Rajes Kumar, Ashwani Kumar Mishra, J. - (1.) HEARD Sri A.K. Gaur, learned Counsel for the petitioners and Sri Bhagirathi Tiwari, learned Counsel appearing on behalf of the respondents. By means of the present writ petition, the petitioners have challenged the order of tribunal dated 12.5.2008 passed in Original Application No. 53 of 2006 filed by the respondent No. 1 (hereinafter referred to as "respondent").
(2.) BRIEF facts of the case are that the respondent was appointed as Khalasi in the year 1976 in Railway. It appears that by order dated 17.2.2004 passed in complaint, case No. 664 of 1991 under section 3 of the Railway Property (Unlawful Possession), Act 1966 (hereinafter referred to "R.P. (U.P.) Act"), the respondent has been held guilty and convicted for two years simple imprisonment and has been awarded a fine of Rs. 2,000/ - by Additional Chief Judicial Magistrate, Gorakhpur. After the conviction, a show cause notice has been issued to the respondent on 3/5.11.2005, under Rule 14 (i) of Railway Servants (Discipline and Appeal) Rules, 1968, proposing to impose the penalty of removal from service. The respondent filed the reply. On consideration of the reply, the order dated 18.1.2006 has been passed whereby the respondent has been removed from service. Perusal of the order dated 18.1.2006 reveals that the respondent has been removed from service merely on the ground that he has been convicted in Crl. Case No. 664 of 1991. In the said order, it has also been observed that the order of Trial Court shall remain effective till it is modified. Against the said order, the respondent filed Original Application No. 53 of 2006, which has been allowed by the impugned order. Before the tribunal, it was pleaded that against the order of conviction, the respondent filed appeal - before the Appellate Court and has been released on bail, tribunal allowed the original application with the following observations: 8. On behalf of the applicant it is argued that "impugned order' suffers from manifest error in as much as Railway administration appears to be labouring under some mistaken belief that they can pass 'Order of Removal' (subject -matter of challenged in this O.A.) on the ground of conviction in criminal case' even if the order of conviction is under challenge before Appellate Authority and that the applicant was released on bail, the respondents did not invoke their jurisdiction to initiate disciplinary proceedings for about 13 -14 years, hence it was not a fit case for passing of removal order mechanically on the ground that there is conviction without applying mind to the relevant facts/circumstances. 9. In the last, learned Counsel for the applicant submitted that paragraph No. 3 of Board's letter dated 6.6.1994 (quoted above) has been misread and respondents have failed to appreciate it in correct perspective. It has been wrongly applied Rule 14(i) (referred to above) and reference to para 3 of said G.O. letter dated 6.6.1994 it also palpably misconceived. The respondents were free to initiate 'disciplinary proceedings' as per rule/s applicable to the instant case. Argument is that the department having chosen not to start 'disciplinary inquiry' on its own and on the other hand blindly relied upon the existence of order of conviction. In other words, the respondents' could not act mechanically and pass order of removal, law enjoins upon them to advert to relevant facts and circumstances of the case, which the respondents authorities have miserably failed to appreciate and take into account such relevant circumstance.
(3.) IT appears that subsequently the respondent has been acquitted by the Appellate Court vide order dated 7.3.2009. The copy of the order of Appellate Court is annexed alongwith affidavit dated 2.1.2013. Now the respondent has retired on 31.3.2011.;