Central Administrative Tribunal - Jaipur
P.T. Varghese S/O Shri Thomas P.T. A/A 56 ... vs Union Of India Through General Manager on 5 March, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL JAIPUR BENCH, JAIPUR ORIGINAL APPLICATION NO. 71/2010 Date of Order: 05.03.2014 CORAM HONBLE MR. ANIL KUMAR, ADMINISTRATIVE MEMBER HONBLE MR. M. NAGARAJAN, JUDICIAL MEMBER P.T. Varghese S/o Shri Thomas P.T. a/a 56 years, R/o 121-B-1, Tagore Nagar, D.C.M., Ajmer Road, Jaipur, presently posted as S.S.E. (P.Way) South, Jaipur Division of North Western Railway, Jaipur. Applicant Mr. S. Shrivastava, counsel for applicant. VERSUS 1. Union of India through General Manager, North Western Railway, H.Q. Office, in front of Railway Hospital, Hasanpura Road, Jaipur. 2. Divisional Railway Manager, Jaipur Division of North Western Railway, D.R.M. Office, Jaipur. 3. Sr. Divisional Engineer, Jaipur Division, North Western Railway, Jaipur. Respondents Mr. S.K. Saini, counsel for respondents. ORDER
(Per Mr. M. Nagarajan, Judicial Member)
1. The grievance of the applicant in this O.A. is to the charges leveled against him in the memorandum dated 22.05.2009 vide Annexure A/1.
2. The charges leveled against the applicant in the Memorandum dated 22.05.2009 (Annexure A/1) are as follows: -
(1). Shri Verghese P.T. as controlling official allowed Shri Ram Dev S/o Chotu Meena to join as Substitute Gangman in gang no. 15 on the basis of fraudulent office order no. E-891/2-1 dated 9.07.2004 issued by ADEN/Tr./Jaipur. He did not point out the anomalies in the fraudulent posting order dated 9.07.2004 to his higher authorities.
(2) Shri Verghese P.T. had already allowed Shri Ravindra Chawaria S/o Madan Lal (SC) to join as substitute gangman based on office order no EE/615/live register dated 11.06.2004 and AEN / Tracks letter dated 18.06.2004, in the office of SSE/PW/South on 19.06.2004. He allowed Shri Ram Deo s/o Chotu Meena to join in his office despite the fact that the fraudulent posting order issued in favour of Shri Ram Deo referred to the same office order no. EE/615/live register dated 11.06.2004 which had already been issued in favour of Shri Ravindera Chawaria.
(3) Shri Verghese P.T verified the number of working days of Shri Ram deo S/o Chotu Meena vide letter no. E891/1 dated 09.12.2004 for granting him temporary status without scrutinizing his papers related to his appointment as fresh face.
3. With regard to the aforesaid charges leveled against the applicant under impugned memorandum dated 22.05.2009 (Annexure A/1), the applicant claims that he has no role in the appointment of Shri Ramdeo S/o Shri Chotu Meena, who had obtained his appointment based on fraudulent document inasmuch as neither he was the part of the proceedings when attestation was made by the ADEN (Track) and oath taken by Shri Ramdeo before the issuance of posting order issued by the other concerned employee nor had any role in the screening done by the screening committee. According to the applicant, he has been unnecessarily dragged into the D.A.R. case without looking into the facts in detail and because of that he has been passing through the catastrophic state of mind for the act in which he did not play any role. The applicant further claims that he is quite innocent and innocuously has only counted working days of Shri Ramdeo in routine course as like as he did / does for other similarly situated persons. The applicant further states that he has just verified the days in which Shri Ramdeo had worked physically in the gang in question but how he had obtained the appointment order and who had allowed him to work in a particular gang was not the subject before him and also he had no reason for that because appointment order and posting order were issued by his higher authority. He claims that he has been made victim for the fault of others unnecessarily and contend that the charge-sheet is totally incorrect and invalid and, as such, the impugned memorandum dated 22.05.2009 (Annexure A/1) is liable to be quashed and, hence, he presented the O.A. with the prayer to quash the impugned charge-sheet vide Memorandum dated 22.05.2009 (Annexure A/1) and for such other reliefs that may grante3d in the circumstances of the case.
4. The respondents entered appearance and filed their written reply narrating that the applicant has an active role in the matter of appointment of said Shri Ramdeo and prayed for dismissal of the O.A.
5. Heard Shri S. Shrivastava, learned counsel for the applicant and Shri S.K. Saini, learned counsel for the respondents. Perused the pleadings and the documents annexed to the pleadings of both the parties.
6. Shri S. Shrivastava, learned counsel for the applicant, by reiterating the averments made in the O.A. argued that in view of the fact that the applicant has no role in the matter of appointment of Shri Ramdeo, the allegations made against him in the impugned charge-sheet vide memorandum dated 22.05.2009 are not at all sustainable. In support of this contention that he has no role to play in the matter of fraudulent appointment of said Shri Ramdeo, the learned counsel for the applicant submitted that while the applicant was on leave, one person namely Shri Ravindera Chawaria was appointed as fresh face Substitute Gangman in the pay scale of Rs. 2610-3540 under the S.S.E. (P.Way) of Engineering Department of Jaipur Division and the said appointment was issued vide order no. EE/615/live register dated 11.06.2004 issued by the Divisional Office of Jaipur Division in pursuance of which the order dated 03.06.2004 came to be issued by the headquarters office of North Western Railway.
7. Learned counsel for the applicant further referred to the fact that almost three years later in the year 2007, it was found that said Shri Ramdeo had resumed his duty on fraudulent office order no. E-891/2-1 dated 09.07.2004 and had forged the appointment letter no. EE/615/live register dated 11.06.2004, which was issued in favour of said Ravindera Chawaria on the basis of which said Ravindera Chawaria was earlier allowed to join before Shri Ramdeo.
8. Per contra, Shri S.K. Saini, learned counsel for the respondents submitted that at the time of posting and joining of Shri Ramdeo, the applicant was handing over the charge to Shri Rakesh Jain at BNLW but after joining SSE (P.Way) Jaipur, the applicant as a controlling officer of the said Shri Ramdeo allowed him to join and continue him as fresh face and verified the number of working days for granting temporary status without screening the paper related to his appointment as a fresh face. He contends that the applicant being an officer to scrutinize the paper of individuals pertaining to appointment when counting the days and it is his obligation to verify which he failed to do so and as such the charges leveled against the applicant in the impugned memorandum is entitled to be sustained.
9. Upon hearing the learned counsel for both the parties and on perusal of the pleadings and the documents annexed therein, we find that the impugned memorandum dated 22.05.2009 vide annexure A/1 is a notice issued by the Sr. Divisional Engineer, Jaipur Division, North Western Railway, Jaipur i.e. the respondent no. 3 herein under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968, prescribes the procedure for imposing major penalties.
10. Sub Rule (1) of Rule 9 of the said Rule of 1968 mandate that no order imposing any of the major penalties is specified under Rule 6 of the said Railway Servants (Discipline and Appeal) Rules, 1968 can be made except after an enquiry held by following the procedure prescribed under the said Railway Servants (Discipline and Appeal) Rules, 1968. Sub Rule 6 of Rule 9 of the said Rules of 1968 prescribes that whenever it is proposed to hold an inquiry against a Railway servant under this rule and Rule 10, the disciplinary authority shall draw up or cause to be drawn up the substance of the imputations of misconduct or misbehavior into definite and distinct articles of charge and a statement of the imputations of misconduct or misbehavior in support of each article of charge. Sub Rule 7 of Rules of 1968 requires that whenever the disciplinary authority proposes to hold an inquiry against a Railway servant, disciplinary authority shall deliver or cause to be delivered to the Railway servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehavior and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Railway servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow.
11. The Disciplinary Authority proposing to hold an inquiry against the applicant by following the procedure prescribed under Rule 9 of Railway Servants (Discipline and Appeal) Rules, 1968 delivered the articles of charges, which is impugned in the memorandum dated 22.05.2009 (Annexure A/1).
12. Under the impugned memorandum dated 22.05.2009 (Annexure A/1), the applicant was required to submit his written statement of his defence, with regard to the charges leveled against him therein, within ten days of the receipt of the said memorandum. On receipt of the impugned memorandum, as is required therein, the applicant has not submitted written statement of his defence. There was no impediment whatsoever for the applicant to submit his statement of defence before the disciplinary authority contending that he has no role to play in the matter of fraudulent appointment of the said Shri Ramdeo.
13. We may observe that all the contentions that has been urged by the applicant in this O.A. to substantiate his claim that he has no role to play in the matter of the fraudulent appointment of the said Shri Ramdeo, should have been urged by the applicant before the disciplinary authority so as to enable the disciplinary authority to appreciate his defence and to take a decision either to desist from further proceeding with the matter or to hold an inquiry by following the procedure prescribed under the said Railway Servants (Discipline and Appeal) Rules, 1968. But for the reasons best known to him, he did not submit written statement of defence in response to the charges leveled against him in the impugned memorandum dated 22.05.2009
14. Sub rule 9 (a) (i) of Rule 9 of Railway Servants (Discipline and Appeal) Rules, 1968, provides that on receipt of the written statement of defence from a Railway servant, who has been served a charge-sheet under the said Rule 9, the disciplinary authority shall consider the same and decide whether the inquiry should be proceeded with under Rule 9, and where after such consideration, the disciplinary authority is of the opinion that the imposition of a major penalty is not necessary, it may drop the proceedings already initiated by it for the imposition of major penalty, without prejudice to its right to impose any of the minor penalties, not attracting the provisions of Rule 11 (2) of the said Railway Servants (Discipline and Appeal) Rules, 1968.
15. A reading of the procedure prescribed under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968, reveals that the disciplinary authority has inherent power to review and modify the articles of charges, or drop some of the charges or all the charges after receipt of written statement of defence submitted by a delinquent official. In other words, on issuing the articles of charges, the disciplinary authority is not bound to appoint an Inquiry Officer or conduct the inquiry into the charges, which are not admitted by the charged officer but about which the disciplinary authority satisfied on the basis of the written statement of defence that there is no further cause to proceed.
16. Thus, in view of this position, we are unable to entertain the grounds urged by the applicant for quashing the charges contained in the impugned memorandum dated 22.05.2009 (Annexure A/1).
17. The bone of contentions of the applicant in support of his prayer for quashing the impugned memorandum is that he has no role whatsoever with regard to the appointment of the said Shri Ramdeo. As already observed, he refers to various documents in this regard, but we do not understand the problem of the applicant to put forth his defence before the disciplinary authority as is required as per the procedure prescribed under the Railway Servants (Discipline and Appeal) Rules, 1968. It is not the case of the applicant that on receipt of the impugned memorandum, as is required therein, he has submitted his written statement of defence. Thus, there is a failure on the part of the applicant to put forth his defence statement before the disciplinary authority so as to enable it to decide whether it is necessary to proceed with the inquiry proposed or to drop the same.
18. In the aforesaid facts and circumstances, if the prayer of the applicant to quash the impugned memorandum of articles of charges were to be entertained on the sole ground that he has no role to play in the matter of appointment of the said Shri Ramdeo then such an exercise would result in the Tribunal taking the task of the disciplinary authority, which is not permissible in law. Hence, on this ground itself, the prayer sought by the applicant in this O.A. is liable to be rejected.
19. No doubt that there are certain circumstances under which the Tribunal has jurisdiction to quash a memorandum of articles of charges even in the absence of submitting written statement of defence by the delinquent official on receipt of the articles of charges. Such circumstances must be referable to the rules prescribed. For example even in the absence of written statement of defence in pursuance of the articles of charges, a prayer to quash the articles of charges can be entertained and quashed if it is shown that the authority, which has issued the articles of charges, has no competency to issue the articles of charges. Who can initiate a disciplinary proceeding against a particular officer is prescribed under the Railway Servants (Discipline and Appeal) Rules, 1968. As such by referring to the procedural irregularity, the Tribunal can quash the articles of charges even in a situation where the delinquent official has not filed his written statement on receipt of articles of charges but, in the instance case, the applicant has not at all pointed out any procedural irregularity. All the grounds urged by the applicant are all of question of fact and are not of law.
20. The power of judicial review of the Tribunal is very limited in the matter pertaining to disciplinary proceedings. The Honble Supreme Court time and again cautioned that the Court must keep in mind that judicial review is not akin to adjudication on merit by appreciating or re-appreciating the evidence as an appellate authority. Thus, the Court is devoid of power to appreciate or re-appreciate the evidence and come to his own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision or not against decision itself and in such a situation, the court cannot arrive on its own independent finding.
21. We may note that during the arguments before us, the applicant was not understanding the difference between the maintainability of an action vis-`-vis its sustainability before us. Learned counsel for the applicant was arguing with reference to the material on which he wanted to rely or thereupon show that the charges could not be sustained and needless to state the issue, when a charge-sheet is challenged, is not whether the charge can ultimately be sustained. The issue is whether there is a prima facie material to maintain the charge and whether on the allegation made in the statement of imputation, a charge is attracted.
22. The applicant has not alleged any mala fide against any officer and none has been impleaded as a respondent. During the argument, learned counsel for the applicant wanted us to look into the material, which has yet to be a shape of evidence and, thus, we refrain from commenting upon the issue that for the reason it is a premature for us to express any view on the material on the basis whereof the charge-sheet has been issued. Thus, we find no merit to grant any of the prayer as sought by the applicant.
23. On the date of argument of O.A. i.e. on 05.03.2014, learned counsel for the respondents brought to our notice that inquiry initiated by issuing the impugned memorandum of articles of charges have been concluded and ultimately the disciplinary authority has imposed a penalty of reduction to two lower stages in the present Pay Band and Grade Pay for a period of three months without cumulative effect by an order dated 30.08.2013. Be that as it may, for the foregoing reasons, we find that the prayer of the applicant in the Original Application is devoid of merits and, as such, the Original Application is required to be dismissed. Accordingly, the Original Application is dismissed. There shall be no order as to costs.
(M. NAGARAJAN) (ANIL KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER kumawat