Partly allowed

Union of India, through General Manager, Central Railway and Ors. v. Mr. Shahnoddin a. R. Alias Shaikh S. a. Rasul

Bombay HC3 Oct 2012WP/4048/2012

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a Central Administrative Tribunal order that set aside a section officer's removal of a railway employee. The Court found the Tribunal failed to consider factors regarding the sufficiency of charges and erred by not relegating the matter to the appropriate authority for reconsideration instead of setting aside the order completely. The impugned de

What did the court decide?

Impugned order of the Tribunal set aside; Original Application No.212 of 2009 restored for reconsideration; stay on removal order continued pending disposal.

Union of India, through General Manager… — Pension and Retirement Benefits | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE

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WRIT PETITION NO.4048 OF 2012

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Union of India & Ors.

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... Petitioners

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Vs.

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Shahnoddin A.R., alias Shaikh S.A. Rasul .... Respondent

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Mr.T.J. Pandian for the Petitioners Mr.G.S. Walia & R.G. Walia, A.G.P., for the Respondent

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CORAM: A.M. KHANWILKAR &

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SMT.V.K. TAHILRAMANI, JJ.

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DATED: 3.10.2012

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ORAL JUDGMENT:

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Heard Counsel for the parties.

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Rule. Rule returnable forthwith, by consent. Mr.Walia waives notice on behalf of the Respondent.

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This Writ Petition under Article 226 of the Constitution of India

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takes exception to the decision of the Central Administrative Tribunal, Bombay Bench, Mumbai dated 12.9.2011 in Original Application No.212 of 2009. By the said decision, the Tribunal allowed the Original Application filed by the respondent in terms of prayer clauses (a) and (b). Prayer clauses (a) and (b) of the Original Application read thus:

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“a) This Hon'ble Tribunal will be pleased to call for the records and proceedings which led to the passing of the impugned order dated 30.3.2009 and after considering its validity, propriety and unconstitutionality quash and set aside the same;

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b) This Hon'ble Tribunal will be pleased hold and declare that the inquiry conducted against the applicant is bad in law and he has not been given a reasonable opportunity as ensured and guaranteed under article 311(2) of the Constitution of India and as such quash and set aside the inquiry proceedings and findings of the Inquiry Officer with all consequential benefits.”

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For the nature of order that we propose to pass, we do not deem it necessary to elaborate on the factual matrix that has led to the filing of the present petition. Suffice it to observe that the respondent was removed from service vide order dated 30.3.2009 passed by the Assistant Commercial Manager (ACM). Before the Tribunal, primarily, two issues were raised. The first was about non-compliance of paras 704 and 705 of the IRVM and the second point was that the impugned order was passed by the ACM and not the Additional Divisional Railway Manager (ADRM), who is the superior authority and was expected to pass such order of removal against the respondent. As regards the first point, the Tribunal in paragraph 18 has noted that the case on hand was a pre-arranged trap and was not an exception of one when two gazetted offers are independent witnesses were not available. It is further noted that there was only one independent witness, who had earlier taken part in two or three traps. The Tribunal then adverted to the decision in Moni Shankar vs. Union of India & anr. , (2008) 1 SCC (L&S) 819 and

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referred to the dictum in the said decision that with a view to protect innocent employees from such traps, appropriate safeguards have been provided in railway manual in paragraphs 704 and 705.

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The Tribunal has also adverted to paragraph 26 of the reported decision wherein it has been noted that the High Court committed serious error in not taking into consideration para 705 of the Manual and that the approach of the High Court was not entirely correct. On that finding, the Apex Court proceeded to hold that if the safeguards are provided to avoid false implication of a railway employee, the procedure laid down therein could not be given a complete go-bye. We are in agreement with the argument of the petitioners that the Tribunal has stopped after having observed as above in paragraphs 18 to 19.1 and has not made any attempt to consider whether the other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the Department has proved the charges against the delinquent official. This is what has been predicated by the Apex Court in para 60 of the abovesaid decision. That aspect has been completely glossed over by the Tribunal.

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The Counsel for the Respondent was at pains to rely on the earlier part of the judgment of the Tribunal to contend that even this aspect has been duly considered by the Tribunal. We are afraid, it is not

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possible to countenance this submission. The discussion by the Tribunal and the analysis of the issues has been done by the Tribunal only after para 11. Till the end of the judgment, from para 11 onwards, we do not find any discussion with regard to the other aspect spelt out by the Apex Court. It is only if the Tribunal was to analyse those matters and opine one way or the other that the Department has or has not proved charges against delinquent official, it would have been a different matter. Inasmuch as, violation of Executive instructions per se, as observed by the Apex Court, would not be sufficient but will have to be considered together with other factors. This exercise has not been done by the Tribunal at all.

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Further, with regard to the second point, we find force in the submission of the petitioners that if the Tribunal was of the opinion that the impugned order was passed by the Officer, who was incompetent to issue order of removal, it ought to have relegated the respondent before the Competent Authority i.e., the ADRM, who could have passed appropriate order after considering all aspects of the matter afresh. The Tribunal ought to have passed that direction instead of setting aside the impugned order for removal, as a whole. In the event the Tribunal was to relegate the respondent before the Appropriate Authority i.e., ADRM, for reconsideration of the entire matter by setting aside the order of removal, even the question as to whether the evidence collated by the

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enquiry officer was sufficient to proceed against the Respondent could be gone into and can be examined by the said Authority on its own merits and the Tribunal would not be required to examine the same at this stage which would in fact pre-empt the Appropriate Authority to take that aspect into account on its own merits.

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In the circumstances, we are inclined to set aside the impugned decision and relegate the respondent before the Tribunal for reconsideration of the matter afresh, keeping in mind the observations made by us hitherto.

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Accordingly, this Writ Petition succeeds. The impugned order of the Tribunal is set aside. The Original Application No.212 of 2009 is restored to the file of the Tribunal for being reconsidered afresh in accordance with law.

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Counsel for the respondent submits that during the pendency of the Original Application, the Tribunal had granted stay to the operation of the impugned order of removal passed against the respondent by the Department and that interim arrangement ought to be continued till the disposal of the Original Application. If such interim order was passed in favour of the Respondent by the Tribunal, the same would continue to operate till the disposal of the Original Application or

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to be modified by the Tribunal after hearing both the parties, whichever is earlier.

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The restored Original Application be disposed of expeditiously keeping in mind that the same was filed in the year 2009 challenging the removal order dated 30.3.2009, which, according to the Department, was necessitated because of the trap case against the Respondent. All questions are left open.

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(V.K. TAHILRAMANI, J.)

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(A.M. KHANWILKAR,J.)

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Union of India, through General Manager, Central Railway and Ors. v. Mr. Shahnoddin a. R. Alias Shaikh S. a. Rasul

Case brief

What is this about?

What did the court decide?

Union of India, through General Manager, Central Railway and Ors. v. Mr. Shahnoddin a. R. Alias Shaikh S. a. Rasul

Case brief

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What did the court decide?

What the court decided

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