Central Administrative Tribunal - Delhi
Shri Raman Kapoor vs Union Of India Through The on 28 January, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.896/2007 Order reserved on 05.12.2013 Order pronounced on 28.01.2014 Honble Shri G.George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member(A) Shri Raman Kapoor Working as Chief Goods Clerk Kanasar, R/o Railway Quarter No.T-48B DCM Railway Colony Delhi-110006. .Applicant (By Advocate: Shri Vaibhav Sharma) Versus 1. Union of India through the Secretary, M/o Railway Rail Bhawan, New Delhi. 2. Chief Commercial Manager Head Quarter Office North Western Railway Jaipur, Rajasthan. 3. Additional Divisional Railway Manager Bikaner Division North Western Railway DRM Office, Bikaner Rajasthan. 4. Divisional Commercial Manager North Western Railway Bikaner Division, Bikaner (RJ). ... Respondents (By Advocate: Shri R.L. Dhawan) ORDER
Shri G.George Paracken, M(J) The grievance of the applicant in this case is against the order of the disciplinary authority dated 19.07.2004 imposing upon him the penalty of removal from service. In the first round of litigation, this Tribunal, vide its order dated 01.05.2008, set aside the aforesaid order of penalty and substituted it with a lesser penalty of reduction to lower stage of pay scale cumulative for a period of three years. Consequently, the respondents were also directed to reinstate him in service within a period of one month.
2. The respondents challenged the aforesaid order before the High Court of Delhi vide WP(C) No.7575/2008 and the High Court vide its order dated 05.03.2009, stayed the aforesaid order of this Tribunal till its disposal. Thereafter, vide order dated 18.03.2013, the High Court disposed of the aforesaid petition holding that substituting a penalty by factoring in a Rule being breached by the inquiry officer would not be permissible in law. The High Court has also held that unless the penalty imposed upon a Govt. employee shocks the judicial conscious, it cannot be interdicted and it has to be left to the domain of the executive. Accordingly, the High Court restored this OA for fresh adjudication. The aforesaid said order of the High Court is reproduced as under:-
1. The roller coaster impugned order compels us to remand the matter to the Tribunal for fresh adjudication.
2. Respondent was charge sheeted for two wrongs: (i) retaining Government accommodation unauthorizedly; and (ii) sub-letting the same for running a shop.
3. The Inquiry Officer opined that charge No.1 was proved but not charge No.2. Penning a note of disagreement and supplying the same to the respondent along with the report of the Inquiry Officer for response, considering the response the Disciplinary Authority levied penalty of removal from service against which Department Appeal filed came to be rejected. Matter reached the Central Administrative Tribunal.
4. The impugned decision commences by noting that on matters of proportionality of punishment Wednesbury Principle of Reasonableness is applicable. The Tribunal then notes that long clean service has to be kept in mind. The Tribunal has thereafter noted that there were certain procedural aspects of the matter under the Rules which have not been adhered to by the Department. Conclusion arrived at is that penalty levied has to be set aside. The Tribunal has substituted the penalty by substituting the same to one of reduction in lower stage of pay by 3 years.
5. Learned counsel for the respondent seeks to urge that the Tribunal is justified in substituting the penalty because of violation of Rules.
6. Now, in paragraph 3 of the decision the Tribunal has found that Rules have not been adhered to. But in what manner? The order is silent.
7. It is settled law that if a mandatory rule is violated and prejudice is caused, the inquiry stands vitiated. And in said circumstance no penalty whatsoever can be levied. It is equally settled law that where a directory rule is violated and no prejudice is caused, the infraction has to be ignored.
8. Thus, to substitute a penalty by factoring in a Rule being breached by the Inquiry Officer would not be permissible in law.
9. On the subject of a penalty, and proportionality one has to take into account the indictment which stands; the nature of the indictment; past service record etc.
10. The two indictments in question are of unauthorized occupation and sub-letting Government property for a commercial purpose; and the latter violation would be more serious than the first.
11. For a penalty to be interdicted by a Court, unless the same shocks the judicial conscious, it has to be left to the domain of the executive.
12. The half baked roller coaster order has caused prejudice to the writ petitioner as well as the respondent for the reason the respondent alleges violation of the Rules applicable to the inquiry and in particular to the note of disagreement. The petitioner is aggrieved by the fact that the penalty has been substituted by intermingling an inchoate finding that Rules have been breached with the proportionality of the penalty.
13. The writ petition accordingly stands disposed of setting aside the impugned order dated May 01,2008.
14. OA No.896/2007 is restored for fresh adjudication before the Central Administrative Tribunal.
3. It is in view of the above position, we are considering the entire pleadings in this OA for its fresh adjudication.
4. The brief facts of the case are that the Divisional commercial Manager Bikaner Division, Northern Railway issued Memorandum No. CA/COMI/Compt./2/2001 dated 08.06.2001 vide Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 proposing to hold an inquiry against the Applicant. The substance of imputations of misconduct and misbehaviour in respect of which the enquiry was proposed to be held were as under:-
1. That he was transferred time to time during period 9/87 to 30.4.2001 on different stations but he kept accepted Railway Quarter No.T-49(B) amended No.(T-48B0 DCM Colony unauthorisedly during this period despite of notice given to him to vacate the above quarter vide letter No. Comt./CC-1/259/LIO/DEC/98 dated 27.4.2001.
2. During a check conducted on 6.12.2000 at DEC to check the misuse and subletting of Railway Quarter, it was found that he was running a shop in the covered verandah of said Quarter and about 40 loose tyres were also found kept.
Thus he is found responsible for occupying above Railway Quarter unauthorisedly and using the same for commercial purpose. Thereby, he has shown gross misconduct and insubordinate.
By the above act of omission and commission, Sh. Raman Kapoor, GC/SSA now working at GGN further transferred to StPS/BDWL has acted in a manner unbecoming of a Railway Servant thereby contravened Rule No.3.1(iii) of the Railway Service (Conduct)Rules, 1966.
5. The Inquiry Officer recorded the depositions of the prosecution witnesses. According to PW1, Shri R.S. Gupta CMI/DEE, the penal rent amounting to `2,92,000/- was worked out vide the respondents letter dated 11.01.2001 but he was not associated with the checking conducted by the committee. PW 2, Shri Karnail Singh TI/DEE stated during cross examination by the defence that he had accompanied the committee nominated by the Divisional Higher Authority and he saw that a small shop was running in the Verandah of Quarter No.T-48 B DCM/Colony DEE and some tyres belonging to the shop keeper were lying there. But no customer was seen making any purchase and no statement of any customer was also recorded. However, he did not sign the report of the committee which conducted the check. Therefore, the charges were correct. PW-3, Shri Hari Shankar SS/DEE has stated that the letter conveying the penal rent dated 09.08.1998 was signed by him and he has nothing more to add. On cross examination, he has stated that he was not deputed for the checking. PW 5, Shri Mahesh Prakash submitted that he wrote a letter to the applicant regarding recovery of the penal rent from him. During cross examination, he has stated that the charges against the applicant were not framed on the basis of his report. He has also stated that neither he was a member of the committee nor he was associated with the check or signed any check report. However, he has stated that the applicant did not apply for permission to retain the quarter.
6. According to DW No. 1, Shri Surender Kumar, he was living in house No.E-70 Sector 20 Noida (UP) and he knew the applicant. He lived in 132/12 DCM Road Delhi near DCM Railway Colony for about 7-8 years. He had family relationship with the applicant who was living in T-48B Railway DCM Colony. The said quarter was allotted to the applicants father who was a Driver in the Railway and it was regularized in the name of the applicant. According to his knowledge, the family of the applicant was living in the quarter and he never subletted his quarter nor any shop was running in his quarter. DW 2, Shri Ashish Malhotra stated that he was the neighbor of the applicant and he knew him personally. His father was also railway employee and he was also living in the same railway colony. After retirement of his father from the railway service, he was living in a private house in the nearby colony. He has also stated that to the best of his knowledge, the applicant has been living in Quarter No.T-48B, DCM Railway Colony and he did not see any person as a sublette living in the said quarter or running any shop. During the cross examination, he stated that he was living in C-72, Gali No.5 Main Market Khajoori Khas, Delhi-110094, and he was doing a job on private shop of tyres. The address of the shop was T-736 DCM/Colony Road, Delhi. He has also stated that he has never seen any tyre lying in the applicants quarter.
7. The applicant himself deposed that he was transferred from DEC to BNW in September, 1987 and he resumed his duties there. Thereafter, he made an application to Sr. DCM/BKN on 12.10.1987 seeking permission to retain his quarter as his wife and mother were patients of Thyroid and they were under treatment of the Central Hospital, New Delhi. According to him, Sr. DCM/BKN assured him that he would grant permission for retention of his quarter but he was never asked him to vacate the premises. He has also not recovered any penal rent from his pay. Therefore, he retained the quarter on the above assurance. After four years, in June, 1991, he was transferred back to DEC and he joined duty there. He was again transferred from DEC to Sirsa in December 1996 and he resumed duty there. However, due to the sickness of his wife and his daughter, he submitted an application dated 15.12.1997 to DCM/BKN for retention of said quarter but he was not aware whether the permission was actually given or not. However, no penal rent was recovered from his salary. He has further stated that he was ordered to work as Reservation Clerk as DEC in 1998 by the then Sr. DCM/BKN and he worked there upto 04.05.2000. He was again transferred to GGN vide letter dated 28.04.2000 and he resumed duty there on 05.05.2000. He was again transferred from GGN to STPS, where he resumed duty on 01.12.2001. He worked there from 05.05.2000 to 30.11.2001 and he stayed in Delhi area for a period of one year and six months. Therefore, according to him, he was not under unauthorized occupation of the said quarter for that period. He has also denied the allegation of subletting the quarter and submitted that he never sublet the quarter to any shop keeper. He has stated that none of the PWs have accepted in their statement that the quarter was subletted.
8. After detailed analysis of the evidence came on record, the inquiry officer in his report held that the charge No.1 stood proved to the extent that the quarter T-48B was under unauthorized occupation from the date of starting of his penal rent till the inquiry date. As regards charge No.2 is concerned, he has stated that it was not proved. The relevant part of the report of the Enquiry Officer reads as under:-
6. Discussion on charges and Analysis of Statements There are two charges leveled against the CO as (i) he was transferred time to time during period 9/87 to 30.04.2001 on different stations, but he kept occupied Railway Quarter No.T-49(B) amended No.T-48/B DCM/Colony Delhi Sarai Rohilla unauthorisedly during this period despite of notice given to him to vacate the above quarter. To sustain this charge Sh. R.S. Gupta CM/RE PW-1 stated that he made report of penal rent in reference to DCM/BKNs letter No. Coml/Co/259/UA/T-49B/DEE/98 dated 11.1.2001 and also in reference to audit inspection para and calculated the penal rent treating his quarter unauthorized from Jan. 1987 (Exp. P-QA & QB). Sh. Karnail Singh did not ask about his unauthorisation of this quarter as a matter of record. Sh. Hari Shanker SS/RE accepted that Ex P-6 was written by him to SS/SSA to convey the amount of penal rent to be recovered from the salary of CO. Shri Mahesh Prakash, SS/SSA PW-5 stated that a letter Exp. 7 was written by him to recover the penal rent on the basis of letter of CNI/DEE dated DCN/BKN.
But the CO stated that his quarter was not under unauthorized occupation. He stated that he was transferred from DEC to BKN in 9/87 and he submitted an application to DCB/BKN for retention permission of the quarter No.T-48B. On 12.10.1987 (copy placed at S.No. 14 of proceedings) as his wife and mother were under treatment of Central Hospital. But office did neither intimated nor penal rent was recovered and he was much assured that retention permission had been granted him. After four years he was transferred from BNW to DEC (FCI siding) in Delhi Area, but he did not apply for regular station as there was no negative reply was received from office.
He again stated that he was transferred from DEO to SSA in Dec 1996 and he applied to DCS/BKN for quarter retention permission on 15.2.1997 (copy placed at S. No.15 of proceeding) on the ground of sickness of his wife and daughter. He stated that neither he was informed for retention permission, nor the recovery of penal rent was ordered. So he was again assured that retention permission had been granted.
He further stated that he was ordered to work at DEC in reservation office in year 1998 and he worked there upto 4.5.2000. Thereafter he was transferred to Gurgaon Station on 5.5.2000. But he was again transferred from GGN to STPS on 1.12.2001. He claimed that on the above grounds his quarter was not under unauthorized occupation till 30.11.2001.
It is correct that CO submitted application on 12.10.1987 and on 15.2.1997 for retention permission and he was not intimated by the officer whether retention permission was granted or not. He was neither asked by any authority to vacate his quarter before the letter (Ex P-9) issued from office vide No.Coml./CC-1/259/110/Dec/98 dated 27.4.2001, whereas the CO should have been issued letter of unauthorized occupation at his first Transfer from DEC to BNW in year 1987 and penal rent should be recovered if the retention permission was not granted. But the recovery of his panel rent was started in reference to SS/SSSA letter No.SS/SSA/Penal rent/RK/98 dated 20.4.98 (Ex P-T), and the same was intimated by SS/SSA to SS/GGN in LPC vide No.SS/SSA/TFR/5/2k dated 04.5.2k (Ex P-3B). So the CO was well aware about the recovery of penal rent and he did never raise objection for recovery of penal rent.
The CO has accepted that he could not vacate the said quarter till the date of enquiry i.e. 2.1.2001 due to sickness of his wife and daughter despite of notice given to CO by DCM/BKN (Ex. P-9).
By the above discussion and on the basis of RUDs, it is found that the CO has occupied the Rly. Quarter T-48B DCN Colony Delhi Sarai Rohilla unauthorisedly since the date his penal recovery was started i.e. April 1998. So charge of unauthorized occupation is proved that CO was under unauthorized occupation since April 1998 uptill the enquiry date i.e. 2.1.2004.
The second charge against CO that he was running a shop in the covered verandah of the quarter and about 40 loose tyres were found kept.
To sustain this charge no PW except Sh. Karnail Singh T.I./RE shown their relevancy with this charge. Only Sh. Karnail Singh T.I. RE PW-2 has accepted in the enquiry that he accompanied the committee nominated to check the subletting and he saw a small shop was running in the verandah of quarter No.T-48B DCN/Colony DEE and some tyres of vehicle were lying, which were belonging to shop keeper of Tyre Shop. But he accepted in enquiry that no customer was seen by him for purchasing and no statement of any customer was recorded. Shri Hari Shankar SS/DEE PW-3 was also present during the check conducted by committee, stated that he had associated the committee to check the quarter formally. He stated that he is not in position to explain the truth of charge as he had no concern at all.
As documentary evidence, there is a report (Ex P-1D), report of Asstt. Officer, in which the quarter of Co was under unauthorized occupation and also shown that CO was running a shop in covered verandah.
But the CO stated in his defence that he did never sublet his quarter to any shop keeper. During the inquiry proceeding CO presented two DWs named Sh. Surender Kumar and Sh. Ashish Malhotra. Both they stated in enquiry that they did not see any person to whom he subletted the quarter. Both they stated that CO is living in the quarter with his family. One of the DW Sh. Ashish Malhotra stated that he is doing a job on a private shop of tyre which is 100 meter away from the residence of CO.
During the enquiry, this fact has come to notice that the DCN/Colony (Rly) is adjacent to Tyre Market.
Keeping in view the above discussion and rules, it is established that PW-2 Sh. Karnail Singh T/DE and PW-3 Shri Hari Kishan SS/DEE both accompanied the committee of Asstt. Officer to which the quarter of CO was found subletted. But is was not enquired to whom the quarter was subletted and who was running a shop in verandah, who was sitting there. All these facts should be recorded on papers as evidence. The PW-2 Sh. Karnail Singh TI/DE has accepted inquiring that he did not see any customer there. The second thing, this fact is not clear. She is running a shop, whereas CO was working at GGN Station and it was not possible for CO to run a shop. So the second charge of subletting the quarter No.T-48B stand not proved.
7. Conclusion and finding
(i) Charge No.1 stands proceed upto the extent that his quarter T-48B is under unauthorized occupation from the date of starting of his penal rent till enquiry date.
(ii) Charge No.2 did stands proceed.
(HANS RAJ) EO CMI/SSA
9. The disciplinary authority considered the aforesaid inquiry report and vide its letter dated 20.06.2004 held that he agreed with the inquiry officer with regard to charge no. 1 which has been proved. As regards the charge No.2 is concerned, he stated that he did not agree with him. The said letter reads as under:-
NORTH WESTERN RAILWAY DRMS OFFICE BIKANER No.CA/Coml/Compt/2/2001 Dated 20.06.2004 Shri Raman Kapoor Through CMI/BKN Sub: Note of disagreement with findings of E.O. I have gone through the Findings of E.O. carefully and accept Findings as regards Charge No.(1) which is proved.
But Findings of E.O. as regards Charge No.(2) are not agreed with due to following reasons:-
(1) The report of committee, consisting of ADEN/Departmental Enquiry (MG), AME/DEE, ASC(RPF)/ BKN and APO/III/BKN No. APO III/293E/ Subletting Rly. Qrs. Dated 18.12.2000, which is produced as PUD in this case and marked as Ex. P-1/A to Ex P-1/D clearly indicates that a shop in covered Verandah of Rly. Qr. No. 148/B, DCM Colony/DEE, occupied by you was running there and about 40 tyres were also lying there. The committee is consisting of high and responsible Railway officers but Enquiry Officer did not rely upon this and much relied upon on the defence story.
(2) PW Sh. Karnail Singh the then 11/DEE, who had accompanied the above committee during checking of railway quarters as mentioned in above report has confimed the proceedings/contents of this report and he clearly told during his examination in DAR enquiry that a small shop was running in the Barandah of railway Qr. No. T-48/B DCM Colony, DEE and also lying number of loose tyres of vehicles which belongs to the shop-keeper of Tyre shop but E.O. has failed to give the weightage to the witness of this PW and much relied upon the witness of DWs who have given witness in your favour being your known and appeared in DAR enquiry from your side.
(3) The E.O. has failed to do the spot assessment of actual position of running a shop in railway quarter in question during the course of DAR enquiry proceedings, to bring the facts on record and totally remained depend on the story given by defence side.
In view of the facts findings as regards charge No.2 are not accepted. On the basis of reasons given as abovethe charge no. 2 i.e. running a shop in the covered Verandah of Railway Quarter No. T-48B, DCM Colony, DEE and keeping 40 loose tyres is established and thus use of railway quarter for the purpose of commercial use has been proved beyond doubt.
A copy of enquiry report of E.O. is sent herewith for submitting your defence within 15 days on the same as well as on this disagreement Note. After which decision will be taken on the basis of facts available on file.
10. Applicant submitted a representation dated 12.07.2004. According to him, the so-called check was conducted on 06.12.2000 and the letter informing him about the unauthorized occupation was issued to him only on 27.04.2001. Before 27.04.2001, no action was taken for declaring that quarter under unauthorized occupation. On the other hand, he was writing the administration regularly requesting them to grant him permission to retain the accommodation. If the administration did not agree to it, atleast they should have communicated him their refusal. He has also stated that Shri Karnail Singh PW 2, who accompanied the committee stated that a small shop was running in the Verandah of the Railway Quarter No. T-48B and number of lose tyres were lying there which belong to the shop keepers of the tyre shop. He has stated that the statement is not reliable. It is vague and uncertain. He has not stated the details of the material in the so called small shop. He has further stated that some tyres of the vehicles belonging to the shop keeper were lying there. In the cross examination also, he has stated that he has not seen any customer purchasing any such commodity from the shop. Further, he has stated that during the checking, no signature/statement of anyone residing in the quarter or in the neighbourhood was recorded. Further, he has stated that no one else other than Shri Karnail Singh signed any statement in support of the charge.
11. After considering the aforesaid report of the Inquiry Officer and the representation of the applicant on the disagreement note, the disciplinary authority vide its order dated 19.07.2004 imposed upon him the punishment of penalty of removal from service with immediate effect. According to the said order, the applicant not only occupied Quarter No.T-48B but continued to occupy the same till the inquiry and still he was occupying it. The administration written to him on 27.04.2001 to vacate the said quarter within fifteen days but he did not do so. He said in his defence that he had applied for regularization of the quarter during his transfer back to Delhi area in 1991 and 2000 but nothing was conveyed by the administration. According to the disciplinary authority, non acceptance of request cannot be taken as defence for his unauthorized occupation. Therefore, the applicant has defied the order of the administration to vacate the quarter. As far as the second charge is concerned, the disciplinary authority has stated that it was observed by the committee nominated for the checking that he was not only occupying the quarter unauthorizedly but also a shop was running in the covered Verandah of the quarter occupied by him. The disciplinary authority has also stated that the explanation given by the applicant was not acceptable.
12. The applicant on 09.08.2004 filed an appeal to ADRM/BKN against the aforesaid order of the disciplinary authority imposing. However, the Divisional Commissioner Manager BKN vide his letter dated 20.12.2004 rejected the appeal. While doing so, he has made following observations in his order:-
1. Sh. Raman Kapoor, Ex HGC/KNSR was issued major penalty charge sheet for unauthorized occupation of the quarter No.T-48/B during period 9/87 to 30.4.01 and misusing the same thus the employee violated railway service conduct rules 1966 para 3.1(iii).
2. Disciplinary authority after following proper procedure of D&AR 1968, has imposed penalty of removal from service. Sh. Raman Kapoor responsible for unauthorized occupation of quarter No.T-48/B. 3.1 Charged Official has appealed against the imposition of major penalty as per Railway Servants Discipline and Appeal Rules, 1963. After perusal of the appeal submitted by the Charged Office, it is found that Sh. Raman Kapoor was transferred during the period Sept. 87 to 30.04.2001 time to time on different stations but he kept occupied Railway quarter No.T-48/B, DCM Colony unauthorizedly during this period despite notice given to him to vacate the above quarter vide letter No.Coml/CC-1/259/U.A./DEC/98 Dt. 27.04.01 within 15 days.
3.2 During the check conducted on 6.12.2000 at DCM Colony/DEE to check the misuse and subletting of Rly. Quarters it was found that he was running a shop in covered verandah of said quarter and about 40 loose tyres were also found kept.
3.3 In the D&AR enquiry it has been proved beyond doubt that Rly. Qr. No.T-48/B was occupied unauthorisedly by him since 1987 to 2001 and till completion of enquiry i.e. 02.01.2004. Despite of notice set to him on 27.04.01, to vacate the said Railway quarter within 15 days but no action was taken by him. Hence, non-vacation of Rly. Quarter was considered as defying orders of Railway administration and rules and regulation prevalent.
3.4 Unauthorized occupation of quarter No.T-48/B is a serious offence, the Charged Official not only occupied quarter unauthorizedly but continued to occupy till end of enquiry and still occupying it which is more serious offence.
4. It is also observed that charged official has not only occupied above quarter unauthorisedly but also small shop was running in covered verandah of quarter occupied by him. Explanation given by the charged official in this regard are not acceptable. Above act clearly shows that charged official has not only defied legal orders of administration but also misued the facility given by Railway administration.
5. In view of the above, he is considered responsible for the guilt and there is no room left for consideration of the appeal and in turn giving relief as even as on date, he has not vacated the quarter and therefore the penalty awarded by the Disciplinary Authority is considered in order and does not call for any change.
13. Thereafter, the applicant filed a revision petition against the aforesaid order in February, 2005 but the Revisionary Authority vide its order dated 25.07.2006 rejected it holding that both the charges 1 and 2 stood roved against the applicant.
14. The applicant has challenged the aforesaid orders in this OA seeking the following reliefs:-
(i) Allow the instant O.A. and quash and set-aside the impugned orders of the Revisional Authority dated 25-7-2006, (Annex A-1), Order in appeal dated 20-12-2004(Annex A-2), order of the Disciplinary authority dated 19-7-2004 (annex A-3) whereby a punishment of removal from service has been imposed on the applicant; Note of dissent dtd. 20.6.04, and the report of the Enquiry Officer in so far it relates to the findings as regards Article of charge-I (Annex A-5); and
(ii) Set-aside the order of punishment of removal from service imposed on the applicant and confirmed on subsequent appeals filed as per the directions of the respondents by the impugned orders dated 19.7.04, 20.12.04 and 25.7.2006;
(ii) direct the respondents to reinstate the applicant in service with all consequential benefits including arrears of pay and allowances and other consequential benefits;
(v) Direct cost to be paid to the applicant and;
(vi) Pass such other and further orders as this Honble Tribunal may deem fit and proper.
15. According to him, the Respondents action treating him as an unauthorized occupant of the quarter allotted to him, that too, with retrospective effect i.e., w.e.f. 1987, is quite arbitrary. He has also stated that the allegation that he is running a shop in the house was totally baseless and it was based on a two line report which has never been corroborated by the authors of the report itself. Therefore, the Inquiry Officer has rightly held that the charge was not proved. He has also stated that from the disciplinary authoritys order it is clear that he was pre-determined and without considering his representation, he had already concluded that the charges have been proved against him. Further, he has submitted that the orders of the Disciplinary, Appellate as well as the Revisionary Authorities are non speaking and they did not deal with the contentions raised by him. Further, he has stated that they had produced the defence witnesses who testified before the IO that he and his family has been staying in the said quarter and no business whatsoever was being run in the premises. He has also stated that it was for the first time that the allotment was cancelled on 27.04.2001 and thereafter the charge sheet was issued to him on 08.06.2001. He has also submitted that he was arbitrarily imposed the penal rent w.e.f. 1987 and huge reduction has been made from his salary.
16. The respondents have filed their reply. They have stated that the orders of the disciplinary authority as well as the appellate authority are self explanatory and well reasoned. They have also stated that charge no. 2 was proved when an inspection was conducted by the committee of officers to check misuse or subletting of railway quarter and it was found that 40 tyres were lying in the covered Verandah of the Railway Quarter No. T-48B which cannot be denied. They have also stated that a note of disagreement was given to the applicant against the findings of the inquiry officer and it was only after considering his representation the disciplinary authority has imposed upon him the penalty. They have also submitted that the Disciplinary, Appellate and Revisionary authorities have considered his case in accordance with the rules and only thereafter, they have rejected his case with reasoned and speaking orders.
17. We have heard the learned counsel for the applicant, Shri Vaibhav Sharma and learned counsel for the respondents Shri R.L. Dhawan. It is seen that the applicant was allotted Railway quarter No.T-48/B, DCM Colony, Sarai Rohilla, Delhi, while he was posted as a RAGC in Lahori Goods Shed at Delhi under the Bikener Division of the Northern Railway. In 1987, on his promotion as Goods Clerk, he was posted at Bhivani Station under the same Bikaner Division. As Bhivani Station as only 80 kms away from Delhi, he requested the Respondents to allow him to retain the said accommodation vide his letter dated 12.10.1987. The Respondents neither allowed his request nor rejected it. Rather, they did not consider his representation. As a result, awaiting the decision from the Respondents, he retained the said quarter. Meanwhile, he got his transfer back to Delhi and the applicant continued to retain the said accommodation. He was again transferred to Sirsa in 1996 and he again reported the Respondents about it on 15.12.1997. He again requested them to retain the very same accommodation. Again, as usual the Respondents kept quite. Again, he was transferred to Delhi from the year 1998 and worked up to 04.05.2000. Therefore, he was transferred to Gurgaon Station on 05.05.2000 and then to STPS on 01.12.2001. Undisputedly, the Railway accommodation allotted to the Applicant is a public premises. According to Section 2(g) of The Public Premises (Eviction of Unauthorised Occupants) Act, 1971, unauthorized occupation, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. In the present case, it is not the case of the Respondents that he occupied Quarter No.T-48B, DCM Colony without their authority. It is also not the case of the Respondents that the authority given to the applicant had expired or they have determined it at any time. The Applicant was allotted the aforesaid accommodation while he was posted in Delhi under the Bikaner Division. He was transferred to Bikaner in September, 1987. The Enquiry Officer himself has admitted in his report that the Applicant had applied for retention of the accommodation in Delhi on 12.10.1987 and 15.02.1997. The Respondents neither accepted them nor rejected them. Applicant considered the silence of the Respondents as their consent.
18. As the respondents did not withdraw the authority of the Applicant to retain the said accommodation, they could not have held that he was in authorized occupation of the Railway quarter.
19. Further, even if an employee is in unauthorized occupation of a public premises, it cannot be termed as misconduct for which action under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 can be taken. The consequence, of the unauthorized occupation of public premises, if any, is action against the unauthorized occupant under Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and not under Railway Servant (Discipline & Appeal) Rules, 1968. The aforesaid section reads as under :-
7. Power to require payment of rent or damages in respect of public premises-
(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order.
(2) Where any person is, or has at any time been, in unauthorized occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order.
(2A) While making an order under sub-section (1) or sub-section (2), the estate officer may direct that the arrears of rent or, as the case may be, damages shall be payable together with simple interest at such rate as may be prescribed, not being a rate exceeding the current rate of interest within the meaning of the Interest Act, 1978).
(3) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice, why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate office. Hence, the first part of the Statement of Article of Charge against the Applicant that after he was transferred time to time during the period from 9/87 to 30.11.2001 to different stations but he kept occupied Railway quarter No. T-49 (B) amended No. (T-48) DCM Colony unauthorizedly during that period despite the notice given to him to vacate the said quarter does not constitute a misconduct. Therefore, the findings of the enquiry officer that the aforesaid part of the charge has been proved is irrelevant and immaterial.
20. However, the second part of the charge that the Applicant subletted the accommodation allotted to him is a misconduct. The provision regarding Subletting and Vacation of Government Accommodation has been incorporated in Central civil Services (Conduct) Rules, 1964 as Rule 15.A vide Government of India, Department of Personnel & Training notification No.11013/4/93-Estt.(A), dated 16.08.1996 published as GSR 367, in the Gazette of India, dated the 31.08.1996. The said Rule reads as under:-
(1) Save as otherwise provided in any other law for the time being in force, no Government servant shall sublet, lease or otherwise allow occupation by any other person of Government accommodation which has been allotted to him.
(2) A Government servant shall, after the cancellation of his allotment of Government accommodation vacate the same within the time-limit prescribed by the allotting authority. Similar provision has also been incorporated in Rule 15 A of the Railway Services (Conduct) Rules, 1966, which reads as under :-
15A. Sub-letting and vacation of Govt. accommodation:-
(i) Save as otherwise provided in any other law for the time being in force, no Railway servant shall sub-let, lease or otherwise allow occupation by any other person of Government accommodation which has been allotted to him.
(ii) A Railway servant shall, after the cancellation of his allotment of Government accommodation vacate the same within the time-limit prescribed by the allotting authority.
21. In this regard, Government of India, Department of Personnel has issued OM No.11012/2/97-Estt.(A), dated 31.12.1997 and it reads as under:-
Rule 15-A has been inserted under the Central Civil Services (Conduct) Rules, 1964 by the Notification dated August 16, 1996 as published in the Government Gazette dated August 31, 1996. The said rule is as under:-
*** It is thus obvious that a Government servant who sub-lets the Government accommodation or otherwise allows occupation by any other person of the said accommodation, that would per se amount to misconduct. Even otherwise, keeping in view the shortage of Government accommodation and thousands of Government employees on wait list for years together (even today, according to Mr. Harcharanjit Singh, the wait list in certain types of houses is 20 years), the sub-letting of the Government accommodation by the Government servant for pecuniary gain is a grave misconduct. It is, therefore, obligatory for the disciplinary authority of the department concerned to initiate disciplinary proceedings against concerned Government servant under Rule 14 of the CCS (CCA) Rules, 1965. As soon as the allotment is cancelled by the Directorate of Estate on the ground of sub-letting, the disciplinary authority of the Department concern shall initiate disciplinary proceedings against the Government servant concerned. The findings of the Directorate of Estates regarding sub-letting shall be binding on the disciplinary authority for the purpose of initiating the disciplinary proceedings. Once the disciplinary proceedings are initiated, the procedure laid down under the CCS (CCA) Rules shall take its own course. Since the disciplinary proceedings in such cases would be initiated on a charge of grave misconduct, the competent authority may consider placing the delinquent Government servant under suspension.
2. All Ministries/Departments/Offices etc. are requested to bring the above ruling of the Supreme Court to the notice of all concerned under their control and to ensure that disciplinary proceedings are initiated against the Government servants in whose cases subletting of allotted Government residential accommodation has been established by the Directorate of Estates. It may be ensured that charge sheets are issued immediately in cases where persons are likely to retire shortly or those cases which are likely to become time-barred by virtue of the misconduct being more than four years old. The Respondent-Railway has also issued instruction in this regard vide No.E(D&A)98 GS-I-I dated 19.06.1998 and reads as under :-
Sub-letting of Government accommodation by Railway Employees-departmental action against.
Rule 15A of the Railway Services (Conduct) Rules, 1966 provides that save as otherwise provided in any other law for the time being in force, no railway servant shall sub-let, lease or otherwise allow occupation by any other person of Government accommodation which has been allotted to him.
2. It has been decided that as soon as the charge of sub-letting is established by the pool holder, the allotment of quarter will be cancelled and the disciplinary authority shall initiate disciplinary proceedings against the railway servant concerned. In such cases, the Competent Authority suspension also. It may also please be ensured that chargesheets are issued immediately in cases where employees are likely to retire shortly or where they have already retired, since such cases are likely to become time barred for initiation of disciplinary proceedings by virtue of the misconduct being more than four years old.
22. From the aforesaid instructions issued by the DOP&T and the Railways, it is seen that the disciplinary proceedings on account of subletting can be initiated only after the allotment is cancelled after the allegation of subletting has been proved. Before such subletting is confirmed, the allottee of the government accommodation is required to be given an opportunity to rebut the allegation against him. In other words, an authority competent to cancel the allotment on the ground of subletting shall first of all cancel the accommodation in the name of the allottee after following a procedure in consonance with the principle of natural justice. It is only after the allotment is cancelled on account of proved subletting, the Disciplinary Authority can initiate any enquiry proceedings. An enquiry by an official or committee of officials held behind the back of the allottee cannot be a ground for coming to the conclusion that the accommodation has been subletted. Before any such finding, the allottee should be put to notice and his representation should be considered. That is why the enquiry officer in the present case held that the said part of the article of charge has not been proved. But the Disciplinary Authority in his disagreement note has categorically held that the chare No.2 i.e. running of a shop in the covered Varandah of railway quarter No.T-48/B DCM Colony, DEE and keeping 40 loose tyres is established and thus use of railway quarter for the purpose of commercial use is proved beyond doubt. The aforesaid assertion of the Disciplinary Authority is against the provisions contained in Rule 10(2)(a) of the Railway Servants (Discipline & Appeal) Rules, 1968 which reads as under:-
(2) The disciplinary authority:-
(a) shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority, its findings on further examination of witnesses, if any, held under sub-rule(1) (a) together with its own tentative reasons for disagreement, if any, with findings of the inquiring authority on any article of charge to the Railway Servant, who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Railway Servant
23. It is also well settled principle that the Disciplinary Authority cannot come to any arbitrary conclusion against the Inquiry Officers report, according to which the charge has not been proved. The Apex Court in the case of Punjab National Bank Vs. Kunj Behari Misra (1998) 7 SCC 84, wherein it has been held as under:-
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer.
24. Same was reiterated in Yoginath D. Begde vs. State of Maharashtra (1999) 7 SCC 739. The relevant part of the said judgment is as under:-
29.But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with.
25. Further, the Bombay High Court in the case of Shumsunder Yashwant More v. State of Maharashtra decided on 13.07.2010 held that the order of punishment passed by the disciplinary authority without considering the reply given by the petitioner cannot be sustained. The relevant part of the said judgment reads as under:-
8. At this stage, a reference is required to be made to the ruling of the Apex Court in the case of Punjab National Bank and Ors. V/s. Kunj Behari Misra, (1998) 7 SCC 84. In the said case, the Supreme Court found that the disciplinary authority differed from the findings of the inquiry officer, which report was in favour of the chargesheeted employee. It is found that in such cases, the disciplinary authority is required to give opportunity to the concerned delinquent. The Supreme Court in Para No. 18 of its judgment, held as under : -
"18. Under Regulation 6, the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impost the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar case.
9. Considering the aforesaid aspect, the impugned orders are not sustainable and are required to be set aside. In the normal circumstances, we would have remanded the matter back to the disciplinary authority for passing fresh orders. However, it is pointed out that the petitioner has already attained the age of superannuation on 30-04-1997 i.e. two days after passing of the impugned order. It would now not be just and proper to remand the matter back to the disciplinary authority, as the petitioner already stands retired since more than 13 years. It is required to be borne in mind that the inquiry was initiated against the petitioner in the year 1989 and it was continued for more than 8 years while the petitioner was in service. In our view, it would not be just and proper to remand the matter back to the disciplinary authority and to start the proceedings from the stage from which it is found to be vitiated. The impugned orders of disciplinary authority as well as subsequent orders passed by the 1st and 2nd appellate authority, are accordingly set aside. Rule is made absolute in the aforesaid terms. Whatever benefits the petitioner is entitled to by virtue of this order, the same may be released to him within a period of twelve weeks from today.
26. The Punjab and Haryana High Court vide its judgment dated 03.07.2003 in the matter of M.S. Chauhan Vs. State Bank of India 2003 4 SCT 577, has also held as under:-
If the punishing authority is differing with the findings of Inquiry Officer, who has exonerated the delinquent on all or a few charges and the punishing authority proposes to punish the delinquent on those charges, it is obligatory upon the punishing authority to issue a show cause notice to him giving reasons of his disagreement and proposed action and afford him an adequate opportunity in his defence.
27. Again, the Apex Court in the case of Lav. Nigam vs. Chairman and Managing Director, I.T.I. and Ors.( 2006 SCC (L&S) 835), held as under:-
If a Disciplinary Authority differs with the findings of inquiry officer, he is bound to give a notice setting-out of his conclusion to the appellant. It is only after hearing the appellant, the Disciplinary Authority will arrive at a finding of guilt. If punishment is proposed another notice relating to, it is to be issued.
28. Learned Counsel for the applicant has relied upon the judgment of the Uttraanchal High Court in the case of Jupli Devi Bachan Singh Negi and Ors. vs. District Judge, Uttranchal and Anr. wherein it has been held as under:-
Disciplinary authority while disagreeing with the findings of Inquiry Officer, framed final opinion prior to giving notice to the delinquent for hearing instead of framing tentative opinion violation of principles of natural justice Impugned order set-aside.
29. He further relied upon the judgment of the Allahabad Bench of this Tribunal in the case of Man Singh Vs. Union of India and Ors. (206-Swamys CL Digest, 1997/1) decided on 13.09.1996. The relevant part of the said judgment reads as under:-
It would be clear that while the disciplinary authority has prefaced his order by a short discertation on the quality of proof required in a disciplinary proceeding, he has hardly given any reason as to how he considered the charges against the applicant as proved while the Inquiry Officer did not find so in the absence of any documentary evidence.
30. However, in the present case it is seen that the Disciplinary Authority straight away came to the conclusion that the use of Railway quarter for the purpose of commercial use has been proved beyond doubt. The Disciplinary Authority has also held that the Enquiry Officer has failed to consider the spot assessment of actual position of running a shop in railway quarter in question. Such a procedure is not prescribed in the inquiry under the Railway Servants (Discipline & Appeal) Rules, 1968. The Disciplinary Authority as well as Revisionary Authority has also upheld the order of the Disciplinary Authority without proper application of mind.
31. In the above facts and circumstances of the case, we allow this OA and quash and set aside the Enquiry officers report dated nil particularly to the extent that the first part of the Article of Charge was proved. We also quash and set aside the disagreement note of the Disciplinary Authority dated 20.06.2004, the subsequent order of the Disciplinary Authority imposing the penalty upon the Applicant dated 19.07.2004 and the Appellate, Review Authorities orders dated 20.12.2004 and 25.07.2006 respectively. Normally we should have remitted the case to the Disciplinary Authority to issue a tentative disagreement note and reconsider its decision after considering the representation of the Applicant. However, considering the fact that the findings of the enquiry into the allegation of subletting of the railway quarter against the Applicant which was the basis for initiating disciplinary proceedings itself is unsustainable and the Applicant is out of service for the last nearly 10 years, we are not inclined to remit the case for any fresh adjudication. We, therefore, direct the Respondents to reinstate the applicant forthwith but in any case, within one month from the date of receipt of a copy of this order, with all consequential benefits except full back wages. However, considering the particular facts and circumstances of the case, the Applicant shall be given 50% of the back wages from the date of his compulsory retirement from service w.e.f. 19.07.2004 till one month from the date of receipt of a copy of this order or the date till he is reinstated in service, whichever is earlier. The Respondents shall also pass appropriate orders complying with the aforesaid directions within the aforesaid period of one month. The Applicant is also at liberty to make suitable representation to the respondents for re-determining the license fee/damage rent for the Railway Quarter No. T-48B, DCM Railway Colony, Delhi-110006 allotted to him while he was in service.
32. Though in our considered view, this is a case in which the respondents deserves to be imposed with exemplary cost, we desist from doing so in view of the aforesaid direction to pay 50% of back wages to the Applicant.
( Shekhar Agarwal ) ( G. George Paracken )
Member (A) Member (J)
/vb/