Judicial review in disciplinary proceedings limited to ensuring fair process and natural justice compliance; positive breath analyser tests suffice to prove alcohol misconduct under preponderance standard, upholding reduced penalty of demotion.

ORAL ORDER

(As per Hon’ble Mr. Varun Sindhu Kul Kaumudi, Administrative Member)

1.By this Original Application, the applicant sought the following relief:

“……to call for records relating to and connected with the Disciplinary proceedings, the penalty order of Compulsory Retirement from service issued in No. N/M/DAR/PAU/KSB/V. 13/15 dated 27.01.2016 by the Disciplinary Authority, order No. SCR/P-NED/433/DAR-Mech/KSB dated 02.02.2017 issued by the Appellate Authority modifying the penalty to that of Reduction to the Lower Post, i.e., from MLP to GLP duly fixing the pay to 3 stages below the present pay in Level -6 of 7^th CPC pay matrix Pay band 9300-34800 with GP Rs.4200/-in 6th CPC) for a period of 5 years with cumulative effect with loss of seniority and the order issued in No SCR/P- HQ/425(a)/DAR/LR6/NED/KSB/24/2022 dated 19.05.2022 by the Revising Authority upholding the punishment imposed by the Appellate Authority including the Charge Memorandum, Inquiry report declare and set aside the same as illegal, arbitrary contrary to law and consequently direct the respondents to restore the applicant to the post of Mail Loco Pilot(MLP) as if no punishment was imposed and extend all the consequential benefits and to pass such other order or orders as deemed fit in the facts and circumstances and interest of justice.”

2. Facts, in brief, as per the applicant, are as follows:

i. While the applicant was serving as Mail Loco Pilot/ PAU (Purna), he was issued Major Penalty Charge Memorandum No. N/M/DAR/PAU/KSB/V-13/15, dated 4.5.2015, under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968, hereinafter referred to as Rules of 1968, proposing to hold an inquiry in respect of the charges set out in the Charge Memo. The Article of charge, against the applicant reads as under:-

“After working of Tr. No 17688 Express from PAU to AWB on date 09.05.2015, found "positive" 52MG/100ML with instrument No A202078 at 10.27 hrs and second time with instrument No A200193 45 MG/100 ML during Breath Analyser check at AWB/Crew Lobby while doing "Off Duty".

You have thus violated Rule 3 (1) of (ii) maintain devotion to duty and (iii) behaved in a manner unbecoming of Railway Servant of Railway Services (Conduct) Rules 1966”.

ii. The Applicant denied the charges. The Inquiry Officer (I.O., for short) proceeded with the inquiry in a most biased manner, contrary to the principles of natural justice. The findings of the I.O. are based on assumptions and conjectures, as he completely ignored the defence documents 1 and 2, viz., Alcohol Examination Certificate, issued by the Asst. Chemical Analyser to Government, and Forensic Lab/AWB Report of CCC/PAU's, vide letter No. CCC/PAU/Corress/15, dated 06.10.2015. The evidence of CCC/PAU and the ALPICC disprove the charges, but the I.O. recorded his finding that the articles are proved. The Inquiry Officer played the role of prosecutor in the absence of the Presenting Officer (P.O.), in a biased manner, to somehow prove the charges.

iii. Against the Inquiry Officer’s Report, the applicant/ C.O. had submitted his representation, dated 01.01.2016, to the Disciplinary Authority (D.A.), bringing out various infirmities in the conduct of the inquiry. The I.O. had recorded the depositions of the witnesses in the inquiry in the absence of the applicant, contrary to law, thus, depriving him of the opportunity to cross-examine the witnesses. He completely ignored the Alcohol Examination Certificate of the Asst. Chemical Analyser to the Government, Regional F