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2006 DIGILAW 790 (CAL)

BISWANATH DEY v. UNION OF INDIA

2006-12-15

BHASKAR BHATTACHARYA, KISHORE KUMAR PRASAD

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BHASKAR BHATTACHARYA, J. ( 1 ) THIS writ-application is at the instance of an unsuccessful applicant under Section 19 of the Administrative Tribunal Act, 1985 (hereinafter referred to as the Act) and is directed against order dated november 11, 2004, passed by the Central Administrative Tribunal, Kolkata bench, in Original Application No. 1564 of 1999 thereby disposing of the said application by directing the writ-petitioner to supply the copy of the records of the proceedings served on him to the Disciplinary Authority with a further direction upon the Disciplinary Authority to hold further enquiry, if so desired by the applicant, in continuation of the earlier Disciplinary proceeding and to pass final order as expeditiously as possible. It was further ordered that if the writ-petitioner did not supply the records to the employer within a period of 15 days from the receipt of the copy of the said order, the disciplinary Authority would be at liberty to proceed with fresh Disciplinary inquiry pursuant to the memo containing charges dated June 7, 1996 and to conclude the same, preferably, within six months. ( 2 ) BEING dissatisfied, the writ-petitioner has come up with the present application under Article 226/227 of the Constitution of India. ( 3 ) THE facts giving rise to filing of the present writ-application may be summed of thus : The writ-petitioner was posted as CPW, at Samsi in the year 1996 wherein a passenger train derailed. On June 7, 1996, a charge-sheet was issued against the writ-petitioner making some allegations against him of direliction of duty in connection with the said accident. ( 4 ) THE petitioner submitted his reply to the charge-sheet on June 15, 1996 and ultimately, he retired from service on attaining the age of superannuation on June 30, 1996. ( 5 ) THE departmental enquiry was conducted by the enquiry officer appointed by the employer wherein various witnesses were examined. The petitioner appeared before the enquiry officer and made his submission and subsequently, on April 22, 1997 a show-cause notice was issued to the petitioner accompanying the report of the enquiry officer asking the petitioner to represent within 15 days and to give his comments on the said report of the enquiry officer. The petitioner appeared before the enquiry officer and made his submission and subsequently, on April 22, 1997 a show-cause notice was issued to the petitioner accompanying the report of the enquiry officer asking the petitioner to represent within 15 days and to give his comments on the said report of the enquiry officer. It may be mentioned here that the enquiry officer in his report came to the finding that in his opinion, excessive tight gauge and twist variations of cross level beyond permissible limit over turn-out point contributed by excessive difference in buffer height in between the two consecutive coaches was the cause of the accident ; however, the report continued, CPW, Sumsi could not escape the secondary responsibility due to irregular track parameter existing on the road. ( 6 ) UPON perusal of the enquiry report, the writ-petitioner submitted his reply stating therein that no charge against the petitioner had been proved and that the petitioner was not at all responsible for such accident. It was further pointed out that there was no casualty or damages and the said derailment affected only on 200 meters. ( 7 ) THE Disciplinary Authority was totally silent for the next two years in taking final decision after completion of comments and representation on the enquiry report. Ultimately, August 29, 1999, the petitioner was asked to appear along with the Disciplinary/enquiry papers at Katihar. ( 8 ) ON November 22, 1999, the petitioner received a letter dated november 18, 1999 along with an order dated November 15, 1999 issued by the Disciplinary Authority for holding fresh enquiry along with an order of appointment of an enquiry officer. The decision to hold de novo enquiry was taken on November 15, 1999 but the same was not communicated to the petitioner till November 22, 1999. A new enquiry officer was appointed to hold fresh enquiry on the charge-sheet dated April 7, 1996 and such decision to hold de novo enquiry was issued without cancelling the earlier enquiry. ( 9 ) THE writ-petitioner represented to the employer for cancellation of the decision of holding fresh enquiry and ultimately, on December 7, 1999, he filed an application under Section 19 of the Act before the Central administrative Tribunal for quashing of the decision of initiating de novo enquiry. ( 9 ) THE writ-petitioner represented to the employer for cancellation of the decision of holding fresh enquiry and ultimately, on December 7, 1999, he filed an application under Section 19 of the Act before the Central administrative Tribunal for quashing of the decision of initiating de novo enquiry. ( 10 ) THE application was contested by the Railway Authority and ultimately, the Tribunal by the order impugned herein disposed of the said application by directing the writ-petitioner to submit all papers relating to enquiry to the enquiring officer within fortnight from the date of receipt of the order with a direction upon the employer to conclude enquiry within a specified period. It was further ordered that if the writ-petitioner did not submit the papers relating to the enquiry within the said period, the employer would be free to make further enquiry on the basis of the earlier charge- sheet. ( 11 ) BEING dissatisfied, the petitioner has come up with the present writ-application. ( 12 ) MR. Basu Mullick, the learned Advocate appearing on behalf of the writ-petitioner has vehemently contended before us that the learned tribunal below erred in law in passing a direction upon the writ-petitioner to submit all the papers relating to enquiry with a direction to proceed with the enquiry on the basis of those papers. According to Mr. Basu Mullick, his client cannot be blamed for the loss of original papers from the custody of the Railway Authority and at the same time, on the basis of the papers given to him, the said enquiry cannot continue in the absence of the original records. ( 13 ) MR. Basu Mullick further submits that his client having retired in the year 1996, the enquiry initiated earlier can continue with the leave of the President but there was no scope of direction of a de novo enquiry after the retirement of his client. According to Mr. Basu Mullick, the Railway- service Rules do not give authority to the employer to start fresh enquiry after an employee has retired on attaining the age of superannuation. He, therefore, prays for quashing of the order of the de novo enquiry and also of the order of the Tribunal on that ground alone. ( 14 ) MR. According to Mr. Basu Mullick, the Railway- service Rules do not give authority to the employer to start fresh enquiry after an employee has retired on attaining the age of superannuation. He, therefore, prays for quashing of the order of the de novo enquiry and also of the order of the Tribunal on that ground alone. ( 14 ) MR. Basu Mullick lastly contends that even it will appear from the report submitted by the enquiry officer that one of the reason for the accident was the defect in height of the two consecutive coaches and as such, his client cannot be held responsible for such accident if the same occurred for the defect in the coach. Mr. Basu Mullick, therefore, prays for setting aside the order passed by the Tribunal and for direction upon the railway Authority to pay all the retirement dues of his client. ( 15 ) MR. Chatterjee, the learned Advocate appearing on behalf of the railway Authority has, however, opposed the aforesaid contentions advanced by Mr. Basu Mullick and has contended that the Tribunal has made substantial justice by directing the writ-petitioner to supply all the relevant papers which were submitted to him by the employer. According to Mr. Chatterjee, the writ-petitioner cannot take advantage of the loss of record and in such a situation, the Tribunal rightly directed the writ-petitioner to produce all the records in his possession. Mr. Chatterjee contends that on the basis of enquiry, the writ-petitioner was found guilty and accordingly, the employer decided to send the records to the President of India for approval as by that time he had retired. At that stage, Mr. Chatterjee continues, the records of the case were surprisingly missing and consequently, the Railway Auithority had no other option but to take decision for de novo enquiry. Mr. Chatterjee, however, fairly conceded that the concerned Rules do not provide for de novo enquiry after an employee has retired from service. He further submits that due in the accident to question there was no loss of human life nor was any financial loss of the Railway. ( 16 ) THEREFORE, the first question that arises for determination in this writ-application is whether the Railway Authority was entitled to start fresh enquiry after the retirement of the employee simply because the records relating to previous enquiry were lost from the custody of the Railway authority. ( 16 ) THEREFORE, the first question that arises for determination in this writ-application is whether the Railway Authority was entitled to start fresh enquiry after the retirement of the employee simply because the records relating to previous enquiry were lost from the custody of the Railway authority. ( 17 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record, we find that according to the relevant Rules, if an enquiry has already started the same can be continued even after the expiry of the attainment of the normal age of superannuation of an employee. In this case, the enquiry commenced during the service period of the writ- petitioner and the same continued even after his retirement. But after conclusion of enquiry, when the records relating to the enquiry were about to be sent to the President of India for his approval, those were lost. In such circumstances, the Railway Authority asked the writ-petitioner to supply the copy of the papers sent to him earlier so that on the basis of those papers, the proceeding may continue. The writ-petitioner having refused to submit those papers, the Railway Authority took decision to start fresh enquiry. The Tribunal has approved the stance of the Railway Authority and has held that it was the duty of the writ-petitioner to co-operate with the employer by giving all those papers so that the enquiry could be concluded on the basis of those papers. The writ-petitioner not having agreed to such porposal, the Tribunal has permitted the Railway Authority to start fresh enquiry if the papers are not handed over by the writ-petitioner within a specified period. In other words, the Tribunal has permitted the Railway authority to proceed with the enquiry not on the basis of original records but on the basis of papers submitted to the writ-petitioner. ( 18 ) IN our view, the relevant rules not having authorised the Railway authority to start afresh with the enquiry after the retirement of an employee, there is no scope of passing a direction for holding fresh enquiry by cancelling the previous depositions and other papers relating to the enquiry which were lost from the custody of the Railway Authority. At the same time, we are of the opinion that the writ-petitioner cannot be blamed in any way for the loss of papers from the custody of the employer. At the same time, we are of the opinion that the writ-petitioner cannot be blamed in any way for the loss of papers from the custody of the employer. ( 19 ) NOW the next question is whether in such a situation it should be proper to permit the Railway Authority to proceed with the enquiry by passing a direction upon the writ-pettioner to resubmit the papers which are given to him after submission of the enquiry report. ( 20 ) IF we now permit the Railway Authority to proceed on the basis of papers submitted to the writ-petitioner simply because according to the employer, those are lost from their custody, such proceedure will definitely cause prejudice to the writ-petitioner. The papers which were submitted to the writ-petitioner are all allegedly copies of the original but in the absence of the original, we are not prepared to force the writ-petitioner to accept those as original papers. If the procedure adopted by the Tribunal is permitted to continue, an unscrupulous employer after submitting manufactured papers and depositions to the delinquent employee may vary well take the plea that the original papers are lost and in the process, the employee may be prejudicially affected. Even in a case, if during the service period of an employee, such incident happened, the employer could not continue with the enquiry on the basis of copy of the papers sent to the employee in the absence of the original records. We are, therefore, of the firm opinion that at this stage it will be unfair to permit the employer to proceed against the employee on the basis of alleged copies of the proceeding in the absence of the original. ( 21 ) MOREOVER, in the meantime more than 10 years have elapsed and therefore, at this stage there is hardly any chance of fresh enquiry in a reasonable way as appropriate evidence will not be available after such a long time. We also cannot lose sight of the fact that due to the derailment complained of, there was no loss of life of anybody nor was there any financial loss of the Railway. We have already pointed out that it appears from the copy of the report submitted by the enquiry officer that for the accident in question, defective coaches had a vital role to play. We have already pointed out that it appears from the copy of the report submitted by the enquiry officer that for the accident in question, defective coaches had a vital role to play. On the selfsame track several other trains had passed on the selfsame day but no accident had taken place. Therefore, we find substance in the contention of mr. Basu Mullick that because of the fact that the coaches of the train in question were defective as there was uneven height at different places of the coaches as it appears from the enquiry report, that the accident occurred. In such situation, the writ-petitioner who was in charge of the track cannot be penalized. ( 22 ) ON consideration of the entire materials on record, we are of the view that as the records were missing from the custody of the employer, for that reason, the employee cannot be forced to accept the alleged copy of the original as genuine when the originals are not available. The emloyee, in such a case, can reasonably argue that in the absence of original records, he cannot be forced to accept the copies sent by the employer as authentic. We have already pointed out that the relevant Rules do not permit fresh enquiry on the basis of fresh material after an employee has retired from service. We have also pointed out that after long lapse of years, there is hardly any scope of genuine enquiry regarding the derailment which had taken place 10 years ago. ( 23 ) WE, therefore, set aside the order passed by the Tribunal and quash the order impugned by which fresh enquiry after the retirement of the writ-petitioner was ordered. The respondents are directed to pay all the retiral benefit and dues to the writ-petitioner within one month from today after deducting the provisional pension already released to the writ-petitioner with iterest at the rate of 10 per cent per annum. This order, however, will not prevent the Railway Authority from making enquiry for fixing the responsibility upon the person who was responsible for the loss of records from the custody of the Railway Authority and to take step accordingly in accordance with law. The writ-application is, thus, allowed. ( 24 ) IN the facts and circumstances, there will be, however, no order as to costs.