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2018 Supreme(Bom) 2200
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Smt. V.K. Tahilramani, M.S. Karnik, JJ.
Union Of India - Appellant
Versus
D. D. Raut (since Deceased) Through Legal Rep. : Smt. - Respondent
Writ Petition No. 20 of 2002 with Notice of Motion No. 389 of 2015
Decided On : 09-02-2018
Mrs. Neeta Masurkar a/w Mr. S.G. Thakar, Advocates, for the Appellants; Mr. G.K. Masand, Advocate, for the Respondents
The central legal point established in the judgment is the requirement to supply the UPSC report in advance to the employee before imposing a penalty, as a failure to do so amounts to a violation of principles of natural justice.
Headnote:
Pension - Disciplinary Proceedings - UPSC Report - Violation of Principles of Natural Justice - [PENSION] - [Indian Railway Establishment Code Volume II Rule 2308, Article 320(3)(c) of the Constitution of India] - The court discussed the violation of principles of natural justice in the context of supplying the UPSC report to the employee before imposing the penalty order. It referenced Indian Railway Establishment Code Volume II Rule 2308 and Article 320(3)(c) of the Constitution of India to analyze the requirement of supplying the UPSC report in advance and concluded that the failure to do so amounted to a violation of principles of natural justice.
Fact of the Case:
The employee drew a cheque from Railway account, was suspended for misappropriation, retired, and later faced disciplinary proceedings regarding his pension. The Tribunal set aside the penalty due to the non-availability of the UPSC advice to the employee prior to passing the penalty. The matter was remitted for redecision after considering the employee's representation.
Finding of the Court:
The court found that the failure to supply the UPSC report in advance to the employee amounted to a violation of principles of natural justice, leading to the setting aside of the penalty and remittal for redecision.
Issues: Violation of principles of natural justice regarding the supply of UPSC report to the employee before imposing the penalty order, and the consideration of disciplinary proceedings initiated beyond the limitation period.
Ratio Decidendi: The failure to supply the UPSC report in advance to the employee amounted to a violation of principles of natural justice, leading to the setting aside of the penalty and remittal for redecision. The court also directed the consideration of the bar of limitation in initiating the disciplinary proceedings on its own merits.
Final Decision: The Writ Petition was dismissed, and the Rule was discharged with no order as to costs. The respondents were given an opportunity to submit a representation, and the time to comply with the directions was extended by a period of four months.
JUDGMENT
M. S. Karnik, J. - The Petitioners by this petition under Article 226 of the Constitution of India challenge the impugned judgment and order dated 25/06/2001 passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai in Original Application No. 1176 of 1996.
2. The facts of the case in brief are;
The Respondent (D. D. Raut), since deceased (employee for short), while working as Assistant Accounts Officer (S&C) in the Central Railway, drew a cheque for Rs. 48,360/ in his own name from Railway account and encashed the same. He was placed under suspension from 24/03/1983 till 31/07/1989 for misappropriation of the Railway fund. The entire amount of Rs. 48,360/ was refunded by the employee to the Petitioners on 31/05/1983. On 31/07/1989 the employee retired from service on superannuation.
3. On 24/08/1993 chargesheet was issued to the employee asking him to show cause as to why pension should not be withheld in full or part thereof. He filed reply on 18/10/1993. The Petitioners referred the case to the UPSC for advice and vide report dated 23/05/1995 UPSC advised withholding the entire monthly pension of the Respondent on permanent basis. The Railway Ministry referred the case back to the UPSC stating that the penalty recommended being harsh requires reconsideration.
The UPSC reiterated its decision. On 24/07/1996, penalty of withholding the entire pension on permanent basis was enforced.
The order dated 24/07/1996 was challenged before the Tribunal.
4. The Tribunal by judgment and order dated 25/06/2001 set aside the penalty on the ground that the advice of the UPSC which was made use of by the Railway Administration for imposing the penalty was not made available to the employee prior to passing the penalty. The matter was remitted to the Hon''ble President for redecision after consideration of the representation of the employee, which was to be filed by him within 45 days from the date of receipt of the copy of the order.
Further directions for consideration of his case for provisional pension and for payment thereof was made.
5. Learned Counsel for the PetitionersUnion of India assailing the Tribunal''s order contended that in view of Rule 2308 of the Indian Railway Establishment Code Volume II show cause notice was issued to the Respondent as to why the authority should not withhold his pension in full or part thereof before any final order is passed. According to the learned Counsel there is no provision to consult UPSC before final orders are passed. Learned Counsel contended that there is no provision in the said Rule for giving a copy of the UPSC''s advice to the employee and invite his representation before passing a final order of penalty. In her submission, the only requirement under the rule was to supply UPSC''s advice along with order of penalty. Learned Counsel would further contend that before imposing the penalty, a show cause notice was also issued to the employee against which he has submitted his representation. In her submission, the deceased Respondent filed a Mercy Petition. He got an opportunity to represent against the UPSC''s advice. In her submission, no prejudice is caused to the employee by not supplying the UPSC''s advice before the order of penalty was passed. In her submission, UPSC is only an advisory body. UPSC tenders advice only when asked for. Learned counsel relied upon a decision of the Apex Court in the case of Union of India Vs. T. V. Patel , 2007 4 SCC 785, to contend that the provisions of Article 320(3) (c) of the Constitution of India are not mandatory and they did not confer any rights on the public servant, so that the absence of consultation or any irregularity in consultation process or furnishing a copy of advice tendered by UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law.
6. Learned Counsel for the Petitioners also relied upon the decision of the Apex Court in the case of Union of India Vs. R. P. Singh , 2014 7
