Central Administrative Tribunal - Lucknow
Ram Pyare Chauhan Aged About 52 Years Son ... vs Union Of India Through General Manager on 18 May, 2012
Central Administrative Tribunal, Lucknow Bench, Lucknow Original Application No. 498/2010 This the 18th day of May, 2012 Honble Sri Justice Alok Kumar Singh, Member (J) Honble Sri S.P.Singh, Member (A) Ram Pyare Chauhan aged about 52 years son of Late Ram Krishan Chauhan resident of B-2422, Indira Nagar, Lucknow. Applicant By Advocate: Sri Praveen Kumar Versus 1. Union of India through General Manager, North Eastern Railway, Gorakhpur. 2. The Medical Superintendent , NE Railway, Aishbagh, Lucknow. 3. The Senior DMO, NE Railway, Lucknow 4. The CMD, NE Railway, Gorakhpur Opposite Parties By advocate: Sri Narendra Nath (Reserved on 14.5.2012) ORDER
BY HONBLE SHRI JUSTICE ALOK KUMAR SINGH, MEMBER (J) This O.A. has been filed for the following reliefs:-
a) The Honble Tribunal graciously be pleased to quash the Annexure No.A-3,A-5, A-7 and the applicant be reinstated in continuous service from the date on which he was compulsory retired.
b) After quashing A-3,A-5 and A-7, all consequential benefits be granted in view of minor penalty.
c) Any other relief as considered proper by this Honble Tribunal be granted to the applicant.
d) Cost of the application be awarded in favour of the applicant.
2. The case of the applicant is that on 21.7.2005, he was posted at Nanpara as Senior Pharmacist when the trap was laid and he was falsely involved for illegal demand and realization of money (Rs. 50-35=15). On that day, Sr. DMO Nanpara was on leave. According to the allegations, the decoy offered the applicant a note of Rs.50/- and the balance of Rs. 15 was to be returned to him after depositing Rs.35/- in the office. But no small notes were available with the applicant . Before he could return Rs. 15/- after deducting Rs. 35/- as consultation charges which are permissible under the relevant rules, trap was laid and the said note of fifty rupees denomination was recovered. Thereafter, charge sheet was served upon him and enquiry was conducted. The enquiry officer submitted enquiry report saying that demand of Rs. 50 was proved but he also observed that applicant had demanded Rs. 35/- but in the absence of any small notes, the balance of Rs. 15/- could not be returned (Annexure A-2). But the disciplinary authority under the influence of the Vigilance Department, inflicted the punishment of compulsory retirement from service vide order dated 11.9.2008 (Annexure A-3) .The applicant submitted appeal under Rule 18 of DAR Rules 1968(Annexure A-4) which was rejected vide order dated 10.12.2008 (Annexure A-5). He then submitted a revision before the then CMD (Annexure A-6) who also gave a personal interview and had set aside the punishment of compulsory retirement and dictated the order in presence of the applicant. But the then CMD demitted office after 23.4.2010 and no order could be provided to the applicant. After his retirement, the new incumbent took a U-turn and issued the impugned order dated 3.8.2010 maintaining the punishment of compulsory retirement (Annexure A-7). On 17.9.2010, under the Right to Information Act, copy of above order dated 23.4.2010 passed by earlier CMD was obtained by means of which the punishment of compulsory retirement from service has been reduced to lower stage by two stages (Annexure A-8).
3. The respondents have contested the O.A. by filing a detailed CA saying that in a Vigilance check was conducted on 21.7.2005. One Khalasi of Vigilance Department namely ORI introduced himself as a non- Railway employee and pretended to be a patient. On that date, Doctor and compounder were on leave. The applicant being senior Pharmacist, demanded from him Rs. 35/- as charges. The Khalasi gave him Rs. 50/- but the applicant did not return him Rs. 15/-. Therefore, a proper enquiry was conducted. After submission of enquiry report, the disciplinary authority passed the order of punishment of compulsory retirement. The applicant preferred an appeal which was rejected on 10.12.2008. Against the decision of the appellate authority, the applicant submitted a revision petition. The revisional authority did not find any new facts and therefore, rejected the revision vide order dated 3.8.2010.
4. Against the above counter Affidavit, Rejoinder Reply has also been filed reiterating the pleadings of the O.A.
5. The respondents also filed a Supplementary CA saying that as far as order dated 23.4.2010 (Annexure -8) passed by earlier CMD is concerned , the same was reviewed by the Vigilance Organization as per procedure laid down by Railway Board vide letter dated 7.2.95 and 17.3.89. The above order was never published or communicated to the applicant. Therefore, the matter was reviewed by new CMD who passed a fresh speaking order dated 3.8.2010 which was communicated to the applicant on 11.8.2010 and punishment of compulsory retirement was confirmed. The Railway Board s letter (Master Circular) dated 28.5.2001 (RA-3) has not been denied but it has been said that these instructions are applicable only on final decisions and not on provisional / tentative decisions.
6. As against the above, a Supplementary RA was filed by the applicant saying that Vigilance has nothing to do in the matter and the Vigilance should not play any role to influence the authority concerned for imposition of particular punishment. In order to rule out the interference, the Railway Board has issued above circular dated 28.5.2001 which cannot be violated. Moreover, Honble Supreme Court has also laid down that the Vigilance Organizations are refrained from interfering with the disciplinary proceedings. It has been further said that normally only those cases are referred to the CVC which are composite in nature and where Gazetted Officer is involved and only those cases are referred to the UPSC which pertains to retired employees. In the present case none of the event existed that is why it was not forwarded by the then Revisionary Authority who passed the above order dated 23.4.2010 reducing his punishment. On that date, the then Revisionary Authority had dealt with two cases in that capacity i.e. one of the applicant and the other of one Smt. Shashi Prabha. Thus two separate orders were passed on very same date by same Revisionary authority and in both the cases, the punishment of compulsory retirement were reduced to that of reduction in rank for a particular period. The order pertaining to Smt. Shashi Prabha was served upon her and was duly acted upon but the order relating to the applicant was not communicated to him. Meanwhile the revisionary authority was transferred. The new incumbent instead of communicating the said order passed a fresh order in gross violation of power conferred upon him. Thus due to illegal act on the part of the respondents, the applicant and his family suffered a lot and applicant also lost his wife who died on account of tension. The studies of children were also badly affected. In the said order dated 23.4.2010, duly signed by the then Revisionary Authority and there is no mention that it is provisional in nature as is being claimed from the other side now.. In fact , there is no provision in the rules for first passing a provisional order and then a final order. It can be tested from another angle also . The similar action was taken by the same revisionary authority in both matters. How then out of the two , the order pertaining to Smt.Shashi Prabha was treated as final and it was accordingly acted upon. But in-spite of being similar nature, the other order relating to applicant passed by same authority on same day was treated provisional, only because it was not communicated.
7. We have heard the rival submissions and perused the entire material on record very carefully.
8. Before entering into the merits of the case, the cases relied upon by the parties are required to be mentioned.
9. From the side of the applicant, reliance has been placed on para 38 of the judgment /order passed by this Tribunal on 16.4.2011 in O.A. No. 114/2007 C.W. O.A.No. 389/2007. In para 38, it has been observed by the coordinate bench of this Tribunal that in that case, the disciplinary authority himself found that the charges were not proved. He therefore, exonerated the applicant vide his detailed report running into four pages. He however, sent his report to the G.M. Vigilance, NER for advice/recommendations. The above authority of the Vigilance gave the advice otherwise. On account of that the disciplinary authority took a U-turn and passed the order terminating the services of the applicant. In this back drop, it was observed by this Tribunal that the disciplinary authority did not apply his mind. Instead he passed the order on the dictates of the Vigilance authorities which is not permissible under law. The authorities performing quasi judicial function are supposed to exercise their own judicial discretion having regard to the facts and circumstances. They cannot act under the dictates of the Vigilance authorities. Almost similar observations were made by Honble Apex Court in the case of Nagaraj Shivarao Karjagi Vs. Syndicate Bank reported in 1991 SCC (L&S) page 965. Finally this point was decided in favour of the applicant.
10. From the side of the respondents , following case laws were cited:-
i) AIR 1966 SC,1313 , State of Punjan Vs. Amar Singh para 11- Mere passing of an order would not be effective unless it s published and communicated to the officer concerned.
ii) (2011) 2 SCC (L&S) 410, State of Uttranchal and another Vs. Sunil Kumar Vaish and others. para 24 Notings on file have no binding nature.
iii) 2007(7) AWC 7405 (SC) Chief Commercial Manager, Central Railway Vs. G. Ratnam and others - para 20,21- Executive instructions have no statutory force. They do not give rise to any legal right in favoour of the aggrieved party. They cannot be enforced in court of law against administration.
Iv) (2000) SCC (L&S) page 845 State of Bihar and another Vs. K.P. Singh and another Head Note C - Article 14 of the Constitution of India - Equality It is a positive concept and cannot be enforced in a negative manner.
v) (2009) 1 SCC (L&S) page 581 Ex-Constable Ramvir Singh Vs. Union of India -para 13- Departmental enquiry- plea not raised in departmental enquiry Held . It cannot be raised in court.
11. In the back drop of the above case laws, now we proceed to deal with the merits of the case.
12. Under the judicial review, a court/ Tribunal has to look into the decision making process. In the present case, the enquiry officer found the charges to be proved. The disciplinary authority passed an order for compulsory retirement of the applicant. The appellate authority rejected the appeal. But the perusal of Annexure 8 shows that the then revisionary authority Dr. Manju Saiwal, Chief Medical Director (CMD), after considering the points of revision and the entire record of the enquiry came to the conclusion :-
i) That in the trap in question, decoy rules were not followed because the decoy was himself an employee of Vigilance Department, although, he should have been an independent person.
ii) Pre-Decoy check memo was not prepared. In this regard, Railway Board has issued certain directions on 16.12.2008 to the effect that decoy selected fro departmental trap cases should not be an officer of the vigilance department. Not only this, the decoy who was produced as witness has explained in this cross examination that he had put his signature on RUD I and III on the direction of the Vigilance team . It was not read over to him.
iii) The decoy had pretended severe stomach pain. The doctor was on leave. Therefore, according to IREM, the Pharmacist has a right to attend any emergency and under para 628, he has also a right to receive money from non-Railway patient for giving medicine etc. In this case also, it happened in the same manner. After treatment, the Pharmacist demanded Rs. 35/- as expenses for the treatment cost. The decoy gave a note of Rs. 50. At this very stage, Vigilance team made a search and recovered the above note of Rs. 50 denomination . Had this Vigilance team arrived after same time, then only it could have been ascertained as to whether the employee returned the remaining amount (Rs.15) or not or he deposited the relevant amount of Rs. 35/- in the Railway account or not. But the Vigilance team did not give this opportunity at all.
iv) The revisionary authority also noted that from the perusal of confidential letter dated 15.5.2008, it appears that in view of new facts and short comings in the case, a punishment was proposed for 3 years permanent reversion fixing Rs. 6500/- as basic pay. But the Vigilance Department did not approve it vide letter dated 10.6.2008. Then the disciplinary authority passed the impugned order dated 9/10.9.2008. The revisionary authority therefore, observed that from its perusal it appears that this decision of the disciplinary authority is not a natural decision. It has been rather issued on account of non-approval of the Vigilance Department.
v) Considering all the aforesaid facts and circumstances, the revisionary authority came to the conclusion that the delinquent employee did not receive the money for himself. Immediate non availability of money receipt was the weakness of the system. The punishment awarded to the delinquent was disproportionate and the enquiry officer as well as the appellate authority have punished him without giving any attention towards the short comings in the enquiry.
vi) From the aforesaid facts, it also appeared to the revisionary authority that on the basis of decoy, the entire proceedings has been initiated and the delinquent has been punished . The said basis itself is not in accordance with rules. Therefore, the revisionary authority found that the punishment of compulsory retirement was against the principle of natural justice and therefore, after setting it aside , he passed an order for reduction to lower stages by two stages without postponing future effect for one year.
13. As has been emphasized on behalf of the applicant, on the same date i.e. on 23.4.2010, the same revisionary authority had passed similar orders in respect of reducing punishment from compulsory retirement to the reduction to lower stage. The first order was passed in favour of one lady namely, Smt. Shashi Prabha which was treated final and communicated to her but the above order in favour of the applicant was not communicated for the reasons best known to the respondents. The case of respondents as comes out from their pleadings contained in CA/ Supple. CA is that it was only a provisional order. Further , it has been pleaded on their behalf that this order was reviewed by the Vigilance Organisation and by successor Revisionary Authority. In respect of Vigilance organization reference has also been made towards two letters of Railway Board dated 17.3.89 and 7.2.95. We regret for not accepting the above submissions made on behalf of the respondents. These submissions appear to be misconceived. The above order was duly passed by the then revisionary authority under signature and date. It was for the administration to serve or not in accordance with the Rule 26 of the Disciplinary and Appeal Rules. From the pleadings of respondents , it further appears that instead of serving, it was referred to the Vigilance Organization who reviewed it. We have gone through the above letters dated 17.3.89 and 7.2.95 of the Railway Board. These letters do not provide any procedure for review by Vigilance Organizations as claimed in the pleadings. These circulars only provide that due regard should be given of the advice tendered by the Vigilance. But at the same time it has also been mentioned that the competent authority may have disagreement with the advice of the Vigilance Organization. They are free to take decision as deemed fit. In these circulars, no where it is provided that Vigilance organization have power of review. According to the case law of Chief Commercial Manager ,Central Railway (supra) cited from the side of the respondents itself, any executive instruction has no statutory force. Therefore, firstly these circulars do not provide any alleged procedure for review nor they can have over riding effect on the relevant Disciplinary and Appeal Rules under which no such procedure for review either by the Vigilance Organizations or by the successor Revisionary Authority has been provided.
14. On the contrary, there is a master circular issued by the Railway Board which has been brought on record. It is of subsequent date to above circular i.e. dated 28.5.2001. It specifically rules out any such power of review of Vigilance Organisation or successor Revisionary Authority. It specifically provides that once the final opinion of disciplinary authority/appellate authority/revisionary authority is recorded (as in the present case) then it would be treated as final decision and in that decision, no change can be made either by himself or by his successor (as has been done in the case before us). It is further provided in this circular that if after recording final decision in the file, the author of that decision hands over the charge before communicating the order (as in the present case), then also his successor cannot consider independently that case denovo (as has been done in the present case). He can only communicate the orders passed earlier. But in the present case, instead of communicating the orders passed earlier, the successor rather took an altogether different view and without dealing with any of the points raised in the order passed by his predecessor as mentioned in para 12 of this judgment, has passed a different order altogether. Thus, we come to the conclusion that neither the Vigilance Organisation nor the successor revisionary authority had any power of review as has been claimed on behalf of the respondents. Such powers are also not provided under the relevant disciplinary and appeal rules. Even for a moment, if we admit that successor revisionary authority had a power of review of the order passed by his own predecessor, then he should have passed a proper review order after meeting all the points raised by his predecessor in his above order dated 23.4.2010. But as already said, the perusal of the order passed by the successor revisionary authority (Annexure -7) shows that he has not touched even a single point out of six points raised by his predecessor as mentioned in para 12 of the judgment. Obviously he has simply taken a U-turn under the influence and advice of the Vigilance Organization as indicated in the pleadings of the respondents themselves. This influence of Vigilance was in fact on the punishing authority also who changed his findings for lesser punishment as pointed out in the above order dated 23.4.2010 passed by the then Revisionary Authority. We have already held in our order/ judgment dated 16.4.2012 in O.A. No.114/2007 C.W. O.A. No. 389/2007 (relied upon by applicant) that it is not permissible under law for the Disciplinary authority/Appellate Authority/ Revisionary Authority to pass any order on the dictates of the Vigilance authorities because such authorities performe quasi judicial function and they are supposed to exercise their own judicial discretion having regard to the facts and circumstances. Our view gets support from the observations made by the Honble Supreme Court in the case of Nagaraj Shivarao Karjagi Vs. Syndicate Bank (supra) which has been relied upon in our above judgment dated 16.4.2012. Further, the Railway Board circular dated 30.7.2011 (Annexure-10) also provides similarly which is as under:-
No. E(D&A) 2001/RG 6-5 New Delhi dated 30.7.2001 The General Manager (P) All Indian Railways etc. (As per standard list).
Sub: Revision of penalties under RS (D&A) Rules, 1968.
One of the points raised for discussion in the last PNM/NFIR meeting is that , in some of the cases where the Vigilance Organization forward a disciplinary case to the Revising Authority for consideration of revision of the penalty proposed on the charged official, a specific penalty that should be awarded is also suggested.
The Board have examined the matter in the context of above and it is clarified that disciplinary proceedings being quasi judicial , it will not be proper to suggest any specific penalty to Revisionary Authority by any other authority.
This may be brought to the notice of all concerned for compliance.
Sd/-
Joint Director Establishment (D&A)II Railway Board.
15. In the light of the above circular also, the decision making process adopted by the successor Revisioning Authority in this case, as already discussed, appears to be manifestly illegal and grossly unjust.
16. Coming back to the submission of the learned counsel for respondents that the order passed by the earlier CMD on 23.4.2010 was only a provisional order, has also no substance as said before. There is no provision for passing provisional order under the relevant Disciplinary and Appeal Rules. The above Master circular dated 28.5.2001 also rules out any such scope. This point is proved from another angle also. Admittedly, on that day, two orders were passed by the same officer i.e. then CMD. Out of those two orders , one passed in favour of a lady namely Smt.Shashi Prabha has been admittedly implemented treating it to be a final order. Then how the other order which was passed by the same authority in the same capacity which is in respect of this applicant can be said to be only a provisional order, The nature of both the orders were also similar i.e. reducing the punishment from compulsory retirement to reduction of lower stage by two stage without postponing future effect for one year. The respondents cannot be permitted to blow hot and cold according to their whims. Thus, the order dated 23.4.2010 (Annexure A-8) passed by the then revisionary authority which is duly signed and dated cannot be treated as nonest simply because it was not served/communicated, according to Rule 26. No such provision could be indicated either under the D&AR or in any circulars that if a revisionary authority passes an order duly signed , it would be treated as nonest if it is not served/ communicated to the delinquent employee. On the converse, there is a specific circular of Railway Board dated 28.5.2001, already mentioned, which provides that if any order has been passed by the competent authority which is available on file (as in the present case), it would be deemed to be final. If it has not been communicated, no changes can be made on that order by him or by his successor. The above circular appears to be based on the premise that the disciplinary proceedings are quasi judicial proceedings and decision taken by the authorities concerned is a judgment / decision which is once taken, is final. That is why, it is also provided in this circular that it would be the duty of the successor to only communicate that order , if it has not been communicated. Thus, the decision making process in this case suffers from these blemishes.
17. In view of the above, on account of the blemish in the decision making process by the successor Revisionary Authority as discussed above, the impugned order dated 3.8.2010 (Annexure -7) passed by the Revisionary Authority deserves to be and is accordingly quashed. The order dated 23.4.2010 passed by the then Revisionary Authority (Annexure A-8) still holds good and it may be accordingly acted upon expeditiously say within 3 months in accordance with the relevant rules/ circulars as discussed hereinabove. The applicant would be entitled to consequential benefits, if any, in view of the reduced minor penalty mentioned in annexure A-8. The rest of the reliefs are declined . No order as to costs.
(S.P. Singh) (Justice Alok Kumar Singh) Member(A) Member(J) HLS/-