Union of India and others vs S. Gangayya and another

A. Gopal Reddy, J.—This writ petition is filed challenging the order passed by the Central Administrative Tribunal, Hyderabad Bench in OA No.684 of 1997 dated 10-3-1999.

Respondent No.1 who worked as Senior DPO, South Eastern Railway, Waltair retired on attaining the age of superannuation on 30-6-1996. The second writ petitioner by his proceedings No.DCPO/G/CON/SG/ 96/MJR/759, dated 22-4-1996 issued a Memorandum of charge-memo proposing to hold enquiry against him under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 by enclosing articles of charge-sheet in annexurre I and II. The respondent No.1 challenged the same before the Central Adminstrative Tribunal stating that there is inordinate delay in initiating disciplinary proceedings and after retirement if any disciplinary proceedings are sought to be initiated, the same can be done only with the prior approval and sanction of the President; that the misconduct alleged against him relates back to the year 1988 and issuance of charge memo is against rule 2038 of IRSA Rules, 1968. It was the further case of R1 before the Tribunal that the Railway Board in its letter No.P/6/40/ 193/K, dated 10-4-1996 has clearly stipulated that if the disciplinary proceedings are not initiated before the retirement of the railway employee, it can be done so only with the sanction of the President and shall not be in respect of any event which took place more than four years before such institution. The Railway Board has further clarified the same in its letter, dated 22-9-1995 clearly stating that under Rule 9 of the Rules the date of occurrence of the event should have been found out so that the date on which four years time limit is known and action should have been taken. The petitioner No.2 has issued a charge memo after a lapse of 9 years, hence the charge-memo issued is not in accordance with law and initiation of disciplinary action after long period offends the reasonable opportunity and that he may not be in a position to properly defend the same, therefore, it violates the fundamental rights guaranteed under Article 21 of the Constitution of India and prayed quashing of the charge-memo.

The writ petitioners who are the respondents before the Tribunal filed a counter stating that after obtaining the first advice of the Central Vigilance Commission, New Delhi, they thought it fit to initiate disciplinary proceedings for certain misconduct alleged to have been committed by the respondent No.1 during the period 1988 while he was working as DPO South Eastern Railway, Chakradharpur. The competent authority considered it proper and necessary to place him under suspension before the date of retirement i.e., 30-6-1996. As per letter dated 14-9-1989 the competent authority considered it necessary to place him under suspension from 28-6-1996. Accordingly, proceedings No.DRM/CON/4, dated 28-6-1996 placing the respondent No. 1 under suspension with the approval of the competent authority pending disciplinary proceedings were drawn. When the suspension order was sought to be served on the respondent No.1, he after going through the same, refused to take it in the presence of N. Prabhakar Rao, APO (II), Waltair and A. Rama Rao, Senior Steno to ADRM/Waltair who had gone to the residence of the respondent No.1 to serve the order of suspension on the night of 28-6-1996 around 20-30 hours. The said officers also submitted a report about refusal to receive the suspension order by R1. The competent authority by order dated 16-7-1996 confirmed the suspension order in accordance with Rule 9 of the rules. Challenging the same, the respondent No.1 filed OA No.844/96 before the Central Administrative Tribunal and the Tribunal by order dated 17-7-1996 issued the following direction:

"the applicant, if so advised, may file a detailed representation to R1 explaining the final settlement dues due to him on his retirement on or before 31-7-1996 by RPAD addressed to R1. If such a representation is received the same should be disposed of by R1 within 2 months from the date of receipt of that representation. If the applicant is going to be aggrieved by the reply to be given by R1, he is at liberty to file a fresh OA u/s 19 of the AT Act."

Subsequently by letter dated 16-7-1996 the General Manager, Calcutta stated that the suspension order was deemed to have been effective with effect from 29-6-1996 since the suspension order dated 28-6-1996 was prepared after closure of normal working office hours and the respondent No. 1 was granted provisional pension; that CVP and DCRG permissible to the respondent No.1 have been granted, and the Railway Board examined the entire case, obtained CVC''s concurrence and communicated the same to the Railway Administration and clarified that four years time limit for initiation of disciplinary proceedings as clarified by the Railway Board is not applicable in the case of respondent No.1 as he was placed under suspension with effect from 29-6-1996 by order dated 28-6-1996 as the said order was issued while he was in service, therefore issuance of the impugned charge-memo relates back to the date of suspension and Tribunal cannot interfere at this stage as the enquiry is completed and the application is premature and the same is liable to be dismissed.

The Tribunal after considering the rival submissions and after perusing the Rule 26 of the Rules which reads as under:

"Every order and other process made or issued under these rules, shall be served in person on the Railway servant concerned or communicated to him by registered post",

came to the conclusion that no independent person has affixed the signature to the endoresement made by the Railway administration and even in the reply filed to the application, the two officers who have endorsed have not chosen to file an affidavit to that effect and therefore, the version of the Railway Administration that on 28-6-1996 they have attempted to serve the suspension order in the night around 20-30 hours on R1 cannot be accepted. It also came to the conclusion that the Railway Administration authorities themselves were in dilemma that their act of attempting to serve the order of suspension on the night of 28-6-1996 was in conformity with the rules or not and whether their act amounted to an act of deemed service of the order of suspension on the night of 28-6-1996. But, DRM, Waltair by his letters dated 29-6-1996 and 30-6-1996 directed the first respondent to attend the office immediately to receive some instructions. It is only by letter dated 16-7-1996 while confirming the order of the suspension on the respondent No.1 they interpreted the order of suspension as having come into effect from 29-6-1996 on the premise that the order of suspension dated 28-6-1996 was prepared at the fag end of the day. The Tribunal further opined that if the authorities have failed to serve the same on the night, at least they should have sent the orders of suspension through registered post as per Rule 26 of the rules. The Tribunal also held that since no document is placed before it to show that the work of the respondent No.1 was entrusted to some one else it would only indicate that the respondent organisation was not sure of having served the suspension order on the respondent No.1. The Tribunal further observed that respondent No.1 attended the office on 28-6-1996 and stayed till the end of office hours and left the office at 5 p.m. and the authorities took 18 days to confirm the order of suspension as they have not complied with Rule 26 of the rules and failed to prove or substantiate that R1 was placed under suspension earlier to his retirement. The Tribunal, therefore, quashed the charge-memo dated 22-4-1997 and allowed the OA.

The only ground urged by the learned Counsel appearing for the petitioners before us is that the Central Vigilance Commission found that respondent No.1 committed mis-conduct while he was in service in 1988 as he has regularised several casual labourers without following the procedure contemplated in that regard. The General Manager, Calcutta approved the suspension on 28-6-1996 and sent a fax message to the Divisional Railway Manager, Waltair at 7 p.m. This suspension order was approved around 8 p.m. and the same was sent to R1 around 20-30 hours and after seeing the suspension order, the respondent No.1 refused to receive the same. Counsel further submitted that the moment the suspension order was drawn and when it was intended to be served on the respondent No.1, it is a deemed service and it is immaterial whether the same is sent by the registered post or not as per Rule 26 of the rules.

On the other hand, learned Counsel for the respondent No.1 supported the impugned order passed by the Tribunal by contending that it is unimaginable that office will function after 7-30 p.m. and respondent No.1 attended the office upto 5 ''O'' clock on 28-6-1996 which is the last day and 29-6-1996 and 30-6-1996 are Saturday and Sunday, holidays for the Central Government employees and to cover up the laches, they have created this story and nothing prevented them to serve the suspension order by registered post as contemplated under Rule 26 of the Rules and not complying with the Rule 26 of the Rules, it is not open for them to contend that the suspension order was deemed to have come into effect from 28-6-1996.

In view of the rival contentions, the points that arise for consideration are :

(i) Whether the order of suspension passed against the respondent No.1 takes effect on the date when it is made or when it is actually served and received by respondent No.1?

(ii) Whether the Tribunal is justified in coming to the conclusion that the said suspension order is not served on the respondent No. 1.

Admittedly, the petitioners who were respondents before the Tribunal in their counter stated that they have received a fax communication after closure of the normal office hours on 28-6-1996. Though the petitioners took a plea that two officers namely, A. Rama Rao, PA to DRM, South Eastern Railway, Visakhapatnam and N. Prabhakar Rao working in Divisional Personal Office, Waltair went to the residence of R1 at 20-30 hours on that day itself, they have not filed any affidavits saying that they went to serve the suspension order on the respondent No.1. However, when the Tribunal pointed out that such affidavits are not filed, the petitioners got them filed the same in this writ petition to cover up their laches. Apart from the same, as seen from the note file, it is found that as the DRM, Waltair is the lower authority than the authority competent under Railways Servants (Discipline and Appeal) Rules, 1968 to issue a suspension order on JAO Officers as per Schedule-Ill. In pursuance of SDGM''s advice over telephone, ADRM, Waltair has issued a suspension order to the respondent No.1 on 28-6-1996. At page 13 of the note file, the Senior DGM agreed with the conclusion of IV report at F/173 that there have been blatant irregularities and favouritism to the extent of tampering with the service sheet and held both the officers squarely responsible. When the same was endorsed on 28-6-1996 by the General Manager authorising DRM, Waltari to sign the suspension order and to convey the same, underneath the same, a phone message conveyed to S.K. Behera, ADRM/WAT that the same was approved by the Senior Divisional Manager at 19-20 hours but not by the General Manager. No follow up proceedings were issued authorising ADRM, Waltair to place R1 under suspension nor filed before the Tribunal nor available in the file in the absence of the same, we are of the view, when ADRM, Waltair who placed R1 under suspension is not competent authority nor authorised to place R1 under suspension, the action of the Senior Divisional Manager who confirmed the suspension order on 16-7-1996 will not validate the suspension order which is issued without any jurisdiction or authority. By confirming the suspension order, an employee who is retired cannot be restored to duty and it wit! not have the effect of continuing the employee in service after retirement. Rule 26 of the Rules clearly postulates that delivery of order and other process made or issued under the rules shall be served in proof on the Railway servant concerned by registered post. Once the respondent No.1 refused to receive his suspension order on the night of 28-6-1989, the authorities could have sent the same either through telegram or by registered post as contemplated under the rules to the address of the respondent No.1. No such efforts were made by the writ petitioners to serve the suspension order nor despatch register was produced to show that order was despatched on 28-6-1996 by giving despatch number etc. It appears, only to overcome the contingency that the respondent No.1 will retire on attaining the age of superannuation i.e., 30-6-1996 the authorities came forward with a plea that A. Rama Rao and Prabhakar Rao, went to R1''s house to serve the order on 28-6-1996. It is improbable that after office hours, those two employees were present in the office, ADRM, Waltair has received telephone message and drawn up the suspension order, and the officers who went to serve the suspension order on R1 made an endorsement that R1 refused and they have prepared a note file. Citing of N. Prabhakar Rao and Rama Rao as witnesses, in ourview, is only an after thought and seems to be invented for the purpose of the case. The Tribunal after appreciation of the entire evidence came to the conclusion that suspension order was ever despatched nor served on R1.

It is well settled that the writ Court while issuing a writ of certiorari exercises supervisory and not appellate jurisdiction. High Court cannot interfere with a finding of fact unless the finding arrived at by the Tribunal is patently erroneous and is a result of non-consideration of the evidence which was produced or which is based on evidence which is legally inadmissible. The judicial review of this Court under Article 226 of the Constitution of India is very limited in such matters as held by the Apex Court in Syed Yakoob Vs. K.S. Radhakrishnan and Others, .

Having regard to the above discussion and in the light of the law laid down by the Supreme Court, we do not find any illegality or perversity in the order passed by the Tribunal while allowing the OA filed by the respondent No.1 warranting interference by us.

The writ petition is accordingly dismissed. No costs.