Central Administrative Tribunal - Delhi
Mukesh Garg S/O Shri B.B. Gupta vs Union Of India (Uoi) (Through The ... on 25 April, 2007
ORDER Shanker Raju, Member (J)
1. A major penalty of reduction for a period of four years with cumulative effect vide order dated 27.10.2004 and appellate order dated 18.5.2005, affirming the punishment are being assailed.
2. Applicant, who has been earlier held guilty partly of the charge, when inflicted punishment, which was affirmed in appeal, filed OA No. 1929/2002 before the Tribunal. An order passed on 30.5.2003 by the Tribunal on the ground that defence witnesses (DWs) were not allowed to be examined and the orders passed by the disciplinary authority (DA) as well as appellate authority are non-speaking, impugned orders have been set aside with remand back of the case to the enquiry officer (EO) from the stage of calling DWs.
3. DW was examined who supported the claim of applicant. Thereafter, an enquiry report was submitted by the EO, holding the charges as proved, which culminated into a penalty order, which on being upheld in appeal, gives rise to the present OA.
4. The charges against applicant are of creating artificial shortage and detection of excess cash. Learned Counsel of applicant states that whereas it was incumbent upon the EO after remand back of the case by the Tribunal not only to have allowed defence examination but also to consider the defence contentions of applicant, as the enquiry report is without discussing the contentions put-forth by applicant, which, in turn, is infraction to Rule 9 (25) of the Railway Servants (Discipline & Appeal) Rules, 1968.
5. Learned Counsel would contend that despite filing defence statement no contention has been raised or discussed by the EO, who has passed a finding on the ipsi dixit has greatly prejudiced applicant in the matter of his defence.
6. Ms. Meenu Mainee has also contended that whereas the DA on receipt of the enquiry report when confronted with a detailed representation against the enquiry report, has not at all taken into consideration the defence contentions of applicant and further contended that in appeal also no reasoned order has been passed, which is an infraction to the guidelines issued by the Railway Board in 1978 and 1985.
7. On the other hand, Shri Satpal Singh, learned Counsel appearing for respondents has vehemently opposed the contentions and stated that applicant has been given due opportunity and on examination of the DWs applicant has been rightly held guilty and imposed punishment, which is commensurate with the misconduct.
8. We have carefully considered the rival contentions of the parties and perused the material on record. It appears that the EO issued an enquiry report in continuation of his earlier enquiry report, which has been set aside by the Tribunal. What is obligated upon the EO after remand back of the enquiry is not only to examine the DWs but also to consider the contentions raised in defence statement. Thereafter, a reasoned finding has to be issued as per Rule 9 (25) of the Rules ibid, which allows reasons to be recorded in the context of the defence statement filed by the Railway servant. From the perusal of the finding, we do not find even a whisper as to the defence statement or contentions raised therein. The enquiry report is vague and indefinite, which has greatly prejudiced applicant in his defence and is contrary to the statutory rules.
9. As regards order of the DA, though in a case of detailed finding DA is not obligated upon to pass a speaking order, yet when we find that defence contentions of applicant have not been considered by the EO, which should have been considered at the DA level. We do not find any such consideration in the order of the DA.
10. As regards appellate order, the appellate order has not raised or discussed any of the pleas of applicant and as per Rule 22 of the Rules ibid, procedural illegality has to be examined as an obligation by the appellate authority. The orders passed both by the DA as well as appellate authority are non-speaking and perpetuated the illegality earlier committed, which has been set aside by the Tribunal.
11. In the result, for the foregoing reasons, OA is allowed. Impugned orders are set aside. Applicant shall be entitled to all consequential benefits. No costs.