UMESH KUMAR SRIVASTAVA Vs. UNION OF INDIA

JUDGEMENT

(1.) BY way of the instant Original Application filed under Section 19 of Administrative Tribunals Act 1985, the applicant has prayed for following main relief: -

(2.) THE facts of the case are that the applicant was served with major penalty charge sheet dated 14/27.03.2008 (Annexure -1) on the ground that he was found guilty of improper utilization of sanctioned H.B.A to the tune of Rs. 2,68,800/ - and mislead the railway by not utilizing the said amount on lower interest rates for construction of house at scheduled place with malafide intention and submitted false declaration regarding completion of construction work upto plinth level of the house. The applicant submitted his reply to the charge sheet on 19.05.2008 and denied the allegations in the charge sheet (Annexure -9). On receipt of reply from the applicant, no Inquiry Officer was nominated to conduct inquiry in terms of Rule 9 (9)(a)(iv) of the Railway Servants (Discipline & Appeal) Rules 1968 and based upon his reply the Disciplinary Authority vide order dated 26.09.2008 (Annexure A -2) had passed the penalty of withholding of increments temporarily for a period of two years with cumulative effect. As the disciplinary authority passed the order for withholding of increments temporarily which is in the nature of minor penalty thus it cannot be 'with cumulative effect', therefore, the applicant submitted a representation dated 18.12.2008 to remove the anomaly in the order dated 26.09.2008. The disciplinary authority modified the order dated 26.09.2008 vide order dated 22.12.2008 (Annexure A -3) to the extent that 'W.I.P for two years with cumulative effect'. The applicant preferred an appeal on 05.02.2009 to the Senior Divisional Finance Manager, North Central Railway, Allahabad which had been decided by the Divisional Finance Manager / In -charge, North Central Railway, Allahabad vide order dated 28.04.2009 despite the fact that he had no jurisdiction to act as an Appellate Authority because the same authority had passed the order of penalty acting as disciplinary authority. The applicant again submitted representation dated 15.06.2009 to the Senior Divisional Finance Manager, North Central Railway, Allahabad, which has not been decided. Thereafter the applicant submitted representation on 01.08.2011 to the Sr. D.F.M, N.C. Rly. Allahabad when his increment due on July 2011 was not released. Having received no response the applicant submitted another representation dated 21.09.2011 to the F.A & C.A.O, North Central Railway, H.Q Office, Allahabad, which was rejected vide order dated 11.09.2012, which is also under challenge in the instant O.A.

(3.) UPON notice the respondents have filed Counter Affidavit. It is argued that the applicant was found guilty of improper utilization of house building advance Rs. 2,68,800/ - for construction of his house by furnishing false declaration regarding completion of construction work upto plinth area. The applicant was served with charge sheet alongwith imputation of charges, relied upon documents, list of witnesses and vigilance report. Thereafter the applicant filed his reply to the charge sheet in which he had admitted his guilt therefore, there was no necessity to conduct a regular inquiry in the matter and based upon material available on record, the disciplinary authority had passed the punishment order. As there were certain typographical error, the punishment order was clarified vide order dated 22.12.2008 withholding of increment for two years with cumulative effect. It is contended that the rule 9(9)(a)(iv) of the Railway Servants (D&A) Rules 1968 will not apply in the instant case as the charge sheet was issued under rule 9 and under rule 11 of Railway Servants (D&A) Rule 1968. Learned counsel for the respondents argued that instruction of the Railway Board has not been violated rather a rectification order was passed by the same authority and the same has been confirmed in appeal by the In -charge vide order dated 28.04.2009 as the post of Senior D.F.M was vacant.