Central Administrative Tribunal - Patna
Om Parkash Gupta vs Railway on 17 October, 2023
1 OA No.389 of 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00389/2017
Order reserved on: 14.09.2023
.09.2023
Pronounced on: 17.10.2023
CORAM
HON'BLE MR. SUNIL KUMAR SINHA, MEMBER [A]
HON'BLE MR AJAY PRATAP SINGH, MEMBER [J]
Om Prakash Gupta S/o NandLal Prasad Gupta, Ex Ex-substitute, Group--
'D',, Under Station Superintendent,, East Central Railway, Hajipur, P.O.
- Digghi Kalan, P.S. _ Hajipur,
Hajipur, District - Vaishali at Hajipur (Bihar).
.......... Applicant.
By Advocate :-
: Shri M.P. Dixit
-Versus-
1. The Union of India through the General Manager, East Central Railway,
Hajipur, P.O. - Digghi Kalan, P.S. _ Hajipur, District - Vaishali
aishali at
Hajipur (Bihar). 844101
Patna 2. The General Manager (Personnel), East Central Railway, Hajipur, P.O.
Bench - Digghi Kalan, P.S. _ Hajipur, District - Vaishali at Hajipur (Bihar).
844101
3. The Divisional Railway Manager, East Central Railway, Sonpur, Dis
District
trict
- Saran (Bihar) 841101.
841101
4. The Senior Divisional Operating Manager, East Central Railway,
Sonpur, District - Saran (Bihar) 841101.
5. The Senior Divisional Personnel Officer, East Central Railway, Sonpur,
District - Saran (Bihar) 841101.
6. The Assistant Operating Manager, East Central Railway, Sonpur,
District - Saran (Bihar) 841101.
7. The Station Superintendent,, East Central Railway, Hajipur, P.O. -
Digghi Kalan, P.S. - Hajipur, District - Vaishali at Hajipur (Bihar).
844101
......... Respondents.
By Advocate :-Shri
: H.R. Singh, . Additional
dditional Standing Counsel
O R D E R (O R A L)
AS PER : AJAY PRATAP SINGH, MEMBER (JUDL)
1. The present original application under section 19 of the Administrative Tribunals, Act 1985 has been filed challenging show cause notice dated 17.12.2015 as well as order dated 25.01.2017 issued by respondent no.
no. 1, whereby in exercise of pow power of suo-moto revision after more than eight years from date of minor penalty order dated 18.03.2008 passed by disciplinary disciplinary authority has issued show cause notice dated 17.12.2015 and enhanced minor penalty to major penalty and passed order dated 25.01.2017 of removal from service with immediate effect.
2. The applicant has sought the following main reliefs:
reliefs:-2 OA No.389 of 2017
(i) That your Lordships rdships may graciously be pleased to quash and set aside the impugned Order dated 25.01.2017, 17.12.2015 both issued by Respondent No. 1 together with Order dated 10.02.2017 issued by Respondent no. 5 whereby and where -
under the applicant has been removed from service under suo suo- moto revision.
(ii) That Your Lordships may further be pleased to direct the Respondents to reinstate the applicant in service henceforth with all consequential benefits including arrears of salary for the period from the removal and reinstatement in service including statutory interest thereupon treating him regular employee after his screening dated 24.02.1999 as contained in Annexure Annexure-A/3.
(iii) Any other relief or reliefs including the cost of the proceeding mayy be allowed in favour of the applicant.
3. Briefly, stated the facts as adumbrated by the applicant are that:-
(i) The applicant was appointed on 02.03.1979 as casual labour and on completion of 120 days of continuous service was granted temporary status w.e.f. 10.04.1985 (Annexure A-1) 1) and has been granted benefits at par with permanent employee.
(ii) The applicant (Serial No. 176) alongwith other co co-employees employees namely KalinathRai (Serial No. 174), Vinod Kumar (Serial No. 196) an and Vijay Kumar Rai (Serial No. 221) was empaneled vide order dated 24.02.1999 Patna (Annexure-A/3) A/3) and declared successful in screening test for regular post Bench but no formal order of regular posting was issued.
(iii) The Divisional Operating Manager, East Central Railway, Sonpur issued major penalty charge sheet dated 02.01.2004 under R Rule-9 9 of Railway Servants (Discipline & Appeal) Rules, 1968 ((for for brevity hereinafter referred to as Rules, 1968)) on allegation of submission of fake school certificate. The applicant has further made averment in the OA that in enquiry report-charges charges were not proved on the basis of verification certificate dated ted 08.11.2005 (Annexure (Annexure-A/5) A/5) issued by Headmaster, S.P.S. Seminari, Sonpur (Saran). In spite of that disciplinary authority-Divisional Divisional operating Manager, Sonpur vide order dated 18.03.2008 inflicted minor penalty of three sets of privilege passes. The order dated 18.03.2008 of minor penalty, stipulates that applicant has not ta taken ken any advantage of mark sheet alleged to be fake as no minimum education qualification was required.
(iv) The further case of the applicant is that minor penalty order dated 18.03.2008 (Annexure-A/6)A/6) was passed by disciplinary authority and thereafter noo any disagreement note to enquiry report was given, so also neither any order by appellate authority nor revisionary authority was passed in the case of applicant. The respondent no. 1, General Manager, East Central Railway, Hajipur after more than eight years of order dated 18.03.2008 by disciplinary authority, issued impugned show cause notice dated 17.12.2015 (Annexure-A/7) A/7) without any new material, without reasons and proposed higher penalty under exercise of power of suo-motomoto revision under proviso to sub-sub--rule (b) of sub rule 5 of Rule 25,Rules, Rules, 1968.
(v) The applicant submitted reply dated 16.01.2016 but without considering contents of reply, respondent no. 1 has passed non non-speaking speaking impugned order dated 25.01.2017 of removal from service with immediate effect. The major penalty order dated 25.01.2017 was ccommunicated ommunicated by order dated 10.02.2017 by respondent no. 5 effecting removal of applicant from service by exercising power of suo-moto revision after more than eight years of order dated 18.03.2008 passed by disciplinary authority. The applicant is before this his Tribunal assailing show cause notice dated 17.12.2015 and order dated 25.01.2017 both issued by respo respondent ndent no.1 General Manager, East Central Railway, Hajipur and consequential order dated 10.02.2017 passed by respondent no. 5.
4. Per contra, contra respondents nts have contested the claim of the applicant by filing written statement wherein they have submitted that :-
3 OA No.389 of 2017(i) Charge harge of submitting fake certificate at the time of initial appointment was proved. The Chief Staff & Welfare Inspector submitted report as tto o fake school certificate and disciplinary action was taken. The disciplinary authority vide order dated 18.03.2008 inflicted minor penalty of stoppage of three sets of privilege passes.. The further stand of the respondents that in consonance with alleged charge of producing fake certificate to secure appointment in accordance with RBE No. 110/1993 dated 20.07.1993 decision was taken by personnel department and by virtue of powers under proviso to sub-sub-rule rule
(b) of sub-rule (5) of Rule 25 of Rules 1968 and paragraph 20(e)of of MasterCircular ircular No. 67, General Manager can entertain suo-moto moto revision without any time limit.
(ii) The suo-moto moto revision revisionary power was invoked by General Manager Pursuant to minor penalty order dated 18.03.2008 by disciplinary authority which was inadequate for alleged proved misconduct. So decision was taken and show cause notice dated 17.12.2015 (Annexure (Annexure-A/7) A/7) was issued to the applicant to file written statement tatement against proposed enhancement of punishment. Thereafter hereafter revisionary authority/ authority/General Manager invoked its suo-moto revision power and passed impugned order dated 25.01.2017 (Annexure-A/8) A/8) of removal from service with immediate effect and communicated the same to applicant vide order dated 10.02.2017 (Annexure (Annexure--
A/9). The respondents also submitted that in case of Gautam Prasad Singh versus Union of India , OA No. 47/2012 and other similarly placed co-- employee educational certificates were found genuine on verification. Hence the case of present applicant distinguishable from co co-employees case.
Patna Bench 5. Rejoinder has been filed by applicant nnegating egating the averments made in the written statement stating that :
(i) The name of co-employee employee finds placed in order dated 24.02.1999 (Annexure-P/3).
P/3). Panel was prepared to absorb as group D employee and applicant's name is at Serial No. 176. Name of co-employee Kalinath Rai is at Serial No. 174, Chandra Shekhar Thakur at Serial No. 173, Binod Kumar at serial no. 196, Lakhendra Rai at Serial No. 202 and Vijay Kumar Rai at Serial No. 221. The applicant submits that above mentioned co-employees employees also faced similar allegation and disciplinary authority exonerated all of them after disciplinary proceedings initiated in the year 2004, whereas in the case of applicant, verification certificate, issued on 08.11.2005 by Headmaster, S.P.S. Semirari, Sonpur (Saran) (Annexure-A/5) A/5) was not taken into consideration and disciplinary authority inflicted miminor penalty vide order dated 18.03.2008. However, stoppage of three privilege passes did not affect applicant's service career, so, he did not file appeal or revision.
(ii) The applicant further submits in rejoinder that on dictates of vigilance,, after more than eight years of minor penalty order dated 18.03.2008, show cause notice dated 17.12.2015 (Annexure-A/7) A/7) was issued invoking suo-moto revisional powers under proviso to sub-sub--Rule (b) of sub-rule (5) of Rule 25 of Rules 1968 and Rule 20 (e) of master circular no.
67. The suo-moto moto revisionary authority the applicant vide impugned order dated 25.01.2017 removed the applicant from service.
(iii) The applicant has also stated in his rejoinder that this Tribunal in similar facts and nd point in issue also allowed co-
employees' OA No. 535/2013 Kalinath Rai versus Union of India, vide order dated 02.05.2017 02.05.2017, thereafter respondents herein challenged order dated ted 02.05.2017 in OA No. 535/2013 before Hon'ble High Court Patna in CWJ Case No. 11853/2017 and their ir Lordships vide order dated 20.11.2017 (Annexure-P/1 P/1 with rejoinder) refused to 4 OA No.389 of 2017 interfere with order dated 02.05.2017 2017 in OA No. 535/2013 and dismissed petition with cost of Rs. 50,000/ 50,000/- payable by railway, especially the General Manager, the revisionary authority, East Central Railway, Hajipur to the private respondent.
(iv) This Tribunal in case of other coco-employees namely Binod Kumar, Lalchendra Rai and Vijay Kumar Rai allowed OA No. 392/2015 vide order dated 20.07.2018 and quashed show cause notice and order by revisionary authority of dismissal from service. The respondents railway challenged order dated 20.07.2018 in OA No. 392/2015 before Hon'ble High Court Patna and Lordships vide order dated 25.02.2019 in CWJ Case No. 2214 of 2019 2019(Annexure-P/2 with rejoinder) relying on earlier order ddated 20.11.2017 in CWJ Case No. 11853/2017 dismissed the writ application.
(v) The applicant in rejoinder inder further reiterated that impugned show cause notice dated 17.12.2015 (Annexure (Annexure-A/7) without any justification on delay non-speaking speaking and order dated 25.01.2017 (Annexure-A/8) A/8) passed by invoking suo-moto revisional power after inordinate delay of more than eight years deserves to be quashed and set aside as Hon'ble High Court of Patna in CWJ Case No. 11853/2017 decided on Patna 20.11.2017and in CWJ Case No. 2214 of 2019 2019decided on Bench 25.02.2019(Annexure- P/1 &P/2) P/2) has dismissed writ applications challenging order dated 02.05.2017 in OA No. 535/2013 and order dated 20.07.2018 in OA No. 392/2015 passed by this Tribunal in case of co co-employees and in similar facts and legal issue as involved in the present case and the present case is no different case to earlier OA No. 535/2013 and OA No. 392/2015. Hence the applicant prays to allow the present OA with consequential benefits as granted in earlier OAs.
6. Shri M.P. Dixit learned counsel counsel for applicant argued that the he respondents have initiated disciplinary proceedings by issuing memo of charges dated 02.01.2004 and disciplinary authority vide minor penalty order dated 18.03.2008 has closed the case by inflicting minor penalty of withholding of set of three privilege pass passes.Since ince the matter has been closed in case of applicant and other co co-employees employees on same set of allegation and applicant has been continuing in railway service, suddenly without any justification and reason on dictates of vigilance after more than eight ht years of inordinate delay powers of suo- moto revision by General Manager, East Central Railway, Hajpur under proviso to sub-sub--
rule (b) of sub-rule
sub (5) of Rule 25 of Rules 1968
1968and paragraph no. 20(e)
of Master Circular No. 67 same is impermissible in law.. So also in similar cases of co-employee co employee on same set of facts and legal issue in hand. This Tribunal in similar facts and point in case of co co-employee in OA No. 535/2013 in Kali Nath Rai Vs. Union of India allowed OA vide order dated 02.05.2017.
02.05.2017 The respondents railway assailed Tribunal order dated 5 OA No.389 of 2017 02.05.2017 in CWJC No. 11853 of 2017 Union of India Vs. Kalinath Rai. Their ir Lordships vide order dated 20.11.2017 (Annexure (Annexure-P/1) P/1) has dismissed the writ application and observed that Tribunal did not commit any error and imposed cost of rupees Fifty thousand payable by railways especially the General Manager, suo-moto moto revisional authority ECR, Hajipur pur Distt.
Dist Vaishali (Bihar).. So also this Tribunal in another similar OA No. 392/2015 Binod Kumar, Lakhendra Rai & Vijay Kumar Rai Vs. Union of India & Ors. vide order dated 20.07.2018 allowed the OA.. The Tribunal order dated 20.07.2018 was challenged before Hon'ble High Court, Patna in CWJC No. 2214 of 2019 (Annexure (Annexure-P/2) P/2) by railways and their Lordships has affirmed order dated 20.07.2018 in OA No. 392/2015 and dismissed the writ application. The core issue stands qualified by the judicial ial pronouncements and present case is covered case. Patna Bench
7. Shri H.R. Singh, Learned Additional Standing Counsel appearing for respondents vehemently argued that the minor penalty order dated 18.03.2008 by disciplinary authority was contrary to RBE No. 110/199 110/1993, 3, as applicant submitted false certificate to secure appointment in railways and deserves to be dismissed. The competent authority authority- General Manager, East Central Railway, Hajipur Haj pur Zone has invoked suo-moto power of revision permissible to invoke at any time time without restriction of any time limit as provided under proviso to sub-sub sub-rule (b) of sub-rule rule (5) of Rule 25 of Rules 1968 and paragraph 20(e) of Master Circular ircular No. 67 stipulates that beyond six month of date of penalty proposed for enhancement of penalty given, than beyond time limit, General Manager or Railway Board can enhance any time without restriction of any time limit.Mr. Mr. H. R. Singh,learned Singh Addl. Standing Counsel also urged that applicant submitted false certificate from school to secure aappointment ppointment in railway and major penalty charge sheet dated 02.01.2004 was served and enquiry officer proved the Charge alleged, class VIII Mark sheet was required but applicant also submitted fake class X Mark sheet and d same has been proved to be fake fak in report eport of enquiry officer, hence the case of Co-employee employee Kali Nath Rai in O.A. NO. 535/2013 affirmed in C.W.J. C. No 11853/2017 by Hon'ble High Court Patna and other cases referred not on similar facts, hence not applicable in facts of present case.
6 OA No.389 of 20178. No other point is pressed at Bar by the learned counsel appearing for both the parties.
9. We have bestowed our anxious considerations on the rival contentions of the learned counsels appearing for the parties and perused the material on record
10. The undisputed und facts are that:-
The batch-mates mates of applicant also faced identical nature of allegation. The General Manager invoked suomotorevisional jurisdiction after inordinate delay and removed them from service in case of KalinathRai versus Union of India & &ors, OA No. 535 of 2013, the General Manager after more than nine years invoked special power of suo-moto revision under proviso to sub sub-sub rule
(b) of sub-rule 5 of Rule 25 of Rules, 1968 and inflicted penalty of removal from service. The coordinate Divi Division Bench of this Tribunal allowed O.A. No. 535 of 2013 vide order dated 02.06.2017. The respondents railway challenged this Tribunal order dated 2.6.2017 in O.A. No. 535 of 2013, Kali NathRai Vs. Patna Union of India before Hon'ble High Court of Judicature at Patna Bench in C.W.J.C. No. 11853 of 2017 Union of India and others versus Kali NathRai.. Their Lordships vide order dated 20.11.2017 affirmed order dated 02.06.2017 in OA No.535 of 2013, Kali NathRaiand dismissed writ application with cost of rupee fifty thousand to be payable by General Manager, East Central Railway, Hazipur. So also it is not disputed in case of other bathch bathch-mates in Binod Kumar LakhendraRai and Vijay Kumar Rai Versus Union of India and others, OA No. 392 of 2015 2015, after eight years process of suo-moto revision was initiated and removed from services. The Coordinate Bench of this Tribunal allowed O.A. No. 392/2015 Binod Kumar and Others versus Union of India and others vide order dated 20.07.2018. The respondents respondents-railway assailed said order beforee Hon'ble High Court of Judicature at Patna and their Lordships placed reliance of earlier order dated 25.02.2019 in C.W.J.C. No. 11853 of 2017 2017, Union of India and others versus Kali NathRai and affirmed this Tribunal Order dated 20.07.2018 in O.A. No. 392/2015 2/2015Binod Kumar and ors vs Union of India &ors.anddismissed dismissed writ application vide order dated 25.02.2019. It is also not disputed that General Manager being higher than appellate authority exercised in all cases cited above power of suo-moto revision und under proviso to sub-sub-rule
(b) of Sub-rule 5 of Rule 25 of Rules 1968 1968. The special power of suo-moto revision invoked after inordinate delay without assigning any reason for delay.
11. The following issues arise before us for consideration:-
i. Whether exercising of suo-moto moto revision powers by the General Manager, East Central Railway, Hajipur after inordinate delay of more than eight years is justifiable in law?
ii. Whether issue for adjudication in this case is no more res-integra and it has been already decided by this Tribunal and covered in similar cases of co-employee employee as well as affirmed by Hon'ble High Court of Judicature at Patna and thereby binding on this Tribunal?12. AS TO ISSUE NO. 1 7 OA No.389 of 2017
(i) The relevant facts are to decide the issue are within narrow compass compass..
The disciplinary authority vide order dated 18.03.2008 inflicted minor penalty with stoppage of three sets of privilege passes. On allegations of submission of fake school certificate but later on the Headmaster of the school duly verified school certificate but same was not considered.. The applicant did not challenge order dated 18.03.2008 as minor penalty stoppage of three sets of privilege three sets of privilege pass passes es did not affect his service and so no appeal or revision was filed. Subsequently after a lapse of more than eight yyearsars of minor penalty order dated 18.03.2008. The General Manager exercised suo-moto moto revisional power under provisoto sub sub-sub-rule (b) of sub rule 5 of Rule 25 of Rules 1968 and issued show cause notice dated 17.12.2015 to inflict higher penalty and finally vide order dated 25.01.2017, the applicant has been removed from service.
(ii) Before dealing with rival contentions advanced at the Bar, it is apposite to quote relevant portion from minor penalty order dated 18.03.2008 passed by the disciplinary authority which reads as under:
under:-
जां च अिधकारी की report के अनुसार ज ितिथ मािणत होती है । ी ओम काश ोंिक ऐवजी कमचारी है । अतः इनके िलए ूनतमिश ा का होना कोई essential नही ं है । अतः इनके माण-प शै िणक की ामािणकता कोई मायने नही ं रखती है। ोंिक जां च के बाद इनका शैि क माण प सही सािबत नही ं आ। अतः इ े दोषी मानते ए Patna इनका तीन रे ल सुिवधा पास बं द िकया जाता है ।
Bench (Emphasis supplied)
(iii)) Thereafter suddenly in the year 2015 after more than eight years of order dated 18.03.2008 of minor penalty by disciplinary authority the General Manager, East Central Railway, Hajipur for reason best known to him, invoked suo-moto revisional jurisdiction under proviso to sub--
sub rule (b) of sub-rule rule (5) of Rule 25 of Rules 1968 and issued show cause notice dated 17.12.2015 impugned in present OA. The same is reproduced as under:-
Show Cause Notice to Sri Óm Prakash Gupta, Sub. Hajipur, {Rule 25(5) of Railway Servants (D&A) Rules, 1968} Sri Om Prakash Gupta, Sub. Hajipur under Sr. DOM/Sonpur was served a Major charge sheet vide Memorandum No. प/134/एवजी/हाजीपुर/04 dated 02.01.2004 for the charges mentioned in the Annexure to the said charge Memorandum.
DOM/SEE, the Disciplinary Authority imposed stoppage of three set Privilege Passes to him in view of the C.O's reply vide NIP No. प/134/एवजी/हाजीपुर/04 dated 18.03.2008. The penalty imposed by DA does not seem to be proper as charges pertain to submission of fake educational certificate by the charged official at the time of his initial appointment.
Hence, I do not agree with the decision of Disciplinary Authority. I propose to impose a higher penalty under exercise of power vested in Rule 25 of Railway Servant rvant (D&A) Rule, 1968 keeping in view the instructions of Railway Board as given in RBE No. 110/93.
This may be treated as Show Cause Notice to Sri Om Prakash Gupta, (C.O) who is directed to submit a Written Statement of final defence against the proposed enhancement hancement of punishment, if any, within 15 days from receipt of this Show Cause Notice. Non receipt of final defence within stipulated period will mean that Sri Gupta has nothing to say in his defence and a decision will be taken ex parte.
General Manager E.C.Rly./Hajipur (Emphasis supplied)
(iv) The suo-moto revision has been initiated after inordinate delay of more than eight years, with no reasons for not initiating action since 18.3.2008, so also there is neither any fresh materialas basis nor any cogent reasons, or justification as to invokespecial powers that too by highest authority in the railway zone in case of group 'D' status of employee, who has already undergone minor penalty in year 2008 and since 1979 continuing in service. The respondents not even filed enquiry report in the present case alongwith writte written n statement reasons 8 OA No.389 of 2017 best known to them. So also no denial to th the fact that Head Master verified alleged mark sheet as in similar cases. So also there is no denial to categorical averments of applicants in rejoinder that on dictates of vigilance organizational decision taken to invoke suo moto revision power.
(v)) The scheme of revision enshrined in Part VI of Rules, 1968 and paragraph 20(e) of Master Circular No. 67 are to belooked looked into in order to examine the power of suo suo-moto revision exercised by the General Manager. The Rule 25 of Rules 1968 is reproduced as under for ready reference:-
PART VI REVISION AND REVIEW "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 ere no appeal has been preferred;
(v) any other authority not below the rank of a Deputy Head of a Patna Department,. in the case of a Railway ser servant serving under its Bench 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 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, hance, 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 subsub-rule (2) of Rule 11 or to enhance the penalty imposed mposed by the order under revision to any of the penalties specified in this subsub-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 alsoo except after consultation with the Commission, where such consultation is necessary.
(2) No proceeding for revision shall be commenced until afterafter-
(i) the expiry of the period of limitation for an appeal; or
(ii) the disposal of the appeal where any such appeal has been preferred Provided that the provisions of this subsub-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 er as if it were an appeal under these rules. (4) No power of revision shall be exercised under this Rule Rule-
(i) by the appellate or revising authority where it has already considered the appeal on the case and passed orders thereon; and 9 OA No.389 of 2017
(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 by-
(a) an appellate authority other than the President; or
(b) the revising authorities mentioned ntioned 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 der 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 in any other Patna Railway Unit or Administration when they are Bench higher than the appellate authority, and by the President esident even when he is the appellate authority, this can be done without restriction of any time limit.
Explanation-For For the purposes of this subsub-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 Time limit for revision petition is 45 days from the date of delivery of the ord 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 66-44 of 2.12.866 W.R. No. 188/86], the authority may entertain petition after expiry of period if it is satisfied that the petitioner had sufficient cause for delay (ibid).
The suo-moto moto revisionary authority without indicating any reasons, justification for inordinate delaylay took up the decision of disciplinary authority in light of paragraph 20 of the he Master Circular No. 67 which is reproduced hereunder:-
(vi)) Whether the decision of the Disciplinary Authority in the Disciplinary Proceedings can be brought under the purview of a suo suo-moto moto revisional jurisdiction after more than eight years of General Manager as indicated in paragraph graph 20(e) of the Master Circular No.67.. The said paragraph 20 of the Master Circular No. No.67 is quoted as under :-
20. Revision/Review 10 OA No.389 of 2017
a) Revision is different from review. Review in terms of Rule 25 (A) can be undertaken only by the President and only when some new evidence which could not be produced or was not available at the time of passi passing the order and which has the effect of changing the nature of the case, is brought to the notice of President.
Both revision and review can be undertaken either suo-moto moto or on submissions of a petition by the employee.
b) Revision can be undertaken by the President, Railway Board, GM or any other authority not below the rank of Dy. HOD. It can be undertaken on consideration of a Revision Petition submitted by the employee or as a suo-moto moto exercise. If undertaken suo suo-
moto,, then the revisionary proceedings should not be started till disposal of the appeal, if already submitted or till the expiry of the limitation period of 45 days for submission of appeal. This, however, does not apply to revision of punishment in case of Patna railway accidents.
Bench (Rule 25 (2) of RS (D&A) Rules, 1968)
c) Where a revision petition is submitted by the employee, the petition should be dealt with in the same manner as if it were an appeal. Thus, the time limit for submitting the revision petition is also 45 days, which needs to be indicated in the appellate order and the Revising Authority should also consider the case in the samemanner as the Appellate Authority is required.
(Rule 25(3) of RS(D&A) Rules and Board's letters No. E (D&A) 84 RG6-44 dt: 8.1.85 and 2.12.86)
d) The Revising Authority has to be higher than the Appellate Authority both in cases where an appeal had been submitted and disposed of and where no appeal was preferred. This stipulation, however does not apply to revision by President.
(Rule 25 (4) of RS(D&A) Rules, 1968)
e) If suo-moto moto revision is undertaken beyond the time limits given below, then it can be done only by the General Manager or Railway Board provided they are above the Appellate Authorities or by the President even if he happens to be the Appellate Authority:
i) Beyond 6 months from the date of the order to be revised in case where it is proposed to impose a penalty (where no penalty is in force) or enhance a penalty.
ii) Beyond one year from the date of the order to be revised in case where it is proposed to cancel the penalty imposed or reduce the penalty.
These time limits are relevant only for suo- moto proceedings and not for consideration and disposal of Revision Petitions, which 11 OA No.389 of 2017 have to be done only by prescri prescribed Revising Authority subject tocondonation of delay, if any, in submission of revision petitions petitions.
(Rule 25(5) of RS(D&A) Rules)
f) If the Revising Authority proposes to impose a penalty (where no penalty has been imposed) or enhance the penalty, then a sshow cause notice has to be issued to the Railway servant indicating the proposed penalty, to enable him to represent against the said penalty. If the proposed penalty is such that holding of an inquiry is essential before its imposition and if an inquiry hasas not already been held in that case, then an inquiry should first be held before the proposed penalty can be imposed by the Revising Authority."
(vii On perusal of the scheme of revision under Rule 25 of Rules, 1968,, it
(vii) is clear that under sub-sub-rule rule (b) of sub sub-rule (5) and sub-sub sub rule (V) of sub-rule (1) of Rule 25 of Rules 1968 1968, Special Powers of Sou-Moto,, revision either on his or its own motion oor otherwise can be invoked to call for records rds of any enquiry and revise any order made un under der these rules i.e. Rules 1968. Theproviso proviso appended to the sub-sub-rulerule (b) of Patna sub-rule (5) of Rule 25 of Rules 1968 also provides that when revision Bench is undertaken by the railway board or the General Manager of a Zonal railway or an authority of the statu statuss of a General Manager in any other railway unit, when they are higher than the appellate authority, there is no time limit and at any time, General Manager can invoke powers for suo-moto revision.
(viii)
viii) This Tribunal has examined scheme of revision/ revision/suo-moto moto revision under Rule 25 of Rules 1968and and also examined entire Rules 1968. The rules providing different limitation for different subjects. The maximum period of limitation provided is six months in case proposal is for enhancement of penalty other than General Manager or Rail Railway y Board. For the General Manager or Railway Board to invoke power of suo-- moto revision and enhanced penalty there is no time limit and at any time. The present case is being decided on merits. The question of law is kept open relating to issue whether power of invoking suo suo-moto moto revision by General Manager or Railway Board at any time no time limit be construed as reasonable period ?
(ix) The issue this Tribunal is in seisin seisin, whether exercising suo-moto moto revisionpowers powers by the General Manager, East Central Railway, after inordinate delay of more than eight years is justifiable in law?
(x) While exercising the power of judicial review thisTribunal Tribunal is more concerned ncerned with the decision making process. Therefore, to a limited extend scrutinizing the decision making process. The General Manager, East Central Railway, the highest authority has initiated suo-- moto revision after inordinate delay of more than eight yeyears against group 'D' employee,, whereby show cause notice has been issued issued. So also enhanced minor penalty to major penalty of removal from service with immediate effect.
(xi) The bare perusal of impugned show cause notice dated 17.12.2015 reveals that same has been issued after more than eight years of issuance of minor penalty order dated 18.03.2018, stoppage of three sets of privilege passes. The impugned show cause Notice does not mention any reason for not initiating action for more than eight years. So also does not mention about any new material to invoke special powers of suo-moto revision under proviso to sub sub-sub-rule (b) of Sub--
Rule 5 of Rules, 1968.The The General Manager invoked suo-moto moto 12 OA No.389 of 2017 revisional jurisdiction without stating reasons for disagreement with disciplinary authority decision.
(xii) The disciplinary authority has already closed the mat matter er more than eight years ago and on the cryptic impugned show cause notice. The applicant cannot be expected to submit reply on case already closed long back. If the disciplinary authority decision was without application of mind there has to be reason assigned for waiting for more than eight years to initiate suo-moto revision.. While issuing impugned show cause notice for higher penalty, the revisionary authority did not even record complete facts which necessitated the suo-moto review.
(xiii) Shri H.R. Singh, learned Additional Standing Counsel appearing for respondents argued that reasons have been assigned in the written statement for issuance of impugned show cause notice notice. It is settled principle of law that the validity of order must be judged by the reasons so mentioned in the order itself and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Hon'ble Supreme Court in five judges Bench decisi decision on in case of Mohinder Singh Gill and another versus the Chief election Commissioner, New Delhi and others, AIR 1978 S.C. 851 has held so so.
(xiv) In our considered opinion thee manner in which special power of suo--
moto revision exercised by the highest authority of the Zonal railway Patna suffers from non-consideration consideration of relevant factors, violation of Bench principles of natural justice. The exercise of suo-moo moo revisional power against applicant after inordinate delay without application of mind to enhance penalty from minorr to major penalty of removal from service, stands vitiated.
(xv) The scope of judicial review in service matters became subject matter of consideration before the Hon'ble Supreme Court in catena of judgments. It is opposite to refer Hon'ble Supreme Court in ca cases:-
State of M.P. Versus Johri Mal, (2004) 4 SCC 714 held as under under:-
" It is well settled that while exercising the power of judicial review the court is more concerned with the decision making process than the merit of decision itself."
[Emphasis supplied] Mathura Prasad Versus Union of India (2007) 1 SCC 437 has held that-
" The judicial review lies if statutory authority uses its power without application of mind and judicial review would be maintainable error of facts for sufficient reason may attract ttract principles of judicial review."
[Emphasis supplied] (xvi)) As held supra, the impugned show cause notice dated 17.12.2015 and consequential order dated 25.01.2017 issued by revisional authority and communicated vide order dated 10.02.2017 passed after long inordinate delay in illegal manner, without application of mind, contrary to principles of natural justice and therefore, same are quashed and set-aside aside with all consequential benefits. Thus the issue no.1 is decided accordingly in favour of applicant.
13. AS TO ISSUE NO. 2(i) Shri M.P. Dixit learned counsel for applicant also argued that in given facts and circumstances the core issue is no more res-- integra and has already been decided in identical cases of coco-- employees in OA No. 535/2013 Kalinath Rai versus Union of India &Ors. Vide order dated 2.5.2017 and OA No. 392/2015 13 OA No.389 of 2017 Binod Kumar & Ors vs Union of India & ors allowed vide order dated 20.07.2018 affirmed by Hon'ble High Court of Judicature at Patna in CWJC No. 11853 of 2017 Union of India and Ors versus Kalinath Rai vide order dated 20.11.2017 (Annexure-P/1) and in CWJC No. 2214/2019 Union of India & Ors versus Binod Kumar & Ors vide order dated 25.02.2019 whereby their Lordships affirmed orders of this Tribunal and in case of Kalinath Rai (supra) imposed cost of Rs. 50,000/ 50,000/- (Fifty Thousands) on General Manager, East Central Railway.
(ii) Per contra Shri H.R. Singh Learned Additional Standing Counsel for respondents supported impugned orders and submits that in the case in hand enquiry officer proved charges and the cases relied by the applicant are distinguishable.
(iii) We have examined examined the decisions in similar cases cases..
Kalinath Rai was served with major penalty charge sheet for submitting fake mark sheet to secure appointment. The disciplinary authority exonerated from the charges alleged as school authorities verified the mark sheet sheet.. The General Manager invoked suo-moto revisional power after about ten years, without assigning any reasons for not taking action for about ten years. Patna Kalinath Rai was removed from service and thereafter filed O.A. Bench No. 535 of 2013. This Tribunal vide order dated 2.5.2017 set set--
aside show cause notice and penalty order and allowed OA with all consequential benefits. The responde respondents nts railway challenged order dated 2.5.2017 in Kalinath Rai (supra) before Hon'ble High Court, Patna in CWJC No. CWJC No. 11853 of 2017, Union of India and ors versus Kalinath Rai vide order dated 20.11.2017 (Annexure P-1) 1) affirmed Tribunal's order dated 2.5.2017 .5.2017 and imposed cost of Rs.50,000/ Rs.50,000/- (fifty thousand) payable by General Manager.
So also in the case of Binod Kumar, Lakhendra Rai & Vijay Kumar Rai (supra) identical nature of allegation submitting fake mark-sheet sheet and later on school authority verified. They were also exonerated by disciplinary authority but after eight years, the General Manager invoked suo-moto moto revisional power and issued show cause notice to enhance penalty. The order of removal from service with immediate effect was passed. Binod Kumar & ors filed OA No. 392/2015 and this Tribunal vide order dated 2.5.2017 allowed OA with all consequential benefits.
The respondents railways challenged order dated 2.5.2017 in OA 392/2015, Binod Kumar & ors in C.W.J.C. No. 2214 of 2019, Union of India & Ors vs Binod Kumar & Ors Ors.. The Hon'ble High Court Patna relying on order dated 20.11.2017 (Annexure P-1) 1) in C.W.J.C. N No. 11853/2017, Kalinath Rai (supra) has dismissed writ application vide order dated 25.2.2019 and affirmed order passed by this Tribunal.
(iv) The applicant was working with Kalinath Rai, Binod Kumar, Lakhendra Rai, Vijay Kumar Rai as substitute. The iden identical tical nature of charge of submitting fake school certificate for securing employment. The school authorities later on verified the school certificates and found as genuine. In case of present applicant in instant OA, school certificate was duly verified anand d found genuine by the Head Master of the school but same could not be considered in enquiry report. The revisional authority , General Manager in all the similar cases Kalinath Rai (supra) and Binod 14 OA No.389 of 2017 Kumar (supra) issued show cause notice to enhance penalt penalty y after inordinate delay of ten years and eight years respectively. This Tribunal allowed OAs in case of Kalinath Rai (supra) and Binod d Kumar & ors (supra). The Hon'ble Hi High Court of Patna in case of Kalinath Rai (supra) and Binod Kumar (supra) affirmed orders passed by this Tribunal and writ application filed by respondents dismissed. The suo suo-moto revision power invoked in all the similar cases after inordinate delay of more than eight years, without assigning any reasons and no any new materia materiall and not bonafide decision and Tribunal set aside orders s passed by General Manager and Hon'ble High Court affirmed orders of Tribunal in similar cases.
(v) The Hon'ble Supreme Court in M/s East India Commercial Co. Ltd versus Collector of Customs, Calc Calcutta, utta, AIR 1962 SC 1893 on consideration of Article 215, 226 and 227 of the Constitution of India held that "the "decision decision of the High Court have binding effect upon the Tribunals Tribunals". The legal issue in hand in present case also stands qualified by judicial pronouncements ronouncements of Hon'ble High Court of Judicature at Patna and Patna coordinate Bench of this Tribunal and present case is no different. Bench (vi) Considering all the facts and circumstances of the present case and cases of similarly placed employees on identical charge sheet inordinate delay in suo-moto moto revision as mentioned above, we are of the considered opinion that the case of present applicant is a covered matter on legal issue involved in the present case and no more res-integra and facts. The case of applic applicant ant is no different on the core issue with above referred cases and present applicant is also entitled to the same treatment and consequential benefits. The OA deserves to be allowed with consequential benefits.
favour of applicant.
Accordingly, we decide issue no. 2 in favou
14. We have already analysed in detail both issues and in light of aforesaid analysis of scheme of revision and covered cases. Consequently,, we hereby accordingly allow this Original applica application,, quash and set aside show cause notice dated 17.12.2015 and order dated 25.01.2017 communicated vide order dated 10.02.2017. The applicant shall be entitled to all consequential benefits. The respondents are directed to comply with the order within three months of the receipt of certified copy of this is order.
15. No order as to costs.
S
Sd/- Sd/-
[Ajay Pratap Singh] [Sunil Kumar Sinha]
Member [J] Member [A]
mks