Central Administrative Tribunal - Kolkata
Smt A Rajeswari vs S E Railway on 20 February, 2019
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X o.a. 350.962.2014 with m.a. 350.106.2016
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
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No. O.A. 350/00962/2014 Date of order: ^ Q2j-
M.A. 350/00106/2016
Present HotVble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
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1. Smt. A. Rajeswari, f
Wife of late A.K Rao, @ A. Kameswar Rao,
Ex -Head Clerk, in the office of the !
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Sr. Divisional Commercial Manager, 4
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Kharagpur, South Eastern Railway, I
Since Removed .from service w.e.f. 31.03.2011
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occupation : Hou'sefwife, j
^ ' Residing at: Railway Quaittef Nq. LM-7
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(/> X Kyt- Applicams.
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1. Union^oJ India, , .y
V. ^Through General Manager
X. Sbuth^Eastern .Railway,
'XI1A, Garden Reach Road; *
Calcutta - 700 043. ^ t
2. The Divisional Railway Manager,
Kharagpur Division, Kharagpur,
South Eastern Railway,
District: Paschim Medinipur - 721 301.
3. The Sr. Divisional Commercial Manager,
Kharagpur Division, Kharagpur,
South Eastern Railway,
District: Paschim Medinippur-721 301.
4. The Divisional Commercial Manager,
Kharagpur Division, Kharagpur,
South Eastern Railway,
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2 o.a. 350.962.2014 with m.a. 350.106.2016
District: Paschim Medinipur-721 301.
5. The Additional Divisional Railway Manager,
Kharagpur Division,
South Eastern Railway, Kharagpur,
District: Paschim Medinipur-721 301.
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... Respondents.
For the Applicants Mr. K. Chakraborty, Counsel
For the Respondents Mr. B.L. Gangopadhyay, Counsel
ORDER
Per Dr. Nandita Chatteriee. Administrative Member:
The instant Original Application-has-a chequered past and this Tribunal has been approached in third stage litigation.
The original applicant had.also-passed away during pendency of the O.A., +JU■■ -r- .
and, with the approval of the-Tribunal,; his legal heirs'were substituted who continue to.pursue the.proceedings>and to seek the following relief:- ., "A) To file and ..prosecute^'theMnstant application jointly sunder fRule 4(5)(a) of the A.T. .(Rrqcedure);Rulest 1987 since both the applicants have prayed, for the same reliefs'arisingout of "samexause of action; ' -
. * B) Do issue mandate upon the.respondents, their men and agents and each of them to forthwith rescind; recall and withdraw the purported;-
i) Charge Memorandum dated 26.9.2008 being Annexure A-V
'•hereto; -
ii) Enquiry Report dated 14.9.2010 being Annexure A-8 hereto;
iii) Order-of the Disciplinary authority^clatecl ^31.3.2011 being
Annexure A-10 hereto;
iv) Order of the Appellate authority dated 24/27.9.2013 being
Annexure A-14 hereto and not to give any or further effect or effects to the same;
v) Order of the Revisioning authority dated 30.4,2014 being Annexure A-18 hereto and not to give any or further effect to the same;
C') Do issue mandate upon the respondents, their men and agents each of them to forthwith declare the said A.K. Rao @ A. Kameswar Rao to be reinstated in his service w.e.f. 31.3.2011 notionally and pay all the arrear salary wages, dues allowances including Pension of the said A.K. Rao to the applicants, Family Pension to the applicant No.1 and all other benefits to the applicants as admissible to the said A.K. Rao to the applicants forthwith with 18% interest on the total sum thereon; D) Grant cost of this proceeding in favour of the applicants;
3 o.a. 350.962.2014 with m.a. 350.106.2016 E) Pass such other or further order or orders, mandate or mandates as may appear to be fit and proper; "
3. Heard both Ld. Counsel, examined pleadings, documents on record. Ld. Counsel for the applicant would rely on the following judgments and orders in support of his claim:-
(i) A.R.S. Choudhury, Petitioner v. The Union of India & others, 1956 Calcutta 662(S) AIR V 43 C 187 Dec.
(ii) Amat KantiBose v. TheWest BenpahState Co-operative Bank Ltd. & ors.^(2000,
(iii) jSrrBi&jfh Kumar Banerief&y^OI & ors. [Mtig. 2ohof 2010 with OA 414(82008), t
iv) magendrM^m^Jfiori Mndti & . (2016) &WB1«8 (Cal) 24h €
4. Th^xase of ttSapqjicaBtfj^g eceased ^ouse, A. Srao, Ivhile ■ working HAead Cler^ theXfficeioflthelresoondenLNo? 3, was is penalty Itiajl e sheet on 2^^008 for alleged misconduct during 19994o 2G01.
m W a major hat, the enddir^gajns M4HPf?mpJpyee ^conducted jexparte and the1 iscipTinar/^autfrority passed a penalty^ord^ renjoviog thefsaid ex-
*, employee from service w.erf. ST^S^O-lsl^and^the said orders/of th^aisciplinary 1 \ V -artST0 'jf A authority were mpheld^by the apjM^te authority asi^welLas the revisional A&P*' JFT authority. % ' That, the deceased employee, in his life time, had earlier approached the tribunal in O.A. No. 265 of 2014 on the issue of illegal conduct of the entire disciplinary proceedings, which was disposed of by the Tribunal on 8.4.2014, directing the revisional authority to dispose of the pending revisional application .*■ % within a given time frame. The revisional authority thereafter rejected the petition. Since the employee passed away on 25.5.2014, the instant application was filed by the legal heirs of the deceased employee.
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£ 4 o.a. 350.962.2014 with m.a. 350.106.2016 The applicants have, inter alia, advanced the following grounds in support of their claim:-
(a) That, the proceedings were conducted in violation of the ppmeipia ar natural justice when the deceased employee was not allowed to cross-
examine the most vital witness namely, the Sr. Divisional Commercial Manager, Kharagpur, that the enquiry being held exparte on 9.8.2010, 11.8.2010 and 12.8.2010, the deceased employee was denied the right to cross-examine the crucial PW-I and that the enquiry was closed in haste.
(b)That, the statutory and mandatory provisions relating to the procedure of holding enquiry proceedings^have been violated.
(c) ThatrJhe charge-memorandum having been Jssued nine^years'after the date of occurrence is, not perrnissible under the provisions: of law as applicable to the respondent a'utho'ritie.s; ^ t
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5. Per.contra, the respondents have argued-as follows* r "s That-the husband of the applicant, one Late A.K: Rap, an ex-employee / CO, while working as Head-Cl'erk jn Comml. Oeptt: at ^Kharagpur, was issued with a Major Penalty Chargesheet dt. 26-09-2008-as per the vigilance enquiry report on the allegation of committing a .grave misconduct in as much-as he had connived to manipulate the contract agreement of M/S. .Dynamic International after its execution,-.that he -had changed the., tenure period in the original agreement to more than 20 years.and that he also gave contradictory statements . to,, vigilance deptt. with deliberate intention to misguide vigilance investigation. The said ex-employee/CO submitted his representation denying the charges and •. attended the enquiry on certain days along with his defence helper. The enquiry officer found the ex-employee/CO guilty of the charges levelled against him and the ex-employee/CO submitted his defence statement to the enquiry report. The disciplinary authority, after considering the entire D&A proceedings, passed an order for removal from service with immediate effect i.e. from 31-3-2011.
4<t/ 5 O.a. 350.962.2014 with m.a. 350.106.2016 I S' Thereafter, the ex-employee/CO preferred an appeal to the appellate authority. The appellate authority, after considering the appeal, upheld the punishment. The ex employee/CO thereafter moved the Tribunal in ©A Wo. 1244 oiiiUl i a&tfj, the Tribunal disposed of the same with a direction upon the appellate authority to delve into the points raised in the appeal and to pass an order on the appeal in accordance with Rule 22 of RS(D&A) Rules, 1968. In obedience with the order, the appellate authority passed a fresh order. A Revision Petition was thereafter preferred to the Revisioning Authority. While the revision petition was pending, the ex-employee/CGyhusband of~the applicahyurther moved the Tribunal in OA No. 350/00265/2014 and the same was disposed of by the Tribunal with the direction to dispose of the revision petition within 4 weeks. The Revisional authority rejected the revision petition. Meanwhile;1 the\ex-employee/CO passed away and .his legal heirs have filed the-instant OA before the Tribunal agitating their claim, which, in .the' opinion, of the .respondents, does not merit
- .i consideration. «* .
6. The point of determination herein is whether the-disciplinary-proceedings ■ ■ j are vitiated by violation of principles of natural justice and. procedural justice and also non-adherence to settled provisions of law.
7.{1) At the. outset, we refer to the enquiry conducted by Vigilance Branch and the clarificatory statement of the then Dy. COMPS, who was functioning as Sr. DCM, KGP at the material'point of time (Annexure A-1 tojhe O.A.) and extract • the following statements as below:-
"Clarificatory statement of Sri M.L Appa Rao, Dy. CCM (PS), S.E. Rly., 14, Strand Road, Kolkata - 700 001 recorded in the Vigilance Branch on 16.10.2006.
Xxxxxxxx Q.3 Please confirm whether the erasing, using of white ink and re-typing as visible in the agreements available at page No. 11 in File No. Corn/G*18/2/M-C/HPML and at page No. 88, & 90 in File No. Com/G18/2/M/CFF-BK were within your knowledge.
Ahs : It is not at all in my knowledge .and it appears to be an act of tampering, manipulations and interpolations in the agreements by some vested group in connivance with the dealer who is the custodian of the files.
6 o.a. 350.962.2014 with m.a. 350.106.2016 Xxxxxxxxx Q.8 Please see Sr. DCM/KGP's File No. Com/G.IB/ZMC/BK-Pt., File No Com/G. 18/2/M/C/-KGP-BK-Pt and File No. Cem/Q.le/2/M/c/-.e7 whcrsin yew have put two signatures at the last page of the agreement. Please justify the reason why you have put two signatures?
Ans : While the agreement were put up to me for my signature, l can remember that I had also been insisted by the dealer as well as the MRR/KGP to put an additional signature parallel to the signatures of the witnesses. They convinced me that this additional signature was required ror attestation of the signatures or me witnesses. They also put the stamp of Sr. DCM/K/KGP at that place for getting my signature there at.
Xxxxxxxxxxx Q.No.13 The agreements'executed with M/s Dynamic International in file No. Com/G18/2/M/C/CFF-BK'on22/3/2001 valid from 01/4/2001 to 21/12/2021 and in file No. Com/G18/2/M-C/HRML on 01/6/2001 valid from 01/6/01 to 31/12/2021. It is also seen that there are erasing, using of white ink and re-typing of the words relating to validity of the agreement and-the corrections:were also countersigned by you in addition to the typed remarks.
"N.B: white ink applied in .3 places;sone in first line, 2;{in para IS^rucase'tof the 1st agreement and there,.-is erasing, using :of'white ink and'fe-typing at para'9 in the 2nd agreement supported by typed remarks "N.B. white ink applied in one place at page No. 2 of clause 9 of the agreement" above your last signature. Please state whether the catering contracts can be executed for such along period.
Ans: So far as I know, generally the validity of catering contracts can be for a maximum period of 5 years. The smaller contracts like the-questionediases were for. even shorter term. I am sure that the agreements in-question have been tampered subsequently and the corrections were done imorder to extend benefit to the contractors by some group of. people of vested interest. After execution of these question agreements the files of papers were also scruitinised by my successor Sr. DOM Sri Vivek Srivastava and food samples.collected and the contractor was. asked to meet CCM/Catg. forfurther terms and conditions in addition to the conditions agreed in the original agreement: If the contract is given by me for such a long period i.e upto 2021, they would have certainly poinVout such abnormality that
- means originally such long time contractlwas not executed by. me.. It is arrattempt by the vested group in dominance with the dealer Sri Kameswar Rao and the Catering Manager Sri Narendra Prasad for their advantage. 1 am enclosing the'file notings and approval of CCM/Catg. alongwith this statement. In this regard such abnormality and interpolation were reported to me by Smt. Archana Srivastava present Sr. DCM/KGP dated 21/2/2006 in connection with the Court case filed by the contractor. I have screened the files and submitted my personal affidavit to the Hon'ble High Court/Kolkata (enclosed). On the basis ■' of my annexures affidavit DCM/KGP Sri B.N. Singh submitted the main agreement to the Hon'ble High Court/Kolkata (enclosed). The case was disposed of.by the Hon'ble High Court vide
3) Judgement Copy r 4) Agreement Copy in the custody of the contractor which was examined by ■the Hon'ble High Court/Kolkata.
5) File notings pertaining to the review and scrutiny of the contracts by Sri Vivek Srivastava, Sr. DCM/KGP (pages - 3)
6) Intimation of the abnormality in this contracts by present Sr. DCM/KGP Smt. Archana Srivastava (Page-1) Annexure A-t to the O.A. is incomplete from this point.
h 7 o.a. 350.962.2014 with m.a, 350.106.2016 f From the above, it is inferred as foliows:-
(a)That, the insertion of the revised date and erasing using while ink and retyping (as visible in the agreement) were not within the knowledge of the Sr. DCM/KGP and, according to him, it appeared to be an act of tampering, manipulation and interpolation by some vested group in connivance with the dealer, who was the custodian of the file.
(b)That, the dealer as well as the MRR/KGP had insisted that the then Sr. DCM/KGP put an additional signature parallel to the signature of witness for attestatibmpftsigrteture of'the-rwitnessessand had marked his signature with the stamp of Sr. DCM/KGP below,the same.
(c)That, such insertion., of the year 202.1 extending the tenure of the
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contract by 20^ears weje^agkinstjhorms as, the maximum period is only-five years-and thjs could bnly^.be done with, the connivaftcet-,of the dealer and the-CateringJWanager.
(d) -None of the:;successof .Sr^DCMs^had rep'ofted the abnormality; and ; ■■ f interpolation thereafter. , >s W |
(e)The then Sr. DCM/KGP also referred to the directions of the Hon'ble High Court wherein:;the original agreement'had'been produced but as the-orcfers4)f the judgment of the Honfrle High'''Cbuft are?rnot in the pleadings, it is noted that, the findings of the Hon;ble High Court have not been produced-^before us by any of the parties.,-' (II), We next examine the Articles of Charges^which were fonwarded to the ex- employee/Charged Officer vide memorandum dated 26.9.2008:
"Article-1 Shri A.K. Rao, Hd. Clerk/KGP being the dealer and custodian of all catering files is directly responsible for keeping the files in his custody, No. manipulation in the contract agreement with M/s. Dynamic International could have taken place without his direct connivance, knowledge and complicity with M/s. Dynamic International and Shri Narendra Prasad, MRR/KGP now at IRCTC/KDL. Short term contracts were signed by N/s. Dynamic • International with Sr. DCK/KGP for supply of fact food through departmental catering unit/KGP on commission sharing basis of 75:25 ratio. Such contracts were executed during December 2000 to June 2001 and the validity of such catering contracts was generally for a maximum period of 5 years, Shri A.K. Rao in connivance with Shri N. Prasad and M/c.
8 o.a. 350.962.2014 with m.a. 350.106.2016 k,rr-
Dynamic International had put up the contract agreements for signature to the them, Sr. DCM with interpolated period of validity with a view to extend illegal favour to M/s. Dynamic International and got additional signatures signed by the Sr, DCM in the agreements which pre pt&MGd in order to establish the future manipulations as legal. He had used his close proximity with the Sr. DCM so that while the agreements were put up fo Sr. D^Mfep' signature the dealer Shri A.K. Rao along with Shri N. Prasad, MRR/KGP at at IRCTC/KOL insisted and convinced the Sr. DCM to put an additional signature parallel to the signature of the witnesses for attestation of the signature of the witnesses. This was done with a prompt mind to establish the legality of pre-planned manipulations to be made in the agreements in future.
2. In two of the contract agreements with M/s. Dynamic International, alternations with while ink with fresh typing embossed had been made whereby the agreements were made valid for more than 20 years. The 1sl agreement regarding supply/sale of fast food was made valid with effect from 01.04,2001 to 31.12.2021 and the 2nd agreement regarding supply/sale of Haldiram products was made valid with effect from 01.06.2001 to 31.12.2021. These-alterations were authenticated vide 'NB1 and the then Sr. DCM/KGP viz. Sri M.L. Appa Rao, at present CCM (FMfhad signed-'beibW^the authentication. It is for sure that Sri A.K. Rao, Head Clerk, Sr. DCM's Office/KGP and SrrNarendra Prasad, MRR/KGP now at IRCTC/KOL had ulterior motive,to manipulate the agreements later and that is why they cunningly obtained the additional signatures of Sr. DCM/KGP in the agreements to render undue, privilege to the contractor authenticating the, corrections against the signature of SR. DCM/KGP.
3. His contradictory statements proye-his complicity in Vie matter. He had stated that he handed over the catg. Files to Sri Narendra Prasad, MRR/KGP now at IRCTC/KOL as and when Sri Prasad asked for the same. Being the custodian Of Catg. Files and Catg. agreements he tried to pleaded ignorance in his first statement dated 06.02.2006 regarding manipulation done in two agreements. Sri A.K. Rao, Head,Clerk/Sr. DCM's Office/KGP after...getting .the files ^containing-manipulation-in the., agreements of M/s. Dynamic International did not-:bring.,the irregularities of obliterations and re-inscriptions .'in the agreements regarding the'abnormal period ofcontracts for'more than 20 years4o the'notice of the then Sr. DCM/KGP'or to any other concerned officials. However, in his subsequent statement dated 20.11.2006 he had contradicted his earlier stand by stating that he had brought the change of tenure in the contract to the notice of Sr. DCM, As a dealer, safe keeping of the1'file was his responsibility. His contention .that he-handed over .the files on verbal instruction-and accepted manipulated files on verbal assurance is not acceptable.
4. Thus by the above act he. extended undue benefit to the contractor M/s. Dynamic International in connivance with Sri Narendra Prasad, MRR/KGP now at IRCTS/KOL By handing over the catering files to Sri Narendra Prasad, MRR/KGP now at IRCTS/KOL, Sri A.K. Rao helped him to manipulate in the period of contracts in the agreements for more than 20 years. During clarification Sri M.L. Appa Rao categorically mentioned that the contractor in connivance with Sri A.K. Rao tampered the agreemts.
5. The statement of Shri M.L. Appa Rao, the then Sr, DCM of Kharagpur categorically suggests that the act of tampering, manipulation and interpolation in the agreements was ' done by Shri A.K. Rao with vested interest in connivance with Shri Narendra Prasad and Mr/s. Dynamic International.
6. ■ Thus it is established that Shri A.K. Rao had connived with Shri Narendra Prasad, MRR/KGP now at IRCTC/KOL and the contractor M/s. Dynamic International and manipulated the agreements with an ulterior motive of personal gain and thereby committed grave misconduct and irregularity in the contract agreements, / i'-
9 o.a. 350.962.2014 with m.a. 350.106.2016 Article-ll Sri A.K. Rao was the dealer and custodian of the catering files throughout the tenure of Sri W.L Appa Rao as Sr OCM/KGiP, ©w/oa that period §hci Aeea Rao* had executed some short term contracts with M/s. Dynamic International for supply/sale of various food items through departmental catering unit at Kharagpur Station on commission sharing basis in the ratio of 75;25. Such contracts were executed during December-2000 to June-2001. Abnormalities were noticed in the tenure of contractual period of the agreements of two contracts namely, (i) Agreement for supply/sale of 'Haidiram Madam Lai' and haldiram products and (ii) Agreement for supply/sale of Fast food, Chinese food and South India dishes through departmental Catering stalls and trollies on re-sale basis at Kharagpur Rilway station of S.E. Railway.
In his statement dated 06.02.06, Sri A.K. Rao, Head Clerk/Sr. DCM's office/KGP stated that as per verbal order of Sri M.L. Appa Rao, the then Sr. DCM/KGP, he handed over 4/5 files along with the file No. Com/G-18/2/M-C/HRML to Sri Narendra Prasad, the then MRR/KGP and the same file (bearing No;. Cbm/G-18/2/M-C/HRML) was returned after 2/3 days by Sri Narendra Prasad with'the copies of the agreement enclosed in the file. Sri A.K. Rao admitted in his statement that as the file came fronrSr. DCM/KGP.through the then MRR/KGP he did not check the contents -of the file and even .did not notice the date of execution of agreement, validity of agreement or any other formalities of -.the agreement. In summary Sri'Rao vide his,statement dated 06,02.06 pleaded that he was totally unware of the contents in the file,..execution of agreement etc. However, in his subsequent statement dated 20l.11.06, Sri-A.K. Rao stated that as per verbal'order of Sri Ml. Rao, the then Sr. DCM/KGP, he handed over both the agreement files bearing Nos. Com/G-18/2/M/CFF-BK and Com/G-18/2/M-C/HRML to Sri Narendra Prasad, the then MRR/KGP, Sr.DCM/KGP returned the files to him about a month later / after execution of agreenienLJrt fiie-.Ngf; ,Cprn/G-t8/2/M/CFF>BK, the validity period iof the , agreement in the contractwas fr6m''01.04.2b0.1to 31,12r20|? and in the file No. Com/G- 18/2/MD/HRML, thev= validity'period;; ofi-. the agreemenUMh the contractor was from 01.06.2001 to 31,12.2021.. Sri A.K. Rao stated that when he brought this to the notice of the then Sr. DCM/KGP, HE (Sr. DCM) told him that agreement for more than 20 years was executed, on an experimental basis for the benefit of Railways. This Sri A.K/Rao's 'second statement dated 20.1.1.06' was \contra'dicting/'his earlier . statement dated 06,02.06 regarding y The period after which the files were returned to him.
i) The person to whom he returned him the files.
ii) The personal verification of the contents of the agreement executed by Sr. DCM/KGP.
As such, the contradiction in statementsls considered as an after thought statement by Sri A.K. Rao in order to escape his liability for the manipulation in the agreement and also to shift the responsibility for the same to Sri M.L. Appa Rao the then Sr. DCM/KGP. By the aforesaid acts, Sri A.K. Rao, Head Clerk/Sr. DCM's Office/S.E. Railway, Kharagpur committed grave misconduct and irregularity and thus failed to maintain absolute integrity and devotion to duty. Thus he acted in a manner unbecoming of a Railway servant in contravention of Rule No. 3.1 (i), (ii) & (iii) of the Railway Services Conduct Rules 1966 and thus rendered himself liable for disciplinary action in terms of Railway Servants D&A Rules, 1968 as amended from time to time.
Sd/-
Divl. Commercial Manager, S.E. Railway/Kharagpur.'' LX 10 o.a. 350.962.2014 with m.a. 350.106.2016 Annexure B to the said memorandum also enlisted the relied upon documents as under:-
"ANNEXURE - III Relied upon documents to substantiate the charges framed against Sri. A.K. Rao, Head Clerk/Sr. DCM's Office/S.E. Railway, Kharagpur.
1. Statement of Sr. M.L. Appa Rao, the then Sr. DCM/KGP in t sheets.
2. Statement of Sri A.K. Rao, Head Clerk/ Sr. DCM's Office/ KGP dtd. 06.02.06 in 5 sheets.
3. Statement of Sri A.K. Rao, Head Clerk/Sr. DCM's Office/KGP dtd. 20.11.06 in 4 sheets,
4. Copies of two contract agreements in question - in 5 sheets.
Sd/* Divl. Commercial Manager S.E. Railway/Kharaopur."
It transpires from the pleadings that the list of witnesses was not annexed with the memorandum of charge. 'v H It is;seen that the Article.I ofaCharge^entirelyrelies/on the statement,of Sr. DCM/KGP before the vigilance ..that-he was convinced; to put ah additional signature .parallel to the signature of. the witness purported for attestation of ■• i signature ofrthe witness.
Article II of the charge'also is1 based on the allegations that the deceased employee/charged officer' had issued. contradictory statement on 6.2.2006, pleading his ignorance of contents of the file or-execution-'of the agreement as against a subsequent statement,rdated 20.11:2006-when'theyex-employee / charged officer admits to have pointed out the anomaly to the then Sr. DCM, who reportedly advised him that the 20 years tenure was for an experimental basis for ■the benefit of the Railways.
(lit).. Next we refer to the deposition made by the ex-employee/Charged Officer, f.
PWI and PWII and examine in detail the participation of the ex employee/charged officer therein.
The process of hearing has been documented in the Presenting Officer's brief (Annexure A-7 to the O.A.) which states that preliminary hearing was held on 8.5.2009 wherein the ex employee/CO had inspected all the documents (cited 11 o.a. 350.962.2014 with m.a. 350.106.2016 as RUDs) and that the first regular hearing was held on 12.6.2009 when the CO, DC & PO attended the enquiry. As PW-2, Shri B. Pal, who is the CVI (C)/GRC failed to attend, the regular hearings were adjourned to 17.7.2009, to 28.8.2009, to 28.8.2009 and thereafter fixed on 24.9.2009. We note here that in all the regular hearings so cancelled and adjourned on account of the absence of PW2, the Presenting Officer has noted the presence of the ex employee/charged officer. Ultimately, PW 2 was examined on 24.9.2009 and cross-examination continued in further hearings.
At this point, we further (noter. that although PW1, who was the then Sr. /-r-* ^ . ■ / DCM/KGP and the most vital witness, and Whose statements formed the basis of the charges framed^against the.ex-employee /GO, was not called upon to depose .< j at the first instance during .the regula^hearing.'lt is alsp noted thaUdespite the ex- employee/CO"being present in^all.theserregular hearings, as the PW1 was not called to depose during.the initial dates of hearing, the ex-employee/CO did not get an opportunity to cross-examine PW1, . The ^second regular hearing wyvas held on,,263.2009 and,-upon being dissatisfied with the .proceedings, ;(the . CO: requested Jor a change of *10 on allegation of bias. The competent authority, however, rejected the allegation and instructed that enquiry be continued and if the CO did not find his DC cooperating with him, he could nominate another DC.
Accordingly, the subsequent regular hearings were fixed on 9.8.2010 .10.8,2010 and 11.8.2010. Herein we find that although the ex-employee/charged officer had been granted leave by his competent authority, the IO proceeded with . the enquiry exparte without any intimation to the ex-employee/CO notifying the f.
intent to proceed ex parte. It is also noted that it is during these crucial days and especially during the absence of the ex-employee/CO on 11.8.2010, that the PW1 rendered his deposition. He could not be cross-examined as the ex- employee/CO was on leave. The IO closed the proceedings on 11.8.2010 itself.
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12 o.a. 350.962.2014 with m.a. 350.106.2016 The PO concluded his Presenting Officer's brief, (Annexure - 10 to the O.A.) stating as under:-
"6. In view of the above it is substantiated that:-
i) That Sri A. Kameswar Rao (CO) was the catering dealer at the material time. H) The C.O. had dealt with the case of execution of agreement between M/s Dynamic International and Railways.
iii) The C.O, was always in close proximity of the MRR/KGP, Sri Nagendra Prasad.
iv) Their exists interpolations and use of white ink in the agreement of M/s Dynamic International for which primary responsibility lies with Sri A. Kameshwar Rao (CO) as the dealer and custodian under whom the files are kept under lock & key.
v) He had given contradictory statement regarding:-
(a) The period after which the files^were^returhed.to him. <b) The person who returned hirffihe files. , ■
(c) His personal verification of the contents of thet agreement executed by Sr. DCM/KGP. "
Cons/der/ngihe above, the Article -1 & Article - II of charge against Sri A. Kameswar Rao is hereby proved to be correct and stands substantiated. iy i* h 'W. SA
-.^^(A^Bhattacharjee) ** X j* ^JlSCVI/C/GRCtr > '* . Presenting Officer" \ '.i While the .statements at (i), (ii) and (v) are statements of fact-/ the r conclusions/at (iii) and'^iy-j. cpuldf not be said Mp"' have been ^conclusively substantiated on account'of the-"honfdeposition and the jack, of opportunity to cross-examine the vital witness by the CO.
(IV) the InquiryvOfficer submitted^.-his..-report proving both charges. While v /• .
analyzing the evidence^and arriving at his conclusion, iMs seen-that Para 7.7 of the Inquiry Report is nothing but a repetition of the conclusions arrived at by the PO, almost entirely based on the statement of PW1. The IO in his report Para 7.8 . .has stated that the CO has avoided to examine PW1. This surprises us as the . • ex-emplpyee / CO was not given a notice of exparte enquiry and also the PW1 who is the most vital witness in this matter, was not invited to depose in the early days of hearing wherein the ex-employee/CO was present consistently and without fail.
ux y-" 't__ 13 o.a. 350.962.2014 with m.a. 350.106.2016 (V) We also find the examination of PW1 by the PO to be rather cursory and the enquiry was Immediately cloned thereupon, The PO's examination of PW 1 is produced verbatim as under:-
<i a No. EQ0/AKR/D&A/KGP/10/154 Dated 11.08.2010 Place: CCM(G)'s Office/Kolkata Sub: DE against Sri A, Kameswar Rao, Hd. Clerk under Sr. DCM/KGP Present:
1) Sri A.K. Haider E-O/GRC
2) " A. Kameshwar Rao - CO (absent)
3) " M.V.D. Sat'yanarayana - DC (absent)-
4) " A. Bhattacharjee, CVI(C) -'PO
5) " M.L. Appa Rao - PW-1
Regulanhearing of the above case - PW-1 is hereby advised to speak truth before.the enquiry • Examination of PW-1-by the.PO ^ ^ ii"
■w:.
Q.No.1- Kindly%disclose-yourvidentity.:' ^ /■' ■' Ans : I am Ml. Appa Rad, Ex. Sr. DCM/KGP, now working as CCM(G)/S.E. Rly./Kolkata.
Q.No.2 - Please peruse and confirm your signaturein RUD-1-.
Ans Yes,
Q.No.3 - • In what capacity was Sri A. Kameshwar Rao working under you during your
tenure as Sr. DCM/KGP?
Ans Sri Kameshwar dealing in-charge Catering.
Q,No.4- Who was the dealer/custodian of the catering files including the file of M/s
■ Dynamic International during your tenure as Sr. DCM/KGP?
Ans Sri A. Kameshwar Rao, Hd. Clerk.
Q.No.5 - Who had put up the agreement marked RUD-4 to you for further action?
Ans. The dealer, Sri A. Kameshwar Rao, had put up this paper stating that all
rules have been complied.
Q.No.6 - Please state whether Sri Narendra Prasad, the then MRR/KGP, had come
to you along with Sri A. Kameshwar Rao, dealer of the file, when he put up the same to you.
^7___ / s 14 o.a. 350.962.2014 with m.a. 3S0.106.2016 Ans. I remember MRR, Sri N. Prasad invariably accompanied along with dealer specially dealing this case of M/s Dynamic International.
Q.No.7- Please go through your answer to a nm. 4, e & io of your ciorificatory statement dt. 16.10.2006 (RUD-1) and state whether you still stand by to the answers you had already given.
Ans Yes.
Examination of PW*1 by PO is over.
Read over and found correctly recorded.
X X Sd/- Sd/- $d/*
CO DC PO PW-1 EO"
At this point, it is als'o;worthwhile to reproduce, the extracts of the deposition of PW2 as under:- ^ "
•*/. t" j'. w•
\ ■
5?
"Cross examination^orP'W-2sby DC i' ✓
H • V
v,"V
X X X X X X
Q.N6719 - In RUD'No-. 4 ^thejsignature of.Sr. DEE (G) is absent. It was unilater decision of the.:signatbry"ineurribent.of.the.post of Sr. DCM, during the material time. Do youtiave contradicts-the statements?
Ans ' I dd-not^know about the. unilateral/decision of Sr. DCM or otherwise.
• i
^ i XXXXXX ,
Q. No. 22- In Arinexure II, Para. 2 line No.^-it'is^seen '"fresh typing". Pls- adduce in the-enquinydow can you establish'4hat RUD Noj4 was typed by
- the C.O. ?-' * ' '/ Ans to Q, No. :22 *v, It cannot be established Jhat the C.O. has done the fresh typing but since he was custodian of the documents therefore he should have been aware •„ of the "fresh typing".
XXXXX ■ Q.No.24 - As per Law of the land the onus lies on the signatories of RUD No. 4 only. Do you admit ?
Ans Yes, I admit.
Q.No.25 - Did you find the signature or for that matter initial of the C.O. anywhere on RUD No. 4 ?
(uU'
Ans No.
r
v
:/■
15 o.a. 350.962.2014 with m.a. 350.106.2016
V4
QuNo_26 - The signatory of RUD No.1 was not novice or illiterate since the and*base?ess version on pr^ convinced so on and so forth at several places. Do you nave contradictions?
Ans to Q.No.26 At some places at RUD No.1 it .is seen that the signatory has done things mentioned in the Questions.
xxxxxx Q.No.28 - Why did you not verify the cash remittance voucher during the course of investigation to establish the involvement of the C.O. in this case? : , ; r ;>'• ", Tv. , ___ Ans As because, l''Concluded durihgvthe jnyestigatipn that sufficient material, docurneqts-'was there to establish the involvemenkof the C.O." This deposition, as extracted, is conjectural^based on surmises. It is not understood "either, as tpiKhow PVV2,\who was the':Ctyl(C)/GRC.^afrive.d at his ■ ' /• •- , - ■ / V ^ ^ n-
conclusion based on rhaterials^that-,he failed to'substantiate. (VI). The ex-employeeAChargedVOfficer .replied . against|the enquiry report as .-j alsorthe iBQ's brief irtjwfiich he'T.d'porte'dly insisted thatShe enquiry should be resumed with both PWs..and that the:w^s ^deprived/of the scope, of cross- ■examining the PW1. His.prayeTSrvyere riot considered asjfie authorities hurriedly closed the enquiry.
(VII) Next, we examine the disciplinary authority's order,at Annexure A-10 of the O.A. as reproduced below, with.-emphasis supplied:-
SOUTH-EASTERN RAILWAY.
,n 1'
Office of the
Divl. Railway Manager
Kharagpur
No. DS/CON/2802 Date: 31.3.2011
To-
Sri A. I^ameswar Rao,
Hd. Clerk, under Sr. DCM/KGP.
II Through : Ch. OS {Comml.)-KGP//
Sub : Penalty under RS (D&A) Rules.
Ref: Charge Memo No. DS/CON/2802 dtd. 26.8.2008.
I have gone through the charge sheet, case file in depth alongwith report of Enquiry Officer in which Main allegations against you are as under:
> 16 o.a. 350.962.2014 with m.a. 350.106.2016
i) That you had connived to manipulate the contract agreement of M/s Dynamic International after execution and changed the tenure of the original agreement to more than 20 year® t© favtsur to M/s Oynomio Intornational for personal gain.
ii) That you gave contradictory statements to Vigilance on two dated i.e on 06.02.06 and 20.11.2006 with deliberate intention to misguide Vigilance investigation. Enquiry Officer has proved both the charges in his enquiry report. You have not co-operated in the enquiry and was evasive to attend the enquiry citing feiling reasons. Ultimately, EO has submitted his report on the basis of evidences came on record during investigation. You were given all reasonable opportunities in order to extend natural justice to submit your final representation on lO's report, but you did not do so though ample time and DOSs dtd. 26.3.2010 and 11.8.2010 were supplied to you as requested and received by you also.
As regards Charge No,1: ■ r
S- * * I# * •
1. The copies of;twa contract agreements are available in case file cited, as Relied Upon Documents (RUDs) indicates that the.contract period has been tampered and made for more than;.20 years period/ by using white ink.
2. The then Sr. DCM/K^^'has submitted that the^period of contract .had been manipulated/ interpbiated by you and then MRR/KGP. The addi.tio.nal signatures ofrthe then Sr.De'M/KGP^n lastWb pagfes^pf agrelments had been 'obtained for the 'attestation^of signatures^of witnfessAes^and were fraudulently^" utilized by _interpolation. ' ' ■ Z'* ' * * ":';
You had admitted Jo, the reply pf G.No.19 dated 06.02.2006 that contract period was upto 31.12.2021. Your have shown your ignorance about the manipulation made in agreement by using white ink.
ui---
As-regards Charge No:2:
You in your statement dated M^.^OOS: have submitted that on verbal order of the then Sr.DCM/KGP you^handed over the. file;to then MRR/KGP and was returned back. after 2/3' days with the copies of agreements. You have shown your unawareness about the manipulation made, in agreement. v ' ■ * \ .» /
2. You in your statement dated-20.11.2006 have statechhat^on verbal order of then Sr.DCM/KGP you.handed over the/ile to the then-MRR/KGP and was returned back one month later after execution of agreement. ' ••.3. You in your statement dated 20.11.2006, to the reply Q.No.7 & 8, have submitted that you had brought it into the notice of the then Sr.DCM/KGP that the agreement is beyond normal period, who told that agreements for more than 20 years were on experimental basis and this for the benefit of Railways. i.
4. . Keeping in view of the above, it is amply clear that you were involved in this fraudulent documentation.
5. Any staff involved in fraudulent activity cannot be retained in service.
- 6. Considering the above, I accept the findings of Enquiry Officer and hold you responsible for violation of Rule 3.1 (i)(ii) & (iii) of Railway service (Conduct) Rules 1966 as amended from time to time.
AU' ■s yL~-* 17 o.a. 350.962.2014 with m.a. 350.106.2016 V*
7. In view of the above, I have decided to impose the following punishment in order to commensurate with the gravity of offence and to meet the ends of justice:
8. "You are hereby removed from Railway Service with immediate effect as a measure of Disciplinary action without any compassionate allowance". r
9. If you wish to prefer any appeal, you may do so in writing before the Sr. DCM/KGP within 45 days from the date on which this Notice is served on you in a polite and decent language.
10. You are to acknowledge receipt of this Notice.
Encl: Nil Sd/-
Divl. Comml. Manager/KGP
&
Disciplinary Authority"
th*e^is.ciplinary=fe authority had
Hence, while^^stablishing the^ Charge I,
j£> \
entirely relied offthe submissions^She'tttieh 'Sl^CCM/KGP!«•-- * *
t s■ „ ; '4
(VII) The appellate authority under the specific directions oMhe Tribunal < a*' \ revised his cryptic order^nd'passed^afm^e de ord^XAnnexup^-l^to the O.A.j whe^ih the ap^eJJatesauth^^^TiGld3ed4hayhSpO had bejeh^give^n full ' *V.'"- \ ; ■ ■ ■ hj *' .
opportunity.to defend his'case.duringlhe enquiry. Such conclusions ignored the lacunaeTn the proceedings, the absence of ex-employee/CO during^subsequent x>v. /" 7 , ' days of hearing, deniaLof opportunity of 'cross-examihahqn^ non-issue of notice of ex parte hearing and rushedjclosure 'of an Inquiry^paflfy- conducted as ex-parte without notice.
The revising authorit/also did not enter into the purported denial of natural J * j**" y' . justice and procedural.justice^unilaterally conclude^that the^CO took no interest • V ' : iri. submitting his defence even though all opportunity was given to him which " ' indicates' that he had nothing to submit in support of his defence.
( During hearing it was made known that the Sr. DCM / KGP had been penalized with a minor penalty charge whereas the ex-employee/CO, who was only the dealer/Head Clerk was removed from service. It is undisputed that it was the Sr. DCM/KGP who had attested the over-writing with his signature. The fact that the enquiry was closed in a hurry, that the Sr. DCM/KGP was not examined in detail, that the CO/DC was not allowed to cross-examine the PW1 and no //-
18 o.a. 350.962.2014 with m.a. 350.106.2016 notice of exparte enquiry was issued to the CO speaks of violation of procedural and nature* justfc* In this, we refer to the provisions of RS (DA) Rules, 1968 and, particularly, Rule 25 of the same (emphasis supplied):
"Rule-25 'Revision:- (1) Notwithstanding anything contained in these rules:-
(') the President; or
(ii) the Railway Board; or
(iii) the General Manager of a Railway Administration or an authority of that stats in the
case of a Railway sen/ant sen/ing under his control; or
(iv) the appellate authority not below the rank of a Divisional Railway Manager in cases where no appeal has been preferred; or (vj any other authority not below the rank of a Deputy Head of a Department in the case of a Railway servant serving under his control Words is bracket (may at any time - and may)' apply to all the'sufcclauses (i) to (v) and not Ip sub-clause (v) only vide E(D&A) 84 RG 6-44 of 22.1190, RBE 216/SiO;[may^ny time, either on his or its own motion or otherwise,xall-lo^the records of any inquiry ad revise any order mafthinder these rulesfor^iihdenthe rules'.tepealed by Rule 29, .after consultation with the Commission where such consultation ifhpcessary and may]- .
(a) confirm; modify or set aside the order; or x -s
(b) confirm, reduce, enhance Wset aside the ^penalty imposed .by the'drder, or imposed'.any penalty where no penalty has-been imposed; or / ' (c) remit the ca$e.rt9jHe«£uthpri^ order or^to any, other T authority directingZsuchVaufhofi^o make suchv]further inquiry as it may consider proper in:theJcircumstances;Of the case; or ' (d) . pass suctrother orders as it may deem fit;" V It is noted that the''Revisional^Authority was well within his rights to'remit the case back to.the authority'to.make••subh"further enquiry as was required during the life time of the CO and, particularly, when,the CCXhad .demanded a re enquiry with both PWs.
V ./•r The respondenrauthorities.mowever, appeared.io'be in^ great hurry to close the matter. The enquiry was'closed'exparte on lf.8.2010, the PO's brief vyas'submitted on 31.8.2010, the enquiry report was submitted on 14.9.2010 and the disciplinary authority passed his final orders on 31.3.2011 without even ■. referring to the prayers for re-enquiry by the ex-employee / CO (Annexure A-9 of the OA). The appellate authority, too, based his findings on depositions of PWs and documentary evidence, stating as follows:-
■5. On the basis of inquiry report and findings, the DA imposed punishment "Removal from service without any compassionate allowance.'1 After pursuing the disciplinary case in depth.l find that the charges levelled against you are based on the documentary evidence and the said charges have been proved in the inquiry by the EO on the analysis of such A\X' 'jL
19 o.a. 350.962.2014 with m.a. 350,106.2016 evident documents and on the basis of the depositions of the prosecution witness. The DA has applied his mind while imposing punishment after satisfying that the charges levelled against you proved,"
The Revisional Authority in his orders, observed as under:-
"2. After that nominated inquiry officer duly conducted inquiry into the charges under Rule 9 of RS (DA) Rules, 1968. During the inquiry on 26.3.2010 your defence helper interrupted repeatedly in spite of being advised by the EO not to do so and left the venue. As a result EO wanted to proceed to finalize the enquiry report after taking your final defence brief. But you took no interest in submitting your defence in this respect even though all opportunity was given to you, which indicates that you have nothing to submit in support of your defence. Thus EO had finalized the enquiry report on the basis of evidences on record. As per EO's report dtd. 14.9.2010 all the charges framed against you have been proved. From the above it is clear that no natural justice is denied."
The conduct of the disciplinaiV proceeds leads us to, believe that reliance was placed on the^statements of the official, oh whbm the entire onus on .--w, ^ 4. attestation of fakfe^entries would>lie, namely;^the then Sr.' DCM/KGP without yi '■ ? ' 'V „ S\: •, v -.4^ conclusively meeting theirequirements of burden of proof and preponderance of T w5 i ' ■' -1 V'\ . " a, - '••• r' probability: * it- -r \ • VIII)* Ld. Counsel for:-.appJicant^^i';;c^allenged.the.pr;oceedings on grounds of delay. In Secretary to-Govemriieni, 'Prohibition.'&'*Ex6ise Department v. L. Srinjvasan,} JT 1996 (3), SC 202,, however, it wasv held that quashing the ' proceedings for mere^delay^h^initiatidn 6f the^enquiry^would not be ,proper ^ . t-v.
exercise of the ^powers. oT^judicial review. In this^case^we^ndte that time was •' i * i taken to conduct a ^preliminary, enquiry by the vigilanc.e^followed by 'the major ,r S penalty charge-sheet.and hence we hold that the proceedings are*not vitiated on grounds of delay.
/ . Ld. Counsel for the applicant would, cite this Tribunal's order dated 1.10.2010 in O.A. 414 of 2008 (Sri Bikash Kumar Banerjee v. U.O.l & Ors.) wherein the Tribunal was of the view that disciplinary proceedings should not be started "at this late stage." In the instant matter, the proceedings stood as concluded. IX) On the merits of the issue at hand, we refer to the ratio of the Hon'ble Apex Court in Moni Shankar v. Union of India, (2008) 3 SCC 484, which has held that, while strict rules of evidence are not applicable in the case of disciplinary proceedings, the disciplinary authority should be satisfied, while exercising hh.
kxX L 20 o.a. 350.962.2014 with m.a. 350.106.2016 powers, that the evidence adduced is relevant or irrelevant or whether the evidence adduced is correct in its entirety end meets the requirement of burden of proof, namely, preponderance of probability.
The disciplinary authority must also consider whether the evidence is sufficient to establish guilt of the employee and whether the doctrine of proportionality has been satisfied. There is not an iota of convincing argument of the disciplinary authority to establish the guilt of the ex-employee ICO. Rather the disciplinary authority had almost entirely relied on the statement of PW1 namely, Sr. DCM/KGP before vigilance. In particular, we refer to para 2, under Charge I of the orders of the disciplinary authority (A-10 to the OA).
"The then Sr. DCM/KGP-'has submitted1 that the period of ^contract' had been manipulated/intefpolated/byyou and thefi;MRR/KGP..The;additional signatures of the then Sr. DCM/KGP in last two pages of agreements had been-obtained for the attestation of signatures of witnesses and were fraudulently utilized by interpolation,"
•! The Hon'ble Apex Court-has^also-held^n^Roop Singh Negi v. Punjab V ''~ . * vVV National *Bank (2009)),-.2*£CC1^57(X iriaiHfie enquir^has to be conducted according to principles of natural justice and, that, in relation to persons holding civil posts under ..theu Union, the Constitution, itself ^ensures compliance with the principles of naturaljusticeMlj-the proposal is to dismiss/remoyp.him from service.
According to the Hon'ble Apex Court, a finding of an enquiry report is perverse until the evidential material is such that it amounts to the guilt of the employee in respect of the charge against him with somerdegree of definiteness . :as held in Nand Kishore Prasad v. State of Bihar, AIR 1978 SC 1277 and that ■the conclusion must be based on existent and relevant material as held in Iswar . Chand Jain v. High Court of Punjab & Haryana, (1988) 3 SCO 370.
The Courts have been cautioned that, while exercising powers of judicial review, the Courts cannot embark upon an appreciation of evidence and arrive at a conclusion of his own on the sufficiency of evidence or the correctness of the conclusion which is based on such evidence [(High Court of Judicature at LlsI' s'.
21 o.a. 350.962.2014 with m.a. 350.106.2016 Bombay v. Shirish Kumar Rangrao Patil, (1997) 6 SCC 339;. At the same ffm»v of vital witnesses may be' a .ground for setting aside a departmental enquiry (Hardwari Lai v. State of UP (1999) 8 SCC 582).
The Hon'ble Apex Court has also held in Sfafe of UP v. Saroj Kumar Sinha, (2010) 2 SCC 772 that action of Enquiry Officer in preparing reports ex parte without supplying relevant documents or preparing perverse report results in miscarriage of justice. In A.R.S. Choudhury v. U.O.l. & ors. 1956 Calcutta 662 (SJ AIR V 43 C 487 (Dec), relied upon by the applicant, it was held that where witnesses were exarftinedllnl'tb'e>ab*sence--vofTthe^petitioner, and he was f j ■'it -
confronted with only'somejof them, the enquiry is rendered^defectiye.
In State Bank of PatiaJazvP-Stt'fS'hariiianjlJQQS) 3 SCC 364 the Hon'ble Apex Court has. summarised:^the1p.nnPP'es;;inT'elatioh;\o, disciplinary proceedings as follows:- ;
; the case^f a^cedumhprwisipniwhich.isnot o£a mandatory^haracter, the complaint .of violatipn^has tOj-be'Wamlned^tn the^taridpomt of substantiahcompliance. ; Be-'that at It may, tfti' prdef,<pas.s§rdhnfvlpilition ^f^such^.a^ro^ision can be^set aside only where:such violation has occasionecl. prejudice to thedelinquent employee. • /.■ f
-(b) In the case.of violatiorvof. a procedural.provision, which,of a mandatory character, it has to be ascertained'whefher-theproyision is conceived injtheJnterest of the person proceededpgainst'br^ffputilic interest. If it is found to^beihevformer, then it must be seen whether the derinquenf'offieir has waived the said requirement, ■either expressly or by his conduct. If he is found to have,waived it, then the prdefof punishment cannot be set aside on the ground of the said violation. If, on the other hand, if is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal-should make appropriate directions (include the setting aside of the order of punishment), keepingjn mind the approach adopted byThe Constitution Bench in B. Karunakar. The ultimate tesfisFalwaysIhe same viz., test-of prejudice or the test of fair . re hearing, as it may be called." ay*'*-
It was also held therein that the Court or the Tribunal should make t ■ distinction between 'no opportunity' and 'no adequate opportunity' i.e. between 'no noticeV'no hearing' and 'no fair hearing'. The relevant portion of the said judgment is quoted as under:-
u(a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for 22 o.a. 350.962.2014 with m.a. 350.106.2016 the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem), (b) But in the latter case, the effect of violation (of a facet of the the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query."
The Hon'ble Apex Court in G.Vallikumari v. Andhra Education Society, (2010) 2 SCO 497 has held that removal from service without recording reasons and by simply referring to findings of enquiry officer, has been held to have vitiated the punishment on the ground of breach^of principles of natural justice.
'* Ji, The Hon'ble Apex Court \n*State^fyP v *Sheo sfianker Lai Srivastava, •I :■ I ^ cf j^;.. .
(2006) 3 SCC'276fias\ne13 that the real test is wnethettthe absence of cross-
examinatiph renders the n^unfa i ruyal Itoeci rc u m sta n ce s. The Hon'ble
^ \
Supreme d&Ort in l/n/qm^L/nd/aw.IrA iVen^jl .^ \
if IR 1957^SC 882, also
.if ..»»»_J Jar Tk. % t & Jr
recogpised^St oppo^Kj^^^^^s^x^^^^n^^s ^equirem^fof Natural justiefe. I^C. ! LUnp (SC), it haSfbeell,eld thatof doc?#nt|and certificates«pn which reHancesfis .placed!] oy the^lisci^Kary authoritykis .denied, ■ thereTwill be denial ofxe,as^Hb.i|,ORporfinitl. \mmlgalJSlngh F. Poon vf State of GuJWaf, 190j.(lj^^^6 fG^thT'lHon'^^p/Coiirt has Jtlld that I reasonable opportunily1,is denied when witnessesfexamioed^nthle absence of the \ \ ' * . __ \ ^ / 's*. *V . v .t1' delinquent are^not recalled- fbf^cros^S|exarninatid^^rr--spijf^bf ^rfequest to that effect. Ld. Counselor the^appheant has cited Vr^dic\s\on0Khagendra Bank v. UOI & ors. (2016) 5 WEHiRdCali^O. .wbereiffit was held that absence of iV' . opportunity to cross-examine amounts to breach of the principle of natural $ 2 justice.
5 The Hon'ble Apex Court has justified exparte enquiry where the employees' conduct establish that he was intentionally evading enquiry. Herein, the ex-employee/CO had regularly attended initial hearings which kept getting postponed on ground of non-appearance of PW2 and hence we cannot hold that he intentionally evaded enquiry. In Amat Kanti Bose v. The West Bengal State ;;
jT y 23 o.a. 350.962.2014 with m.a. 350.106.2016
-y.
Cooperative Bank Ltd. & ors. reported in (2000) 1 CLJ (Cal) 166, the Hon'ble Court hold tHof if there m no evidence that the delinquent was informed of the dates of proceedings, the principle of natural justice stands violated.
In Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84, the Hon'ble Apex Court held that it would not be in the interest of justice to remand the case to the disciplinary authority for proceeding afresh when one of the charged employees had died during the pendency of the case before the Court. In this case also, as the ex-employee/co had expired during the pendency of his matter before the Tribunal, we cahnbt .direct a fresh enquiry but can only remand the matter back to the Revisional authority for re-examination of- the issues, re appreciation of evidence and .to,decideithe,proportionality of the punishment as meted out to the ex-employee, v: ' -4 ! y' X
8. Accordingly, we: deem it-.fitlto. remand'the matter^back to the>.Re>?isional •* y -.
authority to examine the-fact that-np scope:was.given.to.'the ex-employee/CO to re-examine/cross examine PW*1, that ^the^enquiry was closed exparte and that the ex-employee/CO's prayers for re-enquiry were not heeded. The'-Revisional ' authority will thereafter re-considerthe quantum of punishment in the lightvof the fact that the Sr.^DCM/K^R who actually attested the^ffaudulent entrie^suffered a •v • ' minor penalty only. Rightfully, the ex-employee/CO deserved similar: treatment. As the ex-employee/CO has expired, the scope of further .enquiry does not arise . and hence, the Revisional' Authority is directed .'to apply *his mind and pass : reasonable orders, particularly, on the quantum of punishment which, is in our view, is grossly disproportionate as charges against the ex-employee/CO could not have been conclusively proved without adhering to principles of natural and procedural justice. Once the quantum of punishment is suitably revised as per law, all consequent benefits should be released to the widow of the deceased employee as per rules.
Lx 24 o.a. 350.962.2014 with m.a. 350.106.2016 The entire exercise shouK* be eeneMded waftm ********** of ! i this order.
( j
9. The O.A. is allowed to the extent of the above directions. No costs.
M.A. No. 106 of 2016 praying for release of family pension and other dues with interest is disposed of accordingly.
'lv*"
/ r
(Dr. Nandita Chatterjee) » (Bidisha Banerjeej
Administrative Member 1 I
» #■ ' Judicial Member
^ t
-V 4^
tr ; ' J-
S
s? ^
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