Central Administrative Tribunal - Allahabad
Nitish Kumar vs Chairman Railway Recruitment Board on 2 December, 2021
Open Court
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH, ALLAHABAD
*****
(This the 2 Day of December, 2021)
nd
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Ms. Pratima K Gupta, Member (J)
Original Application No.330/00340/2021
Nitish Kumar, aged about 27 years, S/o Shri Nageshwar Pradad Rai, Exs.
Assistant Loco Pilot, North Eastern Railway, Anwarganj, Kanpur R/o Village
Bhawnandpur, Post - Panapur, District - Begusarai, (Bihar).
................ Applicant
By Advocate: Shri Ashish Srivastava
Versus
1. Chairman, Railway Recruitment Board, Muzaffarpur, Bihar.
2. Additional Divisional Railway Manager (Operation) (Parichalan), North
Eastern Railway, Izzatnagar.
3. Senior Divisional Mechanical Engineer (O&F), North Eastern Railway,
Izzatnagar.
4. Senior Divisional Personnel Officer, North Eastern Railway, Izzatnagar.
5. Union of India through General Manager, NER, Gorakhpur.
..... ............. Respondents.
By Advocate: Shri Pramod Kumar Rai
ORDER
Delivered by Hon'ble Mr. Tarun Shridhar, Member (A) Shri Ashish Srivastava, learned counsel for the applicant and Shri P.K. Rai, learned counsel for the respondents are present.
2. The applicant is aggrieved by an order passed on 06.01.2021 by the respondent No.3 invoking the powers vested in him under Rule 14(2) of the Railway Service (Discipline and Appeal Rules), 1968. The said rule authorizes the Disciplinary Authority to dispense with the Page No. 2 inquiry under certain special circumstances and accordingly, the Disciplinary Authority has concluded that since the charge of impersonation against the applicant stands conclusively established, hence there is no need for any further inquiry.
3. Learned counsel for the applicant points out that Rule 14(2) of the Railway Service (Discipline and Appeal Rules), 1968 does not confer unbridled powers upon the Disciplinary Authority to dispense with the inquiry as there is a legal obligation upon the Competent Authority, to allow a fair opportunity to the affected person. Moreover, he points out that the Rule casts a responsibility upon the Disciplinary Authority to record in writing the reasons for arriving at a decision that inquiry should be dispensed with. Learned counsel argues that no such reasons have been adduced in the impugned order.
4. Learned counsel for the respondents, on the other hand, argues that charge against the applicant is serious in nature, and the misconduct of impersonation cannot be condoned. He further argues that in the instant case, impersonation has been established through an expert opinion and hence does not call for any further inquiry.
Therefore, Disciplinary Authority has correctly invoked the jurisdiction of Rule 14(2) of the Railway Service (Discipline and Appeal Rules), 1968.
5. At this stage, it is brought to our notice that an identical matter containing identical charge in identical situation against one Mukesh Ranjan was addressed before the Patna Bench of the Central Administrative Tribunal in OA No.240 of 2020. The Patna Bench of the Tribunal has adjudicated this by passing the following order:-
Page No. 3"CENTRAL ADMINISTRATIVE TRIBUNAL PATNA BENCH, PATNA.
Reserved on: 24.08.2021 Date of order : 28.09.2021 CORAM HON'BEL MR. M.C. VERMA, JUDICIAL MEMBER HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
1. OA/050/00240/2020 Mukesh Ranjan, Son of Late Dineshwar Prasad Yadav, Loco Pilot (G/Electric), Under Chief Crew Controller/TRS, East Central Railway, Jhajha (Bihar).
.........
Applicant.
By advocate : Shri M.P.Dixit Vs.
1. The Union of India through the General Manager, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
2. The General Manager [Personnel], East Central Railway, Hajipur, PO-
Digghi Kala, PS- Hajipur, Pin Code- 841001 (Bihar).
3. The Principal Chief Electrical Engineer, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
4. The Divisional Railway Manager, East Central Railway, Danapur, Post-
Khagaul, District- Patna - 801105 (Bihar).
5. The Additional Divisional Railway Manager/OP, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, Post Khagaul, District- Patna- 801105 (Bihar).
7. The Senior Divisional Electrical Engineer (Operation), East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
8. The Senior Divisional Financial Manager, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
......... Respondents.
By Advocate : Shri B.K. Chaudhary
Shri S.K. Raj
2. OA/050/00241/2020
Chandan Kumar, Son of Ram Jee Mahto, Senior Assistant Loco Pilot (Electric) under Chief Crew Controller/TRS, East Central Railway, Jhajha (Bihar).
.........
Applicant.
By advocate : Shri M.P.Dixit Page No. 4 Vs.
1. The Union of India through the General Manager, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
2. The General Manager [Personnel], East Central Railway, Hajipur, PO-
Digghi Kala, PS- Hajipur, Pin Code- 841001 (Bihar).
3. The Principal Chief Electrical Engineer, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
4. The Divisional Railway Manager, East Central Railway, Danapur, Post-
Khagaul, District- Patna - 801105 (Bihar).
5. The Additional Divisional Railway Manager/OP, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, Post Khagaul, District- Patna- 801105 (Bihar).
7. The Senior Divisional Electrical Engineer (Operation), East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
8. The Senior Divisional Financial Manager, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
......... Respondents.
By Advocate : Shri B.K. Chaudhary
Shri S.K. Raj
3. OA/050/00242/2020
Dibyanshu Sinha, Son of Ram Niwas Mehta, Loco Pilot (G/Electric), Under Chief Crew Controller/TRS, East Central Railway, Jhajha (Bihar).
.........
Applicant.
By advocate : Shri M.P.Dixit Vs.
1. The Union of India through the General Manager, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
2. The General Manager [Personnel], East Central Railway, Hajipur, PO-
Digghi Kala, PS- Hajipur, Pin Code- 841001 (Bihar).
3. The Principal Chief Electrical Engineer, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
4. The Divisional Railway Manager, East Central Railway, Danapur, Post-
Khagaul, District- Patna - 801105 (Bihar).
5. The Additional Divisional Railway Manager/OP, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, Post Khagaul, District- Patna- 801105 (Bihar).
7. The Senior Divisional Electrical Engineer (Operation), East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
8. The Senior Divisional Financial Manager, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
......... Respondents.
Page No. 5
By Advocate : Shri B.K. Chaudhary
Shri S.K. Raj
4. OA/050/00243/2020
Alok Ranjan Kumar, Son of Sri Mahendra Rajak, Senior Assistant Loco Pilot (Electric), under Chief Crew Controller/TRS, East Central Railway, Patna (Bihar).
.........
Applicant.
By advocate : Shri M.P.Dixit Vs.
1. The Union of India through the General Manager, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
2. The General Manager [Personnel], East Central Railway, Hajipur, PO-
Digghi Kala, PS- Hajipur, Pin Code- 841001 (Bihar).
3. The Principal Chief Electrical Engineer, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
4. The Divisional Railway Manager, East Central Railway, Danapur, Post-
Khagaul, District- Patna - 801105 (Bihar).
5. The Additional Divisional Railway Manager/OP, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, Post Khagaul, District- Patna- 801105 (Bihar).
7. The Senior Divisional Electrical Engineer (Operation), East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
8. The Senior Divisional Financial Manager, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
......... Respondents.
By Advocate : Shri B.K. Chaudhary
Shri S.K. Raj
5. OA/050/00244/2020
Ajay Kumar, Son of Prakash Prasad, Loco Pilot (G/Electric), Tillasiya under Chief Crew Controller/TRS, East Central Railway, Rajgir (Bihar).
.........
Applicant.
By advocate : Shri M.P.Dixit Vs.
1. The Union of India through the General Manager, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
2. The General Manager [Personnel], East Central Railway, Hajipur, PO-
Digghi Kala, PS- Hajipur, Pin Code- 841001 (Bihar).
Page No. 63. The Principal Chief Electrical Engineer, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
4. The Divisional Railway Manager, East Central Railway, Danapur, Post-
Khagaul, District- Patna - 801105 (Bihar).
5. The Additional Divisional Railway Manager/OP, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, Post Khagaul, District- Patna- 801105 (Bihar).
7. The Senior Divisional Electrical Engineer (Operation), East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
8. The Senior Divisional Financial Manager, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
......... Respondents.
By Advocate : Shri B.K. Chaudhary
Shri S.K. Raj
6. OA/050/00245/2020
Deepak Kumar, son of Sri Krishna Prasad, Senior Assistant Loco Pilot (Electric), under Chief Crew Controller/TRS, East Central Railway, Rajendra Nagar, District- Patna (Bihar).
.........
Applicant.
By advocate : Shri M.P.Dixit Vs.
1. The Union of India through the General Manager, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
2. The General Manager [Personnel], East Central Railway, Hajipur, PO-
Digghi Kala, PS- Hajipur, Pin Code- 841001 (Bihar).
3. The Principal Chief Electrical Engineer, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
4. The Divisional Railway Manager, East Central Railway, Danapur, Post-
Khagaul, District- Patna - 801105 (Bihar).
5. The Additional Divisional Railway Manager/OP, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, Post Khagaul, District- Patna- 801105 (Bihar).
7. The Senior Divisional Electrical Engineer (Operation), East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
8. The Senior Divisional Financial Manager, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
......... Respondents.
By Advocate : Shri B.K. Chaudhary
Shri S.K. Raj
7. OA/050/00253/2020
Page No. 7
Bimal Kumar, son of Girish Prasad, Senior Assistant Loco Pilot (Electric), under Chief Crew Controller/TRS, East Central Railway, Danapur (Bihar).
.........
Applicant.
By advocate : Shri M.P.Dixit Vs.
1. The Union of India through the General Manager, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
2. The General Manager [Personnel], East Central Railway, Hajipur, PO-
Digghi Kala, PS- Hajipur, Pin Code- 841001 (Bihar).
3. The Principal Chief Electrical Engineer, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
4. The Divisional Railway Manager, East Central Railway, Danapur, Post-
Khagaul, District- Patna - 801105 (Bihar).
5. The Additional Divisional Railway Manager/OP, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, Post Khagaul, District- Patna- 801105 (Bihar).
7. The Senior Divisional Electrical Engineer (Operation), East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
8. The Senior Divisional Financial Manager, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
......... Respondents.
By Advocate : Shri B.K. Chaudhary
Shri S.K. Raj
8. OA/050/00258/2020
Suman Kumar, Son of Sri Pramod Pandit, Senior Assistant Loco Pilot (Electric), under Chief Crew Controller/TRS, East Central Railway, Kiul (Bihar).
.........
Applicant.
By advocate : Shri M.P.Dixit Vs.
1. The Union of India through the General Manager, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
2. The General Manager [Personnel], East Central Railway, Hajipur, PO-
Digghi Kala, PS- Hajipur, Pin Code- 841001 (Bihar).
3. The Principal Chief Electrical Engineer, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
4. The Divisional Railway Manager, East Central Railway, Danapur, Post-
Khagaul, District- Patna - 801105 (Bihar).
5. The Additional Divisional Railway Manager/OP, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
Page No. 86. The Senior Divisional Personnel Officer, East Central Railway, Danapur, Post Khagaul, District- Patna- 801105 (Bihar).
7. The Senior Divisional Electrical Engineer (Operation), East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
8. The Senior Divisional Financial Manager, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
......... Respondents.
By Advocate : Shri B.K. Chaudhary
Shri S.K. Raj
9. OA/050/00259/2020
Shiv Jee Kumar, Son of Late Sagar Paswan, Senior Assistant Loco Pilot (Electric), under Chief Crew Controller/TRS, East Central Railway, Patna (Bihar).
.........
Applicant.
By advocate : Shri M.P.Dixit Vs.
1. The Union of India through the General Manager, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
2. The General Manager [Personnel], East Central Railway, Hajipur, PO-
Digghi Kala, PS- Hajipur, Pin Code- 841001 (Bihar).
3. The Principal Chief Electrical Engineer, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
4. The Divisional Railway Manager, East Central Railway, Danapur, Post-
Khagaul, District- Patna - 801105 (Bihar).
5. The Additional Divisional Railway Manager/OP, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, Post Khagaul, District- Patna- 801105 (Bihar).
7. The Senior Divisional Electrical Engineer (Operation), East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
8. The Senior Divisional Financial Manager, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
......... Respondents.
By Advocate : Shri B.K. Chaudhary
Shri S.K. Raj
10. OA/050/00263/2020
Nalin Kumar, Son of Sri Surendra Kumar, Senior Assistant Loco pilot (Electric), Under Chief Crew Controller/TRS, East Central Railway, Danapur, District- Patna (Bihar).
.........
Applicant.
Page No. 9By advocate : Shri M.P.Dixit Vs.
1. The Union of India through the General Manager, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
2. The General Manager [Personnel], East Central Railway, Hajipur, PO-
Digghi Kala, PS- Hajipur, Pin Code- 841001 (Bihar).
3. The Principal Chief Electrical Engineer, East Central Railway, Hajipur, PO- Digghi Kala, PS- Hajipur (Town), District- Vaishali at Hajipur, Pin Code- 841001 (Bihar).
4. The Divisional Railway Manager, East Central Railway, Danapur, Post-
Khagaul, District- Patna - 801105 (Bihar).
5. The Additional Divisional Railway Manager/OP, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, Post Khagaul, District- Patna- 801105 (Bihar).
7. The Senior Divisional Electrical Engineer (Operation), East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
8. The Senior Divisional Financial Manager, East Central Railway, Danapur, Post- Khagaul, District- Patna- 801105 (Bihar).
......... Respondents.
By Advocate : Shri B.K. Chaudhary
Shri S.K. Raj
ORDER
Per S.K. Sinha, A.M. : All the above OAs were clubbed and heard together for raising same grievance, having similar background and praying for same reliefs. Also, same set of counsel represented the applicants and respondents in all these cases.
2. The OAs have been preferred assailing the order of Dismissal from Railway Service under Rule 14(ii) of the Railway Servants (Discipline & Appeal) Rules, 1968 passed on 29.05.2020 by the Disciplinary Authority (Annexure- A/3). The applicants have prayed to quash and set aside the impugned order(s) and direct the respondents to reinstate them with consequential benefits.
3. Applicants were appointed as Assistant Loco Pilots (ALP) in June- September, 2015 against the posts notified by RRB Muzaffarpur on 18.01.2014 under CEN 01/2014 and after going through the selection process which included written test, aptitude test and document verification. After appointment, the applicants were promoted to the post of Senior Assistant Loco Pilot in December 2017 and further to the post of Loco Pilot (G) in 2019. On 30.04.2020, the Disciplinary Authority issued show cause notice to the applicant(s) stating that his handwriting on answer sheet/document at different stages of recruitment process were sent for examination to Government Examiner of Questioned Documents(GEQD) at Forensic Science Laboratory (FSL), Kolkata and their report reveals a mismatch which establishes beyond doubt that some impersonator had appeared in the written examination for the applicant. The applicants were directed to submit explanation against removal from service within 15 days. The Disciplinary Authority held that the explanation submitted by the applicant(s) was not satisfactory and it was not reasonably practicable to hold regular inquiry as the applicant may indulge in malpractices/impersonation to disturb the working environment and dismissed them from Railway Service with immediate Page No. 10 effect under Rule 14(ii) of the RS(D&A)Rules, 1968 vide order dated 29.05.2020.
4. The applicants, in their pleadings and submissions of the counsel, have denied the allegation of impersonation and have accused the Disciplinary Authority of violating the principle of natural justice. The applicants have averred that the Disciplinary Authority did not provide them copy of the FSL report(s) or any preliminary enquiry report on the basis of which the show cause notice was issued and the impugned order was passed. Applicants have argued that opinion of forensic expert was required to be cross - examined in order to be used as valid evidence. The applicants in their replies, raised the issues of lapse of six years since the conclusion of recruitment process; the recruitment tests being held under strict supervision; proper verification of identity documents and admit card being held before the tests; applicants getting promotion in the last six years; and a need to conduct full-fledged departmental enquiry under Rule 9 of the RS(D&A) Rules for imposing any Major penalty. The applicant(s) has(ve) averred that without any discussion the Disciplinary Authority rejected the explanation as not satisfactory and imposed the most severe punishment without holding regular departmental proceeding and giving any opportunity to test the veracity and validity of FSL report. 4.1 The applicants have further stated that the Disciplinary Authority provided no material fact in support of his apprehension that the applicant(s) may create disturbance through malpractices/impersonation and it was reasonably not practicable to hold regular departmental proceeding. The applicants have referred to Railway Board instructions that the reasons recorded by Disciplinary Authority for dispensing with regular inquiry should be supported by objective facts and/or independent material.
4.2 The applicants have further averred that regular departmental proceeding had been initiated under Rule 9 of the RS(D&A) Rules against similarly placed officials facing same charges under Mughalsarai and Sonpur Railway Divisions which amounts to discrimination against the applicants and violation of Article 14 of the Constitution. The applicants, in support of this averment, have annexed memoranda of Charge sheet under Rule 9 of the RS(D&A) Rules served upon some officials of Mughalsarai Division (Annexure A/6 series) and reference of a case of Sonpur Division in the Appeal before the Appellate Authority(Annexure P/4).
4.3. On the point of exhausting available legal remedies, the applicants pleaded (Para 6 of OA) that OA was filed as immediate interim relief was required. The impugned order was passed under Rule 14 (ii) of the RS (D&A) without mentioning any fact as to why it was reasonably not practicable to hold regular enquiry, hence the order was ex facie illegal. Filing an Appeal before the competent authority would have only delayed the redressal of their suffering and grievances whereas they needed immediate interim relief. The applicant(s) put reliance on the order of Hon'ble Karnataka High Court in H. S. Rangaramu Vs The Management of Karnataka State Road Transport Corporation (WP No. 4524 of 2002
5. The respondents raised preliminary objection to the OA on the ground of maintainability as the applicants had not exhausted the available remedy of Appeal and Revision under Rule 22 and Rule 25 of RS(D&A) Rules, 1968. They averred that the OA was not tenable under Section 20 of the AT Act. The respondents referred to Hon'ble Supreme Court order in Govt. of A.P.& Others Vs Sridevi & Others reported in (2202) 5 SCC 37, order of Hon'ble Rajasthan High Court in the case of HCL Infosys Ltd Vs State of Rajasthan and the order of Hon'ble Allahabad High Court in the case of R K Singh Vs Union of India. The Page No. 11 respondents averred that Rule 22 of RS(D&A) Rules, 1968 provides wide scope to the appellate authority. In cases where an enquiry in the manner laid down in Rule 9 of the RS(D&A) Rules, 1968 has not already been held, the appellate authority may himself hold such inquiry or direct such inquiry to be held in accordance with the provisions of Rule 9 (supra) and thereafter, on a consideration of the proceedings of such inquiry, pass such orders as it may deem fit. Further Rule 25(3) provides that an application for revision shall be dealt with in the same manner as if it were an Appeal under these rules. The respondents pleaded that without exhausting available remedies, OA was untenable. 5.1 Respondents further averred that the applicant was dismissed as his suitability for initial appointment had come under question. After receiving the FSL Report a preliminary enquiry was held by AEE/Operation on 17.03.2020 who observed that document verification is enough to establish the fact that the applicant had not appeared in the written examination and that he was rather selected by using an impersonator during the written examination. The applicants were issued show cause notice(s) and as the replies of applicants were not found satisfactory they were dismissed under Rule 14 of the RS(D&A) Rules. 5.2 Respondents put reliance on the judgements of Hon'ble Apex Court in Satyavir Singh and Others vs Union of India and Others (1986 AIR
555) and Union of India and Another vs Tulsiram Patel and Others (1985 AIR 1416). Learned Counsel for respondents averred that the majority judgement in Tulsiram Patel case conferred upon the civil servants who have been dismissed or removed from service or reduced in rank by applying second proviso to Article 311(2) or an analogous service rule the right to a full and complete inquiry in an appeal or revision. In the wake of Apex Court judgement in Tulsiram Patel case (supra) and Satyavir Singh Case (supra) ,the Department of Personnel and Training (DoPT), Government of India issued an OM dated 11th November 1985 clarifying the issues arising from the judgements in the two cases. Railway Board circulated this DoPT OM vide their letter dated 06.02.1986. The Rule 14(ii) of the RS(D&A) Rules is analogous to Article 311(2) of the Constitution of India providing special procedure for imposition of penalties in situations where it is not practically possible to hold an inquiry. Learned counsel averred that the applicants could claim in Appeal that an inquiry should be held with respect to the charges on which the penalty of dismissal from service has been imposed upon them. The RS(D&A) Rules,1968 Rule 22 (c) (iv) (b) authorizes the Appellate and Revising authority to hold an inquiry or direct that such inquiry to be held in accordance with the provisions of Rule 9 (supra). The applicants' grievance of being denied natural justice is not tenable as they have not availed the option of Appeal and Revision in which they can ask for a full and complete inquiry.
5.3 The respondents further cited the judgement of Hon'ble Supreme Court in Civil Appeal No. 3105/2017 in the matter of Hari Niwas Gupta Vs. State of Bihar and Anr. and Civil Appeal No. 3106-3107 of 2017 in Komal Ram and Jitendra Nath Singh Vs State of Bihar & Another. 5.4 Respondents also submitted that there were apparent mistakes, errors and possible manipulations in document verification during the recruitment tests which led to such large scale impersonation. Investigation /Disciplinary action were underway against the then Chairperson of RRB Muzaffarpur and other official(s) involved in it.
6. Heard the submissions and considered the materials on record.
7. The OA(s) was admitted under the provisions of Section 21(3) of the AT Act after due consideration. During pendency of these OA(s), the respondents filed MA on 29.09.2020 praying to dismiss the OA(s) as the Page No. 12 applicant(s) had filed Appeal before the Appellate Authority on 09.07.2020 and the Appellate Authority was feeling difficulty in considering the said appeal in view of the pendency of the OA(s). The matter was heard on 13.01.2021 and it was observed that allowing the MA would amount to deciding the OA(s). To avoid the said situation it was suggested to have the hearing of OA itself and the counsel for respondents agreed not to press the MA. The counsel for applicant(s) made a categorical statement that he does not want to press the Departmental Appeals and expressed willingness to withdraw the Appeals at the risk and cost of the applicants and said departmental appeal(s) have since been withdrawn.
8. We now advert to the issues arising from OA(s). It is trite to say that the FSL report disclosing mismatch in the handwritings of applicants on the answer sheets and other documents obtained at different levels of recruitment process is highly incriminating and the respondents could not have overlooked the FSL report. The report implies use of impersonator by applicants in the recruitment test and raises the question of applicants' competence and suitability for the posts to which they were appointed. It invalidates the recruitment process for the applicants and if the report is true the applicants lose right to continue in the service. However, examination of answer sheets and documents by handwriting expert after a gap of six years begs question of authenticity of the documents examined and the validity and reliability of the expert opinion. It needs to be established that the documents, answer sheets etc. sent to the GEQD were actually those written and signed by the applicants during the test and also, whether the finding of handwriting expert is valid and reliable.
9. We are inclined to hold that there is a need to test the authenticity of the documents sent to FSL and validity of the expert opinion thereon. The issue before us is whether that inquiry should be held by the Appellate Authority as enabled by the judgement of Hon'ble Apex Court in Tulsiram Patel case (supra) or it should be held ab initio from the stage of show cause notice to the applicant(s).
10. The show cause notice issued to the applicant on 30.04.2020 reads as follows:-
" During investigation regarding your candidature in the written examination held on 15.06.2014 for the post of ALP selection, writings at the different level of the recruitment of yours were found mismatched. Hence, declaration form I, II & III duly written by you in RRB/MFP on the date of verification of qualification, OMR Sheet for written examination and affidavit Sheet for aptitude test were sent to Examiner of Question Documents, Director of Forensic Science, Kolkata. From the report of GEQD against you it is established beyond doubt that some impersonator had appeared in the written examination.
You are hereby directed to submit your explanation within 15 days from receipt of show cause notice as to why you should not removed from Railway Service."
11. The order of dismissal from service under rule 14(ii) supra issued to the applicant(s) reads as follows:-
" You were selected in the written examination conducted by RRB/MFP on 15.06.2014 for the post of Asstt. Loco Pilot. In the written examination writing of candidates OMR answer sheet do not match with writing of candidate's attendance slip for aptitude test held on 20.09.2014 and all three declaration form I,II, III duly written by candidate on the date of verification.
Same has also been confirmed by forensic examination report of Central Forensic Laboratory,DFSS, MHA, Govt. of India, Kolkata and letter of Dy. CVO/A, East Central Railway, Hajipur vide ref. no. ECR/Vig/V-2/C/NG/RRB/MFP/02-18/PC/DK/28 dated 24.01.2020.
A Show Cause Notice No. CS/Major/MR dated 30.04.2020 has been issued to you with a direction to submit your explanation. You have submitted your explanation dated 15.05.2020. Your explanation is not satisfactory.
In view of the above it is established that impersonator had appeared in the written examination and considered that it is not reasonably practicable to hold an Page No. 13 enquiry in the manner provided in Railway Service D&A Rule 1968 as he may indulge in malpractices/Impersonator to disturb working environment.
Now therefore, in exercise of power conferred by Rule no. 14(ii) of the RS(D&A) Rules, 1968 the undersigned is hereby Dismissed you from the Railway Service with immediate effect.
You will please handover to CCC/TRS/Jhajha Railway property, if any, in your possession.
You will appreciate that the railway quarters occupied by you is essentially required by other railway staff. You are, therefore, required to deliver to the railway administration the possession of railway quarter by vacating the same as early as possible as but not later than 29.06.2020. It may be mentioned here that if the said quarter is not vacated by the stipulated date, you make yourself liable to railway for eviction there from and for damage for the unauthorised use an occupation thereof.
If you wish to make an appeal against the penalty, you can do so within a period of 45 days to the ADRM/OP/DNR (the APPELLATE AUTHORITY) through proper channel."
12. It is evident from the show cause notice and the impugned order above that the Disciplinary Authority had accepted the validity of the FSL report and based on that passed the order of Dismissal from service. It is not in dispute that the Disciplinary Authority did not provide copy of the FSL report or the preliminary enquiry report to the applicants.
13. The ground mentioned by the Disciplinary Authority to dispense with the regular departmental enquiry is that "the applicant may indulge in malpractice/impersonator to disturb working environment." The DoP&T guideline dated 11.11.1985 issued in the wake of the judgements of Hon'ble Supreme Court in the cases of Tulsiram Patel (supra) and Satyvir Singh (supra) states the following at Para 6.
"6. Coming to clause (b) of the second proviso to Art. 311(2), there are two conditions precedent which must be satisfied before action under this clause is taken against a government servant. These conditions are:-
(i) There must exist a situation which makes the holding of an inquiry contemplated by Art. 311(2) not reasonably practicable. What is required is that holding of inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate all the cases in which it would not be reasonably practicable to hold the inquiry. Illustrative cases would be:-
(a) Where a civil servant, through or together with his associates, terrorises, threatens or intimidates witnesses who are likely to give evidence against him with fear of reprisal in order to prevent them from doing so; or
(b) where the civil servant by himself or with or through others threatens, intimidates and terrorises the officer who is the disciplinary authority or members of his family so that the officer is afraid to hold the inquiry or direct it to be held; or
(c) Where an atmosphere of violence or of general indiscipline and insubordination prevails at the time the attempt to hold the inquiry is made.
The disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the civil servant is weak and is, therefore, bound to fail."
In view of the DoP&T guidelines dated 11.11.1985 referred above, the ground mentioned by the Disciplinary Authority is not specifically dealing with any of the ground illustrated in the said DoP&T guidelines. It could be argued on behalf of the respondents that it is covered by the ground (c ) above which reads as under:-
(a) "Where an atmosphere of violence or of general indiscipline and insubordination prevails at the time the attempt to hold the inquiry is made."
But when we examine the overall situation of the matter we find that the grounds mentioned by the Disciplinary Authority is not squarely covered by this illustration as well. There must exist a situation which makes the holding of an enquiry contemplated not reasonably practicable. It is not a case of that nature and this finding/observation is fortified by Page No. 14 the facts that on similar allegation and under similar circumstances the employees in other Divisions have been served charge memo and disciplinary proceeding against them is going on. There is no mention by the respondents in written statement or submissions during the argument that any one of those employees indulged in any malpractice. The Railway Board vide RBE 133/2017 on this subject has emphasized that the reasons recorded by Disciplinary Authority for dispensing with the inquiry should be supported by objective facts. The order of the Disciplinary Authority dispensing with the enquiry thus appears not to be supported by germane reasons. Further, the idea that an impersonator may appear on behalf of a charged officer in a departmental enquiry is unreasonable. How can an impersonator appear as charged officer in a departmental proceeding without connivance of the enquiry officer, presenting officer and prosecuting witnesses? By any stretch of imagination the decision to dispense with the proceeding cannot be said to be rational.
14. The learned counsel for the respondents has vehemently argued that even if enquiry was needed the same can be held by the Appellate Authority and it will not be necessary to quash the order passed by the Disciplinary Authority on the grounds that enquiry was needed and that it was dispensed with. It would be proper to give liberty to the applicants to prefer an Appeal and request the Appellate Authority therein to conduct the enquiry before passing any final order. Learned counsel for respondents placed reliance on the decision of the Hon'ble Supreme Court in Union of India and Another vs Tulsiram Patel and Others (1985 AIR 1416) and RBE No. 133/2017 that the applicants can ask for full and complete enquiry into the charges. The Appellate Authority can hold enquiry under Rule 22 of the RS(D&A) Rules, 1968 but whether in the facts and circumstances of the case it would be appropriate to adopt such approach.
15. Before entering into this aspect we again revert to the order of the Disciplinary Authority dispensing with the regular enquiry. If the submission of the learned counsel for the respondents is analysed in letter and spirit, it will reveal that according to the respondents also the enquiry is required and that could be done by the Appellate Authority. However, the reason given by Disciplinary Authority for dispensing with the regular enquiry under Rule 9 (supra) could also apply to the departmental enquiry by Appellate Authority.
16. We agree that an enquiry at the level of Appellate Authority as prescribed under the judgement of Hon'ble Apex Court in Tulsiram Patel case would redress the applicants' grievance of being denied natural justice and provide them opportunity to present their case. But, this would not address the issue of discrimination which the applicants are facing. Further, it would not be in the interest of justice to let go the arbitrary use of the provisions of Rule 14(ii) of the RS(D&A) Rules by the Disciplinary authority. It appears that the impugned order(s) were passed with caprice and without rationale and thus are liable to be set aside.
17. In light of the aforesaid discussion, the impugned order(s) of dismissal of applicant(s) dated 29.05.2020 (Annexure A-3) in all the ten OAs, passed under Rule 14(ii) of the Railway Servants (Discipline & Appeal) Rules, 1968 are hereby quashed and set aside. However, this order shall not impede the Respondents from holding regular departmental enquiry against the applicants by giving proper charge- sheet under the RS(D&A) Rules, 1968. While it shall be open for the applicants to claim consequential benefits, the Respondents may restrict the benefits to what has been given to similarly placed officials facing departmental proceeding for the same charge in other Divisions of E.C. Page No. 15 Railway, if they decide to hold the departmental enquiries against these applicants.
18. With these directions, all the ten OA(s) are allowed. MAs, if any also stand disposed of. No order as to costs.
19. Original order will be kept in the file of OA No 240/2020 and its photocopies will be placed in the remaining nine files.
[ Sunil Kumar Sinha] [M.C. Verma]
Administrative Member Judicial Member"
6. Since the aforesaid order of the Patna Bench thrashes out each and every issue involved in the instant Original Application, we are of the view that there is no scope for us to take a divergent view in the matter. Accordingly, the impugned orders dated 06.01.2021 and 24.02.2021 (Annexure A-1 and A-2 respectively) passed under the provisions of Rule 14 (2) of the Railway Service (Discipline and Appeal Rules), 1968 are quashed. However, respondents are at liberty to exercise their authority to hold regular disciplinary proceedings by way of a departmental inquiry against the applicant. Needless to say that if the Disciplinary Authority chooses to exercise this option, they shall adhere to the established Rules and the Procedure. At the same time, the applicant is also at liberty to approach the respondents to claim benefits which may accrue as a consequence of this order.
7. With the aforesaid direction, this OA is allowed and disposed off.
8. There shall be no order as to costs.
(Ms Pratima K Gupta) (Tarun Shridhar)
Member-J Member-A
Sushil