Central Administrative Tribunal - Patna
Ravindra Kumar Sinha vs Railway on 13 January, 2023
-1- OA/050/00871/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH,PATNA
OA/050/00871/18
/00871/18
Reserved on: 02.11.2022
Pronounced on : 13.01.2022
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Rabindra Kumar Sinha, Son of Late S.M. Prasad, ExEx-Workshop
op Manager
(Diesel & Wagon), Eastern Railway, Jamalpur, District
District-Munger, Pin Code--
811214 (Bihar), Resident of Suraj Rudrani Niwas, East Lohanipur,
Kadamkuan, Das Lane, POPO- Kadamkuan, PS - Kadamkuan, District- Patna,
Pin Code
Code- 800003(Bihar).
...... Applicant.
- By Advocate: - Mr. M.P. Dixit
-Versus
Versus-
1. The Union of India through the Chairman, Railway Board, Ministry
of Railway, Rail Bhawan, New Delhi-110001.
Delhi
2. The Member (Rolling Stock), Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi-110001.
3. The Secretary, Railway Board, Ministry of Railway, Rail Bhawan,
New Delhi-110001.
4. The General Manager, eastern Railway, Kolkata, 17, Netaji Subhash
Chandra Road, Kolkata, Pin Code- 700001 (W.B.).
5. The General Manager (Personnel), Eastern Railway, Kolkata, 17,
Netaji Subash Chandra Road, Kolkata, Pin Code-
Code 700001 (W.B.).
6. The Finance Officer & Chief Accounts Officer, Eastern Railway,
Kolkata, 17, Netaji Subash Chandra Road,
Ro Kolkata, Pin Code- 700001
(W.B.).
...... Respondents.
- By Advocate: - Mr. H.P. Singh, Sr. SC
-2- OA/050/00871/2018
ORDER
Per S.K. Sinha, A.M.:
A.M.:- Instant OA is before this Tribunal for the second time after being remanded by Hon'ble Jharkhand High Court.
Earlier, tthis his Tribunal had disposed of the OA on 24.10.2018 at admission stage quashing and setting aside the charge memorandum holding that the issuing auth authority ority was without competence.
Tribunal's decision was challenged by respondents in writ Petition no. WP(T) No.700 of 2019 on the file of Hon'ble Jharkhand High Court.. Hon'ble High Court remanded the case to the Tribunal on 21.01.2021 for fresh consi consideration deration after giving opportunity to the respondent Railways to file written statement statement.
2. Instant OA has been preferred assailing the charge memorandum for major penalty against applicant under Rule 9 of the Railway Servant (Disciplinary & Appeal) Rules issued on 26.09.2018 (Annexure (Annexure-A/1), just four days before his superannuation superannuation. Applicant has prayed for following reliefs:-
r "(a) That Your Lordships may graciously be pleased to quash and set aside the Charge Memorandum No. SP.240/D & A/RKSA/RKS dated 26.09.2018 issued by the Respondent No. 4 as contained in Annexure-A/1.
(b) That your Lordships may graciously be pleased to release the withheld amount of Death Cum Retirement Gratuity, commuted value of pension and Leave Encashment etc. due to pendency of the said Charge memorandum henceforth alongwith statutory interest thereupon.
(c) That your Lordships may further be pleased to command/direct the respondents to grant all the consequential
-3- OA/050/00871/2018 benefits in favor of the applicant for which he is legally legally entitled to."
3. Applicant's case as set out in the OA reflects that he was initially appointed as Apprentice Mechanic, a Group 'C' post, in February, 1983 and was finally promoted as Workshop Manager (Diesel & Wagon Wagon-Group Group 'A') on 17.01.2017.
17.01.2017 He retired from service on 30.09 30.09.2018 .2018 on attaining the age of superannuation. The charge memorandum issued on 26.09.2017 ((Annexure A/1) imputed dereliction of duties and misconduct while he was posted as Assistant Workshop Manager /Wagon /Wagon-I at Jamalpur during the period from May 2011 to 16th January, 2017. Applicant has challenged the charge memorandum on the ground that it was issued by Respondent No 4 without competence.
competence Applicant's contention is that since iimputations mputations in the charge memorandum relate partly to the period of his service as Group 'A' officer only the President was competent to issue charge memorandum against him. Applicant has also pleaded that imputations in the charge memorandum related to the period from May 2011 onwards but the charge memorandum was issued with considerable delay and just four days before his retirement. Citing judgments of Hon'ble Supreme Court, applicant has claimed that the charge memorandum was liable to be quashed on the ground of delay in issuance.
4. Respondents contested maintainability of the OA and filed written statement holding that applicant applicant, while working as Assistant
-4- OA/050/00871/2018 Workshop Manager /Wagon /Wagon-II at Jamalpur, had caused substantial financial loss to the railways because of negligence and dereliction of duties in disposal of condemned wagons and also facilitated efforts to cover up large number of missing condemned wagons from the holding area. That the applicant had thus failed to maintain absolute integrity and acted in manner unbecoming of a Railway servant in contravention to the provisions of Rule 3(1)(i) & (iii) of the RS (Conduct) Rules, 1966 as amended from time to time. Charge Memorandum was issued while the appli applicant cant was still in service.
General Manager, Eastern Railway (Respondent No.4) who issued the charge memorandum ( Annexure A/1) was competent to do so in terms of Rule 8(2) and Schedule -III III [ Rule -4 and sub-rule rule (2) of Rule 7] of the RS (D&A) Rule Rules,1968 . The RS (D&A) Rules, 1968 were promulgated by the President in exercise of the powers conferred under Article 309 of the Constitution. Thus, General Manager enjoyed the competence to issue charge sheet against the applicant. Respondents prayed to dismiss the OA.
5. In rejoinder, applicant reiterated that charge memorandum was issued after inordinate delay of seven years and that General Manager Manager, ER who issued the charge memorandum was without competent to do so. Also, the performance of applica applicant nt all through this period was adjudged by his superior offices as Very Good and above in APARs. Applicant relied upon the judgment of Hon'ble
-5- OA/050/00871/2018 Supreme Court in the case of Union of India Vs. Vs B. V. Gopinath [(2014) 1 SCC 351 (para 27& 41)] in support of his averment that President was the Appointing/ Disciplinary Authority for Group-'A' 'A' officers and hence the charge memorandum issued by the Respondent No.4 was without competence and hence, it was void ab initio.
6. After admission, we heard the rival counsel and considered their submissions and materials on record.
7. During hearing, Shri M P Dixit, counsel for applicant raised the issue of competency of General Manager, Eastern Railway (respondent no. 4) in issuing the charge sheet. He also assailed the charge memorandum on ground of delay arguing that the allegation related to year 2011 whereas charge memorandum was issued on 26.09.2018 just three days before applicant's retirement. L/C submitted that applicant had been promoted to G Group 'A' in 2016 and hence, President of India was tthe he Appointing Authority for him.
him.
The charge memorandum ought to have been issued with the approval of concerned Minister to whom the authority had been delegated by President. The charge memorandum memorandum issued by GM/ER , without approval of the concerned Ministry Ministry, was thus without competence. L/C drew attention to Railway Board' Board'ss letter no. E (E&A) 69 RG 6 6-12 dated 18.06.2019 which clarifies that it was necessary to obtain approval of the Minister be before fore initiation of the disciplinary
-6- OA/050/00871/2018 proceedings in cases where President is the Disciplinary Authority. L/C also placed reliance on the judgment of Hon'ble Supreme Court in Civil Appeal No 7761 of 2013 (Union of India and Others Vs B B. V..
Gopinath).
8. Senior ior Standing Counsel Shri H. H P. Singh representing respondents countered the stand of applicant and submitted that General Manager was competent to issue charge memorandum and initiate proceedings against Group 'A' officers of the rank of applicant. He referred to Section 2 (18
18)) of the Railway Act 1989 to define the General Manager Manager. Ld. SSC drew attention to Rule 4 and Rule 7 (2) of the RS (D&A) Rules, 1968 which refer to Schedules I, II and III that specify the authorities competent to place railway railway officials of different ranks and categories under suspension and impose penalties under the Rules. As per Schedule - III, General Manager can impose penalties specified in clauses (i), (ii), (iii (iii-a), (iii-b)
b) and (iv) of Rule 6 on Group 'A' Railway Servants of Juniorr Administrative Grade upto Selection Grade.
Grade 8.1 Ld. SSC further mentioned that Rule 8(2) of the RS (D&A) Rules states that a disciplinary authority competent to impose penalties specified in clauses (i) to (iv) of Rule 6 may institute disciplinary proceedings against any Railway servant for the imposition of any of the penalties specified in clauses (v) to (ix) of the Rule 6, notwithstanding that such authority is not competent, under these
-7- OA/050/00871/2018 rules,, to impose any of the latter penalties. Shri Singh also referred to Para 21 of (ii) of Master Circular No. 66 on Penalties and Disciplinary Authorities which states that Disciplinary Authority competent to impose at least one of the penalties in Rule 6 on a Gazetted Railway servant, can also institute major penalty proceedings against gainst the Railway servant, notwithstanding the fact that authority is not competent to impose any of the major penalties on that Railway Servant. Ld SSC averred that in terms of the RS (D&A) Rules, General Manager enjoyed the authority to issue charge memorandum for major penalties against applicant.
applicant Ld. SSC averred that the he RS(D&A) Rules, 1968 were made by President in exercise of the powers conferred under Article 309 of the Constitution and thus enjoyed statu statutory status.
9. Perusal of the charge memorandum (Annexure A/1) reveals that articles of charges relate to the period of applicant's posting as /Wagon-II Jamalpur from May 2011 to 16th January 2017.. AWM /Wagon Applicant has been alleged of causing financial loss lo to railways through general negligence and failure to exercise supervision during this period. The charge memorandum issued on 26.09.2017 was thus in less than a year from the last date of his assignment as AWM/Wagon AWM/Wagon- I Jamalpur. Hence, the applicant's applicant's contention of delay in initiating the departmental proceeding does not hold water.
-8- OA/050/00871/2018
10. Main issue for adjudication in the instant case relates to competence of respondent no. 4 in issuing the charge memorandum for major penalty against the applicant.
11. Applicant's claim is that President is the Appointing Authority for Group 'A' officers and hence, it was incumbent upon the respondents to seek approval of the Minister before initiation of the disciplinary proceeding against him. In support of his averment, averment, L/C for applicant placed before the Bench Railway Board letter No. E(E&A) 69 RG 6 6-12 12 dated 18.06.1969 which is reproduced below for the sake of brevity brevity:-
" Procedure where disciplinary authority is President-
President With reference to the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the Ministry of Home Affairs have clarified certain points. The Railway Servants (Discipline and Appeal) Rules, 1968 correspond to these rules and the relevant points in these rules are clarified as under:
Points raised Clarification
(1) (2)
1. (a) In cases where the ) (a) Having regard to the Transaction
disciplinary authority is the of Business Rules,les, it is necessary President, whether case should that in cases where the Disciplinary be shown to the Minister Authority is the President, the before disciplinary proceedings initiation of the disciplinary are initiated. proceedings should be approved by
(b) Whether it is necessary to the Minister.
show the file to the Minister (b) It would be sufficient if every time before formal Minister's orders are obtained for orders are issued in the name taking action ancillary to issue of of the President under Rule the charge-sheetsheet at the stage when 9(2), 9(4) etc. of the Railway the papers are put up to him for Servant (D&A) Rules, 1968. initiation of disciplinary proceedings. However, formal orders of the Minister should be obtained at the stage of passing final orders imposing penalty under Rule 10(5). ....................................
-9- OA/050/00871/2018
12. L/C for applicant also placed reliance on the judgment of Hon'ble Supreme Court in Civil Appeal No 7761 of 2013 ( Union of India and Others Vs B V Gopinath) in support of the applicant's averment. Hon'ble Apex Court held that the charge charge-sheet sheet /charge memo having not been approved by the disciplinary authority is non est in the eye of law. Paras 40 & 41 of the judgment in this regard read as under.
"40. Article 311(1) of the Constitution of India ensures that no person who is a member of a civil service of the Union or an all India service can be dismissed or removed by an authority subordinate to that by which he was appointed. The overwhelming importance and value of Article 311(1) for the civil administration as well as the public servant has been considered stated and re- stated, by this Court in numerous numerous judgments, since the Constitution came into effect on 19th January, 1950. Article 311(2) ensures that no civil servant is dismissed or reduced in rank except after an inquiry held in accordance with thethe rules of natural justice. To effectuate the guarantee contained in Article 311(1) and to ensure compliance with the mandatory requirements of Article 311(2),, the Government of India has promulgated CCS (CCA) Rules, 1965.
41. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government nment servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge sheet can be drawn up by an authority other than the disciplinary authority. This would d destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the
-10- OA/050/00871/2018 charge sheet.
heet. Such a charge sheet can only be issued upon approval by the appointing authority i.e. Finance Minister."
Minister.
13. Respondents have argued that the Railway Servant (Discipline & Appeal) Rules, 1968 were promulgated by the President in exercise of powers conferred under Article 309 of the Constitution Constitution. The charge memorandum impugned in the instant case was issued by GM/ER /ER in terms of the RS(D&A) Rules.
Rules Rule 8(2) of the RS (D&A) Rules,, relevant to the instant case, is repro reproduced duced below for the sake of brevity.
"8. Authority to Institute Proceedings -
...
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of Rule 6 may, subject to the provisions of clause (c) of sub-rule rule (1) of Rule 2 institute disciplinary proceedings against any Railway servant for the imposition of any of the penalties specified in clauses (v) to (ix) of Rule 6, notwithstanding that such disciplinary authority is not competent, under these these rules, to impose any of the latter penalties."
14. Further as per Schedule -III III of the RS(D&A) Rules , General Manager can impose penalties specified in clauses (i), (ii) ,(iii ,(iii-a), (iii-b)
b) and (iv) of Rule 6 on officers upto and including Selection Grade Grade Officers of Junio Junior Administrative Grade. Relevant part of Schedule III is reproduced below for the sake of brevity .
"SCHEDULE III {See rule 4 and sub-rule rule (2) of rule 7} Item Class of Authority empowered to place a Railway Appellate Authority No. Railway Servantunder suspension or to impose Servants penalty and its nature.1 2 3 4
1 Railway President - Full powers ......
Servants Group 'A' Railway Board - Suspension and the penalties President specified in Clauses (i) to (vi) of Rule 6.
-11- OA/050/00871/2018
General Manager/Additional General
Manager who has been ordered by the
Competent Authority to look after the current President
duties of General Manager in the absence of a regularly posted General Manager, Director General/RDSO, Principal/ Railway Staff College, Chief ief Administrative Officers (having independent charge of their organisations) - Suspension and the penalties specified in clauses (i), (iii), (iii-a), (iii-b)
b) and (iv) of Rule 6 in the case of Officers upto and including Selection Grade Officers of Junior Administrative Grade.
Principal Heads of Departments - Suspension General Manager/ and the penalties specified in clauses (i), (iii), Additional onal General (iii-a), (iii-b)
b) and (iv) of Rule 6 in the case of Manager who has been Officers in Junior Scale ordered by the Competent Authority to look after the current duties of General Manager in the absence of a regularly posted General Manager"
15. Evidently, General Manager is empowered to impose penalties specified in under clauses (i) , (ii) (iii (iii-a) , (iii-b)
b) and (iv) of Rule 6 on Group 'A' Railway servants up to and including Selection Grade Officers of Junior Administrative Grade. Applicant was promoted to Senior Scale and inducted under Group 'A' in 2016.. Hence, General Manager was competent to impose penalties under clauses (i) , (ii) (iii (iii-a) , (iii-b)
b) and (iv) of Rule 6 on him. Thus, in terms of Rule 8(2) of the RS(D&A) Rules, General Manager was authorized to institute disciplinary proceedings against applicant for imposition of any of the penalties specified in clauses (v) to (ix) of Rule 6, notwithstanding the fact that he was not competent to impose any of these se major penalties.
16. It is clear from the above table (at para 14) that President is the Disciplinary Authority for Group 'A' railway servants and he
-12- OA/050/00871/2018 alone has power to impose any of the penalties under the RS(D&A) Rules. The Railway Board letter dated 18.06.1969 (Para (P 13 above) makes prior approval of the Minister necessary in initiation of disciplinary proceeding where President is the Disciplinary Authority. On the other hand hand, provisions of the RS (D&A) Rules, 1968, 1968, especially specially Rule 8(2) and Schedule III authorize General Manager to institute disciplinary proceedings against Group 'A' Railway servants of Junior Administrative Grade up to Selection Grade. Thus, Railway Board's letter dated 18.06.1969 (Para 13 above) providing the procedure to initiate nitiate departmental proceeding in cases where disciplinary authority is the President is in conflict with Rule 8(2) of the RS (D&A) Rules , 1968.
17. The RS (D&A) Rules, 1968 being promulgated by President under Article 309 of the Constitution has a statutory status whereas Railway Board letter dated 18.06.1969 (supra) is an executive order . It is trite to say that provisions of RS (D&A) Rules, 1968 will prevail over the Railway Board letter in case of any conflict conflict.
18. Further, applicant has relied upon the judgment of Hon'ble Supreme Court in B B. V. Gopinath case (supra). The case was based on facts specific to the Ministry of Finance and the disciplinary proceeding instituted under the CCS (CCA) Rules, 1965. It is important to note that the CCS (CCA) rules has no provision analogous to Rule 8(2) of the RS (D&A) Rules which creates an
-13- OA/050/00871/2018 exception to the general rule that only the Disciplinary Authority can issue charge Memorandum for major penalties penalties. Hence, because of distinguishable facts and nd legal provisions, judgment of Hon'ble Supreme Court in B B. V. Gopinath case renders no assistance to applicant in the instant case.
19. Based on the facts and legal aspects discussed above, we are inclined to hold that respondent No. No 4 enjoyed the authority thority to issue the charge memorandum to applicant under provisions of the RS (D&A) Rules, 1968, and that there was no any violation of rules/law in issuance of the charge memorandum (Annexure A/1). In the given facts and circumstances, we ffeel eel that the OA deserves to be dismissed as being devoid of merit. We order accordingly. No cost.
[Sunil Kumar Sinha] [ M.C. Verma] Administrative Member Judicial Member Srk.