Central Administrative Tribunal - Jabalpur
M C Kumar vs M/O Railways on 9 October, 2018
1 OA No.200/862/2010
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/862/2010
Jabalpur, this Tuesday, the 09th day of October, 2018
HON'BLE MR. NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE MR. RAMESH SINGH THAKUR, JUDICIAL MEMBER
M.C. Kumar, S/o Shri M.N. Kumar, aged about 49 years, R/o
2698, Narsingh Nagar, Ranjhi, Jabalpur (MP) 482001
-Applicant
(By Advocate - Shri S.K. Nandy)
Versus
1. Union of India, Ministry of Railway through its General
Manager, West Central Railway, Jabalpur - 482001.
2. General Manager, West Central Railway, Jabalpur - 482001.
3. Chief Commercial Manager, West Central Railway, Jabalpur -
482001.
4. Chief Vigilance Officer, West Central Railway, Jabalpur -
482001.
5. Divisional Railway Manager, West Central Railway, Jabalpur
Division, Jabalpur - 482001.
6. Additional Divisional Railway Manager, West Central Railway,
Jabalpur - 482001.
7. Sr. Divisional Commercial Manager, West Central Railway,
Jabalpur - 482001 - Respondents
(By Advocate - Shri A.S. Raizada)
(Date of reserving order : 28.08.2018)
Page 1 of 19
2 OA No.200/862/2010
ORDER
By Navin Tandon, AM.
The applicant is aggrieved by the penalty imposed on him by the respondents.
2. He has made the following submissions:
2.1 The applicant, while working as Head Travelling Ticket Inspector (Head TTE), was served with a major penalty chargesheet dated 16.05.2006 (Annexure A-1).
2.2 Since the charges were not admitted by the applicant, Shri K.K. Shrivastava was appointed as Inquiry Officer.
2.3 No Presenting Officer was appointed.
2.4 Both the charges were found to be proved by the Inquiry Officer in the inquiry report dated 25.09.2006 (Annexure A-6).
2.5 The Disciplinary Authority imposed the punishment of removal from service vide order dated 12.04.2007 (Annexure A-2).
2.6 The applicant preferred an appeal (Annexure A-6).
The Appellate Authority, vide its order dated 15.10.2007 (Annexure A-3) reduced the penalty from 'Removal from Service' to reduction to the lower post i.e. Senior Ticket Collector in Gr. Rs. 4000-6000/- for a period of 5 years with Page 2 of 19 3 OA No.200/862/2010 cumulative effect and his pay was fixed at Rs.4000/-. The period from Removal from service to the date of reinstatement has been declared as 'Dies-non'. 2.7 The applicant preferred the revision petition (Annexure A-7), which was turned down by the Revisionary Authority on 10.12.2009 (Annexure A-4).
2.8 The applicant places reliance on a letter dated 10.05.2006 (Annexure A-8) from Vigilance Department to the Disciplinary Authority regarding issuance of chargesheet to the applicant, which is even prior to the date of issue of the chargesheet. Exchange of letters dated 08.03.2007 and 30.03.2007 (Collectively Annexure A-9) between the Disciplinary Authority and the Vigilance Department clearly indicates that the Vigilance Department was monitoring the entire proceedings.
2.9 It is the case of the applicant that no outsider can interfere with the decision making of the Disciplinary Authority.
3. The applicant, has therefore, sought for the following reliefs:
"8. RELIEF SOUGHT:
It is, therefore, prayed that this Hon'ble Court may kindly be pleased to:-Page 3 of 19 4 OA No.200/862/2010
(i) Summon the entire relevant record from the respondents for its kind perusal.
(ii) Quash and set aside the charge-sheet dated 16.5.2006 Annexure A/1 and disciplinary proceedings including the punishment order dated 12.4.2007 Annexure A/2, the appellate order dated 15.10.2007 Annexure A/3 and the revisional order dated 10.12.2009 Annexure A/4;
(iii) Consequently, command the respondents to provide all consequential benefits to the applicant as if the impugned orders and disciplinary proceedings were never initiated against him;
(iv) Any other order/orders, which this Hon'ble Court deems, fit proper.
(v) Award cost of the litigation in favour of the applicant."
4. The respondents have filed their response and submitted as under:
4.1 Vigilance checks are carried out to detect the malpractice of employees under the respondents. One such Vigilance check was carried out on 29.04.2005 by the Vigilance Team by intercepting the Train No.1448 by road at Khanna Banjari Railway Station.
4.2 During the Vigilance check, it was found that the applicant declared as Rs.750/- as private case, whereas only Rs.265/- was produced during the Vigilance check. Further, an amount of Rs.5,340/- was produced by the applicant as Page 4 of 19 5 OA No.200/862/2010 against cash collection of Rs.5,339/- as Railway cash. Thus, Rs.1/- was found excess in Railway case. It was also detected that four passengers holding IInd class Mail/Express tickets were traveling in AC-2 Tier. These passengers were regularised on the direction of Vigilance Team and an amount of Rs.3157/- was realized from them.
4.3 During the Vigilance Check, the applicant had also misbehaved with the passengers, who were sitting on berth No.37 and 38 of AC-2 Tier coach holding IInd class Mail/Express train tickets, when they demanded the applicant to return Rs.1,000/- which was paid by them to get EFR against allotment of the said berth to them.
4.4 Accordingly, the chargesheet was issued. The inquiry report shows that the charges have been proven, and accordingly, the Disciplinary Authority imposed the penalty of removal from service, which was reduced by the Appellate Authority by taking a lenient view. The Revisionary Authority rejected the Revision Petition of the applicant.
4.5 The applicant has been given all opportunities, as provided under the rules, to defend the case and also given hearing at every stage.Page 5 of 19 6 OA No.200/862/2010
4.6 Appointment of Presenting Officer, in each case, is not mandatory. The applicant has not come forward as to how his defence has been prejudiced because of non-
appointing of Presenting Officer. The evidence was taken in the presence of the applicant and he was given opportunity to cross examine the witnesses. The applicant was never cross examined by the Inquiry Officer. Therefore, there was not case of any prejudice caused to the defence of the applicant.
5. We have heard learned counsel for the parties and perused the pleadings available on record.
6. The chargesheet dated 16.5.2006 (Annexure A-1) states the following two charges:
"That Shri M.C. Kumar, while working as COR on the train No. 1448 Exp. between SGRL-JBP on date 29/4/05 and manning AC-2 Tier coach, committed misconduct in that:
Article-I He was detected carrying 04 passengers holding II M/Exp tickets in AC-2 Tier coach on vacant berth No. 26, 37, 38 and 44 with the ulterior motive during vigilance check these were regularized and an amount of Rs. 3157/- was realized as Railway dues.
Article-2 He misbehaved with the passengers who were sitting on berth No. 37 & 38 in AC-2 Tier holding II M/Exp tickets when passengers asked to COR to return Rs. 1000/- which Page 6 of 19 7 OA No.200/862/2010 were paid by them to get EFR against allotment of above berth along with railway dues.
Had there been no vigilance check the COR HTTE would have been succeeded in carrying the above passengers up to their destination in his beat and the amount realized (Rs. 3157/-) would also have been caused loss to the Railway revenue.
Thus Shri M.C. Kumar, HTTE misused his official status during discharge of his duties with dishonest motive for his vested interest.
By the above act of omission and commission of Shri M.C. Kumar, Hd. TTE/JBP failed to maintain absolute integrity devotion to duty and acted in a manner unbecoming of Railway Servant and there by contravened Rule No. 3.1
(i) (ii) and (iii) of Railway Service (Conduct) Rules 1966."
7. The issues raised by the applicant in the O.A, are as under:
7.1 No Presenting Officer was appointed, and hence the enquiry is vitiated.
7.2 The entire disciplinary proceedings are based on dictate of Vigilance Department.
7.3 No evidence was taken from the passengers.
7.4 The punishment of removal is substituted by reduction in lower post. Accordingly, the substituted punishment will relate back to the date of original punishment. Hence, treatment of intervening period as "dies on" is out of question.Page 7 of 19 8 OA No.200/862/2010
7.5 The Appellate Authority and Revisionary Authority have passed orders without assigning any reason.
8. Learned counsel for the applicant places reliance on the case of Union of India Vs. Mohd.Naseem Siddiqui, 2005 MPLSR 65, (2005) ILLJ 931 MP, wherein the Hon'ble High Court has held thus:
"16. We may summarise the principles thus:
(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor.
(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non-
appointment of a Presenting Officer, by itself will not vitiate the inquiry.
(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications.
(iv) If the Inquiry Officer conducts a regular examination-in- chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross- examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.
(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the Page 8 of 19 9 OA No.200/862/2010 truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry.
Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may".
8.1 We find that recently in the matters of Union of India Vs. Ram Lakhan Sharma, 2018 (8) SCALE 387, the Hon'ble Supreme Court has dealt with above decision of Hon'ble MP High Court in the matter of Mohd.Nasem Siddiqui (supra) and after quoting above findings of the Hon'ble High Court, it has held thus:
"(33). We fully endorse the principles as enumerated above, however, the principles have to be carefully applied in facts situation of a particular case. There is no requirement of appointment of Presenting Officer in each and every case, whether statutory rules enable the authorities to make an appointment or are silent. When the statutory rules are silent with regard to the applicability of any facet of principles of natural justice the applicability of principles of natural justice which are not specifically excluded in the statutory scheme are not prohibited. When there is no express exclusion of particular principle of natural justice, the said principle shall be applicable in a given case to advance the cause of justice.
8.2 The applicant has not been able to demonstrate the prejudice that has been caused to him due to no Presenting Officer being appointed.
Page 9 of 19 10 OA No.200/862/2010
9. Learned counsel for the applicant submitted that the whole chargesheet has been framed on the dictate of Vigilance Department, without any application of mind by the Disciplinary Authority.
9.1 Learned counsel for the respondents submitted that as per the CVC Act, the Vigilance Department is duty bound to do preventive checks and to suggest disciplinary action against the erring employee. However, it is for the Disciplinary Authority to apply his independent mind and to issue chargesheet/impose the penalty as he deems fit. In the instant case, there has been no documents to show that the Disciplinary Authority has not applied its mind independently and has issued the chargesheet/imposed the penalty only under the dictate of the Vigilance Department.
10. Learned counsel for the applicant also placed reliance on the order dated 22.12.2011 in Original Application No.731/2010 (Kailash Chandra Verma vs. Union of India & Ors.), wherein the Revisionary Authority had changed the decision based on the advice of the Vigilance Department.
10.1 In the instant case, similar thing has not been demonstrated. Therefore, it cannot be deduced that the Disciplinary Page 10 of 19 11 OA No.200/862/2010 Authority/Appellate Authority/Revisional Authority have not applied their mind independently and acted only as per the dictate of Vigilance Department.
11. Learned counsel for the applicant further places reliance on a decision of the Hon'ble Supreme Court in the case of Hardwari Lal vs. State of U.P. & Ors. (1999) 8 SCC 582 wherein the Hon'ble Supreme Court has held that since the complainant and another witness were not examined, there was no proper enquiry held by the authorities and on this short ground their lordships quashed the order of dismissal passed against the appellant. 11.1 The present case is mainly regarding allowing passengers with second class tickets in AC-2 Tier. The same has been proved on the basis of relied upon documents and prosecution witnesses. 11.2. Also, in the present case, only two Prosecution Witnesses were listed in the charge-sheet namely; Shri R.K. Soni (VI) and Shri Rajesh Shrivastava (Head TTE). Both these Prosecution Witnesses have been called as witnesses during the enquiry. Therefore, we find that the decision in case of Hardwari Lal (supra) is not applicable in the present case.
12. Learned counsel for the applicant further placed reliance on a decision of Hon'ble High Court of Madhya Pradesh at Gwalior Page 11 of 19 12 OA No.200/862/2010 Bench in the case of Vishwanath Laharia vs. State of M.P. and Others, (2012) ILR (MP) 934.
12.1 We find that the decision in the matters of Coal India Ltd. v. Ananta Saha, (2011) 5 SCC 142 was referred to by Hon'ble High Court of Madhya Pradesh in Para 5 of the order in the matters of Vishwanath Laharia (supra). By referring to the said decision, the Hon'ble High Court has held that the doctrine of relation back would apply in the said case and the substituted punishment imposed by the appellate order has to be counted from the date of imposition of original punishment order. The learned counsel for the applicant by placing reliance on the decision of Vishwanath Laharia (supra) has contended that since in the instant case also the appellate authority has modified the penalty from removal to reduction in lower post, the said penalty has to be counted from the date of imposition of original punishment order of removal from service and, therefore, treating the intervening period as dies non was wholly arbitrary and not permissible. Therefore, it would be pertinent here to reproduce relevant extract of the decision of the Hon'ble Supreme Court in the matters of Ananta Saha, (supra) thus:
"(46). In the last, the delinquent has submitted that this Court must issue directions for his reinstatement and Page 12 of 19 13 OA No.200/862/2010 payment of arrears of salary till date. Shri Bandopadhyay, learned Senior Counsel appearing for the appellants, has vehemently opposed the relief sought by the delinquent contending that the delinquent has to be deprived of the back wages on the principle of "no work--no pay". The delinquent had been practising privately i.e. has been gainfully employed, thus, not entitled for back wages. Even if this Court comes to the conclusion that the High Court was justified in setting aside the order of punishment and a fresh enquiry is to be held now, the delinquent can simply be reinstated and put under suspension and would be entitled to subsistence allowance as per the service rules applicable in his case. The question of back wages shall be determined by the disciplinary authority in accordance with law only on the conclusion of the fresh enquiry.
(47). It is a settled legal proposition that the result of the fresh enquiry in such a case relates back to the date of termination. The submissions advanced on behalf of the appellants that the result of the enquiry in such a fact situation relates back to the date of imposition of punishment, earlier stands fortified by a large number of judgments of this Court and particularly in R. Thiruvirkolam v. Presiding Officer(1997) 1 SCC 9, Punjab Dairy Development Corpn. Ltd. v. Kala Singh(1997) 6 SCC 159 and Graphite India Ltd. v. Durgapur Projects Ltd.(1999) 7 SCC 645 (48). In ECIL v. B. Karunakar (1993) 4 SCC 727 and Union of India v. Y.S. Sadhu, (2008) 12 SCC 30 this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the enquiry afresh from the stage where it stood before the alleged vulnerability surfaced. However, for the purpose of holding fresh enquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages, etc. is determined by the disciplinary authority in accordance with law after the fresh enquiry is concluded. (49). The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages Page 13 of 19 14 OA No.200/862/2010 is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide U.P. SRTC v.
Mitthu Singh, (2006) 7 SCC 180, Akola Taluka Education Society v. Shivaji (2007) 9 SCC 564 and Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale (2009) 2 SCC 288) (50). In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the date of first termination order till date, cannot be entertained and is hereby rejected. In case the appellants choose to hold a fresh enquiry, they are bound to reinstate the delinquent and, in case, he is put under suspension, he shall be entitled to subsistence allowance till the conclusion of the enquiry. All other entitlements would be determined by the disciplinary authority as explained hereinabove after the conclusion of the enquiry. With these observations, the appeal stands disposed of. No costs. 12.2 On perusal of above extract of the decision of Hon'ble Supreme Court in the matters of Ananta Saha, (supra), we find that though the Hon'ble Supreme Court in aforementioned case has stated that "the result of the fresh enquiry in such a case relates back to the date of termination", however, as regards the issue of entitlement of back wages is concerned, the Hon'ble Supreme Court in the said matter has clearly observed that it has been Page 14 of 19 15 OA No.200/862/2010 consistently held time and again that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Their lordships have further held that even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. Accordingly, in the said matter the Hon'ble Supreme Court had rejected the prayer of the delinquent-employee that the employer be directed to pay the arrears of back wages from the date of first termination order.
12.3 Rule 1343 of Indian Railway Establishment Code (I.R.E.C.) Volume-II deals with the question of treatment of intervening period after reinstatement. Rule 1343 of IREC (FR, 54) reads as hereunder:
"1343. (F.R. 54)--(1) When a Railway servant who has been dismissed, removed or compulsorily retired is re-instated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension preceding the dismissal, removal or compulsory retirement, the authority competent to order reinstatement shall consider and make a specific.Page 15 of 19 16 OA No.200/862/2010
(a) regarding the pay and allowances to be paid to the Railway servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority competent to order re-
instatement is of Opinion that the Railway servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Railway servant shall, subject to the provisions of Sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal, or compulsory retirement, as the case may be:
Provided that where such authority is of opinion that the termination of the proceedings instituted against the Railway servant had been delayed due to reasons directly attributable to the Railway servant, it may, after giving him an opportunity to make his representation and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Railway servant shall, subject to the provisions of Sub-rule (7), be paid for the period of such delay only such amount of such pay and allowances as it may determine.
(3) In a case falling under Sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.
(4) In cases other than those covered by Sub-rule (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the Appellate or Reviewing Authority solely on the ground of non-compliance with the requirements of Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the Railway service shall, subject to the Page 16 of 19 17 OA No.200/862/2010 provisions of Sub-rules (6) and (7), be paid such amount to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the Competent Authority may determine, after giving notice to the Railway servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed 60 days from the date on which the notice has been served as may be specified in the notice:
Provided that any payment under this sub-rule to a Railway servant (other than a Rail way servant who is governed by the provisions of the Payment of Wages Act, 1936 (4 of 1936), shall be restricted to a period of three years immediately preceding the date on which orders for re-instatement of such Railway servant are passed by the Appellate Authority or Reviewing Authority or immediately preceding the date of retirement on superannuation of such Railway servant, as the case be.
(Rly Board's letter No. F(E)III 68 SPN/3, dt. 16.10.74).
(5) In a case falling under Sub-rule (4), the period of absence from duty including the period of suspension preceding the dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the Competent Authority specifically directs that it shall be so treated for any specific purpose; provided that if the Railway servant so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the Railway servant.
Note.--The order of the Competent Authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of:
(a) extraordinary leave in excess of three months in the case of temporary Railway servant; and Page 17 of 19 18 OA No.200/862/2010
(b) leave of any kind in excess of five years in the case of permanent Railway servant.
(6) The payment of allowances under Sub-rule (2) or Sub-
rule (4) shall be subject to all other conditions under which such allowances are admissible.
(7) The amount determined under the proviso of Sub-rule (2) or under the Sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342 (F.R. 53).
(8) Any payment made under this rule to a Railway servant on his reinstatement shall be subject to adjustment of the amount, if any earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of re-instatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the Railway servant."
12.4 Thus, having considered the provisions of the IREC as well as the decision of the Hon'ble Supreme Court referred to above, we are of the considered opinion that the applicant has failed to point out any illegality or irregularity in the action of the respondent- authority in treating the period from removal from service to the date of reinstatement as 'dies non'. Thus, we do not find any illegality in treating the intervening period from removal to reinstatement as dies non.
13. Perusal of the orders of Appellate Authority as well as Revisionary Authority clearly indicates that the issues raised by the Page 18 of 19 19 OA No.200/862/2010 applicant have been adequately covered in their orders. Hence, the action of the relevant authorities cannot be faulted.
14. From the foregoing discussions, we find that there is no merit in the issues raised by the applicant in this O.A.
15. Accordingly, O.A is dismissed. No costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
am/-
Page 19 of 19