Central Administrative Tribunal - Mumbai
Milind Hanumant Shinde vs Central Railway on 16 January, 2025
1
OA No.525/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.525/2021
Dated this Thursday the 16th day of January, 2025
CORAM: Hon'ble Shri Justice M.G. Sewlikar, Member (J)
Hon'ble Shri Santosh Mehra, Member (A)
Shri. Milind Hanumant Shinde,
Aged: 34 Yrs, S/o: Hanumant Shinde,
Occu: Ex-Junior Booking Clerk, Daund,
Under Chief Booking Clerk,
Daund Railway Station, Sholapur Division,
Central Railway,
R/At: Railway Quarters Daund,
Near Daund Railway Station, Kurkumbh Mori,
Daund, Pune Dist., Mahrashtra -413801
Mob. No.98812801887. ... Applicant
(By Advocate Shri V.A. Nagrani)
VERSUS
1. The General Manager, Central Railway,
G.M. Office, C.S.M.T., Mumbai 400001.
2. The Additional Divisional Railway Manager,
Divisional Office, Central Railway, Sholapur,
Maharashtra, 413001.
3. The Sr.DCM, Divisional Office, Sholapur Division,
Central Railway, Sholapur, Maharashtra, 413001.
4. The Asst. Commercial Manager,
Divisional Office, Sholapur Division,
Page 1 of 37
2
OA No.525/2021
Central Railway, Sholapur,
Maharashtra, 413001. ... Respondents
(By Advocate Shri R.R. Shetty, Sr. Counsel
a/w Advocate Shri Sachin Patil)
Order Reserved on:12th December, 2024.
Pronounced on: 16th January, 2025.
ORDER
Per: Santosh Mehra, Member (A)
By this application, the applicant is seeking the following reliefs:
"8.1 To call for the records and proceedings of the case and quash and set aside the impugned orders No.SUR/C/D&A/565/MHS/BC/D/11 dated 16.04.2021 (Annexure A-1) passed by he Revision Authority No.SUR/C/D&A/565/MHS/BC//11 dated 24.11.2020 passed by the Appellate Authority (Annexue A-2), and penalty order No.SUR /C/ D&A/565/MHS/BC/DD/11 dated 08.03.2013 passed by the Disciplinary Authority (Annexure A-3).
8.2 To declare that the applicant is entitled to be reinstated into Railway service and treated as if not suspended and not removed from service but was continuing throughout and that the applicant is entitled for all the benefits including due promotions, increments and P.L.B. for the period he remained under deemed suspension and out of service and the same shall be granted to him.Page 2 of 37 3 OA No.525/2021
8.3 To order and direct the respondents to pass appropriate orders reinstating the applicant into the Railway service forthwith.
8.4 To order and direct the respondents to treat the applicant as having been continuing in service from the date of deemed suspension on 08.01.2011 and date of removal from service i.e. w.e.f. 08.03.2013 till the date he is actually reinstated into the service for all purposes including increments, MACPS, Promotions and Productivity Linked Bonus.
8.5 To order and direct the respondents to cause payment of full pay and allowances to the applicant from 08.01.2011 till the actual date of reinstatement with 18% interest there upon, within a time frame, for the entire period the applicant remained under deemed suspension and out of the Railway service.
8.6 To order and direct the respondents to make the monthly payment for the month of December 2010 to the applicant with 18% interest there upon, with a specified period as deemed fit and proper by this Hon'ble Tribunal.
8.7 To order the cost of this OA in favour of the applicant considering the hardship he and his family had to suffer throughout.
8.8 Any other order be passed in the interest of justice in favour of the applicant as deemed fit and proper by this Hon'ble Tribunal under the given facts and circumstances."
2. Facts of the case are that:
2.1 The Applicant, while working as TRC, was Page 3 of 37 4 OA No.525/2021 arrested by the Daund Police on 08th January, 2011 in a murder and attempt to murder case vide Crime No.04/2011 under Sections 302, 307 and 507 IPC. The case was committed to the Sessions Court, Baramati as Sessions Case No.38/2011.
The Applicant was placed under deemed suspension w.e.f. 08th January, 2011.
2.2 The then ACM acting as Disciplinary Authority passed the penalty of Removal from service with immediate effect vide Order No.SUR/C/D&A/565/ MHS/BC/DD/11 dated 08th March, 2013 in exercise of powers under Rule 14(ii) RS (D&A) Rules.
2.3 Subsequently, the Additional Sessions Court, Dist. Pune, in Session Case No.38/2011, mentioned supra acquitted the applicant/accused under Sections 307 and 507 IPC but convicted him under Section 302 of the I.P.C. vide its judgment dated 09th April, 2013.
2.4 The Applicant preferred Cr. Appeal No. 642/2013 against the conviction, before the Hon'ble High Page 4 of 37 5 OA No.525/2021 Court at Bombay and the Hon'ble High Court acquitted the applicant/Appellant vide its Order dated 13th August, 2020. 2.5 Consequently, the Applicant was released from the prison vie Prison letter No. Judl./Pri.-C- 267/M.P/1489/20 dated 22nd September, 2020. 2.6 Upon his acquittal and release from jail, the applicant preferred an appeal to the Sr. DCM, the Appellate Authority and the Respondent No.4 on 28th September, 2020 under Rule 18 and 19 of the RS (D&A) Rules, 1968 and in terms of the provisions of the R.B.E. No.127/1985 dated 29 th April, 1985 requesting reinstatement into service in the light of the acquittal by the High Court and further requesting to grant all benefits as were available to applicant on the date of last duty performed on 06th January, 2011, including pay and allowances, from 08th January, 2011 to 08th March, 2013 (Deemed suspension period) and further to release the unpaid monthly payment for the month of December 2010. The said request was duly forwarded by the Station Manager Page 5 of 37 6 OA No.525/2021 Daund to the Appellate Authority. This appeal of the applicant was rejected by the A.A. by its Order No.SUR/C/D&A/565/MHS/BC/DD/11 dated 24th November, 2020.
2.7 Aggrieved by the above rejection by the Appellate Authority, the Applicant preferred a Revision Petition on 08th December, 2020 to the Respondent No.2, the Revision Authority, who vide its Order No. SUR/C/D&A/565/MHS/BC/DD/11 dated 16th April, 2021, also rejected the Revision Petition. In view of the same, the applicant has filed this OA.
2.8 The applicant in his averments brought the following to our attention:
(i) In exercise of powers under Rule 5(2) of RS (D&A) Rules, 1968 and item 1(A)(c), B(iv) and C(a) of Railway Master Circular No.64, the DA could not and ought not to have passed the Penalty but was empowered only to invoke the Instructions in RBE letter No. E(D&A)58 RG 6/37 dated Page 6 of 37 7 OA No.525/2021 05th January, 1960.
2.9 According to the applicant, the Appointing Authority in terms of the above provisions, in his case, is the General Manager, the respondent No.1. Accordingly, the punishment of dismissal/removal/ compulsory retirement from Service cannot be inflicted on the applicant by any authority lower than the General Manager as laid down in a catena of judgments and as defined under Rule 2 of Railway Servants (Discipline & Appeal) Rules, 1968 which reads as follows:
"An Appointing Authority or an authority of equivalent rank or any higher authority shall be competent to impose penalties specified in clauses (vii) (viii) and (ix) of Rule 6."
According to the applicant, the Disciplinary, Appellate and Revisionary authorities have acted ultravires, exercised a power and authority not vested in them and illegally imposed the major penalty upon the applicant. The applicant further averred that the he had submitted an Appeal Petition (at para 4.6 of the OA) through the Prison Page 7 of 37 8 OA No.525/2021 Authorities against the Penalty order on 09th August, 2013, but nothing was heard about the same.
2.10 The applicant further contended that the impugned order Annexure A-l was passed in violation of the provisions of the R.B.E. No.127/1985 dated 29th April, 1985, the relevant part of which reads as under:
"3. The Department of Personnel has been consulted and it is clarified that while a distinction can be made between cases in which a court sets aside an order passed by an authority on technical grounds like failure to follow the prescribed procedure, and a case in which a person is acquitted by a court, in cases of acquittal themselves, no further distinction is possible as "Honourable acquittal" or otherwise. An acquittal by a court is acquittal from the charges framed against the accused and it has to be treated as such. In the circumstances, case of acquittal by a court of Law should be viewed as such and they should be distinguished from cases in which Courts set aside orders of Government on technical grounds like failure to follow the prescribed procedure, failure to fulfill the requirements of Article 311 of the Constitution, etc."
(underlining is ours) According to the applicant, the above position was accepted by the Principal Bench of this Tribunal in allowing the O.A.No. 1706/2004 vide its Order dated 11 February, 2005 Page 8 of 37 9 OA No.525/2021 in R.K. Gupta vs Union of India and Ors. 2005(3)SLJ 390 CAT. The said Order relying upon the decisions of the Hon'ble High Court at Madras, in Jayaram's case (AIR 1960 Mad 325) and Delhi High Court in Commissioner of Police and Ors Vs. Om Kumar and Ors, 2004(3) SLJ 272 stated "if one is acquitted by the Court the entire period of suspension is to be treated as duty for all purposes."
2.11 According to the applicant, the Principal Bench of this Tribunal has further relied upon the Hon'ble Apex Court decision in Andhra Bank Vs. W.T. Seshachalam, 2004(1) SCALJ 264, which held inter- alia that, "when a criminal proceeding is launched after investigation by an outside agency, employee is acquitted of the criminal charge, he would be entitled to full pay and allowances as subsistence allowance for the period of suspension".
2.12 The applicant averred that such payment of full pay and allowances are also specifically mandated as per the provisions of IREC Vol.II, Para-1343, para-1344 (F.R. 54A) Page 9 of 37 10 OA No.525/2021 and Govt.of India M.H.S.O.M. No.F.2/9/59-Ests.(A) dated 27th May 1961 and 30th May, 1962, para (4)(3)(ii). 2.13 Learned counsel for the applicant submitted that there is no delay in preferring the application because since the date of offence till he was acquitted by the Sessions Court, he was behind the bars. The respondents have not placed on record anything to show that the order of termination was served on the applicant while he was lodged in jail. He came to know of this order of termination only after he was acquitted and released from the prison. According to the learned counsel, the applicant was terminated without holding any inquiry and without assigning any reason as to why inquiry was not possible to be held. The respondents did not initiate any inquiry after the acquittal of the applicant and, therefore, the termination needs to be set aside. 2.14 The applicant asserted that the impugned orders Annexure A1, A2 and A3 are arbitrary and unreasonable and hence violative of Art. 14 and 16 of the Constitution of India. Page 10 of 37 11 OA No.525/2021 The Penalty Order Annexure A-3 in question is unsustainable for being passed in violation of Master Circular No.64 and Rule 5(2) of the R.S. (D&A) Rules, 1968.
3. Respondents filed their reply and had strongly contested the claim of the applicant.
3.1 Learned counsel for the respondents submitted that the Applicant was in jail continuously for 8 years and, therefore, such a person could never be reinstated in Railway Service. The Applicant's criminal case was solely a result of misdeeds in his personal capacity and the Railway Administration had no role to play. A person who was in jail for eight long years, could not be discharging duties for the Railways and hence, was not entitled to any relief in the present OA and the same is liable to be dismissed with cost. 3.2 Recalling the sequence of events, the learned counsel for the respondents submitted that on receipt of the information of arrest on charges of murder and attempt to murder the applicant was put under deemed suspension Page 11 of 37 12 OA No.525/2021 w.e.f. 08th January, 2011 due to his detention for more than 48 hours and involvement in a serious criminal offence. The Applicant was kept under suspension by the Disciplinary Authority in terms of Rule 5 (2) of RS (D&A) Rules, 1968 as he was under police/judicial custody for a period exceeding 48 hours. Applicant was charged under Section 302, 307 & 507 of IPC and even his bail was rejected by the Hon'ble Court.
3.3 The Disciplinary Authority in its order dated 08th March, 2013 stated that it was not reasonably practicable to hold an enquiry in the case. Therefore, in exercise of the powers under provisions of 14(ii) of RS(D&A) Rules, 1968, considering the facts and circumstances of the case, since the applicant had behaved in a manner unbecoming of a Railway Servant, it was felt that it was not desirable to retain in Railway Service. This order of the Competent Authority was duly upheld by the Appellate Authority and Revisionary Authority strictly in accordance with the provisions of law Page 12 of 37 13 OA No.525/2021 and prescribed procedure.
3.4 Learned counsel for the respondents highlighted that the applicant submitted Statutory Appeal, first time after lapse of seven years. According to him, the Appeal period prescribed in the DAR Rules was 90 days and not seven years as sought to be contended by the applicant. He pointed out that the removal order was dated 08th March, 2013 and Appeal was dated 28th September, 2020. Thus, the OA suffers from delay and latches.
3.5 Learned counsel submitted that as per SOP Schedule-II, the Appointing Authority or an Authority of equivalent rank or any higher authority, who is competent to impose the penalty of dismissal or removal or compulsory retirement from service, may also impose any lower penalty. He also averred that the Applicant has not raised objection regarding competency of Disciplinary Authority in his Appeal or Review Petition and it is raised first time before this Hon'ble Tribunal which is not permissible in law. Page 13 of 37 14 OA No.525/2021 3.6 Learned counsel for the respondents submitted that the applicant was appointed on compassionate ground and posted as Commercial Clerk by the St. DPO, Solapur Division vide letter dated 18th December, 2009. The applicant was working under the control of Sr. Divisional Commercial Manager, Central Railway, Solapur and hence Disc. Authority in exercise of powers has imposed the penalty of removal from service under Rule 14 (ii) of RS (D&A) Rules, 1968 w.e.f. 08th March, 2013. This order was duly upheld by the respective authorities under the DAR Rules. The charges framed by the DA against the applicant have been proved and same was posted on the notice board in the presence of two witnesses on 16th March, 2013. Hence, the question of reinstatement in service does not arise. Learned counsel further submits that the applicant was working under the control of Commercial Department. As a Disciplinary Authority of the Commercial Department, ACM is empowered to impose the penalty on Gr. C employee as per Page 14 of 37 15 OA No.525/2021 the provisions of DAR Rules.
3.7 He further submits that the Appellate Authority based on the opinion from the legal department and also as per procedure provided in DAR Rules, rejected the appeal of the applicant for reinstatement in service on the basis of acquittal by Hon'ble High Court which was rightly confirmed by the RA stating that the applicant was removed from service on account of arrest and rejection of bail.
4. In support of his averments, the learned Senior counsel for the respondents placed reliance on the judgment of the Hon'ble Supreme Court in the matter of Union of India & Ors. Vs. Jaipal Singh, (2004) 1 SCC 121 decided on 03rd November, 2003. The relevant portion of the judgment is quoted below for ready reference:
"..4. On a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law by this Court or constitute a binding precedent. Per contra, the decision relied upon for the appellant is one on merits and for Page 15 of 37 16 OA No.525/2021 reasons specifically recorded therefore it operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in Ranchhodji Chatruji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) & Anr., (1996) 11 SCC 603 decided on 28th October, 1996 [1996] 11 SCC 603. If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing re-instatement cannot be sustained and the respondent has to be re-instated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court in so far as it directed payment of back wages are liable to be and is hereby set aside."
(underlining is ours) Page 16 of 37 17 OA No.525/2021
5. He has further placed reliance on the judgment of the Hon'ble Supreme Court in the matter of Ranchhodji Chatruji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) & Anr., (1996) 11 SCC 603 decided on 28th October, 1996. The relevant portion of the same reads as under:
"....3. The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is whether he is entitled to back wages. It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basic of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in his own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned single judge and the Division Bench have not committed any error of law warranting interference."
(underlining is ours) Page 17 of 37 18 OA No.525/2021
6. The Applicant filed Rejoinder. In his rejoinder, he stated that the assumption that the applicant was in jail continuously for 8 years and, therefore, such a person can never be either appointed in the Railway service nor can be reinstated in Railway services", was preposterous. He stated that this is not mentioned in any rules, instruction nor any or any settled law stipulates so. According to him, it was false to state that the criminal case was off shoot of misdeeds of the applicant.
6.1 The applicant stated that the order dated 08th March, 2013 passed by the Disciplinary Authority and the orders Annexure A-1 and A-2 passed by the Revisionary Authority and Appellate Authority respectively were not as per the provisions of Rule 14(ii) RS (D&A) Rules 1968. The said orders were in its violation as the provision mandates that the Disciplinary Authority ought to have given reasons in writing for invoking Rule 14 (ii), which was not done in the present case. The Disciplinary Authority failed and Page 18 of 37 19 OA No.525/2021 neglected to abide by the relevant Circulars viz., DoPT. O.M. No.11012/ 11/85-Estt.(A) dated 11th November, 1985 as circulated vide the Railway Ministry letter No.E (D&A) 85 RG 6-72 dated 06th February, 1986 and in not observing the mandate of the Ministry's letter No.E (D&A) 85 RG 6-72 dated 06th October, 1988. According to him, the assertions of respondent that, "The charges framed by the DA against the applicant have been proved ..." were wrong as the Respondents did not conduct the disciplinary proceedings. He stated that as the applicant was continuously in jail/ custody, he could not appeal against the penalty dated 08th March, 2013 passed by the Disciplinary Authority could not have been further proceeded by him.
6.2 The Applicant submitted that he had preferred an Appeal and submitted the same to the jail authorities for forwarding to the Appellate Authority. However, the fate of the appeal was never disclosed to the applicant either by the jail authorities or the Appellate Authority. Under such Page 19 of 37 20 OA No.525/2021 circumstances, applicant could prefer the Appeal directly to the Appellate Authority only after having been released after the Order Annexure A-8 passed on 13th August, 2020 by the Hon'ble High Court discharging the Applicant from the Charges u/s 302 of the IPC also.
6.3 He further submits that the Order passed by High Court was clear acquittal and not based on technical grounds like failure to follow the prescribed procedure. He asserted that, "the rules do not permit a person in jail continuously for 8 years to be reinstated in railway service", was total misleading.
7. The applicant further placed reliance on the order of this Tribunal passed in OA No.525 of 2021 with MA No.431/2021 in the case of Shri Milind Hanumant Shinde Vs. The General Manager Central Railway & Ors. dated 23rd January, 2023. The relevant portion of the same reads as under:
"..... ......On 08th December, 2011, the applicant came to be arrested in connection with Crime No.4/2011 Page 20 of 37 21 OA No.525/2021 under Sections 302,307 and 507 of IPC......
.....On 08th March, 2013, the Disciplinary Authority passed the order of removal from service of the applicant. The applicant came to be arrested on 08th December, 2011 and was in custody till 08th March, 2013. Therefore, by operation of law, the applicant was placed under suspension as he was in custody for more than 48 hours. However, the applicant has not been paid the Subsistence Allowance.
.......If the applicant is entitled to Subsistence Allowance as per the rules, Respondent No.2 shall pay Subsistence Allowance to the 6 applicant if it is not paid to him. This decision shall be taken within a period of eight weeks by passing a reasoned and speaking order."
8. We have given careful thought and consideration to the averments of the learned counsel for the applicant and the learned counsel for the respondents. It is an admitted fact that the applicant was convicted of the charges of murder in Crime No.04/2011 and was in jail from 08th December, 2011/ (page A Synopsis) 2013 to 13th August, 2020 i.e. for around seven years. It is also clearly admitted that his conviction was purely on account of his personal deeds and had nothing to do with his official or administrative work. It is clearly understood and also admitted that for the said period of Page 21 of 37 22 OA No.525/2021 incarceration, his services were not available to the respondents and for which the respondents cannot be held responsible at all. It is also clearly understood that even if the orders of his Removal of Service were not passed by the respondents, the services of the applicant would not have been available to the respondent as he was in jail for the said seven years. Hence, the question of payment of back wages simply do not arise at all, as during these seven years, the applicant had not rendered any public service, and for the same the respondents were not even remotely connected or can be blamed. This position has also been clearly highlighted by the learned counsel for the respondent in the judgements of Union of India & Ors. Vs. Jaipal Singh (supra) and Ranchhodji Chatruji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, Himmatnagar (Gujarat) (supra). The relevant portions of the judgements are reiterated as below:
Union of India & Ors. Vs. Jaipal Singh (supra):
"On the other hand, if as a citizen the employee or Page 22 of 37 23 OA No.525/2021 a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. ...........the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, commit- ted a grave error, in allowing back wages also".
Ranchhodji Chatruji Thakore (supra):
" .......The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties.
In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages."
(underlining is ours) 9(a) Learned counsel for the respondents submitted that the applicant was served with the order of termination in Page 23 of 37 24 OA No.525/2021 the prison. He further contended that the applicant was not terminated on account of his conviction by Criminal Court. Therefore, upon his acquittal, there was no reason for the Disciplinary Authority to reconsider his decision of termination of the applicant. He contended that there is gross delay of seven years in preferring the OA and on this count alone, the OA deserves to be dismissed.
9(b) According to the learned counsel for the respondents, the averment of the learned counsel for the applicant at the Bar that the applicant could not go in appeal against the order of the Disciplinary Authority in 2013 as he was in jail is clearly untenable. It is clearly evident from the facts and circumstances of the case that the applicant could reach out to his lawyers and actively pursue his case in the Hon'ble High Court. On similar lines, he could have easily preferred an appeal to the Appellate Authority and Revision Authority in 2013 within the stipulated period. No acknowledgement slip or any evidence is brought on record of Page 24 of 37 25 OA No.525/2021 Prison Authority by the learned counsel for the applicant to prove that Appeal Petition was indeed given by the applicant on 09th August, 2013. It is obvious that the applicant has thought of the same only after his acquittal in the Hon'ble High Court in August, 2020 which is after lapse of seven years and is clearly hit by delays and latches. There also appears to be a contradiction in the sense that in para 4.6 of the OA, the applicant mentions that he had given an Appeal letter on 09th August, 2013 and he had not heard of the same subsequently whereas in para 5 of the MA, he mentions that he pursued the matter only after his acquittal and release from Jail.
10. As per Rule 25 of CCS(CCA) Rules, as pointed out by the learned counsel for the respondents, the appeal has to be preferred within a period of forty-five days. The relevant para reads as follows:
"25. Period of Limitation of appeals No appeal preferred under this part shall be entertained unless such appeal is preferred within a period of forty-five days from the date on which a copy of the order appealed against is delivered to the appellant:Page 25 of 37 26 OA No.525/2021
Provided that the Appellate Authority may entertain the appeal after the expiry of the said period, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time."
(underlining is ours)
11. In view of above, it is clear that assertion of the learned counsel for the applicant that he could prefer appeal in seven years period is totally wrong and unsustainable as the Rule clearly mentions that no appeal preferred under this part shall be entertained unless such appeal is preferred within a period of forty-five days from the date on which a copy of the order appealed against is delivered to the appellant. If the Applicant was very interested in pursuing the case with the respondent, he had enough time and opportunity. Even assuming that the applicant indeed prefer Appeal letter dated 09th August, 2013 (for which no official acknowledgement of receipt by Prison Authorities is furnished by the learned counsel for the applicant), if he did not hear anything, he could have easily also approached the Legal Services Authority of Maharashtra for the same. The Revision Authority and the Page 26 of 37 27 OA No.525/2021 Appellate Authority in their orders have upheld the orders of the Disciplinary Authority regarding imposition of penalty of removal from service under Rule 14(2) (a) of the Railway Servants Discipline and Appeal Rules, 1968. They have pointed out that the removal of service was done on account of the arrest of the applicant and the rejection of his bail petition. In the order, rejecting the bail application of the applicant, it was pointed out that the applicant if released on bail would tamper with the evidence and even threaten the principal witnesses. It is pertinent to mention here that as per para 1(C) (2) of the Master Circular No.64 of the Railways (Annexure A5), it is the duty of the Government servant who is arrested to intimate the fact of his arrest and circumstances connected there with, to his official superiors. The relevant extract is as follows:
".....(2) It shall be the duty of the Government servant who may be arrested for any reason, irrespective of the period of detention, to intimate the fact of his arrest and the circumstances connected therewith to his official superiors promptly even though he might have subsequently been released on bail. On receipt of the information from the Page 27 of 37 28 OA No.525/2021 person concerned or from any other source, the departmental authorities should decide whether the facts and circumstances leading to the arrest of the person call for his suspension.
Failure on the part of the railway servant to so inform his official superiors will be regarded as suppression of material information and will render him liable to disciplinary action on this ground alone apart from the action that may be called for on the outcome of the police case against him."
Nothing is brought on record to indicate that the applicant had carried out the same.
12. Regarding the repeated assertions of the learned counsel for the applicant that departmental enquiry was not conducted and the relevant provisions of Railway Servants (D&A) Rules, 1968 were not followed, these are laid down as below for evaluation. Rule 14 (ii) (a) of the Railway Servants (Discipline and Appeal) Rules 1968 reads as follows:
"Rule 14(ii) Coming to clause (b) of the second proviso to Article 311(2) there are two conditions precedent which must be satisfied before action under this clause is taken against a Government servant. These conditions are:
(i) There must exist a situation which makes the holding of an inquiry contemplated by Article 311(2) not reasonably practicable. What is required is that Page 28 of 37 29 OA No.525/2021 holding of inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate all the cases in which it would not be reasonably practicable to hold the inquiry. Illustrative cases would be :
(a) where a civil servant, through or together with his associates, terrorises, threatens or intimidates witnesses who are likely to give evidence against him with fear of reprisal in order to prevent them from doing so; or xxx xxx xxx
(ii) Another important condition precedent to the application of clause (b) of the second proviso to Article 311(2), or Rule 19 (ii) of the CCS (CC&A) Rules, 1965 (Rule 14 (ii DAR) or any other similar rule is that the disciplinary authority should record in writing the reason or reasons for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2) or corresponding provisions in the service rules. This is a constitutional obligation and, if the reasons are not recorded in writing, the order dispensing with the inquiry and the order of penal following it would both be void and unconstitutional. It should also be kept in mind that the recording in writing of the reasons for dispensing with the inquiry must precede an order imposing the penalty.
Legally speaking, the reasons for dispensing with the inquiry need not find a place in the final order itself, though they should be recorded separately in the relevant file. In spite of this legal position, it would be of advantage to incorporate briefly the reasons which led the disciplinary authority to the conclusion that it was not reasonably practicable to hold an inquiry, in the order of Page 29 of 37 30 OA No.525/2021 penalty. While the reasons so given may be brief, they should not be vague or they should not be just a repetition of the relevant rules."
(underlining is ours) In Rule 14 para 10 (3)(ii) of the Railway Servants Discipline and Appeal Rules 1968, it is stated as under;
"....Some of the observations of the Court which have not been set out in the said OM but which may prove to be useful in the day-to-day operation of the Railway Service Rules, have been extracted below:
(a) to (d) xxx xxx xxx
(e) Where the disciplinary authority feels that
crucial and material evidence will not be available in an inquiry because the witnesses who could give such evidence were intimidated and would not come had been ............... the disciplinary authority would be justified in coming to the conclusion that an inquiry is not reasonably practicable".
Important points decided in Tulsi Ram Patel's case
-
xxx xxx xxx
(3) While proceeding under Rule 14(ii), it is not
necessary that a minimal opportunity of showing cause should be given to the delinquent.
xxx xxx xxx ....(6) After the inquiry has been dispensed with, the penalty may be imposed straight away and no further requirements of natural justice are attracted. Page 30 of 37 31 OA No.525/2021
xxx xxx xxx .....(9) While taking action under Rule 14(ii), the authority must record reasons in writing. Such reasons may or may not be communicated to the employee, though it will be advisable to communicate them.
(10) The satisfaction of the authority will be subjective but on objective consideration and not mala fide.
(11) The employee is not without any remedy in case where action is taken under Rule 14(ii). He can still file an appeal.
xxx xxx xxx Guidelines for applying Rule 14 (ii) (a) Situation because of which holding of inquiry becomes not reasonably practicable must exist at that time when inquiry is decided to be dispensed with. (b) It will not be correct application of the rule if only such reasons are anticipated (as against actually existing). (c) Reasons impelling the authority to satisfy that it is not reasonably practicable to hold inquiry must be recorded in writing before actually imposing the penalty. (d) Reasons must be clear and unambiguous and germane, sufficient to warrant dispensation with inquiry and be supported by objective facts and/or independent material. (e) When the witnesses who are relevant to the case say that they will not attend due to intimidation, their statement to this effect must be obtained in writing."
(underlining is ours)
13. In the light of the above rules, we reproduce the relevant extracts of the order No.SUR/C/ D&A/ 565/ MHS/ Page 31 of 37 32 OA No.525/2021 BC/DD/11 dated 08th March, 2013 of the Disciplinary Authority:
"Imposition of Penalty under Rule 14(ii) of RS(D&A) Rules, 1968.
Central Railway DRM's Office,
Commercial Branch, Solapur,
No:SUR/C/D&A/565/MHS/BC/DD/11 Date:08.3.2013.
Whereas Shri. Milind Hanmanth Shinde while working as Booking Clerk Daund has committed serious misconduct in that:
Shri. Milind Hanmanth Shinde was arrested under charges of IPC Sec. 302,307 & 504, vide case Registration No.04/2011, on 08.01.2011 by the police Sub Inspector, Daund. From the orders of Additional Session Judge, Baramati dated 2.7.2011 it is observed that the incident occurred out of illicit relations of Smt. Sushma Dashrath Jathar with Shri. Milind Hanmanth Shinde, Booking Clerk Daund. Shri. Milind Hanmanth Shinde was quarreling with Smt. Sushma Dashrath Jathar was having love affairs with Shri. Naresh Tatya accordingly blamed her and he took out knife and attempted to commit her murder by inflicting blow on her head and other parts of the body. Also attempt to murder her and she was seriously injured. In the meantime, Prathamesh son of Smt. Sushma Dashrath Jathar tried to separate the quarrel. Shri. Milind Hanmanth Shinde intentionally and knowingly committed murder of Prathamesh minor son of Smt. Sushma Dashrath Jathar and made near about 25 injuries on the person of deceased Prathamesh and cut his throat.
It is also mentioned in the aforesaid order that if the said Shri. Milind Hanmanth Shinde, Booking Clerk Daund released on bail he would tamper the evidence and threat Smt. Sushma Dashrath Jathar. There is no ground to release on bail. Considering the nature of offence is committed of the injuries on the person of the victim bail is rejected by court. I am satisfied that in such circumstances, it is not reasonable practicable to hold an enquiry in the case. I, therefore, in exercise of the powers conferred upon me under Rule 14 (ii) of Page 32 of 37 33 OA No.525/2021 RS(D&A) Rules, 1968, the undersigned hereby considering the above fact and circumstances of the case Shri. Milind Hanmanth Shinde, Booking Clerk Daund, has behaved in a manner of unbecoming of Railway servant and is not desirable to retain in Railway Service.
Therefore, I have decided to impose upon him the Penalty of Removal from Railway service with immediate effect without any pensionary benefits.
He may be advised to hand over the Railway property in his custody, he may also be advised to vacate the Railway quarter near Kurkumbh Mori, Daund under occupation within one month from the date of this order. If he fails to do so he will be deemed to occupying Railway Quarter unlawfully and dealt with under rules for unlawful occupation.
Under Rule 18 & 19 of RS(D&A) Rules 1968 appeal against these orders lies to DCM/Solapur The appeal shall be preferred in your own name and under your own signature and presented within 45 days from the date you receive the order, sending a copy of the same to the undersigned. The appeal shall be complete in itself and shall contain all material statement and arguments on which you rely and shall not contain any disrespectful or improper language.
Please acknowledge the receipt."
(underlining is ours)
14. This speaking order of the Disciplinary Authority is in consonance with the Court order regarding the rejection of the bail application of the applicant on the grounds that he could have influenced the witnesses. It is also fulfilling the conditions of the Railway Servants (Discipline & Appeal) Page 33 of 37 34 OA No.525/2021 Rules, 1968. In this regard, the apprehension of the Disciplinary Authority was corroborated by subsequent events. It is observed that during the trial, that the PWs, including the mother of the child who was allegedly murdered by the applicant turned hostile.
15. So far as delay is concerned, the applicant has alleged in the rejoinder that he had preferred an Appeal while he was lodged in jail to the Disciplinary Authority against his termination. However, he has not placed anything on record in support of his contentions. Moreover, this contention has been raised in the rejoinder and not in the OA. Therefore, it can be said that this is an afterthought. In the OA, there is no whisper that the termination order was not served on the applicant. Therefore, since the OA is silent on this aspect of the matter, the natural corollary is that the applicant was served with the order of termination during his lodgment in jail.
Page 34 of 37 35 OA No.525/2021
16. Para 1342 and 1344 (FR) 54 (A) are not applicable here as the applicant was removed from service on grounds of charges of arrest by police in a murder case, rejection of bail by the Court on the apprehension that he would tamper with evidence and threaten PW 2, the mother of the deceased child. There was no order of Reinstatement and the order of Removal does not mention conviction.
17. As mentioned supra in Rule 14 of Railway Servants (Discipline & Appeal) Rules, 1968, 'the satisfaction of the authority will be subjective but on objective consideration and not mala fide'. We do not find any mala fide intention on the part of the Authorities. The grounds for the order of Removal can be summarized as follows:
(I) The material on record at the time of passing the order of Removal, include the Police Investigation report indicating commission of a murder and attempt to murder and an order of the Additional Session Court rejecting the Bail petition on apprehension of tampering with evidence and threat to the PWs.Page 35 of 37 36 OA No.525/2021
(II) At the time of passing the order by the Disciplinary Authority, the applicant was in judicial custody on grounds of committing murder of a 10 year old child, who was the son of a lady with whom he was alleged to be having illicit relationship and also for attempt to commit the murder of this lady out of anger and jealousy. There was a high probability that conduct of disciplinary proceedings of the applicant while he was in jail on such horrific charges would have caught the attention of the media and general public which would have potential of undermining the prestige, image, good order and discipline of the organization.
(III) Being in judicial custody might have impeded the smooth conduct of the disciplinary proceedings also.
18. Hence, the order passed by the Disciplinary Authority and subsequently confirmed by the Appellate Authority & Revisional Authority clearly fall within the ambit of the Railway Servants (Discipline & Appeal) Rules, 1968 and the judgments of the Hon'ble Supreme Court mentioned Page 36 of 37 37 OA No.525/2021 above by the learned counsel for the respondents.
19. In view of above facts and circumstances, we conclude that the orders passed by the Disciplinary, Appellate and Revisionary authorities were strictly in consonance with the laid down laws, rules and procedures. We do not consider it necessary to interfere with the decisions given by them and the OA is liable to be dismissed on these grounds. Hence, the OA is dismissed. Pending MAs, if any, stand closed. No costs.
(Santosh Mehra) (Justice M.G. Sewlikar) Member (A) Member (J) dm. Digitally signed by Deepti Ganesh Munarshi Deepti DN: C=IN, O=Personal, OID.2.5.4.65= dd2229ccb2a64933849d0e889f7908d1, Phone= 270b8c883fb6c7df159699dde8a3a29e49 a591f4547843867fc06f0095732d99, Ganesh PostalCode=400083, S=Maharashtra, SERIALNUMBER=
60e5a202fd00f69f0731b41e2e3bdfa180f 471e3c55c542947568cc8f7d6a4f4, CN= Munarshi Deepti Ganesh Munarshi Reason: I am the author of this document Location:
Date: 2025.01.20 13:47:37+05'30' Foxit PDF Reader Version: 2024.3.0 Page 37 of 37