The Jharkhand High Court recently comprising of a bench of Justice Aparesh Kumar Singh & Anubha Rawat Choudhary observed that the Tribunal might exercise its review power based on concepts similar to Order 47 Rule 1 of the C.P.C., not just based on the revelation of fresh and relevant facts that, despite exercising due diligence, was not beyond the applicant’s understanding or could not be provided by him at the time the decree was passed. (The Union of India vs Omprakash )
Facts of the case
The Applicant, an Assistant Loco Pilot was proceeded departmentally for major penalty under Rule 9 of Railway Servants (Discipline and Appeal) Rule 1968, for the charge of delayed reporting of an accident that took place on an unmanned railway crossing between Kotshila and Jhalida station. . After a proper regular inquiry and second show-cause notice upon the applicant imposed a minor penalty of withholding of annual increment for three years with non-cumulative effect.
Appeal and Revision preferred by the applicant were dismissed without interference in the order of penalty.
Contention of the Parties
Learned counsel for the petitioner Railways submitted that the order of penalty was set aside primarily on the ground that it was only the applicant who was singled out for punishment, though responsibility was joint and cumulative with the Loco Pilot and the Guard. Learned CAT observed that the Disciplinary Authority, Appellate Authority and Revisional Authority have not assigned any specific reason why Assistant Loco Pilot is held guilty, whereas Guard and Loco Pilot who were also on duty, have been left out.
Learned counsel for the petitioner submitted that in the ReviewApplication, Railways brought to the notice of the learned Tribunal the order of penalty imposed upon the Loco Pilot and Guard in the following manner (Annexure-6 and 6/1).
“Your next annual increment is withheld for a period of three year from the date of next due on 01.07.2014 with non-cumulative effect.”
“Your next increment whenever due is withheld for 03 (three) months with N.C.E under rule 6(VI) of DA rule 1968.”
However, learned Tribunal refused to interfere in the matter since it was not an error apparent on the face of the record.
Learned counsel for the petitioner Railways submitted that this ingenious plea of disparity in penalty was taken into consideration by the learned Tribunal on its own without any opportunity to the Respondent Railways to answer it while deciding the Original Application. The applicant could not have taken such a plea of parity in treatment because Loco Pilot and the Guard were also proceeded against and punished for the same misconduct. The impugned order is, therefore, unsustainable in law and on facts. If it is not interfered with, it may result in disparity in treatment between the applicant Assistant Loco Pilot and other two personnel on the train i.e. Loco Pilot and the Guard who have suffered penalty for the misconduct. It was submitted that the learned Tribunal though, took into note the provisions of the Railway Train Operational Manual defining the role of all the three personnel on the train, but on its own arrived at erroneous finding that other two were left out, whereas applicant, a junior personnel of the rank of Assistant Loco Pilot was alone punished. The impugned order may therefore be set aside.
Learned counsel for the Applicant / Respondent submitted that the learned Tribunal has not only taken into account the plea of parity in treatment, but also considered the materials brought on record during inquiry proceedings. It has taken note of the evidence of PW-1 (A.K. Sinha, Loco Pilot), PW-2 (Guard), PW-3 (L.K. Sharma) and PW-4 (A.K. Satrudhar) at para-3 of the impugned order passed in the O.A. It has further taken into note that the applicant had
informed about the incident to the Loco Pilot immediately in the presence of the Guard and Station Master at 2.10 hrs. As such, there was no delay on his part. This aspect was also confirmed from the deposition of Chief Loco
Inspector Shri L.K. Sharma during inquiry. Therefore, order of the learned Tribunal passed in the O.A. did not suffer from any error of reasoning, neither was the factum of penalty upon the Loco Pilot and Guard brought to the notice of the learned Tribunal. The Respondent Railways failed to sustain the plea of review as these facts were within the knowledge of the Railways and as such, had not been discovered after passing of the order in O.A. Review application was therefore rightly dismissed.
Courts Observation and Judgment
The bench noted, "It appears on scrutiny of impugned order of learned CAT that learned Tribunal was of the opinion that Loco Pilot and Guard had not been made responsible for the delayed reporting of the accident. Only the applicant, the Assistant Loco Pilot, a subordinate employee, was singled out. It appears that the applicant had also not taken any such ground of disparity in matters of penalty vis-à-vis Loco Pilot and the Guard. Respondent Railways seems to have been taken by surprise when the order of penalty was set aside on this ground.
Learned Tribunal refused to take into consideration the relevant materials brought to its notice in Review Application vis-à-vis the instant ground of absence of parity in treatment. As it transpires, the Loco Pilot was also proceeded against and imposed with the
similar penalty of withholding of annual increments for three years with non-cumulative effect. The Guard was also proceeded against, but he was imposed with a penalty of withholding of next increment for three months under Rule-6(IV) of D.A Rule, 1968. Therefore, it was not a case where the applicant had only been singled out for the misconduct. If the very basis of setting aside the order of penalty is shaken, the impugned order passed by the learned Tribunal in O.A No. 051/00245/2015 is rendered vulnerable to challenge. Since it appears that the said ground of disparity in treatment was taken into account by the learned Tribunal on the verge of deciding the O.A, the Respondent
Railways could not have controverted it in the absence of specific pleading in that behalf by the applicant. The powers of review exercisable by the learned Tribunal are akin to the power conferred under Order 47 Rule 1 of the Code of Civil Procedure."
Relying on the Hon’ble supreme court judgment Gopabandhu Biswal Versus Krishna Chandra Mohanty and others, it was held, “Power of review could be exercised by the learned Tribunal on principles akin to Order 47 Rule 1 of C.P.C not only on the ground of discovery of new and important matter of evidence which, after exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed, or on account of some mistake or error apparent on the face of the record, but also for any other sufficient reason.”
The court while allowing the application found, “the order of learned Tribunal passed in the O.A. suffers from an error of finding of fact, on account of erroneous inference drawn by the learned Tribunal on its own, dehors any pleadings on record. If the Railways in the Review Petition duly brought it to the notice of the learned Tribunal that there was no disparity in treatment vis-àvis the applicant and Loco Pilot and Guard, learned Tribunal ought to have corrected such an error which formed the very basis of setting aside the order of penalty.”
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