Central Administrative Tribunal - Jabalpur
Sandeep Shrivastava vs Union Of India Through The on 26 August, 2013
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL JABALPUR BENCH : JABALPUR On this Tuesday, the 27th day of August Two Thousand and Thirteen OA. 1140 / 2011 Honble Shri Justice Dhirendra Mishra, Judicial Member Honble Shri G.P. Singhal, Administrative Member Sandeep Shrivastava s/o late Shri R.S. Lal Shrivastava Aged about 40 years, Head TTE Western Central Railway, Jabalpur Division Presently posted in the o/o Station Superintendent Rewa (MP), R/o Dr. Subba Rao lane, Shastri colony Venkat Ward, Katni, MP 483501 Applicant (By applicant) Vs. Union of India through the 1.The Secretary, M/o Railway Rail Bhawan, Rafi Marg New Delhi 110001 (Deleted vide order dt.12.3.13) 2.The General Manager West Central Railway Jabalpur (MP) 482002 3.The General Manager North Central Railway Subedar Gunj, Allahabad UP 211033 4.Mr.M.S. Bhatia, the then Sr. Divisional Commercial Manager Jabalpur Division, presently Sr. DCM Bhopal Division, WCR, Habibganj Bhopal (MP) 462001 5.Ms.Sudeshna Sen, the then Dy. Chief Vigilance Officer-II, Vigilance Branch, GMs office, WCR, (Through the Dy.CVO-II, Vigilance Branch GMs office, WCR, Indira Market, Jabalpur (MP) 462001) 6.Dy.Chief Vig. Officer (Traffic) North Central Railway, B Block Room No.132 Vigilance Branch, Subedar Gunj, Allahabad (UP) 211033 7.Dy.Chief Vigilance Officer-II Vigilance Branch, WCR, GMs office Indira Market, Jabalpur (MP) 482001 8.ADRM/Jabalpur & Revisionary Authority Jabalpur Division, Jabalpur (MP) 482001 9.Sr. Divisional Commercial Manager WCR, Jabalpur Division, Jabalpur (MP) 482001 10.Divisional Commercial Manager Bhopal Division, WCR, Habibganj Bhopal (MP) 462001 11.Divisional Commercial Manager Jabalpur Division, DRM Office Jabalpur (MP) 482001 Respondents (By Advocate : Shri Vijay Tripathi) (Date or reserving the order: 30.07.2013) O R D E R
By G.P. Singhal, AM -
The applicant has filed this OA for the following reliefs:
i) to set aside the impugned order Anne-A-13(dated 20/12/2010) and Annex-A-18 (10/06/2011) & the Revision order A-20 (dated 11/06/2011).
ii) to grant all consequential benefits to the Applicant along with interest for the losses faced by the Applicant in pursuance to impugned orders, which have lost by the Applicant during pendency of such inquiry and be pleased to imposing heavy cost upon the Respondent authorities who are personally responsible for such damage to the Applicant.
iii) to issue any other writ or directions looking to the facts and circumstances of the case and be pleased to award cost of litigation in favour of the Applicant.
2 The applicant submitted that he was issued a charge sheet under Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968 (in short 1968 Rules), which contains some allegations in regard to his conduct during vigilance check on one employee Shri G.R. Jaiswal, TTE/KTE, who was on duty along with the applicant, in Train No.5159-Sarnath Express on 9/10.05.2008. After conduct of inquiry, the Inquiry Officer, in his report dated 28.10.2009 {Annexure A-8(iv)}, found all the 3 charges imputed against him, as not proved. After that the Disciplinary Authority wrote vide letter dated 11.11.2009 {Annexure A-9-(i)} to Deputy Chief Vigilance Officer II (in short, Dy.CVO), WCR, Jabalpur, that Inquiry Officer has found the charges as not proved against the applicant and, so advise regarding further action to be taken in the matter. In response to this letter, General Manager (Vigilance), Allahabad, sent vigilance comments on each of the Articles of charges imputed against applicant, and found not proved by the Inquiry Officer, to Dy.CVO/T, WCR, Jabalpur vide his letter dated 11.1.2010 {Annexure A-10(i)}. These comments were forwarded by the Dy.CVO to the Disciplinary authority vide letter dated 19.1.2010 {Annexure A-10(ii)} with the recommendation to impose penalty recommended by them. Immediately after that, vide letter dated 22.1.2010, the Disciplinary authority sent Inquiry report dated 29.10.2009 along with Disagreement memo of Disciplinary authority to the applicant with the direction to submit representation within a period of 15 days from the date of its receipt.
3 The contention of the applicant is that the disagreement memo is verbatim repetition of the Vigilance comments provided by communication at Annexure A-10(i), and Disciplinary authority had not applied his mind in regard to the disagreement memo. Still, the applicant submitted representation against the disagreement memo. However, the Disciplinary authority, vide its order dated 20.12.2010, imposed penalty of reduction to lower grade from HTTE (Pay band Rs.9300-34800, GP Rs.4200) to TTE (Pay band Rs.5200-20200, GP Rs.2400) with immediate effect, for a period of 5 years with cumulative effect and the basic pay fixed at Rs.10,220. Thereafter, the appeal filed by the applicant was rejected by the Appellate authority vide the order dated 10.6.11 (Annexure A-18), thus maintaining the punishment order of Disciplinary authority. The revision petition filed by the applicant too was rejected by the revisioning authority vide the order dated 11.11.11 (Annexure A-20). Hence this OA.
4 The respondents, in their reply, submitted that the applicant has been penalized after following the due process in conduct of disciplinary proceedings. In regard to the contention of applicant, pertaining to involvement of Vigilance Organisation in Disciplinary proceedings against him, the respondents submitted that the Railway Board, vide their letter dated 16.5.2001 (Annexure R-9), have provided that, the Disciplinary authority may give regard to the advice of Vigilance organization and strive to remove and reduce areas of disagreement, if any, with the Vigilance by mutual consultation and discussion. Thus, there is nothing wrong in obtaining vigilance comments on the inquiry report by the Disciplinary authority. Therefore, the OA, being without any merit, deserves to be dismissed.
5 The applicant submitted a detailed rejoinder to the reply of respondents, mainly reiterating the issues raised by him in the OA.
6 We have heard the applicant and the learned counsel for the respondents. We have also gone through the written submission filed by the applicant.
7 It is evident from the charge memorandum that no vigilance check was conducted on the applicant and he has been charged mainly for not co-operating with the Vigilance team, which was conducting vigilance check on another TTE, Shri G.R. Jaiswal, who was working on the same train. The three Articles of charges imputed in the charge memorandum against the applicant are reproduced as under:
Article No.1 Shri Sandeep Shrivastava, Hd. TTE/KTE failed to comply with the instructions of WCR Vigilance letter no.HQ/WCR/112/Vigilance Policy dated 16.12.2005 and failed to get the sum of Rs.1420/- found excess with Shri G.R. Jaiswal, TTE/KTE in the train as well as at Katni station deposited in railway revenue.
Article No.2 Shri Sandeep Shrivastava, Hd. TTE/ KTE did not co-operate with the vigilance team and in the entire check and failed to complete and make a proper joint note in regard to the irregularities detected in the private cash and other irregularities detected in the train in the manned coach of Shri G.R. Jaiswal, TTE/KTE as well as Katni station also confirms his act of non cooperation.
Article No.3 Shri Sandeep Shrivastava, Hd. TTE/KTE did not obey the orders of Sr. DCM/JBP, senior supervisors and also for non observing the instructions of his officers for completing the check proceedings at Satna stations and handing over the charge to Shri Sanjay Kumar, TC/STA as ordered by Sr. DCM/JBP and thus violating the extant railway rules. 8 The Inquiry Officer did not find any of these charges proved against the applicant. In this regard, the Disciplinary authority wrote to Dy. CVO-II, WCR vide his letter dated 11.11.2009 {Annexure A-9(i)}, seeking advice for further action in the matter. During arguments, the learned counsel for the respondents defended this action on the ground of this being a vigilance case and therefore advice of vigilance organization was required, in compliance of Railway Board instructions dated 16.05.2001 (Annexure R-9). However, we find that, in sub para iii of this letter, it is provided that if, in case, the vigilance has recommended major penalty and the Disciplinary authority proposes to exonerate or impose minor penalty, the Disciplinary authority should first record his provisional order and then consult Vigilance Organisation once. As against this, by the letter dated 11.11.2009, the Disciplinary authority asked for advice of Dy.CVO, without making any preliminary order of such nature.
9 The Disciplinary authority after obtaining vigilance comments, issued disagreement memo along with the inquiry report to the applicant vide letter dated 22.1.2010 (Annexure A-11). On comparing the disagreement memo with the vigilance comments dated 11.1.2010 {Annexure A-10(i)} we find that the disagreement memo is verbatim reproduction of the vigilance comments submitted by the office of GM, Vigilance, Allahabad. In this memo, the Disciplinary authority has not given any reasons for disagreeing with the findings of Inquiry Officer, which was expected from him in any such note.
10 In the disagreement memo, regarding Article-1, it is mentioned that the applicant failed to get the sum of Rs.1420 found excess with Shri G.R. Jaiswal, TTE/KTE, deposited in Railway revenue. However, no explanation was provided by the respondents as to why this money, which was found excess with another employee Shri G.R. Jaiswal, TTE/KTE in the train, was to be deposited by the applicant, instead of confiscation by the Vigilance team. On specific question by us in this regard, as to who had the custody of this money after vigilance check, the learned counsel for the respondents could not give any satisfactory explanation.
11 In regard to Article No.2, the charge has been written as proved in the disagreement memo, on the ground of replies by Shri Rajiv Verma, Ex.Sr.VI/P/NCR during enquiry, for the Question No.8 and 14. According to the disagreement memo, these replies confirm the act of non co-operation in the entire check proceedings, by the applicant. The respondents have filed, examination in chief and cross-examination of Shri Rajiv Verma (PW/11), as Annexure R-2, with the reply. The question and answer in regard to Question No.8 and 14 in deposition of Shri Rajiv Verma are reproduced as under:
Q.8- Does it not means, that Mr. SANJAY KUMAR TC/STA did not meet to you as the train stopped at Satna only for 5 minutes from 23.20 to 23.25 hours only, and other vigilance inspectors because he himself had come so late only at time when the train had started?
A.8- No TTE/TC met to me, but I cannot say about other Inspectors.
Q.14- Why didnt you inform the conductor of 5159 up MR. SANDEEP SRIVASTAVA that you were conducting a check in the sleeper coaches? Why did not you call the Conductor of the train Mr. Sandeep Srivastava for the joint check? (As it is proved with Article-1 of the Annexure-II of charge sheet that Shri G.R. Jaiswal was asked to call the conductor for further proceedings at 23.05 hrs)?
A.14- The vigilance check was conducted in the sleeper coach and the Conductor was working in AC class therefore we did not call the conductor of the train Mr.Sandeep Srivastava. But to obtain his witness we reached in AC coaches. The learned counsel for the respondent could not give any satisfactory reply to question by us as to what is there in these questions and answers, which may substantiate the charge on applicant in regard to alleged non co-operation in the entire check proceedings.
12 In regard to Article No.3, it is mentioned in the disagreement memo that the applicant did not handover charge to Shri Sanjay Kumar TC/STA, in compliance of the orders of Sr.DCM, Jabalpur. In this regard, the learned counsel for the respondents, referred to the deposition of Shri Sanjay Kumar, Ticket Collector, Satna, PW-5 and Shri A.K. Jha, Commercial Controller, Jabalpur, PW-6. The examination in chief and cross-examination of these two witnesses has been filed as Annexure R-5 and R-6 with the reply. The relevant question No.1 and answer to it by Shri Sanjay Kumar, TC, Satna, is reproduced as under :
Q.1- Shri Sanjay Kumar, you have been cited as State witness in this case. Please state that what happened on 09.05.2008 regarding the vigilance check conducted in the train No.5159 UP Express? What was role and observation in this check?
A.1- On that day I was working in 16-24 hours shift. About 23.00 hours I received a telephonic message from CCOR Jabalpur that in the train No.5159 Vigilance Inspectors raided the Conductor and the TTE. The Vigilance Inspectors wanted to alight the COR & TTE at Satna station for taking their statement. So, you have to go to Katni working as COR (Conductor) in train No.5159 from Satna.
When the Train came I went to the AC coaches of the train where I found Mr. Sandeep Shrivastava, who was working as a Conductor from Allahabad.
I conveyed the message of Commercial Controller, Jabalpur to Shri Sandeep Shrivastava in which I said that it was the order of Sr.DCM, Jabalpur, you had to leave the train at Satna station, and from here I have been instructed to work as Conductor from Satna to Katni. Hearing my statement, Shri Sandeep Shrivastava told that Vigilance Inspectors are checking the train, they did not find any irregularity and their checking is continue so you need not to work as a Conductor. Since Shri Sandeep Shrivastava was alone there and also he is senior to me, therefore I returned to my office. From my office, I conveyed the happenings, which happened at Satna to the Commercial Controller, Jabalpur by telephone. It is enough to say. 13 Shri A.K. Jha, Commercial Controller, Jabalpur, has mentioned in reply to Question No.8 that, Q.8- Do you confirm it that then Sr.DCM, Jabalpur Shri M.S. Bhatiya had instructed you to give the message to Head TC Satna that TTE and Conductor both ought to be get down at Satna since the Conductor was not cooperating with the Vigilance Team?
A.8- The then Sr.DCM, Jabalpur had instructed me to convey the message to Satna that the checking staff working in the train 5159 (Sarnath Express) is not cooperating with the NCR Vigilance team and the Vigilance officials wish to detrain the checking staff at Satna, so arrange another staff to work up to Katni. Thus, the learned counsel for the applicant argued that since the applicant did not comply with the directions of Senior DCM, Jabalpur, despite having been duly conveyed to him, he is guilty of charge at Article 3 in Charge memorandum.
14 However, we find that Question No.17 and its answer by Shri Jha, in his deposition explained this behavior. These are reproduced as under:
Q.17- Can a Conductor leave his train at any intermediate station without any proper memo or authority issued by the Railway administration for abandoning his duty? Should the Conductor Shri Sandeep Shrivastava leave his train at Satna or Maihar without obtaining any written memo by any railway authority?
A.17- In this particular case, the TC should have given some memo to Shri Sandeep Shrivastava that he was deputed to work in the train, and Shri Sandeep should have leave the train at Satna. No explanation has however been given by the respondents in regard to, whether any memo to the applicant was given by Shri Sanjay Kumar, while asking him to leave the train at Satna. Thus, we find that the entire disagreement memo dated 22.1.2010 (Annexure A-11) is totally vague and arbitrary, as the reasons mentioned in it are not supported by the facts and circumstances of the case.
15. The Disciplinary authority, before passing the punishment order dated 20.12.2012 (Annexure A-13) sought confirmation of punishment from SDGM, WCR, Jabalpur vide letter dated 29.9.2010 (Annexure A-12(i). Para 3 and 4 of this letter are reproduced as under:
After going through the D&AR case file, enquiry report, disagreement note dated 22.01.10 and the representation dated 05.02.10 of CE it is found that as advised in under reference letter the stiff punishment cannot be imposed upon the CE in the present case. Hence looking to charges, enquiry report, disagreement note and representation of the CE, the punishment of Major Penalty i.e. Reduction to lower grade from Head TTE (i.e. Pay Band Rs.93000-34800/- GP Rs.42000) to TTE (i.e. Pay Band Rs.5200-20200/- GP Rs.2400) with immediate effect for a period of 05 (five) years with Cumulative effect and the basic pay of the CE is fixed at Rs.10220/- was imposed upon Shri Sandeep Shrivastava, Hd.TTE/JBP. However, the representation dated 05.02.10 is enclosed herewith.
It is therefore requested to confirm the above NIP. It is not clear from the above communication that what is being sought by the Disciplinary authority? On the one hand, it is mentioned that the punishment was imposed upon Shri Sandeep Srivastava. However, if that is so, then confirmation in regard to what is being asked for from Vigilance office? Moreover, he is enclosing the copy of representation filed by the applicant with the letter. If the representation is still to be considered by the Vigilance Organisation, then how did the disciplinary authority impose the punishment on applicant?
16 The Disciplinary authority, after receiving confirmation from Vigilance regarding quantum of punishment, passed the punishment order dated 20.12.2010. The Appellate authority and Revisonal authority thereafter rejected the appeals and revision filed by the applicant without going into the details of representation/ appeal memo / Revision application filed by the applicant.
17 Indisputably, the charges imputed against the applicant cannot be considered to be related to or in consequence of vigilance check. By any stretch of imagination, the alleged non co-operation in the conduct of Vigilance check on another employee cannot make it a vigilance case. However, the respondents have made it a vigilance case and treated it like that, which resulted in the applicant getting much severe punishment than what has been finally awarded to Shri GR Jaiswal, the employee against whom the vigilance check was actually conducted. The inquiry officer has found all the charges imputed against the applicant as not proved. Thereafter, the disagreement memo was issued by the Disciplinary authority, which is totally vague and arbitrary and not based on the facts and circumstances of the case. Thus, the punishment imposed on the applicant in this case is shocking to our conscience. Therefore, the impugned orders dated 20-12-2010 (Annexure A-13) and 10-06-2011 (Annexure A-18) and the Revision order dated 11-11-2011 (Annexure A-20) are quashed and set aside, and the respondents are directed to grant all the consequential benefits to the applicant, within a period of 3 months from the date of communication of this order.
18 Thus, the OA is allowed. No order as to costs.
(G.P. Singhal) (Dhirendra Mishra) Administrative Member Judicial Member sk
Shri Sandeep Shrivastava, Hd. TTE/KTE while working as such and manning AC coaches in train No.5159 Sarnath Express on 09/10.05.2008 between ALD-KTE was subjected to vigilance check in section between Dabhoura to Satna station committed misconduct /misbehavior in as much as that he was detected to have committed ??
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