Central Administrative Tribunal - Mumbai
Dated This Tuesday The 6Th Day Of ... vs The Union Of India on 6 November, 2012
1 O.A.345/2008CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI.
O.A.345/2008Dated this Tuesday the 6th Day of November, 2012.
Coram: Hon'ble Shri Justice A.K. Basheer, Member (J) Hon'ble Shri S.P. Singh, Member (A).
Shri Raghunath Chintaman Kedar, Retired Dy. Chief Mechanical[p Engineer (P), Carriage Workshop, Matunga.
Residing at: 704, Sapphire Building, Nirmal Lifestyles, L.B.S. Marg, Mulund (W), Mumbai 400 080. .. Applicant.
( By Advocate Shri S.V. Marne ).
Versus
1. The Union of India, through the Secretary, Ministry of Railways, Railway Board, Rail Bhavan, New Delhi 110 001.
2. The General Manager, Central Railway, HQ Office, Mumbai CST, Mumbai. ..Respondents.
( By Advocate Shri S.C. Dhawan ).
Order (Oral) Per : Hon'ble Shri S.P. Singh, Member (A).
This Original Application has been instituted seeking quashing of Order dated 08.06.2007 (Annexure I) with all consequential benefits.
2. While working as Dy. CME/P/PR during the years 1999-2000 the Applicant was served with a charge-sheet dated 28.07.2002 (Annexure A-2) by 2 O.A.345/2008 Respondent No.2 levelling following four Charges alleging gross misconduct by the Applicant therein:
Article-1:
Shri R.C. Kedar had issued the suitability report of foundry raw material i.e. Ferro Phosphorous on two occasions without carrying out the C&M lab test, inspite of CME & CWM/PR instructions for the same. The suitability report was neither routed through the concerned section nor any documents were maintained on the basis of which suitability was given. Moreover, the said suitability report was issued on 6.5.00 against the supply received in Dec.'99 and Jan.2000 i.e. after the material was fully consumed. The above action indicates intention devoid of bonafide.
Article-2:
On 16.6.00 when section in-charge of foundry shop, Shri Magar complained of inferior quality of raw material being used, based on visual inspection, same was not sent for lab testing and instead he was shifted from foundry to Progress Section by Shri R.C. Kedar, thus indicating his intention devoid of bonafide.
Article-3:
During the Vigilance checks in the month of May & June 2000 all the 6 supplies available at Parel Workshop were found to be of inferior quality and therefore he is responsible for supervisory failure for the use of inferior raw material in the foundry shop and failed to comply with instructions of his superiors that correct quality of raw material is used in the foundry shop.
Article-4:
Unused and inferior quality of raw 3 O.A.345/2008 material, Ferro Silicon was found dumped in two stacks near the heap of slag at foundry shop premises, which was prominently visible. This quantity is estimated to be approximately 93.383 MT, the value of which works out to Rs.28,01,490/-and this is direct loss to Railways since unused. Shri R.C. Kedar being overall in-charge of foundry shop failed to take notice of this and take necessary steps to prevent this loss, indicating his supervisory failure.
Thus Shri R.C. Kedar, by his aforesaid acts of omission and commission failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Railway Servant and thereby contravened the provisions of Rule 3(1) (i), (ii) & (iii) of Railway Services (Conduct) Rules 1966.
3. The Inquiry Officer, a retired Chief Engineer of Eastern Railway was appointed by the Disciplinary Authority to enquire into the charges mentioned above. During the midst of inquiry, the Applicant made allegations of bias against the Inquiry Officer which was found to be devoid of merit. After conducting inquiry, the Inquiry Officer submitted his report dated 10/13.07.2006 holding all the four Articles of Charges as established and proved. The Applicant retired from service on superannuation on 30.11.2005 and, therefore, the instant proceedings which were instituted while he was in service were, on his retirement, deemed to be proceedings under Rule 9 of the Railway Services (Pension) Rules, 1993 in terms of Rule 9(2)(a) of the 4 O.A.345/2008 said Pension Rules. The Inquiry Officer's report was communicated to the Applicant who submitted his representation dated 12.10.2006 thereupon. On careful consideration of the matter, Disciplinary Authority, the General Manager, Central Railway who had instituted these proceedings against the Applicant while he was in service remitted the case to the President in terms of provisions contained in proviso to the said Rule 9(2)(a) of the said Railway Services (Pension) Rules, 1993. During the pendency of this disciplinary proceedings an O.A.No.30/2006 was filed by the Applicant before this Tribunal, which decided the matter on 23.01.2006 (Annexure-9) by passing directions for expediting and completing these proceedings within a stipulated time frame. Accordingly, after careful consideration of the records of these proceedings including the representation of the Applicant on the Inquiry Officer's report keeping in view UPSC's advice communicated to the Ministry of Railways vide UPSC's letter No.F.3/438/2006/S.I dated 18.05.2007 and also after considering all factors relevant to the case, the President agreed with the findings of the Inquiry Officer regarding all the four Articles of Charge mentioned above. He came to the conclusion that grave misconduct had been committed by the Applicant 5 O.A.345/2008 and accepting the UPSC's aforesaid advice decided that ends of justice would be met by imposing 10% cut in pension otherwise admissible to the Applicant for a period of one year. Feeling aggrieved against this order dated 08.06.2007 (Annexure-I) the Applicant filed this Original Application.
4. The Respondents filed counter affidavit on 05.01.2009. It was pleaded that this Original Application is not maintainable in law as the Applicant is requesting this Tribunal to re-assess the evidence on record and to come to a different conclusion which is not permissible in view of catena of rulings by Hon'ble Apex Court mentioned in the case of Transport Commissioner Vs. A. Radhakrishnan. Further, the Respondents denied all the allegations of bias and malafide alleged by the Applicant. The Tribunal is required only to see whether the procedure is properly followed in holding the enquiry and the principle of natural justice had been duly followed. The Respondents further relied on the rulings of the Hon'ble Apex Court in the case of Transport Commissioner Vs. K. Ramamurthy and in the case of Registrar High Court of Bombay Vs. S.S. Patil wherein the Hon'ble Apex Court held that Tribunal/Court had no jurisdiction to go into the truth and correctness of the charges and the 6 O.A.345/2008 findings. Scope of judicial review is limited to the extent whether the proper procedure has been followed and principle of natural justice have been observed. Further, the Respondents cited the case of N. Rajarathinam Vs. State of Tamil Nadu [1991 AISLJ 10] wherein it was held by the Hon'ble Apex Court that the standard of proof in domestic inquiry is only preponderance of probability, Court cannot act as fact finding forum. If there is some evidence on record, the decision of disciplinary authority cannot be faulted. In the case of Government of Tamil Nadu & Others Vs. S. Vel Raj [1997(2) AISLJ 32], the Hon'ble Apex Court ruled that the standard of proof in DAR action is not a proof beyond doubt. The Respondents state that the Competent Authority (President) in agreeing with the Inquiry Officer's findings and accepting the UPSC's advice held all the four Articles of Charge against the Applicant as proved. It is further pleaded by the Respondents that there was no disagreement with the UPSC's advice, since the quantum of pension cut recommended by the UPSC had been accepted by the Disciplinary Authority. Consultation with the UPSC is between the Government and the constitutional authority called UPSC. It is just an advice for the Government. This is not a communication between the Applicant and the 7 O.A.345/2008 UPSC and as such the allegation of the Applicant that advice of the UPSC has not been considered is without any basis. The Respondents has, therefore, strongly refuted the allegations of the Applicant in this regard. The Respondents denied in the pleadings that the charges held to be proved by the UPSC are not grave. On the other hand it is pleaded by them that the charges proved by UPSC constitute grave misconduct and, therefore, the order passed by the Disciplinary Authority after strictly following the procedure laid down in Railway Servants (Discipline & Appeal) Rules, 1968 and after giving full opportunity to the Applicant at different stages of the proceedings and is perfectly legal and valid and the penalty imposed is also commensurate with the misconduct proved against the Applicant. Keeping in mind discussions above, it is prayed by the Respondents that there is no occasion for this Tribunal to interfere with the orders passed by the Competent Authority.
5. No rejoinder was filed by the Applicant despite seeking permission from this Tribunal to file the same on several occasions.
6. We have heard the learned counsel for the parties, perused the records and assessed the rival contentions.
8 O.A.345/20087. On going through the foregoing paras we find that adequate opportunity had been provided to the Applicant at the time of submission of his defence statement, during the course of the inquiry and after the conclusion of the inquiry when the inquiry report was remitted to him for his reply. The procedural provisions laid down in the Railway Servants (Discipline & Appeal) Rules, 1968 have been strictly followed. It is only the Applicant who had been raising insignificant issues from time to time causing avoidable delay, if any. However, these frivolous issues raised by the Applicant were also got examined by the Disciplinary Authority and the result of examination was communicated to the Applicant. The procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are generally speaking, conceived in his interest. Violation of every procedural provision cannot be said to automatically vitiate the inquiry held or ordered passed. This principle has been laid down by the Hon'ble Apex Court in the State Bank of Patiala Vs. S.K. Sharma [1996(2) SLR 631].
8. It is well settled principle of law that judicial review is not against the decision. It is against the decision making process. Judicial review 9 O.A.345/2008 is not an appeal from a decision but a review of the manner in which the decision is made. The power of judicial review is meant to ensure that the individual receives fair treatment and to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of Court. When an inquiry is conducted on charges of misconduct by public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer and whether rules of natural justice are complied with, whether the findings and conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach the finding of fact or conclusion. However, the finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof fact or evidence as defined therein apply to disciplinary proceedings. When the authority accepts the evidence and conclusion receives support therefrom the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. This principle was laid down by the Hon'ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India [1995(6) SCC 749] on which the Respondents have justifiably relied. The Respondents have further cited the following case 10 O.A.345/2008 laws in support of their contention.
(i) Government of Tamil Nadu & Ors. Vs. S. Vel Raj [1997(2) AISLJ 32], the Hon'ble Apex Court held that standard of proof in DAR action is not a proof beyond doubt.
(ii) Government of Tamil Nadu Vs. N. Ramamurthy [AIR 1997 SC 3571], the Hon'ble Apex Court held that the Tribunal has no jurisdiction to go into the correctness of truth of the charges and the Tribunal cannot take over the functions of the disciplinary authority.
(iii) Government of Tamil Nadu & Anr. Vs. A. Rajapandian [AIR 1995 SC 561], the Hon'ble Apex Court held that it has been authoritatively settled by string of authorities of this Court that the Administrative Tribunal cannot sit as a Court of Appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings.
Where there is some relevant material, which the disciplinary authority has accepted, and which material reasonably support the conclusion reached by the disciplinary, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority.
9. Considering the facts stated in the 11 O.A.345/2008 foregoing paras and the legal position as stated above, we do not find any infirmity or any other procedural lacuna in the penalty order passed by the Disciplinary Authority. The Original Application is devoid of merit and is liable to be dismissed.
10. The Original Application is accordingly dismissed. No order as to costs.
(S.P. Singh) (Justice A.K. Basheer) Member (A) Member (J).
H.