Central Administrative Tribunal - Ernakulam
R. Shanmugam vs Union Of India Represented By on 4 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 54 of 2011
Wednesday, this the 04th day of July, 2012
CORAM:
HON'BLE MR. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
R. Shanmugam, aged 45 years,
S/o. Rajagopal (Section Engineer/Works/Southern
Railway/Salem Division - compulsorily retired),
Residing at C/o. Swaminathan,
Valiyakalam House, Tennilapuram P.O.,
Anjumurthy (Via), Palakkad : 678 682 ... Applicant.
(By Advocate Mr. T.C. Govindaswamy)
v e r s u s
1. Union of India represented by
The General Manager,
Southern Railway, Headquarters Office,
Park Town P.O., Chennai : 600 003
2. The Senior Divisional Engineer (Co-Ordination),
Southern Railway, Salem Division, Salem : 636 005
3. The Principal Chief Engineer,
Southern Railway Headquarters Office,
Park Town, Chennai : 600 003
4. The Senior Divisional Engineer (Co-Ordination),
Southern Railway, Palghat Division, Palghat.
5. The Chief Personnel Officer,
Southern Railway Headquarters Office,
Park Town, Chennai : 600 003
6. The Chief Planning and Designs Engineer,
Southern Railway Headquarters Office,
Park Town, Chennai : 600 003
7. The Divisional Railway Manager,
Southern Railway, Salem Division, Salem ... Respondents.
(By Advocate Mr. Thomas Mathew Nellimoottil)
This O.A. having been heard on 20.06.2012, the Tribunal on 04.07.12
delivered the following:
O R D E R
Hon'ble Mr. K. George Joseph, Administrative Member -
The applicant in this O.A while working as Section Engineer, Salem Division, Southern Railway was charge sheeted under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968, on 26.12.2007 for the misconduct of demanding and accepting illegal gratification from a contractor on 28.02.2007. In the enquiry that followed, the charge levelled against him was held as proved. The penalty of compulsory retirement from service was imposed on him vide order dated 02.03.2010 which was confirmed by the appellate order dated 08.07.2010 and the revision order dated 26.11.2010. Aggrieved, the applicant has filed this O.A. for the following reliefs:
(i) call for the records leading to the issue of Annexures A1 to A5 and quash the same;
(ii)Direct the respondents to reinstate the applicant immediately with all consequential monetary and other benefits as if A1 to A4 had not been issued at all;
(iii)Award costs of and incidental to this application;
(iv)Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case.
2. The grounds for reliefs advanced by the applicant are as follows. The entire disciplinary action is violative of basic principles of natural justice that no one shall be condemned unheard. The trap laid against the applicant is in violation of Para 307 of the Railway Vigilance Manual. Not one of the contentions raised by the applicant in his representations to the Disciplinary Authority, the Appellate Authority and the Revisional Authority was considered by them. The documents in support of the prosecution have not been proved in the enquiry in accordance with law. SW-1 and SW-2 who were the complainants and independent witnesses did not depose independently of the proceedings dated 28.02.2007. The enquiry officer and the presenting officer were from the Vigilance Organisation. The whole case is a brain child of the Vigilance Organisation. The enquiry officer has denied vital documents sought for in Annexure A9 to prove that it is for the contractor to produce the certificate and not for the applicant to issue. The applicant was not given an opportunity to explain as to the evidence generally appearing against him on conclusion of the enquiry in accordance with Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules, 1968. The order of penalty of compulsory retirement was issued by the 7th respondent, the Divisional Railway Manager, who is an authority lower than the appointing authority (3rd / 6th respondent). It is, therefore, opposed to Article 311(1) of the Constitution. The appellate and revisionary orders are totally non speaking, without application of mind, ultra vires the Rules 22 and 25 of the Railway Servants (Discipline and Appeal) Rules, 1968. The applicant has not been given an opportunity of being heard before restricting the compulsory retirement pension to 75%. The penalty imposed is highly disproportionate in the facts and circumstances of the case shocking to the conscience of any person of ordinary prudence. There is no legal and valid evidence on record to substantiate the allegations.
3. The respondents in their reply statement submitted that when the examination of the witnesses on behalf of the Railway Administration was over, the circumstances appearing against the applicant in the evidence in the enquiry were pointed out to him by the enquiry officer under Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules, 1968, to enable the applicant to explain the circumstances. The applicant preferred to submit his written defence brief. In terms of Schedule II to the Railway Servants (Discipline and Appeal) Rules, 1968, the appointing authority or an equivalent authority or any higher authority are empowered to impose the penalty of dismissal, removal or compulsory retirement from service. Hence, the Divisional Railway Manager in the Division, equivalent to the appointing authority, is competent to act as Disciplinary Authority for the purpose of imposing the penalty on the applicant. Pursuant to the penalty advice dated 02.03.2010, the service of the applicant was terminated with effect from 04.03.2010 and as per Rule 64 of the Railway Services (Pension) Rules, 1993, 75% of pension and gratuity which would have been otherwise admissible to him if he had retired on compensation pension, was sanctioned vide order dated 25.03.2010. The contention of the applicant that none of the safeguards guaranteed in Para 307 of the Vigilance Manual was complied by the vigilance team is baseless. The provision in Para 307.4 of the Indian Railways Vigilance Manual is only procedural and not substantive in nature. In the depot of the applicant, the contractors were not giving "No claim certificate" of their own, but were only signing in the format generated in the office. 13 additional documents sought by the applicant were supplied to him. Some documents sought by the applicant on 05.12.2008 being not all relevant to the case, he was replied accordingly vide Anenxure A-10 dated 10.12.2008. The enquiry was conducted duly following the procedure laid down in the Railway Servants (Discipline and Appeal) Rules, 1968, and also following the principles of natural justice. SW-1 and SW-2 were adducing consistent and corroborative evidence in respect of the demand and acceptance of Rs. 1500/- by the applicant from the Contractor. SW-3, SW-4 and SW-6, who were working under the direct control of the applicant, are examined as hostile witnesses, yet they have identified the documents containing their statements which were marked as exhibits in the enquiry. These documents have evidential value. The allegation that the contractor had an enmity against the against the applicant because of two incidents is a story built up by the applicant to divert the issue. The penalty imposed by the Disciplinary Authority was in accordance with the procedure laid down by law. The standard of proof required in a departmental enquiry is that of preponderance of probability and not proof beyond reasonable doubt. The applicant has been given all reasonable opportunities during the conduct of the trap as well as during the conduct of the enquiry. The appellate Authority had carefully considered the appeal. The Revisional Authority found that the revision petition does not contain any substantial reason to explain the misconduct committed by the applicant. In the instant case, the applicant has been trapped red handed. The penalty was not imposed on him on the advice of the Viglance Organisation. The departmental authorities took an independent view taking into consideration the whole aspects of the case in the light of the provision in the Railway Servants (Discipline and Appeal) Rules and Vigilance Manual. When the applicant had been supplied enough documents to prove his innocence, denial of irrelevant documents requested on 05.12.2008 does not vitiate the enquiry proceedings. There is no provision in the Railway Service (Pension) Rules, 1993, to give an opportunity of being heard before sanctioning the pension or gratuity or both under Rule 64 (1) of the aforesaid rules. The vigilance officer came to the conclusion that the complaint is genuine on the basis of the information that the security deposit was not refunded to the contractor even seven months after the contract has been successfully completed and his security deposit was due for refund. The gravity of misconduct warranted imposition of the penalty of compulsory retirement.
4. In the rejoinder statement, the applicant submitted that his initial appointment, promotion to the post of Junior Engineer and thereafter to the post of Sectional Engineer were all issued by the 3rd respondent and, therefore, the 7th respondent, the Divisional Railway Manager, is not competent to act as Disciplinary Authority of the applicant. The respondents have not come forward with any factual details or statutory provision to claim that the 7th respondent is equivalent to the 3rd respondent to act as Disciplinary Authority of the applicant. There is no whisper at all on any of the contentions raised by the applicant in Annexure A-18 appeal. Annexures A-4 and A-5 orders passed by the Appellate and Revisional Authorities are in gross violation of Rule 25 of Railway Servants (Discipline and Appeal) Rules, 1968. SW-2 is only a Junior Engineer on whom the vigilance inspector has absolute control. He cannot be treated as an independent witness. The applicant had a specific case that the whole complaint was with a view to harass him in retaliation to the various actions taken by the applicant against the contractor for his illegal acts. For proving the same, the applicant had requested to supply certain documents, which are not supplied to him. The justification and relevancy of those documents are apparent on the face of Annexure A-9 submission dated 05.12.2008. Only the signatures of the witnesses in the pre- recorded statements were identified in the departmental enquiry. Those statements cannot form the basis of finding the applicant guilty of charges. As the statements of SW-3 to SW-6 as also the statements of SW-1 and SW-2 were not recorded by the vigilance inspectors as per the Railway Board letter No. RTI Cell/2008/1772/CPIO(II) dated 23.12.2008. The do not have any evidential value. The applicant is entitled to be heard before making any cut in the normal compulsory retirement pension that too in accordance with separate rules vis. Rule 64 of the Railway Servants (Pension) Rules, 1993.
5. We have heard Mr. T.C. Govindaswamy, Learned counsel for the applicant and Mr. Thomas Mathew Nellimoottil, learned counsel for the respondents and perused the records.
6. The applicant contended that none of his contentions raised in Annexure A-7 representation against the enquiry report to the Disciplinary Authority and in the appeal against the order of penalty and in the revision petition against the appellate order has been considered by the Disciplinary Authority, the Appellate Authority and the Revisional Authority. These authorities are expected to apply their mind to the contentions of the applicant and pass speaking orders. The orders of the Disciplinary Authority, the Appellate Authority and the Revisional Authority, in the instant O.A, do not show any evidence as to the application of mind by the concerned authority on the contentions of the applicant in the orders issued by them. This goes against the basic principles of natural justice that no one shall be condemned unheard.
7. In para 3 of the penalty advice dated 02.03.2010, it is stated as under:
"3. Reason by which the disciplinary authority has arrived at the particular conclusion.
Having gone through the report of the inquiry officer and other documents placed on the file, it is clear that the charges levelled against the charged official are proved beyond doubt. Therefore, penalty of "Compulsory Retirement from service " is imposed."
A mere statement that it is clear on going through the report of the inquiry officer and other documents placed on the file that the charges levelled against the charged official are proved, does not show application of mind. By implication, the representation of the applicant might have been gone through by the Disciplinary Authority. That is not sufficient evidence to hold that mind has been applied to the grounds raised by the applicant in his representation to the Disciplinary Authority.
8. The order of the appellate authority states as under :
" I have carefully gone through the DAR proceedings, appeal and heard and perused the submissions to me in the personal hearing held on 21.06.2010.
You have alleged previous enmity on two counts - (i) adjustment requested for water lorry supply quantity and (ii) cycle stand extra space occupation had resulted in foisting false case against you by contractor. In the hearing, you have brought special attention of Appellate Authority on items 8 and 13 of defence submitted dated 21.06.2010 and requested for cancellation of penalty imposed.
All the above aspects have again been carefully examined by me and I conclude these do not alter the gravity of proven charge. Hence I confirm the penalty imposed by the Disciplinary Authority, DRM/SA."
The applicant was given a personal hearing by the Appellate Authority who noted in the order the enmity of the contractor and items 8 and 13 of the defence urged by the applicant. On careful examination, he concluded that the submission of the applicant do not alter the gravity of proven charge. In stating so, the Appellate Authority concedes some substance in the gorunds raised by the applicant which is by implication is not good enough to alter the gravity of the charge, but he has not applied his mind to the grounds of the applicant per se.
9. Similarly, the Revisional Authority who did not consider it necessary to grant personal hearing to the applicant found that his revision petition did not contain any substantial reason to explain the dereliction of duty and the misconduct committed. Here also, there is no evidence on the application of mind to the grounds raised by the applicant.
10. In Ram Chander vs. Union of India and Others, 1986 SCC (L&S) 383, Hon'ble Supreme Court has held that it is of utmost importance after the Forty Second Amendment as interpreted by the majority in Tulsiram Patel case (1985 SCC (L&S)672) that the Appellate Authority must not only give a hearing to the government servant servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. The reasoned decisions will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the authority regarding the final orders that may be passed on his appeal. Considerations of fair play and justice also require that such a personal hearing should be given. The Apex Court in the aforesaid judgement further held that the word 'consider' in Rule 22(2) in the Railway Servant (Discipline & Appeal) Rules, 1968, means an objective consideration after due application of mind which implies giving reasons for decision.
11. In AIR 1990 SC 1984, S.N. Mukherjee vs. Union of India, Hon'ble Supreme Court held as under:
"35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the re- cording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasijudicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."
(emphasis supplied)
12. The respondents relied on the judgement of the Apex Court in 1994 Supp (2) SCC 468, State Bank of India, Bhopal vs. S.S. Koshal, to show that a speaking order need not necessarily be a detailed order in an order of affirmance. In the said judgement, the Hon'ble Supreme Court found application of mind on the part of authority concerned. They further relied on the judgement of Hon'ble High Court of Andhra Pradesh, CDJ 1996 APHC 948, which followed the judgement of the Apex Court mentioned above. But here also the Hon'ble High Court found that the appellate order clearly demonstrated that the appellate authority had applied his mind not only to the proceedings of the enquiry but also to the grounds raised by the applicant.
13. Though the orders of the Disciplinary Authority, Appellate Authority and the Revisional Authority are commendable for brevity, there is no evidence in them to show application of mind to the grounds raised by the applicant in his representation. There are no clear and explicit reasons in them to indicate that the concerned authorities have given due consideration. Objective consideration of the grounds raised by the applicant and giving reason for the decision arrived at by them are required under Rule 22 (2) of the Railway Servants (Discipline & Appeal) Rules, 1968. The concerned authorities have breached the principles of natural justice and violated the Rule 22(2) of the Railway Servants (Discipline & Appeal) Rules, 1968, by not considering the points of the applicant with due application of mind. Hence, the O.A. is liable to be allowed.
14. Further, the applicant had sought copies of certain documents to prove that the contractor was harassing him in in retaliation to the various actions taken by him against the contractor for his illegal acts. The enquiry authority had denied those documents on the ground that the relevancy of those documents to the charge levelled against the applicant is not shown. The Disciplinary Authority, the Appellate Authority and the Revisional Authority should have dealt with the aspect whether the non-supply of certain documents demanded by the applicant has prejudiced his case or not in the orders issued by them as it is necessary in the interest of natural justice to provide adequate opportunity to the applicant to defend himself against the charge levelled against him.
15. Another major contention of the applicant is that the 7th respondent, the Divisional Railway Manager is not competent to act as Disciplinary Authority of the applicant. The respondents have not given any factual details or statutory provision to claim that the 7th respondent is equivalent to the 3rd respondent to act as the Disciplinary Authority of the applicant. If power is exercised without jurisdiction, the entire proceedings against the applicant would be rendered ab initio void. The applicant could have raised this point during the enquiry. As per settled law, the question of jurisdiction can be raised at any stage.
16. In the interest of justice, the above points, inter alia should be considered by the appellate authority in the first instance.
17. In the facts and circumstances of the present case, we are of the considered view that the ends of justice would be met if the case is remanded to the Appellate Authority to consider the grounds raised by the applicant in the light of the observations made above. Accordingly, we order the case be remanded to the Appellate Authority for reconsideration within a period of 2 months from the date of receipt of a copy of this order. The orders at Annexure A-4 dated 08.07.2010 and Annexure A-5 dated 26.11.2010 are set aside.
18. The O.A. is allowed to the extent indicated above, No order as to costs.
(Dated, the 04th July, 2012)
K.GEORGE JOSEPH JUSTICE P.R. RAMAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.