Bablu Kumar v. The Union Of India

Judgment

6. The Union Of India through the General Manager, N.E., Railway, Gorakh- The Divisional Railway Manager, N.E. Railway, Varanasi. The A.D.R.M., N.E.Railway, Varanasi. The Chief Mechanical Manager, N.E. Railway, Gorakhpur. The Senior Divisional Mechanical Engineer, N.E. Railway, Varanasi. The Coaching Depot Officer, N.E. Railway, Manduadih. ... ... Respondent/s : :

Mr. Ajay Kumar, Advocate Mr. Ratnesh Kumar, Advocate ====================================================== Appearance : For the Petitioner/s For the Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI) Date : 30-08-2022 Heard learned counsels for the respective parties.

2. In the instant petition, petitioner has assailed the order dated 19.12.2016 passed in O.A. No.050/00615/2014 by Central Administrative Tribunal, Patna Bench (for short “the Tribunal”) and further impugned orders of the official respondents dated

27.07.2012, 01.07.2013 and 22.06.2015. The petitioner while working as a Technician Grade II applied for three days leave with effect from 14.08.2011 on the score that he and his wife were suf- Patna High Court CWJC No.5731 of 2017 dt.30-08-2022 fering from certain illness. His wife was suffering from kidney disease, thereafter, on 18.08.2011 to 18.02.2012, he remained absent and further on 19.02.2012 to 04.08.2012. For the aforesaid alleged misconduct, petitioner was subjected to disciplinary proceedings in framing article of charges. The petitioner remained ex parte in departmental inquiry. The disciplinary authority imposed penalty of removal from service on 27.07.2012. Feeling aggrieved and dissatisfied with the removal order he preferred appeal and revision. In both the proceedings, he had suffered orders on 01.07.2013 and 22.06.2015 respectively. Further, ag- grieved by the orders of the official respondents, he has invoked remedy under Section 19 of the Administrative Tribunal Act be- fore the Tribunal in which also he has suffered an order on

19.12.2016 in O.A. No. 050/00615 of 2014. Hence the present petition.

3. Learned counsel for the petitioner vehemently contended that certain lacunaes have been pointed out to the appellate authority as to how the inquiry proceedings are vitiated and the same has not been examined by the appellate authority and so also he has not considered Rule 22 and 24 of Railway Servants (Disci- pline and Appeal) Rules, 1968 (for short “Rules 1968”). Thereafter, the revisional authority have also not appreciated that Patna High Court CWJC No.5731 of 2017 dt.30-08-2022 appellate authority’s order is not a speaking order and so also it is not in terms of Rule 22 and 24 of Rules 1968, therefore, both the orders of the appellate and revisional authority are liable to be set aside and petitioner be heard by the appellate authority while providing oral hearing in terms of Rule 24.

4. Per contra, learned counsel for the respondent resisted the aforesaid contentions and submitted that there is no lacunaes in any of the orders of the official respondents, and so also the Tribunal’s order. After due examination of the memorandum of appeal, the appellate authority has passed order while confirming the imposition of penalty of removal from service and similarly revisional authority has passed the order, hence no interference is called for.

5. Heard learned counsel for the respective parties.

6. The petitioner while working as a Technician Grade II, he had applied for three days leave on 14.08.2011. He is stated to have met with an accident on a motorcycle and his wife was suffering from kidney disease. After availing leave, he failed to seek for extention leave, on the other hand he remained absent from 18.08.2011 to 18.02.2012 and further on 19.02.2012 to

04.08.2012. On the alleged misconduct of remaining unauthorized absent, he was subjected to disciplinary proceedings in framing Patna High Court CWJC No.5731 of 2017 dt.30-08-2022 article of charges and it was an ex parte inquiry. It was concluded in imposition of penalty of removal from service. Petitioner has exhausted the remedy of appeal and revision under Rules 1968. The Tribunal has not appreciated the contents of rejection of pe- titoner’s appeal and revision as both the orders were not speaking orders and are not in terms of Rule 22 and 24 of Rules 1968, fur- ther Rule. 25. Extract of appellate and revisional authorities orders reads as under: “iwoksZRrj jsyos dk;kZy; ejsiz@;kaf=d@okjk.klh la-;k@lekfM@vuq@eMqokMhg@995 fnukad 01-07-13 Jh ccyw dqekj iq= Jh cukjlh izlkn HkwriwoZ dSjst rdAA fo"k; % nh?kZ vkjksi i=&;k@lekfM@vuq- @e.MqokMhg] fnukad 24-12-11 }kjk tkjh lela[;d ,uvkbZih 27-07-12 lUnHkZ % vejsiz egksn; dks izLrqr vkidks vihy ftlij lhMhvks dk;kZy; esa izkfIr fnukad& 30-10-12 vkidh lanfHkZr vihy ij vejsiz egksn; }kjk fuEu fu.kZ; fn;k x;k gS A ftls vkidks voxr djk;k tkrk gS& ^^vihy ,oa yxk;s x;s nLrkostksa dk v/;;u fd;kA izkFkhZ us 18-08-11 ls 18-02-12 ,oa 19-02-12 ls 04-08-12 rd iVuk esa izkbosV MkDVjksa ds v/khu bykt ,oa 06-08-12 ls 02-10-12 rd jsyos gkLihVy egqnk ds lVhZfQdsV dh izfrfyfi layXu dh gSA izkFkhZ us viuh vihy esa dgk gS fd uflZax gkse esa ,MfeV gksus ds dkj.k i=ksa dks izkIr u dj ldkA ijUrq ,l,Q 5 pktZ”khV fnukad 24-12-11 ftls 26-12-11 dks Hkstk x;k] okil izkIr ugha gqbZ ,oa blds ckn Patna High Court CWJC No.5731 of 2017 dt.30-08-2022 gh ds i= okil vk;sA fnukad 13-7-12 dks Hkstk x;k i= ij fjekdZ ds lkFk okil vk;k ^Refused’ vr% izkFkhZ }kjk fn;s x;s rF;ksa ^fd izkFkhZ uflZx gkse esa ,fMfeV gksus ds dkj.k mDr i=ksa dks izkIr u dj ik;k* ls eSa larq’V ugha gwWaA izkFkhZ blds iwoZ Hkh vuqifLFkr jgus dk vknh gSA vr% vuq”kklfud vf/kdkjh }kjk yxk;s x;s n.M dks ;Fkkor j[kk tk; A ** g0@& ¼ ch-ih- flag½ ofj’B e.My ;kaf=d bath0 lekfM iw0m0js0] okjk.klh Sr. Divi. Mech. Engg. N.E.R., Varanasi izfrfyfi %&1- lh-Mh-vks]@eaMqokMhg dks lwpukFkZ iszf’kr deZpkjh ds ?kj ds irs ij jftLVMZ Mkd ls i= HksatsA 2- dk;kZ/kh@ ;kaf=d @ dSMj 3- dk;kZ/kh@ ;kaf=d @ fcy dks lwpukFkZ oe;kb@lekfM@okjk.klh” “iwoksZRrj jsyos la-;k@lekfM@vuq@1067 dk;kZy; ejsiz@;kaf=d@okjk.klh fnukad 22-06-15 Jh ccyw dqekj iq= Jh cukjlh HkwriwoZ dSjst rdfuf”k;u @eaMqokMhg xkM+h [kkuk [kxkSy iVuk ¼ fcgkj½ fo"k; % nh?kZ vkjksi i=&;k@lekfM@vuq- fnukad 24-12-11 ds fo:) fjfotu vihy ds laca/k esaA lUnHkZ % eq;kbZ @xksj[kiqj dks izLrqr mijksDr fjfotu vihy ij eq;kb dk vkns”k A vki ds iqujh{k.k vihy ij eq;kbZ egksn; us vki ij yxk;s x;s vkjksi] vuq”kklfud vf/kdkjh }kjk fn;s Patna High Court CWJC No.5731 of 2017 dt.30-08-2022 x;s n.M ,oa vihyh; vf/kdkjh }kjk fn;s x;s fu.kZ; dk lw{e v/;;u fd;k x;kA fnukad 01-01-08 ls 04-07-12 rd ds vki ds vuf/kd`r vuqifLFkfr dk voyksdu fd;k rFkk fuEu fu’d’kZ ikfjr fd;k A ^^fnukad 01-01-08 ls 4-7-12 rd dh vuqifLFkfr] dqy 1374 fnu vuf/kd`r vuqifLFkfr ¼i`’B 37&38 ij yxs fjdkMZ½ ls irk pyrk gS fd Jh ccyw dqekj vknr~u vius dk;Z ls yacs&yacs le; ds fy, vuqifLFkr jgrs gS] bl dsl esa Hkh ,slk gh gqvk gS] fn;s gq, n.M dks ;Fkkor j[kk tkrk gSA** g0@& oe;kbZ@lekfM@okjk.klh izfrfyfi %&1- lh-Mh-vks]@eaMqokMhg dks lwpukFkZ ,oa i`@63 ds lkFk dsl okil A 2- ejsiz@;ka@dSMj dks lwpukFkZ oe;kb@lekfM@okjk.klh”

7. Both the orders are not in terms of Rule 22, 24 and 25 of Rules 1968. The aforesaid Rules reads as under: “R. 22. Consideration of appeal.-(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Rule 5 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accord- ingly. (2) In the case of an appeal against an order im- posing any of the penalties specified in Rule 6 or en- hancing any penalty imposed under the said rule appel- late authority shall consider- (a) whether the procedure laid down in these rules has been complied with, and if not. whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice: (b) whether the findings of the disciplinary au- thority are warranted by the evidence on the record; Patna High Court CWJC No.5731 of 2017 dt.30-08-2022 (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass (i) confirming, enhancing, reducing or setting aside the penalty; (ii) remitting the case to the authority which im- posed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circum- stances of the case: Provided that:- (i) the Commission shall be consulted in all cases where such consultation is necessary; (ii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of Rule 6 and an inquiry under Rule 9 has not already been held in the case, the appellate authority shall, subject to the provisions of Rule 14, itself hold such inquiry or direct that such in- quiry be held in accordance with the provisions of Rule 9 and thereafter, on a consideration of the pro- ceedings of such inquiry pass such orders as it may deem fit; (iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of sub-rule (1) of Rule 6 and an inquiry under Rule 9 has already been held in the case, the appellate authority shall, make such or- ders as it may deem fit, and (iv) subject to the provisions of Rule 14, the ap- pellate authority shall- (a) where the enhanced penalty which the appel- late authority proposes to impose, is the one specified in clause (iv) of Rule 6 and falls within the scope of the provisions contained in sub-rule (2) of Rule 11; and (b) where an inquiry in the manner laid down in Rule 9, has not already been held in the case, itself hold such inquiry or direct that such in- quiry be held in accordance with the provisions of Rule 9 and thereafter, on a consideration of the pro- ceedings of such inquiry, pass such orders as it may deem fit; and (v) no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be, Patna High Court CWJC No.5731 of 2017 dt.30-08-2022 in accordance with the provisions of Rule 11 of mak- ing a representation against such enhanced penalty. (3) In appeal against any other order specified in Rule 18, the appellate authority shall consider all the circumstances of the case and make such orders as it may deem just and equitable. R. 23. Implementation of orders in Appeal.-The au- thority which made the order appealed against shall give effect to the orders passed by the appellate author- ity. R. 24. Special provisions for non-gazetted staff.-(1) Where the penalty of dismissal, removal, compulsory retirement, reduction or withholding of in- crement has been imposed, appellate authority may, at its discretion and if it considers it necessary, give the non-gazetted railway servant a personal hearing.before disposing of the appeal. At this personal hearing the railway servant may be accompanied, if he so chooses, by another railway servant employed on the same rail- way administration; office of the Railway Board, its at- tached office or subordinate office, as the case may be, in which the appellant was or is working or an official (who is not a legal practitioner) of a Railway Trade Union recognised by the Railway Administration on which the appellant was or is employed. (2) A Group Railway servant including a skilled artisan, who has been dismissed, removed or compul- sorily retired from service, may after his appeal to the appropriate appellate authority has been disposed of, and within two months thereafter, apply to the General Manager for a revision of the penalty imposed on him. In this application, he may, if he so chooses request the General Manager to refer the case to the Railway Rates Tribunal for advice before he disposes it. On receipt of such a request, the General Manager shall refer the case to the Chairman, Railway Rates Tribunal, for ad- vice sending him all relevant papers: Provided that the procedure mentioned in tins sub-rule, shall not apply in cases the General Manager or the Railway Board is the appellate authority. (3) A Class IV Railway servant, who has been dismissed, removed or compulsorily retired from ser- vice may, after his appeal to the appropriate appellate authority, has been disposed of, and within two months thereafter apply to the Divisional Railway Manager Patna High Court CWJC No.5731 of 2017 dt.30-08-2022 and where he is not under the the control of the Divi- sional Railway Manager, to the concerned inter Ad- ministrative Grade Officer, if there is none, failing winch, to the concerned Junior Administrative Grade Officer, for a revision of penalty imposed on him, the Divisional Railway Manager, the Inter Administrative Grade Officer or the Junior Administrative Grade Offi- cer, as the case may be, shall thereafter review the case in accordance with said rules and pass orders as he may think fit: Provided that the procedure mentioned in this sub-rule, shall not apply in cases where the Divisional Railway Manager, the Inter Administrative Grade Officer or the Junior Administrative Grade Officer, as the case may be, or a higher authority, is the appellate authority. PART VI REVIEW R. 25. Review.-(1) Notwithstanding anything con- tained in these rules - (i) the President, or (ii) the Railway Board, or (iii) the General Manager of a Zonal Railway or an au- thority of that status in any other Railway Unit or Ad- ministration, in the case of a railway servant serving under his or its control, or (iv) the appellate authority not below the rank of a Deputy Head of Department or a Divisional Railway Manager in cases where no appeal has been preferred, (v) any other authority not below the rank of a Deputy Head of Department of a Divisional Railway Manager in the case of a railway servant serving under its con- trol: may at any time, either on his or its own motion or otherwise, call for the records of any inquiry and re- view any order made under these rules or under the rules repealed by Rule 29 and may, after consultation with the Commission where such consultation is nec- essary- (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order or to any other authority directing such au- Patna High Court CWJC No.5731 of 2017 dt.30-08-2022 thority to make such further inquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit: Provided that (a) where it is proposed to impose any of the penalties specified in clauses (v) to (ix) (both inclu- sive) of Rule 6 or to enhance the penalty imposed by the order under review, to any of the penalties speci- fied in those clauses, subject to the provisions of Rule 14, where no inquiry in the manner laid down in Rule 9, has already been held, no such order shall be passed except after consultation with the Commission where such consultation is necessary: (b) subject to the provisions of Rule 14, the re- viewing authority shall (i) where the enhanced penalty which the re- viewing authority proposes to impose, is the one speci- fied in clause (iv) of Rule 11; and (ii) where an inquiry in the manner laid down in Rule 9, has not already been held in the case, itself hold such inquiry or direct that such in- quiry be held in accordance with the provisions of Rule 9 and thereafter, on a consideration of the pro- ceedings of such inquiry, pass such orders as it may deem fit: Provided further that no power of review shall be exer- cised under this rule (i) by the appellate or reviewing authority where it has already considered the appeal or the case and passed orders thereon; and (ii) by a reviewing authority unless it is higher than the appellate authority where an appeal has been preferred or where no appeal has been preferred and the time limit laid down for review by the appellate au- thority has expired. . Note- This Proviso shall not apply in case of review by the President: Provided further that no action under this Rule shall be initiated by (a) an appellate authority other than the President, or (b) the reviewing authorities mentioned in item (v) of sub-rule (1) (i) more than one year after the date of the order to be reviewed in cases where it is proposed to impose or enhance a penalty, or modify the order to the detri- ment of the railway servant; or Patna High Court CWJC No.5731 of 2017 dt.30-08-2022 (ii) more than one year after the date of the or- der to be reviewed in cases where it is proposed to re- duce or cancel the penalty imposed or modify the order in favour of the railway servant. Note - (1) The time limits for review of cases mentioned in this proviso shall be reckoned from the date of issue of the orders proposed to be reviewed. In cases where original order has been upheld or modified or set aside by the appellate authority, the time-limit shall be reckoned from the date of issue of the appel- late orders. (2) When review is undertaken by the Railway Board or the General Manager of a Zonal Railway or an authority of the status of a General or Zonal Man- ager in any other Railway Unit or Administration, when they are higher than the appellate authority, and by the President even when he is the appellate author- ity, this can be done without restriction of any time limit. (3) No proceeding for review shall be com- menced until after (i) the expiry of period of limitation for an ap- peal, or (ii) the disposal of the appeal, where, any such appeal has been preferred: Provided that the provisions of this sub-rule shall not apply to the review of punish- ments in case of railway accidents.”

8. In the light of these facts and circumstances both the orders are not in terms of cited provisions so also they are not speaking orders. If the administrative authorities passed quasi judicial orders, those orders were subjected to judicial review, therefore, those orders must be speaking orders in terms of relevant statutory provision.

9. In the light of these facts and circumstances, the petitioner has made out a prima facie case so as to interfere with the orders of the appellate and revisional authorities. Both the Patna High Court CWJC No.5731 of 2017 dt.30-08-2022 orders dated 01.07.2013 and 22.06.2015 and Tribunal’s order dated 19.12.2016 are set aside. Matter is remanded to the appellate authority to consider the petitioner’s appeal afresh in terms of Rule 22 and 24 within a period of four months from the date of receipt of this order. In the meanwhile, petitioner is at liberty to file additional memorandum of appeal, if any. If such additional memorandum of appeal is filed, the appellate authority is hereby directed to consider the existing memorandum of appeal and the additional memorandum of appeal in accordance with law.

10. Writ petition is allowed in part. (P. B. Bajanthri, J) ( Rajiv Roy, J) GAURAV S./- AFR/NAFR CAV DATE Uploading Date Transmission Date

08.09.2022