Central Administrative Tribunal - Delhi
Shri Jagdish Prasad vs Union Of India on 23 January, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 3281/2010
New Delhi this the 23rd day of January, 2012
Honble Mr. M.L. Chauhan, Member (J)
Honble Mrs. Manjulika Gautam, Member (A)
Shri Jagdish Prasad
s/o late Shri Bal Chand
Ex. Goods Supervisor
At Railway Station/Tundla
C/o Sanjay Kumar
Presently R/o G-318
Kumhar Chowk
Chirag Delhi Sheikh Sarai
Phase-II, New Delhi-17 .Applicant
(Through Shri B.S. Mainee with Ms. Meenu Mainee, Advocate)
VERSUS
1. Union of India
Through the General Manager,
North Central Railway,
Allahabad
2. Divl. Railway Manager
North Central Railway,
Allahabad
3. Sr. Divl. Commercial Manager
North Central Railway,
Allahabad Respondents
(Through Shri A.K. Srivastava, Advocate)
O R D E R
Mrs. Manjulika Gautam, Member (A):
This OA has been filed seeking the following reliefs:
8.1 That this Honble Tribunal may be graciously pleased to allow this application and quash all the orders (Annexure A-1, A-2, A-3 as well as A-4) being illegal, arbitrary and unconstitutional.
8.2 That this Honble Tribunal may be further pleased to direct the respondents to reinstate the Applicant and give all consequential benefits including back wages etc. 8.3 That this Honble Tribunal may also be pleased to award any other or further relief which this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
8.4 That the cost of these proceedings may kindly be granted in favour of Applicant and against the Respondents.
2. The applicant was appointed on 30.06.1980 as Goods Clerk in the railways and was subsequently promoted as Goods Supervisor in the grade of Rs.5500-9000/- on 2.07.2004. A memorandum of charge was served upon the applicant on 28.07.2008. The two charges against him were as follows:
Article of Charge 1 He issued RR No. 352042 dated 9.2.2005 from MNQ to NJP in favour of M/S Krishna Traders, Harchand Mallik Street Kolkatta, in which he manipulated in record copy, distance was shown 1300 km where as in the RR the distance was shown 1301 km. which shows his malafide intention.
Article of Charge 2 He has collected the freight of RR no. D 352042 dated 9.2.05, Rs.1565159/- in the receipt foil but in RR he has mentioned the forged freight amounting Rs.1593921/- i.e. he has mentioned an excess amount of Rs.28772 in the RR to take the refund with the connivance of the party and undue benefit.
Shri Jagdeesh Prasad, GS/MNQ by his above acts of omission and commission failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of railway servant by contravening rule 3.1 (i), (ii) & (iii) of Railway Servants (Conduct) Rules 1966.
3. The applicant denied the charges and submitted his representation dated 7.08.2008. Inquiry was completed and a copy of the report was forwarded to the applicant on 2.01.2009. In the inquiry report, the inquiry officer observed that no malafide against the applicant had been proved but he held the two charges proved against the applicant. The applicant represented against the inquiry report on 12.01.2009 and vide order dated 15.07.2009, the disciplinary authority imposed the penalty of reduction in the time scale for three years. The applicant submitted an appeal dated 25.08.2009 and the appellate authority vide show cause notice dated 21.10.2009 moved for enhancement of penalty. The applicant again submitted a representation dated 2.11.2009 against the show cause notice but vide order dated 19.03.2010, the Senior Divisional Commercial Manager passed orders imposing penalty of compulsory retirement on the applicant. The applicant submitted an appeal dated 5.04.2010 to the Additional Divisional Railway Manager and another representation dated 16.07.2010 but the representations were rejected vide orders dated 7.08.2010. Aggrieved by this, the applicant has filed the present OA.
4. The case of the applicant is that manipulation in the Railway Receipt (RR) showing 1301 kms in place of 1300 kms and railway freight amounting to Rs.15,93,931/- whereas the actual amount was Rs.15,65,159/-, was done by him under extreme pressure, threat and intimidation. The applicant had stated that Mainpuri is a very criminal area and several railway personnel had been murdered by interested parties. Therefore, he was forced to make manipulation in the RRs under threat of his life. But the applicant also pointed out that vide communication dated 7.08.2008 sent by courier, he had intimated the Chief Goods Supervisor, New Jalpaiguri about the discrepancy so that no refund could be claimed by the party. It is also contended by the applicant that since no refund could have been claimed without consultation with the destination station of New Jalpaiguri, he had taken steps to ensure that no financial loss is caused to the railways. The applicant has also stated that he was not provided two of the seven documents requested by him vide his letter dated 15.09.2008. According to the applicant, the inquiry officer did not conduct the inquiry as per provisions of Rule 9.21 of the Railway Servants (Discipline & Appeal) Rules, 1968 whereunder the inquiry officer was to question the applicant on the circumstances appearing against him in the evidence for the purpose of enabling the railway servant to explain any circumstances appearing in the evidence against him. In support of his contention, the applicant has cited the following judgments:
1. Ministry of Finance V/s S.B. Ramesh, SLJ 1998 (2) SC 67
2. Moni Chanker Dixit V/s Union of India, SLJ 2008 (3) SC 325 Satya Pal Arora V/s Director Postal Services SLJ 1990 (2) 100
4. R. Robert V/s Union of India, SLJ 1991 (2) 139
5. The applicant has also challenged the orders of compulsory retirement passed by the Senior Divisional Commercial Manager on the ground that he was promoted in the grade of Rs.5500-9000/- and, therefore, only his appointing authority could pass orders of compulsory retirement and not the Senior Divisional Commercial Manager.
6. In the counter affidavit filed by the respondents, it has been stated that the inquiry against the applicant has been held in accordance with rules and law. The case of the Respondents is that the applicant had accepted the manipulation in RRs with regard to distance and freight amount. The respondents had not given weight to the communication of the applicant dated 7.08.2008 sent by courier to Chief Goods Supervisor, New Jalpaiguri. According to the respondents, the applicant had not informed any superior officers regarding threat made to him and also he did not follow up the matter with the Chief Goods Supervisor, New Jalpaiguri and, therefore, it may be an afterthought. The respondents have also stated that only one document could not be provided to the applicant because details were not clarified by the applicant. The applicant had also, during the inquiry, not produced any evidence in support of the statement that he had informed the Chief Goods Supervisor, New Jalpaiguri regarding the irregularity. The respondents have also stated that Divisional Commercial Manager, Allahabad is competent to impose the punishment of compulsory retirement on the applicant. The respondents have placed on record at Annexure R-20 the extract of Schedule of disciplinary powers. According to the Schedule, punishment of compulsory retirement can be given only by the appointing authority or the authority of equivalent rank or any higher authority. The respondents have annexed photocopy of the Service Book of the applicant wherein his appointing authority is designated as DPO and, therefore, they have held that Divisional Commercial Manager, Allahabad was competent to pass the order of compulsory retirement.
7. We have heard the learned counsel for the parties and perused the record on file.
8. We have observed that the inquiry officer has himself stated that no malafide has been proved against the applicant and yet he has held the charges 1 and 2 proved against him. We also find that Annexure R-4/B which is the communication sent by courier by the applicant to Chief Goods Supervisor, New Jalpaiguri has been brought on record by the respondents themselves but in the counter affidavit, no weight has been given to the contents of this letter. We are of the opinion that since this letter has been admitted by the respondents and has been placed on record, it goes a long way to show that the applicant was concerned about preventing loss to the railways and, therefore, he mentioned certain special circumstances under which the wrong RRs were issued by him. It is also conceded by the respondents that no monetary loss was caused to the railways. Since the applicant had himself admitted to the manipulation in the RRs, it would have been natural justice to look into the circumstances in which the manipulation was made. This was not done and in a mechanical way, the charges which had already been admitted, were proved by the respondents without giving any weight to the circumstances and reasons for doing so by the applicant. We are also constrained to observe that without proving any malafide against the applicant, the punishment of reduction in the time scale was passed by the disciplinary authority and when the applicant submitted an appeal to the appellate authority after being given the show cause notice, the punishment was enhanced to that of compulsory retirement. We also find merit in the contention of the applicant that Divisional Commercial Manager was not competent to impose the punishment of compulsory retirement. Only the appointing authority under Rule 2 of the Railway Servants (Discipline & Appeal) Rules, 1968 is competent to impose punishment of dismissal, removal or compulsory retirement on the applicant. The applicant in this case was promoted as Goods Supervisor in the grade of Rs.5500-9000/- by the Divisional Railway Manager, who is in the Senior Administrative Grade whereas the punishment of compulsory retirement was imposed upon him by the Senior Divisional Commercial Manager who is in the Junior Administrative Grade.
9. The respondents have tried to justify their stand by stating that the applicants appointing authority was DPO but this was the position when the applicant was initially appointed on 30.06.1980. He was thereafter promoted in the year 2004 to the post of Goods Supervisor under the orders of the Divisional Railway Manager, who is in the Senior Administrative Grade whereas the Senior Divisional Commercial Manager is in the Junior Administrative Grade and, therefore, subordinate to the appointing authority.
10. We are of the firm opinion that the appointing authority at the time when the punishment was imposed upon the applicant is relevant and not the appointing authority at the time of initial appointment as made out by the respondents. Therefore, the impugned orders of punishment dated 15.07.2009 which are bad in law as without proving malafide, charges have been proved against the applicant and impugned orders of the appellate authority dated 21.10.2009 cannot be sustained on the ground that they have not been passed by the appointing authority. Accordingly we quash and set aside the impugned orders dated 15.07.2009 and 21.10.2009 and remit the matter back to the disciplinary authority to decide it afresh in the light of the observations made by us and after considering all the grounds raised by the applicant, pass reasoned and speaking orders in accordance with rules and law within a period of three months from the date of receipt of a copy of this order. Meanwhile, the applicant is to be allowed to join duty forthwith. The period from the date of compulsory retirement to the date of joining will be decided by the competent authority, at the time of finalizing the departmental proceedings against the applicant, as to whether he will be treated as on duty or otherwise. No costs.
( Manjulika Gautam ) ( M.L. Chauhan ) Member (A) Member (J) /dkm/