S SINGARAVELU Vs. GENERAL MANAGER SOUTHERN RAILWAY MADRAS

JUDGEMENT

(1.) THIS writ petition is filed challenging the order of the second respondent Central Government Industrial Tribunal "cum"Labour Court, Chennai dated 06.06.2001 passed in I.D.No.485 of 2001.

(2.) THE short facts relating to this case are as follows: THE petitioner joined in the services of the first respondent Railway as a Clerk on 14.03.1977. A charge memo was issued against the petitioner on 23.07.1986, stating that the petitioner while functioning as Enquiry-cum-Reservation Clerk in the Reservation Office, Madras Central, Southern Railway, Madras, committed misconduct and failed to maintain absolute integrity and devotion to duty inasmuch as he has misappropriated an amount of Rs.10,070/- on or about 15.12.1984 by 6.15 pm by making false entries in the Railway records as if he has refunded the said amount on demand for cancellation by a bona fide passenger in BPT.No.085444 purported to have been issued on 22.09.1984 for 95 adults for journey on 30.12.1984 in Train No.145 Navjeevan Express from Ahmedabad to Madras. THE said charges were framed as the conduct of the petitioner was in violation of Rule 3(1)(i), 3 (1)(ii) and 3(1) (iii) of the Railway Service (Conduct) Rules, 1966. THE petitioner has given a detailed explanation on 27.06.1987, denying the charges. According to him, on 15.12.1984, when he was working in the Enquiry-cum-Refund Counter, he has made refund of the amount based on the cancellation made by the Cancellation Clerk along with refund application. THE said refund was made to the person, who presented it across the counter, since the ticket was cancelled and the endorsement was made by the Cancellation Clerk. 2 (a). THE first respondent has conducted enquiry, in which 10 witnesses were examined. However the case of the petitioner is that he was not allowed to be represented by a Government servant of his choice, even though the Railway was represented by a CBI Inspector, who, according to the petitioner, is a legally trained person. According to him, the Cancellation Clerk J. Gnaneshwara Rao, examined as P.W.1 has made an endorsement in the cancellation form and the cancellation form was not produced before the enquiry and if it was produced before the enquiry, the petitioner would have proved that he made payment only on the basis of the endorsement made by the Cancellation Clerk. 2 (b). According to the petitioner, in spite of the fact that there is no eye witness and even though in the charge it is stated that the ticket was sent to an handwriting expert and name also given, no such Handwriting Expert was examined and no such report from the Handwriting Expert was furnished to him. THE Enquiry Officer, after conducting enquiry, has sent a report stating that the charges framed against the petitioner stand established and has also suggested deterrent punishment. It was, based on the Enquiry Officer's report, the Disciplinary Authority has imposed the punishment of removal from service on 08.06.1988 and the same was confirmed by the Appellate Authority on 03.07.1989. When the petitioner filed Original Application in O.A.No.156 of 1990 before the Central Administrative Tribunal, the same was allowed on the ground that the Enquiry Officer's report was not furnished to him and therefore by setting aside the punishment, the matter was remanded back by permitting the first respondent Railway to continue the disciplinary proceedings after giving a copy of the enquiry report to the petitioner. It was pursuant to the said remand, the petitioner has given further explanation on 21.11.1991, and according to the petitioner, the Disciplinary Authority, without application of mind, has passed order on 07.12.1992, removing him from service. 2 (c). THE petitioner has preferred an appeal before the appellate authority on 21.12.1992 and the appellate authority, without re-appreciating the material on record, by order dated 09.09.1993, has modified the punishment of removal from service to one of compulsory retirement. It was challenging the said punishment of the appellate authority, the petitioner has raised an industrial dispute in I.D.No.37 of 1998 before the Industrial Tribunal, Chennai, which was subsequently transferred to the second respondent Tribunal and re-numbered as I.D.No.485 of 2001. 2 (d). According to the petitioner, it was not the case of the first respondent Management that in the event of domestic enquiry being held as not fair and proper, the Management would like to lead evidence to prove the charges. THE petitioner has raised the point that the domestic enquiry was not properly conducted for the reason that when the Railway was represented by an outsider, being C.B.I. Inspector, who is a legally trained person, the request of the petitioner to have an outsider for his assistance, viz., a retired Government servant of his choice was denied by quoting Rule 9 (13) (1) (a) and (b) of Chapter Part IV Procedure for Imposing Major Penalties under the Railway Servants (Discipline & Appeal) Rules, 1968. According to the petitioner, the denial of permission to him to be assisted by an outsider, viz., a retired Government servant, especially in the circumstances that the Management is represented through a C.B.I. Inspector, who is a legally trained person, will make the domestic enquiry as a farce. It is also the further case of the petitioner that in the charge there are two names mentioned, one is P.S.S.P. Babu, Investigating Officer and another is D.R. Rohilla, who is an Handwriting Expert. However, the reports of the Babu, who is an Investigating Officer on the criminal side as well as the Handwriting Expert, have not been furnished to him and therefore, the enquiry is vitiated by violation of principles of natural justice. According to the petitioner, the Tribunal has passed an award holding that the domestic enquiry was fair and proper and the charge framed against the petitioner was proved and as against the award of the Labour Court, the writ petition is filed.

(3.) PER contra, Mrs. Aparna Nandakumar, learned counsel appearing for the first respondent has submitted the following points: