Describe in details procedure for removal of track man from service including appeals, reviews etc.

 Q.No.10 . Describe in details procedure for removal of track man from service including appeals, reviews etc. 

Answer - Due to following activities, a railway servant (trackman) may be removed from service after following procedure — Due to act of omission/ commission, the administration took the decision to take up any railway servant under D &A R, a show cause notice is served upon the employee giving him opportunity to say against the charges.After receiving his explanation, the competent authority, if find suitable serve him major penalty chart sheet (SF-5) .provide copies of documents of their inspection with Annexure I, ii, iii & iv.

1. No order imposing any of the penalties of removal from service shall be made except after an inquiry held,

2. Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against a Railway servant, it may itself inquire into, or appoint I.O

3. Where it is proposed to hold an inquiry against a Railway servant, the disciplinary authority shall draw up - 

(i) the substance of the imputations of misconduct or misbehavior into definite and distinct articles of charge; 

(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain - 

(a) a statement of all relevant facts including any admission or confession made by the Railway servant; 

(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. 

4. The disciplinary authority shall deliver or cause to be delivered to the Railway servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehavi our and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Railway servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow. 

5. The Railway servant may, for the purpose of his defence submit with the written statement of his defence, a list of witnesses to be examined on his behalf. 

6. (i) On receipt of the written statement of defence, the disciplinary authority shall consider the same and decide whether the inquiry should be proceeded with under this rule.  

(ii) Where the disciplinary authority decides to proceed with the inquiry it may itself inquire into such of the articles of charge as are not admitted  

(iii) (a) Where all the articles of charge have been admitted by the Railway servant in his written statement of defence, the disciplinary authority shall record its findings on each charge, after taking such further evidence as it may think fit and shall act in the manner laid down in Rule . 

(b) If no written statement of defence is submitted by the Railway servant, the disciplinary authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint, under sub-rule (2) an inquiring authority for the purpose and also inform the Railway servant of such appointment. 

(c) Where the disciplinary authority itself inquires into an article of charge or appoints a Board of Inquiry or any other inquiring authority for holding an inquiry into such charge, it may, by an order in writing, appoint a railway or any other Government servant to be known as Presenting Officer to present on its behalf the case in support of the articles of charge.

7. The disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority - 

(i) a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour; 

(ii) a copy of the written statement of defence, if any, submitted by the Railway servant; 

(iii) a copy of the statement of witnesses, if any, referred to in sub-rule (6); 

(iv) evidence proving the delivery of the documents referred to in sub-rule (6) to the Railway servant; 

(v) a copy of the order appointing the Presenting Officer, if any; and

 (vi) a copy of the list of witnesses, if any, furnished by the Railway servant.

8. The Railway servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by the inquiring authority of the order appointing him as such, as the inquiring authority may, by a notice in writing, specify in this behalf, or within such further time not exceeding ten days, as the inquiring authority may allow. 

9. The inquiring authority shall, if the Railway servant fails to appear within the specified time, or refuses or omits to plead, require the Presenting Officer if any, to produce the evidence by which he proposes to prove the articles of charge and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Railway servant may for the purpose of preparing his defence, give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow for the discovery or production of any documents which are in possession of Railway Administration .

The Railway servant may represent his case with the assistance of any other Railway servant (including a Railway servant on leave preparatory to retirement) working under the same Railway Administration, subject to whose jurisdiction and control he is working. He cannot engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner or the disciplinary authority having regard to the circumstances of the case, so permits 

(b) The Railway servant may also present his case with the assistance of a retired Railway servant, subject to such conditions as may be specified by the President from time-to-time by general or special order in this behalf. A non-gazetted Railway servant may take the assistance of an official of a Railway Trade Union, recognized by the Railway Administration under which the Railway servant is employed, to present his case before an inquiring authority but shall not engage a legal practitioner. 

12. The inquiring authority shall, on receipt of the notice for discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents by such date as may be specified in such requisition: Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case.

13. every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority by the specified time: Provided that if the authority having the custody or possession of requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any such documents would be against the public interest or security of the State, it shall inform the inquiring authority accordingly and the inquiring authority shall, on being so informed, communicate the information to the Railway servant and withdraw the requisition made by it for the production or discovery of such documents. 

14. On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved, shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer, if any, and may be cross-examined by or on behalf of the Railway servant. The Presenting Officer, if any, shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit. 

15. If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer, if any, to produce evidence not included in the list given to the Railway servant or may itself call for new evidence or recall and reexamine any witness and in such cases the Railway servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the Railway servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Railway servant to produce new evidence if it is of the opinion that the production of such evidence is necessary in the interest of justice.

16. When the case for disciplinary authority is closed, the Railway servant shall be required to state his defence orally, or in writing, as he may prefer. If the defence is made orally it shall be recorded and the Railway servant shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any. 

(17) The evidence on behalf of the Railway servant shall then be produced. The Railway servant may examine himself in his own behalf, if he so prefers. The witnesses produced by the Railway servant shall then be examined by or on behalf of him and shall be cross-examined by or on behalf of the Presenting Officer, if any. The Railway servant shall be entitled to re-examine the witnesses on any point on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit. 

 (18) The inquiring authority may, after the Railway servant closes his case, and shall, if the Railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Railway servant to explain any circumstances appearing in the evidence against him. 

 (19) The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, and the Railway servant, or permit them to file written briefs of their respective cases, if they so desire.

(20) If the Railway servant, to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte.

(21) Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor, and partly by itself: Provided that if, the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine, cross-examine and re-examine any such witnesses as hereinbefore provided. 

 (22)(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain - (a) the articles of charge and the statement of imputations of misconduct or misbehaviour; (b) the defence of the Railway servant in respect of each article of charge; (c) an assessment of the evidence in respect of each article of charge; and (d) the findings on each article of charge and the reasons therefor. 

(ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include - (a) the report prepared by it under clause (i); (b) the written statement of defence, if any, submitted by the Railway servant; (c) the oral and documentary evidence produced in the course of the inquiry; (d) written briefs, if any, filed by the Presenting Officer, if any, or the Railway servant or both during the course of the enquiry; and (e) the orders, if any, made by the disciplinary authority in regard to the inquiry.

10. Action on the inquiry report :- 

(1) If the disciplinary authority:- (a) after considering the inquiry report, is of the opinion that further examination of any of the witnesses is necessary in the interests of justice, it may recall the said witness and examine, cross-examine and re-examine the witness; (b) is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold further inquiry according to the provisions of rule 9, as far as may be. 

(2) The disciplinary authority:- (a) shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority, its findings on further examination of witnesses, if any, held under sub-rule(1) (a) together with its own tentative reasons for disagreement, if any, with findings of the inquiring authority on any article of charge to the Railway Servant, who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Railway Servant; 14 (b) shall consider the representation if any, submitted by the Railway Servant and record its findings before proceeding further in the matter as specified in sub-rules (3), (4) and (5). 

(3) Where the disciplinary authority is of the opinion that the penalty warranted is such as is not within its competence, he shall forward the records of the inquiry to the appropriate disciplinary authority who shall act in the manner as provided in these rules. 

(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses  (i) to (iv) of rule 6 should be imposed on the railway servant, it shall, notwithstanding anything contained in rule 11, make an order imposing such penalty: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Railway Servant. 

(5) If the disciplinary authority, having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of the opinion that any of the penalties specified in clauses(v) to (ix) of rule 6 should be imposed on the railway servant, it shall make an order imposing such penalty and it shall not be necessary to give the railway servant any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the railway servant”. 

1.Long absent.

2.Miss conduct. 

3.Action attributable to untoward incident.

4.Involved in criminal case. 

5.Convicted by court of law as the case may be.

6.Providing wrong/misinformation at the time of recruitment.

7.Any other activities fit for his removal.

Following standard forms are used under D & AR action-

SF-5 – Annexure I, II, III, IV.

SF-7 –To appoint Inquiry officer.

SF-8 – To appoint defence helper. 

Enquiry report is given to servant by disciplinary athourity After  his submission against EO report disciplinary athourity.

Issue NIP with appeal review/ revision mercy appeal.

The procedure for conducting the inquiry:

•The charges will be explained to the employee. Documents may be produced as required.

•The charged employee will asked to state if he accepts or denies the charges, will take defence counsel or will defend his case himself.

•The prosecution witnesses, cited in the charge sheet will be examined. Then cross examination of each witness by the charged employee or his counsel. Examination on any point of cross-examination, if necessary.

•The defence witness, if any may then be examined, cross- examined & reexamined.

•The charge employee will be permitted to state his defence.

•Inquiry authority may question the charged employee in the circumstances appearing against him in the evidence.

•The charged employee will be permitted to state his defence.

•P.O. brief is submitted to EO who further give to CO who will submit his attendance against P.O brief.

Based on evidence on record, on record, the inquiry officer shall draw his finding & inqury report &send along with records of case & records of enquiry to the Disciplinary Authority.

A copy of the inquiry reports should invariably given to the charged employee & his defence should be considered before any further action is taken. 

The disciplinary authority shall consider the report and may accept it or draw its own finding or remit it or ask for fresh inquiry.

If it is decided to impose a penalty which is In within its competence, the disciplinary authority shall issue notice of imposition of penalty, otherwise forward the case to competent authority.

APPEAL:

•The appeal against punishment lies to the appellate authority who is usually the nest higher authority to whom the disciplinary authority is subordinate.

•The limitation is a period of 45 days from the date of order of punishment. Delay on sufficient causes may be condoned.

•A single person should appeal in his own name. The appeal should be addressed to the appellate authority only. It should not be in a improper language.

•In case of major penalty subordinate staff , a reasonable opportunity will be given to make a representation.

•Normally there is no second appeal. It is permitted only I case of group “D” staff who has been dismissed, removed or compulsory retirement.

REVISION: 

 A Group 'D' Railway servant, who has been dismissed, removed or compulsorily retired from service may, after his appeal to the appropriate appellate authority has been disposed of and within 45 days thereafter, apply to the Divisional Railway Manager and where he is not under the control of any Divisional Railway Manager to the senior-most Administrative Grade Officer under whose control he may be working, for a revision of the penalty imposed on him. The Divisional Railway Manager or the senior-most Administrative Grade Officer, as the case may be, shall thereafter dispose of the revision application in accordance with the procedure laid down in Rule 25 and pass such orders as he may think fit: Provided that the procedure mentioned in this sub-rule shall not apply where the Divisional Railway Manager or the senior-most Administrative Grade Officer or any higher authority, as the case may be, is the appellate authority: Provided further that where a revision application has been disposed of by the Divisional Railway Manager or the senior-most Administrative Grade Officer under this sub-rule, no further revision shall lie under Rule 25.

•No revision can be made after more than six months of the date of order to be revised, of it was proposed to enhance the penalty or modify it to the detriment of the employee. It will not be made after more than one year if the penalty was to be reduced or cancelled. These time limit don not apply if revision was to be made by president or ministry or the chief executive. 

•The decision in revision cases may be similar to those in appeal cases. Reasonable opportunity will be given in case of enhancement of punishment.

REVIEW: 

Where a new fact come to notice which is likely to affect substantially the decision in the case, the president of India may review the case. President may make this review at any time on his own motion or on a reference made to him. He may pass any orders I the case as deemed fit. If it proposed to enhance the penalty, a reasonable opportunity will be given to the employee to submit his representation. 

Special provisions for non-gazetted staff - (1) Where the penalty of removal has been imposed, the appellate authority may, at its discretion and if it considers it necessary, give the non-gazetted Railway servant a personal hearing before disposing of the appeal. The President may at any time either on his own motion or otherwise review any order passed under these rules when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case has come or has been brought to his notice: Provided that no order imposing or enhancing any penalty shall be made by the President unless the Railway servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in Rule 6 or to enhance the minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an enquiry under Rule 9 has not already been held in the case, no such penalty shall be imposed except after inquiring in the manner laid down in Rule 9, subject to the provisions of Rule 14 and except after consultation with the Commission where such consultation is necessary 

He may knock the door of justice also against punishment imposed.