Allowed

Babita Massey v. The Union Of India and Ors.

Patna HC18 Apr 2014CWJC/5122/2014

Case brief

AI extract

What is this about?

This writ petition challenged the dismissal of a petitioner from compassionate appointment on grounds of fake representation. The High Court set aside the dismissal order, the enquiry report, and the Appellate Tribunal order, holding the dismissing authority subordinate to the appointing authority and the enquiry venue unreasonable, remanding the case for fresh enquiry.

What did the court decide?

Enquiry report, order of termination, and Tribunal order set aside; liberty to respondents to proceed with fresh enquiry from the stage of written statement within three months.

Babita Massey Vs The Union Of India and Ors. — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.5122 of 2014

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Babita Massey Wife Of Sri Anil D. Jai Presently Residing In Quarter No. 652 B.O.T. Para Near Railway Hospital, Railway Colony, N.F. Railway, Katihar

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Petitioner

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Versus

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1. The Union Of India Through G.M., N.F. Railway, Maligawn, District- Kamroop, Assam

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The General Manager, N.F. Railway, Maligaon, DistrictKamrup, Assam

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The Divisional Railway, N.F. Railway, Katihar

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The Additional D.R.M., N.F. Railway, Katihar

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The Sr. Divisional Medical Officer, N.F. Railway, Katihar 6. The Chief Medical Superintendent, N.F. Railway, Katihar 7. The Sr. Divisional Personnel Officer, N.F. Railway, Katihar

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Dr. B.B.Lal Sr. D.M.O. (I.C.) Kashganj, N.F. Railway Izzatnagar

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Sr. S.C. Haldar 13 B 93 Salt Lake Sector-1, Kolkata700064

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Dr. S.M. Ali Retd. Sr. D.M.O., N.F. Railway, Katihar

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.... .... Respondents

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Appearance :

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For the Petitioner : Mr. Nagendra Upadhyay, Advocate For the Respondents : Mr. Mahesh Prasad, Advocate

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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI AND

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HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH

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CAV ORDER (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH)

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5 18-04-2014. Heard Mr. Nagendra Upadhyay, learned Counsel for

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the petitioner, and Mr. Mahesh Prasad, learned Counsel appearing on behalf of the Railways.

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2. The petitioner has challenged the order, dated

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13.02.2012, passed by the learned Central Administrative

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Tribunal (hereinafter referred to as ‘the learned Tribunal’), in Original Application (herein, O.A.) No. 291 of 2012, preferred against order of dismissal passed, on 22.12.2010, in the departmental proceeding drawn against the petitioner by the disciplinary authority. The petitioner has also challenged the enquiry report, dated 20.03.2008, the order, dated 17.06.2011, of the appellate authority and the order, dated 02.03.2012, of the revisional authority affirming the order of dismissal.

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3 . The petitioner has assailed, amongst others, the departmental proceeding and the order of termination on the following grounds:-

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(a) Order of dismissal was passed by the authority, who was not competent for passing such order.

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(b) She was deprived of sufficient opportunity to defend her case in the proceeding.

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(c) Order of termination was passed on the basis of enquiry report which was not accepted by the authorities, rather the then Senior Divisional Medical Officer had made recommendation for afresh enquiry.

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(d) The enquiry officer did not consider the defence produced by the petitioner, rather relied upon the statements of the outsiders in the enquiry report.”

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4 . Before we deal with the issues, it is necessary to notice the facts of the case, which may be set out, in brief, as follows:

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(i) The petitioner got compassionate appointment

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as daughter of Late Chote Lal @ B.B.Massey, who died in harness in the year 1985, while working as a Jamadar, as per order, dated 30.08.1994, issued by the Senior Divisional Personnel Officer, N. F. Railway, Katihar. The petitioner accordingly joined Railway service, as a Junior Clerk, on 12.09.1994. The authorities, later on, claimed to have noticed that the petitioner had secured compassionate appointment on false submission that she was the daughter of Late Chote Lal, though, in fact, she was the maternal grand daughter of Late Chote Lal. More so, when late Chote Lal and B. B. Massey (purported father of the petitioner) are, according to the authorities concerned, two different persons. The charge memo, dated 30.04.2004, was, therefore, served on the petitioner leading to the passing of the impugned order of dismissal.

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(ii) Chote Lal @ B. B. Massey aforesaid, as already indicated above, had been serving, in the Railways, as a Jamadar, when he died, in harness , in the year 1985. At that time, according to the petitioner, the petitioner was only 14 years old and, as such, her mother, namely, Kamalabati Lal, requested the General Manager, N. F. Railway, to appoint her daughter (i.e. the petitioner herein), on compassionate ground, on attaining the eligible age. The petitioner joined Railway service, as a Junior clerk, on 12.09.1995, as mentioned above.

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(iii) Almost after ten years of service, i.e. on

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30.04.2004, the petitioner received charge memo from the Senior Divisional Medical Officer in whose office the petitioner had been working. In the charge memo, it was alleged that the petitioner was not the daughter of the said deceased railway employee, namely, Chote Lal, and, therefore, not eligible for appointment on compassionate ground. The first Enquiry Officer, appointed in the matter, died after holding one sitting at Calcutta. The second Enquiry Officer declined to continue with the enquiry proceeding, which led to the appointment of the third Enquiry Officer, namely, Shri S. C. Halder. The petitioner filed a petition before the Enquiry Officer, Shri S. C. Halder, making a request to hold the departmental proceeding, at Katihar, in place of Calcutta, Maligaon and/or New Jalpaiguri, as she was having a small female baby on her lap and her material resources, including witnesses, were based at Katihar. The Enquiry Officer, disagreeing with the petitioner, fixed the venue of the enquiry at Calcutta, Maligaon, and New Jalpaiguri.

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(iv) The petitioner, being unable to attend the enquiry at far off places, dispatched her written statement at the communicated address. The petitioner, in her defence, annexed statements of some Senior doctors of the Railway Hospital, who had attended the sixth day function of her birth. The Enquiry Officer did not take into account these statements on the ground that they were made by

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outsiders. However, he relied upon the statement of three outsiders to hold that petitioner was the maternal grand daughter of the said deceased employee. The petitioner had also forwarded a copy of the Second Class Free Pass, issued on 01.06.1985, wherein she had been shown as 14 years old unmarried daughter of Late Chotte Lal @ B. B. Massey, which, too, was not considered by the Enquiry Officer on the ground that the same was not legible.

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(v) The Enquiry Officer submitted his report, wherein he held the petitioner guilty of the charge of having secured the appointment on misrepresentation.

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(vi) In view of the above enquiry report, a show cause notice was issued to the petitioner by the Senior Divisional Medical Officer to which the petitioner filed her reply. Being not satisfied with the reply, the Senior Divisional Medical Officer passed order of the petitioner’s dismissal from service. The petitioner filed an appeal before the appellate authority, but the appeal was dismissed on 17.06.2011. The revision, filed before the revisional authority, too, met with rejection.

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(vii) The petitioner moved, thereafter, the learned Tribunal, in O. A. No. 291 of 2012, which was disposed of, on 10.05.2013, with liberty to the petitioner to seek a declaration of status, as daughter, of Chhote Lal from a Civil Court of competent jurisdiction. The learned Tribunal further observed that the respondents shall, however, be

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liable to pay compassionate allowance, with effect from the date of dismissal, in accordance with RBE 164/08, dated 04.11.2008.

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(viii) . Being aggrieved by the order of the learned Tribunal, the petitioner filed C.W.J.C. No. 12051 of 2013. A Division Bench of this Court, by its order, dated 05.08.2013, remanded the matter to the learned Tribunal for fresh consideration of the matter. Subsequent to the order of the Division Bench, the learned Tribunal heard the matter afresh and dismissed the O.A. by its order, dated 13.02.2014, observing therein that since the applicant (herein the petitioner) had entered into Railway service on the basis of fake documents and false declaration, she had no locus standi to challenge the power of the authorities concerned to dismiss her from service and/or the manner of conducting the disciplinary proceeding.

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5 . The petitioner has assailed the impugned order of termination on different grounds. Now, we will take these grounds one by one.

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6 . The foremost ground of challenge is that the order of dismissal has been passed by an authority (Senior Divisional Medical Officer, N. F. Railway, Katihar), who is subordinate to the appointing authority. As per the Circular of the Railway Board, bearing No.30 of 1991, the power of making appointment, in Group C and D posts, rests with the General Manager, who may delegate the power of

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appointment, in respect of Group C and D, to the Divisional Railway Managers and also to the heads of the extradivisional units, who are in SA grade. Herein, impugned order of dismissal of the petitioner was issued by respondent No. 5, namely, Senior Divisional Medical Officer, N. F. Railway, Katihar, who is subordinate to both, the General Manager as well as Divisional Railway Manager. This position has, in fact, not been controverted by the learned Counsel appearing for the Railways.

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7 . In the face of what has been indicated above, there can be no escape from the conclusion that the impugned order of dismissal has been passed by an authority, who is subordinate to the appointing authority, and, hence, the dismissal cannot be sustained in law, the same having been passed by an authority subordinate to the appointing authority. On this score alone, the order of termination/dismissal is liable to be set aside.

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8 . Learned Counsel for the petitioner next submits that the Senior Divisional Medical Officer, to whom the enquiry report was submitted initially, did not accept the report. In support of this submission, learned Counsel has relied upon paragraph 7 of the counter affidavit, filed on behalf of respondent No. 8, before the learned Tribunal, which reads as follows:-

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“„I had recommended for fresh enquiry as ex-parte enquiry report

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was not acceptable to him”.

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9 . The facts, that the disciplinary authority had observed that the ex parte enquiry report was not acceptable and had recommended fresh enquiry, have also not been controverted by the Railways. Once a disciplinary authority, which is a quashi -judicial authority, disapproves of an enquiry report and recommends fresh enquiry, such an enquiry report, which had already been disapproved, ought not to have been acted upon; more so, for imposing punishment unless and until the recommendation for fresh enquiry was interfered with by superior authority for good reasons or by the authority, who made the recommendation for fresh enquiry provided that the authority concerned had the power to review its own order. Nothing has been brought on record to show that the disciplinary authority had the power to review its own decision or that the decision of the disciplinary authority was superseded by the appellate/superior authority.

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10 . The petitioner further contends that she was not given sufficient opportunity to defend herself as the enquiry was conducted at New Jalpaiguri (West Bengal), Maligaon (Assam) and Calcutta (West Bengal); whereas her headquarters was at Katihar. The delinquent, in her letter, had prayed for change of the place of enquiry stating that she had a small female baby in her lap and her witnesses

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lived at Katihar and that it would be difficult for her to appear, in enquiry, at a far off place.

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11 . We do not find that the request, which had been made by the petitioner, was so unreasonable that the request ought to have been rejected. Asking a lady to appear in the departmental enquiry, at a far off place and that, too, in another State, would amount to denial of reasonable opportunity to defend oneself. We, accordingly, hold that, in the face and attending circumstances of the present case, the petitioner herein was deprived of effective opportunity to defend herself in the enquiry held against her.

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12 . Thus, we are left with no alternative, but to set aside the enquiry report, the impugned order of dismissal/termination as well as the order of the learned Tribunal refusing to interfere with the order of termination.

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13 . In view of the above, the enquiry report, the impugned order of termination of the petitioner as well as the order of the learned Tribunal, refusing to interfere with the order of termination, are hereby set aside.

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14 . As there is allegation against the petitioner that she had secured compassionate appointment by way of fraud and misrepresentation by claiming that she was the daughter of the said deceased railway employee, though she was not the daughter of the said railway employee, respondents are granted the liberty to proceed afresh

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against the petitioner from the stage, where the delinquent filed her written statement in the enquiry. If the petitioner was under suspension during the proceeding, she would continue to remain so if the respondent concerned decides to pursue the enquiry; or else, the order of suspension shall be revoked. If the respondent authority decides to proceed with the enquiry, the petitioner may be kept under suspension if she had been under suspension before the enquiry had commenced.

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15 . If the enquiry is proceeded afresh as directed above, the same shall be completed within a period of three months from the date of receipt of a copy of this order by respondent No. 3, namely, the Divisional Railway Manager, N. F. Railway, Katihar.

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16 . The writ petition is allowed with liberty to the respondents as indicated above.

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(Samarendra Pratap Singh, J)

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I. A. Ansari, J.:

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(I. A. Ansari, J)

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Anand/ Shashi NAFR

Babita Massey v. The Union Of India and Ors.

Case brief

What is this about?

What did the court decide?

Babita Massey v. The Union Of India and Ors.

Case brief

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