Judgment:
1. The applicant, who is working as Lever man/Pointsman in Dankuni West Cabin under the Station Manager, Dankuni, Eastern Railway, has filed this O.A. challenging the order of the disciplinary authority dated 6.2.96 imposing a minor penalty of stoppage of increments on the applicant, the appellate order dated 15.10.96 and the order of the reviewing authority dated 3.2.97 rejecting the appeal/review petition filed by the applicant against the aforesaid penalty order.
2. The applicant was served with a charge-memo for imposition of minor penalty on 2.1.96 (Annexure-A). The imputation of misconduct against the applicant was to the following effect:-- "Averted collision between 3133 UP and C-275 took place at DKAE on 17.12.95 during his duty hours as he reported to ASM on duty West Cabin from L.C. Gate about clearance of fouling Mark between UP HBC and UP Reversible Line without physically checking the same although he was asked to do so by ASM on duty." The applicant gave his explanation on 15.1.1996 denying the charge (Annexure-B). The disciplinary authority thereafter held the applicant guilty of the charge and imposed a punishment of stoppage of increments for three years without cumulative effect vide Annexure-C. Being aggrieved, the applicant preferred an appeal raising various contentions on 29.8.96 (Annexure-D). The appellate authority by his order dated 15.10.96 (Annexure-E) rejected the appeal. Thereafter, the applicant preferred a review petition which was also rejected by the reviewing authority by his order dated 3.2.97 (Annexure-G). Challenging the aforesaid orders, the present O.A. has been filed praying for a direction to quash the same.
3. The respondents have contested the application by filing a written reply in which it is contended that in reply to the charge-sheet, the applicant confirmed that Train No. 3133 UP stopped at Signal No. 26 without infringing the fouling point/mark. Immediately after the applicant conveyed this message to the Cabin Assistant/Station Master, Dankuni, the ASM/Dankuni took initiative to pass another train through up reversible line. The applicant also mentioned this in writing in his reply to the charge-sheet that the engine and the two coaches of the train which stopped on red signal was beyond the signal post. The distance between signal post and the fouling mark is 154 metres and the length of the train with 9 coaches and 1 engine is about 218 metres.
The local train which was allowed to pass through the reversible line had to be stopped by the driver for fear of side collision. This incident was also witnessed by the passengers of the local train. It is also stated that no enquiry was held, because of the fact that the increment of the applicant was stopped for 3 years only which was a minor penalty, for which no enquiry is necessary. It is also stated that both the appellate authority and the reviewing authority on consideration of the appeal/review rejected the same and hence the present O.A. deserves to be dismissed.
4. The applicant has filed a rejoinder to this reply reiterating the facts stated in the O.A. and also mentioning that Mr. Robert Anthony, Cabinman, Dankuni West was also present during the incident, but his testimony was not taken and the punishment has been imposed without holding proper enquiry.
5. We have heard the learned Counsel for the parties and have gone through pleadings and the documents placed on record.
6. Mr. Sarkar, learned Counsel for the applicant has mainly contended that the applicant has been punished without holding any enquiry and without giving him opportunity to defend himself and thus the principles of natural justice were violated. He has also contended that as per Rule 11 of the Railway Servant (Discipline and Appeal) Rules, 1968, in the case of stoppage of increments, enquiry, as is done in the case of major penalty, has to be made by following the rules, but in this case no such enquiry has been made.
7. Mr. Bandopadhyay, learned Counsel for the respondents, on the other hand, has contended that the applicant has admitted the charge against him and as such there was no question of any enquiry. Besides, as per Rule 11(1)(b), regular enquiry was not necessary and the applicant had also never sought for a regular enquiry while replying to the charge-sheet or at any other point of time. In this case only minor penalty was imposed on the applicant for which no enquiry is necessary as per rules. He also defended the appellate order as well as the reviewing order.
9. About the basic facts there is no dispute between the parties. The charge against the applicant is that an accident was averted between 3133 UP and C-2755 on 17.12.95 when the applicant was on duty. It is alleged that the applicant gave clearance of fouling mark without physically checking the same although he was asked to do so by the ASM on duty. The applicant, however, denied the charge in his written defence and pointed out that on the relevant date he was advised to serve OP/T 27 to the driver of 3133 UP which stopped due to sudden failure of UP HBC advance starter No. 26. He went to the driver to serve the OP/T through the road just beside the UP HBC track and he was satisfied about the clearance of the fouling mark. On arrival of train engine it was found that the engine crossed the signal No. 26 with 3 coaches. The driver of the train refused to accept the OP/T 27 as the private number of cabin was not put on the OP/T. The on duty Gateman also came in the site from the gate. The applicant informed the C/SM that he did not put the private number and hence the driver refused to accept the same. After getting the private number he again rushed back to the driver for delivery and while going and coming back he found that the position of train engine of 3133 UP was at the same place. He also stated that the on duty Gateman also observed the incident.
10. The disciplinary authority, however, held that the applicant was guilty of the charge and in his remarks he noted as below: "The situation was witness by travelling passengers, also Motorman of C-275 started with proper signal lowering route indicator; so question of the moving on the same line of 3133 UP did not arise.
None of the cabin staff attended the site immediately after the incident, result they fled away. The mistake was mainly due to wrong information given by Sri Sajal Bagchi, C/man (applicant), hence his next increment is to be withheld for three years (NC)." 11. From a perusal of the order of the disciplinary authority, it is quite obvious that it is not a speaking order. The Railway Board in its circular dated 20.12.55 clarified as to how the disciplinary authority should pass his order even in a minor penalty proceeding. It is clearly laid down therein that the disciplinary authority should give brief reasons for its findings to show that it has applied its mind to the case. The disciplinary authority must not pass non-speaking and cryptic orders. The orders of imposition of penalty being appelable must be speaking orders. When the explanation of the delinquent has not been considered satisfactory, the competent authority must invariably record reasons for rejecting the explanation. Sketchy and cryptic orders have been held by the Courts of law to be non-speaking and as such illegal.
12. The disciplinary authority in this case recorded his finding in a lackadaisical manner holding the applicant guilty. He has not given any reason as to why he did not accept the explanation of the applicant. In a minor penalty proceeding where no enquiry is held, it is all the more necessary for the disciplinary authority to give his finding in a just and reasonable manner. Merely saying the delinquent is guilty of the charge will not serve the purpose. The disciplinary authority merely says that many passengers witnessed the incident. It is not known whether such passengers had given testimony in writing or were called by the disciplinary authority, the chance of which is very remote. It is also noted by the disciplinary authority that no one from the cabin was present during the incident and that they fled from the site whereas the applicant claimed that one Mr. Robert Anthony, Cabin man was present. There is nothing to show whether shri Anthony was questioned. In fact this plea was taken by the applicant in his rejoinder.
13. It is to be borne in the mind that punishment of stoppage of increments adversely affects an employee's career and therefore, it is the duty of the disciplinary authority that while inflicting such punishment in a minor penalty proceeding, he ought to be more cautious and careful in his approach in arriving at the findings. On a consideration of the facts and circumstances of this case, we are unable to uphold the order passed by the disciplinary authority as a speaking order/reasoned order.
14. Similarly, the appellate order is also very cryptic and non-speaking one without considering the various contentions raised in the memorandum of appeal. It merely states us follows: "The charged official, C/Man since reported that fouling mark was clear and subsequently the information proved to be wrong, the charge official cannot escape from the responsibility.
15. Under Rule 22 of the RS (DA) Rules, it is clearly laid down that the appellate authority must consider whether the procedure laid down in the rules has been complied with, whether the findings of the disciplinary authority are warranted on the evidence on record and whether the penalty was adequate, inadequate or severe. Obviously, the appellate order does not conform to these mandatory requirements of the rules and hence it cannot be sustained. In his appeal, the applicant has stated that while coming to the conclusion the disciplinary authority considered only the statement and plea of the Motorman of C275 UP and that the evidence of the Guard of 3133 UP and the staff of Dankuni West Cabin were completely ignored. But the appellate order does not deal with this contention.
16. Similarly, the order passed by the reviewing authority is also not speaking one and does not indicate the reasons of his findings.
17. No doubt, this was a case of a possible accident involving safety of a large number of passengers and others. The matter is of serious nature and if the applicant was guilty of negligence or otherwise, it has to be seriously dealt with and he should be punished as per rules.
But it should also has to be seen that while doing so, the charged official is not unnecessarily blamed or punished by a short cut process. It is well settled that in the case of minor penalty no enquiry is required, but this is a case where some statement/evidence is necessary to prove the guilt of the applicant, particularly when the applicant has denied the charge and cited some persons who were stated to be present at the spot and seen the occurrence. Be that as it may, it is for the appropriate authority to decide whether it is required to hold any further enquiry or not as per rules. But as it is, we are unable to uphold the orders passed by the disciplinary and the appellate authority or of the reviewing authority and the same are liable to be quashed for the reasons stated hereinabove.
18. Before we conclude, we may state that the learned Counsel for the applicant has placed reliance on two decisions--one of Principal Bench reported in 2001 (1) ATJ 14 (Shri B.B. Lal v. UOI) and the other of the Apex Court reported in 1989(1) ATR (SC) 50 (UOI v. E. Bashyan). But we find that both the cases relate to major penalty where enquiry is essential. It was held therein that copy of enquiry report is to be supplied to the delinquent before imposition of punishment. The aforesaid citations are of no help to the applicant. Although it is contended by the learned Counsel that for imposition of punishment of sloppage of increments, enquiry is necessary to be held, we are not inclined to accept this contention. In terms of Rule 11 of RS (DA) Rules, enquiry is essential in the case of punishment of stoppage of increments exceeding three years which is not the case here.
The learned Counsel for the respondents has also relied on a decision of the Apex Court reported in AIR 1976 SC 1080=1976 SLJ468 (SC) (K.L.
Sindhe v. State of Mysore). There it was held that the Court should not reappreciate the evidence in the matter of disciplinary proceedings.
There is no quarrel with this proposition of law which is well settled.
19. Accordingly, the O.A. is allowed. The orders of the disciplinary authority the appellate authority and the reviewing authority as aforesaid are hereby quashed. The matter is remanded back to the disciplinary authority to consider it afresh, keeping in view the contentions raised by the applicant in his reply to the show cause notice/charge-sheet, and to deal and dispose of the matter in accordance with law by a speaking/reasoned order.