Central Administrative Tribunal - Hyderabad
G Chitti Babu vs M/O Railways on 10 January, 2019
oN Ne IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH | HYDERABAD ©.A/20/00379/2013° Date of order: 10.04.2019 Between: G CHITTI BABU, S/o Nagaiah, Aged about 58 years, Occupation: Technician-Hi, O/o The Coaching Depot Officer, South Central Railway, Vijayawada Divn., Vijayawada, Applicant AND 1. Union of India represented by The General Manager, South Central Railway, Rail Nilayam, Secunderabad, 2. The Senior Deputy General Manager, South Central Railway, Rail Nilayam, Secunderabad, 3. The Senior Divisional Mechanical Engineer, South Central Railway, Vijayawada Divn., Vijayawada, Krishna District, AP, 4. The Senior Divisional Personne! Officer, South Central Railway, Vijayawada Divn., Vijayawada, Krishna District, AP, 5. The Coaching Depot Officer, South Central Raliway, Vijayawada Divn., Vijayawada, Krishna District, AP, Respondents Counsel for the applicant : Mr. KRKV PRASAD Counsel forthe respondenis - Mr. S M PATNAIK, SC for Railways CORAM: THE HON'BLE MR. JUSTICE R KANTHA RAO MEMBER (J) THE HON'BLE MR. BY SUDHAKAR, MEMBER (A) QRAL ORDER
(PER HON'BLE MR. JUSTICE R KANTHA RAO, MEMBER (J) Heard Mr. KRKV Prasad, learned counsel appearing for the applicant and Mr. 5 M Patnaik, learned standing Counsel far the respondents.
2. The applicant, while working as Technician-lll in the office of the Senior Section Engineer (Coaching) in Vijayawada Division of South Central Railway, was allotted with a residential quarter of Railways. Earlier, the said quarter was allotted to one Mr. K.Rajendra Prasad, Senior Section Engineer (CRW), Subsequent to the transfer of Mr. Rajendra Prasad, it was alleged against the applicant that he sublet the quarter to Mr. Rajendra Prasad and was collecting rent from him. Whereas, it is the contention of the applicant that some of the belongings of Mr. Rajendra Prasad were in the quarter, but he did not sublet the quarter to Mr. Rajendra Prasad and that he himself was staying in the said quarter, However, a vigilance check was exercised and the vigilance inspector submitted the report stating that the applicant sublet the quarter to Mr. Rajendra Prasad, SSE after his transfer. The Statement of the applicant was also recorded by the vigilance official which is in English. The statement however shows that the contents were read over and explained to the applicant before abtaining his signature. ft is the contention on behalf of the _ applicant that the applicant studied only 5° class and he does not know the contents of the st8t8ient. The statement, however, indicates that the applicant sublet the quarter and that he was collecting an amount of Rs.2700/- per month from Mr. Rajendra Prasad towards rent. Basing on the vigilance report, a charge memo was issued to the applicant on 02.04.2012 on the very same allegation that he sublet the residential quarter to Mr. Rajendra Prasad and was collecting the rent. The applicant, en receiving the charge memo, requested for supply of certain documents including the statement allegedly made by him before the Vigiance officer. According to the applicant, the said documents were not supplied. He, however, formally denied the charge and insisted for supply of documents. The Disciplinary Authority, after serving the charge memo, straightaway imposed the penalty of withholding two sets of privilege passes and two sets of PTOs due to him for the year 2012. Through separate proceedings, it was ordered to recover the damage rent of Rs.3,11,733/- and some part of the damage rent was also recovered when the applicant was in service. The applicant earlier filed OA No.504/2012 challenging the action of the respondents. The Tribunal disposed of the OA directing the applicant to exhaust the remedy of statutory appeal and if the appeal petition being decided against him, he can approach this Tribunal by filing fresh OA. The appellate authority while disposing of the appeal, modified the penalty order to that of withholding two sets of privilege passes only, through order dated 13.62.2013.
Hence the applicant filed the present OA.
3, The learned counsel appearing for the respondents submits that the recovery of damage rent is not part of the penalty and it was sought to be recovered by separate proceedings. Since the applicant sublet the residential quarter, he is duty bound to pay the damage rent.
4. The sole question ae consideration in the present OA is, whether in the facts and circumstances of the instant case, the respondents/railways are justified in imposing the penalty and affecting the recovery without conducting any inquiry. In this context, it would be relevant to refer to Rule Li of Railway Servants (Discipline and Appeal} Rules 1968. According to this rule, before proposing to take any action against a Railway Servant in respect of imputation of misconduct or misbehavior, an employee shall be given reasonable opportunity of making such a representation as he may wish to make against the proposal. On receipt of such representation, the disciplinary authority may record his findings on each imputations of misconduct or misbehavior or decide to hold an oral inquiry as provided in Rule Ti(4}(b}/11(2) of the rules. -- Sub-rule (1b) Jays down that oral inquiry is optional and such an inquiry is to be held in the manner laid down in sub-rules (6) to (25) of Rule 9, Therefore, Rule 11 deals with the procedure for imposing minor penalties, Having regard to the circumstances of the case, the Disciplinary Authority wants to dispense with the inquiry, he can dispense with. However, in each and every case, disciplinary authority cannot dispense with the inquiry without assigning sufficient reasans. In the instant case, it is submitted by the learned standing counsel for the respondents that since the applicant himself voluntarily gave statement before the vigilance officials that he sublet the residential quarter, the Disciplinary Authority rightly dispensed with the inquiry. On the other hand, it is the contention of the learned counsel appearing for the applicant that after the charge memo was served on the applicant, he sought for certain documents which were not supplied and thereby the respondents have deprived him of his right to submit his version regarding the was charge memo. The fact, however, remains that the applicant aught to have made the statement before the vigilance officials. Admittedly, he studied upto 5th class and the statement is in English. The applicant sought for all the documents which are cited in the charge memo. But they were not supplied to him.
5. This Tribunal, in OA 1466/2001 expressed the opinion on identical fact that some sort of proof to prove the misconduct of subletting is necessary before imposing any penalty on the charged employee. This Tribunal relied on the judgment In Bhupender Singh Vs. Union of india and others, (1993) 23 ATC 113, wherein it was held as follows:
"Conclusion of subletting can be arrived at on the preponderance of probabilities but the evidence must be adequate. It must be established that the allottee was residing at a place other than the accommodation allotted to him ~ Statements of the neighbotiring allottees also considered relevant. One time casual enquiry cannot render the other pieces of evidence irrelevant. The respondents should have enquired from the occupants of the neighbouring quarters about the true state of affairs before issuing the impugned orders. One clinching evidence in this case would have been to ascertain where the applicant had been staying during the period when the enquiry was made. the respondents could have established that the applicant was Staying not in the said quarters but somewhere alse, that would have been a circumstance warranting the conclusion that the applicant might have sublet the premises."
6. The learned counsel appearing for the applicant also relied on the judgment of the Hon'ble High Court of Judicature, Andhra Pradesh at Hyderabad, in W.P.No. 8952/2005, wherein the Division Bench of the Hon'ble High Court held as follows.
s"report of the vigilance authorities, which forms the basis of the order impugned was never supplied to the petitioner, is not in dispute. In the absence of supplying of such a document, which forms the very basis of the impugned proceedings, we are of the opinion that there was a clear violation of the principles of natural justice. We do not wish to express any opinion regarding the stand of the petitioner taken before the Tribunal that the statement said to have been made by the petitioner before the vigilance authorities was obtained under duress."
7, Turning to the facts of the present case, except the statement of the applicant which was allegedly recorded by the vigilance officials, there is no material te show that the applicant sublet the residential quarters. It is on the basis of the very statement the Disciplinary Authority arrived at the conclusion that the applicant sublet the residential quarters, The person to wham the quarter was sublet was not examined. Neighbours were also not examined. Though a minor penalty can be imposed without conducting inquiry, when a huge amount is sought to be recovered from the charged employee, there must be some sort of inquiry basing on which the facts are required to be proved. in the instant case, neither a disciplinary inquiry nor a fact finding inquiry was conducted by the Disciplinary Authority before imposing the penalty. In our considered opinion, huge amount of Rs.3,11,733/- shall not be recovered from the applicant without there being proof, even of the standard of preponderance of probability. in the instant case, we are of the view that the charge leveled against the applicant is not proved, even at the standard of preponderance of probability. Therefore, the impugned penalty order passed by the Disciplinary Authority, which was modified by the Appellate Authority, is required to be set aside.
7, Consequently, we set aside, {i} the penalty order of the Disciplinary Authority No. Che/23/DAR/Canf/2012/01 dated 02.04.2012 withholding two sets of privilege passes and two sets of PTOs due to the applicant for the year 2012;
(i) the order of the Appellate Authority No.B/P.483/li/Mech. Bills dated 13.02.2013 reducing the penalty to that of withholding of two sets of privilege passes only; and {iii} the order No. 8/P.483/Il/Mech.Bils/439 dated 05.04.2012 for recovery of damaged rent of Rs.3,11,733/-.
8, The respondents are directed to refund the amount, if any, recovered from the applicant within a period of eight weeks from the date of receipt of this order.
9. Consequently, the OA is allowed. There shall be no order as to costs.