CENTRAL
ADMINISTRATIVE TRIBUNAL
BANGALORE
BENCH : BANGALORE
ORIGINAL
APPLICATION No. 484/2009
TODAY,
THIS THE ......... DAY OF .................., 2011
HON'BLE
SMT. LEENA MEHENDALE ... MEMBER (A)
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)
Vs.
1. The Union of India,
through
the General Manager,
South
Western Railway,
Hubli.
2. The Financial Advisor & Chief
Accounts
Officer (FA&CAO),
South
Western Railway,
Hubli.
3. The Deputy Financial Advisor & Chief
Accounts
Officer (General),
South
Western Railway,
Hubli.
4. The Deputy Financial Advisor & Chief
Accounts
Officer (Book & Finance),
South
Western Railway,
Hubli.
5. The Chairman,
Rail
Mantralaya,
Railway
Board,
New Delhi
– 110 001. ... Respondents
(By
Advocate Shri N. Amaresh, Standing Counsel for Railways)
O R D E R
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be withdrawn.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)
psp.
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