Central Administrative Tribunal - Hyderabad
Majji Ananda Rao vs Union Of India And Also Another Judgment ... on 23 December, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH : AT HYDERABAD OA No.817 of 2007 Date of Order : 23.12.2008.
Between:
Majji Ananda Rao, S/o. Someswararao, aged about 35 years, presently working as Gangman, East Coast Railway, Gajapathinagaram, Visakhapatnam Division, Vizainagaram District. .......Applicant And
1. The Assistant Divisional Engineer, East Coast Railway, Vizainagaram;
2. The Divisional Engineer, East Coast Railway, Visakhapatnam. ....Respondents Counsel for the Applicant : Mr. P. Rama Brahmam Counsel for the Respondents : Mr. V. Rajeswara Rao, SC for Rlys.
CORAM:
THE HON'BLE MR.JUSTICE P. LAKSHMANA REDDY,VICE-CHAIRMAN THE HON'BLE MR.R. SANTHANAM : MEMBER (ADMN) (Order per Hon'ble MR.JUSTICE P. LAKSHMANA REDDY,V.C. )
---
Heard Mr. P. Rama Brahmam, learned counsel for the applicant and Mr. V. Rajeswara Rao, learned counsel appearing for the respondents.
2. This application has been filed challenging the impugned order of termination dated 21.11.2007 passed by the Respondent No.1.
The relevant facts of the case in brief are as follows:-
The applicant was appointed as Gangman on 27.2.1996 in the vacancy of S.T. Candidate in the Divisional Railway Manager, South Central Railway, Vijayawada. While he was working so, on 10.10.2007, the Respondent No.1 issued a show cause notice to the applicant stating that the District Collector, Srikakulam in his proceedings dated 25.7.2005 informed the department that the Caste Certificate referred to by the Railways has been got inquired into by the Mandal Revenue Officer, Sarubujjili and Revenue Divisional Officer, Srikakulam, and the enquiry reveals that the applicant and his family were migrated to Tanuku of West Godavari District long back and the applicant belongs to VADDI caste i.e. BC (A) but does not belong to Bentho Oriya Caste ( ST) and the certificate produced by the applicant was not issued by the Mandal Revenue Officer, Sarubujjili. Hence, the department observes that the caste certificate produced by the applicant is bogus one and the applicant secured appointment against S.T. quota by misguiding the administration and therefore the department proposed to dismiss his services from Railways with immediate effect and applicant is advised to submit his representation, if any.
3. The applicant received the said notice and submitted his reply on 22.10.2007 stating that he was served with the notice on 13.10.2007 and he is not well read and he wished to submit all important documents in the matter and he requested 15 days time for the purpose of filing his representation in detail along with important evidence in support of his claim. As the applicant did not submit any representation, on 21.11.2007 the 1st respondent passed orders dismissing the applicant from Railway Service with immediate effect and informed him that he can prefer an appeal, if he so desires to the DEN, Visakhapatnam as per the provisions of Rule 17 to 20 of RS ( D& A) Rules 1968 within a period of 45 days. Aggrieved by the said order, the applicant has filed the present O.A. contending that he belongs to Bentho Oriay Caste, which is included in the list of ST at SL. No. 17 of the Schedule Part-B of A.P. State and Subordinate Service Rules, 1996 and the names of his parents are in the electoral rolls of 1986 and his name in 1999 in Peddapalem of Sarubujjili Mandal at Sl. Nos 116, 117 and 118 of Srikakulam District and Amadalavalasa Assembly Constituency and the transfer certificate given by Head Master, ZP High School, Purushothapuram, Srikakulam District clearly established that the applicant belongs to Bentho Oriya ST Caste and passed SSC and he studied in Residential ITI at Upper Sirluru of Visakhapatnam District and passed in the trade of welder and he was given free boarding and lodging on Government cost in A.P. Industrial Training Institute as he is recognized as ST candidate.
4. The applicant further pleaded that the 2nd Respondent has not given any charge memo to the applicant regarding his caste and he was given only a show cause notice without conducting any enquiry. He further submitted that the Collector, Srikakulam District did not conduct any enquiry giving him opportunity to prove his caste status and the collector submitted report behind his back and that a community certificate issued by any authority competent to issue the same under the relevant rules or orders before the commencement of the Act No. 16/93 shall, unless it is cancelled under the provisions of this Act 16/93 be valid and shall be deemed to have been issued under the provisions of this Act. The ST certificate of applicant was issued by President, Mandal Praja Parishad, Sarubujjili of Srikakulam District on 18.2.1989 and he is competent to issue this certificate in view of the powers given to him by the Government of A.P. in G.O.Ms. No. 178 Social Welfare (J2) Department, dated 06.08.1998 and also G.O.Ms. No. 554, Revenue ( A) Department dated 02.08.1988. The said certificate is valid as the same was not cancelled under the provisions of Act 16/93 and hence the show cause notice and also final order issued are invalid and cannot be acted upon. He further pleaded that the 1st respondent in show cause notice simply referred to the letter of the District Collector dated 25.07.2005 and without furnishing a copy of the letter, the 1st respondent took action on that undisclosed letter and it violates the principles of natural justice and cannot form basis for dismissal of the applicant. The provisions of the CCS ( CCA) Rules 1965 apply to applicant in case of disciplinary proceedings against him. The order of dismissal issued by the 1st respondent is in violation of the above rules and hence the orders deserved to be set aside. In a similar case in O.A. No. 300/2005 dated 10.11.2006, this Tribunal held that without the decision of the High Power Committee regarding the question of identification of social status of person belonging to community claiming to be Bentho Oriya ( ST), the employer cannot initiate disciplinary proceedings against the applicant and directed the respondents therein to reinstate the applicant with consequential benefits. The applicant further relied upon the judgment of the C.A.T, Madras Bench in O.A.No. 1671/93 decided on 22.11.1995 in the case of R. Veeraswamy Vs. Union of India and also another judgment of this Tribunal in G. Nooka Reddy Vs. General Manager, SC Railway, Secunderabad and another 1989 (3) SLR 488. It is further pleaded that the Hon'ble High Court also held that as all the certificates issued by the competent authority prior to the commencement of Act 16/1993 are valid certificates, unless such certificate is cancelled, disciplinary proceedings in this regard cannot be initiated.
5. The respondents contested the application and filed counter reply stating that as the applicant was appointed in a post reserved for ST category, the DRM/P/BZA has forwarded the certificate produced by the applicant for the caste verification to the District Collector. Accordingly, the District Collector submitted his report on 25.7.2005 stating that the caste certificate of the applicant has been got inquired into by MRO,Sarabujjali and RDO- Srikakulam and the inquiry revealed that the applicant and his family were migrated to Tanuku of West Godavari District long time back and they belong to Veddi Caste i.e BC -A but does not belong to Bento - Oriya Caste ( ST) and the caste certificate produced by the applicant was also not issued by the M.R.O., Sarabujjali, Srikakulam District. Thereafter, a show cause notice was issued on 10.10.2007 to the applicant and the applicant has requested for 15 days time for submission of defence to prove his caste vide his letter dated 22.10.2007. But subsequently, he failed to submit any proof of his alleged caste of Bentho - Oriya even-after passing of more than one month, he was terminated from service.
6. It is further submitted that as per the Board's letter dated 2.5.91, Mandal Revenue Officer of A.P. is equivalent to the post of Tehsildar and competent to issue caste/Tribe certificates and, as such, Mandal Praja Praished, Srubujjali and Head Master ZP High School Purushotha Puram are not empowered authorities to issue caste/Tribe certificate. The caste certificate in question produced by the applicant was not issued by the MRO/Sarabujjali, Srikakulam District, as such there is no need to cancel it and enquiry was already conducted by the competent District Collector and that the Railway Services ( D & A) Rules, 1968 are not required to be followed in case of false declaration of caste certificate as per Est.Srl. No. 21/92. The respondents pleaded that the applicant failed to make out any case in his favour and it is liable to be dismissed.
7. The applicant filed rejoinder stating that the parents are living in Peddapalem village and they belong to S.T. Community and that the applicant's parents had gone to West Godavari District, Tanuku for livelihood and there was none to represent the applicant at Peddapalem village and the authorities who went to village for enquiry found that the applicant is not a native of Peddapalem village. He further stated that in the year 1986, the applicant was living in Patha Nampada village along with his parents and he was given a certificate by the M.R.O., Tekkali Mandal on 12.5.1986 and after the family shifted to Peddapalem, Sarubujjli Mandal, he was given the certificate by the President, Mandal Praja Parishad, Sarubujjili on 18.2.1989. At the time of selection and joining duty in Railway Department in Eluru, the applicant produced the certificate given by M.R.O. on 12.5.1986 and on the strength of this certificate he was selected in addition to the certificate dated 18.2.1989 issued by the President, Mandal Praja Parishad, Sarubujjili. The caste certificate issued by the M.R.O. to the applicant on 12.5.1986 is in force till date. ( Along with the rejoinder, he filed the original certificate said to have been issued by the Mandal Revenue Officer, Tekkali Mandal on 12.5.1989.) He further submitted that the letter given by the Collector to the Railway Authorities is in violation of the principles of natural justice as no notice was given to him by the District Collector to produce the proof of his caste. He further submitted that the disciplinary action was initiated against him basing on an invalid report and he obtained caste certificate from the M.R.O., Tekkali and not from M.R.O. Sarubujjli and at the time of his joining Railway service, he produced the certificate given by the M.R.O., Tekkali along with other certificates. He further pleaded in the rejoinder that before taking disciplinary action against him, the authorities ought to have verified the certificates furnished by him at the time of joining in the department. In view of the above, the orders of dismissal from service are not sustainable in law.
8. The Point that arise for consideration in this O.A. are
i) whether the impugned orders of termination are sustainable in law;
ii) to what result?
9. During the course of hearing, the learned counsel for the applicant reiterated the contentions raised in the application and also the contentions raised in the rejoinder with which the alleged original caste certificate issued by the M.R.O., Tekkali is filed.
10. On the other hand, the learned counsel for the respondents reiterated the contentions raised in the reply. He submitted that as the District Collector submitted report that the applicant does not belong the Bentho - Oriya caste and he belonged to Veddi caste, the respondents after giving show cause notice for which there was no response, passed the order of dismissal and that as the applicant did not submit explanation under the show cause notice, there was no need to conduct any enquiry before passing the order of dismissal and, hence, the impugned orders are sustainable in law.
11. It is not disputed that no charge memorandum has been issued by the respondents before passing the order of dismissal. Only show cause notice was issued for which the applicant requested some time for submitting his representation, but later failed to submit representation for about a month. On the ground that the applicant has not submitted explanation for the show cause notice, the respondents have passed the impugned order of dismissal straight-away without initiating disciplinary proceedings. Part-III of the Railway Servants ( Discipline & Appeal) Rules, 1968 deals with Penalties and Disciplinary Authorities and Part -IV of the Railway Servants ( Discipline & Appeal) Rules, 1968 deals with the Procedure for imposing Penalties. In the instant case, as seen from the impugned order, the said order has been passed by way of penalty. In fact in the said orders, it is mentioned that the applicant is entitled to prefer an appeal within 45 days if he so desires as per the provisions of Rule 17 to 20 of R.S. ( D&A) Rules, 1968. Therefore, it is obvious that the respondents passed the impugned order only under Railway Servants ( Discipline & Appeal) Rules, 1968. Part-IV of the Rules deals with the procedure for imposing penalties and Rule -9 prescribed the procedure for imposing major penalties. It cannot be disputed that dismissal from service comes under major penalty. Therefore, Rule-9 is applicable for passing order of dismissal against any Railway Servant. As per rule 9, no order imposing any of the major penalties specified in Clauses (V) to (IX) of Rule -6 shall be made except after an enquiry held, as far as may be in the manner provided in this rule and rule 10. As per the Rule 9 (2) whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or mis-behaviour against a railway servant, it may itself inquire into or appoint under this rule, a board of inquiry or the other authority to inquire into the truth thereof.
12. Here in the instant case, admittedly, no enquiry has been conducted. The order of dismissal has been passed only on the basis of letter received from the District Collector. Even the letter of the District Collector does not disclose that any opportunity was given to the applicant to prove that he belonged to Bentho - Oriya caste. The Collector simply stated that he got it verified with Mandal Revenue Officer, Sarubujjili and Revenue Divisional Officer, Srikakulam and found that the parents of the applicants are migrated to Tanuku of West Godavari District long back and he belongs to Vaddi Caste and not belonged to Bentho Oriya Caste (ST). As prescribed under Rules, no notice was given by the District Collector to the applicant or to his parents to prove whether they belong to Bentho - Oriya caste or not? As seen from the rejoinder the applicant pleaded that they are natives of Peddapalem village and his parents used to move around eking out their livilihood and that at the time when the authorities said to have made enquiries, neither himself nor his parents were available in the village and, therefore, the alleged enquiry made by the revenue authorities are not valid and it is in violation of the principles of natural justice. Admittedly, the applicant was working in the Railway and his address is well known. The Revenue Authorities ought to have issued a notice to the applicant to prove that he belonged to Bentho - Oriya caste. But no such steps were taken by the Revenue Authorities and without observing such basic principles of natural justice, the District Collector has sent a letter stating that the applicant or his parents do not belong to Bentho - Oriya caste and they belonged to Veddi Caste. Therefore, we find considerable force in the contention of the applicant that the enquiry conducted by the revenue authority is in violation of the principles of natural justice and therefore such report cannot be made a basis for dismissal of railway service. Even if it is assumed that due enquiry has been conducted by the Revenue Authorities and submitted their report against the applicant, it only gives rise to a cause of action for the respondents to initiate disciplinary proceedings in accordance with rule - 9 of the Railway Servants ( Discipline & Appeal) Rules, 1968. The respondents ought to have issued a charge memo, conduct enquiry according to the procedure prescribed under Rule -9. Admittedly, the procedure prescribed in Rule-9 of the rules is not followed in this case. Without following the procedure prescribed under Rule -9, major penalty of dismissal cannot be imposed and it is liable to be set aside as the procedure has not been followed . In this case we are not inclined to go into the merits of the case to decide whether the applicant belongs to Bentho - Oriya caste or not? It is for the competent authority to decide about the same after giving due opportunity to the applicant to prove that he belongs to Bentho - Oriya caste. Now, along with the rejoinder the applicant has filed the original certificate said to have been issued by the Mandal Revenue Officer, Tekkali wherein it is certified that the applicant belonged to Bentho - Oriya caste which is scheduled Tribe caste. Therefore, if the respondents are suspecting the caste status of the applicant, they can as well refer the said certificate to the District Collector, Srikakulam to verify whether the said certificate has been issued by the Mandal Revenue Officer, Tekkali on 11.5.86 and if so whether such certificate is liable to be cancelled in accordance with the procedure prescribed under Section 21 of the Act 16/93. In case the District Collector after due enquiry cancels the certificate or found that the said certificate was not issued by the Mandal Revenue Officer, Tekkali, the respondents can take recourse to Rule 9 of the Railway Servants ( D & A) Rules 1968 and then impose the penalty of dismissal. But without adopting such procedure, the respondents are not entitled to dismiss the applicant. As it is found that such procedure is not followed in this case, the impugned order is not sustainable in law and it is liable to be set aside.
13. In the result the O.A. is allowed setting aside the impugned order giving liberty to the respondents to get the caste status of the applicant duly enquired into and then take action in accordance with the procedure prescribed under Rule 9.
14. The original caste certificate filed along with the rejoinder shall be returned to the applicant with a direction to the applicant to produce the same before the respondents who are given liberty to refer the same to the District Collector for due enquiry and cancellation if necessary as per rules.
(R.SANTHANAM) (P. LAKSHMANA REDDY)
Member (A) VICE- CHAIRMAN
Dated 23rd December, 2008
(Dictated in open court)