KRUSHNA CHANDRA PANDA Vs. UNION OF INDIA

JUDGEMENT

(1.) APPLICANT in the present Original Application, who was working as Assistant Loco Pilot in the East Coast Railways has approached this Tribunal with a prayer that the orders of punishment of dismissal from service passed by the Disciplinary Authority vide Annexure -A/19, orders of the Appellate Authority upholding the orders of punishment imposed by the Disciplinary Authority vide Annexure -A/21 and the orders of the Reviewing Authority rejecting the prayer of the applicant vide Annexure -A/23 be quashed and the respondents be directed to reinstate the applicant in his former post and allow him to draw all the benefits including the back wages. The facts of the case in short are that while working as Assistant Loco Pilot under the Crew Controller, Khurda, applicant was placed under suspension by the Divisional Mechanical Engineer, Khurda Road under Rule 4 of the Railway Servants (Discipline and Appeal) Rules, 1968 (in short Rules, 1968). The Divisional Mechanical Engineer -cum -Disciplinary Authority framed a charge sheet on 5.5.2009 wherein it was alleged that the applicant while working on Train No. 8410 committed gross negligence by refusing to work in the Train at Kharagpur on the plea of excess temperature and thereby violated S.R. 2.008(1) and Rule 3.1 (ii) of the Railway Servants (Conduct) Rules. The Disciplinary Authority vide Office Order dated 20.5.2009 appointed one J.V. Appa Rao as the Enquiry Officer to enquire into the charges framed against the applicant. The applicant, on 22.5.2009 requested the Disciplinary Authority to supply the documents so that he will be in a position to give a suitable reply. On 8.6.2009, the preliminary enquiry was conducted. Thereafter on the instructions of the Disciplinary Authority, the Enquiry Officer posted the hearing of the case to 14th and 15th June, 2009. The applicant requested the authorities to fix a date after supplying documents and after giving time to the defence Counsel to attend enquiry. The Enquiry Officer, then fixed the regular dale of hearing to 25th and 26th June, 2009. In the meantime, the defence Counsel requested the Enquiry Officer to postpone the date of inquiry and suggested the date as 4th and 5th July, or 8th and 9th July, 2009. On 25.6.2009, the Enquiry Officer being instructed by the Disciplinary Authority fixed the next date of hearing to 8th and 9th July, 2009. Again on the instructions of the Disciplinary Authority, the Enquiry Officer fixed the enquiry to 20th and 21st July, 2009. After conclusion of the inquiry, the applicant submitted his final defence statement on 31.7.2009. On 14/15.9.2009, the Disciplinary Authority wrote to the applicant requiring him to submit his final defence against the inquiry report and the applicant submitted his final defence on 29.9.2009. Thereafter, the Disciplinary Authority, vide Office Order dated 13.1.2010 imposed the punishment of dismissal from service on the applicant. The applicant on 29.1.2010 submitted his appeal before the Senior Divisional Mechanical Engineer, East Coast Railway, Khurda Road ventilating his grievance and praying therein for exoneration from the charges. Further being instructed by Senior Divisional Electrical Engineer, he made an appeal to the Senior Divisional Electrical Engineer as he was the competent Appellate Authority on 5.4.2010. The Appellate Authority vide office order dated 25.6.2010 upheld the punishment as imposed by the Disciplinary Authority. Again the applicant filed a petition before the Additional Divisional Railway Manager, who was the Reviewing Authority and the Reviewing Authority also rejected the prayer of the applicant on the ground that no new facts and grounds were taken in the petition.

(2.) THE applicant has taken the following grounds challenging the sustainability of the orders passed by the Disciplinary Authority, Appellate Authority and the Reviewing Authority.

(3.) COMING to the facts of the charge, the applicant has mentioned that the running room at Kharagpur was not having the basic requirements which have been substantiated by the statement of the staff also. Because of unbearable temperature on that day nobody could have slept. This fact got corroborated from the deposition of the prosecution witness also. During the enquiry, the running room caretaker stated before the E.O. that the applicant had said on that day that he could not work on the link Train No. 8409 Express. But after taking some rest he can work on any other train to Khurda. On that day, the temperature was high and the water from the tap was just like boiling water. The beds were also hot. The aforesaid depositions were sufficient to come to a conclusion that the applicant could not take rest and in the said circumstances, he only politely declined to drive the train and he has acted rightly because he did not want to risk the lives of passengers of an Express Train since he was feeling drowsy. The Disciplinary Authority did not consider this evidence in its right perspective and passed the order of dismissal. He also did not take into account the statement of the Caretaker of the resting room and also the statement of the Crew Controller.