K. Ayyappan Achari Vs. Union of India Represented by Secretary to Government of India and Others - Court Judgment

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CourtCentral Administrative Tribunal CAT Ernakulam
Decided OnJul-26-2012
Case NumberOriginal Application No. 653 of 2011
JudgeP.R. RAMAN, JUDICIAL MEMBER
AppellantK. Ayyappan Achari
RespondentUnion of India Represented by Secretary to Government of India and Others
Advocates:For the Applicant: Ms. Shameena Salahudheen, Advocate. For the Respondents: Thomas Mathew Nellimoottil, Advocate.
Excerpt:
k. george joseph, administrative member 1. the applicant's seniority is maintained in the cadre of technician (train lighting) on 02.12.2005. but right from the beginning (1984) he had been working as carpenter, which was an ex-cadre post. the respondents were directed to grant protection of pay last drawn by him in carpenter grade-i while placing him as technician grade-i in the electrical wing, vide order dated 12.09.2007 in o.a. no. 121/2006. he was charge sheeted for declining to accept the relieving order and for remaining absent from duty from 22.02.2007 onwards. o.a. no. 718/2008 filed by the applicant was disposed of by this tribunal as under: "3. without going into the merits of the case, learned counsel for applicant has submitted that since the applicant is retiring on 31.05.2010, he is prepared to report for duty to senior section engineer (tl/tvc) provided the enquiry is completed within a reasonable period. 4. in view of the above position, we direct the respondents to allow the applicant to report to sse (tl/tvc) as technician grade i, tl and p. immediately. since the applicant is to retire on 31.05.2010, the enquiry now initiated against him vide annexure a-16 memorandum no. v/e 150/1/3/dar/ka dated 30.07.2008 shall be completed within a period of three months from the date of receipt of a copy of this order. the enquiry officer shall ensure day to day proceedings are held in this matter so that the enquiry can be completed as early as possible. the applicant shall fully cooperate with the inquiry officer in concluding the enquiry within the aforesaid time limit. 5. with the above direction, oa is disposed of. there shall be no order as to costs." 2. on conclusion of the enquiry, as directed in the aforesaid order, the disciplinary authority imposed a penalty of reduction of his pay by one stage upto his retirement with recurring effect which was reduced to 7 days from 19.05.2010 with non-cumulative effect. the same was confirmed by the revisional authority. aggrieved, the applicant has filed this o.a. for the following reliefs: (i) to call for the records leading to annexure a-1, a-2 and a-3 and to quash a-1 to a-3 being illegal and arbitrary; (ii)to direct the respondents to grant due promotions to the applicant and to fix his pay and pensionary benefits as if annexures a-1, a-2 and a-3 were not in existence and to grant him all consequential benefits including arrears and interest thereon; (iii)to pass any other orders which this hon'ble court may deem fit in the facts and circumstances of the case; (iv)to award exemplary costs of these proceedings to the applicant. 3. he retired on 31.05.2010. 4. the applicant contended that annexure a-1 penalty order was issued by the 7th respondent, who was not the competent authority to award a punishment of reduction of pay on the applicant. since the charge that the applicant did not accept the relieving letter could not be proved, the consequent charge against him that he absented himself from duty also cannot stand the test of law. the respondents issued a corrigendum making amendments in annexure a-10 charge sheet which is a grave error. annexure a-7 is a letter addressed to dpo/tvc and not a relieving order, relieving the applicant, addressed to him. the letters between two officials are not relieving orders. the parent cadre of the applicant was electrical power wing where he was working as on 19.02.2007. 5. the respondents in their reply statement submitted that the applicant himself has stated in o.a. no. 718/2018 that he was prepared to report for duty as he was retiring on 31.05.2010. but he did not have any intention to report for duty immediately thereafter or before 31.05.2010. he was engaged as khalasi in the electrical department of trivandrum division with effect from 28.02.1980. while he was working as temporary electrical khalasi, he was posted as carpenter purely on ad hoc basis without any claim for continuity or seniority in the promoted post. when he was relieved from the post of carpenter, he refused to accept the relieving order. therefore, it was displayed on the notice board duly witnessed by two employees as per rules. in his representation dated 02.05.2008 (annexure a-12 in o.a. no. 718/2008) the applicant had stated that "..... was forcefully relieved from the power side to train lighting department. after receiving the relieving order, i approached the authorities......." his averment is now contrary to the above factual position. his allegation of not allowing him to discharge his duties is a false allegation without any evidence to corroborate it. the applicant was charge-sheeted by the concerned authority for his unauthorised absence under the railway servants discipline and appeal rules, 1968. as per schedule of disciplinary powers issued by the railway board as per notification dated 10.03.2003, group-b officers are empowered to impose a penalty of reduction to a lower stage. the assistant electrical engineer is empowered to issue the order of penalty in the instant case. the appellate authority after considering his appeal, duly taking into consideration of the fact that he was in the verge of retirement, reduced the penalty to reduction of pay with effect from 19.05.2010 till his retirement. the applicant was supposed to report for duty in the office on 22.02.2007 in the normal course. instead, he failed to report for duty from 22.02.2007 onwards. for this act of misconduct, he had not submitted any lawful excuse. the parent cadre of the applicant is the train lighting wing in the electrical department. he has not submitted any material evidence to show that his parent cadre is power wing in the electrical department. 6. in the rejoinder, the applicant submitted that right from the beginning his stand was that he was never communicated the relieving order. 7. in the additional reply statement, the respondents submitted that non- reporting for duty and non-submission of pension papers were as decided by the applicant himself. the fact of relieving the applicant is further proved as at annexure a-4, which has not been disputed by the applicant. 8. we have heard ms. shameena salahudheen, learned counsel for the applicant and mr. thomas mathew nellimoottil, learned counsel for the respondents and perused the records. 9. the applicant could not submit any proof to show that his parent cadre is power wing in the electrical department. there is nothing illegal in issuing corrigendum to a charge sheet to correct certain mistakes. the authority of the 7th respondent to impose the penalty order on the applicant is established by the respondents. in annexure r-3, the applicant himself was admitted that he was relieved. he has not challenged annexure r-4 which clearly stated that he refused to accept the relieving order and that a copy of relieving order was displayed on the notice board. in the order dated 12.09.2007 in o.a. no. 121/2006, the applicant's pay as carpenter grade-1 was protected while placing him in the electrical wing. o.a. no. 718/2008 was disposed of on the basis of his submission that he was prepared to report for duty to senior section engineer (tl/tvc). but on his own risk, he did not report for duty. he also did not take care to submit his pension papers. 10. in view of the above, we find that the o.a is without any merit. accordingly, it is dismissed. however, this order will not stand in the way of sanctioning pension to the applicant once the pension papers are submitted by him. no costs.
Judgment:

K. George Joseph, Administrative Member

1. The applicant's seniority is maintained in the cadre of Technician (Train Lighting) on 02.12.2005. But right from the beginning (1984) he had been working as Carpenter, which was an ex-cadre post. The respondents were directed to grant protection of pay last drawn by him in Carpenter Grade-I while placing him as Technician Grade-I in the Electrical Wing, vide order dated 12.09.2007 in O.A. No. 121/2006. He was charge sheeted for declining to accept the relieving order and for remaining absent from duty from 22.02.2007 onwards. O.A. No. 718/2008 filed by the applicant was disposed of by this Tribunal as under:

"3. Without going into the merits of the case, learned counsel for applicant has submitted that since the applicant is retiring on 31.05.2010, he is prepared to report for duty to Senior Section Engineer (TL/TVC) provided the enquiry is completed within a reasonable period.

4. In view of the above position, we direct the Respondents to allow the applicant to report to SSE (TL/TVC) as Technician Grade I, TL and P. immediately. Since the applicant is to retire on 31.05.2010, the enquiry now initiated against him vide Annexure A-16 memorandum No. V/E 150/1/3/DAR/KA dated 30.07.2008 shall be completed within a period of three months from the date of receipt of a copy of this order. The Enquiry Officer shall ensure day to day proceedings are held in this matter so that the enquiry can be completed as early as possible. The applicant shall fully cooperate with the Inquiry Officer in concluding the enquiry within the aforesaid time limit.

5. With the above direction, OA is disposed of. There shall be no order as to costs."

2. On conclusion of the enquiry, as directed in the aforesaid order, the Disciplinary Authority imposed a penalty of reduction of his pay by one stage upto his retirement with recurring effect which was reduced to 7 days from 19.05.2010 with non-cumulative effect. The same was confirmed by the revisional authority. Aggrieved, the applicant has filed this O.A. for the following reliefs:

(i) To call for the records leading to Annexure A-1, A-2 and A-3 and to quash A-1 to A-3 being illegal and arbitrary;

(ii)To direct the respondents to grant due promotions to the applicant and to fix his pay and pensionary benefits as if Annexures A-1, A-2 and A-3 were not in existence and to grant him all consequential benefits including arrears and interest thereon;

(iii)To pass any other orders which this Hon'ble Court may deem fit in the facts and circumstances of the case;

(iv)To award exemplary costs of these proceedings to the applicant.

3. He retired on 31.05.2010.

4. The applicant contended that Annexure A-1 penalty order was issued by the 7th respondent, who was not the competent authority to award a punishment of reduction of pay on the applicant. Since the charge that the applicant did not accept the relieving letter could not be proved, the consequent charge against him that he absented himself from duty also cannot stand the test of law. The respondents issued a corrigendum making amendments in Annexure A-10 charge sheet which is a grave error. Annexure A-7 is a letter addressed to DPO/TVC and not a relieving order, relieving the applicant, addressed to him. The letters between two officials are not relieving orders. The parent cadre of the applicant was Electrical Power Wing where he was working as on 19.02.2007.

5. The respondents in their reply statement submitted that the applicant himself has stated in O.A. No. 718/2018 that he was prepared to report for duty as he was retiring on 31.05.2010. But he did not have any intention to report for duty immediately thereafter or before 31.05.2010. He was engaged as Khalasi in the Electrical Department of Trivandrum Division with effect from 28.02.1980. While he was working as Temporary Electrical Khalasi, he was posted as Carpenter purely on ad hoc basis without any claim for continuity or seniority in the promoted post. When he was relieved from the post of Carpenter, he refused to accept the relieving order. Therefore, it was displayed on the notice board duly witnessed by two employees as per rules. In his representation dated 02.05.2008 (Annexure A-12 in O.A. No. 718/2008) the applicant had stated that "..... was forcefully relieved from the power side to Train Lighting Department. After receiving the relieving order, I approached the authorities......." His averment is now contrary to the above factual position. His allegation of not allowing him to discharge his duties is a false allegation without any evidence to corroborate it. The applicant was charge-sheeted by the concerned authority for his unauthorised absence under the Railway Servants Discipline and Appeal Rules, 1968. As per schedule of disciplinary powers issued by the Railway Board as per notification dated 10.03.2003, Group-B officers are empowered to impose a penalty of reduction to a lower stage. The Assistant Electrical Engineer is empowered to issue the order of penalty in the instant case. The Appellate Authority after considering his appeal, duly taking into consideration of the fact that he was in the verge of retirement, reduced the penalty to reduction of pay with effect from 19.05.2010 till his retirement. The applicant was supposed to report for duty in the office on 22.02.2007 in the normal course. Instead, he failed to report for duty from 22.02.2007 onwards. For this act of misconduct, he had not submitted any lawful excuse. The parent cadre of the applicant is the Train Lighting Wing in the Electrical Department. He has not submitted any material evidence to show that his parent cadre is Power Wing in the Electrical Department.

6. In the rejoinder, the applicant submitted that right from the beginning his stand was that he was never communicated the relieving order.

7. In the additional reply statement, the respondents submitted that non- reporting for duty and non-submission of pension papers were as decided by the applicant himself. The fact of relieving the applicant is further proved as at Annexure A-4, which has not been disputed by the applicant.

8. We have heard Ms. Shameena Salahudheen, learned counsel for the applicant and Mr. Thomas Mathew Nellimoottil, learned counsel for the respondents and perused the records.

9. The applicant could not submit any proof to show that his parent cadre is Power Wing in the Electrical Department. There is nothing illegal in issuing corrigendum to a charge sheet to correct certain mistakes. The authority of the 7th respondent to impose the penalty order on the applicant is established by the respondents. In Annexure R-3, the applicant himself was admitted that he was relieved. He has not challenged Annexure R-4 which clearly stated that he refused to accept the relieving order and that a copy of relieving order was displayed on the notice board. In the order dated 12.09.2007 in O.A. No. 121/2006, the applicant's pay as Carpenter Grade-1 was protected while placing him in the Electrical Wing. O.A. No. 718/2008 was disposed of on the basis of his submission that he was prepared to report for duty to Senior Section Engineer (TL/TVC). But on his own risk, he did not report for duty. He also did not take care to submit his pension papers.

10. In view of the above, we find that the O.A is without any merit. Accordingly, it is dismissed. However, this order will not stand in the way of sanctioning pension to the applicant once the pension papers are submitted by him. No costs.