Central Administrative Tribunal - Jaipur
Singh Raj Rajora vs M/O Railways on 13 December, 2021
1
OA No. 60/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 60/2016
Order reserved on 26.11.2021
DATE OF ORDER: 13.12.2021
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
Singh Raj Rajora S/o Shri Ramji lal a/a 53 years R/o
Village Bigopur Post Dholera Tehsil Narnaul District
Mahendragarh. Presently posted as S.M., Amarpur,
Jorasi, Jaipur Division of N.W.R., Jaipur.
....Applicant
Shri Amit Mathur, counsel for applicant.
VERSUS
1. General Manager, North Western Railway, H.Q.
Office, Jawahar Circle, Jagatpura, Jaipur.
2. Divisional Railway Manager, Jaipur Division of
N.W.R., Jaipur, D.R.M. Office, Power House Road,
Jaipur.
3. Additional Divisional Railway Manager (ADRM),
Jaipur Division of NWR, Jaipur D.R.M. Office, power
house Road, Jaipur.
.... Respondents
Shri P.K. Sharma, counsel for respondents.
2
OA No. 60/2016
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
"(A) That this Hon'ble Tribunal may graciously be pleased to quash the impugned show cause notice dated 09.01.15 (Annexure A-1) by which Appellate Authority has taken action on its own motion after expiry of period fixed for it and also quash and set aside the impugned order dated 22.07.15 (Annexure A/2) by which penalty has been imposed in a case in which charge sheet dated 03.03.09 was dropped by the Disciplinary Authority vide its order dated 13.11.13.
(B) Respondents may further be directed to restore the position of the petitioner as per the order dated 13.11.13 passed by the Disciplinary Authority and pay all consequential benefits along with the interest in terms of arrears and any other benefit accrued in favour of the petitioner.
(C) Any other order which this Hon'ble Tribunal may deem fit and proper as per the facts and circumstances of the case be passed in favour of the petitioner."
2. The brief facts of the case, as stated by the applicant, are that he was served with a charge sheet (S-5) dated 03.03.2009, (Annexure A/3), by the respondents for claiming wrong Travelling Allowance i.e. he has claimed excess T.A. by showing journey of 3 OA No. 60/2016 later train instead of first available train. In order to reply to the said charge sheet, applicant asked for certain documents which were not provided to him. But in spite of the non supply of required documents, enquiry was initiated. Thereafter, Inquiry Officer submitted his report dated 01.10.2013, (Annexure A/5). In the said enquiry report, Inquiry Officer has come to the conclusion that after scrutiny of all points put on record and after evaluation of all the witnesses, it was established that charges framed against the applicant are not proved at all. Then applicant submitted his representation in respect of enquiry report. The Disciplinary Authority after considering representation of the applicant as well as the enquiry report, vide order dated 13.11.2013, Annexure A/6, dropped the charge sheet, which was issued to the applicant. But to utmost surprise, the respondent no. 3, issued show cause notice dated 09.01.2015, Annexure A/1, purported to conduct suo motu revision in D & AR case on the basis of certain observations. It is the case of the applicant that Appellate Authority has reviewed the order after the expiry of the period as prescribed under the rules. Thereafter, applicant submitted his comprehensive reply/representation dated 10.12.2015 against the notice dated 4 OA No. 60/2016 09.01.2015. But instead of considering the representation of the applicant, the Appellate Authority passed the impugned order dated 22.07.2015, Annexure A/2, imposing penalty of reduction by two stages below for 6 months without cumulative effect. Thus, being aggrieved by the said orders, applicant filed the present O.A. for quashing and setting aside the same.
3. After issue of notices, respondents filed their reply stating that the applicant, ASM-APJ, is found responsible for claiming wrong travelling allowance. Applicant claimed excess travelling allowance for the duration of the month of April, 2006 to December 2006, excluding the month of November 2006. The Applicant failed to maintain absolute integrity, exhibited lack of devotion to duties and also in a manner unbecoming of Railway Servant thereby violating Rule 3.1 (i), (ii) & (iii) of Railway Service Conduct Rules, 1966. He was served with a charge sheet for claiming wrong and excess T.A. The documents were provided to the Applicant on which charge sheet was given to him, except the documents which were not related to the charge sheet. Enquiry was initiated and Inquiry Officer submitted his report. 5 OA No. 60/2016 Thereafter, Disciplinary Authority found that the Applicant is not guilty and dropped the charge sheet. But the Revisionary Authority did not agree with the orders passed by the Disciplinary Authority and, therefore, as per rules, the order of the Disciplinary Authority, suo motu, was reviewed on the basis of the disagreement note issued by the Vigilance Branch as there is no time limit for revision of the order of Disciplinary Authority under Section 25 of the Railway Servant (Discipline and Appeal) Rules, 1968. Thus, notice was issued to him and after receipt of reply on the same, Revisionary Authority passed orders. The principles of natural justice was followed by the Respondents and full opportunity has been given to the Applicant to present his case before the Revisionary Authority. Therefore, O.A. filed by the applicant deserves to be dismissed.
4. The applicant has filed a rejoinder denying the submissions of the respondents. He added that the procedure followed by the respondents is wholly illegal and unlawful. It is in violation of Railway Servant (Discipline & Appeal) Rules, 1968. The vigilance has no role to place after passing of the orders by the Disciplinary Authority. The contention of the 6 OA No. 60/2016 Respondents that Revising Authority can revise the order and there is no time limit for the higher authorities for reviewing the order passed by the Disciplinary Authority cannot be accepted as the same is unsustainable and not in consonance with the rules. For the purpose of revision, Rule 25 holds the ground. It is further stated that the cases where the original order has been upheld by the Appellate Authority, the time limit shall be reckoned from the date of issue of the order but there is no time limit for the higher authorities to review the order which is contrary to the rules and also that the order passed by the Disciplinary Authority cannot be revised on the direction of the vigilance as the vigilance has no role to play in the subject matter. It was further pointed out that the order passed by the Revising Authority is a non-speaking order passed without application of mind. Thus, in view of several illegalities committed by the Respondents, the present impugned orders deserve to be quashed and set aside and that the O.A. deserves to be allowed.
5. We have heard learned counsels for the parties at length and examined the material available on record minutely.
7OA No. 60/2016
6. The Applicant besides reiterating his submissions further added that the charge sheet was issued on the ground that the applicant has claimed excess Travelling Allowance but in the said charge sheet there was no mention of train number, date and time and excess amount limit. Neither the charges levelled nor the statement of imputation reveals any charge. The Inquiry Officer held the charges as not proved and relying on the enquiry report, the Disciplinary Authority has exonerated the Applicant. But after the order of Disciplinary Authority, a disagreement note was issued by Vigilance Department, but it is clear that vigilance cannot have any role after orders have been passed by the Disciplinary Authority. As per rules, the order passed by the Disciplinary Authority can be examined by the Appellate Authority and thereafter by the Revising Authority. But the vigilance has a limited role and cannot sit over the findings arrived at by the Disciplinary Authority. It cannot ask the Disciplinary Authority to revisit its order. Also the order passed by the Revising Authority is without any support of legal provisions. Therefore, the orders passed by Respondents are arbitrary and illegal and require to be set aside.
8OA No. 60/2016
7. The Respondents have also repeated their contentions raised earlier and have further stated that the proceedings of the Revisionary Authority are according to the Railway Servant (Discipline & Appeal) Rules, 1968. There is no time limitation for higher authorities for reviewing the orders of the Disciplinary Authority, however, it was mentioned that the proceedings of the Appellate Authority was initiated immediately after the order dated 13.11.2013 of the Disciplinary Authority, but the show cause notice was issued to the Applicant on 09.01.2015. Therefore, it is unfair on the part of the Applicant to state that the Appellate Authority has ignored the statutory provisions of the Railway Servant (Discipline & Appeal) Rules, 1968 as after receipt of the representation of the Applicant, Revisionary Authority has passed orders dated 22.07.2015, which is passed after issuing show cause notice to the Applicant and after considering his representation. Therefore, the present O.A. deserves to be dismissed.
8. The sole question which requires to be considered is whether the orders passed by the Disciplinary Authority can be revised on the directions of the vigilance and whether the vigilance can sit over the 9 OA No. 60/2016 orders of the Disciplinary Authority and can dictate the revising authority to pass particular order.
9. The factual matrix of the case is that the Applicant was served with a charge sheet dated 03.03.2009 i.e. SF-5 Notice, Annexure A/3, stating that the applicant while working as ASM Amarpur Jorasi Station in Jaipur Division, under Sr. DOM/JP has committed gross misconduct inasmuch as that he was detected to have committed serious lapses/irregularities as he was found responsible for claiming wrong Travelling Allowance and claimed excess TA by showing journey by later train, instead of first available train for the month of April 2006 to December 2006 excluding the month of November 2006. In support of the charge sheet, 16 documents were produced and one witness namely, Shri Sharad Kumar, VI/T, NWR, Jaipur was presented to prove the said charge. The Applicant had demanded number of documents on 24.06.2009 which were all relevant but the same were not supplied to the Applicant as the same were unavailable. Despite the same, the enquiry was conducted. During the enquiry, the prime witness presented by the Government himself stated that he is unaware about the case and knows nothing about the same. He also 10 OA No. 60/2016 stated that the charges framed in this case are not specific and clear as in the charge, there is no date, no specific train to travel mentioned nor duty hours are mentioned. He also stated that he is unaware as to how excess TA was charged. Thus, he further stated that the charges framed against the Applicant are ambiguous and fake. Then the Inquiry Officer after scrutiny of the material placed before him and evaluation of the witness observed that nothing can be established against the charged officer and finally concluded that the charges framed against the Applicant are not proved at all as per the report of Inquiry Officer dated 01.10.2013.
10. After the enquiry report, the Disciplinary Authority considered the submissions of the applicant dated 15.10.2013 and on the basis of the enquiry report dated 01.10.2013, concluded that the charges framed against the Applicant are not proved at all and, thus, the charge sheet was dropped vide letter no. E/T/161/2009/38(V) dated 13.11.2013 (Annexure A/6). But as observed by us, the Appellate Authority on the direction of the vigilance has issued a show cause notice No. E/T/161/2009/38(V) dated 09.01.2015 (Annexure A/1) to the Applicant for suo 11 OA No. 60/2016 motu revision on the basis of certain observations and directed the delinquent employee to submit his representation within 15 days giving his explanation as to why action should not be taken against him for alleged misconduct. It is also noticed that the Appellate Authority has suo motu taken a decision to review the orders passed by the Disciplinary Authority dated 13.11.2013 reproducing the same facts as mentioned by vigilance in its letter dated 14.02.2014 (Annexure R/1). The Vigilance in its communication dated 14.02.2014 has mentioned five grounds for disagreement and the same five points have been reproduced by the Appellate Authority in its order. Again the Vigilance communicated the same facts to ADRM.
11. The show cause notice dated 09.01.2015 was issued after the expiry of the period prescribed under Rule 25 of the Railway Servants (Discipline & Appeal) Rules, 1968. Thereafter, the Applicant had submitted a comprehensive representation dated 10.02.2015 pointing out serious irregularities in the action of the Appellate Authority which has travelled beyond the rules in issuing notice to the applicant. As seen principles of natural justice were violated in not 12 OA No. 60/2016 supplying the relevant documents needed by the applicant to defend his case and that also the action has not been taken by the reviewing authority within six months from the date of the order intended to be reviewed. Also the Reviewing Authority had levelled fresh charges which were not mentioned in the earlier charge sheet and, therefore, the same were not permissible. But in spite of the same, the Appellate Authority passed the order dated 22.07.2015 (Annexure A/2) imposing penalty of reduction to two stages below for 6 months without future effect.
12. Rule 25 of the Railway Servants (Discipline & Appeal) Rules, 1968, reads as under:-
"25. Revision -
(1) Notwithstanding anything contained in these rules -
(i) the President, or
(ii) the Railway Board, or
(iii) the General Manager of a Railway Administration or an authority of that status in the case of a Railway servant under his or its control, or
(iv) the appellate authority not below the rank of a Divisional Railway Manager in cases where no appeal has been preferred, or
(v) any other authority not below the rank of a Deputy Head of a Department, in the case of a Railway servant serving under its control (may at any time, either on his or its own motion or otherwise, call for the records of any inquiry and revise any order 13 OA No. 60/2016 made under these rules or, under the rules repealed by Rule 29, after consultation with the Commission where such consultation is necessary, and may) -
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
Provided that -
(a) no order imposing or enhancing any penalty shall be made by any revising authority unless the Railway servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed;
(b) subject to the provisions of Rule 14, where it is proposed to impose any of the penalties specified in Clauses (v) to (ix) of Rule 6 or the penalty specified in Clause (iv) of Rule 6 which falls within the scope of the provisions contained in sub-rule (2) of Rule 11 or to enhance the penalty imposed by the order under revision to any of the penalties specified in this sub-clause, no such penalty shall be imposed except after following the procedure for inquiry in the manner laid down in Rule 9, unless such inquiry has already been held, and also except after consultation with the Commission, where such consultation is necessary.
(2) No proceeding for revision shall be commenced until after -
(i) the expiry of the period of limitation for appeal; or
(ii) the disposal of the appeal where any such appeal has been preferred:14 OA No. 60/2016
Provided that the provisions of this sub-rule shall not apply to the revision of punishment in case of Railway accidents.
(3) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules.
(4) No power of revision shall be exercised under this Rule -
(i) by the appellate or revising authority where it has already considered the appeal on the case and passed orders thereon; and
(ii) by a revising authority unless it is higher than the appellate authority where an appeal has been preferred or where no appeal has been preferred and the time limit laid down for revision by the appellate authority, has expired:
Provided that nothing contained in Clauses
(i) and (ii) above, shall apply to revision by the President.
(5) No action under this rule shall be initiated by -
(a) an appellate authority other than the President; or
(b) the revising authorities mentioned in item (v) of sub-rule (1) - after more than six months from the date of the order to be revised in cases where it is proposed to impose or enhance a penalty or modify the order to the detriment of the Railway servant; or more than one year after the date of the order to be revised in cases where it is proposed to reduce or cancel the penalty imposed or modify the order in favour of the Railway servant:
Provided that when revision is undertaken by the Railway Board or the General Manager of a Zonal Railway or an authority of the status of a General Manager 15 OA No. 60/2016 in any other Railway Unit or Administration when they are higher than the appellate authority, and by the President even when he is the appellate authority, this can be done without restriction of any time limit.
Explanation: For the purposes of this sub-rule the time limits for revision of cases shall be reckoned from the date of issue of the orders proposed to be revised. In cases where original order has been upheld by the appellate authority, the time limit shall be reckoned from the date of issue of the appellate orders.
Note: - Time limit for revision petition is 45 days from the date of delivery of the order sought to be revised. Where no appeal has been preferred against the order of the disciplinary authority the time limit of 45 days will be reckoned from the date of expiry of the period of limitation for submission of appeal [E(D&A) 84 RG 6-44 of 2.12.86 W.R. No. 188/86], the authority may entertain petition after expiry of period if it is satisfied that the petitioner had sufficient cause of delay (ibid)."
Thus, it is clear that the Appellate Authority could have reviewed the order of the Disciplinary Authority on its own motion within six months from the date of the order to which the Appellate Authority wants to review the order. It cannot by-pass the statutory provisions of law as clearly depicted under the rules and instructions of the Railway Board.
13. We notice that the charges framed in the charge sheet are neither specific nor clear. It is also seen that 16 OA No. 60/2016 there is no specific time of the train, no duty hours in the same are mentioned. As seen the charge sheet does not mention as to how much excess TA was charged and also the manner in which the Applicant has claimed higher TA. Also the charge sheet is so vague that even it does not mention as to what misconduct has been committed by the Applicant. As noted, the charge sheet neither reveals the charges levelled nor the statement of imputation of charges reveals any such charge. Instead the Revising Authority has tried to prove the charges relying on the points given by the Vigilance department. The Revising Authority has failed to show as to whether the same were communicated to the Applicant or that they were part of the said record. The Revising Authority has not bothered to note the relevant fact that the documents claimed by the Applicant were not supplied to him and they failed to show that the said documents were not relevant. Further as per Rule 25 (2) of the Railway Servants (Discipline & Appeal) Rules 1968, no proceeding for revision shall commence after the expiry of the period of limitation for an appeal or the disposal of the appeal where any such appeal has been preferred. Also as per sub rule 3 of Rule 25, it is clear that an application for revision 17 OA No. 60/2016 shall be dealt with in the same manner as if it was an appeal under these rules. The Respondents in the present matter are trying to make Vigilance extra constitutional Authority who will rule over the Disciplinary Authority and Appellate Authority. It is noted that the Appellate Authority has issued show cause notice verbatim reproducing the disagreement note of vigilance. We would also like to mention that the Revising Authority in its order dated 22.07.2015 (Annexure A/2) while imposing the penalty has failed to give any reasons nor provisions of law for imposing the punishment. The order of punishment was passed only on surmises and conjunctures. It is very clear that the order of the Appellate Authority was totally a non-speaking order and the same was passed without any application of mind. Also the action of the Respondents is completely arbitrary and unwarranted and in violation of Articles 14 and 16 of the Constitution of India.
14. As per the judgment of the Hon'ble Apex Court in the case of Transport Commissioner, Madras-5 vs. A. Radha Krishna Moorthy, (1995) 1 SCC 332 :
1995 SCC (L&S) 313, it is clear that the charge sheet must be specific. If the said charge sheet is vague, it 18 OA No. 60/2016 should be quashed. With regard to the submission that vigilance has no role to play in the Departmental proceeding, we are in agreement with the judgment of the Hon'ble High Court of Rajasthan, Jodhpur Bench, Jodhpur passed in the case of Rajendra Singh Sisodia vs. Union of India & Ors., 2010 SCC On Line Raj 1143 (D.B. Civil Writ Petition No. 1350/2009, date of order 22nd March, 2010), relied upon by the applicant, wherein Hon'ble High Court has held that power of decision as to initiate or not to initiate enquiry vests only in Disciplinary Authority and once it has exercised its power then it is not open to any of the authorities to take contrary decision. We also agree with the judgment of the Hon'ble Apex Court passed in the case of State of Uttar Pradesh & Ors.
vs. Saroj Kumar Sinha, (2010) 2 SCC 772, relied upon by the applicant, wherein, it has been held that failure to supply necessary documents vitiates enquiry. Also asking the delinquent to give reply to the enquiry report without supplying documents is to add insult to injury.
15. In the light of the discussions made herein-above, we, therefore, have no hesitation to quash and set aside the impugned show cause notice dated 19 OA No. 60/2016 09.01.2015 (Annexure A/1) and order dated 22.07.2015 (Annexure A/2) as the action of the respondents is wholly illegal and in complete violation of rules.
16. Accordingly, show cause notice dated 09.01.2015 (Annexure A/1) and order dated 22.07.2015 (Annexure A/2) are hereby quashed and set aside. In view of quashing and setting aside the above show cause notice and order, the orders passed by the Disciplinary Authority dated 13.11.2013 (Annexure A/6) is hereby restored and, therefore, applicant is entitled for all consequential benefits along with arrears and other benefits with interest.
17. In view of the above observations and directions, the Original Application is allowed. No order as to costs.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/