Girija Ballabh Sharan Tripathi vs Union Of India & Ors.

Delivered by Hon’ble Mr. Justice Om Prakash VII, Member (J)

The applicant has filed the O.A under section 19 of the Administrative Tribunals Act, seeking the following relief(s): -

Brief facts of the case are that the applicant was appointed as Booking Clerk on 08.10.1994 and thereafter promoted as Guard in the month of March, 2000. It is the case of applicant that initially a program was made out by five guards to visit the Puri. Thereafter, about 10 guards have given their privilege pass and requested the applicant to move an application in this regard. The applicant has moved an MEHROTRA application on 15.05.2018 after paying security money amounting to Rs.15,000/- which was contributed by them, to the Chief Passenger Transportation Manager, N.E. Railway, Gorakhpur for reserving 2^nd A.C. coach from Gorakhpur to Puri via Howrah on 21.05.2018. The journey was planned for movement through AC coach by Train No. 13020 DN (Bagh Exp.) from Gorakhpur to Howrah on 21.05.2018 & connecting by Train No. 12895 (Puri Exp.) from Howrah to Puri returning by Train No. 12896 (Puri Exp) Puri to Howrah and connecting 13019 (Bagh Exp) from Howrah to Gorakhpur on 27.05.2018. In the application dated 15.05.2018 moved by the applicant it was mentioned that the connecting train from Howrah was found to be weekly train and it was objected by Sr. Traffic Manager (Coaching) to change the other train having daily movement. Sri Shital Prasad (Guard) moved an application on 16.5.2018 also on behalf of others Guards for reserving Second AC coach, because applicant (herein) had mentioned incorrect Train No.12895 from Howrah to Puri on 22.5.2018, by Train No.18409 in place of Train No.12895. Accordingly the outward journey Ex Howrah to Puri & inward journey Puri to Howrah was arranged. Later on, it was detected by the vigilance that the required amount for the reservation of coach was neither asked by the Railway Administration hence not paid by the travelling Guards while reserving the coach. Thereafter office of the vigilance had issued a letter dated 14.2.2019 to the respondent no.6 for deducting the amount of Rs. 1,36,170/- from the salary of the applicant as the applicant has not completed the formalities of allotment of coach and they have also directed to recover the above amount from the applicant. The 10 fellow Guards of the applicant from Varanasi Division and Lucknow Division submitted their privilege pass for reserving the second AC coach, out of these eight travelled and despite contribution of share in security money of Rs.15000/-, the applicant was singled out and has to face consequences of recovery of the total money. The respondents have issued impugned charge sheet S.F.11 to the applicant on 26.2.2019, by way of the said charge sheet they proposed to make recovery of Rs.29,670/- as Empty Haulage Charges and Detention Charge of Rs.121500/- only from the applicant whereas 7 other Railway Employees (who have made application) and their family members also made journey with the applicant on 21.5.2018 and they were also issued their Privilege passes, but the respondents have proposed to made Total recovery of amounts Rs.1,36,170/- from the applicant. The respondents should have issued recovery equally from those who have submitted their Privilege pass and travelled in the Reserved Coach but the respondents have issued charge sheet against the applicant which is illegal and arbitrary. The impugned minor memorandum was issued by the respondent no.6, allegations were made for not paying the Detention charge Rs. 1,21,500/- and Empty Haulage charge amounting Rs.29,670/-. In addition allegations were made for the double use of privilege pass once in regular Train No. 15022/18409 Ex. Gorakhpur to Puri and also in reserve coach attached in Train No. 13020/18489. The applicant has given the reply dated 20.07.2019 to the charge sheet and denied the charges levelled against him (annexure A-11). The Disciplinary Authority did not consider the facts mentioned in the reply and passed the punishment order dated 31.07.2019, received by the applicant on 02.09.2019, imposing the punishment of one step down increment for three months with non-cumulative effect and also recovered the amount of Empty Haulage charges. The applicant has submitted that the Disciplinary Authority has admitted that according to Railway Note dated 09.08.2011, the Coach Detention charge was not to be payable by the applicant. According to impugned order dated 31.7.2019 which was received by the applicant 02.09.2019 and in which time of 45 days has been given to make appeal against the above order to the applicant but within time of appeal, the Empty Haulage charge amount of Rs.14,670/-has been recovered from the salary of the applicant in the month of September 2019. Thereafter, without any cause of notice and reasons, the respondents have again made recovery of Rs.40,500 + Rs.23,000/-total Rs.63,500/- from the salary of the applicant in the month of November 2019 and they further made recovery of Rs.40,500 + Rs.22,000/- total Rs.62,500/- from the pay of month of December 2019 and further they have made recovery of Rs.40,500/- in the month of January 2020. It is to point out here that the gross pay of the applicant was Rs.1,40,657/- in the month of January 2020 in which Rs.1,10,127/-has been deducted. Records show that the respondents have recovered the total amount of Rs.1,81,170 in the said case illegally and arbitrarily. As per the applicant, the recoverable amount comes to Rs. 1,36,170/-which should have recovered from the eight Guards including the applicant and the amount recoverable would be Rs.1,36,170/- divided by 8= Rs.17,021.25 (round off Rs.17,022) and the amount would be paid back to the applicant Rs. 1,36,170-Rs. 17,022= Rs.1,19,148+Rs.45,000= Rs.1,64,148. Aggrieved with the action of respondents, the applicant has filed the O.A. No. 1345/2019 which was withdrawn with liberty to file the appeal against the aforesaid impugned order. The applicant sent an appeal along with the Order of this Tribunal on 07.01.2020, but the Appellate Authority passed the order dated 22.01.2020. Aggrieved with the order of Appellate Authority, the applicant has filed a Revision who too has passed the same order upholding the order of Disciplinary as well as Appellate authority. The applicant has filed the present O.A., challenging the orders of Disciplinary, Appellate as well as Revisional Authority.

Learned counsel for the applicant submitted that the order passed by the Disciplinary, Appellate as well as Revisional Authority are totally unreasoned, arbitrary and was passed without considering the reply of the applicant to the great prejudice of the applicant.

The respondents have filed the counter reply stating therein that the applicant initiated a tour visit to Jaganath Puri along with his colleagues and for which he himself applied for booking of coach and all the formalities regarding the reservation of coach have been completed by the applicant. It is submitted by the respondents that during vigilance enquiry on 21.05.2018 in accw in train no. 13020 attached in coach no.97051 booking form was submitted by the applicant and the security amount was deposited by the applicant. The Empty Haulage charge rupees 29,670 and detention charges rupees 1,21,500 has not been deposited within the prescribed period before travelling. The applicant got his reservation through pass facility no. 674248 by train no. 15022 from Gorakhpur to Shalimar on 21.05.2018 and on 22.05.2018 in train no. 18409 from Howrah to Puri. The applicant without cancelling the aforesaid reservation, got reservation in Special Coach and travelled on the same pass. The action of the applicant has proved that he misused the railway pass facility which is serious breach of rules of railway department. In fact the tour for Jaganath Puri was initially planned by the applicant and accordingly for coach attachment the application was moved by the applicant before completing the formality for depositing the payable amount as per rules. The applicant has misused the railway pass facility and also caused financial loss to the Railway Administration. Thus, the Principal chief Operating Manager/Revisional Authority has considered the grounds of revision made by the applicant on 16.03.2020 and passed the order on the revision of the applicant that the order passed by the punishment authority and appellate authority remained as it is. The respondents have submitted that no injustice has been done with the applicant hence, they have prayed for dismissal of the O.A.

The submission of learned counsel for applicant is that the allegation levelled against the applicant is false. He along with other employees travelled through special coach on the basis of permission granted by the respondents and requisite fee has also been paid. The Disciplinary Authority while passing the order dated 31.07.2019 has mentioned in it that first allegation levelled against the applicant is not MEHROTRA proved and only irregularity was found in using the privilege pass. Only punishment for reducing one stage below for three months on temporary basis as well as recovery of Empty Haulage charge was imposed upon the applicant. The Appellate Authority exceeded its jurisdiction and without affording the opportunity to applicant, enhanced punishment for recovery of booking of coach also. The Revisional Authority has also not given opportunity to the applicant and has enhanced the punishment for recovery of detention charges also which is illegal. It is further argued that the principle of natural justice has not followed in the matter. It is a case of regular inquiry, but only a charge sheet SF-11 was issued against the applicant. It is next argued by learned counsel for the applicant that the irregularity said to have been caused on the part of applicant in using the privilege pass is not made out from the facts disclosed in show cause notice. The Disciplinary Authority illegally construed the explanation submitted by the applicant. It is also argued that number of employees has travelled in the special coach on the basis of single order passed by the respondents’ authority, but the punishment for recovery of charges has been imposed upon the applicant only. Thus, on this count also the impugned orders become illegal. Accordingly, referring to the aforesaid fact, prayer was made to allow the O.A. and set aside the impugned orders.

Learned counsel appearing for the respondents argued that the applicant has reserved one berth individually in different coach on the basis of same privilege pass and later on, applied for special coach depositing Rs.15,000/- as required for processing the matter. The applicant ought to have first cancelled the reservation already obtained for journey. Instead of applying for cancelling the reservation, the applicant travelled in the special coach from Gorakhpur to Howrah and thereafter to Puri. Thus, there is illegality caused by him in using privilege pass which also caused loss to the department. The punishments imposed by the Disciplinary Authority, Appellate Authority as MEHROTRA well as Revisional Authority are in accordance with law since loss has occurred to the department, thus, all the authorities have rightly directed for recovery of the Empty Haulage charge as well as detention charge. No illegality, infirmity or perversity can be attributed in the impugned orders. The O.A. lacks merit and is liable to be dismissed.

Heard the learned counsel for the parties, perused the pleadings on record and considered the rival submissions made by counsel for the parties.

Before proceeding in detail with regard to the submission raised across the bar, it will be better to quote the orders passed by the Disciplinary Authority, Appellate Authority as well as of the Revisional Authority, which are as under: -

In this matter, it is an admitted fact that one berth on the basis of privilege pass had already been reserved. Neither it was cancelled nor the applicant applied for cancellation of the same. Apart to this, the applicant travelled in the special coach in the same train up to Howrah on the basis of same privilege pass. The Disciplinary Authority while considering the reply submitted to SF-11 was of the opinion that the allegation of non-payment of coach detention charge is not proved as neither the department has informed to the applicant about the said charge nor any demand was made before booking the special coach. The Disciplinary Authority on the basis of irregular use of the privilege pass, allegation levelled against the applicant in this regard was found proved and imposed the punishment, as discussed hereinabove. Perusal of record also revealed that after issuing SF-11, the applicant had submitted his explanation and after considering the explanation, the Disciplinary Authority vide impugned order dated 31.07.2019 has imposed the punishment. Thus, it is evident that the procedure prescribed for minor punishment has been followed. As far as the submission raised on behalf of applicant for regular inquiry is concerned, since in the present matter entire allegation is levelled against the applicant on the basis of documentary evidence, thus, in our opinion the respondents have rightly followed the procedure prescribed for minor punishment. There was no necessity to inquire the matter as a major penalty charges.

The main question for consideration in this matter is that before enhancing the punishment by the Appellate Authority as well as Revisional Authority, opportunity of hearing has been given to the applicant or not and principle of natural justice has been followed or not. Perusal of entire records revealed that no such opportunity of hearing was given to the applicant before enhancing the punishment. In the order passed by the Disciplinary Authority, only recovery of Empty Haulage charge is mentioned whereas in the Appellate Authority order, charges for booking of the coach have also been added. Similarly, the Revisional Authority in the order beside the Empty Haulage charge, recovery of detention of charge was also imposed upon the applicant. Thus, we are of the view that the Appellate Authority as well as the Revisional Authority both has exceeded its jurisdiction. The principle of natural justice for providing the opportunity of hearing to the applicant before enhancing the punishment has not been followed. Thus, the orders passed by the Appellate Authority as well as of Revisional Authority to the extent of recovery of charges for booking of the coach as well as detention charges are illegal. Since the formality as required for giving the minor punishment is concerned, same has been followed, thus, it cannot be said at this stage that it is a case of ‘no evidence’. The allegation for irregular MEHROTRA use of privilege pass is apparent from the record itself.

In view of the above, O.A. is partly allowed. The orders of the Appellate Authority as well as Revisional Authority are quashed to the extent of recovery of charges for booking of the coach as well as detention charges. The amount recovered from the applicant with regard to the recovery of charges for booking of the coach as well as detention charges will be refunded along with interest of 6%, per annum if, not already refunded, on the same. This exercise will be completed by the respondents within a period of three months from the date of receipt of a certified copy of this order. All the pending MAs shall be deemed to have been disposed of. No order as to costs.