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2005 DIGILAW 263 (GAU)

Union of India v. Sudhangshu Chakraborty

2005-03-29

D.BISWAS, RANJAN GOGOI

body2005
JUDGMENT Ranjan Gogoi, J. 1. This writ petition has been filed by the Union of India and the authorities of the N.F. Railway, with its headquarters at Maligaon, challenging the order dated 28.3.2001 passed by the learned Central Administrative Tribunal, Guwahati Bench in O.A. No. 236/98. By the aforementioned judgment and order, the learned tribunal has interfered with an order dated 8.8.98 passed by the appellate authority imposing on the Respondent the penalty of stoppage of one increment with cumulative effect on modification of the penalty of stoppage of three increments with cumulative effect as imposed by the disciplinary authority. The learned Tribunal after causing interference as above, further directed that an earlier order of the appellate authority dated 30.12.97 exonerating the Respondent in the writ petition i.e. the applicant before the learned Tribunal, should be given effect to by the present writ Petitioners. 2. The facts that would be necessary for this Court to appreciate the rival projections made in the writ petition may briefly be noticed at the outset. A memorandum of charges dated 14.6.93 levelling, in essence, a charge of misappropriation of railway properties was served on the Respondent/applicant. Thereafter, by a corrigendum dated 20.9.94, the word 'misappropriation' appearing in the charge memo dated 14.6.93 was corrected to be read as 'mismanagement'. The Respondent/applicant replied to the charges levelled and the said reply not having been found to be satisfactory, the disciplinary authority thought it appropriate to appoint an enquiry officer to enquire into the charges levelled. The Respondent/applicant participated in the enquiry and on conclusion thereof, a report of enquiry dated 24.9.97 was submitted to the disciplinary authority holding the Respondent/applicant to be guilty of all the charges levelled. The report of the enquiry officer was served on the Respondent/applicant and on consideration of his reply, the disciplinary authority by the order dated 20.12.97 imposed the penalty of stoppage of three increments with cumulative effect. Aggrieved, the Respondent/applicant filed an appeal under the Railway Service (Discipline and Appeal) Rules, 1968 against the order of the disciplinary authority imposing the penalty in question. The appellate authority drew up an order dated 30.12.97, in which order, on the grounds and reasons assigned, the appellate authority took the view that the charges levelled against the Respondent/applicant must be held to be not proved and the Respondent/applicant should be entitled to the benefit of being exonerated from the charges levelled. The appellate authority drew up an order dated 30.12.97, in which order, on the grounds and reasons assigned, the appellate authority took the view that the charges levelled against the Respondent/applicant must be held to be not proved and the Respondent/applicant should be entitled to the benefit of being exonerated from the charges levelled. It must be noticed at this stage that the order of the appellate authority dated 30.12.97 was recorded in the file but the same was not communicated in any manner to the applicant/Respondent as required under Rule 12 of the Discipline and Appeal Rules in force. Rather, after recording the aforesaid appellate order dated 30.12.97, the file along with the order was endorsed to the Deputy Chief Vigilance Officer for the views of the Vigilance Department in the matter. Thereafter, it appears that the Deputy Chief Vigilance Officer had submitted his views to the appellate authority by a communication dated 24.3.98. On receipt of the said views of the Deputy Chief Vigilance Officer, the appellate authority in purported consideration of the views expressed drew up a second order which was signed in the file on 5.8.98 and was communicated to the Respondent/applicant on 8.8.98. In the order as recorded in the file and communicated to the Respondent/applicant on the dates noticed above, the appellate authority after reproducing the text of the report of the Deputy Chief Vigilance Officer took the view that the applicant/Respondent should be held guilty of the charges levelled and that in the facts and circumstances of the case, the punishment of penalty of stoppage of one increment with cumulative effect instead of three increments with cumulative effect as imposed by the disciplinary authority should be inflicted on the applicant/Respondent. 3. Aggrieved by the aforesaid order dated 8.8.98 passed by the appellate authority, the Respondent as applicant initiated a proceeding before the learned tribunal calling into question the initial order of the disciplinary authority dated 20.12.97 as well as the appellate order dated 8.8.98 imposing the punishment as noticed by us. 4. 3. Aggrieved by the aforesaid order dated 8.8.98 passed by the appellate authority, the Respondent as applicant initiated a proceeding before the learned tribunal calling into question the initial order of the disciplinary authority dated 20.12.97 as well as the appellate order dated 8.8.98 imposing the punishment as noticed by us. 4. The learned Tribunal on a consideration of the rival cases advanced by the contesting parties, took the view that as the appellate authority had already recorded an order on 30.12.97 exonerating the Respondent/applicant of the charges levelled, the appellate authority could not have surrendered its independent mind to the Vigilance Department of the Railways and the second order of the appellate authority dated 8.8.98 being the result of a virtual abdication of the powers of the appellate authority, the said order would have no legs to stand. Accordingly, the order of the appellate authority dated 8.8.98 was interfered with and directions were issued for implementation of the earlier order of the appellate authority dated 30.12.97. Aggrieved, the Union of India represented by the railway authorities are before this Court under Article 226 of the Constitution assailing the aforementioned view taken by the learned Tribunal as noticed by us. 5. We have heard Mr. S. Sarma, learned Counsel appearing on behalf of the writ Petitioners and Mr. G.K. Bhattacharyya, learned senior counsel appearing on behalf of the Respondent. 6. Mr. Sarma, learned Counsel for the writ Petitioners in support of the challenge made, has contended that the initial order of the appellate authority dated 30.12.97 which has been directed to be implemented by the learned Tribunal was an order recorded and kept in the file but not communicated to the Respondent/applicant so as to vest in the said Respondent/applicant any right to claim any benefit under the aforesaid order dated 30.12.97. The learned Counsel has contended that the order dated 30.12.97 not having been communicated to the party entitled to receive the same, the said order cannot be legally construed to be a live and valid order capable of being directed for implementation. Arguing further, the learned Counsel submitted that in the present case in keeping with the practice prevailing in the Railways and as mismanagement of railway property had been alleged against the applicant/Respondent, the appellate authority had thought it proper to take the views of the vigilance Department in the matter. Arguing further, the learned Counsel submitted that in the present case in keeping with the practice prevailing in the Railways and as mismanagement of railway property had been alleged against the applicant/Respondent, the appellate authority had thought it proper to take the views of the vigilance Department in the matter. But the eventual conclusion reached as recorded in the impugned order dated 8.8.98 being the independent decision of the appellate authority, no infirmity is disclosed in the aforesaid order dated 8.8.98 so as to warrant any interference with the same. Mr. Sarma has further submitted that the Appellant authority by the order dated 8.8.98, on consideration of the totality of the facts and circumstances, had reduced the penalty from stoppage of three increments with cumulative effect to one increment with cumulative effect and having regard to the totality of the materials on record, the punishment imposed would not justify any interference at the hands of the Court. 7. Controverting the submissions advanced on behalf of the writ Petitioners, Mr. G.K. Bhattacharyya, learned senior counsel for the Respondent has submitted that the initial order dated 30.12.97 passed by the appellate authority having been signed by the said authority and the said order having assigned cogent reasons for reaching the conclusion that the Respondent/applicant was innocent of the charges levelled, it is the aforesaid order which must be held to hold the field. In this regard, Mr. Bhattacharyya has further submitted that under the provisions of the Railway Service (Discipline and Appeal) Rules 1968, the appellate authority functions as a quasi-judicial authority and the exercise of appellate powers must be an independent exercise free from all external controls and influences. It is the disciplinary authority who is to judge the culpability of the delinquent employee and it is the appellate authority constituted under the Rules who is to determine the correctness of the views of the disciplinary authority. In the present case, reference of the matter to the Vigilance Department including the action of the appellate authority in forwarding the order dated 30.12.97 passed by it on the merits of the case to the Vigilance Department is not contemplated by the provisions of the Discipline and Appeal Rules and the said action is also foreign to law. In the present case, reference of the matter to the Vigilance Department including the action of the appellate authority in forwarding the order dated 30.12.97 passed by it on the merits of the case to the Vigilance Department is not contemplated by the provisions of the Discipline and Appeal Rules and the said action is also foreign to law. The impugned order of the appellate authority dated 8.8.98 imposing penalty on the applicant/Respondent having been passed at the behest of the Vigilance Department and there being no independent exercise of power by the appellate authority while recording the aforesaid order, the submission advanced is that this Court should uphold the order of the learned Tribunal in so far as interference with the order dated 8.8.98 is concerned and, thereafter, as a legally valid order was already holding the field i.e. the first order dated 30.12.97, additional directions recorded by the Tribunal for implementation of the said order dated 30.12.97 must also be upheld by the Court. 8. We have given our deep and anxious consideration to the rival contentions advanced by the learned Counsel for the parties. The initial order dated 30.12.97 passed by the disciplinary authority recorded in the file and signed by the said authority was not communicated to the Respondent/applicant. The necessity of communication of orders expressed in writing by the disciplinary and appellate authority is something this is visualized under the Railway Service (Discipline and Appeal) Rules, 1968, particularly Rule 12 thereof. Even otherwise, an uncommunicated order kept in the file would have little legal consequence, inasmuch as, any right to have any such order enforced in law, can be recognized in an effected party only after communication of the same. In such a situation we are unable to agree with the contentions advanced by Mr. Bhattacharyya, learned senior counsel with regard to the validity of the first order of the appellate authority dated 30.12.97. In the facts noted by us, it is our considered view that the said order dated 30.12.97 cannot be construed to be of any legal significance. 9. The next point that has to be addressed by the Court is with regard to the tenability/sustainability of the second appellate order dated 8.8.98. In the facts noted by us, it is our considered view that the said order dated 30.12.97 cannot be construed to be of any legal significance. 9. The next point that has to be addressed by the Court is with regard to the tenability/sustainability of the second appellate order dated 8.8.98. At the outset it must be emphasized that if the disciplinary and appellate authority in the present case has taken the view that some consultation or reference of the matter is required to be made to the Vigilance Department, having regard to the nature of the charges levelled against the Respondent/applicant, it will be difficult for us to hold that such consultation or reference of the matter to the Vigilance Department can be termed as irrelevant or extraneous. The decision relied on by the learned Counsel for the Respondent/applicant in the case of Nagaraj Shivarao Karjagi v. Syndicate Bank, Head Office, Manipal and Anr. (1991) 3 SCC 219 , does not lay down any law to the effect that such consultation or reference would be unauthorized. Rather, the views expressed by the Apex Court in the case of Nagaraj Shivarao Kaijagi (supra) are to the effect that the report of the Central Vigilance Commission though would not be conclusive in the matter, may be considered by the disciplinary authority along with other materials by an independent application of mind. In the present case what has been noticed by us from the records in original as well as from a reading of the order dated 8.8.98 is that the appellate authority after receipt of the views of the Vigilance Wing, did not apply its independent mind in the matter and merely after reproduction of the views of the Vigilance had proceeded to hold the Respondent/applicant liable for the charges in question. The conclusion has indeed, been abrupt and no basis for the same save and except the views expressed by the Vigilance is discernible. There being, thus, no independent application of mind whatsoever by the appellate authority and the weight of the materials having indicated a virtual abdication of its role and responsibility in the matter, no further persuasion is required for us to hold that the order dated 8.8.98 would not be legally sustainable and would call for our interference. To that extent the judgment passed by the learned Tribunal must be upheld. 10. To that extent the judgment passed by the learned Tribunal must be upheld. 10. The net result of the discussions that have preceded would give rise to a position where as on date there is no valid order of the appellate authority in force. Though the learned Counsel for the Respondent/applicant has repeatedly impressed upon us for a final culmination of the proceeding against the Respondent/applicant at the present stage, we are unable to take the view that the present would be an appropriate case for a writ Bench to perform the duties assigned to the disciplinary/appellate authority. Therefore, while interfering with the order passed by the learned Tribunal to the extent that the order dated 30.12.97 of the appellate authority has been directed to be enforced, we cause remission of the matter to the appellate authority for a de novo decision uninfluenced by any report or views of the Vigilance Department in the matter. We further make it clear that what has been emphasized in the present order is that the appellate authority will now re-do the exercise by applying its own independent mind in the matter on the basis of the materials available on record. As the matter has been pending for long, we direct the appellate authority to complete the exercise within a period of three months from the date of receipt of a certified copy of this judgment. 11. Consequently, the writ petition shall stand allowed to the extent indicated above. Appeal allowed.