Central Administrative Tribunal - Jodhpur
Shankar Lal Meena S/O Shri Kedar Lal ... vs Union Of India Through The General ... on 20 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No.42/2009
with
Misc. Application No.21/2009
Jodhpur this the 20th day of September, 2013
CORAM
Honble Mr.Justice Kailash Chandra Joshi, Member (J),
Honble Ms. Meenakshi Hooja, Member (A)
Shankar Lal Meena S/o Shri Kedar Lal Meena, aged about 43 years, R/o Qtr. No.127, Railway Colony, North Western Railway Station Hisar (Haryana), is presently working as JE-I/P-Way/Construction/ Hisar, under Dy. CE/Construction-II/ North Western Railway, Bikaner.
.Applicant
Mr. S.K.Malik, counsel for applicant.
Versus
1. Union of India through the General Manager, North Western Railway, Jaipur (Rajasthan).
2. Deputy Chief Engineer (Construction-II), North Western Railway, Jodhpur (Rajasthan).
3. Deputy Chief Engineer (Construction-I), North Western Railway, Ajmer (Rajasthan).
4. Deputy Chief Engineer (Construction-II) North-Western Railway, Bikaner (Rajasthan).
.Respondents
Mr. Manoj Bhandari, counsel for respondents.
ORDER (Oral)
Per Justice K.C. Joshi, Member (J) Heard on Misc. Application for condonation of delay. The same is allowed for the reasons recorded in the application and accordingly the delay in filing of the OA is condoned.
2. The applicant has challenged the legality of the charge sheet at Annexure-A/1 issued by the competent authority by which the departmental enquiry has been initiated against him.
3. The short facts of the case as averred by the applicant are that while the applicant was working on the post of JE-I/P-Way/Construction at North Western Railway Station, Balotra (Rajasthan), the work of Gauge Conversion from Meter Gauge to Broad Gauge of Zone-B from 779km to 804km was executed by the Contractor M/s Shri Suresh Chand Gupta, in connection with Samdari-Barmer-Munabao Gauge Conversion Project and the applicant was entrusted for supervision of work. As per procedure & rule of the Railway and before commissioning of work, the joint inventory of all P-Way material laid in existing MG Track had been taken over jointly by PWI/BUT, stock verifier/ construction, contractor and applicant, then the Railway material laid in Meter Gauge Track had been deemed to be handed over to contractor through same joint inventory for execution of the work. It has been further averred that after completion of Gauge Conversion work, all P-way material actually released from existing Meter Gauge track had been segregated and stacked properly as per conditions of contract agreement and then returned to the Railway through received back slips under clear acknowledgement of the applicant and XEN/Const/Barmer. It has been further averred that the released fittings and fastenings had also be been segregated in category wise and stacked properly as per conditions of contact agreement by the contractor. These fittings had also be 100% counted and weighed on beam scale erected at site to take their average weight per unit and it was certified that the 100% unserviceable or scrap by the competent authority. These scrap fittings had been received back through Pink slips from serial No.809267 to 809270 bearing the signature of the applicant. The applicant had accounted for these scrap fittings and fastenings by their actual weight mentioned in the received back pink slips. The work awarded to contractor had been completed on 30.11.2003 and all P-way material returned by the contractor had been reconciled and tallied in the same manner and units as issued earlier to the contractor which is also shown in Balance sheets and the final bill of the above work had been submitted to respondent No.2 along with all relevant documents. As per procedure and in compliance of verbal orders of respondent No.2, all unserviceable material, i.e. Rails, CST-9 Plates, ST Sleeper had been offered and then disposed off through departmental auction. Consequently the lot of W.I. Scrap about 142252 kg and C.I. Scrap about 12970 Kg had been formed by accumulation of various scrap fittings as per guidelines. It has been further averred that as per Railways rules and the Northern CEs Circular dated 17.10.1994 the quantum and quality of scrap material should be checked and verified by the concerned AEN/XEN and then actual weight of scrap should be done and then accountal of scrap should be done by the subordinate in the unit of weight i.e. Kg or MT and thereafter the scrap should only be offered for disposal through departmental auction duly certificates of concerned AEN/XEN in charge of the work. The applicant had supervised the work with superior quality of each welding joint, but as per tender conditions, the applicant had proposed recovery about Rs.1,75,000/- against the contractor without consultation of Shri Alok Mishra the then Dy. Chief Engineer /Construction-II/JU. Resultantly, Shri Alok Mishra has recorded bad remarks in confidential report of the applicant for the period ending on 31.3.2004 and recovery of Rs.1,92,000/- for PRC sleepers laid in existing BG loop line at Baitu Station from regular salary bill of the applicant. Aggrieved by that the applicant filed an original application bearing No.222/2004 and the same was allowed and the recovery order was quashed by the CAT, which was affirmed by the Honble Division Bench of the Honble High Court in D.B. Civil Writ Petition No.7044/2005 vide its order dated 08.08.2006. It has been further averred that Shri Alok Mishra subsequently conducted the Stock Verification of store possessed under the applicant from 27.02.2004 and due to simple contradiction in the procedure of verification i.e. by simple counting in numbers or by actual weighment, the applicant had been placed under suspension on 19.05.2004 by respondent No.2, Shri Alok Mishra. Later on, the suspension order of the applicant was revoked and the necessary entries regarding to completion of Stock Verification had been marked and the applicant had been transferred to Agra-Bharatpur G.C. Project vide order dated 16.06.2004 and a joint committee has been formed on 07.09.2004 as a trial to assess percentage of actual weight The applicant was issued charge sheet for major penalty dated 05.06.2004 and applicant vide filed his reply dated 21.06.2004 wherein he has categorically denied all the charges alleged against him. The enquiry officer in above charge submitted his report as Annexure-A/30. The respondents No.3 imposed the major penalty of reduction of pay vide NIP dated 13.07.2007, against which the applicant preferred an appeal dated 22.08.2007 before the Chief Engineer/C-III/ Jaipur, and the appellate authority confirmed the order of respondent No.3 vide his order dated 02.05.2008 at Annexure-A/34. Now, simultaneously on the almost same contents, same allegations, same witnesses, and same reliance upon same documents, another impugned major penalty charge sheet dated 13.07.2007 has been issued by respondent No.3 as Annexure-A/1. The applicant vide his reply dated 02.08.2007 requested to drop the charge sheet at Annexure-A/1. The copy of the reply has been annexed as Annexure-A/35. Hence, the applicant by way of this OA has challenged the legality of the Annexure-A/1 on the grounds that on the same facts the disciplinary authority cannot serve the second charge sheet on the same charges that has been served in the first charge sheet, therefore, he has prayed for the following reliefs:-
(i) That an appropriate writ, order or direction, impugned charge sheet dated 13.07.2007 (Annexure-A/1) declared illegal and be quashed and set aside as if the same was never issued against the applicant with all consequential benefits.
(ii) Exemplary cost be imposed on the respondents for causing undue harassment to the applicant.
(iii) Any other relief which is found just and proper be passed in favour of the applicant in the interest of the justice.
4. The applicant in support of his application has annexed 39 documents as Annexure-A/1 to Annexure-A/39.
5. By way of reply, the respondent department averred that earlier charge sheet which had been issued in the year 2004 was major penalty charge sheet issued under Rule 9 of the Railway Servant (Disciplinary & Appeal) Rules, 1968 with the charges to the effect that certain irregularities have been committed while working as JE-I/ P-Way/Construction at Balotra in connection with Gauge conversion between Samdari to Jasai Section, and so far as the Annexure-A/1 charge sheet is considered, it has been averred that it has been issued in the year 2007 and it pertains to the irregularities committed by the incumbent i.e. the applicant with Gauge conversion of Luni-Barmer-Munabao Section. Therefore, the scope of both the charge-sheet is different one. It has been further averred that the charge sheet of the year 2007 is regarding the severe irregularities while verifying the stock and also opposed stock verification of fitting accumulated in a lot by him to be counted in numbers. The applicant has misappropriated the funds by mixing the quantity of materials and counted stacks in to heap by deploying extra labour which shows his dishonest act of misappropriation of Railway Material. As both the charge sheets are different therefore, the Annexure-A/1 charge sheet cannot be quashed. It has been further averred that as the disciplinary proceedings are pending there is no ground to interfere at this stage in the charge sheet dated 30.07.2007 (Annexure-A/1) until and unless the enquiry/investigation is completed, the applicant cannot be said to be innocent. Further, all the grounds taken by the applicant in his OA have been denied by the respondents in their reply and prayed to dismiss the OA.
6. By way of rejoinder the applicant while reiterating the same facts has filed documents as Annexure-A/40, Annexure-A/41 and Annexure-A/42.
7. Heard both the parties. Counsel for the applicant during the course of arguments submitted a letter dated 11.07.2003, which has been issued by the Deputy Chief Engineer/Construction, North Western Railway, Dausa to the Deputy Chief Engineer/Construction, North Western Railway, Jodhpur, in which it has been narrated that in view of the reply submitted by Shri Shankar Lal Meena, no further necessary action is required in this matter and it has been asked to close the aforesaid stock sheet. Counsel for the applicant contended that due to the malafide action of Alok Mishra on the same facts, two charge sheets were issued to the applicant.
8. Per contra, counsel for the respondents contended that both the charge sheets contained different facts. Annexure-A/1 charge sheet has been issued in connection with Gauge conversion of Luni-Barmar-Munabao Section, whereas the charge sheet at Annexure-A/28 was served in connection with gauge conversion work of Samdari-Jasai Section. He further contended that from perusal of both the charge sheets, it is clearly revealed that both the charge sheets have been issued for the gauge conversion work however irregularities committed were relating to different phases. By way of rejoinder, the applicant has averred that the gauge conversion of Samdari to Jasai and Luni-Barmer-Munabao are not separate section and he further contended that Luni-Barmer-Munabao is a whole section which was converted from Meter gauge to broad gauge track in three phase wise (i) Luni to Samdari in the year 2001-2002, (ii) Samdari-Barmer-Jasai in the year 2003-2004 and (iii) Jasai-Munabao in the 2004-2005, but the counsel for the respondents contended that as the work was completed in three phases, therefore, both the charge sheets issued by the respondents bear different facts and allegations.
9. We have considered the rival contention of both the parties and also perused the documents available on record. In our considered view the charge sheets issued by the respondents to the applicant are based on different facts and Annexure-A/1 charge sheet is entirely different from the Annexure-A/28 charge sheet. Therefore, in our considered view the respondent department has right to continue the enquiry but however in view of the letter dated 11.07.2013 issued by the Deputy Chief Engineer/Construction, North Western Railway, Dausa to the Deputy Chief Engineer/Construction, North Western Railway, Jodhpur, which is filed today by the counsel for the respondents, we also want to issue certain directions to the respondents.
10. Looking to the entire facts and circumstances of the case, while disposing of this OA, we direct the respondent department that while considering the letter dated 11.07.2013, they may complete the disciplinary proceedings within a period of three months from the date of receipt of a copy of this order as the charge sheet relates to the year 2007.
11. Accordingly, the OA is disposed of with no order as to costs.
(Meenakshi Hooja) (Justice K.C. Joshi)
Administrative Member Judicial Member
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