Central Administrative Tribunal - Bangalore
G M Nagaraju vs South East Central Railway on 25 November, 2024
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O.A.No.170/472/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00472/2023
Order Reserved on: 11.11.2024
Date of Order: 25.11.2024
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE DR. SANJIV KUMAR, MEMBER (A)
G.M. Nagaraju, aged about 58 years
S/o late Malleshaiah
Residing at: Flat No. 402, Sriya Residency
Amruthahalli, Near Shobha HRC Pristine
Sahakarnagar Post, Bengaluru - 560 092. ...Applicant
(By Advocate Shri Vikram Phadke)
Vs.
1. The Union of India
Ministry of Railways - Railway Board
Room No. 235, Rail Bhawan
Raisina Road, Central Secretariat
NEW DELHI-110 001
Represented by its Director
2. The General Manager
South East Central Railway
New GM Building, SEC Railway
Bilaspur, Chhattisgarh - 495 001
The Disciplinary Authority.
3. The Sh. Ajay Kumar Rawal
The Inquiry Officer
Retd. Additional Member/Plg/RB
MEET GIRI
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2024.11.28
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O.A.No.170/472/2023/CAT/BANGALORE
Flat No. B54, IDC CGHS Apartments
Plot No. 8C, Sector 11
Dwarka, NEW DELHI-110 075
4. The General Manager
The South Western Railway
Head Quarters, Railway Soudha
Hubballi-580 020
Represented by its PCME
5. Union Public Service Commission
Dholpur House
Shahajahan Road
New Delhi-110 069 ...Respondents
(By Shri K Gajendra Vasu for Respondent Nos. 1, 2 & 4, Sr. Panel
Counsel & Shri N Amaresh for Respondent No. 5, Sr. Panel Counsel)
ORDER
PER: DR. SANJIV KUMAR, MEMBER (A)
This Original Application has been filed under Section 19 of the Administrative Tribunals Act 1985 to seek the following reliefs:
"(i) May be pleased to issue order of setting aside / quashing the following:
(a) Memorandum of Charge No. P-
HQ/DAR/600/G.M.N/2020, dated 08.12.2020, at Annexure: A-8, issued by the 2nd Respondent;
(b) Order No. P-HQ/DAR/600/G.M.N/2020, dtd.
11.01.2021, at Annexure: A-10, issued by the 2nd Respondent appointing 3rd Respondent as Inquiry Officer;
(c) Inquiry Report No. AKR/IO/SECR/1, dtd. 02.06.2021, at Annexure: A-11, given by the 3rd Respondent;
(d) Advice No. F.3/442/2021-S.I, dtd. 31.05.2022, MEET GIRI MEET CAT Bangalore 2024.11.28 GIRI 15:00:00 +05'30' 3 O.A.No.170/472/2023/CAT/BANGALORE at Annexure: A- 13, given by the 5th Respondent;
(e) Order of Penalty No. E(O)I-2021/PU- 2/SECR/65, dtd. 07.07.2022, at Annexure: A- 14, passed by the 1st Respondent;
(f) Order No. E(O)I-2023/AE-3/SWR/12, dtd. 06.06.2023, at Annexure: A-17, passed by the 1st Respondent, rejecting the review petition;
(ii) Consequently, direct the 1st Respondent to reinstate the Applicant into the services, by issuing appropriate orders;
(iii) Grant such other relief(s) in favour of the Applicant as this Honourable Tribunal deems fit in the facts and circumstances of the case, in the interest of justice."
The said reliefs are claimed on the grounds as mentioned in para 5((a) to (p)).
2. The brief facts of the case is that the applicant was working as Dy. CE/Safety/HQ/SWR at Hubballi, Karnataka was removed from the services by way of Disciplinary Action vide order dt. 07.07.2022. His Review Petition dated 10.08.2022 read along with representation dated 07.09.2022 has also been rejected vide order dated 06.06.2023. The said actions of the respondents that the applicant asserts are arbitrary and untenable. Hence, he has filed this OA and is claiming all the reliefs.
3. On notice, reply statement has been filed, one for Respondent Nos. 1, 2 & 4 and another for Respondent No. 5. Rejoinder has been MEET GIRI MEET CAT Bangalore 2024.11.28 GIRI 15:00:00 +05'30' 4 O.A.No.170/472/2023/CAT/BANGALORE filed on 27.05.2024.
4. The case came up for final hearing on 11.11.2024. Shri Vikram Phadke for the applicant, Shri K Gajendra Vasu for Respondent Nos. 1, 2 & 4 and Shri N Amaresh for Respondent No. 5 were present and heard. At the time of arguments, interalia other things, one of the main arguments of the applicant was that in his disciplinary case, the respondents department have taken the opinion of the UPSC and the decisions of the Disciplinary Authority which are impugned is passed taking into account the recommendations of the UPSC. And as the said order was passed based on Union Public Service Commission's report which was not communicated to the applicant and his response was not obtained and taken into consideration. The inquiry was violative of the principles of natural justice in terms of the Apex Court judgment in Union of India and Ors Vs. S K Kapoor reported in (2011) 4 Supreme Court Cases 589 wherein the Hon'ble Court had ruled following:-
"7. In the aforesaid decision, it has been observed in SCC para 25 that "the provisions of Article 320(3)(c) of the Constitution of India are not mandatory". We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the Commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in MEET GIRI MEET CAT Bangalore 2024.11.28 GIRI 15:00:00 +05'30' 5 O.A.No.170/472/2023/CAT/BANGALORE advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel case¹ is clearly distinguishable.
8. 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 employee concerned. However, if it is relied upon, then a copy of the same must be supplied in advance to the employee concerned, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in S.N. Narula v. Union of India.
9. It may be noted that the decision in S.N. Narula case was prior to the decision in T.V. Patel case. It is well settled that if a subsequent coordinate Bench of equal strength wants to take a different view, it can only refer the matter to a larger Bench, otherwise the prior decision of a coordinate Bench is binding on the subsequent Bench of equal strength. Since, the decision in S.N. Narula case was not noticed in T.V. Patel case, the latter decision is a judgment per incuriam. The decision in S.N. Narula case² was binding on the subsequent Bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
10. For the aforesaid reasons, this appeal is dismissed. The parties shall bear their own costs."
5. Simple examination of the said ruling shows that if the UPSC consultation was done and was relied upon for imposing the penalty, then a copy of the same UPSC order should have been supplied in advance to the employee concerned, otherwise there will be violation of the principles of natural justice. Confronted with the ruling of UOI and Ors. Vs. S K Kapoor the respondents could not cite any better or MEET GIRI MEET CAT Bangalore 2024.11.28 GIRI 15:00:00 +05'30' 6 O.A.No.170/472/2023/CAT/BANGALORE different ruling or to controvert the claims of the applicant.
6. From the facts of the case, it is evident that the UPSC advice indeed was taken in this case which is not denied and from the Disciplinary Authority order dated 07.07.2022 impugned, it is evident therein in para 7 which mentions clearly that "And whereas, UPSC tendered its advice dated 31.05.2022 and after carefully considering the UPSC's advice, and all the other facts/aspects relevant to the case, Hon'ble MR, on behalf of the President, while accepting the Commission's advice, has observed/decided as under:" which shows that UPSC's advice was taken and the Commission's advice was accepted and based on that only orders were passed.
7. The respondents also did not controvert the assertions of the applicant that they were not served with the copy of the UPSC advice and their say was not taken on the issue. The only thing the respondents stated that this plea has not been earlier taken by the applicant but the applicant particularly say that citations need not be the part of the pleadings and can be brought at the time of the argument and his case was squarely covered by Union of India and Ors. Vs. S K Kapoor and so he should get the benefit of being heard on the UPSC's advice.
8. As the applicant further pointed out that within the Department MEET GIRI MEET CAT Bangalore 2024.11.28 GIRI 15:00:00 +05'30' 7 O.A.No.170/472/2023/CAT/BANGALORE different authorities have also recorded their opinions on quantum of punishment which are different than the UPSC's advice. Which also is a matter of fact and record which is not denied by the other party. Hence, we also note that the applicant's case is squarely covered by the judgment of the Apex Court in UOI and Ors. Vs. S K Kapoor and in terms of that judgment the applicant should get relief and the respondents should correct the anomaly in the process of their inquiry and subsequent imposition of penalty.
9. Hence, on this preliminary ground, we are inclined to partly allow this OA and remand this case to the Disciplinary Authority for reconsideration of the inquiry from the stage of giving an opportunity to the applicant of being heard on the UPSC advice. As we see that applicant has filed as one of the Annexures in the OA the UPSC advice, so he is already privy to the same. Hence, in the fitness of things it will suffice if some time is given to the applicant to file his written submissions on the said advice and after taking into consideration his say, the respondents Disciplinary Authority shall decide the case in a time bound manner.
10. As we are deciding this case on this preliminary technical issue, it is clarified that we have not gone into the merits of the case and expressed any opinion on merit; and all other contentions of the MEET GIRI MEET CAT Bangalore 2024.11.28 GIRI 15:00:00 +05'30' 8 O.A.No.170/472/2023/CAT/BANGALORE applicant is left open which may also be considered by the Disciplinary Authority and other Authorities while taking decision.
11. Considering the same we pass following orders:-
OA is partly allowed, setting aside the order of penalty No. E(O)I-2021/PU-2/SECR/65 dated 07.07.2022 at Annexure-A14 passed by the Respondent No. 1, and other subsequent orders remanding the case to the Competent Authority to get the anomaly as noted above in terms of the Hon'ble Apex Court order in UOI and Ors. Vs. S K Kapoor (supra) set right. As the applicant already has the UPSC advice with him which is also on record, there is no need for serving the same afresh on him. From the date of obtaining a certified copy of this order, the applicant is directed to give his response to the said UPSC advice along with his any other say in four weeks' time, and thereafter the competent authority among the respondents are directed to consider the same in a time bound manner, and in any case not later than 02 months' time thereafter.
(DR. SANJIV KUMAR) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/mg/
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