Devinder Pal Singh vs Union Of India & Ors.

Per: RAMESH SINGH THAKUR, MEMBER (J):

The present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, is directed against impugned punishment order dated 23.10.2013 (Annexure A-12) passed by respondent No. 1 in pursuance of chargesheet dated 09.04.2009 issued by respondent No. 2. The applicant has prayed for reliefs as under:

Facts of the case in brief are as follows. The applicant was appointed as Assistant Permanent Inspector (A.P.W.I.) in the Northern Railway in October 1971 and served in the Ferozepur Division for approximately 37 years. He was compulsorily retired from service with effect from 07.04.2008 vide order dated 10.04.2008 (Annexure A-1). The applicant challenges the penalty order dated 23.10.2013 (Annexure A-12), whereby 20% of his monthly pension was withheld for three years pursuant to disciplinary proceedings concerning alleged irregularities in indents for the purchase of railway material.

The applicant contends that the charge-sheet dated 09.04.2008 (Annexure A-2) was issued on the eve of his retirement, by an incompetent authority, and was based on incorrect facts and manipulated dates. The applicant submits that the relevant indents were prepared on 27.12.2006, whereas the charge-sheet referred to indents dated 27.07.2006, except for three indents bearing Nos. 334, 336 and 339. The applicant maintains that the indents represented genuine demands for material and that several other Inspectors, Controlling Officers and Approving Officers were involved in the same transactions, yet he alone was proceeded against in the manner complained of. The applicant further alleges that respondent No. 2, who issued the charge-sheet, had himself approved the indents in question and was therefore disqualified from acting as the disciplinary authority. The applicant also relies on the closure report filed by the CBI in the criminal case, which, according to him, was accepted by the competent court.

The applicant had earlier challenged the disciplinary proceedings in O.A. No. 349/PB/2008. Vide order dated 27.07.2009 (Annexure A-3), this Tribunal directed that an officer senior to respondent No. 2 should conduct the enquiry and take a final decision within six months. The enquiry report dated 14.07.2010 (Annexure A-4) held charge No. 1 established but charge No. 2 not established. The applicant alleges that the findings were contradictory, relevant documents were not supplied, and adequate opportunity to establish his defence was denied. He submitted his reply to the enquiry report on 06.09.2010 (Annexure A-5).

The applicant further submits that the respondents failed to conclude the proceedings within the time prescribed by this Tribunal, notwithstanding repeated directions. In O.A. No. 29/PB/2012, this Tribunal, vide order dated 29.03.2012 (Annexure A-6), directed release of leave encashment, GPF, pension and half of the gratuity, and required completion of the disciplinary proceedings within three months. The respondents' application for extension of time was dismissed on 11.09.2012, with the rider concerning provisional pension ordered to be deleted (Annexure A-7). Vide order dated 10.10.2012 in M.A. No. 967 of 2012 (Annexure A-8), the applicant was permitted to file a fresh application challenging the charge-sheet. Thereafter, in O.A. No. 1266-PB-2012, this Tribunal, vide order dated 02.05.2013 (Annexure A-9), directed conclusion of the proceedings within one month, failing which they would stand quashed, and required the competent authority to consider the issue raised regarding the treatment of similarly situated officials. The respondents' review application was dismissed on 08.01.2014 (Annexure A-10). However, the High Court, vide order dated 25.09.2017 in CWP No. 16503 of 2014 (Annexure A-11), set aside this Tribunal's orders dated 02.05.2013 and 08.01.2014, while granting the applicant liberty to challenge the penalty order dated 23.10.2013 in accordance with law.

The principal grounds urged against the impugned penalty are that the proceedings were vitiated by undue delay, non-compliance with this Tribunal's directions and discriminatory treatment. The applicant relies on the Railway Board's instructions dated 30.04.1986 regarding the prescribed timeline for finalisation of vigilance cases (Annexure A-13), and contends that similarly situated officials, including N.K. Kohli and Bharat Bhushan Gupta, were awarded minor penalties of censure vide orders dated 29.10.2010 and 15.12.2009, respectively (Annexures A-15 and A-14). The applicant alleges that the respondents failed to consider the treatment accorded to these officials while deciding his case.

The applicant further challenges the disciplinary authority's disagreement with the Enquiry Officer's findings. He contends that the disagreement note was arbitrary and unsupported by the enquiry findings, that his point-wise reply thereto was not duly considered, and that the Union Public Service Commission (UPSC), while advising imposition of the penalty, did not afford him an opportunity to respond to its advice. The applicant asserts that the UPSC advice was supplied only along with the penalty order, thereby depriving him of an effective opportunity to defend himself.

Relying upon State Bank of India v. D.C. Aggarwal, AIR 1993 SC 1997, the applicant submits that reliance on material not supplied to the delinquent employee violates the principles of natural justice. He also contends that no show-cause notice or opportunity of hearing preceded the imposition of the pension cut and that the respondents failed to assess the financial loss attributable to him before imposing the penalty. The applicant accordingly maintains that the charge-sheet, enquiry proceedings, disagreement note and consequential penalty suffer from jurisdictional infirmity, arbitrariness, mala fides and violation of the principles of natural justice.

Per contra, the respondents submit that the impugned order dated 23.10.2013 (Annexure A-12), whereby the President imposed a cut of 20% in the applicant's monthly pension for three years under Rule 9 of the Railway Services (Pension) Rules, 1993, has been passed by the competent authority. The present O.A. is stated to have been filed pursuant to the liberty granted by the Hon'ble Punjab and Haryana High Court vide order dated 25.09.2017 (Annexure A-11), and, therefore, the scope of judicial review is confined to the legality of the punishment order and the procedure leading thereto, and does not extend to reopening the validity of the charge-sheet or the disciplinary proceedings, which have already attained finality.

It is contended by the respondents that the applicant has not established any procedural irregularity, violation of the principles of natural justice, prejudice caused to him, or lack of competence of the President to pass the impugned order. The respondents assert that the applicant's challenge is substantially directed against the charge-sheet and the disciplinary proceedings, which falls beyond the liberty granted by the High Court and the permissible scope of judicial review. The respondents submit that the earlier objection regarding the competence of the disciplinary authority issuing the charge-sheet stood cured pursuant to this Tribunal's order in O.A. No. 349/PB/2008. Thereafter, the applicant participated in the enquiry proceedings without protest. It is further stated that the enquiry report, the applicant's reply thereto and the entire record were duly considered by the President before passing the order dated 23.10.2013 (Annexure A-12).

With regard to the applicant's plea of delay and discrimination, the respondents contend that the Railway Board instructions dated 30.04.1986 (Annexure A-13) are merely administrative guidelines and do not confer any right of automatic exoneration. They further submit that this Tribunal had permitted continuation and conclusion of the disciplinary proceedings, and that the applicant cannot claim exoneration merely on account of delay. It is also denied that the applicant was similarly situated to Sh. N.K. Kohli or Sh. Bharat Bhushan Gupta, as those officials were proceeded against under SF-11 for minor penalty, whereas the applicant was charge-sheeted under SF-5 for major penalty proceedings. The respondents further state that no material has been placed on record regarding the other officers referred to by the applicant.

The respondents deny that the CBI proceedings have any bearing on the present matter, contending that the criminal investigation is extraneous to the disciplinary proceedings. They further assert that the applicant himself has not denied the allegation regarding splitting of indents and that each case has to be examined on its own facts. As regards the UPSC consultation, the respondents submit that Rule 28 of the Railway Servants (Discipline & Appeal) Rules, 1968 specifically requires supply of the UPSC advice along with the final order, which was duly complied with. It is contended that there is no statutory requirement to furnish the advice before the order of punishment or to invite any reply before the UPSC tenders its opinion. It is asserted by the respondents that UPSC considered no fresh evidence, merely concurred with the proposal of the disciplinary authority, and the applicant has neither pleaded nor established any prejudice on account of supply of the advice along with the penalty order.

The respondents further contend that the President exercised powers under Rule 9 of the Railway Services (Pension) Rules, 1993, after consultation with the UPSC, and was competent to withhold pension upon finding the applicant guilty of grave misconduct. The punishment imposed is stated to be commensurate with the misconduct proved and not shockingly disproportionate. It is also submitted that the order passed by the President under the Pension Rules is not appealable and this Tribunal cannot interfere merely on the ground that a lesser punishment could have been imposed.

The respondents dispute the applicant's challenge to the disagreement note, contending that the Enquiry Officer had ignored material evidence, including the opinion of the Government Examiner of Questioned Documents (GEQD), which indicated that the identifying code appearing on the indents and bills had been written by the same person, thereby supporting the finding of collusion. As such, it is contended by the respondents that the disagreement with the Enquiry Officer was justified, the applicant participated throughout the proceedings, no principles of natural justice were violated, and the impugned order dated 23.10.2013 (Annexure A-12) having been passed by the competent authority in accordance with the statutory rules, does not warrant interference.

In rejoinder, the applicant controverts the respondents' objection that the scope of judicial review is confined to the quantum of punishment and the process leading to the impugned order dated 23.10.2013 (Annexure A-12). He submits that this Tribunal is competent to examine the entire decision-making process, including the circumstances leading to the issuance of the charge-sheet dated 09.04.2008 (Annexure A-2), the conduct of the enquiry and the consequential penalty. The applicant asserts that the proceedings were marked by arbitrariness, undue delay and violation of the principles of natural justice, warranting judicial interference.

The applicant disputes the respondents' assertion that no procedural irregularity or prejudice has been established. He reiterates that the prescribed procedure was not followed during the disciplinary proceedings and that the impugned penalty was imposed without duly considering his defence. He maintains that the charge-sheet was issued on 09.04.2008, two days after his compulsory retirement on 07.04.2008, as evidenced by Annexures A-1 and A-2, and that the respondents cannot rely upon an alleged typographical error to avoid the issue. He further contends that the charge-sheet merged with the final penalty order and that his challenge to the latter necessarily permits examination of the underlying proceedings.

On the plea of discriminatory treatment, the applicant disputes the distinction drawn by the respondents between his case and those of Sh. N.K. Kohli and Sh. Bharat Bhushan. He contends that, despite being junior to the said officials, he was subjected to a major penalty of 20% cut in pension, whereas they were awarded minor penalties of censure. He alleges that the competent authority and the UPSC failed to consider this disparity while determining the appropriate punishment. He also maintains that the Railway Board's instructions dated 30.04.1986 (Annexure A-13) concerning the timeline for concluding vigilance cases cannot be disregarded merely because they were issued several decades ago, and that the issue of delay remains open for consideration.

The applicant specifically disputes the respondents' contention that non-supply of the UPSC advice caused no prejudice. He submits that the advice, supplied only along with the impugned penalty order, was based on a one-sided account and substantially reproduced the enquiry report and disagreement note, without demonstrating independent application of mind by the UPSC or the competent authority. He reiterates that the failure to provide an effective opportunity to respond to the advice vitiated the decision-making process and violated the principles of natural justice.

The applicant further denies that the effect of the punishment has ceased merely because his withheld retiral dues have been released. He submits that the 20% reduction in his monthly pension continues to affect his pensionary entitlement and that the punishment is disproportionate to the alleged misconduct, particularly when officials bearing greater responsibility were awarded lesser penalties. He rejects the respondents' allegation that the present proceedings constitute an abuse of process, stating that he has been pursuing his legal remedies for several years.

The applicant reiterates his challenge to the disagreement note and the consequential findings, maintaining that his defence and the relevant material were not duly considered. He disputes the respondents' reliance on the GEQD opinion and their assertion that the evidence established collusion, while reiterating the grounds urged in the Original Application.

We have heard the arguments addressed by learned counsel for both sides and perused the material on record.

At the outset, it is necessary to outline the scope of the present proceedings. The Hon'ble Punjab and Haryana High Court, vide order dated 25.09.2017 (Annexure A-11), set aside this Tribunal's orders dated 02.05.2013 and granted liberty to the applicant to challenge the penalty order dated 23.10.2013 in accordance with law. This Tribunal is not called upon to substitute its own assessment of the evidence for that of the disciplinary authority merely because another view may be possible. Nevertheless, the grant of liberty to challenge the penalty order does not exclude scrutiny of the procedural legality of the decision leading to that order, including compliance with the principles of natural justice, the applicable rules and regulations, and the law governing the same.

The undisputed facts emerging out of the pleadings are that the applicant served in Northern Railway and disciplinary proceedings were initiated against him in relation to alleged irregularities concerning railway material indents. The Enquiry Officer, vide report dated 14.07.2010 (Annexure A-4) held charge No. 1 established and charge No. 2 not established. The applicant submitted his reply to the enquiry report on 06.09.2010 (Annexure A-5). The disciplinary authority disagreed with the findings of the Enquiry Officer, and the matter was considered in consultation with the UPSC. Ultimately, vide order dated 23.10.2013 (Annexure A-12), the President imposed a penalty of withholding 20% of the applicant's monthly pension for a period of three years under Rule 9 of the Railway Services (Pension) Rules, 1993. The UPSC advice (Annexure A-16) was supplied to the applicant along with the impugned order.

The applicant primarily challenges the legality of the decision-making process resulting in the impugned penalty order, whereas the respondents maintain that the procedure prescribed under the applicable rules was duly followed. The applicant has assailed the impugned order on several grounds, including delay in the disciplinary proceedings, alleged discriminatory treatment, the disagreement with the Enquiry Officer's findings and non-supply of the UPSC advice before the imposition of the penalty. While the respondents have contested these grounds and maintained that the President acted in accordance with the applicable rules, the question of compliance with the principles of natural justice in relation to the UPSC advice merits specific consideration.

Admittedly, the UPSC advice was only supplied to the applicant along with the impugned penalty order dated 23.10.2013 (Annexure A-12). The respondents justify this course by relying upon Rule 28 of the Railway Servants (Discipline & Appeal) Rules, 1968, and contend that the rule contemplates furnishing the advice along with the final order. The applicant, on the other hand, submits that the advice formed part of the material considered in reaching the decision against him and that supplying it only after the penalty had been imposed deprived him of an effective opportunity to respond to its contents.

The Hon'ble Supreme Court in Union of India v. S.K. Kapoor, W.P. (C) No. 5341 of 2006, decided on 16.03.2011, has held:

The principle emerging from the said judgment is that where the advice of the UPSC is relied upon in the decision-making process, the affected employee must be afforded an appropriate opportunity to examine that material, consistent with the requirements of natural justice. The issue is not merely whether a copy of the advice was eventually supplied, but whether the employee had an effective opportunity to make a representation against material relied upon before the final decision was taken. Applying the aforesaid principle to the present case, the UPSC advice was admittedly furnished only along with the final penalty order. Consequently, the applicant had no opportunity to make a representation against the advice before the decision imposing the withholding of 20% pension for three years was taken.

Furthermore, perusal of the impugned punishment order dated 23.10.2013 (Annexure A-12) together with the advice of the UPSC dated 04.10.2012 (Annexure A-16) shows that while passing the punishment order dated 23.10.2013, the advice of UPSC dated 04.10.2012 has been relied upon to hold both the charges as proven, and accordingly, the penalty advised by the Commission, i.e. “withholding of twenty percent of the monthly pension otherwise admissible to Shri D.P. Singh (the CO) for a period of three years”, has been imposed upon the applicant. In these circumstances, the subsequent supply of the advice with the final order could not restore the opportunity to make a representation before the decision was taken. The procedure adopted thus suffers from an infirmity warranting interference with the impugned order.

In view of the foregoing discussion, and having regard to the principle laid down by the Hon'ble Supreme Court in Union of India v. S.K. Kapoor (supra), we hold that the impugned order dated 23.10.2013 (Annexure A-12) cannot be sustained in law. Ordinarily, we would deem it appropriate to remit the matter to the competent authority for reconsideration in accordance with law, however, in the present case, the applicant's service came to an end with effect from 07.04.2008, and the impugned punishment order was passed on 23.10.2013. Having regard to the long passage of time and the circumstances of the case, we do not consider it appropriate to remit the matter for a fresh round of disciplinary proceedings.

Accordingly, the Original Application is allowed. The impugned order dated 23.10.2013 (Annexure A-12), whereby 20% of the applicant's monthly pension was withheld for a period of three years, is hereby quashed and set aside. The respondents are directed to release the withheld pension to the applicant along with consequential benefits, if any, within a period of eight weeks from the receipt of a certified copy of this order.

The Original Application stands disposed of in the above terms. Pending Miscellaneous Applications, if any, shall stand disposed of accordingly. No order as to costs.