Wednesday, September 28, 2011

OA No. 70 OF 2009

LLB Mumbai Univ



.....DAY, THIS THE ..... DAY OF ........, 2010



B.B. Meti,
S/o Late Bheemappa,
Aged about 47 years,
Working as Loco Pilot (Passenger Gr.II),
O/o the Chief Crew Controller
South Western Railway,
Hubli. ... Applicant

(By Advocate M/s. Subbarao & Co.)


1. The Union of India,
Rep. by the General Manager,
South Western Railway,

2. The General Manager,
South Western Railway,
Hubli Division,

3. The Divisional Railway Manager,
South Western Railway,

4. Senior Divisional Mechanical Engineer/Power,
South Western Railway,
Hubli. ... Respondents

(By Advocate Shri N.S. Prasad,
Senior Advocate for Railways)


Hon'ble Smt. Leena Mehendale, Member (A) :

This is an application filed under Section 19 of the Administrative Tribunals Act, 1985.

2. The OA is against the order dated 13.02.2009 passed by the Sr. Divisional Mechanical Engineer/Power, South Western Railway, Hubli (Respondent No. 5)(Annexure-A/15).

3. The learned counsel for the applicant has mentioned the following facts of the case:-

(i) The applicant was appointed as a Gangman as per Office Order No.13, dated 4.12.1984. During 1987, he was permitted change of cadre from Gangman Engineering Department to Khalasi Mechanical Department. Thereafter, from 1987 to 1999, he has been getting due promotions till he became Goods Driver in the Pay scale of Rs.5000-8000/-.

(ii) On 12.11.2001, a charge sheet was issued (Annexure-A/4). The following three charges were framed against him.
  1. That on 8.2.1999 when the applicant produced a Caste certificate dated 16.1.1984 purported to have been issued by the Tahsildar, Gadag, indicating that he belongs to Tokarekoli Tribe which comes under Scheduled Tribe.
  2. That the applicant was also asked to produce his school leaving/transfer certificate from the school he last studied and his permanent residential address at his native place vide their office letter No. H/O 171/BCT/CV/IV/BBM dated 10.2.1999, which he failed to do so inspite of severan reminders.
  3. That the applicant has produced a school transfer certificate which is found to be false on verification.

(iii) From the above charges, it is clear that the main ground against the applicant is that he claimed himself to be a person belonging to Tokarikoli caste (which is a ST caste) which in fact, he is not and therefore not fit to remain in service. The final order of dismissal, howevr, mentions that he produced three certificates to the Railway authorities
(a) porported to have been issued by the Tahsildar, Gadag, stating that the applicant belongs to Tokarikoli;
(b) a certificate purporting to be a transfer certificate from the School,
  1. a certificate dated 23.12.1985 purporting to be a caste certificate declaring the applicant as Kadu Kuruba.

The impugned order further mentions that while the first two certificates have been proved to be false certificates. If the Railway authorities only go by the third certificate and accept him as a person belonging to Kadu Kuruba, then, since the Kuruba caste does not come under ST. Therefore, he is liable to be thrown out of service. This clearly shows that the Railway authorities have not correctly perused the list of Sts pertaining to the State of Karnataka. The learned counsel points out to page 196, entry No. Karnataka – 16, which is Kadu Kuruba in the book named "Swamy's Cmpilation on Reservation and Consession for Scs and S.Ts, Other Backward Classes, ......." 9th Edition 2008.

After issuing the charge sheet to the applicant on 12.11.2001, a regular Enquiry Officer was appointed who, as per the learned cousel, did not give/afford full opportunity to the applicant and based on the report of the Inquiry Officer, the Disciplinary Authority passed an order dated 7.6.2005 (Annexure-A/7) dismissing the applicant from service. Against this order, the applicant preferred an appeal to the Respondent No.4 who kept it pending for quite some time, whereafter the applicant filed an OA before this Tribunal in OA No.270/2005 which was disposed of by this Tribunal with a direction to Respondent No.4 to pass an order in the appeal filed by the applicant within two months v its order dated 8.7.2005.

It is therefore, quite obvious that that the Respondent No.4 has not acted in the interest of natural justice while issuing the impugned order dated 13.02.2009. For whatever reason, once an order has been passed on one inquiry report and in the appeal the penalty of dismissal has been quashed, it has the effect of nullifying the earlier disciplinary order as well as the charge sheet. Therefore, if the 2nd order of dismissal has to be passed, it cannot be done without giving a fresh charge sheet to the incumbent

In view of the above, we have no hesitation in setting aside the impugned order dated 13.02.2009 and accordingly it is set aside

The OA is thus allowed. The applicant should be allowed to join his duties with all consequential benefits. No order as to costs.



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