Central Administrative Tribunal - Allahabad
Satya Prakash Mishra vs General Manager N C Rly on 1 May, 2018
(RESERVED ON 06.02.2018)
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH
ALLAHABAD
This the 01st day of MAY 2018.
ORIGINAL APPLICATION NO. 1028 OF 2015
HON'BLE MR. JUSTICE DINESH GUPTA, CHAIRMAN.
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A).
1. Satya Prakash Mishra, S/o Brahma Dutt Mishra, R/o House No.
579, Railway Officers Colony, Agra Cantt.
...............Applicant.
VER S U S
1. Union of India through General Manager, North Central Railway,
Subedarganj, Allahabad.
2. Divisional Railway Manager, North Central Railway, Agra.
3. Senior Divisional Personnel Officer, North Central Railway, Agra.
4. Chief Vigilance Officer in the Office of General Manager, North
Central Railway, Subedarganj, District-Allahabad
.................Respondents
Advocate for the Applicant : Shri S P Mishra, the applicant
appeared in person
Advocate for the Respondents : Shri Chanchal Kumar Rai
ORDER
(Delivered by Hon'ble Mr. Gokul Chandra Pati, Member-A) The present Original Application (in short OA) has been filed by the applicant under Section-19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
(i) To issue an order or direction in the suitable nature quashing the impugned charge sheet dated 01.07.2015 issued by the Deputy General Manager - respondent no. 2 (Annexure No. A-
1 to this Original Application with Compilation No. I).
(ii) To issue an order or direction in the suitable nature directing the respondent authorities, not to interfere in the peaceful functioning of the applicant at the present place of posting. 2
(iii) To issue any order or direction, which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(iv) To award the cost of the application to the applicant.
2. The brief facts of the case as stated in the OA are that while the applicant was working as Senior Divisional Engineer, NCR, Allahabad, the respondents in pursuance of the notification dated 15.02.2012 notified a departmental examination for the post of Senior P.W.S in the pay scale of Rs. 9300- 34800 + grade pay of Rs. 4200/- against 25% Limited Departmental Competitive Examination (in short LDCE) Quota in Engineering Department. The applicant was entrusted with the work of evaluating the answer scripts for the aforesaid examination, which was held and thereafter, its result was declared on 11.07.2012 whereby certain candidates qualified in the examination. Thereafter, a letter dated 26.11.2012, was issued by the D.R.M. (P), N.C.R., Agra by which the provisional select list/panel was cancelled for reasons mentioned to be due to unavoidable administrative ground.
3. Some of the candidates who appeared in the aforesaid examination filed OA No. 1771 of 2012 before this Tribunal challenging the cancellation order dated 26.11.2012. Vide order dated 03.07.2012 (Annexure No. A-2 to the OA), the said OA was allowed in favour of the selected candidates and it was directed that the select panel dated 11.07.2012 be kept intact excluding the seven candidates against whom the vigilance department had detected irregularities in connection with awarding of marks. Similarly, another OA no. 511 of 2013 was also filed 3 before this Tribunal by some other candidates, who were also empanelled by means of panel dated 11.07.2012. The said OA was also allowed vide order dated 01.04.2014 (Annexure No. A-3 to the OA) directing the respondents to complete the selection process by separating seven identified candidates and declare the result of the rest of the candidates on panel within three months. The respondents filed appeal before the Hon'ble High Court against the orders passed by this Tribunal and the Hon'ble High Court vide order dated 17.07.2014 (Annexure No. A-4 to the OA) affirmed the orders passed by this Tribunal.
4. Accordingly, the aforesaid selection process was finalized by the respondents. Thereafter, the respondent no. 2 issued the impugned memorandum of charge sheet dated 01.07.2015 (Annexure No. A-1 to the OA) to the applicant with the charge that the applicant while evaluating the answer sheet for the selection of Senior P.W.S. has violated the instructions and the guide-lines for members of Selection Board circulated vide Railway Board Letter No. E (NG) 1-98/PM-1/17 dated 20.12.1999 for evaluation of answer sheet as during evaluation serious discrepancies such as awarding marks for wrong answers and not awarding marks for correct answers in the answer sheet were detected. The applicant submitted his reply on 22.07.2015 against the impugned charge sheet mentioning that no mistake was committed by him while evaluating the answer sheets. The applicant has filed the present OA challenging the impugned charge sheet dated 01.07.2015 (Annexure No. A-1 to the OA).
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5. It has been submitted in the OA that the applicant being one of the devoted officers, discharged his duty to the best of his ability and knowledge while evaluating the answer sheets for the selection to the post of Senior P.W.S. and he had followed all the instructions and guidelines circulated vide Railway Board's Letter dated 20.10.1999. After evaluation, the answer sheets were handed over to the Personnel Department as per instructions. Later, in one of the answer sheets, a coding KPM was mentioned, however, at the time of evaluating the answer sheet by the applicant, there was no over writing/cutting in the answer sheets. It is stated in the OA that the vigilance, whose work is only to detect the irregularities in the matter, re-evaluated the answer sheet of one Shri Ram Gopal and Shri Sohan Lal, whose marks were awarded by the applicant equal because they had solved the question no. 9 (v) and as per the manual para 1001, but in re-evaluation process, the Vigilance Department declared Shri Ram Gopal as failed and Shri Sohan Lal was declared passed, even though both of them should have been awarded equal marks as per relevant provision of the manual.
6. It is further stated in the OA that the alleged coding of KPM in the answer sheet of one Shri Kalyan Prasad Meena was not found in the copy of the answer sheet sought under the R.T.I., (Annexure No. A-6) meaning thereby that the allegation leveled against the applicant is false. It has also been stated that there were three members of examination committee who were equally responsible for any irregularities and the applicant cannot be held responsible alone for the discrepancy. It has been alleged in the OA that the answer sheets were tampered with by the 5 higher authorities concerned apparently with the intention to get the examination cancelled so as to select their own persons.
7. The respondents have filed counter affidavit by which it is stated that the charge sheet dated 01.07.2015 under Rule-9 of the Railway Servant (Discipline and Appeal) Rules, 1968 (in short DA&R, Rules, 1968) was issued to the applicant for indulging in serious discrepancies such as awarding marks for wrong answer and not giving marks for the correct answer. He also evaluated an answer script of a candidate, who had revealed his identification marks on the answer script, which was not to be evaluated as per rules. It was also observed that objective type answer of some candidates were different from the answer given in model answer & in spite of that, the applicant as an evaluator awarded marks for such answers which violated the Railway Rules circulated by the Railway Board's letter dated 20.10.1999. The applicant has already submitted his reply to the aforesaid charge sheet and further proceedings in respect of the charge sheet is in process. Thus, the applicant should not have approached this Tribunal as the proceedings are under progress and the applicant will be given reasonable opportunity during the inquiry and after finalization of the same, he will have a right to make representation on the said inquiry report as per rules before the disciplinary authority takes further action in the matter. He will have a right of appeal under Section 18 of the DA&R, 1968.
8. The respondents have denied that any tampering was done by the personnel department or by higher authorities as alleged in the OA. It 6 has also been stated that there was no occasion for the vigilance department to re-evaluate the answer booklet of the candidates. The role of the vigilance is only of an advisory nature and that too on the basis if discrepancies/irregularities detected during investigation of answer booklet. In fact, during the investigation, it was revealed that the marks in respect of Shri Ram Gopal and Shri Sohan Lal in reference to question no. 9 (v) was wrong, but the applicant awarded marks on such answers.
9. The applicant has filed a supplementary affidavit by which it has been stated that during the pendency of the OA, the respondents have issued a transfer order dated 04.09.2015 (Annexure No. SA-2), transferring him from Agra to Allahabad and thereby replacing him from a sensitive post to a non sensitive post. The applicant was working as Sr. Divisional Engineer-II at Agra and now he is being posted to the post of Principal/IRTMTC at Allahabad. The applicant challenged the aforesaid transfer order before this Tribunal by filing OA No. 1226 of 2015 and this Tribunal vide order dated 11.09.2015 (Annexure No. SA-3) directed the applicant to furnish a representation stating all his grievances before the respondents and the respondents on receipt of the representation were directed to decide the representation within a period of seven days from the date of receipt of representation. In compliance of the order dated 11.09.2015 passed by this Tribunal, the applicant furnished a representation dated 15.09.2015 (Annexure no. SA-4) before the respondents. The respondents rejected the representation of the applicant vide order dated 24.09.2015 (Annexure No. SA-5) stating therein that the applicant's transfer has been made on the advice of 7 Chief Vigilance Commissioner (in short CVC) and also that as the applicant was charged sheeted on the insistence of CVC, hence he cannot be posted on sensitive post and accordingly he was transferred from Agra to Allahabad. It has been further stated in the supplementary affidavit that there is a Railway Board Circular which provides that during contemplation of departmental inquiry, an employee cannot be transferred from one place to another place till the completion of the inquiry. The applicant has been punished by the respondents while transferring and replacing him from the sensitive post to non-sensitive post, therefore, further question does not arise to proceed with the departmental inquiry pursuant to the impugned charge-sheet dated 01.07.2015 which would amount to double jeopardy.
10. Both the parties have also filed their respective written submissions. The applicant in his written submission has reiterated the facts stated in the OA as well as the supplementary affidavit. The applicant has also annexed copies of following judgments alongwith the written submission:-
(i) Judgment dated 16.12.2008 passed by the Hon'ble Supreme Court in Civil Appeal No. 7308 of 2008 arising out of SLP (Civil) No. 3516 of 2007) - Somesh Tiwari Vs Union of India & Ors
(ii) Judgment dated 30.04.1991 passed by the Hon'ble Supreme Court in Civil Appeal No. 2123 of 1991 with Writ Petition No. 1282 of 1989 - Nagaraj Shivarao Karjagi Vs Syndicate Bank Head Office
(iii) Judgment Dated 13.10.1992 passed by the Hon'ble Supreme Court in the case of State Bank of India and Others Vs D.C. Aggarwal and Another
(iv) Judgment dated 28.01.2015 passed by this Tribunal in OA No. 63 of 2011 - Kunwar Fateh Singh Vs UOI & Ors.8
(v) Judgment dated 11.11.2013 passed by this Tribunal in OA No. 2798 of 2013 - Dr. A.K. Singh & Ors Vs UOI ad Ors.
11. The respondents in their written submission have reiterated the facts as stated in their counter affidavit and have annexed copy of following judgment:-
(i) Judgment dated 23.11.2012 passed in Civil Appeal No. 8263 of 2012 arising out of SLP (C) No. 16667/2011 -
Chairman, LIC of India & Ors Vs. A. Masilamani.
12. We have perused the grounds taken by the parties in their respective pleadings and also the submissions. It is not the case of the applicant that the chargesheet was not issued by the competent authority or there was abnormal delay in issuing the chargesheet. In the written submission, the applicant has raised a new plea that the chargesheet was issued by the respondents blindly at the instance of the CVO. The judgments cited in the written submission of the applicant are on the subject of the advice of the CVC/CVO to the disciplinary authority, which cannot be binding on the disciplinary authority. We are not inclined to examine the issue as to whether the chargesheet against the applicant was mechanically issued by the disciplinary authority on the advice of the CVO, as this plea was not taken by the applicant in his pleadings, due to which reply of the respondents on this plea has not been received. Apparently, the applicant has found subsequently when the respondents rejected his representation against the applicant's transfer in an order observing that major penalty proceedings were initiated as per the advice of CVO. But there is no pleadings or material before us to show that the disciplinary authority in this case has issued the impugned chargesheet on the advice of the CVO, without any 9 application of mind. Hence, this ground raised by the applicant to challenge the impugned chargesheet cannot be accepted. The case laws cited by the applicant are also not helpful for the applicant.
13. It is seen from the grounds of the OA that the chargesheet has been challenged mainly on the ground of incorrect facts and vigilance inquiry, absence any specific allegation against the applicant, malafide intention of the authority, not taking action against other members of the selection committee and singling out only the applicant etc. There is nothing on record to show that the chargesheet is malafide or malicious. On the other hand, the judgment cited by the respondents' counsel in their written submission in the case of Chairman LIC of India & Ors. vs. A. Masilmani, Hon'ble Supreme Court has observed as under:-
"..........Thus the court must examine, the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals, are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded, on the aforementioned grounds."
14. We also notice that in the case of Secretary, Min. of Defence vs. Pravash Chandra Mirdha (2012) 11 SCC 565, Hon'ble Supreme Court, on the issue of challenge to the charge-sheet, has observed as under:-
"12. In State of Orissa & Anr. v. Sangram Keshari Misra & Anr., (2010) 13 SCC 311, this Court held that normally a chargesheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority.
(See also: Union of India & Ors. v. Upendra Singh, (1994) 3 SCC 357).10
13. Thus, the law on the issue can be summarised to the effect that chargesheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the chargesheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
15. In view of above facts and case laws, we are not able to accept the contentions of the applicants to quash the impugned charge-sheet as prayed for in the OA. Taking into account the fact that the charge-sheet was issued about three years back and the respondents have not disposed of the same in spite of the order dated 22.01.2016 of this Tribunal in this OA, expressing the hope that the proceedings will be completed within four months, this OA is disposed of with a direction to the respondent No.1 to dispose of the disciplinary proceedings initiated against the applicant as per law within a period of three months from the date of receipt of a copy of this order.
16. Accordingly, the OA is disposed of with above directions. No order as to costs.
(GOKUL CHANDRA PATI) (JUSTICE DINESH GUPTA)
MEMBER-A CHAIRMAN
Arun..