Central Administrative Tribunal - Hyderabad
S Ramu vs M/O Railways on 6 October, 2021
OA/737/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
OA/020/737/2015
Date of CAV : 21.09.2021
Date of pronouncement: 06.10.2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr. B V Sudhakar, Admn. Member
S. Ramu S/o Rama Rao,
Aged about 45 years, Occ: Loco Pilot(SHG-II),
O/o CCC/BZA, Vijayawada Division,
South Central Railway,
Vijayawada, A.P.
...Applicant.
(By Advocate: Mr. K Sudhaker Reddy)
Vs.
1. Union of India,
Represented by the General Manager,
Ministry of Railways,
South Central Railway, Rail Nilayam,
III Floor, Secunderabad- 500 071.
2. The Senior Divisional Electrical Engineer,
South Central Railway, Vijayawada Division,
Vijayawada Office Compunds,
Vijayawada, A.P.
3. The Additional Divisional Electrical Engineer/OP/BZA,
Vijayawada Division, S.C. Railway,
Vijayawada, A.P.
4. Sri. N. Surapa Raju, S/o not known,
Occ: Chief Loco Inspector/TRO/BZA & Enquiry Officer,
O/o Sr. DEE/BZA,
Vijayawada Division,
S.C. Railway, Vijayawada, A.P.
... Respondents.
(By Advocate: Mr. N Srinatha Rao, SC for Railways)
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OA/737/2015
ORDER
(As per Hon'ble Mr. Ashish Kalia, Judl. Member) Through Video Conferencing:
This application has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"Quash and set aside the impugned charge sheet No. B/E.150/TRSO/II/5/V/15/2013 issued by R-3 and the Enquiry Report letter No. B/E.150/TRSO/II/5/V/15/2013 dt. 27.04.2015 by declaring the same as illegal, arbitrary and clear violation of the statutory provisions of the Rule No. 10 of the RS(D&A) Rules, 1968 and Rule No.9(18) of the Railway Servants (Discipline & Appeal) Rules, 1968 and against the principles of natural justice and against the law laid down by the Apex Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd., reported in JT 1999(2) SC 456 and clear violation of the applicants fundamental rights guaranteed under Article 14 & 21 of the Constitution of India."
2. The brief facts of the case are that the applicant was issued charge- sheet on the ground that he has married to Mrs. L. Ramanamma in the year 2001 and remarried to another woman, Smt. Gantada Neelaveni. Initially, the Enquiry Officer has submitted report holding that the charges are not proved. The Disciplinary Authority(R-3) has remitted back the matter to the Enquiry Officer(R-4) for holding further enquiry. Ultimately, on completion of further enquiry, the Enquiry Officer has submitted his report on 10.04.2015 holding charges against the applicant and the Disciplinary Authority has imposed penalty of reduction of pay by one stage from Rs. 13010/- to Rs. 12630/- for a period of six months w.e.f. from 01.09.2015. A Criminal case is also pending on the same issue before the Trial Court. The applicant has challenged the penalty of reduction of pay relying upon the Hon'ble Supreme Court judgment in the case of Capt. M Paul Anthony Vs. Bharat Gold Mines Ltd, reported in JT 1999(2) SC 456 in which it was held that "when both the criminal case and the departmental Page 2 of 10 OA/737/2015 proceedings are based on the same set of facts and evidence without any iota of difference, it is desirable to stay the departmental proceedings till the conclusion of the criminal proceedings. He further stated that even the complainant had not furnished any evidence for the allegation of bigamy and the respondents ought not to have conducted departmental enquiry into the allegations of bigamy.
3. Notices were issued. Mr. N Srinatha Rao, learned counsel appeared for the respondents and filed reply. After reiteration of the facts, the respondents' counsel has submitted that the department is investigating the re-marriage of the applicant with another woman, Smt. G Neelaveni, which is illegal and contrary to the Hindu Law and also against the service rules that "no Government servant shall remarry having spouse living". The applicant was issued charge-memo and sought explanation. The applicant has submitted his explanation of 18.01.2014. The Disciplinary Authority, having not satisfied with the explanation, initiated disciplinary proceedings and appointed an Enquiry Officer. The Enquiry Officer submitted his report on 10.04.2015 holding that the charges were proved. The applicant has not questioned the said remittance back to the Enquiry Officer by the Disciplinary Authority for further investigation at that particular time. It is further stated that the judgment relied upon by the applicant in the case of Capt. M Paul Anthony(supra) is not applicable in the present case.
4. Heard the learned counsels for the parties. The issues emerge for decision of this Tribunal are whether departmental enquiry can be held simultaneously on the same charges which were the subject matter of the criminal case. Secondly, whether there is any violation of Rule 10 & 9(18) Page 3 of 10 OA/737/2015 of the Railway Servants(Discipline & Appeal) Rules, 1968. It is submitted that the Disciplinary Authority is within his powers to return the Enquiry Report duly asking the Enquiry Officer to attend to the anomalies found in the enquiry report and if need be, call for additional witnesses as lacunae were found in the Enquiry Report. And ultimately, the matter is remitted back for the same.
5(a) Coming to the legal position, in recent judgments in the cases of SBI & Ors. Vs. Neelam Nag & Anr. (2016 9 SCC 491) & Stanzen Toyotetsu India Private Limited Vs. Girish V & Ors on 21.1.2014 the Hon'ble Supreme Court observed that 'simultaneous proceedings can continue. But leverage is granted to the Tribunals and Courts to see on case to case basis.' The relevant portion of Stanzen Toyotetsu(supra) is re-produced below:
".......Although the pronouncements of this Court have stopped short of prescribing any strait-jacket formula for application to all cases the decisions of this Court have identified the broad approach to be adopted in such matters leaving it for the Courts concerned to take an appropriate view in the peculiar facts and circumstances of each case that comes up before them. Suffice it to say that there is no short cut solution to the problem. What is, however, fairly well settled and was not disputed even before us is that there is no legal bar to the conduct of the disciplinary proceedings and a criminal trial simultaneously. In Depot Manager, Andhra Pradesh State Road Transport Corporation vs. Mohd. Yousuf Miyan (1997) 2 SCC 699, this Court declared that the purpose underlying departmental proceedings is distinctly different from the purpose behind prosecution of offenders for commission of offences by them. While criminal prosecution for an offence is launched for violation of a duty that the offender owes to the society, departmental enquiry is aimed at maintaining discipline and efficiency in service. The difference in the standard of proof and the application of the rules of evidence to one and inapplicability to the other was also explained and highlighted only to explain that conceptually the two operate in different spheres and are intended to serve distinctly different purposes. The Page 4 of 10 OA/737/2015 relatively recent decision of this Court in Divisional Controller, Karnataka State Road Transport Corporation v. M.G. Vittal Rao (2012) 1 SCC 442, is a timely reminder of the principles that are applicable in such situations succinctly summed up in the following words:
"(i) There is no legal bar for both proceedings to go on simultaneously.
(ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law.
(iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
(iv) Departmental Proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common."
(b) In another judgment, the Hon'ble Supreme Court, in the case of Syad Akbar V. State of Karnataka (1980) 1 SCC 30, held as under:
".......this Court dealt with in detail the distinction between negligence in civil law and in criminal law. It has been held that there is a marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt."
In view of the above, we are of this opinion that there is no bar for holding simultaneous proceedings against the accused officer. In the departmental proceedings, the charges are proved on the basis of preponderance of probability whereas charges in a criminal case have to be proved beyond reasonable doubt.
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OA/737/2015
6. It is crystal clear from the above said judgments that the first issue raised by the applicant is not tenable under the law.
7. The next point raised by the applicant is remitting back the matter to the Enquiry Officer. In this regard, let us see the rule position i.e. Rule No. 10 of the RS(D&A) Rules, 1968 which read as follows:
Rule No.10 of the RS(D&A) Rules, 1968 reads as follows:
"10. Action on the enquiry report;- (1) If the disciplinary authority(a) after considering the Enquiry report, is of the opinion that further examination of any of the witnesses is necessary, in the interests of justice, it may recall the said witness and examine, cross-examine and re-examine the witness; (b) is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further enquiry and report and the inquiring authority shall thereupon proceed to hold further enquiry according to the provisions of Rule 9, as far as may be."
By reading the above rule position, it is clear that the Disciplinary Authority has power to order further examination. If necessary, the Disciplinary authority has power to remit the case to the inquiring authority for further enquiry. At the same time, the applicant has also not challenged the said remittance of the Enquiry Report by the Disciplinary Authority to the Enquiry Officer. Thus, the applicant is estopped from taking this plea before this Tribunal. This Tribunal is of the view that there is nothing wrong in remittance of Enquiry Report by the Disciplinary Authority to the Enquiry Officer.
8. The other point raised by the applicant in this OA is violation of Rule No.9 (18) of the RS(D&A) Rules, 1968. Let us discuss the rule position which is as under:
"9(18): If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, Page 6 of 10 OA/737/2015 allow the Presenting Officer, if any, to produce evidence not included in the list given to the Railway servant or may itself call for new evidence or recall and re-examine any witness and in such cases, the Railway servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the enquiry for three clear days before the production of such new evidence exclusive of the day of adjournment and the day to which the enquiry is adjourned. The inquiring authority shall give the Railway servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Railway servant to produce new evidence if it is of the opinion that the production of such evidence is necessary in the interest of justice.
Note; new evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally."
9. After conjoint reading of these two rules, the position emerges that the Disciplinary Authority is empowered for remitting back the case and can also give directions to the Presenting Officer for recalling witnesses, cross-examination of witnesses and collect new evidence in order to come to the truth of the matter. Thus, we are of the considered view that there is no violation whatsoever as alleged by the applicant.
10. This Tribunal directed the applicant to upload the judgment passed by the Trial Court in a criminal case in which he was A-1 where the applicant was found guilty under Section 498-A of the IPC and was convicted under Section 248(2) Cr.P.C and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 5000/-. We are of this view that the department authorities failed to take cognizance of the fact that the applicant was convicted in the criminal case. Incidentally, this Tribunal directed the applicant to upload the judgment of the said criminal case.
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OA/737/2015
11. The Hon'ble Apex Court has dealt with this issue elaborately and laid down verdict in the matter of State of Bihar Vs. Phulpari Kumari in CA No. 8782 of 2019 the relevant portion of which is extracted below:
"6. The criminal trial against the Respondent is still pending consideration by a competent criminal Court. The order of dismissal from service of the Respondent was pursuant to a departmental enquiry held against her. The Enquiry Officer examined the evidence and concluded that the charge of demand and acceptance of illegal gratification by the Respondent was proved. The learned Single Judge and the Division Bench of the High Court committed an error in re-appreciating the evidence and coming to a conclusion that the evidence on record was not sufficient to point to the guilt of the Respondent. It is settled law that interference with the orders passed pursuant to a departmental enquiry can be only in case of 'no evidence'. Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental enquiry. Strict rules of evidence are to be followed by the criminal Court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge. The High Court ought not to have interfered with the order of dismissal of the Respondent by re-examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the Enquiry Officer."
12. The Hon'ble Supreme Court, in the case of SBI Vs. Ramesh G Pandit 2006 4 SCT 61, held as under:
"The High Court, on re-appreciation of evidence, reversed the finding of the Enquiry Officer and set aside the orders of the Disciplinary Authority and Appellate Authority. Before we proceed further, we may observe at this stage that it is unfortunate that the High Court has acted as an appellate authority despite the consistent view taken by this Court that the High Court and the Tribunal while exercising the judicial review do not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by re-appreciating the evidence as an Appellate Authority."
A similar view is taken in the case of Govt. of A.P. and Ors. v. Mohd. Narsullah Khan (2006) 2 SCC 373.
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OA/737/2015
13. This Tribunal looked into the evidence available on records of the Enquiry Officer in the departmental proceedings which are as under:
"Smt. G Neelaveni has stated that "...She had SSC Certificate issued by the Board of Secondary Education and signed by Head Master, Luthern High School, Alcot Gardens, Rajahmundry with her photo duly attested and had Voter Identity Card in which her husband's name Sathi Babu is mentioned and she is living with her husband and daughter. She stated that she knows Ramu from 2004 at Rajahmundry and she had intimacy with Ramu. She stated that she didn't marry Sr. S Ramu, but she didn't prove whether the daughter was born with him or not, but she had intimacy with Sri S. Ramu."
Thereafter, Sri. S Ramu, in his statement, stated that he married L. Ramanamma on 05.04.2001 at Himayat Nagar, Hyderabad. He stated that he did not marry any other women till date and he has not tried to marry any another lady. It was parents force but it's not in his interest. The Birth Certificate was not correct and his name in the said Birth Certificate as father of a girl with the lady ' Neelaveni" was not factually him, it might be impersonation or somebody else of similar name. He stated that he knows Neelaveni from 2004 but he was not married to her. He had intimacy with Neelaveni and her family and according to his knowledge and belief, the baby was not born out of his immoral activity with her."
Further, Dr. Sri CH. Rajendra Prasad, who is running Godavari Nursing Home and working as a Medical practitioner since 1975, stated that in the year 2008, one Smt. S. Neelaveni, wife of Ramu was admitted in his Nursing home for delivery purpose. She delivered female child normally on 20.01.2008. He further stated that one year thereafter, the applicant came along with advocate and asked him whether he can request the hospital authorities to change his name if possible. In that connection, he also personally approached him and requested in that regard, for which he had refused saying that was already recorded and reported to the Municipal authorities. For that reason, his request was not considered.
14. After going through the statements of the witnesses in the Enquiry Report, we are of this view that there is sufficient material evidence available for the Enquiry Officer to come to the conclusion in the departmental proceedings, in his own wisdom. The only test applicable is 'Preponderance of probability' in which the applicant has to prove his innocence rather the State has to prove the charges against the accused.
15. In view of this, it is settled law that the scope of judicious scrutiny in the matter of departmental proceedings culminated into passing of the order Page 9 of 10 OA/737/2015 imposing penalty would be limited to decision making process not to the decision itself. This Tribunal, in exercise of judicial review, could not sit as a Court of Appeal so as to re-appreciate the evidence. This Court will not interfere in the finding of either Enquiry Officer or Disciplinary Authority unless and until enquiry report and orders are patently arbitrary or utterly perverse. In the present case, we are not in agreement with the counsel for the applicant that the findings of the Enquiry Officer are without any material and evidence as several witnesses were examined and fair opportunities were given to the applicant for cross-examination.
16. In disciplinary cases, the scope to re-examine evidence is very limited and if there is no evidence, the disciplinary case can be set aside. And, it is well settled that sufficiency of evidence is not in the realm of Judicial review. In departmental cases, the preponderance of probability plays a vital role but not the strict rule of evidence beyond doubt.
17. This Tribunal, after considering the legal position as well as facts and circumstances of the case, feels that the present OA lacks merits and the same is liable to be dismissed. Accordingly, the OA is dismissed without any order as to costs.
(B.V. SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
/Ram/
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