Central Administrative Tribunal - Delhi
Sh. Karnail Singh vs Union Of India Through on 29 August, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No. 3283/2010 This the 29th day of August 2011 Honble Shri George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Sh. Karnail Singh S/o Late Shri Dara Singh Senior Section Engineer (Sig) Northern Railway, Rajpura, R/o H.No.31, Ganesh Nagar, Rajpura Distt. Patiala, [Punjab]. Applicant (By Advocate: Sh. B.S.Mainee with Ms. Meenu Mainee) Versus Union of India through 1. General Manager Northern Railway Headquarters Office Baroda House, New Delhi. 2. Chief Signal & Telecom Engineer Northern Railway Headquarters Office Baroda House, New Delhi. 3. Sr. Divl. Signal & Telecom Engineer Northern Railway Ambala Cantt. Respondents (By Advocate: Sh. Rajinder Khatter) O R D E R
Honble Shri George Paracken:
The applicant is aggrieved by Annexure A-2 letter dated 24.10.2006 by which the penalty of withholding one increment temporarily (WIT, for short) for one year has been imposed upon him, Annexure A-4 letter dated 8.1.2007 by which the aforesaid punishment of WIA of the disciplinary authority has been enhanced to that of stoppage of increment for 5 years.
2. The basic facts necessary for adjudication of this case have been considered. The applicant was informed by Annexure A-5 memorandum dated 14.9.2006 that the respondents were proposing to take action against him under Rule 11 of Railway Servants Discipline and Appeal Rules, 1968. According to the statement of misconduct attached with the said memorandum, on 8.9.2006 electric power no.27610 derailed at DOA on Trap no.44 at 0.20 Hrs. Sh. R.K.Dogra, SI/Control informed the applicant regarding the derailment of DAO at 1.45 hrs, but he failed to reach the derailment site. He was again instructed at 9.15 hrs. to reach the DRM Office/UMB within 3 Hrs by DSTE-I but he failed to reach the office up to 16.15 hrs.
3. The aforesaid act of omission and commission has been treated as unbecoming act on the part of the applicant indicating lack of devotion, thereby contravening the provisions of Rules 3.1 (ii) & (iii) of Railway Service Conduct Rules, 1966. Applicant made Annexure A-6 representation dated 29.9.2006 against the aforesaid memorandum. However, the disciplinary authority having not satisfied with the explanation came to the conclusion that he did not willfully go to the site at DOA in time. Accordingly, he was imposed with the penalty of WIT for one year. His increment raising his pay from Rs.8800 to Rs.9025 in the grade of Rs.7450-11500 normally due on 1.11.2006 was withheld for a period of one year without postponing future increments. Applicant appealed against the aforesaid order on 7.11.2006. However, the appellate authority, vide its order dated 20.11.2006, considered that the penalty of WIT for one year imposed upon the applicant was totally inadequate considering the gravity of the misconduct committed by him and in exercise of powers conferred by it, under Rule 25 by Railway Servants D&A Rules, 1968, called upon him, vide Annexure A-3 letter dated 20.11.2006 to show cause as to why the so called punishment imposed upon him should not be enhanced. Applicant made Annexure A-8, representation dated 27.12.2006. However, the appellate authority imposed, vide Annexure A-4 order dated 8.1.2007, upon him the punishment of stoppage of promotion for a period of five years by way of enhancement.
4. According to the applicant, he filed the Annexure A-4 revision petition against the aforesaid order of the appellate authority dated 8.1.2007 but it was not considered. Thereafter, he has approached this Tribunal vide OA-1064/2010 challenging the aforesaid orders of the disciplinary authority as well as the appellate authority. However, he himself withdrew the OA stating that he would take up his revision petition, which according to him was still pending. Thereafter, he made Annexure A-11 reminder dated 6.5.2011 to his earlier revision petition dated 18.2.2007 stated to have been sent by him.
5. The main contention of the learned counsel for the applicant Sh. B.S.Mainee is that by imposing the punishment of stoppage of promotion for a period of five years upon the applicant, he had to undergo more serious a punishment than the minimum of the major penalties listed in Rule 6 of Railway Service D&A Rules, 1968, namely, withholding of increments of pay for a specified period with further directions as to whether on the expiry of such period, the same will or will not have the effect of postponing the future increments of his pay. Reduction to the lower stage in the time-scale of pay for a specified period, with further directions as to whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay is the maximum of the minor penalties mentioned in the said rules.
6. The learned counsel has also submitted that this OA cannot be dismissed on the ground of limitation. In this regard he has relied upon the judgment of Apex Court in Improvement Trust Ludhiana Vs. Ujagar Singh, JT 2010 (6) SC 205 wherein it has been held that unless the conduct of the parties is grossly malafide, as a normal rule, delay should be condoned and not disallowed on technical grounds. The relevant part of the said judgment is as under:
15. In our opinion, ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellants objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities.
7. Respondents have filed the reply. They have refuted the contention of the applicant that the case is not hit by limitation. According to them, the cause of action has arisen on 8.1.2007 when Annexure A-4 order was passed by the appellate authority imposing upon him stoppage of promotion for a period of five years. But the applicant has filed the present OA only on 24.9.2010. Thus, there is undue delay in filing the application and, therefore, this case has to be dismissed on the preliminary ground of limitation as per the provisions contained in Rule 21 of Administrative Tribunals Act, 1985. Counsel for respondents has also cited number of judgments to support his argument. He has submitted that in Arun Kumar Agarwal Vs. Nagreeka Exports Pvt Ltd. & Anr., 2002 (1) SCC 101, it has been held by the Apex Court that when a preliminary objection is raised, it is to be decided first. He has also relied upon the judgment of the Full Bench of this Tribunal in Dhiru Mohan Vs. Union of India, (Full Bench decisions 1989-1991 W.I. page 448) wherein it has been held that as the Administrative Tribunals Act is a special law and provides specific limitation, the Limitation Act cannot be invoked for deciding the question of limitation under this Act. In the case of D.C.S.Negi Vs. Union of India & Ors., [SLP (Civil) No.7956/2011 decided on 7.3.2011, the Apex Court while dismissing the appeal has observed that Administrative Tribunal is duty bound to first consider whether the application is within limitation and application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3) of Administrative Tribunals Act, 1985. He has also relied upon Apex Court in Rattam Chandra Samanta Vs. Union of India, 1994 SCC (L&S) 182, wherein it has been ruled that delay deprives the person of remedy available in law. A person who has lost his remedy by lapse of time, loses his right as well. Again, in S.S.Rathore Vs. Union of India & Others, AIR 1990 SC 10, it has been held that repeated representation does not extend the period of limitation. In Bhoop Singh Vs. Union of India & others, 1992 (3) SCC 136, it has been held by the Apex Court that the case should not be heard, howsoever their merit be, if it is hit by limitation.
8. On merit, the respondents counsel has submitted that the charges leveled against the applicant were serious. They have also submitted that the disciplinary authority has passed a reasoned and speaking order after considering his representation. The punishment imposed by the appellate authority was in accordance with the Railway Servants D&A Rules, 1968. They have also stated that the revision petition dated 18.2.2007 stated to have been sent by the applicant has never been received by them. Moreover, it is seen that the reminder dated 6.5.2010 has been sent by the applicant approximately after four years from the date of passing of the appellate authoritys order.
9. We have heard the learned counsel for the applicant and the learned counsel for the respondents. It is seen that the impugned order of the disciplinary authority imposing the penalty for stoppage of increment for a period of 5 years was passed way back on 8.1.2007. According to him he had filed the revision petition on 18.2.2007 itself. Respondents have denied that they have received any such revision petition. Generally when representations/appeals/revision petitions are filed by the delinquent Railway servant, it is always routed through the proper channel. It is also seen from the record that the applicant himself has in fact sent the Annexure A-6 representation dated 29.9.2006 addressed to the Senior DSTE, Northern Railway, Ambala Cantt through proper channel. Again, the appeal Annexure A-8 dated 27.12.2006 was also sent through proper channel. The Applicant has not explained as to why revision petition alone has not been sent through proper channel. Further, the reminder dated 6.5.2010 was also not sent through proper channel. Therefore, it is quite reasonable for the respondents to hold that the plea taken by the applicant that he had sent the aforesaid revision petition and its reminder is just a ploy to get out the objection regarding limitation which one has to meet before his case is considered on merit. The respondents have stated clearly in their reply that they have never received the revision petition purported to have been sent by the applicant. Interestingly, the applicant after approaching this Tribunal in April 2010 by filing OA-1064/2010 for the same reliefs as sought in the present OA, withdraw it on his own stating that he wanted to pursue the route of revision. Thereafter, he has sent Annexure A-11 reminder on 6.5.2010 and filed this case on 24.9.2010. In the above facts and circumstances of the case, we hold that the alleged revision petition dated 18.2.2007 was not actually sent by the applicant and the averment that he sent with the specific purpose to save himself from the clutches of limitation. Therefore, we find merit in the contention of the respondents that this case is hit by limitation and according it has to be dismissed.
10. As far as the merit of the case is concerned, the disciplinary authority has imposed a comparatively lower minor penalty, namely, withholding of one increment temporarily for a period of one year. The appellate authority in its wisdom has come to the conclusion that the aforesaid punishment was not at all sufficient in view of the gravity of the misconduct committed by the applicant. Therefore, he enhanced the same to stoppage of promotion for a period of five years. We do not agree with the contention of the learned counsel for the applicant that the aforesaid minor penalty was more harsh than the lowest of the major penaltys listed in Rule 6 of the Railway Servant (D&A) Rules, 1968. The minor penalty of withholding of increments of pay for a specified period with further directions as to whether on the expiry of such period this (the same) will or will not have the effect of postponing the future increments of his pay and stoppage of promotion are two different types of minor penalties.
11. Moreover, the Appellate Authority has applied its mind properly before rejecting the applicants appeal. The Apex Court has held in Apparel Export Promotion Council Vs. A.K.Chopra, (1999) 1 SCC 759 that the disciplinary authority and on appeal the appellate authority are the sole fact finding authorities. The relevant part of the said judgment is as under:
16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities.
12. In the totality of facts and circumstances of the case, we dismiss this case both on limitation as well as on merit. There shall be no order as to costs.
( Dr. Veena Chhotray ) ( George Paracken )
Member (A) Member (J)
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