Central Administrative Tribunal - Gauhati
Gangadhar Dutta vs M/O Railways on 16 July, 2021
MrnGangacdc son of Late | Reydent of Po. Di cho oH P| in Code BY: Advoc The Un - Repre Py 23 O15, dte(s): : : ¥ ersuse sen led NCEP RalWway [ Maligaon, Gu 2. The Financial NE 3. The De ONE. i | Goals by Advoe Date 2 OF hearing: 2 _ Roaliwey, Ny epuly © ate Ms wie nocthor Dutta S No, "i Lakh rikhat Aion of lr WA BENCH 0.40/00426/2015 district = JOrNat ' IHS IAL, Al Das RATIVE MEMBER DMINISTRATIVE TRIBUNAL Assam. Ee Aoplicant Sri M. Chanda Sri K. Abhinaba& SAAR. DCs dia oy the GeneralManager fonstruct on} vad fh FL Assam, | visor & Chief Accounts Of ficer io. aigaon, Guwahali- PT, Assam, ef Engineer, (Consiruction) cones Respondents U. Das, Rly. Ady. pO RC 2021 Date of order NE Sirah ane i 3 ORDER
-MANJULA £ DAS, _MEMBER( J):
This OLA. has been prefered by the applic nt 7 urtcer ge Hon 1S of the Adminis sttative Tr iunal Act. 1985 a with the fol lowing reliets:
"BoE The Horible Tribunal be pleased to direct ine respondents to release. alll nis retirement dues in full Including regular pension », Jegve -cencashment, gratul ty etc, forthwith withy 20% interest thereon with immediate eff ect without any further delay. 4 8.2°-.-The Hon'ble Tribunal be cleased lo deciare nat ine respondents are not iegaly enftiied to nake any recovery on the proposed loss. of Fs. 2.04 a recovery. vide notice dated. 23.06.2010 {Annexure A?) and. dated 16.07.2010 {Annexure AlO}) which were olready set aside quashed. by this Hon'ble Tribunal vide juduement and order dated 12.02.2014 [Annexure-A 13) passed in OA No. 23/2015 8.3... That the Hon'ble Tbunal pe pleased to direct the. respondents: fo refund the amount recovered fromm the sciary of the applicant on ine cleged ground of shorfage of store mater as. 8.4 Jo pass such other or further orcder/orcers as Your Lorclshios may deem fil and proper."
OQ... This preseni matter was finclly heard and: reserved . for orders. on (24, O2, 20 21. However, preparation and pronouncement. of judgement wes celayed due fo the e roras frory Ihe applicant in terms of orders of:
cHreacdy rest ctions and Ho due to Covidt 9 npaeinig.
RES 3 AA oy ng as DMSIG IMCON/IP2, a 1 OBS! peer nat ra ted by the applicant are that ie ingly ;
stores mci nfaini ing s
2.0 crores Gpproximately Gra seniority "
12 2010 fo : Rec ; OM s/Grl duct on fo C} lower Gra de i to. onsh ;
ani pay Lines 5 enirusted to ni m propeely whi cb resulte eH Therec Her, vide a Grade | [ wi iiho ine again we goplicant vide iGril wilh restoration os criging pode:
years period".
: order Sot :
4, The applicant 'stated that he. did make reoresentation dated 07.07. 2014 for restorin g him fe. FS. otic) inal grade and pay on expi ry of the period of penalty, | put the same has not been heeded fo Till date: from the respondent authorities end, on i owes stated by the applicant that during tne continuance of the 'deparmen tal proceeding against him, .
o's traps Os the resoondent authorities informed. the aoplicant vide "Hetter dated 10.05.2008 that they had decided to withhold 502 de of | . " salary to sate freguatr real the ROWwaYy'S 'estinare scl loss ~ fowards shorlage of materials inthe stores. He immediately made an appec dated 14.05. 2008 wil ha prayer for review and recalling of the decision towards withholding 50% of his clary and the. sald appeal was forwarded fo the Chief = engineer/Con-2, NLP, Railway, Maligaon vide = communication dated 15.05.2008. for inforenation. and te passing of necessary orders. But the said apped ad not:
i) Been considered by the resoondent ciuthority. Rother the resoondent - 3 had issued a notice aaeg 23.06.7010 fo he the appl icant informing that out of 84 Nos. stock sheets, 2 :
cases dated | 26.02 2007 & pno.zaoy had been "under ; convine) ng and C eptable and ine same Bs tock sheet were sent to HO! necessary closure with recovely. A Per : HQ. approve dates 1 15.06.2010, the costs of shortage © of the" mate stials after Por idering 2 tolerance shall be recovered : ye from. the 5 aa ary G ft "the appl icant against. the estimate cl ( rac overabl le. andint do tune of Rs: 2: 00, 37, 18 Bi fs. ine pursuance of the HQ approval dated 15.06.2010, a. memorandum dole 3d 16. OF, 2010 was issued with a copy fo 4 the applicant aed in ferns of Dy. FA & CAOICON/ B/N 5 "Sere Ee" etter dated 15.06 2010 the provisional recovery towards 8) stock sheets for she rage of 1263.1 60 MT of steel and P. Way : materials | Lotaitine ng ol r RS, 2,00,3 Bi f/- only is approved: OM the salir : oie of the applicant. The said regprdtable ammount v was fix od at the rate of Rs. 16,970/-(50% of Gross Salary}.
and. on, . aed nat oe Stare autho i ies have t amount whi ch: Was already recovered from | nis salar Y, 6 ng agagneved with ine GQ pproval dated.
5.08, 201 10, noti ice dated 23, 06. 2010 & memorandum dated 1407. 20) 10, the appl cant earlier app proached - before flounal. v ide. OVA. No. 00023/201 ) where: 4H] is Tabunal vide me order daie ORES Ine impugned.
f"
2.02: 201 6 disposed of the said © A by setting notice ce ddd to the Railway-authorities lec 23. 06. 201 0. and memo 'andum dated | 6,07,.2010. and 5 ont t back: th e mater fhe grievance of the-applicant ts that despite the:
dforesaid order dated 12.02.2016 pas bel ing. 'Yelired on 3i.
d py this Tribunal 12.2015, the respondent rot yel released his eal retirement benef nf vb benefits ave 'ehcashiment, gra' tity etc. and not yet refund ied 7 fo defend the x er case, the reas pondents Rove filed sic ite NK eral on 23 o7. 020 where the doo canr yeas vy tne Fes pone dents, cant + as"
jec his reloinder on 18.08.2020 to "ihe written amient filed by tr oe 9, Heard Spo M. Chanda; learned counsel for the apolicant and Ms U. Das, Rly. Adv. for the respondents.
10. the main planks of the arguments advanced by the learned counsel for tne applicant amongst others inter clic are:
(i) The railway authorittes. having initiated a Major Penalty proceeding agains! -tne applicant for the.
4 435 tre , ph < ek * By , Aitgine, ¢ A\ deficiency in stock items mentioned in the 81 numbers of stock sheets, it was the Disciplinary and/or the Appeliate. Authority who could have ordered recovery for the alleged. loss from the applicant and the sald authority having not decided in that respect, the respondent No. 2 was bereft of any jurisdiction/power towarcs ordering such recovery. (il). Ihwas the categorical conclusion of tne appellate authority that the charges levelled against him vide the charge memorgndurn dated 08.07.2008 regarding deficiency in maintaining the store resuiling in loss of rolway. items mentioned in the 81 numbers of slock sheets were &.
early proved and that others were also responsible for the. same and ats such fixing the entire responsibility of the loss on the applicant by the resoondent No. 2 and recovering ine entire estimated amount from him js wholly unjustified and uncalled for and cannot be countenanced in the eye On low, fii} The action on the part of the respondent No, 2 ° lowards issuing recovery orders for causing alleged loss to 2 Tne railway's for deficit of slocks terns mentioned in the 8] numbers of stock sheets amounts to violating the principle and. soir? of double jeopardy inasmuch as the applicant was proceeded against the major penaty proceeding | initicted vide the charge memorandum dated 08.07.2008 for the said deficiency in maintaining the stores and the Disciplinary and Appellate Authority having already inflicted penalty' against the applicant for the said deficiency/misconduct the recovery aporoved vide the "order daed 15.06.2010 was uncalled for and violative of Ihe above-mentioned principles, Mo her, as liv} The estimated value of the loss is wholly Unreasonable and exorbitant and without any basis and as:
such, ihe order oF recovery made on the basis of such:
arbitrary estimated is liable to be adjudged arbitrary, Illegal. and without jurisdiction.
(v} The slog : verification was not carried out on presen flbed in as ati A af om Cenir, ae ma " oy ££ EA 2 fei @ the actu al recast store: and = fix _ Consequently 4 ra de a scape aut nor ities tow individ val respons out the slock verific ; @ and only. three instances of stock oN vetitication WIS fe eporle ed over a soan of 20 years ol he "applicant's tenure at the store and the sciid failure io. camy ation had resulted in failure to ascertain owes: the alleged delisieng)es in Ns applicant cannot pe singled oui an nd oft for the deficie ency of the ior s deienining the actual reason and ible for occasioning of 4 he > said joss.
Inspection reporl ie 20. 05 2007 10--
CEICONILPE and the inspection report. dated 06. 08. 2002 sup ted. by the Majdoor Union/Jog ghopa Branch makes - abundantly clear the reasons towards deficit in the SHOCK. materials. and the innocence of the appli icant 'and this eng the. posit ion, ihe impugned cecis ion. of fecovery sulfe ers. from. arti rariness and. lack Of appli ication of mind and as such: iable to be set aside. -- Ve rr oe The deficlt in he sto ok iterns. mentioned in ) the 81
5. : | z "Joumbers of Si OCK sheet S was. Wi ithin ine tolerance limit Hand |
- applicant on account of the same. i This 'Tibynal vide judgement, and order dated 202.2016 (Annexure 'A13) ip: OA No. 23/2015 set aside 16.07. 2010 and thereatter ; the respondents do not have any right r to affect tthe recovery of the-c al loged sum from ine 7 ee cl Pyle ce "as suc sh no recovery could. have been affected agai inst thie "and quashed the order of recovery dated: 2:06.20 1O-and gine mai age rags dated | 2. ) any investigation & also Who other offenders, th i which is me
(x) order date "investiga made aq eye Was _. decision fully well enquiry cannot & Mere $oO penalty ntained th inflicted 02.2016 ¢ were Inve dlafide, Following 12.0:
ion red econd « and i on the q when ihn : tained in ec losses, the. cieg.
us violating the directions of this that as pe 4d the responden's showed rampant disregards to the - Judigement and order : this tr bunal passed in O. A. No. } 23/2018 wit eatlier decision to fix responsibil ty of on ihe aoplicant without undertaking', boarding fixing responsibilities on others. slved in the same deal and shielding the. Tribunal, arbitrary, unfair and contemptuous, the passing of aforesaid judgement and. 201 é, the respondents instead of moking di ding other officials invo ved | in 'the deal, nquiry ¢ against the applicant alone bs 08 | ed the responsiotity as per thelr earlier pplicant aione shielding others, | know ing r the setlled position of law, a sec ond : e > held agai inst the same sel of charge, e first. enqu ry culmi nated into. a [raion pon the applicant in the presen! case.
ane oxi The reportof the second. enquiry has been iaconsistent with and contradictory to ine report of fhe 1° enauiry inrespect of procedure and findings. As such, the second enquiry is not vatid-in law as well-as in fact the ~ proposed recovery Of Rs, 2.04 Crores from the applicanton' the basis is unsustainable in the eye law. Ph, Sri M. Chanda, learned counsel. vociferously a Pate "dey Fete, OM ts : m argued that penalty order dated 14.07.2009 has arained finality after the appellate order dated 14.12.2010 passed oy the appeliate authority, the applicant nad accepled the said penalty without any further challenge of the decision rendered by the caopellate authority and undergone. the said modified penalty order dated 14.12.2010 but he was not restored fo his original post even after a lapse of 5 years as directed by the appellate quihority.
12, it owas further submitted by the learned counsel Hnal since the oenally of reduction to a lower grace |e a from Grade li to Grade Ill without restoration to his original grade cca Wt a) imposed | upon | modi ied by the: a Tete cory with slight modification . to the extent Ihat the applicant, would be restored to original grade an pay. after five years Period, singe No oenally of reco} ery is imposed upon the appl icant 'pursuant to the de artmental inquiry | insti lute again gt st the emorandum of charge sheet dated applicant vide rm ;108.07.2008 as such, there is no scope on the part of the M4 respondents to issue nolices-or orders demand ing recovery OF ine alleged pecuniary loss sustained by the railways ale fo. non- matin tenance of Sore materials a this stag otherwise tt will ract the doctrine of double | leo >pardy. ' More SO, jhe Sau id order ob penalty dated 14.07, 2009 re ead! vip \ appelia ate af dated: 14 4.12.2010 has akeady, altained aa inal sty in the < ce of any ¢ hal enge. the deparim ental proceeding whic vas institu ted through memorandum of charge sheet da cd 08. 07. 2008 against the Gpplk cant was:
for alleged negligence sot ihe sipplican: in mainten nance of 14 the store materials. therefore, the subsequeni joint inspection report dated 30. 05, 2017 Is no more relevant al "this stage 'ane question of recovery from. the appl icant 'Boek: not arise. at aul. Learned counsel + denied "the. contention" of the rgsbondents | Wat. major Penalty was given fo the " dopiicant for non-maintain ) ning ihe stores:
| entrusied To the applicant properly result ting huge deficiencies in stores. Further submitted that the seding of recovery cannot be separated from the: "ecimomns inquiry instituied under Rule ? of the Railway Servants (Discipline and Appeal} Rules, 1968 as such, the contention of the respondents are liable fo be rejected with exemplary cost. The departmental ciotesding' was | instituted for joss of railway propery as such, penalty of. recovery cannot be imposed by the respondents upon the applicant at. inis stage. once "the departmental proceedings is. over on same set of charges.
13. in support of the arguments, Sri M. Cnanda relied on the following decision sot are
- appearing: Or | ehal ue oppreent we 1.07, 226, 00. was.
onl Bombay naif is in OA No. 263/2012 ISK Verme Vs, i:
other hand, Ms. U Das Ry Ady.
sing, Cf major penally CIs per N P vi fide ¢ ore ier TBR 16
15. Learned counsel further submitted that disciplinary action initiated upon the applicant was for misconduct of rollway conduct rule and money recovery for the loss of raliway property due fo negligence of the . applicant. :
16. ftewas. further submitted by. the learned counsel that the joint inspection report dated 30.05.2017 submitted by Dy. FA& CAO/CON-H/MLG and Dy.CE/CON/JPZ nowhere ibis writtery that he iS innocent but the joint inspection was alsout the condition and upkeeoment of:
store. In fact it was mentioned in the report Foe finalization of pending stock sheets held dgainst DMS/CON/JPZ since | 1991 and 1992," | 7
17. _ By refereeing para 23 of the written siatement, learned counsel submitted that major penalty was given fo | the applicant for not maintaining the stores 'entrusted to :
hin oroperly resulting into huge deficiencies in stores under his custody. Whereas recovery was being made to cover the-losses occurred to railway in the form of shortage of. approx. 1.285.596 M therefore, major en the. procedure f for r violating ae railway ce induet rules. Recovery of money | is ; due io los of . ralway property. eerie
18. . _ teamed e writ Hen slalement w ich reads eget tr au as "Bel ing: a 1 custodi lary of the: store it WOS nie prime sb ee duty ia maintain' the. store properly... All- the.
- materials were kept in his custody | in the stacking -
- 5k yard. The stacking yard was well protected by to. _. the was or theft of the mater als as inere was no:
> recerd, pf FIR or police: investi ga lon fepen fromm:
EE iScar Pei ne us "Awanfer! ES ae cluting: store vs Healt ion " auani iy serge Was: 2 eet ate found 1285. 596M We quan Hyschh se intention.
18
20, Htewas further submitted by the learned counsel thal any loss of store items, DMS/CON/JPZ Le. the daplicari is fully responsible since he was the custodian of store materials. She further submitted that tolerance limit. is seceded by accounts department and sent vide leier dated 15.06.2010. .-
21. According to learned counsel, ine second structural steel meiterials "factors for shortage of structural | steel were due to lack of proper initiative to mainfain store by the custodian, lack of man power, lack of complete before 2006" thereby the applicant is fully store verification responsible.
respondents orayed for dismissal of the O.A, 29, Heaving heard the learned counsel, perusal of the pleadings and material placed before us as well. as decision relied woon, the points to be Gecided as to whether ihe fixing upon the applic thereupon recovel dated 16.07.2010 i 23-00 ° For com 49 of recovery amount of Rs, 2,00, 37, 181/- cant vide "Order dated 23.06. 2010 and. ry ai-the rate of Rs. 16, 970/- v ide 'order sustainable under the law?
ing to a logi ical conclusion We need to go through the matter in details The appli icant while in service DMs/Get VCONPE NE Railway wads issued Q memorandum of Disciplinary AUTE :
charge dated 08.07. 2008 by whi ch ine. ify je "respondent No. 3 proposed tO 'initiate. disciplina y proceeding against hii levelling sole article of charge which reads as hereunder: --
"ARTICLES -
and working as SMS GLIVCON/IPL bs 'hel "eke Soo. stores erinusted fo him "Propel eet 7 . ee Verification. The yalue of " deficit stores is : 'pout RS. Z: 2.04 crores aoproximately. servi ice (Conduct) Rul 8S, 1966."
& pet a 2S S meg 58 oO = € Xe)
a) o.
® oh O o 5 Q. oO i 3
-_ 283 oO 4 om a ac on ies view i the above, Shri. 'Gangadhar Dutta, MS/Gri HCON/SPZ, has exhib ited lack af ntegrity, lack of devotio n, charge wih. ire olation of Rule 3.1 (), a) & (i oof indi an Rowdy 20 The | Oi scip inary author rity annexed at list of documents ¢ Ina witnesses along with the said ort cle ofc cnarde. ZA. the "applicant in pursuance of the said memorandum dat fed 08,07. 2008: suOomited stdiement of. defence on 18.07.2008 denying the charge levelled against Bee 85° The: Disci "ipl nary AW mony. nereafter,; appointed | enyie into the proceedings where the "apaleint" partici coated | rn the proceedings' and the INQUITY officer submitted the inquiry report the findings of whicn read as . nereunder:
"FINDINGS
8.) 0 Fram allthe documentary evidence cited by the Disciplinary Authority and documenis-produced by ee the CO during fhe enquiry and on. the pasis of the 'assessment and analysis of the evidences as depicted Ineoara. 7.1.1 jo 7.1.4 above, it is concluced that the charge as framed in Aricle-| of Annexure-l&i of the Memorandum of charges vide No, W/ZZISS/CON/JPZ/PTI/15S. dated 08.07.2008 against"
Sar Gangadhar Dutta, the BMS/CON/ Gril/JPZ/NF. Railway are as follows- [a} For shortage of materials under his custody
2. ao, Structural | steel materials- Partially proved
(i) P.Way. materials wo Proved : fc} For nol submit iting. MAS return in time- Not proved"
26.00 In view. of Inet Ingul ry report submitted by | the if ' D isciolinary Authority sent a letter dated | 1'4.07:2009 to. the apolicant proposing tol impose penalty of. : "Reduction to lewer ¢ Grade |. from pr resent Gri [10 Gril without reroratlel to. ris. 5 original grade ¢ and placed at :
pottom. seni iority in n Grrl." .
- Being aggrieved, 'the appl cant dic moke an | reed ered en 2009 before. the: Appel iate Author ott - é/ revised the ob sent i imposed 'by. ihe eae Author ty to "red ction to Gc lower grade i.e. from present pMS/Gr to DMS/Grlll with restoration to. original grade. and pay after 5 years period."
| 28. After in \position of penalty by. the Disci ipl nary ~ Authority, the respondent No. 3 Sri Nabin Prakash issued: 0 notice dated 23.06.2010 to the applicant indicating 22 balance 8Ilnumber of stock deficiencies in the custody of the applicant and: the recovery of amount to the tune of RS. 2,00,37, 8) /- would be recovered from the salary of the applicant. The idid notice was issued with due approval of the Head Quarter vide L/No. $V/CON/SS/5/PHI/MLG dated 18.06.2010.
29. In term of Dy.FA&CAO/CON/3/MLG's letter No. §V/CON/SS/5/PLI/MLG dated 15.06.2010, recovery towards / 2181 stock sheets for shortage of 1263.160 MT-of steel and | P.Way materials totalling of Rs. 2,00,37,181.00 (Rupees Two "Crores thirty seven thousand one hundred eighty one} is:
approved | from the salary . bill of -Shri.G.D, Dutta, DMS/Con/li/JPZ. The recoverable amount per month is af Rs. 16,970.00 (50% of Gross Salary}.
30. Being aggrieved with the said notice and orders dated 15.06.2010, 23.06.2010 & 16.07.2010, the applicant had. earller aoproached before this: Tribunal vide O.A.:
No.23/2015 and this THbunal vide order dated 12.02.2016. passed a detailed judgement and order for proper shorlage © me conclusive view of 8 / adjudication and ¢ explo re the assessment onalysis of the | evidence of the nauiry officer where in regards 19 oe 71 3.1 is eteicted Lo
31. The. sta "Tae view of ihe above discussion, 4 Hs concluded. ; that there may be a difference between RR :
~weight of fhe steel consignmen?.and ithe. procedure adopted for issue of materials, {I Is also concluded that there may be human error during | issue of steel materials by iaoe measurement for wa ich cuslodion may not be held fespgns) ibe." view of the above discussion, it-is concluded. 4} iat there were some theft of materials from the. Depo bur CO has failed to submit any "investigation. Report from the Police/RPF department due to non availabilly. So the:
~ guantity involved in theft cannot be consi ider ed. for want of investigation report." : jement of. evidence of Shri P.Bose, | SV/CON/MLG {PW-2) is that the materials were kept haphazardly in ihe yard & godown and there were no sman power Ova) : lable f OF sorting & stacking as per nomenclature 24 oe for starting the verification work. Verification was possible only after providing departmenial & contractual labours by Dy.CE/CON/JPZ. Shri P. Bose also stated that they took more than fifteen months to complete the verification of stores of DMS/CON/JPZ. The view taken by the inquiry officer!s quoted bclow:
"In view of the above discussion, if Is concluded that there were no sufficient iabour available wih DMS/CON/UP? for sorting & stacking the moferials. oroperly. in these case the CO cannot be held fully responsibie for scattered materiais." The Inquiry Officer in his finding against Si. No. 8 of enquiry reoort has observed as follows: "Co submitted that curing joint. verification of store = Dy. FA& © CAO/Con/SV/MLG . aavised Dy.CE/CON/JPZ for shifting. the materiais lying outside to inside the depot. In this connection CO' has: submitted one copy of joint verification report. marked as DD/3. The copy of report confirms that some materials were lying outside the depot fl 30.05.07."
33, -- it was also. noticed. from the statement on evidence by the applicani before the Inquiry Officer as istre sas an "ss 9 oe tain & Sie inane SC at esas ma! 34 = the inquiry Officer, Finally, ihe _ menpower is estaplished. CO not responsi ole for:
-- "To conduct final stock verification g well otganized team: consisting of 2 {twol ISA'ssand 4 (Four) SV's with suffic! ent. power as provided py.
YCE/CON/JPZ took more than 16° (sixteen). n ns fo. assess ine ground reality of the issicual nie. _ poor DMS to ascertain the ground req ality ourse wi "houl staf." | me to! d that they. TOOK more tho fifleen: nae "4g complete the verification of stores of:
SICON/JPZ. During examination "Snr RCL Bhowmic, Srl SV/CON/MLG (PW-3), In reply to. ~ GQINo. 4 he has submitied that iney nave compl lated the verification on. 3) 3.08. The stock fiers & ISAs with. the help of sufficient. F inpowel fook about sijegn mern ic tone OSS@SS. the ground reality OF: clones for went to stiri ure fo Assess the ground reali ily of stores." 1 Inquiry Officer in'Sl. Nos. | : . 7, held his final dings ay hore under respectively:
co 4 a also concluded that there may be: hum ian : efor during issue of steel materials . by. tape Sasurement for which custodian may not be. held responsible."
le view of the above discussion, it is conclude d 35, earier Here:
36.
26» under preoer watch for which CO was.-nol responsible."
Two questions came before this Tbunal on ine occasions Le. in O.A. No.23/2015 which reads as "i [Fin several candid views of the Inquiry Officer 'hold the applicant not responsible. then how fhe
- applicant is solely responsible for the damage Caused fo the -Raliway:
4
~ i} The respondents alsa admitted that there was mo a theftand the applicant did lodge Fik, however, police investigation was not done properly for. which the reoort was not before the cuthorty." Thus, this Tribunal earlier heic as hereunder:
"Thus, iis explicitly clear that inere was a lapse on the part of the cdeparimeni for proper investigation in fhe matter and only fo make up ine loss caused to the department, the respondent authorities fixed the responsibility only on the cnarged officer which jis. not at all accepiable to us. We do not find any logic in holding only one person responsible for ine entire loss caused to the Reaiiways when the co: employees have been expunged without any - "porooer ~ investigation Or deparimenial proceedings."
ag een | 37.
#2015. . The relevant | potlions of ihe bres extracted below: : a os Sis noted that notice of Memorandum was : issued by the Dy. .Chief Engineer (Con), NUP ee, Pe one. nk eviais, assess ine ground at shy. of soves: for | went of manpower which is established. Inquiry:
cer further held that there may be hum lan. or during issue a steel materi fae laps) Id respons 'ole Pur her held that for: Some. pet riod. . The store: ee was. not. under proper: wal ter ang t Vv f long 'ime ai the same pi ace and w vith h huge:
cusiodial responsibilities; (i}> Stock vorfica Hons: e imeguicr- reportedly held in. 1991-92 & 1993 2006-2008 ~ in. 3 instances during. the. tenure. af nenily, for the. said reasons, the. Appella 10811 hy nas reduced fhe penalty as under, @. "penalty imposed edilier iso rev sebelah eduction fo a lower grade | 2. from oresent DMS/Gril fo DMS/Grlli. wit h_ restoration fo rig inal grade ond pay after 2 yeas Per lod." - : : "Th » are of view that from Ihe entire. foets and. "rcumsiances of the case and by taking into nsideration the year Le. 20° years wh ete he: plicant was not only responsible , there are else. sspondent auinority for investigation was lacking. Rak ee Jog! ghopda for recovery oi ent ire ay the harged Employee spar ing over 20. ae 2 a he apolicant and | important part of the. . 28 respondents Le Ral 'kovany author ity. Hence, Th will. a nef be appropriate | justice to. put the applicant by, fixing him as a full responsible by recovering the: entire amount. fromthe applicant. Accordingly, we set aside. the Imougned orders dated | 93.06.2010 and 16.07:2010 and sért- back: the matier fo the Railway authorities to investigaie the matter properly as we feel that there is C need. for thorough investigation before fixing responsibility only on ine. appli icant that too before coming fo a conclusion of ihe
-deparimental . enquiry intiated agains! the goplicant."
BB e "As pet the aforesaid judgement and order of this. Iibunal dated. 12.02.2016 passed in O.A. No.23/2015, three z eroe ae .
Y/ members committee was framed consisting of Smi. J.V. Anooshia.§ Sri Sovan Chakraborty and Sr S. Basak. During ine had been transferred inter railway on 14.06.2017 and Sn BLN. Roy, XEN/CON-/JPZ was appointed for the inquiry. However, Ne mas posiponed the inquiry, Tren, Naresn Kumar XEN ICON: W/JPZ was nomi nated as inquiry officer.in glace» of 'SH Roy vide letter. dated.. 03.10.2017... Thereafter, the preliminary hearing as well as: regular hearing was conducted and the charge officer Le. the: 29
applicant pariicleaied in in the | inquiry. from the beg) ani ing to. end and jJefende J his case himself.
39. From the investigation/inquiry conducted by the -
"committee relating to the sole article of charge levelled. against the applicant as discussed in the foregoing para, the: committee was of the view that different system acpeted ie recely 'ing and | issuing of material cannot be fo such huge shortage of moet ond si ally conducted a: hereunder: te encumee of a" oy Poh: as tances "Depo! but the re was no FIR Report found | in the. records from the Police/RPF depariment. So the Quantify involved in) the theft cannot be = considered for want of investigation report." 2 |
40. Para é of the report of the committee is extracted below:
_ Tne cherge officer has denied total y the charge OF keeping the stores in haphazard and scattered vay by stating that aimost all ine materials had _ amived py 1993 and a few stock yertcation aready peen conducted peacefull ily. CO aso suomitted: that the residual quantities in. every stacks were to stack by the relevant stacks resulll ing: the: materials in scattered manner putin: "propel y made stacks across. the whole huge 30° | requesting | nis controll inig offi leer. for stacking the. scattered maternal. tem wise. He has aiso-. suomitted copy of ASIRPE'S later, dddress to AXEN/C/2/JPZ dt. 10.9.0] marked -as DD-10 & _ address. to DMS/CON/JPZ ct. 20. £02 marked as ~ DD-9 where if.is wri Hien to shiff the huge railway _ materials s tying | in open field fo a softer place. ihe applicant has also submitted the copy of Join inspect ion nole af Dy. FARCAO/CON! ML and arrange eqi! yo di isoOsal of onprateeled siores Ni ng Quisic de the stare depot. "
AL "The "committee, thereafter, in statement and 3N suiomission of the report concluded as hereunder:
D DMS/CON/PZ for sorting' & stacking the materia properly. | n fhese case the CO cannot be rel fully responsiole for scat ered materi als.' "concluded as hereunder:
Proper watch for which CO was not responsi ible." | 42. In para' 16 of the committee report, it is. "There were no suft iclent labour 'available wit | "For some peri iod the store. depot v Was' 'nol under - 3] "8.0. FINDINGS By oe Al the documentary -- evidences,
-enauiry report and statements given by CO. and remarks made by the committee members in above paras. concluded that the charges framed. against --
AFH cles of Annexure and |l of the Memorandum of charges vice = No.W/77/SS/CON/JPZ/PLI/15. cid).
- 08.07.2008 -against Shr. Gangadhar Dulla the. DMS/ <3 NI GEILE EZIN-F Rallwayare as follows:.-> -- : Article cate | Fo portage of materials under his custody 5
4) Structural sieel materials -Partally proved. RB: Woy materials "Proved. ae goonistrany ; ; ao ce ae ee iclrort not subraiit ing MAS fture | in time- 'Partially
- ; : Prove A : 7 Sn lb ea pel Ag if the. eat ior Inquiry proceed ngs. the frau "
| off icer vide inauir Ne oe tne ossessment and 'onal ot the evi idenc OS ds depicted in' para, 7] to 7.1.4 above, it is. > concluded that the: charge - as framed in. Ariicie-| of Annexure-| ond iL of the Memorandum of charges vi VICe No, WI77/SS/CON/JPZ/P4.1 (/15 dtd, 08.07.2008 against. Shri -- Gangadher Dutta the DMS/CON/ Gr I/JPLINE F:
Reiliw way Ore Gs a follows:
BN AS. We have noted that the tentative cost of quantity 32 Articie-i-
{a} For shortage of materials under his custody {i} Structural siee! materials -Parially proved, Thus, in both the inquiry report, the inquiry officers gave ~ their findings for shortage of P.Way 'material under the custody of the applicant as proved. found shortage Is worked out based on average auction ~ sale-rate of similar materials as per enclosed Annexure-A: of | SN Type of Materials. - .- | Quantity Average Rate | Amount{Rs.)
(i) | Structural steel materials | 727.384 45,960.00 | 4,16,05,856.64 Giy PP: Way material 558.412 15,740.00 | 87,89.404.88 1285.596MT Rs, 2,03,95,261.52 Say, RS. 2,04 Crores (Approx.) 46, in the disciplinary proceeding, after thorough inquiry the applicant was imposed punishment of "Reduction to a Lower Grade i.e. from oresert Grade i} to Grade il without restoration to his original grade and placed af bottom seniority in Grade Hl" which was revised:
on appeal vide an order rdated 14.12.2010 10 "Reduction to q Lower Grade Le irom oresent DMS/Gr ll to OMS/Gr HI wi th. | res toration to Cre | and the | -geplic However, while | | dated 15.06.2010 ;
a grade and pay affer 9 years period"
cant duly served the said punigtpent.. > depariment issued notices andl erders
06. 2010 & 16.07. 2010, fox recovery of | the estimated amt unt of Rs. 2,00,37,181 Is the applicant stra , ee belo Af statemenis of the vide its order dat . sting abide the 16, 07. 20) 0 which 200,37. al by h of the responden 'held inat it woul uy e entire | amot | matter. was 4 appiicant yr fi ary ro this irfounal vide OA. No. - 23/2015 and, into note of ihe evidence on.
op wand view a the i IMU iy officer ; : = orders dated 2. 06. 20}0 a was | issued for recovery of esiimaied Rs. ° icing ihai there was c lapse on the pcr if is Le "Rai way Author ty. Hence, this is court 1 not be appropriate justice to pol the 7 him as a full responsible by recovering: from the applicant. Accord ingly, the pack jo the Railway Authorities to. on investigate the matter propery as. this court fell that there owas need for thorough investigation pefore Fixing responsibility only on the -dpplicant. Thereafter, Inree
-- members committee nas been framed consisting of one inquiry officer and two committee members on 09.05.2018 ore and they gave their findings that shortage of P.. Way maternal under the custody of applicant. as proved and ~~ other structural stee! materials as partially proved. as well as =---- Sifor not submitting MAS return in time as partially proved, APS. We have already discussed in foregoing paragraphs that in the views and conclusions of the present committees report dared 09.05.2018, the applicant is not held to be fully responsible for scattered materials as charged which are arrived in 1993 and Kept in the store in haphazard ond scattered way.
48. Hh is reflected from the committee report that a report of joint verification is there in regards to the request inside the depot « were lying outside 49, applicant and vi earlier views of oreceedi \ custodian
50. was issued to the lac kK of 51, 23/2015 16.07.20) ntearity, | amanne More of ng and ¢ for shortage of a the me r which ig unbecoming of a railway servant. Se and if was confirmed that some materiais the depot ti 30.05.2007.
les the statement ana suomi ssion of the iews OF Ibe committee are same io the 'the inquiry officer in deporimental sommittee held the applicant responsible Way material as the applicant was the norandum of charge dated 08.07.2008 applicant levelling charges of exhibited 1ck of devotion to his-duties and acted in al while disposing of the earlier 0. A. No. he ntl ce and order dated 23, 06. 2010 i set aside
0. Now, for releasing of pension, leave en by iis present OA, the Appi icant orays "his retirement dues inclu uding regu gular cashment, gratuity eic.
36 : 5D in para 29 of the written statement filed by the respondents it was categorically slated as hereunder: "A letter. 'of ne = ~CAO/CON/MLG to cde Dy.CE/CON/JPZ regarding finalization of oulstanding rock sheets. periaining fo Shr G:D. Dutta vide letter: dated: 17.06.2014, . Bala nce amount wil be recovered from his
- pensionary . benefit, vide Jeter dated 27.01.2013."
53.06 1 para 80 -Of:. the written. _stafement, ANE 2 esnondents statect Cs hereunder:
¥ the materials were kepl in his custody in the stacking yard. The. Stacking :yard was well proiecied by fo the was or fheft of ihe founa 1285. 596MT whichis very huge molafide intention of the custodi ian of store is there." : .
54, if was further stated. in para 33 of the writen | statement that any | / 108s of § store it ems, DMS/CON/JP? is Fully responsible since he \ Ws the custodian of store materials, "Being a custodian of the store if wes his prime duty to maintain the store properly. All "materials as there was no record of FIR or -- police ir vestigation report from local Police oe store. veri fication. Quant hy "short cae "Was, quantity. HW cannot happen - unless. same | OWS) material ie. structural steel materials "factors.
| the custodian, lack of man power, lack of. complete storé verification before 2006". thereby DMS/CON/Grili/JPZ.- is fully. responsible," : ee eee is i gel any relief /re fs and ©.A. is liable to be dismissed. 57, Thus, fire) and on the bo 23.06.2010 & 16.
this Tribunal vide e by again fixing the applicant as fully" 38
responsible for recovery of estimated amount of. ks. 2.00,37,18)/-and thereby not releasing his pension and other retirement benefits for one and half years of his refirement which is according to. us, the respondents exercised the same beyond thelr power inasmucn as "once this Tribunal set aside the recovery order dated 23.06.2010 & 16.07.2010 which means that the order has _ attained finality having not challenged in higher forum. To their employee fairly with due regards to the court's order until and' unless the same is modified or set aside by the higher forum.
58, Co-ordinate Bench of Central Administrative Tribunal, Bombay Bench, in case of S$.K. Verma Vs. Union of - India & others (O.A,. No.263/201 2) neid as hereunder:
HAO. | in the instant case, the departmental proceeding attained is finality on Imposition of major punishment on the basis of the finding of all charges including the charge of negligence on Ine part of the applicant for shoriage of railway material resulting misappropriation of Rs. $2.80 lakhns..Tnerefore, no achon could. be taken for recovery of saia: amount from the aoplicant by ae 4 all fairness, the railway respondents oughi to have treated 8 a Sf. dtwas furl oe any other provisions of law. In respect of remaining amount, parily withheld. and pariy fecied. to. pe Fecoveren by the respondent her hel das hereunder:
%p icant sail leged veal gence of rou for joss OF a On setting aside the order: dated. 23.11.2012 passed by the authorities "towards o ell FE A a"
ob! the St : ae.
ae.
og = be eC Ip! of a copy of the order." oF My a whi a 4 di rected {a la ) to release the withheld drmount of Rs, pol cant within 'out weeks [rom the 'date of : "recovery of Rs, 31,87, 748/-. we eould haves rected the quthorities to inilate disciplinary, eceeding against the apdlicant to. prove his:
egligence for. loss of jhe amount over ang:
pove. Re 12. 80 lakhs. bul] in view of the fact that, eriod from 1996 fo 2010, we do: not find thal | wl e proper fo initiate the discipii nary proceed ng gainst fhe appli can now for any misconduct nich according" to fhe respondents was llegedly committed by The appli licant | in ihe year. got. | feo 'accordingly, the "respondents cre . . ee ,609/- within four weeks from ine. dated of 2 forego ng 5 parogranhs that the ape plicant AO toa Lower Grade | Le. from present DMS/Grl il to DMS/Gr. Tl ' With: restoration to. ord! incl grade ond: pay after 5 years period" which is duly served by tne applicant and that
-apart, this Triounal in earlier litigation set aside the recovery orders dated 23.06.2010 & 16.07.2010 on the ground: of fixing ine applicant as a fully responsible for : raueh as there is no such charge of inboparopiiatien or misconduct else than charge of "lack of integrity and _ mack Of devotion fo his duties'. Thus, in these circumstances, withholding of pens! onary oenefits In teu of entire estimated amount for recovery {is not at all permissible under the law
b). By taking into entire conspecius of the case, we direct Ihe respondents TO. disburse the pensionery penefits of the applicant immediately out not later than 4.
months, f Ine emount is already recovered from nis
2. above. No order eet : & AS Fao SAGES ™ "8 aw Pell re ay a ye TAGE oe oy « ey espa Seertlied 44) ts is she adoe:
hile (OLS 2 grickinas es } 2 Beir have aes "
: sopied v wil oy. région SOU) GAT, Guahatl Bench
0. A. stonds allowed to that extent inal cated ~ Sdf-
Manjula Das | Hon' ble Member () Sd/-
Mr. N, Neihsial Hon'ble Member (A) -
ote, rh