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Judgment
This OA has been filed on 28.04.2022 under Section 19 of the Administrative Tribunals Act, 1987 against the Punishment Order dated 26.11.2018, Appellate Order dated 01.10.2019 and Revisional Order dated 13.03.2020. The relief(s) claimed in Para-8 of the OA as under:-
“i.Issue an order or direction in the nature of certiorari to quash the impugned punishment order dated 26.11.2018 (Annexure no.A-1), appellate order dated 01.10.2019 (Annexure no.A-2) and revisional order dated 13.03.2020 (Annexure A-3).
ii.Issue an order or direction in the nature of mandamus commanding to the respondents to promote the applicant on the post of C.T.I. from due date with all consequential benefits.
iii.Or may pass such other and further order or direction which this Hon’ble Tribunal may deem fit and proper undr the circumstances of the case.
iv.To issue award the cost of the petition in favour of the applicant.”
According to the facts of the case, on 14.05.2018 one Brijendra Singh Deputy CTI filed a complaint to Sr. DCM in which it was stated that on 11.05.2018 at New Delhi Guest House, the applicant Bhagwan Das Gupta, was under the influence of liquor and use abusive language of caste and also threatened . Upon the basis of the aforesaid complaint Annexure A-4, a preliminary inquiry was conducted by inquiry officer M.L. Meena and he submitted his report dated 24.05.2018 Annexure A-5. The Inquiry Officer recorded the statement of the prosecution and defence witness. Thereafter, a minor penalty charge sheet Annexure A-6 was issued to the applicant on 18.06.2018 under Section 11 of “The Railway Servants (Discipline and Appeal) Rules, 1968” (hereinafter will be referred as “Rules, 1968”).
The applicant filed the reply (Annexure A-7) on 29.06.2018. Thereafter, the DCM, Jhansi imposed the punishment upon the applicant by order dated 26.11.2018 (Annexure A-1). The applicant filed the Appeal (Annexure A-8) on 05.03.2019 but the aforesaid Appeal was also dismissed vide order dated 01.10.2019 (Annexure A-2). Thereafter, the applicant preferred the Revision on 19.11.2019 (Annexure A-9) but the same was also dismissed on 13.03.2020 (Annexure A-3).
It is submitted and pleaded by the applicant that on the date of incident 11.05.2018, he was staying in the Guest House, New Delhi with Vijay Singh and Ranjan Singh. At that time, he asked about Rajiv Namdev, Deputy CTI from the complainant Vrijendra Singh but the complainant did not answer and misbehaved with the applicant by saying that “I am not your servant” and also slept on the face of the applicant. Any F.I.R. was not lodged by the complainant Vijendra Singh. After 04 days, he filed the complaint on 14.05.2018 as per the advice of SC/ST Union. 5. It is also submitted that the Inquiry Officer totally ignored the defence of the applicant and also did not provide the opportunity for cross-examination of the complainant and prosecution witness. The alleged incident was only cognizable by the court of law. The charge sheet could not be issued. The punishment given by Annexure A-1 is not provided under Rule-6 of “Rules, 1968”. The Appellate Authority and Revisional Authority also totally ignored the defence and provisions of the SC/ST Act. The aforesaid orders are illegal, perverse, and against the natural justice. Hence, all orders are liable to be set aside.
The respondents opposed the OA by filing the counter affidavit on 09.12.2022. It is submitted that looking to the act of the applicant, the punishment rightly imposed upon the applicant. The matter was duly inquired by the Inquiry Officer, and considered by the Disciplinary Authority, therefore, O.A. is liable to be dismissed. The respondents also submit a copy of “Rules, 1966”.
The applicant also filed rejoinder on 06.02.2023 and reiterated the main contention of the OA and submitted that the said orders are liable to be set aside.
In this case, the charge sheet for minor punishment was issued to the applicant. According to Rule-11 of the “Railway Servant (Discipline and Appeal) Rules, 1968.” The Rule was followed by the respondents and the Inquiry was conducted. The punishment order Annexure A-1 is the most important. It will be useful to refer to the aforesaid order as under:-
“उत्तर मध्य रेल कार्यालय मंडल रेल प्रबन्धक (वा०) झाँसी दिनांक : 26.11.2018 पत्रांक - C/JHS/DAR/33/18/JHS श्री बी. डी. गुप्ता, डिप्टी.सी.टी.आई. झाँसी विषय :- माइनर पेनाल्टी चार्जशीट सम संख्यक दिनांक 18.08.18। संदर्भ :- आपका स्पष्टीकरण दि. 29.05.2018 । सम्पूर्ण प्रकरण का सूक्ष्म अध्ययन किया। मैं आपके द्वारा दिए गए स्पष्टीकरण से सहमत नहीं हूँ। साथी कर्मचारी से मारपीट करना, गाली गलौज करना एक गम्भीर अनियमितता है तथा सर्विस कन्डक्ट रूल का उल्लंघन है। मैं आपको दोषी मानते हुए आपकी अगली प्रोन्नति को जब भी देय हो तब से दो वर्ष तक रोकने का दण्ड प्रदान करता हूँ। उक्त मामले में अपील इस पत्र प्राप्ति के 45 दिन के अन्दर अपर मंडल रेल प्रबन्धक झाँसी को की जा सकती है। आपकी अपील स्वयं हस्ताक्षरित, संपूर्ण, सुस्पष्ट एवं संसदीय भाषा में होनी चाहिये। कृपया पत्र की पावती दें। (विपिन कुमार सिंह ) वरि. मण्डल वाणिज्य प्रबन्धक झाँसी अनुशासनिक अधिकारी प्रतिलिपि - मंडल रेल प्रबन्धक कार्मिक, झाँसी को सूचनार्थ एवं आवश्यक कार्यवाही हेतु प्रेषित ।” 9. The appeal preferred by the applicant was also dismissed by the Appellate Authority vide order dated 01.10.2019 and the Appellate Authority did not interfere in the order and maintained the punishment order. The same result is found in the revisional order dated 13.03.2020 (Annexure A-3). Therefore, it appears that all three authorities maintained the punishment order in which it was stated “अगली प्रोन्नति को जब भी देय हो तब से दो वर्ष तक रोकने का दण्ड”.
The main contention of the learned counsel for the applicant is related to the Rule-6 of aforesaid “Rules, 1968”. The Rule -6 says that the following penalties may be imposed on a Railway Servant. It will be useful to refer the Rule- 6:-
“PENALTIES AND DISCIPLINARY AUTHORITIES
6. Penalties
The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Railway servant, namely:
Minor Penalties
(i)Censure:
(ii)Withholding of his promotion for a specified period;
(iii)Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government or Railway Administration by negligence or breach of orders;
*(iii) (a) Withholding of the privilege Passes or Privilege Ticket Orders or both;
(iii)(b) Reduction to a lower stage in the time scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.
(iv)Withholding of increments of pay for a specified period with further directions as to whether on the expiry of such period this will or will not have the effect of postponing the future increments of his pay.”
It is submitted by the respondents’ counsel that the punishment has been given under Section 6 (ii) of the aforesaid Rules, 1968. The aforesaid rule says:-
“Withholding of his promotion for a specified period.” Therefore, the rule itself says that the “specified period” should be mentioned for which the promotion was withheld.
Now, if we see the order passed by the respondents then it appears that the specified period has not been mentioned. The order was having uncertainty. As per the order, when the promotion will due, then the promotion will not be given up to two years.
During the pendency of this OA, the applicant filed an expedite application No.4573/2023 and the court accepted the aforesaid application, thereafter the arguments were heard. Along with the aforesaid application, the order dated 12.12.2023 was also filed by the applicant at Page-5. In the aforesaid order, the promotion from the post of CTI Level-7 (GP-4600) to Deputy CTI level-6 (GP-4200) has been issued. At SL. No.2, the name of the applicant Bhagwan Das Gupta is also reflected for the promotion from the post of CTI level-6 to Deputy CTI Level-7, but in the last column under the head of ‘Result’ it is mentioned that “suitable, after completion of punishment”. It means the applicant will be entitled to the promotion after two years from 12.12.2023. In other words, the applicant will be entitled to promotion after two years from 12.12.2025. On the other side, it is not in dispute that the retirement of the applicant is due on 30.06.2025. The said promotion order cannot be implemented because the due date 12.12.2025 is after the retirement dated 30.06.2025.
The competent authority was authorized to impose the punishment upon the applicant for a specified period but the said period should be started from the date of passing the order, meaning the punishment for withholding the promotion should be started from 26.11.2018 but the concerned authority imposed the punishment from a future date which was uncertain. The said punishment is not according to the Rule- 6(ii). The authorities/Appellate Authority and Revisional Authority did not apply their mined towards the aforesaid aspect. Any punishment order cannot be imposed from an uncertain date, the specified period should be mentioned and it should be started from the date of punishment not from a future date.
Therefore, looking to the aforesaid provision, the punishment order dated 26.11.2018 (Annexure A-1), the Appellate Order dated 01.10.2019 (Annexure A-2), and the Revisional order dated 13.03.2020 (Annexure A-3) are liable to be set aside. Accordingly, OA is allowed and all three orders are set aside. The applicant will be entitled for the promotion as per order dated 12.12.2023 by deleting the remarks mentioned in the result column of the aforesaid order.
No costs.