TMI Blog2013 (5) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... r training out the same from Sr.DEN/AEN. This amount of fictitious/false test check and as such excess payment to contractor amount to `48,972 and corresponding loss to the Railways. Article 2 He knowingly and intentionally has got recorded the false measurements of ballast for stack No.101 measuring 145.4 cum by CPWI(S) Shri S.C.Saxena/AGC and has done 100% test check of measurement of ballast of Jajau Yard for which no supply was taken at the time of recording measurements in Measurement Book No.AGC/347 in 15th on account Bill for stack No.101 but as the matter came to the notice of regular AEN and higher officers, the stack was reconstructed. Thus, he made efforts to defraud the Railways but on intervention of regular AEN, he could not succeed. Article 3 He knowingly and intentionally has got measured the ballast of M/s S.P.Associates lying at Jajau Yard in the contract of M/s Mittal Associates even though the JJ Yard location was not covered in the scope of their work. This ballast supply was earlier rejected by the then AEN Shri B.K.Mishra as it was not conforming to the specification of that contract, subsequently a proposal was moved by CPWI for taking 800 cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentation of the writ petitioner, came to the conclusion on the said disagreement, which was challenged by the petitioner in the Allahabad Bench of the Tribunal in OA No.417/2005. The OA was allowed. The matter was taken in appeal by the respondents before the High Court at Allahabad in Civil Misc. Writ Petition No.57536/2005, which remanded the case back to the Tribunal for deciding the matter afresh. The Allahabad Bench of the Tribunal considered the matter afresh and decided on June 08, 2007, that the OA is not maintainable as being premature and dismissed the same. 4. In the meantime, the petitioner retired from service on June 30, 2007. As the proceedings have not culminated in a final order, the proceedings continued under Rule 9 of the Railway Services Pension Rules, 1993. On August 12, 2009 the case was finally decided by the Disciplinary Authority in consultation with UPSC, which was of the view that the charges have been proved, and constituted a grave misconduct‟ on the part of the petitioner and thereby imposed a penalty of 20% cut in monthly pension of the petitioner for a period of five years. 5. According to the order dated August 12, 2009, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances of Shri S. C. Saxena and those of the applicant are different. The Disciplinary Authority found that parity did not exist. The dropping of the disciplinary proceedings against Shri Saxena would not be the adequate reason for exonerating the Applicant. The Disciplinary Authority considered the mitigating factors such as (i) long duration of the departmental proceedings, (ii) exoneration of the co-accused, and (iii) the Applicant in his letter dated 17.07.2007 did not comment on the facts of the Memorandum of Disagreement issued by Railway Board and held all the four Charges as proved. As discussed above, we find that the magnitude of the mis-conduct in case of Shri S. C. Saxena being different from that of the applicant the claim for similar treatment for the Applicant would not be applicable. We find from the above that the competent authority has compared the Applicant and co-delinquent in so far as their culpability in the alleged misconduct is concerned and held the case of the Applicant as grave misconduct‟ and imposed the penalty. We are in full agreement of the said findings. 6. In so far as the issue No.1 is concerned, the Tribunal had concluded that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t bill and was brought to AGC at 2355 hrs. The statements given by S/Shri S C Saxena/CPWI(S), CD Sharma/AEN and J P Gupta/OS. Are confusing and incorrect. There was no other reason for the CPWI(S) not to record measurements directly in the MB as stipulated in the Engineering Code except for the reason that regular AEN resuming on 17.2.96 and CPWI(S) Shri Saxena would have not succeeded in his designs for accepting the rejected ballasting in JJ Yard and also for recording false measurements for stack No. 101 which was not available at the time of recording measurements. By the above act of omission and commission, Shri S. C. Saxena, CPWI/AGC has failed to maintain absolute integrity, devotion to duty and acted in a manner of unbecoming of a Railway servant contravening Rule 3 (1)(i),(ii) and (iii) of Railway Service (Conduct) Rules, 1966. 8. The articles framed against Mr.S.C.Saxena would show that he was alleged to have committed the misconduct in connivance with the petitioner. It is noted by us that in so far as Mr.S.C.Saxena is concerned, all the charges against him stood proved and the Disciplinary Authority imposed a major penalty on July 26, 2001. Considering his appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficers i.e. petitioner and Mr.S.C.Saxena are identical and their acts of misconduct are in connivance with each other. Further she would submit that, the charges which have been proved against the petitioner would not stand as, identical charge(s) of connivance have not been proved against Mr.S.C.Saxena. She further states that if no variation between records on ballast passing register and the MB have been brought out against Mr.S.C.Saxena, the same would also hold in favour of the petitioner. She would further contend that the mental sufferings endured by Mr.S.C.Saxena during ten years of DAR proceedings would hold good in the case of petitioner as well and the petitioner had superannuated on June 30, 2007 one month before Mr.S.C.Saxena had retired i.e. on July 31, 2007. There is no reason why the petitioner should be treated differently from Mr.S.C.Saxena when the facts which are the subject matter of the article of charges against both of them are based on the same set of facts and no distinguishing features exist. 10. Ms. Jyoti Singh, learned senior counsel for the petitioner would rely upon the judgment of the Supreme Court in Man Singh v. State of Haryana, Civil Appeal N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in the Excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the Excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that for the last about three decades the appellant has served the Police Department of Haryana in different capacity with unblemished record of service . 11. On the other hand, Mr. R.L.Dhawan, appearing for the respondents would submit that there is a clear distinction in the case of the petitioner and Mr.S.C.Saxena on facts. 12. Having heard the learned counsel for the parties, we at the outset made a comparison between the charges framed against Mr.S.C.Saxena and the petitioner. As observed above, the Articles of alleged charge against the officers show that commission of misconduct is primarily in connivance with each other. Whatever has been held in favour of Mr.S.C.Saxena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where joint disciplinary enquiry is held against more than one delinquent, the same or similarity of charges is not decisive but many factors as noticed above may be vital in decision making. A single distinguishing feature in the nature of duties or degree of responsibility may make a difference insofar as award of punishment is concerned. To avoid multiplicity of proceedings and overlapping adducing of evidence, a joint enquiry may be conducted against all the delinquent officers but imposition of different punishment on proved charges may not be impermissible if the responsibilities and duties of the co-delinquents differ or where distinguishing features exist. In such a case, there would not be any question of selective or invidious discrimination. Further in para 21 the Supreme Court has by referring to and distinguishing Raj Pal Singh‟s case (supra) has opined as under:- 21. Similarly, the decision of this Court in Raj Pal Singh has no application to the present case. It was found therein that the charges proved against the delinquents were same and identical. No dissimilarity was found and, therefore, it was held that it was not open for the disciplinary a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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