Central Administrative Tribunal - Lucknow
Ram Prasad vs Union Of India on 6 December, 2022
CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
Original Application No: 332/00312/2016
Order Reserved on: 17.10.2022
Order Pronounced on: 06.12.2022
CORAM
HON'BLE SHRI JUSTICE ANIL KUMAR OJHA, M-(J)
HON'BLE MR. DEVENDRA CHAUDHRY, M- (A)
Smt. Suvashi Devi, aged about 74 years, Widow of Late
Shri Ram Prasad, Resident of Mati Chhapauli, Distrit, Deoria,
....Applicant
By Advocate: Shri Praveen Kumar
Versus
1. Union of India through the General Manager, North
Eastern Railway, Goraknpur.
2. Additional Divisional Railway Manager, DRM Office, N.E.
Railway, Izatnagar, Bareilly.
3. Sr. Divisional Signal and Telecommunication Engineer,
DRM Office, N.E. Railway, Izatnagar, Bareilly.
.....Respondents
By Advocate: Ms. Madhu Yadav
ORDER
HON'BLE SHRI DEVENDRA CHAUDHRY, MEMBER (A) The present OA has been filed challenging the charge sheet dated 18/4/1991, the punishment order dated 04.9.2015 by Page 1 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. which the applicant has been removed from service, the Appellate Order dated 15.10.2015 and the Revisionary Order dated 01.04.2016 against the punishment order.
2. Per applicant, brief facts are that he started working for the respondents first as a Casual Labour under Shri Paras Nath, who was Permanent Way Inspector (PWI) at Construction Yard Gorakhpur in the period 16.10.20180 to 15.11.1981 for which a Casual Labour card (CLC) was also issued. Later, he worked in the period October, 1980 to 1989, under PWI Kannauj, PWI, Mathura and PWI Fathegarh for six more years in the period July 1983 to July 1989. In August, 1989, applicant was granted regular appointment on the post of Khalasi in the pay scale of Rs. 750-950 in Signal and Telecommunication Department vide order dated 28.8.1989 under the Prime Minister Roajgar Yojna. After working thus for two years, a Charge memorandum was issued vide 18.4.1991 on the charge that the applicant had worked on the basis of a forged CLC of the period of 1980-81 and then continued to work as Casual Labourer under various PWIs and then on the basis of such working, even obtained a regular appointment in 1989. That since the first CLC was forged, hence appointment obtained later in 1989 was on the basis of a forged CLC and so the appointment itself was founded on fraud and hence the removal from service order of 04/9/2015. It is the contention of the applicant that he never forged any labour card and had honestly worked under the PWI Gorakhpur for the Page 2 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. first time on the basis of the CLC of the period. That later periods were covered by a labour card whose genuineness is not doubted even by the respondents and so the removal from service is highly unjust. More so, the punishment has been imposed 24 years after service of the Charge memorandum and 20 years after finalization of the Inquiry report dated 07.12.1995. Further the main person who could have proved the genuniness of the CLC of the 1980-81 period, viz Sri Paras Nath has not been examined at all and the respondents have relied on mere statements of Government witnesses to hold the applicant guilty of working on a forged CLC which evidence is not sustainable in law. Thus, on the whole (i) the punishment order imposed on 24 year old Charge memorandum and (ii) 20 year old Inquiry report without the (iii) examination of the key witness who could have proved the genuineness of the alleged CLC vitiates the whole process of disciplinary proceedings. Hence the punishment so imposed is not in accordance with law and therefore, liable to be quashed. Hence the O.A.
3. Per contra, the respondents have defended the punishment order on the grounds that the CLC of 1980-81 period is forged simply because there was no office of the PWI at Gorakhpur in the said period and so no labour card could have been issued by anyone. Moreso, (i) the subsequent labour card on which basis the applicant worked under other PWIs does not make good the first labour card which is forged, (ii) that an inquiry was also conducted for the purpose which proved that the labour card Page 3 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. was not genuine, (iii) that muster rolls of the period do not disclose the name of the applicant nor give any proof of payments to the applicant for the working as Casual Labourer. Hence, as the first labour card was forged therefore, the appointment offered subsequently on the basis of the work done as Casual Labourer becomes vitiated and so the appointment was secured on fraudulent document basis and so the punishment of removal from service is quite justifiable. Hence the O.A lacks merits and is liable to be dismissed.
4. Heard the learned counsels for the parties at length and perused all the pleadings carefully.
5. The key issue is for consideration is the genuineness of the casual labour card for the disputed period in terms of the rival evidences adduced by the applicant and the respondents.
6. Inorder to adjudicate the point it would be well to begin with by examining the labour card under dispute. Evidently, the card has written on it particulars relating to the applicant's working as Casual Labourer for the period 16.10.1980 to 15.11.1981 and also for various periods in other years such as 1984 which periods are also verified by a signatory and not disputed with regards to actual working by the applicant in the said periods other than the window of 16/10/1980-15.11.1981 and particularly when the entries with respect to these other periods is stated explicitly in the Charge memorandum Annexure A-5. For reference relevant portions of the Annexure Page 4 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. A-5 are reproduced hereunder:
"अवचार व कदाचार लाांछन ां का सार वववरण श्री राम प्रसाद पुत्र भागीरथी खलासी अधीनस्थ ग रखपुर इज्जत नगर ने वदनाांक 16.10.80 से 15.11.81 तक आकस्मिक श्रवमक के रूप में रे 0 पथ वनरीक्षक वनमााण ग रखपुर के अधीनस्थ काया करने का आकस्मिक श्रवमक की सेवा का अवभले ख प्रस्तुत वकया इसी अवभले ख के आधार पर श्री राम प्रसाद पुत्र भागीरथी जुलाई 03 से अक्टू बर 03 तक 77 वदन रे ० पथ वनरीक्षक कन्नौज वदनाांक 16.01.84 से 15.05.84 तक 116 वदन रे ल पथ वनरीक्षक (ववशेष) मथुरा छावनी वदनाांक 16.02.85 से 15.03.85 तक 28 वदन मु ख्य रे ल पथ वनरीक्षक फतेहगढ़ जून 5 से नवम्बर 5 तक 145 वदन तथा 23.01.88 से 20.07.89 तक 1274 वदन रे ल पथ वनरीक्षक कन्नौज के अधीन वनयुस्मती प्राप्त की ग्रुप डी श्रेणी में अनु सूवचत जावत के शार्ा फाल क पूरा करने के वलए प्रधानमां त्री के आदे श अनु सार अगस्त 1989 में की गई छानबीन परीक्षा में श्री राम प्रसाद पत्र भगीरथी के आवेदन पर स्क्रीवनां ग की गई तथा आकस्मिक खलासी पद पर इज्जत नगर के अधीनस्थ वनम्नवलस्मखत स्पष्ट शतों के साथ कायाालय आदे श सांख्या ई / 213/शार्ा फाल / अनु० जावत वदनाांक 28.08.89 द्वारा वनयुस्मत की गई।
1. रे ल सेवा में प्रथम वनयुस्मत का सत्यापन ह गा
2. जावत प्रमाण पत्र प्रस्तुत करना ह गा
3. जन्मवतवथ का प्रमाण पत्र प्रस्तुत करना ह गा
4. पुवलस द्वारा चररत्र जाांच का उवचत अां न्त प्राप्त ह ना नै वमविक श्रवमक की सेवा अवभले ख के अनु सार प्रथम वनयुस्मत वदनाांक 16.10.80 से 15.11.81 तक की वहत वनरीक्षक श्री डी० के० एल० चौहान द्वारा सांबांवधत पयावेक्षक रे ल पथ वनरीक्षक (वीणी) वनमााण ग रखपुर कायाालय के मू ल अवभले ख ां के आधार पर सत्यापन हे तु जाांच की वजसकी ररप र्ा वनम्न प्रकार है तथा प्रवतवलवप सांलग्न है
16.10.80 से 15.11.81 उपर त अववध में रे .प.वन याडा ग रखपुर का क ई कायाालय नहीां पाया वजस अववध में कायाालय था उस अववध की मास्टर सीर्ीपी जाांच की गई वजसमें सवमत का नाम नहीां है । नीमीतक श्रवमक का सेवा अवभले ख में दशााई गई प्रथम वनयुस्मत की काया अववध वदनाांक 16.10.80 से 15.11.81 तक फजी पाए जाने पर श्री राम प्रसाद पुत्र भगीरथी की रे ल सेवा समाप्त करने से पूवा राज्य कमी वनरीक्षण श्री आरबी लाल द्वारा जाांच वदनाांक 30.08.90 क कराई गई तथा मु ख्य कावमा क वनरीक्षक (आरक्षण) की ररप र्ा के अनु सार श्री राम प्रसाद पुत्र भागीरथी ने वदनाांक 16.10.80 से 15.11.81 तक काया अववध का फजी कार् ड बनवाकर नौकरी करते रहे हैं ।
श्री राम प्रसाद पुत्र भागीरथी के आवेदन के सांदभा में न्याय दे ने के दृवष्टक ण से प्रथम वनयुस्मत की काया अववध 16.10.80 से 15.11.81 थी तथा मु ख्य इां जीवनयर/ वनमााण ग रखपुर से जाांच कराई गई परां तु उप मु ख्य इां जीवनयर / वनमााणग रखपुर ने अपने पत्र सांख्या एफ / 247/ ब.पी./ ई-11 ए 732 वदनाांक 1210.1990 द्वारा सूवचत वकया है वक श्री राम प्रसाद पुत्र व भगीरथी नाम का क ई भी कमा चारी रे ल पथ वनरीक्षक गाडा ग रखपु र कायाालय के अधीनस्थ वदनाांक 16.10.80 से 15.11.81 तक कायारत नहीां था उपर त जाांच ररप र्ा के आधार पर यह स्पष्ट है वक रामप्रसाद पुत्र भगीरथी ने वदनाांक 16.10.80 से 15.11.81 तक काया अववध का पांजीकरण आकस्मिक सेवा अवभले ख प्रस्तुत वकया है वजसके आधार पर इज्जत नगर मां डल में वनयुस्मत पाते रहे क् वां क महाप्रबांधक कावमा क ग रखपुर पत्र सांख्या ई/57/00 वदनाांक 06.01.81 के अनु सार वदनाांक 01.01.81 से श्रवमक के साथ में प्रथम वनयुस्मत के वलए महाप्रबांधक क ही अवधकार सवमवत था चूांवक 01.01.81 श्रवमक के रूप में प्रथम वनयुस्मत के वलए महाप्रबांधक क ही अवधकार सीवमत था अतः रे ल सेवाएां सेवा में वनयुस्मत पाने के वलए श्री राम प्रसाद पुत्र भागीरथी ने वदनाांक 16.10.80 से 15.11.81 तक काया अववध का फजी वनवमतैक श्रवमक का सेवा अवभले ख प्रस्तुत वकया है इस प्रकार श्री राम प्रसाद पुत्र भगीरथी रे ल सेवा आचरण वनयम के 1968 अनुच्छेद 3 (1) (i) तथा 3 (1) (ii) के अां तगात उिरदाई कराए जाते हैं Page 5 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. Further examination of the CLC reveals that there is a duly attested photograph of the applicant by an undisputed authorized signatory which the respondents do not negate as being genuine and the labour card also records body sign details for recognition/identification etc. Now let us deal with the challenges by the respondents against this card.
7. The first point asserted by the respondents is that the labour card mentions 395 days of absence of the applicant and that this is a sign of being a forged card as no labour card has mention of absence of working of a Casual Labourer as against the mandatory typical mention of the number of days the concerned Casual Labourer may have worked. That, this superfluous information is a straight give-away with regards to the genuineness of the card and hence it is forged. The applicant has rebutted the same by asserting that it is not for him to record his presence and absence and it was the concerned authority viz the PWI Gorakhpur Yard under whom he worked as Casual Labourer who did so, that is make entries at least of the period he worked which is recorded for the period at least of 16.10.1980 - 15.11.1981. That, in addition, he worked on the basis of the same labour card in the period of 1984 and that period is accepted as genuine by the respondents even in the Charge memorandum and so to hold that in the same labour card part of which is accepted as genuine by the respondents - how can the other entries become fraudulent. This is indeed a valid point by the applicant, because on the Page 6 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. same labour card, some entries cannot be genuine while other entries as fraudulent and more so despite recording of admittedly genuine entries how can the card itself become forged when it does contain genuine entries even if in part. This point when weighed in with the fact that the respondents own employee Shri Paras Nath who the applicant swears issued the labour card was not examined by the respondents in the inquiry process (the respondents contend that he did not come for examination as witness despite several requests to him through letters). Therefore, if the issuer of the card is not examined given the fact that he was still in service when the inquiry was being conducted and the disciplinary proceedings was on-going then how can any other evidence out-weigh this simple yet highly significant piece of factum of non-examination of the key witness. It is like trying to hold someone guilty of murder without examining the known eye-witness. Therefore, immediately, on the evidence per above, it becomes difficult to hold the labour card to be false.
8. Going forward, the next challenge by the respondents is that first of all there was no office of the PWI at Gorakhpur as asserted to by the applicant and secondly there are no payments records with regards to any payments ever made to the applicant per the muster roll of the period. That this was because there was no office of the PWI Gorakhpur yard in the first place where the applicant asserts that he worked at. However, at the same time the respondents assert in their CA Page 7 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. that evidence exists for payments to other workers but not for the applicant. Does this not imply that the office did exist but in which the payments were per the respondents made to other Casual Labourers but amongst them, the name of the applicant does not find mention and so the office never existed at all with regards to the applicant. Para-7 of their CA claims that the name of the applicant was not in the muster roll. Same is reproduced hereunder:
Para-7 of CA:
"That the averments made in para 4.4 and 4.5 of the O.A. are denied. In reply thereto it is submitted that the verification of the applicant's casual labour card showing his working period from 16.10.1980 to 15.11.1981 under P.W.I/Con. Gorakhpur Yard was found forged. The available Muster Sheets were also checked and verified to ensure his working during the aforesaid period but the name of the applicant was not found therein [EMPHASIS SUPPLIED]. Hence the removal of the applicant from service of the stabling the authenticity of the casual labour card and affording his the opportunity in departmental enquiry is valid and in accordance with rules."
The question of existence of the office is important given the fact that the respondents own employee Shri Paras Nath was not examined at all. More importantly, if the respondents assert that the name of the applicant is not found in the muster roll, how can the same be held as harmonious with the assertion in the next breath that there was no office of the PWI at all at the same place where payments were admittedly given to other workers - other than the applicant. The point is that a statement to the effect that the name of the applicant was not in the muster roll - does it also not by implication imply that there Page 8 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. was an office because if there wasn't any, then how come the issue of existence of any muster roll arise at all or for that matter payments to other workers arise and so if the name of the applicant is not in a given muster roll which the respondents rely upon to emphasize that the name of the applicant is not on it, this would indirectly imply that there was an office of some sort of PWI Gorakhpur yard which had an admitted muster roll for payment of wages of workers but in which only the name of the applicant is missing and since it is missing with regards to payments, hence the office of PWI did not exist and the labor card is forged. This kind of an assertion is like wanting the cake even while eating it. The point is that either the office cannot exist for the period of muster roll which records names of other workers or it exists and the name of the applicant is somehow not recorded in the muster roll payments.
9. But question arises as to how, can such a situation exist that there is no office but there is a muster roll for the same?. So what follows by implication is that the assertion of the respondents that as the name of the applicant is not in the muster roll, hence the office did not exist and that the applicant never therefore, worked in the said location and so the labour card is forged seems from any angle a very incongruent assertion of an argument. Therefore, the assertion of the respondents that while a muster roll did exist but the office did not exist is highly unjustifiable and so the averment of the respondents that the card is also forged becomes even more Page 9 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. trash worthy. This kind of anachronism between the muster roll but without an office on the other hand dealing with work done qua the non-existent office, puts the claim of the non-existence of the name of the applicant on the muster roll a highly disputable justification to hold. The applicant has claimed in para-4.18 (c) of the O.A that the PWI Mr Nath used to pay him wages and that Mr Nath used to take his thumb impression on the payments made thereof. The respondents deny the same in their para-16 of the CA on the basis that despite calling Mr Nath several times, since he did not appear, hence this claim of the applicant is denied. This kind of a bald denial is not justifiable because the claim of the applicant remains unchallenged by default of a proof worthy counter claim and the version of the respondents cannot be accepted on their say-so. If the rules of evidence are applicable on the employee they are equally well applicable on the respondents. The respondents cannot brush aside an assertion by mere denial. Accordingly the justification of the respondents that the name of the applicant was not in the muster roll and the office did not exist is prima facie not worthy of holding forth and so the consequential assertion of the respondents that the labour card is forged also becomes shaky.
10. The next point raised by the respondents against the card is with regards to the preliminary inquiry conducted by two officers in which they say that the factum of forged labour card is established. The applicant has countered this by asserting that fundamentally, mere statement of the concerned inquiry Page 10 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. officers cannot be held as sufficient proof of existence or not of an office in the absence of any document to support such contention. The applicant has further buttressed this assertion by pointing out that the respondents averment that (a) Per the Charge memorandum - page 33 of O.A that Shri RB Lal, Chief Commercial Inspector and Shri KS Chauhan, Welfare Inspector who conducted an Inquiry wherein, they simply relied on the statement of the Deputy Chief Construction that there was no office of the PWI during the disputed period and there was no personal visit to site or reliance of even any connected document that there was no office is not justifiable. We are inclined to agree to this assertion because a mere statement cannot be evidence enough to establish that there was no office of PWI in Gorakhpur yard because existence of a Government office cannot be established by a plain denial of its existence by a third party when the person who is asserted to have worked at that office is not examined. Further in the punishment order it is also blatantly written that there was an office but name of the applicant was not in the muster roll. The relevant portion of page-33 and the punishment order are extracted below:
Page-33 of the O.A :
^^2- Jh Mh-ds-,l- pkSgku fgr fujh{kd }kjk dh xbZ tkWp fjiksVZ ftlesa ;g izekf.kr gksxk fd Jh jke izlkn us 16-10-80 ls 15-11-81 rd dk;Z ugha fd;kA 3- Jh vkj0ch0 yky eq[; dkfeZd fujh{kd }kjk dh xbZ tkWp fjiksVZ ftlesa ;g izekf.kr gksxk fd Jh jke izlkn us 16-10-80 ls 15-11-81 rd dk;Z ugha fd;kA 4- mi eq[; bath0 fuekZ.k xksj[kiqj ds i= la0 MCyw@247@ch-th-@5&11 ,@732 fnukad 12-10-90 dh izfr Jh jke izlkn us 16-10-80 ls 15-11-81 rd dk;Z ugha fd;kA 5- egkizca/kd ¼dk-½ xksj[kiqj dk i=kad bZ@57@D(v) fnukad 06-01-1981 ftlls ;g Li'V gksrk gS fd 1-1-81 ls Jfed ds #i esa izFke fu;qfDr ds fy;s egkizca/kd dks gh vf/kdkj lhfer FkkA Page 11 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors.
vuqc/a k IV ^ xokgksa dh lwph 1- Jh Mh-ds-,l- pkSgku lrdZrk fujh{kd 2- Jh vkj-ch-yky eq-dk-fu- bTtr uxj Mh ds flUgk lh-ls-nw-bZ@bTtr uxj^ Page-19 of O.A - punishment order dated 04/9/2015:
पररणामस्वरूप वनम्नवलस्मखत शतो के अधीन मरे प्र/कावमाक / इज्जतनगर के कायाा लय आदे श सां ० ई / 213 / शार्ा फाल / अनु 0जा0 वदनाां क 28.08.1989 द्वारा की गई।
(क) रे ल से वा में प्रथम वनयु स्मत का सत्यापन ह ना।
(ख) जावत प्रमाण पत्र प्रस्तु त करना।
(ग) जन्मवतवथ का प्रमाण पत्र प्रस्तु त करना।
(घ) पुवलस द्वारा चररत्र जाां च का उवचत अन्त प्राप्त ह ना। छान परीक्षा सवमवत की सां स्तुवत के अनु पालन में जाां च मण्डल रे ल प्रबन्धक / कावमाक / इज्जतनगर के पत्र सां . ई/213/अजा/09 वदनाां क 15.09.1989 के द्वारा श्री डी०के०एस० चौहान, वहत वनरीक्षक / इज्जतनगर क सौांपी गई थी। उन् न ां े अपनी जाां च ररप र्ा वदनाां क 06.10.1989 के द्वारा बताया है वक वदनाां क 16.10.1980 से 15.11.1981 तक की अववध में रे ल-पथ वनरीक्षक याडा , ग रखपुर का क ई कायाा लय नही ां था। वजस अववध में कायाा लय था, उस अववध की मस्टर शीर् ां की जाां च की गई, वजसमें श्रवमक का नाम नही ां है ।
इसकी पुवष्ट श्री र०का० राय, वहत वनरीक्षक द्वारा अपनी ररप र्ा 30.08.1990 तथा श्री रामभजन लाल, मुख्य कावमाक, वनरीक्षक, इज्जतनगर ने अपनी ररप र्ा वदनाां क 25.10.1990 के द्वारा की गई है । इसी क्रम में काया पालक इन्जीवनयर / वनमाा ण पूवोिर रे लवे , ग रखपुर ने भी मण्डल रे ल प्रबन्धक(कावमाक), इज्जतनगर के प०सां ० ई/213/अजा/89 वदनाां क 15/20.09.1989 के जवाब में अपने पत्र सां ० डब्ल्यू / 217/पीजी/ई-।। वदनाां क 21.09.1989 के द्वारा इसकी पुवष्ट की है । साथ ही श्री रामभजन लाल, मुख्य कावमाक वनरीक्षक / इज्जतनगर ने कमाचारी के कैजुअल श्रवमक काडा पर एक तरफ श्री श्रीरामप्रसाद पुत्र श्री भागीरथी तथा दू सरी तरफ श्रीराम पुत्र स्व० श्री भागीरथी वलखा ह ने एवां उस पर लगे फ र् क क्षे त्रीय अवधकारी, फते हगढ़ से सत्यावपत करने का उल्ले ख अपनी ररप र्ा में वकया है । और उपर त तथ् ां के आधार पर कैजु अल श्रवमक काडा क फजी बताया है ।
उपर त जाां च के बाद कमाचारी क उपर त आर प ां के साथ दीघा दण्ड ज्ञापन (एस०एफ०-5) जारी वकया गया है ।
कमाचारी ने आर प पत्र के स्पष्टीकरण में क्र० सां ० 1 पर कहा है वक उसे रे लपथ वनरीक्षक याडा , ग रखपुर श्री पारस नाथ महीने के अन्त में 200 रू० कागज पर हस्ताक्षर कराकर दे ते थे। क्र0 सां .-4 पर उन् न ां े अपनी गजदू री कुछ वदन 6.50 रू० प्रवतवदन के वहसाब से और कुछ वदन 7.50 रू० प्रवतवदन के वहसाब से उल्ले ख वकया है ।
कमाचारी के स्पष्टीकरण के बाद अनुशासवनक अवधकारी ने वदनाां क 14.05.1991 क श्री वी०डी० दीवक्षत, वसगनल वनरीक्षक-1 मथुरा कैर् का जाां च अवधकारी वनयु त वकया I जाां च के दौरान श्री रामप्रसाद पुत्र स्व० श्री भागीरथी द्वारा श्री सु रेश भारती, से वावनवृ ि वनरीक्षक, ले खा ववभाग, इज्जतनगर क अपना बचाव सलाहकार वनयु त वकया।
Page 12 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. We are therefore, now back to the point made in the earlier para of this judgment that on one hand the respondents do state that there was an office in whose muster-roll, the name of the applicant was not found and then in the same breath state that there was no office in the period stated by the applicant. So if the version of existence of an office per se not being denied by the respondents is given currency then what is the proof by them that there was an office but not in the period stated by the applicant. Secondly, to conclude on this weak basis that the labour card is forged is a kind of double trouble in the assertion's justifiability.
11. The respondents have not given any proof of as to when the office was established firstly, so how can it be held that as to when the office was actually initially existing and when not established and a mere denial that it was not established in the period stated and worked in by the applicant but was established and working in later or other periods whose period is ab initio not specified, then how can it be held that the respondents are picking and choosing by their own whim and fancy as to when the office was established and when it did not exist. In this light it is also not known as to the muster rolls of exactly which period were seen wherein the name of the applicant was not found but names of others by implication existed. The respondents have not exactly specified nor produced copies of the same for supporting their claim. The courts cannot own the onus of insufficient Page 13 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. documentation and keep asking to fill gaps when the respondents are themselves not conscious of the same and feel the need to support as much as possible there claims. Moreso, both the Inquiry officers never visited the site to carry out any on-site inspection and discussion with related employees at the said location of the office, so how can it be held that whatever they claim and that too on a single third person's statement viz the Dy CE, is justifiably true more importantly when the inquiry was conducted more than 10 years later as the the Charge memorandum is issued vide date 18/9/1991 and the period of dispute with regards to the existence of the office is 16.10.1980 to 15.11.1981.
12. The next point of importance is the applicant's claim that the statement of Prosecution witnesses cannot be the justifiable proof of existence or non-existence of the office in the disputed period. Para 4.6 - 4.9 of the O.A are relevant to be read in this connection which are accordingly extracted hereunder:
Paras 4.6 to 4.9 of the O.A "4.6 That the inquiry officer conducted inquiry in violation of the prescribed rules and natural justice in as much as-
(a) The Inquiry Officer did not ensure the presence of Shri Paras Nath, PWI/Construction/Gorakhpur and thereby illegally and arbitrary taken away the valuable right of cross examination of the applicant charged official.
(b) The material document mentioned in Annexure III S.No. 4 was neither investigated nor was the author of the said document called during the course of enquiry and truth obtained from him and therefore the said document remained unproved.
(c) That the enquiry officer submitted its report only on the basis of the statement of the two prosecution witness namely Shri K.S. Chauhan Vigilance Inspector and Shri R.B. Lal Chief Commercial Inspector.Page 14 of 23
CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors.
4.7 That the Prosecution Witness No 1 stated during the course of enquiry that as per Dy Chief Engineer (Const) there was no office of PWI during the alleged period. Further the period for which muster roll was available the name of the charged official is not mentioned. He did not conduct any investigation.
4.8 That in the said inquiry the PWI stated that during verbal communication Deputy Chief Engineer (Construction) informed that there was no such office during the alleged period and further stated that in the muster roll name of applicant does not figure. 4.9 That the Prosecution Witness No 2 Shri R.B. Lal stated that no muster roll of the alleged period is available and further said that Shri Chauhan did not conduct enquiry."
In the above context, the respondents have stated in their rebuttal paras -8 and 9 of the CA that the averments of the applicant are denied as Sri Paras Nath did not attend the enquiry. The paras of the CA are extracted hereunder for easy reference:
Paras 8 and 9 of the CA:
"8. That the averments made in para 4.6 of the O.A. are denied as stated. In reply thereto it is submitted that Sri Paras Nath was called upon several times by the Enquiry Officer to attend the enquiry but he did not appear. The Enquiry Officer cannot compel a person to attend the enquiry. The enquiry officer submitted his report after verification of all the documents. A letter dated 07.12.1995 alongwith EO's Report dated 15.09.1995 was also given to the applicant to produce the proof of his alleged working during the period from 16.10.80 to 15.11.81. A photocopy of letter dated 07.12.95 is annexed herewith as Annexure No.C-1.
9. That the averments made from para 4.7 to 4.9 of the O.A. are not admitted as stated. In reply thereto it is submitted that the first working period of the applicant from 16.10.80 to 15.11.81 as recorded in the casual labour card was verified from the office of Dy. Chief Engineering/ Construction N.E. Rly., Gorakhpur. It was revealed during the verification of the alleged working period that there was no such office of P.W.I. (Con)/ Yard Gorakhpur during the said period. A true photocopy of letter dated 21.09.89 issued by the office of Executive Engineer/ Con, N.E. Rly, Gorakhpur is annexed herewith as Annexure No.C-2."Page 15 of 23
CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. We are again evidently back to the point settled earlier that mere statement cannot be adequate proof and that too a decade later and that too not by the relevant officer but another officer. The mute point is also whether the concerned Dy CE was overseeing the work of the PWI Gorakhpur Sri Paras Nath during the said period of denial of existence of the office. No where have the respondents clarified this. Therefore, the question arises as to what value can be adduced to the statement of the Dy CE when it is not known as to when he was actually in authority with regards to the disputed period on which he is making a confident truthful statement. The whole process of evidence gathering and collation is open to interpretation and justice cannot be rendered in the ecology of such gaps and doubts. The respondents do not have the right Government witness and neither do they have un rebuttable documents, so how can mere statements be considered even in a service jurisprudence matter to be adequate to take away the service right of a Government servant of a very small period out of the close to some 1500-1600 days of admitted working of the Government servant viz the period of 1981 to 1989 even if we exclude the disputed period from the record for a moment (para 4.1 of the O.A and para-4 and para-5 of the CA refers). Para-5 of the CA is extracted below for ready reference:
Para-5 of the CA:
"5. That in reply to para 4.2 of the O.A. it is submitted that the working of the applicant at Kannauj, Mathura and Fatehgarh as stated in the para under reply is not disputed. However, his working from 16.10.1980 to 15.11.1981 under PWI/Con./Gorakhpur, as alleged, is denied being fake Page 16 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors.
and false."
Thus, we are constrained to conclude that there is inadequate proof with regards to establishing the claim of non-existence of the disputed office and that being so it cannot be held that the applicant did not work at the office in the said period and so by implication the labour card of the period is forged particularly when the respondents admit that the applicant did work genuinely for large number of days immediately subsequent to the period of doubtful working. More so that the later working periods are as Casual Labourer and by implication on the baiss of a genuine labour card.
13. There is one other point left unaddressed. That relates to the grant of regular appointment on the basis of past service as Casual Labourers to the applicant in 1989 per the Prime Minister Rozgar Yojna. What are the conditions of grant of regular appointment and are not the working days of more than 1200 admitted by the respondents even per the Charge memorandum not adequate to grant employment under the scheme. Because if that is so, then the applicant has lawfully got appointed per the number of working days prescribed under the Scheme and so even if for a moment it is held that the about one year period is doubtful in respect of service as a Casual Labourer then also should the criteria be fulfilled with regards to the number of days of work done as a Casual Labourer on valid Casual Labourer card, then there is no reason to take away employment from the applicant. However, off course if there has been a proven fraud committed ever earlier that could Page 17 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. reflect on the grant of employment on grounds of conduct also. On this score we see that the Annexure -II of the Charge memorandum itself details that the applicant did serve as Casual Labourer admitted to by the respondents for various periods namely: of 16/1/1984 to 15/5/1984 under PWI Mathura Cantt, 16/2/1985 to 15/3/1985 and then again as from June to November for 145 days under PWI Fatehgarh, then again in the period as from 23/1/1988 to 20/7/1989 including a period of July to October under PWI Kannauj viz a total of 1274 days. So this makes the applicant liable to per the Scheme for regular employment which he did get as date 28/8/1989 after a detailed enquiry into his working as Casual Labourer in August, 1989 prior to grant of appointment as Khalasi. Therefore, now it is not justifiable to brush all these days of accepted service aside on the respondents plea that the labour card on the basis of which the genuine accepted casual labour work was done was not genuine and so the gran to regular employment gets vitiated. Presently the applicant himself expired on 27/10/2018 and his widow is substituted to contest the case. In such a situation any further query or requirement of proof with regards to disputed office or work as Casual Labourer is not possible and the position of lack of clarity by the respondents remains as to their claim that the labour card was forged which is asserted to merely on bald statements of certain witnesses when all along the applicant was beseeching for getting the key witness Sri Paras Nath examined because the applicant had worked under this officer Page 18 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. and he is the best person to deny or accept the service and the office in which the applicant worked. This has not been done and except for pleading that the respondents conducted the disciplinary proceedings without this key witness makes the whole ground taken by the respondents extremely weak. In the event therefore, the benefit of doubt has to be given in the worst case scenario to the applicant and justice would have to be given by accepting his statements which are as much on oath and the documents are there to prove the same. In service jurisprudence it is the preponderance of documents and not mere oral witness statements which tend to weigh in more to prove a point and they off course get supported by the oral examinations of witnesses in the course of a disciplinary proceedings. In the present case the respondents have nothing by way of conclusive proof even by service jurisprudence standards to disprove the claim of the applicant fully and the applicant on the other hand has indeed given what proof he has in the shape of the labour card and accepted 1274 days of genuine service as casual labour. In the circumstances it is not justifiable to hold that per the Prime Minister Rozgar Yojna provisions would debar the applicant from grant of regular employment particularly when the respondents have not cited one provision of the scheme which would negate the work days done by the applicant as casual labour and thereby suggest that he does not fulfill the concerned criteria for grant of regular employment.
Page 19 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors.
14. Another key point raised by the applicant is that the disputed office and related period / labour card are of the period 1980-81 and, the Charge memorandum was served in 1991 with the punishment order being passed in 2015. The point is that the Charge memorandum is given with regards to an incident a decade old and punishment order passed 35 years after the incident and at least 26 years after the service of the Charge memorandum. Therefore, such stale inquiry and punishment order on a stale inquiry are not justifiable per the law laid down by the Hon Apex court in matters of disciplinary proceedings. The respondents have no answer to this very crucial point except to keep on ad nauseam repeating that the applicant worked on a fraudulent labor card and so the punishment imposed based on the disciplinary proceedings conducted is justifiable. The Hon Apex court in the matter of State of M.P. v. Bani Singh [1990 Supp SCC 738] held quashment of the proceedings on the ground of delay which, according to the Apex Court, occasioned prejudice. It was observed and held thus, "The irregularities which were the subject-matter of the enquiry are said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to thing that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage."
In P.V. Mahadevan v. MD, T.N. Housing Board [(2005) 6 SCC 636] the Supreme Court considered the aspect of delay of 10 Page 20 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. years in initiating the departmental inquiry against the appellant, where no convincing explanation was given for such delay. The Supreme Court took view that allowing the respondent to proceed further with the disciplinary proceedings on such distance of time would be very prejudicial to the appellant and held as under:
"The respondent submitted that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-95. But, Section 118of the Tamil Nadu State Housing Board Act, 1961 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 of the said Act relates to annual audit of account. Therefore, the explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions. There is no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. The stand taken by the respondent in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay."
15. It is clear that in respect of casual labour period of 16.10.1981 to 15.11.1981 when the applicant had stated to have worked under Shri Prashat Nath, the then PWI Construction, Gorakpur Yard, the Inquiry report was submitted by the inquiry officer vide 07.12.1995 four years after service of Charge memorandum and relating to an incident 14 years ago. And the charge with regards to the allegation was not proved even beyond reasonable doubt per the evidence adduced by the respondents. To add fuel to the fire of injustice, no action was taken on this inquiry report for more than 18 years and then the impugned punishment order dated 04.9.2015 has been passed on an inquiry report Page 21 of 23 CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors. submitted more than 15 years and a very major punishment imposed of removal from service. The orders in appeal dated 22.9.2015 and in revision vide date 15.10.2015 are in their place but cannot take away the blemish cast by the delay on part of the respondents in conducting the entire proceedings starting 1989. That the casual labour card was not indeed made by Shri Paras Nath who was PWI constructions yard Gorakhpur in the period is not proved by any document and mere statements by certain persons/Government witness are relied upon on the basis of which it is unjustifiable to hold that the making of the card as fraudulent. That Shri Paras Nath could not be examined for witness examination and therefore, the main person who kept the applicant on casual labour, his statement has not been recorded. Therefore, the labour card as at Annexure -4 has to be held as genuine and any statement by any official in that regard cannot make it false or forged for the mere say so. Hence, the O.A is liable to be allowed.
16. In accordance therefore, it is directed that-
(i) the order of punishment dated 04/09/2015 is quashed and consequentially the appellate and revisionary orders of 15/1/0/2015 and 01/4/2016 stand superfluous and non-est;
(ii) the respondents shall pass an order of reinstatement of the applicant with effect from 04/09/2015 and the related service period shall be counted for the purpose of pension and retiral dues as and when due;Page 22 of 23
CAT, Lucknow OA No. 312/2016 Smt. Suvashi Devi Vs. U.O.I.& Ors.
(iii) no wages are payable for the period of removal and the date of this order;
(iv) the compliance of the above orders shall be made within four weeks of receipt of a certified copy of this order. The O.A is allowed in above terms.
17. No costs. Pending MAs stand disposed accordingly.
(Devendra Chaudhry) (Justice Anil Kumar Ojha)
Member (A) Member (J)
JNS
Page 23 of 23