Susil Kumar Saha and Suresh Chandra Saha v Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 WP(C).No. 5144 of 2005(S) ------------------------OA.723/2002 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: -----------SUSIL KUMAR SAHA, AGED 49 YEARS, SURESH CHADRA SAHA, EX. CHIEF CATERING INSPECTOR, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, RESIDING AT NO.38, SUBHASH NAGAR, ARIPORT ROAD, TRIVANDRUM. BY ADV. SRI.M.P.KRISHNAN NAIR SMT.RAJESWARI KRISHNAN SRI.S.BIJU (KIZHAKKANELA) RESPONDENTS: ------------- 1. UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY,PARK TOWN P.O., CHENNAI 2. THE ADDITIONAL DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM-14. 3. THE SENIOR DIVISIONAL COMMERCIAL MANAGER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM-14. 4. THE CHIEF COMMERCIAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3. 5. THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, HEADQUARTRERS OFFICE, PARK TOWN P.O., CHENNAI. 6. THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, REP. BY ITS REGISTRAR BY ADV. SRI.SUBAL J.PAUL, SC, RAILWAYS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2008, ALONG WITH WPC NO. 5123 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)No.5144/05** ## **PETITIONER'S EXTS:** - EXT.P1: TRUE COPY OF O.A.NO.723/02 ALONG WITH ITS ANNEXURES A1 TO A14 FILED BY THE PETITIONER. - EXT.P2: TRUE COY OF THE REPLY STATEMENT IN OA.NO.723/02 ALONG WITH ANNEXURES R1 AND R1(2) FILED BY RESPONDENTS 1 TO 5. - EXT.P3: TRUE COY OF THE REJOINDER IN O.ANO.723/02 FILED BY THE PETITIONER. - EXT.P4: TRUE COPY OF THE ORDER DATED 20.7.04 IN O.A.NO.723/02 OF THE CAT, ERNAKULAM BENCH. - EXT.P5: TRUE COPY OF THE R.A.NO.21/04 IN O.A.723/02 OF THE CAT, ERNAKULAM BENCH. - EXT.P6: TRUE COPY OF THE ORDER IN R.A.NO.21/04 IN O.A.NO.723/02 OF THE CAT, ERNAKULAM BENCH. - EXT.P7: TRUE COPY OF THE ORDER IN R.A.NO.20/04 IN O.A.NO.624/02 OF THE CAT, ERNAKULAM BENCH. - EXT.P8: TRUE COPY OF THE AFFIDAVIT SWORN BY K.V.SADASIVAN TRUE COPY **K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------W.P.(C)Nos.5123/05 & 5144/05 ----------------------------------------------------DATED THIS THE 18[th] DAY OF JUNE, 2008** ## **J U D G M E N T** Balakrishnan Nair, J. W.P.(C)No.5144/05: The petitioner challenges Exhibit P4 order dated 20.7.2004 of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.723/02 as also Exhibit P6 order dated 15.9.04 in Review Application No.21/04 in that O.A. In the said O.A., the Writ Petitioner/applicant challenged Annexures A1 and A2 orders produced along with Exhibit P1 Original Application. Annexure A1 is the order dated 30.3.2000 issued by the Disciplinary Authority, reverting him to the post of Catering Supervisor Gr.III for a period of 10 years and Annexure A2 is the order of the Appellate Authority dated 18.9.2000. By Annexure A2 order, the appeal preferred by the petitioner against Annexure A1 was disposed of, directing to revert him to the post of Catering Supervisor Gr.III for a period of six years. In all other respects, the Appellate Authority affirmed Annexure A1. **W.P.(C)Nos.5123/05 & 5144/05** **-2-** 2. The brief facts of the case are the following: The petitioner was appointed as Catering Supervisor Grade III. In due course, he was promoted to the post of Chief Catering Inspector Grade-I. While he was working in that post, in the pantry car of Trivandrum-Gauhati Express, a vigilance check was conducted on 18.11.1997, which brought to light, several instances of unaccounted/private sale of meals, snacks, etc. The petitioner was served with a charge sheet dated 25.6.1998. He denied the allegations against him. So, an Enquiry Officer was appointed to enquire into the charges against the petitioner. The enquiry was completed and the said authority submitted a report, finding him guilty of the charges. The enquiry report was submitted on 27.9.1999. All the allegations against the petitioner were held to be proved by the Enquiry Officer. The Disciplinary Authority before accepting the Enquiry Officer's report, forwarded the same through proper channel to the delinquent to enable to him to submit his explanation. The report was forwarded as per Annexure A7 dated 21.10.1999. The petitioner, submits, he filed his objections to the enquiry report Annexure A8 on 8.11.1999, within the permitted time limit, through proper channel. **W.P.(C)Nos.5123/05 & 5144/05** **-3-** But the Disciplinary Authority passed final orders in the proceedings against him as per Annexure A1 dated 30.3.2000, without adverting to the explanation offered by him. According to the Disciplinary Authority, the petitioner did not submit any explanation. The petitioner appealed against Annexure A1 order by filing Annexure A9 appeal. The petitioner also filed a supplementary appeal memorandum as per Annexure A10. The Original Appeal memorandum as well as the supplementary memorandum were considered by the Appellate Authority and Annexure A2 order was passed, affirming the findings of guilt against him, but varying the punishment. The Disciplinary Authority imposed the punishment of reversion to the post of Catering Supervisor Gr.III for a period of 10 years. The Appellate Authority reduced the said period to six years. From the appellate order, it is clear that the objection filed by the petitioner to the enquiry report as per Annexure A8 was also taken into account by the Appellate Authority. 3. Aggrieved by Annexures A1 and A2, the petitioner preferred the above O.A. before the CAT, challenging them on various grounds. It was contended, inter alia, that he submitted the explanation **W.P.(C)Nos.5123/05 & 5144/05** **-4-** Annexure A8 in time through proper channel, that is, through the authority, who served on him Annexure A7 on behalf of the Disciplinary Authority. In the reply statement, the respondents denied all the contentions of the petitioner. Regarding the non-consideration of Annexure A8, it was pleaded that the petitioner was not vigilant in giving that explanation to the Disciplinary Authority directly. The explanation stated to be filed through proper channel did not reach the Disciplinary Authority before final orders were passed, it was submitted. 4. The petitioner filed a rejoinder. The CAT after hearing both sides, dismissed the O.A. upholding the impugned orders, by Exhibit P4 order. The petitioner filed Exhibit P5 Review Application, seeking review of that order. That Review Application was dismissed by Exhibit P6 order. 5. The aggrieved petitioner challenges Exhibits P4 and P6. He also prays for quashing Annexures A1 and A2, which were produced along with Exhibit P1 Original Application and challenged before the CAT. Several grounds were taken in the Writ Petition against the impugned orders. The learned counsel for the petitioner mainly **W.P.(C)Nos.5123/05 & 5144/05** **-5-** canvassed the point concerning non-consideration of Annexure A8, before accepting the the enquiry report of the Inquiring Authority. The same vitiates the entire disciplinary action, it is submitted. 6. The respondents in this Writ Petition did not file any counter affidavit. But, they sought to sustain the impugned orders of the CAT and the impugned orders of the Disciplinary and Appellate Authorities, relying on their reply statement filed before the CAT, which is part of the pleadings as Exhibit P2. The learned counsel for the respondents reiterated the contentions taken by the respondents before the CAT concerning the non-receipt of Annexure A8 in time by the Disciplinary Authority. 7. The point that arises for decision is whether the nonconsideration of Annexure A8 by the Disciplinary Authority will vitiate the entire proceedings as canvassed by the learned counsel for the Writ Petitioner. After the 42[nd] amendment of the Constitution of India, it is not necessary to give a second opportunity to a delinquent Government servant to represent against the proposed penalty. But when the Inquiring Authority and the Disciplinary Authority are different, the enquiry report of the Inquiring Authority is an adverse **W.P.(C)Nos.5123/05 & 5144/05** **-6-** material used by the Disciplinary Authority against the delinquent. So, the Apex Court held that before relying on that enquiry report, the delinquent should be given an opportunity to represent against the findings therein. The first decision on this point was in _**Union of India v. Mohd. Ramzan Khan (1991 (1)SCC 588)**_ . The said decision was considered and affirmed by a Constitution Bench of the Apex Court in _**Managing Director, ECIL v. B.Karunakar (AIR 1994 SC 1074)**_ . In this case, admittedly, the copy of the enquiry report was served on the petitioner along with Annexure A7 communication, which is available at page 75 of the paper book. The Disciplinary Authority did not serve it directly, but through the Chief Catering Inspector, Base Depot, Trivandrum. The comments, if any, of the petitioner on the report were to be submitted within 15 days of service of Annexure A7. The petitioner submits, he has filed Annexure A8 representation on 8.11.1999 well within the time limit fixed in Annexure A7 through the Catering Inspector, who is his superior. In other words, he has sent it through proper channel. But the Disciplinary Authority did not get it before final orders were passed. Final orders were passed on 30.3.2000. As evident from the appellate order, the said **W.P.(C)Nos.5123/05 & 5144/05** **-7-** representation was part of the files and the appellate order mentions about the consideration of a representation of the petitioner. The representation considered by the Appellate Authority is Annexure A8 dated 8.11.1999. So, it is a fact that the petitioner has submitted the representation and the same was part of the files concerning the disciplinary action of the petitioner. But, it reached the Disciplinary Authority only belatedly. According to the Disciplinary Authority, the petitioner is responsible for the delay, as he could have served Annexure A8 directly on the Disciplinary Authority, the office of which is functioning in the very same building of the Divisional Office. 8. But, we feel that since the communication Annexure A7 along with the enquiry report was served on the petitioner through proper channel, there is nothing wrong in submitting his representation also through proper channel. He never had an inkling that it will not reach the Disciplinary Authority in time. Therefore, he cannot be blamed for not submitting it directly to the Disciplinary Authority. If the Disciplinary Authority alerted him that his explanation has not reached it and the matter is going to be decided treating that he has no explanation, then he could have enquired about the fate of the **W.P.(C)Nos.5123/05 & 5144/05** **-8-** explanation submitted by him and taken steps to see that it reached the Disciplinary Authority. Or else, he could have served a copy of the same directly to the Disciplinary Authority. So, in this case, practically, the petitioner lost his right to represent against the finding in the enquiry report against him for not fault of his. Though, he has represented against the said report, the same has become a futile exercise as the Disciplinary Authority did not advert to it. So, the valuable right of the petitioner has been infringed. The right to file a representation implies in it, the right to have the representation fairly considered by the competent authority. The said legal position is well settled. Article 22 (5) of the Constitution of India guarantees a right to the detenue to make a representation against the grounds of detention. The said sub-article says only about the opportunity to represent. But the Apex Court, in several decisions, has interpreted that provision to mean that the said right implies a right in the detenue to have his representation considered by the Government. Unless the delinquent's representation is considered by the Disciplinary Authority before he decides to accept the findings of the Enquiry Officer, the right to represent is meaningless. In this case, the said right has **W.P.(C)Nos.5123/05 & 5144/05** **-9-** become meaningless for no fault of the petitioner. So, the entire disciplinary proceedings, from the stage of acceptance of the findings of the Enquiry Officer by the Disciplinary Authority, are vitiated. But, the learned counsel for the respondents pointed out that the petitioner's representation has been considered by the Appellate Authority and therefore the defect, if any, at the original stage stands cured. But, a perusal of Annexure A2 would show that the Disciplinary Authority has not dealt with the contentions of the Writ Petitioner in Annexure A8 and entered his findings with reference to the finding of the Inquiring Authority on various charges. The Appellate Authority simply said, he has considered the representation of the petitioner. The same will not satisfy the requirement of law. So, the purported consideration made by the Appellate Authority will not cure the defect in the disciplinary proceedings. 9. In the result, Annexures A1, A2, Exhibits P4 and P6 are quashed. The disciplinary authority can continue the disciplinary proceedings from the stage of accepting the finding of the Enquiry Officer, after taking into account the objections of the petitioner raised in Annexure A8. **-10-** ## **W.P.(C)Nos.5123/05 & 5144/05** The Writ Petition is allowed as above. ## **W.P.(C)No.5123/05.** In this Writ Petition, the petitioner challenges Exhibit P5 order of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.624/02 dated 20.7.2004 and also Exhibit P7 order of the CAT in Review Application No.20/04 in O.A.624/02 dated 6.10.2004. Annexure A1 dated 26.5.2000 produced along with the above O.A. is the order of the Disciplinary Authority, dismissing from service, the applicant, who was working as Catering Supervisor Gr.III. The Appellate Authority by Annexure A2 order dated 7.3.2001 converted the punishment as one of removal from service instead of dismissal from service. The petitioner attempted a Review Petition before the Reviewing Authority. That Review Petition was dismissed by Annexure A3 order dated 4.4.2002. Annexures A1 to A3 were challenged in the O.A., which was dismissed by the CAT by Exhibit P5 order. 2. This Writ Petition can be disposed of on a short point without referring to the details or pleadings of the parties. 3. The petitioner was dismissed from service by the Senior Commercial Manager of the Trivandrum Division. The petitioner **W.P.(C)Nos.5123/05 & 5144/05** **-11-** contends that he being a Chief Catering Inspector Grade-I, only the Chief Personnel Officer/Chief Commercial Manager, Southern Railways at Chennai could have dismissed him from service. But the said contention was met by the respondents by contending that when Annexure A1 order was passed, he was no longer a Chief Catering Inspector, but only a Catering Supervisor Gr.III. So, the Senior Commercial Manager of Trivandrum Division was competent to dismiss him. The said contention was upheld by the CAT. But now, by our judgment in W.P.(C)No.5144/05, we have set aside the orders, reverting the petitioner to the post of Catering Supervisor Gr.III. That means, notionally as on the date of Annexure A1, he continues to be in the higher post of Chief Catering Inspector Gr.I. If that be so, the Senior Commercial Manager of Trivandrum Division is not competent to dismiss the petitioner, even going by the pleadings of the respondents in the O.A. Accordingly, on that short ground, the petitioner is entitled to succeed. Annexures A1, A2 and A3 and Exhibits P5 and P7 are quashed. The petitioner shall be reinstated in service forthwith. He shall be deemed to be under suspension all along. He will be entitled to getsubsistence allowances for the period, **-12-** ## **W.P.(C)Nos.5123/05 & 5144/05** he was kept outside, on the strength of Annexure A1. He shall be entitled to get the arrears of subsistence allowance from the date of dismissal, which shall be paid to him within three months from the date of production of a copy of this judgment. The competent Disciplinary Authority will be free to pass fresh orders in the disciplinary proceedings against the petitioner in conformity with Article 311(1) of the Constitution of India. The Writ Petition is allowed as above. ## **K.BALAKRISHNAN NAIR,JUDGE.** ## **M.C.HARI RANI, JUDGE.** dsn