W.P.(C) No. 1638 of 2008 (S)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938 WP(C).No. 1638 of 2008 (S) --------------------------- AGAINST THE ORDER/JUDGMENT IN OA 682/2005 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 06-07-2007 PETITIONERS: --------------------- 1. UNION OF INDIA REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN.P.O., CHENNAI-3. 2. THE SENIOR DIVISIONAL MECHANICAL ENGINEER, SOUTHERN RAILWAY, PALGHAR DIVISION,, PALGHAT. 3. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. 4. THE CHIEF OPERATIONS MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICER, PARK TOWN P.O., CHENNAI-3. BY ADV. SRI.T.P.M.IBRAHIM KHAN,SR.SC, RAILWAYS RESPONDENTS: ------------------------- V.SELVAM, S/O.V.VEDIAPPA CHETTY, KHALASI (C&W), SOUTHERN RAILWAY, ERODE, RESIDING AT RAILWAY QUARTERS NO, 363-B, RAILWAY COLONY, NEAR MOSQUE, ERODE. BY ADV. SRI.T.C.GOVINDA SWAMY ADV. SMT.D.HEERA ADV. SMT.R.R.REJITHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.5.2016, THE COURT ON 21-06-2016, DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)No.1638/08** ## **PETITIONER'S EXTS:** - EXT.P1: COPY OF CHARGE SHEET No.J/T.5/1/D2/54 DT.8.11.2000 ISSUED BY THE THIRD PETITIONER TO THE RESPONDENT. - EXT.P2: COPY OF LETTER No.J/MD.84/II DT.20.11.2000 ISSUED BY THE CHIEF MEDICAL SUPERINTENDENT, SOUTHERN RAILWAY, PALAKKAD. - EXT.P3: COPY OF LETTER No.J/T.5/1/D2/54/2000/DAR DT.9.3.2001 ISSUED BY THE THIRD PETITIONER. - EXT.P4: COPY OF LETTER NO.NIL DT.21.3.2001 SENT BY THE RESPONDENT TO THE SR.DIVISIONAL MEDICAL ENGINEER, PALAKKAD. - EXT.P5: COPYOF PENALY ADVICE No.J/T5.1.D2/54/2000/DAR/VS DT.25.5.2001 ISSUED BY THE 3RD PETITIONER. - EXT.P6: COPY OF OFFICE ORDER NO.J/P41/II/TC DT.7.5.2001 ISSUED BY THE THIRD PETITIONER. - EXT.P7: COPY OF APPEAL/LETTER NO.NIL DT.16.7.01 SUBMITTED BY THE RESPONDENT BEFORE THE 3RD PETITIONER. - EXT.P8: COPY OF LETTER NO.J/T.5/1/D2/B4/2000/DAR/VS DT.3.8.02 ISSUED BY THE THIRD PETITIONER. - EXT.P9: COPY OF LETTER NO.NIL DT.7.5.03 SUBMITTED BY THE RESPONDENT TO THE 4TH PETITIONER TO THE RESPONDENT. - EXT.P10:COPY OF ORDER NO.P(A) 94/MIS./658 DT.18.8.03 ISSUED BY THE TH PETITIONER. - EXT.P11:COPY OF SUBMISSION NO.NIL DT.5.5.05 FILED BY THE RESPONDENT/APPLICANT TO THE FIRST PETITIONER. - EXT.P12:COPY OF LETTER NO.J/T.5./1/D2/B4/2000/DAR/VS DT.27.7.05 ISSUED BY THE THIRD PETITIONER. - EXT.P13:COPY OF ORIGINAL APPLICATION NO.682/05 FILED BY THE RESPONDENT/APPLICANT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. - EXT.P14:COPY OF REPLY STATEMENT FILED BY THE PETITIONERS/RESPONDENTS IN O.A.682/05 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P15:COPY OF REJOINDER FILED BY THE RESPONDENT/APPLICANT IN OA.682/05. - EXT.P16:COPY OF REPLY STATEMENT TO THE REJOINDER FILED BY THE PETITIONERS/RESPONDENTS IN O.A.682/05 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. - EXT.P17:COPY OF ORDER DT.6.7.07 PASSED BY THE LEARNED CENTRAL ADMINISRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A.682/05. EXT.P18:COPY OF ENQUIRY PROCEEDINGS. RESPONDENTS' EXTS: NIL TRUE COPY P.S.TO JUDGE dsn **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -------------------------------------------------W.P.(C)No.1638 OF 2008** **-------------------------------------------------DATED THIS THE 21[st] DAY OF JUNE, 2016** ## **JUDGMENT** ## **ANIL K.NARENDRAN, J** . This Writ Petition arises out of Ext.P17 order passed by the Central Administrative Tribunal, Ernakulam Bench dated 6.7.2007, an Original Application filed by the respondent herein seeking an order to quash Annexures A1, A2 and A3 orders and to direct the petitioners herein to grant him all consequential benefits including arrears of pay and allowances as if Annexures A1, A2 and A3 had not been issued at all. 2. In O.A.No.682/2005, a copy of which has been marked as Ext.P13 in this Writ Petition, the petitioners herein (hereinafter referred to as the petitioners) filed Ext.P14 reply statement opposing the relief sought for in that O.A., contending that the orders impugned are perfectly legal and no interference of the Tribunal is warranted. On receipt of Ext.P14 reply statement, the respondents herein (hereinafter referred to as the 'applicant') filed Ext.P15 rejoinder reiterating the contentions raised in the O.A., W.P.(C)No.1638/08 -2- which was followed by Ext.P16 reply filed by the petitioners. 3. After considering the pleadings and materials on record, the Tribunal by Ext.P17 order dated 6.7.2007 set aside the impugned orders on a finding that the applicant was not given an opportunity as contemplated under Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as 'the D&A Rules'). After referring to the law laid down by the Apex Court in **Ministry of Finance v. S.B.Ramesh (1998 (3) SCC 227)** the Tribunal concluded that the disciplinary proceedings initiated against the applicant is vitiated in view of non-compliance of the mandate under Rule 9(21). Though the Tribunal set aside the impugned orders on procedural irregularities, instead of remitting back the case to the Disciplinary Authority to continue the enquiry proceedings from that stage; the Tribunal, taking note of the fact that the applicant would have undergone the penalty already awarded and that, since it is almost seven years that the alleged incident had taken place, coupled with the fact that the he has been medically decategorised and as such he cannot be placed back to the post of Diesel Assistant, directed the petitioners to consider the W.P.(C)No.1638/08 -3- positioning of the applicant in the post to which he was found medically fit vide order dated 21.10.2000 and to treat him to have held that post continuously, but notionally. The Tribunal has also ordered that the said period shall count for seniority and promotion and that, necessary orders in this regard be passed within three months from the date of communication of the order. It is aggrieved by Ext.P17 order passed by the Tribunal, the petitioners are before this Court in this Writ Petition. 4. We heard the arguments of the learned Standing Counsel for the petitioners and also the learned counsel appearing for the respondent/applicant. 5. The pleadings and materials on record would show that on 15.11.2000 the applicant was working as Driver Assistant (Diesel Assistant) of Multiple Unit Light Engine No.WDM2 17116/16884. When the loco reached Thottiyapalayam Railway Station, the driver stopped the loco due to want of signal to proceed. After some time, the driver proceeded to the Office of the Station Master to contact the Control Office at Palakkad in order to know further movement of the loco. According to the petitioners, while leaving, the driver had secured the loco and W.P.(C)No.1638/08 -4- also instructed the applicant to remain in the loco till he returns. When the driver left the loco, the applicant occupied the seat of driver which was unnecessary and unwarranted, since he is required to occupy that seat only when the driver is incapacitated. Afterwards it was found that the loco started moving and gathered momentum and proceeded towards Erode Station side, without giving signal. Subsequently, the loco bumped at the sand hump of Road No.11 at Erode Yard causing derailment of the loco, which resulted in heavy damages to the loco and the overhead equipments. 6. In connection with the above-said incident, the applicant was issued with a charge sheet along with statement of articles of charge. After considering the explanation offered by the applicant an enquiry was ordered to be conducted into the matter and the Assistant Divisional Mechanical Engineer/Palakkad was appointed as the Enquiry Officer. In the meanwhile, the applicant was declared medically unfit in medical classification 'A1' and fit for 'B-1', vide letter dated 20.11.2000 of the Chief Medical Superintendent/Palakkad. Since the applicant was found unfit in 'A-1' medical classification, he was not eligible to hold the W.P.(C)No.1638/08 -5- post of Driver Assistant/Diesel Assistant. 7. In the enquiry, the driver of the loco has deposed that while proceeding to the Station Master's Office at Thottiyapalayam, he had secured the loco and that the applicant was found sitting in the driver's seat in the normal posture when the loco was moving towards Erode side. The Assistant Station Master Thottiyapalayam has also deposed that the loco was detained at the Station since the block section from Thottiyapalayam to Erode was occupied and that when the loco started moving without signal, the applicant was sitting in the driver's seat in normal posture. 8. During the enquiry, the Enquiring Authority gave an opportunity to the applicant to explain the circumstances appearing in the evidence against him. However, the applicant has deposed that, he does not want himself to be examined and that he will submit a defence statement within 15 days. In the defence statement, the applicant has stated that he fell unconscious and hence he could not control movement of the loco. 9. After the enquiry, the Enquiry Officer submitted report W.P.(C)No.1638/08 -6- finding that the charge stands proved against the applicant. The case of the applicant that he fell unconscious before the loco started moving from Thottiyapalayam Station was not accepted by the Enquiry Officer, since he was sitting in normal posture when the loco started moving from Thottiyapalayam Station where it was berthed. 10. A copy of the enquiry report was forwarded to the applicant vide letter dated 9.3.2001 to enable him to make representations, if any. The applicant submitted his representation dated 21.3.2001 to the enquiry report. After considering the explanation offered by the applicant, the disciplinary authority imposed a penalty of compulsory retirement on him vide Annexure A1 order dated 25.5.2001. In the meanwhile, considering the medical unfitness, the applicant was posted as Ticket Collector vide Annexure A10 order dated 7.5.2001. 11. Challenging the imposition of penalty by Annexure A1 order of the disciplinary authority, the applicant filed appeal before the appellate authority. The appellate authority, taking a lenient view, reduced the punishment as that of reversion from W.P.(C)No.1638/08 -7- the post of Diesel Assistant to the post of Khalasi in the scale ₹2550-3200 in pay at 2,550/- for a period of 5 years with₹ cumulative effect, vide Annexure A2 order dated 13.8.2002. 12. Challenging Annexure A2 order of the Appellate Authority, the applicant submitted a revision dated 7.5.2003 before the Revisional Authority, which also ended in dismissal as per Annexure A3 order dated 18.8.2003, confirming Annexure A2 appellate order. Thereafter he submitted a mercy petition dated 5.5.2005 before the General Manager, Southern Railway, Madras. Since all the avenues under the D & A Rules have already been exhausted with the disposal of the revision petition vide Annexure A3 order, the applicant was informed vide letter dated 27.7.2005 that there is no provision to entertain such a mercy petition and as such the same is not being forwarded to the General Manager. It was in such circumstances, challenging Annexures A1 to A3 orders, the applicant approached the Tribunal in O.A.No.682/2005. 13. Before the Tribunal, the petitioners contended that the penalty imposed on the applicant is for valid reasons and that such a penalty has been imposed after following the prescribed W.P.(C)No.1638/08 -8- procedures under the D & A Rules. The petitioners pointed out that, without human interference, no loco will move from secured position. Further, no illness was reported until the loco reached Thottiyapalayam and that, the applicant who was the Assistant Loco Pilot occupied the seat of Loco Pilot when the latter proceeded to the Office of the Station Master. The petitioners therefore contended that, it was after considering the relevant materials on record, the disciplinary authority awarded the penalty of compulsory retirement. However, taking a lenient view, the penalty was modified as one for reversion from the post of Diesel Assistant to the Post of Khalasi, for a period of 5 years with cumulative effect. 14. The Tribunal on a reappreciation of the evidence arrived at a conclusion that the explanation offered by the applicant that he was in an unconscious stage when the loco started moving from Thottiyapalayam Station cannot be disbelieved. In order to arrive at such a conclusion, the Tribunal has taken into consideration the fact that, the applicant was admittedly taken to the hospital on 15.10.2000 in an unconscious stage and that, he was admitted in a Private Hospital till 8 PM W.P.(C)No.1638/08 -9- and that, he reported to the Railway Hospital on the same day at 11.40 PM and that he had been in the sick list since 15.10.2000 and was declared medically decategorised vide order dated 20.11.2000. 15. Considering the fact that the applicant had been working as Electrical Fitter for over 7 years, the Tribunal arrived at a conclusion that he would be familiar with the operations of the loco. The Tribunal observed that, there is no direct evidence that the applicant had been seen meddling with any of the parts of the loco which would have caused the motion of the loco and that, had the applicant conscious when the engine started moving, he would have either attempted to stop the motion or would have out of anxiety cried for help. Therefore, the Tribunal concluded that the applicant became unconscious while sitting on the driver's seat and the motion of the loco was, in all probability, due to the slope of 1/120, which aspect of the matter was not seen analysed by the Enquiring Authority. The Tribunal has also held that, the applicant was given no opportunity to vindicate his stand, as mandated under Rule 9(21) of the D & A Rules and as such the impugned orders imposing penalty are vitiated. W.P.(C)No.1638/08 -10- 16. It is trite law that, disciplinary proceedings before a domestic tribunal are of a quasi-judicial character, therefore, the minimum requirement of the rule of natural justice is that, the conclusions arrived at by the domestic tribunal should be based on some evidence, i.e., evidential materials which with some degree definiteness points to the guilt of the delinquent in respect of the charges levelled against him. Therefore, the standard of proof required in a criminal case and that in disciplinary proceedings before a domestic tribunal are entirely different. In a criminal case the charge has to be proved by the standard of proof of beyond reasonable doubt, whereas, in disciplinary proceedings before a domestic tribunal the standard of proof for proving the charge is preponderance of probabilities. 17. It is also well settled that the scope of judicial review in matters relating to disciplinary proceedings initiated against a delinquent employee is limited to any illegality or irregularity in the decision making process and not on the decision taken by the disciplinary authority, appellate authority or revisional authority, as the case may be. Therefore, Court or Tribunal exercising the power of judicial review will not interfere with the finding of fact W.P.(C)No.1638/08 -11- arrived at in the disciplinary proceedings, except in cases where such findings are perverse, i.e., there is total lack of evidence to support that finding or where the finding is such that no prudent man should arrive at such a finding based on the materials on record. 18. In the case on hand, a reading of Ext.P17 order passed by the Tribunal would indicate that the Tribunal has not arrived at a finding that the conclusion of the Enquiring Authority in the enquiry report is either perverse or patently illegal or is vitiated in any manner. In the absence of any such finding, the Tribunal went wrong in interfering with the penalty imposed by the disciplinary authority and confirmed/modified by the appellate authority/revisional authority, on reappreciation of the evidence on record. In that view of the matter, we find absolutely no reason to sustain the finding in Ext.P17 order that the report of the Enquiring Authority was without analysing the various aspects of the case. 19. Another reason stated by the Tribunal, in order to interfere with the penalty imposed on the applicant, is noncompliance of Rule 9(21) of the D & A Rules. Rule 9 of the W.P.(C)No.1638/08 -12- aforesaid rules deals with the procedure for imposing major penalties. As per sub-rule (21) of Rule 9, the Enquiring Authority may, after the railway servant closes his case, and shall, if the railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the railway servant to explain any circumstances appearing in the evidence against him. In Ext.P17 order, the finding of the Tribunal is that the procedure as contemplated under Rule 9(21) of the D & A Rules was omitted to be complied with by the Enquiry Officer. As such, the proceedings from that stage is vitiated and hence the orders impugned in the O.A. are liable to be set aside. 20. Ext.P18, which is the relevant extract of the proceedings of the Enquiry Officer, would show that after the evidence of the applicant was over, a specific question was put to him by the Enquiry Officer as to whether he wants to give a defence statement or to be examined by the Enquiry Officer. The applicant answered that he will submit a defence statement within 15 days and he does not want himself to be examined. The applicant has also deposed before the Enquiry Officer that he W.P.(C)No.1638/08 -13- has verified the documents required by him and he has been given all facilities in the conduct of the enquiry. Though the applicant has filed a counter affidavit in this Writ Petition on 12.1.2008, he has not chosen to deny the specific contention raised by the petitioners in Ground D of the Writ Petition, with reference to Ext.P18. 21. In **Ministry of Finance v. S.V.Ramesh (1998 (3) SCC 227)** the Apex Court was dealing with a case in which the delinquent employee was not afforded with a reasonable opportunity in terms of Rule 14(18) of the Central Civil Services (Classification, Control and Appeal) Rules, which is pari materia with Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules. In that case, the Apex Court found that the Enquiry Officer finalised the report after receiving a brief from the Presenting Officer and he has not attempted to question the delinquent employee on the evidence in the proceedings and as such there is violation of the mandatory provisions contained in Rule 14(18) CCS (CCA) Rules. Therefore, the Apex Court held that the omission to comply with the mandatory requirement under Rule 14(18) of the said Rules is a serious error committed W.P.(C)No.1638/08 -14- by the Enquiry Officer. The Apex Court has also noticed that in the enquiry, the Enquiry Officer has marked as many as 7 documents in support of the charge while the delinquent employee was provided with only one document. Therefore, in the facts and circumstances of that case, the Apex Court arrived at a conclusion that the departmental enquiry conducted against the delinquent employee was totally unsatisfactory and without observing the minimum required procedure for proving the charge. 22. In the case on hand, as we have already noticed, there is sufficient compliance of the mandate under Rule 9(21) of the D & A Rules, which is evident from Ext.P18 proceedings of the Enquiry Officer. In that view of the matter, we find no grounds to sustain the reasoning of the Tribunal in Ext.P17 order while interfering with Annexures A1, A2 and A3. We also notice that the applicant had already undergone the penalty ordered in Annexure A3 and he became free from penalty with effect from 23.8.2007. 23. In the result, we allow this Writ Petition, setting aside Ext.P17 order dated 6.7.2007 of the Central Administrative W.P.(C)No.1638/08 -15- Tribunal, Ernakulam Bench in O.A.No.682/2005, thereby dismissing that O.A. and confirming Annexures A2 and A3 orders passed by the appellate and revisional authorities. No order as to costs. Sd/- **P.R.RAMACHANDRA MENON** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn True copy P.S.to Judge