Piyush Kumar vs Union Of India And Ors
2022 Latest Caselaw 89 Del

                          $~20
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          %                                              Date of decision: 10.01.2022
                          +      W.P.(C) 441/2022
                                 PIYUSH KUMAR                                         ..... Petitioner
                                                     Through:      Mr Gaurav Sahrawat, Advocate.

                                                     versus

                                 UNION OF INDIA AND ORS.                              ..... Respondents

Through: None.

CORAM:

HON'BLE MR JUSTICE RAJIV SHAKDHER HON'BLE MR JUSTICE TALWANT SINGH [Court hearing convened via video-conferencing on account of COVID-19]

RAJIV SHAKDHER, J.: (ORAL)

CM APPL. 1234/2022

1. Allowed, subject to just exceptions. W.P.(C) 441/2022

2. This is a writ petition directed against the order dated 06.01.2021, passed by the Central Administrative Tribunal [in short 'the Tribunal'] in OA No.100/1395/2017.

3. Before the Tribunal, the petitioner along with two co-delinquents assailed the orders dated 14.09.2016, 16.12.2016 and 22.02.2017, passed by the respondents/Railways.

3.1 The petitioner along with the co-delinquents i.e., one Mr Shubham and one Mr Gaurav Kumar sought reinstatement and payment of arrears of pay and salary, including other consequential benefits. 3.2 The principal grievance of the petitioner and the co-delinquents before the Tribunal was that no enquiry was held qua the accusations levelled against them.

Signature Not Verified

By:VIPIN KUMAR RAI Signing Date:13.01.2022 23:53:57

4. To be noted, the order dated 14.09.2016 is the notice of dismissal from service issued qua the petitioner and the co-delinquents, while the order dated 16.12.2016 concerns the dismissal of the appeal preferred by the petitioner and the co-delinquents.

4.1 Insofar as order dated 22.02.2017 is concerned, this was the order which is passed in the revision petition preferred by the petitioner and the co-delinquents.

4.2. For the sake of convenience, order dated 14.09.2016, passed by the disciplinary authority, is extracted hereafter :

" Northern Railway Notice of Dismissal from Service Reference Rule 14 (ii) of the Railway Servants (Discipline & Appeal) Rules, 1968.

No.2-E/13/SMQL/2016 Date: 14/09/2016

Sh. Piyush Kumar S / o Sh. Om Prakash Track Maintainer Grade IV Working under SSE/P.way/Shamli

On 05-09-2016 Gang No. 13 under SSE/P.way/ SMQL (Headquarter Hind) was deputed for packing of Switch Expansion Joints at KM 98/4-5 Sh. Sanjay Kumar. SSE/P.way/Shamli (Sectional) reached the site at 09/50 hrs to check the working of gang. It was noticed by him that Sh. Subham S/o Sh. Yogender Singh, Track Maintainer Grade IV, Sh. Piyush Kumar S/o Sh. Om Prakash, Track Maintainer Grade IV and Sh. Gaurav Kumar S/o Sansar Singh, Track Maintainer Grade IV were not wearing uniform at the work site. Sh. Sanjay Kumar, SSE/P-Way/Shamli asked them the reason for not wearing uniform provided by Railway Administration. On hearing this, the above named Track Maintainers became violent. Sh. Sanjay Kumar, SSE/P- Way/Shamli tried to inform his Higher Ups about their behaviour, then these track Maintainers snatched his mobile and started attacking Sh. Sanjay Kumar SSE/P-Way/Shamli. He was attacked by Phawra Handle repeatedly on his leg and

Signature Not Verified

By:VIPIN KUMAR RAI Signing Date:13.01.2022 23:53:57 after on all body. Mate of the gang, Sh. Rula and Trolleman, Sh. Hans Raj Tried to protect Sh. Sanjay Kumar, SSE/P-Way/Shamli, but they were also threatened and side lined. Sh. Sanjay Kumar, SSE/P-Way/Shamli sustained major injuries and he was immediately taken to Railway Hospital at Shamli by Mate, Sh. Rula and Trolleman, Sh. Hans Raj my multi utility vehicle. He was provided with First ·Aid at Railway Hospital, Shamli, but due to severe injuries, he was referred to District Hospital, Shamli. Seeing the condition of patient, Doctors referred Sh. Sanjay Kumar, SSE/P-Way/Shamli to District Hospital, Muzaffarnagar. X-Ray and other investigations were performed at District hospital, Muzaffarnagar. Doctor advised that he has sustained multiple fractures in lower shaft of right leg besides other major injuries in the body including shoulder. Doctor advised him to take into some Private Hospital for better treatment and at present, Sh. Sanjay Kumar, SSE/P- Way/Shamli is undergoing treatment in Minocha Nursing Horne, Muzaffarnagar.

At present, there is an environment of fear and terror among the employees and it is apprehended that it would be hazardous for co-workers and other employees to give evidence against Sh. Subham, Sh. Piyush Kumar and Sh. Gaurav Kumar, Track Maintainer in case in enquiry is held. In such circumstances, enquiry will not be practicable. Moreover, if the action is delayed the delinquent employee's conduct will lead to hooligans and other unruly elements taking opportunity and time to organize further unlawful activities and which may result in aggravation of situation which is already explosive and which may lead to disturbance to railway working.

I am, therefore, satisfied that Sh. Piyush Kumar S/o Sh. Om Prakash, Track Maintainer Grade IV have deliberately attacked Sh. Sanjay Kumar, SSE/P-Way/Shamli and stopped him from doing his legitimate duties and his activities are such as to harass staff to disturb the work so as to paralyze maintenance system of track which is essential for safety of trains and safety of public in general. I am also satisfied that it is not reasonable practically to hold enquiry in the manner provided for in the Railway servants (D&A) rules, 1968 in the tense atmosphere and no co-worker is willing to give evidence against them for fear of harassment.

Now, therefore, in exercise of the powers conferred by Rule, 14 (ii) of the RS (D&A) Rules, 1968, the undersigned hereby dismiss the said Sh. Piyush Kumar S/o Sh. Om Prakash,

Signature Not Verified

By:VIPIN KUMAR RAI Signing Date:13.01.2022 23:53:57 Track Maintainer Grade-IV working under SSE/P-Way/SMQL from service with immediate effect.

Sh. Piyush Kumar S/o Sh. Om Prakash, Track Maintainer Grade IV, Track Maintainer Grade IV [is] advised to vacate the railway quarter No. 4-B, Hind in his custody within a month from the date of this order. If he fails to do so he will deemed to be occupying the railway quarter unlawfully and will be dealt with under rules for unlawful occupation.

Sh. Piyush Kumar S/o Sh. Om Prakash, Track Maintainer Grade IV is hereby advised that under rules 18 and 19 of the Railway servants (Discipline and Appeal) Rules, 1968, he may prefer an appeal against these orders to Sr. DEN-II Northern Railway New Delhi provided that:

(i) The appeal is preferred within a period of 45 days from the date on which a copy of this Memorandum is delivered to him;

(ii) The appeal is preferred in his own name and presented to the authorities to whom the appeal lies and does not contain any disrespectful and improper language.

Sd/-

ADEN/SMQL (Disciplinary Authority) C/-

(i) DRM/NDLS for kind information please.

(ii) Sr. DEN-C/NDLS for kind information please.

(iii) A. Sr. DPO /NDLS

(iv) Sr. DEN-II,/NDLS for kind information please.

(v) APO/ Bills/New Delhi for kind information and N/A

(vi) SSE/P.Way/SQML for kind information and N/A please.

(vii) OS/SQML for pasting in service book of Employee."

(emphasis is ours)

4.3. A perusal of the aforesaid extract shows that the petitioner i.e., Mr Piyush Kumar along with the co-delinquents i.e., Mr Shubham and Mr Gaurav Kumar had attacked one Mr Sanjay Kumar, Senior Section Engineer [in short, 'SSE']. It appears that a fracas occurred as Mr Sanjay Kumar, SSE took objection to the fact that the petitioner and the co-delinquents were not in uniform.

Signature Not Verified

By:VIPIN KUMAR RAI Signing Date:13.01.2022 23:53:57 4.4. It appears that the petitioner and the co-delinquents employed violence, which resulted in grievous injuries being suffered by Mr Sanjay Kumar, SSE.

4.5. The respondents/Railways took the view that the petitioner and the co-delinquents had instilled fear in the co-workers, and, therefore, it was not practicable to hold an enquiry in the matter. 4.6. Accordingly, in exercise of powers conferred under Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968 [in short 'RS (D&A) Rules'], a decision was taken to dismiss the petitioner and the co- delinquents i.e., Mr Shubham and Mr Gaurav Kumar from service with immediate effect, without holding an enquiry. 4.7. As noticed above, the petitioner and the co-delinquents preferred an appeal as well a revision petition, both of which were rejected.

5. Mr Gaurav Sahrawat, who appears on behalf of the petitioner, says that there were cross-FIRs registered at the behest of the petitioner and the co-delinquents, on one hand, and Mr Sanjay Kumar Sharma, SSE, on the other.

5.1 It is Mr Sahrawat's contention that a compromise has been reached between the parties, and therefore, the respondents/Railways should have considered this aspect of the matter.

5.2. In our view, the compromise reached between the parties cannot impact the decision taken by the respondents/Railways to dismiss the petitioner and the co-delinquents from service, for the reasons noticed in the aforementioned notice of dismissal.

5.3. It is also not disputed by Mr Sahrawat that the fracas, noted above, did take place, and that injuries were suffered by respondent no. 6 i.e., Mr Sanjay Kumar, SSE.

5.4. To be noted, the Tribunal, while examining the matter, has made the following observations:

Signature Not Verified

By:VIPIN KUMAR RAI Signing Date:13.01.2022 23:53:57 "....10. This is not a case, in which a verbal exchange has taken place, in which event, the truth thereof can be found after conducting inquiry. The officer under whom the applicants and several others were supposed to work, was beaten in a brutal manner. Some of his bones were fractured and serious injuries are noticed on the other parts of the body. The nature of injuries was such that not only the hospitals at Shamli, but also the District Hospital at Muzafarnagar expressed their inability to treat him and he was ultimately shifted to a Private Hospital i.e., Minocha Nursing Home, Muzzaffanagar.

11. The applicants do not dispute these developments. It is not even their case either that the officer did not sustain any injuries at all or that the cause for such sustaining injuries was something else. They made an attempt to justify by stating that they too sustained injuries in the hands of the officer. That is flatly belied by the material on record. It is only as an afterthought, that the applicants came forward with the plea that the officer beat them with stick. Assuming that such an incident has taken place, there cannot be any justification for them to beat the officer to the extent of breaking his bones. The attempt made by the officer to complain to his seniors was thwarted by snatching his phone.

12. No organization worth its name, in any country whatever, can allow such a situation. If the applicants have any grievance about the functioning of an officer, there are channels for redressal. If an employee feels it free and as of right, to beat his superior, once he feels that the officer wrong, the immediate casualty will be the orderliness, in the entire Organization.

13. The reasons for dispensing with the inquiry and for invoking the exception are amenable to review. In the instant case, the disciplinary authority has referred to in detail the incident that took place on 5.9.2016 and formed an opinion that the amount of fear and terror among the employees is such that it would not be practicable to conduct inquiry. Once it is not in dispute that the officer who sustained injuries is undergoing treatment, one just cannot expect the other Gangman to depose against the applicants. Their fear would be that if the officer himself was so helpless and had to sustain injuries. the fate of others can easily be imagined, in case they speak against the applicants."

Signature Not Verified

By:VIPIN KUMAR RAI Signing Date:13.01.2022 23:53:57

6. Having examined the record, we are of the view that no interference is called for with the impugned order as any other view will not only erode the discipline in the organisation but will also demoralize those who stick to the rules.

7. The writ petition is, accordingly, dismissed.

(RAJIV SHAKDHER) JUDGE

(TALWANT SINGH) JUDGE JANUARY 10, 2022/tr Click here to check corrigendum, if any

Signature Not Verified

By:VIPIN KUMAR RAI Signing Date:13.01.2022 23:53:57