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2014 DIGILAW 761 (JHR)

Union of India v. N. Janardan Rao

2014-07-18

AMITAV K.GUPTA, R.BANUMATHI

body2014
JUDGMENT R. BANUMATHI, J. 1. These writ petitions are filed for quashing the order dated 1.8.2012 and order dated 7.1.2013 passed in O.A. No. 236 of 2010 (R) and O.A. No. 117 of 2011 (R) respectively, whereby the Central Administrative Tribunal (CAT) allowed the applications directing reinstatement of the respondents with notional benefits of pay and seniority with effect from 16.10.2008 without any back wages. 2. The respondents were appointed as Substitute Token Porter way back in 1988. In the year 1999, the respondents along with 23 others were issued with a major penalty chargesheet by the Divisional Operation Manager, vide chargsheet memo dated 12.5.1999, on the allegation that the respondents had secured employment on the basis of fake past casual service certificates. Although the alleged misconduct was individual, the chargesheet framed against all 25 were similar in nature. Major Penalty Proceedings were initiated, vide chargesheet dated 12.5.1999, and thus, proceeded in a general enquiry against all the Substitute Token Porters, which culminated into the punishment of removal from service. 22 aggrieved Substitute Token Porters filed writ petition, W.P. (S) No. 1376 of 2005, in which the removal orders were quashed and the Court ordered for reinstatement which was affirmed by the Hon’ble Supreme Court. Pursuant to the order of the High Court, all Substitute Token Porters excepting the respondents were reinstated with full back wages and regularized with continuity of service. 3. So far as these respondents are concerned, by a similar order dated 31.7.2001, the disciplinary authority imposed punishment of removal from service which was confirmed by the appellate authority, i.e. Senior D.O.M, Chakardharpur, (vide order dated 22.2.2002). Against the order dated 31.7.2001 and order dated 22.2.2002, the respondents filed two separate O.As, O.A Nos. 648 of 2001 and 1038 of 2002 before the CAT, Cuttack. Both O.As were disposed of by a common judgment dated 5.1.2004 remitting the case back to the disciplinary authority for starting de novo enquiry into the matter from the enquiry stage. The Tribunal further directed that the enquiry shall be limited to the examination of Sri S.C. Ghosh, P.W.1/CONST/BNDM at the material time and to the production of the Live Casual Register BNDM. The Tribunal further directed that the enquiry shall be limited to the examination of Sri S.C. Ghosh, P.W.1/CONST/BNDM at the material time and to the production of the Live Casual Register BNDM. Against the order dated 5.1.2004, Railway filed writ petition, W.P. (C) No. 657 of 2005 and W.P. (C) No. 658 of 2005 before the High Court, Cuttack and the said writ petitions were disposed of by a common judgment dated 4.5.2005, wherein the High Court directed the Railways to start the fresh enquiry in continuation of the stage of recording of evidence giving liberty to the prosecution as well as to the defence to produce as many documents and witnesses as they want which are relevant in the opinion of the Enquiry Officer after obtaining his permission. A fresh enquiry was conducted from the stage of recording evidence and Sri S.C. Ghosh, whose forged signature past casual service certificates were issued, was examined as prosecution witness. He was also cross-examined by the respondents. The enquiry report was submitted to the disciplinary authority on 28.11.2006. The Disciplinary Authority had issued orders exonerating the respondents from the charges brought against them. The Revising Authority, i.e. DRM, Chakardharpur, in exercise of power conferred upon him under Rule 25 of the Disciplinary Authority Rules, 1968 had initiated suo motu revision and a show cause notice dated 5.6.2008 was issued proposing to review the order passed by the Disciplinary Authority and to impose the proposed penalty of removal from Railway service. The respondents had submitted representations dated 2.7.2008 and 29.7.2008 and considering the same, the Revising Authority issued the order dated 16.10.2008 removing the respondents from service. 4. Aggrieved by the order dated 16.10.2008, the respondents filed O.A. No. 39 of 2009 and O.A. No. 184 of 2008 before the CAT, Ranchi, which were disposed of on 11.2.2009 and 11.8.2010 directing the respondents to prefer an appeal before the competent authority. Accordingly appeals were preferred by the respondents and the appeals were disposed of by Chief Operation Manager/GRC, vide order dated 12.6.2009 and 15.4.2011, upholding the punishment of removal from service imposed by the Revising Authority, i.e. DRM, Chakardharpur. Accordingly appeals were preferred by the respondents and the appeals were disposed of by Chief Operation Manager/GRC, vide order dated 12.6.2009 and 15.4.2011, upholding the punishment of removal from service imposed by the Revising Authority, i.e. DRM, Chakardharpur. Being aggrieved by the order of the Revising Authority (dated 16.10.2008) and the appellate authority (dated 12.6.2009 and 15.4.2011), the respondent filed O.A. No. 164 of 2009 and O.A. No. 184 of 2008 before the CAT, Ranchi and the CAT disposed of the applications directing the Railways to consider the appeal in the light of the law laid down in the case of C. Ram Chandra. In compliance of the said order, the Chief Operation Manager, GRC passed a reasoned speaking order on 9.8.2010. Against the said order (dated 9.8.2010) reiterating the punishment of removal from service, the respondents filed O.A. No. 261 of 2010 and O.A. No. 117 of 2011 before the CAT, Ranchi and the Tribunal disposed of the said applications by two different orders directing the Railways to reinstate the respondents with notional benefits of pay with seniority with effect from 16.10.2008, which is under challenge in these writ petitions. 5. Learned counsel for the petitioner contended that after remittance of the matter to the disciplinary authority, Sri S.C. Ghosh (P.W.1), who was alleged to have issued engagement certificate categorically denied that the signature of the engagement certificates is not of him and therefore, the basis upon which the respondents got engagement as casual employees was illegal. Learned counsel further contended that as per the mandatory provisions for engagement for the regular empanelment of casual labour, South Eastern Railways issued a specific notification stating that for engagement of Casual Labour, the approval of the General Manager was mandatory but such approval has not been taken which shows that the alleged engagement is illegal and the Tribunal failed to consider this aspect and the order directing reinstatement is not sustainable. 6. Learned counsel for the respondents, Mrs. 6. Learned counsel for the respondents, Mrs. M.M. Pal, submitted that altogether 25 Substitute Token Porters including the respondents were removed for the self same charges for producing false service certificate issued by the same P.W.1, Sri S.C. Ghosh and pursuant to the order of the Tribunal confirmed by the High Court in W.P. (S) No. 1376 of 2005, 21 similarly situated Substitute Token Porters have been reinstated with full back wages and with all consequential benefits and these respondents are similarly situated as that of 22 Substitute Token Porters, who have been reinstated with full back wages and with all consequential benefits. 7. Altogether 25 Substitute Token Porters including the respondents were removed from service for the self same charges for producing false certificates issued by the P.W.1, Sri S.C. Ghosh. Major penalty proceeding was initiated, vide charge sheet dated 12.5.1999 and a joint enquiry was conducted against all the 23 Substitute Token Porters, which culminated into a punishment of removal from service, vide order dated 27/31.7.2001 upon all such Substitute Token Porters. Challenging the removal orders and appellate orders, 22 of such aggrieved Substitute Token Porters approached the CAT, which was set aside by the Tribunal. The order of the Tribunal was challenged in W.P. (S) No. 1376 of 2005, wherein the order of the CAT was confirmed which was also confirmed by the Hon’ble Supreme Court and all 22 Substitute Token Porters have been reinstated in service with full back wages and regularized with continuity of service. 8. Learned counsel for the petitioner submitted that the respondents are not similarly situated with 22 others because the judgment passed by the CAT, Ranchi and the High Court directing reinstatement of 22 Substitute Token Porters was essentially based upon the facts that:- (i) The affected persons were not associated at any stage of vigilance enquiry. (ii) Sri S.C. Ghosh, whose statement certifying that casual service certificates in question were not signed or issued by him, was the important piece of evidence for the prosecution and the said Sri S.C. Ghosh was not available for cross-examination at the time of disciplinary enquiry of those 22 Substitute Token Porters. (ii) Sri S.C. Ghosh, whose statement certifying that casual service certificates in question were not signed or issued by him, was the important piece of evidence for the prosecution and the said Sri S.C. Ghosh was not available for cross-examination at the time of disciplinary enquiry of those 22 Substitute Token Porters. Contention of the petitioner is that the case of the respondents essentially differs from the other cases since during disciplinary proceedings of the respondents, Sri S.C. Ghosh, who was the material witness for prosecution, was available for cross-examination and the respondents had full opportunity of cross-examining the said Sri S.C. Ghosh and therefore, the respondents cannot contend that they are similarly situated as that of 22 Substitute Token Porters, who were reinstated. 9. The above submission is nothing but reiteration of the order of the revising authority, i.e. Divisional Railway Manager (DRM), which differed with the findings of the disciplinary authority by observing that during the disciplinary proceedings initiated against the respondents, Sri S.C. Ghosh was available for cross-examination and therefore, the respondents stand on different footing. As pointed out earlier, although the alleged misconduct was individual, the charge sheet was similar in nature and in all the disciplinary proceedings, the materials relied upon by the Railways was one and the same. The removal order against all the 22 Substitute Token Porters were based on the same allegation of producing false certificate issued by the same person, i.e. P.W.1 Sri S.C. Ghosh. Although as against 22 Substitute Token Porters, the alleged misconduct was individual, the charge was similar. Major penalty proceedings were initiated and after joint enquiry against all the 23 Substitute Token Porters, major punishment of removal from service was imposed, which was subsequently quashed. Considering the facts and circumstances and the materials on record, we are of the view that the respondents are similarly situated as that of 22 Substitute Token Porters, who were also removed on the same-self-charges. 10. Viewed in the factual scenario, the point that the respondents had opportunity to cross-examine P.W 1, Sri S.C. Ghosh and 22 other similarly situated persons did not have such opportunity does not seem to have any significance. On 12.12.1990, the Vigilance Department recorded the statement of Sri S.C. Ghosh and the main features of the statements of Sri S.C. Ghosh are:- (i) No casual gangman was appointed during the period from 5.12.1982 to 17.10.1990. On 12.12.1990, the Vigilance Department recorded the statement of Sri S.C. Ghosh and the main features of the statements of Sri S.C. Ghosh are:- (i) No casual gangman was appointed during the period from 5.12.1982 to 17.10.1990. (ii) As per the live casual register maintained in his office, none of 26 persons listed in the questionnaire worked in his unit during the period mentioned against each. (iii) None of the past working service certificates was issued from his office. (iv) Sri S.C. Ghosh stated that the signatures on the past working service certificates were not his signature. 11. During the enquiry proceedings against the respondents, Sri Ghosh was examined on 21.8.2006 and cross-examined by the respondents on 17.10.2006. Since Sri Ghosh in his statement stated that none of 26 persons in the list was in the live casual register, the live casual register would have been the best evidence to corroborate the statement of P.W1. Likewise, the disputed/fake original service certificates were not produced during the enquiry. Therefore, even though the respondents had the opportunity of cross-examining P.W1, Sri Ghosh, the relevant documents were not produced. Therefore, we are of the view that the respondents are similarly situated as that of 22 Substitute Token Porters who had already been reinstated with notional benefits of pay and seniority only. The respondents did not have the opportunity to cross-examine P.W1 Sri Ghosh on this vital piece of evidence and the opportunity to cross-examine P.W1, Sri Ghosh, did not make any difference for the respondents. 12. The petitioner Railways alleged that the respondents had produced forged/fake service certificate seeking employment of casual nature but this alleged false/fake service certificates were not produced during the enquiry. Therefore, as pointed out by the Tribunal, it becomes a case of no evidence and the Tribunal rightly directed the Railways to reinstate the respondents with effect from 16.10.2008. We do not find any infirmity in the order of the Tribunal warranting interference by this Court. 13. Both the writ petitions are dismissed. The petitioner is directed to comply with the order of the Tribunal dated 1.8.2012 passed in O.A. No. 236 of 2010 (R) and order dated 7.1.2013 passed in O.A. No. 117 of 2011 (R) within one month from the date of receipt of copy of this order.