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Uma Shanker Dwivedi v. Union Of India And Others - WRIT - A No. 53587 of 2004  RD-AH 1735 (16 December 2004)
Court No. 1
(i) Civil Misc. Writ Petition No. 52506 of 2004
Union of India and others Vs. Central Administrative Tribunal, Allhabad and another.
(ii) Civil Misc. Writ Petition No. 53444 of 2004
Union of India through GM N. Rly and others Vs. Gokaran Nath Dwivedi & others.
(iii) Civil Misc. Writ Petition No. 53587 of 2004
Uma Shankar Dwivedi Vs. Union of India and others.
(iv) Civil Misc. Writ Petition No. 53619 of 2004
Uma Shankar Dwivedi Vs. Union of India and others.
HON'BLE YATINDRA SINGH, J
HON'BLE V.S. BAJPAI, J.
1. One Sri Doodhnath Dwivedi (Sri Doodhnath) was working in the Railways. He was father of Sri Uma Shankar Dwivedi (Sri Uma) and real Uncle of Sri Gokaran Nath Dwivedi (Sri Gokaran). He died on 20.1.1968 during service. At that time there used to be a circular of the Railways for compassionate appointment of near relative in case the widow could not be taken in employment and her children were minor. Sri Gokran was appointed on compassionate ground on the death of Sri Doodhnath on 7.4.1971.
2. Sri Uma is posthumous son of Sri Doodhnath. He filed two representations for compassionate appointment in place of his father Sri Doodhnath. They were rejected on 25.10.1990 and 25/29.5.1992. He filed an OA 415 of 1993 before the Central Administrative Tribunal (the Tribunal) for compassionate appointment. This application was disposed of on 25.8.1995 with the directions to the Railways to inquire whether Sri Gokaran had obtained any certificate from the widow before seeking appointment on compassionate grounds and if all formalities were complied with or not. In case the formalities were not complied with, or Sri Gokaran had obtained compassionate appointment by making false representation then his services were to be terminated and in his place Sri Uma was to be appointed.
3. Sri Gokran was not party in this original application and this order was passed without hearing him. He filed review application which was dismissed on 4.7.1976. He filed special leave petition before the Supreme Court which was dismissed on 26.11.1996.
4. The Railways constituted two member Inspector Committee to conduct an enquiry (the confronted enquiry) to find out whether Sri Gokaran had obtained the certificate from the widow and if all formalities before his appointment were complied with or not. Sri Gokaran could not appear in this inquiry. On the basis of this inquiry, a charge sheet dated 24.4.1996 was served on him. In this charge sheet the following three charges were framed against him.
(i)Absenting himself from duty w.e.f. 6.3.1996 to 24.4.1996.
(ii)Evaded confronted enquiry in connection with his appointment on compassionate grounds.
(iii)Obtained the service on compassionate ground by concealing the facts and falsely representing himself near relative of late Doodhnath.
5. The Inquiry officer submitted his report on 13.1.1997. He held that charges no. 1 and 2 were proved but charge no. 3 was not proved. The disciplinary authority by its order dated 14.2.1997 accepted the finding of the inquiry officer on the first two charges and reversed the finding of the Inquiry officer on charge no. 3. On the basis of these findings Sri Gokaran was dismissed from service. Sri Uma was appointed on 30.3.1997.
6. Sri Gokaran filed OA 336 of 1997 against the aforesaid order and also for declaration that the appointment of Sri Uma is illegal. Sri Gokaran also filed a departmental appeal which was dismissed on 16.7.1997. He filed a revision which was partly allowed and the order of dismissal was converted into compulsory retirement. Sri Gokaran filed another original application no. 1103 of 1998 challenging these orders and also for declaration that the appointment of Sri Uma is illegal. These two OAs were consolidated and were allowed by the Tribunal on 12.5.2004 . The impugned orders were quashed and Sri Gokaran was directed to be reinstated. The Tribunal also mentioned that it would be open to the Railways to take or not to take any action regarding appointment of Sri Uma. The Railways filed a review application against this judgment. During pendency of this review application, Sri Gokaran Dwivedi filed a contempt application no. 108 of 2004. In this case a direction has been issued on 3.12.2004 for personal appearance of the Railway officers. The Railways have filed writ petition no. 52506 of 2004 against this order. The review application has been dismissed on 7.12.2004. They have filed writ petition no. 53444 of 2004 against the order of the Tribunal dated 12.5.2004 and 7.12.2004. Sri Uma has filed WPs 53587 and 53619 of 2004 against the order of the Tribunal dated 12.5.2004 by which liberty was granted to the Railways to take or not to take action regarding his appointment. He has filed two writ petitions as the order was passed in two OAs.
7. We have heard Sri A.K. Gaur , Sri A.K. Pandy and Sri Govind Saran counsels for the Railway Authorities. Sri Shyamal Narain counsel for Sri Gokaran and Sri Vikas Buhdhwar for Sri Uma. The counsels for the parties have stated that they do not wish to file any counter affidavit in these writ petitions and the writ petitions may be finally decided at this stage.
8. There are three charges against Sri Gokran. The first charge relates to his absence from the duty for about one and half month. The second charge relates to his avoidance in the confronted inquiry. The third charge relates to his appointment. The Inquiry officer had found the first two charges to be proved but had absolved Sri Gokaran from the third charge. The third charge is a serious charge and if proved then services can be dispensed with. The first two charges are not so serious; at least not to such an extent that services of any person may be dispensed with. As the service of Sri Gokaran has been dispensed with by awarding punishment of compulsory retirement, let's consider the legality of finding regarding charge no. 3.
9. The disciplinary authority before passing the order of dismissal on 14.2.1997 reversed finding on the third charge. No notice along with tentative reasons for his disagreement on charge no.3 was served on Sri Gokaran. The Disciplinary authority could not reverse the finding on charge no. 3 unless notice recording tentative reasons was given to Sri Gokaran. In view of this, the orders of the disciplinary, appellate, and revisional authority were illegal and were rightly quashed however, the Tribunal after setting aside them ought to have remitted the case to the disciplinary authority to record fresh finding rather than recording the finding itself.
10. The inquiry officer had found the charges one and two to be proved against Shri Gokaran. This was accepted by all the authorities. It was finding of fact. The Tribunal reversed these findings also. These were finding of facts and ought not to have been interfered with. As the case should have been remitted to the disciplinary authority on charge no. 3, the Tribunal should have granted liberty to Sri Gokaran to file his objection before the disciplinary authority regarding finding on the first two charges. In view of above the order of the tribunal dated 12.5.2003 and 7.12.2004 are also quashed. As we have quashed the order of the Tribunal, there is no justification to continue contempt proceeding. The order dated 3.12.2004 in the contempt application 108 of 2004 is also set aside. The question is, whether we should at this stage remit the case back to the disciplinary authority or pass final order of punishment at this stage.
11. Sri Gorkarn was appointed on 7.4.1971. About 20 years had passed when this dispute was started. By this time, entire circumstances had changed, it is now 30 years old. Sri Gokaran is due to retire on 31.12.2004 and about 15 days are left for his retirement. The inquiry officers has also recorded finding in favour of Sri Gokaran on charge no.3. The charge no.1 and 2 are not serious so as to merit compulsory retirement. Sri Gokaran has been given half salary for the period he was said to be unauthorisedly absent under charge no.1. His leave for this period was sanctioned then was cancelled. So far as non-cooperation in the confronted inquiry under charge no. 2 is concerned, it is probable that Sri Gokaran may not be having information of the date, otherwise there was no necessity of not appearing in the confronted enquiry. Considering the facts of this case, justice would be done, in case final order regarding punishment is passed at this stage; no useful purpose will be served by remitting the case.
12. We hold that no further inquiry be held on charge no.3. On charges no. 1 and 2, Sri Gokaran may be given warning. He may be treated under suspension from the date the order of the disciplinary authority (14.2.1997) till the order of the Tribunal dated 12.5.2004. He would be entitled to subsistence allowances only (and not the salary) for this period, however he would be treated in service for this period. Sri Gokaran would be entitled for his salary from 12.5.2004. He would be entitled to all consequential benefits including post retirement benefits accordingly.
13. The Tribunal in its order dated 12.5.2004 has granted liberty to the Railways to take decision in respect of appointment of Sri Uma. We have already set aside the judgment of the Tribunal dated 12.5.2004 and these observations are also set aside. However, we clarify that Sri Uma has been working since 30.3.1997; more than 7 years have passed. Sri Gokaran is retiring on 31.12.2004. Sri Uma may be adjusted in this vacancy or any other vacancy. With these observations and directions all the writ petitions are disposed off.
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