Original Application No. 196 of 2012. Case: Shri Diwara Magan Vs Union of India through The General Manager and The Divisional Railway Manager, Western Railway, [Alongwith Original Application Nos: 196, 197, 198, 199, 200 and 201/2012]. Central Administrative Tribunal
| Case Number | Original Application No. 196 of 2012 |
| Counsel | For Appellant: Mr. O.P. Khurana, Advocate and For Respondents: Mr. M.J. Patel, Advocate |
| Judges | U. Sarathchandran, Member (J) and Asha Singh, Member (A) |
| Issue | Constitution of India - Articles 309, 311, 311(1), 311(2) |
| Judgement Date | April 22, 2014 |
| Court | Central Administrative Tribunal |
Order:
U. Sarathchandran, Member (J), (Ahmedabad Bench)
1. Applicants in these OAs had been working as Senior Gangman under the Western Railway and they are approaching this Tribunal for the third time for redressal of their grievances against their removal from railway services.
Applicant in OA/200/2012 expired during the pendency of the OA and his legal representative was impleaded vide order dated 03-12-2012.
2. Mr. O.P. Khurana appears for the applicants and Mr. M.J. Patel appears for the respondents. They submitted that since the legal issues involved in these OAs are similar, these OAs can be disposed of by way of common order. It was also pointed out that on an earlier occasion when the applicants appeared before this Tribunal in OA Nos. 139, 147, 148, 149, 175 and 176 of 2011, those matters were also dealt with by this Tribunal by a common order dated 08-8-2011.
3. The factual matrix in these cases is identical i.e. that the applicants in these OAs were working as Senior Gangman, after the closure of Kosamba Umarpada, N.G. section, were transferred to different stations without obtaining their consent or option. Applicants being illiterate and poor low paid employees were not able to cope up with the transfer order from their original place of posting on account of the lack of railway accommodation at the new place of posting and the distance from the places where their families are housed, illnesses and even deaths occurred in their families, they could not attend their offices at the new places. Inspite of seeking permission and the leave from the authorities concerned, they were not granted leave. When they returned to work, their superior officials refused to take them back to work informing that their leave was not sanctioned. They were kept out of work for a long period. Finally, they came to be issued with charge-sheets for imposing the major penalty. They being illiterate and charge-sheets issued to them being in English, they were not in a position to understand the contents thereof. According to the applicants enquiry proceedings were conducted behind their back without giving opportunity to represent their case before the enquiry officer. They state that the enquiry officer was bent upon ensuring that the enquiry proceedings are conducted ex-parte and finally orders of penalty of removal from railway service were imposed on them.
4. It is worth-mentioning that in each of these OAs the applicants have different versions relating to the receipt of memorandum of charges and the penalty order. In OA/196/2012 the applicant says that he does not remember whether memo of charge was served on him while in the other OAs the applicants therein state that memo of charge were received by them. In O.A. Nos. 198, 199 and 201 of 2012 the applicants state that the copy of the charge-sheets were obtained by them only after applying under the Right to Information Act, 2005 (RTI Act, 2005).
5. Similarly the reasons for their absence from duty also are different for each of the applicants in these OAs. In OA/196/2012, apart from the family compulsions the illness of his brother was one of the stated reasons for his absence wherein in OA Nos. 197, 198, 199, 200 and 201 of 2012 the reasons for absence were family compulsions. In OA/200/2012 the applicant says that during the months of February and March 1998 his father fell sick.
6. Applicants contend that they preferred appeals in the DRMs office and the result thereof was not communicated to them. Thereafter, they filed revision petitions, which were disposed of without finding any good ground to interfere with the punishment imposed. Thereafter, they filed mercy petitions on 09-8-2010 before the Divisional Railway Manager. Subsequently, they filed OA Nos. 139, 147, 148, 149, 175 and 176 of 2011 praying for directing the respondents to consider their mercy appeals filed under Rule 24(3) of the Railway Servants (Discipline and Appeal) Rules, 1968 [hereinafter referred to as RS(DA) Rules, 1968]. In the common order dated 08-8-2011 passed in the aforesaid OAs, this Tribunal directed the respondents to consider the said mercy appeals and to pass a reasoned and speaking order. Accordingly, order was passed from the Divisional Manager's office stating that punishment imposed by the disciplinary authority of removal from service has been upheld. The contents of DRMs order on the afore-mentioned mercy appeals are extracted below:
Sub: Mercy Appeal, filed by you dated 09-08-2010.
Ref: Common order of Hon'ble Tribunal CAT/ADI in OA Nos. 139, 147, 148, 149, 175 and 176 of 2011.
Reference above, competent authority i.e. DRM/BRC has passed following Orders which are hereby communicated to you:
In pursuance to the orders of the Hon'ble CAT/ADI in OAs 139, 147, 148, 149, 175 and 176 of 2011 and facts placed before me, personal hearing was afforded to all the six applicants on 28-11-2011 between 1550-1610 hrs in terms of Rule 24(3) and sub-clause (1) of Rule 25 of RS (D & A) Rules, 1968.
All the six applicants were present for the personal hearing. They have admitted the charges leveled against them of unauthorized absence varying from 06-13 months for which they were issued the SF-5 and subsequent punishment of removal from service by Disciplinary Authority (ADEN/ND and ADEN/ANND. No new facts have been placed by them during personal hearing.
In the Railway Organization, the duties of Gangman are essential and nature involving track maintenance and repairs. If Gangman are allowed to abscond from their duty for long indefinite periods of time it will affect works of track maintenance and its safety besides breeding indiscipline in the organization.
In view of above, punishment imposed by the Disciplinary Authority of removal from service is upheld.
Kindly acknowledge receipt.
7. In the present OAs the applicants contend that at every stage of the disciplinary proceedings mandatory provisions were violated, causing prejudice to the applicants and even by violating the principles of natural justice. The illegalities pointed out by the applicants are (i) no notices were given to the applicants about their unauthorized absence and that disciplinary action could be taken for the same. (ii) Charge-sheets were issued in English and no steps were taken for interpreting in the same to vernacular language. (iii) Charge-sheets were defective because applicants designation was mentioned as Gangman, instead of their correct designations i.e. Senior Gangman, without supplying the documents listed in the charge-sheet and not mentioning the names of the administrative witnesses. (iv) Without waiting for a written statement of defence the disciplinary authority appointed an enquiry officer without informing the applicants. The enquiry officer was not an independent person, but working under the same department under the control of the disciplinary authority. (v) There was no communication regarding the dates of the enquiry proceedings and the enquiry was conducted in a shoddy and arbitrary manner. No departmental witnesses were called to adduce evidence about the applicants attendance. (vi) The enquiry officer failed to supply copy of the day-to-day proceedings. (vii) The enquiry proceedings were never closed. (viii) The complainant/author of the document listed in the charge-sheet was never examined. (ix) The applicants were not supplied with the copies of the statement of witnesses recorded by the enquiry officer and the applicants were never asked to submit their written brief after closing the enquiry proceedings.
8. With regard to the illegalities committed by the disciplinary authority and appellate authority, the applicants contend that (i) the disciplinary authority failed to complete the enquiry proceedings within 60 days. The proceedings continued for more than 1075 days in OA/196/2012, 1000 days in OA/197/2012, 430 days in OA/198/2012, 500 days in OA/199/2012, 2000 days in OA/200/2012 and 1050 days in OA/201/2012. (ii) The disciplinary authority did not pass the order within 20 days after receiving enquiry report. He took more than 630 days in OA/196/2012, 150 days in OA/197/2012, 150 days in OA/198/2012, 500 days in OA/199/2012, 150 days in OA/200/2012 and 515 days in OA/201/2012 in taking the decision and to pass the order imposing penalty. (iii) The disciplinary authority failed in supplying copy of the enquiry report and the copies of the statements recorded by the enquiry officer. (iv) The disciplinary authority failed to exercise his quasi judicial powers and acted arbitrarily, unconstitutionally and illegally passed the order of removal from service. The said order is not a speaking order. (v) The disciplinary authority has violated principles of natural justice and the order passed by him is illegal and unconstitutional. (vi) The NIPs were issued in violation of the Rule 23 of the RS(DA) Rules, 1968. (vii) The disciplinary authority misguided the applicants to make appeals to Senior DEN (N) as the Appellate Authority instead of DEN the next higher authority. (viii) Till date the disciplinary authority failed to implement the order passed by him. (ix) The appeals were refused to be accepted and forwarded by the concerned officials. (x) The appeals were not disposed of within 30 days. The appellate authority took more than 30 days, without granting personal hearing and without application of mind disposed of the same, but its disposal was never informed to the applicants either by the appellate authority or through the disciplinary authority. (xi) The revision petitions were addressed to Sr. DEN(N)-BRC/appellate authority, who failed to...
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