Central Administrative Tribunal - Allahabad
Suraj Prasad vs General Manager, N E Rly on 25 July, 2024
(RESERVED ON 22.7.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH, ALLAHABAD
This the 25th day of July, 2024
ORIGINAL APPLICATION NO. 06 OF 2018
HON'BLE MR. JUSTICE OM PRAKASH VII, MEMBER (J)
HON'BLE MR. MOHAN PYARE, MEMBER(A)
Suraj Prasad urf Suraj aged about 33 years, Ex-Trackman under
CSE/PW/Bhatni, S/o Late Nathuni, Ex. Trackman, under SSE
(P way), Bhatni R/o Village Chandpar post Bhatni, District
Deoria (U.P.)
............. Applicant
By Advocate: Sri Bashisth Tiwari
Versus
1. Union of India through General Manager, North Eastern
Railway, Headquarters Office, Gorakhpur.
2. Divisional Railway Manager, North Eastern Railway,
Varanasi.
3. ADRM, North Eastern Railway, Varanasi.
4. Senior Divisional Engineer-1, North Eastern Railway,
Varanasi.
5. Senior Assistant Divisional Engineer (East), N.E.
Railway, Gorakhpur.
6. Sri Zaheer Ahmed, Enquiry Officer (Vigilance),
Vigilance Enquiry Cell under Chief Vigilance Officer, North
Eastern Railway, Headquarters Office, Gorakhpur (in person).
7. Sri N.N. Pandey, Chief Vigilance Inspector through the
Chief Vigilance Officer, North Eastern Railway, Headquarters
Office, Gorakhpur (in person).
......... Respondents
By Advocate : Sri Saurabh
ORDER
Per Justice Om Prakash VII, Member-J By means of this Original Application (OA), the applicant has sought the following main relief(s):-
"(i) The Hon'ble Tribunal may graciously be pleased to summon the original records and case of complete disciplinary proceeding relating to this case and quash the impugned orders viz. (i)chargesheet issued by Sr. ADEN/East/N.E. Railway, Gorakhpur vide SF-5 dated 12.7.2013 (Annexure A-1), (ii) Inquiry report dated 29.7.2016 communicated vide letter no. dated 10.3.2006 (Annexure A-2), (iii) order of dismissal from service Page 1 of 9 GIRISH SRIVASTAVA vide NIP dated 7.12.2016 passed by Sr. ADEN/East, N.E. Railway, Gorakhpur (Annexure A-3), (iv) Appellate order passed by Sr. DEN/1, NER/Varanasi vide letter dated 27.2.2017 (Annexure A-4),
(v) Revisional order passed by ADRM/NER/Varanasi vide letter dated 21.7.2017 (Annexure A-5) and impugned order passed by the Sr. DEN-1/NER/Varanasi vide letter dated 31.7.2017 without jurisdiction and authority and direct the respondents to reinstate the applicant in service with all consequential benefits of service including back wages with admissible rate of interest as if he were in service."
(ii) ..........
(iii)............"
2. In nutshell, the facts of the case are that the father of the applicant namely Sri Nathuni was working on the post of Gang- man under the respondents. He died in harness on 2.10.2006. After sad demise of his father, the applicant applied for appointment on compassionate ground. After completing due process, the applicant was appointed on the post of Trackman on compassionate ground vide order dated 28.11.2007 and in pursuance thereof the applicant joined his duty w.e.f. 4.1.2008 and posted under Section Engineer (P.Way), N.E. Railway, Bhatni. According to the O.A., the uncle of the applicant namely Ram Khilari made a false complaint before the respondents stating therein that he is Nathuni, father of the applicant and Ram Khilari died and not Nathuni. Pursuant to the aforesaid complaint, the applicant was issued a major penalty chargesheet (SF-5) on 12.7.2013. The applicant submitted his defence representation dated 16/17.6.2016 under Rule 9(19) and (22) of Railway Service (Discipline & Appeal) Rules, 1966 on 12.7.2016. The Enquiry officer proved the charges leveled against the applicant by submitting its enquiry report on 29.7.2016. On receipt of enquiry report, the disciplinary authority issued a show cause notice enclosing therewith a copy of enquiry report requiring the applicant to submit his reply. To this, the applicant submitted his reply on 19.8.2016 stating that the findings as arrived by the Enquiry officer are perverse. However, the disciplinary authority passed punishment order dated 5.12.2016 whereby the applicant was dismissed from service.
Page 2 of 9GIRISH SRIVASTAVA 2.1 Being aggrieved, the applicant preferred an appeal before the appellate authority on 20.12.2016, which too came to be rejected vide order dated 27.2.2017 without addressing the grounds/pleas raised in the appeal. Thereafter, the applicant filed Revision Petition on 17.4.2017 before the Revisionary authority under Rule 24(3) of Railway Servants (Discipline & Appeal) Rules, 1968, which was also rejected vide order dated 21.7.2017. Thereafter, the applicant submitted Revision under Rule 25 on 21.8.2017, which has not been decided by the authority concerned. Hence, this O.A.
3. Per-contra, the respondents have refuted the claim of the applicant by filing a detailed Counter Affidavit stating therein that the applicant is the son of Ram Khiladi, who is the brother of railway employee Sri Nathuni Prasad and he was never employed in the Railways. The respondents had verified these facts from the Parivar Register certificated and issued by the Gram Panchayat Adhikari, Salempur on 14.12.2011. It appears that the applicant fraudulently manipulated the documents and succeeded to get interred the name of Sri Nathuni as his father in the Pariwar Register dated 22.3.2013 and made efforts in claiming compassionate appointment on the basis of such forged and fabricated documents. The respondents have further stated that on physical verification of the Parivar register of ex- railway employee, it came to light that Sri Vasudev is the son of Nathuni Prasad, Km. Indu is his daughter. The applicant by making fabrication in the parivar register get changed the name of his father as Nathuni Prasad in place of Ram Khiladi and committed fraud with the railway administration. The applicant also succeeded to commit fraud by providing such wrong information to the Welfare Inspector through his Gram Pradhan. The applicant appears to have been succeeded to establish himself as the son of Nathuni Prasad with well organized and planned manner, which could not be judged by the Welfare Inspector and submitted his report on the basis of such wrong information. It is further averred that since the Page 3 of 9 GIRISH SRIVASTAVA report was prepared by the Welfare Inspector on the basis of statement of Gram Pradhan under manipulation of the applicant and as such the department had no way to disbelieve it. On the basis thereof, the claim of the applicant was processed and appointment was made under dying-in-harness rules.
3.1 The respondents have also stated that the DRM is the competent authority to consider and make appointment under dying-in-harness rules. The DRM approved the appointment of the applicant after relying upon the report submitted by the Welfare Inspector. Since the report submitted by the Welfare Inspector was based on forged and fabricated documents submitted by the applicant and as such the approval of the DRM may not be treated as legal and justified. The family pension in favour of wife of Nathuni Prasad is also illegal as the original Railway employee (Nathuni Prasad) is still alive. They have also pleaded that Sri Nathuni Prasad worked as Gangman himself claiming that he is still surviving and this fact has been admitted by the applicant during the course of vigilance enquiry on 19.4.2013 against question no. 33 that he is not the son of Sri Nathuni Prasad, rather name of his father is Ram Khiladi and this fact finds support in the Parivar Register dated 14.12.2011. The respondents have also stated that in the enquiry report submitted by the Chief Vigilance Officer, contains the confessional written statement of the applicant by means of which the applicant had stated that he is in full care and conscious and accept that he is not the real son of Sri Nathuni Prasad. The enquiry was conducted through Vigilance department in accordance with the rules after affording due reasonable opportunity to the applicant and also after following the relevant rules and procedure with conformity of principles of natural justice. The respondents have denied that the applicant is elder son of Sri Nathuni Prasad. As per family register dated 14.11.2011, the name of son of Sri Nathuni Prasad is Vasudev. The applicant himself admitted the fact that Sri Ram Khiladi was his father, who worked in the Railways in Page 4 of 9 GIRISH SRIVASTAVA place of Nathuni Prasad on 19.4.2013. The enquiry was conducted by the vigilance department on the complaint of Sri Nathuni Prasad in accordance with the rules and procedure on the subject. On the request of the applicant, the disciplinary authority has changed the Enquiry Officer vide letter dated 8.3.2016. The applicant committed serious illegality in procuring the job under dying-in-harness rules on the basis of forged and fabricated documents. The chargesheet as well as show cause notice both have been issued under the authority of Senior Assistant Divisional Engineer, Gorakhpur. The junior scale officer is the appointing authority for Group 'D' employees working in the grade of Rs. 1800/- The orders, impugned in the Application, have been passed by the respective authorities after due application of mind and also keeping in mind the gravity of the charges leveled against the applicant. Lastly, they have stated that the O.A. has no merit and the same is liable to be dismissed.
4. The applicant has filed Rejoinder Affidavit to the Counter Affidavit as filed by the respondents refuting the contentions made by the respondents in their Counter Affidavit while reiterating the averments made in the O.A. and nothing new has been added.
5. Learned counsel for the applicant has placed reliance upon the decision of Hon'ble Supreme Court rendered in the case of Union of India & Others Vs. Prakash Kumar Tandon reported in (2009) 1 SCC (L&S) 394 and prayed that the O.A., in hand, be decided on the same lines. Learned counsel for the applicant has also emphasized RBE No. 211 of 2002 dated 25.11.2002 on the subject of imposition of penalties of dismissal, removal or compulsory retirement -determination of appointing authority
6. We have heard the learned counsel for the parties at length and also perused the pleadings available on record.
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7. The main limb of argument of learned counsel for the applicant is that since the DRM is the competent authority and that the punishment order has been passed by Sr. Assistant Divisional Engineer, who is lower in rank, has no authority to pass such order and as such the punishment order is void-ab- initio having been passed by an incompetent authority, who is no jurisdiction and as such the impugned punishment order has faulty one and the same is liable to be stuck down on this count alone. He further argued that the onus lies upon the prosecution to prove the charges leveled against the applicant and not on the charged official to prove himself innocence. Further, the punishment imposed upon the applicant is too harsh and disproportionate for committing no misconduct on his part at all and that the action of the respondents is hit by article 21, 311(1) and (2) of Constitution of India. Death certificate was issued by competent authority, which cannot be disbelieved. Enquiry conducted by vigilance department is illegal and against the settled principle of law. As such O.A. is liable to be allowed.
8. On the other hand, learned counsel appearing on behalf of the respondents submits that the applicant has committed fraud in obtaining the appointment on compassionate grounds. He further argues that the appointment order as well as dismissal order of the applicant were issued by the Assistant Divisional Engineer Gorakhpur (East), Varanasi and as such the plea of the applicant is that the competent authority in the case of the applicant is DRM falls to ground. Not only that, the applicant has himself admitted during the vigilance enquiry that Sri Nathuni Prasad had worked as Gangman himself claiming that he is still surviving. Further, the applicant is not the son of Sri Nathuni Prasad, rather name of his father is Ram Khiladi and this fact finds support in the Parivar Register dated 14.12.2011. Learned counsel also argues that the enquiry was conducted through Vigilance department in accordance with the rules after affording due reasonable opportunity to the applicant and as such the applicant is not entitled to get any relief and the Page 6 of 9 GIRISH SRIVASTAVA O.A. is liable to be dismissed. Referring to the enquiry report, it was also argued that the applicant himself stated during enquiry that he is satisfied with the Enquiry Officer. In such a situation, he cannot detract from the statement made during enquiry. Nathuni Prasad was examined during enquiry. Cross examination was also made by the applicant, but he has not challenged the identity of Sri Nathuni Prasad.
9. We have considered the rival submissions of learned counsel for both the parties.
10. The short question to be decided in this case is whether the applicant, who secured the appointment on compassionate ground by manipulating the documents, is entitled to get any relief after his dismissal from service or not?
11. Admittedly, the applicant secured the job by playing fraud with the respondents by submitting false and fabricated documents and this fact has been admitted by the applicant himself during the course of enquiry. The only plea raised by the applicant is that the punishment order has been passed by an authority, which is not competent to do so. In this regard, it is stated that since the appointment order as well as punishment order both have been issued by the same authority and as such plea of incompetent authority does not arise. As regards power of DRM is concerned, it is stated that no-doubt the power to appoint a person on compassionate ground vests with the DRM and after taking approval, the order is issued by the authority concerned and as such it would not mean that the competent authority is only DRM, in the case of erstwhile Group 'D' employee.
12. We have also perused the judgment as cited by the learned counsel for the applicant in support of his claim and after perusing of the same we are of the considered opinion that the ratio laid down in the cited case would not be applicable in the case, in hand, simply on the ground that the facts of the present matter are entirely different with the facts of the case of Page 7 of 9 GIRISH SRIVASTAVA Prakash Kumar Tandon (supra). In Prakash Kumar Tandon's case, vigilance department conducted raid and enquiry was conducted by vigilance department itself. But in the present matter, the Enquiry Officer was nominated on the basis of complaint made against the applicant.
13. As regards RBE No. 211/2002 is concerned, it is stated that the said RBE provides that the penalties of dismissal, removal or compulsory retirement from service on a railway servant should be imposed only by the highest of the authorities i.e. either by the authority which actually appointed the railway servant to the relevant grade or post or the authority which is empowered to make appointment to that grade or post at the time of imposition of penalty, which is the higher authority. In this regard, we may state that the appointment order as well as punishment order both have been issued by the same authority i.e. Assistant Divisional Engineer, NER, Gorakhpur (East). The competent authority in the case of the applicant is ADE, NER, and not the DRM as alleged by the applicant. Thus, the applicant would not get any help from the aforementioned RBE No. 212 of 2002.
14. From the perusal of enquiry report, it is also evident that sufficient opportunity to defend has been given to the applicant. He has participated in the enquiry. There is no violation of principle of natural justice. The applicant himself has admitted the charges leveled against him during enquiry, thus, on the basis of close scrutiny of entire facts and circumstances of the case, we are of the view that no interference is required in the impugned orders. No illegality or perversity are found in the impugned orders.
15. In view of the above, O.A. fails and the same is liable to be dismissed. We order accordingly. No costs.
16. All the associated MAs stand disposed of.
(Mohan Pyare) (Justice Om Prakash VII)
Member-A Member-J
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Girish/-
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