Central Administrative Tribunal - Kolkata
Haripada Bagani vs Eastern Railway on 15 June, 2023
4 ws s rathat pebeses = 2 0.A/426/2017
c) Any other order/orders as to this Hon'ble Tribunal may deem fit and. proper,"
2. Heard Ld. counsel for both parties.
3. Ld. counsel for the applicant states that in the present facts and circumstances, the matter pertains to disciplinary proceedings. He states that, till date, the applicant has not been supplied with copy of the punishment order.
Ld. counsel for the applicant further states that it is for the first time in the reply that respondents have supplied copy of the punishment order, at page 18 of the reply, dated 18.04.2002, which reads as under:
"EASTERN RAILWAY NOTICE FOR IMPOSITION OF PUNISHMENT OF REDUCTION OF PAY | TO LOWER STAGS IN THE TIME SCALE.
P/Notice No. COM/CC/14 |LL 4/2000 | VO Divisional office E. Railway, Howrah Place of issue: Howrah Howrah, dated the 18/4/02 Sri Hari Pada Pangani ABC/LLH c/o BS/ LLH I have gone through the report of the D&AR Enquiry held against you in connection with the Major penalty C/S of even number dated 18.02.2000 and I accept the findings of the E.O. You are held responsible in this case and as a measure of penalty your present pay is Rs. 4135/- in the scale of Rs. 3200 to 490 of one year (CE) shall be reduced by one stages to Rs. 4050/- for a period of one year (CE) with immediate effect. The period of punishment for ONE YEAR (CE) shall operate to postpone your future increment on the expiry of the punishment. The reasons for coming to such decision is enclosed.
If you wish to make an appeal against the above punishment you can do so within a period of 45 days to Sri Dey in writing through proper channel. While doing so you should keep in mind the provisions of Rule 21(1) + (2) of R. S. D&AR Rules- 1968 which are produced below :
You should acknowledge receipt of this notice.
Signature:
7 Nm Name: BS Kanuki
3 . 0.A/426/2017 Designation: Divl Civil Manager /Hwh Copy to: BS/LLHfor information. He will please deliver the enclosed letter to the staff concerned in duplicate under his acknowledgement and send the said to this office early.
Signature: (sd---) Name: --
Designation: Divi. Civil Manager/Hwh Copy to DPO/HWH & OS{Pay, Bill/HWH for information and necessary Signature: (sd---) Name:
Designation: Divi. Civil Manager/Hwh Rule 21(1)+(2) of Rly. Servants (D&A) Rule-1968.
1, Every person submitted an appeal shail do so separately and in his own name. An appeal forwarded through or countersigned by a legal practitioner or an existing Rly. servants or a Ry. Trade Union official shall not be entertained but shall be returned with the direction to submit it under the signature of the appellant only.
2. The appeal shall be presented to the authority to whom the appeal lies, a copy being forwarded by the appellant to the authority which made the order appealed against, it shall contains all material statement and arguments on which the appellant relies shall not contain any disrespectful or improper language and shall be completed in itself." :
3.1. Ld. counsel for the applicant also draws attention to page 19 of the reply, which reads as under:
"EASTERN RAILWAY No.E/Appeal/8237/02. Howrah, dated 07.01.2003 or Hari Pada Pangani ABC/LLH Under BS/LLH Re: Your appeal dt. 10.502 against P/Notice No.COM/GC/ 14/11H/2000/V.0.,st. 18.4.02(Reduction of pay by one stage from Rs. 4135/- to .4050/- in Scale Rs. 3200/- - Rs.4900/- for the period of one year C/E).
After going through all aspects of the case | am not inclined to modify the order of D.A. Sd/-
or. Divi. Commi. Manager/Howrah Cony forwarded for information and necessary action to :-
1) OS/EAC-IH, (2) 05/Paybill. (3) /COM/CC together with the above P/File contg.. 43 pages with order, (4) BS/LIH, (5) HC/Staff Bureau.
Sr. Divi. Coml. Manager/Howrah"
RAO
4 oo O.A/426/2017 3.2. Ld. counsel for the applicant would make a submission and draws reference to RTI Application dated 31.12.2013 where the following facts has been recorded:
"TO The Sr. Divisional Commercial Manager & PIO Eastern Railway Howrah Sir.
Re: Information under the purview of "The RTI Act. 2005"
In connection with the DAR action initiated against the undersigned under major penalty charge sheet no.Com/CC/LLH/2000/VO dated 18.02.2000, the following information/documents may kindly be provided fo me in pursuance of the provisions made in "The RT! Act, 2005".
6. 'Copy of the Inquiry Officer's report in connection with the D&AR enquiry
- conducted to probe the charges framed in the subject charge sheet. Copy of the letter issued by the Disciplinary authority in connection with serving the said report on me along with acknowledgement of the ' undersigned in respect of receipt of the said report. Copy of the representation of the undersigned to the Disciplinary authority on the report of the Inquiry Officer, Punishment notice of. the Disciplinary authority, if any, and it acknowledgement by me.
Copy of the appeal of the undersigned, if any, against the punishment order.
Copy of the appellate authority's decision, if any. f am enclosing an IPO No. O3F 195346 of Rs. 10/ drawn on FA & CAO/E.Rily/Kolkata, as the prescribed fee. | will submit further fees, on hearing from your end, as the cost of the requisite documents. DA: As above.
Dated, the December 31-12 20173 Yours faithfully Sd/--
Haripada Bagani Sr. BC/TAK"
IMO 5 0.A/426/2017 3.3. In response to the said communication dated 31.12.2013 from the applicant, the following reply has been made by the PIO/Hwh & Sr. Divl. Commercial Manager/HWH, (Annexure A-7 to O.A) vide order dated 30.01.2014, which reads as under:
"EASTERN RAILWAY NO.P.COM/RT! Act-13/217 Howrah, dated the 30/Jan/ 14 Sri Hari Pada Bagani, 2685/1 G.T.Road, Shibpur (South), Howrah-711102 Sub: Information sought under RT! Act/05. Ref: Your RT! Application dated 31.12.13.
information/documents as sought for in your letter under reference were given to you at the time of DA proceeding under charge sheet No.COM/CC/LLH/2000/VO dt.
18.9.2000.
As per Hon'ble Central Information Commission New Delhi's decision vide No. CIC/AT/2006/004117 dt.5.12.2006, the purpose of RTI Act is to allow access to a citizen to information held by a public authority. The key element is provision of information: In so far as are information is held by a citizen himself. it must be construed that he already had access to such information and his seeking the same from a public authority is a wholly infructuous exercise.
You better look up your own records, Sd/---
Public Information Officer/HWH & Sr. Divl. Commi. Manager/HWH"
4. It is not a matter of dispute that the appeal has been disposed of by the Appellate Authority by virtue of the order dated 07.01.2003 against which there is no O.A pending till date. No further appeal has been filed by the applicant till date either in a higher forum or before this Tribunal as the case may be and the said order has attained finality. 4.1. To buttress his arguments, ld. counsel for the applicant averments made in the counter affidavit (page 12 of reply) inter alia to the fact that; OO 6 O.A/426/2017 "As the concerned vigilance DA Case No.COM/CC/14/LL/2000/VO was a old disposed of case | as charge sheet was issued vide C/S No.COM/CC/14/LLH/2000/VO dated 18.2. 2000, Enquiry Report was submitted by the 1.0. on 12.4.2001 establishing the chage against Charged Official, Punishment 'notice issued on 18.4.2002 and Appeal disposed of by the Appellate Authority vide order dated 7.01.2003, due to the very old and disposed of case file the DA case file is not readily available and thus the applicant was informed accordingly." The present matter pertains to joint enquiry along with one vendor Umesh Kumar he draws reference to an order dated 12.03.2000 wherein it has been stated that 'on receipt of the copy of the document that the applicant shall submit statement defence within a reasonable and admissible time.
4.2. Thereafter, the applicant made a defense statement. In the defense statement, the following has been recorded:
'Defence brief by Sri Hari Pada Bagani, ABC/Liluah in connection with D& AR case No. ENQ/SSW/MXH date 30.03.2007.
It is explicitly clear from the statement of Sri Umesh Kumar, defence witness, that | had no connection with. Rs.300/- (Rupees three hundred) which Sri Umesh Kumar Kept before me for exchange. Sri Umesh Kumar is by profession a pan seller near booking office.
Statement of Sri Umesh Kumar substantiate that | am totally innocent and had no intention of mine to misappropriate government money.
2. Regarding shortages in booking as shown in the document (Exibit-S-4) it is absolutely clear that 1 am not a habitual short remitter.
Shortages that occurred is due mainly to transactions at the overcrowded booking counters. But it is time no shortage of any kind is kept unpaid and it is paid as quickly as possible before closing of the balance sheet of next month. | have no intention of using The Government money for any personal or parochial interest.
In fine, | plead myself totally innocent and pray to authority to exonerate me of the above charges.
Hari Pada Bagani ABC/Liluah"
There is no averment regarding non supply of the document in said << MhO defense statement.
q 0.A/426/2017 4.3. There is a joint note at Annexure A-4 to the O.A., where there is also no averment with regard to non-supply of document has been made.
The joint note is reproduced as under:
"Joint Note Sri H. P. Bagani ABC/LLH was asked to produce his private and Govt. cash. As he was in the process of making over Rs. 9114/ to his relief Sri Chakraborty ABC, which was correct as per DTC Book. However when asked to produce any other cash in his possession, he produced Rs.300/- were kept on side of the table which he stated was money to be given to a vendor from who he had taken change.
XXXXX XXXX A local vendor one Umesh Kumar has come the counter to take change of Rs.300/- after closing my final account and !| already deposited the counter cash as per system. So | asked him to wait for some time to make change from the running counter as the counter was busy. The money is belong to Umesh kumar only and | am nothing to do with that money."
4.4. Furthermore, again, a reply to the findings has been made (Annexure A/5) dated 30.05.2001, where no plea of non-supply of the document has been made which is reproduced as under:
"TO, The Divisional Commi. Manager Easter Railway Howrah.
Subs Reply to findings of the D& AR enquiry (Item No. 5.40) Ref: Com/cc/14/LLH/2000/VO Dt. 27.7.2004 Sir, in reply to the above, especially for the Item No.5.4.0 under reference, | beg to submit that in absence of any imprest cash in the counter we sometimes take the help of outsiders for smooth functioning of counters without any hitch with the Passengers. Regularly we are to sell more than thousand tickets per shift but that without any imprest cash, small coins is very essential to us and in absence of any supply we generally take small coins for smooth operations of Counters.
In the past there were so complaints for non availability of Small Coins which can _ be Substantiated from the Complaints of passengers.
| do not know whether this practice is legal or illegal but all we do Is for the interest of the travelling public to mitigate the Situation with full integrity on our part.
With high regards, Date - 30/05/2001 Yours' faithfully Sd/-
Hari Pada Bagani ABC/Liluah"
oO MWWO 8 ' Q.A/426/2017
5. The main basis of this O.A is that, admittedly, respondents at this stage also have not stated that the documents are not traceable, therefore, the applicant could not take effective steps and, therefore, there is a gross violation of principles of natural justice the disciplinary proceedings are vitiated against the applicant. ANALYSIS In the matter of disciplinary proceedings, the law is well settled in B. C. Chaturvedi v. Union of India (1995) 6 SCC' 749, relevant para is reproduced as under:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined 'therein, apply to disciplinary proceeding. When the. authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
TOU 9 -- 0.A/426/2017 Ld. counsel for the applicant also avers that despite completion of the tenure of the punishment which has attained finality, the applicant has been suffering and has not been accorded any promotion or any financial upgradation till-'date. No further arguments have been advanced in the present O.A. Ld. counsel for the applicant has been taking contradictory plea one after another. At one stage, he highlighted hereinabove that no punishment order was supplied to him. However, he points out that during the course of hearing that he has preferred appeal against the -- _ impugned order. He tries to twist the case and states that it is not the case that there is no order of punishment which has not been appealed but in fact he urges that.due to non-supply of documents till date the disciplinary 'proceedings by itself is vitiated. He admittedly states that there j is no. appeal against the Appellate Authority' s Order till date. As already highlighted above in detailed, that even in the defense statement as well-as in the reply to the findings of the D&AR enquiry as also before the Appellate Authority, no such plea has been made or made available in the record. It is also pertinent to mention that the applicant is agitating his grievance by filing O.A in the year 2017 whereas, the Appellate Authority's Order attained finality on 07.01.2003. CONCLUSION
6... In view of the aforesaid facts and submission of the applicant qua non: grant of promotion even after the expiry of the penalty period is"
untenable in the light of the relief claim in the present matter in as much as that keeping in view the prayer, the promotion order altogether is.a separate cause of action and cannot be dealt with in the present O.A. oh ky CAT Bar, Kolkata.
10 | 0.A/426/2017 . Merely, because 'in the relief wherein applicant has prayed that the . punishment order may be quashed and after all due promotion and other service benefits be released. We observed that until and unless the punishment order and the Appellate Authority order is set aside, the question of promotion at this stage does not arise. Promotion and/or financial upgradation is a separate cause of action. The applicant is within the rights to agitate the same in separate application altogether which is unconnected and unrelated to the punishment order.
7. The O.A is devoid of merit and is, accordingly, dismissed. It is also pertinent to mention that since the punishment order as well as Appellate order was passed way back in the year 2002/2008 a valuable time of this Tribunal has been wasted by filing such frivolous O.A., a cost. of Rs. 500/- is imposed upon the applicant to be paid to the . . ° ' -- .
Ro | 7 | (Anindo Majumdar) | (Manish Garg) Member (A) . Member (J) $s -