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Judgment
Delivered By:- Hon’ble Mr. Justice Rajiv Joshi, Member (J)
By means of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicant has prayed for quashing the impugned orders dated 16.12.2019, 16.03.2020 and 26.06.2020 passed by the respondent nos. 3, 2 and 1 respectively. Prayer has also been made for a direction to the respondents to reinstate the applicant in service with all consequential benefits.
The facts of the case, in brief, are that while the applicant was on duty on 01.10.2019, an incidence took place. As alleged by the applicant, when she entered in her office i.e. injection clinic to resume her duties, some employees namely Subhash Chandra Attendant, Sonam, Suraj and others were occupying her seat and when she requested to vacate her seat they started passing absurd comments and assaulted her. Thereafter, she made a complaint to the competent authority. But, vide order dated 01.10.2019 she was placed under suspension which she refused to receive on 03.10.2019. She also made a complaint to the disciplinary authority on 04.10.2019 about the aforesaid incidence (Annexure A-4 of OA). Thereafter, the respondent no. 4 decided to conduct fact finding enquiry in the matter and on 15.10.2019, Dr. Usha S.P.Yadav, Sr. D.M.O. issued a letter calling large number of staff on 16.10.2019 to attend the fact finding enquiry on the complaint of Miss Modesta Topno (Annexure No.A-7 of OA). Vide letter dated 19.10.2019, the applicant was also asked to attend the fact finding enquiry before committee on 21.10.2019 (Annexure No.A-8 of OA) and pursuant to the aforesaid letter, the applicant gave her statement on 21.10.2019 which was recorded by the committee. Thereafter, the fact finding committee submitted its report on 13.11.2019 (Annexure No.A-9 of OA) and vide order dated 16.12.2019, the respondent no. 4 exercising the powers under Rule 14(ii) Railway Servant (D&A) Rules, 1968 imposed the penalty of removal from service upon the applicant (Annexure A-1 of OA). Being aggrieved by the aforesaid order, the applicant preferred an appeal dated 28.01.2020 before the respondent no. 3 (Annexure No.A-10 of OA) who vide order dated 16.03.2020 reduced the penalty of removal from service to compulsory retirement (Annexure No. A-2 of OA). The applicant thereafter filed revision on 23.04.2020 before the respondent no. 2 who uphold the order passed by Appellate Authority.
Being aggrieved by the aforesaid orders dated 16.12.2019, 16.03.2020 and 26.06.2020, the applicant has filed the instant original application on following grounds: -
(i). The nature of the allegation lodged by the applicant was requiring full-fledged inquiry by conducting a common inquiry including the complaint of applicant but the Disciplinary Authority in arbitrary and illegal manner dispensed with the departmental inquiry that too without recording any reason.
It is further stated that for conducting a proceeding under Rule 14(ii) of the Railway Servant (D & A) Rules, 1968, it is a precondition that the competent authority must record reason for the same whereas, in the instant case neither the case of applicant fall under the category initiate special proceeding nor any reason has been recorded for the same.
(iii). It is also contended that the Disciplinary Authority, appellate authority and Revisionary Authority have failed to consider the rule position and arbitrarily held the applicant guilty of charges and finally imposed penalty of compulsory retirement from services.
Hence, prayer has been made that the impugned orders may be quashed and the relief should be granted by allowing the OA.
Upon notice, the respondents have filed counter in which they denied every averments made in the OA and its annexures.
(i). They say that the applicant was not performing her duties sincerely and she used to quarrel and abused the Matron and Hospital Attendant due to which the work of Injection Room was badly affected and upon receipt of complaint, the disciplinary authority suspended the applicant vide order dated 01.10.2019.
(ii). The respondents also contended that the applicant refused to receive the suspension order which again showed her misconduct.
(iii). The respondents further stated that that since the inquiry conducted against the applicant was fact finding inquiry, hence, when the statement of all other concerned staff were recorded, the presence of the applicant was not required and she was called on another date.
(iv). It is further stated that before passing the impugned order of removal from service, reasonable opportunity was given to the applicant to defend herself.
(v). The respondents further stated that although the Appellate Authority found the applicant guilty, he took a lenient view and her punishment of removal from service was converted into compulsory retirement under Rule 11(VII) of the Rules.
(vi). Lastly, the respondents contended that the orders passed by the disciplinary authority, appellate authority and the Revisionary authority are just, proper and in accordance with the rules and law and do not call for any interference of this Tribunal.
The applicant has filed rejoinder affidavit reiterating her stand as in the OA. However, the applicant stated though the applicant appeared in the fact finding inquiry but the competent authority deliberately dispensed the proceeding contemplated under rule 9 of Railway Servants (Discipline and Appeal) Rules 1968 and proceeded under rule 14(II) of Railway Servants (Discipline and Appeal) Rules 1968, which was illegal and against the principle of natural justice. It is also stated that the proceedings under rule 14(II) is coming under clause (b) of the second proviso of Article 311(II) and accordingly in order to dispense with the inquiry, there must exist a situation which makes the holding of inquiry contemplated by Article 311(II) “not reasonably practicable”. It is further stated that the competent authority must record the reasons for its satisfaction that it is reasonably practicable to hold the inquiry and if the reasons are not recorded in writing, the orders dispensing with the inquiry following with the order of penalty would be void and unconstitutional. Thus, the action against the applicant does not sustain in the eyes of law.
We have Shri Ashish Srivastava, learned counsel for the applicant and Shri K.K. Ojha, learned counsel for the respondents and perused the record.
Learned counsel for the applicant argued that the facts of the case does not attracts for initiating proceeding under rule 14(ii) of the Railway Servant (D & A) Rules, 1968 because none of the conditions involved in the case of applicant which may give a right to disciplinary authority to adopt the special procedure and dispense with the normal rules of departmental inquiry under Article 311 of the Constitution of India. Learned counsel for the applicant also argued that the respondent no. 4 arbitrarily surpassed the procedure of Rule 9 of (D&R) Rules and even did not record any reason that it is not practicable to conduct inquiry separately.
Learned counsel for the applicant emphasized that when the department is able to conduct a fact finding inquiry it is not understand as to why the regular departmental inquiry contemplated under Rule 9 on the basis of principle of natural justice has been dispensed with whereas the nature of the allegation was requiring for conducting a full- fledged inquiry by conducting a common inquiry including the complaint of applicant. The condition required for conducting a proceeding under Rule 14(ii) of the Railway Servant (D & A) Rules, 1968, it is a precondition that the competent authority must record reason for the same. However, in the instant case neither the case of applicant fall under the category neither to initiate special proceeding nor any reason has been recorded for the same. Thus, the action of the respondents is totally arbitrary, illegal and violative of rules and law.
In support of his arguments, learned counsel for the applicant during the course of arguments has placed before us Rule 14 of Railway Servants (Discipline and Appeal) Rules 1968. He also relied upon the order dated 02.12.2021 passed by this Tribunal in OA No. 340/2021 – Nitish Kumar Vs. U.O.I & Ors and the order dated 09.10.2023 passed in OA No. 203/2017 – Rajendra Vs. U.O.I & Ors.
On the other hand, Shri K.K. Ojha, learned counsel for the respondents argued that the applicant was placed under suspension w.e.f. 01.10.2019 but she refused to receive the same on 03.10.2019 which shows her gross indiscipline and disobedience of the orders. He further argued that a proper procedure was adopted and keeping in view the negligence towards duty and violent behaviour of the applicant, it was not possible to hold inquiry and as such a deterrent action was taken by the Disciplinary Authority to hold a fact finding inquiry. Learned counsel for the respondents drew our attention to Annexure CR-2, which is Fact Finding Inquiry Report dated 13.11.2019, and emphasized that during the fact finding inquiry, statement of ten officials as well as the applicant was recorded and the applicant accepted that she slapped and assaulted Smt. Modesta and Smt. Neera in her defence. He also argued that before passing the impugned order of removal from service, reasonable opportunity was given to the applicant to defend herself. However, the Appellate Authority after considering the points raised by the applicant in her appeal has reduced the punishment of removal from service to compulsory retirement which has been upheld by the Revisionary Authority after following the principle of natural justice and thus prayed that the OA should be dismissed being devoid of merit.
We have considered rival submissions and have gone through the record as well as the judgments cited by the applicant’s counsel.
Admittedly, the applicant was placed under suspension w.e.f. 01.10.2019 which she refused to receive the same on 03.10.2019. Therefore, considering the past history of negligence towards duty and violent behaviour of the applicant, the Disciplinary Authority decided to hold a fact finding inquiry. We have gone through the fact finding inquiry report dated 13.11.2019 (Annexure CR-2 of Counter Reply). A perusal of the aforesaid report reflects that after analyzing the statement of ten officials on 04.11.2019,14.10.2019, 16.10.2019 and 21.10.2019. the Committee came to the following conclusion : -
“Conclusion:
(1)- On the analysis of records, statements of the staff, it is proved that she had assaulted Smt. Modesta Matron, Smt. Neera HA & Sri Subhash HA and used abusive language against them & SC/ST community. Her behaviour and conduct is not warranted from a person who belongs to a noble profession.
(2)- She had refused to receive the SF-1 in spite of repeated request by her seniors & even by RPF Team and refused to leave her work place which is required under the rules. A person who is placed under suspension is required to leave his/her work place immediately. The copies of SF-1 were pasted on the entrance of Injection Room and her residence also. But she is still coming to her work place and interfering in the day to day work. It amounts to gross indiscipline and misconduct.
As such, it is proved beyond doubt that she is guilty on both counts.
(1)Assault upon her colleagues, Smt. Modesta, Smt. Neera and Shri. Subhash HA and abusing them & use of derogatory words against SC/S community.
(2)Not receiving the SF-1 and daily coming to her work place has also amount to gross misconduct and indiscipline on her part."
And taking into account the entire facts and circumstances of the case as well as the fact finding inquiry report, the Disciplinary Authority passed the following order : -
“ उपर्युक्त तथ्यों पर विधिवत विचार करने के बाद यह निष्कर्ष निकला है कि आप किसी भी प्रकार अपने व्यवहार में परिवर्तन करने के लिए तैयार नहीं हैं। रोगियों की सुरक्षा के लिए आप संभावित खतरा बन गई हैं। आपकी उपस्थिति में केंद्रीय चिकित्सालय के कर्मचारी अपने आप को असुरक्षित महसूस करते हैं, क्योंकि आपका व्यवहार एवं कृत्य अप्रत्याशित है। रोगियों एवं कर्मचारियों की सुरक्षा की दृष्टि से तथा अस्पताल को शांतिपूर्वक एवं सुचारू रूप से चलाने के लिए आपके जैसे व्यक्ति को अस्पताल से दूर रखा जाना आवश्यक है।
अस्पताल परिसर में अशांति और शोर शराबा करने और डाक्टरों एवं चिकित्सा कर्मचारियों का ध्यान मरीजों की देख भाल से हटाने की बजाय अस्पताल परिसर को शांत बनाए रखना वांछनीय एवं आवश्यक दोनों हैं और डाक्टरों एवं चिकित्सा कर्मचारियों का परम कर्तव्य है।
आपके द्वारा गाली गलौज करने, स्टाफ पर हमला करने और उनको धमकाना, जबरदस्ती आफिस आने और अटेंडेंस रजिस्टर पर हस्ताक्षर करने लेकिन निलंबन पत्र लेने से मना करने, अपने सीनियर्स की जानबूझ कर अवज्ञा करने तथा एस.सी. / एस.टी कम्युनिटी के विरुद्ध कर्मचारियों में नफरत तथा शत्रुता पैदा करनेका उपर्युक्त आचरण रेल सेवक के लिए अशोभनीय है। जाँच एवं अनुशासनात्मक कार्रवाई फाइनलाइज करने के लिए प्रशासन का सहयोग न करने का इतिहास रहा है। आपके इस सारे आचरण से यह स्पष्ट होता है कि आपके आचरण ने अस्पताल में काम करने के महौल को खराब किया है और आपके सहकर्मियों के मन में भय उत्पन्न किया है तथा असुरक्षा की भावना उत्पन्न की है जिस कारण वे अपनी ड्यूटी कुशलतापूर्वक नहीं कर पा रहे हैं। अनुशासनहीनता का यहकृत्य रेल सेवा (आचरण) नियमों 1966 के नियम 3(1) (iii) का उल्लंघन है।
मैं आश्वस्त हूँ कि आपके आचरण ने आपके सहकर्मियों के मन में भय पैदा किया है और इसे नजरअंदाज नहीं किया जा सकता है। आपने अपने उपर्युक्त कार्य द्वारा अस्पताल की छवि को धूमिल करने का भी प्रयास किया है। आपके धोर दुर्व्यवहार में आपकी प्रवृत्ति को ध्यान में रखते हुए आपको सेवा में बनाए रखना कतई वांछित नहीं है। मेरा विचार है कि आपको रेल सेवा में बनाए रखने से अन्य कर्मचारियों में गलत संदेश जा सकता है जो कि बिल्कुल वांछित नहीं है। इस प्रकार के मामलों में रेल विभाग आरोप पत्र जारी करके रेल सेवक (डी. एंड ए) नियम 1968 के अनुसार जाँच नहीं करा सकता है। इसलिए रेलवे सेवक (डी. एंड ए) नियम 1968 के नियम 9 के अनुसार जाँच कराना तार्किक रूप से व्यवहार्य नहीं है। अतः रेलवे सेवक (डी.एंड ए.) नियम 1968 के नियम 14 (ii) के अंतर्गत प्रदत्त शक्तियों का प्रयोग करते हुए मैंने आपको तत्काल प्रभाव से "सेवा से निष्कासित करके दंडित करने का निर्णय लिया है।"
The aforesaid order of the Disciplinary Authority has been modified by the Appellate Authority to the extent of compulsory retirement which was confirmed by the Reviewing Authority.
We have also perused Rule 14 of Railway Servants (Discipline & Appeal) Rules 1968 which is analogous to Article 311(2) of the Constitution of India, wherefrom the power has been drawn by the Disciplinary Authority to pass the impugned order of removal from service. The said rule reads as under: -
'14. Special procedure in certain cases
Notwithstanding anything contained in Rules 9 to 13:
(i). where any penalty is imposed on a Railway servant on the ground of conduct which has led to his conviction on a criminal charge; or
(ii). where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rule; or
(iii). where the President is satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules;
The disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit.......”
Thus, Rule 14(ii) itself mandates that the Disciplinary Authority shall record his reasons in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules.
In the case of Union of India and Anr. Vs. Tulsiram Patel – AIR1985 SC 1416, the Constitutional Bench of the Apex Court in paragraphs 130, 133, 134 and 135 has held following: -
“130.The condition precedent for the application of Clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by Clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English dictionary "practicable" means "capable of being put into practice, carried out in action, effected, accomplished, or done, feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform: capable of being put into practice, done or accomplished: feasible". Further the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner: to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by Clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.... The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that Clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty.
133.The second condition necessary for the valid application of Clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional.
134.It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of Clause (b) of the second proviso. For instance, it would be no compliance with the requirement of Clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry....
135.The constitutional requirement in Clause (b) is that the reason for dispensing with the inquiry should be recorded in writing. There is no obligation to communicate the reason to the government servant. At Clause (3) of Article 311 makes the decision of the disciplinary authority on this point final, the question cannot be agitated in a departmental appeal, revision or review. The obligation to record the reason in writing is provided in Clause (b) so that the superiors of the disciplinary authority may be able to judge whether such authority had exercised its power under Clause (b) properly or not with a view to judge the performance and capacity of that officer for the purposes of promotion etc. It would, however, be better for the disciplinary authority to communicate to the government servant its reason for dispensing with the inquiry because such communication would eliminate the possibility of an allegation being made that the reasons have been subsequently fabricated. It would also enable the government servant to approach the High Court under Article 226 or, in a fit case, this Court under Article 32. If the reasons are not communicated to the government servant and the matter comes to the court, the court can direct the reasons to be produced, and furnished to the government servant and if still not produced, a presumption should be drawn that the reasons were not recorded in writing and the impugned order would then stand invalidated. Such presumption can, however, be rebutted by a satisfactory explanation for the non-production of the written reasons.”
Further, in the case of Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Ltd. Haldia and others - AIR 2005 Supreme Court 4217, the Apex Court has held following: -
“Taking of appropriate action in exceptional circumstances is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. Normally, it is the officer on the spot who is the best judge of the situation and his decision should not be interfered with lightly. In certain cases, the exigencies of a situation would require that prompt action should be taken and suspending (a workman) would not serve the purpose and sometimes not taking prompt action might result in the trouble spreading and the situation worsening and at times becoming uncontrollable. Not taking prompt action may also be construed by the troublemakers as a sign of weakness on the part of the authorities and thus encourage them to step up their activities or agitation. Where such prompt action is taken in order to prevent this happening, there is an element of deterrence in it but this is an unavoidable and necessary concomitance of such an action resulting from a situation which is not of the creation of the authorities.”
From the aforesaid citations, it is clear that while exercising the power under Rule 14(ii) by the Disciplinary Authority, the Disciplinary Authority has to record reasons. From the impugned order passed by the Disciplinary Authority, which is quoted above in paragraph 13, it is clear that while coming to the conclusion, the Disciplinary Authority has recorded its reason. Therefore, there is strict compliance of Rule 14(ii) of Railway Servants (Discipline & Appeal) Rules 1968 including Article 311 of the Constitution of India by the Disciplinary Authority. Moreover, the order of the Disciplinary Authority has been modified by the Appellate Authority to the extent of compulsory retirement.
We have also gone through the orders cited by the applicant’s counsel in the case of Nitish Kumar Vs. U.O.I & Ors and Rajendra Vs. U.O.I & Ors (Supra) and find that these two cases are entirely on different facts and are not applicable in the present case. In the case of Nitish Kumar (Supra), although the applicant preferred an appeal but during the course of final arguments, the learned counsel for the applicant not-pressed the said appeal. Further, In the case of Rajendra Kumar (Supra), the applicants were dismissed from service and they have also not exhausted the remedy of appeal. But, in the present case, the applicant preferred an appeal against the order of Disciplinary Authority where the order of the Disciplinary Authority has been modified by the Appellate Authority to the extent of compulsory retirement and the same was upheld by the Reviewing Authority. Therefore, we do not find any infirmity in the action of the respondents.
It is noted here that ordinarily, the compulsory retirement is not considered a punishment, but if the service rules governing service of the applicant permits to be imposed by way of punishment, it may be done after holding the enquiry. Therefore, the Appellate Authority imposed the punishment of compulsory retirement upon the applicant and preserved her right for pension and gratuity etc. Furthermore, the punishment awarded to the applicant cannot be said to be shockingly disproportionate to the proven misconduct. Rather, considering the past services of the applicant, a sympathetic view has been taken in the matter by the Appellate Authority, which was confirmed by the Revisionary Authority. The above view finds support from a recent judgment of Hon’ble Apex Court 08.05.2024 passed in Civil Appeal No. 6135/2024 – Union of India & Ors. Vs. Santosh Kumar Tiwari.
In view of the foregoing discussions and the judgment of Hon’ble Apex Court (Supra), we do not find any ground for the applicant to get any relief and the present original application is liable to be dismissed. Accordingly, the original application is dismissed.
All associated Misc. Applications stand disposed off.
No order as to costs..