Central Administrative Tribunal - Kolkata
Mukul Mukherjee vs S E Railway on 14 March, 2019
' /
• 1 O.A. 350.00173.2014
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
No. O.A. 350/00173/2014 Date of order; IH ' 0 ^
?
Present Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
Mukul Mukherjee,
Son of Late P.C. Mukherjee,
Aged about 61 years,
By Occupation : Removed from Railway Service,
Residing at: Ghospara, Village : Sankrail,
Jala No. I, P.O. Chaturbhuj Kathi,
House No. 81 , P.S. Sankrail, 1
District: HoWrah-7'11 313.
. ... Applicant
%
VE RS U S r-- - >
1. Union oflndia,
Through the General .Manager,
;Sbuth Eastern. Railway,;
TIAr-Garden Reach Rbad, 7:^ .• r
Calcutta-700 043/ t
2. The^Divisional Railway Manager,
KharagpurDivision,
South Eastern Railway,
Kharagpur,
District: Purba Medinipur,
Pin : 721 301.
.3. The Sr. Divisional Signal & Telecommunication Engineer
(Sr. DSTE/Co-ordination),.KharagpurDivision,
South Eastern Railway,
Kharagpur,
District: Purba Medinipur,
Pin : 721 301.
4. The Divisional Signal & Telecommunication Engineer
(DSTE), Kharagpur Division,
South Eastern Railway,
Kharagpur,
District - Purba Medinipur - 721 301.
5. The Assistant Divisional Signal and
Telecommunication Engineer (ADSTE),
Kharagpur Division,
/
2 O.A. 350.0017B.2014
Kharagpur, ' '
South Eastern Railway,
District - Purba Medinipur - 721 301.
6. The Sr. Section Engineer/Telecommunication (SSE/Tele)
Kharagpur Division,
South Eastern Railway,
Kharagpur,
Being the Enquiry Officer,
District: Purba Medinipur,
Pin : 721 301,
7. The Additional Divisional Railway Manager,
Kharagpur Division,
South Eastern Railway,"
Kharagpur,
District: Purba Medinipur,
Pin-721 301.f
'V
8. The^r; Divisional Pinane'e Manager.
Kharagpur Division,
South Eastern Railway,,
Kharagpur,
DrstfictTPurbarMedinipuf,. :' i :
!■
■PiR-721
9. TheRinanciai'Advisor &:Chief Accounts Officer, (FA&CAO)
South. Eastern Railway,
11 A, Garden Reach Road,.
■ Calcutta - 700 043. .v
i.
i
... Respondents ./
For the Applicant Mr. S.K. Dutta, Counsel.
/ Mr. B.'Chatterjeei-Counsel,
For the Respondents Mr. B.L. Gangopadhyay, Counsel
ORDER
Per Dr. Nandita Chatteriee. Administrative Member:
The applicant has approached the Tribunal in second stage litigation in a sequel to earlier O.A. No. 859 of 2012 seeking the following relief:-
"A) Do issue mandate upon the respondents, their men and agents and each of them to forthwith rescind, recall and/or withdraw:-
■i) Purported charge memorandum dt. 21.4.2006 being Annexure A-1 hereto and not to give any effect to the same;
tax 3 i O.A. 350.00173.2014 /r r
ii) Purported Enquiry Report dt. 2.3.2012 being Annexure A-3 hereto and not to give any effect to the same;
w- iii) Purported major Penalty dated 20.4.2012 being Annexure 'A-5' hereto passed by the Disciplinary authority and not to give any effect to the same;
iv) Purported order of the Appellate Authority dated 26,12.2012 being Annexure A-
19 hereto and not to give any effect to the same;
V) Purported order of the Revising Authority dated 12.8.2013 being Annexure A-21 hereto and not to give any effect to the same;
B) Do issue mandate upon the respondents, their men and agents and each of them to forthwith certify and transmit all the papers and documents in connection with the instant lis before this Learned Tribunal for kind perusal and on such kind perusal do conscionable justice to the applicant;
C) Do issue mandate upon the respondents, their men and agents and each of them to forthwith reinstate the applicant in his past service on notional basis since the applicant attained his age of superannuation in February, 2013 and/or on the applicant be declared reinstated in his service w.e.f. 20.4.2012 and to pay all the due salary, increments, bonus, leave salary and all other admissible ancillary benefits with 18% interest on the total sum thereon;
D) Grant cost of. this proceeding imfavour of the applicant;^
"a*.' <
E)' Pass, such other or further order or orders, mandate or mandates, direction or
directions.as may appear tprbe fit and proper." '•
2. Heard both Ld. Counsel, examined pleadings and.documents on record.
jV i.
3. Thejapplicant's.^subrriissiohs, rasrarticulatedlhrough his Ld.-Courisel, is
-----........
that, while working as TCM/Gr...U,.'the ;applicant-waSrCbargesheeted for alleged ;• t/;
unauthorized absence, for the period 10:10.2004 to 3.4.2006. The applicant denied -the: charges categorically. Thereafter,one Mono] Mohan: Ghosal, *' *• ' - /r SSE/Tele/Panskura was appointed as an enquirydfficerbut the said enquiry was ultimately finalized .by'one,-Shri C.R. Patra, SSE/Tele/TR/KGP, exparte. Upon receipt of the enquiry-officer's report dated 2.3.2012, the disciplinary authority, "" /' y:
j *. 4 *, vide his orders dated. 20.4.2012, imposed the-punisKmenkof removal of service which was upheld by the appellate authority videiiis order ctaied 26.12.2012 and the applicant, having preferred a Revisional,.Petition, the Revisional Authority disposed of the said petition on 12.8.2013, whereby the punishment of "removal from service without any compassionate allowance" was modified to "removal from service with 2/3rd pension and gratuity."
The primary grounds on which the application has been challenged are as follows:-
(i) The'enquiry was not conducted by the duly appointed Enquiry Officer and as such whether the enquiry and its outcome are legal.
>1
-\ 4 O.A, 350.00173.2014 •V f
(ii) The entire disciplinary proceeding and its outcome are time barred.
(iii) The punishment order dated 20.4.2012 is a cryptic one and without discussing any pros and cons reaehad finding.
(iv) Both the Enquiry authority and the Disciplinary authority acted in total contravention of the natural justice and procedural law.
4. On the contrary, the respondents have argued as follows:-
That, the applicant was appointed in S.E. Railway as a Casual Telecom Fitter in Gr. 'C' category in 1980 and thereafter, appointed as Ty. TM Gr III on / 1.4.1984 in Waltair Division.'.The applicant was-transferred to KGP Division on his own request in October, 1984. to GRC in December.r 1985i and, thereafter •K. was temporaril^pfomoted asTCMGr. ll^atGRC on3.8.1996. •L. % •i 'i. i:
^ ,'r * ! r ' v ' The applicant, havjrig%een on unauthorized^absence from'ip.10v2004 to : v--
i ;• 3.4.2006, was issued :with a-major. pehalty:xhafgeshept by DSTE/East/KGP i V: " . • ■*'■■■%:■ \ dated 21.472006. The--.applicant oistibmifted .his--defence representation on 19.6,.2006 denying the^chOrges.- An ihpdiryidffrcer^was nominated ancf, -althdugh i . ■] ' \ ■ " 1 v . i ! *"" •»:
■ , ' 1 . '■ '-.j' ' . i1 eight: different dates were fixed for holding'.the7enquiry, the applicant did not attend the enquiry excepting on two dates. Finally, the inquiry officer had to take r;
an exparte decision,and submitted the enquiry report fioiding tfte-applicaht guilty N/ v** }■ / ■■ of the charges leyeledr^againsThim. The applicanUCO subqiltfedmis final defence representation-and the disciplinary authority, upon considering the entire matter;
passed ah order on ^OT.^OI^for 'removal from,service with immediate effect'.
The applicant preferred an appeal before the. appellate authority i.e. Sr. DSTE (Co-Ord.), S.E. Railway, Kharagpur, and also moved the Tribunal in O.A. No. 859 of 2012, which was disposed of by directing respondent No. 3, the appellate authority, to pass an appropriate order and to dispose of his appeal within a period of three'months from the date of communication of the order. The appellate authority disposed of the appeal upholding the punishment of 'removal ; 1 ■ -
from service' through a reasoned order. Thereafter, the. applicant preferred a revision petition to ADRM, S.E. Railway, KGP and the Revisioning Authority, on ?
f 5 O.A. 350.00173.2014 humanitarian grounds, considered the revision petition and passed an order of '2/3rd of pensionary benefits and gratuity w.e.f. 24.4.2012'. The respondents have contended that the instant O.A. deserves to be dismissed with eosts.
5. The main point of determination herein is whether natural justice and procedural justice were violated in imposing the penalty on the applicant.
6. At the outset, we refer to the inquiry report dated 2.3.2012, which is reproduced as below:-
SOUTH EASTERN RAILWAY 4 • No. ST/DA/MM/TCM-ll/114 * .^ f I-"1' ^ Dt:-2.3.2012 D&A Enquiry reports .in/cormeciion with major 'penalti/ iChafqe memorandum (SF-5) No. ST/DA/MM/TCM-ll/.im 21T4.2006 issued to Sri Mukul Mutikefieg'XCM ll/PZK.
V gV?:" '°'\
1. _ ________
Brief history:-^ Sri MukuI,.MuKHfe'rj^STGM'rll/DZK while he^was functioning as TCM- ll/GRC Suiting the period^Mf&fiWoo^to sVff'SObBsis^alleged to'have committed an act of misconduct absenting^rbm^. his^dut'y' from Td.'IO^OOA to 3.4.2006^;as ^per Muster Roli/Attendance Sheet,Which i^in contraVentionjio Railv^yiService Conduct.Rule^ 1966.
2. Charoe^and. Imputatibni-^That thevsaiB Sri Mukui^Mukhefjee, TCM-ll/fiZK (.while he was
- functiohing as TCM;ir/GRC clbnngrthe peribd^o.m^lO.lMOO^to 3.4.2006?^allegeb to have committed an actfof misconduct by |aBseriting^himse[f unaulhorisedly frorfp'fiis duty from lb?-1i0.2004 to 3^t2t)067T.-He fid rnbtrloftalmeny^nor.permissio'n /leave frbm^the competent ^auth'ority. He hbs: not repo/led .'himseif'.f6r,;ihis?'futy nor even submitted .any acceptable • ^documents in si]iRp6rt^his'suchnh'abjlity^durin;gWe?saidrab§en|;peri6d. % r .L^ Thus, byrthe ab^xItg^SSfenj^ukylrMlJkherjee, TCfol-ll/DZK faileTto maintained absolute integriS^erotlon to*dnut0anli^eGt^ih^a^manr^T;^wtiich is unbecoming of^ Rly.
; g^vant contravenihg ^liiir^iainj^ffoy^anvicejSnduct Rules, TOfe revering himself liable for^dlsbipiinary'" action v beiri'g tbkeniagains^hfm in terms oHRIy. SeWant's fDisfciplinary&AppetlBule^; 19^asameriaed%orTi1irnejSfi'me. | 1: 3.LEro!ceedina of the Case7# On' being fap^inte'd, as^lnquiry Officer by "'the^Disdiplinary Authority (DSTE/East/kG^) fVide ifiis order4|No.%T/D'A?474 dt. 3.8.2007 the undersigned
- asked the CO*vid§*letter^d:r, :3T)DA/I^MrreM-:lS3,3';37l39r4lT50rto attend enquiryfrvith his i defence cpuncilEpnfZe.f^.O?, 1.ii(^i'66^;6i^'Z08^f4.0^Bdf?hfes CO did not^ttend the enquiry end in tWoeases-among the above he attendld^tRe dffice^ut'r^fused to answer any \questio'n int^onnecflbn with the enquiry. The caseVffile .containing^ 52 Ipages return to Sr. DSTE/I^GP's^gffice videos office letter No. E/CNL/D^5'3/01^t.\l^i008. Again the case file^ was resubmitted to the^undersigned vide Jetter No. ST/DA/42/*dated^11.2.2010 and accbrdingiysthe enquiry_-date were,ifixedron"Z:Cl0, 19.5i10 vide letter No. ,ST/DA/MM/TCM- 11/11/64, 66 respectivelyTbilit'.the;,party, did not attendTtheenquiry and the case file return back on Z.S.To.to Sr.TJSTE/KGP. 'Again the case fileTesu^mitted toifhe undersigned on 18.2.12 by the Disciplinary Authority (DSTE/South/KGP) and accordingly the^enquiry date fixed on 29.2.12, but the^arty fails^tO-.attend the enquiry_due-;fb'unauthprised absent from 6.2.12, till
4. Assessment:- Though1 tfie^Charge Memorandum (SP-S^nd^the series of enquiry letter send to the CO, the party did not tunfup in'rthe'"'ehq{3ify? So the enquiry in connection with the DA case could not be concluded.
5. Conclusion:- After considering all the records available it is ascertained that Sri Mukul Mukherjee/TCM-ll/DZK failed to maintain absolute integrity, devotion to duty and acted in a manner which is unbecoming of a Rly. Servant contravening rule 3.1 (i), (iij & (iii) of Railway Service Conduct Rules, 1366. Therefore, the charges of long unauthorized absence from duty from 10.10.2004 to 3.4.2006 brought against Sri Mukul MukherjeerTCM-ll/DZK are proved to be correct beyond doubt.
Sd/-
(C.R. Patra) SSE/Tele/TR/KGP & Inquiry Officer"
6 O.A. 350.00173.2014
y i
Upon examination of the said enquiry report, the following transpires:-
(a)That, the charge memorandum had been issued to the applicant on 21.4.2006 on two articles ef ©Rat-ga, tRei-aay th» aopiioant liable for disciplinary action in terms of Railway Servants (Discipline & Appeal) Rules, 1968.
(b)That, the Inquiry Officer had directed the CO to attend enquiries along with his defence Counsel on 26.12.07, 1.2.08, 20.2.08, 27.2.08 and 5.4.08 respectively. The CO attended only on two occasions and refused to answer any questions. Enquiry,dates were again fixed on 7.4.10 and.19.5:10 and also on 29.2.2012. The'-CO didvnot attend the t enquiry on; the remaining dates;
J- : ;
(c) The^enquiry officer assessed that, despite the fact- .thaT charge /v- ' 'i-
meiTiorandurn..and'rseries,bf. .ehqufiy notice's were sent to the CO, the ?v CO did not attend4he enquiry and hence the^enquiry in connection with r,.
the DA case pould not be.conducted -!• ' >
(d) The Enquiry Cfficer thereafter concluded that Ihe CO failed to maintain absolute integrity, devotion' to duty'and"acted in a manner unbecoming • .xr , .5' of a Railway Servant, contravening Rule.;3."l J(i), (ii) & (iii) of-Railway : / ServicV Conduct Rules, 1966; and_.Jhat the:;„charges against the '• .-r ' ' • applicant/CO were proved.to be correctbeyond dodbt.
Ld. Counsel for the applicant, during,..ora) hearing, referred to the procedure to be held for conducting an exparte iriquiry under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968. Following is extracted therefrom:-
Ex parte Inquiry What is an ex parte inquiry - An ex parte inquiry means an inquiry held in absence of the delinquent official or his defence helper. It is held under Rule 9(23) of DAR which says that "If a Railway sen/ant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear before the inquiry authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte."
Thus the essential ingredients of an ex-parte inquiry are:
1 I ■M''+ i •-}■ 7 O.A. 350.00173.2014 ! i .
i
(a) The articles of charges must be delivered to the delinquent,
(b) He should either-
f
(i) Not submit his defence, or
(ii) Otherwise tell er refuse te eemply with the provisions of rule 9.
Thus when a charge memorandum was sent per Registered Post but came back undelivered and was later not posted at the working place, the memorandum was taken as not served, and ex parte was not justified. How to hold ex-parte inquiry - For holding an ex-parte inquiry the articles of charges must be properly served on the Railway employee either in person, or as per registered post, or by pasting at the working place, as the case may be. If the employee does not give the defence despite being served with the memorandum of charges; or after having given the defence, does not turn up, or having turned up, does not sit in the inquiry then the ex-parte inquiry can be held. An exparte inquiry demands all the formalities of. the normal inquiry e.g. (a) the inquiry officer must be appointed unless the disciplinary authority may decide to inquire himself;1 (b) he must fix the date and place for inquiry, (c) he must hold the inquiry and call al the witnesses and documents as cited- in the memorandum of charges; (d) get the documents duly proved and record the evidence of / witnesses so as to prove the charge; ?(eji whefe^the^dejinquent had not turned up in the inquiry and adjournrnertohSJS been given With''a view tirtiold ex-parte inquiry, if he does not turn up on the rie^pccasion, then notice of intentionVto5hqld ex-parte inquiry should be given; (f) findings of inquiry must be duly drawn." 1i* ; f, V * :*• In the instant matter,, vifls'seen i that the; inquiry officer did not get the ri--
i .vf
.1. f. t- . \.;
documents ,dCily proved^and "record theievidence of witness so las To prove the •V j* charge. Further, the inquiry, officer had.t6Jiss,ue,'af4n6tice,,6ffihis intentibn.to hold an ■ --C x '' ' : ' 'Vii ■''I exparte enquiry and the^respondeRlslihayVTiot^brovighfitnything fifurecdrd to prove thatqany such nSifqe of^^arf^^ndWi^^wifedndee^issued to th.e^applicant/ CO. The" enquiry officer also-did not duly draft up-the .enquiry findihgs',based on • v; I: v % ;■:/ $ evidence derived from-documentsf examiriatidn1;'-bf witnesses as well as any
-v.. '■ '-r-- ^ .t-'1 t jI * 'I . ' *.'_.***' ' !* > detailed, minutes op? the-cpriduct of the CO. J •:;v v r v. pf t In Kiran Bala Sahni v. UOl ATJ 1995 (1) 23 an exparte Inquiry! in which a verdict of guilt was given without recording any?evidence was quashed.
In C.S. Prabhakaran v. Union of lndia,.ATJ 2000 (1) 420/it was held as follows:-
The Inquiry Officer, while deciding to hold the ex parte inquiry must give a notice preferably by Registered AD post to the Charged Officer and before actually holding the ex parte inquiry must ensure that the notice has actually been served upon the charged officer and in case when notice is not served, he must make efforts to inform the charged officer through publication in the newspaper. In case such an action is not taken by the Inquiry Officer, punishment awarded to the employee is quashed."
Further, in Union of India v. Dina Nath SCO 1998 (7) 569 the Hon'ble Supreme Court has ruled as under:-
i
8 O.A. 350.00173.2014 That only communication of chargesheet or notice is not enough. Department has o ensure that chargesheet/notice has actually been served on the charged officer."
Neither the disciplinary authority nor the appellate authority had diaouoo« d the inadequacy of procedure in submission of the Inquiry report consequent o ✓ the ex parte enquiry.
7This matter travelled up to the level of the Revisional authority and tt 3 orders of the Revisional authority, though favourable to the applicant, had ak-D not deliberated on the propriety and procedural justice in the process of expar 3 inquiry conducted by the 10 in terms of RS (DA) Rules, 1968. In Chairman, LiC of India v. A. Masilamani, 2012 (8) Supreme Today 224 (SC); in Managir ?
Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074; in Hira i Mayee Bhattacharyya v. Secretary, S./W. School for Girls, (2002) 10 SCC 293; m U.P. State Spinning G. Ltd. V. R Si Pandey, (2005) 8 SCC 264; an l Union of India v. Y.S. Sandhu, Ex-lnspecipr, AIR 2009 SC 161. the Hon'b 3 Court held that, it is a settled legal -proposition .that,'once the Court holds that th 3 enquiry was not properly conducted,;the court must remit the concerned case 1) the concerned authority, for it to conduct the enquiry from the point.that it stoc J vitiated, and condude the same.- Accordingly, we •'deem it fit to remit th*3 concerned matter, back to the Revisional authority, .who will thereafter act in terms of Rule 25(1 )(v) of the Railway Servants. (Discipline & Appeal) Rules, 196<;, which states as follows:-
"Rule - 25. 'Revision (1) Notwithstanding*any contained in these rules:-
Xxxxxxxxxxxxx
(v) any other authority not below the rank of a Deputy vHead of a Department in tM -
\ case of a Railway servant serving under his control [may at any time, either c i his or its own motion or otherwise, call for the records of any inquiry either on h > or its own motion or otherwise, call for the records of any inquiry and revise ar r order made under these rules or, under the rules repealed by Rule 29, aftrr consultation with the Commission where such consultation is necessary] x x x :
Xxxxxxxxxxxxxx"
M S «
9 O.A. 350.00173.2014 The Revisfonal authority will complete his exercise within a period of eigh weeks from the date of reqeipt of ,a copy of this order and issue a reasoned order i* untrammelled by his earlier orders dated 12.8.2013: While the Revisiona authority proceeds to take actions in terms of this order, the applicant is directec to cooperate with the respondent authorities in the process.
7. The O.A. is allowed to the extent of the above directions. There will be no orders on costs.
.*
f r s
ff
;
y
•i ■.
V .
(Dr. Nandita dhatterjee) .< (Bidisha Banerjee)
Administrative Member ; ■ ■ Judicial
.< Member
>
v V:
'* I •
SP ••• .••v ^ ;
• :
•. <■.
! i i. .
S
> f.
r' :s
.!
v-
•;
r -c • •
i
.1 /• V.
:
r1
.?■
r~ ;y
i
ftP-p
y
)