Central Administrative Tribunal - Kolkata
Mitali Biswas vs S E Railway on 18 July, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
O.A/350/1039/2014 Date of Order: I?, ^ ^ .
Coram: Hon'ble Mrs. Bidlsha Banerjee, Judicial Member
Hon'ble Mr. N.Neihsial, Administrative Member
Mitali Biswas, widow of
Late Haripada Biswas,
aged about 50 years, by profession
Housewife, presently residing
at P.O. & Vill. Raipur via Maheshtolla,
Dist. 24 Pgs(S), Kol-34,.
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> Applicant
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2. TinanciaiAcIvisor & Chie>Acc0!uvn):s Officer,
SdutXasternRillway^Garden/Reach,
3. FA & CAO(Traffic), South Eastern Railway,
Garden Reach,
Calcutta-43;
4. Sr. Statistical Officer,
South Eastern Railway,
Garden Reach,
. 'Calcutta -43.
Respondents
For the Applicant(s): Mr. C. Sinha, Counsel
For the Respondent(s): Mr. S. Banerjee, Counsel
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ORDER
v Bidisha Baneriee. Member U):
The applicant in his second journey to this Tribunal, has sought for the following reliefs:
"a) To set aside and quash the Impugned charge Memorandum dated 16.12.1991 being no.ST/E/98/1/3549 issued by the statistics and analysis officer, South Eastern Railway, Garden Reach;
b)To set aside and quash the Impugned Enquiry Report No. CEQ1/D&A/HPB/GRC/92/0126 dated 28.09.1992;
c) To set aside and quash the Impugned Order of punishment dated 11.2.1994 issued by Sr. Statistical Officer, South Eastern Railway, Garden Reach, Office order No.28/93 dt.22.3.93;
d) To set aside and quash the Impugned Order No.ST/E/174/Court Case/HPB dated 21.12.2012 issued by FA & CAOfTJ/SERIy./GRC.qnd Appellate Authority;
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e) To set aside and quasQthe Impugn^Order NotST/E/TTfl/Court Case/HPB/10 dated
2. The earlier OATbeing 0rATll68p996>vWa'sJreferrgd to seek the following im a S' vv// \\\># & fi reliefs:
"8.
A. To set aside and quasH^the Charge Memorandum,,dated 16.12.91, Enquiry Report, Removal Order dated 17:2.93 dnd-orderddied 14:i2.94 rejecting mercy petition;
B. To direct the respondents to reinstate your applicant in service w.e.f. 17.3.93 treat the period of suspension as spent on duty and all other consequential benefits."
Vide Misc. Application he had also assailed the appellate order dated 14.12.1994.
3. The O.A. was disposed of with the following order rendered on merits:
"10. From the above discussions, it is clear that the applicant was chargesheeted for major penalty by the Disciplinary Authority after taking independent decision on the report and advice sent by the Vigilance Organisation. The disciplinary proceedings was i held according to the prescribed procedures in which the applicant participated. The Disciplinary authority after due consideration of enquiry report and other materials as / (7 3 well as the representation of the applicant arrived at the conclusion to remove the applicant from service. The Disciplinary Authority arrived at such conclusion by exercise of this voluntary and independent discretion in objective manner. So far as the order of the Disciplinary Authority and appellate authority are concerned, the same, has not been enclosed in the O.A. by the applicant We could find the order of the Disciplinary Authority in the records. We have not found any irregularity in the order of the Disciplinary Authority. Since the order of the appellate authority has not been produced before us we refrain ourselves from making any categorical decision. But we presume on the basis of the Disciplinary Authority order that the appellate order is also an independent voluntarv/obiective order. We do not agree with the submissions of the Id. counsel for the applicant that entire disciplinary proceeding is vitiated because the same has been conducted at the instance and under the direction of the Vigilance Organisation. The Vigilance Organisation has worked within its limit and we do not find any transgression of the limits by the Vigilance Organisation in this case. The Disciplinary Authority had exercised his statutory power on his own without being influenced bv any other authority. We do not find any merit in the case and, therefore, do not intend to interfere in the orders of the Disciplinary Authority and appellate authority.
11. On the basis of our above discussions and observations, we find no merit in the application and, therefore, dismiss the same without any order as to costs."
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4. The order travelled to Hw'ble, Iriign murathrough .the applicant in WPCT is 200/2002 where Hbn'tfle Coup-obsewed^§tJ----4 tr\ C *
- I o u //! I *• \\, 3 I Ct; > "The Tribunal was of th^/iAknaka)tfA§h such recordS' Couid not be produced before it, it might be prpsumetMkdt^^erei^sHse^a reasoned order passed by the Railway Board. We fail tphnderstand how thefJnBffnaYactedjon presumption when no specific reasoned Wcfer Of/he^appellate authority ^ds/produced before the Tribunal. Before this Court also, Such order^jDassed by. the appellate authority could not be produced by the Iearned,A dvoca te df therespondents Railway Authorities.
"s.
XxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxZxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx "The learned Advocate of the petitioner also refers to the provision of Rule 22(2) of the Railway Servants(Discipline & Appeal) Rules, 1968. After, perusing of the said provision, we find that there is a dear violation of the provision of the said Rule, as aforesaid.
In such circumstances, we find sufficient merits in the submissions made by the learned Advocate of the writ petitioner and accordingly, we allow this writ application. ' The impugned order passed by the Tribunal is hereby set aside. We send back the matter to the appellate authority with a direction to dispose of the said appeal preferred by the applicant-writ petitioner and to dispose of the same within a period of eight weeks from the date of communication of this order. The appellate authority shall dispose of the appeal after affording an opportunity of hearing to the applicant-writ petitioner and shall pass a speaking order."
The observation of the Tribunal in regard to culmination of the disciplinary proceedings and findings and punishment imposed by Disciplinary Authority was not interfered with.
/ 'e -----------------------------------------■' a.W-TT^.t 4 Pursuant to the direction of the Hon'ble High Court in WPCT 200/2002 on 28.01.2008, the FA & CAO (Traffic), being the Appellate Authority, passed his order. The order stood challenged in O.A. 344/2008 and was quashed by this Tribunal as it was bereft of reasons. This Tribunal observed and held as under:
"3. The Appellate Authority has not followed the Rule22(2) of RS(D&A) Rules, 1968 and the orders of the Appellate Authority is not in accordance with the law laid down by the Hon'ble Supreme Court in case of Ram Chandra v. Union of India reported in 1986(2) SLR-608, Apparel Export Promotion Council v A.K. Chopra reported in 1999 SCC(L&S)- 405 and Narinder Mohan Arya v. United India Insurance Co. Ltd. reported in (2006)4 SCC 713. The appellate authority must give reasons even while affirming the order of the Disciplinary Authority. In our opinion, an order of affirmation need not contain elaborate reasons, but that does not mean that the order of affirmation need not contain any reasons whatsoever. The order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming or reversing or modifying the girder of the Disciplinary Authority. The purpose & disclosure of reasons is thaHh^/people^musj haye confidence in the judicial or quasi- judicial authorities, unless^the' reasons are disclosed^hoW%can a person know whether the authority has applied-fts mindfoffliWff^lso, givingof reasons minimizes chances of arbitrariness. HenceJt is an essentialirequireineht of the'njle^of law that some reasons at least in brief musffbe discIpse^n^uWdalfOj^qaasi judicidprcler, even if it is an order of affirmation. Injhis case§he-AppeP^e^uthorit^tpjecte^he%ppeal of the applicant without assigning ^y reasqi[it~~^~SnBB$ZZrmm~B G 1, Accordihglyh'mpugn^^f^e/of ih^ppeflati^uthoritwis quashed."
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;o / /1WV' ■ 1 The applican%wa$ affQrded%|p.ersbrraUhearing, and the appellate authority \ / on 18.01.2010 once eigai^&sscfcka cryptic^orderCilb'e ofder when challenged \x >y before this Tribunal in O.Av. 1966/2010' it jw.as^disposed of this time with the
--■ following orders on 05.06.2012:
"9. We, therefore, hold that the respondents/Appellate Authority have not complied with orders of the Hon'ble High Court passed in WPCT No.200 of 2002 as well as the orders passed in O.A.344 of 2008. Statutory requirement of Rule 22(2) of Railway Servants (Discipline & Appeal) Rules have not been complied with despite the matter was twice remanded back to the Appellate Authority. Under the circumstances the orders of the Appellate Authority are liable to be quashed. Apart from this The Appellate Authority has not followed the Rule 22(2) of Railway ServantsfDiscipTme & Appeal) Rules, 1968 and orders of the Appellate Authority is not in accordance with the law laid down by the Hon'ble Supreme Court in the case of Ram Chandra v. Union of India reported in 1986(2)SLR-608, Apparel Export Promotion Council v. A.K. Chopra reported in 1999 SCC(L&S)-405 and Narinder Mohan Arya v. United India Insurance Co. Ltd. reported in (2006)4 SCC-713. The applicant has not been given the protection of Railway Servants (Discipline & Appeal) Rules which is not permissible. This has happened for the third time showing clear non-application of mind in quasi judicial proceedings.
10. Accordingly the O.A. is allowed. The entire disciplinary proceeding is set aside .
and the order of the Appellate Authority is also quashed. The applicant should be given / ___ ,» 5 oil consequential benefits within a period of 3 months from the date the certified copy of the order is produced before the authorities."
The order dated 05.06.2012 was challenged before the Hon'ble High Court, this time by the Union of India, vide WPCT 305/2012 and on 01,09.2012, the Writ Application was disposed of with the following order:
"(i) the impugned orders of the Tribunal and the Appellate Authority are set aside subject to payment of costs ofRs.5,000/- within a week from today;
(ii) the Appellate Authority shall hear and decide the appeal of the respondent within four weeks from today;
(Hi) The officer, who will be named as the Appellate Authority, will be a person other than the persons, who were named as the Appellate Authority on the two earlier.occasions;
(iv) The appeal shall^^lThard only afterpayment of costs of Rs.5,000 to the respondent or to KiklearnedAdvqcgfe, appearing Before us. If the costs are not paid to the/resfkfndent ofctb within ohyeek from today, the appeal cannot be'hejfrd and t#e%r5eA>/|thetTntfunal will revive.
We expict-that at the^peRate Authority will not commit any mistake whilemS^h^^^iS^^lhl&lifwe hopepwifL he in conformity with
8. Is wiw 2! After affordingva^personD^^r|ng, t^e.n;ew Appellate^Authority, the FA & T CAO (T)/South EasteK; Railway "issued his detailed'7easc>nedr order on 21.12.2012 \ \^ ^ against which a Revision Petition U/s-2S -.of R'S' (t)&A) Rules 1968 was submitted to contend that "a) The Appellate Authority has totally violated the solemn order of the Hon'ble High Court passed in WPCT 305 of 2012 inasmuch as the complainants and other material witnesses have not been examined at the enquiry based on the judgment in the case of Hardwori Lai.
b) No Enquiry Officer has been appointed and therefore the complainant and other material witnesses have not been examined.
c) The entire case has been dealt with under the direction/instructions issued by the • Vigilance Branch as it will be perused from Annexure M2.
d) The Enquiry Inspector has been nominated by Vigilance Branch.
e) The Appellate Authority while dismissing the appeal vide order No.ST/E/174/Court 1, Case/HPB dated 21st December, 2012 has stated inn para (h) reads as follows:
In this regard it is clearly proved from the above deliberation of Rules 22(2) that the allegation was false. So it is once again established that Sri Biswas is in 1: ;5 / 6 the habit of submitting false facts and statements with malafide intentions to / mislead the Court of law."7
The Revision Petition was disposed of on 09.04.2013 with the following order:
"l.O / have carefully considered the revision petition dated 04.02.2013 of Shri Haripoda Biswas, Ex. Sr. Clerk/Statistics & Analysis Office/SER/GRC, his appeal, the entire D&A proceedings and all other facts and circumstances of the case.
2.0 The charge against Shri Biswas was that he accepted illegal gratification from some person with the assurance to give employment in Railways, and also he did not intimate the Railway Administration about the restaurant of his wife.
I have perused the appeal of Sri Haripada Biswas and also the orders of the Appellate Authority. Sri Biswas has alleged in his appeal that 'Principle of Natural Justice had not been followed as the complainant has not been examined by the E.O. In the inquiry proceedingspl ^h^d-ifoticep^thaUgll the reasonable opportunities were extended to Shri BisMaJs^and principles of naturalistic^ were maintained.
recordsit is see^^^^^^^^arnalSenkind^Sri Manik Lai Chowdhury From the had been examinecLand botlyfofcthem wire called, duringHhe\course of inquiry where they have also signed'the relevant,fiapefs'./S','-' % » \ C.O's allegations re§ardiQg^^0ppintiQenipf E.O.*and no inquiry having been held are also not correct os%^f*tv5a^if/cs\;nc/er^?e administrative control of General Administrationfoqd'riot unde^fi^/igilance^rq^^, had been appointed by DA as per Rule 9 of RSfD&Af'Ruie 19GsJMted Z?.OS^bz^The Appellate Authority has also held this view. It is also\seen th^sin^pompli'ance^of HdnS>le^High Coilrt's order, Sri Haripada ' Biswas had beeh^called/twhe^by the Appellate^Abth^rity/for personal hearing on 17.12.12 and ^.IZl^xHinceJ^am.jqfJthe^lgid^ that ample opportunity has been given by the Appel!aie^Authorityrt6^herG.O^p'fepresentJnis case. From Annexure 3 it is clear that C.O. was gived'sufficientjgpportunity^o^repr^ent his case and he had nothing further to add as per his answer^tp question $.0*3** C.O. has alleged that the Appellate *• .-i,-1*.
Authority might have overlooked some important points raised in the appeal. From the orders passed by the Appellate Authority I do not find any such lapses. On the contrary he has adhered to the procedures laid down in RS(D&A) Rules 1968. Further, justification regarding the penalty imposed by DA has also been intimated.
Considering the above I find that the Appellate Authority has abided by the order of the Hon'ble High Court and has given enough opportunity to C.O. to represent his case. The allegations regarding non-appointment of E.O. and the case being dealt under the directive/instructions issued by Vigilance Branch in incorrect and hence there is no merit in the Review Petition.
NOW THEREFORE, in view of the above reasons, being the revisionary authority, I come to the conclusion that application is devoid of any merit and I do not find that there is any need for any modification of the order dated 17.03.1993 which stands good.
Shri Haripada Biswas, Ex. Sr.Clerk/Statistics & Analysis Office/SER/GRC is required to acknowledge receipt of this Order."
I f 7 At hearing, Ld. Counsel for the applicant would vociferously argue that this Tribunal ought to decide the entire merit of the proceedings in view of the order passed in O.A. 1966/2010. He would further forcefully contend that the entire proceeding was defective. Further that the Criminal case, on selfsame allegation, has ended in an acquittal order, which judicial order the administrative authorities failed to honour.
10. Per contra, Ld. Counsel for the respondents would contend that having admitted the charge before the enquiry officer, there was no scope of interference by this Tribunal and, therefore, subsequent acquittal was of no V consequence. :\ \ k> V ^\\ f /7%
11. We heard Mr.^CSinha, Id^pSuns^eljfor/tl^Jpplicanfeand.IVlr. S.Banerjee, id.
O' counsel for the offipah^espor^^^^^p mat^al^on record.
12. We infer as undef: / \ (1) The ©.AX 1668/96^vvas^ordered'on merits.
J This Tribunal considered the condufcKofH'pro.ceedings;-''right from its initiation until its culmination with a penalty order, and affirmed its correctness upto the penalty order stage. The appellate order was only interfered with.
(2) In the second round, i.e. O.A.344 of 2008 also this Tribunal quashed only the Appellate Order.
(3) In the third round with O.A. 1966/2010, the entire disciplinary proceeding was quashed by this Tribunal but the said order was in turn set aside by the Hon'ble High Court in WPCT 305/2012 whereby and whereunder the Appellate Authority was only asked to pass a speaking 8 order. Therefore, the original orders of earlier rounds were restored along with the conclusive orders on the proceedings and the penalty.
i/ (4) The order passed by the Appellate Authority on 21.12.2012 pursuant to the directions of Hon'ble High Court, and the order on the revision petition on 09.042013 being absolutely in consonance, with the procedural rules and being issued with proper application of mind, there is hardly any scope for interference.
However, since we notice that the acquittal in criminal case was on 09.09.2015 i.e. post such orders, therefore, the contention of the Ld. Counsel that the judicial order of acquittal shoulFd!t)e^corfsjd^redsby. the Revisional Authorities, has sufficient force. y\ X\\ //X -A Accordingly, weipermifei:he^ap^||a1^t'fi»ap'f^pach thje rfevisional authorities
13. within 4 weeks frorh> -the fate^OFfiedlrpt'Na^ copy .Tqf this order with a ' =■ r V \//i ! \\\J' ^ 1 ; comprehensive prayer, annexingsfl%4ys|gM^sed'>i3^ 31.08.jQ015 by the Judicial > i:"' Magistrate (Annexure-R-lTpYejojh'der).foriresh cohsiderafion in accordance with law. In the event, such a prayer is^mad^j^shalhbe disposed of in accordance with law within 8 weeks thereafter.
14. Accordingly the O.A. stands disposed of. No costs.
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^{N. NeihsiaOp-- (Bidisha Banerjee)
Administrative Member judicial Member
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