Rajasthan High Court - Jaipur
Rajendra Kumar Parmarthak vs Central Admi Tribunal And Ors on 12 July, 2018
Author: Kalpesh Satyendra Jhaveri
Bench: Kalpesh Satyendra Jhaveri
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writs No. 7229/2010
Rajendra Kumar Parmarthak S/o Sh. D.C. Parmarthak, aged 51
years, by caste Jatav, R/o 43-E, Vikram Garh Allot, West Central
Railway, District Ratlam (MP).
----Petitioner
Versus
1. Central Administrative Tribunal, Jaipur Bench Jaipur.
2. Union of India through its General Manager, West Central
Railway, Jabalpur (MP).
3. Senior Divisional Engineer Co. Kota West Central Railway,
Kota.
4. Additional Divisional Railway Manager and Appellate Authority,
Western Central Railway Kota Junction.
----Respondents
For Petitioner(s) : Mr. Rajvir Sharma For Respondent(s) : Mr. D. S. Poonia HON'BLE MR. JUSTICE KALPESH SATYENDRA JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 12/07/2018
1. By way of this petition, the petitioner has assailed the judgment and order of the Central Administrative Tribunal whereby tribunal has dismissed the review application as well as original application filed by the applicant-petitioner herein.
2. The facts of the case are that the petitioner was appointed on the post of LDC on 12.1.1983 and within a very short span of time in 5 years, he has shown his colour for which he was issued charge sheet alleging that he received double payment of salary from two different places since August, 1996 to January 1997. The Inquiry Officer was appointed, who after conducting the inquiry (2 of 16) [CW-7229/2010] arrived at the finding that charges against the petitioner were proved. The disciplinary authority imposed the penalty of dismissal which was confirmed by the appellate authority as well as tribunal.
3. Counsel for the petitioner Mr. Sharma has taken us to para no.7 of the petition which reads as under:-
7. Recovery from pay of the whole or part of any pecuniary loss caused by a Railway servant to the Government or Railway Administration by negligence or breach of orders-It is open to the competent authority to inflict in addition to the penalty of recovery from pay of the loss caused to the Government by negligence or breach of orders by any of the penalties specified in clause
(i), (ii), (iii-a) (iv), (v) and (vi) of the Rule 6 of the R.S. (D & A) Rules 1968 by way of one and the same order and in pursuance of one and the same proceedings.
In this case the petitioner does not admit that he has caused any loss to railway and he has received double salary but even then for the sake of argument whatever loss by any person has been caused to Railway such loss has been recovered by the department from the applicant. Therefore, the penalty or removal and dismissal could not have been passed in this case so the impugned order of removal is bad in law and is liable to be set aside. Since, the learned Tribunal has not considered this law and fact therefore the judgment of learned Tribunal is liable to be set aside.
3.1 He also taken us to the various documents of railway department and contended that since the amount is recovered, penalty of dismissal of the petitioner is not warranted.
3.2 He also taken us to the Government Circular dt. 15.11.1984 which reads as under:-
Govt. of India Ministry of Railway (Railway Board) No.B-4/vig.I/DAR/1/2 New Delhi (3 of 16) [CW-7229/2010] 15.11.1984 To The General Manager (Vigilance) All Zonal Railway and Production Units Sub: Framing of charge sheets.
A case has been come to the notice of the Railway Board where in statement of certain persons were listed as relied upon documents in the charge sheet. However, the concerned persons were not listed as witnesses during the enquiry to corroborate the charges. As the uncorroborated statements of the witnesses carry on evidentiary value central vigilance commission to whom the case was referred for advise have commented adversely upon the wrong procedure adopted in that case. With a view to ensuring that such cases do not occur in future, Board desire that great care should be taken while framing charge sheet and wherever statement are included in the relied upon documents. The author of such statement should be listed as witnesses in Annexure IV of the charge sheets.
Please acknowledge receipt.
Sd/-"
3.3 Counsel for the petitioner has also taken us to the statement of one Smt. Sadhana Shrivastava, Head Clerk where in nothing was against the petition. The statement of one Sh. Shuresh Bhatiya, OSI (commercial branch/ET branch) were also taken into consideration which reads as under:
Q.3 I am enquiring into the charges of Sh. R.K. Parmarthak, Head Clerk, Store section W-5 section during that period he has been transferred in Aug.1996 to TRD Kota and from Aug. 1996 to January 1997 Sh. R.K. Parmarthak was drawing regular payment from Bill Unit No.408(4) as well as Bill Unit No.85 what do you want to say about that?
Ans. I am not aware about this thing. I have nothing to say. As I took over charge of pay Bill Engineering section on 15 January 1997.
(4 of 16) [CW-7229/2010]
4. He thereafter taken us through the order of disciplinary authority wherein it has been observed as under:
The DE has accepted that he has drown payment from Bill Unit No.408(4), however the opinion of Finger Print Examiner dt. 11.3.99 confirm that signatures on pay sheet of Aug. 96 to Jan.97 & Bonus Pay Sheet of Oct. 96 of bill unit No.085 & 408(4) are of same person. Thus the DE violated Railway Service (Conduct) Rules 1966 (I)(i).
5. The opinion of FPE was seeked on the basis of relied upon document which were handed over to DE with memorandum of charges hence the opinion refuted by DE is baseless, which is enough proof that the DE has drawn double payment from bill unit No.085 and 408(4) from Aug.96 to Jan. 97 and bonus payment of Oct. 96.
5. He also taken us to the order of the appellate authority where appellate authority has only reproduced the finding arrived at by the department and concluded as under:-
The DE who had been working as a Head Clerk in Stores section was transferred to TRD Branch in August, 1996. While leaving his earlier post, he did not carry the Last Pay Certificate (LPC) which is the very basis for drawing salary at the new place of posting. Instead the appellant himself prepared his own salary bill being Head Clerk and drew the amount in the absence of LPC. The Appellant had ample opportunity to seek LPC as he had been visiting the divisional Hqs where he had drawn his last salary. Since the LPC was not issued from the previous place of posting, his pay bill continued to be prepared in the previous office and at the same time he also prepared his pay bill at the new office. During the Enquiry it has been proved that the Appellant drew salary from two places, which was not due to him. Since the appellant had drawn double payment, obviously the one part was recovered as mentioned in the appeal. It is natural that no one can enjoy the fruits of labour which one did not put in. In the case under consideration the appellant had drawn double wages, which were (5 of 16) [CW-7229/2010] not due to him, and therefore recovery of one part cannot be considered as a punishment and is certainly not a punishment. The contention of the Appellant in this regard is wholly unjustified. The amount of punishment imposed should normally bear relation to the level of mis- conduct. The act of murder and the act of slapping though both are treated as mis-conduct, yet the penalty imposed should be different. In this case the Appellant being Head Clerk prepared his own pay bill and drew the salary at new place of posting which was totally wrong. At the same time, as proved by the Enquiry, he also drew the salary at his previous place of posting. This is an act of gross immorality and sets a bad precedence among other Railway employees who would be tempted to indulge in such kind of immoral activity. This is an act where the employer cannot rely on the faithfulness of his employee although this may be an isolated example of mis-conduct, but it has serious consequences. By this act appellant has demonstrated unfaithfulness, immorality, dis- honesty and untrustworthiness to the organization where he worked.
In the result for the forgoing reasons and having regard to nature and gravity of mis-conduct, I upheld the punishment of dismissal from Railway service imposed upon appellant by Disciplinary Authority.
6. The tribunal in a summary manner observed as under:
6. Learned counsel for the applicant vehemently contended that the charge-sheet dated 29.1.98 was issued based on no evidence. The order of penalty dated 2.12.2004 and the order passed on appeal dated 1.4.2005 are bad in law because the same type of order based on the same charge sheet and the material which had already been set aside by this Tribunal. It was submitted that the applicant had only received salary from Bill Unit No.408(4) but no salary was received from Bill Unit No.085. The EO had based its findings on the basis of report of the Finger Print Expert (FPE, for short). This document was not relied upon in the charge-sheet against the applicant. The respondents had no right to rely upon such report without proving the same and mere putting the document in inquiry proceedings will not amount to proof. The applicant had a right to cross examine the person (6 of 16) [CW-7229/2010] concerned and the expert who had prepared the report. The applicant had not received any salary for the period from August, 1996 to January, 1997 from Bill Unit No.085. He had only received salary for that period from Bill Unit No.408(4).
Therefore, the EO had wrongly came to the conclusion that the applicant had received double payment and he had received the payment from Bill Unit No.085.
7. He also preferred review which came to be rejected vide order dated 17.3.2010. He contended that the order of the Tribunal is not sustainable as hand writing expert opinion was never given to him and he was not given any opportunity to rebut it.
8. Counsel for the petitioner has relied upon the following decisions:-
(1). In Ram Chander Vs. Union of India (UOI) and Ors. AIR 1986 SC 1173 wherein it has been held as under :-
1. The central question in this appeal is whether the impugned order passed by the Railway Board dated March 11, 1972 dismissing the appeal preferred by the appellant, was not in conformity with the requirements of Rule 22(2) of the Railway servants (Discipline & Appeal) Rules, 1968. At the hearing on February 13, 1986, learned Counsel for the Union of India took time to enable the Railway Board to reconsider its decision as to the quantum of punishment. At the resumed hearing on March 13, 1986 we were informed by the learned Counsel that there was no question of the Railway Board reconsidering its decision. Arguments were accordingly heard on the question as to (7 of 16) [CW-7229/2010] whether the impugned order of the Railway Board was sustainable in law. We heard the parties and allowed the appeal by order dated March 13, 1986 directing the Railway Board to hear and decide the appeal afresh on merits in accordance with law in conformity with the requirements of Rule 22(2) of the Rules. We now proceed to give reasons therefor.
5. To say the least, this is just a mechanical reproduction of the phraseology of Rule 22(2) of the Railway Servants Rules without any attempt on the part of the Railway Board either to marshal the evidence on record with a view to decide whether the findings arrived at by the disciplinary authority could be sustained or not. There is also no indication that the Railway Board applied its mind as to whether the act of misconduct with which the appellant was charged together with the attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty or removal from service for a single lapse in a span of 24 years of service. Dismissal or removal from service is a matter of grave concern to a civil servant who after such a long period of service, may not deserve such a harsh punishment. There being non-
compliance with the requirements of Rule 22(2) of the Railway Servants Rules, the impugned order passed by the Railway Board is liable to be set aside.
(2). In Kuldeep Singh Vs. The Commissioner of Police and Ors.
(1999)2SCC10 wherein it has been held as under :-
(8 of 16) [CW-7229/2010]
6. It is no doubt true that the High Court under Article 226 or this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority.
9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may (9 of 16) [CW-7229/2010] be, the conclusions would not be treated as perverse and the findings would not be interfered with.
(3). In Roop Singh Negi Vs. Punjab National Bank and Ors.
(2009)2SCC570 wherein it has been held as under :-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
(4). In Gope Laxmichand Badlani Vs. Oriental Bank of Commerce, New Delhi and Ors. 2002 (2) SCT 534(Bombay) wherein it has been held as under :-
21. In his finding dated 19-3-1999, this is how respondent No. 2 has dealt with the matter.
"On the basis of preponderances of probability I tend to accept the contentions of the P.O. that by considering both documents, the (10 of 16) [CW-7229/2010] balance of convenience is more in favour of accepting the opinion of the Government Examiner of Questioned documents i.e. Exhibit M-8 as it is from an independent and more reliable authority whereas Shri Mahesh Wagh is a paid-handwriting expert engaged by Shri G. L. Badlani." Firstly, respondent No. 2 once again does not give any reasons why he not only rejected but did not even deal with the petitioner's application for cross-examining the respondent's handwriting expert. Respondent No. 2 has relied upon the respondent's handwriting expert's opinion to hold against the petitioner. Though the strict rules of the law of evidence may not apply to domestic enquiries, it is an elementary principle that no such document can be relied upon against a party without giving him an opportunity of cross-examining the author thereof. There is no presumption in law entitling a judicial authority to accept a report of a Government employee without affording the opposite party an opportunity of assailing the same. A Constitution Bench of the Supreme Court in the case of Union of India v. T. R. Verma, MANU/SC/0121/1957 :
(1958)IILLJ259SC while dealing with a case where a person's services had been terminated observed as under :--
"Stating it broadly and without intending it to be exhaustive, it may beobserved that rules of natural justice require that a party should have theopportunity of adducing all relevant evidence on which he relies, that theevidence of the opponent should be taken in his presence, and that heshould be given the (11 of 16) [CW-7229/2010] opportunity of cross-examining the witnessesexamined by that party, and that no materials should be relied on againsthim without his being given an opportunity of explaining them."
This case does not fall within the exceptions to the rule permitting a party to cross-examine witnesses where evidence is sought to be relied upon against him.Moreover, as mentioned above, Regulations 6(13) and 6(14) mandatorily provided the petitioner's right to cross-examine the respondents handwriting witness. He was denied this right. It was the only method by which the parties could establish the correctness or otherwise of the opinions of the handwriting experts.
22. Nor is there any presumption in law that expert evidence is to be disregarded or given less weightage merely because the expert is engaged professionally and paid a fee by a party. The only manner in which an expert's opinion can be assailed is by adducing evidence by cross-examination or otherwise. The report of the handwriting expert tendered by the petitioner has not been questioned or doubted by the respondents or the P. O. at any stage of the proceedings in any manner whatsoever. The P. O. declined the offer to cross-examine the petitioner's handwriting expert. Merely because respondent No. 1 or a Government organisation is not required to pay another Government servant fees for his opinion, there is no presumption that the Government expert's opinion is entitled to greater weightage. Nor is there any presumption that for the same reason a (12 of 16) [CW-7229/2010] Government expert's opinion is to be treated as correct. If this was the law, it would lead to disastrous consequences not in this matter but every matter where citizens are arraigned against statutory bodies, the Government or State controlled entities such as respondent No. 1. Private parties will never be able to defend themselves in the face of an opinion of a Government expert. Respondent No. 2 has not even bothered to apply his mind and ascertain for himself as to whether the opinion of the Government expert is correct or not.
30. We find considerable force in the submissions of Mr. Jagtiani that the findings dated 19-3-1999 are not only contrary to the rules of natural justice but also contrary to the express provisions of Regulation 6 (21)(i)(b),
(c)and (d). The findings dated 19-3-1999 do not deal with various important aspects raised by the petitioner regarding the non-production of material documents and witnesses necessary to establish the petitioner's alleged guilt. There is also an absence of even a passing reference to important submissions of the petitioner. On crucial aspects which would go to establish the guilt or innocence of the petitioner, the cross-examination has been unfairly obstructed.
Regulation 6(21)(1)(d) is a salutary provision, making a reasoned order obligatory. Reported cases have upheld the importance of reasoned orders on various grounds. This case highlights one of them : It ensures that the decision is reached according to law and is not a result of caprice, whim or fancy. Mahabir Prasad Santosh Kumar v. State of U.P. and (13 of 16) [CW-7229/2010] Ors., MANU/SC/0018/1970 : [1971]1SCR201 . The obligation to give reason is a healthy discipline for all those who exercise power over others (Wade on Administrative Law 7th Edition page 542.)
32. There is considerable force in the submission of Mr. Jagtiani, that each of these aspects vitiates the entire proceedings. We have no hesitation in holding that each of these aspects, taken together certainly does, viewed as a whole, starting from the unexplained delay in commencing the enquiry, the patently unsustainable approach adopted by respondent No. 2 in disallowing the petitioner to cross-examine the respondents handwriting expert as well as the equally unsustainable reliance upon the opinion of the respondents handwriting expert and rejection of the petitioner's handwriting expert's opinion on specious grounds, the unfair obstruction by respondent No. 2 to the cross examination on crucial matters by the petitioner, the complete avoidance of dealing with important issues in the findings of 19-3-1999 and the absence of reasons on important aspects of the matter leaves us with no option but to quash and setaside the impugned orders. We do so on the grounds that there has been a violation of the principles of natural justice and the provisions of the Regulations. The decision making process was unfair and contrary to law and the Regulations.
9. He further contended that order passed is based on no evidence and petitioner is a handicapped and his family would suffer, therefore, he should be restored back in service. His (14 of 16) [CW-7229/2010] further contention is that the appointing authority has not passed an order of dismissal, and therefore, the order passed by the authority is bad in law.
10. On the other hand, counsel for the respondent contended that the view taken by the tribunal is just and proper. Looking to the huge management of Railways, the petitioner drawn salary from two places. However, fortunately for the railways, it was brought to the notice and fraud committed by the petitioner is found out and he has been punished after due procedure. Both the signatures were compared even by the court and report of hand writing expert was also placed on record. Taking into consideration the said facts, the appellate authority as well as tribunal has given correct finding and in exercise of powers under Article 227/226 of the Constitution of India, it will not be appropriate for this Court to disturb the just finding arrived at by the authorities. He further contended that the petitioner was appointed only in 1983 and in less than 5 years, he has committed such a fraud for which he cannot be restored back in service and if such a fraud is allowed to continue, it is very difficult for the management to control such type of person and in fact, the Railway has lost confidence in the petitioner, thus, in the fact-situation, the order of dismissal is just and proper and no interference is required.
11. We have heard Mr. Sharma, counsel for the petitioner at length.
12. Before proceeding with the matter, it will not be out of place to mention that the inquiry officer while giving finding has held that all the charges which are levelled against the present petitioner were proved which has been accepted by the disciplinary authority. The five findings of inquiry officer which we (15 of 16) [CW-7229/2010] have reproduced hereinabove were accepted and the order of dismissal came to be passed after giving opportunity to the present petitioner and the disciplinary authority in his order observed as under:-
It is worth mentioning here that the DE should have been given the opportunity to re-act on the new document "Report of Finger Print Expert' as DE has asked for this while answering Q.No.9. The same thing has been repeated by the DE while submitting the final brief in front of EO as per para 4 of the brief, which reads as under:
"I had no objection if this report could have been taken on record and the authority should have been called for verifying the authenticity of the opinion during the course of enquiry, before finally examining the delinquent employee(me)."
This issue has been examined in true earnest and natural justice and observed that the findings which have been drawn considering the report of Finger Print Expert, have been sent to DE, which was acknowledged by him on 5.11.04, but this fact has not been brought out by the DE in his final representation dated 20.11.04, to the Disciplinary authority. Therefore, it has been considered that he is not further demanding the examination of Finger Print Expert. Therefore, this issue has been considered as fully examined. I further considered the representation and observed that in para 8, the DE has admitted that the monthly salary has been prepared by DE under Bill Unit No.408(4) as a part of his duty but it has not been pointed out any where by DE that why he was preparing the monthly salary pay sheet without LPC for months together i.e. from Aug 96 to Jan 97. During this period, he came to the divisional office at Kota so many times but he did not even took serious interest to get LPC which was also a part of his duty. In the representation the DE has submitted that he has already been penalized by making recovery of pecuniary loss to the Railways and hence the findings of EO are concocted and unfounded. The issue has been examined and observed that the said chargesheet has been given for mis-conduct and not for the pecuniary loss to the Railway. Therefore, the issue of recovery of the same, can not be read with this chargesheet as these are two issues- One is loss (16 of 16) [CW-7229/2010] to the Railway and another one is f mis-conduct for not behaving as Railway Servant. In view of all the above facts and findings, I consider that the Delinquent employee shri R K Parmarthak, has deliberately done this irregularity of taking the payment twice for the same months through two bill units, which is not an act to be done by Railway Servant.
Therefore, this is considered as serious mis- conduct on the part of the DE and violation of Rule No.3(1)(i)(ii)(iii) of Railway Service (Conduct) Rules and as such penalty of "Dismissal from Railway service" is imposed with immediate effect.
13. In that view of the matter, when the opportunity was given as observed by the disciplinary authority, he did not object and taking into consideration the report of the finger prints on record and even appellate authority has rightly observed while considering the appeal, the tribunal has also heard the present petitioner and decided the matter, in our considered opinion, the procedure which has been followed by all the authorities is found to be just and proper. On preponderance of probability, the petitioner was found to had drawn salary twice which is not permissible under law. The refunding of amount will not absolve him from criminal liability and disciplinary proceeding.
14. In that view of the matter, in our considered opinion, the order of the disciplinary authority is just and proper. We do not inclined to exercise powers under Article 226 and 227 of the Constitution of India for such a person who has committed a grave misconduct.
15. In view of the above, the petition stands dismissed.
(VIJAY KUMAR VYAS),J (K.S. JHAVERI),J Bm gandhi/ Brijesh 37.
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