Union Of India & Ors vs Shahnoddin A.R.
2012 Latest Caselaw 61 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL APPELLATE SIDE




                                                                                
                         WRIT PETITION NO.4048 OF 2012




                                                        
       Union of India & Ors.                 ... Petitioners

             Vs.




                                                       
       Shahnoddin A.R., alias Shaikh S.A. Rasul .... Respondent


       Mr.T.J. Pandian for the Petitioners
       Mr.G.S. Walia & R.G. Walia, A.G.P., for the Respondent




                                            
                                ig       CORAM: A.M. KHANWILKAR &
                                                SMT.V.K. TAHILRAMANI, JJ.

DATED: 3.10.2012

ORAL JUDGMENT:

1. Heard Counsel for the parties.

2. Rule. Rule returnable forthwith, by consent. Mr.Walia waives

notice on behalf of the Respondent.

3. This Writ Petition under Article 226 of the Constitution of India

takes exception to the decision of the Central Administrative Tribunal,

Bombay Bench, Mumbai dated 12.9.2011 in Original Application No.212

of 2009. By the said decision, the Tribunal allowed the Original

Application filed by the respondent in terms of prayer clauses (a) and

(b). Prayer clauses (a) and (b) of the Original Application read thus:

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"a) This Hon'ble Tribunal will be pleased to call for the records and proceedings which led to the passing of the impugned order

dated 30.3.2009 and after considering its validity, propriety and unconstitutionality quash and set aside the same;

b) This Hon'ble Tribunal will be pleased hold and declare that the inquiry conducted against the applicant is bad in law and he has not been given a reasonable opportunity as ensured and guaranteed under article 311(2) of the Constitution of India and

as such quash and set aside the inquiry proceedings and findings of the Inquiry Officer with all consequential benefits."

4. For the nature of order that we propose to pass, we do not

deem it necessary to elaborate on the factual matrix that has led to the

filing of the present petition. Suffice it to observe that the respondent

was removed from service vide order dated 30.3.2009 passed by the

Assistant Commercial Manager (ACM). Before the Tribunal, primarily,

two issues were raised. The first was about non-compliance of paras

704 and 705 of the IRVM and the second point was that the impugned

order was passed by the ACM and not the Additional Divisional Railway

Manager (ADRM), who is the superior authority and was expected to

pass such order of removal against the respondent. As regards the first

point, the Tribunal in paragraph 18 has noted that the case on hand was

a pre-arranged trap and was not an exception of one when two gazetted

offers are independent witnesses were not available. It is further noted

that there was only one independent witness, who had earlier taken part

in two or three traps. The Tribunal then adverted to the decision in Moni

Shankar vs. Union of India & anr., (2008) 1 SCC (L&S) 819 and

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referred to the dictum in the said decision that with a view to protect

innocent employees from such traps, appropriate safeguards have been

provided in railway manual in paragraphs 704 and 705.

5. The Tribunal has also adverted to paragraph 26 of the reported

decision wherein it has been noted that the High Court committed

serious error in not taking into consideration para 705 of the Manual and

that the approach of the High Court was not entirely correct. On that

finding, the Apex Court proceeded to hold that if the safeguards are

provided to avoid false implication of a railway employee, the procedure

laid down therein could not be given a complete go-bye. We are in

agreement with the argument of the petitioners that the Tribunal has

stopped after having observed as above in paragraphs 18 to 19.1 and

has not made any attempt to consider whether the other factors could

be taken into consideration for the purpose of arriving at a conclusion as

to whether the Department has proved the charges against the

delinquent official. This is what has been predicated by the Apex Court

in para 60 of the abovesaid decision. That aspect has been completely

glossed over by the Tribunal.

6. The Counsel for the Respondent was at pains to rely on the

earlier part of the judgment of the Tribunal to contend that even this

aspect has been duly considered by the Tribunal. We are afraid, it is not

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possible to countenance this submission. The discussion by the Tribunal

and the analysis of the issues has been done by the Tribunal only after

para 11. Till the end of the judgment, from para 11 onwards, we do not

find any discussion with regard to the other aspect spelt out by the Apex

Court. It is only if the Tribunal was to analyse those matters and opine

one way or the other that the Department has or has not proved charges

against delinquent official, it would have been a different matter.

Inasmuch as, violation of Executive instructions per se, as observed by

the Apex Court, would not be sufficient but will have to be considered

together with other factors. This exercise has not been done by the

Tribunal at all.

7. Further, with regard to the second point, we find force in the

submission of the petitioners that if the Tribunal was of the opinion that

the impugned order was passed by the Officer, who was incompetent to

issue order of removal, it ought to have relegated the respondent before

the Competent Authority i.e., the ADRM, who could have passed

appropriate order after considering all aspects of the matter afresh. The

Tribunal ought to have passed that direction instead of setting aside the

impugned order for removal, as a whole. In the event the Tribunal was

to relegate the respondent before the Appropriate Authority i.e., ADRM,

for reconsideration of the entire matter by setting aside the order of

removal, even the question as to whether the evidence collated by the

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enquiry officer was sufficient to proceed against the Respondent could

be gone into and can be examined by the said Authority on its own

merits and the Tribunal would not be required to examine the same at

this stage which would in fact pre-empt the Appropriate Authority to take

that aspect into account on its own merits.

8. In the circumstances, we are inclined to set aside the impugned

decision and relegate the respondent before the Tribunal for

reconsideration of the matter afresh, keeping in mind the observations

made by us hitherto.

9. Accordingly, this Writ Petition succeeds. The impugned order of

the Tribunal is set aside. The Original Application No.212 of 2009 is

restored to the file of the Tribunal for being reconsidered afresh in

accordance with law.

10. Counsel for the respondent submits that during the pendency

of the Original Application, the Tribunal had granted stay to the

operation of the impugned order of removal passed against the

respondent by the Department and that interim arrangement ought to be

continued till the disposal of the Original Application. If such interim

order was passed in favour of the Respondent by the Tribunal, the same

would continue to operate till the disposal of the Original Application or

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to be modified by the Tribunal after hearing both the parties, whichever

is earlier.

11. The restored Original Application be disposed of expeditiously

keeping in mind that the same was filed in the year 2009 challenging the

removal order dated 30.3.2009, which, according to the Department,

was necessitated because of the trap case against the Respondent. All

questions are left open.

               (V.K. TAHILRAMANI, J.)                    (A.M. KHANWILKAR,J.)
                               
        
     






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