D LINGA REDDY vs M/o Railways on 31 December 2018

**ORAL ORDER**

(Per Hon'ble Mr. Justice L. Narasimha Reddy, Chairman)

The applicant is working as Additional Divisional Engineer in the South Central Railway. The CBI conducted an inspection upon him, alleging that he held or acquired several items of property, disproportionate to his known sources of income. It registered a case, being CC No.1/2017 in the CBI Court of Hyderabad under the relevant provisions of the Prevention of Corruption Act. A charge memo dated 11.12.2017 was issued to him by the 3^rd respondent, the disciplinary authority. It was alleged that the applicant acquired immovable properties between 2007 and 2011, but failed to intimate the same to the Railway administration, as required u/ Rule 18 (2) of the Railway Services (Conduct) Rules, 1966. This O.A. is filed with a prayer to quash the charge memo dated 11.12.2017 on the ground that they were initiated by an incompetent authority.

2. The applicant contends that he has been appointed by the General Manager of South Central Railway and for him, the disciplinary authority is the Railway Board and the charge sheet issued by the 3^rd respondent is untenable in law. It is also pleaded that in case, the applicant is required to participate in the disciplinary proceedings, he would be compelled to disclose the defence, which he may take in the criminal proceedings.

*[Signature]*

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Reliance is placed on the judgement of the Hon'ble Supreme Court in **Union of India & Others vs B.V. Gopinath [(2014) 1 SCC 351]**.

3. Another point urged by him is that the disciplinary proceedings are initiated in respect of the same charges that are the subject matter of the criminal case and, the issuance of charge memo when the criminal case is pending, is impermissible in law.

4. The respondents filed a counter affidavit opposing the O.A. They stated that the 3^rd respondent is designated under the Service Rules as disciplinary authority for imposition of minor penalties and Rule 8(2) of the Railway Servants (D&A) Rules, 1968 enables him to initiate disciplinary proceedings for imposing major penalty also. It is also pleaded that the charge memo was issued strictly in accordance with law and that the various objections raised by the applicant are not tenable. The respondents relied upon the judgement of the Supreme Court in the case of *Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Another [ (1999) (3) SCC 679 ]*.

5. We heard Shri K.R.K.V. Prasad, learned counsel for the applicant and Shri S.M. Patnaik, learned Standing Counsel for the respondents.

6. A criminal case, being CC No.1/2017 was registered against the applicant before the CBI Court, Hyderabad alleging that he and his wife have acquired various items of property, disproportionate to the known sources of his income. The case is still pending trial. On his part, the 3^rd respondent issued a charge memo dated 11.12.2017. There is only one article of charge in the charge memo, and it reads as under:

*[Handwritten signature]*

(OA/21/878/2018)"Article of Charge That Sri D. Linga Reddy, ADEN/TM/HYB the then ADEN/RC while working in different capacities in Engineering department of S.C. Railway during the years between 2007 and 2011, has acquired immovable properties and the transaction of which, he failed to intimate to the Railway Administration, in violation of Rule 18(2) of Railway Services (Conduct) Rules, 1966.

By the aforesaid act, the said Sri D. Linga Reddy, ADEN/TM/HYB the then ADEN/RC has failed to maintain absolute integrity and acted in a manner unbecoming of a Railway servant, in contravention to Rule NO.3(1) (i) and 3(1) (iii) of Railway Services (Conduct) Rules, 1966."

7. It is fairly well settled that, if the purport and content of the charges in a criminal case on one hand, and in the disciplinary proceedings on the other hand is one and the same, an employee cannot be compelled to take part in the disciplinary proceedings before the criminal case is concluded, lest his defence becomes known to the prosecution in the criminal case. Even this is subject to a rider that in case the criminal proceedings are pending for unduly long time, the disciplinary proceedings can be continued. In *Capt. M. Paul Anthony's case* (supra), the Hon'ble Supreme Court laid the following proposition of law in this behalf:

"Para 22

- (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

- (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

- (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.

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- (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

- (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."

It is keeping in view these principles, that we examine the charge in the criminal case on the one hand and the charge memo on the other hand.

8. In the final report submitted in the criminal case, a detailed account of various items of property said to have been acquired by the applicant and his wife is given, and it was alleged that those properties are disproportionate to the known sources of his income. The allegation in the disciplinary proceedings, on the other hand, is almost confined to the one of failure on the part of the applicant to intimate about the acquisition of the property. Reference is made to Rule 18(2) of Railway Services (Conduct) Rules, 1966. There is no allegation that the properties acquired by the applicant are disproportionate to his known sources of income. Once there exists a clear difference between the charges in the two sets of proceedings, it would not be necessary to stall the disciplinary proceedings.

9. It is pleaded that the 3^rd respondent is not the disciplinary authority for the applicant. In this behalf, Rule 8(2) of the Railway Servants (Discipline & Appeal) Rules is very clear. According to this, an 

officer, who is designated as disciplinary authority for imposition of penalties in Clauses 1-5 of Rule 6, can also initiate proceedings for imposition of major penalties. Obviously, if it becomes necessary to impose a major penalty, the concerned authority alone would be competent to do it. In the limited context of issuing charge memo, the one who is conferred with the power to impose minor penalty is empowered to initiate proceedings for both the sets of proceedings.

10. The 3^rd contention urged by the learned counsel for the applicant is that the approval of the disciplinary authority was not obtained for the charges. Reliance is placed on the judgement of the Hon'ble Supreme Court in *B.V. Gopinath's* case (supra). Neither in the explanation submitted by the applicant to the charge memo nor in the O.A., a specific plea in this behalf is raised. A pure question of fact cannot be addressed by the Tribunal unless a specific plea was taken by the applicant and the respondents had an occasion to deal with the same in the counter affidavit.

11. We do not find any merit in the O.A. Accordingly, it is dismissed. There shall be no order as to costs.

प्रमाणित प्रत **CERTIFIED TRUE COPY**

केस संख्या CASE NUMBER... OA 878/2018 निर्णय का तारीख DATE OF JUDGEMENT... 31-12-2018 प्रति तैयार किया गया दिन COPY MADE READY ON... 29-1-2019

*Nirmal* 29/1/19 कार्यालय अधिकारी / भारतीय अधिकारी Section Officer / Court Officer केन्द्रीय प्रशासनिक अधिकार आयोग Central Administrative Tribunal हैदराबाद न्यायपीठ/Hyderabad Bench