Friday, November 2, 2012

OA no 484 / 2009 on ?????????-2011



TODAY, THIS THE ......... DAY OF .................., 2011


HON'BLE SHRI V. AJAY KUMAR             ...         MEMBER (J)

H.N. Shrinidhi,
S/o Late H.S. Narayana Iyengar,
aged about 48 years,
Working as Senior Section Officer (Accounts),
South Western Railway, Hubli.                 ...                                 Applicant

(By Advocate Shri Izzhar Ahmed)


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

2. The Financial Advisor & Chief
   Accounts Officer (FA&CAO),
   South Western Railway,

3. The Deputy Financial Advisor & Chief
   Accounts Officer (General),
   South Western Railway,

4. The Deputy Financial Advisor & Chief
   Accounts Officer (Book & Finance),
   South Western Railway,

5. The Chairman,
    Rail Mantralaya,
   Railway Board,
   New Delhi – 110 001.                               ...                                 Respondents

(By Advocate Shri N. Amaresh, Standing Counsel for Railways)


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

            This OA is filed on 28.10.2009, under Section 19 of the Administrative Tribunals Act, 1985, requesting to quash the charge memo dated 25.8.2009, (Annexure-A/8), on the ground that when the Disciplinary Authority is directly working under FA&CAO and when the charge is that applicant has maligned or defamed the FA&CAO, then the Disciplinary Authority cannot be without bias, hence,  Disciplinary Enquiry notice  must be withdrawn.

2.         Stated briefly, the applicant was working as Sr. S.O.(A) in the SWR (South Western Railway) at Hubli, and was issued a charge memo dated 7.3.2008 for major penalty vide Annexure-A/2.  The charge against him reads thus:-
            "In one of his complaint dtd, 20.08.07 he had involved the officers of the Accounts Department who had provided documents in response to information sought by him through RTI Act stating that the documents were forged and the officials who provided should be taken up by department.  Similarly, in another complaint dtd. 20.02.07, he has stated that the FA&CAO has abused him during his official visit to Mysore, but the allegations made in both the complaints were not proved.  Thus, his act of blaming the Officers is construed as derogatory and defaming the Accounts, higher officials with vested interest."

3.         Thus, his claim is that the charge is of blaming and defaming senior officers, particularly, FA&CAO. Then, the applicant submitted his representation dated 16.4.2008 (Annexure-A/3) first of all, denying all the charges and specifically stating that the Disciplinary Authority, namely, Shri K.N. Chandraprakash, Dy. FA & CAO, is working directly under the FA&CAO, and hence cannot be considered that he would remain free from bias.  Representation as reproduced in OA specifically stated that:
"a disciplinary authority must be free from Bias.  But, in the instant case, since the learned D.A. As also the witness named is directly working under the FA & CAO/ SWR/UBL and  FA & CAO/SWR/UBL, who is supposed to be one of the key witnesses to be examined in the enquiry proceedings to disprove the charge of false allegation.  It is felt that justice will not be done to me by the present D.A. or any other D.A. lower in rank and working under the FA & CAO.  Therefore, in all fairness and in the interest of justice an authority higher or equivalent to that of FA & CAO can only function as DA.  This is also in conformity with the principles of Natural Justice laid down by the Supreme Court."

4.         This representation was not accepted and he was informed on 21.4.2009 (Annexure-A/4) by Disciplinary Authority that the appointment of Disciplinary Authorioty is as per SOP provided in the D&A Rules, 1968, and therefore, any change in the Disciplinary Authority is not warranted.  He then, represented to the Appellate Authority, viz., the same FA&CAO of SWR vide Annexure-A/5, dated 08.05.2009 who has not replied.  Thereafter, on 18.6.2009, Shri Chandraprakash was transferred and handed over all the files to the new Dy. FA&CAO, being the new Disciplinary Authority.  The new Disciplinary Authority, namely, Shri G. Kalyanaraman, issued a letter dated 21.08.2009 (Annexure-A/7), withdrawing the charge sheet, but, without prejudice to issue of fresh chargesheet.  Thereafter, a fresh charge-sheet dated 25.8.2009, was issued by the said Shri G. Kalyanaraman, Dy. FA&CAO, in his capacity as Disciplinary Authority (Annexure-A/8).  In the new charge-sheet, there are two articles of charges, both being quite elaborate.  The applicant, once again, vide his representation dated 17.09.2009 (Annexure-A/9), approached the Disciplinary Authority, claiming that the Dy. FA & CAO being directly under FA&CAO, and the charge being that the applicant has tried to defame and malign him, the Dy. FA & CAO cannot be considered as the proper Disciplinary Authority.  He stated:-"I cannot expect a fair proceeding in the matter without bias."  He further requested that since the first charge memo was withdrawn and there was no proceeding under it for over a period of 18 months, the new charge memo was barred by limitation.  Thereafter, from Annexure-A/10, dated 23.09.2009, it is seen that the Enquiry Officer Shri G.A. Pillay, has proceeded with the enquiry and conducted the first hearing on 23.09.2009. 

5.         This being the brief history, the applicant challenged the new charge memo and made a prayer for interim order for directing the Respondent No.4, i.e., the Disciplinary Authority, not to proceed with the enquiry pending disposal of this OA.  The same was granted and the disciplinary proceedings has remained stayed so far.

6.         The applicant requests for quashing of the charge memo on the following grounds:
(i) that the Disciplinary Authority cannot be considered as an unbiased authority;

(ii)           that the fresh charge memo is against Rule 3 (1) (d) of Rules, 1968. 

Rule – 3- application (1) these rules shall apply to every Railway Servants but shall not apply to:

"Any person for whom special provision is made, in respect of matter covered by these rules by or under any law for the time being in force, or by or under any agreement entered in to by or with provisions approval of the President before or after the commencement of these rules in regard to matters covered by such special provisions."

Hence, the fresh charge memo is against the Rules.

(iii)         No misconduct is involved in the applicant seeking any information under the RTI Act, 2005, but, the Article of charge elaborately discusses his request under RTI Act as a ground for treating it as mis-conduct.

(iv)         The relevant SOP, namely, "South Western Railway" The Railway Servants (Discipline and Appeal Rules 1968 (Annexure-A/11). The schedule of powers of the Disciplinary Authority specifically mentions" -

"4.        Junior administrative Grade Officer and senior Scale Officers holding imdependent charge or in charge of a Department in the Division."  Since the Dy.FA&CAO is not holding independent charge, he cannot act as Disciplinary Authority.

(v)  The Respondent No.2, viz., the FA&CAO, who is the Appellate Authority has not decided his representation dated 08.05.2009 (Annexure-A/5) made to him in his capacity as the Appellate Authority.

(vi)  While withdrawing the original charge memo and issuing a fresh charge memo, no reasons have been asigned for either of the two actions and therefore, the two actions are violative of Railway Board instructions dated 1.12.1993 (Annexure-A/12) to disclose the reasons while withdrawing the charge memo.

(vii)  From the Railway Board clarification issued on 28.6.1957 (Annexure-A/14) it is clear that the appointing authority shall be the Disciplinary Authority.  Thus, the applicant being appointed by Respondent No.2, i.e., FA&CAO, to his present post of Sr.SO(A), the Dy.FA&CAO, is not competent to act as the Disciplinary Authority.

(viii)  The Railway Board had issued instructions for finalising the departmental vigilance cases within 365 days and hence, the charge memo is barred by limitation.

7.         In the reply statement, it is claimed that the applicant had admitted before the Inquiry Officer that he is prepared to proceed with regular hearing, however, on the condition that some documents sought for as additional documents be supplied and a reasoned order be passed by the Disciplinary Authority regarding the issue of continuance of DAR proceedings, in view of the question of BIAS raised by the applicant.

8.         His application pointing out bias against the FA&CAO has been dealt with thoroughly by the Railway authorities as can be seen from Annexure-R/2 which is a note initiated by the Disciplinary Authority and the Dy.FA&CAO, which has travelled upto the General Manager, South Western Railway, who has passed a speaking order in this regard and the same has been communicated to the applicant on 14.12.2009 vide Annexure-R/3.  The rejoinder of the applicant dated 10.3.2010 claims that this noting dated 11.11.2009 was initiated after receiving the notice from the Tribunal in the present OA.  However, there is nothing wrong in it.  When the General Manager has thoroughly examined the issue and has also declared that rather than the FA&CAO, who would have been the Appellate Authority in the normal course, for the present matter, the FA&CAO (G) will be the Appellate Authority and the General Manager himself will be the Revisional Authority, if such a necessity arises.  The order at Annexure-R/3 also specifically clarifies that the Dy. FA&CAO who is the Disciplinary Authority has not had any occassion to show any bias.  The inquiry is to be conducted by yet another person, namely, the Inquiry Officer, who also has not done anything to indicate bias and hence, the plea of the applicant to drop the Departmental Enquiry even before the start of the departmental enquiry is not maintainable. 

9.         The learned counsel for the respondents points out that the question of bias is the main crux of this case, which has been dealt with in detail by the Railway authorities as seen from Annexures-R/2 and R/3.  The authorities have clarified that FA&CAO (G), who is an officer independent of FA&CAO, will be Appellate Authority, so as not to involve the FA&CAO against whom the allegation has been made in the RTI application to the Chief Information Commissioner.  Further, it has also been clarified that an appeal to the Revisionary Authority can be taken up only if the applicant chooses that remedy.  The General Manager has quoted the Rule of bias and has observed the following:-
            The rule of Bias is part of natural justice.  The rules of natural justice consist of three principles:
(i)             No one shall be the judge in his own cause;
(ii)           no decision will be given against a party without giving him Opportunity of hearing; and
(iii)          decision must be taken in good faith without any bias.
            This DAR Enquiry has hardly commenced.  At this stage I see no evidence or reason to suspect violation of any of the above principles.  The appointment of the DA will therefore hold good."

10.       As far as the model time schedule for disciplinary cases is concerned, it is only a suggestive time schedule and many times, the authorities are not able to complete the enquiry within the time frame.  However, such a delay does not take away the gravity of the misconduct of the officer under enquiry. To the argument that his appointment as Sr.SO (A) was made by FA&CAO and hence, Dy.FA&CAO cannot be the Disciplinary Authority.  the respondents have clarified in their reply to para 5.1 of the OA, that the applicant has misrepresented that he was appointed by FA&CAO.  The Appointing Authority for Sr. SO(A) is Dy. FA&CAO as per the SOP for Railways.  Annexure-A/1, clearly shows that his promotion to Sr. SO(A) was issued by Dy. CAO(G).  Then the applicant was posted in the books section of the Headquarters under a different Dy.FA&CAO.  Since, all the Dy.FA&CAO are in the same cadre and grade, there is no breach of rules committed when the Dy.FA&CAO, who was his direct Controlling Authority, has issued the charge memo in the capacity of Disciplinary Authority.

11.       We have gone through these and other documents on record, including the rejoinder, additional reply and additional rejoinder and also heard both the learned counsels carefully.

12.       We do not agree with the applicant that Railways have no authority to issue fresh charge memo after withdrawing the first memo.  We find that the new officer Shri G. Kalyanaraman, who came as Disciplinary Authority has specifically mentioned that the withdrawal of the first charge sheet is without prejudice to issue of a fresh charge sheet.  There does not seem to be any violation in the Dy.FA&CAO initiating the disciplinary action.  The charge against the applicant is not that he sought any information under the RTI Act or that he made an application to the Chief Information Commissioner, New Delhi.  The charge is that he made false allegation while applying to the Chief Information Commissioner, New Delhi, and this needs to be examined and established only in a proper inquiry.

13.       In view of this, we see no reason at this stage to interfere with the departmental enquiry.  However, we would like to direct that the said departmental enquiry must be completed within the next four months.  The applicant should cooperate with the same.

14.       The OA is thus dismissed.  No order as to costs.

            (V. AJAY KUMAR)                                             (LEENA MEHENDALE)
                MEMBER (J)                                                            MEMBER (A)


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