Central Administrative Tribunal - Cuttack
Shakti Prasad Nandi vs M/O Railways on 10 February, 2021
O.A. No. 6 of 2016 1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA No. 6 of 2016 Present: Hon'ble Mr. Swarup Kumar Mishra, Member (J) Hon'ble Mr. C. V. Sankar, Member (A)
1. Mr. Shakti Prasad Nandi, aged about 69 years, S/o Late Hajarilal Nandi, Vill. Remuna (Talcher), PO. Hatatola, PS. Talcher, Dist. Angul.
.......Applicant.
VERSUS
1. Union of India, represented through its General Manager, East Coast Railway, Rail Vihar, At/PO. Chandrasekharpur, Bhubaneswar, Dist. Khurda.
2. The Divisional Railway Manager, East Coast Railway, Khurda Road, AT/PO/PS. Jatni, Dist. Khurda.
3. The Addl. Divisonal Railway Manager, East Coast Railway, Khurda Road, AT/PO/PS. Jatni, Dist. Khurda.
4. The Senior Divisional Personnel Officer, East Coast Railway, Khurda Road, AT/PO/PS. Jatni, Dist. Khurda.
5. The Sr. Divisional Mechanical Engineer, East Coast Railway, Khurda Road, AT/PO/PS. Jatni, Dist. Khurda.
O.A. No. 6 of 20162
6. Mr. R. N. Maharana, The then Divisional Mechanical Engineer-cum-Inquiry Officer, East Coast Railway, Khurda Road, AT/PO/PS. Jatni, Dist. Khurda.
......Respondents.
For the applicant : Mr. B. S. Tripathy, Advocate. For the respondents: Mr. S. K. Ojha, Advocate.
Heard & reserved on : 18.01.2021 Order on :10.02.2021
O R D E R
Per Mr. Swarup Kumar Mishra, Member (J)
The applicant by filing this OA, has prayed for the following reliefs under section 19 of the Administrative Tribunals Act, 1985:-
(i) To pass appropriate orders quashing inquiry report dtd. 08.09.03 in Annexure A/2, the order of punishment dtd. 06.10.03 in annexure A/3 and the order dtd.
19.09.06 in Annexure A/6 be quashed; and
(ii) to pass such further order/orders as are deemed just and proper in the facts and circumstances of the case and allow this OA with cost.
2. The brief fact of the case as inter alia averred by the applicant in the OA is that while the applicant was working as Sr. Section Engineer (C&W) at Talcher was imposed a major penalty charge sheet dated 21.06.2012 (Annexure A/1). The applicant submitted that in the inquiry, Respondent No. 6 was appointed as inquiry officer and 11 witness were examined on O.A. No. 6 of 2016 3 behalf of the prosecution, out of whom some witnesses did not prove the case. Though various documents were asked for by the applicant, those were refused and the request of the applicant to examine Addl. Divisional Mechanical Engineer was also denied. The IO submitted his inquiry report dated 08.09.03 (Annexure A/2) with a finding that the charge leveled against the applicant was proved. Thereafter the applicant submitted that the disciplinary authority/respondent No. 5 without taking into account the explanation of the applicant and all the evidence, imposed a punishment of compulsory retirement and recovery of Rs. 1,65,311/- from the applicant vide order dated 06.10.03 (Annexure A/3). The applicant then preferred an appeal (Annexure A/5) and since the appellate authority did not consider the said appeal, the applicant filed OA NO. 523/2006 in this Tribunal, which was disposed of vide order dated 12.07.06 (Annexure A/4) directing the respondent to dispose of the said appeal by a reasoned and speaking order within four months. The appellate authority i.e. Respondent No. 3 vide order dated 19.09.2006 (Annexure A/6) rejected the appeal and upheld the decision of the disciplinary authority. The applicant further submitted that IO had not properly conducted the inquiry and the applicant has not been given O.A. No. 6 of 2016 4 reasonable opportunity to prove his innocence as because the documents asked for by the applicant was refused and also request of the applicant to examine official witness. The applicant submitted that the order of punishment is disproportionate to the charge leveled against him. Hence the OA.
3. The respondents in their counter inter alia averred that the applicant, who was charge sheeted for major penalty was advised by the CO to collect all the relevant documents and give his nomination of defence within 03.10.2002. The inquiry was conducted and prosecution witnesses were also cross examined on the scheduled date of inquiry and IO submitted the report to the Disciplinary Authority on 08.09.2003. The disciplinary authority after going through the inquiry report supplied a copy of the same to the applicant and after receipt of the defense statement from the applicant on 16.09.2003 passed order dated 06.10.2003 (Annexure R/1) imposing punishment of compulsory retirement from service w.e.f. 08.10.2003 and recovery of an amount of Rs. 1,65,311/- from applicant's retirement gratuity. Thereafter the applicant was retired from service vide order dated 07.10.2003 (Annexure R/2) and recovery of railway dues of Rs. 1,65,311/- vide order at annexure R/3. O.A. No. 6 of 2016 5
4. The respondents further submitted that the applicant instead of exhausting departmental remedies available approached this Tribunal in OA No. 523/2006 for quashing the order passed by the disciplinary authority. This Tribunal vide order dated 12.07.2006 disposed of the said OA with direction to dispose of the pending appeal of the applicant. Even though no such appeal was ever filed by the applicant, the appellate authority treated the appeal appended along with the OA and disposed of it vide order dated 19.09.2006. The respondents submitted that after receipt of the appellate authority order dated 19.09.2006 the applicant approached this Tribunal in OA No. 275 of 2008 but the matter was not pressed when listed and after giving opportunities in so many occasion, the Tribunal dismissed the same on 01.02.2011 for default. The applicant instead of adopting appropriate procedure has filed the present OA reiterating the same prayers he had already made in OA No. 275/2008.
5. The article of charges as per Annexure I and statement of imputation of mis-conduct of misbehavior in support of the article of charges framed against the applicant in the memorandum of charges dated 21.06.2002 are extracted below:
Annexure - I (Article I) O.A. No. 6 of 2016 6 That the said Sakti Prasad Nandi, S.S.E. (C&W)/PADP, as stock holder of HSD Oil at PRDP during the period is directly responsible for the loss of 12,000 ltrs of HSD oil which was supposed to be received by tank lorry No. ORY - 5209 from M/s. BPCL/CTC on 27.4.2002 vide Challan No. 459 of dated 25.4.2002 as detailed in the statement of imputation.
This shows his gross misconduct and thus violated rule 3.1.(i), (ii), (iii) of Railway Services (Conduct) Rules, 1966. Hence he has rendered himself liable for disciplinary action under Railway Servants (D&A) Rules, 1968 as amended from time to time.
Annexure - II Sakti Prasad Nandi, S.S.E. (C&W)/PRDP is stock holder of HSD oil at PRDP has committed gross misconduct as : 1) He is directly responsible for the loss of 12,000 litres of HSD oil which was supposed to be received by tank lorry No. ORY-5209 from M/S BPCL/CTC on 27.4.2002 vide challan No. 459 dated 25.4.2002. 2) He signed the above challan of 12,000 litres of HSD oil without physically getting it decanted at Railway Summer depot/PRDP and further tried to manipulate the shortage quantity by wilfully issuing less quantity of HSD Oil to locomotives which were fuelled at PRDP.
The above acts on the part of Shri Sakti Prasad Nandi tantamount to gross misconduct and violation of Rules 3.1.(i), (ii) and (iii) of Railway services Conduct Rules, 1966. Thus he has rendered himself liable for disciplinary action under Railway Servants (Dsicipline and Appeal) Rules, 1968 as amended from time to time.
6. The relevant portion of findings of the Inquiry report dated 21/25.06.2002 is extracted below:
"I have gone through the statements of the witnesses and the cross examinations by D.C. thereof. I have also gone through the final defence statement by Shri S. P. Nandi, S.S.E. (C&W)/PRDP.
The charges of loss of 12,000 litres of HSD oil at RCL/PRDP received through tank lorry No. ORY 5209 vide challan No. 459 dated 25.4.2002 is substantiated on the following grounds.
1) He has overwritten the date on the verified copy of the challan no. 459 dtd. 25.4.2002.
2) Two pages of daily fuel issue register for 27.4.02 was torn & pasted. There is no entry of receipt of 12,000 litres of HSD oil through Tank Lorry No. ORY 5209.
3) The entries of HSD-4 register from May 2002 was pasted and fresh entries have been made up to 04.5.02 (till the stock O.A. No. 6 of 2016 7 verification by ADME (F)). Shri S. D. Nandi being the stock holder should have pointed out the irregularities.
4) Shri S.P Nandi has given conflicting statement about his inability to witness decanting of Tank lorry No. ORY 5209 on 27.4.02 although he was present in the HQ on that day.
5) Shri P. Barik. Jr. Clerk, Loco/CTC who was at PRDP on relcaving duty has stated in reply to Q. No. 3 that no tank lorry was received at PRDP. He has also stated that fuel issue register was not torn/tampered till 08.5.2002 when he handed over the charge."
7. The relevant portion of speaking order dated 06.10.2003 of disciplinary authority is extracted below:
"4.0 I had gone through the entire case thoroughly along with your representation dated 16.09.2003. You accepted clearly that you had signed in the common delivery challan no. 459 dated 25.04.2002m for receipt of 12,000 liters of HSD Oil at railway consumer deport/Paradeep on 27.4.2002. you also accepted that the above tank lorry was not decanted at Paradeep on 27.04.2002. All the witnesses have also confirmed during the inquiry that no tank lorry bearing No. ORY - 5209 arrived at railway consumer deport, Paradeep on 27.04.2002.
5.0 As SSE (C&W)/Paradeep, you were also incharge of the railway fuelling points at Paradeep. In your representation dated 16.9.2003, you had mentioned that you could not witness the decanting of fuel on 27.04.2002 since you were indisposed. However, this can not accepted, since you were on duty on that day and signed the delivery challan for receipt of 12,000 litres of HSD fuel oil as indicated above.
6.0 In your defense statement dated 28.07.2003, you indicated that your were also issued with a minor penalty chargesheet vide ltter no. M/TRS/18/1/2002/SPN/2552 dated 23/30.7.2002 for trying to manipulate the above referred shortages of 12,000 liters of HSD oil by showing excess issue to locomotives, which were fuelled at Paradeep. For this, you were issued with a minor penalty of withholding of all your privilege passes for the year 2003. You never submitted any appeal for the above case to the appellate authority against the punishment imposed on you.
7.0 Under these circumstances, after applying my mind adequately, I came to the following conclusions:
(i) As incharge of the railway consumer fuelling deport at Paradeep you were directly responsible for the loss of 12,000 liters of HSD fuel oil.O.A. No. 6 of 2016 8
(ii) Subsequently, in order to cover up the above shortage, you had manipulated and shown excess issue to the locomotives, which were fuelled at Paradeep.
(iii) You were given adequate opportunity to represent your case during the inquiry.
( iv) The charges levelled against in the major penalty charge sheet have been proved beyond doubt.
8.0 You are a very senior supervisor in the C&W wing of this division and is due for superannuation in September, 2006. However, the above act of yours has led to a loss of 12,000 liters of HSD Fuel oil and was followed by serious manipulation in showing excess issue to the locomotives to cover up the loss. This speaks very bad of your integrity. Thus you have violated the rule No. 3 (1) (i) (lack of integrity) of Railway Service (ConductRules) 1966. You have also violated the rule 3.I (ii) (lack of devotion to duty) since you clearly accepted that you had signed the challan without physical verification of the decanting of the tank lorry. You had further violated the rule 3 1 (iii) (unbecoming of railway servant) since being the senior most representative of the mechanical department at Paradeep, you failed to ensure proper accountal of HSD fuel oil. 9.0 Since the charges which were levelled on you, are of very serious nature and these have been proved beyond doubt, the punishment, which should be imposed on you; should be very sever. You deserve no lesser punishment than dismissal or removal from service since your serious lapse led to huge loss to the Railways i.e. 12,000 liters of HSD duel oil costing of Rs. 1,65,311/-. However since you have already crossed 57 years of age as is super annuation within 3 years, hence, I am imposing a lesser punishment on you i.e. compulsory retirement from service (Rule No. 6 (vii) - a major penalty). Further, the above mentioned amount of Rs. 1,65,311 will be deducted from your retirement gratuity, after your compulsory retirement (rule no. 6
(iii) - a minor penalty). This is being imposed since your action has led to a pecuniary loss of 12,000 liters of HSD fuel oil costing Rs. 1,65,311/- to the railways.
10.0 You are compulsorily retired from service w.e.f. 08.10.2003. Further, an amount of Rs. 1,65,311/- will be deducted from your retirement gratuity after your compulsory retirement. 11.0 If you want to appeal against the above order, you may do so in writing to the appellate authority i.e. ADRM/Khurda Road within 45 days of receipt of this punishment notice."
8. The relevant portion of the speaking order dated 19.09.2006 passed by the appellate authority is extracted below:
O.A. No. 6 of 20169
"7. His appeal does not contain any new grounds which shall merit any consideration for review of punishment imposed.
8 For the reasons, explained above, as an Appellate Authority, I find him responsible for the above lapses and decided to uphold the punishment of compulsory retirement from service imposed by the disciplinary authority. I also uphold the decision to deduct an amount of Rs. 1,65,311/- from his retirement gratuity as already imposed by the D.A."
9. It was submitted by the learned counsel for the applicant that applicant had remaining three years of service when the punishment of compulsory retirement was imposed on him. In the departmental proceeding started against him, the punishment of compulsory retirement was imposed against the applicant vide Annexure A/3. It was alleged that the applicant in his capacity as Sr. Section Engineer had signed on the common delivery challan no. 459 dated 25.04.2002 that one fuel tanker loaded with 12,000 litres of HSD fuel oil was decanted at the Railway Consumer Depot, Paradeep, where the applicant was on duty. The applicant has admitted to have signed in the challan in question. This Tribunal has gone through the inquiry report dated 08.09.03 (Annexure A/2). The amount towards said fuel has been already paid by the department to the oil company. There was no document to show that any such tanker with fuel in question had entered the consumer depot. It was found that no such tanker had ever arrived at that place but the applicant in order to cause pecuniary O.A. No. 6 of 2016 10 loss to the department and with dishonest intention had signed on the delivery challan, in order to help the concerned party gain pecuniary benefit and thereby causing loss of Rs. 1,65,311/- to the Govt exchequer.
10. The applicant had attended the inquiry in question. No procedural illegality or irregularity has been brought to the satisfaction of this Tribunal to show that any prejudice has been caused to the applicant. There is nothing on record to show that the decision making process taken by the inquiry officer or disciplinary authority is in any way vitiated. The disciplinary authority had passed the order vide Annexure A/3 on 06.10.2003 and his appeal was disposed of by the appellate authority in the year 2006. Thereafter the applicant had filed one OA No. 275/2008 which was dismissed for default on 01.02.2011. The present OA has been filed on 08.01.2016. No leave was obtained by the applicant from the Tribunal, when the earlier OA was dismissed in order to enable him to file fresh OA. Therefore in the circumstances the delay of about 10 years in filing this OA for the purpose of challenging the order passed by the appellate authority in the year 2006 and the disciplinary authority in the year 2003 is also barred by delay and laches of the applicant. O.A. No. 6 of 2016 11
11. Besides that this tribunal has gone through the materials on record and found that no illegality has been committed by the respondents in arriving at the conclusion and imposing the punishment in question. This Tribunal is also satisfied that there has been no violation of principle of natural justice. He has been given due opportunity at all stages to put forth his case and defend himself in the departmental proceeding in question.
12. It was submitted by learned counsel for the applicant that the amount of Rs. 1,65,311/- has already been recovered from the gratuity of the applicant, towards the cost of fuel. It was further submitted by learned counsel for the applicant that there was no previous misconduct by the applicant and the punishment imposed on him was disproportionate. The applicant was holding one post where there was every likelihood of causing financial loss to the Govt. exchequer. Therefore it was expected from the applicant, who was holding responsible and sensitive post to take all precaution, so that there will be no financial irregularity or loss to the Govt. He having admitted to have signed on the delivery challan and finding to that effect being based on record, in the absence of any satisfactory explanation given to that effect by the applicant, this Tribunal is not inclined to O.A. No. 6 of 2016 12 take any lenient view in his favour. There is material on record and it has also been proved that the applicant has tampered with the records while committing the misconduct in question This Tribunal is satisfied that punishment, as imposed on him is commensurate with the misconduct, proved against the applicant. Besides that he will be entitled to all pensionary benefits, since he has been let off with punishment of compulsory retirement, without inflicting the punishment of termination from service.
13. Accordingly the OA is dismissed but in the circumstances without any order to cost.
(C. V. SANKAR) (SWARUP KUMAR MISHRA) MEMBER (A) MEMBER (J) (csk)