Central Administrative Tribunal - Delhi
Rajvir Singh vs M/O Railways on 16 September, 2015
1
OA No.37/2012
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.37/2012
this the 16th day of September, 2015
Hon'ble Mr. V.Ajay Kumar, Member (J)
Hon'ble Mr. P.K.Basu, Member (A)
Shri Rajvir Singh
S/o Shri Radhey Shyam brother
D-1668, Jahangirpuri
Delhi-33 .... Applicant.
(By Advocate: Shri Prakash Chandra)
Versus
Union of India through
1. The General Manager
Western Central Railway
Jabalpur
2. The Divisional Rail Manager
Western Central Railway, Kota
3. Sr. Divisional Electric Engineer
Western Central Railway
Tughalkabad .....Respondents
(By Advocate: Shri Shailendra Tiwari
ORDER
By Hon'ble Mr. P.K.Basu, Member (A), The applicant has challenged the impugned order dated 16.11.2011 passed by the respondents by which the Competent Authority has treated as "Dies Non" the period involved from the date of removal from service of the applicant i.e. 02.09.2003 to the date of reinstatement i.e.03.02.2004, as per Rule 1343 of Indian Railway Establishment Code Vol.II.
2. The applicant was issued charge-sheet dated 08.05.2000 on the following charges :-
"While working under Senior Divisional Electrical Engineer (TRS), Tughlakabad on 09.07.1999 at about 9.30 a.m. when Shri A.K.Garg, 2 OA No.37/2012 Senior Divisional Electrical Engineer (TRS), Tughlakabad had reached at Loco shed, committed misconduct of beating him and attacked him by throwing his chappal (sleepers) on his head & abused him and threatened to kill him."
3. The Inquiry Officer came to the conclusion that Article of charges framed against the applicant are not proved and charges framed are fabricated. The Disciplinary Authority issued disagreement note to the applicant to which a reply was submitted by the applicant and after considering the entire materials on record and representation submitted by the applicant, imposed the punishment of removal from the service on the applicant. He was removed from service w.e.f.02.09.2003. However, the Appellate Authority vide its order dated 03.02.2004 took a sympathetic view and the applicant was reinstated in service on the minimum pay and withholding of increments for 2 years without permanent effect.
4. The learned counsel for the applicant states that along with departmental proceeding, a criminal case had also been filed and the learned Metropolitan Magistrate acquitted the applicant by passing the following order:-
"23. For the forgoing reasons, I hold that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Benefit of doubt is given to the accused persons. The accused persons are accordingly acquitted for offences punishable u/s 341/353/186/323/IPC."
5. It is, therefore, argued that when the applicant was acquitted from the above criminal case on the same charges beyond reasonable doubt, the applicant deserves to exonerated from the charges against him in the departmental proceeding in which case, the period from 02.09.2003 to 3.02.2004 may be treated on duty and all consequential benefits such as payment of salary may be given.
6. The learned counsel for the applicant in this regard relied upon judgment of the Hon'ble Supreme in the matter of Capt. M. Paul Anthony Vs. Bharat 3 OA No.37/2012 Gold Mines Ltd and Another (1999) 3 SCC 679, in which it has been held as follows :-
"A. Service Law-Departmental Enquiry - Simultaneous continuance of with criminal proceedings - Law on this point restated that scope of these two proceedings is different and they can be continued independently - But in the present case, keeping in view that both the proceedings were based on the same set of facts which were sought to be proved by the same witnesses viz. police and Panches and the court had already acquitted the appellant by rejecting the prosecution story, held, findings recorded against appellant in an ex parte disciplinary enquiry could not be sustained."
7. It is argued by the learned counsel for the respondents that the Hon'ble Supreme Court in the matter of Shri Bhagat Ram Vs. State of Himachal Pradesh & Ors. AIR 1983 SC 454 has held that under Article 226 of the Constitution, the High Court does not function as a Court of appeal over the findings of disciplinary authority. It is further argued that the Hon'ble Supreme Court in the matter of UOI & Ors. Vs. Dwarika Pd. Tiwari 2006 (10) SCALE page 233 has held that the scope of interference with quantum of punishment has been the subject matter of various decisions before that Court, and it has been held that such interference cannot be in a routine manner.
8. It is argued that the common thread running through in all these decisions is that the court should not interfere with the administrative decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense, that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case, the court would not go into the correctness of choice made by the administrator opened to him and the court should not substitute its decisions to that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not to the decision. To put differently, unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference.
4OA No.37/2012
9. The learned counsel for the respondents further pointed out that in para 23 of the order, the learned Metropolitan Magistrate had recorded as follows :-
"23. For the forgoing reasons, I hold that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Benefit of doubt is given to the accused persons. The accused persons are accordingly acquitted for offences punishable u/s 341/353/186/323/IPC."
10. It is argued that it is incorrect on the part of the applicant to take a stand that he has been honorably acquitted as the learned Metropolitan Magistrate has clearly given him benefit of doubt. It is further submitted that as per Railway Board Circular No.R.B.'s No.E(D&A) 69RG 6-48 of 05.09.1970 (NR 5111) "In cases where the employee has been acquitted on benefit of doubt, for the period between the date of suspension/dismissal to the date of acquittal, he should be allowed pay and allowances as directed by competent authority under Rule 2044-RTI 1343 of 1987 and the period treated as duty or non-duty as the case may be. When an employee is acquitted on 'benefit of doubt' he cannot be regarded as having been 'fully exonerated', or in the case of suspension that it was wholly unjustified and therefore, in such cases Rule 2044-RTI, 1343 of 1987 comes into play. Further, Indian Railway Establishment Code, Rule 1343 (2) stipulates as follows :-
"The railway servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the railway servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled."
11. It is submitted that the applicant has not been "fully exonerated" by the learned M.M. but the applicant was acquitted on benefit of doubt therefore he is not entitled for full pay and allowances.
12. Heard the learned counsel and perused the relevant rules/judgments produced by them.
13. It is clear from the order of the learned Metropolitan Magistrate that this was not a case of honorable acquittal. The learned Metropolitan Magistrate 5 OA No.37/2012 gave benefit of doubt to the accused persons. Railway Board Circular clearly provides that in such cases, his period cannot be treated as duty.
14. The Hon'ble Supreme Court in UOI & Ors. Vs. B.C.Chaturvedi (1995) 6 SCC 750 has held that in judicial review, the court/tribunal cannot interfere with the findings based on the evidences and substitute it with its own independent finding. This view has been reiterated in several others judgments.
15. In Nelson Motis Vs. Union of India and Another (1992) 4 SCC 711 (Three Judge Bench), the Hon'ble Supreme Court had held that the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case and the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding.
16. Similarly, in State of A.P. Vs. K.Allabakash (2000) 10 SCC 177 (Division Bench) the Hon'ble Supreme Court had held that it is made clear that acquittal of the respondent shall not be construed as a clear exoneration of the respondent, for the allegations call for departmental proceedings, if not already initiated, against him.
17. In Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corpn, Ltd, Haldia and others (2005)7 SCC 764 (Three Judge Bench) the Hon'ble Supreme Court had held that :-
"11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances 6 OA No.37/2012 or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserved to be quashed and set aside."
18. In view of the above judgments, it would appear that there is no debarment on a departmental proceedings and even acquittal in the criminal case does not automatically mean that the charged officer has been exonerated in the departmental proceedings.
19. We are, therefore, of the opinion that the respondents have acted in accordance with the law settled by the Hon'ble Supreme Court, as cited above and strictly in accordance with rules framed by the Railway Board for this purpose, as explained above. There is no illegality or irregularity committed by the respondents. The OA is, therefore, dismissed.
(P.K.Basu) (V.Ajay Kumar) Member (A) Member (J) /uma/