Hon. K. N. Pandey, J.
1. We have heard Shri A.K. Gaur, learned counsel appearing for the Railways. Shri S.N. Ali appears for applicant-respondent No.1.
2. The petitioners-Union of India through General Manager, Central Railway with headquarters at Jhansi and its other officers are aggrieved by the judgment of the Central Administrative Tribunal dated 1st February, 2006 in Original Application No.312 of 1999, Masjood Ali Vs. Union of India, by Shri K.B.S. Rajan, Member (J) for the Tribunal.
3. The facts of this case are that on 20.11.1997 the train No.2779 Dn. Goa Express driving Shri Masjood Ali, Driver 'A' Grade was involved in an accident in which it collided with 4005 Dn. from behind resulting in injuries to 5 passengers and serious injuries to him in which he lost his right leg, which had to be amputated and damage to the engine. The railways initiated major penalty proceedings against him under Rule 9 of the Railway Servant (Discipline and Appeal) Rules. On the basis of his admission vide his letter dated 22.5.1998, the petitioner was given punishment of compulsory retirement by order dated 1.6.1998, without conduct disciplinary enquiry. The petitioner had vide his representation dated 25.5.1998 before the punishment was awarded to him requested for voluntary retirement in view of his permanent incapacity to continue in service. It is alleged that representation was not considered by the authorities, before imposing penalty of compulsory retirement. The petitioner preferred another representation dated 10.6.1998 for conversion of his compulsory retirement into voluntary retirement as requested by him prior to issuance of the order of compulsory retirement. He did not receive any response on which he filed the Original Application in Central Administrative Tribunal for quashing the order of punishment of compulsory retirement dated 1.6.1998; to allow him voluntary retirement and for compassionate appointment to his son.
Learned Tribunal while concluding the judgment has categorically held that the department was legally justified in giving the compulsory retirement to the said employee. Therefore, after reaching the said conclusion, there was no occasion for the learned tribunal to issue any other direction, and the direction so issued by the tribunal in para 7 of the judgment i.e. providing appointment to the son of the employee on compassionate ground cannot be sustained in the eyes of law and is set aside.
However, it is clarified that the petitioner-respondent shall be entitled for all retiral benefits which are permissible to him in accordance with law. Subject to the observations made above, petition succeeds and allowed to the said extent." 6. An application for recalling the order dated 22.2.2008 was filed by the respondent giving reasons for non-appearance. The application was allowed by the Division Bench of this Court on 28.1.2011 with following order:- "Heard learned counsel for the parties.
Cause shown for non-appearing before the Court on 22nd February, 2008 is sufficient. The order dated 22nd February, 2008 allowing the writ petition ex-parte is hereby recalled. The writ petition is hereby restored to its original position. It shall not be treated as part-heard to this Bench. The order stand released for listing before a regular Bench."
7. Shri A.K. Gaur, learned counsel for the petitioners submits that a memorandum with imputations of misconduct, dated 5.2.1998 was served upon the respondent proposing to hold an enquiry against him under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. The substance of imputation of the charge stated:-
"Statement of imputations of misconduct or misbehaviour in support of the articles of charge framed against Shri Masjood Ali Driver JHS.
Article-I Shri Masjood Ali Driver JHS while working train no.2779Dn Goa Exp. on 20.11.1997 Ex JHS to NZM is charged with neglect of duty and careless working in that he failed to control and stop his train when automatic signal was 'ON' in HDI-SHLK Section, as a result of which 2779 Dn collided against 4005Dn at Km.1455/18-20 in HDL-SHLK Section at about 06.08 hrs. on 20.11.1997. He, thus, violated GR 9.02 and SR.9.02 (1) of G & SR Book 1981 Edition.
Sd/- Illegible (R.S. Verma) Sr. DEE (TRO) JHS List of documents by which the articles of charge framed against Shri Masjood Ali Driver JHS are proposed to be sustained (Name and designation of railway servant) (1) Photocopy of finding given by CRS Central Circle Mumbai.
List of witnesses by whom articles of charge framed against Shri Masjood Ali Driver JHS are proposed to be sustained. (Name and designation of railway servant) (1) Shri Rakesh Kumar Mail Guard JHS.
(2) Shri H.N. Sharma, ASM HDL (3) Shri Bishember Singh P/ Man HDL Sd/- Illegible (R.S. Verma) Sr. DEE (TRO) JHS"
8. Shri Masjood Ali, driver, the applicant-respondent and Shri Sahir Ali, Asstt. Driver were charged with neglect for duty and careless working in that they failed to control and stop the train, when automatic signal was on as a result of which the train collided at 6.08 hrs. on 20.11.1997 violating GR 9.02 and SR 9.02 (1) G & SR Book 1981 Edition. GR 9.02 provides for the duty of driver and guard, when an automatic stop signal on double line is to be passed at 'ON'. The instructions provide that when a driver finds an Automatic Stop Signal with an 'A' marker at 'ON', he shall bring his train to a stop in the rear of the signal. After brining his train to a stop in the rear of the signal, the driver shall wait for one minute by day and two minutes by night. If after waiting for this period, the signal continues to remain at 'ON', he shall give the prescribed code of whistle and exchange signals with the Guard and then proceed ahead, as far as the line is clear, towards the next Stop Signal in advance exercising great caution so as to stop..... on any obstruction. If the line ahead cannot be seen as provided in GR 9.2 (2) owing to the curvature of the line, fog, rain or dust storm, the driver shall proceed at a very slow speed, which shall under no circumstances exceed 8 kms. an hour. Under these circumstances, the Driver, when not accompanied by a Firemen of an Asstt. Driver, and if he considers necessary, may seek the assistance of the Guard by giving the prescribed code of whistle. G.R. 9.02 (3) further instructs that when an Automatic Stop Signal has been passed at 'ON' the Driver shall proceed with great caution until the next Stop Signal is reached. Even if this signal is 'OFF', the driver shall continue to look out for any possible obstruction. Short of the same, he shall proceed cautiously upto that signal and shall act upon its indication only after he has reached it.
9. On 22.5.1998 the applicant-respondent requested Sr. DEE TRO DRM Office, Jhansi not to hold an enquiry against him as he accepted the charges and shall abide by the decision and will also not file the appeal. He prayed for natural justice on humanitarian ground. The representation is quoted in full as follows:-
"To, The Sr. DEE TRO DRM Office, Jhansi Through : Proper Channel Ref: SF 5 No.JHS/T/106/SA-A1/97-98/870 Sir, With due regards, I beg to say on 20.11.1997 2799 Dn Goa Exp. met with an accident in automatic Signal, Section between HDL. SHIK and as a result of this accident, I lost my right leg which has deprived me of earning my livelihood and natural punishment imposed.
I accept the charge levelled in the above mentioned SF-5 and hence I do not want any DAR enquiry to be conducted in this regard.
I shall abide by the decision and assure you that shall not appeal against the penalty imposed. Hoping for natural justice on humanitarian grounds. Dated: 22.05.1998 Yours Sincerely, Sd/- Illegible (Masjood Ali) DR. 'A' 142 Chief C.C. Jhansi Sd/- Illegible 22.05.1998" 10. In his representation dated 25.5.1998 in Hindi language the petitioner stated that he is an honest officer and has never been punished during his service career. On 19.11.1997 when he was on duty on 2799 Down Goa Express, due to technical defect in S & T, an accident took place between HDL/ SHLK station in which he sufferred serious injuries. His right leg was amputated. He was not guilty and has received sufficient punishment by nature for which he seeks pity from the railway administration. At present he has become a burden for himself, his family and society and has causing each day in severe pain and discomfort. He is not in a position to serve in railways and is thus presenting the application for voluntary retirement. He prayed that under the existing rules the notice may be treated as notice for voluntary retirement and that proceedings of retirement of a Driver 'A' of the railway be adopted to retire him from active service. 11. That on 1.6.1998 Sr. DEE/ TRO/ Jhansi passed an order revoking the suspension, and on the same day after recording the finding that the representation is not satisfactory held him guilty of the articles of charges/ imputation to misconduct and misbehaviour levelled against him on 5.2.1998, imposed punishment of compulsory retirement from service w.e.f. 1.6.1998. 12. The applicant did not prefer any appeal. He submitted a representation on 10.6.1998 alleging that the punishment imposed upon him was not in accordance with the procedure for imposing major penalties. The accident of Goa Express 2799 Dn. was not subjected to any enquiry nor the findings of CRS Central Circle Mumbai were shown to him. In the departmental enquiry when he was asked to give a statement and was made to sign it, he was in an unconscious state, and was not in a position to defend himself. The S & T department was liable for the accident. The entire enquiry proceedings were held in the absence of the applicant. He was not shown the records and thus his letter should not have been treated to be admission of guilt. The punishment awarded is highly excessive. The applicant had on his own applied for voluntary retirement on 25.5.1998 on which no order was passed. The applicant is in a pitiable state and has been subjected to extremely cruel treatment. He requested that the matter should not be treated as disciplinary matter and that the applicant should be allowed to voluntary retire and his son Shri Syed Mahmood Rizwan Ali may be taken in service on compassionate grounds in accordance with his eligibility. 13. The Tribunal found that the incapacitation of the applicant was on account of the accident. The proceedings were initiated with a view to complete them as early as possible. In para 16 of the counter affidavit it was stated that enquiry in the matter of the accident should not be allowed to remain pending for a long period. The proceedings were initiated at a time, when the applicant was hospitalised on 6.1.1998 and had to continue his medication till 13.6.1998. In all probability the confession letter dated 25.5.1998 could have been obtained more by persuasion, than on his volition. The principle of natural justice can be stated to be complied with, if only there is reasonable opportunity to the applicant to defend himself. At the time when the applicant was under serious ailment, his admission would be more out of desperation. Within three days of his punishment, he preferred a representation for voluntary retirement and to enable his son to be appointed on compassionate ground. The applicant has three sons on whom one is mentally retarded. The authority, which had considered his confession, did not take into account his application for voluntary retirement. The Railway Board's decision to take a lenient view in respect of negligence of an individual, where he himself is a victim of the same accident required consideration. 14. The Tribunal, thereafter, observed in para 6 as follows:- "6. This is a case wherein the department may be right legally but the question is whether the department would consider sympathetically the case of the applicant so that his family could have a bread winner. Provision exists in the Railways even for re-employment after dismissal subject however to approval by the highest authority. Such a policy is based on equitable and moral grounds. It should, therefore, be appropriate if the case of the applicant is considered by the Railway Board which has the power to convert the compulsory retirement as one of voluntary retirement without any stigma against the applicant so that the applicant's son could be considered for compassionate appointment, subject, however, his otherwise fulfilling all the requirements (save age limit for which relaxation is permissible)." 15. The Tribunal disposed of the O.A. with directions to refer the matter to the Chairman, Railway Board for his judicious consideration and decision. If the Chairman, Railway Board on consideration approve the request of the applicant, suitable orders recalling the penalty order and permitting the voluntary retirement be first passed whereafter only the case of the applicant's son should be considered for compassionate appointment. In case the Railway Board is not inclined, it may spell out the reasons for the same to the applicant. 16. Shri A.K. Gaur, learned counsel for the petitioner submits that once the respondent accepted the negligence which caused the accident, no leniency could be shown to him. He may have sufferred by amputation of his leg in the accident but that the accident caused injuries to others and loss to the railway property. The railways did not commit any error in treating the matter as disciplinary matter and proceeded to punish him on the ground of his confession. Shri Gaur submits that it was open to the railways not to accept the petitioner's application during the pendency of the disciplinary enquiry to voluntarily retire and to punish him for the negligence. The railway proceeded strictly in accordance with law and was not required to take any sympathetic view in the matter. 17. The record of loss caused to the Railways shows that 5 persons had sufferred injuries in the accident and a loss of Rs.5 lacs was reported. No one else appears to have suffered serious injuries, other than the petitioner. The petitioner's leg had to be amputated on which he became incapacitated for life. 18. In the counter affidavit filed in this writ petition, it is stated that in the accident the engine of Goa Express was mounted on the tail of the Intercity Express in which the petitioner was trapped and was hanging head down for about 5 hours. He was evacuated only after the Commissioner of the Railway Safety rushed from Mumbai by Air. During the entire period of five hours he was hanging head down with entire body and was bleeding. He suffered multiple fractures and other injuries in chest, head as well as shoulder. The Commissioner of Railway Safety gave orders to immediately cut his right leg so that his body may be brought down from the hanging position. A saw blade arranged locally was used as an orthodox method to cut his right leg. The petitioner underwent several operations at Escort Hospital, New Delhi. The Commissioner of Railway Safety avoided recording the statement of the deponent and drew hypothetical assumptions. The applicant was served in this critical condition with major penalty chargehsheet. He was not in a mental condition to accept the situation as he along with his entire family was suffering immensely. 19. Along with the counter affidavit the petitioner has annexed photograph of his amputated leg; a diagram to show that the accident could not have been caused only on account of negligence of the petitioner and newspaper reports showing the engine in the crushed condition. The newspapers also reported that inspite of request amputated leg was not made available to the hospital to enable the doctors to make an effort to save his leg. 20. Shri A.K. Guar has relied upon several judgments of the Supreme Court in T.N.C.S. Corpn. Ltd. & Ors. Vs. K. Meerabai, (2006) 2 SCC 255 (para 29); M/s Maruti Udyog Ltd. Vs. Ram Lal & Ors., AIR 2005 SC 851 (para 44); Indian Drugs & Pharmaceuticals Ltd. Vs. workmen, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408 in submitting that the Court should not be swayed or should make orders on sympathies and generosity. Where the employee is found guilty, the primary factor, which has to be taken into consideration is the misconduct and loss of confidence and not the amount of money misappropriated. It was held that in making judicial review of the orders in disciplinary matter the sympathy or generosity as a factor is impermissible. 21. All the aforesaid judgments do not apply tot he facts of the present case as in all the aforesaid cases there was question of embezzlement or misappropriation by the workmen. The Supreme Court held that in such case, in the matter of reinstatement the Court should not take into account the sympathy or compassion as the factor. 22. The preliminary enquiry report, and the findings of Commissioner, Railway Safety has not been annexed. The departmental enquiry was not held on account of the alleged admission of the charge, which the petitioner accepted. He did not want any enquiry to be held in the matter and stated that he shall abide by the decision and shall not appeal against the penalty imposed. This admission was made on 22.5.1998. It is not denied that three days later on 25.5.1998 (six days before the order of punishment) the petitioner represented in Hindi language that the accident took place on account of technical defect in S & T. He suffered injuries in the accident in which his right leg has been amputated and that since he has already suffered punishment, he deserves sympathy from the railway administration, he is passing days in severe pain and discomfort and it is not possible for him to serve in railways. He wanted to be voluntarily retired. The disciplinary authority was under a duty to consider his representation, when no enquiry was held and that the punishment was sought to be imposed on the basis of confession. 23. In the injury/ property assessment annexed as Annexure No.10 to the writ petition it is reported that no one suffered loss of life. Three persons were injured seriously and one person received simple injuries. The person, who received serious injuries were drivers. The names of the drivers and the injuries suffered by them are not given in the report. The extent of damage is reported to the effect:- (i) Loss to P Way Rs.15,000/- (ii) Loss to Loco Rs.5,00,000/- (iii) Loss to C & W Rs.12,000/- (iv) Loss to commercial Rs.50,000/-
24. In the affidavit filed in the Tribunal the applicant Shri Masjood Ali stated that in the settlement sheet it was found that out of amount of Rs.3,07,785/- towards provident fund, group insurance and leave salary, an amount of Rs.8518/- towards RHS, Rs.10,000/- as FD miscellaneous and Rs.25,655/- towards ELEC electricity charges have been deducted and thus total amount of Rs. 44,170/- was deducted. It is stated in para 8 that punishment received by the petitioner is worst than the major penalty.
25. We find ourselves in complete agreement with the findings of the Tribunal that on the statement made by him in his representation dated 25.5.1998, he was in severe pain and was suffering from the shock of amputation of his right leg and the loss of livelihood. The enquiry proceedings do not show as to how he had appeared before the enquiry officer and made the confessional statement, when he was under treatment and having undergone several operations was under immense suffering. The Tribunal did not commit any error in finding that in all probability the confession letter dated 22.5.1998 could have been obtained more by persuasion than by volition. The principle of natural justice can be stated to be complied with, if there was reasonable opportunity tot he applicant to defend his case.
26. The railways appear to be happy to obtain his confession and close the enquiry, dispensing with his services without considering his representation as he had become even otherwise unfit for the job, and had pleaded to save his retirement benefits and possible employment for his son.
27. We could have accepted the argument not to show sympathy and apply humanitarian consideration, which are required to be given weight in the present case, if the respondent was found guilty after an enquiry. When the railway proceeded to impose punishment on the ground of confession, which was in the circumstance obtaining was highly doubtful, the injuries sufferred by the petitioner, in an accident deserves consideration on humanitarian grounds. After the enforcement of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, it is no longer possible to an employer to dispense with the service of an employee on the ground of disability acquired during the employment. In the present case the disability was acquired during the course of employment and in discharge of duties, and thus his rights as a disabled person were required to be protected, or at least balanced with the degree of negligence attributed to him in awarding punishment.
28. The faith of the people travelling in public transport rests upon the confidence that the driver would try to avoid accident at any cost as his own life is at stake. No person driving a vehicle would put his own life to risk. The driver driving the vehicle will take precaution first to save himself in case of an accident. Where the driver himself suffers the injury, the presumption arises that he was not negligent unless it is established that he caused the accident on account of inefficiency or neglect, or which may also include, driving vehicle under severe strain or intoxication. In all such cases the negligence of the driver should be proved before he is held guilty and punished.
29. In the present case the applicant in his confession did not plead guilty of negligence, after stating that vehicle driven by him met with an accident in automatic signal section between HDL. SHIK and as a result of which he has lost his right leg, which has deprived him of earning livelihood and that he has already received a severe punishment. He accepted the charge levelled in the mentioned SF-5 Standard From and Chargesheet. 5, which provides that the charged person should file written statement of his defence within 10 days of the receipt of the memorandum, if he does not require to inspect any document to prepare his defence within 10 days after completion of the inspection of document and to state whether he wishes to be heard in person, to furnish names and addresses of the witnesses and to furnish list of document, if any, which he wishes to produce. He also stated that he shall abide by the decision and will not file appeal. He pleaded natural justice on humanitarian grounds. We do not find any error in the findings of the Tribunal that the petitioner was not in a fit physical and mental state to record confession. We also find that the document dated 22.5.1998 claimed as confession is not a confession in the strict sense of the term. It is a statement that the petitioner does not want to put any defence, and to contest as he is sufferring immensely. Such a document could not be treated as confession. We further find that within three days thereafter the petitioner pleaded that since he is no longer fit, he should be allowed to voluntarily retire. Even if the petitioner was not aware of his rights that his services could not be dispensed with only on account of invalidity due to accident in the course of employment, we find that he could not be punished with compulsory retirement depriving him of the retiral benefits, and the policy of the railways to consider for compassionate appointment to the dependent.
30. The writ petition is dismissed. The petitioners are directed to carry out the orders of the Tribunal within a month.
Dt.31.05.2011 SP/