2019 Supreme(Online)(CAT) 988

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f 1 o.a. 587.2015 ■ £W k ^ it i '4 S CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA No. O.A. 587 of 2015 Date of order: ^ ' i • 1d[^

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Present Hon’ble Ms. Bidisha Banerjee, Judicial Member Hon’ble Dr. Nandita Chatterjee, Administrative Member Sri Kartik Chandra Bhattacharyya, Son of Sri Dulal Bhattacharyya, Working as Enquiry-cum-Reservation Clerk, Eastern Railway, Bally, Residing at Narua Panchanantala Bye-Lane, Narua Chandannagar, District - Hooghly, PIN - 712 136.

... Applicant.

Versus

1. Union ofjndia r., thro dgW th^Ge rier|irjMa n age r |

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' "2. Th^SerfliDiy:i|iona}|comff!er.cial Manager Howrah-711,101. '

3. The Diyisi^Ml Corhrnefeial Manager, oM /

Easfern Railway,^

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HoWrah^-l-ITOl i /

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4. Sri^JC^andy^icHfyay, Enquiry 'OfficerTHeadquarter, Eastern Railway, 17, Netaji Subhas Road, Kolkata -700 001.

... Respondents.

For the Applicant Mr. M.S. Banerjee, Counsel Mr. T.K. Biswas, Counsel For the Respondents Mr. S. Banerjee, Counsel ORDER i Per Dr. Nandita Chatterjee, Administrative Member:

The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-

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2 o.a. 587.2015 "(a) For an order quashing and/or setting aside the order of Suspension dated 17.10.2012 as also the entire Disciplinary Proceeding including Memorandum of Charge-sheet dated 15.4.2013, Report and Finding of the Enquiring Officer dated 29.11.2013, Punishment Notice dated 7th July, 2014 and Appellate Order dated 25.11.2014 made Annexures "A-1’’" coll, f l "A-3", "A-IO", nA-13" coll. And "A-15" respectively to this application and further directing the respondents to give the applicant all such service benefits which he would have got had he not been placed under suspension and disciplinary proceeding was not initiated against him on ■ the basis of the Memorandum of Charge-sheet dated 15.4.2013.

(b) For any other or further order or orders as to this Hon’ble Tribunal may deem fit and proper."

2. Heard both Ld. Counsel, examined pleadings and documents on record. Written notes of arguments have been furnished by Ld. Counsel for the applicant citing decisions in T.A. No. 4 of 1985 of Central Administrative Tribunal, Calcutta Bench dated 4.4.1986 as well as in Moni Shankar v. Union of India & anr.

(2008) (3) SCC 484. ^.Xn'Str u i

3. The applicant’s case, in^bVief, is that the applicant was holding the post of \

Enquiry-cum-Reservation^ClerkrsaK \Chfandannagar-^,Railway Station. On 16.10.2012, there was S^Vigils^S^^^^^S^ich nothlig incriminating was found against the app1ic§ht. Vide^orderaaledM 7^1,0.20123issjed by the Divisional \u Commercial ManagerV EastefO^ailwa^ftwv.r^S^however, the applicant was placed under suspensioVand^the^aid^susp^nsiohydrddr was later revoked on

21.12.2012.

On 15.4.2013, the applicant was issued a memorandum of chargesheet under Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968. The applicant represented against such major penalty chargesheet and that a I . preliminary hearing was held on 1.8.2013. Regular hearings were held from

30.9.2013 onwards and that the Enquiry Officer closed the enquiry hastily without giving any opportunity to the applicant'to substantiate his defence as contemplated under Rule 9 (19) and 9 (20) of the Railway Servants (Discipline & Appeal) Rules, 1968 and that the Enquiry Officer did not comply with the mandatory provisions of Rule 9(21) of the Railway Servants (Discipline & Appeal) Rules, 1968 in allowing the applicant to explain any of the circumstances against k-K'

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3 o.a. 587.2015 him. Based on the enquiry report, the disciplinary authority imposed a punishment of reduction of pay by two stages lower for a period, of two years with cumulative effect. The applicant preferred an appeal and, although the appellate authority reduced the period of penalty to one year with cumulative effect, he failed to consider the appeal in terms of provisions as contemplated in Rule 22 of the Railway Servants (Discipline & Appeal) Rules, 1968.

Hence, being aggrieved, the applicant has approached the Tribunal in the instant O.A.

In his pleadings, the applicant has raised the following points for consideration:

(i) That, the applicant was not guilty of violation of any rules and, the allegation^bffcrVisfe&ndft^we're baseless.

hence, V C>

The Enquiry independent witnesses in (ii)

violation ofjFie 9 Railway Servants (Discipline &-Appeal^d^M968^J 7; }

(iii) The applicant was noLperraittedio substaTftiate his defence at the

7 enquiry wh'eretDy/thev,^^ (19), 9 (20) and 9(21) of Railway Servalit^Disciplih'e^Appeal^.dles

1968 were violated.

(iv) The order of the disciplina^autlfority was not based on evidence and exhibited non-application of mind.

(v) The Appellate Authority did not act in terms of provisions of Rule 22 of the Railway Servants (Discipline & Appeal) Rules, 1968.

4. The respondents, on the other hand, argued that, during a preventive check conducted by the Eastern Railway vigilance team at PRS/CGR office at about 9:50 hrs. on 16.10.12, the team took note of the persons who were in queue for purchase of tatkal tickets. At about 10:00 hrs., the vigilance team noticed that the on duty Reservation clerk accepted 05 requisition slips from a person who was at Serial No. 1 in the queue at that time and started generating tickets on the said requisition slips. At about 10.03 hrs, one of the vigilance • /

4 o.a. 587.2015 members went inside the PRS counter and found two live tatkal JCRTs having PNR No. 651-4059241 and 670-7714218 in the possession of on duty ECRC, Sri K.C. Bhattacharyya, ECRC/CGR namely, the applicant. It was noticed that above said Tatkal tickets were generated by the applicant continuously without tearing them separately.

Apart from the above, three non-transacted filled up requisition slips were also found in the possession of the applicant.

Further, the applicant produced Rs. 39,688/- as his govt, cash against his DTC cash of Rs, 39,690/- i.e. Rs. 02/- was found short in his govt. cash.

Also, no claimants of the two live JCRTs detected from the possession of the applicant turned up at PRS/CGR office till the completion of the vigilance check at 11:25 hrs. on IB.IO^OJ^xSb’tRe 'SaTd^two Tatkal JCRTs were taken in t X'

possession of Eastern Railway vi^ilflfc^ cfepajjmeht by -serving a memo to the (i[ W1-- f //

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applicant and he was directed td.sen^;fe^dlrr^rSts, if any,|o GMA/ig./ER office.

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But no claimants approached tfe^iyi^jlilk^ffiGl thereafter.

Photocopies of- relied updliidocuiiits^e're forwCuardIed to the applicant r .:t along with .SF-5 charge sheet’dated 15.4.2046' abdf the applicant concerned ^ ‘ y inspected the original relied upon documents' as,per^Annexure III of the charge-

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memorandum.on 24.5.2013 underTiiS'Cleap'Signature.

As per RSDA Rule 9(2), an Inquiry Officer was appointed vide letter dated

1.7.2013 to conduct the DA enquiry. The concerned Enquiry Officer examined ail the three charges with indepth analysis and, the disciplinary authority and the appellate authority passed their orders in accordance with law and hence according to the respondents, the application deserves to be dismissed as there are no procedural violations in the case of the applicant.

5. The point of determination in this matter is whether there has been any violation of natural and procedural justice in the context of the instant disciplinary proceedings.

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• t 5 o.a. S87.2015 /6- The applicant has raised two major objections, namely That, natural justice as well as procedural justice has been violated /

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inasmuch as that no misconduct was proved against the applicant and -k /

V also that there has been a blatant violation of Rule 9(19), 9(20) and

9(21) as. well as Rule 22 of the Railway Servants (Discipline & Appeal)

Rules, 1968.

The argument of the applicant is that misconduct has not been made out from the charges. As decided in TA. 4.of 1985 (Sankari Pada Mukherjee v. Union of India & ors.), relied upon by the applicant, this Tribunal is not to examine the value of evidence adduced but to only establish as to whether prima facie, any misconduct can be said to have been made out or not.

Herein we rely on the foltevffii}^ decisions:-

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The Law Lexicon of Shri .. .^amanathan ifisrs^Third Edition, page "v

3027), the term ‘misconduct’ implies fuUmentiofOand not a mere error of r"