Karnataka High Court
Puttaraju vs The General Manager on 7 September, 2017
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W.P.No.35307/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER 2017
PRESENT
THE HON'BLE MR. JUSTICE H.G.RAMESH
AND
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
WRIT PETITION NO. 35307/2017 (S-CAT)
BETWEEN:
PUTTARAJU
S/O BETTAIAH
AGED ABOUT 61 YEARS
EX-KEYMAN
SOUTH WESTERN RAILWAY
BANGALORE DIVISION AND
RESIDING AT: KETHOHALLI
RAMANAGARA TALUK AND
DISTRICT-562 128. ...PETITIONER
(BY SRI RAGHAVENDRACHAR.M., ADVOCATE)
AND:
1. THE GENERAL MANAGER
SOUTH WESTERN RAILWAY
HUBLI ZONE,HUBLI-580 020
2. THE DIVISIONAL PERSONAL OFFICER
SOUTH WESTERN RAILWAY
BANGALORE DIVISION
BANGALORE-560 001
3. THE DIVISIONAL RAILWAY MANAGER
SOUTH WESTERN RAILWAY
BANGALORE DIVISION
BANGALORE-560 001 ...RESPONDENTS
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W.P.No.35307/2017
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ANNEXURE-A THE ORDER OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH, BANGALORE
DATED:28.03.2017 IN SO FAR AS O.A.NO.147/2017 ONLY.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 11.08.2017 FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT THIS DAY, K.S.MUDAGAL J., MADE THE
FOLLOWING:
ORDER
K.S.MUDAGAL, J.:
The petition coming on for preliminary hearing, it is disposed of by this order.
2. The question involved in this case is whether the petitioner is entitled to seek review of the penalty of compulsory retirement imposed on him.
3. The petitioner was working in Railway Department as a Keyman. On 4.6.2011, he was deputed to work as Gateman at LC Gate No.34 at KM 40/000-100. He received intimation and instruction from his counter part regarding arrival of Train No.56232 and for closure of railway gate for other traffic. The petitioner also exchanged PN 17 assuring that the LC gate would be closed for road traffic. -3- W.P.No.35307/2017
4. It was alleged that though the petitioner gave such assurance, he failed to close the gate for passing of train even after exchanging the PN and only after physically sighting the train, he tried to close the gate. Meanwhile, an auto rickshaw entered the gate resulting in an accident and consequently casualties.
5. On the aforesaid allegations, the Disciplinary Authority initiated disciplinary inquiry against the petitioner on the charge of dereliction of duty amounting to misconduct. On service of Article of charges, the petitioner did not submit his defence statement to the Article of Charges. Ultimately, the Inquiry Officer was appointed and a disciplinary inquiry was conducted against him. The Inquiry Officer found the petitioner guilty and indicted him.
6. Annexures A.1 and A.2 are the proceedings of the disciplinary inquiry. In Annexure A.2, Question No.29 posed to the petitioner and his answer to the same, are as follows :-
"Q 29. Had you been more careful in your duties this accident could have been averted do you agree?-4- W.P.No.35307/2017
A. Yes."
7. On perusal of the record, it is seen that the Disciplinary Authority, vide Order at Annexure A.3 dated 19.5.2012, on hearing the petitioner, imposed the penalty of compulsory retirement from service with immediate effect. The petitioner challenged the same before the Appellate Authority under the Railway Servants (D & A) Rules, 1968. The Appellate Authority, vide Order at Annexure A.4 dated 29.7.2013, dismissed the appeal on merits.
8. Thereafter, the petitioner filed Original Application No.170/00147/2017 before the Central Administrative Tribunal (CAT), questioning Annexures - A,2 and A.3 on the ground that on the same set of facts, he was prosecuted in CC 1108/2011 and the court acquitted him on 30.11.2016. He claimed that in view of his acquittal order at Annexure A.5 in CC No.1108/2011, the order of punishment has to be reviewed.
9. Since there was delay in filing the Original Application, he filed Miscellaneous Application -5- W.P.No.35307/2017 No.170/00124/2017 for condonation of delay. Further, he filed OA 170/00148/2017 along with his son to consider his son for appointment under the Largess Scheme.
10. The Tribunal, by the impugned order at Annexure
-A dismissed all his applications assigning following reasons:
1) The petitioner did not challenge the Orders at Annexure A.2 and A.3 and allowed them to attain finality.
Therefore, it is not open to him to question the same.
2) The reasons assigned to explain the delay are not acceptable.
3) The Rules governing the criminal trial being so stringent, that a Delinquent Officer, as an accused, might get benefit of doubt, but that necessarily would not entitle him to clearance in the departmental inquiry. Reg. Maintainability:
11. As already pointed out, the petitioner filed application for condonation of delay and application challenging Anneuxres A.2 and A.3 and application to consider his son for the appointment under the Largess -6- W.P.No.35307/2017 Scheme. The Tribunal rejected all the three applications. The petitioner has not challenged the order of dismissal of the application for condonation of delay. Therefore, without challenging the order of M.A.No.170/00124/2017 for condonation of delay he cannot directly question the order on merits.
Reg. Estoppel:
12. The order of penalty at Annexure A.2 was passed on 19.5.2012. The Appellate Authority dismissed the petitioner's departmental appeal vide order at Annexure A.3 on 29.7.2013. The petitioner did not challenge both the orders within the prescribed time. Only after five years of passing of the order at Annexure-A.2, and four years of passing of the order at Annexure A.3, he demands for review of the orders passed at Annexures - A.2 and A.3. He has allowed those orders to attain finality.
13. If at all, he contends that pending criminal proceedings, the departmental inquiry should not have been proceeded, he should have challenged those two orders within prescribed time. That goes to show that he accepted -7- W.P.No.35307/2017 both the orders and only on acquittal in the criminal case, he is trying to seek review of the order. Since by that time, the orders at Annexures-A.2 and A.3 would have attained finality, he is estopped from questioning the same. Reg. effect of acquittal in criminal case
14. The bone of contention of the petitioner is that on the same set of facts, he was tried by a Criminal Court in CC 1108/2011 and is acquitted and therefore, the order of punishment also needs to be reviewed.
15. The Division Bench of this Court in the case of D.G.Manjunath vs. Karnataka Lokayukta and Others, ILR 2017 Kar.1429, relying on a judgment of the Supreme Court in Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corporation Limited, (2005)7 SCC 764, has held as follows:-
"4. We have examined the matter in the light of the above three decisions relied on by Learned Counsel for the petitioner and also a three Judge Bench decision of the Supreme Court in AJIT KUMAR NAG vs. GENERAL MANAGER (PJ), INDIAN OIL CORPN. LTD. (supra). In our opinion, the question of law raised by the petitioner is clearly -8- W.P.No.35307/2017 answered against him by the Supreme Court in AJIT KUMAR NAG as per the following observations made therein:
"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 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 -9- W.P.No.35307/2017 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 deserves to be quashed and set-aside." (Emphasis supplied) Having regard to the aforesaid judgment, there is no merit in the contention that on acquittal of the petitioner in the criminal proceedings, he gets absolved of his liability under the disciplinary jurisdiction. Therefore, viewed at from any angle, the impugned order does not call for interference of this court.
Petition is dismissed.
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JUDGE Sd/-
JUDGE nv