Bombay High Court
Union Of India Thr Sec And 3 Others vs Dr Aw Umredkar on 7 February, 2020
Equivalent citations: AIRONLINE 2020 BOM 3101
Author: Vinay Joshi
Bench: A.S. Chandurkar, Vinay Joshi
Judgment 1 243wp6173.06.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6173 OF 2006
1. Union of India,through Secretary,
Ministry of Railways, Railway Board,
Rail Bhawan, New Delhi.
2. Railway Board through its Chairman,
Ministry of Railways, Railway Board,
Rail Bhawan, New Delhi.
3. Union Public Service Commission,
(Sangha Lok Sewa Ayog), Dholput House,
Shahjahan Road, New Delhi - 110 011.
(Deleted as per order dated 01.03.2007.)
4. General Manager, South Eastern Railway,
Garden Reach, Kolkata - 700 043
.... PETITIONERS
// VERSUS //
Dr. A.W. Umredkar,
Ex. Assistant Divisional Medical Officer,
South Eastern Railway, Nagpur,
R/o Umredkar Bhawan,
Near Sharda Chowk, Jalapura, New Ward,
No. 127, Gandhibagh, Nagpur - 440 002
.... RESPONDENT
Shri P.H. Khobragade, Advocate holding for Shri R.G. Agrawal, Advocate for
petitioners.
___________________________________________________________________
CORAM : A.S. CHANDURKAR AND VINAY JOSHI, JJ.
DATED : 7th FEBRUARY, 2020
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Judgment 2 243wp6173.06.odt
ORAL JUDGMENT : (PER : VINAY JOSHI, J.)
Heard learned Counsel for petitioners. Yesterday, matter was listed, but, as the respondent and his learned Counsel were absent, it is kept today. Heard further submission of learned Counsel for petitioner. Respondent is absent.
2] The petitioner-Union of India by invoking inherent jurisdiction of this Court under Article 227 of the Constitution of India has challenged the judgment and order dated 27.04.2006 passed by the Central Administrative Tribunal (CAT) in Original Application No. 2136 of 2002. The respondent was appointed on ad-hoc basis as Assistant Medical Officer in the year 1970. Initially, he was transferred to Nagbhid in the year 1973, but again he was brought back to Nagpur within two years. Meanwhile, the post of Assistant Medical officer which is Class-I post was upgraded as ADMO (Class-I) with effect from 01.01.1973.
3] Vide order dated 28.07.1978, the respondent was transferred at Dongargarh. However he did not join the post. Initially, he has furnished medical certificate. Later on, despite repeated calls, he never joined the duty. In consequence, the Department had issued a charge-sheet for major penalty on the charge of unauthorized absence. The Enquiry Officer has conducted the enquiry and proposed the punishment of removal from service. The Railway Board took the decision and issued fresh charge-sheet for major penalty. In pursuance to that the enquiry was conducted by which major ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 11:45:21 ::: Judgment 3 243wp6173.06.odt penalty was proposed. Railway Board vide order dated 23.09.1999 passed the penalty order of reduction of pay by three stages for a period of three years with cumulative effect. The entire period of absence from 01.03.1979 to 31.05.1994 was treated as extraordinary leave.
4] Vide order dated 05.05.2000, the appellant communicated the decision to the respondent alongwith the consultation report of UPSC. Being aggrieved by the order dated 15.03.2002 the respondent challenged the action on several grounds like denial of opportunity, non-supply of requisite documents and non-supply of advice report of UPSC. The Central Administrative Tribunal has considered the material which was available on record. It has recorded the finding that the enquiry was properly held as well as the necessary copies of documents were supplied. However, the Central Administrative Tribunal has allowed the Original Application solely on the ground of non-supply of UPSC advice to the petitioner. It is expressed that non-supply of UPSC advice report has caused prejudice to the employee. The Central Administrative Tribunal has placed reliance on the decisions of the Central Administrative Tribunal, Lucknow, Chandigarh, Jodhopur while allowing the appeal. Consequently, the impugned order dated 15.03.2002 has been set aside with a liberty to the appellant-Department to pass fresh order in the appeal by obtaining a fresh representation of employee. 5] Learned Counsel for the appellant would submit that while deciding the original application, the Central Administrative Tribunal has ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 11:45:21 ::: Judgment 4 243wp6173.06.odt already recorded a finding about grant of proper opportunity and supply of necessary documents. On perusal of paragraph 11 of the impugned judgment, it reveals that the Central Administrative Tribunal has recorded a finding that enquiry was proceeded in fair manner and there was total compliance. The Central Administrative Tribunal has expressed satisfaction regarding the course of enquiry.
6] The only point falls for consideration is about non-supply of advice sought from UPSC by the respondent. In this regard, the appellant would urge that, there is no legal requirement of supplying the copy of UPSC advice before passing the order of punishment. It is brought to our notice that the copy of advice was provided by the Department at the time of serving punishment order. In support of said submission the appellant has relied on the decision of Karnataka High Court in the case of The Secretary, Ministry of Railways, New Delhi vs. Sh. Norman David Fernandez and anr. (Writ Petition No. 15852 of 1998) decided on 27.08.2001. In said case, while deciding similar issue, the Division Bench of Karnataka High Court held that obtaining advice from UPSC under Article 320(3)(c) is not mandatory requirement. Coincidentally, the said petition was also relating to Railway Board based on similar Rules. Besides that, the petitioner relied on the decision of Hon'ble Supreme Court in the case of Union of India vs. T.V. Patel 2007 Lawsuit(SC)466. In said case, it is ruled that non-supply of copy of advice tendered by UPSC before passing final order does not afford the rights ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 11:45:21 ::: Judgment 5 243wp6173.06.odt nor gives cause of action to the employee. The Hon'ble Supreme Court by referring it's earlier decision in the case of State of U.P. vs. Manbodhan Lal Srivastava 1958 SCR 533 ruled that, order of punishment passed without looking to the consultation report of UPSC is valid. In otherwords, supply of consultation report to the delinquent is not a mandatory requirement. 7] Reverting to the impugned order we find that non-supply of UPSC consultation report was sole ground for allowing the Original Application. In view of the law laid by the Hon'ble Supreme Court as well as view taken by the Karnataka High Court the issue is no longer res integra. There is no legal requirement to furnish the copy of consultation report as the UPSC to the employee.
8] In the circumstances, impugned order would not sustain in the eyes of law. In view of that we allowed the writ petition by quashing and setting aside the impugned order dated 27.04.2006 passed by the Central Administrative Tribunal in Original Application No. 2136 of 2002. Consequently, Original Application stands dismissed and order dated 15.03.2002 passed by the employer is restored. No order as to costs.
9] Rule is made absolute in aforesaid terms. No costs.
(VINAY JOSHI, J.) (A.S. CHANDURKAR, J.)
Trupti
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