Central Administrative Tribunal - Allahabad
Radhey Shyam Pandey S/O Late Ram Das ... vs Union Of India Through General Manager on 1 June, 2012
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD (THIS THE 1st DAY OFJune, 2012) PRESENT: HONBLE MR. D.C.LAKHA, MEMBER-A ORIGINAL APPLICATION NO. 281 OF 2010 (U/s, 19 Administrative Tribunal Act.1985) Radhey Shyam Pandey S/o Late Ram Das Pandey R/o 639-M, Shiv Nagar, Basaratpur, Gorakhpur. . . . . . . . .Applicant By Advocate: Shri S.K. Pandey holding brief of Shri S.K. Om. Versus 1. Union of India through General Manager, North Eastern Railway, Gorakhpur. 2. Director, Establishment (D& A) Railway Board, Rail Bhawan New Delhi. 3. Deputy Chief Materials Manager (Depot) North Eastern Railway, Gorakhpur. 4. Chief Personnel Officer, North Eastern Railway, Gorakhpur. . . . . . . . . . Respondents By Advocate: Shri S.K. Anwar. (Reserved on 18.04.2012 ) O R D E R
(DELIVERED BY:- HONBLE MR. D.C.LAKHA, MEMBER-A The applicant has prayed for the following relief:
A To issue a writ order or direction in the nature of certiorari, quashing the order dated 5.2.2010 passed by Resp. no. 2, (served on 20.02.2010) (Annexure No. 1 Compilation No. 1).
B. To issue a further writ order or direction in the nature of mandamus commanding the respondents to grant revised pension of the applicant and other retrial benefits, in terms of 6th Pay Commission forthwith, alongwith arrears and interests there upon.
2. The facts, as stated in O.A., in brief are as follows. The applicant was initially appointed on 1.1.1973 as Khalasi in N.E. Railway, Gorakhpur and after various promotions, ultimately retired from the post of Office Superintendent, Grade I on 28.2.2006. In the year 1979-80, on the direction of superiors, he verified the signature of the then Inspector of Works, Siwan, which proved to be forged later on, on the basis of which goods worth Rs. 42,000/- was delivered to unauthorized person. Consequent to CBI enquiry in the matter the entire amount of loss was recovered from Sarvsri Ram Gati Singh, Ballabh Sahay, Shiv Rekha Singh, Ram Lagan Singh and Rammurti and they were suspended. A case No. 11 of 1991 was also registered in the Court of Special Judicial Magistrate (Pollution), CBI, Lucknow against 9 persons under various sections of I.P.C. Punishment of 6 months rigorous imprisonment and a penalty of Rs. 2000/- was awarded to three persons incuding the applicant vide order dated 26.10.2007. In the appeal No. 289/07 filed by three persons including the applicant, the Additional Sessions Judge, Lucknow stayed the punishment awarded to the applicant vide order dated 16.11.2007 (Annexure-2). This order was served in the office of respondent No.3 by the applicant. Applicant vide representation dated 4.10.2008 to respondent No.3 requested that no action may be taken against him unless the order dated 16.11.2007 of Learned Sessions Judge, Lucknow is vacated. It is further stated that in pursuance of 6th Pay Commission, respondents did not revise the pension of the applicant w.e.f. 1.1.2006. After various representations, ultimately he represented to G.M. on 8.2.2010 requesting him to revise his pension. To the utter surprise of the applicant, he received a letter dated 18.2.2010 issued by respondent No.2 mentioning therein that since the applicant has been found guilty and convicted in the criminal case by Special Judicial Magistrate, CBI, Lucknow, the President has proposed to impose a suitable cut in the pension of the applicant in terms of rule 9 of Railway Services (Pension) Rules, 1993 (A-1). This order has been challenged on the ground that the order dt. 26.10.2007 has been stayed by Additional Sessions Judge, in appeal no. 289/2007; the loss alleged to be caused having been recovered; order issued is illegal arbitrary, unjustified and out of malice. Hence, the O.A.
3. On notice, the respondents have contested the case by filing Short Counter Affidavit, raising the preliminary objection with regard to the maintainability of the O.A. It is submitted that the applicant has prayed for quashing of show cause notice dated 5.2.2010 issued by the Railway Board and he has not availed the remedy of showing cause before the authority concerned and straightaway filed the O.A. which is not legally maintainable and as such the O.A. is liable to be dismissed being premature. Moreover, under the Railway Servants Pension Rules, 1993, the Railway Board is the competent authority to issue the show cause notice on behalf of the President proposing the cut in pension of a retired Railway employee. The stay of conviction or suspension of sentence does not take away the authority of President to issue show cause for grave misconduct on the part of Railway employee. Further, the appeal is still pending before the Sessions Judge, Lucknow and no acquittal has been recorded.
4. On the day of conclusion of arguments i.e. 18.4.2012, the learned counsel for the applicant undertook to file written submissions within 2 weeks, but he has not chosen to do so. The learned counsel for the respondents has filed written arguments, taking almost similar pleas as taken in the Counter Affidavit. In support of the contention that the O.A. might have been filed after reply of show cause notice, reliance has been placed in the case of Executive Engineer Bihar State Housing Board vs. Ramesh Kumar Singh and others (JT 1995 (8) SC 3310. Relying on the Judgment of Hon. Supreme Court in the case of Rama Narang vs. Ramesh Narang(JT 1995 (1), 515 it has been stated that the appellate Court must record reasons whereon it has stayed the conviction, but no reason whatsoever has been given in the order of appellate court. On the above grounds, it has been submitted that the O.A. lacks merit and is liable to be dismissed.
5. Heard both the counsel and perused the documents on the file. The learned counsel for the applicant has argued that by way of impugned order/Office Memo dated 5.2.2010, the applicant has been given notice to represent against the proposed penalty to impose a suitable cut in his pension on the basis of judgment and order of the Sub Judicial Magistrate dated 26.10.2007. The learned counsel has submitted that this conviction of the applicant was stayed by the Additional Sessions Judge vide order dated 16.11.2007 as already stated in the O.A. The learned counsel in this background of the view has stated that the impugned order should not have been issued till the disposal of the appeal against conviction. The learned counsel for the respondents has also filed the written submission which is also perused. He has contended that the case is covered as per law settled in the case of Executive Engineer Bihar State Housing Board vs. Ramesh Kumar Singh and others (JT 1995 (8) SC 3310 and State of Punjab and ors vs. Chaman Lal Goyal reported in JT 1995 (2) SC 18. The learned counsel has also argued that the applicant had alternative remedy and the impugned order is only a show cause notice giving opportunity to the applicant to explain his case and respond, but at this interlocutory stage, the O.A has been filed which is not at all maintainable. It is also contended on behalf of the respondents by the counsel that the order of conviction does not disappear only on the mere filing of an appeal and the intensity of the crime is not mitigated even if the interim order is passed by the appellate court.
6. Giving thoughtful consideration to the contentions of both the sides, I observe that the applicant has filed this O.A. at the interlocutory stage which is not permissible and maintainable in view of the law laid down in the judgments of Hon. Supreme Court (supra). The judgments referred to by the learned counsel for the respondents are relevant in this connection. The applicant did have the alternative remedy available by way of giving reply to the Office Memo dated 5.2.2010, but, instead he has filed the present O.A. In view of these circumstances and facts given herein, the O.A is not maintainable and hence dismissed.
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