N. H. Khan aged S/o Late G. H. Khan v Union of India and others
Central Administrative Tribunal
LUCKNOW BENCH
29 May 2013
Original Application No. 88 of 2012
The Judgment was delivered by : D. C. Lakha (Accountant Member)
1. Under challenge are the orders of punishment dated 20.7.2010 (Annexure-1), 6.4.2011 (Annexure-2) and 3.1.2012 (Annexure-3) passed respectively by the respondents i.e. disciplinary, appellate and revisioning authorities. The quashing of these orders has been sought for different reasons. In addition, direction to the respondents has also been prayed for to restore the applicant on the pay which he was drawing at the time of imposition of penalty and pay arrears of salary with interest @ 12% per annum.
2. Since the facts about official capacity of the applicant, chargesheet dated 24.7.2007, authorities issuing the impugned orders are not disputed, so they need not be mentioned in detail here. These orders pertain to the period when the applicant was posted as Senior Section Engineer (W), Sultanpur, he was issued a chargesheet on 24.7.2007 (Annexure-4) to which he submitted detailed reply on 10.8.2007 stating that he was not responsible for accepting the sub-standard material (wood).
It was Assistant Divisional Engineer (ADEN), who was competent to pass the wood to be used. But this plea given by the applicant was not paid heed to by the disciplinary authority who passed the order dated 20.7.2010 in an arbitrary and illegal manner. It is alleged that this order was passed at the instance of vigilance wing as well as inquiry report, which was completed in a very hush-hush manner and penalty of reduction in two stages lower in the time scale for a period of three years; however after expiry of such period, the reduction will not have effect postponing future increment of his pay was imposed. It is also alleged that when a copy of inquiry report was also issued to the applicant calling upon him to show cause, the applicant submitted representation, which was not given due weightage before passing the final order. Therefore, he preferred an appeal on 3.11.2010, which remained pending for quite some time. The applicant had to submit a reminder on 4.4.2011. It is alleged by the applicant that the appellate authority too took very arbitrary approach and on the advice of Vigilance Organization, rejected the appeal with prejudiced mind on 6.4.2011.
Thereafter, the applicant had to approach the Revisioning authority on 16.5.2012, which has appreciated the grounds taken by the applicant during the course of inquiry and also flaws of inquiry coupled with perversity of findings of disciplinary as well as appellate authorities, but in the order passed by the Revisioning authority, just to satisfy the Vigilance Organization, instead of allowing the revision as such, has reduced the period of punishment from 3 years to 1= years.
3. The authorities have failed to consider that the Inquiry Officer has observed in the inquiry report that the charged employee did not demand for additional documents and he has also not filed defence brief; whereas the applicant has filed his defence statement on 27.10.2008. This shows that his defence statement was not considered at all. Thus, the inquiry report was vitiated. The inquiry report was completed only by taking into consideration the deposition of defence witnesses i.e. PW-1 and PW-2 in report.
These depositions have not been analyzed. The Inquiry Officer has concluded only on the basis of assumption as if the applicant was responsible for verification/checking of the quality of the woods. The applicant has been submitting at every level that the then ADEN, Sultanpur took advantage of his authority and asked the applicant to carry out the work as he (ADEN) has passed the wood Ex.P-6. He has also issued a certificate in the measurement book Ex.P-5 about passing of wood work and 100% test check of the items. The Inquiry Officer failed to take note of all these facts. In view of cl. 12.2.9 of NR Standard specifications, the applicant could not be held responsible for approving and for passing of wood because it was the duty of the ADEN to do the same as would be evident from Ex.P-5 and Ex.P-6. So, ADEN, Sultanpur was responsible. When the wood was passed by the ADEN, the applicant did not have any power to challenge the certification done by the ADEN, who is his senior officer.
It was not at all justifiable to make a complaint against ADEN. This was all submitted during the course of inquiry as well as in the representation in reply to the inquiry report, before disciplinary authority, but it seems that the disciplinary authority was under the pressure of ADEN. It is also pointed out that one Sri Sudhir Kholia the then JE, Sultanpur was also subjected to the departmental proceedings and ultimately he has been awarded only reduction to two stages below in the time scale for a period of six months; whereas the applicant has been punished on the higher side. So, the punishment given to the applicant is discriminatory and hence it is bad in the eye of law. The punishment order against the applicant has been passed with ulterior motive just to save the skin of ADEN. As per cl. 12.2.9 and 12.3.5 of NR Standard Specifications for checking and passing the material, it is ADEN, who is solely responsible, but the applicant has wrongly been charge-sheeted and punished.
4. The respondents have contested the O.A. by filing detailed Counter Reply. At the outset, in the preliminary remarks in the Counter Reply, it has been stated that the applicant in the year 2002-04 while working as Sr. Section Engineer (Works) at Sultanpur was entrusted with the supervision and control of the work of Annual Repair to worn out doors and windows of Staff quarters in Loco Colony under Assistant Divisional Engineer, Northern Railway, Sultanpur.
The contract of said work was awarded to M/s Laxmi Narain Tripathi . It was duty of the applicant to check the quality of the wood being supplied and utilized in the work in reference. The applicant admitted that he has sufficient knowledge and experience to distinguish between the various varieties of wood namely Deodar, Sal, Mango and Mahua etc. The applicant also accepted that the wood which was used in the said work of annual repair was not of the specification prescribed in the contract/agreement. When the wood was unloaded at the work site, it was duty of the applicant to check the quality of wood and if the quality of wood was sub-standard and was not of the prescribed specification, he should have rejected it at his own level and a written information in this regard should have been sent to ADEN, which he did not do. Hence, this act of omission/commission constitutes misconduct, proceedings under Railway Servants (Discipline & Appeal) Rules, 1968 were initiated and accordingly he has been suitably punished. To the chargesheet issued against the applicant, he gave his reply.
In defence evidence the inquiry officer has categorically stated that the defence did not demand any additional documents and also that the charged official did not examine himself as a defence witness. It has been denied in the Counter Reply that the inquiry was conducted in hush-hush manner. The applicant has been punished on the basis of inquiry report and the inquiry officer conducting the inquiry took into consideration all the facts of the case including representation of the charged official and accordingly the disciplinary as well as appellate authorities have passed the order, which are quite sustainable in the eyes of law. It has also been stated in the Counter Reply that the Revisioning authority did not fully exonerate the applicant from the charges and accordingly the punishment was reduced. The ADEN, Sultanpur had asked the applicant to carry out the work as he had passed the work (Ex.P-4).
5. The issuance of certificate in the MB about 100% test check by the then ADEN would not absolve the applicant of his responsibility of mentioning the wood that of Sal & Deodar and also mentioning of 20% test check by him in the measurement book. If the applicant found that the wood was sub-standard and was not according to prescribed specifications, then he should have rejected. The other allegations are in the O.A. namely that the applicant has been punished in order to shield the ADEN and that the applicant has been given discriminatory punishment as against Sri Sudhir Kholia etc. are all denied in the Counter Reply.
On behalf of the applicant, Rejoinder has been filed reiterating almost the same averments made in the O.A., denial of contentions raised by the respondents in the Counter Reply with special reference to applicant s responsibility to report the matter to higher officer when, as per rules, it was neither required, nor desirable.
6. We have heard the leaned counsel for both sides and have also perused the material available on record. Learned counsel for the applicant has emphasized, in his arguments, that as per order of revisioning authority, it is clearly noteworthy that as per para 12.2.09 and 12.3.5 of Northern Railway Standard Specification which are applicable for this contract also, the competence and responsibility for checking and passing the timber prior to its use entirely lies on the Assistant Engineer i.e. ADEN. As per these provisions, ADEN had passed the wood to be used for the work, then it was no responsibility for the applicant, who happens to be subordinate to the ADEN to check the same wood.
As per records i.e. material passing register and MB, 100% wood work prior to its use had been inspected and passed by the ADEN/SLN and the applicant was not supposed to reject the same or pass any adverse remarks as per Standard specifications. The counsel has also argued that as per rules the applicant was not supposed to report this matter, after ADEN had already passed the wood, to higher authorities. It is also contended by the counsel that since the responsibility of checking and passing the wood vested entirely with ADEN as per rules, which was discharged by him i.e. ADEN, the applicant was not at fault in this case. He has been punished for the guilt which he did not commit.
7. The respondents including revisioning authority passed the order of punishment, which is not sustainable. Learned counsel for the applicant has submitted that since the orders of punishment passed by the disciplinary and appellate authorities have been agitated in the revision, the same are merged in the order of revisionary authority. So, he would confine his arguments to the order passed by the revisionary authority. Learned counsel for the respondents, emphasizing on the points written in the Counter Reply, has contended that it was duty of the applicant to report back the fact of sub-standard quality of wood because he was man on the spot who was supposed to get the work executed.
The counsel has also added that the chargesheet issued against the applicant was strictly as per rules and he was given opportunity to which he responded by submitting the representation as well. After considering the facts and reply of the applicant the disciplinary authority, appellate authority and revisioning authority have passed the orders which are correct and are sustainable in the eye of law. In the order passed by the revisioning authority, the punishment has been reduced; that means the revisioning authority took note of the implied fact that the applicant certainly was negligent and hence the responsible for using sub-standard wood at the site.
8. We have given thoughtful consideration to the pleadings of both sides. The orders passed by the disciplinary & appellate authorities are merged in the order of revisioning authority. So, we would like to mainly concentrate on the order passed by the revisioning authority. It is clearly mentioned by the revisioning authority that as per Northern Railway Standard Specifications, the ADEN concerned was wholly responsible for passing the quality of wood to be used which in this case the concerned ADEN, Sultanpur did perform.
The applicant has been punished for the offence which he did not commit, nor the applicant was responsible for. When on the basis of evidence on record, the revisioning authority has appreciated this point, it is not understandable as to why the punishment was kept intact, even to the reduced extent in the order passed by him. This is the inherent inconsistency in this order. It is erroneous to impose any penalty when the applicant has not been found guilty of the charge by the Revisioning authority.
9. It is, thus, clear that the responsibility of the applicant, in this case, has not been clearly proved. Accordingly, we observe that the O.A. deserves to be allowed. Hence it is so ordered. The impugned orders are quashed and set-aside. The applicant shall be entitled to all consequential benefits treating as if no order of punishment was passed against him. No costs.
Application allowed
