Central Administrative Tribunal - Patna
Umesh Choudhary vs Railway on 8 May, 2025
1 O.A. No. 050/00230
230/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH,
O.A. No. 050/00230
230/2020
Order reserved on
on:-08.04.2025.
Order pronounced on:
on:- 08.05.2025
CORAM
HON'BLE MR. KUMAR RAJESH CHANDRA, MEMBER [A]
HON'BLE MR. RAJVEER SINGH VERMA, MEMBER [J]
Umesh Choudhary son of Mahendra Choudhary, Ex Booking
Supervisor, East Central Railway, Jhajja, resident of Fare Field
Colony, Near Sharma Decorator, Post/PS
Post/PS-Digha,
Digha, District Patna
(Bihar).
Patna
Bench
.......Applicant
Versus
1. The Union Of India Through The General Manager, East Central
Railway, Hajipur, P.O. Digghi Kala, P.S. Hajipur (Town), District
Vaishali At Hajipur, Pin Code - 841001 (Bihar).
2. The General Manager (Personnel), East Central Railway,
Hajipur, P.O. Digghi Kala, P.S. Hajipur (Town), District Vaishali
At Hajipur, Pin Code - 841001 (Bihar).
3. The Principal Chief Commercial Manager, East Central Railway,
Hajipur, P.O. Digghi Kala, P.S. Hajipur (Town), District Vaishali
At Hajipur, Pin Code - 841001 (Bihar).
4.. The Divisional Railway Manager, East Central Railway,
Danapur, P.O. Khagaul, P.S. Khagaul, District - Patna, Pin Code
801503 (Bihar).
5. The Additional Divisional Railway Manager, East Central
Railway Danapur, P.O. Khagaul, P.S. Khagaul, District - Patna, Pin
Railway,Danapur,
Code 801503 (Bihar).
6. The Senior Divisional Personnel Officer, East Central Railway,
Danapur, P.O. Khagaul, P.S. Khagaul, District - Patna, Pin Code
801503 (Bihar).
2 O.A. No. 050/00230
230/2020
7. The Senior Divisional Commercial Manager, East Central
Railway Danapur,
Danapur P.O.. Khagaul, P.S. Khagaul, District - Patna, Pin
Code 801503 (Bihar).
8. The Senior Divisional Financial Manager, East Central
Railway,Danapur, P.O. Khagaul, P.S. Khagaul, District - Patna, Pin
Code 801503 (Bihar).
........Respondents
For Applicant:-
Applicant: ShriS.K. Tiwary
iwary, Advocate
For Respondents:-
Respondents: ShriBhuneshwarPandey
BhuneshwarPandey,Addl. CGSC
ORDER
Patna PER:-RAJVEER
RAJVEER SINGH VERMA
VERMA, MEMBER [J]
Bench
1. The present OA has been filed by the applicant seeking following reliefs:
relief "8.1 8.1 That your Lordships may graciously be pleased to quash and impugned Removal set aside the Order dated 01/03.03.2016 together with the Appellate Order dated 23.08.2018 and Revisional order dated 10.02.2020 as contained in Annexure Annexure-A/9, A/9, A/11 & A/14 respe respectively.
8.2 That your Lordships may further be pleased to direct /command the Respondents to grant/accord/sanction and pay/release the entire pensionnary benefits including Pension, DCRG, Commuted Value of Pension, leave encashment etc. w.e.f w.e.f.. 31.08.2016 i.e. from the date applicant normal attained superannuation alongwith statutory interest there upon. age arrears of and 8.3 That your Lordships may further be pleased to direct /command the Respondents to grant all consequential benefits in fa favour vour of the Applicant including arrears of pay from 15.12.2010 to the date of his normal retirement as on 31.08.2016 treating the entire suspension period as on duty for all purposes along with statutory interest upon the said arrears amount.
8.4 Any other relief or reliefs including the cost of the proceeding may be allowed in favour of the Applicant.
Applicant."
CASE OF APPLICANT
2. Brief facts of the case is that tthe he applicant, while serving as a Booking Supervisor at Fatuha, was issued a charge sheet under Rule Rule-9 9 of the Railway Servant (Disciplinary & Appeal) Rules, 1968, alleging 3 O.A. No. 050/00230 230/2020 unauthorized delivery of sugar consignments to one Sri Rajesh Kumar. The applicant denied the allegations in his written reply. As a result of the incident, a claim of wrongful and fraudulen fraudulentt delivery was made against the Railways, and criminal complaints were lodged against the person who had taken the delivery. Before the charge sheet was issued, the applicant had already been suspended on 09.07.2010.
3. Following this, the applicant filed OA No. 648/2010 before the Tribunal, seeking a stay on the disciplinary proceedings, but no Patna interim relief was granted. In the meantime, an ex parte enquiry report Bench was filed on 21.11.2010, leading the applicant to file another OA No. 840/2010 for quashing the enquiry report on grounds of lack of opportunity to defend. While OA No. 648/2010 was later declared infructuous, OA No. 840/2010 840 was allowed on 16.12.2010, granting relief including quashing the enquiry report and directing the respondents to allow the applicant to participate in the enquiry proceedings.
4. Despite forwarding the Tribunal's order dated 16.12.2010, the applicant received no compliance, prompting him to file Contempt Petition CCPA No.75/2011. Meanwhile, the respondents filed a Review Application ion almost a year later, arguing that the applicant had already been removed from service on 14/15.12.2010. However, the Tribunal dismissed the review petition on 30.05.2013. Subsequently, an order of deemed suspension was issued against the applicant on 224.05.2015.
5. A fresh enquiry followed, and the applicant submitted his defencee brief on 04.09.2015, denying the charges. Later, he received a 4 O.A. No. 050/00230 230/2020 copy of the enquiry report dated 15.01.2016, which he claimed unjustly found the charges proved. He submitted his re reply ply on 18.01.2016 seeking exoneration. Nevertheless, a punishment order dated 01/03.03.2016 was passed and the applicant was removed from service retrospectively from 15.12.2010, which the applicant argues is illegal, unconstitutional, and in violation of natural justice as well as contrary to earlier Tribunal and High Court orders.
6. The punishment order also disregards the direction of the Patna Patna High Court in CWJC Nos. 9099/2014 and 2181/2014, which had Bench clearly held that while the earlier removal order had effectively been set aside, the applicant would remain under deemed suspension during fresh disciplinary proceedings and would not be entitled to back wages or reinstatement until conclusion. The applicant also highlighted that despite this, he was not paid paid subsistence allowance and was instead removed from service retrospectively, violating legal provisions and judicial directions.
7. In addition, the Railways stated before the Madras High Court that the delivery of the consignment was not to a third party us using ing forged documents but rather to an entity claiming to be the consignee who had paid a significant portion of the sale consideration. Furthermore, the criminal proceedings against those who had received the delivery were quashed by the High Court on 03.08.2017, 03.08.2017, implying that the applicant bore no responsibility for the alleged fraudulent delivery.
8. The applicant filed an appeal on 08.04.2016 against the removal order, which was dismissed on 23.08.2018. The dismissal, 5 O.A. No. 050/00230 230/2020 according to the applicant, was arbitrary arbitrary and non non-speaking, speaking, lacking in reasoning, and contrary to various Railway Board circulars and settled judicial principles that mandate reasoned and judicially sound disciplinary orders.
9. Subsequently, the applicant filed a revision petition against the disciplinary ciplinary and appellate orders. Upon no response, he filed OA No. 636/2019, which was disposed of with a direction to Respondent No. 3 to decide the revision within 60 days. Despite this, the revision was rejected Patna much later, on 10.02.2020, without conside consideration ration of the grounds raised, Bench which the applicant contends is unjust and contrary to legal norms.
10. Considering the facts and legal context, the applicant submits that he has no other remedy left and is therefore compelled to approach the Hon'ble Court for redress redress of his grievances through this Original Application.
RESPONDENT'S STAND
11. Respondents have filed written statement and on the basis of averments made in written statement, statement opposed the contentions of applicant with a request to dismiss the OA.
12. The applicant was served a major charge sheet on 20.07.2010 due to serious violations of rules. Although departmental proceedings were initiated, the applicant chose not to participate and instead approached the Tribunal in OA No. 648/2010 to seek a stay. As no stay was granted, the inquiry continued and was concluded, with the report sent to the Disciplinary Authority. Before the authority could decide, the 6 O.A. No. 050/00230 230/2020 applicant again approached the Tribunal in OA No. 840/2010 challenging the inquiry report on grounds of being ex parte. The Tribunal allowed this OA on 16.12.2010, a day after the Disciplinary Authority had already passed its decision, which couldn't then be presented before the Tribunal. The respondents then moved to the Hon'ble High Court in CWJC Nos. 2181/2014 and 9099/2014, which ordered a fresh inquiry and directed that the applicant remain under suspension. A fresh inquiry was held, and based on its findings, the applicant was removed from service effective Patna from 15.12.2010, a decision upheld by both the Appellate and Bench Revisionary Authorities.
13. Regarding the applicant's claim that the charges were found proven without justification, it is contended that this claim is baseless. The charges were supported by evidence and detailed reasoning in the inquiry report. It was pointed out that the applicant failed to verify the consignee's identity through certified copies of the ORR, relied solely on consignor data, and neglected procedures outlined in Para 959 of the Commercial Manual regarding delivery against a "SELF" Railway Receipt. Furthermore, the applicant did not ensure the value of the consignment was declared, violating limits that require higher higher-level level approvals, thus failing in his duties and responsibilities.
14. On the issue of retrospective removal from service, it is argued that this does not constitute any illegality. The High Court had made it clear that the applicant's entitlements, including reinstatement or back wages, would depend upon the outcome of the fresh inquiry. Since 7 O.A. No. 050/00230 230/2020 the applicant failed to to disprove the charges, the original removal order dated 15.12.2010 was confirmed and continued. Therefore, calling it retrospective is inaccurate. The fresh inquiry was a continuation of the original charge sheet. As for subsistence allowance, the applica applicant nt did not submit the required SF-3 SF 3 form certifying he was not engaged in other employment. There is no record of him requesting the allowance as per norms, making the current claim an afterthought.
15. The reference made by the applicant to separate criminal Patna cases is deemed irrelevant, as the departmental action under the Bench Disciplinary and Appeal Rules (DAR) concerns violations of service rules, not criminal misconduct. The outcome of the criminal cases has no bearing on the departmental proceedings or penalty imposed for service-- related breaches.
16. Concerning the applicant's claims that the orders by Disciplinary and Appellate Authorities are cryptic and non non-speaking, speaking, it is asserted that these orders are detailed and justified. The applicant's repeated failure to prevent the same errors constituted gross negligence and was detrimental to the interests of the Railways. The Appellate Authority's order dated 23.08.2018 was clear and self self-explanatory.
explanatory.
Similarly, the Revisionary Authority's order dated 10.02.2020 was bbased ased on full consideration of the facts. The delay was due to a misplaced case file, but the court's directive was ultimately complied with. 8 O.A. No. 050/00230 230/2020
17. In view of the facts and legal reasoning presented, it is submitted that the applicant's claims and requested relie relieff lack merit. The Original Application, therefore, deserves to be dismissed.
OUR ANALYSIS
18. The crucial facts as enumerated in the charge memo are that a load consisting of 42 wagons of sugar arrived at FUT Good Shed from Sagli on 29.03.2010 sender (consigner) (consigner) being M/s Althani Farmers Sugar Factory Ltd. With consignee in this case being M/s S.P. Bothla & Bros. Patna The consignee produced RR for delivery of 30 wagons and applicant Bench delivered the same to authorized person. However, rest 12 wagons sugar were booked on on self by the sender and the applicant delivered these 12 wagons of sugar to the consignee without receiving relevant RR and indemnity form on proper format.
19. Perusal of documents made available during pleadings it is noticed that applicant has obtained a cheque cheque no. 433376 (page 86) of amount Rs. 2,16,37,572 from the consignee in favour of consignor based on the revised rate i.e. at the rate of Rs. 3636/ 3636/- per Qt. instead of Rs.
3025/- per qt. Applicant has also obtained undertaking of consignee in this regard.
20. Consignor had not sent any communication to any other authority and also had not issued any instructions to the applicant to not to deliver the rest 12 wagons to the consignee and the issue was raised after lapse of about three months from the date of ddelivery. 9 O.A. No. 050/00230 230/2020
21. Applicant has mentioned at page 15 of his OA that Rai Railway lway Authorities have admitted in para (vi) before the Hon'ble Madras High Court while challenging the order passed by learned Railway Claims Tribunal in which they have said that "The Tribunal failed to see that the present is not a case where delivery has been taken by a third party under any forged or invalid documents but by an entity which claims that it is the consignee which has paid the major portion of the value of consideration. The consignee consignee is very much available and carrying on Patna business in Bihar and the representative of the consignee has boldly come Bench before the Tribunal and lapse in evidence that they have taken delivery of the consignment in respect of which they have paid major port portion ion of the sale consideration." This fact is also mentioned at para 4.10 of OA at Pages 29-30.
30.
22. The respondents have chosen sen to not to make any comments, on such pleadings of the applicant as mentioned in above para, in their written statement. The respondents respondents have also not stated in their written statement that the pleading of applicant in OA should not be considered their admission which are not specifically reverted/ countered in written statement inspite of the fact that respondents have replied to other part of para 4.10 of the OA in para 5 of the written statement. In these circumstances the facts circumstances mentioned at page 15 of the OA are amounting to admission of respondents and became admitted position.
23. Applicant has taken a plea in his defence that during the day of incident there were five Goods staff (Group C) were posted including 10 O.A. No. 050/00230 230/2020 applicant and PW-3 PW 3 who is a retired Railway Servant was there who was his superior to him. Work at FUT goods shed was a collective responsibility. However, this aspect aspect has not been considered by the Inquiry Officer in his inquiry report (Annexure (Annexure-A/7).
24. The alleged incident took place on 10.02.2010. The Disciplinary Authority vide its order dt. 01.03.2016 (Annexure (Annexure-A/9) A/9) awarded the punishment of removal from service w.e.f. 15.12.2010. Thus it is an admitted fact that the removal of the applicant was ordered with Patna retrospective effect which is not permissible as per settled law laid down Bench by the Hon'ble Supreme Court.
25. The Appellate Authority has dismissed the appeal of tthe he applicant vide its order dt. 22.08.2018 on the of the ground for dismissal of appeal is that " how the I-Bond I Bond is to be executed in case of the 'consignment booked to self' is clearly provided in the commercial manual and CO has not followed the guidelin guidelines.
es. He is simply citing the examples of previous such wrong executions which did not result in problem as these following wrong practices cannot be justified in the name of efficiently or in the interest of organization. It can be only said that previous cases cases he had been lucky. Business cannot be permitted to be run in such a manner."
26. From the above observations of the Appellate Authority it may inferred that a wrong practices were being followed at FUT Goods but there is nothing on record that any proceed proceedings ings or even memo was issued to any other superior officer in this regard for their supervisory 11 O.A. No. 050/00230 230/2020 failure. Admittedly work of Goods shed cannot be done by alone person and during the incidence there were five Goods staffs including one Chief Goods Clerk (PW 3) but Disciplinary Proceeding was initiated only against the applicant. It is observed that the Appellate Authority has not applied his mind while not evaluating the relevant contentions of the applicant and has passed a non-speading non speading order. It is settled law that Appellate Authority has to keep in mind these factors when an appeal is preferred to such authority:
Patna a. There should be application of mind and scrutiny of the record Bench before it by the Appellate Authority to enable to record its satisfaction in terms of rules, b. It would pass a speaking order which would at least prima facie show that the authority concerned hhas as applied its mind to various contentions or points or determination raised before it.
c. Scope of applicability of the Maxim Audi Althem partem before the Appellate Authority depending upon the language of relevant proceedings.
The finding of Disciplinary Authority and Appellate Authority are not sustainable as one person alone was made a scapegoat for collective decision in which others also are collectively participated.
We feel that findings of the authorities appear to be arbitrary in nature and the entire Disciplinary Disciplinary Proceedings deserves to be set aside on this alone ground.12 O.A. No. 050/00230 230/2020
27. The Revisionary Authority has also dismissed the revision petition vide its order dt. 10.02.2020 (Annexure (Annexure-A/14).
A/14). This order of Revisionary Authority cannot be termed as speaking order as Rev Revisionary isionary Authority has not discussed or analysed any of the ground taken by the applicant in his revision petition. No pecuniary loss to the Railways has been attributed due to the alleged act of the applicant.
28. The Disciplinary Authority has awarded the pu punishment nishment on 01.03.2016 of removal from service w.e.f. 15.12.2010. Thus the order of Patna removal was with retrospective effect. It is settled principle of law that Bench dismissal or removal cannot be directed with retrospective effect as held by the Hon'ble Supreme Court in various cases like R. Jeevaratnam Vs. State of Madras AIR 1966 SC 951 also Punjab Electricity Board Vs. Presiding Officer labour Court 1998 SCC ( L&S), 1723.
29. The normal rule, where the order having the effect of cessation of service is set aside, in that the employee should be reinstated in service. Where an order of dismissal/ removal is set aside and reinstatement is directed, an employee will be entitled to full pay for the period of suspension as held by the Hon'ble Supreme Court in State of UP Vs. Ram Avtar Sharma (2004) 13 SCC 755.
30. But in the reinstatement of applicant in service could not arise on account of the fact that in normal course he has to superannuate on 31.08.2016 and he may be aged about more than 68 years at present. However, in i view of judgment of Hon'ble Supreme Court in LIC of India Vs. Rampal singh Bisen (2010) 4 SCC 491 491,, the monetary benefits 13 O.A. No. 050/00230 230/2020 could be given to the applicant. In Union of India Vs. Jaipal Singh (2004) 1 SCC 121, the Hon'ble Supreme Court has held that where the dismissal/ removal is set aside on the ground of violation of the principle of natural justice, the employee is entitled to back wages from the date of dismissal until reinstatement and rule 54 of the Fundamental rules will not be applicable in such a case.
31. In Deepali eepali gundu Sarware [(2013) 16 SCC 324], the Hon'ble Supreme Court held as under:-
"The The very idea of restoring an employee to the position which he held Patna Bench before dismissal or removal or termination of service implies that the employee will be put put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance.
sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who 14 O.A. No. 050/00230 230/2020 has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the indirectly employer by relieving him of the obligation to pay back wages including the emoluments."
32. No Presenting Officer was appointed in this case by the Disciplinary Authority as mentioned at Para 7 of the Inquiry Report (Annexure A/7 Page 74 of the OA). In these circumstances the whole (Annexure-A/7 inquiry proceeding became vitiated.
33. Railway Board vide letterr No. E(D&A) 64 RG 66-36 dated 27.5.1967 has issued a circular which reads as:
as:-
Patna Bench "Appointment Appointment of Inquiry Officer and Presenting Officer Officer-The The Board have been considering the question of expeditious finalisation of disciplinary cases, where major penalty proceedings are initiated against Railway servants. Progress of oral inquiries against Gazetted Officers conducted by the Commissioners for Departmental Inquiries is often held up owing to delays taking place in respect of appointment of the Inquiry Officer and nomination of the Presenting Officer. At present, the Central Vigilance Commission who have been consulted in the matter have agreed that as soon as the charge-sheet charge sheet is issued to the officer, the commission should be approached for the nomination of the Commissioners even before the officer's written statement of defence is received. The order appointing the Commissioner as the Inquiry Officer should, however, be issued only after it is decided by the Disciplinary Disciplinary Authority, on the basis of the written statement of defence of the officer, that an inquiry should be held. 15 O.A. No. 050/00230 230/2020
2. In regard to the appointment of Presenting Officers, it has been already clarified in the Board's letter of even number dated 15.2.1967 that that in cases investigated by the SPE, the Presenting Officer may be an Officer of the SPE to be nominated in consultation with the SPE whilst in cases investigated by the Railway Vigilance Branch, the Presenting Officer may be nominated on the recommendation recommendation of the Vigilance Branch. The extant practice of taking up the question of nomination of the Patna Presenting Officer only after the oral inquiry is ordered contributes Bench to avoidable delays in processing these cases. The Board, therefore, desire that the question question of nomination of Presenting Officer in each case should be considered sufficiently in advance of the inquiry, even before the written statement of defence of the officer received.
The order of appointment should, however, be issued by the Disciplinary Authority Authority only after the written statement of defence of the officer is received and considered and a decision is taken that an inquiry should be held. This would enable to Disciplinary Authority to issue the order of appointment of the Presenting Officer simultaneously simultaneously with the appointment of the Inquiring Authority.
Where the Inquiry Officer is to be appointed by the Board in cases investigated by the Vigilance Branch, the name of the Presenting Officer may, therefore, be suggested as soon as the charge eet is issued to the officer and, in any case, at the time of charge-sheet 16 O.A. No. 050/00230 230/2020 forwarding the written statement of defence of the officer to the Railway Board. If, in cases investigated by the SPE, the appointment of the Presenting Officer has to be made by the Board, necessary action will be taken by the Board in consultation with the necessary Central Bureau of Investigation.
34. Rule 9 (9) (c) of the Railway Servants (D&A) Rules, 1968 reads as:- Where the disciplinary authority itself inquires into an article of charge or appoints a Board of Inquiry or any other inquiring authority for Patna holding an inquiry into such charge, it may, by an order in writing, Bench appoint a Railway or any other Government sservant ervant to be known as 'Presenting Officer' to present on its behalf the case in support of the articles of charge.
35. Admittedly no Presenting Officer was appointed and the role of the Presenting Officer has been assumed by the Inquiry Officer himself. It is noticed that the appointment of a Presenting Officer is mandatory as prescribed under Rule 9 (9) (c) of Railway Servantss (Discipline and Appeal) Rules, 1968, 1968, the Disciplinary Authority is obliged to follow the procedures prescribed under Rule 9 (9) (c) of the Service Rules which is a complete scheme of the manner in which a disciplinary proceeding is to be conducted.
36. In the case of Sanjay Kumar Vs. State of Bihar reported in 2019 (2) PLJR 447, it is held that the inquiry has stood vitiated for non non--
observance of the procedures established by law. The relevant part of the 17 O.A. No. 050/00230 230/2020 observations of the Hon'ble High Court in the case of Sanjay Kumar (supra) is quoted hereunder for a ready reference:
reference:-
".......In continuation I would also refer to a judgment reported in 1996 (1) PLJR 401 (Panchanan Panchanan Kumar vs. The Bihar State Electricity Board) Board) in which case though a Presenting Officer was appointed but he failed to discharge his obligation and in Patna High Court CWJC No.8664 of of 2017 dt.04 dt.04-05-2023 his absence his role was assumed by the Enquiry Officer. The opinion of the Bench Patna at paragraph 11 of the judgment would be relevant for the issue at Bench hand:
"11.Considering the rival contentions of the parties, this Court is of the opinion opinion that in the instant case the inquiry has been vitiated inasmuch as the enquiry officer himself has acted as the presenting officer even though the presenting officer was appointed by th Electricity Board. There is no explanation why the said presenting officer did not appear before the enquiry officer to present the case of the department. In the peculiar facts of this case, the action of the enquiry officer to present the case himself on behalf of the department and also to take upon himself the duty of enquiring the correctness or otherwise of the said case clearly shows that the enquiry officer, in the instant case,has failed to discharge his duty as a fair and impartial enquiry authority. He has rolled up within himself the role of both the presenting officer and the enquiry 18 O.A. No. 050/00230 230/2020 officer and as such has acted in a manner which is not consistent with the principles of natural justice........"
37. We would proceed to determine the issue of non non--
appointment of "presenting officer' and its effect on the report ooff Inquiry Officer, the order of Disciplinary Authority & Revisionary Authority and is a primary issue.
38. It is an admitted fact that "presenting officer" was not appointed by the Disciplinary Authority as evident from inquiry report dt. Patna 15.01.2016 (Annexure-A/7) and non-rebutal rebutal of this fact by the Bench respondents.
39. Using the word "shall" in a statutory provision would normally mean that the provision is mandatory, while the word 'may' would be directory. However, the word 'shall' is not always decisive and the word 'may' does not by itself show that the provision is a directory in nature.
40. English language can never mean 'must', the word 'may' can be read as 'shall' and vice-versa.
vice versa. Courts do not interpret the word 'may' as 'shall' unless such interpretation interpretation is necessary and required.
41. When the word 'may' is coupled with duty on an authority or court, it has been given meaning of shall that is an obligation on any authority or court.
42. Hon'ble High Court of Patna passed judgment dt. 10.09.2024 in the CWJC No. 1726 of 2020 titled as Harendra Nath Prasad Vs. UOI & Ors wherein the Presenting Officer was not appointed and Hon'ble 19 O.A. No. 050/00230 230/2020 Court ordered to set aside the penalty order in Disciplinary Proceeding. The Hon'ble High Court remanded the matter to the Disci Disciplinary plinary Authority to proceed afresh from the defective stage, namely, in not appointing the Presenting Officer along with Inquiring Officer in terms of the relevant Rules/Regulations.
43. The Hon'ble High Court of Patna in Harendra Nath Prasad (supra) further furt held that:-
"5. At this stage, learned counsel for the respondents respondents-Union Union of India/Railway submitted that petitioner has not raised this issue at any Patna Bench earlier point of time.
6. It is a question of law and it can be raised at any point of time. Writ Court rt is a Court of first instance. New plea can be raised if it relates to question of law. Appointment of presenting officer is under Rules/Regulations. Further, it is to be noted that in the absence of presenting officer, the inquiring officer has played ddual ual role of inquiring officer/presenting officer. In fact, inquiring officer should be neutral in a departmental inquiry. Therefore, there are every chances of biased while discharging dual role in a disciplinary proceedings. Accordingly, the aforementioned d contention of the respondents stands rejected."
[emphasis supplied]
44. The facts and circumstances of the present case including issue that no Presenting Officer was appointed in the Disciplinary Proceeding are similar to the facts and issue involved in the case of Harendra Nath Prasad (supra).
(supra)
45. As the alleged incidence took place on 10.02.2010 and in normal course the applicant should have been retired from service on 31.08.2016 (the date of his retirement). More than 15 years have already been passed to the date of incidence, thus no useful purp purpose ose will be served to remand back the matter, at this belated stage for denovo proceedings from the stage of appointment of Presenting Officer and Inquiry Officer and it will be futile exercise.
20 O.A. No. 050/00230230/2020
46. No subsistence allowance was paid to the applicant during his entire period of suspension i.e. from 09.07.2010 till the pendency of Disciplinary Proceeding (date of suspension) (date of order dt. 01/03.03.2016 passed by the Disciplinary Authority for removal from service). It is the case of respondents that subsiste subsistence nce allowance is payable only if the applicant furnishes a certificate that he was not engaged in any other employment, business, profession or vocation in a prescribed form but the applicant has not annexed any document in this Patna regard.
Bench
47. Admittedly the applicant icant has not imparted his duties in the Railways due to his suspension for a period from 09.07.2010 to 03.03.2016 and due to order of his removal from service dt. 03.03.2016 to 31.08.2016 i.e. the date of his normal retirement.
OUR FINDINGS
48. The Hon'ble Supreme preme Court after referring to its judgments in State of AP Vs. S. Sree Rama Rao (AIR 1963 SC 1723) and B.C. Chaturvedi Vs. Union of India [(1995) 6 SCC 749] has reinstated grounds of judicial review in the case of High Court of Judicature at Bombay Vs. Shashikant hashikant S. Patil [(200) 1 SCC 416] as under:
under:-
a. Where there has been a violation of the principles of natural justice: or b. The proceedings have been held in violation of statutory regulations prescribing the mode of such enquiry: or 21 O.A. No. 050/00230 230/2020 c. The decision is vitiated by considerations extraneous to the evidence and merits of the case: or d. If the conclusion made by the authority is ex facie arbitrary or capricious that no reasonable person could have arrived at such conclusion: or e. Other very similar to the above grounds grounds.
49. On the basis of our above analysis analysis,, we are of the view that the entire Disciplinary Proceeding is vitiated on accounts of arbitrariness, Patna non-observance observance of principle of natural justice, non non-appointment appointment of Bench Presenting Officer by the Disciplinary Authority, non speaking and non reasoned orders of the Appellate Authority as well as Revisionary Authority, non-observance non observance of the due procedure/ process as mandated in the Extant Rules and therefore, the inquiry report and findings of Inquiry Officer dt. 15.01.2016 (Annexure-A/7) the impugned removal from service of the applicant order dt. 01/03/.03.2016 (Annexure (Annexure-A/9) A/9) passed by the Disciplinary Authority together with the order dt. 23.08.2018 (Annexure A/11) by the Appellate Authority and order dt. 10.02.2020 (Annexure-A/11) passed by the Revisionary Authority are suffering from serious legal lacunae and infirmity and deserve to be set aside.
50. In these circumstances, notional benefit of pay of the applicant deserves to be allowed. Respondent authorities are directed to fix the notional pay of applicant as he would have remained in service ti tilll the date of his normal retirement i.e. 31.08.2016 and respondents should 22 O.A. No. 050/00230 230/2020 recalculate his all consequential retirement benefits and make payment of all his retiral dues/ arrears amount.
51. On the basis of our above analysis, the OA is allowed with following directions to the respondents:-
respondents:
i. Removal order dt. 01/03.03.2016 passed by the Disciplinary Authority, Appellate Authority order dt. 23.08.2018, Revisional Authority order dt. 10.02.2020 along with charge-sheet sheet dt. 20.07.2010 and Inquiry Patna Report dt. 15.01.2016 are quashed and set aside aside.
Bench ii. As a consequence of quashin quashing g of removal from service order, the applicant should be treated as reinstated from the date of his removal from service till age of supposed superannuation.
iii. But the Tribunal is fully aware with the fact that applicant was not rendered his service claiming such period, hence, this Tribunal will refrain to pass any order with regards to back wages. The Administrative Authorities may take a conscious decision on this aspect after making a due inquiry of the fact that as to whether the applicant was gainfully engaged during intervening period and was getting the same emoluments or not.
iv. However, since the applicant's removal/ compulsory retirement has been held to violation of Procedure & 23 O.A. No. 050/00230 230/2020 Rules hence he cannot be held guilty/responsible to non-rendering rendering his service during this period. Therefore, we find that he is entitled to other retirement benefits by fixation of his notional increment of every year as he might have gained if he remained in service till his superannuation. Thus his pension and other retiral benefits may be refixed accordingly.
Patna
52. No order as to costs.
Bench
Sd/- Sd/-
(Rajveer Singh Verma) (Kumar Rajesh Chandra)
Member (J) Member (A)
du/-