Central Administrative Tribunal - Delhi
Shri A.K. Ghosh vs The Union Of India Through on 7 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.: 587 OF 2008 Reserved on :20.07.2012 Pronounced on : 07.08.2012 HON'BLE DR. RAMESH CHANDRA PANDA, MEMBER (A). HON'BLE SMT. C. MAJUMDAR, MEMEBR (J) Shri A.K. Ghosh Retired Senior Section Engineer (Tele), Pune Division, Central Railway, Residing at Gurukripa Apartment, Flat No.8, Plot No. 8A/8B, Bhangarwadi, Lonavala. ...Applicant (By Advocates: Sh. K.R. Yelwe) VERSUS 1. The Union of India through Secretary to the Government of India, Ministry of Railways (Railway Board) Rail Bhawan, New Delhi -110 001. 2. The General Manager, Central Railway HQs, CSTM, Mumbai 400 001. 3. The Divisional Railway Manager, Pune Division, Central Railway, DRMs Office, Pune. 4. The Deputy Chief Vigilance Officer, Central Railway, HQs, CSTM, Mumbai 400 001. 5. The Senior Divisional Signal & Telecom Engineer (M) Pune Division, Central Railway, Pune. ...Respondents (By Advocates:Sh.V.D. Vadhavkar) ORDER
Dr. Ramesh Chandra Panda, Member (A) Shri A.K. Ghosh, retired Senior Section Engineer (Tele), Pune, the applicant herein, is aggireved by the Presidential Order issued to him vide order No.E(D&A)2006 AE 2-10 dated 25.4.2008 (Annexure A-1)whereby the applicant was imposed a penalty of 10% cut in his monthly pension for a period of two years for the proved misconduct committed by him. Feeling aggrieved by the above order, the applicant is before this Tribunal in the instant OA challenging the same with prayers to direct the respondents to restore the original pension and refund the entire amount of pension so reduced as a result of the impugned penalty order dated 25.04.2008 and has also sought any such order which may be deemed necessary.
2. It would be appropraite to state here briefly the facts of the case. The applicant while working as Senior Section Engineer (Telecom)/PA during the period 2003 to 2004 alleged to have committed certain misconducts for which a charge memo dated 26.02.2004 was issued to him under Rule 9 of the Railway Servants (D&A) Rules, 1968. There are three Articles of Charges, which read as follows:-
Article I: Shri A.K. Ghosh SSE(T)/PA, has recorded inflated measurments of depth of the trench at Talegaon, Chinchwad & Kasarwadi stations agaisnt schedule item no.2g of CA No.CR/S&T/Deposit/OFC/T-10 Dt. 05.08.2002 in the MB filled up for 3rd and 4th on account bills of the contractor.
Shri A.K. Ghosh SSE (T)/PA has also recorded inflated measurements of depth of the trench against schedule item no.2a and 2d of CA No. CR/S&T/Deposit/OFC/T-10 Dt 05.08.2002, and inflated and fictitious measurements of depth of the trench against schedule item no.2b(i) of CA No.CR/S&T/Deposit/OFC/T-10 Dt 05.08.2002, in the MB filled up for 3rd and 4th on account bills of the contracator.
Article II: Shri A.K. Ghosh SSE(T)/PA, has recorded the measurments for payment on pro-rata basis for less than the prescribed cable trench depth under schedule item Nos. no.2a and 2b (i) of CA No. CR/S&T/Deposit/OFC/T-10 Dt 05.08.2002, without obtaining DSTE/ADSTE/PAs specific approval in terms of Special condition of contract No. 32(b) of the contract agreement and the schedule of work.
Article III: Shri A.K. Ghosh, has filled up the Measurement Book for a quotation work awarded to M/s. Associated Engineering Corpn., Bhayandar (W) vide CA No. PA. N.M. Tele.OFC Dt 25.02.03 for 80 m3 of P.C.C. on OFC cable trenches. Shri A.K. Ghosh has failed to give exact location wise details of the quantity paid to the contractor. He has recorded measurements of PCC on higher side resulting into over payment to the contracator.
3. By his aforesaid alleged misconduct, the applicant, it is alleged, failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a railway servant thereby contravened Rule 3.1 (i), 3.1 (ii) and 3.1(iii) of the Railway Services (Conduct) Rules, 1966. The applicant denied the above charges levelled against him. Therefore, an enquiry was held. The Inquiry Officer (I.O.) held two articles of charges (Articles-I & III) as proved and one article of charge (Article-II) as not proved. However, the disciplinary authority did not provisionally agree with the findings of the IO in respect of the Article-II of the charge which was held as not proved and the said disagreement note along with the IOs report were furnished to the applicant for making his representation. The aplicant represented in his letter dated 12.10.2005 and the competent disciplinary authority after considering the IOs report, representation of the applicant and other admissible relevant aspects of the case, tentatively decided to impose a penalty of cut in pension on the applicant and forwarded the entire case record for the advice of Union Public Service Commission (UPSC). The UPSC after examination of the matter tendered its advice by holding that Articles-I & II as proved and Article-III as not proved. At this stage, it is appropriate to note that the Articles I & III were held as proved by the IO and Article-II was not held as proved. However, it is apt to note that the UPSC after observing in the said manner suggested imposition of penalty of 10% cut in monthly pension of the applicant for a period of two years on the applicant as he has committed grave misconduct. On receipt of the UPSC advice and agreeing with the same by holding Article-I and II as proved, the disciplinary authority vide the order dated 25.04.2008 extensively referred to the advice of the UPSC the imposed the penalty of 10% cut in the monthly pension of the applicant for a period of two years as a major penalty for the grave and proved misconduct committed by him. This is the Presidential order which has been challenged in the present OA.
4. Shri K.R. Yelwe, learned counsel representing the applicant highlighted the background of the case and submitted that certain procedural infirmities and illegalities have been committed in the disciplinary case. The disciplinary authority has not supplied a copy of the UPSC advice to the applicant whereby he missed an opportunity to defend himself against the advice of the UPSC before the disciplinary authority. Such non-supply of UPSC advice to the applicant prior to the imposition of punishment seeking his representation is violative of the principles of natural justice. He, therefore, submits that the OA is liable to be allowed on this ground though there are many other grounds which would support the case of the applicant. In this regard, learned counsel for the applicant placed his reliance on the judgment of Honble Supreme Court in the matter of Union of India & Others versus S.K. Kapoor [2011-4-SCC-589]. Further, the applicant retired on 28.02.2004 but the charge memo was issued to him on 26.02.2004 for an alleged misconduct which was committed in the year 2002. Thus, few days before the retirement, framing of charges against the applicant is not in accordance with the procedure laid by the Railways. Further, learned counsel has taken the ground that there has been considerable delay between the occurrence of alleged incident and passing of the final order by the competent authority in the disciplinary case. His contention is that the competent authority took nearly six years from the date of alleged misconduct/event and about four years from the date of framing of charges against the applicant and, as such, the delay has caused prejudice to the applicant since he has not received his full and final pension and thus the applicants plea for allowing the OA should be considered.
5. Learned counsel for the applicant further submits that the disciplinary case was initiated mainly at the behest of the Chief Vigilance Inspector which is non-application of mind by the discipoinary authority for the alleged misconduct of inflated measurements for the purpose of making payment to the contractors. Further, his case is that without calling for his explanation/show cause before framing of the charges, the applicant has lost an opportunity to explain his stand and on receipt of his representation, they could have considered that, prima facie, there was no misconduct committed by the applicant. He has also raised another contention that the advice of CVC has not been supplied to the applicant as a result of which the principles of natural justice have been violated in the process of taking final decision.
6. There is contradictory position which emerged after the UPSC advice was received by the competent authority. The Inquiry Officer held Articles-I & III as proved and Article-II as not proved but the UPSC has considered the disagreement note of the disciplinary authority and held the Articles-I & II of the charge as proved and Article III of the charge as not proved. This contradictory position has not been properly explained by the discipoinary authority in the penalty order as to which of the charges have been held as proved against the applicant for which the penalty was inflicted.
7. In view of the above contentions, learned counsel for the applicant urges to allow the OA and to restore the full pension to the applicant besides refunding the amount already held back from his pension for two years.
8. On receipt of notice from the Tribunal, the respondents put in their appearance and filed the reply affidavit through their learned counsel Shri V.D. Vadhavkar. It is contended that the applicant has committed grave misconduct as indicated in the Articles of charges. Counsel for the respondents would submit that IOs report has been considered by the disciplinary authority and his tenative disagreement note was sent to the applicant to make his representation. On receipt of the representation, the competent authority decided to hold the charges as proved and to impose 10% cut in pension of the applicant as a penalty. At that stage, the UPSCs advice was sought which was rendered and the competent authority after considering the UPSC advice dated 14.02.2008 passed the order imposing the penalty in question. For the proved grave misconduct the penalty of 10% cut in pension for a period of two years was considered justified as the same was proportionate to the proved misconduct. Referring to the allegations of the counsel for the applicant that disicplinary authority was influenced by the advice of vigilance, he would contend that vigilance has carried out a routine preventive check on the basis of which certain officials including the applicant were found prima facie responsible for certain alleged irregularities. There is nothing wrong in the vigilance advising to proceed against the erring officials including the applicant. The Vigilance Department has considered the measurement books as the works were on going works and as per the instant rules and practices, the vigilance department has the prerogative to check the quality of works. Therefore, the measurement recorded in the measurment books was looked into by the vigilance department and found certain irregularities which became the basis of framing the charges against the applicant. It is further contended that the competent authority after receipt of the advice of UPSC has held the Article-III of the charge as not proved and other two charges have been held as proved. The penalty was imposed on the applicant only on the basis of the proved charges. It is further stated that the appointment of presenting officer is mandatory and accordingly the presenting officer was appointed to present the case and the reliance is laid by the learned counsel for the respondents on the judgment in the matter of H. Rajendra Pai versus Chairman, Canara Bank (Kerala) reported in 1990(1)SLR-127 (Kerala). Referring to the allegation about non-supply of UPSCs report/advice to the applicant, learned counsel for the respondents would submit that along with penalty order dated 25.04.2008, a copy of UPSC advice was also enclosed for the information of the applicnat. Learned counsel would submit that the judgment of Honble Supreme Court in S.K. Kapoors case (supra) would be only prospective and when the disciplinary case was finally decided the law laid in the said judgment did not exist. We will dwell on this aspect separately. In view of these contentions, the counsel for the respondents argues to dismiss the OA.
9. Having heard the counsel for the parties with the assistance of their counsel, we perused the documents available on record and the relied on judgments as well. We would refer to those judgments, which would be relevant in adjudicating the issues. The main legal issue that comes up before us for determination is whether the law laid by the Honble Supreme Court would have retrospective effect or prospective effect? The second issue is related to the first issue and the controversy is whether non-supply of UPSC advice/report to the applicant has violated the principles of natural justice?
10. We may advert to the first issue about the prospective/retrospective application of the law laid by the Honble Supreme Court. Our attention was drawn to the judgment of Hon'ble Apex court in the matters of Union of India versus Mohd. Ramzan Khan, reported in (1991)1SCC 588 and extensively referred to in State of Karnataka Versus V. B. Hiregowdar [1996-10-SCC-505] by the learned counsel to state that the law laid by the Hon'ble Apex Court would have only prospective application. We may refer to the facts of the case in V. B. Hiregowdar's case (supra) where the respondent, who was serving as an officer of the Government of Karnataka in the Department of Child Development in Bidar District in the year 1982-83, faced disciplinary inquiry on charges of certain irregularities in the release of Government funds. The Inquiry Officer found him guilty of the charges framed against him. The disciplinary authority accepted the report of the Inquiry Officer and by its order dated 10th April, 1990 imposed penalty of reduction in rank upon the respondent, who approached the Karnataka Administrative Tribunal and challenged the order of the disciplinary authority. On 28th August, 1990 the Tribunal dismissed the application on merits holding the order of the disciplinary authority to be valid. After dismissal of the application, the respondent filed a review application before the Tribunal wherein he contended that the ground urged by him regarding non-furnishing of the inquiry report, which had vitiated the punishment imposed upon him, was not considered by the Tribunal while disposing of the Original Application on 28th August, 1990. The review application was allowed on 11th November, 1991 and the order dated 28th August, 1990 was recalled and fresh hearing was held. By its order dated 18th November, 1992, the Tribunal relying upon the judgment in Union of India v. Mohd. Ramzan Khan, (1991)1 SCC 588:(AIR-1991-SC-471) allowed the Original Application holding that the order of punishment stood vitiated on account of non-supply of the copy of the report of the Enquiry officer to the applicant. The appellant appealed against the said order. While allowing the appeal the Hon'ble Supreme Court considered the issue of prospectivity/retrospectivity of the law and decided in the following terms:
"3. From a perusal of the record we find that the attention of the Tribunal was drawn by the appellant to the observations in Union of India v. Mohd. Ramzan Khan (AIR 1991 SC 471) (supra) to the effect that the judgment in the said case would have only prospective application. The appellant also brought to the notice of the Tribunal another judgment of this Court in Rangaswamaiah's case (Civil Appeal No. 4220 of 1992 disposed of on 12th October, 1992) wherein this Court had clarified that the judgment delivered in Ramzan Khan's case (AIR 1991 SC 471 ) (supra) was of prospective application and was not to apply to cases where disciplinary authority had imposed punishment on the delinquent employee earlier to 20th November, 1990, the date on which the judgment in Ramzan Khan's case (AIR 1991 SC 471) (supra) was delivered. The Tribunal, however, "declined"to apply the said ruling and instead relied upon an order of this Court in State of Karnataka v. Dr.M.Sathyanarayana Shetty dismissing the Special Leave Petition on 13th May, 1992. The Tribunal observed that since the Special Leave Petition against the judgment of the Karnataka High Court in Dr. M. Sathyanarayana Shetty's case (supra) had been dismissed, it followed that the non-furnishing of copy of the inquiry report vitiated the punishment imposed by the disciplinary authority. The Tribunal apparenly failed to take into consideration that this Court in Dr. M. Sathyanarayana Shetty's case (supra) did not specifically deal with the question whether the judgment in Ramzan Khan's case (supra) was to operate retrospectively or prospectively. The Tribunal it appears to us laboured hard to grant relief to the respondent ignoring the law laid down in Ramzan Khan's case (supra) itself as also in Rangaswamaiah's case (supra). The approach adopted by the Tribunal, to say the least, was improper.
4. The rule laid down in Ramzan Khan's case (AIR 1991. SC 471) (supra) on 20th November, 1990 that non-furnishing of the copy of the inquiry report to a delinquent employee would render the final order void is only applicable prospectively after the date of the decision in Ramzan Khan's case (supra). Hence, no order of punishment passed on a delinquent employee before 20th November, 1990 is challengeable on the basis of the judgment in Ramzan Khan's case (supra) and proceedings in such cases are to be decided on the basis of the law as it existed prior to the decision in Ramzan Khan's case (AIR 1991 SC 471) (supra), except in cases where the service rules themselves provide for supply of copy of the report of the Inquiry Officer to the delinquent employee before imposing punishment.
5. A Constitution Bench of this Court in Managing Director ECIL, Hyderabad v. B. Karunakar, (1993) 4 SCC 727 : (1994 AIR SCW 1050) while affirming the judgment in Ramzan Khan's case (AIR 1991 SC 471) (supra) has set the controversy at rest and categorically laid down that the judgment in Ramzan Khan's case (supra) is of prospective application only and that no order of punishment made before 20th November, 1990 was to be tested on the basis of the law laid down in Ramzan Khan's case (supra).
6. In the instant case, the order of the disciplinary authority punishing the respondent was passed on 10th April, 1990, much before the date of judgment in Ramzan Khan's case (AIR 1991 SC 471) was delivered. The law laid down in Ramzan Khan's case (supra), therefore, had no application to the fact situation in the present case. The order of the Tribunal therefore cannot be sustained since it applied the law laid down in Ramzan Khan's case (AIR 1991 SC 471) (supra) retrospectively.
7. Consequently, this appeal succeeds and is allowed. The impugned order of the Karnataka Administrative Tribunal is hereby set aside. Since, the respondent in spite of being served twice has chosen to remain absent, there will be no order as to costs."
11. Citing the above judgments of the Hon'ble Supreme Court learned counsel for the respondents would contend that law laid in Union of India and Others Versus S.K. Kapoor[JT 2011(3)SC 446] having been pronounced on 16.03.2011 would have prospective applicability and the applicant's disciplinary case having been decided prior to the judgment in S K Kapoor's case(supra) the law laid therein would not apply to the case. Thus, the supply of the UPSC advice/report along with the penalty order being in accordance of the law laid in the judgment Hon'ble Apex Court in Union of India versus T. V.Patel[2007-4SCC-785] would be legally sustainable. We may refer to the judgment in S K Kapoor's case (supra) where the copy of the Report of the Union Public Service Commission supplied to the respondent along with the dismissal order, the impugned order of dismissal was quashed by the Tribunal for violation of natural justice and the authorities were directed to proceed from the stage of making available a copy of the Report of the UPSC. The above order was upheld by the High Court, and appeal against the same was dismissed by the Hon'ble Apex Court. Facts of the case disclosed that the respondent was charge sheeted for absence without leave and a dismissal order was passed against him on 01.11.2001. The respondent approached the Central Administrative Tribunal, Ahmedabad Bench, which by its order dated 20th July, 2004 quashed the dismissal order and directed the authorities to proceed from the stage of making available a copy of the Report of the Union Public Service Commission. Being aggrieved, the appellants filed a Writ Petition in the High Court of Gujarat which was dismissed. Hence, the appeal was filed before Hon'ble Supreme Court. We take the extract of the judgment in S.K. Kapoor's case [supra] which reads thus:-
"4. We have perused the impugned order and find no infirmity in the same.
5. It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same.
6. Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India vs. T.V.Patel, (2007) 4 SCC 785. We do not agree.
7. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula vs. Union of India & Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.
9. It may be noted that the decision in S.N. Narula's case (supra) was prior to the decision in T.V. Patel's case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N. Narula's case (supra) was not noticed in T.V. Patel's case(supra), the latter decision is a judgment per incuriam. The decision in S.N. Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
10. For the aforesaid reasons, this appeal is dismissed. Parties shall bear their own costs."
12. The Hon'ble Apex Court in S.N. Narula Versus Union of India[2011-4-SCC-591] decided on 30.01.2004 laid the law that non-communication of advice of UPSC while imposing punishment in disciplinary cases the principles of natural justice were violated. In the said case, the advisory opinion of the UPSC was not communicated to the appellant before he was heard by the disciplinary authority and the same communicated to the appellant with final order passed in the matter by the disciplinary authority. The Tribunal held that there was violation of principles of natural justice and case remanded back to the disciplinary authority to pass detailed order. Tribunal Order was upheld and Hon'ble High Court order was set aside by the Hon'ble Supreme Court.
13. In the background of the above decisions, it is noted that the law laid by Hon'ble Apex Court in S N Narula's case(supra) not considered in T V Patel's case (supra)has been recognized in S K Kapoor's case (supra) and reinforced. Thus law was existing as far back as on 30.01.2004 whereas the penalty order was issued on 25.4.2008.Considering the above decisions of the Hon'ble Apex Court prospective application of the judgment does not come to the support of the respondents. Moreover it is well established in law that the ratio/law set by the Honourable Supreme Court would always have the retrospective application unless specifically stipulated about the prospective applicability. Thus examining the contention of the respondents from these angles, we are of the considered view that non- supply of UPSC advice/report prior to the passing of the final order in the disciplinary case of the applicant has deprived the applicant a vital opportunity to defend himself which amounts to the violation of the principle of natural justice. Hence the penalty order passed by the competent authority is liable to be quashed and we order accordingly.
14. In the conspectus of the above facts and circumstances of the case and having been guided by the law laid by Honble Supreme Court in the matter of violation of principles of natural justice due to the non-supply of UPSC advice/report to the applicant, we are of the considered opinion that the applicant has been deprived of the opportunity and he succeeds in convincing us calling for our interference. We, therefore, quash and set aside the penalty order dated 25.04.2008 and remand the disciplinary case to the competent authority to proceed from the stage when illegality crept in. We also direct the applicant to submit his representation on the UPSC advice/Report received by him along with the penalty order, wherein the grounds taken by the applicant in the present OA and as he may require to submit, should be clearly stated in his representation to the competent authority within a period of four weeks from the date of receipt of a certified copy of this order. The competent disciplinary authority is also directed to take decision on the representation of the applicant as expeditiously as possible but positively within a period of six weeks from the date of the receipt of the representation from the applicant.
15. In terms of our above orders, directions and observation, the Original Application is allowed leaving the parties to bear their respective costs.
(Smt.C. Majumdar) (Dr. Ramesh Chandra Panda) Member (J) Member (A) /naresh/