Central Administrative Tribunal - Madras
Lingam Ramalingam vs Union Of India (Uoi) And Ors. on 26 April, 2006
Equivalent citations: 2006(3)SLJ187(CAT)
ORDER
P. Shanmugam, J. (Vice Chairman)
1. The applicant is working as Section Engineer in the Wagon Workshop of Southern Railway, Perambur. The O.A. is filed against the order of the Chief Workshop Manager rejecting the request of the applicant for nomination of ad hoc Disciplinary Authority in reference to a pending enquiry.
2. The applicant has prayed for the following relief in the O.A.:
1. to call for the records relating to Order No. CPB/227/5/2004/21/LR/SE/WR/06 dated 2.3.2005 passed by the first respondent and quash the same;
2. to direct the first respondent to appoint an ad hoc Disciplinary Authority in respect of the applicant in place of the second/third respondent;
3. to direct the respondents to appoint a Presenting Officer of a rank commensurate with that of the applicant in place of the fourth respondent; and
4. to award costs, and pass such further and other orders as may be deemed and proper and thus render justice.
3. Facts of the case are as follows: According to the applicant, he had entered service of the Southern Railway as Khalasi on 1.2.1979. He had been discharging his duties in a sincere and dedicated manner and has won the appreciation of his superiors and became Section Engineer by the year 2002.
4. According to the applicant, the Deputy C.M.E/Workshop ordered him to unload 18 wagons on 6.5.2002 and in obedience he has carried out the instructions. But to his shock and surprise he found that the materials which were unloaded by him are worth several crores have been clandestinely disposed of to third parties. The applicant requested the officer to furnish the accounts. But he was transferred by the order dated 22.6.2002 against which he filed O. A. 583 of 2002 before this Tribunal. The Tribunal by order dated 27.6.2002 while referring to the allegation of mala fide directed the applicant to make a representation to the Chief Workshop Manager and not to give effect to the order of transfer til 1 the disposal of the representation. Thereafter by order dated 5.9.2002, Chief Workshop Manager cancelled the transfer order. However, he was posted in the Seventh and Eighth Line in the WR Shop instead of Ancillary Bay. The applicant had taken sincere steps to ensure that workmen are to go for duty and mark them absence on their failure. The applicant has put an end to the malpractice of getting the card punched with the help of other workmen without doing the work.
5. In lieu of the representation of the applicant dated 28.6.2002 to the Chief Workshop Manager requesting suitable action against the Deputy CME/W(Annexure A-5), he had entertained personal animosity resulting in the transfer and subsequent cancellation of the said order. Not being satisfied with this action, the third respondent placed the applicant under suspension on the ground of contemplated disciplinary proceedings by order dated 16.6.2004. The applicant filed O.A. 1051 of'2004 and the Tribunal by order dated 11.4.2005 quashed the suspension order with consequential benefits, giving liberty to the respondents to proceed with the enquiry. The Tribunal found that the suspension was not warranted in the circumstances of the case.
6. On 20.9.2004, the applicant made a complaint to the Chief Vigilance Commission setting out the details of corrupt activities of the third respondent. The C VC by letter dated 24.6.2005 confirmed that the applicant's complaint has been registered. Hence, the complaint given by the applicant has been taken on file under the Public Interest Disclosure Resolution and he is entitled to due protection as a whistle blower. The C-B.I. has also commenced investigation and the officer of the CBI took a statement from the applicant with regard to the corrupt activities of the third respondent.
7. According to the applicant, while the O.A. 1051 of 2004 was pending, the third respondent called on the applicant on 24.12.2004 and asked him to withdraw the complaint given to the Chief Vigilance Commission and also withdraw the O.A. 1051 of 2004 and instructed him to submit a representation to him seeking mercy. The third respondent also promised that he would withdraw the suspension and the charges. He also threatened the applicant that in case he failed to do so, he would ruin his career by issuing may more charge sheets and the applicant have to face dire consequences. The applicant refused to do so. Hence, the third respondent is bent upon wreaking vengence against the applicant.
8. Pending the suspension, the subsistence allowance was not paid to him and it was deposited to Andhra Bank instead of Syndicate Bank into which his salary was being deposited. The applicant filed M.A. 616 of 2002 before the Tribunal and the Tribunal by order dated 29.12.2004 disapproving the act of the respondent directed payment of subsistence allowance directly to the applicant. Ultimately, the suspension order has also been quashed as stated above. As the applicant was not paid the subsistence allowance as directed, he was constrained to file C.P. No. 22 of 2005 and only thereafter, the substantial portion of the order was complied. The third respondent also issued two more charges dated 2.3.2005 and 18.3.2005 on frivolous allegations. In the above circumstances, the applicant filed a representation before the Chief Works Manager on 22.12.2004 and 24.1.2005 requesting for nomination of a different Disciplinary Authority in reference to the Charge Memo dated 20.9.2004. As there was no response, the applicant was constrained to file O. A. 113 of 2005. The Tribunal by order dated 15.2.2005 directed the Chief Works Manager to dispose of the representation. Meanwhile, the Deputy CME was directed not to function as Disciplinary Authority. The representation of the applicant was disposed of by Chief Works Manager by the impugned order dated 2.3.2005 holding that there was no provision and in the absence of any specific complaint on Disciplinary Authority that he is acting in a prejudicial manner and was a material witness directly concerned with the charges mentioned in the case. So also his representation on the Presenting Officer also was turned down. Hence, the above O.A. for the aforementioned relief.
9. In this O.A., the second respondent has been impleaded in his personal capacity as third respondent since specific allegations of bias and mala fide have been raised. So also, the fourth respondent has been impleaded in his personal capacity who is the Presenting Officer. While reply has been filed on behalf of the respondents, namely 1 and 2 in the official capacity, there is no reply by the third and fourth respondents in reference to the allegations of bias and mala fide.
10. According to the reply, the applicant was promoted as Chargeman 'A' in the year 1986 and promoted as Section Engineer with effect from 4.8.1999 and is continuing as such. The reply refers to the following punishments imposed on the applicant:
1. Withholding of privilege passes for the calender year 1993
2. Stoppage of annual increment for a period of 24 months during the year 2000 (quashed in revision)
3. Censure during year 2000.
The applicant is governed by the Railway Servants (Discipline and Appeal) Rules, 1968 and that he had been issued with a Charge Memo dated 11.9.2004 for having availed housing loan and personal loan from Andhra Bank and changed over to Syndicate Bank without clearing his liability with Andhra Bank and also not producing the required certificate from the said Bank for availing of loan from Syndicate Bank. For the above charge, the applicant was placed under suspension with effect from 16.6.2004. The representation of the applicant dated 22.12.2004 and 24.1.2005 to appoint an ad hoc Disciplinary Authority was considered and negatived by the impugned order dated 2.5.2005 holding that there is no provision under the relevant rules for changing Disciplinary Authority and the Presenting Officer. Though the Administration has fixed enquiry on various dates, the applicant is not cooperating in finalising the case. According to the respondents, the applicant is in the habit of filing Original Applications one after another for the same relief without the basis of any rules. Though they have stated the transaction of the applicant with two Banks, namely Andhra Bank and Syndicate Bank are purely between these two parties and Railways is in no way connected with the transaction, the applicant had not intimated the transaction as required under the rules. The allegation that there has been personal animosity between the applicant and the second and third respondent is denied and that it is imaginary and not supported by any fact. It is further stated that the second respondent did not function as Disciplinary Authority in respect of the applicant during the pendency of the disposal of the representation as alleged by the applicant. It is reiterated that there is no provision for changing the Disciplinary Authority and the Presenting Officer. The reply also refers to the further charge memo as against the political influence and intercepting the cheque addressed to Andhra Bank wherein the applicant had violated the Conduct Rules.
11. The applicant has filed a rejoinder setting out the details of various dates in which he had participated the enquiry and there was absolutely no lapse on his part and there is no ground to hold that he has not cooperated with the enquiry. According to him, O. A. are filed because of the vindictive action of the second/third respondent and all the O.As. have been allowed. In so far as the order of transfer is concerned, it is stated that at the relevant time one Mr. Sachidanantham who was the Deputy CME, while the third respondent was posted in the Vigilance. When the applicant complained about the unloading of wagons to him, he failed to take any action and colluded with the said Sachidanantham. In the O. A. 729 of 2005 filed by the applicant against the recovery order, the respondents have conceded that an error has occurred on their part and the O.A. was disposed with a cost of Rs. 2,500.
12. With the above pleadings, we have heard Mr. P.V.S. Giridhar, learned Counsel for the applicant and Mr. R. Thiagarajan, learned senior Counsel for the icspondents I and 2. There is no representation on behalf of Rs. 3 and 4.
13. In the above circumstances, the following questions arise for consideration:
1. whether the applicant has made out a case of bias against the Disciplinary Authority?
2. whether there are grounds to giant the relief prayed for in the O.A.?
14. It cannot be disputed that if the Disciplinary Authority is acting in a prejudiced manner and biased against the applicant, then it will not be possible to expect a fair report and an order from the Disciplinary Authority. There tore, it is necessary to go into the question of the allegation of bias and mala fide raised against the Disciplinary Authority.
15. The applicant has stated in Paragraph IV (6) of the O.A. as follows:
It is pertinent to state that while the O.A. 1051 of 2004 was pending before this Hon'ble Tribunal the second/third respondent on 24.12.2004 called the applicant and asked him to withdraw the complaint given to the Chief Vigilance Officer and also to withdraw the O.A. No. 1051 of 2004 and instructed him to submit a representation to him by the appYiaxniseeking mercy, and promised that he would withdraw the suspension and the charges. He also threatened the applicant if he failed to withdraw \\.,he would ruin his careerby issuing many more charge-sheets and that the applicant would have to face dire consequences. The applicant refused to do so. It is clear that the second/third respondent is bent upon wreaking vengence against the applicant and wants to pressurise him to withdraw the complaint given to him.
The applicant again in Paragraph IV(8) has stated as follows:
The second/third respondent has openly threatened the applicant on several occasions that he would ensure that more false charges are framed against him and he is removed from service as he has dared to complain against his corrupt activities.
In Paragraph IV (12) it is stated by the applicant as follows:
However, the specific case of the applicant is that the charges are born of malice on the part of the second/third respondent and the applicant intend to summon him as a Defence Witness.
In IV(13) it is stated as follows:
In the meanwhile, the second/third respondent has been threatening to spoil his ACRs and to eventually remove him from service on the basis of false charges. In fact, he has issued two more charge memos dated 2.3.2005 (Annexure A-16) and 18.3.2005 (Annexure A-17) on the basis of frivolous allegations.
In Ground V(B), the applicant has staled as follows:
It is submitted that the second/third respondent has developed personal animosity against the applicant and has been harassinghim in various ways as set out above, since the applicant refused to co-operate with his corrupt activities. He is out to wreak, personal vengeance by abusing his powers against the applicant for his action in complaining to higher authorities and also in preferring a complaint to CVC. As such, the second/third respondent suffers from prejudice and bias and cannot act impartially and objectively.
In Ground (d) he has stated as follows:
It is submitted that the applicant h&sal ready made complaints against the second/third respondent to the Chief Vigilance Commission on 2H.6.2002 and 20.9.2004 by setting out his corrupt activities. As such, if the second/third respondent act as the Disciplinary Authority, it would prejudice ihe rights of ilic applicant at the enquiry proceedings.
In Ground (e) he has stated as follows:
The second/third respondent had nominated the fourth respondent as Presenting Officer who is three grades below the applicant. Moreover, the applicant had also made a complaint against him for colluding with the third respondent in the said corrupt activities. Hence, the appointment of the fourth respondent as Presenting Officer is unreasonable and illegal.
(Emphasis added)
16. Inspite of the above specific allegations made by the applicant, the reply filed on behalf of the respondents has simply rejected the averments and one made without any basis and it is only imaginary allegation and that there was no specific complaint.
17. The respondents 3 and 4 have chosen not to enter appearance and to file any reply on their own though they have been impleaded in their personal capacity. The reply filed by the third respondent in his official capacity also did not repudiate the allegations made by the applicant. Therefore, the Tribunal is left with no other alternative but to draw an adverse inference on the specific allegation namely, the applicant was called upon by the third respondent on 24.12.2004 and that he was asked to submit a mercy petition and on receipt of such petition the suspension and the charges have been withdrawn and that on his failure to do so, the career of the applicant would be spoiled and that he will face dire consequences. The applicant has also made a specific allegation that he has made a representation as against the conduct of the third respondent when he was posted as Vigilance Officer and that he failed to take action on his complaint dated 28.6.2002 about the unloading of wagons but colluded with Mr. Sachidanantham who was then the Deputy CME. In the representation dated 22.12.2004 (Annexure A-12) and 24.1.2005 (Annexure A-13), the applicant has referred to the personal animosity entertained by the third respondent setting out the reasons for the statement which are as follows:
1. Complaint of corrupt activities dated 28.6.2002.
2. Transfer order dated 22.6.2002.
3. Suspension order dated 16.6.2004.
4. Failure to pay subsistence allowance.
5. The Tribunal's direction dated 29.12.2004 in M.A. 616 of 2004 to pay the subsistence allowance directly instead of depositing in Andhra Bank while the salary was being deposited in the Syndicate Bank.
6. Complaint of the applicant dated 20.9.2004 to the Chief Vigilance Commission.
7. Specific allegation dated 24.12.2004 against third respondent that he was called upon him and asked to withdraw the complaint and file a mercy petition for revoking the suspension and the charges and on his failure, his career would be ruining.
8. Registration of the complaint of the applicant as confirmed by the CVC on 24.6.2005.
18. As to the pointed question to the learned senior Counsel for the respondent, the position of the complaint to the CVC, the learned senior Counsel has simply stated that they do not know the position. If such a detailed complaint to CVC has been given on 20.9.2004 and as admitted that the same has been registered as per Annexure A.8, in the normal circumstances, the complaint should have been enquired into and must be pending or completed. One of the main accused in the said corrupt practice alleged by the applicant being the third respondent and in the absence of denial that the allegation made by the applicant that he was asked to withdraw the complaint, failing which his career will be spoiled which clearly make out case of genuine ground of bias as against the third respondent.
19. There arc other grounds to hold that the action of the third respondent is inimical and prejudice against the applicant. The circumstances are as follows:
1. Suspension order dated 16.6.2004 on a contemplated enquiry which has been quashed by the Tribunal in O.A. 1051 of 2004 holding that the suspension is not warranted.
2. Failure to pay subsistence allowance resulting in filing of M.A. 616 of 2004 and the order of this Tribunal dated 30.12.2004 directing the respondents to pay subsistance allowance directly in cash.
3. Ordering recovery of a sum of Rs. 1000 from 1.10.2000 to 30.9.2003. Though the said order was set aside in revision resulting in O.A. 729 of 2005 being allowed with cost of Rs. 2500.
20. Though we are not inclined to go into the merits of the charges as such, it is specifically pleaded that the applicant has been subjected to frivolous charges in a vindictive manner. The charge dated 11.9.2004 which is the subject matter of enquiry is as follows:
Availed housing loan and personal loan from Andhra Bank and changed over to Syndicate Bank, Egmorc without clearing his liability with Andhra Bank and also not producing the required certificate from the said Bank and availing loan of Rs. 2,00,000 from Syndicate Bank/Egmore without following the laid down procedure.
There are two more charges issued against the applicant dated 2.3.2005 and 18.3.2005 (Annexure-A/16 and Annexure-A/17 respectively). The charge dated 2.3.2005 relates to present enquiry and the suspension order dated 16.6.2004 and the allegation that the applicant without exhausting appeal provisions brought political intluence to further his interest in respect of the disciplinary proceedings. The charge dated 18.3.2005 refers to the same suspension and payment of subsistence allowance and intercepting of cheque meant for the applicant addressed to the Andhra Bank. The case of the applicant is that as against the suspension, he made a representation to al 1 the authorities and marked copy to the Member of Legislative Assembly. In reference to the charge dated 18.3.2005 it is stated that the subsistence allowance given in lump sum by way of cheque was given to him by the Clerk of the respondent which he had acknowledged and there is no question of intercepting of the cheque which is meant for him.
21. We find force in the submission of the applicant that the applicant is subject to filmsy charges and harassed consequent on the complaint against the third respondent. Taking into account all these circumstances, we are clear in our mind that the applicant has made out a clear case that the second and third respondent are biased against the applicant and that they have entertained personal animosity consequent on the complaint bringing out the alleged corrupt activities of ihe third respondent to CVC. We also find that the applicant has been subjected to harassment and was left with no other alternative to move the Tribunal at every stage of the enquiry.
22. The submission of the learned senior Counsel for the respondents that thee is no provision for changing the Disciplinary Authority cannot be accepted. As a matter of fact, the impugned order itself says that the applicant had not brought any specific complaint on which he is acting in a prejudiced manner so as to nominate ad hoc Disciplinary Authority. In other words, if there is complaint having made out, the first respondent would have the competency to nominate another Disciplinary Authority. The authority who has nominated the third respondent as the Disciplinary Authority has the power to withdraw the nomination and appoint different Disciplinary or ad hoc Disciplinary Authority. Therefore, we are unable to agree with the submission that there is no provision for changing the Disciplinary Authority or appoint another ad hoc Disciplinary Authority.
23. In so far as the Presenting officer is concerned, the applicant has stated that he is lower in rank and who is also personal prejudice against the applicant. In his complaint to the CVC as well as to the first respondent, he has set out in detail the personal animosity entertained by the Presneing Officer. Therefore, we are of the view that the applicant has made out a clear case of personal bias against the respondents 3 and 4.
24. The reply has been filed by the respondents without verifying the facts correctly. In Paragraph 2 of the reply, they referred to the punishment of stoppage of increment passed against the applicant without noting that the said punishment has been set aside by the Rcvisioning Authority by order dated 27.9.2000. As against the action of the respondents in making recovery, inspile of quashing of the order, the applicant filed O.A. 729 of 2005 and the respondents pleaded clerical error. But however, the same was not accepted by the Tribunal and the O.A. was disposed of with a cost of Rs. 2500. The Tribunal also did not accept the case of the respondents that it was done by a mere oversight. In Paragraph 10, the respondents have stated that the applicant is in the habit of filing Original Applications one after another without the basis of any rules. Further, they have referred to the O.A. 602 of 2005 and the O.A. 113 of 2005. The respondents failed to note that the applicant filed the O.A. 113 of 2005 for the same relief and the order of the Tribunal was to dispose of the representation and consequently a speaking order was passed, against which the present O.A. is filed. On the other hand, the applicant has rightly stated that all the Original Applications filed by him against the respondents have been allowed. The allegation that the applicant has been filing cases on filmsy grounds is not borne out of facts. On the other hand, it is the respondents trying to harass the applicant by initiating proceedings on minor and technical violation, if any. All these show that the third respondent is acting vindictively and entertained personal animosity against the applicant. The Administration is sought to be utilised by the third respondent to his gain. While the applicant was raised serious allegations of corruption in the Administration, instead of looking into those facts, the third respondent has utilised his position obviously to prevent any proper investigation in the corrupt activities in the Administration.
25. It is unfortunate that the complaints to the General Manager dated 28.6.2002, to the Chief Vigilance Commission dated 20.9.2004 and to the CBI dated 20.9.2004 made by the applicant have not been disposed of. After considering the matter and going through the details, we are of the view that the concerned authorities namely, General Manager, Chief Vigilance Commission and the Director, CBI are hereby directed to look into the complaint and take appropriate necessary steps expeditiously, if warranted. For the purpose, a copy of this order to be communicated to them.
26. In the case of S. Parthasarathi v. State of A. P. AIR 1973 SC 2701, the Hon'ble Supreme Court held that the continuance of enquiry by biased officer would not validate the enquiry proceedings. Their Lordships laid down the test for considering the case of bias in Paragraph 16 of the order which is as follows:
The test of "real likelihood" and "reasonable suspicion "are really inconsistent with each other. We think that the Reviewing Authority must make a determination on the basis of the whole evidence before it. Whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seem to be done. If right minded persons would think that there is real likelihood of bias on the part of an Inquiring Officer, he must not conduct the enquiry; nevertheless there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the Inquiring Officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to he prejudiced, that is sufficient to quash the decision (sec per Lord Denning, M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968 (3) WLR 694 at p. 707 - etc.). We should not, however, be understood to deny that the Court might with greater propriety apply the "reasonable suspicion" test in criminal or in proceedings analogous to criminal proceedings.
(Emphasis added) In the case of State of Punjab v. V.K. Khanna and Ors. AIR 2001 SC 343, Their Lordships again on the test of bias has held as follows:
8. The lest, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to he collated and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefore would not arise.
(Emphasis added) In R.P. Kapurand Ors. v. Sardar Pratap Singh Kairon and Ors. AIR 1961 SC 1117, the Hon'ble Supreme Court held that when serious allegations are made against a person specifically and implcaded as a party, he owed a duty to the Court to file an affidavit stating the correct position and cannot be left to the Secretaries and other officers who could only speak from the records. Their Lordships observed as follows:
This is not the case where the refutation should have been left to Secretaries and other officers, who could only speak from the records and were not in a position to say why the Chief Minister passed certain orders. The petitioners are obviously suffering from a sense of grievance that they have not had a fair deal. We have held that there is no legal justification for that grievance, but in executive as well as judicial administration justice must not only he done but it must appear that justice is being done. As affidavit from the Chief Minister would have cleared much of the doubt which in the absence of such an affidavit arose in this case.
Applying the above ratio, we find from the fact that there is real likelihood of bias on the part of the Disciplinary Authority and the Presenting Officer. In the light of the circumstances we have stated above, we are of the view that any reasonable man would think on the basis of those circumstances that the Disciplinary Authority is likely to be prejudiced. In view of the incorrect statement made in the reply statement and the deliberate action of the respondents against the applicant, the O.A. is to be allowed with exemplary cost.
27. For all the above reasons, we are of the view that the O.A. is to be allowed and accordingly it is allowed as prayed for with cost Rs. 3,000.