Allahabad High Court
The Union Of India, East Central Railway ... vs Central Administrative Tribunal And ... on 25 April, 2017
Bench: Sudhir Agarwal, Mukhtar Ahmad
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 "A.F.R." Case :- WRIT - A No. - 61912 of 2007 Petitioner :- The Union Of India, East Central Railway And Others Respondent :- Central Administrative Tribunal And Another Counsel for Petitioner :- Anil Kumar Ray,Kaushlesh Pratap Singh Counsel for Respondent :- S.C.,Kamleshwar Singh,N.P. Singh, V.R. Dwivedi Hon'ble Sudhir Agarwal,J.
Hon'ble Mukhtar Ahmad,J.
1. Heard Sri Kaushlesh Pratap Singh, Advocate, assisted by Sri Anil Kumar Ray, learned counsel for petitioners and Sri Kamleshwar Singh, learned counsel for the applicant-respondent no.2 and perused the record.
2. This writ petition has been filed by Union of India, through General Manager, East Central Railway, Hajipur (Bihar) and three others authorities, being aggrieved by judgment and order dated 23.08.2007, passed by Central Administrative Tribunal, Allahabad Bench, in Original Application (hereinafter referred to as "OA") No. 1190 of 2005. Tribunal has set-aside punishment order of removal dated 07.03.2005, appellate order dated 28.03.2005 and 23.06.2005, though has permitted petitioners to initiate fresh proceedings in accordance with Rules. With regard to back wages Tribunal has directed petitioners to pass appropriate order in the light of final out come of fresh proceedings.
3. Facts in brief giving rise to the present writ petition are as under:-
4. Prem Shanker Singh, applicant-respondent no.2, applied for compassionate appointment after death of his father who was a Railway employee under dying in harness scheme. He claim to have passed High School and submitted a certificate dated 03.09.1977 issued by Principal N. P. Inter College, Mughalsarai (District Varanasi), certifying that applicant-respondent no.2. passed High School examination from the aforesaid institution in 3rd Division in 1997. He also appended a mark-sheet dated 04.07.1977 and on the basis of the said qualification claimed appointment on a Group-C post. He was appointed as 'Assistant Station Master' (herein after referred to as "A.S.M.") on 10.02.1980, in the pay scale of 330-560/- and he joined at Mugalsarai Division, of Eastern Railway on 18.02.1980.
5. A complaint was received that education certificate submitted by applicant-respondent no.2 was fake. After inquiry said complaint was found prima-facie correct. During inquiry it was also revealed that he was arrested at Police Station Alinagar, District Chandauli on 23.08.1992 and remained in Jail up to 29.08.1992 when he was released on bail. He was arrested in a criminal case under Sections 147, 148, 149, 323, 504, 307, IPC, but this facts was never disclosed by applicant-respondent no.2 to the authorities concerned.
6. A charge sheet dated 14.11.2003 was issued to applicant-respondent no.2 containing three charges. Article of charges as also statement of imputation of misconduct or misbehaviour, read as under:-
"Article-I. Sri Prem Shanker Singh, DR.DY,SM/DHAa KCA has managed to get fake high schoo certificate bearing the date 3.9.1977 from N.P. Inter College, Mughalsarai Year of examination 1977 and mark-sheet dated 4.7.77 and used the same in getting the appointment/service in Group 'C' category of Railway on compassionate ground during the year 1980 and got joined Mughalsarai as an Asstt. Station Master in grade Rs.330-560/- w.e.f. 18.02.80 over Mughalsarai Division of Eastern Railway (Now E.C. Rly.) as detected during an investigation on a complaint case.
Article-II.
Sri Prem Shanker Singh, LRDy.SM/DHA at KCA, while working as SM/DY.SM at Mughalsarai during August 92, was arrested on 23.8.92by Thana-linagar & sent to jail & he came out from jail on 29.8.92 on bail, but he submitted RC for the periods from 02.08.92 to 20.08.92 and 21.08.92 to 08.09.92 as detected during complaint cases investigation.
Article-III.
Sri Prem Shanker Singh, has apparently tried to mislead the railway administration for his personal gain during the aforesaid period.
By the above action the part of Sri Prem Shanker Singh teatamouants to serious misconduct violation of Rule 3.1(i),(ii) & (iii) of RSCR-1966.
Statement of Imputation or misconduct or Misbhaviour "During an investigation on a complaint case it is detected that Sri P.S.Singh LR. DY. SM/DHA at KCA has had submitted fake a high school certificate dt. 03/9/97 duly issued by Principal, N.P. Inter College, Mughalsarai (Varanasi) showing therein that he has passed High School Examination held in the N.P. Inter College, Mughalsarai in IIIrd Division in the year-1997 and also submitted a fake marks sheet dt. 4/7/77 therein getting a service in Group 'C' category of Railways on compassionate ground & got an appointment as A.S.M. in MGS Divn. during the Year 1980. But the Principal N.P. Inter College Mughalsarai vide his letter dt. 8/8/03 has reported that Sri Prem Shanker Singh S/o Sri Bishwanath Singh, R/o Vill-Kuchman; P.O. Keshavour; Dist.-Chandauli;(U.P.) was not a registered student of his college for High School Examination of year 1977 and the Rol No. 375069 as mentioned in the marks-sheet dt. 04/7/77 is also a fake one.
Thana-Alinagar, Dist. Chandauli(UP) vide hes letter/report dt. 31/7/03 informed the joint team comprising of CEI/DNR and CVI/ECR/HJP that Sri Prem Shanker Singh S/o Sri Bishwanath Singh, Vill.-Kuchman; Thana-Alinagar, Dist. Chandauli was arrest on 23.8.92 & sent to jail, from where he came out on bail on 29.8.92 under case No.104/92 U/s 147, 148, 149, 323, 504, 307, IPC. This was issued by Thana-Alinaar in connection with a letter No. TM/Complaint/ DNR/03 dt. 31/7/03. But Sri Prem Shanker Singh had submitted RMC No. 9481969 for the periods from 02/8/92 to 20/8/92 & 21/8/92 to 03/9/92as per SM/ECR/MGS's report dt. 31/7/03.
As such, it is a clear case of fraud & concealment of facts committed by Sri Prem Shanker Singh against the railway administration showing his ulterior motives fro his personal gain.
Thus by the about act Sri P.S. Singh, LR/DY.SM/ DHA at KCA has exposed lack of devotion to duty, absolute integrity and acted in a Manner unbecoming of a Rly. servant in contravention to Rule 3.1 (i), (ii) & (iii) of Railway Service (Conduct) Rules, 1966."
7. A departmental inquiry was conducted and inquiry officer submitted report dated 12.01.2005 holding charges proved. The order of punishment was passed on 07.03.2005 by Senior Divisional Operating Manager, Danapur, imposing punishment of removal upon applicant-respondent no.2. His appeal was rejected by Additional Divisional Railway Manager, Danapur by order dated 23.06.2005. Both these orders were challenged in Original Application before Tribunal, which has been allowed by Tribunal vide judgment, assailed in this writ petition by Employers.
8. Tribunal has decided the matter on the ground that order of punishment has been passed by an authority sub-ordinate in rank to the authority actually appointed, applicant-respondent no.2, therefore, punishment order is bad in law, being in violation of Article 311(1) of the Constitution of India.
9. In order to find out who actually appointed applicant-respondent no.2, Tribunal itself has admitted that no letter of appointment was placed on record, hence could not ascertain the same. While matter was pending before this Court, parties were directed to place on record letter of appointment of applicant-respondent no.2, pursuant whereto a supplementary affidavit sworn on 16.05.20012 has been filed, appending letter of appointment of applicant-respondent no.2. This is a letter dated 12.07.1980 issued by Senior Personal Officer, Eastern Railway, Calcatta.
10. Applicant-respondent no.2 has filed a counter affidavit, stating that letter dated 12.07.1980 filed alongwith supplementary affidavit is not an appointment letter, appointing applicant respondent no.2 on the post of A.S.M., but it is a letter appointing him as trainee and, therefore, this is not reliable.
11. A perusal of aforesaid letter makes it clear that it is in regard to temporary appointment as a Trainee Assistant Station Master Grade Rs.330-560/-. During the period of training, incumbent was to be paid stipend and period of training was two months i.e. 18.08.1980 to 01.10.1980. Para-2 thereof says that after completion of training, incumbent is likely to be absorbed in regular cadre of Railway, if there is any vacancy. Para-5 says, if incumbent is selected for appointment against working post on completion of training, he will have to serve Railway Administration for a minimum period of five years, if required by Administration. The incumbent was required to execute an indemnity bond and a security deposit of Rs.500/-. Para-13(b) contemplate that incumbent shall be posted in any of the Divisions of Railway where vacancies exist, although selected for a particular Division. It is also provided in para-17(b) that Trainee is not an employee of Administration, and as such will not be entitled to any compensation or damages from Administration, under Workmen Compensation Act, or otherwise for any injury etc. suffered by him. Para-17(c) denies any service benefits during training and reads as under:-
"Such trainee/trainees will not be eligible to any service benefits during the period of his/their repeat course of training without stipend. The period of his/their initial training and the repeat course training will therefore, not count as service for any purposes."
12. Applicant-respondent no.2 admitted aforesaid offer and undergone training also. Applicant respondent no.2 submitted that this is not an appointment letter, but in another supplementary affidavit filed by applicant-respondent no.2 he has said that this is the appointment letter and infact this is the only appointment letter and no other appointment letter was issued by Railway. Para-7 of supplementary affidavit sworn by Sri Prem Shanker Singh applicant-respondent no.2, on 05.11.2013, reads as under:-
"That on 10.10.2013, Sri V.R.Dwivedi, learned counsel for the respondent no.2 appear before this Hon'ble Court and he wrongly confronted that S.A.-1 is not a appointment letter but in fact that this the appointment letter and except this appointment letter no any appointment letter has been issued by the Railway Authority in favour of the respondent no.2."
13. This is an admission on the part of applicant-respondent no.2 that only appointment letter issued to him is the one which is by Senior Personal Officer, Railway issued on 12.07.1980.
14. Tribunal however has proceeded on the assertion of applicant-respondent no.2 that appointing authority of Assistant Station Master (Group-C), was General Manager, while punishment order was passed by Senior Divisional Operative Manager, Danapur and therefore, it was not a by competent authority. Record on the contrary shows that appointment was made by Senior Personnel Officer and nothing has been placed before us to show that Senior Divisional Operating Manager, Danapur, is an officer sub-ordinate in rank to the Senior Personnel Officer. Therefore, it cannot be said that punishment order has been passed against applicant-respondent no.2, by an authority not competent to do so or that disciplinary proceeding has been initiated by an incompetent authority.
15. In the result, the judgment of Tribunal, impugned in this writ petition cannot be sustained.
16. The writ petition is allowed. The judgment and order dated 23.08.2007, passed by Central Administrative Tribunal, Allahabad, in O. A. No. 1190 of 2005 is hereby set-aside. There shall be no order as to costs.
Order Date :- 25.4.2017 VKG