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2006 Supreme(Cal) 793
High Court Of Calcutta
Before Bhaskar Bhattacharya And Kishore Kumar Prasad, JJ.
BISWANATH DEY - Appellant
Versus
UNION OF INDIA - Respondent
W. P. C. T. 885 Of 2004
Decided On : 12/15/2006
D.K.Singh, DEB RANJAN BASU MALLICK, I.K.CHATTERJI
Railway Service Rules do not provide for de novo enquiry after an employee has retired on attaining the age of superannuation.
Headnote:
ADMINISTRATIVE TRIBUNAL - ENQUIRY - RETIRED EMPLOYEE - Fresh Enquiry - Railway Service Rules do not provide for de novo enquiry after an employee has retired on attaining the age of superannuation. In the absence of original records, the employee cannot be forced to accept the alleged copy of the original as genuine. The employee, in such a case, can reasonably argue that in the absence of original records, he cannot be forced to accept the copies sent by the employer as authentic.
Fact of the Case:
The petitioner, a retired employee of the Railways, was served with a charge-sheet alleging dereliction of duty in connection with a train derailment. He submitted his reply and the departmental enquiry was conducted. The enquiry officer found that the petitioner was partly responsible for the accident. The petitioner submitted his comments on the enquiry report and the Disciplinary Authority decided to hold a fresh enquiry. The petitioner challenged the decision of the Disciplinary Authority before the Central Administrative Tribunal.
Finding of the Court:
The Tribunal directed the petitioner to submit all papers relating to the enquiry to the enquiring officer within a fortnight from the date of receipt of the order. It also directed the employer to conclude the enquiry within a specified period. If the petitioner did not submit the papers relating to the enquiry within the said period, the employer would be free to make further enquiry on the basis of the earlier charge-sheet.
Issues: Whether the Railway Authority was entitled to start fresh enquiry after the retirement of the employee simply because the records relating to previous enquiry were lost from the custody of the Railway authority?
Ratio Decidendi: The relevant Rules do not permit fresh enquiry on the basis of fresh material after an employee has retired from service. In the absence of original records, the employee cannot be forced to accept the alleged copy of the original as genuine.
Final Decision: The court set aside the order passed by the Tribunal and quashed the order impugned by which fresh enquiry after the retirement of the petitioner was ordered. The respondents were directed to pay all the retiral benefit and dues to the petitioner within one month from the date of the order.
( 1 ) THIS writ-application is at the instance of an unsuccessful applicant under Section 19 of the Administrative Tribunal Act, 1985 (hereinafter referred to as the Act) and is directed against order dated november 11, 2004, passed by the Central Administrative Tribunal, Kolkata bench, in Original Application No. 1564 of 1999 thereby disposing of the said application by directing the writ-petitioner to supply the copy of the records of the proceedings served on him to the Disciplinary Authority with a further direction upon the Disciplinary Authority to hold further enquiry, if so desired by the applicant, in continuation of the earlier Disciplinary proceeding and to pass final order as expeditiously as possible. It was further ordered that if the writ-petitioner did not supply the records to the employer within a period of 15 days from the receipt of the copy of the said order, the disciplinary Authority would be at liberty to proceed with fresh Disciplinary inquiry pursuant to the memo containing charges dated June 7, 1996 and to conclude the same, preferably, within six months.
( 2 ) BEING dissatisfied, the writ-petitioner has come up with the present application under Article 226/227 of the Constitution of India.
( 3 ) THE facts giving rise to filing of the present writ-application may be summed of thus :
The writ-petitioner was posted as CPW, at Samsi in the year 1996 wherein a passenger train derailed. On June 7, 1996, a charge-sheet was issued against the writ-petitioner making some allegations against him of direliction of duty in connection with the said accident.
( 4 ) THE petitioner submitted his reply to the charge-sheet on June 15, 1996 and ultimately, he retired from service on attaining the age of superannuation on June 30, 1996.
( 5 ) THE departmental enquiry was conducted by the enquiry officer appointed by the employer wherein various witnesses were examined. The petitioner appeared before the enquiry officer and made his submission and subsequently, on April 22, 1997 a show-cause notice was issued to the petitioner accompanying the report of the enquiry officer asking the petitioner to represent within 15 days and to give his comments on the said report of the enquiry officer. It may be mentioned here that the enquiry officer in his report came to the finding that in his opinion, excessive tight gauge and twist variations of cross level beyond permissible limit over turn-out point contributed by excessive difference in buffer height in between the two consecutive coaches was the cause of the accident ; however, the report continued, CPW, Sumsi could not escape the secondary responsibility due to irregular track parameter existing on the road.
( 6 ) UPON perusal of the enquiry report, the writ-petitioner submitted his reply stating therein that no charge against the petitioner had been proved and that the petitioner was not at all responsible for such accident. It was further pointed out that there was no casualty or damages and the said derailment affected only on 200 meters.
( 7 ) THE Disciplinary Authority was totally silent for the next two years in taking final decision after completion of comments and representation on the enquiry report. Ultimately, August 29, 1999, the petitioner was asked to appear along with the Disciplinary/enquiry papers at Katihar.
( 8 ) ON November 22, 1999, the petitioner received a letter dated november 18, 1999 along with an order dated November 15, 1999 issued by the Disciplinary Authority for holding fresh enquiry along with an order of appointment of an enquiry officer. The decision to hold de novo enquiry was taken on November 15, 1999 but the same was not communicated to the petitioner till November 22, 1999. A new enquiry officer was appointed to hold fresh enquiry on the charge-sheet dated April 7, 1996 and such decision to hold de novo enquiry was issued without cancelling the earlier enquiry.
( 9 ) THE writ-petitioner represented to
