Karnataka High Court
Union Of India vs Sri. Nagesh on 4 March, 2024
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2024:KHC:9014-DB
WP No. 5482 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT PETITION NO. 5482 OF 2024 (S-CAT)
BETWEEN:
1. UNION OF INDIA,
REP. BY SECRETARY,
MINISTRY OF RAILWAYS,
NO.256/A, 'RAILBHAVAN'
RAISINA ROAD,
NEW DELHI-110 001.
2. CHIEF MEDICAL SUPERINTENDENT,
RAILWAY HOSPITAL,
M.G. RAILWAY COLONY,
SOUTH WESTERN RAILWAYS,
Digitally signed by BENGALURU-560 023.
K S RENUKAMBA
Location: HIGH
COURT OF 3. THE ADDITIONAL CHIEF MEDICAL SUPERINTENDENT
KARNATAKA RH/SBC & DA,
MEDICAL DEPARTMENT,
SOUTH WESTERN RAILWAYS,
BENGALURU-560 023.
4. CHIEF MEDICAL SUPERINTENDENT &
APPELLATE AUTHORITY,
SOUTH WESTERN RAILWAY,
BENGALURU-560 023.
5. PRINCIPAL CHIEF MEDICAL DIRECTOR &
REVISION AUTHORITY,
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NC: 2024:KHC:9014-DB
WP No. 5482 of 2024
CENTRAL RAILWAY HOSPITAL,
SOUTH WESTERN RAILWAYS,
GADAG ROAD,
HUBBALLI-580 020.
6. THE DIVISIONAL RAILWAY MANAGER,
SOUTH WESTERN RAILWAYS,
RAILWAY DIVISION OFFICE,
BENGALURU DIVISION-560 023.
...PETITIONERS
(BY SRI. ARAVIND KAMATH, SOLICITOR GENERAL OF INDIA
ALONG WITH SRI. H. SHANTHI BHUSHAN, DSGI, ADVOCATE)
AND:
SRI. N. MANJUNATH,
S/O. SRI. NANJUNDAPPA,
AGED ABOUT 33 YEARS,
R/AT SHETTIGERE VILLAGE,
KUNIGAL POLICE STATION,
KUNIGAL TALUK,
TUMKUR DISTRICT-572 130.
...RESPONDENT
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO a)CALL FOR THE
RECORDS b)SET ASIDE THE ORDER DATED 10/10/2023
PASSED IN OA NO.170/00324/2022 BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL AT BANGALORE BENCH,
BANGALORE (ANNEXURE-A) AS UNTENABLE.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, RAJESH RAI K, J., MADE THE
FOLLOWING:
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NC: 2024:KHC:9014-DB
WP No. 5482 of 2024
ORDER
Though this matter is listed for preliminary hearing, the matter is taken up for final disposal.
2. For the order proposed, notice to the respondent is dispensed with.
3. The petitioners, in this writ petition, have challenged the legality and correctness of the order passed in Original Application No.170/00324/2022 dated 10.10.2023 by the Central Administrative Tribunal, Bangalore (for short 'the Tribunal'), wherein the Tribunal disposed of the application in terms of the order passed in O.A.No.170/00033/2023 dated 07.09.2023 by setting aside the penalty advice dated 27.05.2021 issued by petitioner No.3 and the order dated 12.05.2022 issued by petitioner No.5. Further, the matter was restored to the file of Disciplinary Authority with a direction to petitioner No.3-Disciplinary Authority to conduct a regular enquiry in accordance with law and to take an appropriate decision in an expedite manner, in any event not later than six months from the date of receipt of the certified copy of the order. Further, the Tribunal directed the Disciplinary Authority -4- NC: 2024:KHC:9014-DB WP No. 5482 of 2024 to take a decision inasmuch as the respondent whether to be reinstated or to be placed under suspension until the disciplinary proceedings are concluded.
4. The facts that are apposite from the record, which are necessary for disposal of this writ petition, are as under:
The respondent, who was appointed as Safaiwala/CHI/COL/UBL, Hubli Division of South Western
Railways in Pay Band of Rs.5200-20200 + 1800 GP, under the order of Inter Divisional Mutual Transfer to SBC/Bangalore Division of South Western Railways vide O.O.No.22/Medical/2014 dated 09.07.2014, had been reported to Medical Department of South Western Railways at Railway Health Unit, Yeshwanthpur, Bangalore Division on 11.07.2014. On 14.05.2021, a raid was conducted by the Post Commander/RPF/Yeshwanthpur, Bangalore Division and one M.S.Karibasayya, who was working as Ambulance Driver, was arrested while selling 1 vial of Remdesivir Injection. Thereafter, two others were also arrested and based on their confession statement, the respondent was arrested. During the course of investigation, it has been found that the respondent colluding with the others were selling vial of lifesaving drug at -5- NC: 2024:KHC:9014-DB WP No. 5482 of 2024 Rs.25,000/- to Rs.40,000/-. Accordingly, a case has been registered in Crime No.4/2021 under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966 (for short 'RP (UP) Act, 1966) and the respondent and others were produced before the Magistrate, Special Economic Court at Bangalore and sent to judicial custody.
In connection with the above incident, the respondent was placed under deemed suspension with effect from 14.05.2021 until further orders in terms of Rule 5 (2) of the Railway Servants (Discipline and Appeal) Rules, 1968 (for short 'RS (D & A) Rules, 1968') vide order No.B/MD/227/RH/MN/2021 dated 17.05.2021. Further, considering the circumstances and gravity of the offence, the Department has decided to invoke Rule 14 (ii) of RS (D & A) Rules, 1968 and the respondent was dismissed from service with immediate effect vide Penalty Advice No.B/M/227/MN dated 27.05.2021. Against the said order, the respondent submitted an appeal under Rule 18 of RS (D & A) Rules, 1968 vide letter dated 28.06.2021. The Appellate Authority, after perusal of the documents, upheld penalty imposed by the Disciplinary Authority vide order dated 06.12.2021. Challenging -6- NC: 2024:KHC:9014-DB WP No. 5482 of 2024 the same, the respondent filed a Revision Petition on 24.03.2022 under Rule 25 of RS (D & A) Rules, 1968 to the Revising Authority namely GM SWR Hubballi, but the said revision also dismissed vide order dated 12.05.2022. Aggrieved by the same, the respondent approached the Tribunal in filing Original Application No.170/00324/2022. The Tribunal, after considering the facts and circumstances of the case, allowed the application filed by the respondent vide order dated 10.10.2023 as stated supra. The validity of the said order is challenged by the Union of India in this writ petition.
5. We have heard the Sri Arvind Kamath, learned Solicitor General of India (SGI) for Sri H.Shanthi Bhushan, learned DSGI for the petitioners and perused the records.
6. It is the primary contention of the learned SGI appearing for the petitioners that the Tribunal erred while passing the impugned order by not considering the circumstances and the gravity of the offence committed by the respondent. He would submit that the respondent had entered into a criminal conspiracy with other Railway employees and for illegal gain, sold lifesaving Remdesivir Injection when the entire -7- NC: 2024:KHC:9014-DB WP No. 5482 of 2024 nation was reeling under lock down/restriction due to Covid-19 pandemic. The respondent confessed himself to that effect and as such, a criminal case has been registered against the respondent in Crime No.4/2021 under Section 3(a) of RP (UP) Act, 1966, thereby the reputation of the Railway Department being tarnished. Hence, imposition of the major penalty was just and proper.
7. Learned SGI would also emphasis to Rule 14 of RS (D & A) Rules, 1968 i.e., Special procedure in certain cases and submits that the Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit, provided that the Railway servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case falling under clause (i). Hence, according to the learned SGI, the Disciplinary Authority has recorded cogent and valid reasons that it was not possible to hold an inquiry and had passed an order of penalty. In such circumstances, there is no violation of principles of natural justice since the same is subject to the provision of the Act and Rules. Sub-rule (ii) of Rule 14 of RS (D & A) Rules, 1968 provides for exception and the same has been exercised -8- NC: 2024:KHC:9014-DB WP No. 5482 of 2024 by assigning thereto which cannot be found fault within as much as appellant and Revision authorities have considered the contentions of the respondent. Accordingly, learned SGI prays to set aside the order passed by the Tribunal in O.A.No.170/00324/2022.
8. We have carefully perused the records made available before us including the impugned order passed by the Tribunal.
9. While passing the impugned order, the Tribunal relied on the decision passed by it in O.A.No.170/00033/2023 dated 07.09.2023 in the case of Sri Somesh Varghese vs. General Manger, South Western Railway, Hubballi and others. The facts and circumstances of the said order are similar to that of the case on hand.
10. It could be seen from the Penalty Advice dated 27.05.2021 passed by the petitioners' authority, the authority concluded that the respondent has involved himself in criminal conspiracy, involving severe moral turpitude as he has willfully defrauded railway administration by holding a Government position. The said finding of the authority is only based on the -9- NC: 2024:KHC:9014-DB WP No. 5482 of 2024 registration of FIR in Crime No.4/2021. The respondent was implicated in the said crime based on his confession statement. Before conducting any investigation by the concerned police in Crime No.4/2021 and without providing any opportunity to the respondent to prove his innocence, the authority hurriedly passed the Penalty Advice. Though the same was questioned by the respondent by preferring an appeal to Chief Medical Superintendent, Railway Hospital, Begnaluru, the said authority also not considered the plea of the respondent. Further, the Disciplinary Authority without holding any inquiry by invoking Rule 14 (ii) of RS (D & A) Rules 1968 imposed major penalty of dismissing the respondent from the service vide order dated 27.05.2021. Nevertheless, the Disciplinary Authority also failed to consider the representation submitted by the respondent in a manner know to law. By close scrutiny of the order passed by the Disciplinary Authority would indicate that the same was passed based on preponderance of probabilities without proving the guilt of the respondent beyond reasonable doubt. The reason assigned for the same by the Disciplinary Authority is that due to Covid-19 pandemic, it would possible to hold an inquiry in the manner provided in RS (D & A) Rules 1968.
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NC: 2024:KHC:9014-DB WP No. 5482 of 2024 Hence, a careful perusal of the reasoning of the Disciplinary Authority and the facts and circumstances of the case, it could be easily gathered that the orders passed by the Disciplinary Authority and the Appellate Authority are against the principles of natural justice and without providing proper opportunity to the respondent to put forth his case/defence in the matter. The Honble Apex Court in the case of Tarsem Singh vs. State of Punjab and others reported in 2006 (13) SCC 581, in paragraph Nos.10 & 11, held as under:
"10. It is now a well-settled principle of law that a constitutional right conferred upon a delinquent cannot be dispensed with lightly or arbitrarily or out of ulterior motive or merely in order to avoid the holding of an enquiry. The learned counsel appearing on behalf of the appellant has taken us through certain documents for the purpose of showing that ultimately the police on investigation did not find any case against the appellant in respect of the purported FIR lodged against him under Section 377 IPC. However, it may not be necessary for us to go into the said question
11. We have noticed hereinbefore that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of
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NC: 2024:KHC:9014-DB WP No. 5482 of 2024 dismissal was passed, inter alia, on the ground that there was no need for a regular departmental enquiry relying on or on the basis of a preliminary enquiry. However, if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the appellant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice. The appellate authority, as noticed hereinbefore, in its order dated 24-6-1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefore was available on record. It is further evident that the appellate authority also misdirected himself in passing the said order insofar as he failed to take into consideration the relevant facts and based his decision on irrelevant factors."
11. On careful perusal of the law laid by the Hon'ble Apex Court in the aforesaid case, we are of the considered opinion that the Tribunal has rightly set aside the orders passed by the authorities and restored the matter to the file of the Disciplinary Authority. Hence, we find no good reasons to interfere with the order passed by the Tribunal.
12. In view of the above discussion, we proceed to pass the following:
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NC: 2024:KHC:9014-DB WP No. 5482 of 2024 ORDER
i) The writ petition, being devoid of merits, is dismissed.
ii) However, the Disciplinary Authority i.e., petitioner No.3 is directed to conduct the regular enquiry in accordance with law and take an appropriate decision in an expedite manner, in any event not later than three months from the date of receipt of certified copy of this order.
iv) The rest of order/observation made by Tribunal stands intact.
Sd/-
JUDGE Sd/-
JUDGE VM List No.: 1 Sl No.: 20