Union Of India vs Daljit Singh
2014 Latest Caselaw 3079 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                       Date of Decision: 14.07.2014

%                           W.P.(C) 5783/2008

      UNION OF INDIA
                                                               ..... Petitioner
                         Through:     Ms. Geetanjali Mohan, Advocate

                         versus

      DALJIT SINGH
                                                             ..... Respondent

                         Through:     Mr. H.P.Chakravorti, Advocate

      CORAM:
      HON'BLE MR. JUSTICE S. RAVINDRA BHAT
      HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (OPEN COURT)

1. The petitioner - Union of India has preferred the present writ petition under Article 226 of the Constitution of India to assail the order dated 29.02.2008 passed by the Central Administrative Tribunal, New Delhi, ('CAT' for short) in M.A. No. 1599/2007 in O.A. No. 263/2007.

2. The facts, in brief, are that while working as SSO (Books), the respondent was proceeded against for a major penalty charge under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968, by charge-sheet dated 23.11.2005. The allegations against the respondent was that while working as SSO in Books Section (Construction Accounts Office), Northern Railway, Kashmere Gate, Delhi, the respondent had issued a cheque dated

05.10.2005 for Rs. 39,59,300/- in favour of one M/s B.M. Construction Pvt. Ltd. with one signature only as against two signatures required on cheques of Rs. 10 lacs and above as per extant instructions. As a result, the said cheque was dishonoured by the Reserve Bank of India, Mumbai and delay in payment to the contractor resulted in completely stopping the work of an important site for 20 days.

3. The petitioner, vide communication dated 27.09.2006 withdrew the aforesaid charge-sheet 'without prejudice' to the petitioner and on the same day, another charge-sheet was issued to the respondent by the petitioner in relation to the same subject matter. The modified article of charge alleged that the respondent, 'was found responsible for issuance of cheque .........Shri Daljit Singh, SSO, should have obtained signatures of two authorised signatories...........before sending them to cheque writer. Due to his slack supervision, the said cheque was dishonoured by Reserve Bank of India...........'. The petitioner states that the earlier charge-sheet was withdrawn 'without prejudice' on account of certain objections being raised by the Vigilance Branch.

4. The respondent preferred O.A. No. 263/2007 to seek quashing of the order dated 27.09.2006 whereby the earlier charge-sheet was withdrawn and a fresh charge-sheet was issued. The CAT vide order dated 08.05.2007 allowed the said original application. The operative portion of this order reads as follows:

"10. In the result, for the foregoing reasons, as mandatory compliance has not been done in the present case of Railway Board's circular ibid, the action of respondents to withdraw the charge-sheet and issue a fresh one is an illegality, which

has not only violated the Rules but also has prejudiced applicant. O.A. is accordingly allowed. Impugned order dated 27.09.2006, withdrawing the charge-sheet and fresh charge-sheet are set aside. Applicant shall also be entitled to all consequential benefits. No costs. (emphasis supplied)

5. We may, at this stage, observe that we have our reservations on the legality and correctness of the order dated 08.05.2007 passed by the Tribunal by the CAT. However, since the said order has not been assailed in these proceedings, we do not wish to comment on the same any further.

6. In view of the aforesaid order of the CAT dated 08.05.2007, the petitioner sought to continue with the disciplinary proceedings on the basis of the earlier issued charge-sheet dated 23.11.2005. At that stage, the respondent preferred M.A. No. 1599/2007 to seek clarification of the order dated 08.05.2007 passed by the CAT - to the effect, that the petitioner was precluded from proceeding with the disciplinary proceedings. By the impugned order dated 29.02.2008, the CAT has provided the clarification by observing,

"we make it clear that no liberty to issue a fresh charge sheet or otherwise to proceed with has been given by the Tribunal. As such, the consequential benefits once allowed, it is deemed to be closure of the matter. M.A. 1599/2007 is dismissed accordingly.

The aforesaid has been vehemently opposed by the counsel for respondents."

Aggrieved by the aforesaid order dated 29.02.2008, the present writ petition has been preferred.

7. We have heard learned counsel for the parties. The submission of learned counsel for the petitioner is that when the CAT held that the action of the petitioner to withdraw the original charge-sheet and issue a fresh one was illegal, and the order dated 27.09.2006 withdrawing the earlier charge- sheet and the fresh charge-sheet were set aside, the result was that the original charge-sheet revived. Ms. Geetanjali Mohan submits that the CAT had not set aside the earlier charge-sheet dated 23.11.2005 as the same was not even the subject matter of the O.A. Therefore, there was no justification to clarify that no liberty was granted to the petitioner to proceed with the inquiry on the basis of the originally issued charge-sheet.

8. On the other hand, the submission of learned counsel for the respondent is that apart from the respondent, another officer of the petitioner, namely, Shri Rajesh Verma, AA/Books was proceeded departmentally in respect of the same incident. He had been found guilty of the charge levelled against him i.e. of issuing the cheque in question with one signature instead of signatures of two signatories. However, in his departmental appeal, the Deputy F.A. & CAO/C/G passed an order on 11.12.2009 thereby returning the finding that no financial loss had occurred to the railway administration and no mala fide intention had been proved. On this basis, the penalty imposed on Shri Rajesh Verma - who was at the relevant time was working as AA/PF, was of down grading of his pay by two stages for a period of two years without cumulative effect. Learned counsel for the respondent submits that the respondent superannuated from services on 30.06.2013. Consequently, under Rule 9 of the Railway Services (Pension) Rules, 1993, it is only in a case where pecuniary loss has

been caused to the railways, that the petitioner would be in a position to pass an order imposing penalty upon the respondent which may affect the payment of terminal/retiral dues. Since, admittedly, no pecuniary loss has been occasioned on account of the alleged conduct of the respondent, no such penalty can be imposed upon the respondent. No other penalty can be imposed, the respondent having superannuated. Learned counsel for the respondent, therefore, submits that no purpose would be served in permitting the petitioner to proceed with the inquiry on the basis of the original charge- sheet dated 23.11.2005 and it would only lead to harassment of the respondent who has been released only the provisional pension and other retiral dues.

9. Having heard learned counsels for the parties, we are of the view that even though there is merit in the petitioner's grievance with regard to the correctness of the order dated 29.02.2008 passed in M.A. No. 1599/2007, we are not inclined to permit the petitioner to proceed with the disciplinary inquiry against the respondent any further, even on the basis of the charge- sheet dated 23.11.2005.

10. The CAT had set aside the order dated 27.09.2006 whereby the first charge-sheet dated 23.11.2005 was withdrawn and the fresh charge-sheet of even date was issued. The CAT had no occasion to consider the aspect of legality, or otherwise, of the first charge-sheet dated 23.11.2005. Therefore, upon the quashing of the order dated 27.09.2006, the only natural and logical consequence that flowed was the revival of the original charge-sheet dated 23.11.2005. There was no occasion for the petitioner to seek, or the CAT to grant, any liberty to the petitioner to proceed with the disciplinary

inquiry in respect of the original charge-sheet dated 23.11.2005.

11. We also find that the petitioner opposed the said application of the respondent to seek clarification of the order dated 08.05.2007 and this fact is also recorded in the impugned order of the CAT. However, apart from merely recording that the application has been vehemently opposed by the petitioner, the CAT has neither recorded the grounds on which the application was opposed by the petitioner, nor dealt with the same in the impugned order. We do not approve of the cavalier manner in which the Tribunal has proceeded to brush aside the objections of the petitioner. The Tribunal should have recorded the objections of the petitioner and dealt with the same in its order. In view of the aforesaid discussion, we set aside the impugned order dated 29.02.2008.

12. At the same time, we find merit in the respondent's submission that no useful purpose would be served in proceeding with the departmental inquiry against the respondent in the facts of the present case, since the respondent has superannuated on 30.06.2013 and, in view of the Rule 9 of the Railway Services (Pension) Rules, 1993, it would not be possible for the petitioner to impose any penalty upon the respondent even if it were be assumed that the charge against the respondent were established in disciplinary proceedings. There is no dispute about the fact that in respect of the same incident, the petitioner has admitted in the order dated 11.12.2009 passed by the Appellate Authority, namely, Deputy FA & CAO/C/G that no financial/pecuniary loss was suffered by the Railway Administration on account of the alleged lapse on the part of, inter alia, of the respondent. Since the respondent has superannuated, no other penalty

can be imposed upon him, except to recover the pecuniary loss, if any, which is not there.

13. We, accordingly, allow the present petition and quash the impugned order dated 29.02.2008 passed in M.A. No.1599/2007. At the same time, we make it clear that the petitioner shall not proceed with the departmental inquiry on the basis of the charge-sheet dated 23.11.2005 issued to the respondent and the said inquiry shall be treated as closed for all purposes and intents. Consequently, the respondent shall be released all the remaining retiral benefits and dues within three months from today.

14. The petition stands disposed of in the aforesaid terms.

VIPIN SANGHI, J

S. RAVINDRA BHAT, J

JULY 14, 2014 sl