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2018 DIGILAW 759 (GUJ)

Manoj Avinash Dhandekar v. Union of India

2018-06-18

A.Y.KOGJE, M.R.SHAH

body2018
JUDGMENT : A.Y. Kogje, J. This petition under Articles 226 and 227 of the Constitution of India is filed challenging the order dated 31.03.2016 in Original Application No.188 of 2012 and order dated 14.07.2016 in Review Application No.40 of 2016 by the Central Administrative Tribunal, Ahmedabad Bench. By the impugned order, order of penalty imposed upon the petitioner under the provisions of the Railway Servants (Discipline & Appeal) Rules, 1968 was confirmed. 2. The facts in brief are as under:- 2.1 The petitioner was appointed and was working as Assistant Loco Pilot and while he was working under the Loco Pilot on Goods Train, on 26.08.2008, despite there being signal, the Goods Train overshoot the signal by 50 meters and for this purpose, the petitioner was charge sheeted by memorandum dated 30.09.2008 on the ground that the petitioner was careless and negligent in working. The statement of imputation of misconduct read as under:- "Statement of imputation of misconduct: On date 26.8.2008, while working UP Goods Train NO:NKFCG, hauled by Loco NO: 23275, Loop Starter Signal NO.S-38 was in "ON" position. As an Asst. Loco Pilot you are acquainted with location of signal and local condition affecting running of the train but your Loco Pilot Over-shooted Loop Starter Signal No.S-38 at NIU and entered into unwired dead and fully knowing that Starter Signal is in "ON" position and you have failed to operate RS-Valve in time and resulted into Signal Passing at Danger. Your working shows lack of devotion to duty. Hence you are held responsible for careless and negligent working and for violation of GR 3.78 (i) and 3.83 and Railway Service Conduct Rule 3.1(ii) of 1966." 2.2 During the course of inquiry, witnesses were examined and the Inquiry Officer submitted his report dated 30.10.2009. The report was forwarded to the petitioner under communication dated 04.12.2009. The petitioner made representation against the report. However, by order dated 06.11.2010, accepting Inquiry Officer's findings, the petitioner was punished by "reduction with immediate effect to initial stage in the initial time scale of pay for a period of 5 years without future effect". 2.3 The petitioner preferred departmental appeal against the aforesaid order mainly on the ground that the Inquiry Officer has not found the petitioner totally responsible for the incident. The petitioner was given an opportunity of hearing during the course of appeal. 2.3 The petitioner preferred departmental appeal against the aforesaid order mainly on the ground that the Inquiry Officer has not found the petitioner totally responsible for the incident. The petitioner was given an opportunity of hearing during the course of appeal. The appellate authority by its order dated 28.04.2011 held that the petitioner has been held responsible partially and therefore, confirmed the punishment imposed. Against this order, revision was preferred by the petitioner and in the revision application, the revisional authority passed order dated 27.07.2011 reducing the penalty to "Reduction to lower time scale of Shunter for one year without any future effect". 3. Learned Advocate for the petitioner submitted that the conduct of the petitioner during the incident cannot be termed to be irresponsible, negligent or careless, as on account of his immediate action, the accident or damage to the property was avoided. It is submitted that right from beginning, defence of the petitioner was that while nearing the signal, as per his duty he loudly called out the signal aspect. However, the Loco Pilot, who is superior to him and responsible for running of train, did not respond and therefore, without wasting time, the petitioner himself opened the RS valve, lowered the Pento to bring the running train to halt. However, the train overshoot the signal by 40 to 50 meters. He drew attention of this Court to the documents, especially joint observation report, which observed that it was only the driver (Loco Pilot) who was responsible for overshooting the signal. He thereafter drew attention of this Court to the conclusions drawn by the Inquiry Officer on the basis of statement of the witnesses recorded to the effect that the petitioner had, in fact, given calls and thereafter opened RS valve and lowered the pento, bringing moving train to halt. The Inquiry Officer, however, held that the petitioner is not "entirely responsible". It is submitted that considering these factual aspects, the Tribunal ought to have set aside the punishment imposed. 3.1 Learned Advocate for the petitioner assailed the order of the Tribunal by contending that the Tribunal has taken a very narrow view and has disregarded the findings of the Inquiry Officer as well as joint observation report, which is part of the record. 4. 3.1 Learned Advocate for the petitioner assailed the order of the Tribunal by contending that the Tribunal has taken a very narrow view and has disregarded the findings of the Inquiry Officer as well as joint observation report, which is part of the record. 4. Learned Advocate for the respondent-Department submitted that since it is an undisputed fact that the train overshoot the signal by 50 meters and that the petitioner as Assistant Loco Pilot in the engine along with the Loco Pilot, it was his primary duty to stop the train when the driver did not respond to his calls. It is submitted that once it is proved that the train overshoot and it was the duty of the petitioner to stop the train, the Department was justified in inflicting punishment. It is submitted that overshooting of a signal is a very serious incident and for that purpose, responsible person needs to be punished. 5. Having considered rival submissions and having gone through the record of the case, it is relevant to reproduce the observations made by the Joint Observation Committee, which read as under:- "We arrived at NIU and observed that Train NO: N K-FCG Up Goods had arrived at NIU in UP Goods Loop Line NO:3 at 22 OC Eng. NO: 2375 WAG 5 TKD." Load-43/42/3650 BPC NO: 027097 dtd. 15/5/08 N RY/NMP/KGF /SER 95% 9 DR dated 25/8-08 TKD The Speed to enter in line NO.3 is restricted to 10 KMPH The station is interlocked to standard III. The Reply room was in opened condition as the key of the relay room was taken by the ESM Shri Anuj Kumar at 20-10 Hrs. for attending UID DG aspect trouble while entering the train in line no.3. The Starter Signal no.S/38 was at ON showing the Light RED aspect. But the driver of the train Shri N.M. Makwana HQ-BRCY had passed the Signal no.S/38 at 'ON'." 6. From the joint observation, it is clear that the train, which was required to be stopped upon seeing signal as red, did not stop and held the driver to be responsible. But the driver of the train Shri N.M. Makwana HQ-BRCY had passed the Signal no.S/38 at 'ON'." 6. From the joint observation, it is clear that the train, which was required to be stopped upon seeing signal as red, did not stop and held the driver to be responsible. The conclusion drawn by the Inquiry Officer is to the effect that while the goods train was entering the loop line No.3 of Nabipur station, the starter signal-S-38 was om 'ON' position (Red signal) and the signals were exchanged between Loco Pilot and when the train reached near to the signal, Assistant Loco Pilot again shouted out the starter signal aspect. However, the Loco Pilot did not respond and did not take any action and within short period thereafter, the Assistant Loco Pilot (petitioner herein) opened RS valve and lowered the pento to bring the moving train to halt. However, while doing so, the train overshoot the starter signal by 50 meters into the unwired track. 7. The aforementioned categoric findings of the Inquiry Officer would indicate prompt action taken by the petitioner open seeking that the Loco Pilot had not reacted to his communication of starter signal aspect by shouts. With this recording of finding of fact on the basis of evidence, this Court is of the view that the petitioner cannot be held to be careless or negligent towards the work for which the petitioner was charge sheeted. 8. Chapter-III of the Railway Service (Conduct) Rules, 1966 pertains to signals. Rule-3.83 thereof reads as under:- "3.83 ASSISTANCE OF THE ENGINE CREW REGARDING SIGNALS- (1) The Loco Pilot and the Assistant Loco Pilot shall identify each signal affecting the movement of the train as soon as it becomes visible. They shall call out the aspects of the signals to each other. 8.1 It appears that accordingly, the petitioner indeed called out the aspect of signal, to which the Loco Pilot did not respond and hence, the petitioner had to release RS valve and lower the pento. 9. Once it is found that the petitioner has acted as per the requirement of the Rules, no fault can be found out with the petitioner, while making an attempt to stop the moving train, as Loco Pilot did not react to the signal aspects shouted by the petitioner, the train overshoot by 50 meters. 10. 9. Once it is found that the petitioner has acted as per the requirement of the Rules, no fault can be found out with the petitioner, while making an attempt to stop the moving train, as Loco Pilot did not react to the signal aspects shouted by the petitioner, the train overshoot by 50 meters. 10. The finding given by the Tribunal while confirming the punishment inflicted is that according to the standing instructions of the Railways, it was the duty of the petitioner to act without delay on seeing that the Loco Pilot was incapacitated. However, it is not established on the record that when the Loco Pilot failed to react as he was incapacitated and the petitioner also did not react or take any corrective measures. In fact, it is the finding given by the Inquiry Officer himself that it was the petitioner who immediately released RS valve and lowered the pento to stop the train. Beyond this, there is nothing on record of the case nor it is proved by any evidence that the Loco Pilot was incapacitated for any reason. In fact, it is the finding that the petitioner has acted immediately when the Loco Pilot did not respond back to his communication by shout regarding aspects of signals. 11. Ordinarily, this Court is not required to disturb the findings of facts by the disciplinary authority, accepted by the appellate authority. However, as the Court finds the error committed palpable and apparent on the fact of the record and such error acknowledged by the revisional authority, thereby reducing the punishment, this Court finds sufficient reason to interfere. The findings of fact is completely against the evidence on record and appear to be driven by the philosophy that act of overshooting the signal should not go unpunished. 12. In view of the aforesaid discussion, this Court is of the view that it cannot be said that the petitioner was careless or negligent in his working and that the charge against the petitioner is said to be proved. 12. In view of the aforesaid discussion, this Court is of the view that it cannot be said that the petitioner was careless or negligent in his working and that the charge against the petitioner is said to be proved. The punishment, therefore, inflicted by order dated 16.11.2010 of reduction with immediate effect to "reduction with immediate effect to initial stage in the initial time scale of pay for a period of 5 years without future effect", modified by the revisional authority by reducing it to the "lower time scale of Shunter for one year without any future effect" is hereby quashed and set aside. The order dated 31.03.2016 in Original Application No.188 of 2012 and order dated 14.07.2016 in Review Application No.40 of 2016 by the Central Administrative Tribunal, Ahmedabad Bench are also quashed and set aside. The necessary consequences to follow. 13. The petition is allowed. Rule is made absolute. No order as to costs.