter affidavit.
She relied upon that the allegations are serious in nature and a major penalty has been issued in accordance with rule position. The said major penalty is concluded as deemed to be under the provision of Rule 9 which also takes care of proviso itself that deemed to be treated as a complaint of sexual harassment within the meaning of Railway (Services) Conduct Rules 1966 and no independent or separate enquiry or fact findings committee is required to be borne in terms of the provision of Sexual Harassment Act. She further contends that despite giving an opportunity of cross examination and leading the witnesses even remotely saying that the applicant has not taken care of the objection though may be logical as there is no iota or whisper of the enquiry proceeding initiated on the ground of non-addressing the provision of Sexual Harassment act. She also draw reference to the memorandum dated 31.07.2018 which also reads as under:
"The undersigned propose (s) to hold an inquiry against Sri Samir Nath, Trained Graduate Teacher (Arts) of S.E.Rly/MHSS(EM)/KGP under Rule 9 of the Railway Servants Discipline & Appeal) Rules, 1968. The substance of the imputations of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed statement of Articles of charge (Annexure-1). A statement of the imputations of misconduct or misbehaviour 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 article of charges are proposed to be sustained are also enclosed (Annexure-III & IV). Further copies of documents mentioned in the list of documents as per Annexure-III are enclosed.Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910
Pampa dd7d01593942dd0b54986bb0e389
6815227, PostalCode=700131, S=
Nandi West Bengal, SERIALNUMBER=
965e50cc3fa0709cded2168635de
e2247261f62bbbc47678dd5cb72a
Debnath 133ee6b9, CN=Pampa Nandi
Debnath
Reason: I am the author of this
document
Location:
Date: 2025.03.26 13:22:28-07'00'
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2. Sri Samir Nath 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 office of the undersigned immediately on receipt of this menerandum.
3. Sri Samir Nath is further informed that he may, if he so desires, take the assistance of any other Railway servant/an official of Railway Trade Union (who satisfies the requirements of Rule 9(13) of the Railway Servants (Discipline & Appeal) Rules 1968 and Note I 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 Railway Trade Union Official(s), Sri Samir Nath 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 along with the nomination.
4. Sri Samir Nath is nereby directed to submit to the undersigned a written statement of his detence 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 person, and
b) to furnish the names and addresses of the witnesses, if any, whom he wishes to call in support of his defence.
5. Sri Samir Nath is informed that an inquiry will be held only in respect of those articles of charge as are not admitted. He should, therefore, specifically admit or deny each article of charges.
6. Sri Samir Nath 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 inquiry authority or otherwise fails or refuses to comply with the provisions of Rule 9 of the Railway Servants (Discipline and Appeal) Rules 1968, or the orders/directions issued in pursuance of the said rule, the inquiring authority may hold the inquiry ex-parte.
7. The attention of Sri Samir Nath. Trained Graduate Teacher (Arts) of S.E.RI. MHSS(EM)/KGP is invited to Rule- 20 of the Railway Services (Conduct) Rules 1966 under which no Railway servant shall bring or attempt to bring any political or other influence to bear upon any superior authority to further his interests in respect of matters pertaining to his service under the Government. If any representation is received on his behalf from another person in respect of any matter dealt within these proceedings, it Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 13 o.a. 2029 of 22 will be presumed that Sri Samir Nath is aware of such representation and that it has been made at his instance and action will be taken against him for violation of Rule 20 of the Railway Services (Conduct) Rules, 1966.
8. The receipt of this Memorandum may be acknowledged."
The imputation of charges are as under:
"Statement of Article of charges framed against Sri Samir Nath, Trained Graduate Teacher (Arts) of S.E.Rly./MHSS(EM)/KGP on the strength of statement of imputation of misconduct or misbehavior at Annexure-II.
ARTICLE -1 Sri Samir Nath, while functioning as Trained Graduate Teacher of S.E.Rly./MHSS(EM)/KGP committed gross misconduct under Rule -3.1 (iii),
(vi), (x), (xi). (xvii), (xviii) & (xxi) of the Railway services (Conduct) Rules, 1966 by indulging in a delinquent act of sexual abuse of minor Girl student, quite unbecoming of a teacher and detrimental to the safety and security of the students.
ARTICLE-II Sri Deepak Sharma, father of a girl student made allegation against Sri Samir Nath, TGT that Sri Nath harassing Sri Sharma's daughter Ku. Naina Sharma in the school premises in presence of other students with unwanted languages.
ARTICLE-III Sri J.S. Tanti. Principal /SER/MHSS/EM/KGP is stating that the behaviour of Sri Samir Nath towards the students and parents was not up to the mark as reports received from the parents.
Thus by the above act, the said Sri Samir Nath, Trained Graduate Teacher (Arts) of S.E.Rly./MHSS(EM)/KGP not only failed to maintain devotion to duty, but also shown the aggravated sexual assault and acted in a manner which is unbecoming of a Railway Servant, contravening Rule -3.1 (iii), (vi),
(x), (xi), (xvii), (xviii) & (xxi) of the Railway services (Conduct) Rules, 1966 rendering himself liable for disciplinary action being taken against him in terms of RS(D&A) Rules 1968 as amended from time to time."
9. Learned counsel for the applicant further relies upon the judgment in the case of Pawan Kumar Niroula vs. Union of India & Ors. reported in 2022 SCC online Cal 180. The relevant extract of the said judgments as quoted hereinbelow:
Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910Pampa dd7d01593942dd0b54986bb0e389
6815227, PostalCode=700131, S=
Nandi West Bengal, SERIALNUMBER=
965e50cc3fa0709cded2168635de
e2247261f62bbbc47678dd5cb72a
Debnath 133ee6b9, CN=Pampa Nandi
Debnath
Reason: I am the author of this
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"23. Learned counsel for the respondent school authorities has further argued that since the allegations of sexual harassment have been made by the girl students of the school, the provisions of the aforesaid Act will not be applicable to the respondent school.
24. In this context, the definition of 'aggrieved women' as defined under Section 2 (a) of the Act may be referred. As per Section 2(a) an aggrieved woman means in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent. That being so, the provisions of the Act squarely apply to the students of the school.
25. Now, we may advert to another relevant provision of the aforesaid Act. Section 11 of the Sexual Harrasment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, inter alia, provides that the internal complaints committee, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent. After the Sexual Harrasment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came into force the relevant service rules viz Central Civil Services (Conduct) Rules, 1964 and the Central Civil Services (Classification, Control and Appeal) Rules, 1965 were suitably amended. Rule 3C of Central Civil Services (Conduct) Rules, 1964, amongst others, reads as under:
1. No Government servant shall indulge in any act of sexual harassment of any woman at any workplace.
2. Every government servant who is in-charge of a workplace shall take appropriate steps to prevent sexual harassment of any woman at the workplace.
26. For the purpose of this rule 'sexual harassment' includes anyone or more of the following acts or behaviour (whether directly or by implication) namely:
i) Physical Contact and advances; or
ii) A demand or request for sexual favours; or
iii) Making sexually coloured remarks; or
iv) Showing pornography; or
v) Any other unwelcome physical, verbal, non-verbal conduct of a sexual nature.
27. On the other hand, the amended Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, inter alia, enjoins as follows:
Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910Pampa dd7d01593942dd0b54986bb0e389
6815227, PostalCode=700131, S=
Nandi West Bengal, SERIALNUMBER=
965e50cc3fa0709cded2168635de
e2247261f62bbbc47678dd5cb72a
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Debnath
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Where there is a complaint of sexual harassment within the meaning of Rule 3C of the Central Civil Services (Conduct) Rules, 1964, the complaints committee established in each ministry or department or office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of this rule and the complaints committee shall hold, if separate procedure has not been prescribed for the complaints committee for holding the enquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
28. In view of the legal position as above, the committee constituted for summary trial without adhering to the mandatory requirements of the law and the rules as quoted above loses its legal force. Therefore, viewed from all aspects, the impugned order passed by the Learned Tribunal holding the legality of the committee for summary trial is not sustainable in law.
29. Therefore, in view of the observations as above, the question as raised for resolution is answered in the negative.
30. In the result, the writ petition succeeds."
10. Having heard the counsel for the parties and perused the records of the case.
11. ANALYSIS 11.1 In Civil Appeal No. 6859 of 2021 Union of India and Ors. Versus Mudrika Singh. decided on 03.12.2021, the Hon'ble Apex Court observed as under :-
"A rising trend of invalidation of proceedings inquiring into sexual misconduct, on hyper-technical interpretations of the applicable service rules. For instance, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 penalizes several misconducts of a sexual nature and imposes a mandate on all public and private organizations to create adequate mechanisms for redressal. However, the existence of transformative legislation may not come to the aid of persons aggrieved of sexual harassment if the appellate mechanisms turn the process into a punishment. It is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution. It is also important to be mindful of the power dynamics that are mired in sexual harassment at the workplace. There are several considerations and deterrents that a subordinate aggrieved of sexual harassment has to face when they consider reporting sexual misconduct of their superior. In the present case, the complainant was a constable complaining against the respondent who was the head constable - his Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 16 o.a. 2029 of 22 superior. Without commenting on the merits of the case, it is evident that the discrepancy regarding the date of occurrence was of a minor nature since the event occurred soon after midnight and on the next day. Deeming such a trivial aspect to be of monumental relevance, while invalidating the entirety of the disciplinary proceedings against the respondent and reinstating him to his position renders the complainant's remedy at nought.
The history of legal proceedings such as these is a major factor that contributes to the deterrence that civil and criminal mechanisms pose to persons aggrieved of sexual harassment. The High Court, in this case, was not only incorrect in its interpretation of the jurisdiction of the Commandant and the obligation of the SSFC to furnish reasons under the BSF Act 1968 and Rules therein, but also demonstrated a callous attitude to the gravamen of the proceedings. We implore courts to interpret service rules and statutory regulations governing the prevention of sexual harassment at the workplace in a manner that metes out procedural and substantive justice to all the parties. "
11.2 In AURELIANO FERNANDES STATE OF GOA AND OTHERS. CIVIL APPEAL NO. 2482 of 2014. decided on 12.05.2023, the Hon'ble Apex Court underlined the needs of regarding the constitution and composition of the ICCs/LCs/ICs from the point of view of a victim of such a deplorable act not only dents the self-
esteem of a woman, it also takes a toll on her emotional, mental and physical health. It is often seen that when women face sexual harassment at the workplace, they are reluctant to report such misconduct , it was held :-
"74. Just as we celebrate a decade of the PoSH Act being legislated, it is time to look back and take stock of the manner in which the mandate of the Act has been given effect to. The working of the Act is centred on the constitution of the Internal Complaints Committees(ICCs) by every employer at the workplace and constitution of Local Committees(LCs) and the Internal Committees(ICs) by the appropriate Government, as contemplated in Chapters II and III, respectively of the PoSH Act. An improperly constituted ICC/LC/IC, would be an impediment in conducting an inquiry into a complaint of sexual harassment at the workplace, as envisaged under the Statute and the Rules. It will be equally counterproductive to have an ill prepared Committee conduct a half-baked inquiry that can lead to serious consequences, namely, imposition of major penalties on the delinquent employee, to the point of termination of service.
75. It is disquieting to note that there are serious lapses in the enforcement of the Act even after such a long passage of time. This glaring lacuna has been recently brought to the fore by a National daily newspaper that has conducted and published a survey of 30 national sports federations in the country and reported that 16 out of them have not constituted an ICC Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 17 o.a. 2029 of 22 till date. Where the ICC have been found to be in place, they do not have the stipulated number of members or lack the mandatory external member. This is indeed a sorry state of affairs and reflects poorly on all the State functionaries, public authorities, private undertakings, organizations and institutions that are duty bound to implement the PoSH Act in letter and spirit. Being a victim of such a deplorable act not only dents the self- esteem of a woman, it also takes a toll on her emotional, mental and physical health. It is often seen that when women face sexual harassment at the workplace, they are reluctant to report such misconduct. Many of them even drop out from their job. One of the reasons for this reluctance to report is that there is an uncertainty about who to approach under the Act for redressal of their grievance. Another is the lack of confidence in the process and its outcome. This social malady needs urgent amelioration through robust and efficient implementation of the Act. To achieve this, it is imperative to educate the complainant victim about the import and working of the Act. They must be made aware of how a complaint can be registered, the procedure that would be adopted to process the complaint, the objective manner in which the ICC/LC/IC is expected to function under the Statute, the nature of consequences that the delinquent employee can be visited with if the complaint is found to be true, the result of lodging a false or a malicious complaint and the remedies that may be available to a complainant if dissatisfied with the Report of the ICC/LC/IC etc.
76. However salutary this enactment may be, it will never succeed in providing dignity and respect that women deserve at the workplace unless and until there is strict adherence to the enforcement regime and a proactive approach by all the State and non-State actors. If the working environment continues to remain hostile, insensitive and unresponsive to the needs of women employees, then the Act will remain an empty formality. If the authorities/managements/employers cannot assure them a safe and secure work place, they will fear stepping out of their homes to make a dignified living and exploit their talent and skills to the hilt. It is, therefore, time for the Union Government and the State Governments to take affirmative action and make sure that the altruistic object behind enacting the PoSH Act is achieved in real terms."
11.3 A provision to the RS (D&A) Rules, 1968 was incorporated as proviso to rule 9(2) vide RB letter dated 25.6.2010 providing inter alia that the Complaint committee established for inquiry into such complaints shall be deemed to be the inquiry authority appointed by the DA and if separate procedure has not been prescribed for the complaints committee for holding inquiry into the complaints of sexual harassment, the inquiry should be conducted as far as practicable as per the procedure laid down in these rules. The opportunity to cross examine the Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 18 o.a. 2029 of 22 witness was given to the applicant through serving all the depositions of the witnesses and the complaint. He had not specifically questioned any of the depositions and merely denied all the allegations. It is settled law that the victim should not be exposed to cross examination as per the judgment in the case of Sakshi vs UOI and others.
11.4 The aforesaid facts would indicate that this is not a case of "no evidence".
Some evidence has come on record to indicate or rather substantiate the allegations of sexual harassment levelled. What is most important to note at this stage ,when ample opportunity has been given to applicant and all codal formalities were followed , the inquiry should be conducted as far as practicable as per the procedure laid down in these rules , the law does not permit it to go into the issue of sufficiency of evidence for the purpose of holding a public servant guilty of the alleged misconduct , in case of sexual harassment , the detailed enquiry having being conducted cannot be vitiated on the ground that case ought to have been preceded with before an Internal Committee only being a technical pleas raised. Even otherwise, there is nothing to indicate that Complaint Committee was in place. We find having participated in enquiry proceedings not challenge was laid to procedure set out by the respondents in conducting the enquiry.
11.5 In CIVIL APPEAL NOS._7939-7940 OF 2022(Arising out of Petitions for Special Leave to Appeal (Civil) No. 3524-25 OF 2022)-SUBRATA NATH VS UNION OF INDIA AND OTHERS decided on 23.11.2022 , the Hon'ble Apex Court observed as under :-
To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 19 o.a. 2029 of 22 exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily re-appreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-
consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor. ' 11.6 We observe that show-cause notice dated 02.12.2021 and Order enhancing the punishment dated 30.12.2021 issued by the respondent No. 2 on applicant's a Revision Petition under Rule 25 of RS (D&A) Rules, 1968. Rule 25 reads as under :-
PART-VI REVISION AND REVIEW
25. Revision -
(1) Notwithstanding anything contained in these rules -
(i) the President, or
(ii) the Railway Board, or
(iii) the General Manager of a Railway Administration or an authority of that Patna High Court status in the case of a Railway servant serving under his control, or
(iv) the appellate authority not below the rank of a Divisional Railway Manager in cases where no appeal has been preferred, or
(v) any other authority not below the rank of Deputy Head of Department in the case of a Railway servant serving under his control
-
may at any time, either on his or its own motion or otherwise, call for the records of any inquiry and revise any order made under these rules or under the rules repealed by Rule 29, after consultation with the Commission, where such consultation is necessary, and may -
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or
(d) pass such orders as it may deem fit:
Provided that -
(a) no order imposing or enhancing any penalty shall be made by any revising authority unless the Railway servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed;
(b) subject to the provisions of Rule 14, where it is proposed to impose any of the penalties specified in clauses (v) to
(ix) of Rule 6 or the penalty specified in clause (iv) of Rule 6 which falls within the scope of the provisions contained in sub-rule (2) of Rule 11 or to enhance the penalty imposed by the order under revision to any of the penalties specified in this sub-clause, no such penalty shall be imposed except after following the procedure for inquiry in the manner laid down in Rule 9, unless such inquiry has already been held, and also except after consultation with the Commission, where such consultation is necessary.
(2) No proceeding for revision shall be commenced until after -
(i) the expiry of the period of limitation for appeal; or
(ii) the disposal of the appeal where any such appeal has been preferred:
Provided that the provisions of this sub-rule shall not apply to the revision of punishment in case of Railway accidents. (3) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules.
(4) No power of revision shall be exercised under this rule -
(i) by the appellate or revising authority where it has already considered the appeal or the case and passed orders thereon; and
(ii) by a revising authority unless it is higher than the appellate authority where an appeal has been preferred or where no appeal has been preferred and the time limit laid down for revision by the appellate authority, has expired:
Provided that nothing contained in clauses (i) and (ii) above, shall apply to revision by the President.
(5) No action under this rule shall be initiated by -
(a) an appellate authority other than the President; or
(b) the revising authorities mentioned in item
(v) of sub-rule (1) -after more than six months from the date of the order to be revised in cases where it is proposed to impose or enhance a penalty or modify the order to the detriment of the Railway servant; or more than one year after the date of the order to be revised in cases where it is proposed to reduce or cancel the penalty imposed or modify the order in favour of the Railway servant:
Provided that when revision is undertaken by the Railway Board or the General Manager of a Zonal Railway or an authority of the status of a General Manager in any other Railway Unit or Administration when they are higher than the appellate Authority, and by the Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 21 o.a. 2029 of 22 President even when he is the appellate authority, this can be done without restriction of any time limit.
Explanation: For the purposes of this sub-rule the time limits for revision of cases shall be reckoned from the date of issue of the orders proposed to be revised. In cases where original order has been upheld by the appellate authority, the time limit shall be reckoned from the date of issue of the appellate orders. reckoned from the date of issue of the appellate orders.
11.7 Rule 25 of the Railway Servants (Discipline & Appeal) Rules, 1968 is pari materia with Rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules. We observe that the enhancement of punishment was on revision preferred by the applicant himself not driven by suo-motu powers. Further, we also notice that it was imperative in case of Sexual Harassment a decision to enhance the punishment ought have taken after consultation with the Commission more particularly when the Appeal was disposed of in the year 2019 and revisional order came to be passed in the year 2021 i.e after a gap of two years. The Appellate Authority has already reduced the penalty after careful consideration of the case of the applicant. The applicant has already undergone the part of punishment so imposed, his case would fall under instructions of Railway Board's letter No. E 55 RG 6-14 dated 29.02.1956 and E(D&A)71 RG 6- 18 dated 12.12.1972 refraining to impose higher penalty inter-alia to the effect that When a penalty imposed on a Railway Servant is proposed to be enhanced by the Appellate/ Revising Authority, the feasibility of cancelling the original penalty while imposing the higher penalty should be considered. "However if the employee has already undergone the penalty, in whole or in part and it is not feasible to cancel the same, then the facts relating to the original penalty should be kept in view by the Appellate/ Revising Authority while deciding upon the Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location:
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2024.4.0 22 o.a. 2029 of 22 higher penalty to be imposed." Imposition of such an additional penalty by way of enhancement of the punishment in such cases is in order.
12. CONCLUSION We therefore are of the view to partly allow the present OA to the extent by setting aside the Order enhancing the punishment dated 30.12.2021 issued by the respondent No. 2 under Rule 25. All pending applications, if any disposed of.
No costs.
(Anindo Majumdar) (Manish Garg) Member (A) Member (J) pd Digitally signed by Pampa Nandi Debnath DN: C=IN, O=Personal, T=1575, OID.2.5.4.65= 133596280922834876S4dj74l44O Oh8c, Phone= feef9776669c46fe6184e820dd910 Pampa dd7d01593942dd0b54986bb0e389 6815227, PostalCode=700131, S= Nandi West Bengal, SERIALNUMBER= 965e50cc3fa0709cded2168635de e2247261f62bbbc47678dd5cb72a Debnath 133ee6b9, CN=Pampa Nandi Debnath Reason: I am the author of this document Location: Date: 2025.03.26 13:22:28-07'00' Foxit PDF Reader Version: 2024.4.0 23 o.a. 2029 of 22