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Judgment
Mohan Pyare, Member (A)
Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
“i. This Hon’ble Court may be pleased to quashed the impugned orders dated 18.08.2006, 14.05.2007 & 16.07.2007 passed by the Disciplinary Authority, Appellate Authority and Revisional Authority respectively (Annexure No. A-1, A-2 & A-3 to this application).
ii. This Hon’ble Court may be pleased to direct the respondents to regularize the pay of applicant as if there is no penalty lying against the applicant.
iii. This Hon’ble Court may be pleased to direct the respondents to give similar treatment as has been held with Sri Abdul Rajjak who was also issued a similar charge sheet.
iv. This Hon’ble Court may be pleased to direct the respondents to extend all consequential benefits to the applicant on quashing of the impugned orders in this original application.
v. Any other relief, which this Hon’ble Court may deem fit and proper in the facts and circumstances of present case.
vi. Award cost of the original application in favour of the applicant.”
Brief facts of the case are that the applicant, while serving as Mail Guard in the Jhansi Division, was served with a charge sheet under rule 9 of Railway Servants (Discipline & Appeal) Rules 1968 vide order dated 30.11.2004 passed by respondent no.4 under rule 3-1 (i) & (ii) of Railway Servant Conduct Rule 1966. The disciplinary authority i.e. respondent no.3 appointed an inquiry officer and the inquiry report was first submitted conducting an ex parte inquiry but later when the applicant made a representation to the effect that he was sick due to which he could not participate in the inquiry, a fresh inquiry was conducted by the order of the competent authority. Inquiry proceedings were held and the inquiry report was submitted on 02.05.2006 in which the charges were proved against the applicant. Then the applicant submitted a representation on 27.06.2006 against the findings of the inquiry officer. On 18.08.2006, the applicant was imposed the penalty of withholding of increment for three years with cumulative effect. On 23.10.2006, the applicant preferred an appeal before respondent no.3 against the penalty which was rejected by respondent no.3 vide its order dated 14.05.2007. The applicant preferred a revision petition before respondent no.2 on 22.06.2007 which modified the punishment imposed upon the applicant and the penalty was reduced to withholding the increment for one year with cumulative effect vide order dated 16.07.2007.
We have heard learned counsel for the parties.
Submission of learned counsel for the applicant is that with similar charges as leveled against the applicant a charge sheet was also issued to the Assistant Guard Sri Abdul Rajjak, however, the same has been dropped and Shri Rajjak is exonerated. It is submitted that the applicant was not provided relevant documents, and Shri Abdul Rajjak, prosecution witness, did not appear on any date of inquiry. The applicant in his defence had submitted that the applicant himself put his signature in the register and did not get it signed by Sri Abdul Rajjak, however, the details in the columns have been filled in with mutual consent with him. Shri Kausalendra Singh, PW-1, has made the complaint under pressure from a higher authority. The applicant did not commit any indiscipline which is violative of the safety standards of the Railways. During the cross examination, it was specifically questioned to PW-1 that whether he identified the description mentioned in the sign on/ off register or the signature made therein to which he replied that he can identify the descriptions but cannot identify the signature made in the register. He argues that the applicant has been held guilty by the inquiry officer of putting signature of Sri Abdul Rajjak and that Abdul Rajjak has also made signature in the sign on/ sign off register on behalf of the applicant but the statements of the prosecution witness and other material evidence placed before the I.O. do not prove the applicant guilty of any action against the rules. Sri Kaushlendra Singh who appeared before the inquiry has refused in his statement to give any comment upon the dispute of signature. He further contends that the revisional authority has admitted that due to non appearance of Abdul Rajjak, PW-2, the entire proceedings falls within the purview of doubt about the fairness of inquiry and it has also admitted the fact that Sri Abdul Rajjak was issued a common charge sheet and the proceedings against him were dropped and as such, the applicant also deserves similar treatment.
Submission of learned counsel for the respondents is that after considering all the facts and circumstances, the inquiry officer has held the applicant guilty for violating the rules G&SR-2.09 and the service conduct rules 3-1 (i), (ii). It is next argued that since Shri Abdul Rajjak was also facing similar charges therefore, he could not be called as prosecution witness. Meanwhile, he retired from service. However, the applicant has never made a request to call him as a defence witness. Shri Kaushalendra Singh had made a written complaint to the Senior Divisional Operating Manager without any pressure and on that basis, the applicant was served SF-5. He states that the inquiry officer has made his report on the basis of documentary evidence placed before him and after examination of the statements made by the witnesses. In case of Abdul Rajjak, an independent inquiry was also held against him for the charges levied and on the basis of explanation/reply against Shri Abdul Rajjak, Disciplinary Authority has passed a speaking order against him. Thus, he argues that the inquiry officer has held him guilty of violating the safety norms and has proved charges against him and both the disciplinary and appellate authorities have gone through the records and were satisfied with the finding of the inquiry report and passed a reasoned and speaking order against the applicant.
Learned counsel for the applicant reiterated his arguments in his rejoinder and submitted that Abdul Razzak was made a prosecution witness, hence, it was the duty of the inquiry officer to call him for statement. Since the statement of Abdul Razzak could not be recorded in the inquiry, it vitiated the entire proceeding.
We have considered the rival contentions of learned counsel for the parties and perused the entire documents on record.
The following charges were levelled against the applicant in the charge sheet dated 30.11.2004:
Charge No. 1:- The applicant Mail Guard Jhansi failed to sign in the sign in/ sign off register on 29.06.2004 for 2134 UP on 05.07.2004 for 2645 DN (which is shown as 05.06.2004) on 01.07.2005 for 2155 DN on 07.07.2004 for 2001 DN and got it signed on by Sri Abdul Rajjak Assistant Guard working with him. The fact has been accepted by PW-Sri Abdul Rajjak Assistant Guard in writing.
Charge No. 2:- The applicant has put his signature and also of Sri Abdul Rajjak in the sign on register on 03.07.2004 for 207022 UP on 12.07.2004 for 2628 UP before starting their duty.
Charge No. 3:- The applicant failed to put sign in the sign in/sign off register on 02.07.2004 for 7022 UP on 04.07.2004 for 8237 DN on 06.07.2004 for 2646 UP on 10.07.2004 for 2780 and on 15.07.2004 for 2618 UP, which was made by Abdul Rajjak in place of the applicant.
Charge No. 4:- The applicant has also failed to make entry in the column of declaration for caution order the acknowledgement, safety circular acknowledgement and declaration of non use of alcohol before duty as the relevant columns in relied upon document, sign in sign off register where found blank.
In the inquiry report, the witness of the Detail Clerk, Shri Kaushlendra Singh has been relied upon for proving that the applicant’s signature in the sign in/ sign off register have been made by Shri Abdul Rajjak. Shri Kaushlendra Singh, on the other hand, has submitted in the proceedings that he identifies the description but he cannot say anything about the signature (Page 63 of the O.A.). So far as the proved charge of not making entry in the columns of declaration of caution order acknowledgement, safety circular acknowledgement and declaration of non-use of alcohol before duty as the relevant columns in relied upon document, sign in sign off register is concerned, it is established and not disputed and learned counsel for the applicant has submitted that it is a norm. The applicant has been held guilty for violation of GSR 2.09 ( as per which it is obligatory on the part of every supervisor to ensure that any staff working under his control are not allowed to join duty if they are in a state of intoxication/under the influence of liquor) and Service Conduct Rules 3-1 (i) (ii) regarding devotion to duty.
In the revisional order dated 16.07.2007, it has been observed that
From above, it is observed that the applicant has been treated differently from Shri Abdul Razzak who was charged with the same charges and he was not present during the proceedings in spite of being made as the prosecution witness. There is no recorded statement of any prosecution witness or handwriting experts that states with certainty that Abdul Razzak and the applicant have put signatures for each other in the sign in/ sign out register. It is the duty of the supervisor to ensure the entry of the staff in the declaration columns. The revisional authority has also taken into account the possible questionability of the inquiry report and holding the applicant negligent on the basis of documentary proof, it has reduced the penalty of the applicant from withholding the increment from three years to one year with cumulative effect. While it is beyond the scope of the Tribunal to interfere with the findings in the disciplinary inquiry, yet in view of the fact that the applicant has been treated differently from Shri Abdul Razzak who was also charged with the same charges, that Shri Abdul Razzak has not been examined during the proceedings, that no prosecution witness has stated with certainty about the applicant’s signature being put by Shri Abdul Razzak and vice versa, and also the fact that with respect to holding the applicant guilty for violation of GSR 2.09, it was more a responsibility of the supervisor to get the declaration column filled, we are of the view that the punishment imposed upon the applicant is disproportionate.
Accordingly, the impugned punishment order dated 18.08.2006, impugned appellate order dated 14.05.2007 and the impugned revisional order dated 16.07.2007 are modified and it is directed that penalty imposed upon the applicant be reduced from withholding of increment for one year with cumulative effect to withholding of increment for one year without cumulative effect granting the applicant all the consequential benefits arising therefrom. The aforesaid exercise should be completed within a period of four months from the date of receipt of a certified copy of this order.
The O.A. stands disposed of with above directions. All associated M.A.s also stand disposed of. No costs.