Central Administrative Tribunal - Delhi
Sh. Kulwinder Singh vs Union Of India Through on 11 May, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-4204/2010
MA-3149/2010
New Delhi this the 11th day of May, 2011.
Honble Mrs. Meera Chhibber, Member (J)
Honble Dr. A.K. Mishra, Member (A)
Sh. Kulwinder Singh,
S/o sh. Bhag Singh,
Working as E&RC/IRCA,
Northern Railway, New Delhi.
r/o M-35, GS Apartment,
Plot No.38, Sector-13,
Delhi-85. . Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Union of India through
the General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. The Divl. Railway Manager,
Northern Railway, Delhi Division,
State Entry Road, New Delhi.
3. The Chief Commercial Manager/IT,
IRCA Reservation Complex,
Northern Railway, Near New Delhi
Railway Station, New Delhi.
4. The Sr. Commercial Manager/DB,
IRCA Reservation Complex,
Northern Railway, Near New Delhi
Railway Station, New Delhi. .. Respondents
(through Sh. P.K. Yadav, Advocate)
O R D E R
Dr. A.K. Mishra, Member (A) The applicant has challenged the order dated 11/15.11.2010 of the respondent authority by which his representation for change of Inquiry Officer (IO) was rejected. His prayer is to set aside this order and to quash the proceedings from the stage of appointment of the IO and to give a direction to the Disciplinary Authority (DA) to appoint a new IO.
2. The Vigilance Department of the respondent organization conducted a test check on 15.05.2008 while the applicant was deputed to work at counter No. 106 of IRCA Reservation Complex, New Delhi. A charge sheet was issued to him on 22.09.2008 on the allegations that he had undeclared cash amount of Rs.719/-; he was in illegal possession of two PRS tickets which he arranged to get issued by unduly influencing his co-workers and by signing the requisition slips himself. The applicant submitted a reply on 01.10.2008 and requested the DA to register a criminal case against the Vigilance Inspector Sh. V. Gautam who, according to his allegation, had illegally taken possession of Rs.719/- from him. This request was rejected and the DA decided to start a departmental inquiry by appointing one Sh. G.S. Suri, CE,I Vigilance Headquarters. The applicant made a representation against this order on 22.10.2008 to the higher authority i.e. Dy. Chief Commercial Manager (DCCM), IRCA Reservation Office, New Delhi requesting for change of the IO on the ground that Sh. Suri belongs to Vigilance Department and the case against him was started on the basis of vigilance report. He had also requested that a criminal case should also be registered against the Vigilance Inspector. This request, according to the applicant, was rejected, but there was no response about his request for changing the IO.
3. It is alleged by the applicant that the IO did not permit him to give copies of the additional documents required by him. It is seen from his request letter dated 15.04.2009 that out of five additional documents required by him, four were allowed by the IO and about the one relating to cash details of Rs.719/-, it was observed that the applicant could ask for the details at the time of cross examination. Further, it was submitted by the learned counsel for the respondents that a copy of the seizure report for the amount which has all the details was given to the applicant. Therefore, we do not see that any prejudice has been caused to the applicant by that order of the IO.
4. The second allegation against the IO is that he did not allow the request of the applicant to get the signature of ASI/RPF Sh. Ram Niwas Meena on the joint note prepared by Vigilance Inspector Sh. Gautam verified by a hand writing expert. He has alleged that the signature of Sh. Meena has been forged by the Vigilance Inspector. Although his request was forwarded by the DA to the IO on 15.07.2010 (page-37 of the OA), no action was taken by the IO. It is his contention that Vigilance Inspector Gautam has forged the signature of ASI Meena, and the note is not a joint note as claimed by the prosecution.
4.1 The next allegation against the IO is that he refused to allow the prayer of the applicant for examination of four defence witnesses listed by him. Out of the four witnesses, two, namely, Sh. J.P. Dutta and Sh. Rajeev were required to testify about genuineness of the tickets which were purchased on their behalf. The IO had rejected it on the ground that genuineness of the tickets was already proved as per Annexure-II annexed to the charge sheet; as regards the other two defence witnesses Sh. S.D. Sharma and Sh. Ansari, he stated that there was nothing on record which required their testimony. Since the genuineness of the tickets pertaining to the first two witnesses was already established as per Annexure-II filed by the prosecution, the IO was not unjustified about rejecting the prayer for bringing them to testify for that purpose only. Similarly the reasoning given for rejecting the testimony of other two witnesses seems to be logical.
4.2 The next ground of the applicant is that his request for re-examination of the prosecution witness Sh. Gautam, the Vigilance Inspector was not allowed saying that reasonable opportunity had already been given to the applicant at the time when prosecution evidence was led and there was no request for any further examination of witness Sh. Gautam at that time. He rejected that prayer as it was made after the prosecution case was closed and the defence case had started.
5. Nevertheless, the applicant made a representation to the Dy. Commercial Manager to change the IO but his request was rejected in the impugned order; hence the O.A.
6. At the time of hearing, learned counsel submits that appointment of a Vigilance Official as the IO in a departmental inquiry initiated at the instance of the Vigilance Wing of the respondents does not inspire confidence in the impartiality of the inquiry proceedings. The applicant had, time and again, represented that the IO and the main prosecutor, namely, Vigilance Inspector Sh. Gautam are friends and he did not expect impartial conduct of the inquiry from the present I.O. Reliance was placed on the observation of Honble Supreme Court of India in U.O.I. and Ors. Vs. Prakash Kumar Tandon, (2009)1 SCC (L&S) 394 at paragraph-12 of the judgment to support his contention. It reads as under:-
The disciplinary proceedings were initiated only after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. He evidently being from the Vigilance Department, with a view to be fair to the delinquent officer, should not have been appointed as an enquiry officer at all.
7. Admittedly, the IO is from the Vigilance Department. The applicant has been, time and again, represented against the appointment of a representative of the Vigilance Department as the IO. Learned counsel for the respondents submits that the present IO is in the panel of IOs maintained by the respondents. When no bias has been established, the appointment of the present IO, according to him, cannot be interfered with.
However, keeping in view the observations of Honble Supreme Court in Prakash Kumar Tandons case (supra), we would set aside the impugned order dated 11/15.11.2010 and direct the DA to change the IO and appoint some one who is not connected with the Vigilance Department within a period of one month from the date of receipt of a copy of this order. However, we do not find that any prejudice has been caused to the applicant so far. The new IO, therefore, should take up the inquiry from the present stage itself. The applicant is directed to place his defence case before he new IO to be appointed by the respondent DA. As regards the plea of verification of the signature of Sh. Meena, the IO should take an informed decision on merits. The O.A. is disposed of in terms of aforesaid directions. No costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber)
Member(A) Member (J)
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