At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE P.K. MISRA & THE HONOURABLE MR. JUSTICE K. CHANDRU
For the Petitioners: T.S. Sivagnanam, ACGSC. For the Respondents: R2, R. Rengaramanujam, Advocate.
(Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records relating to the order passed by the Tribunal dated 08.11.2004 passed in O.A. No. 160 of 2004 and quash the same.)
K. Chandru, J.
Heard the arguments of Mr. T.S. Sivagnanam, learned Additional Central Government Standing Counsel representing the petitioners and Mr. R. Rengaramanujam, learned counsel for the second respondent and have perused the records.
2. Union of India, represented by the Assistant Commercial Manager (Catering) Headquarters Office, Southern Railway and three other Officers have filed the present writ petition against the order passed by the Central Administrative Tribunal [for short, 'CAT'] dated 08.11.2004 passed in O.A. No. 160 of 2004 wherein and by which the orders passed by the petitioners were set aside by which the punishment of withholding of annual increment imposed on the second respondent was given.
3. The second respondent was working as a bearer in the Canteen Prepared Article Depot (PAD) Chennai under the first petitioner. He was also the Secretary of the Trade Union functioning the Catering Branch. He was charge-sheeted for participating in a gherao on 07.12.2000 by which it was alleged that the workman prevented the Vigilance Inspectors from performing his duties. The stand of the second respondent was on 07.12.2000, he had availed a Special Casual Leave to attend the Union meeting and had gone to the Central Office. Such leave was also sanctioned by the Chief Personnel Officer, Chennai vide his letter dated 04.12.2000. The second respondent thus stated that he was not found in the canteen and he returned only around 5.30 pm.
4. The charge-memo dated 29.11.2001 was issued in terms of rule 11 of the Railway Servants' (Discipline and Appeal) 1968, charging him with the misconduct of preventing the Vigilance Inspectors from carrying on their duties on 07.12.2000 around 15.45 hours. When the second respondent denied the said incident, the first petitioner directed him to submit the proof. The second respondent, by a letter dated 20.02.2002, demanded the petitioners to prove his presence. The first petitioner brushed aside the said request and relied upon the report given by the Vigilance Department and held that he was present in the crowd on 07.12.2000. The second respondent's appeal and revision having been rejected by the petitioners 2 and 3 respectively, he moved the CAT with Original Application No. 160 of 2004.
5. A reply statement was filed on behalf of the third petitioner. In paragraph 4 of the reply, once again, the report of the Vigilance Branch alone was referred as the proof of presence of the second respondent in the canteen on 07.12.2000.
6. Mr. T.S. Sivagnanam, learned counsel for the petitioners contented that it is only a minor penalty and it does not require any elaborate enquiry. He also referred to Rule 11 of the relevant Rules prescribing the procedure for imposing minor penalties. Rule 11 reads as follows:
"11. Procedure for imposing minor penalties:-
(1) Subject to the provisions of sub-clause (iv) of clause (a) of sub-rule (9) of Rule 9 and of sub-rule (4) of Rule 10, no order imposing on a Railway servant any of the penalties specified in clauses (i) to (iv) of Rule 6 shall be made except after -
(a) informing the Railway servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-rules (6) to (25) of Rule 9, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Railway servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;
(d) recording a finding on each imputation of misconduct or misbehaviour; and
(e) consulting the Commission where such consultation is necessary
(2) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case, it is proposed, after considering the representation, if any, made by the Railway servant under clause (a) of that sub-rule to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension or special contribution to Provident Fund payable to the Railway servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rule (6) to (25) of Rule 9, before making any order imposing on the Railway servant any such penalty."
7. Even though the charge-memo was issued by referring to Rule 11, the procedure prescribed therein was not strictly followed by the petitioners. The CAT
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correctly held that there was no enquiry worth its name and the charges have not been made out. It is needless to state that even for imposing a minor penalty, the burden of proving the misconduct lies with the Department and the petitioner Railways cannot rely upon materials which were collected behind the back of the second respondent. We are not persuaded to take a contra view to that of the CAT. 8. The writ petition deserves to be dismissed and accordingly, dismissed. However, there will be no order as to costs. Connected Miscellaneous Petition is closed.