Central Administrative Tribunal - Bangalore
B B Meti vs South Western Railway on 20 October, 2021
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OA.No.170/321/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE
ORIGINAL APPLICATION NO.170/00321/2021
ORDER RESERVED ON 07.10.2021
DATE OF ORDER: 20.10.2021
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(On video conference from Central Administrative Tribunal, Chandigarh
Bench, Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(On video conference from Central Administrative Tribunal, Bangalore Bench,
Bangalore)
Sri B.B.Meti, 59 years
S/o Late Sri.Bheemappa Meti
Occn: Loco Pilot Mail/Express
O/o Chief Crew Controller
South Western Railway
Hubballi: 580 023.
Mobile No:9731646215
E-Mail: [email protected]
Residing at No.63
Basaveshwar Park
1st Stage, Sullad Road
Bengeri, Hubballi: 580023. ....Applicant
(By Advocate Shri P.A. Kulkarni - through video conference)
Vs.
1. General Manager
South Western Railway
Lakshmi Balakrishna Square
3rd Floor, Station Road
Hubballi: 580 020 for and on behalf of Union of India.
2. Divisional Railway Manager
South Western Railway
Lakshmi Balakrishna Square
3rd Floor, Station Road
Hubballi: 580 020.
3. Senior Divisional Personnel Officer
South Western Railway
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OA.No.170/321/2021/CAT/Bangalore Bench
Hubballi: 580 020.
4. Senior Divisional Mechanical Engineer (Operations & Freight)
Divisional Office
South Western Railway
Hubballi: 580 020. .....Respondents
(By Shri N. Amaresh, Senior Panel Counsel - through video conference)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"Quash the impugned charge memo bearing No:H/M.348/I/LPP/UBL/P/2021 BBM, dated 02.06.2021, (Annexure- A3), passed by Senior Divisional Mechanical Engineer (O&F), SWR, Hubballi, Respondent No.4 herein".
2. The facts of the case as pleaded by the applicant are as follows:
a) The applicant is working as Loco Pilot Mail/Express Train, South Western Railway, Hubballi. He entered into Railway service as Gangman in 1984 in Hubli Railway Division. He claims to belong to Muddebihal Taluk in Bijapur District and also claims to belong to 'Kadu Kuruba' community which is classified as Scheduled Tribe under the Constitution Scheduled Tribes order 1950.
b) At the time of his appointment, the applicant is claimed to have furnished school transfer certificate issued on 3.6.1982 and caste certificate issued by Tahsildar Muddebihal as per office order dated 04.12.1984.3
OA.No.170/321/2021/CAT/Bangalore Bench
c) The Railway Authority(respondent No.4) initiated disciplinary proceedings against the applicant under Rule 9 of the Railway Servants (Discipline and Appeal) Rules 1968 by issuance of charge sheet dtd.12.11.2001. The three charges levelled against the applicant in the charge memo were as follows:
'1. On 08.2.99 Sri B.B. Meti had produced a Caste - Certificate dated 16.1.1984 purported to have been issued by Tahsildar Gadag which indicates that he belongs to Tokarekoli Tribe which comes under Schedule Tribe. But when asked reply reportedly to furnish his residential address at Gadag to verify the genuineness of the caste certificate he failed to furnish the residential address at Gadag.
2. Sri B.B. Meti, was also asked to produce his school leaving/transfer certificate from the school he last studied and his permanent residential address at his native place vide this office letter No. H/O. 171/BCT/CV/IV/BBM dated 10.2.1999, which he failed to do so in spite of several reminders.
3. Sri B.B. Meti, has produced a school transfer certificate which is found to be false on verification.'
d) The Disciplinary Authority (Respondent No. 4) after holding the applicant guilty of the charges levelled against the applicant vide orders dated 07.06.2005 imposed the penalty of dismissal from service with immediate effect. The applicant made an appeal under Rule 18 of the DAR Rules and the Appellate Authority (Senior DME, Hubli) set aside the punishment order passed by the disciplinary authority treating the intervening period as 'duty period' vide orders dated 15.4.2006.
e) Subsequent to this, the applicant has got three promotions from Loco Pilot Goods-II to Loco Pilot Goods-I, from Loco Pilot Goods-I to Loco 4 OA.No.170/321/2021/CAT/Bangalore Bench Pilot Passenger-II and from Loco Pilot Passenger to Loco Pilot Mail/Express vide orders dated 28.05.2007, 18.09.2007 & 10.08.2012 respectively.
f) The Divisional Office Personnel Branch Hubli passed an order dated 13.02.2009 again dismissing the applicant from service by taking a stand that the applicant had produced a false community certificate for securing appointment in Railways. This dismissal order was issued on the grounds that the competent authority i.e. Commissioner for Social Welfare, Bangalore has clarified with other supporting records which prove that the applicant does not belong to Tokarekoli Community (ST). It was further proved during the verification proceedings by the Civil Authority that the applicant originally belongs to "Kuruba" Caste which does not come under Scheduled Tribe. It was therefore, concluded that the appointment in the Railways was itself void since its inception in terms of the interpretation given by the Hon'ble Supreme Court of India in their judgment in the case of Shri R. Vishwanatha Pillai vs. State of Kerala and others. The applicant was accordingly dismissed from service with immediate effect for producing false community certificate to secure employment in the Railways.
g) This order was challenged before this Tribunal in OA.No.70/2009. The Tribunal while allowing the OA held that the respondent No.4 i.e. Senior Divisional Mechanical Engineer/Power has not acted in the interest of natural justice while issuing the impugned order dated 13.02.2009. It further ruled that once an order has been passed on one inquiry report 5 OA.No.170/321/2021/CAT/Bangalore Bench and in the appeal the penalty of dismissal has been quashed, it has the effect of nullifying the earlier disciplinary order as well as the charge sheet. Therefore, if the 2nd order of dismissal has to be passed, it cannot be done without giving a fresh charge sheet to the incumbent. In view of the above, the dismissal order was set aside on the grounds that no fresh charge sheet had been issued to the applicant and he had been denied the opportunity of representing against the charges, which was in violation of principles of natural justice.
h) The respondents approached the Hon'ble High Court of Karnataka against the order of this Tribunal in WP.No.67412-67413/2010 which was dismissed by the Hon'ble High Court holding that when the 1st enquiry was set aside and applicant was directed to be reinstated on the very same grounds, dismissal of the applicant from service once again, is unsustainable in law.
i) Subsequently, the respondent No.4 had again issued charge memorandum against the applicant under Rule 9 of the Railway Servants (Discipline and Appeal) Rules 1968 on the same set of facts/allegations against the applicant containing identical charges as in the 1st case. This was again challenged before this Tribunal in OA.No.914/2014 on the grounds that the same set of charges had already been enquired into and the applicant was punished but that was set aside by the appellate authority. Hence, the present charge memorandum is liable to be quashed on the principles that no man can be punished on the same set of charges.
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j) This Tribunal while allowing the OA, observed that the impugned memorandum of charges dated 25.09.2013 is liable to be quashed since the charges mentioned in the impugned memorandum of charges dated 25.09.2013 are the same as those mentioned in the memorandum of charges dtd.12.11.2001. While quashing the impugned memorandum of charges, this Tribunal further observed that this will not come in the way of the respondents to initiate any action in accordance with law as observed by this Tribunal in the order dated 10.06.2010 in OA.No.70/2009 and in such a situation, the applicant is also at liberty to urge all his defences, including the one that are urged in the OA relating to the merits of the matter.
k) The applicant is due to retire on 31.10.2021. The respondent No.4 authority acting as Disciplinary Authority has once again issued a charge sheet containing the same charges vide No.H/M.348/I/LPP/UBL/P/2021 BBM dated 02.06.2021.
3. The respondents have filed their reply statement wherein they have averred as follows:
a) The cause of action for filing OA No. 914/2014 was different and distinct from the present OA. This Tribunal vide its order dated 30.11.2015 in OA No. 914/2014 had passed the following orders:
'While quashing the impugned memorandum of charges dated 25.09.2013 at Annexure -A18 and the order dated 16.06.2014 at Annexure-A21 we make it clear that the quashing of this impugned memorandum of charges dated 25.09.2013 will not come in the way of the respondents to initiate any action in accordance with 7 OA.No.170/321/2021/CAT/Bangalore Bench law as observed by this Tribunal in the order dated 10.06.2010 in OA No. 70/2009 and in such a situation the applicant is also at his liberty to urge all his defences, including the one that are urged in the OA relating to the merits of the matter.'
b) The Tribunal had allowed the OA with a direction to the respondents to initiate any action in accordance with law. Since this Tribunal has given liberty to the respondents to initiate action in accordance with law, the applicant cannot say that the appointment of the applicant in Railways has reached a quietus. The respondents have issued a charge memorandum and all proceedings are required to be followed by the respondents to finally complete the inquiry and arrive at the findings. At best, the applicant can seek to expedite the inquiry in view of his superannuation on 31.10.2021. The applicant cannot say that the order of the Hon'ble Tribunal in OA No.914/2014 has attained finality between the parties in the absence of no further challenge to the orders by the railway administration. The present OA filed by the applicant is, therefore, premature.
c) The applicant has raised questions of law questioning the legality of the action of the respondents invoking the principles of res judicata, which is not at all applicable to disciplinary proceedings particularly when the respondents have acted as per the directions of this Tribunal in OA No. 914/2014.
d) The applicant should put forward his defence before the Inquiry Officer and without causing any hindrance allow the inquiry to be completed. At this stage, even before the Inquiry Officer has submitted his report, the 8 OA.No.170/321/2021/CAT/Bangalore Bench applicant is approaching this Tribunal which is premature. The applicant cannot step into the shoes of the Inquiry Officer and cannot come to his own conclusions.
4. After hearing the parties, the records, in original, of the case, were directed to be produced by the respondents for perusal and understanding the issues involved.
5. The facts of this case as available from the pleadings made by the learned counsels for the parties, as well as from the records of the case produced by the respondents in original, emerge as follows:
a) The applicant was appointed on 08.02.1985. At the time of his appointment, as per his service book produced in original by the respondents, the applicant had been recorded as belonging to the caste of 'Tokarekoli' and his permanent address was recorded as Gadag, Dharwad district.
b) There was a pseudonymous complaint dated 12.12.1998 in which it was alleged that the applicant Shri B.B. Meti was not SC/ST and had produced a bogus Scheduled Tribe caste certificate for getting the appointment. It was also alleged that the father of the employee had also served the Railways and was not a SC/ST. On receipt of this pseudonymous complaint, there was a direction to investigate into the matter. The applicant had submitted his caste certificate and other information as desired by the office on 27.01.1999. The applicant had also denied that his father was a railway servant and had claimed that 9 OA.No.170/321/2021/CAT/Bangalore Bench he was a farmer. The copy of the caste certificate, submitted by the applicant, indicated that he belonged to 'Tokarekoli' caste. A photocopy of this certificate dated 16.01.1984 was also available in the service records as produced by the respondents.
c) The initial complaint, alleging production of a false caste certificate by the applicant at the time of his appointment, was followed by subsequent similar pseudonymous complaints on 11.06.2000 and 11.08.2001. It was further alleged that despite these complaints, no action had been initiated in the matter so far. There was also a complaint filed by the All India SC&ST Railway Employees Association, South Central Railways, Hospet Branch, Hubli Division dated 22.04.2001 in which it was alleged that there was delay in taking action by the administration against the applicant.
d) It is with this background that the charge sheet for major penalty was issued against the applicant on 12.11.2001 on the specific charges that he had produced a false caste certificate, a false school transfer certificate and had also failed to furnish his residential address in support of his claim of belonging to 'Tokarekoli' Schedule Tribe. The charges framed against him were held to be proved by the Inquiry Officer and the applicant was dismissed from service with effect from 07.06.2005.
e) The applicant preferred an appeal dated 16.06.2005, against his dismissal order, to the Appellate Authority i.e. Sr. DME/UBL. The Sr. DME/UBL disposed of the appeal vide orders dated 15.04.2006 10 OA.No.170/321/2021/CAT/Bangalore Bench setting aside the penalty of dismissal from service. The appellate authority in his orders had noted as follows:
'I have gone through the case in detail. It is seen that references have been made to state govt. offices for quite a long time. No clarifications are received from civil authorities.
The competent officials, who are authorised to issue caste certificates can only verify and state the status of the caste.
Since there is no certification from the competent authorities, it cannot be concluded that the C.E. has produced false caste certificate.
Hence the penalty is set aside. Intervening period to be treated as "DUTY".'
f) A perusal of the original records produced by the respondents further indicate, that the Deputy Commissioner, Gadag vide his letter dated 21.03.2006 addressed to Divisional Railway Manager, South Western Railway, Hubli had confirmed that the Scheduled Tribe certificate issued to Shri Beerappa Bheemappa Meti was authenticated as per the reports of Tehsildar, Gadag and the District Social Welfare Officer, Gadag. However, District Commissioner Office, Bijapur vide another letter addressed to Divisional Railway Manager, Hubli dated 08.05.2006, stated that the original caste of Shri Beerappa Bheemappa Meti was 'Hindu Kuruba' as per the report submitted by TSW/Muddebehal. Since both these reports were contradictory in nature, therefore, Deputy Commissioner, Gadag was again requested by the Divisional Railway Manager, Hubli vide its letter dated 11 OA.No.170/321/2021/CAT/Bangalore Bench 19.07.2006 to verify the validity of the caste certificate dated 16.01.1984 issued by Tehsildar, Gadag as follows:
'No. H/P.171/SCT/CV/IV/BBM HUBLI dt: 19.7.2006 Dy. Commissioner, Gadag District, Gadag.
Sir, Sub: Verification of genuineness of Caste status in favour of Shri B.B. Meti, Goods Loco Pilot, SSE/Loco/Hospet, South Western Railway, Hubli Division.
Ref: 1) This office letter of even No. Dtd 9.11.05.
2) Your office letter No. DSWO:C.Vfn.S3:05-06 dtd 21.3/20.4.06
--c--
Reference to above, the Schedule Tribe Caste Certificate issued to Shri Beerappa Bhimappa Metti on 16.1.88 issued by Tahsildar, Gadag was authenticated.
In this connection, it is brought to your kind notice that as per inability expressed by Dy. Commissioner/Gadag vide his letter dated 30.05.2000 (copy enclosed) to verify the caste status of Shri B.B. Metti, a communication was made to DC/Bijapur, since Shri B.B. Metti was belong to the native place of Amargol Village, Muddebhehal Taluk, Bijapur Dist. Accordingly Dy. Commissioner, Bijapur had reported to this office stating that Shri B.B. Metti belongs to Hindu-Kuruba caste.
In view of the above, the certification made by your office under reference No. 2 is contrary to the order issued by Dy. Commissioner, Bijapur. Therefore, you are requested to verify the validity of caste certificate dtd 16.1.1984 issued by Tahasildar/Gadag and the same has to be done as per the instructions prevailed on the date of issue of said caste certificate under the powers of District Magistrate and if found invalid after verification, the Caste Certificate issued by Tahasildar, Gadag to be cancelled and advised to this office to take further action in the matter.
Yours faithfully, Divl. Railway Manager, HUBLI'
g) The matter was also referred to Commissioner of Social Welfare, Government of Karnataka, by the respondents, to check the 12 OA.No.170/321/2021/CAT/Bangalore Bench genuineness of the caste of Shri B.B. Meti. The Commissioner in turn wrote to both the Deputy Commissioners in Gadag and Bijapur districts vide office letter dated 17.04.2007. In this letter he had requested that since both the districts have indicated a different caste of the candidate, the correct caste of the candidate needs to be verified from the District Caste Verification Committee of the concerned district and the report regarding genuineness of the caste certificate be sent to this office.
h) A perusal of the records further indicates that the Tehsildar, Gadag vide his order dated 25.11.2007 had withdrawn the 'Tokarekoli' caste certificate obtained by Shri B.B. Meti from Tahsildar, Gadag. Hence, it was concluded that the caste of the applicant was established as 'Hindu Kuruba' based on the letter issued by the District Commissioner, Bijapur.
i) The applicant has been claiming in his pleadings that he belongs to the 'Kudu Kuruba' caste, and that he had not obtained the ST certificate declaring him as belonging to 'Tokarekoli' caste which is a Scheduled Tribe.
j) Based upon the report of the verification proceedings by the civil authorities, the respondents, came to the conclusion that the applicant belong to "Kuruba" caste which does not come under ST.
k) It was subsequently held by the respondents that since he had secured employment in Railways on the strength of a false community 13 OA.No.170/321/2021/CAT/Bangalore Bench certificate dated 16.01.1984, his appointment in the Railways was void since its inception, in terms of the interpretation given by the Hon'ble Supreme Court in the case of Shri R. Vishwanatha Pillai vs. State of Kerala and others. Accordingly, the applicant was dismissed from service with immediate effect for producing false community certificate to secure employment in the Railways vide orders dated 13.02.2009.
l) This dismissal order was challenged by the applicant before this Tribunal in OA No. 70/2009 wherein this Tribunal held that the principles of natural justice were not followed as the applicant did not get any fresh notice or fresh chargesheet or a fresh opportunity before issuing the dismissal order after four years since his reinstatement. It was held that the order of dismissal cannot be passed without giving a fresh chargesheet to the incumbent. In view of the above, the impugned order dated 13.02.2009 was set aside.
m) Subsequent to the orders passed by this Tribunal, again a fresh memorandum of charges dated 25.09.2013 was issued against the applicant in which the main charges against the applicant were that he had produced a false caste certificate indicating his caste as 'Tokarekoli' and that he had also produced a school certificate issued by Head Master, Government Kannada School, Gangur Taluka, Hunagund District which was found to be false on verification. Issuance of this chargesheet was again challenged by the applicant before this Tribunal in OA No. 914/2014 in which it was alleged that 14 OA.No.170/321/2021/CAT/Bangalore Bench since the charges in this chargesheet were identical to the charges levelled against the applicant in charge memorandum dated 12.11.2001 and since the Appellate Authority had set aside the orders of the Disciplinary Authority vide its order dated 15.04.2006 in the earlier chargesheet, hence, the present chargesheet is liable to be quashed and set aside on the ground that no man shall be punished twice on the same set of charges. This Tribunal vide its order dated 30.11.2015 quashed the impugned memorandum of charges dated 25.09.2013. It also observed that the quashing of the impugned memorandum of charges dated 25.09.2013 will not come in the way of the respondents to initiate any action in accordance with law as observed by this Tribunal in the order dated 10.06.2010 in OA No. 70/2009 and in such a situation the applicant is also at his liberty to urge all his defences, including the one that are urged in the OA relating to the merits of the matter.
6. As can be observed from the facts of the case detailed above, the sole ground of the applicant in praying for relief of quashing of the present chargesheet is that the charge memorandum is based upon the same charges in which the applicant had been imposed the penalty of dismissal from service which had been set aside subsequently on appeal by the Appellate Authority on 15.04.2006. However, a perusal of the case reveals, that the grounds on which the penalty of dismissal had been set aside and the appeal had been accepted, was, that references had been made to state government 15 OA.No.170/321/2021/CAT/Bangalore Bench offices and, that no clarification had been received from the civil authorities in the matter.
7. A perusal of the records in original indicates that subsequently, references were made to the civil authorities and conflicting reports had been received regarding the caste of the applicant from the Deputy Commissioner, Gadag and Deputy Commissioner, Bijapur. Finally, the Tehsildar, Gadag had withdrawn the caste certificate issued by him which certified the caste of the applicant as 'Tokarekoli'. Therefore, as per the records, it is now apparent that the caste of the applicant, based on the reports of the civil authorities is not 'Tokarekoli', and it is 'Hindu Kuruba' as per the report of Deputy Commissioner, Bijapur.
8. Subsequent to these reports received from the civil authorities pertaining to the caste status of the applicant, no further inquiry has been held into the allegations that the applicant had obtained appointment into service in 1984, based on a false ST certificate issued in his name at that point of time, which had been subsequently withdrawn by Tehsildar Gadag.
9. The order dated 13.02.2009 issued by Railways stating that since he had secured employment in Railways on the strength of a false community certificate dated 16.01.1984, his appointment in the Railways was void since its inception, in terms of the interpretation given by the Hon'ble Supreme Court in the case of Shri R. Vishwanatha Pillai vs. State of Kerala and others, was quashed by this Tribunal on the grounds that it was issued without giving an opportunity to the applicant to represent against the same by issuing a fresh chargesheet.
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10. Subsequently, the fresh chargesheet issued by the respondents in the matter dated 25.09.2013 was also not inquired into appropriately by the respondents, since it was quashed by this tribunal vide orders dated 30.11.2015. While passing these orders, this Tribunal also observed that the quashing of the impugned memorandum of charges dated 25.09.2013 will not come in the way of the respondents to initiate any action in accordance with law as observed by this Tribunal in the order dated 10.06.2010 in OA No. 70/2009 and in such a situation the applicant is also at his liberty to urge all his defences, including the one that are urged in the OA relating to the merits of the matter.
11. Keeping the peculiar circumstances in this case, there cannot be a bar on the respondents, at this stage to conduct a detailed inquiry into the allegations that the applicant had obtained his employment on the basis of him claiming to belong to 'Tokarekoli' caste which is a ST. The applicant may have subsequently claimed that he did not belong to the 'Tokarekoli' caste and belongs to "Kudu Kuruba" caste. However, the fact remains that at the time of his initial appointment, the caste mentioned in his service book was 'Tokarekoli' as revealed by the perusal of the original records. Moreover, the records of the case produced by the respondents also reveal that the applicant had submitted on 27.01.1999, a copy of his ST certificate dated 16.1.84, claiming to belong to "Takerkoli" caste.
12. Keeping these facts in view, the respondents have a justifiable reason to conduct a detailed inquiry into the matter following due procedure as 17 OA.No.170/321/2021/CAT/Bangalore Bench established by law to establish the facts and look into the merits of the case after giving due opportunity to the applicant.
13. There can, therefore, be no reason for this Tribunal at this stage, to interfere into the inquiry being conducted by the respondents in this case. The present OA, praying for quashing of the charge memo dated 02.06.2021, being devoid of any merit, is liable to be dismissed.
14. Accordingly, the OA is dismissed. However, keeping in view the fact that the applicant is due to retire shortly, the respondents are directed to conclude the inquiry proceedings within a time frame not exceeding six months from the date of receipt of this order. There shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (ADMN) MEMBER (JUDL)
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