Central Administrative Tribunal - Lucknow
Subhash Chandra Meena Aged About 31 ... vs Union Of India Through General Manager on 31 August, 2015
Central Administrative Tribunal, Lucknow Bench, Lucknow Original Application No. 221/2012 Reserved on 5.8.2015 Pronounced on 31.8.2015 Honble Sri Navneet Kumar, Member (J) Honble Ms. Jayati Chandra, Member (A) Subhash Chandra Meena aged about 31 years son of Sri Ram Gopal Meena at present working as Track Man (Group D) in the office of Senior Section Engineer (P.Way) Aishbagh, Lucknow. Applicants By Advocate:- Sri Surendran P Versus 1. Union of India through General Manager, N.E. Railway, Gorakhpur. 2. D.R.M., NE Railway, Ashok Marg, Hazratganj, Lucknow. 3. Additional Divisional Railway Manager, Lucknow Jn. N.E.Railway, Ashok Marg, Lucknow. 4. Senior Divisional Engineer III, N.E. Railway, Ashok Marg, Lucknow. 5. Senior Assistant Divisional Engineer (Line), NE Railway, Lucknow. 6. Sri Sanjog Srivastava, Enquiry Officer, Section Engineer (Planning), Office of the DRM, Ashok Marg, Lucknow. Respondents By Advocate: Sri Rajendra Singh ORDER
BY HONBLE SRI NAVNEET KUMAR, MEMBER (J) The present O.A. is preferred by the applicant u/s 19 of the AT Act, with the following prayer:-
i) quash the orders dated 7.10.2010, 13.10.2010, 25.5.2011 and 4.6.2011 contained in Annexure No. 1 to 4 to this original application and a direction be issued to restore his original pay.
ii) to issue a direction to pay the salary with effect from 23.1.2009 and 16.2.2009 during the period the applicant was suspended as no subsistence allowance was paid to the applicant.
iii) issue any other order which this Honble Court deems just and proper.
2. The brief facts of the case are that the applicant while working with the respondents organization was charge sheeted vide charge sheet dated April, 2009. Subsequently, enquiry officer was appointed and enquiry officer submitted the report to which the applicant submitted reply and after considering the reply of the applicant, the disciplinary authority passed the orders of removal from service. The appeal so preferred by the applicant was also rejected by the Appellate Authority by means of order dated 13.12.2010 and soon thereafter, the applicant has also preferred the revision petition and revision petition so submitted by the applicant was also rejected by the revisionary authority.
3. The learned counsel for the applicant submits that the order passed by the Disciplinary Authority, Appellate Authority and Revisionary Authority are non-speaking order and has also indicated that the respondents have not followed the due procedure and also ignored the Rule 9(17) of Railway Servants (Disciplinary and Appeal) Rules,1968. Not only this, it is also submitted by the applicant in his reply to the enquiry officers report and in his appeal that the authority have not considered the Rule 9(17) of Railway Servants (Disciplinary and Appeal) Rules,1968 as such, it requires interference. Learned counsel for applicant also argued and pointed out that in the absence of not considering these facts, the impugned orders are bad in the eyes of law and is liable to be interfered with.
4. On behalf of the respondents, detailed reply is filed and through reply, it is indicated by the respondents that objection so submitted by the applicant was duly considered and the disciplinary authority after considering all relevant material available on record passed the order and there is no illegality in the same. Apart from this, it is also indicated by the learned counsel for respondents that there is no procedural irregularity in conducting the enquiry as such it does not require any interference by this Tribunal and O.A. is liable to be dismissed out-rightly.
5. On behalf of the applicant, Rejoinder Reply is filed and through Rejoinder Reply, mostly the averments made in the O.A. are reiterated and denied the contents of counter reply.
6. Learned counsel for applicant has also relied upon three decisions of coordinate benches of this Tribunal, passed by the Calcutta Bench, Jabalpur Bench and one passed by the Madras Bench:-
i) Dasharathi Pachadhyayee Vs. Union of India and others reported in (1989) 11 Administrative Tribunals Cases 730.
ii) C. Burrows Vs. Union of India and others reported in (1989) 11 Administrative Tribunals Cases 787
iii) M.D. Sukumaran Vs. Union of India and two others reported in (1988) 8 Administrative Tribunals Cases 424.
7. Heard the learned counsel for parties and perused the records.
8. The applicant who was working with the respondents organisation was charge sheeted vide charge sheet dated April, 2009. Along with the charge sheet, list of witnesses and list of documents were also shown. The enquiry officer was appointed and applicant submitted his reply vide reply dated 7.3.1990 through which the charges so levelled against the applicant stands proved. The applicant submitted the reply to the enquiry report and through reply, he has categorically indicated that Rule 9(17) of Railway Servants (Disciplinary and Appeal) Rules,1968 are being violated , as such it requires interference. For ready reference Rule 9(17) of Railway Servants (Disciplinary and Appeal) Rules,1968 is reproduced below:-
(17) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved, shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer, if any, and may be cross-examined by or on behalf of the Railway servant. The Presenting Officer, if any, shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
9. The disciplinary authority was under obligation to observe and discuss the provision of Rule 9(17) of Railway Servants (Disciplinary and Appeal) Rules,1968 and also thereafter shall pass an order but the disciplinary authority without considering all these facts, passed the order of removal. The applicant subsequently prefers the appeal and revision as well and both, the appellate as well as revisionionary authority rejected the appeal and revision of the applicant.
10. As observed by the coordinate bench of this Tribunal at Calcutta in the case of Dasharathi Pachadhyayee Vs. Union of India and others (supra), the Tribunal observed as under:-
7. There are certain material on record from which we cannot but hold that the Enquiry Officer had indeed taken a dubious role in holding the enquiry against the applicant. The first thing which we like to mention is that at the very outset he had examined this applicant. From Annexure 4(a) to the application, we find that as per his direction the presenting officer examined the applicant first on 2.6.1984 i.e. the date when the first sitting of the enquiry was held. It is not known to us as to why the applicant was examined first when in Annexure IV to the charge sheet there are as many as four witnesses names who were to be examined in proof of the charges levelled against the applicant. The matter had not ended there. After examination of the applicant by the presenting officer the Enquiry officer himself had put him some questions. It is curious that long after the date of examination of the applicant, i.e. on 2.6.20184, the first witness for the prosecution was examined and that was on25.2.1984. The procedure is unknown to any law. It can be very well argued by the side of the applicant that after getting the details from him the authority had tutored these witnesses to suit its purpose. From Annexures a-4(b), A-4(c) , A-4(d) and a-4 (e) we find that after recording with the evidence of the charge sheet witnesses for the prosecution the Enquiry Officer had sent a copy each of their depositions to the Sub-Divisional Inspector of Post Offices, Contai, 1st Division, who was the disciplinary authority of the applicant. In doing so the Enquiry Officer showed his bias to oblige his superior authority. In our opinion that action and the conduct of the Enquiry Officer do not at all show that he was impartial. Besides, as we have mentioned earlier the Enquiry Officer had played the role of a Judge as well as of a prosecutor. It is true that the Enquiry Officer can put questions to a delinquent. But that should not be done at the commencement of the enquiry and before examining the prosecution witnesses. That apart no rule ever authorities any enquiry officer toput such incriminating questions to a delinquent which had been put by this enquiry officer to this applicant. That shows his bias once again, and his obligation to his higher authority. Considering the aforesaid we are of the opinion that the enquiry proceedings is wholly vitiated and as such it is liable to be quashed.
11. The Jabalpur Bench of this Tribunal in the case of C. Burrows Vs. UOI and others (supra) observed as under:-
9. It is the duty of the Enquiry Officer under sub Rule (17) of Rule 14 of the CCS (CCA) Rules, 1965 not only to summon the defence witnesses, but also to write to their employer for a direction that the witnesses should appear before him for the purpose of examination in the inquiry. In the present case, witnesses Anant Ram Constable and Sri S.K. Banerjee, Sub Inspector were serving in the Police Department of this very Distt. Jabalpur and they could have been summoned through the Superintendent of Police or the Inspector General. It was unjustified on the part of the Enquiry Officer to leave it to the applicant only to produce these witnesses on his own responsibility. A similar view has been expressed by Punjab an Haryana High Court in the case of Shiv Dutt Vs. State of Punjab. Therefore, we hold that in this case there has been a denial of opportunity to adduce his defence evidence to the petitioner infringing on the principles of natural justice. We accordingly quash the impugned order of punishment dated 26.2.1985/1-3-1985, as confirmed in appeal and remand the case to the disciplinary authority for further enquiry by the enquiry officer after summoning the defence witnesses of the applicant.
12. The Madras Bench of this Tribunal in the case of M.D. Sukumaran Vs. Union of India and two others (supra) observed as under:-
8. Similarly, the conduct of the Inquiry Officer in cross-examining the applicant in detail even before the departmental witnesses are examined is also violative of Rule 9913) (14) and (15) of the Disciplinary & Appeal Rules. The non-consideration of the applicants claim that he must be taken to belong to Kurumans community as his mother was from that community has not been considered by the Inquiry Officer and he merely relied on the community to which the applicants father belonged. Before us the applicant has produced the SSLC certificate (which is marked as Exhibit A) of his father which shows that he belongs to Kurava community which is admittedly a ST. Therefore, if an opportunity has been given to the applicant before the Thasildar proceeded to cancel his claim that his father belongs to Kurava community and his mother to Kurumans community. Merely on the basis of the Thasildars letter cancelling the earlier community certificate the applicant cannot be treated as not belonging to ST.
9. We find from the records that the applicant- the charged official was examined on 28.6.1984 in considerable detail even before the departmental witnesses were examined. This appears to be contrary to the Rule 9913), (14) & (15) of the Railway Servants (Discipline and Appeal) Rules, 1968. Rule 9913) contemplates that it is only when the case for the disciplinary authority is closed, the charged official shall be required to state his defence orally or in writing. Rule 9(14) says that it is only after the charged official has stated his defence he could be required to produce his evidence. At this stage, the charged official can examine himself as a witness if he so prefers and the inquiring authority may also put such questions as it thinks fit. Rule 9(15) says that after the charged official closes his case the inquiring authority may, if the railway servant has not examined himself, generally question him on the circumstances appearing against him for purpose of enabling the charged official to explain any circumstances appearing against him.
13. Apart from this, it is observed by the Honble High Court in the case of H.S. Srivastava Vs. Special Land Acquisition Officer reported in 1993(11) LCD 441 pleased to observe that An order adversely affecting an employee has to be a speaking order.
14. Apart from this, the Honble Apex Court in the case of Ram Chander Vs. Union of India and others reported in 1986(2) SLR, 608 also observed that Appellate Authority is under obligation to record reasons for its decision.
15. The bare perusal of the entire record shows that the disciplinary authority as well as revisionary authority has passed the order without application of mind and in a very casual manner and also not discussed the objections raised by the applicant in his reply to the enquiry officers report as well as in the appeal, as such it requires interference by this Tribunal.
16. The impugned orders dated 7.10.2010, 13.12.2010, 25.5.2011 and 14.6.2011 i.e. order passed by the disciplinary authority, Appellate authority , Revisionary Authority and Review Petition are quashed. The matter is remanded back at the stage of Disciplinary Authority to reconsider the entire material afresh and pass a reasoned and speaking order within a period of three months from the date, the certified copy of this order is produced and decision so taken be communicated to the applicant.
17. With the above observations, O.A. is partly allowed. No order as to costs.
(Jayati Chandra) (Navneet Kumar) Member (A) Member (J) HLS/-