Saturday, November 3, 2012

OA NO.174 / 2010 on 19 JULY, 2011





Z. Chandrashekar Rao,
S/o Shri Z. Mark Sheshagadi,
aged about 62 years,
retired Head Clerk,
R/at No.16, Chetna Colony,
Phase II, Gadak Road,
Hubli.                                                             ...                                 Applicant

(By Advocate Shri Izzhar Ahmed)


1. The Union of India,
   The General Manager,
   South Western Railway,
   Kesavpura, Hubli.

2. The Deputy Chief Engineer,
   South Western Railway,
   Kesavpura, Hubli.

3. The Financial Advisor &
   Chief Accounts Officer (Construction),
   South Western Railway,
   Cantonment, Bangalore.             ...                                 Respondents

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


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

            This OA is filed on 23-3-2010 under Section 19 of the Administrative Tribunals Act, 1985.  The cause of action has arisen because of a major charge sheet, subsequent superannuation and non-payment of all retiral benefits.
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2.         The main prayer is for setting aside the major charge memo No.H/CN/ P.227/DAR/VIG/DSK/ZC/06, dated 28-09-2006 (Annexure-A/1) as illegal, ultra-vires and barred by limitation.  Consequentially, the applicant also prays  for the retiral benefits.

3.         The brief facts of the case are that the applicant worked as adhoc Divisional Store Keeper at Hubli.  He was issued a major charge sheet on 28.9.2006 under Rule-9 of Railway Servant (Discipline & Appeal) Rules-1968, as at Annexure-A/1.  As per the Article of charges and the details thereof, it is claimed that during a vigilance check conducted on 13-3-2003 in his unit, it was detected that the entries in the ledger for the materials transacted were not made chronologically.  These observations pertain to the period 1995-1999 and from the sample given in the statement of imputation, it is seen that many entries of 1995,1996,1997 and 1998 have been taken to the ledger after the entries of 1999.  It is further stated that all details of materials transacted from the year 2000 were also not posted in the ledger.  There were also defeciencies in the ledger balance as prepared by comparing the actual stock on ground which demonstrated heavy shortage (running in crores).
(a)       The 1st charge was that he had failed to maintain correct custody and account of the stores in the unit of GC/UBL and responsible for the loss caused to the Railways.

(b)       The 2nd charge was that by having failed to ensure proper stacking of the P-Way materials which resulted in an additional expenditure to the Railway and delay in disposal of the materials, he has committed serious
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misconduct and thus, failed to maintain devotion to duty thereby violating Rule 3(1) (ii) of Railway Services (Conduct) Rules, 1966.

4.         After getting the report from Vigilance section, the applicant was asked to submit his explanation and he was also supplied with xerox copies of the documents (16 Nos.) asked by him.  Then, the Disciplinary Authority appointed an Inquiry Officer by order dated 19-5-2008, who conducted first preliminary hearing on 24-5-2008. The applicant submits that the following Rule has been violated:-
"sub-rule (9) (a) (i) of Rules 1968:  On receipt of the written statement of the defence, the disciplinary authority shall consider the same and decide whether the inquiry shall be proceeded with under this rule."  (Here the Disciplinary Authority has decided to proceeded with the inquiry.  Hence no violation of the said rule).

5.         The Inquiry Officer started the enquiry (1st hearing) on 24.05.2008. The applicant superannuated on 31-5-2008.  The subsequent preliminary hearing was conducted on 2-7-2008, 19-7-2008, 15-10-2008, 17-11-2008 and 29-11-2008.  Thereafter, on 29.11.2008 the Inquiry Officer recorded as below:
"19) The main charges on the charged employee are for shortage/ excess brought out in the stock sheet. The charged employee has submitted the reply to the stock-sheet to Dy.CE/CN/1/UBL.  The same is not reconciled by the department.  Unless the reply to the stock-sheet is reconciled the inquiry cannot be proceeded further.

20)         In the circumstances it is decided to advise DY.CE/CN/UI/UBL to nominate an departmental officer to go through the reply to stock sheet and documents to arrive at the correct balances.

(21)       The enquiry was closed for the day with the advise that to proceed with the enquiry after completing the reconciliation.

            The date of next meeting will be advised later."

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In the light of this observation, no decision has been taken by the Disciplinary Authority so far.

6.         However, it is claimed that the entire pensionary benefits of the applicant have been stopped due to the pendency of the departmental enquiry.  The applicant relies on Railway Board's letter dated 24-4-1995  which prescribes that the departmental proceedings under vigilance should be finalized within 470 days from the date of initiation of the charge sheet.

7.         It is also claimed that while the charge sheet was issued by the Disciplinary Authority, he also initiated recovery of Rs.5,000/- pm from the salary of the applicant starting from 1-8-2006 which continued upto 30-4-2008 (pay for May, 2008 not settled in view of his superannuation). The applicant has neither challenged this recovery order nor approached the Tribunal, nor got any relief. 
The Disciplinary Authority has also stopped the settlement of Pension amount to the applicant.

8.         The applicant therefore, prays that the charge memo be treated as barred by Limitation and quashed.

9.         The applicant has relied upon the following judgments in support of his claim:
(i) Decision of the Jabalpur Bench of this Tribunal in OA No.14/2001 (Annexure to the Memo dated 15-3-2011).  The contents of the said order is as under:

"........ passing of order when the matter is sub-judice has been considered taking into account the legal advice in the matter.  It is clarified that once an order has been challenged before a court of law, it should not be interfered with during the
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pendency of the case.  The impugned order(s) has to be taken as it is and nothing can be reduced or added to it.  In such situation, any proposed fresh order should be passed only with the leave of the court."

(ii)  Decision of the Hon'ble Apex Court in the case of N.C. Dhoundial Vs. Union of India & Ors. - (2004) 2 SCC 579 on the point of Limitation. (pag 66):  It states as below:

"Limitation:  Period of limitation, though basically procedure in nature, can also operate as fetters on jurisdiction in certain situations (para-15).
Protection of Human Rights Act, 1993 – S-36 (2):  Period of Limitation of one year prescribed under, for taking up inquiry- inquiry taken up by National Human Rights Commission after long lapse of such period (nearly 4 ½ years after the alleged Act) – Its jurisdictional Bar – there is no provision in the Act to extend the said period of limitation – Held – there is no extra-ordinary circumstances in the instant case justifying interference by the commissioner after expiry of one year."

(iii)         Decision of this Bench in OA No.680/1999 decided on 13-7-2000 in the case of R.S. Ramanath Vs. The Chairman, Railway Board, New Delhi (para 5.04) – again on limitation

(iv)         Decision of this Bench in OA No.985/1999, decided on 07.06.2000 Dr. B.R. Ghosh Vs. The Union of India (para 5.05):   In its order, the Tribunal has held as under:

"....the department has not pursued the inquiry with all required seriousness, the delay cannot be attributed to the applicant"

(v)           Decision of the Apex Court in the case of State of Madhya Pradesh Vs. Dr. Y. Trimback (AIR 1996 SC 765) (para 5.06):  holding that the DA cannot conclude the departmental proceedings after the retirement of the applicant ...."

10.       In the reply statement, the respondents submit and argue that the departmental enquiry has not been allowed to be completed because of the non-cooperation from the applicant.  The documents earlier demanded by him vide letter dated 11-10-2006 viz., Annexure-A/2 were offered to be inspected within 10 days.  But he, having failed to do so, the delay on his side was condoned and xerox copies were handed over to him as per
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Annexure-A/3 vide letter dated 21-12-2006.  Then the applicant further requested for 4 more documents vide Annexure-A/4 for which, he himself was the custodian.  They are as under:-
i)  The Circular which quoted rate analysis;
(ii)  The circular if any stating the responsibility of DSK/Gr.III (value of materials to be controlled/hold, length of jurisdiction, etc.

(iii)         Storing facility to be made available for stacking the released materials at various locations;

(iv)         Sanction of strength i.e., Clerk, Khalasis, Watchmen, etc., for maintenance of office and to take care of these materials and CLI received materials.

11.       As argued by the learned counsel for respondents, these documents do not materially interfere with the explanation to be given by applicant. Thus, the applicant has failed to submit his explanation to the charge memo. Finally, he was warned on 15-5-2008 (Annexure-A/6) that the disciplinary action would proceed ex-parte against him, to which the applicant replied (reply seen at Annexure-A/7) that he has already submitted his explanation dated 29-12-2006 vide Annexure-A/4.  It is justifiably argued by the learned counsel for the respondents that Annexure-A/4 dated 29-12-2006 which is quoted at para 9 supra can hardly be construed as any hindrance to the disciplinary enquiry as required under Rules.  Even though, rather than proceeding to take ex-parte decision, the Disciplinary Authority has taken care to appoint an Inquiry Officer on 19-5-2008 and the inquiry proceedings have been conducted from time to time upto 29-11-2008.  A copy of this proceeding shows that the proceeding was closed for that day by asking the applicant and the Railway department to get a reconciliaion done as regards the stock.  However, even after numerous requests to appropriately hand-
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over the material under his custody and to cooperate in the reconciliation of the stock-sheet, the applicant has not cooperated.  In this connection, numerous letters have been sent to him as can be seen from Annexures-R/2 to R/10 which date between 15-3-2008 to 27-7-2009. 

12.       In the meantime, the applicant was granted provisional Pension based on the last salary drawn by the applicant in his substantive post.  No provisional pension could be granted to him on the basis of his salary in the post of Depot Storekeeper as the same post was held by him only on adhoc basis.  The learned counsel for respondents also pointed out that it wrongly mis-represents at para 5.7 of the OA that no retirement benefits were given to the applicant.  Thus the applicant has not come to the Tribunal with full information.

13.       It is argued that the departmental enquiry could not be started and completed early because of the dilatory tactics and non cooperation of the applicant in finalizing the stock-sheet.  It is further argued that the disciplinary proceedings once commenced during the service will be deemed to be continued after retirement also under Rule 9 of RS (Pension) Rules, 1993.  Accordingly, the applicant is entitled only to the provisional pension as seen from Annexure-R/12.

14.       In para 3 of their reply to the OA, the respondents have stated that the time limit quoted by the applicant is only for a model situation which cannot be applied here, because the charged employee has been adopting dilatory tactics.

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15.       In reply to the decisions relied upon by the applicant in para 5.04 and 5.05 the respondents submit that the ratio laid down by this Tribunbal is applicable where the department has not pursued the inquiry with all required seriousness, and where the delay cannot be attributed to the applicant.  Whereas, in the instant case, the applicant is solely responsible for the delay and hence the decisions relied upon by the applicant is not applicable in this case.

16.       The respondents in para 6 of their reply to the grounds of the applicant have stated that the applicant has not exhausted all the remedy.

17.       It is seen that the applicant has approached the Pension Adalat on 15-12-2009 and a copy of his proforma application is produced in the OA at Annexure-A/20.  However the two enclosures referred therein, i.e., the letters dated 7-7-09 and 5-8-09 are not produced in the OA.  The said proforma application to the Pension Adalat does not mention anything about the pending inquiry.  The learned counsel for respondents has therefore, argued at para II of the reply statement that the applicant has already filed an application before the Pension Adalat on 15th December 2009 vide Annexure-A/20 to the OA.  The grievance listed in the application before the pension Adalat and the relief sought for by the applicant in the present OA are related in as much as grant of pension is concerned, the applicant has prayed this Tribunal to set aside.  Hence, it is submitted that on this ground alone the OA needs to be dismissed.

18.         We have carefully gone through the OA, reply statement, Annexures and the oral pleadings during hearing.

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19.       It is admitted in the OA that the applicant approached the Pension Adalat and the relevant forms which he has filed and submitted with the Pension Adalat are at Annexure-A/20.  However, the enclosures mentioned therein at the last para are not made available to this Tribunal.  Still, we are not inclined to agree with the contention of the learned counsel for the respondents that the full prayer at para 8 cannot be agitated before this Tribunal, proceedings being already agitated before another forum. However, we will restrict ourselves only to the prayer at para 8.(i) of the OA as 8(ii) seems to be taken up before Pension Adalat.

20.         We find that having initiated a charge-sheet, it is the responsibility of the Disciplinary Authority to take it to a logical conclusion.  We agree partly with the learned counsel for Respondents that the applicant did not show any cooperation with the Railway authorities for reconciliation of the stock- sheet.  However, the charge sheet is not for any embezzlement of any specified amount.  It is merely for reasons of negligence to maintain the records properly, not posting the ledger entries in time, not taking proper care of the stores, etc.  The disciplinary proceedings is a summary proceeding in which what the needs to examine is the preponderance of probability and not prove the matter beyond doubt.  We therefore, feel that it is within the capability of the Disciplinary Authority to expedite the matter in an appropriate manner and to come to a conclusion and accordingly pass orders in the disciplinary proceedings.

21.         The Hon'ble Supreme Court in the case of Union of India Vs. Upendra Singh – 1994 (3) SCC 357 has held as under:

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".... now if a Court cannot interfere with the truth or correctness of the charges even in a proceeding of the final order, it is not understandable how it can be done by the Tribunal at the stage of framing of charges"

22.       On the other hand, we cannot agree with the learned counsel for the applicant that the disciplinary proceedings must be quashed.  It is the duty of the Store-keeper to properly maintain the stock, etc.  Taking the plea that he asked for the documents describing the duties of the Store-keeper, but the department did not supply him the same copy, or the plea of non availability of office space, etc. as at Annexure-A/4 as are quoted at para 10 supra are not relevant when the charge is for negligence and the Annexure-2 to the charge sheet giving the details thereof indicate the possibility of a loss running into a few crores rupees.  It is the duty of the applicant also to come forward with whatever stock sheet he can indicate in order to quickly complete the exercise of reconciliation and shortage or excess, if any.  The blame also lies on him for having failed to do so.  It is also confirmed from Annexures produced by the applicant as well as from the reply statement that nearly 16 documents were supplied to him as per his first request which would throw any light on the actual discrepancy in the stock-sheet.  They appear sufficient documents for the applicant to defend his case before the inquiry officer.  The 4 documents which he has referred to again and again for not having received at Annexure-A/4 is not relevant. 
23.         In view of the above, the OA is disposed of with the direction to the respondents and especially Respondent No.2 who is the Disciplinary

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Authority to finalize the disciplinary enquiry and pass appropriate orders within three months from the date of receipt of a copy of this order.  No order as to costs.

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


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