Central Administrative Tribunal - Allahabad
Satish Chand vs General Manager N C Rly on 11 October, 2018
RESERVED.
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD
This is the 11th day of October 2018.
ORIGINAL APPLICATION No. 1203 of 2013
HON'BLE MR RAKESH SAGAR JAIN, MEMBER (J)
HON'BLE MR. MOHD. JAMSHED, MEMBER (A)
Shri Satish Chand S/o Late Shri Badri Prasad Sr. Booking Clerk, North
Central Railway, Agra Cantt.
...............Applicant.
By Advocate: Shri K.K. Mishra
VERSUS
1. General Manager, North Central Railway, Allahabad.
2. Divisional Railway Manager, North Central Railway, Allahabad.
By Advocate : Shri Rajesh Pandey
..........Respondents
ORDER
BY HON'BLE MR RAKESH SAGAR JAIN, MEMBER (J)
1. In the present O.A., the applicant seeks following reliefs-
"8.1 That this Hon'ble Tribunal may be graciously pleased to allow this application and quash the impugned order. 8.2 That this Hon'ble Tribunal may be further pleased to pass any other or further order which this Hon'ble Tribunal deems fit in the facts and circumstances of the case.
8.3. That the cost of these proceedings may kindly be granted in favour of applicant and against the respondents".
2. Case of applicant Satish Chand is that while working as Sr. Booking Clerk under the respondents, he was served with a charge sheet dated 02.06.2011 but during the disciplinary 2 proceedings, vide order dated 02.02.2012, respondent No. 2 cancelled the charge sheet with the remarks 'without prejudice' and subsequently a fresh charge sheet containing the same charges was served upon applicant on 21.03.2012. No reason has been given for cancellation of previous charge sheet and issuance of fresh charge sheet. Applicant's representation was rejected vide impugned order dated 13.04.2012 relying upon railway board circular dated 01.12.1993 and in the first charge sheet, the documents in annexure-II to the charge sheet were incomplete which have been issued in the interest of justice in SF- 5 dated 21.03.2012. Applicant seeks quashing of the second charge sheet and order dated 13.04.2012 on the ground that it violates railway circular dated 01.12.1993.
3. Respondents' case being that the first charge sheet was cancelled on the ground that the documents mentioned in the charge sheet were incomplete and the first charge sheet was cancelled without any prejudice.
4. We have heard and considered the augments of the learned counsels for the parties and gone through the material on record. Learned Counsels during their arguments have reiterated the pleas taken in their pleadings.
5. The issue involved herein is on a very short question whether on cancelling a first charge-sheet as issued in a departmental proceeding, second charge-sheet could be issued without disclosing the sufficient reasons for issuing the second charge- sheet on dropping the first disciplinary proceeding. Applicant's case being no reasons given in this regard and violation of Railway Board's letter No. E(D&A) 93 RG6-83 dated December 1, 1993 (RBE No. 171/1993) and therefore O.A. be allowed.
6. The relevant circular issued by the Railways is circular letter issued for Chief Personnel Officer being No. 308/O/Vol. XV dated 3 Calcutta, the January 17, 1994 under Serial No. 10/94 read with the Railway Board's letter No. E(D&A) 93 RG6-83 dated December 1, 1993 (RBE No. 171/1993) addressed to G.M. (P), All Indian Railways and Others, reads such:
" Sub: Issuing fresh charge Memorandum after cancellation/withdrawal of original charge Memorandum of after dropping disciplinary proceedings. It has come to the notice of the Railway Board that on one of the Zonal Railways, the Memorandum of charges issued to an employee was withdrawn by the disciplinary authority with the intention of issuing fresh detailed charge Memorandum. However, while withdrawing the charge- sheet, no reasons therefor were given and it was only stated that the charge-sheet was being withdrawn. The issue of a fresh charge Memorandum subsequently was challenged by the employee before CAT/Bombay. The Central Administrative Tribunal on hearing the case have quashed the said charge Memorandum holding that unless there is a power in the disciplinary authority by virtue of the rules or administrative instructions to give another charge- sheet on the same facts after withdrawing the first one, the second charge-sheet will be entirely without authority.
2. The matter has been examined and it is clarified that once the proceedings initiated under Rule 9 or Rule 11 of RS (D&A) rules, 1968 are dropped, the disciplinary authorities would be debarred from initiating fresh proceedings against the delinquent officers unless the reasons for cancellation of the original charge Memorandum or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without prejudice to further action which may be considered in the circumstances of the case. It is, therefore, necessary that when the intention is to issue a fresh charge-sheet 4 subsequently, the order cancelling the original one or dropping the proceedings should be carefully worded so as to mention the reasons for such an action indicating the intention of issuing charge-sheet afresh appropriate to the nature of the charges."
7. It would be necessary to refer to 1st Charge sheet dated 02.06.2011, 2nd Charge sheet dated 21.03.2012 and order dated 02.02.2012 cancelling the 1st charge sheet. Perusal of the charge sheets reveal that they are identically worded. Order dated 02.02.2012 reads as:
"mijksDr lanfHkZr fo"k; esa bl dk;kZy; ls tkjh cM+h 'kkfLr ¼SF-5½ ds vkjksi i= lela[;d fnukad 03-06-2011 dks fdlh iwokZxzg ds fujLr fd;k tkrk gSA lwpukFkZ gsrq izsf"kr gSA".
8. Learned Counsel for applicant has placed reliance upon Uttam Sonaji v/s Union of India, (1997) 36 ATC 647, Raja Ram Verma v/s Union of India, 2003 (3) ATJ 473, Niranjan Mishra v/s Union of India, 2000 (3) E.S.C 11 (CAT). In all the citations, the view taken is that the first and second charge sheet being identical in facts and no reasons being given for withdrawal in the First and Second Charge sheet, the second charge sheet would not be sustainable.
9. Reference may be made to WPCT No. 210 of 2008 titled Alok Dev Roy v/s Union of India decided vide order dated 19.08.2009 wherein the facts were similar to the facts of the present case and interpreting Railway Board Circular No. E(D&A) 93 RG6-83 dated December 1, 1993 (RBE No. 171/1993), Hon'ble High Court Calcutta while quashing the 2nd charge sheet held that:
"Furthermore, the disciplinary proceeding is controlled by the Railways Servants (Discipline & Appeal) Rules, 1968, whereby in Part-IV under Rule 9, the elaborate procedural 5 steps have been prescribed including the step under sub- rule 9(a)(i) of the said Rule 9, which stipulates that on receipt of the written statement of defence, the disciplinary authority shall consider the same and decide whether the enquiry will be proceeded with under this Rule or not. The sub-rule 9(a)(i) and (ii) of the said Rule 9 reads such:
"9(a)(i) On receipt of the written statement of defence, the disciplinary authority shall consider the same and decide whether the inquiry should be proceeded with under this rule, (ii) Where the disciplinary authority decides to proceed with the inquiry it may itself inquire into such of the articles of charge as are not admitted or appoint under sub-rule (2) a Board of inquiry or other authority for the purpose."
6. In the instant case it appears from the records that the first charge memo when issued, delinquent filed a written statement of defence denying the charges as levelled against him and thereafter withdrawal of the same may be considered as an action under 9(a)(i) of the aforesaid sub-rule, but this could be saved an. protected if the rule under Index No. 1033 as introduced is considered. On application of the said Rule under Index No. 1033, namely, disclosure of sufficient reasons in the fresh charge memo on withdrawing the earlier charge memo, is a mandatory provision and the respondents Railway Authority were bound to follow their own rule as framed by the Railway Board. The said Rule is a mandatory provision as per our reading by applying the test of Collector of Monghyr and Others v. Keshav Prasad Goenka and Others (supra) as the provision is to safeguard the interest of the delinquent from unnecessary harassment in the service career.
67. In the instant case it appears that after withdrawal of the charge memo, a fresh charge memo has been issued without assigning the sufficient reasons thereof, as such, there is a breach to comply with the Board's decision, which subsequently became a Rule in the procedural law of the departmental proceeding.
8. Besides the aforesaid Rule, even the decision of the Railway Board is binding to the Subordinate Officers working in the Railway, having regard to the settled principle that when any authority empowered under a statute to issue any order/direction, it is binding to all subordinate departmental employee and is enforceable in the Court of law on considering the same having a statutory flavour. Reliance is made to the judgment passed in the case K.P. Varghese v. Income Tax Officer Ernakulam AIR 1981 SC 1922 : (1981)4 SCC 173 wherein under Section 119 of the Income Tax Act, a circular letter was issued and the Court held that it was binding upon the Subordinate Officers. In the case K.P. Varghese v. Income Tax Officer Ernakulam (supra) the Court relied upon the Constitution Bench judgment passed in the case Navnit Lal C. Javeri v. K.K. Sen Appellate Assistant Commissioner of Income Tax Bombay AIR 1965 SC 1375. The case K.P. Varghese v. Income Tax Officer Ernakulam (supra) has been approved subsequently by a Constitution Bench judgment passed in the case C.B. Goutam v. Union of India (1993) 1 SCC 78. In the case UCO Bank Calcutta v. Commissioner of Income Tax, West Bengal AIR 1999 SC 2082 : (1999) 4 SCC 599, judgment of three Judges Bench, the aforesaid cases K.P. Varghese v. Income Tax Officer Ernakulam (supra), Navnit Lal C. Javeri v. K.K. Sen Appellate Assistant Commissioner of Income Tax Bombay (supra) and C.B. Goutam v. Union of India (supra) have been relied upon by holding, inter alia, that even on application of order passed under Section 7 119 of the Income Tax Act, if the same fouls with a statutory provision, still it to be implemented for the benefit of the assessee by the Subordinate Officers. Applying those test, the Railway Board's letter dated December 1, 1993 (RBE No. 171/1993) stipulating the guidance and necessary action on clarifying the statutory rule, namely, Rule 9 or Rule 11 of the aforesaid Railways Servants (Discipline & Appeal) Rules, 1968, has a binding effect and accordingly there was necessity of giving sufficient reasons while issuing the fresh charge memo on withdrawing the earlier charge memo. In the instant case, it has not been done, so it has caused breach of said Board's circular.
9. Learned advocate for the Railway Authority, however, submits that modification of the charge-sheet is permissible under the rule, we are not finding, any such rule in the said rule itself. Since it is an admitted position that the Railway Authority has already amended the relevant rule and incorporated the same under Index No. 1033 of the Railway Manual, the same is binding to the Railway Officers, who initiated the departmental proceeding. It has not been done in the instant case, accordingly there is a mandatory breach and the impugned charge memo being the second charge memo on withdrawing the earlier charge memo is not legally sustainable due to the lack of sufficient reasons for issuing the fresh charge memo on withdrawing the earlier charge memo. It accordingly is set aside and quashed."
10. In the present case also, no sufficient reasons for issuing the fresh charge memo on withdrawing the earlier charge memo have been given. Reason given in the reply to the representation of applicant is no sufficient compliance with the Board Circular. Therefore, as per, the Railway Board Circular, the respondents (disciplinary authorities) are debarred from initiating fresh 8 proceedings against the delinquent officers unless the reasons for cancellation of the original charge Memorandum or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without prejudice to further action which may be considered in the circumstances of the case. It is, therefore, necessary that when the intention is to issue a fresh charge-sheet subsequently, the order cancelling the original one or dropping the proceedings should be carefully worded so as to mention the reasons for such an action indicating the intention of issuing charge-sheet afresh appropriate to the nature of the charges which in the present case is lacking.
11. In these circumstances, impugned orders dated 21.03.2012 and 13.04.2012 are quashed. However, the quashing of the second charge memo as issued on withdrawing the first charge memo, will not debar the respondent, Railway Authority, to issue appropriate charge memo following the rule under Index No. 1033 as referred to above, namely, specifying the sufficient reasons in the charge memo itself for issuing the fresh charge memo.
11. O.A. is accordingly disposed of. No orders as to costs.
(Mohd. Jamshed) (Rakesh Sagar Jain)
Member (A) Member (J)
Manish/-