1. At the outset, we may note that only legal contention pressed by learned Counsel for applicants was regarding the competency, authority & jurisdiction of authorities under the Construction Division to impose penalty on delinquents who hold lien in Open Line. Since issue raised in these two OAs is common on facts and law, same are being disposed of by present common order.
2. Applicant challenges orders passed on 27.12.2005 & 19.05.2006 whereby penalty of removal from service as imposed upon him by disciplinary authority, has been upheld. The facts stated are that he was appointed as Pharmacist Grade Rs. 950-1500/- on 16.06.1988 under Northern Railway, Ferozepur Division. Thereafter, he was transferred from Ferozepur Division to Deputy Chief Engineer (C) Northern Railway Jammu Tawi, a Construction Unit in January 1989 and remained there upto 27.12.2005. He was served with charge memorandum dated 29.04.1993 by Senior Civil Engineer (C) Northern Railway, Jammu Tawi alleging willful absence from duty without permission of competent authority and ignoring repeated directions to join duty. Inquiry officer was appointed after lapse of almost 10 years in January 2003. Inquiry Officer submitted his report dated 25.4.2005, copy of which was furnished on 03.05.2005. He submitted his representation dated 13.05.2005. Vide order dated 15.06.2005, Deputy Chief Engineer (C) Jammu Tawi inflicted punishment of removal from service with immediate effect. His representation was found to be unsatisfactory due to various reasons enumerated thereunder. His statutory appeal dated 29.07.2005 was also rejected by Chief Engineer/Construction, Northern Railway, Headquarters Office, Kashmere Gate, Delhi by passing detailed order. His revision petition was also rejected by CAO/C-II, which was communicated to him on 27.12.2005 (impugned communication). Thereafter he preferred another review petition dated 6.2.2006, which was returned stating that review petition had already been finalized by revisional authority and only mercy appeal can be entertained and that too by the President of India under Rule 31 of Railway Servants (Disciplinary & Appeal) Rules, 1968.
3. Validity of order dated 09.03.2006 passed by Revisional Authority, upholding punishment of removal from service, is challenged in present OA with consequential benefits.
4. Facts are that applicant was appointed as Casual Labour in 1979 and was conferred temporary status in 1984. He was regularized after being duly screened by Committee in 1996. While working as Trackman under SSE/E/P-Way-Ghziabad, he was charge sheeted vide memorandum dated 18.10.2003 alleging willful & unauthorized absence from duty from 21.4.2003 to 08.07.2003. He could not attend inquiry due to serious illness of his wife, who had been suffering from typhoid. Medical certificates were produced in support of said illness, yet ex-parte inquiry was conducted by inquiry officer. The penalty of removal from service was inflicted by disciplinary authority on 22.05.2004.
Statutory appeal filed by him was rejected. Thereafter, he preferred revision petition to Chief Engineer (C) Central Northern Railway, which had also been rejected by impugned communication dated 09.03.2006.
5. Basic legal contention raised in these two OAs is that as applicants were transferred to Construction Division, under Rule 16 of Railway Servants (Disciplinary & Appeal) Rules, 1968, the impugned penalty could not have been imposed by borrowing authority under Sub-rule 3(ii) of said rules. If the borrowing authority was of the opinion that any of the penalties specified in the Rules be imposed upon them, the disciplinary proceedings should have been transmitted to lending authority to pass such orders. In present cases, applicants' services were placed at the disposal of borrowing authority, namely Construction Division, which had no authority to inflict impugned penalty. Moreover, in the case of Surinder Kumar Kakkar in OA 1430/2006, appointment of inquiry officer was made apparently after a gap of 10 years. Charge memorandum was issued in 1993 while Inquiry Officer was appointed in 2003. Relying upon CVC Circular 3.3.1999, learned Counsel contended that model time limit prescribed therein for completing departmental inquiry had been grossly violated by respondents and, therefore, serious prejudice was caused. Applicants were neither involved in moral turpitude nor in heinous crime in any manner and impugned penalty of removal was disproportionate to the allegations made. Respondents violated the principles of natural justice. Respondents failed to show any sympathy towards applicant's serious illness and tragic deaths of his relatives due to terrorism prevalent in his area.
6. Learned Counsel further pointed out that in OA 1621/2006 respondents had acted arbitrarily inasmuch as in an identical circumstance, delinquent, namely Shri Naurang Lal (Annexure A-8) was imposed penalty to reduction at the lowest stage in the same time scale of pay for three years with cumulative effect. In that case, a major penalty charge-sheet was issued for his unauthorized absence w.e.f. 31.7.2002 to 13.5.2004. Penalty of removal inflicted initially had been modified vide appellate authority's order dated 17.5.2006. Shri Prakash Chander, learned Counsel contended that the period of absence in the present case in comparison to Naurang Lal was much lesser, yet extreme penalty was imposed upon him, which warrants interference by this Tribunal.
Reliance was placed of Circular dated 22.6.1993 dealing with fixation of pay on ad hoc promotions against ex-cadre posts and PS No. 9824 vide which DOP&T OM dated 29.4.1988 was endorsed and circulated by Railway Board. Strong reliance was placed on Constitution Bench judgment in 1967 SLR 228 (SC) State of Mandhya Pradesh v. Syed Qamarali to contend that since the order of punishment is void-abinitio, question of limitation would not arise. Further reliance was placed on Sri Krishna Singh v. Mathura Ahir and Ors. to contend that judgment or and order passed by a Court in defiance of and in disobedience of clear verdict of Supreme Court would be non est and absolutely without jurisdiction and violative of provisions of the Constitution of India. Such orders being absolutely non est and non-existent, it need not be set aside but would have to be completely ignored, as if no such orders were ever passed or existed. Lastly, reliance was placed on order dated 26.11.2001 in OA 1388/2001 in Roshan Lal Sagar v. Union of India whereby this Tribunal relying upon PS No.9824 (supra) dismissed the OA.7. The respondents contested the claim laid by filing detailed reply stating that after following the procedure as laid down in Railway Servants (Discipline & Appeal) Rules, 1968, the penalty of removal from service was imposed on the applicant (1430/2006) vide order dated 15.6.2005 for his unauthorized absence from duty from October 1991 without permission of competent authority and he had not resumed duty till the date of issue of charge-sheet, despite repeated reminders.
Thus, he failed to maintain devotion to duty and was lacking integrity.
He was transferred to Construction Project in the year 1988 though it was admitted that there had been some delay in processing the departmental proceedings but the facts remain that he failed to inform competent authority about his unauthorized absence from duty. He was given an opportunity of hearing to prove his innocence. Copy of inquiry report was duly served upon him and, in turn, he submitted his representation which was duly considered by disciplinary authority vide order dated 15.06.2005. His appeal as well as revision petition were also considered by competent authorities, who did not find any justification for revision of the orders inflicting penalty of removal.
He submitted certificates of his self-sickness etc. for first time in his appeal dated 29.7.2005. He was absent unauthorizedly from duty from October 1991 for which no reasonable explanation had been offered.
8. Similarly, detailed reply was filed in OA 1621/2006. It was pointed out that applicant remained absent from duty in various years for varying periods. Respondents tried to establish that he was a habitual offender by unauthorizedly absenting from duty. Medical certificate produced for the period from 28.8.2003 to 16.5.2004 was dated 28.10.2003. Said certificate was issued by Ayurvedic Janta Hospital, Mathura, whereas he was posted under SSE/C/P.Way/GZB and the address given by him was of Ghaziabad. In these circumstances, it raised serious doubts of its genuineness, contended learned counsel. Facts of the case of Naurang Lal are not identical in the facts of the present case, further contended learned counsel.
10. Before proceeding further, it would be expedient to notice Rule 16 of the said Rules. We may note, at the outset, that learned Counsel for respondents strongly advocated that the aforesaid rule is inapplicable in the facts and circumstances of present case. Reliance was placed on order dated 2.4.2007 in OA 1573/2006 in Iqbal Singh and Anr. v. Union of India and Ors. to contend that applicants, who had been transferred from Ferozepur Division to Construction Division cannot claim any relief under Rule 16 of the said Rules. Said Rule reads as under: (16) Provisions regarding officers borrowed from Central or State Governments etc.: - [1] Where the services of a Government servant from any Ministry or Department of the Central Government other than the Ministry of Railways, or a State Government, or an authority subordinate thereto, or of person from a local or other authority (hereinafter in this rule referred to as "the lending authority") are borrowed for appointment to a service or post under the Ministry of Railways, the authority which appointed him to that service or post (hereinafter in this rule referred to as "the borrowing authority") shall have the powers of the lending authority for the purpose of placing such Government service or persons under suspension or for conducting disciplinary proceedings against him; Provided that where an order suspending such Government servant or person is made or a disciplinary proceeding is conducted against such Government servant or person, the borrowing authority shall forthwith inform the lending authority of the circumstances leading to the order of suspension or, as the case may be, the commencement of the disciplinary proceedings against such Government servant or person.
[2] In the light of the findings in the disciplinary proceeding conducted against such Government servant or person: (i) If the borrowing authority is of the opinion, that any of the minor penalties, specified in the rules by which such Government servant or person is governed should be imposed on him, it may after consultation with the lending authority, pass such orders on the case as it deems necessary, in accordance with the said rules; Provided that in the event of a difference of opinion between the borrowing authority and the lending authority, the services of such Government servant or person shall be replaced at the disposal of the lending authority; (ii) If the borrowing authority is of the opinion that any of the major penalties specified in the rules by which such Government servant or person is governed should be imposed on him, it shall replace his services at the disposal of the lending authority and transmit to it the proceedings of the inquiry and thereupon the lending authority may pass such orders thereon as it may deem necessary.
11. Respondents produced before us a revised transfer order dated 28.07.1988 vide which applicant in OA 1430/2006 was transferred from Ferozpur Division to Jammu Tawi. Earlier to it, Divisional Personnel Officer, Northern Railway, Ferozpur had issued order dated 15.06.1988, stating that said applicant had been selected by the Railway Recruitment Board, Jammu at panel No. 100 dated 13.06.1987 as Pharmacist grade Rs. 1350-2200/- and posted at Divisional Hospital, Ferozpur against the post vacated by Om Prakash Singh on his transfer to DRM, Moradabad. Similarly, in OA 1621/2006 respondents placed on records various documents, which we have perused.
12. Shri Prakash Chandra, learned Counsel for applicant, on the other hand, reiterated that Construction Organization had no permanent strength of its own in Groups 'C' & 'D' and borrowed such staff from Divisions and other Departments of Railways for execution of construction projects and staff so selected retained their lien in their parent Division/Department on open line for purpose of promotion, pay fixation, etc. including disciplinary proceedings.
13. The legal issue which requires consideration thus in the present case is whether Rule 16 of aforesaid Rules has any application in the facts and circumstances of present case. We may note that it was the only legal contention pressed before us. We have carefully perused aforesaid provisions of Rule and bestowed our thoughtful consideration to the issue raised. In our considered view, provisions of aforesaid rule are inapplicable in the given facts and circumstances for various reasons, namely, that Clause [1] of said Rule is applicable where the services of a Govt. servant from any Ministry or Department of the Central Government other than the Ministry of Railways etc. are borrowed. The term other than the Ministry of Railways signifies that said provisions would be inapplicable when officials of Ministry of Railways are borrowed/transferred either by a Division or Section/Station. Aforesaid term "other than Ministry of Railways" is very crucial and indicates the intention behind said rule. When a person from open line is transferred/posted to Construction Organization within inter as well as intra Division or inter/intra-zonal Railways, said provisions would not be attracted.
Mere posting, in such circumstances, irrespective of whether it is an open line or Construction Division, would not make any material change to initiate or impose punishment upon Railway servants. As long as the terms other than Ministry of Railways remains on the statute book, applicants cannot contend that merely because they are posted/transferred to a Construction Division, since their holding lien in the Open Line, the senior officials under whom they are presently posted would be denude the power to initiate and take disciplinary action. The concept that they are holding lien in parent Department i.e. Open Line would not embrace that authority in parent Department alone competent to take disciplinary action irrespective of the fact where such misconduct is committed. We must remember that they are first of all "Railway servants", the term which has been defined in Railway Servants (Disciplinary & Appeal) Rules, 1968 as well as various other Rules in vogue. As per definition Clause 2(e) of said Rule Railway Servant includes any such Railway servant on Foreign Service or whose services are temporarily placed at the disposal of any other Department of the Central/State Governments or any other authority.
Therefore, we find the basic fallacy in the arguments raised by applicants.
14. On merits, we may note that it has not been disputed that applicants remained unauthorizedly absent for a very long duration which was totally unjustified. In these circumstances, Judgment relied upon are inapplicable, as they were rendered in different facts and circumstances of the case than the one available in the present case.
15. In view of the discussion made hereinabove and finding no merits in the claim laid, OA Nos. 1430 and 1621 of 2006 are dismissed. No costs.