Central Administrative Tribunal - Bangalore
Prakash Chaudhary vs South Western Railway on 28 March, 2024
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OA.No.170/151/2023/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00151/2023
DATED THIS THE 28th DAY OF MARCH, 2024
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Prakash Chaudhary
S/o Sri. D R Chaudhary
Aged 54 years
Chief Rolling Stock Engineer
S. W. Railway, Hubballi-580020
R/o #1663,
Golf Link Railway Officers colony
Club Road, Keshwapur
Hubballi-580020. ..Applicant.
(By Advocate Shri K. Shivakumar-through video conference)
Vs.
1. Union of India
Rep. by Secretary
Ministry of Railways
Railway Board, Rail Bhawan
Raisina Road, New Delhi-110001
2. General Manager,
South Western Railway,
Rail Soudha,
Gadag Road
Hubballi- 580020
3. Director/Estt (Spl)
Railway Board, Rail Bhawan
Raisina Road, New Delhi-110001 ....Respondents
(By Shri S. Prakash Shetty, Sr. Panel Counsel)
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OA.No.170/151/2023/CAT/Bangalore Bench
O R D E R (ORAL)
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) To quash the communication dated 18.04.2022 (Annexure-A5) vide which the request of the applicant for grant of NF-SAG, NF-HAG and restoration of seniority along with batchmates (1992 batch) has been rejected.
b) To direct the respondents to extend the benefit of pay fixation to the applicant in Non-functional SAG along with 1992 exam batch from 01.03.2014 and to effect the punishment of reduction in pay awarded in the higher pay scale.
c) Grant any other relief or reliefs as deemed fit and proper in the interest of justice and equity.
2. The facts of the case as pleaded by the applicant in his pleadings, are as follows:
a) The applicant is an officer of Indian Railway Service of Mechanical Engineers of 1992 batch. He is presently working as Chief Rolling Stock Engineer in Senior Administrative Grade. He became eligible for grant of Non-functional SAG along with his batch mates of 1992 batch from 01.03.2014. It was not granted to him on the plea that the findings 3 OA.No.170/151/2023/CAT/Bangalore Bench of the screening committee were kept in sealed cover as a major penalty charge sheet dated 08.04.2013 had been issued to him on 16.04.2013.
The major penalty charge sheet was issued on 16.04.2013 for non- intimating the movable/immovable transactions by the applicant to the Railways in time. The CVC circular says that delay in intimation of information should be taken as a mere technical lapse and such lapse should ordinarily attract only a censure/administrative warning which falls under minor penalty. However, the omission on the part of the applicant was taken seriously for issuing a major penalty charge sheet.
b) Though the charge sheet was issued on 16.04.2013, the inquiry officer was nominated only on 10.10.2013. The inquiry commenced on 10.12.2013 and was completed on 05.02.2015. The proceedings were finalized on 11.8.2016, by imposing the penalty of "Reduction in time scale of pay by two stages for a period of two years without the effect of postponing the future increment of his pay" vide penalty advice dated 11.08.2016.
c) The disciplinary proceedings should be finalized within a maximum period of 5 months from the date of issuing of charge sheet to the date of issuing the Penalty advice as per the model time schedule for finalising departmental proceedings issued by the Railway Board dated 24.04.1995. The same was not followed in the case of the applicant despite repeated requests submitted by the applicant on 05.11.2014, 18.04.2016, 16.05.2016 and 08.08.2016 seeking early disposal of the pending disciplinary proceedings. The respondents took more than 3 4 OA.No.170/151/2023/CAT/Bangalore Bench years to finalize the disciplinary proceedings, which is very much against the interest of the applicant.
d) Had the disciplinary proceedings been finalized within the time specified in the said guidelines, the applicant would have got his NF SAG along with his batch mates and the punishment awarded could be effected in the Non-functional grade. But having delayed the proceedings without any valid reason, the grant of NF SAG was delayed every time (for about 4 years) citing the very same reason of pending disciplinary proceedings. Finally, he was granted the non- functional grade only on completion of the punishment i.e., from 01.09.2018 considering him as fit along with 1998 batch.
e) He submitted representation to the Respondents on 25.02.2022 through the General Manager, S.W. Railway, Hubballi. In response to the said representation dated 25.02.2022, the respondents replied by their communication dated 18.04.2022 in which they have justified their stand of belated granting of non-functional SAG from 01.09.2018 which is being challenged through this O.A.
f) In the said communication dated 18.04.2022, it has been stated that the findings of the screening committee in respect of the applicant were kept in sealed cover as a major penalty charge sheet issued on 08.04.2013 was pending against him by taking shelter under Railway Board letter dated 21.01.1993. The sealed cover procedure stated in that letter is applicable only in the case of promotions and not for grant 5 OA.No.170/151/2023/CAT/Bangalore Bench of NF-SAG which is not a promotion and is only a placement in a higher pay scale which has been accepted by the Railway Board in para 1 of their order dated 09.05.2014 (RBE no.45/2014).
g) Any order issued by the Railway Board will be applicable only from the date of issue unless it is mentioned otherwise. In para 2 of RBE no.45/2014, it has been stated that the sealed cover procedure is to be followed when the disciplinary proceedings are pending. Though the applicant had been issued with the charge sheet on 16.04.2013, the provisions in para 2 of this Board's letter is not applicable to the case of the applicant as it comes in to effect after 01.03.2014, the date on which the applicant became entitled for grant of NFSAG.
h) The decision taken by the respondents in denying the benefit of NFSAG along with his 1992 batch mates is very much against the interest of the applicant and unjustifiable and against the policy guidelines.
i) The pending disciplinary action is stated as the main reason for non-
considering him for granting the higher pay scale (financial up gradation) in 2014 along with 1992 exam batch. When so, on completion of the proceedings, the punishment which is effected prospectively from 2016 should be effected in the NF-SAG after granting the same from 2014 on proforma basis. The decision of the respondents in granting the same from 2018 on completion of the penalty is not supported by any rules/guidelines. 6
OA.No.170/151/2023/CAT/Bangalore Bench
j) The averment of the respondents in para 2 of their letter dated 18.04.2022 (Annexure-A5) that the findings of the screening committee were kept in sealed cover as a major penalty charge sheet issued on 08.04.2013 was pending against the applicant is not justifiable. NF SAG is only an up gradation and not promotion and the sealed cover procedure is warranted only in case of promotion and not in up gradation.
3. The respondents have filed their written statement wherein they have averred as follows:
a) The Applicant originally belonged to 1992 Exam Batch. He was considered for grant of NFU-SAG (Non-Functional Upgradation -
Senior Administrative Grade) w.e.f. 01.03.2014 in NF-SAG/IRSME Non-Functional Senior Administrative Grade/Indian Railway Service of Mechanical Engineer) panel, approved on 10.10.2014 along with his batch. The findings of the Screening Committee were kept in 'Sealed Cover' as a Major Penalty charge sheet issued on 08.04.2013 was pending against him.
b) He was again considered for grant of NFU-SAG w.e.f. 13.10.2014 along with 1993 Exam Batch, w.e.f. 01.04.2015 along with 1994 Exam Batch, and w.e.f. 17.03.2016 along with 1995 Exam Batch. The findings of DPC in r/o Shri Prakash Chaudhary were kept in 'Sealed cover' as a Major Penalty charge sheet issued on 08.04.2013 was pending against the officer.
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c) The charge sheet issued to the officer culminated into a major penalty of reduction by two stages in the time scale of pay for a period of two years without cumulative effect, vide order dated 11.08.2016. The operative period of the penalty was w.e.f 11.08.2016 to 10.08.2018. This was issued vide this office memorandum No. SWR /HQ /P.480 /S&T /Vol.VI dated 19/20.07.2017.
d) Railway Board vide its letter no. E (D&A) 90 RG6-18 dated 09.02.1990 has clarified that the time schedule circulated vide letter dated 03.04.86 is only a "model" one and not a "mandatory" schedule. Railway Board have advised Zonal Railways to bring to the notice of Central Administrative Tribunals that in terms of Railway Board's instructions dated 10.11.1980, it is necessary to give a copy of the inquiry report to the charged Railway servant to enable him to represent against the findings of the Inquiry Officer. This additional process will increase the time taken for finalisation of the disciplinary proceedings by at least 2 months. It is also further clarified that the Commission (UPSC) have advised that on an average it takes them five to six months from the date of receipt of the case till the date of communication of advice.
e) The Applicant in the guise of filing this OA, has attempted to challenge the validity of the Penalty imposed upon him after a gap of almost 7 years. This is clearly time barred and the OA deserves to be dismissed on this ground alone. If the Applicant is aggrieved by delay in initiation and completion of D&A proceedings, he should have challenged the 8 OA.No.170/151/2023/CAT/Bangalore Bench same by filing an OA. Having accepted the penalty imposed as fait accompli, and after a gap of almost 7 years, the Applicant cannot raise the issue of either the manner in which the D&A proceedings were initiated nor the veracity of the penalty imposed upon him. The same is clearly barred by limitation.
f) In terms of DOP&T letter No.AB.14017/64/2008-Estt. (RR) dated 24.04.2009, grant of higher scale is governed by terms and conditions as specified below:-
i. As per item no. 3 of above letter, all the prescribed eligibility criteria and promotional norms including 'benchmark' for up-gradation to a particular grade pay would have to be met at the time of screening for grant of higher pay-scale under these orders.
ii. As per item no.5 of this letter, all instructions concerning grant of non-functional up-gradation presently applicable in the case of grant of NFSG to officers of Group A Services would apply in the event of penalty, disciplinary proceedings, Suspension etc.
g) As per Railway Board's letter No.2015/SCC/3/09 (pt.) dated 15.12.2015, (Annexure-R5), bench mark for promotion to SA Grade is "Very Good". The minimum performance benchmark will be "Very Good" in each of the last five APARs. Para-2 of the letter further clarifies that "DPC would not be guided merely by the overall grading, 9 OA.No.170/151/2023/CAT/Bangalore Bench recorded in the APARs, but should make its own assessment on the basis of entries in APARs, as sometimes the overall grading in an APAR may be inconsistent with entries, various parameters and attributes".
h) The applicant's claim for grant of NFU in SAG was considered w.e.f.
22.08.2016 along with 1996 and w.e.f., 18.09.2017 along with 1997 Exam Batch. He was found 'Unfit' by the Screening Committee on the totality of the performance. In these panels APAR grading of officers as considered by Screening Committee are as under-
NFU SAG 2010-11 2011-12 2012-13 2013-14 2014-15
IRSME O/F A/F VG/F VG/F VG/F
Panel VG/F VG/F
(1996
Exam
Batch)
(Note O/F- Outstanding Found, A/F, Average Found, VG/F, Very Good Found) NFU 2011-12 2012-13 2013-14 2014-15 2015-16 SAG A/F VG/F VG/F VG/F VG/F IRSME VG/F VG/F O/F Panel (1997 Exam Batch) (Note O/F- Outstanding Found, A/F, Average Found, VG/F, Very Good Found)
i) Further, his claims for grant of NFU-SAG was considered along with 1998 Exam Batch and he was found 'FIT' by Screening Committee in this panel and granted NFU-SAG w.e.f. 01.09.2018 after expiry of penalty vide Board's order dated 22.11.2018. The copy of the same produced as Annexure-A6. APAR grading of officer as considered by Screening Committee as under:-
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OA.No.170/151/2023/CAT/Bangalore Bench NFU 2012-13 2013-14 2014-15 2015-16 2016-17 SAG VG/F VG/F VG/F VG/F O/F IRSME VG/F VG/F O/F Panel (1998 Exam Batch)
j) The applicant was also considered for empanelment to SAG in following SAG/IRSME Panels:-
Sl No. SAG IRSME Panel Assessment of DPC
for the year
1 SAG/IRSME panels Findings of DPC was
for year 2016-17 kept in 'Sealed Cover'
approved on as a Major Penalty
01.07.2016 chargesheet issued on
08.04.13 was pending
against the officer.
Later on the officer
was imposed a Major
Penalty, as such the
findings of the Sealed
Cover was not acted
upon, in terms of para
3.1 Board's letter
No.E (D&A)92RG6-
149(B) dated
21.01.1993
2 SAG/IRSME panels Found Unfit by DPC
for year 2017-18 on the totality of the
approved on performance
28.09.2017
3 SAG/IRSME panels Found "Fit" by DPC
for year 2018-19 with direction to
approved on promote him only after
30.07.2018 August 2018 i.e. after
expiry of penalty.
Accordingly, the
applicant was
promoted to SAG vide
Board's order dated
12.09.2018.
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OA.No.170/151/2023/CAT/Bangalore Bench
k) As the applicant was empanelled/promoted to SAG in SAG IRSME panel for the year 2018-19 along with 1995 Exam Batch officers, his claims for grant of NFU-HAG will be considered along with 1995 exam batch officers as and when due and he cannot claim the same with reference to his 1992 exam batchmates in view of the position explained above.
4. In his rejoinder to the reply statement, the applicant has averred as follows:-
a) The sealed cover procedure is required only for the regular promotion and not to Non-functional up gradation. Para 1 of the Railway Board's order dated 09.05.2014 (Annexure-A6) clearly states that the sealed cover procedure adopted by the DPC is not applicable for granting of non-functional selection grade which is a financial up gradation. The applicant was considered for grant of NF-SAG from 01.03.2014. So the second para of Annexure-A6 can be made applicable only prospectively and not retrospectively and it is not applicable to the case of the applicant.
b) The respondents are trying to defend their action by citing the Railway Board Circular dated 09.02.1990. They are conveniently avoiding to place the Railway Board circular dated 24.04.1995 (Annexure-A3) and the DOP&T OM dated 14.10.2013. As per the office memorandum dated 14.10.2013 issued by the DOP&T, all major penalty proceedings against Government servants to be completed and final orders to be passed by the Disciplinary Authority within 18 months from the date 12 OA.No.170/151/2023/CAT/Bangalore Bench of delivery of charge sheet. This has not been followed by the respondents despite repeated requests submitted by the Applicant.
c) As per the Para 4 of OM No. 22011/4/91- Estt (A) dated 14.09.1992, six monthly review of the 'Sealed Cover' should be conducted and the review should, inter alia, cover the progress made in the disciplinary proceedings to ensure that the proceeding is not unduly prolonged and all efforts are made to finalize expeditiously so that the need for keeping the case of a Government servant in a sealed cover is limited to the barest minimum. Considering the fact that the Applicant is under the zone of granting of NFU as well as for his regular promotion, the six monthly review of the sealed cover was never done which has caused for the denial of NFU/Promotion along with his batch mates of 1992 batch.
d) The Annexure-R5 placed by the Respondents emphasizing Very Good bench mark for the last 5 years will be applicable only to the promotions/up gradation considered on or after 15.12.2015. But in the case of the applicant, he was considered for up gradation from 01.03.2014. His case cannot be rejected based on the Annexure-R5 which is not applicable to the case of the Applicant. The applicant who was graded as 'Outstanding' in 2010-11 and as 'Very Good' in 2012 -
13, 2013-14, 2014-15, 2015-16 and as 'Outstanding' in 2016-17 could not be graded as 'Average' in 2011-12. This needs to be examined by the Respondents before deciding the issue against the Applicant. 13
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e) The financial up gradation of the applicant has been deferred for a longer period due to the delay by the respondents in finalising the disciplinary proceedings against the applicant by citing unacceptable and illogical grounds.
5. In the additional reply to the rejoinder, the respondents have averred as follows:-
a) Para 2 of Board's letter dated 09.05.2014 (Annexure-R3) clearly lays down that the Internal Selection Committee while considering the issue of grant of Non-Functional Selection Grade (NFSG), shall also place the recommendation for grant of NFSG in a sealed cover, if the concerned officer are covered by any of the following 3 situations as on 1st January of the relevant calendar year :-
i. Where the officer is under suspension
ii. Where a charge sheet has been issued and the departmental
proceedings for disciplinary action are pending iii. Where prosecution for a criminal charge is pending in a court of law.
b) Attention is also drawn to Para 4(v) of DoP&T's OM dated 06.09.2022 which inter alia stipulates that all instructions concerning grant of NFU presently applicable in the case of grant of Non- Functional Selection Grade [NFSG] to Members belonging to Organised Group 'A' Services would apply in the event of penalty, disciplinary proceedings, suspension etc. 14 OA.No.170/151/2023/CAT/Bangalore Bench
c) As admitted by the officer himself, he has not laid any challenge to the major penalty imposed upon him and having the accepted the same, he is now estopped from raising the issue of delay in finalization of Discipline and Appeal Rules (DAR) proceedings at this stage. Further, the officer is attempting to seek redressal of multiple grievances under the garb of this OA, which is clearly not admissible in terms of Rule of the Administrative Tribunals act, 1985.
d) As regards delay in finalization of the proceedings under the Discipline and Appeal Rules (DAR) is concerned, the fact is that the Schedule for completion of Inquiry Proceedings is only a model for guidance and is not mandatory in nature. The chronology of events that took place in the Discipline and Appeal Rules (DAR) Proceedings against the Applicant is as under :
i. Major Penalty Charge Sheet issued by General Manager/South Western Railway on 08/04/2013 ii. Defence submitted by Charged Official dated 07/05/2013 iii. Inquiry Officer appointed on 10/10/2013 iv. Copy of Inquiry Officer's Report provided to the CO on 05/02/2015 for preferring representation. v. CO submitted his representation against IO's Report on 02/03/2015 vi. General Manager, South Western Railway forwarded the case to Railway Board in terms of Rule 10(3) of Railway Servants DAR Rules vide his letter dated 16/05/2016 for imposition of punishment on the CO, as it was not within his powers to impose a Major Penalty on the CO.15
OA.No.170/151/2023/CAT/Bangalore Bench vii. The Railway Board vide order dated 11/08/2016 imposed the Penalty of 'Reduction in time scale of pay by two stages for a period of 02 years, without the effect of postponing future increments of his pay' on the Applicant.
e) The Sealed Cover case of the Applicant was reviewed at regular intervals while making the following promotion panels:-
Panel Date of approval
NFU SAG 1992 Exam batch 10/10/2014
w.e.f. 01.3.2014
NFU SAG 1993 Exam batch 05/03/2015
w.e.f. 13.10.2014
NFU SAG 1994 Exam batch 07/07/2015
w.e.f. 01.04.2015
NFU SAG 1995 Exam batch 15/11/2016
w.e.f. 17.03.2016
SAG/IRSME regular panel 01/07/2016
for the year 2016-2017
f) The benchmark norms 'Very Good' as mentioned in Railway Board's letter dated 03.06.2002 was applied for Non-functional up-gradation in SAG w.e.f 01.03.2014. The copy of the same produced as Annexure-
R7. The Applicant was considered for grant for NFU SAG w.e.f 01.03.2014 along with his batch and findings of the screening Committee were kept in 'Sealed Cover' as a Major Penalty Charge sheet issued on 08/04/0213 was pending against the Applicant. Since, the Applicant was imposed with a Major Penalty, the findings of the Sealed Cover was not acted upon, in terms of Para 5 of Railway Board's letter No. E(D&A)2009RG6-46 dated 09/05/2014 (A6 of Rejoinder).
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g) The Applicant while working as Dy. CWM/Mysore, South Western Railway earned 'Average' grading for his APAR for the year 2011- 2012. Representation against the grading could be submitted by an officer if he/she feels that performance appraisal is not commensurate with achievements during that year. Provision already exists that an officer may submit his representation for review of his performance appraisal within 15 days of viewing the APAR in terms of DoP&T's letter dated 14/5/2009. South Western Railway vide their letter dated 12.12.2012 advised that the Applicant made a representation dated 25/10/2012, which was considered by the competent authority who however decided to retain the grading.
6. Heard learned counsels for the parties and perused the pleadings made by them.
7. In the present case, the applicant has prayed for extending the benefit of pay fixation in Non-Functional SAG to him along with 1992 exam batch i.e., from 01.03.2014 and to effect the punishment of reduction in pay awarded to him in the higher pay scale of NF-SAG.
8. A major penalty charge sheet was issued against the applicant on 08.04.2013 which was pending against him. These proceedings culminated in imposition of a major penalty on the applicant vide orders dated 11.08.2016. The penalty imposed was reduction in time scale of pay by two stages for a period of two years without the effect of postponing the future increment of 17 OA.No.170/151/2023/CAT/Bangalore Bench his pay. The penalty was, therefore, enforced from 11.08.2016 till 10.08.2018.
9. The applicant was not considered for grant of Non-Functional SAG with the 1992 exam batch and subsequently, with 1993, 1994 and 1995 exam batch on account of the fact that the major penalty proceedings were on going against him. The applicant was considered for grant of Non-Functional SAG along with 1996 and 1997 batches. However, he was found unfit by the Screening Committee on the basis of his overall performance.
10. Subsequently, the Screening Committee reviewed the performance of the applicant along with 1998 batch and he was granted Non-Functional SAG. After being found fit by the Screening Committee, he was granted this NF- SAG w.e.f., 01.09.2018 after expiry of penalty period which ended on 10.08.2018.
11. Similarly, the applicant was not considered for empanelment in SAG with 1992 Exam Batch in the panel year 2016-17 on account of the major penalty charge sheet issued to him on 08.04.2013 which was pending against him. Since the Officer was imposed penalty, findings of the Committee were not acted upon, in view of the instructions related to sealed cover procedure.
12. The applicant was again considered for empanelment to SAG in the panel year 2017-18 and found unfit by the DPC on the basis of totality of the performance. Subsequently, the applicant was considered for empanelment in the panel year 2018-19 and was found "FIT" for empanelment to SAG Grade with 1995 Exam Batch. He was consequently promoted to SAG 18 OA.No.170/151/2023/CAT/Bangalore Bench Grade vide order dated 12.09.2018, after expiry of his penalty. This promotion was granted to him along with officers of 1995 batch.
13. The applicant has stated that he has suffered due to the delay in finalising of the penalty proceedings against him. The applicant also referred to the guidelines issued by Central Vigilance Commission. However, these guidelines are only a model schedule and they cannot be considered to be a mandatory schedule. It is desirable to complete the entire proceedings within the specified timeframe of 150 days. However, it may not be possible to adhere to this time schedule in many cases. The respondents have in their pleadings given a detailed timeline of the entire process from the stage of issuance of major penalty charge sheet to the final order of penalty issued by the Railway Board. The entire process has approximately taken about three years. Keeping the timeline indicated by the respondents in view, the time taken for finalising the disciplinary proceedings against the applicant cannot be considered as unreasonable.
14. It is also apparent that the applicant did not suffer a delay in grant of NF-
SAG to him only on the ground of pending disciplinary action against him. He was also held as "unfit" twice in the years 2016 and 2017 when he was considered along with 1996 and 1997 exam batches for grant of NFU-SAG. He had apparently been rated as 'average' for the year 2011-12. The applicant had represented against this average rating and it has been considered by the Competent Authority who decided to retain the gradings in his APAR for the year 2011-12 vide letter dated 12.12.2012. 19
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15. The contention of the applicant that the sealed cover process is not applicable for grant of Non-Functional SAG cannot be accepted, keeping in view the clarifications given by the Ministry of Railways vide RBE No. 45/2014 dated 09.05.2014 where it has been categorically held that sealed cover proceedings is applicable for grant of "Non-Functional Selection Grade" in Group 'A' services.
16. Keeping the above points in view, the present OA lacks merits and deserves to be dismissed.
17. Accordingly, the OA is dismissed.
18. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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