Central Administrative Tribunal - Gauhati
Sri Chandan Acharjee vs M/O Railways on 13 April, 2021
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CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 040/00212/2020
THE HON'BLE SMT. MANJULA DAS, JUDICIAL MEMBER
_ THE HON'BLE MR.N.NEIHSIAL, ADMINISTRATIVE MEMBER
Sf Chandan Acharjee (Aged
42 years}, Son of late Subodh
-- Kant Acharee, Resident of
'House Na 3A Acharjes
Bhawan, Sibhuminagar By
iane Mo. 3, . Adagudam,
Eaiganesh. Gowan =
781034, PS. - Cdalbakra
Police Gul Post under Dispur
Police Station, Distict -
Kamo {MM}. Assam. Moke
No, 9706629020,
Aopicant
VERSUS-
}. Union of india representec
by the General Manager.
NE. Rallway, Maligon,
Guwanat 3).
2. Divisional RouiWwoy
Manager, ME. Railway,
Lumding, District - Nagaon,
Assam. |
Divsiondl Raliway Manager
(Personnel), NUE, Railway,
Lumding, Disiic! - Nagcon.
ASSAM,
Go
COA.040/00212/2020
smmercial
Relway,
~ Mogan,
inel ORice
alway
to Maanor
Sy B Acharyya, Ms.M Acharyya
Ms U Das, S.C. N. F Rallways
men) 7.03.2021 Date of Order: 43.04.2621
ORDER
EMBER ()):
is OA oopiicant makes a prayer for a respondents io sioo making recovery sr she applicant for any unpraven loss or cant js alsa praying for a. further respondents fo refund ali amounts mis pay with inferes! @18 per cent per am the date of respective deductions {il final sf facts as narrated by fhe applicant inflally dopointed as Sicant WS OA. 040/09912/2090 Commercial Clerk in the Raliway Department and posted ait Guwahati! on 17.12.1997, Thereafter he was promoted to $r Commercial Clerk In 2005. In March,
20)5 while: the aoplicant was. serving. in Guwahati Booking Office, he was served wifh memo dated 05.03.2015 issued by the Carnmercial Supervisor, Guwahati Booking Office whereby a debit of #5.6,93,775/+ against the applicant was intimated. to A) him-and he was asked either fo admit or to abject je the debi. However, was coniended by ihe applicant that before he could ascertain tne cause of the debit s0 a8 fo suomi his objection, the depariment had deducied &s.12,000/- from his salary for the month of . dune, 2015 and ft continued to recover as such upte February, 2016..and from. March, 2016 onwerds recovery was enhanced fo Rs.22,.000/+. According to the applicant. such recovery caused him acule financial hardship since he gol salary of Rs.6762/- and
--R8.9982/- for the month of March & Apri, 2016 respectively.
3 Again on 10.06.2015, the Commercial Supervisor, Guwahati Booking Office infimated the OA. 040/002 12/2020 ecial debit of Rs.7,.47,1048/- has been yond he was asked jo eliher acini or in both the cases, applicant HA/Ghy in his leer dated 22.03.2015 ihe special debit was raised by the soervisor, Guwahatl Booking Office. ad that instead of considering his e Area Monager, Guwahall N F Raliway 16.07.2018 initiated wndum dated 9 of the Railway Servants (D chandanAchares, Sr CC/B/GHY. while mming his duty af Booking office/GHY the period frorm October ZOl4 to ary 2015 has commited an act of gross nduct in-as much as he non-lssued 108 money Receipt (lst enclosed) for Rs. 7, 6f/- Through his operation iD-CAGHYO ng printing error oul he never issued esh MR/Tickels against fhese Non-issued y Receipis. Thereby Sr indanAchariee defrauded the Radllway Nistration to the tune of Rs. 7, 89. 534/- nalafide intention for his llega! persannel & thereby exhibiied lack of infeagnly. fan fo duty and acted in a manner ~OA.040/002 12/2020 which is unbecoming of a@ Railway servant & thereby contravened the Rule No. 3.1 (I), ()& fit) of Railway Servant (conduct) Rules, 1946. Article| Si ChandanAcharjee, SACC/GHY. while performing his duty af Sooking office/GHY during fhe period from October 2014 to February 2015 has commited an act of grass misconduct inasmuch as he failed to collect subsequently 108 Nas. of Money Receipt becring Nos.
E 91255181 /80, E 94080247 /46, E 94659211/10, E 94658930/209, FE 94659258/57, E 96081 179/78, E 98000292/91, E 8000804/03, E F817931S/14, E 9817934847, E981 471 14/13, E 9814713e8/37, O1897308/07, F O18P7314/15, F OL89731 9/718, O1897353/52, F 1483247/46. F 14839252/51. 14975903/22, F 15723479 /78, F 24367404/05, 94559235/34, F 24018027 /26, F 26013046/45, 9hAB307 4/73, F 244331 29/98, F 311 38407/06, 31188414/13, F311S8418/17. F 33770027/26, 33770029 (28, F 33991 295/84, F 3477 4489/88, (36926370/69, F 36926383/82, F 36726387 /86, 37548458/57, F 37 548495/94, F 37747028/ 27. 382361 29/28, F 38236131 /30, F 38236137/35, 387 }OS08/07, F BB7710216/15, F 38710222/21, 387 10230/29, F G8710233/32, F 38710807 /06, 41335229 /28, F 4)335237 /80, F 47395259 /58, 41335274/73, F 414) 2411/10, F 41412445/44, A141 2455/54, F 41412458/57, F 42831064/63. 42831108/07. F 43011307/06, F 43529175/74, $3529197/96, F 45213384/83, F 45213390/89, 48758138/37, F 48758191/90, F 48758210/09, F48836452/5], F 48836480/79, F 48836484/83, 4891 6013/12, F 489146023/22, F 49088040/39, 49038054/53, F 49038097/96, F 15810878/77, 15810884/83, F 15810407/06, F 15810459/58, 163691 84/83, F 163691 93/92, F 16576019/18. 15676025/04. F 16576046/45, F 1576067 /66, 17658203/32, F 17658241 /40, F 17658271/79. 17458078/77, F 17658233/32, F 17658241/40, F 1765827 1/70, F 17SS878/77, F 17658309/08, ac eae ot ae © Me SE OPE TE OT sare tae tes x ir 1 ies noc 4 es 8 COA.040 (002 12/2020 SRR = oo See ae iby him for an amount of Rs. 7, 39, inputting Reason Code No. | |e.
"or in the system. But oul of which 13 Money Receipt bearing No. F F 17658308, F 16574018, F 18810288, 99 £ 17658232, F 48836477, F F P§810406, F 15810458, F 48758209, 7 & F 16576024 collected from defrauded ihe ation to the tune of Rs. 7, 59, S36/ 3 fide intention for his Negal personal hereby exhibited lack of infegniy, fo duly and acted in a manner unbecoming of a Railway servant orfravened Rule No. 3.) (), GH & fy ay servant (Conduct) Rules, 1966."
before this THbunal which was disposed af vicle oy fed 20.05.2014 directing conclusion of sroceeding within four monihs and as respondents were directed fo a re a epresentation fo be filed by the ihe dispasal of fhe disciplinary OA 040/002 12/2020 aoa memorandum of charge. Thereafier the inquiry was held and fhe applicant participated in the inquiry proceedings. The inquity officer in his report dated 03.01.2017 held both the charges are proved. the Disciplinary Auorly on being § atisfied with findings of . the inquiry report vide order doled 13.02.2017 Imposed penalty of "Compuisory Retirement" from services
-- against ihe applicant.
iC & The applicant fled an aopeal on 27.02.2017 | agains! penalty Imposed by the Disciplinary Authority pefore the Appellate Authority which was dismissed by | the Appellate Authority by confirming the penalty : imposed by Discipiinary Authority.
7. Being aggrieved the applicant filed GA. 2271/2018 before this Tibunal and after hearing ihe : parties, This Tribunal by a defaled order dafed | 20.12.2019 set aside ne. penalty orciet diied:
| 13.02.2017. The operative portion of the order 1s
-- extracied below N32. in view of the above, we are of the opinion that fhe departmental proceeding OA,040/002 12/2020 from procedural infirmily from the supplying the documents and ly the penally order issued by the ry authority js not sustainable In the lew. Therefore, fhe impugned ant order daled 13.02.2017 is set wind quashed. Respondents cre cio reinstate the applicant in service . Respondents are al fibery to the enouiry from the stage of + the documents as sough! for by the 4 and decided fo supply by the ficer as recorded in the order shee! 1 19.09.2016.
The OA jis cSsposed of as above, i be no order as fo costs."
sflance of the aforesdid order, the Sr vide office order daled 18.03.2020 nim fo join as Sr. Commercial Clerk, his previous place of posting and jhe Jas such an 29.04.2020.
_Acharyya, learned counsel for the 'Hed before this court thal after the respondent avthaniy started OA.040/002 12/2020 , this THbunal stayed fhe recovery ff the next date and the same Is continuing.
YO, # was submitted by the learned course! for the applicant that that applicant) had already made obdiections against the recovery and which is stil pending. In suppor of his contention, Jearned counsel nad drawn our attention to the clause (vi) of para 1002 af the Indian Rabvlay (Traffic) Commercial Code. Leamed counsel vehemently argued that in the instant casa the respondents without following The said procedure of para 1002. of fhe said Code stared recovery whieh js not sustainable in the eyes of law. The applicant has already suffered since 2018 in eu of recovery which was. mode without following any rulefprovisions. According fo the learned counsel Til now &s.2,85,000/- has been recovered from the aoplicant, ian According to the learmed counsel, even in ine ceparimenial enquiry the railway authorities could not establish the charge of defrauding the railway administration of Rs.7,59.536/-. The authorities could not OA040/002 12/2020 yO idence fo sugport the claim which the amount of loss iy based solely on ete is no concrete evidence with them applicant i responsible for the loss, 7 : any. According fo the leaned based on suspicion and wilhout ministration. Firstly debi! was raised to ide memo dated 05.02.2015. 1 was 787 NO8S- vide 2nd memo dated the. pmemorandum. dated OA O4G/002 12/2020 Wy 16.07.2015 Ho was charged thal applicant defrauded the railway administration fo the tune of Rs.7,59,536/>. Thus, the amount of loss kept on changing from RS.6,93,775/- 10 Rs.767,106/- and finally fo Bs.7,89,536/.. 1.0%. Learned counsel further submitted fhat the respondent authority without making any effort fo conduct the enquiry from the stage of supplying ihe documents as directed by this TWibunal in the order } doled 20.12.2019 and proceeded io moké recovery from the salary bill of the applicant which is highly legal, arbitrary and unconsifutional and fable jo be inferfered with,
14. oe In support of his cantentions, learned counsel forthe applicant relied on the following decisions:
(i) Decision of Patna Bench of the Tribunal in the case of Amar Nath Kapoor vs. Union of india 'through the General Manager, East "Central Railway, Hojipur & Ors (0.A.1013/2012):
(i) Decision of the Hon'ble Supreme Couit in the case of UO! & On vs Madan Mohan Prasad, JT 2002 Suppl 1 SC 65).
OA.040/002 12/2020 an of Han'ble Supreme Court in the te of Punjab v Rafia Masih (2015) 4 sr hand, Ms U Das, leamer! standing way respondents submitted that as fribunal the opplicant has been reinstate . However, offer reinsiatement of \ the app recovered from ihe salary of the His loss. of Govt Revenue done by ' venue of Rs.7,59, 5834/6 which cannot iSSUe, charges "awrtten learned counsel submitted that CA040/00? 12/2020 _jlaneotive and corruption of the employee for which roiiway administration. is suffering, According to fhe leamecd counsel, recovery process of loss amount _ started from the salary of fhe applicant and if is bound under compulsion by the railway administration as pe _ extent provision, therefore, it ls legal. consfifutional and nol arbitrary exercise of power and not harassment to . the applicant.
, 16. Aeeoiding to the learned counsel for the " tollwoys, the amount involved is cdefermined as Rs.7,5°,536/-, thereafter responsibilly was fixed and | debit was raised. Learned counsel furfher subrmitied "thot all reasonable opportunity was given fo the applicant during departmental enquiry and all relied | documents as per charge shee! were produced during DAR enquiry. Only additional documents could not be procured as per Enquiry Officer which was duly:
| infimated to the applicant before the commencemen! ofthe 1s requiar headng held on 28.09.2016. Applicant joined ihe enquiry and signed all the enquiry proceedings and af that fime applicant did not raise QA.040/002 12/2020 ry officer submitted enquiry report 5 as proved ana accordingly, major sory retirement Jrom raliway service sf the applicant. According fo the , tecovery of Rs.10.000/- per month ne applicants jusifled anc oroper.
fed thal several paragraphs of the are rapeilion of same statements as ara 17 of the written statement and Sion of the learned counsel for the order of inis: Tribunal has beer reinsfaling the applicant in service d since His a proved case and after fon and proper calculation by the ld out thal fhe fotal Govt loss done yhich is recoverable and deductible OA. 040/002 12/2020 BRANNAN & Q : [Ro BES SSS 2 SESE 1S from the applicant a3 per railway provision and If will conminuge.
ig. We have heard both the sides, perused the pleadings and the materials placed on record as wail as the decisions relled upon.
Te. In the earlier round of ligation, namely, _ ©A.227/2018, this Tribunal had already held that the | departmental proceeding : against "the. applicant leading fo imposition of penalty of compulsory _ fetirement suffered from procedural infirmity from the | stage of supplying of documents, and accordinaly, the penally order of compulsory retirement from service dated 13.02.2017 was set aside by this Tibunal vide order dated 20.12.2019, operative portion of which has already been exiracied somewhere above. If is also not disputed that pursuant to liberty granted by this. Tribunal fo canduct the enquiry fom fhe stage of it supolying the cocuments as sought for by the z applicant, no such enquiry has been conducted by the respondents. i is also not disputed by the railways thal clause (vi) para 1002 of the Indian Railway (Traffic} OA.040/002 12/2020 15 coplicabis. The Same The object ofthe applicant are stil pending. Thus, sid down in the clause ivi) of para 1002 ig was not followed before effecting ore, the allegation of defrauding the | iF and no conclusion has baan crown re, at thig ot i fh teree wen ore. aT Ing stage, we find force in the fe learned counsel for the applicant x * = oo®. At GF loss is based solely on SUSBICION and 7 . : :
. there is no.concrefe evidence to show that applicant is responsible for the joss, therefore, recovery is not permissible.
20. The contention of the respondents in the _ written staternent as well as in the submission of ihe teamed counsel for the respondents is that the ¢ applicant did not rae any objectian regarding non _ supply of documents during the course of DAR enquiry > / and that DAR enquiry was conducted successfully. The said contentions/submissions hod agready been considered and not accepted by this Tribunal in ifs earlier order dated 20.12.2019 in OA.27/2018. At para Si of the said order, this Tdounal has recorded as under-
"vas The respondents ifed jo convince this court That the applicant did not raise any oblection regarding non supplying. of documents during the course of DAR enquiry therefore, the applicant's contention that he was not supplied the documents is an oflerhaugh? We are unable fo accept the said: contention of the respondents Inasmuch as on perusal of the order sheet dated 19.09.2014 [quoted of para 27 above) If is clear thal applicant had sought for the documents which was agreed fo supply by the enquiry officer."
OA.040/002 12/2020 "Use of Amar Nath Kapoor {supra}, the a observed as under-
aso clear thal the order of recovery, nolles a conclusion of culpabilfly, has 'pul info place and implemented completing ihe prescribed ary Inquiry/procesdings. In other © applicant's rights have clearly sigied in as much as the punishment ceded any due discipiinary process Sing of any guilt..."
of the aforesaid constitutional . equily and good consclence in ihe of livelinood of the People of this has fo be the basis of ail menial actions. An action of the State, 3 OG fecovery from oan empioyee, be In order . so long. as H is not a iniquitous to the extend that the of recovery would be more unfair, rongful, more Improper, and more nied, than the corfesponding right of ployer, fo recover the amount Or in ords, Tl such time as the recovery ave a harsh and arotrary effect on Cloyes, if would be permissible in OA,040/002)2/2090
22. Since affer setting aside of the penalty order vide our order dated 20.12.2019 no deparimental enquiry wos conducted as per liberfy aranted by this inbunel. we are Unable fo undersiand as to how the railway administration esiablished the charge of defrauding fhe raihways of Rs.7,59:536/-. Neither the jeamed counsel for ihe respondents In her arquments } nor the respondents in thelr wiitlen statement could substantiate their claim. Uni and. unless concrete findings are. arrived at through a prescribed procedure of law/ftule, the department cannot exercise thelr. power to recover the amount based on suspicion. As such, recovery from the salary is not justified. 23:
in the light of forgoing reasons, we are of the considered opinion that the applicant has been able fo make oul a good case warranting Interference. Accordingly, respondents ore directed not to make any recovery from the pay of the applicant for any unproven loss or fraud. Respondents are further directed fo refund the applicant the amount which ©A.040/00212/2020 was dlready ered under the head of commercial debi from fory of the applicant. lowed to the extent indicated qbove, 4 3 Safe Maniuls Gas Hon'ble Memeber tf} Mr. Nosteiasial Won' ble Memaber {Al CA.G40 (002 12/2020