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2015 DIGILAW 485 (JHR)

Shyam Sundi v. Union of India

2015-04-16

D.N.PATEL, PRAMATH PATNAIK

body2015
JUDGMENT : D.N. Patel, J. 1. This writ petition has been preferred challenging the judgment and order dated 27th June, 2008 delivered by Central Administrative Tribunal, Patna Bench (Circuit Bench at Ranchi) in O.A. No.207 of 2006 (Annexure-8). Original Application preferred by this petitioner was dismissed by the Central Administrative Tribunal whereby the order of removal of this petitioner was confirmed and, therefore, original applicant has preferred this writ petition. 2. Learned counsel appearing for the petitioner submitted that the charges leveled against the petitioner has not been proved at all. The finding of the inquiry officer is perverse. Moreover, the disciplinary authority is not the appointing authority of this petitioner and hence he can not pass an order of removal of the petitioner from the services. Learned counsel for the petitioner has relied upon the decision rendered by the Hon'ble Supreme Court reported in (1979) 4 SCC 289 and it is also submitted by the counsel for the petitioner that the punishment inflicted upon this petitioner is shockingly disproportionate to the nature of misconduct. This aspect of the matter has not been properly appreciated by the Central Administrative Tribunal, hence the order passed by the Central Administrative Tribunal deserves to be quashed and set aside. 3. Learned counsel appearing for the respondents submitted that no error has been committed by the Central Administrative Tribunal in dismissing the original application preferred by this petitioner for the misconduct committed by this petitioner. Charge sheet was served upon the petitioner on 02.01.2006. Enquiry was conducted. Witnesses were examined and were also cross examined by this petitioner. Thus, adequate opportunity of being heard was given to the petitioner. Thereafter, inquiry officer has given his report, in which charge leveled against this petitioner has been proved. Copy of the inquiry report was given to this petitioner on 02.05.2006 and again adequate opportunity of being heard was given for imposing punishment and ultimately disciplinary authority passed an order dated 05.06.2006 and this delinquent petitioner was removed from the service. It is submitted by the counsel for the respondents that thereafter, again opportunity of being heard by appellate authority was given and departmental appeal preferred by this delinquent petitioner was also dismissed vide order dated 31st August, 2006. Thus, on the basis of evidence on record, there is no procedural defect in holding the enquiry. It is submitted by the counsel for the respondents that thereafter, again opportunity of being heard by appellate authority was given and departmental appeal preferred by this delinquent petitioner was also dismissed vide order dated 31st August, 2006. Thus, on the basis of evidence on record, there is no procedural defect in holding the enquiry. The finding of the inquiry officer is that the charges leveled against the delinquent petitioner are proved. This finding has also been accepted by the departmental appellate authority. This Court is not sitting in appeal upon the order passed by the inquiry officer. So far as disciplinary authority is concerned, it is submitted by the counsel for the respondents that it is superior post than that of this petitioner, who is Assistant Loco Pilot (Electrical) whereas disciplinary authority is a Senior Divisional Engineer. It is submitted by the counsel for the respondents that looking to the nature of misconduct, this delinquent petitioner had come at the place of employment in a drunken condition along with other employees and thereafter one of them had snatched away the booking booklet and all had came together and after misbehaviour also gone together. There was also use of filthy language by an another employee with whom this petitioner had come in drunken condition. Thus, looking to the nature of misconduct, the punishment inflicted upon him is not shockingly disproportionate nor it can be said that it is unreasonably excessive. This aspect of the matter have been properly appreciated by the Central Administrative Tribunal, Patna Bench (Circuit Bench at Ranchi) and hence this writ petition may not be entertained by this Court. Reasons: 4. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case we see no reason to entertain this writ petition mainly for the following facts and reasons: (I) This petitioner was appointed as Assistant Loco Pilot (Electrical). Thus, he is an Engine Driver as per common parlance and was appointed on 13th September, 2000. (II) It further appears that on 05th December, 2005 at about 22.00 hrs. this petitioner along with other co-employees came in drunken condition at the booking office. This petitioner was accompanying one co-employee, who used filthy language and snatched away booking booklet/register. This petitioner had not stopped his co-employee from snatching away the booking booklet. (II) It further appears that on 05th December, 2005 at about 22.00 hrs. this petitioner along with other co-employees came in drunken condition at the booking office. This petitioner was accompanying one co-employee, who used filthy language and snatched away booking booklet/register. This petitioner had not stopped his co-employee from snatching away the booking booklet. In fact, they came together in drunken condition, one of them used filthy language entered into the office of the Railway Authority and they had went away together by taking away booking booklet of the Railway Authority and, therefore, a report was made by Mr. Prabhat Kumar, who is the Senior Engine Turner and on the basis of the said report this delinquent petitioner was suspended. Charge sheet was issued. (III) Thereafter, inquiry officer was appointed. Adequate opportunity of being heard was given to this delinquent petitioner. Several witnesses have been examined by the Railway Authority. They have also been cross examined by this petitioner. Thus, Railway Authority has given adequate opportunity of being heard to this petitioner. (IV) On the basis of the evidence on record rightly and correctly the inquiry officer has arrived at conclusion that the charges leveled against this petitioner have been proved. (V) Before taking disciplinary action against this petitioner copy of the inquiry report was given to this petitioner on 02nd May, 2006. Again adequate opportunity of being heard was given to this petitioner before imposing the punishment. Disciplinary Authority, who is Senior Divisional Engineer has imposed the punishment vide order dated 05th June, 2006 (Annexure-6) and the petitioner has been removed from the service of the Railway Authority. (VI) Much have been argued out by the counsel for the petitioner about the designation of this disciplinary authority and about the appointing authority of this petitioner and has submitted that disciplinary authority who has removed him from the service is illegal because he is not an appointing authority. This contention is not accepted by this Court mainly for the reason that Senior Divisional Engineer is superior post to the post of this petitioner. The petitioner is an Assistant Loco Pilot (Electrical) whereas the disciplinary authority who has imposed the punishment is the Senior Divisional Engineer. This contention is not accepted by this Court mainly for the reason that Senior Divisional Engineer is superior post to the post of this petitioner. The petitioner is an Assistant Loco Pilot (Electrical) whereas the disciplinary authority who has imposed the punishment is the Senior Divisional Engineer. This aspect of the matter has been dealt with in para 5 of the order of the Central Administrative Tribunal and no error has been committed by the Central Administrative Tribunal in taking this decision. Moreover, looking to Paragraph no.12 of the counter affidavit filed by the Railway Authority in this writ petition also no illegality has been committed by the Railway Authority while imposing the punishment, the Senior Divisional Electrical Engineer (Operation), Eastern Central Railway, Dhanbad who is superior to the post of this petitioner. It ought to be kept in mind that whenever they are filing their reply “Railway Language” should not be used. More than one dozen abbreviations have been used in the counter affidavit filed by the Railway Authority and when we are asking to the advocate of Railway Authority to solve the abbreviations, he is unable to solve the “Railway Language” used in the counter affidavit in abbreviation forms which are as under: (I) GZE (ii) EC (iii) FN (iv) OP (v) ELS (vi) ET (vii) DNA (viii) RSRP (ix) PWS (x) BA (xi) D & AR The aforesaid type of abbreviations should not be used and if they are used explanation should have been given that what is the meaning of these abbreviations. Henceforth, all care will be taken by the Railway Authority when they will file reply in the Courts. (VII) It further appears that this petitioner was given opportunity to prefer departmental appeal. The petitioner preferred departmental appeal and the appellate authority dismissed the appeal preferred by this petitioner vide order dated 31st August, 2006. Thus, there is no procedural defect on the part of the respondents in holding enquiry and in giving adequate opportunity of being heard to the petitioner. (VIII) Much have been argued out by the counsel for the petitioner on the basis of the deposition of the witnesses and the cross examination and has submitted that if the depositions of the witnesses examined by the respondents are re-evaluated, then this Court will come to conclusion that charges leveled against this petitioner are not proved. (VIII) Much have been argued out by the counsel for the petitioner on the basis of the deposition of the witnesses and the cross examination and has submitted that if the depositions of the witnesses examined by the respondents are re-evaluated, then this Court will come to conclusion that charges leveled against this petitioner are not proved. This contention of the petitioner is not accepted by this Court mainly for the reasons that:- (a) This Court is not sitting in appeal against the findings of the Inquiry officer. (b) The evidence in the departmental proceedings are to be evaluated on the basis of the principle “preponderance of probability”. Looking to the evidence on record given by the witnesses, examined during the departmental proceedings and also looking to the cross examination, it can not be said that inquiry officer's conclusion is perverse, on the contrary, looking to the evidence on record, the witnesses have clearly stated that this petitioner along with other co-employees had come in drunken condition on the place of employment. They entered into the office of the Railway Authority. One of the colleagues had snatched the booking booklet/register. They also used filthy language. There is no need to prove by the Railway Authority what exactly the words used by him at night hours of 22-00 on 05th December, 2005. These facts have been proved by the witnesses and as stated hereinabove this Court is not sitting in appeal and, therefore, threadbare discussion of the evidence is not required at all. Suffice it to say that looking to the inquiry officer report, no errors have been committed by the inquiry officer in evaluating the evidence on record. On the basis of evidence on record, it can not be said to be perverse finding. (IX) Now the question left out for this Court, whether the quantum of punishment inflicted upon the delinquent petitioner is shockingly disproportionate or is unreasonably excessive. Looking to the charges leveled against this petitioner which is at Annexure-4 to the memo of this petition and looking to the quantum of punishment of removal of this petitioner from the services of Railway, it can not be said that the punishment inflicted upon this petitioner is shockingly disproportionate nor it can be leveled as unreasonably excessive. This petitioner had come at the place of employment under the influence of liquor. This petitioner had come at the place of employment under the influence of liquor. This petitioner came along with other co-employees and under the influence of “noble drink”, they entered into the office of the Railway Authority. One of them snatched away booking booklet/register and another is using filthy language. They were not prevented by anybody and ultimately all went out of the office along with Railway property. Looking to the misconduct which is proved, the punishment inflicted by the respondent authorities is absolutely proper and in consonance with the nature of misconduct. (X) Learned counsel appearing for the petitioner has relied upon the decision of the Hon'ble Supreme Court reported in (1979) 4 SCC 289 . The facts of the aforesaid decision is remarkably different from the facts of the present case, especially looking to para no.5 of the decision of the Central Administrative Tribunal to be read with paragraph no.12 of the counter affidavit filed by the Railway Authority in this writ petition. Hence, the ratio decidendi propounded by the Hon'ble Supreme Court in the aforesaid reported decision is not of any help to this petitioner. The disciplinary authority is the superior authority than that of the post which was held by this petitioner at the relevant time. 5. As a cumulative effect of the aforesaid facts and reasons, there is no substance in this writ petition (service) and we hereby uphold the decision of the Central Administrative Tribunal and the action taken by the disciplinary authority which is proved by the departmental authority of the Railway. Hence, this writ petition is hereby dismissed. 6. Registrar General of this Court is hereby directed to send a photo copy of this order initially by Fax and thereafter by Registered Post with A/D to : (i) Respondent no. 2 (The Chief Personnel Officer, East Central Railway, Hazipur), (ii) Respondent no. 3 (The Divisional Railway Manager, East Central Railway, Dhanbad) and (iii) Respondent no. 4 (The Sr. Divisional Engineer (Operation), East Central Railway, Dhanbad).