Central Administrative Tribunal - Delhi
Kunwar Fateh Singh vs Union Of India Through on 28 January, 2015
Central Administrative Tribunal Principal Bench OA No.63/2011 Reserved On:07.01.2015 Pronounced On:28.01.2015 Honble Mr. G. George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Kunwar Fateh Singh S/o Shri Tannu Singh R/o 1294, Old Vijay Nagar, Sector-9, Ghaziabad. Applicant By Advocate: Shri Yogesh Sharma. Versus 1. Union of India through, The General Manager, Northern Railway, Baroda House, New Delhi. 2. Deputy Chief Personnel Officer, Northern Railway Head Quarter, Baroda House, New Delhi. Respondents By Advocate: Shri R.N. Singh. ORDER
Honble Mr. G. George Paracken, Member (A) The Applicant has filed this Original Application challenging the Charge Memo dated 08.12.2009 issued by the second Respondent to him in which it has been alleged that he failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a Government servant. The draft Articles of Charges on the basis of which action under Railway Servants (Discipline & Appeal) Rules, 1968 was proposed to be initiated against him reads as under:-
The Ministry of Railways had initiated a job linked vocational course in Railway commercial working (VCRC) started from 1991-92. The candidates who passed the course by securing at least 55% (45% in case of SC/ST&OBC) in Railway Commercial Working as well as in the aggregate in the subject a) English, b) Business Study or a 2nd language offered by the school, c) Railway Commercial Working, d) Economics & Accountancy, were offered appointment as commercial clerks & ticket collectors on Railways in scale Rs.950-1500. The student had the option to study an additional subjects out of the following electives (except the one offered in lieu of the second language).
1. Mathematics
2. Business studies (If not already offered in lieu of the second language).
3. Introductory computer Science
4. Psychology Shri K.F. Singh, while working as S. W.L.I. was responsible for making the list of the candidates while processing the case for appointment as per the Railway Boards guidelines under VCRC. In the following six cases he did not make the list as per Railway Boards guidelines and took into consideration the marks of additional subjects for calculating the aggregate marks. As a result of which the following eight candidates who were not eligible were considered for appointment on Railway:-
S.No. Name of the candidates Category Minimum aggregate % required as per Boards guide lines Aggregate % obtained by candidates
1.
S/Shri Shalendra Kumar OBC 45 43.2
2. Yogendra Kumar General 55 54.4
3. Nagendra Pratap Yadav OBC 45 41.8
4. Km. Nahida General 55 41.4
5. Dhirendra Singh OBC 45 42.3
6. Jang Bahadur SC 45 43
7. Vinod Bhagat ST 45 43
8. Manish Kumar Patel OBC 45 42.9.
2. The list of documents and the list of witnesses on the basis of which the aforesaid Articles of Charges were proposed to be proved are as under:-
List of Documents 1. Statement of Shri K.F. Singh dated 21.06.2007.
2. Copy of Railway Boards letter dated E(W)/89/ED 1-13 dated 16.11.1990.
2/1. Copy of the guidelines/instructions issued by Railway Board on VCRC.
2/2. Railway Boards letter No.E(W)92ED1-7(RBE No.125/92 dated 28.07.1992).
2/3. Railway Boards letter No.R(W)89ED1-13 (Vol.III) dated 12.04.1993.
2/4. Railway Boards letter No.E(W)92ED1-7 dated 31.05.1993.
2/5. Railway Boards letter No.E(W)95ED-1-10 dated 20.12.1995.
3. Copy of statement of marks of candidates prepared by Shri K.F. Singh except Km. Nahida (PP-14 to 21, 27 to 30, 74 to 76, 105 to 106 and SN-43 & 50 of file No.220E/1878/Pt.XIII/A/Rectt.
4. Copy of the results of all candidates issued by the Principal SBBMS Vidhyalay, Shankarachary Marg, New Delhi.
List of Witnesses 1. Shri H.C. Yadav, CVI/NR/HQ.
He has also challenged the subsequent Corrigendum dated 01.09.2011 deleting the word draft from the aforesaid Articles of Charges.
3. The brief facts of the case: Earlier, the second Respondent issued Memorandum dated 26.05.2006 under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 to the Applicant. Along with the same, it forwarded a copy of the statement of Articles of Charge in respect of which action was proposed to be taken against him which reads as under:-
That Shri K.F. Singh while working in Recruitment Section during 2001-2005 committed misconduct in as much as he has made appointments of 11 such candidates under scheme of vocational course in Railway Commercial who obtained less than 55% marks (45% in case of SC/ST/OBC) in aggregate in prescribed subjects excluding additional subject in contravention of Railway Boards instructions issued for scheme.
By his above action of omission and commission said Shri K.F. Singh failed to maintain devotion to duty and acted as unbecoming of a Railway Servant thereby contravened Rule 3(1) (ii) & (iii) of Railway Services (Conduct) Rules 1966.
4. The statement of imputation of misconduct in support of aforesaid Articles of Charges issued along with the aforesaid Memorandum was as under:-
That Shri K.F. Singh/PI, was working in Recruitment Section during 2001-2005 when VCRC Scheme was already in start at this Railway, in terms of Para 7.1 and 7.2 of Scheme introduced for Vocational Course in Railway Commercial and Railway Boards letter No.E(W) 89 ED-1-13 (Vol-III) dated 12-04-93 the subjects of study for the course are :
a) English
b) A Second Language offered by the School OR Business Studies.
c) General Foundation Course*
d) Railway Commercial Working (Theory & Practical)
e) Economics
f) Accountancy
g) Physical & Health Education* The students have the option to study an additional subject, out of the following electives (except the one offered in lieu of the second language):-
(i) Mathematics
(ii) Business Studies (if not already offered in lieu of the second language).
(iii) Introductory Computer Science.
(iv) Psychology * Subject to internal assessment.
As per Para 10 of scheme & Railway Boards letter No.E(W) 95 ED-1-10 dated 20-12-95 students who pass the course by securing at least 55% (45% in case of SC/ST/OBC) in Railway Commercial working as well as in the aggregate in the subjects at alphabet numbers a, b, d, e & f mentioned above are offered appointment as Commercial Clerks or Ticket Collector on the Railways in scale of pay Rs.975-1530 and Rs.950-1500 plus other admissible allowances at the rates specified from time to time.
It has been clarified in one case Railway Boards letter No. E(W) 2003 ED-1-21 dated 10-06-04 that under VCRC Scheme candidates has to secure the prescribed percentage of marks with in the specified time schedule in the compulsory subjects for the purpose of appointment on the Railways. CBSEs clarification to take percentage of any best five subjects for arriving at required percentage of marks is meant to other streams of study, which is not applicable to Railways.
On going through the records from 1999-2000 onward, it is noticed that 18 VCRC Candidates who pass the course by securing less than at least 55% (45% in case of SC/ST/OBC) in the aggregate in the Subjects at alphabet numbers a, b, d, e & f mentioned above have been offered appointment as Ticket Collector on Northern Railway in scale 950-1500/3050-4590 erroneously by counting the marks obtained in optional subjects also showing overall 55% (45% in case of SC/ST & OBC).
That said Shri K.F. Singh while working as SWLI in Recruitment Section, have made the appointment of following VCRC candidates as Ticket Collector Grade Rs.3050-4590 who secured less than 55% (45% for SC/ST/OBC) marks in aggregate in contravention to the instructions mentioned in the foregoing paragraphs on the subject.
S. No. Name of the Candidate Cate-gory Year (RRB) English / (A) Hindi Business Studies (B) Rly Commt WKG. (D) Eco (E) ACC (P) Total marks out of 500 %age of marks Appointment offered Letter No. Date 1 Shallendra Kumar OBC 1998-99 26/38 47 47 35/41 43 216 43.2% TC/MB 220/E/ 1878/Pt XII/A/ Rect dt.3.1.02 2 Yogendra Kumar 1998-99 43/49 66/61 68 39/57 49 272 64.4% TC/MB 220/E/ 1878/Pt XII/A/ Rect dt.3.1.02 3 Nagendra Pratap Yadav OBC 1997-98 42 48 47 04/39 33 209 41.8% TC/MB 220/E/ 1878/Pt XII/A/ Rect dt.15.3.02 4 Km. Nahida D/O Niaz Ahmed OBC 1996-97 47 33 57 24/35 35 207 41.4 TC/MB (OA No.2138/2k dated 26.7.01) 220E/ 1878/Pt XII/Court Case/Rect dt.16.3.02 5 Dhirender Singh S/o Jeevan Singh OBC 1998-99 35 33 54 43 49 214 42.8 TC/MB 220/E/ 1878/Pt XII/A/ Rect dt.3.1.02 6 Jang Bhadur S/O Jagar Nath Ram SC 1999-2000 41 44 53 36 41 215 43 TC/MB DO 7 Jitendra Singh S/O Brij Raj Singh 1997-98 46 51 57 50 45 249 49.8 TC/MB 220/E/ 1878/Pt XII/A/ Rect dt.03.1.02 8 Vinod Bhagat S/O Jag Mohan Ram Bhagat ST 1999-2K 34 45 51 38 47 215 43 TC/DLI DO 9 Manish Kumar Patel OBC 1997-98 36 37 48 36 25/ 23/ 57 214 42.8% TC/MB 220/E/ 1878/Pt XII/A/ Rect dt.21.4.03 10 Rameshwar Prasad S/O Birju Ram OBC 1999-2000 41 20 49 33 51 194 38.8 TC/LKO 220/E/ 1878/Pt IV/ Rect dt.18.5.05 11 Diresh Kumar Genl.
1994-95 39 75 Sanskrit 63 33 42 262 60.4 TC/UMB 220/E/ 1878/Court case/ Rect dt.28.12.04 CWP still pending with HC/ALD By the above act, he has violated Rule 3(1)(ii) & (iii) of the Railway Services (Conduct Rules), 1966.
(Mahavir Singh) Dy. C.P.O.(R)
5. The list of documents and the list of witnesses by which the aforesaid Articles of Charges were proposed to be proved were as under:-
List of documents 1. Scheme of Vocational Course in Railway Commercial.
2. Railway Boards letter No.E(W)89ED1-13 (Vol.III) dated 12.04.1993.
3. Railway Boards letter No.E(W)95ED1-10 dated 20.12.1995.
4. Railway Boards letter No.E(W)2003ED1-21 dated 10.06.2004.
List of Witness Nil.
6. The Applicant challenged the aforesaid Charge Memorandum before this Tribunal vide OA No.1897/2006. During the pendency of the said OA, the Respondents issued Order No.E-142/676-A dated 02.11.2006 stating that in the matter of irregular appointment under Scheme of Vocational Course in the Railway Commercial Scheme has been taken up by the Vigilance Organisation and the investigation was still going on. Therefore, they have decided to withdraw the major penalty charge sheet issued to the Applicant vide Memorandum dated 26.05.2006 without prejudice to the right of the Department to take further action in the matter and to issue fresh charge sheet.
7. It is in the aforesaid background that the Respondents have issued the fresh charge sheet vide the impugned Memorandum dated 08.12.2009.
8. The Applicant has challenged the aforesaid Memorandum mainly on the grounds of (i) inordinate and unexplained delay in issuing the charge sheet, (ii) the charges have not been framed by the Disciplinary Authority but it has been issued on the dictates of the Vigilance Organisation and (iii) the charges levelled against him itself is not maintainable as he has not committed any misconduct in the matter.
9. As regards the question of delay is concerned, he has stated that it is apparent from the Articles of Charge itself that the alleged incident had occurred during the period 1991-92. The first Charge Memorandum was issued to him on 26.05.2006, i.e., after a delay of more than 14 years. Withdrawing the said charge sheet, the Respondents took another 3= years to issue the fresh charge on the same incident vide memo dated 08.12.2009. According to him, there is no reason whatsoever for the Respondents to take such a long time in issuing the charge memo to him. He has also stated that such inordinate delay in subjecting him into the disciplinary proceedings is prejudicial to him as he was not in a position to make his defence against the charges levelled against him.
10. As regards the Articles of Charges are concerned, he submitted that they are not sustainable as the Disciplinary Authority without any application of mind. On the other hand, the entire Articles of Charge were prepared by the Vigilance Department and the Disciplinary Authority has only appended his signature on the covering Memorandum, in an arbitrary manner. In this regard, he has also submitted that the Respondents themselves have admitted, vide para 4(D), (E) & (F) of the additional reply filed by them that the charges have been framed by the Vigilance Department for taking major penalty charge sheet and was served on him after obtaining the signature of the Disciplinary Authority:-
(D): That in reply to the averments made in the corresponding para, it is submitted that the major penalty charge sheet was framed by GM/Vig. and forwarded to the office vide letter No.Vig/PC/2006/04/07 dated 18.11.2009. Based on the preventive check conducted by the GM/Vig. and charges as framed by Vigilance Department, major penalty Charge Sheet (SF-5) was served upon the applicant vide Office Memorandum No.E-142/721/S.Cell(P) dated 08.12.2009. Dy.CPO/HQ is the Disciplinary Authority and Signing Authority to the charge sheet.
(E) & (F): That in reply to the averments made in the corresponding paras, it is submitted that the demand of the Applicant for supply of documents was forwarded to GM/Vig. for consideration and providing necessary relevant documents to CO as GM/Vig. is the custodian of all the documents. GM/Vig. in reply dated 12.03.2010 advised that copy of results of all the candidates issued by SBBMS, Vidhyalay, Shankarachary Marg, New Delhi as mentioned in Annexure-III of the Memorandum and required by the Applicant vide his representation dated 18.12.2009 item No.3 has already been sent vide letter dated 18.11.2009. So far as other documents are concerned, these are additional documents as the same are not mentioned in Annexure-III of the Memorandum issued to him. Therefore, the same cannot be given at this stage as the additional documents as given to the CO when the same are allowed by the Inquiry Officer. The decision of GM/Vigilance was communicated to CO vide letter dated 22.04.2010. To meet the ends of natural justice, 10 days time was given to the CO to submit his defence on the Memorandum. The CO vide his representation dated 29.04.2010 again demanded some documents before submission of defence.
In this regard, the learned counsel for the Applicant has relied upon the Order of a co-ordinate Bench of this Tribunal in OA No.1443/2012 Shiv Raj Meena Vs. U.O.I. through the General Manager, New Delhi and Others decided on 12.11.2013. In the said case, this Tribunal found that the Disciplinary Authority had played a subserving role to the Vigilance Authorities and passed orders as per their dictates. Considering the aforesaid facts, this Tribunal quashed and set aside the orders in the disciplinary proceedings and directed the Respondents to reinstate him in service with all consequential benefits. He has also relied upon an Order of the Jodhpur Bench of this Tribunal in OA No.89/2009 - Prem Prakash Vs. U.O.I. & Others decided on 14.12.2011 wherein it has been held that the CVO cannot be allowed to abrogate to itself the power of the Disciplinary Authority without responsibility. The relevant part of the said order reads as under:-
97. The CVC cannot be allowed to abrogate to itself power without responsibility. While the incumbent officers functioning as the Inquiry Officer, the Disciplinary Authority, the Appellate Authority and the Revisional / Review Authority, as the case may be, are all enjoined by the statute and subordinate legislation to function in quasi judicial capacity in the conduct and conclusion of a disciplinary enquiry, and to apply their mind alone, independently, without heeding to any outside instructions or influence, as is wont of persons acting in judicial or quasi-judicial capacity, no such legal / statutory duty has been cast upon the CVC in respect of giving any opinions in the matters related with the conduct and conclusion of departmental enquiries, by any portion of the law, even the Central Vigilance Commission Act, 2003, or the CCS (CCA) Rules, 1965, or any other statutes, rules or regulations issued in this regard. The Central Vigilance Commission cannot therefore be allowed to enjoy un-bridled power without responsibility, and assume or have a role of a prosecutor, giving its opinions in between the quasi judicial functions of the various stages of statutory authorities involved in the conduct and conclusion of a disciplinary inquiry, in between the prescribed stages of decision making from the level of Inquiry Officer, to the Disciplinary Authority, to the Appellate Authority, and to the Revisional/Review Authority. Moreover, any such examination of the files and records of a particular disciplinary enquiry case by the Central Vigilance Commission in between the various statutorily prescribed stages of the disciplinary enquiry, would be behind the back of the delinquent Government Officer, and without giving him an opportunity of being heard. Therefore, the expression of any opinion or advise about the guilt or otherwise of the delinquent by the Central Vigilance Commission is entirely against the Common Law principles of natural justice, as well as being against the rules for the conduct of disciplinary inquiries framed under Article 311 of the Constitution, and also against the Fundamental Rights of the concerned delinquent Government servants under Article 14 of the Constitution of India. The issue raised at para 40 (e) / ante is therefore answered accordingly.
11. As regards the merit of the charge is concerned, the learned counsel for the Applicant has submitted that the Railways have offered appointment to a number of candidates after taking into consideration the marks of the additional subjects for calculating the average marks. In this regard, he has cited the case of one Shri Rameshwar Prasad who has secured less marks as alleged in the first charge sheet but his name was deleted in the second charge sheet. He had secured only 38.8% marks. But when the matter was referred to the Railway Board, he was found fit for appointment. The Railway Board in his case has ordered that prior to 2001, Northern Railway had offered appointment to a number of candidates in the year 1999 and 2000. It has, therefore, been decided that case of Shri Rameshwar Prasad S/o Shri Birju Ram may be considered for appointment on similar lines, to avoid any litigation in future. Therefore, according to the Applicant, he has not committed any misconduct, as alleged by the Respondents.
12. The Respondents have filed their reply. They have taken a preliminary objection that the OA is premature as only an Enquiry Officer was appointed to enquire into the charges levelled against the Applicant. They have also submitted that the Applicant has not submitted any reply to the charge sheet served to him vide Memorandum dated 08.12.2009 and straightaway approached this Tribunal.
13. Further according to them, the Railway Board has introduced a Vocational Course on Railway Commercial (VCRC), a job linked with the vocational course. The Applicant was working as a Staff and Welfare Inspector with the Respondents. He was responsible for making list of the candidates while processing the case for appointment as per the Railway Boards guidelines. However, he did not make the list as per the guidelines and took into consideration the marks of the additional subjects for calculating the aggregate marks, as a result of which 8 candidates were found not eligible for appointment. The said act of utter negligence on the part of the Applicant brought an avoidable embarrassment to the Railway Board and also opened a door of unnecessary litigation. Further, they have stated that the case of irregular appointment under the VCRC Scheme was taken up by the Vigilance Department for investigation and the Applicant was charge sheeted on 26.05.2006. But later on, it was withdrawn by order dated 02.11.2006 without prejudice to the right of the Department to take further action in the matter. Thereafter, the Vigilance, vide their letter dated 18.11.2009, advised the Department to initiate major penalty proceedings against the Applicant and they have submitted a draft charge to the Disciplinary Authority. Accordingly, major penalty charge sheet was served on the Applicant vide Memorandum dated 08.12.2009. The Applicant has requested to provide certain additional documents in addition to those that have been furnished to him with the Charge Memorandum. His representation was forwarded to the General Manager (Vigilance) vide letter dated 05.05.2010. Meanwhile, the General Manager (Vigilance) nominated the Enquiry Officer and the Presenting Officer vide letter dated 09.04.2010. The General Manager (Vigilance) has also informed the Department that the additional documents asked for by the Applicant cannot be provided before remitting the case for enquiry. The Department again referred the matter to the General Manager (Vigilance) stating that the Applicants request is covered by Rule 7 and Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968. However, the General Manager (Vigilance) reiterated that the additional documents cannot be provided to the Applicant.
14. The learned counsel for the Respondents has also submitted that this Tribunal has no jurisdiction to interfere in the disciplinary proceedings at its interlocutory stage. In this regard, he has relied upon the judgment of the Apex Court in Union of India and others vs Upendra Singh 1994 (3) SCC 357 wherein it was held that this Tribunal has no jurisdiction to go into the correctness or truth of the charge. It has also held that this Tribunal ought not to interfere in disciplinary proceedings at an interlocutory stage. The relevant part of the judgment is as under:-
6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath & Sons . The bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus :
"Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
15. The learned counsel has also relied upon the judgment of the Apex Court in the case of Union of India and Another Vs. Kunisetty Satyanarayana 2006 (12) SCC 28 wherein it was held that ordinarily no writ petition impugning a show cause notice or charge-sheet is maintainable as they are premature. Only in rare and exceptional cases such intervention is permissible and they are those cases which are wholly without jurisdiction or wholly illegal. The relevant part of the said judgment is as under:
13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.
16. He has also relied upon the judgment of the Apex Court in the case of Secretary, Ministry of Defence and Others Vs. Prabhash Chandra Mirdha 2012 (11) SCC 565 wherein it has been held that the Courts/Tribunal cannot interfere with the charge sheet on the ground of delay unless it creates prejudice to the Government servant. The relevant part of the said judgment reads as under:-
12. Thus, the law on the issue can be summarised to the effect that charge-sheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.
17. We have heard the learned counsel for the Applicant Shri Yogesh Sharma and the learned counsel for the Respondents Shri R.N. Singh. We have also perused the departmental file made available by the learned counsel for the Respondents. As far as delay in disciplinary matters is concerned, the impugned Articles of Charges do not indicate any specific date or period. To that extent, the charge against the Applicant is vague. However, the earlier statement of Articles issued vide Memorandum dated 26.05.2006 and later on withdrawn vide Memorandum dated 26.05.2006, the alleged misconduct was committed by the Applicant while he was working in the Recruitment Section of the Respondents during the period from 2001-2005. As the Respondents have initiated disciplinary proceedings against the Applicant vide Memorandum dated 26.05.2006 and after its cancellation, re-initiated vide the impugned Memorandum dated 08.12.2009, we cannot agree with the contention of the Applicant that there was inordinate delay in initiation of the disciplinary proceedings.
18. As regards the contention of the Applicant that the impugned charge sheet was issued without application of mind and at the dictates of the Vigilance is concerned, we find merit in it. It is a well settled position that it is the Disciplinary Authority which has to consider whether any disciplinary action is to be initiated against the Applicant for the alleged misconduct/misbehaviour conducted by him. However, in this case it is seen that the charge sheet was framed by the Vigilance Department and the Disciplinary Authority had no occasion to apply its mind. Further, it is seen that initially the draft Article of Charge framed by the Vigilance Department was simply forwarded to the Applicant by the Disciplinary Authority vide his covering letter. When the Respondents later realized that the word draft written in the Articles of Charge has not been removed, they issued a Corrigendum to delete the word draft from the Articles of Charge.
19. Initiation of disciplinary proceedings is a statutory function assigned only to the Disciplinary Authority. The relevant rules in this regard is sub-rules (2), (3), (6), (7) and (9)(a) of the Railway Servants (Discipline and Appeal) Rules, 1968 which reads as under:-
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Railway servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, a Board of Inquiry or other authority to inquire into the truth thereof.
Provided that were there is a complaint of sexual harassment within the meaning of rule 3 C of the Railway Services (Conduct) Rules, 1966, the Complaints Committee established for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
(3) Where a Board of Inquiry is appointed under sub-rule (2) it shall consist of not less than two members, each of whom shall be higher in rank than the Railway servant against whom the inquiry is being held and none of whom shall be subordinate to the other member or members as the case may be, of such Board.
(6) Where it is proposed to hold an inquiry against a Railway servant under this rule and Rule 10, the disciplinary authority shall draw up or cause to be drawn up
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge; 9 (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain -
(a) a statement of all relevant facts including any admission or confession made by the Railway servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(7) The disciplinary authority shall deliver or cause to be delivered to the Railway servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Railway servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow.
(9) (a) (i) On receipt of the written statement of defence, the disciplinary authority shall consider the same and decide whether the inquiry should be proceeded with under this rule.
(ii) Where the disciplinary authority decides to proceed with the inquiry it may itself inquire into such of the articles of charge as are not admitted or appoint under sub-rule (2) a Board of Inquiry or other authority for the purpose.
(iii) Where all the articles of charge have been admitted by the Railway servant in his written statement of defence, the disciplinary authority shall record its findings on each charge, after taking such further evidence as it may think fit and shall act in the manner laid down in Rule 10.
(iv) If the disciplinary authority, after consideration of the written statement of defence, is of the opinion that the imposition of a major penalty is not necessary, it may drop the proceedings already initiated by it for imposition of major penalty, without prejudice to its right to impose any of the minor penalties, not attracting the provisions of sub-rule (2) of Rule 11. Where the disciplinary authority so drops the proceedings but considers it appropriate to impose any of the minor penalties, not attracting the provisions of sub-rule (2) of Rule 11, it may make an order imposing such penalty and it will not be necessary to give the Railway servant any further opportunity of making representation before the penalty is imposed.
20. Citing Rules 14(2) and 14 (3) of the CCS (CCA) Rules, 1965, which are similar to the aforesaid rules, the Apex Court in the case of Union of India vs. B.V. Gopinath 2014(1) SCC 351 held that the stage of initiating the disciplinary proceedings under Rule 14(2) ibid is distinct and separate from issuing a charge memo under Rule 14(3) and it is not a continuing act because it is not necessary that every disciplinary proceeding initiated would definitely result in issuing a charge memo because after initiating the disciplinary proceedings it may be found from the material on record that, the memo of charge need not be served because the charges may not be made out or a lesser charge could be made out. Therefore, mind has to be applied to the evidence and material on record pursuant to initiation of disciplinary proceedings to again come to a fresh decision as to whether now, a charge memo deserves to be issued. The Apex Court has also held that the charges against the Government servant framed with the approval of the Disciplinary Authority even if the charge memo has been approved later, is non-est in the eye of law. The relevant part of the said judgment reads as under:-
29. According to the learned senior counsel, the most important issue to be decided by this Court is that whether the stage of initiating Disciplinary Proceedings is the same as issuing a charge sheet/charge memo? A plain reading of Rule 14(2) and Rule 14(3) of the Central Civil Services (Classification, Control & appeal) Rules, 1965 makes it amply clear and the only interpretation possible is that the stage of initiating the disciplinary proceedings U/Rule 14(2) is distinct and separate from issuing a charge memo U/Rule 14(3) and it is not a continuing act because it is not necessary that every disciplinary proceeding initiated would definitely result in issuing a charge memo because after initiating disciplinary proceedings it may be found from the material on record that, the memo of charge need not be served because the charges may not be made out or a lesser charge could be made out. Mind has to be applied to the evidence and material on record pursuant to initiation of disciplinary proceedings to again come to a fresh decision as to whether now, a charge memo deserves to be issued. Thus, the material before the Disciplinary authority is different at both the stages of Rule 14(2) and Rule 14(3) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965.
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40. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge sheet. Such a charge sheet can only be issued upon approval by the appointing authority i.e. Finance Minister.
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45. Much was sought to be made by Ms. Indira Jaising on clause (10) of the order which provides that once the Finance Minister has approved the initiation of departmental proceedings, the ancillary action can be initiated by the CVO. According to the learned Addl. Solicitor General, the decision taken by the Finance Minister would also include the decision for approval of charge memo. She pointed out the procedure followed for initiation of penalty proceedings/disciplinary proceedings. She submitted that the decision to initiate disciplinary proceedings is based on a Satisfaction Memo prepared by the CVO. This satisfaction memo is submitted to the Member (P&V), Central Board of Direct Taxes, New Delhi who after being satisfied that the memo is in order, forwards it to the Chairman, CBDT who in turn, upon his own satisfaction forwards it to Secretary (Revenue) and finally to the Finance Minister. Based on the satisfaction memo, the Finance Minister, who is the disciplinary authority in this case, takes the decision to initiate disciplinary proceedings. While taking the said decision, the Finance Minister has before him, the details of the alleged misconduct with the relevant materials regarding the imputation of allegations based on which the charge memo was issued. Therefore, approval by the Finance Minister for initiation of the departmental proceedings would also cover the approval of the charge memo. We are unable to accept the submission of the learned Addl. Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVC's second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DOP & T, issuance of show cause notice in case of disagreement with the enquiry officer report; tentative decision after CVC's second stage advice on imposition of penalty; final decision of penalty; and revision/review/memorial have to be taken by the Finance Minister. In our opinion, the Central Administrative Tribunal as well as the High Court has correctly interpreted the provisions of the Office Order No. 205 of 2005. Factually also, a perusal of the record would show that the file was put up to the Finance Minister by the Director General of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rule 3(1)(i) and (3) (1) (iii) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the appellant herein. Ultimately, it appears that the charge memo was not put up for approval by the Finance Minister. Therefore, it would not be possible to accept the submission of Ms. Indira Jaising that the approval granted by the Finance Minister for initiation of departmental proceedings would also amount to approval of the charge memo.
46. Ms. Indira Jaising also submitted that the purpose behind Article 311, Rule 14 and also the Office Order of 2005 is to ensure that only an authority that is not subordinate to the appointing authority takes disciplinary action and that rules of natural justice are complied with. According to the learned Addl. Solicitor General, the respondent is not claiming that rules of natural justice have been violated as the charge memo was not approved by the disciplinary authority. Therefore, according to the Addl. Solicitor General, the CAT as well as the High Court erred in quashing the charge sheet as no prejudice has been caused to the respondent. In our opinion, the submission of the learned Addl. Solicitor General is not factually correct. The primary submission of the respondent was that the charge sheet not having been issued by the disciplinary authority is without authority of law and, therefore, non est in the eye of law. This plea of the respondent has been accepted by the CAT as also by the High Court. The action has been taken against the respondent in Rule 14(3) of the CCS(CCA) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges. The term cause to be drawn up does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority. The term cause to be drawn up merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed definite and distinct articles of charge sheet. These proposed articles of charge would only be finalized upon approval by the disciplinary authority. Undoubtedly, this Court in the case of P.V.Srinivasa Sastry & Ors. Vs. Comptroller and Auditor General & Ors.[ 1993 (1) SCC 419] has held that Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, at the same time it is pointed out that However, it is open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority. It is further held that Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post.
21. Again, the Apex Court in its judgment of the Apex Court in the case of Chairman-Cum-M.D., Coal India Ltd. and Others Vs. Ananta Saha and Others JT 2011 (4) SC 252 wherein it has been held that the Disciplinary Authority cannot issue a charge sheet in a routine manner but he has to apply his mind. Further, the Apex Court has held that the Disciplinary Authority should pass some positive order taking into consideration the material on record before passing an order to initiate disciplinary proceedings. The relevant part of the said judgment reads as under:-
28. The aforesaid order reveals that the OSD had prepared the note which has merely been signed by the CMD, ECL. The proposal has been signed by the CMD, ECL in a routine manner and there is nothing on record to show that he had put his signature after applying his mind. Therefore, it cannot be held in strict legal sense that the proceedings had been properly revived even from the stage subsequent to the issuance of the charge sheet. The law requires that the disciplinary authority should pass some positive order taking into consideration the material on record.
29. This Court has repeatedly held that an order of dismissal from service passed against a delinquent employee after holding him guilty of misconduct may be an administrative order, nevertheless proceedings held against such a public servant under the Statutory Rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings. The authority has to give some reason, which may be very brief, for initiation of the inquiry and conclusion thereof. It has to pass a speaking order and cannot be an ipse dixit either of the inquiry officer or the authority. (Vide Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Anil Kumar v. Presiding Officer & Ors., AIR 1985 SC 1121; and Union of India & Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541).
Thus, the above referred to order could not be sufficient to initiate any disciplinary proceedings.
30. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.
31. In Badrinath v. Govt. of Tamil Nadu & Ors., AIR 2000 SC 3243, this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. (See also State of Kerala v. Puthenkavu N.S.S. Karayogam & Anr., (2001) 10 SCC 191; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors. AIR 2010 SC 3745).
32. As in the instant case, there had been no proper initiation of disciplinary proceedings after the first round of litigation, all other consequential proceedings stood vitiated and on that count no fault can be found with the impugned judgment and order of the High Court.
22. A co-ordinate Bench of this Tribunal in OA No.3486/2010 and connected case A.K. Sharma Vs. Employees Provident Fund Organisation and Another decided on 21.01.2014. In the said order, this Tribunal has considered both the aforesaid judgments of the Apex Court in Anata Saha and Others (supra) and B.V. Gopinaths case (supra). The relevant part of the said judgment reads as under:-
7. We have also perused the copies of the relevant notings of the Respondents in the file. It is seen that the Respondent-EPFO on 14.08.2008 put up the proposal to Minister of State (IC) (L&E) in his capacity as the Chairman (BT, EPF) and the Disciplinary Authority of the Applicant for taking a view regarding initiation of major penalty proceedings against the Applicant. The said Disciplinary Authority saw the aforesaid proposal on 24.09.2008 and simply signed.
8. From the aforesaid notings, it is very much clear that even though the Disciplinary Authority, namely, the Honble Minister has appended his signature in approval for initiating the disciplinary proceedings against the Applicant, he has not applied his mind at all. As held by the Apex Court in Ananta Saha and Others (supra), the approval to initiate disciplinary proceedings and the approval of the charge sheet against an employee cannot be done as a mechanical exercise. On the other hand, there should be a conscious decision on the part of the Disciplinary Authority whether any disciplinary action should be initiated against the Applicant or not. Reconfirming the aforesaid legal position, the Apex Court has also dismissed the SLP filed against the order of the High Court in B.V. Gopinaths case (supra).
9. In the above facts and circumstances of the case, we allow both these Original Applications. Consequently, we quash and set aside impugned charge sheet dated 18.12.2010 as illegal and arbitrary. As corollary, we also declare that the action of the Respondents not opening the sealed cover containing recommendations of the DPC held on 23.05.2011 in the case of the Applicant for the year 2010-11 and 2011-12 is illegal and arbitrary. We, therefore, direct the Respondents to open the aforesaid sealed cover in his case for promotion to the post of RPFC Grade-I for the years 2010-11 and 2011-12 and to promote him to the said post from the date his juniors have been promoted with all consequential benefits except back wages, if he has been found otherwise fit by the DPC. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. However, the Respondents are at liberty to take appropriate action in the disciplinary case against the Applicant in accordance with law, if so advised.
10. There shall be no order as to costs.
23. The Central Vigilance Commission or the Chief Vigilance Officers of the departments cannot be allowed usurp the powers of the Disciplinary Authority. The Disciplinary Authority also cannot abandon its statutory duty and play a subservient role under the dictates of the vigilance authorities.
24. Further, it is seen that the Articles of Charges against the Applicant was initially proposed to be proved by four documents, namely, (1) Scheme of Vocational Course in Railway Commercial, (2) Railway Boards letter No.E(W)89ED1-13 (Vol.III) dated 12.04.1993, (3) Railway Boards letter No.E(W)95ED1-10 dated 20.12.1995 and (4) Railway Boards letter No.E(W)2003ED1-21 dated 10.06.2004, but there was not a single witness to prove them. However, impugned revised Articles of Charges are proposed to be proved by some additional documents including the Statement of the Applicant himself and the copy of results of candidates issued by the Principal, SBBMS Vidhyalay, Shankarachary Marg, New Delhi. But the sole witness to prove those documents is a Vigilance Officer, namely, Shri H.C. Yadav, CV/NR/HQ who has nothing to do with those documents. Thus it is seen that the charges have been framed against the Applicant by the Vigilance Branch of the Respondents and they are proposed to be proved by another Vigilance Officer who has no knowledge about the case. It is trite law that holding disciplinary proceedings against a Government employee and imposing punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. It shall be in accordance with the principles of natural justice which includes fairness. The legal maxim nemo debet esse judex in proparia causa (no man shall be a judge in his own case) is required to be observed by all judicial and quasi-judicial authorities. It is even admitted by the Respondents themselves that the Enquiry Officer and the Presenting Officer have been appointed by the Vigilance Department and not by the Disciplinary Authority. Therefore, the Applicant cannot expect an unbiased report from the Enquiry Officer so appointed by the Director Vigilance.
25. We, in the above facts and circumstances of the case, allow this OA and quash and set aside the impugned Memorandum dated 08.12.2009 and the Corrigendum dated 01.09.2011. The Respondents shall also pass appropriate orders complying with the aforesaid directions within a period of 2 months from the date of receipt of a copy of this order. There shall be no order as to costs.
(Shekhar Agarwal) ( G. George Paracken )
Member (A) Member (J)
Rakesh