Central Administrative Tribunal - Cuttack
Sikur Gundua vs M/O Railways on 29 November, 2019
1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA No. 862of 2013 Present: Hon'ble Mr. Gokul Chandra Pati, Member (A) Hon'ble Mr. Swarup Kumar Mishra, Member (J) Sikur Gunduwa, aged about 52 years, S/o Late mania Gunduwa, At - Purana Goilkera, PO-Goilkera, Dist-West Singhbhum (Jharkhand).
......Applicant VERSUS
1. Union of India, represented through the General Manager, South Eastern Railway, Garden Reach, Kolkata.
2. The Divisional Railway Manager (Engg), South Eastern Railway, Chakradharpur Railway Division, At/PO-Chakradharpur, Dist- West Singhbhum (Jharkhand).
3. The Addl. Divisional Railway Manager (Engg), South Eastern Railway, Chakradharpur Railway Division, At/PO-
Chakradharpur, Dist-West Singhbhum (Jharkhand).
4. The Sr. Divisional Engineer (West), South Eastern Railway, Chakradharpur Railway Division, At/PO-Chakradharpur, Dist- West Singhbhum (Jharkhand).
5. The Asst. Divisional Engineer-cum-Disciplinary Authority, South Eastern Railway, Jharsuguda, At/PO/Dist-Jharsuguda.
6. Mr.A.K.Saxena, Sr. Section Engineer, (P.Way) cum-Inquiring Officer, South Eastern Railway, Rajgangapur, At/PO- Rajgangapur, Dist-Jharsuguda.
......Respondents.
For the applicant : Mr.B.S.Tripathy, counsel
For the respondents: Mr.T.Rath, counsel
Heard & reserved on : 14.11.2019 Order on : 29.11.2019
O R D E R
Per Mr.Gokul Chandra Pati, Member (A)
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"(a) To pass appropriate orders quashing the orders of disciplinary authority dtd. 3.3.2012 in annexure A/2, appellate authority dtd.
10.12.2012 in annexure A/3 and revisional authority dtd. 31.1.2013 in annexure A/6 and
(b) To pass appropriate orders as may be deemed fit and proper in the facts and circumstances of the case and allow the OA with cost."
2. The applicant was served with a charge-sheet dated 25.6.2011 (Annexure-A/1), while working under the respondents as Head Trackman. One charge against him was that he has secured appointment by fraudulent means by giving false declaration. The Inquiry Officer (in short IO) was appointed. The 2 inquiry was postponed in first two sittings and was completed in third sitting on 3.12.2011. It is averred in the OA that the IO did not give any opportunity to the applicant to engage his defence counsel during inquiry. It is stated in the OA that after completion of inquiry, the disciplinary authority did not supply a copy of the IO's report and passed the order to impose the penalty of dismissal from service, which was communicated vide order dated 3.3.3012 (Annexure- A/2).
3. The applicant submitted an appeal dated 9.7.2012 (Annexure-A/4) before the respondent No. 4, who rejected the appeal vide order dated 10.12.2012 (Annexure-A/3). The applicant, thereafter, filed the revision petition dated 31.12.2012 (Annexure-A/5) before the respondent No. 3, who rejected it vide order dated 31.1.2013 (Annexure-A/6).
4. The grounds advanced in the OA are that he was appointed in 1990 on loyalty quota on the ground that the adopted son of late Mania Gunduwa, who was working as Head Trackman. It is also stated that he could not defend the charges properly as no opportunity to engage defence counsel was given to him and that he was not supplied a copy of the IO's report even though the same was stated in the impugned punishment order dated 3.3.2012 (A/2) to have been sent to the applicant. It was also stated the order of the Appellate Authority was cryptic without mentioning any reason for rejecting the appeal and hence, it is not sustainable.
5. Counter filed by the respondents to oppose the OA stated that vide the letter dated 5.8.2011 of the IO to the applicant to appear for the inquiry allowed him to attend with his defence counsel. In response, the applicant attended the inquiry. Hence, the contention in the OA that the applicant was not allowed to engage defence counsel has been denied. Regarding the allegation of non-supply of IO's report to the applicant, it is stated that the report was sent to the applicant to submit his representation within 15 days, but the applicant did not submit any representation. It is stated that a copy of the inquiry report with the acknowledgement of the applicant are enclosed at Annexure R/2 and R/3. It is stated that the applicant in his appeal or revision did not raise any point regarding non-receipt of the inquiry report. It is also stated that as per the deposition of the applicant (copy at Annexure-R/4), the applicant has admitted his guilt. It is averred that the applicant got the appointment against loyalty quota for which he was not entitled since his natural father was not a railway employee and he got the employment on false declaration.
6. Heard learned counsel for the applicant. He submitted that the applicant is the adopted son of late Mania Gunduwa, who was a railway servant and he 3 had been appointed in 1990 under loyalty quota as son of Mania Gunduwa. It was submitted that the applicant is an illiterate person. He was chargesheeted on 25.6.2011 (A/1) on the allegation that he got the job on false declaration. He also submitted that the report of the IO was not received by the applicant and that no documentary evidence was produced to prove the charges. Learned counsel also submitted that as stated in the appeal filed by the applicant, he was feeling nervous, not understanding what to do at the time of inquiry.
7. Heard learned counsel for the respondents who reiterated the contentions in the Counter to deny the grounds made out in the OA. It was stated that the applicant had submitted an affidavit at the time of his appointment declaring him to be the son of Mania Gunduwa. Learned counsel also filed a copy of the inquiry proceedings in support of his contention that the applicant was provided reasonable opportunity and the said copy was kept on record.
8. We have considered the pleadings on record and the submissions of learned counsel for both the parties. The Article I of the charge is stated at Annexure-A/1 as under:-
"That the said Sikur Gunduwa s/o Lt. Mania Hd. Trackman under SSE/P./way/GP has secured the appointment by fraudulent means by giving false declaration and thus violated para 3.1(i), (ii) and (iii) of R.S Conduct Rule- 1966."
9. The report of the IO has been enclosed by the respondents with the Counter at Annexure-R/2, which states as under:-
"As per ADEN/JSG's letter No.E/19/major/SG dtd. 15.7.2011 the undersigned appointed as an enquiry officer. After that 1st sitting inquiry was fixed on 22.8.2011 one copy of the enquiry notice was served to the party through SSE/P.Way/GP's office and the same enquiry notice received by the party on 11.8.2011. The CO Sri SIKUR GUNDUWA partially recorded but enquiry was not completed due to non availability of service record of the party. 2nd sitting of enquiry was fixed on 3.9.2011 and the enquiry letter received by the party on 22,.8.2011. The CO Sri SIKUR GUNDUWA attended the enquiry on 3.9.2011. But the enquiry could not be completed in absence of Sri M.ALAAM, PI/CKP and due to non availability of service record of the party. Finally 3rd sitting of enquiry was fixed on 3.12.2011 and enquiry letter send to the party through SSE/P.Way/GP's office. The CO Sri SIKUR GUNDUWA was informed well in advance and attended the enquiry on 3.12.2011.
The statement of CO Sri SIKUR GUNDUWA is taken which has been recorded and signed by the party the same is enclosed.
On verification of all the documents it is proved that Sri SIKU GUNDUWA is original son of Lt. Patar Gunduwa (real father) and party appointed in Railway as son of Lt. Mania, who was a Railway employee in CKP division, on retirement ground. During enquiry it is revealed by the party that Mania Gunduwa is the uncle of CO Sri Sikur Gunduwa and secured the Railway service by fraudulent means by giving false declaration as per available evidence & witness. Hence in this particular case charges framed against CO Sri SIKUR GUNDUWA vide SF-5 No. E/19/D&A/SG/07 dtd. 25.6.2011 is correct.
Therefore party is found guilty of the above charges. Every opportunity was extended to the party but he failed to avail the same."4
10. Under the rule 9 of the Railway Servant (Discipline and Appeal) Rules, 1968, the IO is mandated to give due opportunity to the applicant to defend the charges. The provisions of the rule 9 as under will clearly show the need for such opportunity:-
"(19) When the case for disciplinary authority is closed, the Railway servant shall be required to state his defence orally, or in writing, as he may prefer. If the defence is made orally it shall be recorded and the Railway servant shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any.
(20) The evidence on behalf of the Railway servant shall then be produced. The Railway servant may examine himself in his own behalf, if he so prefers. The witnesses produced by the Railway servant shall then be examined by or on behalf of him and shall be cross-examined by or on behalf of the Presenting Officer, if any. The Railway servant shall be entitled to re-examine the witnesses on any point on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
(21) The inquiring authority may, after the Railway servant closes his case, and shall, if the Railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Railway servant to explain any circumstances appearing in the evidence against him.
(22) The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, and the Railway servant, or permit them to file written briefs of their respective cases, if they so desire.
(23) If the Railway servant, to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte. ................................................... (25)(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain -
(a) the articles of charge and the statement of imputations of misconduct or misbehaviour;
(b) the defence of the Railway servant in respect of each article of charge;
(c) an assessment of the evidence in respect of each article of charge; and
(d) the findings on each article of charge and the reasons therefor.
Explanation - If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of charge, it may record its findings on such article of charge:
Provided that the findings on such article of charge shall not be recorded unless the Railway servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge."
11. It is not clear from the IO's report at Annexure-R/2 if the IO has complied with the provisions under the sub rules extracted above. The report does not show whether the applicant was allowed the opportunity to produce the defence witness and submit the written brief as provided under the rules. There is nothing in the copy of the proceeding file submitted by learned counsel for the respondents at the time of hearing, to show that the IO has followed the 5 procedure as provided under the rules. Only the applicant has been examined and his statement recorded. No other witness has been examined and although the charge-sheet mentioned the name of M. Alam as a witness, he does not appear to have been examined by the IO. Copy of the proceeding file did not disclose if M. Alam was even noticed by the IO to appear for the inquiry. In spite of these facts, the IO's report (R/2) has casually mentioned that "Every opportunity was extended to the party but he failed to avail the same." The report does not state what opportunities allowed to the applicant were not availed by him. There is nothing on the inquiry record to show that the opportunities as required under the rule 9 were allowed to the applicant. Unfortunately, the conduct of the IO as revealed from the proceedings record, clearly shows that he did not comply the mandate of the rules to provide reasonable opportunity to the applicant. The report of the IO shows that his conclusion has been mainly based on the statement of the applicant which has been termed as admission of charges. The statement at Annexure-R/4 has been referred by the respondents in this regard. Even if it is treated as admission of charges, still it is the duty of the IO to follow the provisions of the rules as extracted above and allow reasonable opportunity to the applicant to defend the charges, particularly since the applicant is an illiterate person from Scheduled Tribe community. No efforts seem to have been taken by the authorities to comply the provisions of the rules assuming that in view of the statement of the applicant at Annexure-R/4, the charges are proved against him.
12. Regarding the applicant's contention about non-supply of the IO's report to him, it is stated in the Counter that the IO's report (R/2) was sent to the applicant who has received it as per the acknowledgement at Annexure-R/3. Annexure-R/3 is the letter dated 22.12.2011 and the LTI of the applicant has been taken on 29.12.2011 on the body of the letter at Annexure-R/3. Since the applicant was an illiterate person, the person who had served the letter at R/3 to the applicant should have also signed with the certificate that the letter with enclosure was handed over to the applicant. No such certificate has been furnished to show that the applicant was in fact handed over a copy of the letter with IO's report on 29.12.2011. Hence the simple LTI mark on the letter at Annexure-R/3 does not prove that the IO's report has been communicated to the applicant as required under the rules.
13. The respondents have stated in the Counter that the applicant has not stated in his appeal that he did not receive a copy of the IO's report. This statement is incorrect since it is found that in the 'Mercy appeal' dated 6 9.7.2012 (Annexure-A/4), the applicant has clearly stated in first para of the page 3 of the said appeal as under:-
"The enquiry officer had not supplied me copy of proceedings of the enquiry till date."
Above contentions in the appeal show that non-receipt of the inquiry proceedings was mentioned in the applicant's appeal. The Appellate Authority in his order dated 10.12.2012 (Annexure-A/3) has stated as under:-
"After going through entire case file and the mercy appeal submitted by you, it is seen that you were dismissed from Rly. Service by the Disciplinary Authority on the charges of securing appointment by fraudulent means - by giving false declaration. This charge has been accepted by you.
It is also seen that adequate opportunities was given to you to represent and defend your case and due procedure has been followed in deciding case.
At present, I find no merit in the case for any relaxations in the punishment. Hence punishment imposed by the Disciplinary Authority shall "Stand Good" i.e. dismissal from Railway Service without any compassionate benefit.
You are hereby informed that, if you desire you can made an appeal against the order of the undersigned to the Revisionary Authority i.e. ADRM/CKP within 45 days but the appeal should not contain any disgraceful language."
14. From above, it is clear that the Appellate Authority has completely ignored the specific point submitted by the applicant about non-receipt of the inquiry proceedings in his appeal dated 9.7.2012 (Annexure A/4), Other point in his appeal about the applicant being adopted by Late Mania Gunduwa as his son as per the local customs, has also not been considered by the Appellate Authority, who seems to have presumed that the applicant is guilty without following due process of law. It is the responsibility of the Appellate Authority under rules to examine if the provisions of the rules were adhered to by the IO and the disciplinary authority in the proceedings. Although a crucial deviation from the rules like non-receipt of the inquiry proceedings was raised by the applicant in the appeal, the Appellate Authority has completely ignored such submission and passed the order dated 10.12.2012 (Annexure A/3) with presumption that the applicant has accepted the charge ignoring the contentions in the appeal. We take note of the provisions of the rule 22(2) of the Railway Servant (Discipline and Appeal) Rules, 1968 (in short 'Rules') in this regard, which stipulate the following:-
"(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider:-
(a) whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders:-
(i) confirming, enhancing, reducing or setting aside the penalty; or 7
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case:........."
Perusal of the impugned order dated 10.12.2012 (A/3) with reference to the appeal dated 9.7.2012 of the applicant (Annexure-A/4) and the rule 22(2) as extracted above, will show that the order of the Appellate Authority dated 10.12.2012 (A/3) violates the provisions of the rule 22(2) of the Rules, 1968 and hence, it cannot be sustained under law and the said order has been passed without application of mind.
15. The applicant approached the Revisionary authority against the order dated 10.12.2012 of the Appellate Authority vide his petition dated 31.12.2012 (Annexure-A/5) raising the issue of his adoption by his uncle Late Mania as son as per local customs. The Revisionary authority has rejected the revision by passing the order dated 31.1.2013 (Annexure-A/6) in which the authority did not mention anything about the contention of the applicant and observed as under:-
".....From the enquiry report and the relevant documents, it has been established that you are not the son of Late Mangal Singh Gunduwa and as such you are not entitled for job in Railways. This has also been certified by Manki, Goilkera Area. There is no proof on record to suggest that you were adopted son as you claimed in para 6 of your appeal...."
It is not clear from the order dated 31.1.2013 how the Revisionary authority concluded that the applicant was not the son of Late Mangal Singh Gunduwa, which was never claimed by the applicant, who claimed that he was the adopted son of Late Mania Gunduwa. Further, the Revisionary authority has pointed out to some certificate by Manki, Goilkera Area, which has not been referred in the charge-sheet. There is nothing about the so called certificate in the inquiry record. Clearly, the Revisionary authority has relied on some extraneous factor, which is not on record, for reaching his conclusion.
16. From the discussions above, we are of the considered opinion that there has been gross violation of the rules in the matter and the applicant has not been provided with a reasonable opportunity to prove his defence that he was the adopted son of Late Mania Gunduwa. No evidence has been produced in the inquiry to prove the charge of adopting fraudulent means against the applicant. It has not been explained in the pleadings of the respondents if any inquiry was conducted about the correctness of the facts mentioned by the applicant before considering his appointment under loyalty scheme. No details of such 'loyalty scheme' have been furnished by the respondents in the inquiry to establish that the applicant had adopted fraudulent means.
817. In view of the above discussions, we agree with the contentions of the applicant that reasonable opportunity has not been extended to him in the proceedings as required under the rules. As a result, the impugned punishment order and orders of the Appellate authority and Revisionary authority are not sustainable in the eyes of law and the impugned orders dated 3.3.2012 (Annexure-A/2), dated 10.12.2012 (Annexure-A/3) and dated 31.1.2013 (Annexure-A/6) are accordingly set aside and quashed, while remanding the matter to the Disciplinary Authority to reconsider the applicant's case in the light of the deficiencies mentioned in this order, particularly regarding the deficiencies in the report of the IO and pass a fresh order in the matter as per the provisions of the law, communicating a copy of such order to the applicant within two months from the date of receipt of a copy of this order. It is made clear that till final order of the Disciplinary Authority is not passed afresh in this disciplinary proceeding, the service of the applicant will be regulated as per the provisions of the sub-rule 4 of the rule 5 of the Railway Servant (Discipline and Appeal) Rules, 1968 and the applicant will be entitled for consequential benefits as per the above rules.
17. The OA is allowed as above with no order as to costs.
(SWARUP KUMAR MISHRA) (GOKUL CHANDRA PATI) MEMBER (J) MEMBER (A) I.Nath