Central Administrative Tribunal - Lucknow
Bedi Ram vs Union Of India on 26 September, 2024
CAT,Lucknow Bench OA No. 332/00094 of 2010 Bedi Ram Vs. U.O.I. &Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 332/00094/2010
Order reserved on: 05.09.2024
Order pronounced on: 26.09.2024
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Bedi Ram, aged about 49 years, S/o Mannu Ram, R/o Village & Post
Kusia, District Jaunpur.
.....Applicant
By Advocate: Shri Asit Kumar Chaturvedi, Senior Advocate
Assisted by Shri Raj Singh and Shri Harsh Tripathi
VERSUS
1. Union of India, through the General Manager, North Eastern
Railway, Headquarters office, Gorakhpur.
2. Additional Divisional Railway Manager, North Eastern Railway
Manager, North Eastern Railway, Lucknow Division, Lucknow.
3. Senior Divisional Commercial Manager, North Eastern Railway,
Lucknow Division, Lucknow.
.....Respondents
By Advocate: Ms. Manorama Mishra
ORDER
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case relating to punishment, the applicant has sought the following reliefs:
(i) To set aside the dismissal order dated 23.01.2009 (Annexure No. 1 to this Original Application) and the Appellate Order dated 06.08.2009 (Annexure No.2 to this Original Application).
(ii) To direct the respondents not to implement the dismissal order dated 23.01.2009 (Annexure No.1 to this Original Application) and the Appellate Order dated 06.08.2009 (Annexure No. 2 to this Original Application)and the applicant be allowed to continue in service with all Page 1 of 9 CAT,Lucknow Bench OA No. 332/00094 of 2010 Bedi Ram Vs. U.O.I. &Ors.
consequential benefits of period of suspension and dismissal from service, including promotion etc.
(iii) To issue any other order or direction deemed fit and proper by this Hon'ble Tribunal in the facts and circumstances of the present case.
(iv) To allow the Original Application with costs." 2.1 The facts of the case are that the applicant, while working as the Chief Traveling Ticket Inspector under the respondents, was implicated in crime no. 44/2006 under sections 120B, 417, 418, 419 and 420 of IPC, section 5 of Official Secrets Act, and sections 4, 5 and 6 of UP Public Examination (Prevention of Unfair Means) Act, 1998. He was also implicated in crime no. 45/2006 under sections 2 and 3 of the UP Gangster Act, arrested on 26.02.2006 and granted bail vide order dated 14.09.2006. The applicant was again implicated in crime no. 1093/2008 under sections 120B, 351, 352, 417, 418, 419, 420, 467, 468 and 471 of IPC, section 5 of Official Secrets Act, and sections 4, 5 and 6 of UP Public Examination (Prevention of Unfair Means) Act, 1998 and was under
arrest from 14.12.2008 to 29.01.2009.
2.2 The applicant was issued charge sheet dated 29.11.2006 under rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 (the Rules, hereinafter) for having leaked paper, in connivance with others, for examination held on 26.02.2006 for recruitment to Group D causing wastage of precious time, loss of revenue and tarnishing the image of railways. An enquiry was conducted and the applicant dismissed from service vide order dated 23.01.2009. His appeal dated 09.04.2009 was rejected vide order dated 06.08.2009. Aggrieved, the applicant has preferred this OA.
3.1 The applicant contends that among the documents relied on in the charge sheet are newspaper cuttings which are not credible/admissible evidence, being hearsay and secondary evidence [1993(3) SCC 151 S.A. Khan vs. CH. Bhajanlal and Ors.; 1988 (30 SCC Page 2 of 9 CAT,Lucknow Bench OA No. 332/00094 of 2010 Bedi Ram Vs. U.O.I. &Ors. 319 - Laxmi Raj Shetty vs. State of Tamil Nadu; 2006 (6) SCC 180 -
KushumLata Vs. Union of India and Others].
3.2 The authors of 9 relied upon document has not been called as witness [1998 (3) SCC 227 Ministry of Finance & Anr Vs. S.B. Ramesh; 1999 (8) SCC 582-Hardwari Lal Vs. State of U.P. &Ors; 2009 (20 SCC 570 Roop Singh Negi Vs. Panjab National Bank].
3.3 The charges leveled against the charge official have to be proved during the course of departmental disciplinary inquiry proceeding after issuance of the charge sheet and it is not so that it is deemed to be proved until and unless disproved the charged official [2014 (3) UPLBC 1976-Veer Singh Vs. Dy. Registrar Coop. Soc. Meerut and Others; 2017 (35) LCD 936-Syed Mansoor Hasan Rizvi vs. Director, Local Bodies and Others].
3.4 The relevant police report referred to by the enquiry officer and the disciplinary authority has not been supplied to the applicant [1986 (3) SCC 229 Kashinath Dikshita Vs. Union of India and Ors.; 2017 (35) LCD 936 Syed Mansoor Hasan Rizvi Vs. Director, Local Bodies and Others].
3.5 It is a case of no evidence as all 9 documents listed in the charge sheet are hearsay and secondary evidence and not admissible [2009 (2) SCC 570 Room Singh Negi Vs. Punjab National Bank; Suresh Babu Vs. State of UP].
3.6 The disciplinary authority has violated rule 10(1) (b) of Railway Servants (Disciplinary & Appeal) Rules 1968 in not recording reasons for re-enquiry when the enquiry report dated 20.03.2008 found the charges not proved [1971 (2) SCC 102 K.R. Deb v. the Collector of Central Excise, Shillong].
3.7 The enquiry officer submitted re-enquiry report without conducting any enquiry from 20.03.2008 to 14/18.08.2008 [2000(1) Page 3 of 9 CAT,Lucknow Bench OA No. 332/00094 of 2010 Bedi Ram Vs. U.O.I. &Ors. UPLBEC 541 Subhash Chandra Sharma Vs. Managing Director, U.P. Co- op Spg. Mils Federation Ltd., Kanpur].
3.8 The enquiry officer has violated the rule 9 (25) of Railway Servant (Disciplinary & Appeal) Rules 1968 in submitting the re-enquiry report without following the procedure laid down therein [2012 (I) UPLBEC 166- Subhash Chandra Gupta vs. State of U.P.].
3.9 The Disciplinary authority has violated rule 10 (2) (a) of Railway Servant (Disciplinary &Appeal Rules 1968 in disagreeing with the enquiry report but not inviting the applicant's representation on the proposed disagreement [1998(7) SCC 84- Punjab National Bank versus Kunj Bihari Mishra; 1999 (7) SCC 739. Yoginath D. Bagde vs. State of Maharashtra and another].
3.10 The copy of inquiry report dated 20.3.2008 (A-16 Page 102) & re- enquiry report dated 14/18.08.2008 (A-17 Page 116) was not received by the applicant as he was in jail from 14.12.2008 to 29.01.2009 and he and could not submit his reply [1991 (1) SCC 588 Union of India v. Mohd. Ramjan Khan].
4.1 The respondents state that the charge against the applicant for tarnishing the image of railways is apparent from news published in different newspapers. Other available relevant letters and documents are sufficient to prove applicant's misconduct.
4.2 It is further stated that there is no need of any prosecution witness.
4.3 There is sufficient documentary evidence to prove the charges levelled against the applicant.
4.4 As the disciplinary authority remitted the enquiry report back to the enquiry officer for re-conducting the enquiry, there was no question of furnishing such enquiry report to the applicant. Page 4 of 9
CAT,Lucknow Bench OA No. 332/00094 of 2010 Bedi Ram Vs. U.O.I. &Ors. 4.5 The charges levelled against the applicant stand duly proved by the sufficient documentary evidence. Further, there is no need of proving the 'news' published in a newspaper by any prosecution witness. 4.6 The enquiry report dated 20.03.2008 submitted by the enquiry officer to the concerned disciplinary authority was returned to the enquiry officer with objections directing the enquiry officer to re-conduct the enquiry in consonance with the Rules.
4.7 The applicant was found guilty of charges against him in a regular and fairly conducted departmental enquiry. 4.8 The re-enquiry was conducted in a proper manner by the enquiry officer.
4.9 The charge for tarnishing railway's image was duly proved as would be evident from this enquiry report dated 14.08.2008. There is no question of moving any representation against the decision of the disciplinary authority as the same can be challenged in appeal. 4.10 The enquiry report was sent to the applicant at his residential address vide registered letter dated 16.12.2008 as well as pasted at his place of working. All modes of service of letters as provided in the Rules were observed. However, at the applicant's request, keeping in view the principles of natural justice, the same was again provided to the applicant.
5.1 We have heard both the parties.
5.2 During the hearing, learned senior counsel for the applicant emphasized inter alia that it is not a case of remand for re-enquiry keeping in view the long time that has elapsed since the issue of the charge sheet, numerous illegalities in the disciplinary proceedings and the date of applicant's superannuation of 31.05.2020 [2017 (2) SCC 308 Allahabad bank and other vs Krishnan Narayan Tewari; 2018 (8) ADJ 758-State of Uttar Pradesh vs. Jai Prakash Srivastava; State of U.P. vs. Page 5 of 9 CAT,Lucknow Bench OA No. 332/00094 of 2010 Bedi Ram Vs. U.O.I. &Ors. Dinesh Kumar Katiyar]. He further stressed the point that since the applicant has attended the age of superannuation on 31.05.2020 and has not committed any grave misconduct, no punishment can be awarded under rule 9 of the Railways Services (Pension) Rules, 1993 [1990 (4) SCC 314 D.V. Kapoor Vs. Union of India; 2015 (12) SCC 408 H.L. Gulati Vs. Union of India and Other; 1999 (17) LCD 1030 Ram Dev Dixit Vs. State of U.P. and Others; Sandeep Kumar Vs. State Public Service Tribunal].
5.3 Per contra, the learned counsel for the respondents maintained that the disciplinary proceedings were conducted as per Rules. It was stressed that the disciplinary authority has power to impose penalty of dismissal on the delinquent employee even after his attaining the age of superannuation [Chairman-cum-Managing Director, Mahanadi Coalfields Limited vs Sri Rabindranath Choubey Civil Appeal No. 9693 of 2013]. 6.1 Having gone through the records of the case and the respective contentions of both the parties, we have a few observations to make. Firstly, the charge against the applicant of leaking the question paper of examination for recruitment and thereby tarnishing image of the railways is indeed a serious charge which, if proved, would be tantamount to grave misconduct on part of the applicant. 6.2 Second, there are 9 documents listed for proving the charge. Document at S. No. 1 is a special report dated 27.02.006 communicating the paper leak incident, in brief. S. No. 2 to 6 are news reports published by various newspapers on the paper leak. S. No. 7 & 8 are interim bail orders passed by Hon'ble High Court. S. No. 9 is applicant's letter intimating the respondents that he had been released on bail and requesting for deployment on duty. It is notable that the special report listed at S. No. 1 mentions a large number of hand written question papers recovered from the accused persons; however, such evidencesand Page 6 of 9 CAT,Lucknow Bench OA No. 332/00094 of 2010 Bedi Ram Vs. U.O.I. &Ors. associated witnesses have not been included specifically in the charge sheet.
6.3 Third, the enquiry report dated 20.03.2008 concludes that the entire case is based on newspaper reports and FIR lodged with police which cannot be accepted as solid evidence and, therefore, the charge against the applicant does not appear to have been proved.In this context, as we have noted above, the charge sheet itself was inadequate for not having included relevant evidence and witnesses. 6.4 Fourth, in terms of rule 10(1)(b) of the Rules, the disciplinary authority if it 'is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold further inquiry according to the provisions of rule 9, as far as may be.' Thus while the disciplinary authority is entitled to remit the enquiry report back to the enquiry officer for further enquiry, such remit is required to be effected through a written order containing reasons. No such written order of the disciplinary authority has been brought to our notice. 6.5 Fifth, once the matter was remitted back to the enquiry officer, he submitted a supplementary enquiry report dated 14.08.2008 recording the finding that the applicant was responsible for tarnishing the image of railways. From a perusal of the report dated 14.08.2008, it appears to us that the enquiry officer has not called the applicant for further enquiry, but reached a conclusion at variance with the conclusion reached in his report dated 20.03.2008 by reassessing the records of report dated 20.03.2008.
6.6 Sixth, the enquiry officer has reached his finding in report dated 14.08.2008 holding the applicant responsible for tarnishing the railway's image based on police enquiry, incarceration of the applicant, and grant of bail to him by Hon'ble High Court. In our view, the enquiry officer's finding in his report dated 14.08.2008 is perverse as it is not anchored Page 7 of 9 CAT,Lucknow Bench OA No. 332/00094 of 2010 Bedi Ram Vs. U.O.I. &Ors. on reasonable grounds and instead relies on allegations made against the applicant in the criminal case as proof of his guilt in the departmental proceedings.
6.7 Seventh, we do not find any infirmity in the manner of forwarding the enquiry report to the applicant by registered post at his residential address and pasting a copy at his work place. We hold that the disciplinary authority is not under obligation to send the enquiry report to the jail, if the delinquent official in incarcerated. It is for the incarcerated delinquent officer to make arrangements for transmission to him of important correspondence pertaining to disciplinary proceedings delivered at his declared address.
6.8 Eighth, we do not discern any disagreement of the disciplinary authority with the finding recorded in the enquiry report dated 14.08.2008 and, therefore, the requirement of recording tentative reasons for disagreement with the enquiry report and soliciting representation of the applicant thereon did not arise. 6.9 Ninth, as we have held the findings of enquiry report dated 14.08.2008 as perverse, we find the order dated 23.01.2009 of the disciplinary authority and the order dated 06.08.2009 of the appellate authority afflicted with the same perversity.
6.10 Tenth, considering the gravity of the offense alleged, the inadequacy of the charge-sheet and the procedural deficiencies observed in the disciplinary proceedings, it appears to us that the respondents can consider continuing departmental proceedings against the applicant by amending the charge sheet suitably, notwithstanding the lapse of time. Such departmental proceedings, if continued by the respondents, shall be deemed to be proceedings under rule 9 of the Railway Services (Pension) Rules, 1993.
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CAT,Lucknow Bench OA No. 332/00094 of 2010 Bedi Ram Vs. U.O.I. &Ors. 7.1 In view of the facts and circumstances above, the order dated 23.01.2009 of the disciplinary authority and the order dated 06.08.2009 of the appellate authority are quashed and set aside. It shall be open for the respondents to continue the departmental proceedings against the applicant from the stage of amending the charge sheet. 7.2 This OA is disposed of in above terms.
7.3 Pending MAs, if any, are also disposed of.
7.4 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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