Central Administrative Tribunal - Delhi
O.P. Shukla S/O Shri V.R. Shukla vs Union Of India (Uoi) (Through The ... on 29 March, 2007
ORDER Mukesh Kumar Gupta, Member (J)
1. Validity of penalty order dated 28.9.2006 of reduction from the stage of Rs. 9,000/- to the stage of Rs. 8825/- in the time scale of Rs. 5500-9000 for a period of 4 months without having the effect of postponing future increment as well as minor penalty proceedings dated 31.1.2004 is impugned in the present application.
2. Admitted facts of the case are that vide Memorandum dated 13.1.2004, under Rule 11 of Railway Servants (Disciplinary & Appeal) Rules, minor penalty proceedings were initiated against the applicant alleging that he claimed false under-rest. He was entitled to under rest to 1.35 hrs. instead of claim laid for 9.40 hours. Said allegations were denied on 16.2.2004. Disciplinary authority vide order dated 31.3.2004 recording the finding that he: 'failed to submit' representation in response to the aforementioned Memorandum proceeded with ex parte decision and imposed upon him the penalty of reduction to a lower stage of Rs. 5500/- in the time scale of Rs. 5500-9000/- of Rs. 9000+175 for a period of six months without postponing future increments. On a statutory appeal preferred to Sr. Divisional Operating Manager, Northern Railway, Moradabad on 19.5.2004, the said appellate authority passed the order dated 11.10.2004 though rejected his contention that the Divisional Operations Manager, Moradabad was not competent to inflict the said penalty, however, remitted the case back to disciplinary authority with direction that his reply dated16.2.2004 be considered and fresh order be passed. The said order was passed basically for the reason that the disciplinary authority over looked his reply to the Charge Memorandum. In pursuance thereof, the disciplinary authority issued fresh Memorandum dated 2.11.2004 on the same allegations, but this time Station Superintendent, Moradabad was shown as a witness. Accordingly, Presenting Officer as well as Enquiry Officer was appointed on 9.12.2004. An oral enquiry was held wherein he specifically raised plea that the fact finding enquiry was conducted by Sr. DMO through an Inspector had submitted the findings that he had rightly claimed the under-rest claim and, therefore, there was no basis and justification to initiate such an enquiry once again. Over looking such objection, the Enquiry Officer submitted his report dated 30.6.2006 holding that the charge leveled was proved based on his own statement and documents examined therein. It was also noted therein that he did not submit defence statement. Copy of the said enquiry report was made available and he submitted representation against the said findings, which was acknowledged on 18.8.2006. He also made a request to inspect the file of entire disciplinary proceedings record at that stage, which had not been agreed to being no provision existing in the rules for inspection of files or documents after submission of enquiry report by the Enquiry Officer. Disagreeing with the contentions raised, the disciplinary authority concluded that the charge of claiming of under rest allowance was substantiated. During the examination in chief particularly to reply to question No. 10, he admitted that in the mileage bill, the arrival time of 3074 Dn. at Moradabad was wrongly shown as 1730 hrs. though the actual arriving time was 1700 hrs. The said irregularity/fraud resulted in claiming of 30 minutes extra claim. In the circumstances, a punishment of reduction to one stage lower i.e. Rs. 8825/- from present basic pay of Rs. 9000/- for 4 months in the same time scale (Rs.5500-9000) was imposed without postponing his future increments.
3. Vide order dated 21.12.2006 in MA No. 2363/2003, respondents were restrained from 'proceeding further in the disciplinary proceedings', & vide order dated 09.01.2007, the respondents were restrained 'from giving effect to the second penalty'. Alleging willful disobedience &contumacious violation of aforesaid orders, CP No. 41/2007 was preferred. After undergoing the first penalty, his basic pay was Rs. 9350/- (Rs.9000/- i.e. maximum of scale + two stagnation increments of Rs. 175/- each). However, as per impugned order dated 28.09.2006, same has been shown as Rs. 8825/-, which is illegal, unjust and arbitrary. The aforesaid orders and action of respondents have been impugned in present proceedings.
4. Shri G.D. Bhandari, learned Counsel strenuously urged the following:
Since no misconduct was found by the fact finding enquiry, which too had been done as per the orders of the appellate authority, there was no justification in framing the charge and initiating departmental proceedings, therefore, the entire action is rendered illegal, non-est, which cannot be sustained in law.
Earlier disciplinary authority imposed the punishment vide order dated 31.3.2004 wrongly recording that applicant did not submit representation against Memorandum dated 13.1.2004. The said findings were reversed by appellate authority vide order dated 11.10.2004 and the matter was remitted back with a limited directions to disciplinary authority, namely, that 'reply dated 16.2.2004 be considered and fresh orders be passed in the case'. Therefore, the disciplinary authority exceeded in its jurisdiction in issuing a fresh charge Memorandum though on same facts, allegations and material.
Earlier disciplinary authority had imposed the punishment of reduction to a lower stage in the same time scale from the stage of Rs. 9000+175 to the stage of Rs. 5500 for a period of 6 months, which penalty had been operated, and he was paid the pay and allowances from May, 2004 onwards at the basic pay of Rs. 5500 till October 2004. Producing original pay slips for the said period, learned Counsel tried to justify said contention. The disciplinary authority once again imposed the penalty vide order dated 28.9.2006, which too had been given effect to and he was paid at the reduced rate from September-December, 2006. Original pay slips were also produced to establish the said contention. In the circumstances, learned Counsel contended that applicant suffered double jeopardy and two punishments passed on same incident & allegation, which is impermissible in law.
Retiral benefits have not been paid till date though he attained the age of superannuation on 31.1.2007. Vide order dated 21.12.2006, Tribunal observed that any penalty inflicted shall remain subject to final out come of the case and vide further order dated 9.1.2007 as an interim measure, the respondents were restrained from giving effect to the second penalty. Alleging willful and deliberate disobedience of the said orders, CP 41/2007 was instituted. Drawing our attention to reply para 6 in the said CP, it was pointed out that respondents averred that: 'payment of final settlement dues will be arranged to the applicant after decision of this case'. Learned Counsel strongly contended that such an approach on the part of respondents shows high handedness. Settlement dues cannot be postponed till such an eventuality.
Respondents fabricated certain documents in the shape of communication dated 28.9.2006 (appended to reply affidavit to CP) whereby the penalty imposed vide order dated 31.3.2004 has been treated as 'cancelled.
5. The respondents strongly contested the claim laid. Preliminary objections regarding pre-mature OA as well as filing Civil Suit No. 158/2005 challenging the disciplinary proceedings before the learned Court of Civil Judge, Moradabad were raised. However, during the course of arguments as the matter was heard on merits too, learned Counsel, rightly in our opinion, gave up the said contentions. As well as filing of Civil Suit is concerned, under the law such proceeding is a nullity. Regarding objections about pre-mature OA, it was pointed out that applicant preferred present OA without exhausting the alternative remedy available to him. No statutory appeal has been filed against the disciplinary authority's order dated 28.9.2006.
6. On merits it was pointed out that the Enquiry Officer conducted the enquiry after following due procedure of rules & law and returned his findings based on evidence and material brought on record. An oral enquiry was held as any penalty imposed might have an adverse effect over his pension particularly when he was about to attain the age of superannuation. In any case, applicant was afforded an opportunity of hearing. He cross-examined the witness and no prejudice was caused. It remains undisputed that allegation made and the incident in question was same as of Charge-Memorandum dated 13.1.2004. During the first sitting on 3.8.2005, he was asked whether he needs the facility of defence assistant. He categorically denied such offer. The disciplinary authority took a lenient view and imposed the penalty in question after considering all aspects of the case.
7. We heard learned Counsel for parties and perused the pleadings carefully. We have also given thoughtful consideration to the contentions raised by them.
8. Basically two questions arise for our consideration. Firstly, whether respondents have restored applicant's pay & allowances after cancelling the first penalty imposed vide order dated 31.03.2004, as reiterated by them vide communication dated 28.09.2006. Second question which needs consideration is whether penalty imposed vide order dated 28.09.2006 had been just, reasonable or needs interference?
9. As far as first question is concerned, since there had been complete silence on the part of respondents in their counter affidavits either in the reply filed to OA or C.P., this Tribunal directed them, vide order dated 20.03.2007, to file an affidavit highlighting the manner in which the penalty of reduction of pay imposed vide order dated 31.03.2004 was restored to him on passing appellate authority's order dated 11.10.2004 or after cancelling said penalty in specific once again vide order dated 28.09.2006. This was required to be done positively by 26.03.2007. We may note that respondents have not filed such an affidavit during the prescribed time limit. As we have already noticed hereinabove that as per pay slips for the months May - October, 2004, he was paid pay & allowances at reduced rate taking into consideration the penalty imposed vide order dated 31.03.2004. Applicant maintained his stand and reiterated even during the course of argument that said penalty order dated 31.03.2004 was operated upon and he has not been restored to the position prior to imposition of said penalty, particularly on cancellation of said penalty vide orders date 11.10.2004 as well as 28.09.2004 (Annexure R-1 to reply). In the absence of specific and clear stand on the part of respondents on this aspect, and further the fact that they have not filed affidavit as required, we are of the view that applicant is liable to be restored to the position in which he would have been had the penalty order dated 31.03.2004 not been issued or implemented.
10. As far as second question as noticed hereinabove is concerned, we may note that admitted facts of the case are that penalty order dated 28.09.2006 reducing his pay to a lower stage in same time scale from the stage of Rs. 9,000/- to Rs. 8,825/- in pay scale of Rs. 5500-9000/- for a period of four months has not been appealed, though as per para 2 (i) of said order, it was specified that applicant may submit his appeal within stipulated period. In other words, applicant had not exhausted the statutory remedy available to him. Under these circumstances, we are confronted with a situation to adjudicate said order itself on the basis of documents and material placed on record. Contentions raised before us have been, firstly, that initiation of proceedings vide charge memorandum dated 2.11.2004 was illegal and unjustified, as the penalty imposed earlier had already been operated upon and consequently such an action would tantamount to double jeopardy. In so far as plea of double jeopardy is concerned, we are unable to accede to said contention for more than one reasons, viz., the penalty imposed earlier had already been quashed and set aside vide appellate order dated 11.10.2004. It is not in dispute that the allegation contained vide earlier memorandum dated 13.01.2004 as well as fresh Memo dated 2.11.2004 are based on same allegations and material. There is no difference in the gravamen of charge. We may note that recently Hon'ble Supreme Court in Indian Drugs & Pharmaceuticals Ltd. v. R.K. Shewaramani had the occasion to consider the issue of issuing numerous charge sheets based on same allegation and it was held thus:
10. There is no requirement in law that for continuing with fresh proceedings the charge sheet issued must indicate that the previous proceedings pending have been given a go by. The employer is free to proceed in as many as departmental proceedings as it considers desirable. Even in a hypothetical case in two of the departmental proceedings the finding is in favour of the delinquent employee, yet in another departmental proceeding finding adverse to the delinquent officer can be recorded. Merely because the two proceedings were pending, that did not in any way stand on the way of the employer to initiate another departmental proceeding and that too on the basis of an amended provision which came into effect after initiation of the previous departmental proceeding.
11. We find justification and reasons in the contention raised by respondents that though proceedings were initiated by issuing fresh Memorandum dated 02.11.2004, but the fact remains that it was for minor penalty. Oral hearings were given to him & he was afforded reasonable opportunity of being heard, as any penalty imposed in said proceedings might have an effect over applicant's pension as he was due to attain the age of superannuation on 31.01.2007. On perusal of departmental proceedings, we are satisfied that principles of natural justice were observed and applicant had been provided an opportunity of hearing and he cross-examined the witness. Concerned authorities, based on material placed and documents available on record, in our considered view, rightly came to the conclusion that the charge was proved against him. Disciplinary authority vide impugned order specifically stated that during examination-in-chief, in reply to question No. 10 applicant admitted that in the mileage bill, the arrival time of 3074 Dn. At Moradabad was wrongly shown as 17.30 hours though the actual arrival time at Moradabad was 17.00 hrs. This irregularity/fraud resulted in extra claim of under-rest charge on Train No. 3006Dn on 19.11.2003. Moreover his defence was not found to be convincing and acceptable. Applicant's request for inspection of file after submission of enquiry report certainly was not justified and supported by rules. Copy of the said report was made available and he ultimately submitted his reply on 04.08.2006.
12. On careful perusal of enquiry report, which is placed on record, we do not find any reason and justification to state that same is based on no evidence, as projected. The scope of exercise of power of judicial review in disciplinary proceedings is well settled. It is settled law that Courts/Tribunal, in judicial review, cannot re-appreciate evidence and substitute their own findings for that of concerned authorities. In the circumstances, we do not find justification in the contention raised by applicant.
13. In view of the discussion made hereinabove, we do not find any justification and reasons to interfere in the departmental enquiry proceedings initiated vide charge memorandum dated 02.11.2004, which resulted in imposition of penalty vide order dated 28.09.2006. Before parting with the case, we would like to observe that respondents' stand vide counter affidavit that payment of final settlement dues will be arranged after the decision of the Court, particularly when applicant had already attained the age of superannation on 31.01.2007 is not justified and cannot be accepted. A person, who retires on attaining the age of superannuation is entitled to terminal benefits in terms of specific provisions of rules and such payment cannot be postponed or delayed merely because the penalty inflicted at the end of service career is under challenge. Moreover, we would like to observe that though the penalty order dated 28.09.2006 states that applicant's pay has been reduced from the stage of Rs. 9000/- to Rs. 8825/- in pay scale of Rs. 5500-9000/- for a period of 4 months, but respondents own averment in the Contempt Petition shows that he had been paid two stagnation increments of Rs. 175/- each and his basic pay was Rs. 9350/-, and not Rs. 9000/-. Therefore, this controversy should also be settled.
14. As far as C.P. No. 41/2007 is concerned, on consideration of entire matter, we do not find any reasons and justifications in passing any further order, particularly for the reasons that the interim order dated 09.01.2007 was passed, restraining respondents from giving effect to the second penalty order dated 28.09.2006, which by then, had already been operated upon. As such, we do not find any willful disobedience on the part of respondents.
15. In these circumstances and in view of discussion made hereinabove, our conclusions are as follows:
There is no illegality in the order dated 28.09.2006 imposing the penalty;
There is no justification in initiating any contempt action against respondents for alleged willful disobedience of interim order dated 09.01.2007;
Respondents should restore applicant's pay & allowances which they have already recovered by operating first penalty order dated 31.03.2004, particularly when the said penalty order was quashed and set aside by the appellate on 11.10.2004 and reiterated on 28.09.2006;
Respondents are also directed to release applicant's due terminal benefits within a period of 45 days from the date of receipt of a copy of this order; and OA & CP stand disposed of. There shall be no order as to costs.