Central Administrative Tribunal - Lucknow
Saidur Rehman Aged About 52 Years Son Of ... vs Union Of India Through The General ... on 1 May, 2013
Central Administrative Tribunal, Lucknow Bench, Lucknow
Original Application No. 339/2012
This the 1st day of May, 2013
Honble Sri Justice Alok Kumar Singh, Member (J)
Honble Sri D.C. Lakha, Member (A)
Saidur Rehman aged about 52 years son of Sri Saghir Hussain resident of LD-14 A, Type I, Running Shed Colony, Alambagh, Lucknow
Applicant
By Advocate: Sri Praveen Kumar
Versus
1. Union of India through the General Manager, Northern Railway, Baroda House, New Delhi.
2. The Divisional Mechanical Engineer (O&F), Northern Railway, Lucknow.
3. The Assistant Divisional Mechanical Engineer, Northern Railway, Varanasi.
Opposite Parties
By advocate: D.B. Singh
(Reserved on 16.4.2013)
ORDER
Honble Mr. Justice Alok Kumar Singh, J.M. The following reliefs have been sought in this O.A.:-
i) To quash the impugned order dated 14.8.2012 and charge sheet dated 17.6.2010(Annexure No.1 and 2) with all consequential benefits.
ii) To allow the applicant to continue in service without any interruption and pay him salary.
2. Shorn of details the case of the applicant is that due to non-availability of post of Box Porter he was rendered surplus and therefore, vide order dated 5.8.2008, he was transferred and posted under Sr. Section Engineer, Varanasi (Annexure A-3). Accordingly, he joined at Varanasi but since there is a specific provision for permitting the surplus employee to retain the quarter at previous place of posting (at Lucknow) for a period of 3 years, vide circular dated 8.9.2009, the applicant, as specifically averred in para 4,5 of O.A.submitted a representation seeking permission to retain the quarter in question for a period of 3 years. But for the first time, this representation was rejected on 3.10.2011 (No specific reply in C.A.). But prior to that, without deciding the aforesaid representation the respondent No.2 issued a major penalty charge sheet in respect of alleged unauthorized occupation of the above quarter. In the charge sheet, only two letters have been mentioned as relied upon documents. But no list of oral witnesses has been cited as mandated in the judgment of Honble Supreme Court in the matter of Roop Singh Negi (No specific reply in CA). Moreover, to the best of the knowledge of the applicant, even unauthorized occupation of the quarter has not been enlisted/ recognized as yet as misconduct. Only subletting has been considered to be a misconduct. For this reason, the applicant had demanded the relevant rules and regulation vide application dated 22.7.2010. The respondent No. 2 informed that those documents relate to personnel Department. In respect of unauthorized occupancy , if any, the only course open to the department was to resort to the proceedings under the Public Property (PP) Act. The applicant again submitted an application dated 22.7.2010 seeking above documents. In response thereto, the disciplinary authority issued a letter dated 1.12.2010 threatening the applicant to submit reply within 5 days. He again submitted a representation dated December, 2011 but the documents were never supplied and his request was rejected. Ultimately he submitted his reply on 1.10.2011 denying the charge and pleaded that firstly when he submitted his application for retention of quarter for a period of 3 years, no reply was given to him and secondly, for the period of over stay, the respondents have already deducted the damage rent from the pay/ salary of the applicant and have also not paid HRA to him (not denied in C.A.). Thirdly, he also raised a point that due to unauthorized occupation of the quarter, such a charge sheet cannot be issued as has been clarified by the Railway Board while furnishing information under RTI (no specific reply in C.A.). But the respondents ignored the request of the applicant and appointed an Enquiry Officer. The Enquiry Officer submitted his ex-parte report, though the applicant had participated in the enquiry initially on three dates. Thereafter, the applicant moved a representation dated 6.2.2012 making allegation of bias and questioning the integrity of the enquiry officer and requesting for staying the enquiry till disposal of the representation by revisional authority as provided in the Railway Board letter dated 19.6.1974. But without intimating the fate of his above representation dated 6.2.2012 and without giving even a days time or fixing any further date in the enquiry, the inquiry officer submitted his ex-party report (no specific reply in C.A.). The applicant was shocked to receive the letter dated 8.4.2012 by which the applicant was issued show cause in respect of the enquiry report within a period of 15 days. The applicant submitted a detailed reply but without paying any heed to the relevant points raised by the applicant, the disciplinary authority passed the order of removal from service in a most arbitrary manner. The punishment of removal is also shockingly disproportionate specifically when the respondents have already deducted the damage rent for the entire period and have not paid any HRA. The quarter in question was also vacated by the applicant on 24.4.2012.
3. The respondents have seriously contested the O.A. by filing a detailed Counter Affidavit. According to them, the applicant was posted as substitute Cleaner at Diesel Loco Shed , Alambagh, Lucknow and was allotted Quarter No. LD 14/A running shed Colony, Alambagh, Lucknow. Thereafter, applicant was appointed on the post of Box Porter vide letter dated 20.8.96. But he never joined. It has been denied that the applicant was declared surplus but his transfer to Varanasi has been admitted. No denial has been made of para 4.5 of O.A. regarding representation by the applicant for retaining of quarter for 3 years and its rejection for the first time on 3.10.2011. It has also not been specifically denied that without deciding his above representation for retention of quarter, a charge sheet was issued as averred in para 4.6 of the O.A. Merely it has been said that he was unauthorized occupant of the Railway Quarter and therefore, he was asked to vacate the accommodation (but no such documents filed). But he did not vacate. After service of the charge sheet, the applicant had demanded certain documents which were supplied vide letter dated 9.10.2010 (not filed). Though aforesaid para 4.5 of O.A. was not denied as already mentioned before yet in reply to para 4.10 and 4.11 of the O.A., it has been merely said that he never represented for retention of the quarter in question(This plea is against record because rejection order dated 3.10.2011 (Annxure-1) shows that representation was given and it was rejected. Lastly according to respondents, the order of removal was rightly passed by the Disciplinary Authority against which the applicant did not file any statutory appeal. Instead he rushed to this Tribunal to file this O.A. in violation of Section 20 of the AT Act. Therefore, it is liable to be dismissed.
4. From the side of the applicant, a Rejoinder Reply has been filed denying the contentions made by the respondents in their counter reply and reiterating his own averments.
5. We have heard the learned counsel for the parties and perused the entire material on record.
6. The applicant has placed reliance on the following case laws:-
a) Alternative Remedy is not a bar.
i) 2000 (18) LCD 31 R.K. Singh Vs. Union of India and others . In this case the Honble High Court observed as under:-
3. Before dealing with the subject we have to examine the jurisdiction of the Central Administrative Tribunal as to whether in appropriate cases, it can entertain the original applications without relegating a person to avail of the alternative remedy before knocking the door of the Tribunal in Abhinesh Chandra Dutta v. Union of India, (1987) 2 ATC 889 (CAT) (Cult), it has been held by the Tribunal itself non-exhaustion of other remedies does not deprive the Central Administrative Tribunal to give directions to the department to make payment of an amount if the Central Administrative Tribunal is satisfied that the same is due. In Charan Singh v. Union of India, (1986) 1 ATC 307 (CAT) (ND), it has been held by the Central Administrative Tribunal that where service rules do not empower the authorities to stay the impugned order despite a very just case and a very erroneous order, an application can be entertained by the Central Administrative Tribunal without insisting on exhaustion of other remedies. Similar view was taken by the Central Administrative Tribunal in A. N, Ramakrishnan Nair v. Divisional Engineer, Telegraphs, (1987) 3 ATC 974 (CAT) (Mad) ; R.P. Suri v. Union of India, (1986) 1 ATC 323 (CAT) (ND) as well as Umesh Rai v. Union of India, (1986) 1 ATC 774 (CAT) (Pat), in those cases, it has been observed by the Tribunal that where an order is impugned for want of jurisdiction and the application is already admitted by the Central Administrative Tribunal, an objection as to non-exhaustion of remedies cannot be taken by the respondents. In Jnananda Sarma Pathak v. Union of India. (1987) 2 ATC 657 (CAT) (Cau), it was indicated that the expression "expiry of six months" contemplated by Section 20(2)(b) for disposal of the appeal, is not a condition precedent for admitting an application against an order of suspension passed in contemplation of disciplinary proceedings.
ii) (2010) 1 Supreme Court Cases (L&S) 12 Satwati Deswal Vs. State of Haryana and others:- In this case no show cause notice was issued and the order of termination was also not passed after initiating any departmental proceedings. Writ Petition was therefore, filed before the Punjab and Haryana High Court which had dismissed it on the ground of maintainability and relegated the appellant to take statutory remedy of appeal. The matter went to Honble Apex Court which opined as under:-
5. In our view, the High Court had fallen in grave error in rejecting the writ petition on the aforesaid ground. First, such an order of termination was passed without issuing any show cause notice to the appellant and without initiating any disciplinary proceedings by the authorities and without affording any opportunity of hearing. It is well settled that a writ petition can be held to be maintainable even if an alternative remedy available to an aggrieved party where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the act were in question.
b) Unauthorized retention of quarter is not a misconduct:-
i) 1987 (2) ATC 309 Dukhan Ram Vs. S.K. Vij and others - In this case, the charge against the official was in respect of retention of Railway Quarter at Gaya as well as Barkakana where he was transferred from Gaya. It was admitted that penal rent was realized from the applicant at the rate of three times the normal rent for the quarter at Gaya and at two times the normal rent of quarter at Barkakana. The only point for adjudication in this case before the Tribunal was as to whether unauthorized retention of quarter allotted to a Railway Servant comes within the scope and meaning of misconduct meriting a major penalty such as compulsory retirement from service specially when there were extenuating circumstances such as recovery of penal rent, absence of notice or formal order cancelling the allotment and non-utilization of powers vested in the authorities to evict an unauthorized occupant by instituting appropriate proceedings for the purpose.
The Honble CAT, Patna Bench after examining the definition of misconduct as contained in the Railway Services (Conduct) Rules,1966 and also taking in view the facts and circumstances of the case reached the conclusion that initiation of disciplinary proceedings against the applicant was in-appropriate and misconceived and the punishment of compulsory retirement imposed upon him was all the more underserved and out of proportion to the alleged imputation. Therefore, O.A. was allowed and the order of compulsory retirement was quashed. The applicant was directed to be reinstated with all consequential benefits. In this regard , the following paragraphs No. 4 to 7 are extracted herein-below:-
4. What constitutes misconduct does not seem to have been defined in any rule. In view of this, it may be logical to constitute misconduct as something which is contrary to proper conduct. As in the case of other categories of State employees, the Railways have also framed detailed rules for this purpose. It is called, the Railway Service (Conduct) Rules, 1966. We have scanned through its various provisions to ascertain if there is any specific rule under which unauthorized retention of railway quarter could amount to misconduct.
5. It may be pointed out here that to begin with, the occupation of the railway quarters by the applicant in both the cases was fully authorized. What made it unauthorized subsequently was the retention after the employee had been transferred and posted elsewhere. Instances are, however , not unknown when an employee posted elsewhere, is allowed to retain his official quarter at another place. The applicant in this case had made representations in this regard, but no formal order seems to have been passed on them. The recovery of penal rent, nor coupled with any notice or order of cancellation of the allotment , would lend support to the applicants claim that it gave him the impression of having been allowed to retain the quarters.
6. Coming back to the Railway Services (Conduct) Rules, 1966 there is, of course, an omnibus provision in Rule 3 thereof. It provides that every railway servant shall, at all times (i) maintain absolute integrity, (ii) maintain devotion to duty, and (iii) do nothing which is unbecoming of a railway or government servant. Sri A.B. Ojha, learned counsel for the Railways tried to argue that non-compliance with an order passed by superior officer directing the vacation of railway quarter, should amount to misconduct as well as misbehavior in terms of the aforesaid Rule 3, as it smacks of insubordination and is also unbecoming of a railway servant. It seems to me that this line or argument is too far-fatched and untenable. This apart , Sri Ojhas argument cannot succeed because no formal order seems to have been issued asking the applicant to vacate the quarters. Therefore, the alleged disobedience , if any, could be only against a non-existent or, at best, an implied order. Leaving aside all such problems, a plain reading of the Conduct Rules would indicate that unauthorized retention of quarters by the applicant in the circumstances indicated above could not be construed as a clear case of misconduct. The attempt of the railway authorities to oust the applicant from the railway quarters by means of disciplinary proceedings without taking recourse to normal eviction proceeding, as prescribed , was certainly intended to be a short-cut to achieve the desired result. This cannot but be viewed with serious disapproval.
7. If the institution of disciplinary proceedings on the aforesaid ground is itself held to be improper and unwarranted, the imposition of a major penalty such as compulsory retirement from service on such a charge must be held to be much worse and quite out of proportion with the guilt , if any. Compulsory retirement of an employee must be related to his physical and functional capabilities in the context of job performance. Extraneous considerations such as unauthorized retention of railway quarters, must not be allowed to weight in a matter like this. A disciplinary proceedings is a quasi judicial proceedings. It should not be used as a stick to compel an employee to a position where he is unable to defend himself. The authorities have been clothed with adjudicate powers and have alternative remedy available , duly prescribed, for the purpose.
ii) O.A. No.1046 of 1989 decided on 25.9.1990 (Kuldip Narayan Ojha Vs. Union of India and others)- In this case also, it was decided that unauthorized occupation of a Govt. quarter by a Railway employee cannot be the subject matter of a departmental enquiry for gross misconduct under Rule 3 of R.S. (Conduct) Rules 1966. Consequentially, the departmental proceedings and removal order based on such proceedings was quashed.
c) Relevant Rules for retention of quarter on permanent transfer:-
Extract of Master Circular 49 relating to allotment of quarter and retention and transfer has also been filed upon which the reliance has been placed on behalf of the applicant:-
8.1. Permanent Transfer- (a) A Railway employee on transfer from one station to another which necessitates change of residence, may be permitted to retain the railway accommodation at the former station of posting for a period of 2 months on payment of normal rent or single flat rate of licence fee/ rent . On request by the employees, on educational or sickness account, the period of retention of railway accommodation may be extended for a further period of 6 months on payment of special licence fee, i.e. double the flat rate of licence fee/ rate , further extension beyond the aforesaid period may be granted on educational ground only to cover the current academic session on payment of special licence fee.
b) Where the request made for retention of railway quarter is on grounds of sickness ofself or a dependent member of the family of the railway employee, he will be required to produce the requisite medical certificate from the authorized Railway Medical Office for the purpose.
c) In the event of transfer during the mid-school/college academic session, the permission to be granted by the competent authority for retention of railway accommodation in terms of item (a) above will be subject to his production of the necessary certificates from the concerned school/ college authority.
7. In respect of the preliminary objection raised on behalf of the respondents that instead of availing alternative remedy of filing statutory appeal against the removal order, the applicant has rushed to this Tribunal, suffice is to mention that in just cases, the Central Administrative Tribunal can entertain an application without insisting on exhaustion of other remedies as provided in Section 20 of the AT Act , particularly where service rules do not empower the authorities to stay the impugned order despite a very just case and a very erroneous order has been passed, as has been held in the case of Charan Singh Vs. Union of India and others (supra) which has been referred and discussed in the case of 2000(18) LCD 31 R.K. Singh Vs. UOI and others (supra). In view of peculiar facts and circumstances of this case justifying entertaining of this O.A. as being mentioned herein below, this point is decided in favour of the applicant.
8. Under challenge in this O.A. is the order of removal of the applicant on the ground of unauthorized retention of quarter on the basis of ex-parte enquiry report submitted by the enquiry officer, though from the very beginning, it was doubtful as to whether or not the alleged unauthorized retention of quarter can be construed to be misconduct under the Railway Services (conduct) Rules, 1966. Time and again, the applicant raised this specific plea and also intimated the respondents that it has been clarified by the Railway Board while furnishing information under RTI that on account of unauthorized occupation of a quarter, such charge sheet cannot be issued. Secondly, he also drew attention of the authorities that when he submitted his application of retention of quarter for a period of 3 years in accordance with relevant provisions and direction issued by the Railway Board, no reply was given to him and thirdly for the period of over stay, the respondents have already deducted the damage rent from his salary and have also denied HRA to him. On all the aforesaid points, specific averments have been made in the relevant paragraphs of the O.A. But in the corresponding paragraphs of the C.A., these specific averments have not been specifically denied as has already been indicated at relevant places in para 2 of this order/ judgment. It is needless to say that an averment/ plea which has not been specifically denied, is not required to be substantiated or proved. It has to be taken as proved and accordingly these averments stand proved. Further, contention of the applicant is that without deciding his representation for retention of quarter for 3 years , the respondent No. 2 issued the major penalty charge sheet on 17.6.2010 in respect of same subject matter. For the first time, his representation for retention of quarter was rejected on 3.10.2011. Thus, without deciding his above application for retention of quarter, major penalty charge sheet was issued which was certainly against the Principles of Natural Justice and fair play. According to the applicant, unauthorized occupation of a quarter has not been enlisted/ recognized as misconduct and only sub-letting has been considered to be misconduct. For this reason, he had repeatedly demanded the relevant rules/ regulations if any from the respondents vide his application dated 22.7.2010 followed by reminders. But he was simply informed that those documents relate to Personnel Department . Obviously such a reply was not satisfactory and was merely an eye wash. The relevancy and existence of those documents had not been denied and if the Personnel Department was the custodian of those documents , it was incumbent upon the Enquiry Officer or the respondents to have obtained the same from their own department and to supply it to the delinquent official so that no injustice may be done. Further contention of the applicant is that in respect of unauthorized occupancy, the only course open to the Department was to resort to the proceedings under the Public Property (PP) Act. But no reply could be given in the C.A. on this point. This silence shows that indeed it was the proper course which was not adopted. Instead this short cut method was adopted. The learned counsel for applicant further pointed out that even his allotment of the quarter in question in favour of the applicant was never cancelled. Similarly, there was no written order for vacating the quarter. The applicant on the other hand acted bonafidely and moved an application for retention of quarter. Moving of such an application has also not been denied. But as mentioned above, the respondents kept that application pending and without deciding the said representation , they served the applicant with major penalty charge sheet which was certainly against the principle of fair play.. A similar question arose for adjudication before CAT, Patna Bench in the case of Dukhan Ram Vs. S.K.Vij (supra) as to whether unauthorized retention of quarter allotted to Railway Servant comes within the scope and meaning of misconduct meriting a major penalty such as compulsory retirement from service specially when there were extenuating circumstances such as recovery of penal rent, absence of notice or formal order cancelling the allotment and non-utilization of powers vested in the authorities to evict an unauthorized occupant by instituting appropriate proceedings for the purpose. All such extenuating circumstances are present in the case in hand also. The Honble CAT, Patna Bench after examining the definition of misconduct as contained in the Railway Services (Conduct) Rules, 1966 and also taking in view the facts and circumstances of the case , reached the conclusion that initiation of disciplinary proceedings against the applicant was in appropriate and misconceived and the punishment of compulsory retirement imposed upon him was all the more underserved and out of proportion to the alleged imputation. This case law has already been discussed at length on pages 5,6 and 7 of this order/judgment and squarely applies in the case in hand. . We have no good reasons to differ from the aforesaid findings. Therefore, in our view, the institution of disciplinary proceedings on the aforesaid ground was improper and unwarranted. Similarly, the imposition of major penalty such as removal from service on such a charge was much worse and out of proportion of guilt if any. In almost similar case, a similar view was earlier taken by another Bench of CAT, Calcutta in O.A. No.1046 of 1989 (Kuldeep Narayan Ojha Vs. UOI and others (supra).
9. The applicant has also averred that the enquiry officer submitted his ex-parte report , though he had participated in the enquiry initially on 3 dates. Thereafter, he moved a representation dated 6.2.2012 making allegation of bias and questioning integrity and requested for staying the enquiry till disposal of the representation by revisional authority as provided in the Railway Boards letter dated 19.6.1974. But without intimating the fate of above representation and without giving even a days time or fixing any further date in the enquiry, the Enquiry Officer submitted his ex-parte report. We do not find any specific reply in respect of this averment in the corresponding paragraphs of the C.A. Then by means of letter dated 18.4.2012, the applicant was asked to show cause in respect of enquiry report. He submitted a detailed reply dated 4.5.2012 running into 9 pages but without paying any heed to any of the relevant points raised by him, the Disciplinary Authority passed the removal order in an arbitrary manner which consists of hardly 9-10 lines and its perusal shows that it has been passed without any application of mind on a printing format by filling certain blank space of dotted lines by ink pen in a mechanical manner without making any point-wise discussion or even a short discussion dealing with any of the points raised in the aforesaid reply comprising nine pages.
10. As already said the punishment of removal is also disproportionate specifically when the respondents had already deducted the damage rent for the entire period and have also not paid any HRA. Finally, the quarter in question had also been vacated by the applicant on 24.4.2012.
11. Having regard to the discussions made hereinabove, this O.A. deserves to be and is accordingly allowed. The impugned order dated 14.8.2012 and the charge sheet dated 17.6.2010 are hereby quashed with all consequential benefits. No order as to costs.
(D.C. Lakha) (Alok Kumar Singh) Member (A) Member (J) HLS/-