Central Administrative Tribunal - Bangalore
B N Manjula vs South Central Railway on 17 July, 2023
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OA.No.170/00318/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00318/2023
DATED THIS THE 17TH DAY OF JULY, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
1. B.N. Manjula
W/o Late Sridharan
Aged about 51 years
Platin Exotica Apartment
Flat No. 004
#16/27, 1st Main Road,
Gnanabarathi,
Dubasipalaya
Kengeri Satellite Town,
Bengaluru 560 060
2. P.S. Gururaja
S/o Late Sanjeeva Murthy Rao
Aged about 53 years
#118, Maruthi Nilayam
6th Main, 6th Cross,
T.P. Kailasam Road,
Sapthagiri Extn
Tumkuru 572 102
3. Vijayalakshmi C
D/o Late Chamaiah
Aged about 60 years
#2221, 6th Cross,
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Siddartha Hostel Main Road,
Ashokapuram, Mysuru 570 008
4. C. Prakash
S/o K.N.C. Swamy
Aged about 54 years
#26, 7th Cross,
Jnanajyothinagar,
Bengaluru-56
5. C. Lokesha
S/o M. Chandrappa
Aged about 49 years
#66/B, Vasanthapura
Near Saibaba temple
Subramanyapura post,
Bengaluru - 61
6. Kusuma V.G
W/o Sashikumar
Aged about 53 years
#805, 31st cross, 4th T Block
Tilaknagar, Bengaluru - 41
7. Aruna Dinesh Lingayath
W/o Late Dinesh Lingayath
Aged about 45 years
#15/21, Lashkaribagh
Kamal Chowk,
Nagpur - 440 017
8. P. Liyakath Ali Khan
S/o P. Ghouse Khan
Aged about 58 years
#100/17/2/10, CMR Palli
Professor Colony, Kadappa.
9. T.S. Santhana Gopala Krishna
S/o T.V. Srinivasa Murthy
Aged about 56 years
#717, 23rd Cross, 4th Main
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Vidyaranyapuram,
Mysuru 570 008
10. A.C. Rani
W/o Josey. E.J
Aged about 55 years,
Edezhathu house,
Bishop Road,
Kumbalanghi post,
Cochin 682007
11. Lakshmipathy R
S/o M.C. Rajamanickam
Aged about 48 years
New No. 12, Old No. 26,
Anna pillai street, 3rd lane,
Sowcarpet post,
Chennai 600 001.
12. Bhavani Nageshwar Rao
W/o S. Nageshwara Rao
Aged about 50 years
# 1203/A Block
Purva palm beach apartment
Hanumanthappa layout,
Bengaluru-77
13. Mala R
W/o Ravishankar
Aged about 46 years
#15/16, Bank Colony 2nd Street
Madhavaram Milk Colony
Tiruvallur, Chennai 600 051
14. M.C. Nagaraja
S/o M.S. Chandrashekar
Aged about 49 years
#9, 3rd main, Brindavan layout,
Subramanyapura post,
Bengaluru 560 061
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15. Premlatha K
W/o B.S. Krishnarjuna Rao
Aged about 53 years
Behind Taluk Office,
Kammavari pete,
Hoskete, Bengaluru 562 114
16. Pushpalatha S. Nikkam
W/o Srikant V. Nikkam Saidapur
Aged about 52 years
Dandin Oni,
Near Ambhabhavani temple
Dharwad 580 008
17. Ramesh R
S/o Ramasamy
Aged about 48 years
# 1st Cross, Nagarahole circle
Veerabadreshwaranagar
Herohalli, Bengaluru-91
18. Rajalakshmi H.K
W/o Dr. M.R. Sundararaj
Aged about 51 years
#4822 Malola 2nd stage
Satagalli, Shakthinagar post
Mysuru 570 019
19. Ravi P
W/o Papanna C
Aged about 54 years
#267, 2nd Main, 3rd cross
Kogilu Layout
Yalahanka, Bengaluru 64
20. Shobha P.R
C/o Arunakshi
Aged about 47 years
Shrungagiri Sharada Nilaya
Pension Mohalla 2nd cross
Shivamogga-5
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21. Shyamala M.E
W/o Anand
Aged about 50 years
# Sree Ranga, 2nd Cross,
Mahalaksmi Nagar
Batwadi, Tumkuru 572 103
22. M. Madhavan
S/o Late P.S. Murali
Aged about 47 years
#76, Gokulam, 9th cross
Sir M.V. Nagar
Kowdanahalli Main Road,
Bengaluru-16
23. Animesh Das
Aged about 43 years
Bahardwaj palli, Burnpur
West Bengal - 713325
24. K. Kumar
S/o K. Ramachandraiah
Aged about 52 years
#306, Sri Krishna Residency
Upadaya Nagar,
Tirupati - 517 501
25. Koppu Subramanyam
S/o Late K. Subbaratnam
Aged about 51 years
#17-714-B, Thilaknagar
Guntakal 515 801
26. D. Narayana Rao
S/o D. Peddaiah
Aged about 54 years
# 17/560-B2, BSS colony
Guntakal-515801
27. J. Annalakshmi
W/o Anand Kumar
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OA.No.170/00318/2023/CAT/BANGALORE
Aged about 61 years
#5, N T Block,
Ooragam post
Kolar Gold Field - 563 120
28. Dilip Hembram
W/o Late Mangal Chandra Hembram
Aged about 52 years
Village: Babui Geria,
Baghasti post, Midnapore west district
West Bengal - 721 133 .... Applicants
(By Shri K. Shivakumar, Advocate)
Vs.
1. Union of India
Rep. by Executive Director (Establishment)
Railway Board,
Rail Bhavan, Raisina Road,
New Delhi 110 001
2. Principal Chief Personnel Officer
South Central Railway,
Rail Nilayam, Secunderabad,
Telangana 500 025
3. Principal Chief Personnel Officer
South Western Railway, Rail Soudha
Gadag Road, Hubballi 580 020
4. Senior Divisional Personnel Officer
South Central Railway
Divisional Office, Guntakal
Anandapur Dist,
Andhrapradesh - 515801
5. Senior Divisional Personnel Officer
South Western Railway,
Divisional Office, Hubballi,
Karnataka 580 020 ...Respondents
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O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs:
"(i) Declare the impugned orders No. G/P.563/RRB/SBC/Clerks/99 dated 30.05.2002 issued by fourth respondent and H/P.563/I/1/Vol.4 dated 27/28.01.2003 issued by fifth respondent (Annexure-A7) as arbitrary, illegal, unwarranted, misconceived and in violation of Articles 14 and 16 of constitution of India;
(ii) Set aside the impugned orders (Annexure-A7) issued for terminating the services of the applicants without examining the aspects required as per the observations of the Hon'ble Supreme Court in case of UOI and others vs. O. Chakradhar and when the allegations against the very members and staff of the RRB were dropped by closing the criminal cases against them which results in exonerating the applicants from all the charges levelled against them;
(iii) Direct the respondents to reinstate the applicants into service with immediate effect with all consequential benefits and
(iv) Grant any other relief or reliefs as deemed fit and proper in the interest of justice and equity."
2. The facts in brief as stated by the applicants are that they were selected to the post of Junior Clerk cum Typist by the Railway Recruitment Board (RRB), Bangalore in 1996 and were 8 OA.No.170/00318/2023/CAT/BANGALORE appointed in South Central Railway. Based on the preliminary investigation report of the CBI about the irregularities in the selection conducted by RRB and the orders of the Hon'ble Apex Court in Union of India and Ors vs O. Chakradhar, [Civil Appeal No. 1326/2002 (DD 19.02.2002)] the services of the applicants and others were terminated by the respondents in 2002/2003. As the efforts taken by the applicants to get reinstated in service did not yield any positive result, they approached the Hon'ble Apex Court in Writ Petition (C) No. 913/2022 under Article 32 of the Constitution of India. The Hon'ble Apex Court was pleased to reserve liberty to the applicants to approach the appropriate forum, accordingly, the applicants had submitted their representation dated 19.01.2023 before the General Manager, South Central Railway requesting reinstatement, the same has been disposed of, observing that the applicants may approach the appropriate forum for redressal of grievance as per the directions issued by the Hon'ble Apex Court and that the applicants' request for reinstatement into railway service cannot be considered. Accordingly, the grievance of the applicants has been disposed of. Hence, this OA.
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3. Learned counsel Shri. K Shivakumar submitted that the Hon'ble Apex Court rendered judgment in Chakradhar's case, supra, based on the CBI preliminary report. The preliminary CBI report points out certain irregularities committed by the Chairman of the RRB and his subordinates. But subsequently the said Chairman was exonerated by the special court. The closure report was filed by the CBI under Section 173 of the Criminal Procedure Code on 16.10.2001. This fact was not brought to the notice of the Hon'ble Apex Court. The orders of the Hon'ble Apex Court dated 19.02.2002 in Chakradhar's case makes it clear that the administration has to take action in terms of CBI findings. No accusation was made against the applicants and they were not accused in the CBI proceedings. The Chairman of the RRB at whose behest the irregularities are said to have been committed has not been prosecuted. Further, the information received under RTI from Railway Board reveals that no action has been taken against any of the accused whereas the innocent applicants have been punished with termination for no fault of them. The applicants cannot be subjected to a termination simpliciter in violation of Article 311 of the Constitution of India. Referring to the order of the Hon'ble Apex Court dated 04.01.2023 in Writ 10 OA.No.170/00318/2023/CAT/BANGALORE Petition (C) No. 913/2022, learned counsel submitted that notwithstanding the judgment dated 19.02.2002 passed in C.A. No. 1326/2002, Chakradhar's case, considering the subsequent developments, OA has to be entertained.
4. Learned counsel further argued that the persons accused by the CBI have been let off scot free. CBI has finally given the closure report based on which the proceedings were closed without punishing any of the accused as the allegations made against them were not proved. However, the innocent applicants and similarly placed other persons have been targeted, en masse termination orders have been issued for cancelling the selection after about 5 years. The right accrued to the applicants cannot be turned down arbitrarily at the whims and fancies of the respondents. Since the final CBI report was not considered by the Hon'ble Apex Court in Chakradhar's case, this application deserves to be decided on merits, notwithstanding the order passed by the Hon'ble Apex Court in Chakradhar, supra. 11
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5. We have carefully considered the submissions made by the learned counsel for the applicant and perused the material on record.
6. The Hon'ble Apex Court in Chakradhar, supra, has extensively dealt with the issue involved herein. The main ground of challenge to the termination order was that the respondent therein - Shri Chakradhar was not responsible for any kind of irregularity and in case it was committed by the RRB, he could not be held responsible for it; it could not be said that each and every selected candidate was involved in it, if at all. Hence, the decision to terminate the services of all the appointees en masse, cancelling the selection panel, was bad. The other ground of challenge was that proper show cause notice should have been individually issued to each selected candidate so as to enable him to submit his proper explanation in respect of the alleged irregularities. The Hon'ble Apex Court observed that the copy of the report of the CBI has been made available to the Court by the learned Additional Solicitor General and the same was served upon the learned counsel for the respondent earlier. On scrutinising the report of the CBI, it has been observed thus: 12
OA.No.170/00318/2023/CAT/BANGALORE "It first indicates that Railway Recruitment Board, Bangalore has not laid down any set procedure for holding of selection. The Chairman engages a printer for printing of the question paper and computer firms are given the job of scrutinizing the applications. The examination is conducted at different centres and answer-sheets are sealed and put in boxes in custody of the Chairman in his room. The answer-sheets are given to the computer firm for evaluation. The Board carries on a manual random check of the answer-sheets, and depending upon the result, further call letters are prepared by the computer firm. Since it was a recruitment for the post of Junior Clerk-cum-Typist, a candidate was required to have a typing speed of 30 words per minute in English or 25 words per minute in Hindi. As per relevant Circular the typing test is to be conducted after the written test and those who qualify in the typing test also, they alone are to be called for final interview. In the present case, however, according to the report the candidates during the course of their personal interview were required to give typing test before the members of the Interview Board within the time limit set for the purpose. No separate marks were awarded for typing nor the typing sheets have been preserved by the Board. No candidate was qualified or disqualified on the basis of the typing test. About 100 answer-sheets did not bear the signatures of Supervisor/Assistant Supervisor in the column provided for the purpose. It however, bore the signatures of the invigelator but none from the said candidates is reported to be selected. According to the report, on scrutiny of answer-sheets of 109 selected candidates, a clear difference of hand-writing was noticed in many answer-sheets. Out of these answer-sheets 14 were particularly taken out for the purpose of investigation. According to the report, answer-sheet packets were stealthily opened and the answers were filled up in the blank space left by the examinees. This happened during the period the bags of the answer-sheets were in the custody of the Chairman. So far as the interview is concerned, it is reported that the two 13 OA.No.170/00318/2023/CAT/BANGALORE Boards constituted for the interview did not have technical personnel as its member as per requirement. Each member was required to award marks to the candidate in the individual assessment sheets provided to them and ;average was to be worked out but no average was worked out. The column for interview marks was later on filled up as per wishes of the Chairman and Member-Secretary of the Board and signatures of the non official members were obtained on the summary sheet later on.
It is mentioned in the report that huge amount of money was taken for selecting the candidates but none is coming forward to indicate as to who and how much one paid for it for fear of being in trouble. It is further reported that non official Chairman of the Board made payment of printing of the examination paper etc. not to any firm but to one Gaja Raja Yadav. It may also be mentioned that according to the report a large number of applications were missing and postal orders of the missing applications were encashed and misappropriated and even before the closing date of receiving the applications, it started sending applications to the computer firm for their scrutiny. The C.B.I. has named five persons as accused in the report namely the Chairman of the Railway Recruitment Board, Bangalore, who is a non-official, the Member-Secretary of the Board, an officer of the Railways, one Shri Hanumanth Bhaiya, a Senior Clerk of the Railway Recruitment Board and Gaja Raja Yadav, the private person to whom payment had been made for printing of the question paper etc. As per the report of the CBI whole selection smacks of mala fide and arbitrariness. All norms are said to have been violated with impunity at each stage viz. right from the stage of entertaining applications, with answer- sheets while in the custody of Chairman, in holding typing test, in interview and in the end while preparing final result. In such circumstances it may not be possible to pick out or choose any few persons in respect of whom alone the selection 14 OA.No.170/00318/2023/CAT/BANGALORE could be cancelled and their services in pursuance thereof could be terminated. The illegality and irregularity are so inter-mixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable. Guilt of those who have been selected is not the question under consideration but the question is could such selection be acted upon in the matter of public employment? We are therefore of the view that it is not one of those cases where it may have been possible to issue any individual notice of misconduct to each selectee and seek his explanation in regard to the large scale widespread and all pervasive illegalities and irregularities committed by those who conducted the selection which may of course possibly be for the benefit of those who have been selected but there may be a few who may have deserved selection otherwise but it is difficult to separate the cases of some of the candidates from the rest even if there may be some. The decision in the case of Krishna Yadav (supra) applies to the facts of the present case. The Railway Board's decision to cancel the selection cannot be faulted with. The appeal therefore deserve to be allowed."
In the result, the appeal has been allowed and the orders passed by the Central Administrative Tribunal and the Hon'ble High Court of Andhra Pradesh were set aside upholding the termination of the services of the respondent therein. It has been further observed that the administration shall do well in taking action pursuing the 15 OA.No.170/00318/2023/CAT/BANGALORE matter in the light of the report of the CBI, so as to bring it to a logical conclusion.
7. The subsequent developments narrated by the applicant are as under:
i) The applicants having approached the Hon'ble Apex Court in Writ Petition No. 913/2022, the Hon'ble Apex Court upon being convinced that the rights of the applicants have been adversely affected, vide order dated 04.01.2023, granted liberty to approach the appropriate forum notwithstanding the order passed in Chakradhar's case.
ii) The applicants having applied for direct recruitment against Notification issued by the RRB, Bengaluru, after satisfying all the eligibility criteria, were issued with appointment order for joining Railways. Thereafter, they had put in their sincere efforts in the day-to-day working in the service period of 5 to 8 years to the utmost satisfaction of the administration.
iii) The applicants have been erroneously terminated for no fault on their part.16
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iv) The applicants have put in more than 5 years of valuable service. Chakradhar's case ought not to have been applied to the applicants generally to terminate the applicants and similarly placed persons en masse.
v) The accused in the CBI report have not been imposed with any penalty, on the other hand, the applicants and other similarly placed persons have been punished terminating them without holding fair inquiry.
vi) Final report of the CBI dated 16.10.2001 was not placed before the Hon'ble Apex Court in Chakradhar's case.
8. The petitioners in Writ Petition No. 913/2022 had challenged the order/communication dated 23.01.2020 issued by the Respondent No. 2 therein. The challenge to the said communication was based on the letter dated 27.11.2019 issued by the General Manager, South Western Railways whereby the South Western Railway sought permission from the Railway Board for re-appointing 90 candidates selected and appointed in the category of Junior Clerk against employment Notification No. 17 OA.No.170/00318/2023/CAT/BANGALORE 04/95 of RRB, Bangalore. Considering the said request, RRB vide letter dated 23.01.2020 has given reply as under:
"2. It is informed that the entire panel was cancelled and those candidates who joined the Railways, their services were terminated due to irregularities in the recruitment conducted by RRB/Bangalore. In terms of Board's letter dated 25.02.1999 it is mentioned that RRB/Bangalore had not subjected the candidates to typewriting test, which was an essential requirement, besides there being certain serious irregularities in the conduct of the examination.
3. The CBI's report dated 16.10.2001 stated that CVC has advised dropping of the case against A1 i.e. Mohammad Shafi, the then Chairman RRB/Bangalore. It has also been stated in the CBI's report that the accused public servants (from A2 to A4) who had also committed gross misconduct contravened the Rule 3 (1)(i)(ii) & (iii) of the Railway Services (Conduct) Rules, 1960 matter is to be referred to the appropriate Railway authority for initiating regular departmental cation for Major Penalty against them.
4. Based on the report of the CBI the Hon'ble Supreme Court vide their orders dated 19.02.2002 set aside the orders passed by the Tribunal and the High Court and upheld the termination of the services of the candidates by Railways.
5. In view of Hon'ble Supreme Court's above orders, no further action is desirable."
9. Learned counsel for the applicant submitted that the closure report under Section 173 of Criminal Procedure Code filed by CBI dated 16.10.2001 was not placed before the Hon'ble Apex Court. The said closure report dated 16.10.2001 reads thus: 18
OA.No.170/00318/2023/CAT/BANGALORE "FILING OF CLOSURE REPORT U/S 173 Cr.PC It is respectfully submitted that,
1. I am the IO of the above case, the FIR of which is pending before this court. As such, I am familiar with the facts of this case.
2. The investigation in this case is completed and the evidence collected during investigation is found not found sufficient to launch prosecution against the accused persons in Court-of-Law.
3. Since the accused public servants (A2 to A4) had also committed gross official misconduct by their above acts and thereby contravened the Rule 3 (1)(i)(ii) & (iii) of the Railway Servants (Conduct) Rules, 1960, matter has been referred to the appropriate Railway Authority for initiating Regular Departmental Action for Major penalty against them. The Central Vigilance Commission has advised dropping of the case against A1 Mohammed Shafi.
4. Now, there is no other action pending to be taken in this case and therefore, the closure report u/sec. 173 Cr.PC is being filed herewith alongwith Xerox copies of certain relevant documents and statements of witnesses as per Annexure I & II.
PRAYER It is, therefore, humbly prayed that the Hon'ble Court may be pleased to order for the closure of this case and also for the return of all seized documents to the parties concerned." 19
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10. The Hon'ble Apex Court has categorically in Chakradhar's case observed that the administration shall do well in taking action pursuing the matter in the light of the report of the CBI, so as to bring it to a logical conclusion. There is no change in the position even as per the report dated 16.10.2001 except dropping the case against Accused No. 1. If, for whatever reasons, the proceedings initiated against the Accused No. 1were dropped and no action was taken against Shri Mohammad Shafi, Accused No. 1, ex-Chairman, RRB, Bangalore, Shri Hanumanthiah, Shri Gaja Raja Yadav or penalty of compulsory retirement was issued against the accused Shri P.S. Ramesh, major penalty charge sheet was issued to Shri Subba Rao, that would not annul the order passed in Chakradhar's case, supra, thereby validating the selection process. As long as the order of the Hon'ble Apex Court in Chakradhar's case subsists, which indeed has considered the illegality and irregularity committed by those who conducted the selection and held that the Railway Board's decision to cancel the selection cannot be faulted with, merely for the reasons that all the accused were not punished and the General Manager, South Western Railway, opined to reinstate the terminated candidates, no vitiated selection process could be held valid. 20
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11. By the opinion expressed by the General Manager, South Western Railway dated 27.11.2019 addressed to the Member Staff, Railway Board, no fresh rights have accrued to the applicants to seek for reopening of 20 years old claim. Indeed the request of the General Manager has been rejected by the Railway Board giving valid reasons vide order dated 23.01.2020. It is unrealistic to expect a government to keep the posts vacant for more than 20 years that too when the matter has reached finality by virtue of the order passed by the Hon'ble Apex Court in Chakradhar, supra. Flogging a dead horse would not come to the rescue of the applicants based on the opinion of the General Manager which has no statutory force.
12. For the reasons aforesaid, the OA lacks merit and accordingly stands dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/