Central Administrative Tribunal - Delhi
Shri Subhash Rohilla vs Union Of India & Others : Through on 29 June, 2015
Central Administrative Tribunal Principal Bench New Delhi OA No. 2607/ 2012 Reserved On:27.05.2015 Pronounced On:29.06.2015 Honble Shri G.George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) Shri Subhash Rohilla, S/o Shri Hoshiyar Singh, Ex. Accounts Assistant, Under Sr. Divisional Finance Manager, State Entry Road, DRM Building, New Delhi. Applicant (By Advocate: Shri Manjet Singh Reen) VERSUS Union of India & Others : through 1. The General Manager Northern Railway Headquarters Office Baroda House, New Delhi. 2. The F.A.&C.A.O. Northern Railway Headquarters Office Baroda House, New Delhi. 3. The Divisional Railway Manager, Northern Railway State Entry Road, New Delhi. Respondents (By Advocate: Shri VSR Krishna) O R D E R
G.Gerorge Paracken Member (J) Applicant in this Original Application has challenged the orders in the disciplinary proceedings culminated in the imposition of the penalty of removal from service upon him with immediate effect, vide order dated 21.07.2008 and the appellate order dated 16.12.2009 and the Revision Authoritys order dated 02.07.2010 rejecting his appeal and Revision Petitions dated 26.08.2008 and dated 08.03.2010 respectively.
2. Brief Facts: Vide memorandum dated 17.11.2003, the applicant was proceeded under Rules 9 of the Railway Servants (Discipline and Appeal) Rules, 1968,. The Articles of Charges framed against him were as under:-
Shri Subhash Rohilla while working as Accounts Assistant in PF section under Sr. DFM/DLI during year January, 1999 to August 2002 has committed grave misconduct in as much as:-
1. That he deliberately posting of responsible for bogus posting of VPF in PF account of Sh. Shiv Shankar, PF Account No.0281439.
2. Tampering and increasing the balance in the PF account of Sh. Narottam Singh PF Account No. 284169.
By this acct of omission and commission, Shri Subhash Rohilla, A/Cs Assistant failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner of unbecoming of Railway Servant, thereby contravened the provisions of Rule 3.1(i), (ii) & (iii) of Railway Service Conduct Rules-1966
3. The Statement of Imputation of misconduct in support of Articles of Charges framed against him were as under:-
Shri Subhash Rohilla while working as Accounts Assistant in PF section (Train Lighting seat) under Sr. DFM/DLI had committed the following serious irregularities.
1. Responsible for bogus posting of VPF:-
Sh. Subash Rohilla has made the entries of PF subscriptions in the account Sh. Shiv Shankar, PF A/c No. 0281439 of March paid in April, 2001 and April paid in May 2001 amounting to Rs. 358/- as subscription and 1500/- as VPF. The VPF posted by Sh. Subhash Rohilla in the account of Sh. Shiv Shankar is bogus. It clearly shows that he made the entries with vested interest without verifying the subscription vouchers.
2. Tampering and increasing the balance in the PF Account of Sh. Narottam, Singh, PF Account No. 284169-
Sh. Subhash Rohilla has closed the account of Sh. Narottam singh, PF Account No.284169 in the year 1998-99 with showing Rs. 7000/- in the closing as VPF but the same amount was not taken by him in minimum balance while calculating the interest. Later on, the closing were revised by showing Rs. 7000/- as bogus entries (revised on the initiation of investigation of vigilance).
Sh. Subhash Rohilla has also passed the seven PF advances in one day, i.e., 10.5.2001 of TL seat. Sh. Subhash Rohilla was not the dealer of TL seat. Out of these, seven PF advances passed on 10.5.2001 four accounts are those, which have inadequate balance for advances but passed due to bogus and forged entries.
It clearly show vested interest of Sh.Subhash Rohilla and responsible for bogus posting of VPF account of Sh. Shiv Shankar and also the involvement in tampering of the account of Sh. Narottam Singh by Rs.7000/-
Shri Subhash Rohilla has thus contravened the provisions of Rules 3.1 (i), (ii) and (iii) of Railway Service Conduct Rules, 1966.
4. The aforesaid Articles of Charges were proposed to be proved by the following list of documents and witness:-
List of documents 1. Statement of Sh. Subhash Rohilla, AA dated 29.5.2002 and 12.6.2003.
2. Copy of PF subscription of Sh. Shiv Shankar, PF A/C No. 0281439 of March paid in April 2001 and April paid in May, 2001.
3. Copy of PF account of Sh. Shiv Shankar, PF A/c No. 0281439 of 2001-02.
4. Copy of PF account of Sh. Narottam Singh, PF A/c No. 284169 of 1998 -99.
5. Copy of wages register of Sh. Narottam Singh, PF A/c No.284169 of 1998-99.
6. Detail of PF advances passed by Sh. Subhash Rohilla in one day i.e. 10.5.2001 prepared by Sh. Rohilla dated 12.6.2002.
List of witness 1. Shri Ramesh Kumar Punhani, Chief Vigilance Inspector, Northern Railway, Baroda House.
5. The Applicant denied the aforesaid Articles of Charges and submitted his written statement of defence on 23.2.2006. As far as the first charge is concerned, he has stated that the entries of VPF were made with the help of Journals of respective months prepared in FormA 1308 as required under Para 908A of the Indian Railway Establishment Code; the amount of VPF that was shown hand written on computerized PF Journals of March 2001 and paid in April 2001 & April 2001 paid in May 2001 of PF No. 0281439 of Sh. Shiv Shankar was taken as objection items; the aforesaid fact was already disclosed to the dealer of the TL seat i.e. to Sh.Ramesh Chandra on 17.5.2001; the PF/VPF entries were made at the behest of the Section Officer PF-III when the actual dealer of the train lighting seat was on leave; the entries were made on 10.5.2001 evening at the order of the SSO/PF-III when not more than 3 staff members along with SSO were present in the PF-III section; the pre-check was conducted by the section which passed the pay bill before making over the PF schedule to the PF section; there was no vested interest in the matter but he was only obeying the order of the higher authorities, namely; the section incharge, the DAO/PF etc. who have given him only oral orders and no written orders for reasons best known to him; it was wrong to say that the entries were made without verifying the subscription vouchers but had applied his intuition while making those entries and acted as per the prescribed rules and the irregularity regarding hand written amount was taken in objectionable items statement, immediately; posting of PF/VPF has been made through PF deduction schedule and they were never posted through wages register as wages register is not a part of accounts record; and in the absence of original PF Journals of March 2001 paid in April 2001 and April 2001 paid in May 2001, it was impossible to say that posting were bogus. As far as the second charge is concerned, he has stated that the entries of VPF @ Rs.1000/- per month from April 1998 to October 1998 were already in existence in PF ledger of Sh. Narottam Singh PF No. 284169 in the year 1998-99 and those postings were not made by him but Sh. Mukesh Kumar Tech-II under SSE/TL/NDLs as is evident from the details prepared and submitted to Vigilance Branch by Sh. Mukesh Kumar on 26.5.2003 as well as the details prepared by Sh.Ramesh Chandra A/c Clerk PF on 26.05.2003; he has also not revised the closing and made any bogus entries; the tampering and increase in balance were done by someone else who made the postings of VPF amount and who revised the closing of Sh. Narottom Singh; however, in making closing of his account through minimum balance system, he must have committed some error of omission/clerical mistake in taking the amount of VPF; there was no vested interest or mala fide intentions as it was done at the behest of the Section Incharge; he had closed the PF account of Sh. Narttom Singh on 05.11.1999 under his dated signature; he put up ten PF advances to SSO/PF on 10.05.2001 and prepared CO7 on 11.5.2001; they were cleared in two days instead of one day as was alleged in the charge sheet; the PF advances were passed after PF amount was verified by Sh. Ramesh Chandra in PF withdrawal forms and countersigned by Sh. K.K. Sharma SSO/PF-III in the month of April, 2001 and there was adequate balance in PF ledger at the time of passing of the PF advances; the PF advances are passed when there was sufficient balance in PF ledger and the balance was also verified by the concerned dealing clerk as well as SSO/PF in PF withdrawal forms in duplicate; one copy remains in bill section responsible for preparing of pay order of PF and the other comes to accounts along with the pay order; the process of verifying the amount lying in PF was completed by the actual dealing clerk and SSO/PF in the month of April, 2001; the balance became inadequate after the postings were revised in the PF ledger by Sh. Ramesh Chander; there was no delay in passing the PF advances as they were passed within the prescribed period as per para 1110 of Indian Railway Code for the Accounts Department Part-I; as per para 901A of the aforesaid code, the responsibility for the internal check of all transactions pertaining to and the maintenance of the accounts of the State Provident Funds to which the personnel of the railway subscribe devolves upon the account officer; PF advances were passed as per instructions contained in railway boards letter No.F(P) 61/PF-1/21 of 15.09.61 which states in case of non-gazetted staff they are entitled to withdraw up to 90% of the total amount (i.e. compulsory subscription and government contribution plus interest standing to their credit; and the rule for marriage advance was also followed in toto while passing the PF advances. He has also furnished the documentary evidences in support of his aforesaid submission.
6. However, the Disciplinary Authority decided to proceed with the enquiry and the Applicant attended the preliminary inquiry held on 3.8.2004 and on 16.8.2004. Thereafter, vide speed post No. 2165688461N dated 15.12.2004 and letter No. 102 dated 29.12.2004 he informed the Enquiry Officer about his inability to attend the inquiry again, due to circumstances beyond his control by. The Inquiry Officer submitted his report on 18.3.2006 and held that both the aforesaid charges have been proved. The relevant part of the said report reads as under:-
7. DISCUSSION OF EVIDENCE ON THE CHARGE.
7.1 Charge No.1:- He deliberately posting of responsible for bogus posting of VPF in PF account of Shri Shiv Shankar, PF A/c No. 0281439 for the period March 2001 and April-01 paid in April 01 & May 01.
From the Ex.P-2 the detail of PF recovery of Sh. Shiv Shanker it is evident that no VPF subscription was made from his salary for the period of March, 2000 to December, 2001. Whereas from the Ex.P-3 it is evident that an amount of Rs.1500/- per month was shown against the column of voluntary deposit in the PF ledger of Sh.Shiv Shanker from the month of May to March for the year of 2000-2001 and an amount of Rs.16,500/- was shown total amount of VPF in his PF ledger which confirms that this was not an clerical error but the amount was shown deliberately with an intention to give benefit to the employee named Shri Shiv Shanker. As per Ex.P-1 the statement of CO it is evident that he made the closing of this account without verifying the postings with the subscription vouchers which confirms that CO was intentionally doing this bogus posting in the PF account of Sh. Shiv Shanker. Since the CO did not attend the enquiry to defend his case deliberately though a sufficient opportunity was given to him indicates that CO has nothing to say in his defense against the charges. Hence the plea of prosecution mentioned in this charge is reasonable and the charge is proved against the CO.
7.2 Charge No.2:- Tampering and increasing the balance in PF account of Shri Narootam Singh in PF A/c No.284169 for the year 1998-99.
From the Ex.P-4 it is evident that the gross amount of PF subscription (inclusive of interest) of Shri Narootam Singh for the year 1997-98 was only Rs.9114/- but in the year 1998-99 initially Rs.14114/- was brought forward which was later on correct as 9114/-. From the Ex.P-4 it is also evident that at the time of closing the account for the year 1998-99 the total closing balance was shown as Rs. 29517/- inclusive of Rs. 14114/- as brought forward amount for the year 1997-98 and Rs. 7000/- as VPF for the year 1998-99. The same amount of Rs. 29570/- was carried forward for the year 1999-2000 which later on was corrected as Rs.17570/-, the closing balance for the year 1998-99 by correcting the carried forward amount of the 1997-98 as Rs. 9114/- and no VPF subscription. All this confirms that the final amount of the PF subscription for the year 1998-99 was tempered and increased by way of showing VPF in the account of Shri Narootam Singh. CO vide Ex.P-1 has admitted that the closing of this account was done by him to make the entries in the PF book of the employee without verifying the subscription voucher. Since the CO did not attend the enquiry to defend his case deliberately though a sufficient opportunity was given to him indicates that CO had nothing to say in his defense against the charges. Hence the plea of prosecution mentioned in this charge is reasonable and the charges is proved against the CO.
8.0 CONCLUSION AND FINDINGS.
In view of oral, documentary available on record and considering the defense submitted by CO, finding is as under:-
Charge No.1 stands proved as discussed in para 7.1 above.
Charge No.2 stands proved as discussed in para 7.2 above.
7. The Disciplinary Authority, vide his letter dated 27.03.2006, forwarded a copy of the said report to the Applicant inviting his comments and he, vide his letter dated 10.4.2008, submitted his comments. According to him, the finding of the Enquiry Officer that the subscription vouchers of the said period in question were also not made available by CO was not a part of the charge sheet issued to him; he was not the custodian of the subscription vouchers whereas Sh. Ramesh Chandra was the custodian; the IO used the defence brief to suit his purpose of holding that the charges have against him; he used Ex.P.2 against him whereas it was merely the detail of PF recovery of Sh. Shiv Shankar prepared by the TL/ DLI Staff, which was also not a reliable document as it was not part of the accounts record; it was the detail of the wages register and PF postings have not been made on the basis of wages register but on the basis of computerized PF subscription schedules/journals; the VPF amount Rs. 1500/- per month from May to March for the year 2000-01 in the PF ledger of Sh. Shiv Shankar has not been posted by him; the amount of Rs. 16500/- was not shown by him; he did close the account of Sh. Shiv Shankar and on examination of his PF ledger account for the year 2000-01 and 2001-02 it will become evident; the conclusion that he was intentionally doing the bogus posting in his PF account was false whereas he only just posted the amount of PF subscription and VPF for March 2001 paid in April 2001 and April 2001 paid in May 2001 in his PF ledger account in the year 2001-02; the amount of PF/VPF from April 1998 to October, 1998 of Shri Narottam Singh was not posted by him but it was posted by Sh. Mukesh Kumar, Tech-II under SSE/TL/NDLS; however, he admitted the fact that he had committed the error of omission/clerical mistake of taking the amount of VPF in closing the account of Sh. Narottam Singh through minimum balance system. He has also stated that charge regarding balance brought forward from 1997-98 to 1998-99 has not been levelled against him in the charge sheet. Neither tampering nor increasing the balance in PF account of Sh. Narottam Singh was done by him. As the amount of VPF for Rs. 7000/- was already available in the PF ledger of Sh. Narottam Singh. The same was taken in making the closing but it was left out owing to clerical mistake while drawing interest through minimum balance system. He has also asserted that closing was not revised by him. He has also made it clear that he was not able to attend the enquiry due to circumstance beyond my control.
8. However, the Disciplinary Authority, vide its order No. 2003/D&AR/VIG./SR/DFM/DLI dated 21.07.2008 imposed upon him penalty of removal from service. The relevant part of the said order reads as under:-
I have carefully gone through your written statement and RUDs alongwith POs brief and inquiry report, you have stated that entries of VPF were made with the help of PF journal of respective months prepared in Form A 1308 required in Para 908A. You have stated that it is wrong that PF entries were made without verifying the subscription vouchers. Posting of PF/VPF/refund were made through PF deduction schedule journal.
On scrutiny of Ex. P-4, it is clear that gross amount of PF subscription (inclusive of interest) of Sh. Narottam Singh for the year 1997-98 was only Rs.9114/- but in the 1998-99 initially Rs.14,114/- was brought forward which was later on corrected as Rs. 9,114/-. As can be seem from Ex.P-4, that at the time of closing of account fro the year 1998-99 the total closing balance was shown as Rs.29517 inclusive of Rs. 14114/- as brought forward for the year 1997-98 and Rs. 7000/- as VPF for the year 1999-2000 which was later on corrected as Rs.17,570/- the closing balance for the year 1998-99 by correcting the carried forward amount of 1997-98 as Rs. 9,114/- and with no VPF subscription. This proves that the final amount of PF subscription 1998-99 was tampered and increased by way of showing VPF in the account of Sh. Narottam Singh.
Hence, the charge of tampering and increasing the balance in the PF account of Narottam Singh as per Article 2 of your charge sheet is fully proved.
Further, the charge levelled against you is that you also passed seven PF advances in one day i.e. 10.05.2001 of TL seat. You were not the dealer of the TL seat. Out of these, seven PF advances passed on 10.05.2001 four accounts are those which have inadequate balances for advances but passed due bogus and forged entries.
On perusal of Ex.P-6, it is seen that seven pay orders have been passed on 10.05.2001 by you when the dealer of TL seats was not there. You have also stated in your reply that you are dealer of SSE/DSL/TKD seat and not dealer of TL seat and I just obeyed the order of the section incharge and DAO/PF.
You have also stated that bogus and forged entries made may be either by Sh. Ramesh Chander dealer of the TL seat in PF- III section or by Sh. Mukesh Kumar, Tech- II under SSE/TL/NDLS. While passing by pay orders for these four PF accounts which have bogus and forged entries should have been pointed out you to higher authorities in case they were bogus.
Hence you are also found guilty of passing these four pay order which were having bogus and forged entries.
In view of the above and the charges levelled against you in charge sheet No. 2003/D&AR/Vig./SR/DFM/DLI dated 18.06.2004, the charges are fully proved. I am of the considered opinion that ends of justice will be met if you are imposed punishment of removal from service with immediate effect.
Therefore, you are hereby removed from service with immediate effect.
9. The Applicant made an appeal dated 26.08.2008 against the aforesaid order of the Disciplinary Authority stating that the Sr. DFM was only his Disciplinary Authority but was not his Appointing Authority and under Railway servants (Discipline and Appeal) Rules, the punishment of removal from service could only be imposed by the appointing authority i.e. FA &CAO/Northern Railway, Baroda House, New Delhi. Hence punishment order was not sustainable and maintainable as they are null and void order in the eyes of law; the punishment order was issued without serving notice of punishment upon him as prescribed in the railway rules; he was not given any personal hearing before imposing the severest punishment upon him; in the punishment order, the word Fraud in PF Accounts has been willfully mentioned in bracket with mala-fide intention to give wrong impression to the Appellate Authority so that no leniency be done in his favour; he was removed from service only because he sought enhancement in subsistence allowance or revocation of suspension and it was brought to the notice of the Central Information Commission; the punishing authority has not mentioned any railway rule under which he has imposed upon the punishment of removal from service; even though the inquiry Officer submitted his report on 18.03.2006 and he submitted his representation on inquiry report on 10.04.2006 yet the Disciplinary Authority did not take action on it within the prescribed time limit of 365 days mentioned in the Model Time Schedule issued by Railway Board under Discipline and Appeal Rules; he took action only on 21.07.2008 i.e. after a period of more than two years which rendered the order time barred and consequently null and void; the order was also passed with mala-fide intention and to take revenge against him for reporting to the Central Information Commission regarding the Disciplinary Authoritys failure to provide him information under the Right to Information Act, 2005; vide letter No. 2003/D&AR/Vig./SR/DLI dated 27.02.2004, the Disciplinary Authority refused to supply the copy of wages register of Sh. Narottam Singh PF A/c No. 284169 of 1998-99 mentioned at Sr. No. 5 of Annexure III of charge sheet and due to non supply of the said document he could not submit his reply to the charge sheet and his defence helper could not cross examine the PW; he had informed the inquiry officer showing his inability to attend the inquiry at Delhi due to threats given to him by the official of the accounts department but the inquiry officer neither replied to his letters dated 14.12.2004, 28.12.2005 and 12.01.2006 nor changed the place of inquiry and thus did gross injustice to him by holding the inquiry ex-parte; the Enquiry Officer, vide order sheet dated 29.11.2005, stated that he proceeded with the inquiry ex-parte but he did not serve any notice to him or to his defence helper; in the inquiry report it was admitted by the Enquiry Officer that he received his defence brief along with ten Annexures through postal dak but the Enquiry Officer did not take any cognizance to them; even though the Enquiry Officer stated in his report that he considered the Applicants defence but actually, there was no such consideration; the Enquiry Officer has not proved anywhere in his report that he had taken any monetary gain in cash or kind from Sh. Shiv Shankar, Sh. Narottam Singh or from any of the seven persons whose PF pay orders were checked by him prior to rechecking of the Section Officer/PF and Divisional Accounts Officer/ PF; In fact, it was a case of bonafide mistake which could be excused; Therefore, the allegation levelled against him that he made the entries deliberately in VPF of Sh. Shiv Shankar was totally wrong and false. He has also stated that there was not a single independent departmental witness and the only witness in his case was Vigilance Inspector Sh. Ramesh Kumar Punhani. Mr. M. K. Sharma, Enquiry Officer himself was Ex. Vig. Inspector and friend of the Shri Punhani. The Enquiry Officer in his report included those allegations which were not part of the charge sheet thereby he exercised powers beyond his jurisdiction; he added more charges and held that they were proved. Thus, there was clear proof of misuse of power by the Enquiry Officer with mala-fide intention. He has also stated that he charge sheet was defective because in the first Article of charges there are two charges levelled against him whereas in the statement of imputation of misconduct, three charges are mentioned; no statement was made by him on 29.05.2002 as mentioned in the list of documents as per Sr. No. I of Annexure-III of the charge sheet; detail of PF advances was not prepared by him on 12.06.2002 as mentioned in the list of documents at Sr. No. 6 of Annexure-III of the charge sheet; the Disciplinary Authority imposed punishment of removal from service upon him by holding that those allegations against him which were never levelled against him in the charge sheet were proved; the disciplinary authority in the punishment order has stated that it was revealed that Rs. 1500/- were entered in the ledger in the month of April 2001 which was later on cut and endorsed as fake entries VPF got cancelled but this amount was figuring in the total amount of the employee. The said allegation was not the part of the charge sheet. Similarly, in the Disciplinary Authoritys order, it has been has stated that in Ex P-3, it is evident that an amount of Rs. 1500/- per month was shown against the column of VPF in the ledger of Sh. Shiv Shankar from the month of May to March for the year 2000-01 and an amount of Rs. 16500/- was shown as total amount of the PF in his PF ledger. Thus, the disciplinary authority gave him punishment on the basis of those charges which were never levelled against him in the charge sheet. The Disciplinary Authority has also attributed to him that entries of VPF were made with the help of PF journals of respective months prepared in Form A 1308 as required in Para 908 A but it was wrong that the PF entries were made without verifying the subscription vouchers. Further according to him, he was working on the seat of Sh. Ramesh Chander during his leave period on the verbal order of Section Officer PF III Sh. K. K. Sharma and after checking he has signed seven PF advances scrutinized by him and put up to DAO/PF. Thus he was working on the seat of Sh. Ramesh Chander with the permission of SO/PF III Sh. K. K. Sharma. Otherwise he would not have signed those seven PF advances; the seven pay orders were passed in two days not in one day as alleged in the order of the disciplinary authority; the balance of the seven PF advances was verified and attested by the dealer of TL seat Sh. Ramesh Chander and SO/PF III Sh.K.K. Sharma in the month of April 2001; the percentage check prescribed for the said purpose for sub-head and Supdt. were 70% and 75% respectively; the Efficiency Section of the Office of the FA&CAO were already completed by the dealer of TL seat and SO/PF III before passing the seven PF advances; therefore, he could not be held responsible for inadequate balance which was not verified by him or for bogus and forged entries which were never entered by him. Hence the order of removal from service by the disciplinary authority is null and void.
10. The Appellate Authority, vide order dated 16.12.2009, rejected his appeal and upheld the order of the Disciplinary Authority. It has stated that the authority who issued the order of removal from service was the competent authority; the Disciplinary Authority furnished a copy of the inquiry report to the Applicant to submit his defence thereon; the defence submitted by him was examined by the Disciplinary Authority; the Applicant did not ask for any personal hearing before the disciplinary authority; there was sufficient proof of fraud in PF account as per RUDs mentioned in Annexure- III of the memorandum issued to the Applicant; the Applicant was removed from service on the basis of the articles of charges proved in the enquiry; the disciplinary authority in its order has already mentioned the irregularities committed by the Applicant; due to busyness in other official work, the Disciplinary Authority took more time than the time prescribed in the schedule to pass its order. The other issues raised by the Applicant have already been examined by Inquiry Officer and the Disciplinary Authority.
11. The Applicant, thereafter, filed a Revision Petition on 08.03.2010 but the same was also dismissed on 02.07.2010.
12. The Applicant has challenged the aforesaid orders of the Disciplinary Authority, Appellate Authority and Revisionary Authority in this OA on the grounds that they are violative of Articles 14 & 16 of the Constitution of India and the charges levelled against him were false and baseless and they were proved only on the basis of surmises and conjectures without there being any independent legal evidence. He has also taken the following specific grounds:-
(i) The Enquiry officer committed serious irregularity in the matter. Without considering his written statement, it held that the charges have been proved against him. In this regard he has relied upon the judgment of the Honble Apex Court in case of Sh. Anil Kumar Versus Presiding Officer AIR 1985 SC 1121 wherein it has been held that the Enquiry Officer has merely recorded his ipse dixit that the charges are proved without assigning reason why the evidence produced by the appellant did not appeal to him or was considered not credit-worthy. The relevant part of the said judgment is as under:-
5. We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the Enquiry Officer. It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the, evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not credit-worthy. He. did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India (1966) 1 SCR 466 : (AIR 1966 SC 671), this Court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be. deprived of this only safeguard. Similarly in Mahabir Prasad v. State of Uttar Pradesh (1971) 1 SCR 201 : (AIR 1970 SC 1302), this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order-sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a gross case of non application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court.
6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed, to an order-sheet and no correlation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable.
(ii) The Enquiry Officer was out and out biased against him and he failed to produce even a single witness against him nor given any opportunity to cross examine the official witnesses, which caused serious prejudice to him; he failed to give any reasons for his consideration in respect of each Article of charges but held them to be proved without any oral and documentary evidence. Such an action is against the Rule 9 (25) of the Railway Servant (Discipline & Appeal) Rules 1968 which reads as under:-
(25)(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain -
(a) the articles of charge and the statement of imputations of misconduct or misbehaviour;
(b) the defence of the Railway servant in respect of each article of charge;
(c) an assessment of the evidence in respect of each article of charge; and
(d) the findings on each article of charge and the reasons therefor".
(iii) The disciplinary authority failed to consider his representation against the enquiry report and passed its order without any application of mind and in a non-speaking and non-reasoned manner. While imposing the penalty, it also did not consider the facts, circumstances, rules, law position and the defence arguments submitted by him; it failed to take notice of his assigned duties by his superiors; the Disciplinary Authority also did not take any action against even those accounts employees & officers of Delhi Division who are involved and charge sheeted by CBI Court & trial against them is pending in the court of Sh. Yogesh Khanna, Honble Special Judge CBI (Court No. 15) in CBI case No. FIR RC2 (A) 2005-ACU (iv)/CBI/New Delhi dated 14.02.2005.
(iv) The Disciplinary Authority committed the irregularity of considering extraneous matters which were not the part of the charge-sheet and the inquiry proceedings; in the impugned order he has stated that Rs.1500/- were entered in the ledger in month of April 2001 which was later on cut and endorsed as fake entries of VPF got cancelled but this amount was figuring in the total amount of the employee. The aforesaid allegation was never a part of the charge-sheet.
(v) The Disciplinary Authoritys order is against Rule 16 of the Railway Servant (Discipline & Appeal) Rules, 1968 as the removal order was passed by incompetent authority because the Sr. DFM was only his Disciplinary Authority and not his appointing authority. Under Railway Servants and Discipline & Appeal Rules, 1968, the punishment of removal from service can be imposed upon an employee only by the appointing authority and in his case it was the FA& CAO/ Northern Railway, Baroda House, New Delhi. Hence the disciplinary authoritys order is against the rules and as such it is null and void in the eyes of law. The said rule reads as under:-
16. Provisions regarding officers borrowed from Central or State Governments, etc. (1) Where the services of a Government servant from any Ministry or Department of the Central Government other than the Ministry of Railways, or a State Government, or an authority subordinate thereto, or of a person from a local or other authority (hereinafter in this rule referred to as "the lending authority") are borrowed for appointment to a service or post under the Ministry of Railways, the authority which appointed him to that service or post (hereinafter in this rule referred to as "the borrowing authority") shall have the powers of the lending authority for the purpose of placing such Government servant or person under suspension or for conducting disciplinary proceedings against him:
Provided that where an order suspending such Government servant or person is made or a disciplinary proceeding is conducted against such Government servant or person, the borrowing authority shall forthwith inform the lending authority of the circumstances leading to the order of suspension or, as the case may be, the commencement of the disciplinary proceedings against such Government servant or person.
(2) In the light of the findings in the disciplinary proceedings conducted against such Government servant or person -
(i) if the borrowing authority is of the opinion that any of the minor penalties specified in the rules by which such Government servant or person is governed, should be imposed on him, it may, after consultation with the lending authority, pass such orders on the case as it deems necessary, in accordance with the said rules:
Provided that in the event of a difference of opinion between the borrowing authority and the lending authority, the services of such Government servant or person shall be replaced at the disposal of the lending authority;
(ii) if the borrowing authority is of the opinion that any of the major penalties specified in the rules by which such Government servant or person is governed, should be imposed on him, it shall replace his services at the disposal of the lending authority and transmit to it the proceedings of the inquiry and thereupon the lending authority may pass such orders thereon as it may deem necessary.
(vi) The Disciplinary Authority failed to consider that the Vigilance Department conducted the raid in the present case and the only witness relied upon by respondent was also the Chief Vigilance Inspector in Vigilance Department. It was on the basis of the Vigilance raid, the respondents have issued the major penalty charge-sheet to the applicant. The respondents have also appointed the Enquiry Officer Sh. M. K. Sharma, CEI/Vig/HQ from the Department to conduct the Enquiry. They had already made up their mind to prove the charges against him as they had to oblige their own colleagues who are working under Vigilance Department. In this regard, he has relied upon the judgment in the case of Union of India Versus Prakash Kumar Tandon AIR 2009 SC 1375 wherein the Supreme Court deprecated the said practice.
(vii) The Disciplinary Authority failed to consider the aspect that the Applicant was to obey the order of his superior. Further, on the basis of same allegation and various other allegations his superior i.e. Sh. K. K. Sharma was charge-sheeted but he was exonerated from those charges. But applicant was punished on the basis of the same allegations. The said action of the respondent, was against the Honble Apex Court judgment in case of M. Raghavelu Vs. Govt. of A.P. and another reported in (1997 (10) SSC 779) wherein it was held as under:-
The Deputy Executive Engineer and the Supervisor, who were directly in-charge of the building construction, having been exonerated of the charge of failure to recheck the said entry, held, the Executive Engineer, Panchayat Raj, who was overall in-charge of the work could not be found to be guilty of the same charge on the same evidence although different findings were given by the Enquiry Officer.
(viii) The order of the Appellate Authority is in violation of the Honble Apex Courts judgment in the case of Sh. Narinder Mohan Arya versus Union of India & others SLJ 2006 (3) SC 211 wherein it was held as under:-
the order of the Appellate Authority demonstrates totally non-application of mind. The Appellate Authority, when the rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as to enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression consider is of some significance. In the context of the rules the Appellate Authority was required to see as to whether (i) the procedure laid down in the rules was complied with: (ii) the Enquiry Officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him and (iii) whether penalty imposed by the Disciplinary Authority was excessive.
(x) He has also referred to the Railway Boards letter No. 94/V- 1/DAR/2/1 dated 10.05.1994 wherein the model time schedule for the completion of the DAR proceedings has been prescribed to be 365 days but in his case, the respondents took 6 years.
13. The Applicant has also filed Miscellaneous Application No.2152/2012 for condonation of delay in filing this Original Application stating that after his Revision Petition was dismissed on 02.07.2010 he could file this OA only on 07.08.2012 due to the following reasons:-
(i) His mother was under medical treatment since 2010 and he was upset and disturbed due to some family problems.
(ii) He lost the entire documents due to family dispute between him and his wife. He is presently residing along with his mother.
(iii) He submitted an application dated 28.11.2011 under RTI Act, 2005 wherein he requested the Respondents to provide him the complete file of D&AR proceedings and also provide the certified copy of decision given by FA&CAO on his appeal/revision dated 02.07.2010.
(iv) The DRM, Northern Railway, DRM Office, New Delhi, provided him the complete D&AR proceedings file under RTI Act, 2005 only vide letter dated 16.5.2012.
14. In this regard he has relied upon a judgment of the Apex Court in the case of Divisional Manager, Plantation Divison Andaman & Nicobar Islands Vs. Mannu Marrick and Others 2005 (2) SCC 237 wherein it has been held as under:-
8. A Letters Patent Appeal there against was preferred before the Division Bench which was barred by limitation, as a delay of 103 days occurred in filing the same. As indicated hereinbefore, the delay in filing the said appeal was not condoned. Consequently, the appeal was dismissed; whereafter a review application was filed before the said court and the same also came to be dismissed.
15. He has also relied upon the judgment of the Apex Court in the case of State of Bihar Vs. Kameshwar Prasad Singh SLJ (1) SC 76 wherein it was held that delay may be condoned if sufficient cause is shown and if explanation for delay does not smack mala fide or dilatory tactics, court must show utmost considerations; in the case of N. Bala Krishnan Vs. M. Krishnamurthy 1998 (7) SCC 123 wherein it was held that the length of delay, is no matter, acceptability of the explanation is the only criterion and in the case of Dharam Pal Arora Vs. Punjab State Electricity Board SLJ 2007(3) SC 251 wherein it was held that substantial relief should not be refused on technical grounds.
16. The Respondents took the preliminary objection that this OA is not maintainable and it should be dismissed on the ground of limitation as there is a delay of two years in filing this OA from the date of the Revisionary Authoritys order. In this regard, they have relied upon the judgment of the Apex Court in the case of D. C. S. Negi Vs. Union of India & Ors: [SLP (Civil) No 7956/2011] wherein it was observed as under:-
Learned Counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicate its duty to act in accordance within statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non applicant is not at all relevant.
They have also relied upon the judgment of the Apex Court in the case of Rattan Chand Samanta Vs. Union of India (1994 SCC (L&S) 182) wherein it was held that Delay deprives the person of remedy available in law. A person, who has lost his remedy by lapse of time, loses his right as well; in the case of S. S. Rathore, Vs Union of India & Ors. AIR 1990 SC 10 wherein it has been held that the repeated representation does not extend the period of representation; in the case of Karnataka Power Corporation Ltd. through Its CMD and Another Vs. K Thangappan and Another 2006 (4) SCC 322 wherein it was held that mere making of representations cannot justify delay; in the case of Jai Dev Gupta Vs. State of Himachal Pradesh and Another 1999 (1) AISLJ SC 110 wherein it was held that continued representations do not keep the limitation alive; in another case of Sh. Bhoop Singh Vs. Union of India & Ors. 1992 (3) SCC 136 (para 8) wherein it been held that Inordinate & unexplained delay or latches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent long, he thereby gives rise to reasonable belief in the mind of others that he is not interested in claiming that relief.
17. On merits, they have submitted that a preventive check was conducted in the Provident Fund Section in Delhi Division and major irregular release was noticed which helped in perpetuating the fraud of increasing the subscription of certain employees who was subjected to check and pursuance to that, major penalty charge sheet was issued to the applicant along with other on 17.11.2003. Thereafter, the charge sheet was issued to the applicant and as he denied it, Sh. M. K. Sharma was appointed as an Enquiry Officer to conduct the inquiry. The Applicant has engaged Sh. S. K. Aggarwal, Sr. TIA as his Defence Helper. The first date of inquiry was held on 03.08.2004. On that date the Applicant and his Defence Helper were present. Photocopies of the relevant pages were also supplied to the Applicant. The Enquiry Officer again held the proceedings on 16.08.2004. On that date also the Applicant and his Defence Helper were present and were examined the original relied upon documents. Thereafter, those documents were taken on record and were marked as Ex. P-1 to Ex. P-6. The Applicant demanded 13 additional documents out of which the documents Nos.4, 5 & 6 were permitted by the Enquiry Officer keeping in view of their relevance with regard to the charges.
18. Thereafter, further inquiry was held on 13.08.2004, 16.08.2004, 08.09.2004, 05.10.2004, 20.10.2004, 05.11.2004, 23.11.2004, 16.12.2004, 05.01.2005, 17.01.2005, 04.02.2005, 18.02.2005, 14.03.2005, 21.03.2005, 30.03.2005, 11.04.2005, 21.04.2005, 15.09.2005, 09.11.2005, 29.11.2005, 14.12.2005, 10.01.2006 but the Applicant and his Defence Helper did not attend the inquiry on all those dates. Thereafter, the Enquiry Officer got completed the inquiry on 10.03.2006 and held that the charges have been proved against the Applicant. The Disciplinary Authority, vide letter dated 27.03.2006 furnished a copy of the same to the Applicant inviting his comments. He submitted his written submission dated 23.02.2006 and it was received on 17.04.2006. Thereafter, the Disciplinary Authority, after going through the charge sheet, inquiry report, evidence adduced during inquiry, defence note, written submissions to the Inquiry Report of the applicant, documents available on record, imposed the punishment of removal from service with immediate effect upon the Applicant, vide order dated 21.07.2008. The applicant submitted the appeal on 26.08.2008 to the Appellate Authority i.e. Addl. Divisional Railway Manger (T). He was also granted personal hearing on 25.11.2009. The Appellate Authority, after going through the charge sheet, inquiry report, evidence adduced during the inquiry, documents available on record and defence note/written submissions made by the appellant passed the reasoned and speaking order dated 16.12.2009 upholding the punishment of removal from service imposed upon the Applicant by the Disciplinary Authority. The said order was sent to the Applicant by Speed Post on 18.12.2009. Thereafter, the applicant made a Revision Petition on 08.03.2010 and the Revisionary Authority on 02.07.2010, after going through the charge sheet, inquiry report, evident adduced during the inquiry, defence note, representation, appeal of the applicant and documents available on record upheld the punishment of removal from service imposed upon the Applicant by the Disciplinary Authority and upheld by the Appellate Authority.
19. They have also submitted that the Applicant was given full opportunity to defend his case. But he and his Defence Helper did not attend the enquiry. They have also submitted that it was the Applicant who has to prove that what prejudice has been caused to him. The Disciplinary Authority, the Appellate Authority & the Revisionary Authority have gone through the charge sheet, inquiry report, evidence adduced during the inquiry, defence note, representation, appeal of the applicant and documents available on record and they have passed reasoned and speaking orders. Further they have submitted that the inquiry was conducted as per settled principles of law and procedure prescribed under the Railway Servant (Discipline & Appeal) Rules, 1968. They have also stated that it is the settled position of law that in exercise of jurisdiction under Article 226 of the Constitution of India, the court does not interfere with the factual findings and it shall restrain itself from re-appreciating evidence while exercising powers of judicial review. The objective of judicial review is to ascertain that a person received a fair treatment and it is not to re-appreciate the entire pleas and evidences and draw inferences again. In this regard, they have relied upon the judgment of the Apex Court in the case of D.K. Gupta Vs. MCD. In State of U. P. Vs. Man Mohan Nath Sinha 2009 (8) SCC 310 wherein it has been held that by re-appreciation or re-appraisal of the evidence led before Enquiry Officer, a court of appeal cannot reach its own conclusion. Further in the case of State Bank of India Vs. Ram Lal Bhaskar & Anr 2012 (1) SCSLJ 109 also the Apex Court held that High Court cannot sit in appeal over decision of the authorities.
20. We have heard the learned counsel for the Applicant Shri M.S. Reen and the learned counsel for the Respondents Shri V.S.R. Krishna. As far as Miscellaneous Application for condonation of delay is concerned, we are satisfied by the explanation given by the Applicant and it is accordingly allowed.
21. As far as the merit of this Application is concnerned, admittedly, the Applicant was charge sheeted on the basis of a report of the Vigilance Department of the Respondent-Railways. The Enquiry Officer, Shri M.K. Sharma, CEI/Vig/HQ was Vigilance Officer working in the same Vigilance Department. The only prosecution witness was an official from the Vigilance Department, Shri Ramesh Kumar Punhani, Chief Vigilance Inspector, Northern Railway, Baroda House. In other words, the Vigilance Department made the allegations against the Applicant, they charge sheeted him, their own officer conducted the enquiry and their own officer gave evidence against him and the very same Enquiry Officer submitted report holding that the charges against the Applicant were proved. In such a situation, can anyone expect fair treatment to the Applicant and an unbiased enquiry report? The Apex Court in its judgment in case of Union of India Versus Prakash Kumar Tandon (supra) deprecated the said practice and held that the disciplinary proceedings were initiated only after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. He evidently being from the Vigilance Department, with a view to be fair to the delinquent officer, should not have been appointed as an enquiry officer at all. This Tribunal also in its order in OA No.740/2010-S. K. Saxena vs. Union of India & Ors. has held that an officer who was part of the vigilance dispensation could not have been appointed as the Enquiry Officer. The relevant part of the said order reads as under:-
15. We find the plea raised on behalf of the respondents to be indefensible. We repeatedly called upon the learned counsel for respondents to invite our attention to any part of the counter wherein it may have been averred that the Inquiry Officer did not belong to the Vigilance dispensation. The learned counsel was not in a position to invite our attention to any part of the counter wherein that fact may have been mentioned. He kept on asserting all through that the Inquiry Officer was not a part of the Vigilance Organisation and that he was under the administrative control of the Vigilance dispensation either. However, he was not in a position to categorically say where exactly was the IO posted. Information about his exact posting would have surely enabled us to find out his relatability or otherwise to the Vigilance dispensation. In the absence of a precise indication about the identification about the placement of the Inquiry Officer, either in the pleasing or in the course of presentation, we feel justified in holding that there is force in the plea on behalf of the Applicant that the Inquiry Officer was a part of the Vigilance dispensation and he could not have, thus, conducted the inquiry in the context which was based upon allegations of corruption against the applicant for which a trap had been laid by the Vigilance Wing itself.
22. Again, the Honble Supreme Court in Zenit Mataplast P. Ltd v. State of Maharashtra, AIR 2009 SC (Supp) 2364 held that every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. Such an action/order would stand vitiated as it lacks bona fide as it would only be a case of colourable exercise of power. The relevant part of the said order reads as under:-
20. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism. The decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, but if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law (vide S.G.Jaisinghani V. Union of India & ors., AIR 1967 SC 1427; Haji T.M. Hassan Rawther V. Kerala Financial Corporation, AIR 1988 SC 157).
21. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fide as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society. In I.R. Coelho (dead) by LRs V. State of Tamil Nadu, AIR 2007 SC 861, the Apex Court held as under:-
"The State is to deny no one equality before the law........ Economic growth and social equity are the two pillars of our Constitution which are linked to the right of an individual (right to equal opportunity), rather than in the abstract.......Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review."
22. In a case like this, when the applicant approaches the Court complaining against the Statutory Authority alleging arbitrariness, bias or favouritism, the court, being custodian of law, must examine the averments made in the application to form a tentative opinion as to whether there is any substance in those allegations. Such a course is also required to be followed while deciding the application for interim relief.
23. The explanation given by the Respondents in this regard is quite strange. According to them, even though the Enquiry Officer, at the time of his appointment was Vigilance Inspector, he completed the enquiry only after he returned from a posting during the period of enquiry against a different post in the Railway Board. We cannot appreciate such an explanation. Just because there was change in the posting of the Vigilance Officer for a short while during the enquiry period, his basic mind set will not change. From the report submitted by the Enquiry Officer itself, his partisan attitude towards the Applicant is quite evident. As rightly pointed out by the Applicant the Enquiry Officer traveled outside the scope of the charge and held that the same has been proved relying upon documents which were not part of the charge. Further, the Enquiry Officer left the entire burden of proof upon the Applicant as there were no material prosecution witnesses to prove the charge against him.
24. Further, it is seen that the charges against the Applicant was proposed to be proved with the assistance of six documents. They include statement of Shri Subhash Rohilla, AA dated 29.5.2002 and 12.6.2003; the copy of PF subscription of Sh. Shiv Shankar, PF A/C No. 0281439 of March paid in April 2001 and April paid in May, 2001; the copy of PF account of Sh. Shiv Shankar, PF A/c No. 0281439 of 2001-02, the copy of PF account of Sh. Narottam Singh, PF A/c No. 284169 of 1998-99; the copy of wages register of Sh. Narottam Singh, PF A/c No.284169 of 1998-99; and the detail of PF advances passed by Sh. Subhash Rohilla in one day i.e. 10.5.2001 prepared by Sh. Rohilla dated 12.6.2002. As already stated the only prosecution witness to prove the charge was Shri Ramesh Kumar Punhani, Chief Vigilance Inspector, Northern Railway, Baroda House. He has nothing to do with those documents at all. Rather, the material witnesses were Shri Shiv Shankar, Shri Narottam Singh, Shri Mukesh Kumar, Tech-II on whose seat the Applicant was working while he was on leave and Shri K.K. Sharma, SSO/PF-II who was his superior officer and signed in approval of whatever the Applicant has done. Even the Disciplinary Authority failed to furnish all the relied upon documents to the Applicant. The Disciplinary Authority flatly refused to supply copy of wages register of Sh. Narottam Singh PF A/c No. 284169 of 1998-99 mentioned at Sr. No. 5 of Annexure III of charge sheet vide its letter No. 2003/D&AR/Vig./SR/DLI dated 27.02.2004. The Apex Court in Modula India v. Kamakshya Singh Deo (1988) 4 SCC 619, held that in a disciplinary proceedings documents are the tools for the delinquent-employee for cross-examining the witnesses who deposed against him. Unless there are witnesses to prove the charge, mere listing of documents is of no use. The relevant part of the said judgment reads as under:-
It is well settled proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross examination. The mere statement of plaintiffs witness cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross examination..
Again, the Apex Court in its judgment in Roop Singh Negi Vs. Punjab National Bank 2009 (2) SCC 570 held that mere production of documents is not enough but their contents have to be proved by examining the witnesses. The relevant part of the said judgment reads as under:-
..The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof..
25. Again, the Apex Court in its judgment in the case of Hardwari Lal Vs. State of U.P. and Others AIR 2000 SC 277 held that non-examination of the material witness would amount to non-observance of the principle of natural justice. The relevant part of the said order reads as under:-
3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.
26. Therefore, in our considered view the Enquiry Officer has conducted the enquiry proceedings against the Applicant only as an empty formality and his report holding that the charges against the Applicant have been proved is without any material or legal evidence and, therefore, it is perverse.
27. The Disciplinary Authority has also simply toed the lines of the Vigilance Department. Neither at the stage of drawing up the statement of imputations of misconduct into the Articles of charges nor the statement of imputations of misconduct in supporting those charges, the Disciplinary Authority has also not considered the written statement of defence submitted by the Applicant. In terms of Rule 9(a)(i) of the Railway Servants (Discipline & Appeal) Rules, 1968, 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. When the Applicant was served with the articles of charge vide Memorandum dated 07.11.2003, he submitted a very detailed written statement of defence on 23.02.2006. The Disciplinary Authority did not consider a single submission of the Applicant as required under the aforesaid rules. The Disciplinary Authority was, after due consideration, expected to take definite decision whether the enquiry should be proceeded with or not. But on the other hand, the Disciplinary Authority simply appointed the Enquiry Officer to hold the enquiry against him. The Apex Court in its judgment in State of U.P. & Others Vs. Saroj Kumar Sinha 2010 (2) AISLJ 59 has held that the departmental enquiry cannot be treated as a casual exercise. The relevant part of the said judgment reads as under:-
28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The Inquiry Officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.
In the same judgment, the Apex Court has held that Since no oral evidence has been examined, the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
28. In its judgment in the case of R.P. Bhatt V. Union of India 1986 (2) SCC 651, the Apex Court considered the import of word consider and held as under:-
"The word "consider" in Rule 27(2) implies "due application of mind". It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.
29. Further, it is seen that the Respondents have also charge sheeted Shri K.K. Sharma, Section Officer under whom the Applicant was working at the relevant time. The said Shri Sharma has been performing his duties in his supervisory capacity. He has countersigned all the entries made by the Applicant in the relevant records. However, Shri Sharma was exonerated in the charge. As held by the Apex Court in the case of R. Raghavelu (supra), when the officer who was directly incharge of the work having been exonerated of the charge of failure to recheck the entries, the officer who made the entries in that record could not be found to be guilty of the same charge on the same evidence although different findings were given by the Enquiry Officer.
30. It is also seen that the Enquiry Officer submitted his report on 18.03.2006 and the Applicant submitted his representation against it on 10.04.2006. But the Disciplinary Authority took more than 2 years to pass its order removing the Applicant from service w.e.f. 21.07.2008. The punishments of dismissal/removal from service are generally imposed upon a delinquent official for grave misconduct. If the Applicants alleged misconduct was so grave and so serious, it is not understood as to why the Disciplinary Authority kept the matter pending with him for over two years. In this regard, it is quite relevant to take note of the submission of the Applicant that the Disciplinary Authority has imposed the extreme punishment of removal from service because he had complained against him to the Central Information Commission for his failure to provide information under the Right to Information Act, 2005. The Appellate Authority and the Revisionary Authority have also failed to observe in their order as to whether the Enquiry Officer complied with the procedure laid down in the rules, whether the Enquiry Officer was justified in arriving at the finding that the Applicant was guilty of the misconduct alleged against him and whether the Disciplinary Authority was justified in imposing any penalty upon the Applicant.
31. In view of the above facts and circumstances of the case and the law laid down by the Apex Court on the issues discussed above, we allow this Original Application and quash and set aside the report of the Inquiry Officer dated 18.03.2006, orders of the Disciplinary Authority dated 21.07.2008, Appellate Authority dated 16.12.2009 and the Revisionary Authority dated 02.07.2010. Consequently, the Applicant shall be reinstated in service with all the consequential benefits except back wages for the period from date of rejection of the Revision Petition, i.e. 02.07.2010 and to the date of filing this OA before this Tribunal, i.e., 07.08.2012. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) Rakesh