Central Administrative Tribunal - Allahabad
Rajendra Prasad Deceased Represented ... vs North Eastern Railway on 23 October, 2024
O.A./1177/2011
(Reserved on 18.10.2024)
Central Administrative Tribunal, Allahabad
Original Application No.1177 of 2011
rd
Pronounced on this the 23 Day of October, 2024.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Rajendra Prasad S/o Late Ramai Yadav R/o Dohri Ghat, Near Baba Mela
Ram Mandir Maunath Bhanjan, Mau.
1/1- Smt. Champa Devi a/a 57 yrs w/o Late Rajendra Prasad.
1/2- Rajkumar S/o Late Rajendra Prasad.
R/o Dohri Ghat, Maunath Bhanjan, Mau
...........Applicant
By Advocate: Shri P.K. Mishra proxy for Shri S.K. Om
Versus
1. Union of India through General Manager, North Eastern Railway,
Gorakhpur.
2. Secretary, Union Public Service Commission Sangh Lok Seva
Ayog, Dhaulpur House New Delhi.
3. Director, Establishment (D & A) Railway Board, New Delhi.
4. Senior Divisional Commercial Manager North Eastern Railway,
Varanasi.
...Respondents
By Advocate: Shri R.S. Yadav
ORDER
By Hon'ble Mr. Mohan Pyare, Member (A) Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following Digitally relief:
MADHU signed by KUMARI MADHU "A. To issue a writ order or direction in the nature of KUMARI certiorari quashing the order dt. 22.2.2011 (Annexure -1 Page 1 of 12 O.A./1177/2011 to compilation no. I) passed by order and in the name of President.
B. To issue a further writ order or direction in the nature of mandamus commanding the respondents to restore applicant's pension and pay the same month to month along with its arrear and interest @ 9 % per annum as if the order dt. 22.2.2011 has not been passed.
C. To grant all the consequential reliefs for which the applicant is entitled for.
D. To grant any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the case.
E. To award the cost of the present O.A. in favour of the applicant."
2. The brief facts of this case are that the applicant Late Shri Rajendra Prasad was appointed as booking clerk on 11.02.1981 and during 23.12.2005, he was working as Coaching Superintendent Grade -II and was posted in N.E. Railway, Azamgarh, wherein a vigilance check was conducted by the respondents. On 27.12.2005 & 23.02.2006, Late Shri Rajendra Prasad was summoned in the vigilance office, Gorakhpur and he was made to sign a statement by coercive method as alleged in the O.A. On 02.03.2006, he preferred a representation requesting to record his statement afresh. On 18.04.2006, he was issued a charge sheet with the allegation of misconduct against him and the statement of the prosecution witness was recorded. On 20.03.2007, he gave his defence statement under rule 9 (19) of DAR Rules. On 16.04.2007, the inquiry report was submitted which was supplied to him on 09.05.2007. As per the inquiry report, the first and second charges leveled against the deceased employee were proved while the third charge was not proved. On 25.05.2007, the applicant submitted his reply to the inquiry report. Digitally MADHU signed by Thereafter, respondent no.4 vide his letter dated 11.12.2008 issued KUMARI MADHU KUMARI a disagreement note with regard to third charge to which the applicant replied through his letter dated 05.01.2009 raising the Page 2 of 12 O.A./1177/2011 objection that respondent no.4 has not jurisdiction to issue a disagreement note after which respondent no.4 forwarded the entire disciplinary proceedings for appropriate orders to the President of India. Vide letter dated 26.02.2008 issued by the General Manager, Vigilance, it had been directed to the DRM, Varanasi to award maximum punishment to the applicant. Thereafter, disciplinary case of the applicant Late Shri Rajendra Prasad, was sent for the advice of UPSC which gave his advice on 05.01.2011 on the basis of which the President was pleased to impose the punishment of stoppage of monthly pension in full permanently vide the letter dated 22.02.2011.
3. We have heard learned counsel appearing for the parties.
4. Submission of the learned counsel for the applicant is that on 23.12.2005 the late applicant requested one Sri S.B. Tiwari to take his place since his stomach was upset due to which he had to leave his seat for some time at the booking counter to attend nature's call. He states that Sri Tiwari took advantage of the situation and it appears that he started selling forged tickets when the vigilance check was done which later on seized all the available tickets and the sale proceeds and when the late applicant returned, he was also interrogated. He argues that no forged tickets were found in the custody of the applicant and the passenger who was called also recognised Shri S.B. Tiwari as having sold him the forged ticket and not the applicant. He states that there was no gazetted officer in the vigilance team and it consisted of only group C and D employees which is against para 704 read with para 705 of vigilance manual as per which the team should consist of at least two gazetted officers or at least two responsible officers but in any case an illiterate class IV employee cannot be considered a responsible officer. Later, on 27.12.2005 and 23.02.2006, the applicant was summoned in the vigilance office, Gorakhpur where Digitally MADHU signed by his statement was recorded under coercion. Thereafter, the KUMARI MADHU KUMARI applicant vide his letter dated 02.03.2006 represented before respondent no.4 (the applicant's disciplinary authority) that his Page 3 of 12 O.A./1177/2011 statement has been recorded under coercion. However, a major charge sheet dated 18.04.2006 was issued against the applicant with erroneous and baseless charges that while working in the shift of 6:00 to 18:00 at Azamgarh booking office, the deceased employee sold ticket no.89198 to 89478 from Azamgarh to Lokmanya Tilak Terminal, whereas, on checking the platform passengers were found tickets having Sl No. more than 90300 and ticket no. 90366 and 90390 recovered from Sri Dharmendra Kumar and Sri Raj Bihari were forged and they told that they have purchased the ticket from the applicant who charged Rs. 247/- instead of Rs.244/- and the proceeds amounting to Rs.67318/- was kept in the almirah the key of which was in the personal custody of the applicant. He argues that the sum of Rs.67318/- found from the almirah of the applicant was the sale proceed of the tickets sold from Sidhari Halt station and it has nothing to do with the forged tickets as alleged. It is stated that vide application dated 19.05.2006, the applicant had also requested that Sri Dharmendra Kumar, Sri Ras Bihari and the T.T.E., Itarasi be called as Court witness to verify and recognize the applicant as they described an image completely contrary to the appearance of the applicant as the person from whom they bought the tickets. However, in spite of specific directions by the inquiry officer, the respondents did not produce the passengers during the course of inquiry and only the statements of the prosecution witnesses were recorded. He states that the applicant did not sign the joint note prepared by the Vigilance team because it was prepared later on and not at the time of the vigilance check. It is stated that in the inquiry report dated 16.04.2007, while considering the first and second charge, inquiry officer did not consider the statements given by the prosecution witnesses to the effect that no forged tickets were recovered from the possession of the applicant and the applicant was not present in the booking office at the time of alleged sale of Digitally MADHU signed by forged tickets.
KUMARI MADHU KUMARI
5. Learned counsel for the applicant argues that the disagreement note with regard to the third charge was issued belatedly by the Page 4 of 12 O.A./1177/2011 disciplinary authority vide letter dated 11.12.2008 which is contrary to the provision of Rule 10 of Discipline & Appeal Rules, 1968, in as much as once it has agreed with the findings of the inquiry officer by furnishing the inquiry report to the applicant and he has also submitted a reply thereof. He states that the applicant was compulsorily retired vide letter dated 27.09.2006 by way of punishment in other disciplinary case and he was no more a Railway employee, thus, respondent no.4 had no jurisdiction to issue the disagreement note dated 11.12.2008 for which the competent authority would be the President of India. It argues that a biased attitude of the Vigilance authority is clear from the fact that vide letter dated 26.02.2008, it directed the DRM, Varanasi to award maximum punishment to the applicant. When the disciplinary case of the applicant was sent for advice to UPSC, the reasons assigned by UPSC dated 05.01.2011 show that it did not consider the facts as raised above demonstrating biased attitude of the Vigilance and disciplinary authorities. It is further argued that the punishment awarded to the applicant vide letter dated 22.02.2011 is also very excessive and amounting to the economical death of the applicant, it does not commensurate with the charges leveled against him.
6. Submission of learned counsel for the respondents is that the applicant was guilty of the charges leveled against him in the charge sheet dated 18.04.2006 and the applicant permitted Shri S.B. Tiwari to sell the forged tickets in connivance with him. One Shri Ras Bihari identified the applicant (giving the appropriate description of the applicant) and made the statement to the effect that the has purchased the ticket from the applicant on payment of Rs.247/- and the applicant could not give any plausible explanation about the money on spot when Rs.67318/- was recovered from the Almirah under the applicant's custody. He Digitally argues that para 704 ānd 705 of Vigilance Manual are not MADHU signed by KUMARI MADHU compulsory to be applied in each and every circumstances of KUMARI vigilance case. It is submitted that in his statement dated 27.12.2005 given to the vigilance the applicant himself admitted Page 5 of 12 O.A./1177/2011 in reply to question no.13 that ticket nos. 90306, etc. were sold by him and also in reply to question no.12 he has admitted that the statement has been given on his own determination and not under pressure. He states that the Inquiry Officer on 21.12.2006 made available to the applicant the copy of S. I-II as extra documents, and so far the question of calling Sri Ras Bihari and Sri Dharmendra Kumar in court as witnesses are concerned, it is submitted that despite the information through registered post to both the above persons, they did not appear and finally the Inquiry Officer dropped them from appearing in court of inquiry. It is further stated that Sri P.K. Dubey, Chief Vigilance Inspector in his statement during the vigilance inquiry has clarified that the entire incident took place in the presence of the applicant and this fact has been established from the signature of the other employees, who were present at the relevant point of time, on the statement recorded during the vigilance inquiry. It is further submitted that in reply to question no.2, Sri P.K. Dubey stated that passengers identified the applicant and admitted that they have purchased the tickets from him. Hence, the signature of the applicant on the signature of the applicant on joint note dated 23.12.2005 was not required. He submits that the applicant submitted his defence statement under rule 9 (19) and 9 (22) of the Railway Servants (Discipline and Appeal) Rules 1968 and thereafter the Inquiry Officer submitted the inquiry report based on the documentary evidence as well as taking into account the statement of witnesses. The disagreement note dated 11.12.2008 was also served after issuing show cause notice to the charged official as per rule 10 of the Railway Servants (D & A) Rules 1968. It is also submitted that previously on 11.11.2005 Rs. 10347/- was found short in the government account during the vigilance check in the booking office at Azamgarh Railway station which the applicant deposited subsequently. Apart from this, the applicant was also found guilty Digitally MADHU signed by in other three vigilance matters and served with the NIPs hence KUMARI MADHU KUMARI there was no other option but to impose the punishment of compulsory retirement from services. He argues that all the action Page 6 of 12 O.A./1177/2011 taken by the respondents are in conformity with various rules and policy on the subject and that on the basis of reasons recorded by the UPSC in their advice dated 05.01.2011, the Hon'ble President has been pleased to pass the order for withholding the pension of the applicant permanently and a copy of the President's order was communicated to the applicant vide letter dated 28.02.2011.
7. Learned counsel for the applicant has further placed reliance on the judgments of the Hon'ble Apex Court in the cases of Nirmala J. Jhala vs State of Gujarat & Anr ( Civil Appeal No. 2668 of 2005) decided on 18 March, 2013 [AIR 2013 SUPREME COURT 1513] and Union of India & Ors vs. R.P. Singh ( Civil Appeal No. 6717 of 2008) decided on 22.05.2014 [2014 4 AIR(Jhar)(R) 110] in support of his arguments and stated that the report of UPSC should have been supplied to the charged officer with an opportunity to submit his representation before any penalty order was passed pursuant to the same as it has been held by the Hon'ble Apex Court in the case of Union of Inida vs. S.K. Kapoor, (2011) 4 SCC 727 but the deceased applicant had not been provided any such opportunity.
8. We have considered the rival submissions of learned counsel appearing for the parties, and gone through the entire documents on record.
9. The relied upon paragraphs in the judgement of the Hon'ble Apex Court in the case of Nirmala J. Jhala vs State of Gujarat & Anr (supra) by the learned counsel for the applicant are as under:
"26. "A prima facie case, does not mean a case proved to the hilt, but a case which can be said to be established, if the evidence which is led in support of the case were to be believed. While determining whether a prima facie case had been made out or not, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence". (Vide: Martin Burn Ltd. v. R.N. Banerjee, Digitally AIR 1958 SC 79) (See also: The Management of the Bangalore MADHU signed by KUMARI MADHU Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, M.T. KUMARI represented by the Binny Mills Labour Association, AIR 1960 SC 1352; State (Delhi Admn.) v. V.C. Shukla & Anr., AIR 1980 SC 1382; Dalpat Kumar & Anr. v. Prahlad Singh & Ors., AIR 1993 Page 7 of 12 O.A./1177/2011 SC 276; and Cholan Roadways Ltd. v. G. Thirugnanasambandam, AIR 2005 SC 570).
27. The issue, as to whether in the instant case the material collected in preliminary enquiry could be used against the appellant, has to be considered by taking into account the facts and circumstances of the case. In the preliminary enquiry, the department placed reliance upon the statements made by the accused/complainant and Shri C.B. Gajjar, advocate. Shri C.B. Gajjar in his statement has given the same version as he has deposed in regular enquiry. Shri Gajjar did not utter a single word about the meeting with the appellant on 17.8.1993, as he had stated that he had asked the accused/complainant to pay Rs. 20,000/- as was agreed with by Shri P.K. Pancholi, advocate. Of course, Shri C.B. Gajjar , complainant, has definitely reiterated the stand he had taken in his complaint. The chargesheet served upon the appellant contained 12 charges. Only first charge related to the incident dated 17.8.1993 was in respect of the case of the complainant. The other charges related to various other civil and criminal cases. The same were for not deciding the application for interim reliefs etc.
28. The chargesheet was accompanied by the statement of imputation, list of witnesses and the list of documents. However, it did not say that so far as Charge No. 1 was concerned, the preliminary enquiry report or the evidence collected therein, would be used/relied upon against the appellant.
There is nothing on record to show that either the preliminary enquiry report or the statements recorded therein, particularly, by the complainant/accused or Shri C.B. Gajjar, advocate, had been exhibited in regular inquiry. In absence of information in the chargesheet that such report/statements would be relied upon against the appellant, it was not permissible for the Enquiry Officer or the High Court to rely upon the same. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to the principle is required, whenever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even non- observance of the rule will itself result in prejudice. Thus, this principle is of supreme importance. (Vide: S.L. Kapoor v. Jagmohan, AIR 1981 SC 136; D.K. Yadav v. JMA Industries Ltd., (1983) 3 SCC 259; and Mohd. Yunus Khan v. State of U.P. & Ors., (2010) 10 SCC 539)"
The relied upon paragraphs in the judgement of the Hon'ble Apex Court in the case of Union of India & Ors vs. R.P. Singh (supra) by the learned counsel for the applicant are as under:
"13. We will be failing in our duty if we do not take note of the Digitally submission of Mr.W.A.Qadri that the decision is not an authority MADHU signed by because the tribunal had set aside the order of the disciplinary KUMARI MADHU KUMARI authority on the ground that it was a nonspeaking order. Be that as it may, when the issue was raised before this Court and there has been an advertence to the same, we are unable to accept the Page 8 of 12 O.A./1177/2011 submission of Mr. Qadri. The said decision is an authority for the proposition that the advice of UPSC, if sought and accepted, the same, regard being had to the principles of natural justice, is to be communicated before imposition of punishment. ...
26. We have referred to the aforesaid decision in extenso as we find that in the said case it has been opined by the Constitution Bench that non-supply of the enquiry report is a breach of the principle of natural justice. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 provides for supply of copy of advice to the government servant at the time of making an order. The said stage was in prevalence before the decision of the Constitution Bench. After the said decision, in our considered opinion, the authority should have clarified the Rule regarding development in the service jurisprudence. We have been apprised by Mr.Raghavan, learned counsel for the respondent, that after the decision in S.K.Kapoor's case, the Government of India, Ministry of Personnel, PG & Pensions, Department of Personnel & Training vide Office Memorandum dated 06.01.2014 has issued the following directions:
"4. Accordingly, it has been decided that in all disciplinary cases where the Commission is to be consulted, the following procedure may be adopted :-
(i) On receipt of the Inquiry Report, the DA may examine the same and forward it to the Commission with his observations;
(ii) On receipt of the Commission's report, the DA will examine the same and forward the same to the Charged Officer along with the Inquiry Report and his tentative reasons for disagreement with the Inquiry Report and/or the advice of the UPSC;
(iii) The Charged Officer shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the Inquiry report/advice of UPSC is in his favour or not.
(iv) The Disciplinary Authority shall consider the representation of the Charged Officer and take further action as prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA) Rules, 1965.
27. After the said Office Memorandum, a further Office Memorandum has been issued on 05.03.2014, which pertains to supply of copy of UPSC advice to the Charged Officer. We think it appropriate to reproduce the same:
"The undersigned is directed to refer to this Department's O.M. Digitally of even number dated 06.01.2014 and to say that it has been MADHU signed by decided, in partial modification of the above O.M. that a copy of KUMARI MADHU KUMARI the inquiry report may be given to the Government servant as provided in Rule 15(2) of Central Secretariat Services (Classification, Control and Appeal) Rules, 1965. The inquiry Page 9 of 12 O.A./1177/2011 report together with the representation, if any, of the Government servant may be forwarded to the Commission for advice. On receipt of the Commission's advice, a copy of the advice may be provided to the Government servant who may be allowed to submit his representation, if any, on the Commission's advice within fifteen days. The Disciplinary Authority will consider the inquiry report, advice of the Commission and the representation(s) of the Government servant before arriving at a final decision.""
10. The Hon'ble Supreme Court in the case of Union of India and another vs. T.V. Patel (Civil Appeal No. 2067 of 2007) decided on 19.04.2007 held that the Disciplinary Authority is not required to furnish a copy of the advice tendered by the Union Public Service Commission to the Charged Officer before the final order of penalty is passed, however, later in its judgement dated 16.03.2011 in the case of Union of India and others Vs. S.K. Kapoor (supra), the Hon'ble Apex Court has held that it is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same. The Hon'ble Apex Court also observed that there may be a case where the report of the Union Public Service Commission is not relied upon by the Disciplinary Authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. Accordingly, the CCS (CCA) Rules provide that where the UPSC are to be consulted, the following procedure should be adopted:
(a) The Disciplinary Authority shall forward or cause to be forwarded to UPSC for its advice:-
(i) a copy of the report of the Inquiring Authority together with its own tentative reasons for Digitally MADHU signed by disagreement, if any, with the findings of KUMARI MADHU KUMARI Inquiring Authority on any article of charge;
and Page 10 of 12 O.A./1177/2011
(ii) comments on the representation of the Government servant on the Inquiry Report and disagreement note, if any, with all the case records of the inquiry proceedings.
(b) On receipt of the UPSC advice, the Disciplinary Authority shall forward or cause to be forwarded a copy of the advice to the Government servant who shall be required to submit if he so desires, his written representation/ submission to the Disciplinary Authority within fifteen days. The Disciplinary Authority shall consider such representation and take action as prescribed in sub rules (4), (5) and (6) of Rule 15 of CCS (CCA) Rules, 1965.
11. The above procedure has not been followed in the case of the deceased applicant as is clear from the facts and submissions raised in the matter. It is also a fact that the penalty order was passed on 22.02.2011 which is before the judgement of the Hon'ble Apex Court in S.K. Kapoor (supra) case which was passed on 16.03.2011, yet, there is no gainsaying that the charged officer which is the deceased applicant in the present case has suffered because of a lost opportunity which should have been provided to him as per the principles of natural justice.
12. The main witnesses namely Shri Dharmendra Kumar and Shri Raas Bihari had also not showed up during the inquiry proceedings to identify and testify to having bought the forged tickets from the charged officer. The third charge regarding the applicant hiding the amount of Rs.67318/- in his almirah has also not been proved. The said amount has been deposited with the Railways treasury. The dissent note by the disciplinary authority was given to the charged officer belatedly (after about one and a half years). Also there is a violation of the stipulations mentioned Digitally MADHU signed by in para 704 and 705 of the Vigilance Manual which should have KUMARI MADHU KUMARI been followed in letter and spirit. Further, the respondents have earlier proposed 30% cut in the monthly pension of the applicant Page 11 of 12 O.A./1177/2011 for 10 years which finally culminated into total withholding of the pension permanently and this fact is very clear from the para 22 of the counter reply filed by the respondents. Now if we consider the punishment imposed upon the charged officer even without affording the above opportunity of making a representation in his defence explaining his position in reply to the report given by the UPSC which has mainly proved the charges on the basis of the charged officer's own admission and inability to offer any explanation, permanently withholding the pension of the applicant is a disproportionately harsh punishment which has led to financial suffocation of the applicant, and after his death, of his dependents. However, since the original applicant has since expired, no purpose would be served in remanding the matter back to the respondents for reconsideration. Thus, in view of the above facts, deliberations, case laws referred to by the applicant, and the principles of natural justice, the impugned order dated 22.02.2011 is hereby quashed and the respondents are directed to pass a fresh order regarding the payment of family pension to the widow of the late employee ( the late applicant) from the date she became eligible and also regarding the withholding of the pension to the late applicant till he was alive. It is made clear that a cut in pension should not be more than the original proposal of the respondents i.e. 30 % cut in the pension for ten years. The effect of that penalty will end with the death of the applicant and there should not be any deduction from the family pension of the legal heir of the late applicant.
13. Thus, the O.A. stands allowed in above terms. All associated M.A.s also stand disposed of. No costs.
(Mohan Pyare) ( Justice Om Prakash VII)
Member (A) Member (J)
Digitally Madhu
MADHU signed by
KUMARI MADHU
KUMARI
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