Central Administrative Tribunal - Mumbai
Dated This _Friday vs Union Of India on 10 May, 2013
1 O.A. No. 189/2010 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI ORIGINAL APPLICATION No.: 189 of 2010. Dated this _Friday, the 10th day of May, 2013. CORAM : Hon'ble Smt. Leena Mehendale, Member (A) Hon'ble Smt. Chameli Majumdar, Member (J) Rajesh Shankar Deorukhkar Ex-Peon, CSC Office, Churchgate, R/at. Pooja Apartment, Room No.7, Gr. Floor, Veer Savarkar Marg, Virar (East), Dist. Thane. .. Applicant (By Advocate Shri S.V. Marne) Versus 1. Union of India, through The General Manager, Western Railway, Head Quarters Office, Churchgate, Mumbai 400 020. 2. The Chief Security Commissioner, Railway Protection Force, Security Commissionerate, Western Railway Head Quarters, Churchgate, Mumbai 400 020. 3. The Dy. Chief Security Commissioner, Railway Protection Force, Security Commissionerate, Western Railway Head Quarters, Churchgate, Mumbai 400 020. ..Respondents (BY Advocate Shri V.S. Masurkar) 2 O.A. No. 189/2010 O R D E R Per : Smt. Chameli Majumdar, Member (J)
The applicant was working as Peon, CSC Office, Churchgate. He filed this O.A. challenging the order dated 26.09.2006 passed by the Respondent No. 4, being the disciplinary authority, the order dated 02.03.2007 passed by the Respondent No. 2, being the Revisional Authority and order dated 14/21.02.2007 passed by the Respondent No. 1, being the final appellate authority.
2. Along with this O.A., the applicant has filed a Miscellaneous Application No. 93/2010 for condonation of delay. In the said application for condonation of delay, the applicant submitted that he went under depression due to imposition of severe penalty of removal from service. The applicant also submitted that he was wrongly advised to await the final outcome of the criminal case. The applicant came to be acquitted in criminal case on 04.02.2008. After his acquittal he personally approached the respondents to allow him to resume his duties. The applicant had no source of income, therefore, he could not arrange for funds for filing the present O.A. The applicant had suffered social stigma because of false implication of serious charge of 3 O.A. No. 189/2010 rape against him. However, he could arrange for funds and thereafter filed this O.A. on the advise of a lawyer. We find that the applicant has been able to make out sufficient cause for filing this application beyond the prescribed time. This M.A. For condonation of delay is, therefore, allowed. Since this O.A. was admitted earlier by this Tribunal, we dispose of this O.A. on merit.
3. The facts of the case, briefly stated, is that while working as Peon, the applicant was arrested by Police on the allegation made by a lady for committing rape on 21.01.2005 as well as cheating her by fraudulently inducing her to marry. The applicant remained in custody up to 14.02.2005. On receiving information from the Police about arrest of the applicant, the applicant was placed under deemed suspension on 27.01.2005 w.e.f. 22.01.2005, being the date of his arrest by Police. A charge sheet dated 29.08.2005 was issued to him with the following charges :
(i) He remained 24.01.2005.
absent unauthorizedly from
(ii) He failed to intimate his office about his arrest by Bhandup, Mumbai Police.
(iii) Bhandup, Mumbai Police, arrested him in rape case under Section 376 of the IPC and submitted charge 4 O.A. No. 189/2010 sheet dated 27.04.2005.
4. An enquiry was conducted. The Inquiry Officer did not find that the charges were proved against the applicant. The disciplinary authority did not agree with the finding of the Inquiry Officer and issued a dissent note on 07.06.2006. However, the applicant did not submit any representation within time. The Disciplinary Authority passed his order on 26.09.2006 imposing the punishment of removal from service. The applicant submitted an appeal against the above order of the Disciplinary Authority. The Appellate Authority, by its order dated 16.01.2007 disagreed with the view of the Disciplinary Authority that Charge I and II were established against the applicant. According to the said Appellate Authority, Charge-III, which the Disciplinary Authority held as proved, did not constitute a charge and the matter was subjudice. The said Appellate Authority accepted the Inquiry Officer's finding and directed reinstatement of the applicant with immediate effect, which however shall be subject to review upon final outcome of the criminal case against him. The applicant was reinstated. Thereafter, the Respondent No. 2, being the Reviewing Authority, suo moto initiated review proceeding and issued a show cause notice on 5 O.A. No. 189/2010 05.02.2007 proposing to review the order of the Appellate Authority in exercise of powers under Rule 25 of Railway Servants (Discipline & Appeal) Rules, 1968. The Applicant submitted his reply to show cause notice dated 09.02.2007. The Revisional Authority, being Respondent No. 2, passed his order on 02.03.2007 holding that the applicant did not bring forward any new point in his reply and the applicant admitted that he did not inform superior authorities about his absence and arrest personally. The said authority confirmed the order of removal from service issued by the Disciplinary Authority, being Respondent No. 4 herein. The applicant thereafter preferred an appeal dated 11.04.2007 to Respondent No. 1, being the General Manager, Western Railway, against the order of Respondent No. 2, being the Revisional Authority. The said appeal was rejected vide order dated 14/21.05.2007. It was held by the Respondent No. 1 that all the points raised in the appeal were already considered and no new point was raised. It was further held that even though the criminal case was pending against the applicant but his conduct was unbecoming of a railway servant. The penalty of removal from service was rightly imposed on the applicant.
5. The respondents have filed their reply. The 6 O.A. No. 189/2010 contention of the respondents is that the applicant had not informed to his official superior about any sort of alleged harassment of false FIR by one Smt. Vanita Jadhav or Pratibha. His version that Senior Police Inspector, Bhandup Police Station informed the respondent about his arrest and judicial custody is not denied. The concerned office could know about his arrest from the report of Police on 24.01.2005 only. But he was supposed to informed the office about cause of his absence from duty as well as his arrest by the Police, but he failed to do so violating Rule 3.1(ii) Railway Service (Conduct) Rules, 1966. The applicant was placed under suspension with effect from 22.01.2005 and was issued with a major penalty charge-sheet under Rule 9 of Railway Servants (D&A) Rules, 1968 on 29.08.2005. The charges at Sl. No. 1 and 2 are proved on the basis of documentary evidence. According to the statement of Shri Alex Malu, OS-II, recorded during the DE, the applicant had not informed the administration about his arrest by Police on 22.01.2005. As per the statement of Shri Mahesh Patel, Senior Clerk, recorded during the DE, the applicant remained unauthorized absent from 24.01.2005 without any intimation. The above facts are documentary evidence to provide that he remained 7 O.A. No. 189/2010 unauthorized absent since 24.01.2005 and his failure to inform the administration about his arrest. The third charge about his arrest under Section 376 of IPC by the Police in a rape case is very serious offence and was an act of unbecoming of a Railway Servant. Even though the matter was pending trial in the Court, the departmental action taken against the employee for misconduct and misdemeanor is lawful and justified as departmental proceedings in the ambit of Railway Servants (D&A) Rules, 1968.
6. We have heard Shri S. V. Marne, Learned Counsel for the applicant and Shri V.S. Masurkar, Learned Counsel for the Respondents. The pleadings along with documents annexed have also been perused.
7. The applicant has annexed the report of the Inquiry officer. The Inquiry Officer came to the conclusion that the charges against the applicant was not proved. According to the report of the Inquiry Officer, the Charge No. I, being unauthorized absence from 24.01.2005, cannot be held to be proved since the applicant was already placed under suspension w.e.f. 22.01.2005 vide order of suspension dated 27.01.2005. When the applicant came out from the Police custody on bail, the applicant was already under suspension. The other authorities, being the Disciplinary Authority and 8 O.A. No. 189/2010 the Revisional Authority, heavily relied on the muster roll produced by the prosecution witness, which showed that the applicant did not attend his duties from 24.01.2005.
8. The Disciplinary Authority relied on the statement of one Shri Alex Malu, OS-II recorded at the time of Inquiry to come to the findings that the Administration was not informed about his arrest and his further judicial custody. The Disciplinary Authority had relied upon the statement of Shri Mahesh Kumar, Senior Clerk and found that the Applicant remained unauthorisedly absent from 24.01.2005 without any intimation. The said Shri Mahesh Kumar deposited a zerox copy of the Muster Roll and the Disciplinary Authority had relied on the said Muster Roll came to the findings that guilt of unauthorised absence was proved. The Disciplinary Authority went further to say that the three charges about his arrest under offence of rape case was very serious offence and was an act of unbecoming of a Railway Servant. The Disciplinary Authority imposed the punishment of Removal from service.
9. The first Appellate Authority differed with the findings of the Disciplinary Authority and agreed with the finding of the Inquiry Officer that the Charge No. 1 and 2 were not proved. The said 9 O.A. No. 189/2010 Appellate Authority held that the applicant was an accused in a criminal case which was under trial. It would be premature to speculate and form any opinion about his conduct. The said first Appellate Authority directed to reinstate the applicant subject to review upon the final outcome of the criminal case.
10. The Revisionary Authority suo moto reviewed the order of the first Appellate Authority and substituted the findings of the Disciplinary Authority relying on the same documents which are relied by the Disciplinary Authority. The said Revisionary Authority, however, admitted that his arrest was within the knowledge of the Administration given by the police on 24.01.2005. The said Revisionary Authority referred Rule 3.2(ii) of Railway Service (Conduct) Rules, 1966 and held that as per this Rule the Applicant failed to inform his whereabouts. The said para 3.1(ii) of Railway Service (Conduct) Rules, 1966, says that every Railway employee shall maintain devotion to duty.
11. The Revisional Authority did not accept the Inquiry Officer's findings that the Applicant being under suspension from 22.01.2005 cannot be said unauthorisedly absent from 24.01.2005 and he called such findings of the Inquiry Officer as illogical.
10 O.A. No. 189/2010There is an apparent self contradiction in the finding of the Revisionary Authority where he says that "the Applicant was put under suspension from 22.01.2005 but he was supposed to turn up for duty which he failed and did not report for duty. He was marked absent as per Rule as there was no information about his arrest from any corner." Admittedly in the first para of the order it is clearly mentioned that his arrest was informed by the police and Administration was in the knowledge of his arrest and that is why he was placed under deemed suspension.
12. It is not understood how a suspended employee could attend his duty during the period of suspension. That apart, the charge of unauthorized absence from 24.01.2005 is incomplete. The period of unauthorized absence has not been mentioned. It is not mentioned up to what date the applicant was unauthorizedly absent. Charge No. 1 is not only incomplete but highly illogical. The Charge No.1 being unauthorized absence from 24.01.2005 and the conclusion arrived at by the Disciplinary Authority and the Revisional Authority that the said charge was proved relying on the statements and muster roll is highly illogical and unreasonable. The finding of the Disciplinary Authority and the Revisional 11 O.A. No. 189/2010 Authority with regard to Charge No. 1 cannot be sustained.
13. The applicant was placed under suspension w.e.f. 20.01.2005 as such there was no question of his attending duty or remaining present on 24.01.2005 and onwards. The order of suspension was revoked on 28.12.2005. According to the applicant, he went to office and requested to allow him to resume his duties after coming out from jail on bail.
14. Regarding Charge-II, the Inquiry Officer came to his finding that the applicant was not in a position to send intimation about his arrest to this office while he was in judicial custody. However, on his request, an intimation was sent to the office. The respondent no. 2, being the Revisional Authority, in his order mentioned about various facilities in the jail for communication and held that the charge-II was proved because the applicant failed to intimate to his office about his arrest by Bhandup, Mumbai Police. It is true that there was no separate intimation by the applicant to his office but the applicant at the very first instance in his submission before the Inquiry Officer submitted that on his request the Bhandup Police intimated about his arrest to his office. The 12 O.A. No. 189/2010 Disciplinary Authority and the final Appellate Authority failed to consider this aspect.
15. Regarding the third charge, the Disciplinary Authority has not made any comments and only held Government can take action against an employee for misconduct and misdemeanor even when he is facing a criminal charge in the Court of Law.
16. The final Appellate Authority being the General Manager of Western Railway after referring to various events merely says that he went through the relevant papers and all related documents of the case and he held that the employee was already being proved to be guilty of the charges. Therefore, he simply concurred with the findings of the Revisionary Authority. The said final Appellate Authority found the conduct of the Applicant to be unbecoming of the Railway Servant. Rule 3(i)(ii) of Railway Service (Conduct) Rule says that Railway servant will do nothing which is unbecoming of the Railway Servant.
17. When these impugned orders were issued, the Session trial was pending in respect of the offence which was the subject matter of Charge-III. None of the authorities had the occasion to take into consideration the order of acquittal passed by the competent court of law at the relevant time. The 13 O.A. No. 189/2010 order of the disciplinary authority said that arrest under Section 376 is very serious offence and unbecoming of a Railway servant. Similarly, the order of the final Appellate Authority said the conduct of the applicant was unbecoming of a railway servant in view of various misconduct. Such findings of Disciplinary Authority and Revisional Authority are absolutely pre-supposing the guilt of the applicant. It is well settled that there will be presumption of innocence till an accused is proved to be guilty beyond all reasonable doubt. However, there is no dispute that a disciplinary enquiry and a criminal trial could proceed simultaneously.
18. The applicant in this O.A. has annexed judgment and order of the Session Court dated 04.02.2008 passed in Session case No. 867/2005 which was initiated on the basis of FIR of one Smt. Pratibha Jadhav. In the said Session case, the Learned Judge after detail discussion of all the issue held that the prosecution failed to establish that accused committed rape on prosecutrix or cheated her by falsely inducing her for marriage and having sexual intercourse. The applicant was acquitted by the Session Judge.
19. The Learned Session Judge, in view of delay 14 O.A. No. 189/2010 of one year, held -benefit of doubt belongs to accused, but actually considered all the material records and evidence before arriving at a conclusion that the prosecutrix failed to establish any offence against the applicant. The court disbelieved the allegation of the prosecutrix that the applicant, being the accused, had forceable sexual intercourse with the prosecutrix. The Session Court further held that the words of prosecutrix that the accused promised to marry her no where inspired his confidence.
20. Revision was taken by the Revisional Authority suo moto to consider the order of the Appellate Authority. It appears that the said order of Revision suffers from infirmity in respect of findings on Charge No.I as discussed herein before. The said Revisionary Authority has not come to any finding with regard to Charge No.III and in our view Charge No.III rightly as held by the Inquiry Officer and the first Appellate Authority does not constitute any charge and the said criminal case mentioned in the said charge was ultimately held in favour of the Applicant on specific findings that the prosecution failed to establish the charge of rape and cheating with the promise of marriage.
21. With regard to Charge No. II, the said 15 O.A. No. 189/2010 Revisionary Authority did not discuss about the findings of the Inquiry Officer that the Applicant informed administration about his arrest through the police as revealed in the Inquiry proceeding. The Revisionary Authority also failed to take into consideration the defence of the Applicant that the Applicant was not in a position to inform the office in person. However, on release from the jail, he submitted an application informing about his arrest and requesting for revocation of suspension order.
22. The applicant in his reply to the show cause notice issued by the Revisional Authority narrated the entire incident. He submitted that after his release from police custody he had reported to CSC office and submitted his application seeking help from the department. After his release, he never left from Headquarters without permission. Since ministerial staff are not required to attend office regularly as per D.A.R. Rules, he did not attend the office. He went to the office, however, to enquire about revocation of his suspension. He was not issued with a single note to report for duty and not a single day has been treated as leave without pay. Had he been asked to attend the office regularly, he would have definitely attended the office regularly. In respect of Charge No. 2, his submissions are as 16 O.A. No. 189/2010 follows :
"During the enquiry itself I have clarified my position that I was arrested by Bhandup Police on the alleged charge of rape on 21.01.2005 at 17.35 hrs from my house at Virar. After my arrest, I had informed that Inspector about my Rly. Service, and on that basis Sr.PI/Bhandup Police Station sent a letter No.nil dated 22.01.2005 being Saturday, the same was delivered on Monday and was received in CSC office on 24.01.2005. Since I was in police custody, they were very cruel to me, I was not given any chance contact the office that time. As per PI's letter I was placed deemed under suspension from 22.01.2005 by Dy.CSC. I was in Police custody till 14.02.2005. Before my arrest by Police on 21.01.2005, I had given an application in CSC office stating the situation which I was facing at that time. Miss Pratibha S Jadhav and family had made the police complaint which was out of broken marriage proposal due to family disagreement. This matter I had informed to CSC office on 17.01.2005."
23. We have not found a single discussion either in the order of the Disciplinary Authority or in the order of the Revisional Authority in respect of the submission and/or contention of the applicant. The disciplinary authority as well as the revisional authority held that the applicant was guilty of three charges and imposed the punishment of removal for service. We have already discussed that the first charge and the finding on the first charge by the Disciplinary Authority, Revisional Authority and the final Appellate Authority suffer from basic logic and reason.
24. Regarding second charge the authorities failed 17 O.A. No. 189/2010 to take into consideration the plea of the applicant like his remaining in police custody, torture and such other adverse situation in prison and police custody. However, his plea at the very first instance before the Inquiry Officer was that he informed the administration through the police and the knowledge of the authority in this regard is also an admitted fact.
25. The Revisionary Authority has stated that the Departmental Inquiry is quasi judicial proceedings. Therefore, the authorities should act judicially, logically and rationally. Their conclusion must be supported by reasons and based on materials on evidence. The word 'Quasi-Judicial' has been described in Black's Law Dictionary as "a term applied to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature."
26. Rule 25(A) dealing with review envisages that the president at any time either on his own motion or otherwise review any order passed under this rule when any new material or evidence which could not be produced or was not available at the time of passing 18 O.A. No. 189/2010 the order under review and which has the effect of changing nature of case has come or has been brought to his notice. However, in the instant case, the Applicant filed an appeal to the General Manager against the order of Revisionary Authority and the said appeal was disposed of by the General Manager on 14.05.2007. We have already dealt with the said order herein before.
27. In view of acquittal of the applicant from the said criminal case and also in view of the orders passed by the Session Judge holding that the prosecution failed to establish that accused committed the offence of rape or cheating by falsely inducing the prosecutrix for marriage, the third charge loses its force.
28. The authority under Rule 25(5) of the Railway Servants (Discipline & Appeal) Rules, 1968, is the revisional authority. In the instant case, the Disciplinary Authority's order is merged with the order of the Revisional Authority. The punishment of removal from service was imposed by the authorities upon finding of guilt of the applicant on three articles of charge. We have discussed that the first charge has no leg to stand. Regarding second charge, the competent authorities failed to take into consideration the important aspects and 19 O.A. No. 189/2010 the submissions of the applicant, as already discussed hereinbefore. Regarding third charge, the authority's pre-supposition of the guilt of the applicant in criminal case cannot be sustained. The matter is no more subjudice and in view of finality of the criminal case and his acquittal, it would be incumbent upon the authorities to consider the case afresh in the light of this judgment as well as the judgment passed by the Session Judge in the criminal case. The Applicant is also directed to make a fresh representation enclosing all the relevant documents including the judgments and order passed by the Session Court before the appropriate Disciplinary Authority within two weeks from the date of receipt of this order. The said Disciplinary Authority is directed to take a decision and pass an appropriate reasoned order within six weeks from the date of receipt of the copy of the representation of the Applicant.
29. Having regard to the discussions made herein above, we set aside the order passed by the Disciplinary Authority, Revisional Authority as well as the second Appellate Authority, being the General Manager.
30. We direct the Disciplinary Authority to consider the case of the applicant afresh taking into 20 O.A. No. 189/2010 consideration the order of acquittal of the applicant passed by the Session Judge in Session's case No. 867/2005.
31. The O.A. stands disposed of in terms of above directions. No order as to costs.
(Smt. Chameli Majumdar) (Smt. Leena Mehendale) Member (J) Member (A) os*