ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI) Date : 06-02-2025
In the instant writ petitions petitioners have assailed the order of the Central Administrative Tribunal, Patna dated 21stFebruary 2024 passed in O.A. No. 050/00214 of 2022 and connected matters. Petitioners and others who were
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candidates for recruitment to the post of Assistant Loco Pilot (Diesel). They were subjected to selection procedure and they were selected and appointed. Some of the petitioners were also promoted to the next higher cadre. When things stood thus, official respondents had a certain source of information to the extent that large number of selected and appointed candidates were involved in impersonation in the competitive examination for the post of Assistant Loco Pilot (Diesel). Thereafter, official respondents have taken certain exercise of forwarding the answer paper-book to lab and obtained certain reports which were adverse to the petitioner and others to draw tentative inference that petitioners and others were involved in the impersonation in the competitive examination.
2. Having regard to the fact that petitioners and others were appointed and some of them have been promoted to the next higher cadre. Official respondents have invoked the Railway Servants (Discipline and Appeal) Rules, 1968 (for short 'Rules 1968') and proceeded to remove each of the petitioner and others services on the score that they were involved in impersonation in the competitive examination. Removal orders were subject matter of O.A. 050/00214 of 2022 and connected matters (Lala Thakur vs. Union of India and Others). CAT
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proceeded to affirm the decisions of removal of the petitioner on 21.02.2024, hence the present writ petition.
3. Learned counsel for the petitioners submitted that CAT has committed error in not appreciating the factual aspect of the matter that petitioners and others were appointed about five years back. Respondents have opened certain alleged misconduct stated to have been committed by the petitioners and others during the course of writing competitive examination for the post of Assistant Loco Pilot (Diesel). It is also submitted that some of the petitioners have been promoted, therefore, it is not fair on the part of the Railway Authorities to open the allegations relates back to five years and proceed to punish petitioners. It is also submitted that no witnesses have been cited along with the charge-memo and authors of the document which were relied by the inquiry officer and disciplinary authorities have not been cited as witness and examine them and so also permitting the petitioners to cross examine. These are all legal issues which were required to be adjudicated by the CAT and it has not been considered. On this score, the order of the CAT dated 21.02.2024 is liable to be set aside and petitioners are entitled for reinstatement with arrears of pay and all service benefits.
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4. Per contra, learned Additional Solicitor General, Mr. Dr. K.N. Singh submitted that having regard to the fraud played by the petitioners question of timing is not relevant. It is also submitted that material information have been subjected to lab test and on receipt of such lab test, the Disciplinary Authority proceeded to initiate disciplinary proceedings and concluded the same and there are no infirmity. Further, there are no infirmities in the CAT order dated 21stFebruary 2024.
5. Heard learned counsel for the respective parties.
6. Undisputed facts are that petitioners and others were candidates for recruitment to the post of Assistant Loco Pilot (Diesel) about five years back, they were subjected to write competitive examination and further proceedings. They were selected and appointed and some of them have promoted to the next higher post, namely, Senior Assistant Loco Pilot (Diesel). In this backdrop, it is not proper for the authorities to open stale allegations and punish the petitioners. The aforementioned contentions of the petitioners cannot be appraised in view of the fact that alleged allegations is relating to playing fraud in the selection process. If alleged fraud had been committed in such circumstances question of delay would not be a hurdle.
7. Learned counsel for the petitioners, submitted
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that charge-memo do not consist of list of witnesses. On the other hand, two documents have been relied on to prove the guilt of the petitioners and others. Author of those documents have not been cited as witness and they have not been examined and cross-examined. On this issue, the petitioners have made out a case. The CAT has committed error in not noticing that there is violation of 1968 Rules, insofar as communication of charge- memo to the extent that for the purpose of imposition of major penalty ingredients are that show cause notice must contain charge-memo, statement of imputation, list of documents and list of witnesses. There is non-compliance to the aforementioned provisions to the extent that there is no list of witnesses. In the absence of examining the author of the documents, the documents relied on by the Inquiring Officer is incorrect to the principal that author of the document is to be examined and cross-examined. On this point, the Hon'ble Supreme Court in the in the light of Hon'ble Supreme Court decision in the case of
S.C. Girotra vs. United Commercial Bank (UCO BANK)
reported in 1995 Supp. (3) SCC 212, it is held that author of the document is to be examined and cross-examined. Similarly, the Hon'ble Supreme Court in the case of Roop Singh Negi vs. Punjab National Bank reported in (2009) 2 SCC 570 Hon'ble
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Supreme Court has taken note of that examination and cross- examination of witness of author of certain documents is mandatory. On this count, the petitioners have made out a case so as to interfere with the CAT order dated 21.02.2024 as well as removal orders, accordingly, they are set aside.
8. The matter is remanded to the Disciplinary Authority to commence a fresh enquiry strictly adhering to the Rules 1968, and complete the inquiry proceedings within a period of six months from the date of receipt of this order. Respective petitioners are hereby directed to co-operate in the disciplinary proceedings without seeking unnecessary adjournment before the Inquiring Authority.
9. Disciplinary Authority is hereby directed to take the following decisions; the petitioners are to be reinstated or they have to be placed under suspension and further petitioners are entitled to subsistence allowance from the date of removal till completion of a fresh enquiry this has to be calculated and disbursed at the earliest and further insofar as regulating the intervening period from the date of reinstatement or suspension till passing a fresh order in fresh enquiry is required to be decided in accordance with the relevant provision of law as to whether petitioners are entitled to regularization of those period
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and it all depends on final order to be passed by the Disciplinary Authority in a fresh inquiry, the above principle is required to be taken note of in the light of Hon'ble Supreme Court decision in the case of ECIL vs. B. Karunakaran reported in (1993) 4 SCC 727 and Chairman-cum-Managing Coal India Ltd. vs. Ananta Saha and Ors. reported in (2011) 5 SCC 142. Paragraphs 47 to 50 reads as under:-
"47. It is a settled legal proposition that the result of the fresh enquiry in such a case relates back to the date of termination. The submissions advanced on behalf of the appellants that the result of the enquiry in such a fact situation relates back to the date of imposition of punishment, earlier stands fortified by a large number of judgments of this Court and particularly in R. Thiruvirkolam v. Presiding Officer, Punjab Dairy Development Corpn. Ltd. v. Kala Singh and Graphite India Ltd. v. Durgapur Projects Ltd. 48. In ECIL v. B. Karunakar, this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the enquiry afresh from the stage where it stood before the alleged vulnerability surfaced. However, for the purpose of holding fresh enquiry, the delinquent is to be reinstated and may be put
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under suspension. The question of back wages, etc. is determined by the disciplinary authority in accordance with law after the fresh enquiry is concluded.
49. The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide U.P. SRTC v. Mitthu Singh , Akola Taluka Education Society v. Shivaji and Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale.
50. In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages from the
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date of first termination order till date, cannot be entertained and is hereby rejected. In case the appellants choose to hold a fresh enquiry, they are bound to reinstate the delinquent and, in case, he is put under suspension, he shall be entitled to subsistence allowance till the conclusion of the enquiry. All other entitlements would be determined by the disciplinary authority as explained hereinabove after the conclusion of the enquiry. With these observations, the appeal stands disposed of. No costs."
10. The aforementioned principle has been reiterated in case of State of Uttar Pradesh & Ors. vs. Prabhat Kumar reported in 2022 Live Law SC 736.
11. With the above observations, the present C.W.J.C. No. 7341 of 2024 allowed in part.
12. Pending I.A.(s), if any, stands disposed of.
(P. B. Bajanthri, J) ( Sunil Dutta Mishra, J)
khushbu/-
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