ORDER
Shanker Raju, Member (J)
1. By virtue of this application, a challenge has been made to an order passed by respondents on 20.02.2004 imposing upon the applicant a minor penalty of reduction by three stages for a period of two years without cumulative effect as well as an order passed in appeal on 4.10.2004 upholding the punishment.
2. Briefly stated applicant, while posted at Mathura as Ticket Collector, met with a road accident in the year 1991 with the result his left leg was imputed from the knee and an artificial leg was implanted. At that time, the applicant, who had been advised stationery and light duties continued to perform stationery duties in office without any regular duties pertaining to checking at the platform. Applicant in the year 1995 was promoted as Head Ticket Collector (for short HTC) and also continued to perform light and stationery duties. One Rajesh Kumar, respondent No. 3, Divisional Traffic Manager by a duty roster dated 11.10.2003 altered the duties of the applicant of regular duties of HTC with a weekly roster on Saturdays and changed to shift duties with working in 14-22 shifts.
3. On 30.11.2003, while posted as HTC to perform shift duties, applicant made an entry regarding visit of respondent No. 3 i.e. Divisional Traffic Manager and further misbehaviour with him.
4. A charge-sheet for minor penalty issued on 28.12.2003 alleged applicant’s ignorance on duty in so far as one fruit vendor was found sleeping on the trolley; presence of 8 persons, wearing red clothes, in second class waiting hall; presence of one Suresh Kumar Sharma in first class waiting room with second class ticket and five persons were found sleeping in first class waiting room without any entry in the register.
5. Applicant, through his representation dated 22.01.2004, presented his reply to the show cause where in the ultimate para of which English translation is re-produced, stated as follows:
It is, therefore, requested that higher officials of the Railway Administration to get an independent enquiry conducted through higher officials in the incident taken place on 30.11.2003 because the disciplinary authority i.e. respondent No. 3 has withheld the correct factual details and by misleading the railway administration, he has been, through his deed, causing loss to the government.
6. An order passed by the disciplinary authority imposed a punishment wherein it is stated that persons found sleeping shows mismanagement at the railway station and as taking action against unauthorized persons without ticket at the railway station is the duty of HTC, the applicant has been held guilty and punished.
7. In an appeal preferred in detail, what is described is his defence version and refuted the charges stating that respondent No. 3 was tantamount to punish the applicant. Appellate order, which is impugned in this O.A., rejected the appeal, giving rise to the present Original Application.
8. Learned Counsel for the applicant Shri B.S. Mainee contended that as specific mala fides have been alleged against respondent No. 3 who, despite imputation of left leg of the applicant and having performed light duties, stationery in nature, in the past by the applicant, had deliberately entrusted him with the duties of checking. It is further stated that nobody was found unauthorized at the platform. As second class waiting room is outside the platform, there is no requirement for a person to be in possession of a valid ticket. With regard to the vendor, who was sleeping on the trolley, it is stated that he was a licenced vendor and to remove him does not fall within the charter of duties of the applicant. The applicant asked the person, who was in first class waiting room, to leave and the said person left and regarding five persons, it is contended that as they had first class tickets, making entry in the register is not the duty of the applicant. In the above conspectus, it is stated that no misconduct has been made out yet respondent No. 3 not only changed the duties of the applicant but also fabricated the allegations to see that the applicant is punished.
9. Learned Counsel would contend in the conspectus that having impleaded respondent No. 3 as a party and duly served upon, non-filing of reply is admittance on ground of mala fides, which is otherwise apparent from the record as well.
10. Shri Mainee further contended that the orders passed by the disciplinary authority as well as appellate authority are non-speaking and violate Boards Circular dated 2.1.1986 where it is mandated not only to mention the grounds taken but to record a finding being quasi judicial authority. Non-speaking orders are not sustainable in law.
11. On the other hand, respondents counsel Shri R.L. Dhawan vehemently opposed the contentions and relying upon a decision of the Apex Court in Apparal Export v. A.K. Chopra JT 999 (1) (SC) 61, stated that the Tribunal would not interfere in factual finding recorded by the disciplinary authority if the same is neither perverse nor untenable in law.
12. Learned Counsel would also contend that ground of bias and mala fides against respondent No. 3 has not been levelled before the Department and, as such, now the pleas taken are afterthought.
13. Shri Dhawan stated that applicant has not tendered any defence and there is no order from the competent medical authority to post the applicant on light & stationery duties.
14. Shri Dhawan, by referring to Rule 22(2) of Railway Servants (Discipline & Appeal) Rules, 1968 (hereinafter referred to Rules) states that while considering the appeal, there is no requirement to deal with each article and as there is no reason to disagree with the findings of disciplinary authority, the appellate order is speaking one.
15. Learned Counsel would contend that as a revengeful action, while the applicant was placed under suspension, not only the applicant recorded information but this false pretext was also taken. While referring to the duty roster, it is stated that duty to check tickets is inbuilt in the duties of HTC.
16. In the rejoinder, applicant has reiterated his pleas.
17. In so far as personal mala fides based on facts are concerned, it is trite law that mala fides cannot be established on mere suspicion and surmises. A strong foundation has to be led which is to be proved to its hilt. Any sentence here and there would not be sufficient compliance. However, the Constitution Bench of the Apex Court was being considered by an order passed by the Division Bench of this Tribunal at Bangalore in M.V. Thimmaiah v. Union of India and Ors. 2005 (2) SLJ (CAT) 113, where following observations have been made:
A Constitution Bench of the Honble Supreme Court in R.P. Kapur and Ors. v. Sardar Pratap Singh Kairon and Ors. , has taken the view that if serious allegations are made against a person, he owes a duty to the Court to file an affidavit stating the correct position regarding the allegations and not to leave the refutation of the allegations to Secretaries and other officers who only speak from the records. Their Lordship in this context dealing with an allegation against Chief Minister of State have observed as follows:
These are all matters on which the Chief Minister alone was in a position to enlighten us. In view of the allegations made against him, we consider that the Chief Minister owed a duty to this Court to file an affidavit stating what the correct position was so far as he remembered it. We recognize that it may not be possible for a Chief Minister to remember the circumstances in which a document passes through his hands; there must be many papers which a Chief Minister has to deal with in the day to day business of administration. If the Chief Minister did not remember the circumstances, it would have been easy for him to say so. If he remembered the circumstances he could have refuted the allegations with equal ease. This is not a case where the refutation should have been left to Secretaries and other officers, who could only speak from the records and were not in a position to say why the Chief Minister passed certain orders. The petitioners are obviously suffering from a sense of grievance that they have not had a fair deal. We have held that there is no legal justification for that grievance; but in executive as well as judicial administration, justice must not only be done but it must appear that justice is being done. An affidavit from the Chief Minister would have cleared much of the doubt which in the absence of such an affidavit arose in this case.
In Jagdish Prasad v. State of Bihar , the Honble Supreme Court as an obiter dicta observed that mechanical affidavits miniaturizing the files into a few paragraphs, by some one handy in the Secretariat cannot be regarded as satisfactory. This is not a mere punctilio of procedure but a probative requirement of substance. In Mohammad Ibrahim v. B. Rama Rao , the Honble Supreme Court while dealing with the procedure affidavit in opposition by the State Government agreeing with the grave concern expressed by the High Court that counter affidavits were prepared without any regard to accuracy hoped that Government will display greater competence and attention in drafting affidavits. As we noticed in this case specific averments are made in the original applications. But, we find that copies in a mechanical and stereotyped manner of same counter affidavit in all individual cases are filed by official respondents without reference to the points raised in each of the original applications including specific allegations of mala fides, arbitrariness etc.
23. We do not take the non-filing of reply alone as the sole factor in accepting the case of mala fides. We have taken into consideration all factual matrix starting from the preparation by the Screening Committee and the inconsistent and confusing manner of consideration of C.Rs and special reports and arbitrary manner in which marks were given by the Selection Committee as pointed out above. Coupled with the non-application of mind we find that the applicants have made out a case of extraneous considerations in the manner of selection.
18. Having regard to the above, in the event serious allegations were made and despite an opportunity granted to the concerned were not rebutted, an inference of his admittance is drawn. Moreover, I find that respondent No. 3 has abruptly changed the duties of the applicant and the explanation tendered has not at all been taken into consideration. It appears that respondent No. 3 was biased against applicant and his action was actuated with mala fides.
19. Moreover, the mala fides is apparent from the fact that that the applicant, in response to the show cause notice, objected to continuance of respondent No. 3 to be the disciplinary authority and has accordingly requested the authorities to get an independent enquiry conducted as incident has been fabricated against him by respondent No. 3, yet despite these allegations by way of fairness and to ensure that no iota of arbitrariness cropped up in the quasi judicial action, disciplinary authority was not changed. The transparency and good faith would have required respondent No. 3 to desist from acting as a disciplinary authority. By not referring the matter to the higher authorities and the fact that no whisper has been made to this request of the applicant in his speaking order, mala fides writ large on the face.
20. Minor penalty of reduction of pay without cumulative effect is a punishment incorporated in Rule 6 (iii)(b) of the Rules ibid. Rules 11(1)(b)/11(ii) mandate that in a minor penalty proceedings, the disciplinary authority, on receipt of representation, has to record his findings on each imputation or misconduct or to decide holding an oral enquiry which is optional at the discretion of the disciplinary authority. It is trite law that discretion vested in either administrative or disciplinary authority has to be exercised judiciously. It cannot be exercised on whims and fancies of the concerned.
21. Apex Court in Food Corporation of India, Hyderabad and Ors. v. A. Prahalada Rao and Anr. 2001 (1) SCC 165, on a similar provision like railway where on receipt of representation a decision to hold an enquiry is to be made, has observed as under:
5. In our view, on the basis of the allegation that Food Corporation of India is misusing its power of imposing minor penalties, the Regulation cannot be interpreted contrary to its language. Regulation 60(1)(b) mandates the disciplinary authority to form its opinion whether it is necessary to hold inquiry in a particular case or not. But that would not mean that in all cases where an employee disputes his liability, a full-fledged inquiry should be held. Otherwise, the entire purpose of incorporating summary procedure for imposing minor penalties would be frustrated. If the discretion given under Regulation 60(1)(b) is misused or is exercised in an arbitrary manner, it is open to the employee to challenge the same before the appropriate forum. It is for the disciplinary authority to decide whether regular departmental enquiry as contemplated under Regulation 58 for imposing major penalty should be followed or not. This discretion cannot be curtailed by interpretation which is contrary to the language used. Further, Regulation 60(2) itself provides that in a case if it is proposed to withhold increments of pay and such whilholding of increments is likely to affect adversely the amount of retirement benefits payable to an employee and in such other cases as mentioned therin, the disciplinary authority shall hold inquiry in the manner laid down in Regulation 58 before making any order imposing any such penalty. Hence, it is apparent that the High Court erroneously interpreted the Regulation by holding that once the employee denies the charge, it is incumbent upon the authority to conduct inquiry contemplated for imposing major penalty. It also erred in holding that where an employee denies that loss is caused to the Corporation either by his negligence or breach of order, such inquiry should be held. It is settled law that court’s power of judicial review in such cases is limited and court can interfere with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry and imposing punishment or where the conclusion or finding reached by the disciplinary authority is based on no evidence or is such that no reasonable person would have ever reached. As per the Regulation, holding of regular departmental enquiry is a discretionary power of the disciplinary authority which is to be exercised by considering the facts of each case and if it is misused or used arbitrarily, it would be subject to judicial review.
22. What is discerned from the above is that if discretion to hold an enquiry is exercised in an arbitrary manner and the proceedings are in consistent with the rule of natural justice then the discretionary power to hold enquiry and its non-compliance is to be judged by considering the facts of the case.
23. In the present case, the applicant has in its reply specifically, alleging bias against respondent No. 3, sought for an enquiry. The impugned order passed does not show any of the contentions raised by the applicant rather a bald statement as to not finding the explanation satisfactory cannot be a valid compliance of the order in the totality of facts and circumstances prevailing and the discretion of the disciplinary authority has not been exercised judiciously. This has deprived a reasonable opportunity to the applicant, for want of an enquiry held, to effectively defend the charges.
24. As the aforesaid plea of mala fide has been taken in the Original Application, the respondent No. 3 having not filed its reply and there is no explanation which could supplement it even if the officials respondents filed the reply which does not show the reply being filed on behalf of respondent No. 3 as well, the mala fide alleged is deemed accepted. It is trite law that any mala fide action by quasi-judicial authority or administrative authority has to be set at knot in judicial review.
25. Though the applicant in his reply to the show cause has asked for an enquiry to be conducted, yet the disciplinary authority has not afforded a personal hearing to him as well. The issue regarding an opportunity of hearing in minor penalty was cropped up before the Apex Court in O.K. Bhardwaj v. Union of India and Ors. 2002 (SCC) (L&S) 188, where following observations have been made:
3. While we agree with the first proposition of the High Court having regard to the rule position which expressly says that ‘withholding increments of paywith or without cumulative effect is a minor penalty, we find it not possible to agree with the second proposition. Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with.
4. Learned Counsel for the respondent, however, says that though the second proposition of the High Court may not be correct, yet so far as this is concerned it does not make any difference for the reason that in this case, as a fact an opportunity was given to the appellant and that there has been adequate compliance with the principles of natural justice. But since the High Court has not considered the matter from the above angle that is on merits the proper course in our opinion is to remit the matter to the High Court to consider whether an opportunity was given to the appellant to put forward his case and whether in the light of the facts and circumstances of the case, an enquiry was called for and if called for, was it held according to law and the principles of natural justice, and to dispose of the matter according to law. The appeal is allowed with the above directions. No costs.
26. If one has regard to the above, even in case of a minor penalty one has to be accorded an opportunity to have his say which not only includes an explanation but a personal hearing as well.
27. Moreover, while passing an order on quasi judicial side, administrative authorities are bound by Railway Boards instructions which supplement the statutory rules and are not in conflict as per Boards letter dated 3.1.1986 and 13.7.1981. Even in case of a minor penalty in the light of a decision of the Apex Court in Mahavir Prasad v. State of UP , recording of reasons by quasi judicial authority being obligatory, it has been impressed upon to the concerned while exercising disciplinary powers to pass self contained, speaking and reasoned orders.
28. The reasons to be recorded by the disciplinary authority has not to be viewed in isolation of the defence submitted by the concerned as in a minor penalty no regular enquiry is conducted where a detailed finding discussing the defence is recorded. In that event, if disciplinary authority records a concurring order, reasons are not required but it holds juxtaposition in minor penalty where the only defence adduced is the explanation. Once this explanation does not find mention in the order nor any consideration thereof by controverting the same and recording reasons, it cannot be, by any stretch of imagination, treated as a speaking order.
29. If one has regard to the order passed by the disciplinary authority, the opening lines found without reasons, the explanation tendered by the applicant as unsatisfactory. The remaining reasons recorded do not show any cognizance taken to the defence. The aforesaid is not the valid compliance of railway Boards Circular, which is mandatory and the same having not been followed, order stands vitiated.
30. It is trite law that while acting on quasi judicial side, the appellate authority has to act in accordance with Rule 22 of the Rules ibid, which mandates the authorities to ensure that no procedural illegality has cropped up and the punishment is with jurisdiction and proportional. In the appeal, applicant had taken justification for his no misconduct and illegal punishment but the appellate authority has not referred to any of the contentions and recorded that the applicant has never defended the charges against him and rather showed his helplessness and shifted his responsibility to Divisional Traffic Manager, hence rejected the appeal.
31. It is the bounded duty of the appellate authority in the wake of a request of the applicant in his reply to the representation to hold an enquiry as he has alleged bias against the disciplinary authority. This aspect of the matter and the fact that none of his defence contentions, though he refuted the charges, has found mention in the order yet recording otherwise without taking into consideration in right perspective the facts in defence statement as well as in appeal, the order shows non-application of mind and this cannot be termed as a reasoned order.
32. I have also gone through the contentions put forth by the applicant. Misconduct cannot be precisely defined. However, the facts and circumstances decide the `conduct to be a `misconduct in flagrance violation of laid down rules. Applicant, right from 1991 to 2003, had been posted as HTC performing office work and stationary duties. A person, who has lost his left leg on imputation, is self-explanatory and the principle enunciated in law of res ipsa locquitor applies. A person loosing his left leg with an artificial leg cannot perform all the active duties of climbing, moving all the time or motion duties hence the then competent authority stationed him with lighter duties whereas respondent No. 3 vide his message dated 11.10.2003 abruptly changed the duties of the applicant. The charter of duties, annexed with the reply, under Rule 101, HTCs are entrusted with the task of examining the tickets or passengers having a valid ticket in possession. They are required to check the tickets at entrance and punch card tickets of passengers in trains but nowhere in the present charter, any duty to check ticketless persons in the waiting halls are mentioned, as for the said job, concerned attendants are there to report the matter to the TCs or the Station Masters and then to take action against the defaulters.
33. Be that as it may, the fact remained that the allegation against the applicant of allowing one vendor sleeping on the trolley at the platform, which is misconceived as the said vendor has a valid licence. Other allegation pertaining to presence of about 4-5 persons in red clothes in the waiting hall, does not fall within the jurisdiction of HTC as waiting hall is situated outside the platform and every citizen of India has a right to access no valid ticket is required.
34. Insofar as the third charge of allowing one person to be in waiting hall of first class with second class ticket is concerned, applicant on checking asked him to leave and he had left too. The fourth allegation of allowing five persons to sleep in first class waiting room is no misconduct when they possessed valid ticket. The only lacuna was that they had not recorded an entry in the register, which is the duty of attendant.
35. The aforesaid however does not make the Tribunal to assume the role of an appellate authority. While examining the correctness and legality of quasi judicial order, it is settled that the courts have to see that the findings are perverse and establishment of no misconduct and evidence applying the test of a common reasonable prudent man. As per the law laid down by the Apex Court in Kuldip Singh v. Commissioner of Police JT 1998 (8) SC 603 even a common reasonable prudent man would not have the same finding recorded specially in the wake of a note recorded by the applicant alleging bias and mala fides against respondent No. 3. The act of respondent No. 3, while discharging the functions as disciplinary authority, in not taking into account the request of the applicant, vitiates the impugned order being arbitrary, illegal, unreasonable and in violation of principles of natural justice.
36. In the result, for the foregoing reasons, OA stands allowed. Impugned orders are set aside. Applicant is entitled to all consequential benefits of restoration of pay etc. as a consequential relief. This shall be done within a period of two months from the date of receipt of the certified copy of this order. No costs.
