Central Administrative Tribunal - Delhi
Ashes Kiran Prasad vs The Union Of India Through on 16 May, 2014
Central Administrative Tribunal, Principal Bench, New Delhi. O.A. No. 4251/2013 Reserved on:02.05.2014 Pronounced on:16.05.2014 Honble Mr. G. George Paracken, Member (J) Honble Mr. P.K. Basu, Member (A) Ashes Kiran Prasad S/o Late Dhanushdhar Prasad Aged 55 years, R/o B-504, Shatabdi Rail Vihar, B-9/4, Sector-62, NOIDA (UP)-201307 And presently posted as Chief Traffic Officer, /P&S, North Western Railway, Jaipur and Residing in Room No.1, Loco Railway Officers Rest House, Ganapati Nagar, Hasanpura Road, Jaipur-302006. Applicant By Advocate: Ms. Ayushi Kiran. Versus 1. The Union of India through The Secretary, Railway Board, Rail Bhawan, New Delhi-110001. 2. Member Traffic, Railway Board, Rail Bhawan, New Delhi-110001. 3. Shri A. Datta, then SDGM/NF Railway Through Secretary, Railway Board, Rail Bhawan, New Delhi-110001. 4. Mrs. Leena Sharma, then Dy.CVO/T/NF Railway, Through Secretary, Railway Board, Rail Bhawan, New Delhi-110001. 5. General Manager, North Western Railway, Jawahar Circle, Jaipur-302017. ..Respondents By Advocate: Shri V.S.R. Krishna and Shri Rajinder Khatter. ORDER
Honble Mr. G. George Paracken, Member (J) The Applicant has filed this Original Application challenging the orders passed against him in the disciplinary proceedings initiated against him.
2. The brief facts of the case are: The Respondents-Railway Board, vide Memorandum No.E(O)I-2008/PU-2/NW-14 dated 07.08.2008, initiated disciplinary proceedings against the Applicant under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. The statement of imputation of misconduct or misbehavior against which enquiry was held as set out in the Articles of Charges were as under:-
Article of Charge-I:
The said Shri A.K. Prasad misused his official position for dispatch of 3 (three) and 4 (four) poly bundles of wooden parts by 4055 Dn. Ex LMG to NJP on 12.07.2005 and 14.07.2005 respectively and then dispatch of total 7 poly bundles of wooden parts by 3245 Dn. Ex NJP to PNBE which left NJP on 06.08.2005 without any booking and valid documents (RUD-1, 16).
For transportation of these wooden parts, Shri Prasad instructed Shri T. Barua, CCI/HQ/MLG, from time to time. Total 3 poly bundles of wooden parts marked as From CCO MLG to SS NJP (RUD-1) were loaded in the Rear SLR No.NR 97703/A(F/C) of 4055 DN by Shri S.N. Dey, Hd CC/T/LMG at LMG (RUD-2) on 12.07.2005. The said wooden parts were neither booked nor accompanied by any valid documents from the concerned Forest Department, but were dispatched ex LMG to NJP (RUD-1, 7). The said consignments were unloaded at NJP under the supervision of Shri Barua as per instructions of Shri A.K. Prasad and kept inside the parcel cage by the on-duty TRC Staff (RUD-1).
Again 4 poly bundles of wooden parts marked as From CCO/MLG to SS/NJP (RUD-1) were loaded in the Rear SLR No.NR 97702/A(F/C) of 4055 DN by Shri T.K. Paul, Hd/CCT/LMG on 14.07.05 (RUD-3). The said consignment was loaded from P.F. No.2 of LMG Station (RUD-3) and unloaded at NJP Station under the supervision of Shri Barua as per instructions of the said Shri Prasad (RUD-1, 8). This consignment was also not booked and did not have valid documents from the Forest Department accompanying it. It was also shifted inside the parcel cage where the previous 3 bundles of wooden parts were kept. These two consignments of wooden parts were unloaded at NJP by parcel clerk on duty, on 12.07.05 and 14.07.05 respectively (RUD-10 to 14) and were found without any Railway Mark, booking authority and Transit permit from the forest department (RUD-1). Moreover, LMG and NJP Stations are not nominated stations for dealing with wood (RUD-19).
The said Shri A.K. Prasad instructed Shri T. Barua, CCI/HQ/MLG to make all the wooden parts into furniture by the carpenter at NJP. Shri Prasad again instructed Shri Barua on 15.07.2005 through ACM/CP/MLG to complete the wooden work immediately and to dispatch them to NDLS by Rajdhani Express. The said Shri Prasad repeated the same instructions to Shri Barua on 01.08.05 and 02.08.05. Shri Barua communicated these instructions to the local officers and Area Railway Manager (ARM)/NJP (RUD-1).
On 05.08.05, as soon as the carpenter arrived and started his work at NJP Station, Shri H.D. Bhattacharya, IFP/SIB/NJP, came there and witnessed the unloaded wooden parts on the NJP platform which he confessed in his statement (RUD-21).
On 06.08.05, the said Shri Prasad instructed Shri Barua to dispatch these wooden parts by Train No.2505 DN.EX NJP to NDLS but, due to difficulty in loading, these could not be dispatched. Again, the said Shri Prasad instructed Shri Barua to dispatch these materials by Train No.3245 DN from NJP. Accordingly, all the 7 bundles of wooden parts were loaded in Front SLR No.EC-02713 (F/C) of 3245 DN and dispatched from NJP to PNBE on 06.08.05 (RUD-1,9,15).
This material, i.e., all the 7 poly bundles of wooden parts, was unloaded at PNBE by Shri Rabindra Prasad. Sr. Parcel Clerk/PNBE, in the presence of Shri R.D. Pathak, Pass Guard/Danapur, and kept in the Parcel Godown/PNBE (RUD-4, 16, 20). Measurement particulars of the wooden parts were submitted by the CS/P/PNBE on 03.02.2006 (RUD-17). The said material was burnt in a fire incident at Parcel Godown, Patna on 04.04.06 (RUD-18).
Article of Charge-2:
The said Shri A.K. Prasad engaged and mis-utilized the following Railway Staff for loading and transportation of the 3 (three) and 4 (four) poly bundles of wooden parts by Train No.4055 DN Ex LMG to NJP on 12.07.05 & 14.07.05 respectively
1. Shri T. Barua, CCI/HQ/MLG, was specifically engaged for transportation of the unbooked wooden consignment (RUD-1).
2. Shri S.N. Dey, HCC/T/LMG, loaded (3) three poly bundles of wooden parts in Rear SLR No.97703/A(F/C) of Train No.4055 DN at LMG on 12.07.05 with the remarks Do not touch this room only Railway Material (RUD-5), got it sealed and dispatched.
3. Shri T.K. Paul, HD CC/T/LMG, loaded the unbooked (4) four poly bundles of wooden parts in Rear SLR No.NR-99702/A(F&C) of Train No.4055 DN at LMG on 14.07.05 with the remarks Do not touch this room (RUD-6), & dispatched it with the seal of NJP/4.
In both the cases, the consignments were uploaded at NJP under the supervision of Shri Barua. CCI/HQ/MLG and kept inside the parcel cage situated on P.F. No.2 & 3 at NJP Station (RUD-1). Both stations i.e. LMG & NJP were restricted for booking of Wood (RUD-19). On 06.08.2005, as per orders of the CCO/MLG, the total 7 poly bundles of wooden parts were loaded in the Front SLR No.EC 02713 (F/C) by 3245 DN at NJP without any booking authority and valid documents from the Forest Department under the supervision of Shri Barua, CCI/HQ/MLG, and dispatched on same day (RUD-1). The same consignments were then unloaded at PNBE by the Parcel clerk on duty on 07.08.05 and kept in the parcel Godown (RUD-4, 16).
Article of Charge-3:
The said Shri A.K. Prasad deprived Railway of freight earnings by dispatching 7 poly bundles of wooden parts by 4055 DN, ex LMG to NJP in two lots of 3 & 4 poly bundles on 12.07.05 and 14.07.05 respectively; then, these 7 poly bundles were dispatched in Front SLR by 3245 DN. Ex NJP to PNBE on 06.08.05 without any booking authority and valid documents from the concerned Forest Department. Thus, total 7 poly bundles of wooden parts were got transported by the Railway system from LMG to PNBE as unbooked without paying any Railway dues. This was done for the personal gain of the Shri Prasad then CCO/NFR/MLG.
3. As the Applicant denied the aforesaid charges, an enquiry was held and the Inquiry Officer submitted his report on 18.08.2011. The findings of the Inquiry Officer were that none of the charges have been proved. The conclusions arrived at by the Inquiry Officer with regard to each of the charges were as under:-
Charge-I Conclusions: Thus the charge that CO had instructed many junior officials telephonically was seen to be not exactly a correct representation of the reality on ground.
Only one person Shri Tapan Barua, CCI/HQ/Maligaon had claimed that CO had given him instructions from time to time. This claim has however not supported by any evidence in a direct manner or could be corroborated otherwise.
XXX XXX XXX CONCLUSIONS: It has been established that there is no direct evidence of any involvement of CO for the movement of the bundles from LMG to NJP.
Shri Tapan Barua, CCI/HQ/MLG, the main witness from PO side, had however accused CO of forcing Shri Barua despatch the wood bundles from NJP to Patna.
The testimony of Shri Barua to Vigilance and at the inquiry has quite a few inconsistences and is such that the entire statement cannot be accepted as totally trustworthy and accurate. CO has claimed that the evidences presented at the inquiry establish beyond any doubt that the bundles of wood that was loaded at Lumding were not the one seized at Patna and hence he could not be accused of smuggling furniture quality wood to Patna.
IO feels that the statements of Shri Barua putting all blame on CO cannot be relied upon without at least one other confirmatory evidence from a source independent of Shri Barua.
XXX XXX XXX CONCLUSIONS: This charge of CO misusing his official position to transport 7 bundles of wood from Lumding to New Jalpaiguri and then to Patna has thus not been established beyond reasonable doubt.
CO might certainly enjoy a high status in his own organization but no tangible evidence was available to convince the inquiry that his writ ran all over the NFR as well as ECR. The score of front line staff who were in no way under his control, had participated in illegal actions knowing full well the possible consequences. All this was supposedly on the basis of their being told by someone that the wood bundles they were smuggling out without booking, belonged to CCO/MLG.
Even Shri Barua who was the only staff belonging to claims department (which was headed by CO), had no convincing answer during his testimony as to why he must follow illegal orders given by the CO over phone.
This behaviour of Shri Barua indicated a strong possibility that he had indulged in this illegal movement for reasons other than alleged telephonic messages from CO. May be, linkages possibly established over a long period, was at the root of so many staff participating in this fraudulent movement at the say so by Shri Barua.
Charge-II CONCLUSIONS: This charge of CO misusing his official position to transport 7 bundles of wood from Lumding to New Jalpaiguri and then to Patna has not itself been established and hence to raise the charge of CO engaging and misusing the score of Railway Staff for such act of his could not be acceptable.
Therefore, this part of the charge was not established beyond all reasonable doubt.
XXX XXX XXX CONCLUSIONS: This charge that CO had used his official standing to avoid booking his 7 bundles of wood as parcel because of his apprehensions that the violation of the existing ban on movement of forest product could have been detected later because of the paper trail is not a logical construction. The simple act of mis-declaration of the bundles as furniture would have been easier.
Moreover, the ownership of the bundles were not traced to CO. Also the rationale behind prosecution making a claim about COs ability to influence a large number of frontline staff not under his control to carry out a series of illegal acts on his behalf had no basis or logic and could not be simply accepted as normal for a person holding COs position in the system.
XXX XXX XXX CONCLUSION: This article of charge did not establish in absence of any basis for the allegation that CO had the ownership of the wood bundles and had expected to gain personally.
XXX XXX XXX CHARGE-3
CONCLUSION: This part of the article of charge did not establish in absence of any basis for the allegation that CO had the ownership of the wood bundles and had arranged for its transit from Lumding to Patna depriving Railways of freight charges due to it.
XXX XXX XXX CONCLUSION:
CO was accused of organizing smuggling of 7 bundles of banned wood from NJP to PNBE on basis of confessional statement of one Shri Barua who had actually been at the forefront of this illegal act.
In the investigation, ownership of the smuggled articles could not be traced to CO. Adequate evidence direct or indirect to link CO with the staff who had actually loaded or unloaded the bundles could be established. Only the unsupported testimony of Shri Barua was relied upon by the prosecution to prove its case while CO had demonstrated lack of any official jurisdiction on his part on the staff involved.
CCO/MLG i.e. CO was thus not shown to be liable for being blamed for any act of omission or commission that made the unauthorized carriage of 7 bundles from NJP to PNBE possible.
No association of CO could be established in this illegal act that was detected vigilance investigation. Lapses on the part of the CO as were pinpointed could not be sustained through the inquiry.
4. The Inquiry Officer summarized his findings as under:-
PART-7 : FINDINGS 7.0 The findings in respect of each article of charge are as follows:-
7.1 Article-I Not Proved
(i)Gave instructions to junior officials and got 3 + 4 poly bundles of wooden parts loaded ex LMG to NJP without booking & documents - Not proved.
(ii) Got the same 7 poly bundles moved to PNBE ex NJP in the same way Not proved.
7.2. Article-II Not Proved
(i) Misused official position and misutilise Railway staff to load 3+ 4 poly bundles of wooden parts at LMG ignoring ban in force Not proved.
(ii) Unloading at NJP and not observing commercial formalities for transit from LMG Not proved.
(iii) Reloading ex NJP to PNBE without following commercial formalities to escape the ban on booking of timber from LMG and NJP Not proved.
7.3 Article-III Not Proved
(i) Deprived Railways of due freight for moving 7 poly bundles from LMG to NJP & then to PNBE Not proved.
7.4 Article-III (part ii) Not Proved
(i) Lack of absolute integrity Not proved.
(ii) Lack of devotion - Not proved.
(iii) Acted in a manner unbecoming of a railway servant Not established.
5. However, the Disciplinary Authority, vide Memorandum No.E(O)I-2008/PU-2/NW/14 dated 18.04.2012, disagreed with the findings of the Inquiry Officer. The reasons given by the Disciplinary Authority in disagreeing with the findings on each of the Articles of Charges are as under:-
Article on Charge No.1 Shri Tapan Barua, the then Chief Claims Inspector, MLG/NFR has clearly submitted that while he was on NJP, he received a telephonic instruction from ACM/CP on 12.07.2005 and again on 14.07.2005 to unload bundles of wood dispatched from LMG. This statement of Shri Barua is supported by the statement of PW-10 Shri S.N. Dey that the then ACM/Claims himself asked him to load the packages (in reply to Q-2). Both these statements, taken as coalesced, divulge that that Shri Prasad instructed on phone to Shri Barua. Shri Tapan Barua has also submitted that he spoke spoke to CCO/MLG and informed about the consignments (in reply to Q-3). Shri Tapan Barua has further submitted (in reply to Q-4) that on telephonic instruction of CO given on 06.08.2005, these consignments were dispatched by 3245 Dn. Ex NJP to PNBE. Hence, the observation of IO that the charge that CO had instructed many junior officials telephonically was seen to be not exactly a correct representation does not hold ground.
Further, Shri Tapan Barua, CCI/HQ/MLG has clearly accused CO of forcing him dispatch the wood bundles from NJP to PNBE. In reply to Q-13, he has stated that he was working under him and did this illegal act due to his pressure. Hence, the contention of IO that there is no direct evidence of any involvement of CO for the movement of the bundles from LMG to NJP and Shri Barua putting all blame on CO cannot be relied upon without at least any other confirmatory evidence from a source independent of Shri Barua is not agreeable.
Regarding misuse of the official position by the CO, IO has found is not established beyond reasonable doubt. It is a fact that Shri Prasad has worked in ECR as Dy.COM from December, 1999 to October, 2002 and as Dy. CCM from October, 2002 to October, 2003 and then after he was posted over NFR. Hence, it was possible for him to get his materials carried from one place to another place without coming into picture directly.
Hence, the charge at Article-I tentatively deserves to be taken as proved.
Article of Charge No-2 Though, it is an admitted fact Shri Prasad did not personally order any staff who were involved in flouting the rules by way of carrying the said wooden bundles, yet the documentary and other evidences clearly prove that an unbooked consignment of 7 poly bundles of wooden parts was loaded on 12.07.2005 and 14.07.2005; loaded for PNBE on 06.08.2005 and unloaded at PNBE by 3245 for which records were maintained in the name of Shri A.K. Prasad and an Inspector of claims department was instructed to stay at NJP on 11.07.2005 to 14.07.2005 to supervise unloading and loading. All these evidences prove that CO misused his official position to transport 7 bundles of wood from LMG to NJP and then to PNBE.
IO has observed that simple act of mis-declaration of the bundles as furniture would have been easier to avoid the charge of violation of ban on forest products. As the existing ban on booking was known to parcel staff it would have been difficult to get the packages booked after mis-declaration. Hence, the contention of IO that simple act of mis-declaration of the bundles as furniture would have been easier, does not seem to be rational. It is clear that commercial formalities were not followed in order to prevent generation of any records which could have ensured detection of violation of the existing ban on booking of wood at LMG and NJP.
As records related to unloading and subsequent loading were maintained in the name of Shri A.K. Prasad and an Inspector of claims department was instructed to stay at NJP on 11.07.2005 to 14.07.2005 to supervise unloading and loading, it is clear that this was done for the personal gain of Shri Prasad.
Hence, the charge at Article-2 tentatively deserves to be taken as proved.
Article of Charge-3 As mentioned hereinabove, all documentary evidences and statement of PWs clearly indicate that the said wood bundles in question were belonging to Shri Prasad and he has arranged its unloading and transshipment from LMG to NJP and further from NJP to PNBE though without observing commercial formalities and thereby, he deprived of freight charges due on it.
Hence, the charge at Article-3 tentatively deserves to be taken as proved.
6. The Applicant submitted a detailed representation against the disagreement note to the Disciplinary Authority. He has stated that the notings of the Disciplinary Authority that Shri S.N. Dey (PW-10) stated that the then ACM/Claims asked him to load the packages is nothing but distortion and misrepresentation of facts. What Shri S.N. Dey had stated was that ACM/Claims had asked him to load wood, but for Patna which he claims he did. He denied having loaded any wood for New Jalpaiguri. He has also stated that Shri Tapan Barua himself has been accused by the Railways own witness, Shri T.K. Paul (PW-9) of having ordered loading of wood for New Jalpaiguri and, therefore, his statement is not acceptable as per law. Even otherwise the fact was that Shri Tapan Barua was accused of getting wood transported from Lumding but he was trying to put all the blame on the Applicant. He has also stated that the reasons for disagreement with IOs findings were not based on facts. None of the PWs excepting Shri Barua have named him. Thereafter, the Disciplinary Authority (the Railway Board) passed the impugned order No.E(O)I-2008/PU-2/NW/14 dated 22.06.2012 imposing upon him the penalty of reduction in pay scale in same grade by two stages for a period of 3 months without cumulative effect. The Disciplinary Authority reiterated that Shri Tapan Barua, the then Chief Claims Inspector, MLG/NFR has clearly submitted that while he was NJP, he received a telephonic instruction from ACM/CP on 12.07.2005 and again on 14.07.2005 to unload bundles of wood dispatched from LMG and the said statement of Shri Barua was supported by the statement of Shri S.N. Dey, Commercial Clerk (Transit) of Lumding station that the then ACM/Claims himself asked him to load the packages. Further, Shri Tapan Barua, CCI/HQ/MLG clearly accused CO of forcing him dispatch the wood bundles from NJP to PNBE. As regards misuse of the official position by the CO, the Disciplinary Authority held that it was possible for him to get his materials carried from one place to another place without coming into picture directly. Further according to the Disciplinary Authority, all documentary evidences and statement of PWs clearly indicate that the said wood bundles in question were belonging to the Applicant and he has arranged its unloading and transshipment from LMG to NJP and further from NJP to PNBE though without observing commercial formalities and thereby, he deprived of freight charges due on it. It was also indicated in the said order that the Applicant has a right to prefer an appeal against the order within 45 days of receipt of this order in terms of Railway Servants (Discipline & Appeal) Rules, 1968. The Applicant made an appeal dated 03.07.2012 against the aforesaid order of the Disciplinary Authority to the President (Appellate Authority). The Appellate Authority sought advice of the UPSC in the matter. They gave its advice vide their letter dated 10.06.2013. According to the said advice, the UPSC examined the case record and considered that all the three charges have been proved. The UPSC has also stated in its advice that Shri Tapan Barua, CCI/HQ/MLG has clearly accused the CO/Appellant of forcing him to dispatch the wood bundles from NJP to PNBE. Regarding misuse of the official position by the Applicant, the UPSC observed that it was possible for him to get his materials carried from one place to another place without coming into picture directly. The UPSC has, therefore, concluded that the charge has been proved. On accepting the advice of the UPSC, the Appellate Authority, vide its order No.E(O)I-2013/AE-3/NWR/09 dated 04.10.2013, dismissed the aforesaid appeal of the Applicant.
7. The learned counsel for the Applicant Ms. Ayushi Kiran has challenged the orders of the Disciplinary Authority disagreeing with the report of the Enquiry Officer, order of the Disciplinary Authority imposing punishment upon the Applicant, the advice of the UPSC holding that the charges have been proved and the order of the Appellate Authority rejecting the Applicants Appeal, on various grounds. One of the grounds taken by the learned counsel for the Applicant was that there was inordinate delay in finalizing the proceedings in this case. In this regard she has submitted that the alleged incident against which the enquiry held relates to July, 2005 but the disciplinary proceedings was initiated only on 07.08.2008 and the Disciplinary Authority has passed the order imposing the penalty of reduction in pay scale in same grade by two stages for a period of 3 months with cumulative effect only on 22.06.2012. In other words, for nearly 4 years, the Applicant was tied up with the disciplinary proceedings and for the last 11 years his case is being kept in the secret list. In this regard the Applicant has relied upon the judgment of the Apex Court in the case of Abdul Rehman Antulay etc. etc. Vs. R.S. Nayak and Another etc. etc. (1992) 1 SCC 255. The relevant part of the said judgment reads as under:-
54. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are:
1. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
2. Right to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how this Court has understood this right and there is no reason to take a restricted view.
3. The concerns underlying the Right to speedy trial from the point of view of the accused are:
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.
4. At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accusd lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is -who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/ petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not a frivolous. Very often these stays obtained on ex parte representation.
5. While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses the work-load of the court concerned, prevailing local conditions and so on - what is called, the systematic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
6. Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been Observed by Powell, J. in Barker "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same ideal has been stated by White, J. in U. S. v. Ewell, (1966) 15 Law Ed 2d 627, in the following words:
"the sixth amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances."
However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.
7. We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the Court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in U.S.A., the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.
8. Ultimately, the Court has to balance and weigh the several relevant factors - 'balancing test' or 'balancing process' - and determine in each case whether the right to speedy trial has been denied in a given case.
9. Ordinarily speaking, where the Court comes to the conclusion that Right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order -Including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded - as may be deemed just and equitable in the circumstances of the case.
10. It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of Right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the Court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of U. S.A. too has repeatedly refused to fix any such outer time limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.
11. An objection based on denial of Right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court, must, however, be disposed of on a priority basis.
8. The aforesaid judgment has also been relied upon by the Apex Court in the case of State of Punjab & Others Vs. Chaman Lal Goyal JT 1995 (2) SC 18 wherein it has been held as under:-
12. The principles to be borne in mind in this behalf have been set out by a Constitution Bench of this Court in A.R.Antulay v. R.S.Nayak & Anr. (1992 (1) S.C.C.225). Though the said case pertained to criminal prosecution, the principles enunciated therein are broadly applicable to a plea of delay in taking the disciplinary proceedings as well. In paragraph 86 of the judgment, this court mentioned the propositions emerging from the several decisions considered therein and observed that "ultimately the court has to balance and weigh the several relevant factors - balancing test or balancing process - and determine in each case whether the right to speedy trial has been denied in a given case". It has also been held that, ordinarily speaking, where the court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed. At the same time, it has been observed that that is not the only course open to the court and that in a given case, the nature of the offence and other cir- cumstances may be such that quashing of the proceedings may not be in the interest of Justice.. In such a case, it has been observed, it is open to the court to make such other appropriate order as it finds just and equitable in the circumstance of the case.
9. Further, she has relied upon the judgment of the Honble High Court of Delhi in the case of Union of India Vs. Yateendra Singh Yadav W.P. ( C) No.8171/2008 and Another decided on 02.07.2012. The relevant part of the said judgment reads as under:-
32. In A.R. Antulay v. R.S. Nayak and Anr. AIR 1992 SC 1701, the Supreme Court?s Constitution Bench in paragraph 54 of the judgment had considered the propositions emerging from several decisions and observed that "ultimately, the court has to balance and weigh the several relevant factors - "balancing test" or "balancing process" - and determine in each case whether the right to speedy trial has been denied in a given case". It has also been held that, ordinarily speaking, where the Court comes to the conclusion that right to speedy trial of the accused has been infringed the charges or the conviction, as the case may be, will be quashed. At the same time, it has been observed that that is not the only course open to the court and that in a given case, the nature of the offence and other circumstances may be such that WP(C) 8171 & 8423 of 2008 Page 20 of 39 quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to the court to make such other appropriate order as it finds just and equitable in the circumstances of the case.
33. Similarly, in the case of State of Punjab and Ors. Vs. Chaman Lal Goyal (1995) 2 SCC 570 the delay was taken into consideration and the principles enunciated in the case of A.R. Antulay (supra) were reiterated and it was held that "it is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are-committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted, Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing."
10. The learned counsel for the Applicant has also referred to the letter No.OOO/VGL/18 dated 23.5.2000 whereby the schedule of time limits in conducting investigations and departmental inquiries has been fixed. According to the aforesaid schedule, the disciplinary proceedings against an employee has to be completed within a fixed time schedule and the maximum period for that purpose is one year and 3 months. The time schedule fixed by the CVC is as under:-
S.No. State of Investigation or inquiry Time Limit
1. Decision as to whether the complaint involves a vigilance angle. One month from receipt of the complaint
2. Decision on complaint, whether to be filed or to be entrusted to CBI or to be taken up for investigation by departmental agency or to be sent to the concerned administrative authority for necessary action. -do
3. Conducting investigation and submission of report. Three months
4. Departments comments on the CBI reports in cases requiring Commissions advice. One month from the date of receipt of CBIs report by the CVO/Disciplinary Authority.
5. Referring departmental investigation reports to the Commission for advice. One month from the date of receipt of investigation report.
6. Reconsideration of the Commissions advice, if required. One month from the date of receipt of Commissions advice.
7. Issuance of charge sheet, if required. (i)One month from the date of receipt of Commissions advice.
(ii)Two months from the date of receipt of investigation report.
8. Time for submission of defence statement. Ordinarily ten days or as specified in CDA Rules.
9. Consideration of defence statement. 15 (Fifteen) days.
10. Issue of final orders in minor penalty. Two months from the receipt of the defence statement.
11. Appointment of IO/PO in major penalty cases. Immediately after receipt and consideration of defence statement.
12. Conducting departmental enquiry and submission of report. Six months from the date of appointment of IO/PO.
13. Sending a copy of the IOs report to the Charged Officer for his representation. (i) Within 15 days of receipt of IOs report if any of the Articles of charge has been held as proved;
(ii) 15 days if all charges held as not proved. Reasons for disagreement with IOs findings to be communicated.
14. Consideration of COs representation and forwarding IOs report to the Commission for second stage advice. One month from the date of receipt of representation.
15. Issuance of orders on the Inquiry report. (i) One month from the date of Commissions advice.
(ii) Two months from the date of receipt of IOs report if Commissions advice was not required.
11. Second ground adduced by the learned counsel for the Applicant is that the vested interests were working against Applicant. She has submitted that during the period from 26.10.2004 to 26.04.2007, the Applicant has offered his best performance in the Indian Railways. She further submitted that because of his good work, additional work of coaching refund was allotted to him by the General Manager. He has brought down the pendency of cases from 20,110 as on 01.04.2005 to 1,952 as on 31.03.2007. Such large scale disposal of pending cases has also antagonized the vested interest.
12. Further, the learned counsel for the Applicant has submitted that none of the prosecution witnesses except Shri Tapan Barua has deposed against the Applicant in the enquiry proceedings. As Shri Tapan Barua was an interested witness, his depositions could not be relied upon. The Enquiry Officer has also held that the deposition made by Shri Barua against the Applicant was never corroborated by any other witnesses. In this regard she has referred to the detailed order sheets in the enquiry proceedings. Shri S.K. Das, Senior Goods Guard who was a prosecution witness has submitted very clearly that he has not seen the consignment that was loaded at LMJ. He has also stated that he had no idea to whom the consignment belonged. The prosecution witness Shri A.K. Rabha has stated that apart from three bundles of wooden pack there were four other bundles meant for Patna. No inquiry was conducted in respect of the other four bundles. Shri A.K. Rabha, has also deposed that Shri Barua CCO/MLG was supervising the unloading. He has also made a statement that Shri Tapan Baura identified the consignment and told the officials present there that those bundles belonged to CCO/MLG, i.e., the Applicant. Shri B.C. Mashahary has also deposed that it was Shri Tapan Barua who has implicated the Applicant. Thus, according to the Applicant, the entire conspiracy was hatched by Shri Barua.
13. As regards the disagreement note, the learned counsel for the Applicant has submitted that the Disciplinary Authority has arbitrarily disagreed with the findings of the Inquiry Officer who submitted his report holding that none of the charges have been proved against the Applicant. When the aforesaid findings are based on evidence adduced before the Inquiry Officer, the Disciplinary Authority could not have taken a different view. In this regard the learned counsel for the Applicant has relied upon the judgment of the Honble High Court of Delhi in the case of Jaibir Singh Vs. Director General, CISF Delhi Law Time 431. The relevant part of the said judgment reads as under:-
18. In this view of the matter, we find that there was no justification whatsoever with the Disciplinary Authority to have disagreed with the well considered findings of the Inquiry Officer of the charges having been not proved. It is not the stand of the Disciplinary Authority or the Appellate Authority that the findings of the Inquiry Officer are contrary to the evidence on record. Rather we find that the evidence on record clearly exonerates the petitioner and the Inquiry Officers report is well founded and has been unduly interfered with by the Disciplinary Authority without any valid justification. Consequently, we hold that the final order of 15.12.1997 Annexure P-1 imposing penalty of compulsory retirement as well as the Appellate order of 13.05.1998 upholding it, are patently perverse and are accordingly quashed.
In this regard she has also relied upon the judgment of the Apex Court in the case of Punjab National Bank and Others Vs. Kunj Behari Mishra 1998 (7) SCC 84 wherein it has been held that the Disciplinary Authority has not given any reason to disagree with the conclusions arrived at by the Inquiry Officer. The relevant part of the said judgment reads as under:-
14. In Ram Kishan's case (supra) disciplinary proceedings on two charges were initiated against Ram Kishan. The inquiry officer in his report found the first charge not proved and the second charge was partly proved. The disciplinary authority disagreed with the conclusion reached by the inquiry officer and a show cause was issued as to why both the charges should not be taken to have been proved. While dealing with the contention that the disciplinary authority had not given any reason in the show cause to disagree with the conclusions reached by the inquiry officer an that, therefore, the findings based on that show cause notice was bad in law, a Two-Judge Bench at page 161 observed as follows:
" ... The purpose of the show-cause notice, in case of disagreement with the findings of the inquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report of he may offer additional reasons in support of the findings by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show-cause notice it amount to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect."
14. The learned counsel for the Applicant has also submitted that the Disciplinary Authority was totally biased against the Applicant because he had earlier approached the Jaipur Bench of this Tribunal vide OA No.68/2010 seeking a direction to quash and set aside Memorandum of Charges dated 07.08.2008 and to dispose of his representation dated 23.09.2009 but the said OA was disposed of vide order dated 04.01.2011 with the following directions:-
4. With these observations, the OA shall stand disposed of at the admission stage with no order as to costs.
5. Applicant further submits that since the nature of charges are not such which do not warrant placing of his name in secret list as such his name be deleted from the secret list, suffice it to say that we do not wish to go into this aspect of the matter at this stage. However, the Applicant may take representation to the appropriate authority regarding this aspect within a period of two weeks from today and in that eventuality the appropriate authority shall consider the same within a period of six weeks from the date of receipt of a copy of the representation.
As the Respondents have not complied with the aforesaid order, he has to approach this Tribunal again vide CP No.14/2012 which was also disposed of vide order dated 04.07.2012 and its relevant part is as under:-
This Tribunal vide its order dated 04.01.2011 passed in OA No.68/2010 had directed the Respondents to decide the representation so made by the Applicant before the appropriate authority within a period of six weeks from the date of receipt of a copy of the representation.
It is not disputed by the Applicant, as is evident by documents submitted through MA No.187/2012, that an order has been passed in compliance of the order dated 04.01.2011 passed by this Tribunal. It is also not disputed that vide letter dated 26.04.2012, the representation of the Applicant has been rejected by the respondents. The respondent contemnors have also tendered their unconditional apology for the delay in deciding the representation of the Applicant.
Having heard the applicant present in person and the learned counsel for the respondents, Mr. V.S. Gurjar. Since the Respondents have complied with the order dated 04.01.2011 passed by this Tribunal, we find no element of deliberate disobedience by the Respondents.
Accordingly, the Contempt Petition stands dismissed. Notices issued to the Respondents stand discharged.
It has for the aforesaid reason that the Disciplinary Authority was inimical to her. In this regard she has relied upon the judgment of the Apex Court in the case of State of Punjab Vs. V.K. Khanna and Others AIR 2001 SC 343.
In this regard, the learned counsel for the Applicant has relied upon the judgment of the Apex Court in the case of Rattan Lal Sharma Vs. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and Others AIR 1993 SC 2155 wherein it has been held that the deciding authority shall be impartial and without any bias. The relevant part of the said judgment reads as under:-
"One of the cardinal principles of natural justice is : Nemo debetesse judex in propria causa (No man shall be a judge in his own cause). The deciding authority must be impartial and without bias, It has been held by this Court in Secretary to Government Transport Department v. Munuswamy [1988] Suppl SCC 651 that a predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias. Personal bias is one of the three major limbs of bias namely pecuniary bias, personal bias and official bias. A classic case of personal bias was revealed in the decision of this Court in state of U.P. v. Mohd. Nooh [1988] SCR 595. In the said case, a departmental enquiry was held against an employee. One of the witnesses against the employee turned hostile. The officer holding the enquiry then left the enquiry, gave evidence against the employee and there after resumed to complete the enquiry and passed the order of dismissal.This Court quashed the order of dismissal by holding inter alia that the rules of natural justice were grievously violated.
Further, she has relied upon a judgment of the Apex Court in S. Pratap Singh Vs. The State of Punjab AIR 1964 SC 72 in which it has been held that the statutory authority should not act in bad faith or with corrupt motives. The relevant part of the said judgment reads as under:-
8. In the same case Warrington, L.J., said :
"No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives and any action purporting to be that of the body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative. It may be also possible to prove that an act of the public body, though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body, and therefore inoperative. It is difficult to suggest any act which would be held ultra vires under this head, though performed bona fide.
15. The Respondents have filed their reply. Their contention is that the disciplinary enquiry against the Applicant was conducted in accordance with the Rules. The Disciplinary Authority has rightly disagreed with the findings of the Inquiry Officer. He submitted a tentative disagreement note and the representation submitted by the Applicant was duly considered but the Disciplinary Authority came to the conclusion that the charges against the Applicant have been proved. They have also submitted that the UPSC, which is an Expert Body, has duly considered the case of the Applicant and recommended that he should be suitably punished. The Disciplinary Authority has imposed the punishment after tendering of the advice by the UPSC. The learned counsel for the Respondents Shri V.S.R. Krishna has also submitted that Applicant has alleged mala fides against the Disciplinary Authority without any basis. On the other hand, the learned counsel for the Respondents submitted that the punishment imposed upon the Applicant was based on evidence and not on any extraneous considerations. He has also submitted that the Appellate Authority has duly considered the case of the Applicant in consultation with the UPSC and found that there was no merit in his appeal. Accordingly, the same was dismissed.
16. We have heard the learned counsel for the Applicant Ms. Ayushi Kiran and the learned counsel for the Respondents Shri V.S.R. Krishna and Shri Rajinder Khatter. The charges against the Applicant in brief are that (1) he gave instructions to junior officials and got 3 + 4 poly bundles of wooden parts loaded ex LMG to NJP without booking & documents, (ii) he got the same 7 poly bundles moved to PNBE ex NJP in the same way, (iii) he misused official position and misutilise Railway staff to load 3+ 4 poly bundles of wooden parts at LMG ignoring ban in force, (iv) For unloading at NJP to PSNB he did not observe commercial formalities for transit from LMG, (v) For reloading ex NJP to PNBE he did not follow commercial formalities to escape the ban on booking of timber from LMG and NJP, (vi) he deprived Railways of due freight for moving 7 poly bundles from LMG to NJP & then to PNBE and (vii) he had shown lack of absolute integrity, lack of devotion and acted in a manner unbecoming of a railway servant. Further, according to the charge, the Applicant instructed Shri T. Barua, CCI/HQ/MLG, from time to time for the transportation of those bundles. The crux of the charge is that the Applicant got 7 bundles of wooden parts loaded ex LMG to NJP through his junior officials without booking and documents. The Enquiry Officer held a very detailed enquiry in the matter and came to conclusion that the none of the aforesaid charges leveled against the Applicant have been proved. The Enquiry Officer has held very specifically that the charge that CO had instructed many junior officials telephonically was seen to be not exactly a correct representation of the reality on ground. He has also held that only one person Shri Tapan Barua, CCI/HQ/Maligaon had claimed that CO had given him instructions from time to time. This claim has however not supported by any evidence in a direct manner or could be corroborated otherwise. Further according to the Enquiry Officer, the statements of Shri Barua were not trustworthy to be relied upon as he had no convincing answer during his testimony as to why he must follow illegal orders given by the CO over phone. It was also been held that the behaviour of Shri Barua indicated a strong possibility that he had indulged in this illegal movement for reasons other than alleged telephonic messages from CO. From the aforesaid conclusions arrived at by the Enquiry Officer, it is manifestly clear that the allegations made against the Applicant were false and Shri Tapan Barua was the person behind them and they have been made to purposely implicate the Applicant. In fact the integrity of Shri Barua itself is in doubt as he himself admitted that he followed the alleged illegal orders given to him by the Applicant. That was the reason why the Enquiry Officer submitted in his report that the behaviour of Shri Barua indicated strong possibility that he had been indulging himself in the illegal movement and he had the linkage established over a long period. But the Disciplinary Authority disagreed with the report of the Enquiry Officer relying on the very same deposition of Shri Tapan Barua that he received a telephonic instruction from the Applicant to unload bundles of wood dispatched from LMG. Again the Disciplinary Authority in his disagreement note said Shri Tapan Barua, CCI/HQ/MLG has clearly accused CO of forcing him dispatch the wood bundles from NJP to PNBE. Thereafter, the Disciplinary Authority assumed that it was possible for him (Applicant) to get his materials carried from one place to another place without coming into picture directly. In our considered view, when the Enquiry Officer who understands the ground reality more than anyone else, has held that the statements of Shri Tapan Barua was not trustworthy for the reasons that emerged from the enquiry itself and the charges have not been proved, the Disciplinary Authority cannot rely on the very same statement of Shri Barua and hold that the charges have been proved. The Enquiry Officer who conducted the enquiry after considering all aspect of the case, is the best judge to say whether charge has been proved or not. Unless his findings are biased, mala fide, arbitrary and contrary to the prescribed procedure, the reasons given by the Enquiry Officer cannot be rejected that too on the ground there was the possibility for the Applicant to commit the misconduct alleged in the Articles of Charge. The Disciplinary Authority failed to give any reasons as to why the findings of the Enquiry Officer that the statements of Shri Tapan Barua was not trustworthy was wrong. Such a disagreement note can be treated as only arbitrary and whimsical. In view of the above position, the disagreement note of the Disciplinary Authority and its order imposing the penalty upon the Applicant are illegal and liable to be rejected. The Union Public Service Commission has also in its advice to the Appellate Authority held in an arbitrary manner that the charges against the Applicant have been proved. The Appellate Authority has simply followed the Commissions advice without any application of mind and rejected the appeal of the Applicant. We also observe that there was inordinate delay in finalizing the disciplinary proceedings initiated against the Applicant. The Articles of Charge issued to the Applicant on 07.08.2008 took over five years for its culmination in the Appellate Authoritys order dated 04.10.2013 whereas the CVC had prescribed a period of maximum of only one year and 3 months for an enquiry proceedings to be completed in all respects.
17. In view of the above facts, circumstances and legal position, we allow this OA. Consequently, the impugned order of the Disciplinary Authority dated 22.06.2012 and the Appellate Authoritys order dated 04.10.2013 are quashed and set aside with all consequential benefits. The Respondents shall also pass appropriate orders in implementation of the aforesaid directions within a period of two months from the date of receipt of a copy of this order. No costs.
(P.K. Basu) (G. George Paracken) Member (A) Member (J) Rakesh