Union Of India & Anr. vs Sh.Kalyan
2011 Latest Caselaw 2499 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) Nos.23792-93/2005

%                           Date of Decision: 10.05.2011

Union of India & Anr.                                       .... Petitioners

                         Through Mr.Rajesh Kumar Singh & Poonam
                                 Singh, Advocate for the Petitioners

                                    Versus

Sh.Kalyan                                                  .... Respondent

                         Through Mr.H.P.Chakravarthi, Advocate for the
                                 Respondent



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.      Whether reporters of Local papers                   YES
        may be allowed to see the
        judgment?
2.      To be referred to the reporter or not?              NO
3.      Whether the judgment should be                      NO
        reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioners, Union of India, through the General Manager,

Northern Central Railway & Anr., have challenged the order dated 1st

August, 2005 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi in OA No.2496 of 2004, titled as

'Sh.Kalyan v. Union of India, through General Manager & Anr.'

allowing the OA of the respondent and setting aside the order dated

10th October, 2003 imposing the major penalty of withholding of

increments with cumulative effect for three years and order dated

19th February, 2004 passed in appeal dismissing the appeal of the

respondent.

2. Brief facts to comprehend the disputes between the parties are

that the respondent was appointed as Gangman and on 30th

January, 1981, he was posted as a Gateman at Gate No.144/C at

Railway Station Ajayab Pur.

3. On 24th February, 2001, the respondent was on duty from

1600 hours to 2400 hours, i.e. from 4.00 pm to 12.00 am. After

12.00 am, another Gateman, namely Sh.Tehsil, was to be on duty

from 0000 hours to 0800 hours on 25th February, 2001. The other

Gateman, Sh.Tehsil, did not come for duty, consequently, the

respondent could not leave the gate No.144/C and hence, he did not

get relieved.

4. Therefore, the respondent had also performed the duty of the

other Gateman, Sh.Tehsil, who remained absent without any cogent

reason and performed continuous duty from 1600 hours to 2400

hours i.e. from 4.00 pm to 12.00 am on 24th February, 2001, which

was his duty, and from 0000 hours to 0800 hours i.e. 12.00 am to

8.00 am on 25th February, 2001, which was the duty of the other

Gateman, Sh.Tehsil.

5. Though the respondent had done his duty and also the duty of

another gateman who remained absent without seeking leave, the

respondent received charge sheet dated 9th/17th April, 2001

stipulating that the respondent kept on performing the duty at Gate

No.144/C from 0000 hours to 0800 hours on 25th February, 2001 in

place of Sh.Tehsil without informing anyone and while performing

the duty in place of Sh.Tehsil, he slept, due to which Train No.5707

was detained from 2.51 to 2.53 minutes AJR; Train No.3111 was

detained from 3.17 to 3.20 minutes AJR; Train No.5205 was

detained from 3.30 to 3.45 minutes TOS and Train No. DH/3 was

detained for 2 minutes for caution at Dadri and in the

circumstances, the respondent acted negligently and caused losses.

Reliance was placed on the written report sent by Sh. Pravesh

Vishwakarma, Junior Engineer, Railway, dated 25th February, 2001

and thus, it was concluded that the respondent had acted in a

manner not becoming of a Railway Employee/Servant.

6. The respondent contended that it was Sh.Tehsil who was at

fault, as he did not attend his duty without seeking any leave or

giving any intimation. However, regardless the respondent did not

leave the gate and rather performed the duty of Sh.Tehsil. The

respondent also categorically denied that while performing the duty

of Sh.Tehsil from 0000 hours to 0800 hours on 25th February, 2001

he had slept and that the detentions of the four trains for 3 to 2

minutes was not for the want of the hand signals of the respondent,

but was on account of the fact that no talk with the cabin switch

man was possible as the telephone was not in working order.

7. The respondent contended that he had sought a copy of the

fact finding enquiry report, but it was not supplied to him. The

respondent also demanded a copy of the caution order of 24th

February, 2001 of Ajayabpur Railway Station and the other report

pertaining to the detention of the trains by a written request on 5th

October, 2001. According to the respondent, though a copy of the

report dated 25th February, 2001 was given to him, however, neither

the alleged caution order dated 24th February, 2001, nor the logbook

or any other relevant record detailing or reflecting that the trains

were detained at Gate No.144/C at Railway Station Ajayabpur were

given to him. The respondent also made a grievance that the enquiry

was not conducted fairly and in accordance with law and as per

procedure laid down under Rule 9 of the Railway Servants (Discipline

& Appeal) Rules, 1968. Relying on the level crossing rule S.R.

18.06/2, it was asserted that if the Station Master is unable to

contact the Gateman on duty then a caution order is to be issued by

the Station Master to the driver of the first Train who has to awaken

the Gateman/Gangman to get his signature and then the same is to

be intimated to the Station Master on walkie talkie.

8. The respondent categorically asserted that all the Trains which

were alleged to have been detained, in fact, passed through the said

gate after seeing the signal given by the respondent, which is

reflective of the fact that he was not sleeping. The allegation

regarding the four trains which allegedly got detained from 3.21

hours till 3.45 hours, the respondent contended that it is highly

unlikely that for such short intervals the respondent would have

gone to sleep again and again. During the enquiry, the respondent

also alleged that it was not possible to communicate with the next

cabin switchman as the telephone was not working and neither the

switchman was called for the verification of this fact, nor any other

record was produced which reflected that the train was detained on

account of not getting the proper signal from the respondent since

the respondent was sleeping on the duty.

9. The enquiry officer, however, by his report dated 17th

September, 2003 held that the JE/Section Dankaur did not have the

information about the Gateman, Sh.Tehsil, not coming for duty on

25th February, 2001 since neither had he obtained leave, nor was his

salary deducted and therefore, the respondent could not be relieved

of his duty. It was also noted that no action has been taken against

Sh.Tehsil, the other Gateman, for not attending his duty. Since the

Trains had got detained when the respondent was performing the

duties of Sh.Tehsil, therefore, he alone could be held responsible for

the same, even if it was on account of respondent's not getting rest,

as he had to do duty of Gateman, Sh.Tehsil. The conclusion/findings

of the enquiry officer are as under:-

1. The charges leveled against Shri Kalyan Gateman in which he did not give information about not coming up Shri Tehsil gateman and kept on doing the duty generally it is not done instead it appears that JE/Section/Dankaur had the information about not coming up Gate Man Shri Tehsil since earlier time because the neither salary of dated 25.02.2001 was deducted and nor leave was marked for that date. Therefore, the arrangement of relieve should have been made on his own therefore, Shri Tehsil Gateman has been held responsible but no action has been taken against him because the detention of the train has been done in the charges ANNEXURE II during the time of

duty of Kalyan Gateman therefore, he can be held responsible for the detention even if it is the result of under rest at the time of doing duty of the Gate Man Shri Tehsil.

10. The disciplinary authority concurred with the findings of the

enquiry officer and awarded punishment of withholding of

increments with cumulative effect for a period of three years by his

order dated 10th October, 2003. An appeal filed by the respondent

was also dismissed by order dated 19th February, 2004 holding that

the disciplinary authority has followed proper procedure and has

imposed punishment with proper application of mind. The

respondent was charged with not informing the concerned

supervisor/control about not turning up of his relief which resulted

in the charged officer in neglecting his duties. It was also alleged that

the charged officer has been penalized several times in the past for

the negligence of his duties, and, thus, the appeal was dismissed.

11. Aggrieved by the order of the disciplinary authority and the

appellate authority imposing the punishment of stoppage of

increments for three years with cumulative effect, the respondent

filed an original application, being OA No.2496 of 2004, under

Section 19 of the Central Administrative Tribunal Act, 1985. The

respondent categorically relied on S.R.18.06/2 about the procedure

of the manned level crossing provided with the telephone line. The

relevant extract of S.R.18.06/2 is as under:-

S.R. 18.06/2:- Manned level crossing Gates provided with telephone, if the S.M on duty is unable to contact the Gateman on duty due to the telephone becoming defective, the Gateman being absent or for any other reason, he shall issue a caution order to the Driver of a train leaving his station or get it issued by the SM of the Block Station at other end before granting line clear. The Caution order would mention about being obstructed. The gate number and kilometerage shall be clearly indicated in the caution order. The station master shall not allow any train to proceed towards the level crossing unless the caution order is issued to the Driver. Driver would only pass such level crossing gate after ensuring that it is closed against road traffic.

12. The respondent categorically elaborated the procedure in case

the Gateman sleeps on duty, in which case if the station master is

unable to contact the gangman, a caution order is to be issued to the

first train's driver who stops the train at the station and the level

crossing and he in turn ensures that the gangman is awakened, after

which he is relieved on obtaining his signatures on the caution order.

The respondent referred to the statement of Sh.Pravesh

Vishwakarma, the witness who appeared on behalf of the petitioners,

who categorically deposed that the record of the caution order was

kept at the Station. He also admitted that he did not find the

respondent sleeping during the working period at Dankaur. He

rather deposed that he found the respondent working efficiently

during his tenure.

13. The respondent in his statement also categorically denied that

he had slept while performing the duties of Sh.Tehsil from 0000

hours to 0800 hours on 25th February, 2001. He denied that the

trains were detained and deposed that there was no telephone

communication and since the bell of the candle of the telephone of

one side was not working, therefore, he could not talk to the Cabin

man. He also deposed that he had informed about the telephone

problem to Sh. Kumar Pal, Key man, and Sh.Pravesh Vishwakarma.

14. The OA was contested by the petitioners contending, inter-alia,

that the competent disciplinary authority has imposed the major

punishment of withholding increments with cumulative effect for

three years after following the Railway Servant (Discipline & Appeal)

Rules, 1968. The petitioners reiterated that Sh.Tehsil was to be on

duty from 0000 hours to 0800 hours on 25th February, 2001,

however, he did not report for duty after the completion of the duty

by the respondent from 4.00 pm to 12.00 am at night on 24th

February, 2001. Inspite of this, the respondent did not inform the

same to the Station Master/AJR and the Switchman, West

Cabin/AJR and continued to perform the duty of Sh. Tehsil. It was

further asserted that instead of performing the duty, the respondent

rather slept which led to the detention of three trains from 2.51 up

till 3.45 hours at different times. The petitioners also alleged that the

respondent could have examined the Switchman in order to

substantiate his allegation that the telephone was not functional

because of which he could not contact the appropriate authorities.

15. The pleas of the respondent that he was not provided with the

copies of the caution notice, the logbook and the relevant record

regarding the detention of the trains was neither refuted nor

categorically dealt with by the petitioners in their counter reply filed

before the Tribunal.

16. The Tribunal, after considering the pleas and contentions of

the parties, held that the copy of the caution notice, which was

demanded by the respondent, was not produced and proved during

the enquiry, nor was a copy of the same supplied to the respondent

thereby causing great prejudice to him. The Tribunal also noted that

the charges against the respondent are not proved as there was no

evidence inculpating the respondent. The Tribunal further observed

that from the enquiry report, it was apparent that neither the charge

of not informing the non-arrival of Sh.Tehsil to the competent

authority had been established nor the charge of sleeping while on

duty by the respondent had been substantiated. In the

circumstances, the Tribunal had set aside the order of the

disciplinary authority dated 10th October, 2003 and the appellate

authority dated 19th February, 2004. While setting aside the orders,

the Tribunal had held as under:-

16. Apart from it, the present is a case of no misconduct and no evidence as well. What has been alleged against applicant is that despite performing his duties when he returned one Shri Tehsil, Gateman had not reported, applicant had performed his duties and had slept, which resulted in detention of trains. From the enquiry report though the charge of not informing the non-arrival of Shri Tehsil to the competent authority has not been established, we do not find that the charge of sleeping on duty performed by applicant of Shri Tehsil has not been established. What has been held is that the detention has caused as a result of unrest, as such the findings are inconclusive, yet the DA punished applicant on the charge either without disagreeing with the findings, which cannot be countenanced, as we do not find any evidence or material on record to establish that applicant had slept on duty. Moreover, if one is not held guilty of the charge he cannot be punished.

18. Misconduct is a general term, which has to be defined as per fact situation. However, there may be negligence in performance of duty or lapse or error of judgment, but would not, per se, constitute misconduct, unless the consequences directly attributable to negligence would he having resultant damage very high in degree of culpability. Mere error is not indicative of negligence, as held by the Apex Court in Union of India v. J.Ahmed, 1979 (2) SCC 286. In the above backdrop, the alleged negligence of applicant is not reflected, as, if the caution notice was there, the same would have been

supplied to applicant. Moreover, in the departmental record we find that applicant had also apprised that the telephone was not hooked to line and there was no negligence on his part.

17. The petitioners have challenged the order of the Tribunal

reiterating the pleas and contentions raised before the Tribunal and

contending that on 25th February, 2001 caution notice was issued by

the station master and that there was detention of four trains on

account of respondent's sleeping on duty, which he was performing

for Sh.Tehsil as he was absent from duty without any prior

intimation. The petitioners have also contended that the enquiry had

been conducted in accordance with law and the enquiry officer had

found the respondent responsible for detention of the trains.

18. This Court has heard the learned counsel for the parties in

detail and has also perused the record produced along with the writ

petition. S.R.18.06/2 categorically stipulates that if the S.M on duty

is unable to contact the Gateman on duty, due to the telephone

becoming defective, the Gateman being absent or for any other

reason, he shall issue a caution order to the Driver of a train leaving

his station or get it issued by the SM of the Block Station at other

end before granting line clear. The caution order under the said rule

should also stipulate the cause of obstruction and the station master

should not allow any train to proceed towards the level crossing

unless the caution order is issued to the driver.

19. This is not disputed that the respondent had been performing

the duty of another Gateman, Sh.Tehsil, as he had absented himself

unlawfully and without any reason, and therefore he could not be

charged, on account of defect in the telephone as has been alleged by

him. The station master ought to have issued the caution order to

the first train and the subsequent trains which were alleged to have

been detained at the level crossing where the respondent was posted.

The caution order is a very relevant document as it would establish

whether the train driver, on approaching the said gate, found the

respondent sleeping and whether or not he was awakened to take his

signature. Neither the caution order was produced by the petitioners,

nor the copies of the same were given to the respondent. No cogent

reason has been disclosed for non production of the caution order

and the logbook of the train which would have reflected that the

trains were detained at the level crossing gate No.144/C at Railway

Station Ajayabpur. In the absence of these relevant documents, there

is no cogent reason which could inculpate the respondent. A perusal

of the copy of the enquiry report also reveals that the findings of the

enquiry officer are inconclusive and it has been held that the

respondent is responsible without any evidence against him. Even

the Disciplinary Authority has not passed a speaking order

substantiating the guilt of the respondent, and has blindly accepted

the findings of the enquiry officer, which are also not based on any

cogent evidence. In the circumstances, the findings of the Tribunal

that the enquiry report is based on no evidence against the

respondent cannot be faulted by the petitioners.

20. This is admitted that Sh.Tehsil though had duty hours from

0000 to 0800 hours on 25th February, 2001, did not attend his

duties so as to relieve the respondent. Still, the learned counsel for

the petitioners is unable to disclose as to what action was taken

against him. There is neither any evidence that the respondent was

found sleeping on duty, nor were the copies of the caution orders, or

the logbook of the train or any of the train drivers who had allegedly

stopped the train to wake up the respondent been produced in terms

of the S.R.18.06/2. This is also not believable in the facts and

circumstances that the respondent would have gone to sleep

repeatedly in a short span of just one hour leading to detention of

four trains and that all the drivers had to wake him up.

21. In totality of the facts and circumstances, the findings of the

enquiry officer are based on no evidence and the charges against the

respondent have not been proved. In the circumstances, the Tribunal

was justified in setting aside the major punishment order of stoppage

of three increments of the respondent.

22. Therefore, there are no grounds to interfere with the order of

the Tribunal setting aside the order of the punishment passed by the

Disciplinary Authority and the order dated 19th February, 2004

dismissing the appeal passed by the appellate authority. In the

present circumstances of the case, this Court does not find any

illegality or perversity in the order of the Tribunal. The writ petition

in facts and circumstances is without any merit and it is therefore,

dismissed. The parties are, however, left to bear their own costs.

                               ANIL KUMAR J




May 10th, 2011                 SUDERSHAN KUMAR MISRA J.

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