ORDER
K.N.K. Karthiayani, Member (A)
1. The applicant in this O.A. is aggrieved by the order of compulsory retirement from service (No. Y/T.DAR/20/DOM/2002 dated 26.5.2004, (Annexure-I) passed by the 4th respondent and the subsequent orders of the Appellate Authority and Revisional Authority confirming the said punishment. Copy of the appellate order No. Y/T.20/DAR/2002 dated 1.9.2004 issued by the 3rd respondent is produced as Annexure A-2 and copy of the order No. SWR/(P) HQ 227/NG/MYS/ML dated 05.7.2005 issued by the 2nd respondent is produced as Annexure A-3.
2. The submissions made in the O.A are:
The applicant while working as Station Master Grade-II had to undergo Bye-pass surgery on 3.7.2001, due to Cardiac problems and since then he was under treatment of the Railway Doctors at Mysore and Perambur. While he was working as SM/II/MTW, a Charge Memorandum was served on him bearing No. Y/T.DAR 20/DOM/2002 dated 13.9.2002. A copy of the said memorandum is produced as Annexure A-4.
Six charges were levelled against the applicant which are extracted below:
1. He has absented himself from duty 20.7.02 to 24.7.02 without prior permission or sanction of leave from the Competent Authority.
2. He has altered the muster and signed on 24.7.02 against absent which was already marked absent by SM Incharge, as though he has worked on 24.7.02.
3. He has marked absent for Sri K.V. Gopinath, SM/NTW (in charge SM) on 24.7.02 and 25.7.2002 against CR and weekly rest respectively which was availed by Sri K.V. Gopinath, SM/NTW.
4. He has refused to hand over charge to Sri K.V. Gopinath.
5. He has struck the SM signature and marked the absent to SM on 28.7.02.
6. And has given a misleading message to Sr.DOM/MYS asking for relief on 25.7.02 at 20.30 Hours even though the duty roster is closed at 20.30 hrs. and no relief is required at that time, (later corrected as 25.5.2002).
The applicant denied the allegations vide Annexure A-5. When the chargesheet was served on the applicant, he was already under suspension w.e.f. 29.7.02. The suspension was revoked on 27.9.2002, on making an appeal to the DRM.
As the applicant had denied the allegations in the chargesheet, an Inquiry Officer was appointed and the enquiry commenced on 24.2.2003. A copy of the enquiry report (Annexure A-10) was given to the applicant and he filed a detailed objection dated 25.6.03 which is at Annexure A-11. even after eleven months of submitting the objection statement dated 25.6.03, there was no decision on the same and the applicant submitted another representation dated 24.5.04 to the 5th respondent (Annexure A-12). In this representation the applicant had highlighted the personal malice in the minds of the 7th respondent against the applicant. About a week later a penalty advice dated 26.5.04 (Annexure A-1) was served on the applicant without considering any of the points raised by him in Annexure A-11.
The applicant submitted a detailed appeal dated 31.5.04 addressed to the 3rd respondent, the designated Appellate Authority. Again, without considering the points raised by the applicant in the appeal at Anenxure A-14, appellate order at Annexure A-2 was issued confirming the penalty. A detailed revision petition dated 8.11.04 was submitted (Annexure A-15) which was rejected by Annexure A-3 which again is a non-speaking order.
3. The applicant has taken a number of grounds in the O.A. in support of his prayer for quashing the impugned orders at Annexures-A1, A2 and A3. In brief, the grounds are:
(i) The punishment order at Annexure-A1 has been passed by respondent No. 7 who does not have the statutory powers of the Disciplinary Authority. The applicant was appointed to the present grade of SM Gr.-II by the DRM and consequently he only can issue a major penalty advice. The authority who has issued Annexure-A1 is lower in rank than the Appointing Authority, the DRM.
(ii) The applicant has been denied a reasonable opportunity of defending his case effectively. The action of the Enquiry Officer was totally in violation of Rule 9 of RS (D&A) Rules 1968. It is alleged that after making the applicant believe that the evidence of the Disciplinary Authority was over, he was asked to lead defence evidence. After the defence evidence was over, the Enquiry Officer led four more witnesses on behalf of the Disciplinary Authority which resulted in defeating the object of leading defence evidence.
(iii) The applicant was not given an opportunity to examine himself as provided for in Rule 9(20) of the RS (D&A) Rules 1968.
(iv) The Enquiry Officer subjected the applicant to a gruelling examination/ cross-examination. He was hostile and unfriendly as is evident from the proceedings. Even though Station Masters are not required to wear uniforms while attending departmental enquiries, the Enquiry Officer threatened the applicant for non-wearing of uniform without considering the fact that the applicant was no longer a Station Master at the material time, having been medically decategorised. The Enquiry Officer never questioned the Station Masters who appeared as witnesses for non-wearing of uniforms.
(v) As a copy of Corrigendum as at Annexure-A13 was served on the applicant only on the last day of enquiry, the applicant had no occasion to go through the same. The said corrigendum had the effect of changing the entire character of the allegation. In fact, it was a new charge about which the applicant was not given any opportunity to explain, verify or defend. The findings of the Enquiry Officer are not based on evidence on record.
(vi) The punishment advice at Annexure-A1 is totally non-speaking without application of mind, ultra vires the statutory rules and not based on evidence on record. The Disciplinary Authority was biased against the applicant. The instances cited in Paragraph 5.M and 5.N demonstrate the bias:
5.M The biased mind of the Disciplinary Authority is self- evident from his observations in Annexure-Al, which reads as follows:
After this incident I have given posting order to him to work as Cash Witness at Madras (MAS). But the CE has never reported as Cash Witness at Cash Witness Officer/MAS and has remained absent.
In the meantime, SM incharge had deleted the name of Sri M. Loknath from the muster roll of NTW station as per my instruction. But the charged employee has submitted the muster extract of NTW station and claimed salary for his absent period by using SM/NTW station official seal and affixing his signature even though he has not worked either as Cash Witness/Office/MAS nor at NTW Station.
It is submitted the above issue was the subject matter of another charge memo bearing No. Y/T/DAR/32/Sr.DOM/2003 dated 8.5.2003. The enquiry was over and no report of the Enquiry Officer was submitted. The apart that was a case where the applicant, was deliberately denied duties by asking the Station Master to delete the applicant’s name from the Muster Roll and that too after booking him to office on official duty and after making the applicant wait on the corridors for several days. However, the applicant was also granted permission and retained at the same Headquarters by the DRM/ Mysore till the end of the academic year. At any case the biased mind of the Disciplinary Authority is self-evident. That apart that was a matter which ought not have weighed in the minds of Disciplinary Authority, while deciding the present case.
In Para-5.N of the O.A the applicant has narrated a number of instances, like respondents 4/7 writing to the Sr. Medical Officer on 31.5.2004 to remove the official from sick list as the latter was to be compulsorily retired from 10.6.2004. It was for respondent No. 6, Divisional Personnel Officer to ensure that the applicant was retired on 10.6.2004 and it was not the responsibility of respondent Nos. 4/ 7. Again, it is alleged that the applicant was due for periodical medical examination on 1.5.2005 only, but respondent Nos. 4/7 booked the applicant for special medical examination without any authority on 30.9.2002 and utilising the Divisional Medical Officer who was a friend of respondent Nos. 4/7 got the applicant declared unfit for the post of Station Master. Many other allegations like getting the copies of the appellate order (Annexure A2) pasted on the notice board etc. are also cited.
(vii) The appellate order at Annexure-A2 and revision order at Annexure-A3 are non-speaking orders without application of mind and not in conformity with Rules 22 and 25 of RS (D&A) Rules, 1968. None of the points raised by the applicant at Annexure-A14 was considered by the Appellate Authority. The same applies to a revisional order at Annexure-A3 in as much as the points raised in the petition at Annexure-A15 were not considered by the Revisional Authority. Annexure-A3 passed by respondent No. 2 is untenable, perverse, perplexing and questionable. To prove the same, the applicant states that in the revisional order, it is mentioned that the employee does not produce any new evidence to merit a review whereas he had produced six additional documents along with the review. In the review order it is stated that there appears to be some merit in the claim of the applicant that the punishment is shockingly disproportionate to alleged misconduct. After having conceded that there is merit in the submissions, the Revisional Authority has finally stated that there is no reason to review the punishment already imposed.
(viii) The Enquiry Officer found the applicant guilty of only 5 of the 6 allegations whereas the penalty advice at Annexure-A1 is a punishment order as if all the six charges were proved.
(ix) The applicant was not given an opportunity to state why the Disciplinary Authority should not differ from the findings of the I.O.
(x) The I.O. has not considered the evidence adduced by the applicant during the course of examination. He has not considered the evidence that had come in his favour in the course of examination-in-chief. In fact the I.O’s. report is not supported by any evidence. It is full of surmises, assumptions and conjunctures.
(xi) The Disciplinary Authority has not consulted the liaison officer for SC/ST employees committee before imposing the penalty of compulsory retirement on the applicant, who, belongs to ST category.
(xii) The penalty imposed is grossly disproportionate, shocking to the conscience of any man of ordinary prudence and for this reason the penalty imposed is liable to be set aside.
In the result the applicant prays that the impugned orders at Annexures-A1, A2 and A3 be quashed.
4. The respondents have filed an objection statement. They have denied the various contentions taken by the applicant except the material facts. The procedure for placing the applicant under sick list by the Medical Officer has not been followed by the applicant. The charge memo was issued immediately after the incident of absence without getting the leave sanctioned from 20.7.2002 to 24.7.2002. The delay in issuing the chargesheet till 13.9.2002 was due to the fact that the matter was under correspondence with the office of the Divisional Railway Manager. It is admitted that the applicant was placed under suspension from 29.7.2002 for misbehaviour and the same was revoked on 27.9.02. The applicant was given a fair opportunity to defend his case in the detailed enquiry conducted. The applicant had to be posted as Cash Witness, Chennai as that was the only post available in the Operation Department, after the applicant was medically decatagorised. The respondents have denied the contention that the penalty advice was issued by an authority who is lower in rank to the Appointing Authority of the applicant. The have produced a copy of Schedule-II, as Annexure R-5 to prove that for officials of Group ‘C’ category, (to which the applicant belongs) the Junior Administrative grade officer is the Disciplinary Authority. It is denied that the applicant was appointed by the DRM; as per the Establishment Rules, while giving promotion to any staff in the scale of Rs. 5500-9000 and above, a formal approval is necessary from the DRM and the applicant’s promotion also had the approval of the DRM when he was promoted as per Annexure A-13. The respondents have denied that Annexures A-2 and A-3 i.e., the appellate and revisional orders are non-speaking orders. The Appellate Authority had gone through the entire case file as well as appeal of the employee and he has also confirmed that the Disciplinary Authority (Sr. DOM/MRS – 4th respondent) is empowered to impose the penalty of compulsory retirement. This has been made clear in the appellate order at Annexure A-2. The respondents have given the details of statements of witness, evidence supported by documents etc. to contend that the charges were proved correctly by the Inquiry Officer. Regarding the corrigendum issued to correct the clerical error in the date and time, it is stated that the applicant himself had admitted the charge of giving message to Sr. DRM for relief on 25.5.2002. Thus there was no new charge because of the alteration of date and it is not correct to say that he was not given an opportunity to explain/defend the new charge.
5. The respondents have submitted that by over sight the penalty advice does not mention that one of the six charges has not been proved. However, this lapse does not make the entire order invalid. The respondents have denied that penalty was imposed with ulterior motive and on extraneous consideration.
(a) It is admitted by the respondents that an observation was made by the Disciplinary Authority in the punishment order regarding the applicant’s failure to report as Cash Witness at Madras and the same is the subject matter in another charge memo, where enquiry is incomplete and is kept pending as the punishment of compulsory retirement has been imposed on the applicant. But the fact of making such an observation in the punishment advice does not lead to the conclusion that the Disciplinary Authority was biased.
(b) The respondents have denied the allegations of bias narrated in Para 5. N of the O.A.
6 & 7. The applicant has filed a rejoinder opposing the contentions taken by the respondents, specifically with reference to the allegation of bias.
8. We have heard the Counsel for both sides and gone through the pleadings. We shall now examine the 12 submissions made by the applicant detailed in Paragraph 3 above and the objections by the respondents vis-a-vis rules framed by the respondent department and the laws laid down by the Apex Court and the Central Administrative Tribunal in the matter of disciplinary procedure:
(i) We agree with the submission made by the official respondents that the Disciplinary Authority in the case of the applicant is the Sr. DOM who is an officer of Junior Administrative Grade. This is clear from Annexure R-5. Therefore, the allegation that the punishment order at Annexure A-1 was issued without authority does not hold ground.
(ii) From the enquiry proceedings at Annexure A8, it is seen that after examination two of the prosecution witnesses, the defence witnesses were examined. Thereafter, the remaining prosecution witnesses were examined. We agree with the submission of the respondents that as the applicant was given ample opportunity to cross-examine the witnesses examined by the administration, and also was given opportunity to examine himself, there is no violation of rules or procedure, in conducting the enquiry.
(iii) There is nothing in the proceedings at Annexure-A8 to indicate that the applicant was denied an opportunity to examine himself. Rule 9(20) only says that “The Railway servant may examine himself, if he so prefers”. In fact, at the close of the enquiry, the applicant was asked whether he had anything to say before closing the procedure. The applicant had categorically stated that he had nothing to say, but he wished to submit his defence brief in writing. Though 10 days’ time was given to submit the defence brief, which was further extended, the applicant had not submitted any such brief and hence the Enquiry Officer finalised his report based on the documents available.
(iv) It is true that the Enquiry Officer had questioned the applicant about non-wearing of uniforms. It is also seen that certain leading questions were put to the applicant and some uncalled for “gruelling” with reference to a word “duress” etc., was made by the Enquiry Officer while examining the applicant. The applicant if he feared bias or prejudice, could have then itself made a representation about it to the appropriate authority. In the objection to the enquiry report (Annexure-A11) also, any contention as the Enquiry Officer was prejudiced has not been taken and hence we reject the argument that the enquiry was vitiated.
(v) We agree with the respondents’ submission that the applicant did not question it before conclusion of the enquiry, the corrigendum to the chargesheet issued on the last day of enquiry has not violated principles of natural justice. The applicant himself had admitted the fact of sending a message on the date mentioned in the corrigendum.
(vi)(a) There is certainly some substance in the submission that punishment advice at Annexure-A1 is non-speaking, without application of mind and not based on evidence on record. An order does not become a speaking order by stating “on a careful consideration of the defence statement and enquiry report…” (emphasis added) As per the expressions used in the Railway Servants (Discipline and Appeal) Rules, 1968, statement of defence is the reply to the charge sheet. Only because the statement of defence was not satisfactory to the Disciplinary Authority, an enquiry was ordered, by appointing Enquiry Officer etc. What the Disciplinary Authority has to “consider” along with the enquiry report and evidence on record is the written representation (emphasis added) against the enquiry report. There is nothing in Annexure-A1 to show that the objections to the Enquiry Officer’s findings (Annexure-A11) have been considered by respondent No. 4 before issuing the penalty advice. In the said objection, the applicant had also mentioned about the corrigendum to the chargesheet issued on the last day of enquiry (what is mentioned at (v) above). But none of the objections is referred to in the appellate order.
(b) In Paragraph 3 of the punishment order it is stated “…after discharge from sick list he should produce fit certificate issued from Railway doctor, without fit certificate he cannot report for duty. Whereas the charged employee without fit certificate reported for duty.” It is not at all a charge in Annexure-A-1, that the applicant had reported for duty without fit certificate. It is the rule of natural justice that while imposing a major penalty, only the material which the charged employee had opportunity to rebut is considered.
(c) Again, in Paragraph 2 of the second page of Annexure-A, it is stated “…should not give false information to the administration whereas Sri S.M. Lokanath has given
false information to “control” (sic.) on 25.5.2002″. (emphasis added). Charge No. 6 speaks of “misleading information” (emphasis added) and that is the charge which was held as proved. There is a sea of difference between ‘false’ and ‘misleading’. Misleading only means to cause some one to have a wrong impression, whereas false means untrue. Thus the Disciplinary Authority has used his own findings and has changed the versions in the charge sheet to arrive at the decision to compulsorily retire the applicant. By the face of it the message was only misleading and it could not be termed as false information which is a much more grievous charge.
(d) Regarding the allegation of bias and prejudice, the applicant has detailed various grounds in paragraphs 5-M and N of the O.A. The punishment order Annexure-A1 quotes an incident which is the subject of another enquiry which remains inconclusive. The respondents have stated that merely because the incident is mentioned in the penalty advice, it cannot be concluded that the Disciplinary Authority was biased. Referring to the subject matter of another enquiry which is yet to be completed, in the punishment advice is clearly against the rules. The Railway Board’s letter No. E(D&A) 68 RG 6-37 of 23.9.98, E(D&A) 95 RG 6-72 of 22.1.96, RBE 14/97, clearly states that: “The D.A. may take the past bad record of the service of the delinquent into account while determining the penalty to be imposed, provided this past record is made subject matter of a specific charge-sheet itself. We note that the penalty advice reads: “Considering all aspect of the case including the aspect mentioned above he is not a fit person to continue in service….” (Italics by us). When the Rules lay down that the subject matter of another chargesheet cannot be taken into account while determining the penalty with reference to certain other charges, respondent No. 4/7 clearly states that he is taking into account the “aspect” which is still not proved, to determine the quantum of penalty.
(e) A Division Bench of the Apex Court in Abraham Kuruvila v. SCT Institute of Medical Sciences and Technology 2005 SCC (L&S) 538, has dealt with allegation of bias thus:
Bias: which would mean and imply “spite or ill will” must be proved by raising requisite plea in this behalf and by adducing cogent and sufficient evidence in support thereof. In fact, bias is a state of mind and it shows predisposition. Thus, general statements would not meet the requirements of law. Certain correspondence/ orders which have been passed against the petitioner long back would not meet the requirement of law to prove bias. Not only existence of a factual bias has to be proved, but it must also be shown that the same has resulted in miscarriage of justice. A finding of fact has been arrived at by the High Court that the petitioner had not been able to show any predisposition on the part of the respondents concerned so as to affect his chances of promotion to the post of Associate Professor. The Division Bench of the High Court assigned sufficient and cogent reasons for not agreeing with the submissions of the petitioner. The case of the petitioner was directed to be considered afresh by a Governing Body barring the members against whom bias was alleged. The grievance of the petitioner was, thus, sufficiently redressed.
(f) Though the respondents have denied that the various instances quoted in 5-N show the bias of respondent No. 4/7, they have not brought any documents to show that the action of respondent No. 4/7 as detailed in Paras 5-M and 5-N were strictly as per rules. The justification for subjecting the applicant for a second medical examination before the due date is given as:
It is submitted that the charged employee is a known case of Myocardial interaction who had already undergone coronary bye-pass surgery without full remission or system including giddiness etc., and was booked for special PME. In addition, the charged employee was having abnormal behaviour including argumentativeness, irritability and quarrelsome behaviour towards his colleagues. It is a known fact that the patient with heart blocks are prone for thrombo embolic phenomena leading to organic brain syndrome including acute psychotic episodes and personality disorder significantly impairing occupational health of the employee. The job of a Station Master is highly sensitive, which involves reception and dispatch of passenger carrying trains in a safe manner. Hence employee having the ailments or heart block cannot work in these sensitive jobs like SM without jeopardizing safety of traveling public. Considering all the above aspects and especially considering the safety of traveling public the charge employee was booked for special PME at Chief Medical Superintendent/Mysore.
No document like extracts of medical journals to prove the “known fact” referred above or Railway Rules that “employee having ailments or heart block cannot work in the post of Station Master” has been produced. In fact, the applicant’s heart block was removed in July 2001 and thereafter he continued to perform the duties of the Station Master for more than one year, till he was subjected to a special medical examination in September 2002.
For the above reasons we conclude that the actions of respondent No. 4/7 clearly show that he was not fair to the applicant.
(vii) The applicant states that Annexures-A2 and A3 are non-speaking orders without considering the points raised by the applicant. The respondents have simply denied the allegations.
The Appellate Authority has disposed of the appeal submitted by the applicant vide orders at Annexure A-2. The contention that the DRM is the Competent Authority to impose the penalty and Sr. DOM who is subordinate authority to DRM cannot award the punishment of compulsory retirement, has been discussed in Para 3 of the appellate order. However, with regard to various contentions raised in the appeal, including the allegation that the enquiry was not held as per rules, there is no discussion in the appellate order. The applicant had clearly mentioned that the corrigendum to chargesheet was hundred over only on the last date, and hence the charge became entirely a new one. He had also brought to the notice of Appellate Authority that subject matter of another charge memo i.e. non-reporting at Cash Witness Office/MAS was mentioned in the penalty advice even though the enquiry into the said allegation is not completed. These points are not at all discussed in the appellate order and hence we hold that the appellate order is not as per Rule 22 of Railway Servants (Discipline and Appeal) Rules, 1968. As per Rule 22(2), the Appellate Authority has to consider:
(a) whether the procedure laid down in these rules has been compiled with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the Disciplinary Authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders-
(i) confirming, enhancing, reducing or setting aside the penalty; or
(ii) remitted the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case.
Coming to Annexure A-3, i.e. the revision order, it is seen that the revision authority has noticed that the charges against the applicant have been proved in the enquiry (except for one charge). Thus it is only the Revisional Authority who noticed that all the 6 charges were not proved by the Inquiry Officer. Revisional Authority has also discussed whether the punishment is shockingly disproportionate to the misconduct and agreed that there appears to be some merit in the case. However, the Revisional Authority has not interfered with the quantum of punishment inspite of noticing that there was some merit in the applicant’s submission that the punishment was shockingly disproportionate. He has merely stated that:
(a) It would appear that the employee had a genuine heart condition which may justify the fact that procedure for sick reporting and reporting back could not be followed.
(b) many of the aspects of misconduct may have been the result of his behavioural problems, which has finally resulted in the medical decate-gorization.
These facts may require the administration to take a considerate view of his offences. I however find that this have already been done.
The Revisional Authority has also made a mention of the fact that the applicant had not reported as Cash Witness, in the revision order, though it was a subject matter of another enquiry, which is still pending. This mention is against the rules as already noted by us. In fact the applicant in Para 13 of the revision petition has, in detail, submitted about the irregular mention of this order in Annexure-A1. Without considering the merits of the submission with reference to the rules, the Revisional Authority also has taken into account the incident of non-reporting as Cash Witness/MAS. Thus, though the Revisional Authority has at least gone through the enquiry report and noticed that one charge was not proved and he agreed that there is some merit in the submission that the punishment of compulsory retirement was shockingly disproportionate, he did not interfere with the punishment order on the ground that since the applicant had put in more than 20 years of service, he is entitled to retirement benefits on compulsory retirement. The quantum of punishment is an objective matter to be decided with reference to the gravity of offence and punishment awarded – Whether the punishment is disproportionate to the gravity of offence. The statements at (a) and (b) above are subjective, showing the physical and mental condition of the applicant, which are further extenuating grounds applicable only to the applicant. Having conceded that the punishment of compulsory retirement is disproportionate to the guilt, there should have been a deduction in the quantum of punishment. The subjective observations at (a) and (b) will merit further leniency. But respondent No. 2 merely agrees with the Disciplinary and Appellate Authorities stating that adequate consideration had been given by the said authorities. If adequate objective consideration was shown by respondent Nos. 3 and 4, the Revising Authority, R2 is not correct in nothing that “there appears to be some merit” in the claim that the punishment is “shockingly disproportionate to the alleged misconduct.” Further there is nothing in Annexures-A 1 or A2 to show that the facts mentioned at (a) and (b) above were considered at all by respondent Nos. 3 and 4, leave alone the quantum of “adequate consideration”. Respondent No. 2 has also failed to comply with the Railway Board’s letter No. E(D&A) 68 RG 6-37 of 23.9.98, E(D&A) 95 RG 6-72 of 22.1.97, RBE 14/97 regarding consideration of previous conduct which is not the subject matter of the charge sheet and Rule 25(3) of Railway Servants (Discipline & Appeal) Rules, 1968 which lay down that “An application for revision shall be dealt with in the same manner as if it were an appeal under these rules” which means that while disposing of the revision applications of the provisions of Rule 22(2) should be observed.
(viii) & (ix): In the punishment order Annexure A-1, it is mentioned that the Inquiry Officer has proved all the charges against the CE during the course of enquiry. It is however seen from the Inquiry Officer’s report at Annexure A-10 that only 5 charges have been proved and the charge that he meddled with the muster roll of SM incharge by marking him absent on 24th and 25th of July, 2002 is not proved beyond doubt due to inadequate evidence. (Charge No. 3) It is not understood how the D.A. has “agreed with the findings of the Inquiry Authority” and at the same time has held that all the six charges are proved. In fact, the most serious charge among the six charges was charge No. 3, where it was alleged that the applicant has meddled with the muster roll of SM incharge. This charge was held as “not proved beyond doubt due to inadequate evidence”. If at all the Disciplinary Authority was to disagree with the Enquiry Officer on the findings of Charge No. 3, he should have recorded the reasons for the same and communicated it to the applicant while forwarding a copy of the enquiry report. In any case the Disciplinary Authority states that the agrees with the Enquiry Officer (Paragraph 2 of Annexure-A1). Further, in the 3rd paragraph in page 2 of Annexure-A-1, the Disciplinary Authority states that the Enquiry Officer “has proved all the charges against the CE during the course of the enquiry”. Not only that this is factually wrong but it also reflects the mindset of the Disciplinary Authority. It sounds as if the Enquiry Officer was given the duty of proving the charges. The Enquiry Officer is only to make a detailed enquiry based on evidence and ‘hold the charges as proved or not proved’. When the Enquiry Officer has submitted his findings as the charge of meddling with the muster roll of SM incharge is not proved beyond doubt due to inadequate evidence, the Disciplinary Authority (respondent No. 4) has stated in the punishment advice: “and also he had meddled with the muster roll by marking the SM absent on 28.7.2002 which is highly irregular amounting to indiscipline of high order”.
(x) The submission of the applicant is that the I.O. has not considered and taken into account the evidence given by the applicant and those that came up during cross-examination of prosecution witness. It is alleged that the I.O.’ s report is full of surmises and conjunctures.
Regarding consideration of evidence by the Courts, the Apex Court in R.S. Saini v. State of Punjab has laid down:
High Court while exercising writ jurisdiction does not reverse a finding of Inquiring Authority on the ground that evidence adduced before it is insufficient. If there is some evidence to reasonably support conclusions of Inquiring Authority, it is not the function of the Court to review evidence and to arrive at its own independent finding. The Inquiring Authority is the sole judge of the fact so long as there is some legal evidence to substantiate its findings. Adequacy or reliability of evidence is not a matter which can be permitted to be can vassed before the Court in writ proceedings.
Further, in Kuldeep Singh v. Commissioner of Police 1999 (3)SLJ 111 (SC) : AIR 1999 J 677, the Hon’ble Supreme Court observed:
Paras 9 and 10:….If the finding of “guilt” is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. Butif there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the finding could not be interfered with.
Para 32: Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311 (2) means “Hearing” in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness.
Thus it is not for the Tribunal to go into the merits of consideration of evidence by the I.O. The applicant was allowed to cross-examine the witnesses. The facts that came up should have been brought to the notice of the I.O. during the enquiry or, in any case before the Enquiry Officer prepared his report. It should be noted that the applicant did not send the defence brief to the I.O. by the due date (which was extended by the I.O.) even though at the close of the enquiry, he had stated that he wished to submit written statement of defence. However, the applicant had given detailed objections on the I.O’s. report to the Disciplinary Authority (Annexure-A1). It is for the respondent No. 4 to consider the said objection including the allegation that I.O’s. findings are perverse. While deciding the penalty, no doubt, the definitions of perverse findings given by the Hon’ble Apex Court cited above, also will have to be kept in mind by the respondent No. 4. If respondent No. 4. had failed to consider the evidence vis-a-vis the representation of the employee respondent No. 3 should have remitted it to the former vide Rule 22(2)(c)(ii). we quote from page 175 of The Railway Servants (Discipline & Appeal) Rules, 1968 by M.L. Jand (7th edition).
(e) The Disciplinary Authority will consider the full report, evidence or record, the representation of the employee and decide about the imposition of penalty, if any.
Where a case has been finalised without following the above it is advisable that the Appellate Authority should remit the case for compliance of procedure in terms of his powers vide Rule 22(2)(c)(ii).
(xi) The applicant has not produced any instructions from the respondent Department laying down that the Disciplinary Authority has to consult the liaison officer of SC/ST employees Committee before imposing the penalty. We therefore, reject the submission.
(xii) Regarding the submission that the penalty is grossly disproportionate to the offence our observations are:
Of the five charges held as proved against the applicant, the most important is that he has absented himself without getting his leave sanctioned from 20.7.2007 to 24.7.2002 for 4 days. (He was present on 24.7.2002, as can be seen from the attendance sheet produced by the respondents. (Annexure-R-2). During the enquiry also, the witnesses have confirmed that the applicant attended the office on 24.7.2002). The Jabalpur Bench of this Tribunal in O.A. 739/2005, Tejkunwar Chouhan v. The Union of India and Ors. 2006 (3) ATJ 24 held that: “Order of removal from service on the charges of unauthorised absence from duty for short duration is disproportionate.” In that case the absence was on account of serious illness of the mother of the applicant in that case. In the present case before us, the applicant himself was ill and the absence was only for 4 days and he had also produced evidence showing that he was placed under sick list by none other than the Senior Medical Officer of the Railway Hospital. In Dr. Puzhankara Kamalam v. ICAR (1989) 9 ATC 26, the Madras Bench of this Tribunal held that if absence is due to compelling circumstances it cannot be considered as misconduct. We have therefore, no hesitation to conclude that the punishment of compulsory retirement awarded to the official who was only 44 years of age at the time of compulsory retirement is shockingly disproportionate to the offence.
9. While awarding the punishment the Disciplinary Authority has clearly and admittedly taken into consideration the past conduct of the official and certain charges under an enquiry which was yet to be completed. The D.A. has noted that “I conclude that the CE has not at all changed his attitude and continued the same unchanged behaviour….” The Disciplinary Authority has come to his own conclusion as above without giving an opportunity to the applicant to rebut the charge. In State of A.P. v. S.M. Nizamuddin Ali Khan it has been held that “When extraneous matters have been taken into consideration and no opportunity of rebuttal of such matter was given to the delinquent, the order of penalty gets vitiated.” Thus, Anncxurc-A-1, the penalty advice is liable to be quashed.
10. The appellate order at Annexure-A2 also suffers from the same lacunae as of Annexure-A1. It cannot be called a speaking order at all. It merely says that in the appeal, the applicant he has not indicated any reason as to why he feels that the Enquiry Officer has come to a wrong conclusion; the applicant has raised some allegations against the Disciplinary Authority being biased and prejudiced, but no evidence in this regard has been submitted. A perusal of the appeal at Annexure-A14 shows that the applicant has given detailed reasons for alleging that the findings of the Enquiry Officer were perverse, biased and preconceived (Para-5 of the appeal at Annexure-A14). The applicant has also given certain reasons to prove his apprehension that the Disciplinary Authority was biased. He has specifically mentioned that when the Enquiry Officer found him guilty of 5 allegations, the Disciplinary Authority held that all the six allegations have been proved. Further, after medically decategorising him, he was transferred to Madras as cash witness. The applicant has also pointed out that the subject matter of another enquiry which is still to be completed, i.e., his non-reporting as cash witness at the cash witness at Madras has been taken note of in the punishment advice. The Appellate Authority has not even discussed any of these points and has simply stated that the applicant has not indicated any reason to feel that the Enquiry Officer and Disciplinary Authority were biased against him. Therefore, the appellate order at Annexure-A-2 is also liable to be set aside.
11. We have already mentioned in detail reasons for holding the revision order at Annexure-A3 as not in confirmation to Rule 25(3) of R.S (D&A) Rules, 1968. Therefore, the revision order, Annexure-A3 also has to be set aside.
12. In the result, we quash the impugned orders at Annexures-A1, A2 and A3. The applicant is directed to be reinstated in service in the post from which he was compulsorily retired with immediate effect. It is, however, made clear that the Disciplinary Authority is at liberty to consider afresh the enquiry report and various objections raised by the applicant in Annexure-Al 1 and pass an appropriate speaking and reasoned penalty advice, bearing in mind our finding that the punishment of compulsory retirement is shockingly disproportionate to the charges held as proved. We are sure that the 5th respondent will consider the case with an open mind and in a fair manner allaying the apprehensions entertained by the applicant in the O.A, in the appeal and revision application.
13. The O.A is disposed of accordingly. In the circumstances of the case there will be no order as to costs.