B.V.V.Ganapathi Rao vs Union Of India & Ors.

The Applicant was working as Loco Pilot (Goods), in the Secunderabad Division of the South Central Railway (SCR). The 4^th Respondent initiated disciplinary proceedings, vide the impugned Memorandum, dt.12.06.2017, alleging that the Applicant, while working Train No.56659, Sholapur to Falaknuma Passenger, failed to observe signal aspect and also to exchange signal aspect with his Assistant Loco Pilot (ALP) and Guard, passed the Down Main Line starter signal at danger, without proper authority, despite having knowledge of the section and stopped the train ahead of the starter, about 50 seconds before making SPAD (Signal Passing At Danger). The Applicant, vide his explanation, dt.21.06.2017, stated a very important fact that he, being a Goods Loco Pilot (LP/Goods, for short), ought not to have been booked to work a passenger train, in violation of mandatory provisions, which say that when an LP/Goods is working a passenger carrying train, the Chief Loco Inspector (CLI) shall accompany the LP/Goods, but it was not done, despite his request to do so. This apart, the 4^th Respondent, being a Member of the Fact Finding Enquiry Committee (the Committee, in short) that had enquired earlier into the alleged incident, ought not to have initiated disciplinary proceedings against the Applicant. These important violations on the part of the Respondent authorities ought to have weighed for dropping further proceedings under the aforesaid Charge Memorandum, but they went ahead with the Disciplinary Enquiry (D.E.).

It is submitted that, during the D.E., which was held in absence of a Presenting Officer (P.O.), the IO played the role of the PO, and he tried to somehow prove the charges, ignoring the illegalities committed by the Respondents in the matter. Neither any document, nor the oral evidence of the witnesses proved the charge, as contended by the applicant.

It is further submitted that the Applicant had informed, while starting the link, on 24.05.2017, from Hyderabad, that the CLI should accompany him for working the Passenger Train. However, the IO took a peculiar stand that the Applicant did not ask the Loco Inspector (LI) to accompany his train while starting from Wadi. It is argued that the administration, which did not take any steps on 24.05.2017, cannot shift the burden on to the Applicant. At the end of the inquiry, in violation of the mandatory provision at Rule 9(21) of the Railway Servants (D&A) Rules, 1968, (D&A Rules, in brief) and, in spite of protest by him, the IO cross-examined the Applicant. The Applicant has submitted that the IO also did not allow production of defence witnesses, on the ground that, during the preliminary inquiry, the Applicant had mentioned that he does not need any additional witness to defend his case and that the Applicant had, thus, exhausted his opportunity in this connection. After completing the enquiry, in the absence of any PO, without considering the defence brief in its right perspective, the IO gave the finding that the Charged Employee was guilty. It is also alleged that the IO had given perverse findings, by relying upon extraneous material, which was not part of the D.E.

In response to the report of the IO, the Applicant submitted his representation, dt.06.09.2017, drawing attention to the contents of Ex.D-1, which was a note by the Fact Finding Committee, consisting of 4 Junior Administrative Grade (JA Grade) Officers, including the 4^th Respondent, who had initiated the disciplinary case against the Applicant, claiming himself to be the Disciplinary Authority (D.A.). According to the applicant, the 4^th Respondent ought not to have acted as the D.A. in the instant case, as the Committee Report was prepared by him along with others, and it was also accepted by the 3^rd Respondent, leading to the charge sheet against the Applicant and his removal from service. The 4^th Respondent, being an authority supposed to take care of the safety of the running trains, should have taken seriously the issue of the C.L.I. not accompanying the L.P., i.e., the Applicant, on the passenger train, which is mandatory under the rules.

The Applicant submitted an appeal on 16.10.2017, to the 3^rd Respondent, specifically highlighting that all the safety norms and extant instructions of the Railway Board are thrown aside in the matter of booking a Loco Pilot/Goods to work a passenger train, even though, no unscreened Diesel Loco Pilot was to work a coaching train without an accompanying Diesel CLI. The 3^rd Respondent/Appellate Authority (A.A.) has not applied his mind and has passed order mechanically.

The Applicant, thereafter, submitted a Revision Petition on 05.03.2018, inter alia, mentioning that the orders passed against him are not based on any evidence and the penalty imposed is disproportionate to the gravity of the offence. The Applicant also specifically mentioned that the 3^rd Respondent placed reliance on the 'Accident Enquiry Report', which is not a document cited and that the 3^rd Respondent was a Member of the Accident Enquiry Committee and, therefore, he cannot act as the D.A. The Applicant specifically quoted a similar case of Hyderabad Division, wherein the Appellate Authority, by considering the contributory factor of new ALP booked without LR, had taken back the Loco Pilot on duty. The Applicant also mentioned that he was made a scapegoat for the lapses on the part of the administration. The 2^nd Respondent, vide order, dt.13.08.2018, reduced the penalty of removal from service to that of reduction to the minimum of the pay scale, i.e., Rs.35,400/- (VII CPC, Level-6, GP Rs.4200/-) for a period of 3 years, with cumulative effect. He has challenged the observations in the order of the RA/R2 that the Applicant had worked this train earlier and, that the argument of not having a CLI on the train is an afterthought. This observation, it is contended, runs contrary to the rules for the safety of running trains. The usage of the term 'cumulative effect' is also allegedly contrary to the Railway Board instructions, vide letter, dt.28.11.2002, circulated under Serial Circular No.242 of 2002. It is also pertinent to mention that, instead of considering the serious illegality of an Officer who conducted the accident enquiry acting as the disciplinary authority, which is barred under the rules, the 2^nd Respondent, instead of cancelling the entire penalty, invented a new line of argument to follow a local instruction, dt.23.05.2018, issued by an incompetent authority, which is contrary to the R.B. instructions and was issued as a one-time exception, in order to punish the Applicant. In view of the illegalities committed, vis-à-vis the instructions by the Respondent Department, the Applicant is entitled to complete exoneration from the penalty, and the order, dt.13.08.2018, despite reducing the original penalty, is also null and void in law. He has sustained severe monetary loss on account of loss of employment from 08.09.2017 to 24.09.2018, as the period was treated as 'dies non', besides reduction in pay.

The 4^th Respondent, being an officer associated with the Fact Finding Enquiry, cannot act as the disciplinary authority in the case. Contrary to the Railway Board instructions of 1969, placed in the Master Circular, issued on 20.10.2002, the 4^th Respondent, who lacked jurisdiction as the D.A., initiated the disciplinary proceedings and imposed the penalty of removal from service on the Applicant. The said action of the 4^th Respondent is also in violation of the principles of natural justice, as one cannot be a judge in his own cause. The entire proceedings have to be treated as void ab initio. The Charge Memorandum, dt.12.06.2017, being unsustainable in law, the subsequent proceedings, held in pursuance of the said Charge Memo, are also null and void in law. The penalty orders and the Charge Memorandum are liable to be quashed. The 4^th and the 3^rd Respondents, who approved the Fact Finding Enquiry Report, have no power to deal with the disciplinary case against the Applicant.

As there cannot be any estoppel against an illegality, no estoppel operates against the Applicant to challenge the Charge Memorandum along with the orders of penalty. The Applicant, being a Goods Loco Pilot, ought not to have been given the duty to work a passenger train in violation of the mandatory provisions in the Railway Board letter, dt.25.03.2017, which was also referred to in the Accident Committee Report, under the heading 'Matters Brought To Light', by stating that the Applicant whose safety gradation is 'B' should not be booked to work passenger train without being accompanied by a CLI. This major violation of the RB instruction clearly shows that the Respondents had penalised the Applicant instead of taking action for the violation by the Respondents themselves.

Further, the 4^th Respondent's action in not appointing any Presenting Officer (PO) and allowing the IO to be the Prosecutor and the Judge in the disciplinary inquiry against the Applicant, is illegal and unjust. The IO shifted the burden of the lapses on the part of the administration to the Applicant, and did not allow defence witnesses and defence documents and closed the inquiry by resorting to cross-examination of the Applicant, in violation of Rule 9(21) of the Railway Servants (D&A) Rules, 1968. The IO also relied upon the answers given by the Applicant in the Accident Enquiry, though the Accident Enquiry Committee Report is not a document cited in the Charge Memo. The Joint Procedure Order (JPO), issued on 12.06.2017, i.e., after the alleged incident, to the effect that no unscreened Diesel Loco Pilot shall work a coaching train, without an accompanying Diesel CLI, clearly shows that the authorities have themselves violated safety norms.

It is also urged that the usage of the term 'cumulative effect' by R2 is contrary to the Railway Board instructions issued vide letter, dt.28.11.2002. The 2^nd Respondent, instead of cancelling the entire penalty, relies upon a local instruction, issued by an incompetent authority, which is contrary to the Railway Board instruction, dt.25.03.2017, and also the other instruction, dt.04/05.08.2016. v. It is argued that the original penalty and the modified order, inter alia, regarding the period from the date of removal till the date of joining to be treated as 'dies non', are arbitrary, unjust and in violation of Articles 14, 16 and 21 of the Constitution. Hence, the OA.

It is submitted that the applicant was booked to work Train No.57659, Solapur (SUR) to Falaknuma (FM) Passenger, on 25.05.2017, from Wadi (WD) station towards Secunderabad (SC) station. Having started the train from WD station, he stopped at Sulehalli (SUH) station, which is a scheduled halt. He re-started the train from SUH station, without observing the signal aspect at SUH station, which was at "ON" aspect, and, thereby, he caused the Signal Passing At Danger (SPAD), which is a serious lapse.

It is also stated that the incidence of Signal Passing At Danger (SPAD) falls under accident category of "H-2" (Chapter II (202) item (3) of Accident Manual-2012 of the South Central Railway), i.e., indicative accident. It is a safety violation in working of trains; in that it could have led to a major disaster, like rear collision/derailment, etc., resulting in loss of human life/dislocation of train movements, etc. It is further submitted that the Proviso to Rule 6 of the RS (D&A) Rules, 1968, states as follows (Annexure R-2):

In the preliminary enquiry (P.E.) conducted on 04.07.2017, he expressed no objection to the nomination of the IO. The Inquiry Officer submitted his report on 21.08.2017, wherein the charges were proved against the applicant. A copy of the IR was sent to the applicant for submission of his representation on the report. The applicant submitted his representation on 06.09.2017.

According to the Respondents, the plea of the applicant, that he was a goods driver working a passenger carrying train, does not absolve him of the fundamental duty of a Loco Pilot. Since the applicant had worked the passenger train in the onward trip, he had to bring it in the return trip also. Respondents argue that adherence to rules by the Loco Pilot does not vary while working a train, be it Goods or Passenger, except its speed and control. It is also apparent that the applicant was well-acquainted with signals and the road over the Hyderabad-Wadi-Secunderabad section. Thus, the provisions, if any, for a Loco Inspector to accompany the Loco Crew is only to monitor the driving skills of a Loco Pilot (the applicant) in order to maintain punctuality (time), speed and its control. Besides, an ALP was also working along with the applicant and was very much available in the loco, before starting the train from SUH, but both ignored the aspect of starter signal, leading to the SPAD incident.

The Disciplinary Authority, after considering all the facts in the charge sheet and the documents placed before him, imposed the penalty of “Removal from Service with immediate effect”. The applicant submitted his appeal, dt.16.10.2017, to the Appellate Authority (AA), contending that he, being a Loco Pilot (Goods), was asked to work as Loco Pilot (Passenger). The A.A. was of the view that the applicant had failed to follow the basic duty, specified under GR 3.81 and 3.83 (1) & (3), which are to be observed by any Loco Pilot, be it Goods or Passenger, and rejected his contention in the appeal that the IO was an interested party, as all reasonable opportunities were given to the applicant, following the principles of natural justice and the penalty of “Removal from Service” imposed by the D.A. was confirmed.

The Revising Authority, considering that the applicant had put in 14 years of service and the fact that there was no consequential accident, took back the applicant on duty and reinstated him as Loco Pilot/Goods by bringing down his pay to the minimum of the Pay Scale, i.e., Rs. 35,400/-, for a period of 3 years, with cumulative effect, treating the intervening period from the date of removal to the date of joining duty as ‘dies non’.

According to the Respondents, the averment of the applicant, that a member of the fact finding inquiry and the Disciplinary Authority are one and the same, is not true. The Member of the Fact Finding Committee is one N. Srinivas Reddy, whereas the Disciplinary Authority (DA), in this case, is Shri Amandeep Kapoor. Hence, no prejudice is caused to the applicant in issuance of the charge memo, dt.12.06.2017. Further, during the inquiry, the applicant clearly admitted the fact of Signal Passing At Danger.

It is also submitted that the inquiry was conducted as per Rule 9 of RS (D&A) Rules, 1968, wherein the applicant participated along with his Defence Counsel and availed all reasonable opportunities in the form of cross-examination of listed witnesses vis-à-vis the listed documents. In this case, no PO was appointed to present the case on behalf of the DA. During the inquiry, the applicant did not put forth any grounds to show that non-appointment of the PO had caused prejudice to his case. He also never raised any allegation of ‘Bias’ against the Inquiry Officer. Further, after examination of the listed witnesses, the IO asked the applicant on the circumstances appearing against him in the case, based on the evidence on record. The applicant was examined generally to arrive at a decision, but was not cross-examined.

The Revising Authority (RA), after carefully going through the Revision Petition, dt. 05.03.2018, of the applicant and the relevant records, noticed that the applicant had worked this train earlier as well. Hence, he was not new to running this service. Further, the RA held that the plea of not having a CLI on the train is an afterthought on the part of the applicant. The applicant, in his petition, has not explained as to why he passed the signal at danger. Hence, the RA disposed of the Revision Petition by reducing the penalty from ‘Removal from Service’ to reduction to the minimum of the pay scale for 3 years with cumulative effect. The averment of the applicant, that the term “cumulative effect” is contrary to the Railway Board Instruction, is denied.

General Rule 3.83 clearly mandates the assistance of the engine crew (both Loco Pilot & Assistant Loco Pilot) regarding observance of signals and their responsibility, wherein it is mentioned as under:

According to the Respondents, the supervisory staff (Chief Loco Inspector, CLI) has no role whatsoever in identifying or observing signal aspects during train operation, as his functions are limited to supervision, technical guidance, operational monitoring, ensuring punctuality, and providing necessary support for smooth train operations. He is responsible for evaluating and communicating the reasons for non-punctual trains, if required. It is also submitted that the medical standards, especially EYE -Vision standards prescribed for the Loco Crew are significantly higher than those for the Loco supervisory staff, as the Loco Crew are entrusted with the safety-critical task of operating trains by observing signal aspects. The guidelines under GR 3.83 also do not apply to the supervisory staff (CLI’s). Hence, the responsibility for compliance with signal aspects during train operation rests solely with the Loco Crew, and the supervisory staff cannot be held accountable for their lapses.

According to the Respondents, the defence document at Ann.A-6 shows that prior to the date of the incident on 25.05.2017, the applicant had worked the passenger train, on 19.05.2017, without any accompanying CLI, and enjoyed the benefit of special allowances attached to such duties.

As per the prescribed guidelines, enquiry was held by a Committee of Junior Administrative Grade Officers at the divisional level, with the Senior Divisional Safety Officer (Sr. DSO)/DSO as one of the members and the Divisional Railway Manager (DRM) as the accepting authority. In accordance with Para 904.6 of the Accident Manual-2012, for accidents not falling under the jurisdiction of the Commissioner of Railway Safety (CRS), the DRM is required to order an enquiry by a Committee of Officers from the concerned departments. In the present case, the Sr. DME/Co-ord/SC was included as a member of the Committee, which is in conformity with Paras 912 and 913 of the Accident Manual.

It is also stated that the purpose of a fact-finding enquiry in a departmental matter is only to see whether a prima facie case exists and whether formal disciplinary proceedings are required. Accordingly, considering the prima facie involvement of the Loco Pilot (the applicant) and the Assistant Loco Pilot of the train, formal disciplinary proceedings were initiated. It is evident from the charge memorandum that the relied-upon documents and listed witnesses are directly related to the SPAD incident and that no evidence or findings of the Committee were relied upon in framing the charges.

It is also submitted that the applicant's carelessness had led to the present SPAD incident in question. However, considering the hardship caused to the applicant due to the penalty of removal from service, as imposed by the Disciplinary Authority and upheld by the Appellate Authority, the Revisionary Authority modified the penalty and reinstated the applicant in service. The modified penalty has been implemented and the period of penalty has been completed.

It is prayed that the O.A. be dismissed.

That a Member of the Fact Finding Committee which enquired into the SPAD incident in question has acted as the Disciplinary Authority in the matter, and, therefore, the D.E. is void.

That the department has shifted the blame from itself on to the applicant for the incident, though they have ignored their duty of detailing a Loco Inspector to accompany him since he was asked to run a Passenger Train even though he was a Loco Pilot for Goods Train.

Further, the Apex Court, in UT of Dadra & Nagar Haveli vs. Gulabhia M.Lad, (2010) 5 SCC, held that -

The Hon’ble Supreme Court, in Director General, RPF vs. Ch.Sai Babu (2003) 4 SCC 331, reiterated that the High Court or Tribunal should ordinarily not interfere with the discretion exercised by the Disciplinary Authority in the matter of imposition of punishment and observed that :

a. Reduction in the pay of the applicant to the minimum of the Pay Scale (VII CPC, Level-6, GP 4200) for a period of three years, may be treated as without cumulative effect.

b. The consequential financial benefits, if any, may be extended to the applicant within a period of 3 months from the date of receipt of a copy of this order.

The period, from the date of removal of the applicant from service to the date of his joining duty on reinstatement, declared as ‘dies non’ by the RA, may be counted towards grant of pensionary benefits.