Munna Lal Premi vs Union Of India & Ors.

Mr. Ashish Kalia, Member (J)

The applicant in the present OA has challenged the order passed by the Disciplinary Authority (DA) dated 18.05.2012 as well as the orders passed by the Appellate Authority (AA) dated 7.12.2012 and 5.06.2014, with consequential benefits.

The applicant was working as Station Master under the control and supervision of Divisional Railway Manager, Northern Railway, Moradabad. He was charge sheeted vide memorandum dated 19.09.2008. It was alleged that he availed House Building Advance (HBA) amounting to Rs.1,06,000/- for the purpose of purchase of a plot and failed to submit documentary evidence to substantiate the fact that he purchased the said plot.

An Inquiry Officer (IO) was appointed. He gave inquiry report on 20.01.2011, exonerating the applicant from the charge. The DA gave a disagreement note on 12.01.2012 calling upon certain explanations from the applicant. The applicant gave reply to the said disagreement note. Thereafter, the DA imposed the penalty of withholding of one increment for a period of five years in the grade of Rs.9300-34800 plus Grade Pay Rs.4200/- to basic pay Rs.18420/-vide order dated 18.05.2012.

Applicant preferred an appeal against the penalty order to A.D.R.M., Moradabad on 20.07.2012. The AA gave Show Cause Notice dated 16.11.2012 to enhance the punishment imposed by the DA. Applicant submitted his reply to the same. Thereafter, the AA enhanced the punishment reducing his pay by two stages from Rs.18420/- to Rs.17360/- in the time scale for a period of three years without cumulative effect, vide order dated 7.12.2012.

The applicant was given opportunity to file an appeal against the said order to the Chief Operating Manager (G), Northern Railway. Though the applicant preferred an appeal on 6.04.2013 but inadvertently, it was addressed to the Chief Commercial Manager instead of Chief Operating Manager (COM), Northern Railway. Later, the applicant made a request to remit his appeal to the appropriate authority. This was put up to COM who did not consider and rejected it on the plea of being time barred.

The applicant has submitted that he has not committed any misconduct as alleged in the charge sheet. He has not misused the HBA but due to change in circumstances, he could not purchase the same plot, which was beyond the control of the applicant, and he purchased another plot.

In the charge sheet, the applicant was charged for non-submission of registration papers of the immovable property for which HBA was taken, thereby violating the instructions laid down in PS No.11255. It is further submitted that the cheque was to be issued in favour of the seller instead of in the name of the applicant. Another ground raised is that the penalty imposed is very harsh.

Against the charge that he misused the HBA, the applicant stated that, in fact, he has given sufficient evidence in support of his stand that he has purchased another plot from the HBA amount paid to him. It is a case of no evidence and the applicant has not committed any misconduct. He further submitted that the loan was sanctioned after the expiry of the terms of agreement with the owner of the plot which was to be purchased, where under the registry was to be made within one month from the date of submission of the agreement. The amount was sanctioned on 28.07.2003 but by that time the seller of the plot had unfortunately died.

Under these circumstances, the applicant has purchased another plot on 23.10.2003. Thus, he has not misused the funds of the railways, as alleged. However, it escaped the notice of the DA. Even though the AA noted this purchase of another plot, but still modified the punishment. This is despite the fact that the IO exonerated the applicant from the said charge. Apart from these, several technical objections have also been raised.

Notice was issued and the reply has been filed. The respondents submitted that permission was granted to the applicant for purchase of a plot of 140 Sqm at Chandausi, Distt. Moradabad. As per his application dated 26.05.2003, an amount of Rs.1,06,000/- was sanctioned by the competent authority towards HBA for purchase of plot but the applicant failed to submit any documentary proof/registration papers for purchase of this specific immovable property for which advance was taken. He thus violated the instructions circulated vide PS No.11255 in accordance with which, he should have utilized the amount of HBA for purchase of the already notified immovable property within one month and mortgage the same to the administration within three months, which he failed to do. Inquiry was conducted as per the rules and opportunity was given to the applicant to defend himself. Both the authorities have applied their mind while imposing the punishment.

Heard the learned counsel for the parties, at length.

The fact remains that the applicant has availed the HBA amount sanctioned by the railways to the tune of Rs.1,06,000/- but he purchased a property different from the one for which HBA was sanctioned to him. It is also a fact that the aforesaid amount of HBA was released to him on 28.07.2003 after a lapse of about five months whereas, according to the applicant, the registry was to be made within one month from the date of submission of the agreement. Moreover, the said amount was not misused by the applicant but he has purchased another plot, in proof of which he has submitted the registration papers. It, however, escaped the notice of the DA. The AA has noted this as part in his order while modifying punishment.

During the course of arguments, Shri G.D. Bhandari, learned counsel for the applicant has raised an objection that disagreement was not given in a proper manner and the DA as well as the AA have shown their mind prior to receiving reply to the same. The legal position in this regard is that the DA has its own discretion to disagree with the inquiry report by recording reasons but he has to give a specific ground on which it proposes to disagree with the findings of the IO. In this regard, we derive support from the law laid down by the Hon’ble Supreme Court in Yoginath D. Bagde Versus State of Maharashtra and another, (1999) 7 SCC 739 and Punjab National Bank and others Versus Kunj Behari Misra, (1998) 7 SCC 84.

In the instant case, though a show cause notice was issued to the applicant by the DA, that did not contain a specific ground on which it proposed to disagree with the findings of the IO. The DA was required to assign reasons for such disagreement. He cannot rely upon anything which is not a part of record nor can he examine any witness who is not examined by the IO. Reasons for disagreement are conspicuously absent in the orders of the DA and the AA. It also escaped the notice of the DA and the AA that the HBA was sanctioned much after the lapse of the agreement made by the applicant. By that time, the seller of the property unfortunately died. The applicant was left with no alternative but to purchase another plot. He has not misused the fund, as alleged in the charge sheet.

Under these circumstances, this Tribunal is of the view that the punishment orders passed by the DA as well as the AA are not sustainable. These are, therefore, quashed and set aside. The matter is remanded back to the DA with the direction that he shall consider all the relevant facts afresh and pass an appropriate speaking order within a period of two months from the receipt of a certified copy of this order. The OA is disposed of with the above direction. No costs.