Central Administrative Tribunal - Allahabad
Masjood Ali vs General Manager N C Rly on 5 December, 2023
OA/1343/2012
(Reserved on 22.11.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Pronounced on 04th day of December_, 2023
Hon'ble Mr. Justice B K Shrivastava, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No.330/1343/2012
1. Masjood Ali S/o Late Munnuar Ali R/o House No. - 135, Railganj Pulia
No. 9, Jhansi. (Died on 02.05.2021). Legal heirs of the Late applicant:-
(i) Irfan, (ii)Rizwan, (iii) Salman & (iv) Shaziya
. . .Applicants
By Advocate : Shri S M Ali
VERSUS
1. Union of India through General Manager, North Central Railway Allahabad.
2. Chairman Railway Board, Rail Bhawan New Delhi.
3. Commissioner Railway Safety, Rail Bhawan New Delhi.
4. Divisional Railway Manager, North Central Railway, Jhansi.
5. Senior Divisional Electrical Engineer (TRO), North Central Railway, Jhansi.
. . .Respondents
By Advocate : Shri K K Ojha
ORDER
( By Hon'ble Dr. Sanjiv Kumar, Member(Administrative) This Original Application is filed under section 19 of the Administrative Tribunal Act, 1985 claiming relief to quash the punishment order dated 01.06.1998 (A-2) and order dated 29.09.2011 with all consequential benefits, and to issue direction to the respondents for treating the applicant as voluntarily retired on medical ground and to provide all consequential benefits considering his one ward for compassionate appointment as per medical de-categorization OA/1343/2012 rules and also to issue direction to the respondents to recalculate his pension and other retiral dues and be paid the same to the applicant. Prayer has also been made to issue a direction which this Tribunal may deem fit and proper and also award costs.
2. The brief facts of the applicant's case are that the applicant was appointed on 21.06.1971 in the respondents' department and later promoted as Driver 'A' in grade Rs. 1640-2250 (RPS) and had worked honestly, efficiently and not a single major or minor penalty charge sheet has been given to him. When he was on duty on 19.11.1997 on 2779dn, Goa Express from Jhansi to Nizammuddin after Mathura the entire area was having impaired visibility due to heavy fog. The train was being under control with complete attention in automatic signals. The Intercity Express (4005 Dn.) which was standing on the same track due to some fault was seen in front of his train and the applicant used emergency brake and saved the life of the passengers of both the trains but resulting in collision of two trains and the rear SLR of the Intercity having climbed over the nose of the applicant train's engine. The dash board of the applicant's engine got completely smashed and he was hanging by his right leg within the iron pieces of the dash board of engine. There were no casualty of passengers but only the applicant and guard of intercity express were badly injured because the applicant was trying to control his train till the last moment of accident. The entire body mostly upper portion of the applicant was badly injured and there was no rescue for many hours. The life of the applicant was saved with the help of local people and doctors after the amputation of his right leg upon his knee and thereafter the all concerned message was sent to the railway authorities and the applicant was admitted in Escort Hospital, Faridabad.
3. Subsequently, on 05.02.1998, the applicant received major penalty charge sheet with charges of negligent and careless working and for failing to control Page 2 of 29 OA/1343/2012 and stop his train when automatic signal was on. The applicant required some relevant documents which he requested through his letter dated 05.05.1998 for filing his reply to the charge sheet but the respondents have never given any documents to the applicant and he was hospitalized at Railway Hospital Jhansi from 06.01.1998 to 17.06.1998 and the mental and physical condition of the applicant was not fit therefore as per advice of the railway authorities, he filed application dated 22.05.1998 for closing the DAR enquiry in the major penalty charge-sheet by accepting the charges. But subsequently, through another application he gave representation for voluntary retirement from service after de- categorisation on medical ground and denied all the charges as mentioned in the charge sheet vide his notice dated 25.05.1998.
4. And after receiving the letter accepting the charges from the applicant, the disciplinary authority passed the punishment order dated 01.06.1998 without any inquiry and without giving the opportunity of hearing to the applicant; and imposed the penalty of compulsory retirement on the applicant as punishment against the major penalty charge sheet. The said act was illegal as it was against the Railway Board Circular dated 26.04.1957, where it provides rule of procedure for, Inquiry in accident cases :- " Even where a staff has been held responsible in an accident inquiry, an inquiry under 'D' & 'A' rules must be held in case of imposition of major penalties."
5. So the applicant contends that in view of the punishment of compulsory retirement merely based on his letter of acceptance of charges, which is considered by the authorities as his confession, and as per this circular the said penalty order was illegal and against the DAR Rules. The applicant filed appeal dated 10.06.1998 against the punishment order of compulsory retirement and prayed for voluntary retirement and for providing compassionate appointment to his son as per medical de-categorisation rules because the applicant was Page 3 of 29 OA/1343/2012 medically unfit during while in service and the said application was still pending before the DRM Jhansi. And after imposing penalty the railway hospital was asked to discharge the applicant during his medical treatment without issue of any medical fitness certificate which is against the Departmental medical rules.
6. Thereafter, the applicant filed O.A.No. 312 of 1999 before this Tribunal against the punishment of compulsory retirement and the Tribunal passed the order dated 01.02.2006 with a direction to the General Manager to refer the matter along with the records to the Chairman, Railway Board for his judicious consideration and decision and if the Chairman in consideration approves the request of the applicant and pass suitable order recalling the penalty order and permitting the voluntary retirement be first passed where after only the case of the applicant's son should be considered for compassionate appointment. Pursuant to which, the applicant submitted a comprehensive representation along with all the records to the General Manager, Allahabad on 18.03.2006 but the railway administration chose to approach High Court in writ petition no. 14818 of 2006 against the judgment passed by CAT dated 01.02.2006 and after hearing the Hon'ble High Court dismissed the aforesaid writ petition of the railways with the direction to implement the order of the Tribunal vide their order dated 31.05.2011.
7. The applicant along with the High Court Judgement submitted all his papers before the General Manager for compliance but without full facts and circumstances of the case the Chairman, Railway Board based on the said order of the Tribunal and High Court; rejected the claim of the applicant in illegal manner which the applicant received vide letter dated 29.09.2011 from DRM (P) Jhansi. The applicant thereafter filed revision appeal against the order of Chairman, Railway Board with relevant records on 31.10.2011 to the Chairman which is still pending. The applicant was retired compulsorily as punishment Page 4 of 29 OA/1343/2012 almost 11 years before his actual date of retirement. The applicant quotes that in the case of States of Gujarat v/s Umedbhai- M. Patel (SCC- 2001), the Hon'ble Supreme Court held that " compulsory retirement is not a shortcut to disciplinary action" and quashed the compulsory retirement with direction to pay all the consequential benefits along with 18% interest for the delayed payment of the pecuniary benefits. And the applicant emphasized that his case is covered by this case. The applicant further says that his voluntary retirement notice dated 25.05.1998 was sent through registered post before the punishment order of compulsory retirement dated 01.06.1998 and the said notice should have been first decided by the respondents before proceeding with the disciplinary proceedings against him. The law relating to voluntary retirement notice is very clear as per rules and Hon'ble Supreme Court Judgment (1999 SCC Vol-4 page-293) held that voluntary retirement notice automatically comes into force after expiry of validity period of 90 days. In view of the punishment of compulsory retirement during the pendency of notice of voluntary retirement is also illegal and deserves to be quashed by this Court.
8. The impugned order is against the findings of the High Court and the earlier Tribunal order and is in violation of Railway Board Circulars , Rules and contrary to the facts in his case. Hence, the same should be set aside and the reliefs should be granted to him by allowing this OA.
9. The respondents have filed their counter reply wherein they agree with the basic timeline and facts of the case that the applicant has challenged the order dated 01.06.1998 passed by Sr. Divisional Electrical Engineer, TRO, Jhansi and the order passed by the Chairman, Railway Board which was communicated to the applicant vide letter dated 29.09.2011 issued by Divisional Railway Manager (P), North Central Railway, Jhansi with all consequential benefits and he has further asked relief for treating the applicant as voluntarily retired on medical Page 5 of 29 OA/1343/2012 ground and to provide all consequential benefits with consideration of his one ward for compassionate appointment as per medical de-categorisation rules and to recalculate his pension and other retiral dues and payment thereof. The respondents argued that compassionate appointment sought in this application is misjoinder and could have been asked only by his son after he (the employee) is de-categorised and in this OA it cannot be joined along with other benefits; and hence in the eyes of law this type of application with multiple claims are not maintainable.
10. They emphasised that the applicant himself gave an application dated 22.05.1998 to the Sr. Divisional Electrical Engineer, TRO, D Office, Jhansi requesting that he does not want any DAR inquiry to be conducted and he shall abide by the decision and assured that he will not file appeal against the penalty imposed. And considering his request the penalty of compulsory retirement is imposed in his case, although under rules a severe punishment of removal or dismissal from service was liable to be passed but, since the applicant himself had suffered and lost his one leg, as such, disciplinary authority had taken sympathetic consideration and imposed lenient penalty of compulsory retirement with all retiral benefits, and as it was based on his own request estoppel operates against him for filing any further appeals.
11. The Chairman, Railway Board after considering all the facts and circumstances of this case and rules of the department and the findings and order and directions of the Tribunal and the Hon'ble High Court in their respective orders had passed the current speaking order rejecting the claim of the applicant and confirming the order of the disciplinary authority.
12. They further emphasized that this case is covered by the judgment passed by the Hon'ble Supreme court in the case of State of Punjab vs. Krishan Niwas, reported in (1997)9 SCC Page 31 in para-3 and the case of Sanat Kumar Page 6 of 29 OA/1343/2012 Dwivedi vs. Dhar Jila Sahkari Bhoomi Vikas Bank Maryadit, reported in (2001) 9 SCC Page 402 in para-2 of the judgment, in which the Hon'ble Supreme Court has observed that once punishment has been accepted by applicant and the same has been acted upon, he cannot challenge the same before the court of law. The punishment imposed by disciplinary authority has been approved by Chairman, Railway Board, New Delhi and the order has been passed by Chairman, Railway Board, New Delhi in pursuance of order dated 31.05.2011 passed by Hon'ble High Court, Allahabad and order passed by this Tribunal in O.A.No. 312 of 1999 on 01.02.2006 at this stage there is no lacuna in said order. They further quote the judgment of Supreme Court in the case of Union of India vs. Parma Nanda, reported in (1989) 10 Administrative Tribunal Cases Page 30 in para 27 of the judgment, that if the disciplinary authority has acted according to the rules, punishment imposed by disciplinary authority cannot be interfered by court of law. And they further quote the Rule 6(ix) of Railway Servants (Discipline and Appeal) Rules, 1968, which reads as under:-
"(ix) Dismissal from service which shall ordinarily be a disqualification for future employment under the Government or Railway Administration Provided that in cases of persons found guilty of any act or omission which resulted or would have, ordinarily, result of collisions of Railway trains, one of the penalties specified in Clauses (viii) and (ix) shall, ordinarily, be imposed and in cases of passing Railway signals at danger, one of the penalties specified in Clauses (v) to (ix) shall ordinarily be imposed and where such penalty is not imposed, the reasons therefore shall be recorded in writing.
And according to the said rule, the Chairman, Railway Board has mentioned reasons about imposing lenient penalty of compulsory retirement which is fully justified and the applicant has not challenged the order of the Tribunal dated 01.02.2006 in O.A.No. 312 of 1999 and the said order cannot be reviewed in Page 7 of 29 OA/1343/2012 subsequent proceedings and there is no merit in this OA. Hence it should be dismissed.
13. The applicant has filed his rejoinder wherein he reteirated his facts as in the OA and he specifically mentioned that the respondents was not served the report of the Commissioner, Railway Safety with the charge sheet dated 05.02.1998. Therefore, the applicant asked for document by his application dated 05.05.1998 for submitting the reply of charge sheet but no documents were supplied by the respondents to the applicant and while awarding major penalty in an accident case even the charges are accepted, detailed inquiry should be held and the compulsory retirement is a major punishment as per the Rule 6 of D.A.R. 1968 and that the respondents have not carefully examined the case of the applicant while awarding the punishment and neither examined by the highest authority Chairman, Railway Board. These orders are contrary to the findings of the High Court and that the order of the authority is against the rules of natural justice. The applicant further reiterates and re- emphasises the voluntary retirement notice dated 25.05.1998 was received earlier than their order of compulsory retirement and the authorities have neither accepted nor rejected the same and so it automatically came into effect in 90 days as per the settled law. The applicant has also never accepted the charges and as may be seen in the letter dated 22.05.1998 and the letter dated 25.05.1998 and he emphasized that the accident occurred due to lapses of signal and tele- communication department which was also accepted by the High Court in para 23 of the judgment. The allegation that the applicant failed to control the train when automatic signal was on in HDL-SHLK section are without any evidence, inquiry and cross examination, and hence is illegal, baseless and against the rules of D & A as well as natural justice. He further emphasises para 25, 27, 28 & 29 of the High Court order and finding wherein Page 8 of 29 OA/1343/2012 "PARA 25- "The enquiry proceedings do not show as to how he had appeared before the enquiry officer and made the confessional statement, when he was under treatment and having undergone several operations was under immense suffering. The Tribunal did not commit any error in finding that in all probability the confession letter dated 22.05.1998 could have been obtained more by persuasion than by volition. The principle of natural justice can be stated to be complied with, if there was reasonable opportunity to the applicant to defend his case". PARA 27:- "We could have accepted the argument not to show sympathy and apply humanitarian consideration, which are required to be given weight in the present case, if the respondent was found guilty after an enquiry. When the railway proceeded to impose punishment on the ground of confession, which was in the circumstance obtaining was highly doubtful, the injuries suffered by the petitioner, in an accident deserves consideration on humanitarian grounds. After the enforcement of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, it is no longer possible to an employer to dispense with the service of an employee on the ground of disability acquired during the employment. In the present case the disability was acquired during the course of employment and in discharge of duties, and thus his rights as a disabled person were required to be protected, or at least balanced with the degree of negligence attributed to him in awarding punishment".
PARA 28:- "The faith of the people travelling in public transport tests upon the confidence that the driver would try to avoid accident at any cost as his own life is at stake. No person driving a vehicle would put his own life to risk. The driver driving the vehicle will take precaution first to save himself in case of an accident. Where the driver himself suffers the injury, the presumption arises that he was not negligent unless it is established that he caused the accident on account of inefficiency or neglect, or which may also include driving vehicle under server strain or intoxication. In all such cases the negligence of the driver should be proved before he is held guilty and punished.
PARA-29:- "Such a document could not be treated as confession. We further find that within three days thereafter the petitioner pleaded that since he is no longer fit, he should be allowed to voluntarily retire".
"We find that he could not be punished with compulsory retirement depriving him of the retiral benefits, and the policy of the railways to consider for compassionate appointment to the dependents".Page 9 of 29
OA/1343/2012 He also re-emphasised on the Circular of Railway Board (E(D&A) 57 RG6-6, dated 26.04.1957 Inquiry in accident cases:- "even where a staff has been held responsible in an accident inquiry, an inquiry under D & A Rules must be held of imposing of major penalties".
So the authorities have not conducted any inquiry and their action is against the rules and illegal and against the findings of the High Court. The applicant also says that the Hon'ble Supreme Court's judgment in Union of India vs. Parma Nanda will not be applicable in the present case because the disciplinary authority has not acted according to rules and laws and punishment is without departmental enquiry and awarded after receipt of the notice of voluntary retirement. Hence, it can be interfered by the court.
14 The case came up for final hearing on 22.11.2023. Shri S M Ali, counsel for the applicant and Shri K K Ojha, counsel for the respondents were present and heard.
15. We have carefully gone through the entire records and considered the rival contentions.
16. From the records, it is evident that the applicant was working as Loco Driver of passenger trains and while on duty he met with an accident on 19.11.1997. He was served with a major punishment D&A charge sheet dated 05.02.1998. The applicant vide his letter dated 05.05.1998 (page 47 of the OA) asked for certain documents so he could reply to the major penalty charge sheet. It is also a fact that he was hospitalized between 06.01.1998 to 17.06.1998 at Railway Hospital, Jhansi. It is also evident from the record that the applicant has given a letter dated 22.05.1998 (which is at page 48 of OA) for closing the DAR inquiry accepting all the charges and the said letter has been treated by the respondents as confession and all subsequent decisions are taken based on that. Page 10 of 29
OA/1343/2012 From the record it is further evident that within a few days of this so called confession letter the applicant has also filed an application for voluntary retirement dated 25.05.1998 (which is at page 49 of the OA). It is also not denied that subsequent to this application for voluntary retirement, punishment order dated 01.06.1998 has been passed considering the letter of the applicant dated 22.05.1998 as his confession. Then the applicant filed an appeal within the Department and also went in OA No. 312/1999 wherein the Tribunal passed order on 01.02.2006 whereing they ordered following:-
"6. This is a case wherein the department may be right legally but the question is whether the department would consider sympathetically the case of the applicant so that his family could have a bread winner. Provision exists in the Railways even for re-employment after dismissal subject however to approval by the highest authority. Such a policy is based on equitable and moral grounds. It should, therefore, be appropriate if the case of the applicant is considered by the Railway Board which has the power to convert the compulsory retirement as one of voluntary retirement without any stigma against the applicant so that the applicant's son could be considered for compassionate appointment, subject, however, his otherwise fulfilling all the requirements (save age limit for which relaxation is permissible).
7. In view of the above, the OA is disposed of with the direction to the respondent No. 1 to refer the matter alongwith the records to the Chairman, Railway Board for his judicious consideration and decision. If the Chairman Railway Board on consideration approves the request of the the applicant suitable orders recalling the penalty order and permitting the voluntary retirement be first passed whereafter only the case of the applicant' son should be considered for compassionate appointment. In case the Railway Board is not inclined to acceded to the request of the applicant it may spell out the reasons for the same to the applicant."
17. It is also a fact that the Department challenged the said CAT Order and went to High Court. The High Court in writ petition no. 14818/2006 dated 31.05.2011 observed the following:-
"...25. We find ourselves in complete agreement with the findings of the Tribunal that on the statement made by him in his representation dated 25.5.1998, he was in severe pain and was suffering from the shock of Page 11 of 29 OA/1343/2012 amputation of his right leg and the loss of livelihood. The enquiry proceedings do not show as to how he had appeared before the enquiry officer and made the confessional statement, when he was under treatment and having undergone several operations was under immense suffering. The Tribunal did not commit any error in finding that in all probability the confession letter dated 22.5.1998 could have been obtained more by persuasion than by volition. The principle of natural justice can be stated to be complied with, if there was reasonable opportunity tot he applicant to defend his case.
26. The railways appear to be happy to obtain his confession and close the enquiry, dispensing with his services without considering his representation as he had become even otherwise unfit for the job, and had pleaded to save his retirement benefits and possible employment for his son.
27. We could have accepted the argument not to show sympathy and apply humanitarian consideration, which are required to be given weight in the present case, if the respondent was found guilty after an enquiry. When the railway proceeded to impose punishment on the ground of confession, which was in the circumstance obtaining was highly doubtful, the injuries sufferred by the petitioner, in an accident deserves consideration on humanitarian grounds. After the enforcement of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, it is no longer possible to an employer to dispense with the service of an employee on the ground of disability acquired during the employment. In the present case the disability was acquired during the course of employment and in discharge of duties, and thus his rights as a disabled person were required to be protected, or at least balanced with the degree of negligence attributed to him in awarding punishment.
28. The faith of the people travelling in public transport rests upon the confidence that the driver would try to avoid accident at any cost as his own life is at stake. No person driving a vehicle would put his own life to risk. The driver driving the vehicle will take precaution first to save himself in case of an accident. Where the driver himself suffers the injury, the presumption arises that he was not negligent unless it is established that he caused the accident on account of inefficiency or neglect, or which may also include, driving vehicle under severe strain or intoxication. In all such cases the negligence of the driver should be proved before he is held guilty and punished.
29. In the present case the applicant in his confession did not plead guilty of negligence, after stating that vehicle driven by him met with an accident in automatic signal section between HDL. SHIK and as a result of which he has lost his right leg, which has deprived him of earning livelihood and that he has Page 12 of 29 OA/1343/2012 already received a severe punishment. He accepted the charge levelled in the mentioned SF-5 Standard From and Chargesheet. 5, which provides that the charged person should file written statement of his defence within 10 days of the receipt of the memorandum, if he does not require to inspect any document to prepare his defence within 10 days after completion of the inspection of document and to state whether he wishes to be heard in person, to furnish names and addresses of the witnesses and to furnish list of document, if any, which he wishes to produce. He also stated that he shall abide by the decision and will not file appeal. He pleaded natural justice on humanitarian grounds. We do not find any error in the findings of the Tribunal that the petitioner was not in a fit physical and mental state to record confession. We also find that the document dated 22.5.1998 claimed as confession is not a confession in the strict sense of the term. It is a statement that the petitioner does not want to put any defence, and to contest as he is sufferring immensely. Such a document could not be treated as confession. We further find that within three days thereafter the petitioner pleaded that since he is no longer fit, he should be allowed to voluntarily retire. Even if the petitioner was not aware of his rights that his services could not be dispensed with only on account of invalidity due to accident in the course of employment, we find that he could not be punished with compulsory retirement depriving him of the retiral benefits, and the policy of the railways to consider for compassionate appointment to the dependent.
30. The writ petition is dismissed. The petitioners are directed to carry out the orders of the Tribunal within a month."
18. Pursuant to this the High Court order, the Chairman, Railway Board has examined the case of the applicant and vide his speaking order it is communicated vide letter of DRMPJS on 29.09.2011 passed an order rejecting the claim of the applicant and confirming the order of the disciplinary authority. The speaking order reads as under:-
"In compliance with the Hon'ble High Court Allahabad's order dated 31.05.2011, I have carefully considered the case of Shri Masjood Ali, Retd. Driver 'A', Jhansi.
2. I find that Shri Ali was taken up under major penalty proceedings with the issue of charge memorandum dated 05.02.1998 for his careless and negligent working resulting in collision of Train No. 2779 Dn. Against Train No. 4005 Dn. The proceedings were instituted based on the findings of the preliminary inquiry conducted by the Commissioner of Railway Safety, Central Page 13 of 29 OA/1343/2012 Circle, who held Shri Ali primarily responsible for the accident. Although Shri Ali was given an opportunity to defend his case as laid down under the RS(D&A) Rules, 1968, he chose to admit the charges. He submitted a representation inter alia accepting the charge leveled against him. He also clearly indicated that he did not want any DAR inquiry. After considering the said representation, the Disciplinary Authority dispensed with the inquiry and imposed the penalty of compulsory retirement on Shri Ali vide ordes dated 01.06.1998.
3. There is nothing on record to show that the said admission was forced or influenced by anybody. In fact, had the confession been ignored by the Disciplinary Authority and the proposed inquiry held, there was a possibility of the charge being proved and the penalty of either removal or dismissal being imposed on Shri Ali which would have deprived him of pensionary benefits. As regards the notice for voluntary retirement from service submitted by him on 25.05.1998, the rules provide that in cases where disciplinary proceedings for imposition of major penalty are pending against the concerned employee, the request for voluntary retirement can be withheld. Since in this case, a major penalty charge sheet dated 05.02.1998 was pending, the Competent Authority has rightly not acted on his notice for voluntary retirement dated 25.05.1998. As regards the Hon'ble High Court's observation that "he could not be punished with compulsory retirement depriving him of the retiral benefits...' the records show that he was paid retirement benefits due to him as per the rules.
4. The records thus show that Shri Ali was charge sheeted and the penalty imposed strictly as per the statutory rules. The said rules inter alia envisage that in cases of persons found guilty of any act or omission which resulted in collision of railway trains, the penalty of either removal or dismissal shall ordinarily be imposed. The only question to be considered in the context of the Hon'ble Court's order is whether he deserves any compassion in the facts and circumstances of the case, particularly the fact that he himself became the victim of the accident which resulted in amputation of his leg. Here also, I find that sufficient compassion has already been shown by the Disciplinary Authority by imposing the lesser punishment of compulsory retirement with all the retirement benefits given to him; although, as stated above, the rules provide for imposition of removal/dismissal which would have deprived him of the pensionary benefits. The Hon'ble Court's observation that his rights as a disabled person should be balanced with the degree of the negligence in awarding punishment has also thus been met in this case. I do not, therefore, Page 14 of 29 OA/1343/2012 consider any need for interfering with the decision of the Disciplinary Authortiy."
19. This OA challenging the above impugned order dated 29.09.2011 has been filed with several contentions. Most important being that the applicant had applied for voluntary retirement vide his notice dated 25.05.1998, which also amounted to applicant's denial of charges which was before the passing of the punishment order dated 01.06.1998. Hence, respondent authorities should have first considered the voluntary retirement notice of the applicant dated 25.05.1998 before proceeding further with the disciplinary inquiry and accepting his so called confession statement or acceptance of charges through his letter dated 22.05.1998 which was used by the authorities for concluding the inquiry without further proceeding with the evidences and solely relying on the said document as confession and acceptance of charges and going ahead with the imposition of penalty which act of the respondents in the opinion of the applicant was illegal and violative of principles of natural justice and against the rules and procedures.
20. In a sense, the applicant wants to say that in a case where a disciplinary inquiry is proceeding against a Railway servant and if the said railway servant gives a voluntary retirement notice, it is incumbent on the respondents' department to first dispose of his voluntary retirement notice before getting into his pending disciplinary inquiry and voluntary retirement notice takes precedence over the disciplinary inquiry. He further says that voluntary retirement notice is for three months and within three months if no decision is taken on it, as per Supreme Court orders cited by the applicant and existing rules the voluntary retirement becomes Operational and the said employee is voluntarily retired. So, in his opinion, as he had given the notice dated 25.05.1998, so, on 25.08.1998 automatically the authorities must consider him as voluntarily retired, but if we try to examine the service rules regarding disciplinary inquiry and voluntary retirement we find the following:-
Page 15 of 29
OA/1343/2012 In the Railway Board matters, circular no. 35 updated in September, 2019 regarding retirement dated 30.09.2019 no. E(P&A)I-2019/RT-10. On the heading, D- voluntary retirement on page 10 it is mentioned, " acceptance of the notice in all cases by the authorities mentioned above will be subject to clearance by the Vigilance Branch and from DAR angle." ( Ref:- Board's letter No. E(P&A)I- 77/RT-46 dated 19.06.1979, 26.05.1980, 12.09.1980 & 10.02.1981). Further at para 11.3 of the same page 10. it reads following:-
Where proceedings under the Railway Servants (D&A) Rules are pending or contemplated as for a major penalty against the Railway Servant who has given notice of voluntary retirement and the disciplinary authority, having regard to the circumstances of the case, is of the view that the penalty of removal or dismissal from service would be warranted in the case or in the cases where prosecution is contemplated against the railway servant concerned or may have been launched in a Court of law acceptance of the notice would require the approval of the Minister in charge in regard to Group ''A' & ''B' railway servants and that of the General Manager in the cases of Group C&D railway servants. Therefore, in the cases of Group A&B officers, the General Manager, while making a reference to the Railway Board for advice, should indicate whether departmental/ vigilance/ SPE investigations or consequential DAR, proceedings are pending or contemplated against the officers concerned for the imposition of a major penalty and whether removal or dismissed from service would be warranted in the case(s). (Ref:- Board's letter No. E(P&A)I-77/RT-46 dated 09.11.1977).
And the Railway Board letter no. E(P&A)I-77/RT-46 also makes it clear in the later part of para 7 which reads as:-
"II of para 2(2) of Section I of Railway Ministry's letter No. E.48.CPC/208 dt. 8.7.50 incorporated as para 620 of the Manual of Railway Pension Rules, 1950 or Rule 2046(1)-R.II or any other similar rules. Such acceptance may be generally given in all cases except those (a) in which disciplinary proceedings are pending or contemplated against the Railway Servant concerned for the imposition of a major penalty and the disciplinary authority, having regard to the circumstances of the case, is of the view that the imposition of the penalty of removal or /dismissal from service would be warranted in the case; or (b) in which prosecution is contemplated or may have been launched in a Court of Law against the railway servant concerned. If it is proposed to accept the notice of voluntary retirement even in such cases, approval of the Minister-in-Charge should be obtained in regard to Group 'A' and Group 'B' Railway Servants and that of the General Mangers in the case of Page 16 of 29 OA/1343/2012 Group 'C' and Group 'D' railway servants. Even where the notice of voluntary retirement given by a railway servant requires acceptance by the appointing authority, the railway servant giving notice may presume acceptance and the retirement shall be effective in terms of the notice unless the competent authority issues an order to the contrary before the expiry of the period of notice."
21. In RBE no. 103/1987, voluntary retirement notice no. E(P&A)I-86/RT-32 dated 06.05.1987 on the subject delegation of powers to General Manager/DRMs- Voluntary retirement of railway employees- Regarding inter alia other things it mentions at para 1(b) in the case of officers placed under suspension, Board's prior approval will be necessary. And 1(c) Vigilance and DAR clearance should be obtained in all such cases of notice of voluntary retirement and for this purpose, this Ministry approached for advice whether Department/Vigilance/CBI investigation or consequential disciplinary proceedings are pending or contemplated against the Railway Officer concerned for the imposition of a major penalty and whether the penalty of removal or dismissal from service would be warranted in the case etc. Simple examination of these rules unequivocally substantiate that if disciplinary inquiry is pending that also for a major punishment like in the case of the applicant, the Disciplinary Inquiry takes precedence over the notice of voluntary retirement, as it cannot be processed without a vigilance clearance. It is a fact that a major charge sheet was served on the applicant on 05.02.1998 as he was under suspension which is very evident from the record as is also evident from the order dated 01.06.1998 at page 33 wherein it is ordered :-
"Now, therefore, the undersigned ( the authority which made or is deemed to have made the order of suspension or any other authority to which this authority is subordinate) in exercise of the powers conferred by clause © of sub-rule (5) of rule 5 of the RS (D&A) Rule , 1963 hereby revokes the said order of suspension with immediate effect or with effect from 01.06.1998". And that the suspension order was made or deemed to have been made on 21.11.1997. So the official was under suspension between 21.11.1997 to 01.06.1998."Page 17 of 29
OA/1343/2012 So, the undeniable fact being this that the employee definitely was served with a charge sheet on 05.02.1998 for major punishment and he was also under suspension and during the major penalty charge sheet; as well as the suspension rules are very clear that, "such employees cannot be permitted to be voluntarily retired without going through the major penalty charge sheet inquiry first and appropriate order in the inquiry should be passed, and only after conclusion of such inquiry, any examination and appropriate order could have been passed on voluntary retirement notice dated 25.05.1998 and clearly much before the three months period of notice on 01.06.1998 the said impugned punishment order was issued which read as following:-
" I have gone through the Explanation of the D/E and all other relevant papers and I decide to impose penalty of compulsory retirement with all admissible benefits." So once, punishment order came into effect much earlier than the deemed compulsory retirement date there was no further need for the purpose to examine his case of compulsory retirement and to pass any order on the same. Hence, on this ground, the contention of the applicant has no legal basis and the rules support that the disciplinary inquiry for major punishment will take precedence over the process of notice of voluntary retirement."
Hence, we have no doubt in our mind that the first contention and argument of the applicant is erroneous and is not supported by the prevailing departmental rules.
22. Second major contention of the applicant is that in his case no inquiry was conducted whatsoever whereas the rules of the Railways in their circular dated 26.04.1957 in no. E(D&A) 5/RG6-6 (NR103) it is mentioned "inquiry in accident cases and even where staff has been held responsible in an accident enquiry and enquiry under D&A Rules in case of imposition of major penalties". The applicant by showing this Rule which is at page 52 of the OA asserts that no inquiry as contemplated under D&A Rules has been conducted in this case and just relying on his voluntary confession and accepting the conditions of his letter dated 22.05.1998 is used for concluding the DAR inquiry as he Page 18 of 29 OA/1343/2012 accepted the charges which is at page 48 of OA, cannot be considered to be conduct of inquiry in accident cases as envisaged in the above quoted rules..
23. The applicant contends that the respondents have erred as they have contravened this rule. The simple examination of this Rule one may find that this only says that even where staff has been found responsible in an accident inquiry, which means inquiry by the authorities who go into the cause of accidents from safety and other angles and try to find whether it was the human or mechanical or any other errors and faults and also find who were responsible for such accident to what extent. Those inquiry alone cannot be basis for imposing penalty (unilaterally without a Disciplinary Inquiry) as rightly in those inquiry, the employee so accuse on whom major penalty charges are levelled are not given any imputation of charges or evidence to be adduced and given opportunities of hearing and the process of natural justice and all the laid down conditions of procedure are not met, so the said circulars says that a distinct inquiry under D&R Rules must be held in case of imposition of major penalties.
24. Now, the question is in the present case whether any inquiry under D&A rules has been held before imposition of major penalties. Clearly from the record it is seen that major penalty charge sheet is served on the applicant on 05.02.1998. Pursuant to which the applicant has also asked relevant documents vide letter dated 25.05.1998 (page 47 of OA). He has also applied on 22.05.1998 for closing DAR inquiry and accepted the charges which letter is at page 48 of the OA which also has been considered as a confession by the authorities, and based on his confession, the disciplinary authority has gone ahead and accepted his request for so called confession dated 22.05.1998 and imposed punishment on 01.06.1998 without any further inquiry. This whole process is essentially, "a formal proceeding" under the Railways D&R Rules for imposing major penalty and after serving major charge sheet. So arguing that this process of major Page 19 of 29 OA/1343/2012 penalty proceedings have not been gone through before passing the penalty order is not correct and is clearly contrary to the facts and record. From the content of his so called confession dated 22.05.1998 which reads following "
To, The Sr. DEE TRO DRM Office, Jhansi.
Through:- Proper Channel Ref: Sf 5 No. JHS/T/106/SA-A1/97-98/870 Sir, With due regards, I beg to say on 20.11.1997 2779 Dn. Goa Exp., met with an accident in automatic signal. Section between HDL.SHLK and as a result of this accident, I lost my right leg which has deprived me of earning my livelihood and natural punishment imposed. I accept the charge levelled in the above mentioned SF-5 and hence I do not want any DAR enquiry to be conducted in this regard. I shall abide by the decision and assure you that shall not appeal against the penalty imposed.
Hoping for natural justice on humanitarian grounds.
Dated 22/05/1998 Yours Sincerely, (Masjood Ali) TR. 'A' 142 Chief C.C. Jhansi.
Which clearly says that this is with reference of SF-5 which is for major penalty in No. JHS/T/106-A-A1/97-98/870 and he accepts the charges levelled in the pension SF-5 and hence he has shunned that he does not want any D&R inquiry to be conducted in this regard and that he will abide by the decision and gives assurance that he shall not appeal against the penalty imposed. At this stage in the OA, the applicant also wants to assert that his voluntary retirement notice dated 25.05.1998 which was within a few days of this so called confession statement dated 22.05.1998 he has retracted from his confession as he said at page 49 of the Page 20 of 29 OA/1343/2012 OA " इस दघ ु टना म ाथ का कोई दोष नह ं रहा है तथा ाथ को कृ त के वारा ह पया त मा ा म द ड ा त हो चुका है ।" But no where on record, we find any document where unequivocally the charge acceptance letter (confession letter dated 22.05.1998) is withdrawn by the applicant giving unfettered free hand to the respondents to proceed further with the inquiry. In the absence of withdrawal of the so called confession letter, the respondents have no option to further proceed with the inquiry and take evidence etc. It also appears at this stage that the applicant was consciously aware that if D&R inquiry with major charge sheet proceeded and fact finding safety report and other evidences were produced, the charges made out against the applicant would have been substantiated. In the said eventuality there was all likelihood that the authorities could have imposed much harsher punishment of dismissal/ removal from service or reduction in his pension and retirement dues as is envisaged in the prevailing rules quoted (supra).
Hence, the applicant did not unequivocally withdraw or retracts his confession notice letter dated 22.05.1998 and gave clear unhindered hand and option to the respondents. It is evident that he wants leniency, but he did not want to give free hand to the respondents. He wants to guide the result of what the respondents should do by pandering to sympathy and leniency, but does not want to face the inquiry. In any case from the record, it is very clear that it would be absolutely false and wrong to say that no inquiry under D&R were held in the present case, as envisaged in the rules and that imposition of penalty was without any inquiry and violated the rules of natural justice. As the applicant did not withdraw his mercy confession dated 22.05.1998 unequivocally, his contention about he not being given certain records vide his letter dated 05.05.1998, also becomes redundated, as he himself was solely responsible for abrupt closure of inquiry, and albeit as we see with quite favourable and lenient order imposing the penalty Page 21 of 29 OA/1343/2012 of compulsory retirement with all admissible benefits imposed on him, whereas, had there been a regular detailed D&R inquiry no one could have predicted where it could have lead to ? Hence, this contention that punishment order dated 01.06.1998 is without any inquiry and opportunity of hearing and following the process of natural justice is wrong and erroneous and unacceptable and the Department has specifically conducted inquiry and the process of major charge sheet dated 05.02.1998 was indeed issued and served duly on the applicant and subsequent procedures followed and orders passed clearly substantiates otherwise. Hence, we have no doubt in our mind that the second contention of the applicant is also baseless.
25. The applicant further says and tries to find anchor in the findings of the Hon'ble High Court order dated 31.05.2011 but more than finding, the operative part of the order is important which reads "The Writ Petition is dismissed. The petitioners are directed to carry out the orders of the Tribunal within a month". So, before us, the question is limited to whether this order has been carried out or not and this only directs to carry out the order of the Tribunal which was dated 01.02.2006 wherein the Tribunal had directed respondent no. 1 " to refer the matter along with the records to the Chairman, Railway Board for his judicious consideration and decision and if the Chairman, Railway Board on consideration approves the request of the applicant suitable orders recalling the penalty order and permitting the voluntary retirement be first passed Thereafter only the case of the applicant's son should be considered for compassionate appointment. In case the Railway Board is not inclined to accede to the request of the applicant, it may spell out the reasons for the same to the applicant."
26. And pursuant to this, the case is actually referred to the Chairman, Railway Board who has examined the case himself and has passed the impugned Page 22 of 29 OA/1343/2012 order which is communicated vide letter dated 29.09.2011. Clearly, the impugned order is speaking order wherein it is examined that he was issued with charge memorandum dated 05.02.1998 for his careless and negligent working resulting in collision of Train No. 2779 dn. Against Train No. 4005 dn. And the proceedings were instituted based on the findings of the preliminary inquiry conducted by the Commissioner of Railway Safety, Central Circle, who held Shri Ali primarily responsible for the accident. Although Shri Ali was given an opportunity to defend his case as laid down under the RS(D&A) Rules, 1968, he chose to admit the charges. He submitted a representation inter alia accepting the charge levelled against him. He also clearly indicated that he did not want any DAR inquiry. After considering the said representation, the Disciplinary Authority dispensed with the inquiry and imposed the penalty of compulsory retirement on Shri Ali vide order dated 01.06.1998.
27. The Railway Board Chairman further notes that nothing on record to show that the said admission was forced or influenced by anybody. In fact, had the confession been ignored by the Disciplinary Authority and the proposed inquiry held, there was a possibility of the charge being proved and the penalty of either removal or dismissal being imposed on Shri Ali which would have deprived him of pensionary benefits. As regards the notice for voluntary retirement from service submitted by him on 25.05.1998, the rules provide that in cases where disciplinary proceedings for imposition of major penalty are pending against the concerned employee, the request for voluntary retirement can be withheld. We have examined the records, facts and rules, and we have no doubt in our mind that these findings are as per rule as we have earlier discussed.
28. The Chairman further observes that "Since in this case, a major penalty charge sheet dated 05.02.1998 was pending, the Competent Authority has rightly not acted on his notice for voluntary retirement dated 25.05.1998. As regards the Page 23 of 29 OA/1343/2012 Hon'ble High Court's observation that "he could not be punished with compulsory retirement depriving him of the retiral benefits...' the records show that he was paid retirement benefits due to him as per the rules." Here also, the Railway Board Chairman is absolutely right and we can see the operative part of the order of disciplinary authority which is at page 34 which reads following:-
" I have gone through the Explanation of the D/E and all other relevant papers and I decide to impose penalty of compulsory retirement with all admissible benefits." So, clearly the Department has taken it quite sympathetically and ensure that all admissible retirement benefits are given to the applicant and the order dated 01.06.1998 which imposed punishment is quite speaking and lenient and favourable to the applicant. If fact is such then the only thing for which further the applicant is agitating before this Tribunal is compassionate appointment as all retiral benefits admissible has already been provided to him. But this aspect is not unequivocally clarified by the applicant either earlier before the Tribunal or the Hon'ble High Court which emerges from the record."
After examining all the records and statements before us we have nothing placed before us which may not allow us to conclude, that all the admissible retiral benefits were not granted and released to the applicant. If the applicant has received all retiral benefits why in the relief still the applicant is asking for retiral benefits is not understandable? We unequivocally conclude that as per the order of the Disciplinary Authority and the Chairman, Railway Board, the applicant has received all admissible benefits on compulsory retirement, although as a penalty. But clearly the said penalty is quite lenient, and the authorities have not been unsympathetic to the request and need of the applicant. Further, the order of the Chairman, Railway Board says that "The records thus show that Shri Ali was charge sheeted and the penalty imposed strictly as per the statutory rules. The said Page 24 of 29 OA/1343/2012 rules inter alia envisage that in cases of persons found guilty of any act or omission which resulted in collision of railway trains, the penalty of either removal or dismissal shall ordinarily be imposed."
29. The only question to be considered in the context of the Hon'ble Court's order is whether he deserves any compassion in the facts and circumstances of the case, particularly the fact that he himself became the victim of the accident which resulted in amputation of his leg. Here also, I find that sufficient compassion has already been shown by the Disciplinary Authority by imposing the lesser punishment of compulsory retirement with all the retirement benefits although, as stated above, the rules provide for imposition of removal/dismissal which would have deprived him of the pensionary benefits. The Hon'ble Court's observation that "his rights as a disabled person should be balanced with the degree of the negligence in awarding punishment has also thus been met in this case. I do not, therefore, consider any need for interfering with the decision of the Disciplinary Authortiy."
30. From the records, we also do not find any ground to disagree with the findings and conclusion and decisions of the Chairman, Railway Board and coming to the conclusion that compassion has been shown to the applicant and in awarding punishment his right as a disabled person has been balanced with the degree of the negligence and that justice is done and procedurally, the respondents' authorities have taken care to follow all the procedures in the laws and Rules prescribed, in the given circumstances of the present case.
31. Considering the above facts, we are clear in our mind that there is no case made out for the applicant and this case essentially boils down to disciplinary cases where the quantum of punishment is being challenged, and as per the laid down rulings in a long catena of judgement, the Hon'ble Apex Court has time and again defined the scope of judicial review in disciplinary cases and explained how Page 25 of 29 OA/1343/2012 it was quite limited on quantum of punishment. Procedurally, there is no lacunae we find in this case which again boils down to only scrutinising whether we can substitute our limited power of judicial scrutiny for how the authorities have appreciated the evidence on record and also their conclusion regarding the quantum of punishment, as to it being disproportionate. As in the Hon'ble Apex Court Ruling, in the case of Union of India Vs. P. Gunasekaran, 2015(2) S.C.C. page 610 in para 12, 13 & 20 and in the case B.C.Chaturvedi v. Union of India & Ors. Reported in 1995 (6) SCC 749 also in the case of Union of India v. Upendra Singh reported in 1994(3)SCC 357. Similarly in the case of Union of India & Ors. v. R.K. Sharma, AIR 2001 SC 3053 The Hon'ble Court explained observations made in Ranjit Thakur inter alia other thing it mentioned that Court cannot exercise the power of judicial review and interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and courts should not interfere merely on compassionate grounds. Similarly, in case of State of Meghalaya & Ors. v. Mecken Singh N. Marak, AIR 2008 SC 2862, The Hon'ble Court observed that the scope for interference is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocks the conscience of the court, cannot be subjected to judicial review. (See also: Depot Manager, A.P.S.R.T.C. v. P. Jayaram Reddy, (2009) 2 SCC 681). And there is a long catena of other judgments supporting these findings which binds our hands from any further judicial scrutiny of the evidence adduced and placed before the Chairman and his conclusion and the imposition of punishment which in this case, in our considered view is extremely lenient and favourable to the applicant. Furthermore, as all retiral benefits are already given to the applicant, and except the benefit of compassionate appointment which through Page 26 of 29 OA/1343/2012 relief in this OA the applicant seek, which in the case of de-categorisation and associate voluntary retirement, the applicant's family could have been eligible is a very far fetched argument, as even on de-categorisation it is not a vested right for anyone to get compassionate appointment for their ward as it is only if certain conditions are met, in exceptional cases constitutional scheme of public employment and rule of recruitment is relaxed to give to a deserving ward compassionate appointment. We also agree with the argument of the respondents that in the same OA asking multiple relief of voluntary retirement and compassionate appointment is not maintainable, and question of voluntarily retired decategorised staff will subsequently arise, and only after such voluntary retirement is granted. And pursuant to which dependent eligible ward applied, and the said case is examined as per rules and their eligibility established as per compassionate appointment rules and vacancies available.
32. Considering the case of Umesh Kumar Nagpal Vs. State of Haryana and others - JT 1994(3) SC 525, Hon'ble Supreme court has clearly held that appointment on compassionate grounds can be considered only if the family is in indigent circumstances and not as a matter of right, which can be executed at any time in future. Hon'ble Supreme Court has laid down following the important principle regarding compassionate appointment.
"(i) Only dependents of an employee dying in harness leaving his family in penury and without any means of livelihood can be appointed on compassionate ground.
(ii) The posts in Group 'C' and 'D' (formerly classes III and IV) are the lowest pots in non-manual and manual categories and hence they alone can be offered on compassionate grounds and no other post, i.e., in the Group 'A' or Group 'B' category is expected or required to be given for this purpose as it is legally impermissible.Page 27 of 29
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(iii) The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and to help it get over the emergency.
(iv) Offering compassionate appointment as a matter of course irrespective of the financial condition of the family of the deceased or medically retired Government servant is legally impermissible.
(v) Neither the qualifications of the applicant (dependent family member) nor the post held by the deceased or medically retired Government servant is relevant. If the applicant finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity.
(vi) Compassionate appointment cannot be granted after lapse of a reasonable period and it is not a vested right which can be exercised at any time in future.
(vii) Compassionate appointment cannot be offered by an individual functionary on an ad hoc basis".
33. And in this case as the accident took place from 19.11.1997 and retirement punishment took place on 01.06.1998. Since then more than two and half decades have passed and there cannot be any subsisting claim for compassionate appointment as compassionate appointment cannot be granted after lapse of a reasonable period and it is not a vested right which can be exercised at any time in future. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of deceased employee from financial destitution and to help it get over the emergency. At this stage, as already substantial benefits have been given to the applicant and compassionate appointment is not a matter of right as it is an exception to the constitutional provisions of public appointment.
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34. Further, the case law quoted by the applicant in the case of State of Gujarat vs. Umedbai M Patel (SCC-2001) of the Hon'ble Apex Court, "Compulsory retirement is not a shortcut to disciplinary action" is not relevant here as it pertains to a different kind of compulsory retirement case. Compulsory retirement punishment is imposed after due inquiry as rightly explained in the Chairman, Railway Boards Order. All other citation and contentions are not relevant in this case. Hence, considering all the above points we do not find any subsisting case for the applicant and we pass following orders:-
The present Original Application is liable to be dismissed, accordingly dismissed. Any M.A., if pending, shall also stand disposed of accordingly. No order as to costs.
(Dr. Sanjiv Kumar) (Justice B K Shrivastava)
Member-A Member-J
/Priyadarshana/
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