Central Administrative Tribunal - Kolkata
Dibyendu Chakraborty vs Eastern Railway on 19 February, 2018
1 o.a. 1851.2015
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CENTRAL ADMINISTRATIVE TRIBUNAL
CALCUTTA BENCH
LlL
i4
No 0 A 1851 OF 2015 Date of order 1q
Present: Hon'ble Mr. A.K. Patnaik, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member.
Dibyendu Chakraborty,
Son of Late Bimal Kumar Chakraborty,
Aged about 53 years,
Dismissed Goods Guard/Sealdah
Was under the disposal of Senior Station Manager,
Sealdah, residing at Santragachi,
P.O. - Simurali, District: Nadia,
Pin-741 248,
Applicants
Vs.
The Union of India,
Service through the General Manager,
Eastern Railway,
17, Netaji Subhas Road,
Kolkata - 700.001.
The Senior.Divisional Personnel Officer,
Eastern Railway,
Sealdah Division,
Sealdah,
Kolkata --700 014.
The Senior Divisional Operations Manager,
Eastern Railway,
Sealdah Division,
Sealdah,
Kolkata - 700 014
III
The Senior Divisional Operations Manager/SDAH
& Disciplinary Authority,
Eastern Railway,
Sealdah Division,
Kolkata - 700 014.
Additional Divisional Railway Manager/O/SDAH
& Appellate Authority,
Eastern Railway,
Sealdah Division,
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PI o.a. 1851.2015
Sealdah,
Kolkata --700 014.
Respondents
For the Applicant Mr. I.N. Mitra, Counsel
For the Respondents Mr. S. Banerjee, Counsel
ORDER
Mr. A.K. Patnaik Judicial Mernbrj Aggrieved at the penalty of dismissal as ordered by the Respondent authorities, the applicant has filed an Original application under Section 19 of the Administrative Tribunal, 1985 seeking the following reliefs:-
An order do issue setting aside and/or quashing the charge- sheet dated 10.10.2006 issued by the Disciplinary Authority, forthwith.
An order do issue setting aside and/or quashing the findings of the Enquiry Officer, forthwith;
An order do issue setting aside and/or quashing the order of dismissal vide memo bearing No. SDANIG/874 dated 4.7.2011, issued by the Senior Divisional Operations Manager/Sealdah & Disciplinary Authority, forthwith.
An order do issue setting aside and/or quashing the order bearing memo no. SDANIG/874 dated 2.9.2015, passed by the Additional Divisional Railway Manager (0)/ SDAH & Appellate Authority, forthwith.
An order do issue directing the respondents to reinstate the applicant in service, forthwith.
An order do issue directing the respondents to allow the applicant to resume his duties forthwith;
An order do issue directing the respondents to release the back wages and other consequential services benefits to the applicant, forthwith:
An order do issue directing the respondents to release the salary and arrear salary of the applicant, forthwith."
2. Ld. Counsel for both sides were heard and documents as annexed to the pleadings perused for due examination of the matter. Written arguments have been filed by both sides.
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3 o.a. 1851.2015 The submissionS of the applicant as canvassed through his Ld.
3. Counsel, are as follows:-
That, the applicant was initially appointed with the respondent authorities as an unapproved Substitute vide memo dated 15.10.1985 and that vide Office Order dated 17.2.1994 the applicant was appointed as a Group-'D' in the scale of Rs. 775-1025!- and was posted under the PWI/BNJ.
That, on 10.10.1996, the applicant represented before the Divisional Railway Manager, Sealdah for changing of his department from Engineering to Traffic. That, the Sr. Divisional Personnel Officer, Eastern Railway, Sealdah issued an Office Order for transfer and posting of the applicant. That, on 26.2.1999, the applicant was promoted to the post of Commercial Clerk. Thereafter the applicant appeared at an examination held for the purpose of appointment to the post of Goods Guard and after completion of the selection process he was selected for the post of Goods Guard and joined the post accordingly.
That, the applicant was served with an order of suspension on 22.6.2005 and a chargesheet was issued six months thereafter. In spite of the fact that by his letter.dated 12.1.2006, the applicant had prayed to the disciplinary authority to supply photocopies of documents so relied upon in the memorandum of charges and since no document was supplied to the applicant, the applicant prayed to the authorities for revocation of the suspension order. Enuiry Officer and Presenting Officer were appointed and regular domestic enquiry was held. Thereafter, without assigning any reasons the first chargesheet dated 28.12.2005 was withdrawn and a second charge-sheet was issued on 10,10.2006. On receipt of the second charge-sheet, the applicant made a representation in detail once again
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4 o.a. 1851.2015 praying for furnishing documents to enable him to submit his defence statement to the charge-sheet. Enquiry Officer and Presenting Officer were appointed in connection with the second charge-sheet and the enquiry was held on 23.12.2007 without waiting for the applicant's reply to the second charge-sheet. In the meanwhile during continuation of the proceedings, suspension order was revoked. The proceedings concluded on 24.3.2008.
Being aggrieved the applicant approached the Tribunal vide O.A. No. 263/2008. The Tribunal on, 2.4.2008, directed that the respondent authorities may continue the enquiry but all the necessary documents as asked for by the applicant should be handed over to him. On 22.5.2008, the Enquiry Officer informed the Disciplinary Authority that as the proceedings have been completed, there is no further scope to hold further Enquiry. The findings of the Enquiry Officer were served upon the applicant and the applicant submitted his detailed representation against the same. On 4.7.2011, the Disciplinary Authority passed an order of dismissal. Despite the applicant preferring an appeal before the appellate authority, the order of dismissal was confirmed by the appellate authority. When the applicant desired to prefer an application for review, the same was not allowed.
Being aggrieved, the applicant thereafter filed an O.A. No. 1511 of 2012, upon which the Tribunal quashed the order of the appellate authority and remanded it back directing the appellate authority to pass a fresh order in terms of Rule 22 of the Railway Servants (Discipline & Appeal) Rules. The applicant, being aggrieved with the order dated 6.5.2015, preferred a Writ Petition bearing No. VVPCT No. 126 of 2015. The Hon'ble High Court, Kolkata on 9.7.2015, directed the appellate authority to consider the appeal after taking into account two judgments placed by the 4 5 o.a. 1851.2015 UpOfl receipt of copy of Hon'ble Division Bench. The appellate authority judgment dated 9.7.2015, vide letter dated 12.8.2015, directed the applicant to submit any other relevant aspect. The applicant submitted notes of arguments supported by judgments. On 2.9.2015, the appeUate authority without considering the law laid down by the Hon'ble High Court, affirmed the order of the disciplinary authority and hence the applicant has filed this Original Application.
Heard the Ld. Counsel for the respondents, who argued that a
4. proper chargesheet had been issued against the petitioner by the competent authority as per Railway Servants (Discipline & Appeal) Rules, 1968 and as per procedure of the Railways. The fraudulent entry of the applicant in service had not been detected in the year 1994 but as soon as it was detected, the matter was taken up under a major penalty chargesheet.
That, the applicant had been trying to delay the proceedings by not
5. filing the reply against the charge-sheet within time.
That, the applicant had received photocopies of all documents and has annexed in Annexure A-3 of the chargesheet dated 23.4.2006.
That, the first charge-sheet had been withdrawn as there was certain typographical errors in quoting the service conduct rules and as the signature of the disciplinary authority was missing against the anneXures. That, the second charge-sheet was issued after rectification of the said errors.
That, all surviving candidates whose candidature was found to be fake and ingenuine have either been dismissed from service or have been subjected to departmental enquiry.
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o.a. 1851.2015 FINDINGS The applicant has challenged the punishment on three counts viz.
6. H issuance of second charge sheet is bad in law; Delay and laches;
Documents asked for was not supplied to the applicant. In so far as issuance of the second charge sheet is concerned it will
7. be evident that there has been variance between the charge sheets issued December, 2005 and 101h October, 2006. The first charge sheet on 28"
was dropped keeping the right reserved for issuance of charge sheet afresh. Since the charge sheet dated 10/10/2006 is not exactly same and similar to the first one, this argument of the learned counsel for the applicant has no legs to stand on. We have gone through the decision of the Hon'ble High Court of Kolkata relied on by the applicant in this regard but we find that the said decision has no application in view of the fact that the fact of that case is different and distinct to the fact of the present case.
In so far as non-supply of the documents are concerned, we find that
8. the documents based on which the department has brought home the charge were supplied to the applicant. The applicant had sought some additional documents but did not explain neither before the authority nor even before this Tribunal as to how the non-supply of those documents are prejudicial to the applicant. Law is well settled that onus lies on the prosecution to prove the charge which the department had successfully met but the applicant failed to discharge his duty contrary to it, with the available materials. In this regard, we are of the view that it is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice as held by the Hon'ble Apex Court. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside."HARYANA 6 'I 7 0.3. 1851.2015 FINANCIAL CORPORATION AND ANOTHER V. KAILASH CHANDRA AHUJA (2008) 9 SCC 31. Further it has been held that except in cases falling under "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, [S.K. JHA COMMODRE v. STATE OF KERALA AND ANR as reported in [2011] 1 S.C.R. 298.] Thus, it is incumbent upon 10111 1 1 the delinquent officer to plead and prove the prejudice caused by non supply of the documents which the applicant has failed to place on record.
In so far as delay in issuing the charge sheet is concerned, we find that the allegation in the charge sheet was that the applicant entered to service by adopting dubious means and no doubt, in the meantime, the applicant has been promoted to next higher post. Law is well settled that if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Hence "Sub/a Fundarnento cedit opus"- a foundation being removed, the superstructure falls has an application in the instant 0 A A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim Nu/lus Commodurn Capere Rotest De Injuria Sua Propria is squarely applicable in this case. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (vide: Union of India v. Maj. Gen. Madan Lal Yadav, AIR 1996 SC 1340; and Lily Thomas v. Union of India & Ors., AIR 2000 SC 1650.) It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eyes of law. Fraud avoids all judicial acts, ecclesiastical or temporal." (Vide: S.P. 7 \;
8 o.a. 1851.2015 ChengalvaraYa Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. & Ors., AIR 1994 Sc 853). In Lazarus Estate Ltd. v. Besalay, 1956 All E.R. 349, the Court observed that without equivocation 'no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."
In Andhra Pradesh State Financial Corporation v. M/s. GAR Re- Rolling Mills & Anr., AIR 1994 SC 2151; and State of MaharaShtra & Ors. v. Prabhu, (1994) 2 SCC 481, it has been observed that a Writ Court, while exercising its equitable jurisdiction should not act to prevent perpetration of a legal fraud as Courts are obliged to do justice by promotion of good faith. 'Equity is, also, known to prevent the law from the crafty evasions and subtleties invented to evade law.' In Smt, Shrisht Ohawan v. MIs. Shaw Bros., AIR 1992 SC 1555, it has been held as under:-- "Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
In United India Insurance Company Ltd. v. Rajendra Singh & Ors., AIR 2000 SC 1165, this Court observed that "Fraud and justice never dwell cohabitant) and it is a pristine maxim together" (fraus et jus nun quarn which has not lost temper over all these centuries. A similar view has been reiterated by this Court in M.P. Mittal v. State of Haryana & Ors., AIR 1984 sc 1888.
We find that that 10 held the charges as proved in a well reasoned
9. order which was duly considered by the DA and imposed the punishment 8 o I I lI iI I IIl a 1851 2015 which was upheld by the AA in a well reasoned order warranting no interference by this TribunaL Hence, the O.A. fails to succeed and is dismissed on merit. Parties will bear their own costs.
(A..Patflaik) (Dr. Nandita Chatterlee) Judicial Membe.H.j:F:
AdmifliStrate Member sP