Central Administrative Tribunal - Delhi
Pradeep Kumar vs M/O Railways on 4 September, 2023
1 O.A. No.816/2019
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.816 of 2019
Orders reserved on : 23.08.2023
Orders pronounced on : 04.09.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Pardeep Kumar, Aged -30 years
S/o Sh. Shish Pal,
Ex-Junior Engineer/P.Way,
Northern Railway, Delhi Division,
R/o Village Bhuri-Bana,
Post Khera Afgan, Saharanpur (UP).
...Applicant
(By Advocate: Shri Yogesh Sharma)
VERSUS
1. Union of India through the General Manager,
Northern Railway, Baroda House, New Delhi.
2. The Principal Chief Engineer (Engineering),
Northern Railway, Baroda House, New Delhi.
3. The Additional Divisional Railway Manager,
Northern Railway, Delhi Division,
State Entry Road, New Delhi.
4. The Sr. Divisional Engineer/C
Northern Railway, Delhi Division,
State Entry Road, New Delhi.
...Respondents
(By Advocate: Shri Sanjeev Yadav)
2 OA No.816/2019
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
By filing the instant OA, under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned 28.8.2017 (Annexure.A/1) and Appellate order dated 8.6.2018 (Annexure.A/2), and consequently, pass an order directing the respondents to reinstate the applicant in service with all consequential benefits including the arrears of difference of pay and allowances with interest.
(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant."
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2. Pursuant to notice, the respondents have filed their reply opposing the claim of the applicant. The applicant has waived his right to file rejoinder, which is recorded in the order sheet dated 22.2.2021.
3. The brief relevant facts of the case are that the applicant was appointed and working as Junior Engineer under the respondents. On 19.8.2017, there was an accident of Train No.18477, derailment of 13 coaches. A preliminary enquiry was conducted in the said derailment matter and on the basis of preliminary enquiry report, the 3 OA No.816/2019 respondents removed the applicant from service with immediate effect under the provisions of Rule 14 (ii) of the Railway Servants (Discipline & Appeal) Rules, 1968, i.e., Article 311 (2)(b) of the Constitution of India vide impugned order dated 28.8.2017. Aggrieved by the same, the applicant submitted his detailed appeal dated 9.10.2017 to the appellate authority but instead of considering the said appeal, the respondents vide letter dated 21.5.2018 supplied a copy of the primary/preliminary report in which it has been stated that the applicant held responsible for that accident. 3.1 After receipt of the said letter, the applicant submitted a further petition vide letter dated 1.6.2018 to the appellate authority but the same has also been rejected by the ADRM vide order dated 8.6.2018. Thereafter against the aforesaid orders of the disciplinary and appellate authorities, the applicant submitted a revision petition to the respondent no.2 vide letter dated 17.9.2018 but till date, no reply has been received. Hence, the instant OA.
4. During the course of hearing, Shri Sharma, learned counsel for the applicant has argued that the impugned order passed by the disciplinary authority under Rule 14 4 OA No.816/2019
(ii) of the Rules ibid is not sustainable in law, as the same has not been passed after satisfying the two conditions, which reads as under:-
(i) There must exist a situation which made the holding of an inquiry contemplated by Article 311(2) not reasonably practicable; and
(ii) The disciplinary authority should record in writing the reason or reasons for its satisfaction that it was not reasonably practicable to hold the inquiry.
4.1 Learned counsel for the applicant has further argued that in the present case, there is no such situation which made the holding of an inquiry not reasonably practicable and there is no reasons stated by the disciplinary authority that why it was not reasonably practicable to hold the inquiry. To substantiate this contention, learned counsel for the applicant has placed reliance on R.B.E. No.53/92, which is on the subject of imposition of penalties under Rule 14(ii) of Railway Servants (Discipline & Appeal) Rules 1968, which reads as under:-
"Attention is invited to Board's letter No.E(D&A) 85RG6-72 dated 06.02.1986 and 16.05.1986 [Bahri's 1986, 89 RBO (RBE 90/86) and No.E(D&A)86 RG6- 74 dated 13.04.1989 on the above subject. It was advised in these letters that in terms of the principles laid down by the Supreme Court the Disciplinary Authority was not expected to dispense with the 5 OA No.816/2019 disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case is weak and therefore bound to fail and that recording in writing the reasons for dispensing with the inquiry was a constitutional obligation. It was also mentioned that the circumstances which make the disciplinary authority conclude that it was not reasonably practicable to hold the inquiry should actually subsist at the time when the conclusion is arrived at and that it would not be correct on the part of hte disciplinary authority to anticipate such circumstances as those are likely to arise. Merely recording that if normal procedure is followed it is likely that evidence may be destroyed or witnesses may not come up to give evidence on account of fear of threat/harassment etc. would not be adequate for dispensing with the inquiry.
2. In this connections, extracts from the judgment dated 27.11.1990 of the Supreme Court in the case of Jaswant Singh v. State of Punjab (AIR 1991 SC
385) are given in the Annexure. Accordingly it is essential that the reasons recorded by the Disciplinary Authority for dispensing with the inquiry are supported by objective facts and/or independent material.
3. Since the decision of the Disciplinary Authority to dispense with inquiry is challengeable in a Court of Law, including the CAT, all disciplinary authorities may be asked to bear in mind the above mentioned guidelines while applying Rule 14 (ii) of Railway Servants (Discipline & Appeal) Rules."
4.2 On the strength of the aforesaid R.B.E. No.53/92, learned counsel for the applicant has also argued that this is a case of non-application of mind by the disciplinary authority while invoking the provisions of Rule 14(ii) of the Rules ibid as well as the aforesaid R.B.E. No.53/92. 6 OA No.816/2019 Learned counsel for the applicant has also submitted that sub-rule (ii) of Rule 14 of the Rules ibid does not give any unbridled power to the Disciplinary Authority to dispense with the enquiry as provided under Rules 9 to 11 of the Rules ibid. Learned counsel has again emphasised that in order to invoke the said provision, the Disciplinary Authority has to satisfy itself that it is not reasonably practicable to hold an inquiry in the manner provided in those Rules and before arriving at such a conclusion, the Disciplinary Authority is required to record his reasons in writing. However, in the impugned order passed by the Disciplinary Authority, no such reason(s) whatsoever has/have been recorded to substantiate that it was not practicable possible to hold an inquiry on the allegations levelled against the applicant. In support of the claim of the applicant, learned counsel for the applicant has placed reliance on the judgments of the Hon'ble Supreme Court in the case of Union of India vs. Tulsi Ram Patel, reported in (1985) 3 SCC 398, and Satyavir Singh and others vs. Union of India, reported in (1985) 4 SCC 252. In Tulsi Ram Patel (supra), the Hon'ble Apex Court held as under:-
7 OA No.816/2019
"133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.
134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause
(b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. Sometimes a situation may be such that it is not reasonably practicable to give detailed reasons for dispensing with the inquiry. This would not, however, per se invalidate the order. Each case must be judged on its own merits and in the light of its own facts and circumstances."
4.3 Further in the case of Satyavir Singh (supra), the Hon'ble Supreme Court has held as under:-
"(55) There are two conditions precedent which must be satisfied before clause (b) of the second proviso to Article 311(2) can be applied. These conditions are:
(i) there must exist a situation which makes the holding of an inquiry contemplated by Article 311(2) not reasonably practicable, and 8 OA No.816/2019
(ii) the disciplinary authority should record in writing its reason for its satisfaction that it is not reasonably practicable to hold such inquiry.
(56) Whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so.
(57) It is not a total or absolute impracticability which is required by clause (b) of the second proviso. What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.
(58) The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. The disciplinary authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of the prevailing situation that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final.
(59) It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry. Illustrative cases would be--
(a) where a civil servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so, or
(b) where the civil servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members 9 OA No.816/2019 of his family so that he is afraid to hold the inquiry or direct it to be held, or
(c) where an atmosphere of violence or of general indiscipline and insubordination prevails, it being immaterial whether the concerned civil servant is or is not a party to bringing about such a situation.
In all these cases, it must be remembered that numbers coerce and terrify while an individual may not." 4.4 Further in the case of Sudesh Kumar vs. State of Haryana and others, reported in (2005) 11 SCC 525, the Hon'ble Supreme Court has held as under:-
"5. It is now established principle of law that an inquiry under Article 311(2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311(2)(b) must satisfy for reasons to be recorded that it is not reasonably practicable to hold an inquiry. A reading of the termination order by invoking Article 311(2)(b), as extracted above, would clearly show that no reasons whatsoever have been assigned as to why it is not reasonably practicable to hold an inquiry. The reasons disclosed in the termination order are that the complainant refused to name the accused out of fear of harassment; the complainant, being a foreign national, is likely to leave the country and once he left the country, it may not be reasonably practicable to bring him to the inquiry. This is no ground for dispensing with the inquiry. On the other hand, it is not disputed that, by order dated 23-12-1999, the visa of the complainant was extended up to 22-12-2000. Therefore, there was no difficulty in securing the presence of Mr Kenichi Tanaka in the inquiry."
4.5 Learned counsel for the applicant has further argued that the Hon'ble Supreme Court in the case of A.K. Kaul and others vs. Union of India and another, reported in 10 OA No.816/2019 (1995) 4 SCC 73, had an occasion to consider the order of dismissal of an officer in the Indian Intelligence Bureau in the Ministry of Home Affairs of the Govt. of India passed under Clause (C) and held that there is nothing in the provision of Clause (C) of the second proviso to Article 311 of the Constitution of India which compels a departure frm the principles laid down in S.R. Bommai vs. Union of India, reported in (1994) 3 SCC 1 governing justifiability of the satisfaction of the President in the matter of exercise of power under Article 356. The Hon'ble Apex Court in Southern Railway Officers Association and another vs. Union of India and others and other connected matters, reported in (2009) 9 SCC 24 while reiterating the principle laid down in Tulsiram's case (supra), Kuldip Singh vs. State of Punjab, reported in (1996) 10 SCC 659 observed that recording of reasons, thus, provides adequate protection and safeguard to the employee concerned. It is now well settled that reasons so recorded must be cogent and sufficient. Satisfaction to be arrived by the disciplinary authority for the aforementioned purpose cannot be arbitrary. It must be based on objectivity. Further in the case of Reena Rani vs. State of Haryana, reported in (2012) 10 SCC 215, the Hon'ble Supreme 11 OA No.816/2019 Court after referring to various authorities in the field, the Court ruled that when reasons are not ascribed, the order is vitiated and accordingly set aside the order of dismissal which had been concurred with by the Single Judge and directed for reinstatement in service with all consequential benefits. It has also been observed therein that the order passed by this Court would not preclude the competent authority from taking action against the Appellate in accordance with law.
5. Per contra, learned counsel for the respondents with the assistance of the counter reply as well as an affidavit filed on behalf of the respondents for bringing on record certain documents dated 1.10.2021, has submitted that the punishment was imposed upon the applicant on the basis of an inquiry conducted by the Commissioner of Railway Safety, which is a statutory authority constituted under Chapter II of the Railways Act, 1989. Further in all cases, where there are accidents involving loss of human life and property, the competent authority can constitute an enquiry by CRS. The CRS is vested with the responsibility to submit a report containing the cause of Railway accident, the erring negligent personnel who are responsible for such incidents and his recommendations 12 OA No.816/2019 to prevent such accidents in future. In the course of its enquiry, the Commissioner of Railway Safety is empowered under the Act to summon all persons alleged to be involved in the said accident as also examine witnesses leading to the incident and the present case also involves an accident in which there was huge loss of life and property and accordingly, the CRS in the course of the inquiry has examined the applicant and others. In the said enquiry, the applicant was given all opportunities to adduce his defence and submit before the statutory authority his innocence in the entire matter. This inquiry is akin to an inquiry conducted under Rule 14 of the CCS (CCA) Rules. As a matter of fact the scope and purpose of the inquiry is over and above the inquiry conducted under the CCS (CCA) Rules and being statutory in nature is held on a higher pedestal.
5.1 Learned counsel has further submitted that on the basis of the said CRS Report in the said accident in which the applicant also participated and the said CRS enquiry is akin to an inquiry conducted under the CCS (CCA) Rules, the question of holding another inquiry in such cases is neither desirable nor required. As a matter of fact the object and purpose of conducting such an inquiry is to 13 OA No.816/2019 bring out the truth of the matter and to point out the persons involved whose conduct has lead to the misconduct alleged. A copy of the final report of the enquiry conducted in the matter of derailment of Train no.18477 is enclosed with the said affidavit filed by the respondents. Lastly, learned counsel for the respondents has submitted that the orders passed by the disciplinary and appellate authorities do not suffer from any infirmity and the instant OA deserves to be dismissed by this Tribunal.
6. For proper adjudication of the issue raised in this case, we deem it appropriate to peruse the impugned order passed by the disciplinary authority, the contents of which are reproduced below:-
"On 19.08.2017, you were deputed to replace broken glued joint at Km 101/3-4, between KAT- MSP. You along with other staff cut the rail at both ends of glued joint in track without traffic block and without ensuring protection of site with banner flags and detonators. You as overall Supervisor of work site, failed to ensure that fish plates are properly fixed before permitting the trains on the track which resulted in derailment of 13 coaches of 18477 Express train leading to several casualties & injury of a large number of passengers besides huge losses to Railways. After the accident, instead of performing your duties towards assisting in restoration at the accident site you fled from the site and went into hiding. Your negligence and callous attitude towards safety lead to such a serious mishap on railways.14 OA No.816/2019
This is such a serious and clear safety lapse by you that even the need to conduct an enquiry is not warranted. In the light of gross negligence by you it is felt that your continuation in Railway Service is a safety hazard. I therefore hold you guilty for negligence in duty as described above which lead to such a serious accident of Train No.18477. I therefore decide to impose upon you the penalty of "Removal from Service" with immediate effect under Rule 14(ii) of the Railway Servants (D&A) Rules, 1968 by taking into the account the gravity of the accident.
You are hereby advised that under rules 18 & 19 of the Railway Servants(Discipline & Appeal) rules 1968, you can appeal against these orders to ADRM/T, Northern Railway, New Delhi provided that:
(i) The appeal is preferred within a period of 45 days from the date on which a copy of this memorandum is delivered to you.
(ii) The appeal is preferred in your own name and presented to the authorities to whom the appeal lies and does not contain any disrespected and improper language."
7. Now keeping in view the aforesaid judgments relied upon by the applicant, some of the relevant paras of which have already quoted above we proceed to test the correctness of the said order passed by the disciplinary authority. From a plain reading of the said order of the disciplinary authority, it is apparent that serious allegations were levelled against the applicant in relation of the said accident and the disciplinary authority held that 'This is such a serious and clear safety lapse by you 15 OA No.816/2019 that even the need to conduct an enquiry is not warranted. In the light of gross negligence by you it is felt that your continuation in Railway Service is a safety hazard. I therefore hold you guilty for negligence in duty as described above which lead to such a serious accident of Train No.18477.' However, there is no reason in the said order of the disciplinary authority as to why it is not reasonably practicable to hold an inquiry and the facts of the case are such that there existed a situation under which the inquiry is reasonably practicable having regard to the contents of the order of the disciplinary authority. Even during the present proceedings, nothing has been brought before us to demonstrate that because of such reasons a regular enquiry was not possible or practicable before inflicting the penalty. As such the conditions precedent, which are required to be fulfilled by the disciplinary authority before invoking the provisions of Rule 14 (ii) of the Rules, have not been complied with before passing the order by the disciplinary authority. In catena of judgments, the Hon'ble Supreme Court, Hon'ble High Courts as well as the Benches of this Tribunal have already ruled that before invoking the provisions of Rule 14 (ii) of the Rules, which is akin to the provisions of 16 OA No.816/2019 Article 311(2)(b) of the Constitution of India, the concerned authority is required to see where there exist a situation which warrants that the holding of an inquiry contemplated by Article 311(2) not reasonably practicable and that the concerned authority should record in writing the reason or reasons for its satisfaction that it was not reasonably practicable to hold the inquiry. Further the reasons recorded for invoking the provisions of Rule 14(ii) of the Rules ibid by the disciplinary authority are not sustainable in the eyes of law.
8. So far as contention of the learned counsel for the respondents that the order passed by the disciplinary authority is basically based on the report of the Commissioner of Railway Safety and the same is akin to an enquiry initiated under CCS (CCA) Rules. Be that as it may, then there would have been no question of dismissing the applicant by invoking the provisions of Rule 14(ii) of the Rules ibid. Once the authorities have decided to dismiss the applicant by invoking the provisions of Rule 14(ii) of the Rules ibid, then the pre- requisite of the said Rule as well as the R.B.E. No.53/92 have to be complied with in true letter and spirit, which 17 OA No.816/2019 the disciplinary authority failed to comply before passing the impugned order.
9. Keeping in view the pendency of the revision petition of the applicant, ordinarily we would have remitted the matter to decide and dispose of the same. However, keeping in view the fact that the instant OA though lying pending adjudication for more than four years, however, even during such long time, the revision petition could not be disposed of by the respondents coupled with the fact that the respondents by filing detailed counter reply, further affidavit, etc. has already disclosed their mind on merit, at this stage, no useful purpose would be served by directing the respondents to dispose of the revision petition of the applicant.
10. In view of the aforesaid facts, discussion and law, the present OA deserves to be partly allowed and the same is partly allowed with the following directions:-
(i) Orders dated 28.8.2017 (Annexure A/1) and dated 8.6.2018 (Annexure A/2) passed by the disciplinary and appellate authorities respectively are set aside;18 OA No.816/2019
(ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and law on the subject;
(iii) The respondents shall implement the aforesaid direction within eight weeks of receipt of a copy of this order; and
(iv) However, the respondents shall be at liberty to initiate disciplinary proceedings against the applicant in accordance with the law.
11. However, in the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/