Nagji Shankar Safaiwala vs Union of India and Others

Honourable Mr. Justice K.S. Jhaveri

By way of filing this petition the petitioner - original applicant challenged the judgment and order dated 21st July 2005 passed in Original Application No.56 of 2004 by the Central Administrative Tribunal, Ahmedabad Bench at Ahmedabad whereby the application filed by the petitioner has been dismissed and the order of disciplinary authority imposing penalty of dismissal as well as appellate authority were upheld.

The short facts of the present case are that the petitioner was issued charge-sheet on 8th September 1999 on the charge of refusing to carry out the duties of Travelling Safaiwala. After holding the departmental enquiry, wherein the charges have held to be proved, the disciplinary authority passed order of dismissal of the petitioner from service vide order dated 17th November 2000. The said order was challenged by the petitioner filing Original Application No.755 of 2000 before the Central Administrative Tribunal. The Tribunal disposed of the said application vide order dated 14.09.2001 with a direction that if an appeal is preferred within a perod of month, it will be decided on merit. As the appeal filed by the petitioner was not decided, the petitioner again approached the Tribunal by filing O.A. No.205 of 2002, which was decided vide order dated 13th July 2003 whereby the impugned order dated 17th November 2000 was set aside and remanded the matter back to the disciplinary authority for reconsideration and to pass appropriate speaking orders.

On remand, the disciplinary authority passed order dated 6th October 2003 maintaining the earlier penalty of removal from service. The appeal filed by the petitioner was also rejected vide order dated 2nd January 2004 against which he filed Original Application No.56 of 2004, which was dismissed on 21st July 2005 by the Tribunal.

Heard learned counsel for the parties and perused the record.

Mr Trivedi, learned counsel for the petitioner submitted that looking to the charges levelled against the petitioner, assuming without admitting that the charges, the penalty imposed is grossly disproportionate to the charge as the allegation against the petitioner is that on 8th September 1999 while he was given order by his superior to clean the toil in the train he has refused to do so. Mr Siraj Gori, learned counsel for the Department has supported the order of the Tribunal.

While considering the case of the petitioner, the Tribunal has observed in paragraphs 6, 7, 8, 9, 10 and 11 as under:

It appears from the said charge-sheet that report of CWS WKR dated 17/8/1999 and report of HTXR dated 12/8/99 are enclosed with the charge-sheet. It is stated in this letter dated 12.8.1999 that the applicant was booked by 9018/9019 from Surendranagar to Jamnagar and back, but the applicant refused to carry out the date on 11/8/99. The said report has been endorsed by SSE, Wankaner vide his letter dated 17/8/99. The chargesheet refers to Head TXR as the sole witness. These documents have received by the applicant vide his note dated 21/9/99.

The enquiry officer''s report dated 27/4/2000 indicates that Shri Nand Kishor Sharma, HTXR (JE-I) has been examined as a witness. He has proved the letter dated 12/8/99 despatched by him. It is also idnicated that the applicant had argued with Sr.DME, when he asked him to do his duty of Traveling Ticket Examiner. It was also stated that the applicant threatens his colleagues with action under Atrocities Act. He has filed cases against the four Head TXRs including the applicant. He produced nine documents in this regard.

Next witness examined was CWS who had forwarded said report. None of these two witnesses appears to have been cross-examined.

The applicant was thereafter examined on 25/4/2000. The applicant has answered with respect to question No.6 that he has received a copy of all records during the course of departmental enquiry. On the conclusion of the said enquiry on dated 25/4/2000, the applicant had submitted a letter dated 26/4/2000 to ADME, Rajkot, the Disciplinary Authority, through proper channel stating therein that he was not satisfied with proceedings of DAR and that he had not been given the facilities of a defence counsel. He has been given the benefits of a defence assistant. There is not a single word in this representation regarding his admission on the previous date. The enquiry officer''s report was forwarded vide order dated 11/5/2000 which were also received by the applicant. It appears that the applicant has not submitted in representation against said enquiry officer''s report. It is thereafter that the penalty order dated 17/11/2000 was passed. O.A.755/2000 filed in this regard have been referred to in para 2 above.

We also note that the applicant in his appeal dated 10/12/2003 has raised the following issues:-

That being a member of territorial army he is a most disciplined and obedient employee;

That he was not satisfied with the proceedign of DAR as he was not given an opportunity to produce his defence counsel.

The enquiry officer has referred nine documents produced during the enquiry and relied by the enquiry officer. The said documents were neither referred with the charge-sheet nor the copies were not supplied to me.

That the past penalty had been taken into account.

That I had not admitted the charges and had only said that in case it is so felt I accept the charges. I had resiled from this admission.

The format of the OA has been prescribed in the rules. One of the matters to be specifically covered is earlier litigation in respect of this matter. It has been stated in para 10 of the O.A. That the applicant has not preferred any other application in respect of which this application has been made. The applicant has enclosed a copy of the judgment passed in OA/205/2002 decided earlier. He has neither preferred to nor made available a copy o the judgment in O.A. 755/2000 referred in para 2 above. It is also seen that O.A 755/2000 was decided on 14/09/2001 and the so called appeal referred to in the previous O.A. 205/2002 had been preferred on 7/8/2001 i.e. before the decision in that O.A.

We first note that the copies of the two relied upon documents which sustain the charge, have been made available to the applicant. The two witnesses have been examined in the presence of the applicant and his defence counsel. They were, however, not cross-examined.

We also note that no representation appears to be submitted against the Enquiry Officer''s report. It further appears that the applicant had not submitted any written statement of defence. The applicant had also admitted the charge and subsequent letter is only a protest that the inquiry was not conducted properly. It does not say anything about the admission.

We find from the record that charges can also be held to be proved on the basis of oral evidence of Head TXR and the other witness. Thus even without this admission, the charges can be held to be proved.

A three Judge Bench of the Apex Court in High Court of Judicature at The High Court of Judicature at Bombay, Through Its Registrar Vs. Shashikant S.Patil and Another, has held that there is some evidence on record to support the findings of the Enquiry Officer, the Tribunal shall not interfere with those findings and substitute another view for the view of the Enquiry Officer.

Accordingly there is no reason to interfere with the findings of the Enquiry Officer regarding the charges.

From the record it seems that the departmental procedure was not in dispute. The witnesses were not cross-examined by the appellant during the departmental enquiry. Thus, no fault can be found in the procedure followed by the department. The disciplinary authority has accepted the report of the Enquiry Officer. The view taken by the disciplinary authority and appellate authority is just and proper. Looking to the misconduct, the punishment imposed by the department is just and proper and no interference is called for from this Court. The petition is devoid of any merits and the same is dismissed. Rule is made absolute with no order as to costs.