Central Administrative Tribunal - Hyderabad
P. Veeraswamy vs The Chief Electrical Loco Engineer, The ... on 12 June, 2007
ORDER
P. Lakshmana Reddy, J. (Vice Chairman) Heard learned Counsel for the applicant and learned standing counsel for the respondents.
1. The relevant facts of the case in brief are as follows:
The applicant was working as Goods Driver in the respondents' Railways and he was absent for a period of 80 days without intimation to the authorities. On 12.08.2004 a minor penalty charge sheet was issued to the applicant and the applicant submitted his explanation on 11.09.2004 admitting his unauthorised absence, but pleading that on account of sickness of his wife he could not attend to his duties. While the matter was pending consideration, on 18.10.2004 a memo was issued withdrawing the minor penalty charge sheet reserving the right to issue fresh charge sheet, but no reasons are given as to why the disciplinary authority wanted to withdraw the minor penalty charge sheet and issue a major penalty charge sheet. A fresh charge sheet was issued on 27.10.2004 and thereafter the applicant submitted his representation stating that he has already admitted his unauthorised absence and he has already submitted his explanation to the earlier charge sheet and that he may be kindly excused for his absence and he may be given opportunity to serve his duties and he has assured the disciplinary authority that he shall work regularly in future. His explanation was not accepted and inquiry officer was appointed on 30.11.2004 to inquire into the charges framed vide fresh charge sheet. Inquiry was completed and the inquiry officer submitted his report to the disciplinary authority holding that the charge framed against the applicant is proved and after receipt of the report, a copy of the same was given to the applicant by the disciplinary authority giving him an opportunity to make his representation against the report. Thereafter, the applicant submitted his representation. But the disciplinary authority did not accept the explanation and accepted the report of the inquiry officer and imposed punishment of compulsory retirement on 27.06.2005. Thereafter, the applicant filed an appeal before the appellate authority and the appellate authority confirmed the orders of the disciplinary authority both in respect of the findings and also in respect of the punishment. The applicant filed revision against the orders of the appellate authority on 12.9.2005 and the same was dismissed on 28.11.2005. Aggrieved by the same, the present application is filed challenging the orders of the disciplinary authority on the technical ground that the very issue of the second charge sheet is not valid and is not in accordance with law and therefore, the entire disciplinary proceedings are to be quashed.
2. The applicant relied upon Railway Board's letter No. E(D&A) 93 RG 6-83 dated 1.12.1993 which was circulated vide CPO's Serial Circular No. 128/93 dated 28.12.1993 which reads as follows:
It has come to the notice of the Railway Board that on one of the zonal Railways, the Memorandum of Charges issued to an employee was withdrawn by the disciplinary authority with an intention of issuing Detailed charge memorandum. However, while withdrawing the charge sheet, no reasons therefor were given and it was only stated that the charge sheet was being withdrawn. The issue of a fresh charge memorandum was subsequently challenged by the employee before CAT/Bombay. The Central Administrative Tribunal hearing the case have quashed the said charge memorandum holding that unless there is a power in the disciplinary authority by virtue of rules or administrative instructions to give another charge sheet on the same facts after withdrawing the first one, the second charge sheet will be entirely without authority.
The matter has been examined and it is clarified that once the proceedings initiated under Rule 9 or Rule 11 of RS(D&A) Rules, 1968 are dropped, the disciplinary authorities would be debarred from initiating fresh proceedings against the delinquent officials unless the reasons for cancellation of the original charge memorandum for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without prejudice to further action which may be considered in the circumstances of the case. It is, therefore, necessary that when the intention is to issue fresh charge sheet subsequently, the order of cancelling the original one or dropping the proceedings should be carefully worded so as to mention the reasons for such an action indicating the intention of issuing charge sheet afresh appropriate to the nature of charges.
3. The applicant sought for a prayer to quash and set aside the second charge sheet dated 27.10.2004 issued by the 4th respondent and consequential orders of the 3rd respondent dated 27.06.2005 compulsorily retiring the applicant from service and the orders of Respondents 2 & 1 in appeal and revision dated 29.08.2005 and 28.11.2005 respectively by declaring them as illegal, arbitrary, without jurisdiction, violative of Railway Board instructions contained in Serial Circular No. 128/93 and against the law laid down by the Jabalpur and Bombay Bench of this Tribunal and he sought for a further direction to the respondents to reinstate him back in service with all consequential benefits.
4. The respondents filed reply statement stating that the applicant while working as Goods Driver at Bellampalli was issued with a memorandum of charges for imposition of minor penalty under Rule 11 of the Railway Servants (Discipline & Appeal) Rules, 1968 by the 4th respondent vide proceedings dated 12.08.2004 for his unauthorised absence for different spells from 1.1.2004 to 29.7.2004. However, disciplinary authority in proceedings dated 18.10.2004 informed the applicant that the charges framed against him vide memorandum dated 12.08.2004 were dropped without prejudice to issue fresh charge memo and the same was received by the applicant on 21.10.2004. Subsequently, the 4th respondent issued major penalty proceedings on 27.10.2004 under Rule 9 of the Railway Servants (D&A) Rules 1968. Thereafter, the applicant filed his reply and due inquiry was conducted following due procedure in accordance with law. It is further stated in the reply that sum and substance of the Railway Board letter dated 01.12.1993 is that once the charges are dropped without any condition, subsequent proceedings on the very same charge cannot be entertained unless the reasons for cancellation of the original charge memorandum are appropriately mentioned and that in the present case while dropping the minor penalty charge sheet, it is clearly mentioned that it is without prejudice to any fresh charge memo and as such the instructions issued by the Railway Board are followed in the case. It is further pleaded that the applicant was given liberty to defend his case and in the said inquiry the applicant accepted the charges framed against him and other contentions mentioned in the OA are without any merit and the application is liable to be rejected. Since the authorities found the unauthorised absence of the applicant on various dates hinder the working of the trains in the depot and his continued absence in spite of earlier punishment of censure, reduction in stages and withholding of increment could not improve, he was given the punishment of compulsory retirement from service. The respondents prayed for dismissal of this application.
5. As seen from the pleadings of both sides, the facts are not in dispute. The only point that is raised by the learned Counsel for the applicant is that as per the Railway Board's instructions supra, unless reasons are given for dropping the earlier charge memo reserving right to issue a fresh charge memo, the second charge sheet cannot be issued. The contention of the learned Counsel for the respondents is that it is specifically mentioned in the memo dated 18.10.2004 that the charges framed against the applicant dated 12.08.2004 are dropped without prejudice to issue of fresh charge sheet and that the said mention is sufficient to comply with the Board's letter relied upon by the applicant and as per which the respondents have reserved their right to issue fresh charge which itself gives an intimation to the applicant that he is not absolved and he has to face another fresh charge memo. Therefore, no prejudice is caused to the applicant.
6. On the other hand, learned Counsel for the applicant contended that mere reserving right to issue fresh charge memo is not sufficient for the compliance of the Board's letter and that the Board's instructions contained two aspects viz., (i) reasons for cancellation & (ii) reserving right to issue fresh charge memo. In the instant case, though the second instruction is complied with, the respondents have not complied with the first instruction i.e. giving reasons which are mandatory. Therefore, the second charge is not valid under law.
7. The point that arise for consideration in this application is whether withdrawal of the first charge sheet issued by the respondents vide order dated 18.10.2004 and issuance of fresh charge sheet dated 27.10.2004 in respect of the same imputations is in accordance with law, if not, whether the impugned orders are not sustainable in law and to what result?
8. It is useful to extract the letter dated 18.10.2004 under which the charges framed against the applicant on 12.08.2004 have been dropped.
South Central Railway, Office of the Sr. DEE/TRS-OP/SC Dt.18.10.2004 No.C/E.150/TRS/227/2/04/UA/13 Shri P. Veeraswamy, Loco Pilot/Goods/BPA (Through: CC/ BPA.) Sub: This office SF.11 of even number, dated 12-8-2004. Ref: Your explanation dated 11-9-2004. ----
The charges framed against you vide this office SF.11 of even number, dated:12-8-2004 are hereby dropped without prejudice to issue fresh charge memo.
Acknowledge the receipt of this letter.
9. We have already extracted the serial circular No. 128/93 while mentioning the contents of the application filed by the applicant. As seen from the said circular, it is clear that the Railway Board has given instructions that it is necessary that when the intention is to issue fresh charge sheet subsequently, the order of cancelling the original one or dropping the proceedings should be carefully worded so as to mention the reasons for such an action indicating the intention of issuing charge sheet afresh appropriate to the nature of charges. Here in the instant case, admittedly, no reasons are given for dropping the charges framed on 12.08.2004. We have perused statement of imputations annexed to the first charge sheet dated 12.08.2004 and also to the second charge sheet dated 27.10.2004 and found that the imputations are one and the same. As seen from the charges framed on 12.08.2004, it is clear that the disciplinary authority has applied its mind to the misconduct and formed an opinion that the said misconduct is the one which can be dealt with by imposing minor penalty. Subsequently, after 2= months, the said charges were dropped , of course, reserving right to issue fresh charge sheet and in fact, fresh charge sheet was issued 9 days thereafter i.e. 27.10.2004. It is not known as to why the disciplinary authority had to change its mind and had to convey different opinion regarding nature of misconduct imputed against the applicant. In fact, the applicant himself has admitted his unauthorised absence and he has not disputed his unauthorised absence warranting inquiry to be conducted. But the disciplinary authority did not disclose the reasons as to why he had to change his opinion regarding nature of misconduct alleged. Unless reasons are disclosed, the applicant is at loss to know as to why the earlier charge sheet is dropped and a fresh charge sheet is framed. Therefore, in our considered view, it is mandatory for the disciplinary authority to give reasons for change of opinion and for his decision to withdraw the earlier charge memo and to issue fresh charge memo. As the disciplinary authority in this case did not give reasons, we find considerable force in the contention of the learned Counsel for the applicant that the second charge sheet is not in accordance with law and it is in violation of the serial circular issued by the Railway Board. In this case, we are supported by a decision of the CAT, Lucknow Bench dated 10.1.2003 in O.A. No. 642/95 in Raja Ram Verma v. Union of India and Ors. reported in 2003(3) ATJ 473 wherein it is held that impugned order of issuance of fresh charge sheet is not sustainable in law and liable to be quashed and gave liberty to the disciplinary authority to proceed with the inquiry held in pursuance of the earlier charge sheet. In fact, facts of the present case are in much better position than the facts in the cited case. In the case cited, some thing happened in between issuance of first charge sheet and the second charge sheet because the revisionary authority appeared to have expressed some opinion that this is a matter to be dealt with under major penalty procedure. Here in the instant case, no such thing had happened in between issuance of minor penalty charge sheet and major penalty charge sheet.
10. This is a fit case for quashing the second charge sheet and consequential proceedings and to restore minor penalty charge memo dated 12.08.2004. Learned Counsel for the applicant has conceded that the absence of the applicant for 80 days was unauthorised and for which the applicant is liable to be punished under Rule 11 of the Railway Servants (Discipline and Appeal) Rules, 1968. Further in the letter dated 18.10.2004 it is not mentioned that the charges are dropped accepting the explanation given by the applicant and on the other hand, it is stated that the charges are dropped without prejudice to issue of fresh charge memo. Therefore, we thought it fit to restore original minor penalty dated 12.08.2004. Respondents are at liberty to proceed further with the charge memo dated 12.08.2004 and dispose of the same in accordance with rules.
11. In the result, OA is partly allowed setting aside the second charge sheet dated 27.10.2004 and consequential proceedings therein and restoring the original charge sheet dated 12.08.2004 giving liberty to the respondents to proceed with the charge memo dated 12.08.2004 and dispose of the same in accordance with law.
12. In the circumstances, parties are directed to bear their own costs.