Union Of India vs Binda Pandit
2010 Latest Caselaw 999 Del

*         IN     THE      HIGH   COURT   OF    DELHI   AT   NEW   DELHI
#28
+                       W.P. (C.) No. 868/2009 & C.M.1897/2009

%                                              Date of Decision: 22.02.2010

      UNION OF INDIA                                      .... PETITIONER
                            Through Ms. Rajdipa Behura, Advocate

                                      Versus

      BINDA PANDIT                                      ....RESPONDENT
                            Through Mr. Manoj, Ms. Aparna Sinha, Advocate


      CORAM:
      HON'BLE MR. JUSTICE ANIL KUMAR
      HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be                   Yes
       allowed to see the judgment?
2.     To be referred to the reporter or not?                     No
3.     Whether the judgment should be reported in                 No
       the Digest?

      MOOL CHAND GARG, J.

*

1. This is a writ petition filed on behalf of Union of India under

Article 226 of the Constitution of India assailing the order passed by the

Administrative Tribunal (for short 'the Tribunal) in O.A. No.420/2008

wherein vide order dated 22.07.2008, the Tribunal allowed the O.A.

with all consequential benefits including promotions as per law. The

petitioners had been directed to carry out the aforesaid exercise within

a period of two months from the date of receipt of a copy of this order.

2. Briefly stating the facts of this case are:

i) The respondent who was working as Timekeeper-cum-Clerk

in Rail Yatri Niwas was charged for being absent from duty

for 1-1/2 hours on 07.08.1997 and having been found in

excess of cash to the tune of Rs.49.50 was proceeded

against for a major penalty and was charge sheeted

accordingly.

ii) However, as certain documents were not made available an

order was passed on 16.04.2007 whereby the major penalty

chargesheet was converted into minor penalty chargesheet

and on representation of the respondent only a minor

penalty was imposed upon him. An appeal preferred

against it was turned down which gave rise to the filing of

the Original Application before the Tribunal.

3. Before the Tribunal the respondent had argued that as per the

Indian Railway Commercial Manual (IRCM) petty excess of cash below

Rs.100/- does not attract minor proceedings and does not entail

punishment. Moreover, it was also stated that the allegations pertain to

the year 1997 but the enquiry was held in 2007 that also after

withdrawing the major penalty as documents which ought to have been

supplied were not supplied. It was also submitted that in those 10

years even the due promotion of the petitioner were not given even

though having qualified the departmental examination. His promotion

was withheld only on account of pendency of the enquiry. It was also

submitted that even converting a chargesheet for major penalty into a

minor penalty chargesheet was an arbitrary exercise of power by the

petitioners as no laid down procedure under the Railway Servants

(Discipline & Appeal) Rules, 1968 has been adopted and without giving

any show cause notice to the respondent about imposition of penalty.

4. In these circumstances, the Tribunal allowed the O.A. by making

following observations:

6. On careful consideration of the rival contentions of the parties, not only delay in initiating the enquiry but also delay in its disposal defeats justice. It prejudices the employee to the extent that it acts as an impediment for his future progression. Delay in holding disciplinary enquiry and its completion has been held to be illegal by the Apex Court in P.V. Mahadevan, Vs. M.D., T.N. Housing Board, 2005 SCC (L&S) 861.

7. In the instant case the allegations pertained to the year 1997 and on a major penalty chargesheet issued when it was found that the original documents were not available, inordinate and unexplained delay has cropped up........

It may be legal that on a major penalty proceedings on the basis of the findings of the enquiry officer if a minor penalty is imposed it does not suffer from any legal infirmity, but once the major penalty chargesheet itself has been converted into a minor penalty proceedings, as a condition precedent, a show cause notice to the delinquent employee to file effective representation is must, which when denied, not only the procedural rules are violated but denial of reasonable opportunity causes prejudice to the delinquent employee, which is in contravention of principles of natural justice.

8. Moreover, what I find that the explanation for absence was that as the applicant was highly diabetic and had to resort to hospital has been proved from the medical documents and moreover a shortage of less than

Rs.50/- cannot entail any punishment, as per the IRCM.

9. In Railways, even in minor penalty proceedings the disciplinary and appellate authorities are bound to record reasons in support of the order. From the perusal of the order passed by the disciplinary authority I do not find any reason, the order being non- speaking cannot be sustained, as reasons are to be recorded by disciplinary authority in support of the order as per the Railway Board's circular of 1985 and also as per the decision of the Apex Court in Narpat Singh Vs. Rajasthan Financial Corporation, 2007 (11) SCALE 458. The appellate order too suffers from the same infirmity. Though reasons have been recorded, yet are contradictory on the one hand when a conscious decision has been taken to convert the major penalty proceedings into minor penalty proceedings, the reason was that documents were not available, yet on the other hand, on the basis of those documents applicant has been held guilty. Moreover, the appellate authority has not considered the contentions raised by the applicant in his appeal, which is obligated, as ruled by the Apex Court in D.F.O. Vs. M. Rao, 2008 (1) SCC (L&S) 788.

10. Insofar as delay in concluding the proceedings is concerned, though I do not find any explanation that even after conversion of the chargesheet into a minor one the same after a gap of 10 years is not reasonable and inordinately delayed, which is unexplained.

5. We have heard the arguments from the side of the counsel for the

petitioner who has assailed the impugned order by submitting that the

very fact that the respondent was found in possession of cash in excess,

this itself shows that he was guilty. It has been submitted that the

department for reasons having not supplied copies of documents which

ought to have been supplied thought it appropriate to convert the major

penalty chargesheet into a minor penalty chargesheet. It has been

submitted that taking into consideration the offence committed by the

respondent, the delay should not have been taken into consideration by

the Tribunal for setting aside the order of punishment and giving

directions to allow the O.A. with all consequential benefits.

6. No explanation has been furnished as to why the Appellate

Authority has ignored the submission made by the respondent. In

this regard we have ourselves looked into the orders passed by the

Appellate Authority are available at page 50 of the paper book and

which goes to show that the appellant authority has not considered the

contentions raised by the respondent in his appeal. There is also no

justification as to why the major penalty chargesheet was converted into

minor chargesheet and as to why the respondent was not heard on the

matter. Merely because the petitioners could not supply the documents

which were material to the respondent and which would have assisted

him in opposing the chargesheet cannot be a justification to convert the

major penalty chargesheet to minor penalty chargesheet and cannot

justify the order passed by the Appellate Authority.

7. We are conscious of the fact that mere delay in holding the

departmental enquiry may not make the prosecution case fatal.

However, we find no justification as to why the relevant documents were

not supplied to the respondent when demanded. Nothing has been

brought to our notice that the delay would not have caused any

prejudice to the respondent. No explanation to the contrary has been

even pleaded either before the Tribunal or before us.

8. Having gone through the record and the order passed by the

Tribunal, we find no ground to interfere therein in exercise of powers

vested in this Court under Article 226 of the Constitution of India and

for that reason we dismiss the writ petition with no orders as to costs.

All the pending applications shall also stand disposed of.

MOOL CHAND GARG, J.

FEBRUARY 22, 2010                              ANIL KUMAR, J.
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