Central Administrative Tribunal - Delhi
Hon Ble Shri L.K.Joshi vs Union Of India: Through on 19 August, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2313 of 2006
New Delhi this the 19th day of August, 2010
Honble Shri L.K.Joshi, Vice-Chairman (A)
Honble Dr. Dharam Paul Sharma, Member (J)
Shri Kuldeep Kumar,
S/o Shri Sri Chand,
Ex. Diesel Assistant Driver,
Under CTFO (R))
Chotey Lal, age 55 years,
Gangapur City
.... Applicant
(By Advocate: Shri B.S.Mainee)
VERSUS
Union of India: through
General Manager,
Western Central Railway,
Jabalpur.
Divl. Railway Manager,
Western Central Railway,
Kota
Sr. Divl. Electrical Engineer (TRO),
Western Central Railway,
Kota
.. Respondents
(By Advocate: Mr. Rajinder Khattar)
O R D E R
Dr. Dharam Paul Sharma, Member (J) This application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 challenging Order No.E/L/308/20/539 dated 11.6.2004 passed by Sr. Divl. Electrical Engineer (TRO) Kota, dismissing the applicant from service as at Annexure A-1 and Order No.E/L/308/Accident/20/539 dated 12.6.2006 passed by Chief Operating Manager, Western Central Railway, Jabalpur whereby the appeal filed by the applicant against the order of dismissal from service has been rejected and the penalty of dismissal has been upheld as at Annexure A-2.
2. The applicants case, in brief, is that after having been selected as Diesel Assistant by Railway Recruitment Board, Ajmer, he was sent for training. Before he could complete the said training, the respondents passed orders on 19.02.1997 to curtail the training and give him independent charge to work as full fledged Diesel Assistant. A copy of the office order dated 19.2.1997 is as at Annexure A-3. This was stated to be in violation of the safety principles as the applicant alleged that he was neither given any road learning nor any practical training and yet was deputed to work on Goods Train. On 27.7.1997, the applicant was deputed to work on Train No.2627 Dn. Karnataka Exp. Ex. GGC to NDLS, notwithstanding the fact that after having been given the necessary training, he was required to work on goods train. The applicant claimed that he was forced to work with one Mr. N.H.Ellis to whom the applicant did not know at all. The applicant learnt that Shri Ellis used to take drink even while working on trains. The complaint of the applicant had been that Shri Ellis was not given a breath analyzer test before putting him to work on the train on 27.7.1997 and this serious omission on the part of the Railway administration resulted in a serious accident in which the applicant was seriously injured and was hospitalized for about two months in various hospitals. As a result of the accident, the applicant lost four fingers of his right hand. A memorandum of charge sheet for major penalty dated 16.9.1997 was served upon the applicant. The said Memorandum is in Hindi. The applicant has however filed English transcription of that Memorandum, the relevant extracts of which are as follows:-
1. On 27.7.1997, on completion of stipulated rest in the main Rest Room, from Kota Division in Central Railway, due to breakage in Gangapur City Tughlakabad Section, you were booked at 1810 hrs. on the Karnataka Express 2627 DN at the starting place. On Duty 1755 Hours.
2. After being trained only in the diesel loco you are posted at Gangapur City Tughlakabad Section for the last about one year.
3. Working on an important train such as Karnataka Express, hauled by Multiple Loco with cent percent Brake Power, by your unsafe and careless operation and train operation knowledge/by crossing danger point of Faridabad (Central Railway) Home and Starting Signal; whereas one distance-proof signal was pale; Himgiri which was leaving the station was hit from the back side, as a result of which along with your driver Shri N.H. Alis, 13 Railway passengers/Railway staff died, more than 50 passengers got injured and National property worth of Rs.1.5 crores got damaged and the image of the Railways got a jolt.
4. Between Gangapur City and the spot of the accident, your train stopped at Mathura Station for about five minutes (due to signaling) and at Shri Mahavir Ji Station due to brake binding; before this stoppage and before the accident spot, you did not report about your loco, driver and unsafe running operation of your train from any place.
5. From the above paragraphs, it comes to the conclusion which shows about your not taking any necessary action to avoid seriousness of this accident due to indisciplite about the safe operation by the driver, loco and train.
6. Therefore, charges are leveled against you under Rules 2.06, 2.11 (1) (a), (b), 2.11 (2) (a), (b), (c), (d, 3.78, 3.83 (1), (2), 4.2 (3) of the General Adhinasth Rules, 1981 and under Rules 3 (i) (ii of the Railway Employees Conduct Rules, 1966. Annexure III List of documents by which the Article of charge framed against Shri Kuldeep Kumar, Assistant Driver, Gangapur are proposed to be sustained:
1. A.T.F.O.(R), Gangapur Diary.
2. T.M.C. Kota Diary.
3. Kota Book, Gangapur.
4. On duty of Duty Register.
5. Any other record/register concerned.
Annexure IV List of witnesses by whom the articles of charge framed against Shri Kuldeep Kumar, Assistant Driver, Gangapur (Name and designation of the Railway Servant) are proposed to be sustained.
As above concerned
3. On 20.9.1997, the applicant submitted his reply denying the charges. A copy of said reply is at Annexure A-5. In the said reply, the applicant, inter alia, requested for supply of relied upon documents as well as certain additional documents, such as Accident Inquiry Committees findings including a copy of his own statement and the statements of witnesses as well as the complete file of the said inquiry. The applicant in his reply has further requested that the inquiry be commenced after supply of the required documents whereupon the preliminary inquiry be held in the first instance followed by regular inquiry. While conducting the preliminary inquiry on 3.11.97, the Inquiry Officer instead of ascertaining as to what evidence the parties would be producing during the inquiry and determining the modalities for ensuring expeditious disposal of the inquiry as required under the rules, proceeded to examine the applicant straightaway with regard to the charges leveled against him.
4. The applicants grievance is that the applicant was not provided with the copies of the relevant documents, in spite of his request on the ground that they were not relied upon documents and also that the same were not available with the Inquiry Officer as is evidenced by the inquiry report, a copy of which is at Annexure A-6. Furthermore, instead of providing preliminary inquiry report and statements of the witnesses recorded therein, the applicant was merely allowed to peruse these documents, which prejudiced the applicant in his proper defence. Besides, the Inquiry Officer exceeded his jurisdiction when he cross-examined the applicant even before recording the evidence of the departments witnesses. The applicants statement in examination-in-chief was not recorded. Instead, the Inquiry Officer examined the applicant in Question and Answer form and put as many as 26 questions before adjourning the inquiry which was resumed on 05.11.1997 when the Inquiry Officer put another 14 questions and adjourned the inquiry. Thereafter, on 7.11.97, the Inquiry Officer put another 22 questions to the applicant. Again on 3.12.97, the Inquiry Officer put 8 questions to the applicant. The findings of the Inquiry Officer are solely based on the answers of the applicant to these questions, which the Inquiry Officer brought on record during the preliminary inquiry. This is in stark violation of the provisions of Railway Servants (Discipline & Appeal) Rules, 1968, under which the Inquiry Officer is required to examine the defence evidence only after the prosecution evidence is completed and the applicant has to be examined in the end. The procedure followed by the Inquiry Officer is, thus, contrary to the provisions of the aforesaid rules. It is further alleged that the Inquiry Officer had deputed JD-1 to Faridabad for certain verification and the report, received by him, was relied upon by the Inquiry Officer at the back of the applicant.
5. The Inquiry Officer submitted his report on 24.12.97 to the Disciplinary Authority. A copy of the same was forwarded to the applicant the same very day i.e. 24.12.97. The applicant submitted his reply to the inquiry report on 8.01.1998, a copy of which is as at Annexure A-10. Without considering all the points raised by the applicant in his reply as aforesaid, the Disciplinary Authority passed the order dated 2.2.1998 imposing the penalty of dismissal from service as aforesaid.
6. An appeal was preferred by the applicant against the said order which was rejected by the appellate authority on 30.5.1998. The revision petition filed thereagainst by the applicant was also dismissed by respondent no.1 by a non-speaking order on 30.7.201.
7. The orders were challenged by the applicant in OA No.296/2002 in Jaipur Bench which was allowed vide Order dated 17.2.2004 on the ground that the penalty order was not passed by the competent authority, with the liberty to the respondents to pass afresh order in accordance with law.
8. The Disciplinary Authority again passed the same very order on 11.6.2004. While doing so, all the points raised by the applicant are alleged to have not been given due consideration by the Discipline Authority. Thereupon, an appeal was preferred by the applicant against the said order of dismissal raising a number of points. However, without giving consideration to the points raised by the applicant, the appellate authority too dismissed the appeal on 22.5.2006 and upheld the decision passed by Disciplinary Authority. Feeling aggrieved, the applicant has filed the present application challenging the legality and correctness of these orders, inter alia, on the following grounds:-
(i) The charge sheet served upon the applicant was a vague charge sheet which was amended after the evidence during the inquiry was almost over;
Additional relevant documents demanded by the applicant were refused on the ground that they were not relied upon documents;
The preliminary Inquiry Report which was conducted before issuing the charge sheet was not supplied before starting the inquiry inspite of repeated demands;
The charged officer was examined thoroughly before examining the prosecution witnesses;
The Inquiry Officer at the very outset started cross-examining the applicant without recording examination-in-chief, which prejudiced defence of the applicant; and The Inquiry Officer violated Rule 9.21 of Railway Servants (Discipline & Appeal) Rules.
9. The principal grievance of the applicant is that the respondents have failed to appreciate that the applicant did his utmost to prevent the accident and applied the emergency brake in the process of which he was seriously injured and was hospitalized for two months and ultimately lost his four fingers of his right hand. The applicant claims that the entire negligence was on the part of the driver who has been killed during the accident but the respondents have made the applicant a escape goat without appreciating the efforts of the applicant to prevent the accident at his own risk.
10. In the reply, the respondents have raised a preliminary objection on the ground of jurisdiction as the impugned order of dismissal was passed by the appellate authority at Jabalpur as well as by the disciplinary authority at Kota. Thus, the matter does not come within the jurisdiction of the Principal Bench. The applicant had earlier filed Original Application No.296/2002 against the order of the authority at Jaipur. Hence the Principal Bench has no jurisdiction unless a transfer petition is filed and the same is duly allowed.
11. Controverting the applicants averments in his application, the respondents claimed that the copies of all the documents except the CRs Committee Report, have been duly supplied to the applicant. In so far as the supply of CRs Committee Report is concerned, the same was denied due to the confidential nature of the document but the same can be produced before the Tribunal for its perusal. The preliminary inquiry report was duly supplied to the applicant before initiating the inquiry and the applicants contention is an after thought. It has been submitted that the charge sheet has never been amended. The respondents have submitted that after successful training from the department, he was working on Gangapur City to Tuglakabad route for the last six months before the date of the accident on goods train. There was no difference in the working of passengers and goods trains insofar as the learning road training was concerned. In any case, the applicant should have objected before the boarding and take off the passenger train and now he cannot come with the plea of the difference in the running of goods trains and passengers trains. As a matter of fact, there is no difference in the rules of goods and passenger trains. It has further been submitted that the applicant along with his defence counsel was present during the preliminary inquiry on 03.11.1997. If he had any objection about the conduct of inquiry, the same ought to have been put up before the Inquiry Officer. The inquiry has been conducted strictly in accordance with the provisions of Railways Servants (Discipline & Appeal) Rules, 1968. The applicant has been given due opportunity and there is no violation of any principle of natural justice. The Disciplinary Authority, after applying its mind and taking into account the documents, imposed the penalty of dismissal which is not open to any objection in law. In any case, the respondents are well within their power to amend/rectify and change the contents of the charge sheet in accordance with rules, if necessary, without addition in the charges. It has been further submitted that the applicant has not exhausted the available remedy since he has not filed any revision against the order of the appellate authority under the rules.
12. The applicant filed his rejoinder wherein the preliminary objection raised by the respondents has been denied as the applicant is residing in Delhi within the jurisdiction of this Bench after his dismissal from service. The applicant has denied the respondents contention that there is no difference in the working of passengers trains and goods trains. It has further been submitted that denial to supply the copy of accident Inquiry Committee Report conducted by the CRs on the ground of it being a confidential report, is not correct. Furthermore, it has strongly been urged that this is settled principle of law as well as statutory rules as contained in Railway Servants (Discipline & Appeal) Rules,1968 that the defence witnesses/charged officer have to be examined only after completing prosecution evidence. The action of the Inquiry Officer in examining and cross-examining the charged officer at length at the very outset of the inquiry at the preliminary stage is violative of this settled principle.
13. The applicant has also filed additional affidavit opposing the respondents preliminary objection to the maintainability of the application on the ground of jurisdiction stating, inter alia, that the original application is maintainable under Rule 6(2) of Central Administrative Tribunal (Procedure) Rules.1987 as the applicant is residing in Delhi with his uncle at House No.3547, Mohalla Jatwara, Daryaganj, New Delhi-2. The judgments, relied upon by the respondents in support of their preliminary objection to the maintainability of the application in the Principal Bench, in the absence of any transfer petition, are sought to be distinguished as these cases have not been decided under the Central Administrative Tribunal Act and the rules made thereunder, especially Rule 6 (2) of the Central Administrative (Procedure) Rules, 1987.
14. On 13.3.2010, the applicant moved Misc. application No.801/2010 for placing additional documents on record being the copy of the judgment in Case No.7511/2005 passed by Shri Fakhruddin, Judicial Magistrate, Ist Class, Faridabad, whereby the applicant, who was one of the three accused in this case, was acquitted under Sections 279, 337, 338 & 304 A IPC in view of the fact that the learned Magistrate reached to the conclusion that the applicant has suffered crushing injuries with amputation of his right middle and index fingers while applying emergency brakes and the applicant did everything which was assigned towards his part being an Assistant Driver of the Karnataka Express. When the matter came up for hearing on 23.03.2010, the applicants counsel contended that the applicant had been punished by the disciplinary authority only on the ground that the applicant did not apply the emergency brake, a fact which is clearly negated by the courts judgment in case No.7511/2005. This was opposed by the respondents counsel on the ground that this was not among the grounds taken in the Original Application. The applicant then moved MA-1133/2010 on 22.04.210 for amending the grounds of the present Original Application by adding the following ground as 5.12 in the OA:-
That the applicant was also prosecuted in the Criminal Court on the same very charge which was leveled against him in the disciplinary proceedings and the said Criminal Case has already been decided vide judgment dated 11.04.2008, in terms of which, the Court has given a clean chit to the applicant and after perusal of the entire evidence including the statement of a Railway doctor has unmistakably held that the applicant had applied the emergency brake and in the process his hand was capsized, as result of which , he had suffered crushing injuries with imputation of right middle and index finger with gangling of right little finger. It has further been held that receiving of such an injury by the applicant can only be presumed as possible if he would have applied the vacuum/pressure brake of the Karnataka Express being an Assistant Driver. It has further been concluded that the applicant did everything which was assigned towards his part being an Assistant Driver of the Karnataka Express.
In view of the aforesaid findings of the Judicial Magistrate, the charge leveled against the applicant in the charge sheet dated 16.09.1997 falls flat and as such, the charge sheet itself is liable to be quashed and set aside.
15. The Misc. application seeking to amend the OA as aforesaid was allowed vide order dated 26.4.2010.
16. At the hearing, the learned counsel for the applicant vehemently contended that the Inquiry Officer has acted as a prosecutor rather than as a judge and proceeded to cross-examine the applicant at the very outset putting searching questions to the applicant, replies of which he has relied upon while reaching his conclusions/findings in the inquiry. In support of this, the learned counsel has drawn our attention to the report of the Inquiry Officer, copy of which is at Annexure A-9. A plain reading of the said report clearly reveals that while recording his findings, the Inquiry Officer has relied at length on the replies of the applicant to the questions so put at the beginning of the inquiry without adverting to the evidence of the department in the matter. This has clearly vitiated the inquiry proceedings rendering them liable to be quashed and set aside. The learned counsel placed strong reliance in this regard on the respondents Circular No.R.B.E No.89/2001 which clearly spells out the procedure to be adopted in the conduct of an inquiry and the role of the Inquiry Officer. The conduct of the inquiry in the present case is in violation of these guidelines.
17. The learned counsel further submitted that the documents demanded by the applicant in his defence were not provided. One such document is CR report. The reason for not providing copy of this document as given by the respondents has been that this is not a relied document. But the fact remains that even though this not among the relied upon documents, the Inquiry Officer has indeed relied upon the CR report in reaching his conclusions in the inquiry report and, thus, it cannot be said that the same was not relied upon. The learned counsel has drawn our attention in this regard to page 8 of the inquiry report (at page 83 of the paper book) wherein the Inquiry Officer observed that the statements given during the conduct of CRs inquiry are self contradictory to his statements recorded during the course of the DAR inquiry as mentioned therein. Non-supply of these documents so relied upon by the Inquiry Officer while reaching his conclusions in the inquiry, has ex facie caused serious prejudice to the applicant in his defence and as such vitiated the inquiry proceedings and consequentially, any action based thereon.
18. It has been further submitted by the learned counsel for the applicant that the disciplinary authority and the appellate authority have not considered all the points that he had raised in his reply/appeal for that reason the impugned orders are vitiated on the ground of non speaking orders and non-application of mind to the said points. An illustration of this as pointed out by the learned counsel is that the applicant has, inter alia, contended that the rules whose violation is said to have been committed by the applicant are not applicable to him. There is no finding on this aspect. This goes to the root of the matter. On the contrary, the learned Magistrate in his order of acquittal has, inter alia, stated that the responsibility envisaged in the said rules do not shift burden to the Assistant Driver. It is further contended that the Inquiry Officer has not complied with the mandatory provisions under Rule 9(21) of the Railway Servants(Discipline & Appeal) Rules,1968 by not putting questions to the applicant on the circumstances appearing against him. This omission to comply with statutory requirement by the inquiry officer vitiated the proceedings and therefore impugned orders are liable to be quashed.
19. The learned counsel very strongly contended that the applicant has also been proceeded against in criminal trial on the same charge with regard to the same incident in which he has been honorably acquitted on merits. When the Judicial Officer has recorded a finding of fact on the performance of duties by the applicant in the context of the accident in question, it would not have been opened to the Inquiry Officer to arrive at a different finding in respect of same fact on the same evidence. The learned counsel referred to in this regard the applicants act of applying emergency brakes on which contradictory findings have been recorded by the court on one hand and by the Inquiry Officer on the other hand. He has drawn out attention to para 21 of the judgment of the learned Magistrate wherein he has observed that making efforts to avoid the accident, in which the Assistant Driver lost his most of the fingers from his valuable hand, cannot be termed as a negligent act and conduct. Rather, it shows that accused No.1 Kuldeep did everything, which was assigned towards his part being the assistant driver of the Karnataka Express. Diametrically opposed and contradictory findings have been recorded by the Inquiry Officer on this aspect of the matter i.e. he did not apply emergency brake in time, on the basis of which the applicant has been dismissed from service which cannot be sustained in law.
20. The learned counsel for the respondents at the very outset reiterated the preliminary objection as to the maintainability of the original applicant on the ground of jurisdiction. It has further been submitted by the learned counsel for the respondents that the judicial review in disciplinary matter is of limited scope and it is not open to this Tribunal to re-appraise the evidence. The inquiry has been held according to the rules. No violation of the rules has been alleged. It cannot be said to be a case of no evidence as an accident has, indeed, taken place where a great loss of lives and property was caused. The applicant has been provided the copy of the preliminary inquiry report. The copy of CRs report was, indeed, not provided to him for it being confidential in nature. Nevertheless, he was aware of it as he had appeared before the CR Inquiry Committee and, therefore, no prejudice had been caused to him by its non-supply. There has been no amendment in the charge sheet as alleged by the applicant. The applicant has challenged his dismissal from service before the Jaipur Bench taking all these points. The applicant was given all the necessary training and there is no difference in Goods train and passenger train and in any case, if the applicant had any objection on this count, he could have raised the same before accepting the assignment. He cannot raise these pleas now when he has been found guilty of the charges leveled against him.
21. To sum up his argument, the learned counsel for the respondents submitted that the charge sheet has never been amended and the competent authority has passed the order in pursuance of the order in OA No.296 of 2002 dated 17.2.2004. All the relevant documents were supplied to the applicant. As regards the additional documents demanded by the applicant, the same were refused due to confidential in nature of the documents. The same can be produced before the Tribunal for perusal. The preliminary inquiry report has been provided before initiating the inquiry. The inquiry proceedings have been conducted in accordance with the Railway Servant (Discipline & Appeal) Rules, 1968 and there is no violation of any rules.
22. We have given our careful consideration to the respective submissions made by the learned counsel for both the parties and we have also carefully perused the records of the case.
23. At the very outset, the preliminary objection raised by the respondents be dealt with first. In view of the fact that the applicant has been residing in Delhi, we do not find any substance in the objection. In any case, this matter is finally put to rest by the Honble Chairman by exercise of his powers under the rules for the retention of the application in the Principal Bench vide his order dated 1.6.2009.
24. Admittedly, there has been an accident between Karnataka Express with Him Sagar Express on 27.07.1997 at Faridabad in which several persons died while several others were injured. The accident also caused great loss to Railway property. The accident is stated to be attributed more to human failure rather than to any technical fault. The applicant was the Assistant Driver of the Karnataka Express whose duty was to assist Shri N.H. Ellis, who was the principal driver and, as such, was incharge of the movement and operation of running, movement and operation of the train. Shri Ellis unfortunately died in the accident. The question arises whether these facts by themselves prove the fault of the applicant in discharge of the duties in assisting the main driver in safe running of the train and following the rules in this regard. The lead role in the safe running of the train was that of Shri Ellis being the main driver of the train. The role of the applicant was of subsidiary nature as he being assistant driver, had to play second fiddle to Sh. Ellis, the main driver. If he had performed his role and yet an accident took place on account of any act or omission on the part of Shri Ellis, the main driver, can the applicant be held responsible for the same. Before the applicant can be held responsible for violating any rules, it would be imperative to determine in the first instance as to how far and to what extant he is responsible for jeopardizing the safety of the main train, the passengers, the railway properly and above all the safe and proper running of the train on which he was deployed. If there is no such evidence against him, he cannot be held vicariously responsible for any act or omission on the part of Shri Ellis, the main driver, in-charge of the train. The applicant has been simultaneously proceeded against in this regard both departmentally as well as in criminal prosecution in which different findings have been recorded on the role and performance of the applicant in the context of the accident. We will deal with the impact of the applicants, acquittal in the criminal case upon the penalty imposed on the applicant earlier in the departmental action and vice versa later on. But first, let us examine if inquiry report and the action of the departmental authorities based thereon can be sustained on their own, keeping in view the objections raised thereagainst by the applicant.
25. The applicant has not been able to substantiate his contentions relating to the vagueness and improper amendment of the charge and the same are accordingly dismissed.
26. The principal objections raised by the applicant relate to improper conduct of the inquiry by the inquiry officer, non-supply of copies of necessary documents to the applicant that prejudiced him in defence and non-adherence to the mandatory procedures under the relevant rules such as sequence in recording of evidence and failure to question the applicant to explain the circumstances appearing against him in the evidence.
27. Before dealing with there objections on merits, it would be expeditious to recapitulate the rule position and administrative practices, instructions and guidelines thereon for proper understanding and appreciation of the issues involved in the case. Rule 9 of the Railway servants (Discipline & Appeal) Rules, 1968 provides for the procedure for imposing major penalties. The relevant extracts of Rule 9 are as under:-
Rule 9 (11) The railway servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by the inquiring authority of the order appointing him as such, as the inquiring authority may, by a notice in writing, specify in this behalf, or within such further time not exceeding ten days, as the inquiring authority may allow.
(12) The inquiring authority shall, if the railway servant fails to appear within the specified time, or refuses or omits to plead, require the Presenting Officer if any, to produce the evidence by which he proposes to prove the articles of charge and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the railway servant may for the purpose of preparing his defence, give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow for the discovery or production of any documents which are in possession of Railway Administration but not mentioned in the list referred to in sub-rule (6).
**** (15) The inquiring authority shall, on receipt of the notice for discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents by such date as may be specified in such requisition:
Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case.
(16) On receipt of the requisition referred to in sub-rule (15), every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority by the specified time:
Provided that if the authority having the custody or possession of requisitioned documents is satisfied for reason to be recorded by it in writing that the production of all or any such documents would be against the public interest or security of the state, it shall inform the inquiring authority accordingly and the inquiring authority shall, on being so informed, communicate the information to the railway servant and withdraw the requisition made by it for the production or discovery of such documents.
(17) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved, shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer if any, and may be cross-examined by or on behalf of the railway servant. The presenting officer, if any, shall be entitled to re-examine the witnesses on any points on which they have been cross examined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such question to the witnesses as it thinks fit.
***** (19) When the case for the disciplinary authority is closed, the railway servant shall be required to state -his defence orally, or in writing, as he may prefer. If the defence is made orally it shall be recorded and the railway servant shall, be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any.
(20) The evidence on behalf of the railway servant shall then be produced. The railway servant may examine himself in his own behalf, if he so prefers. The witnesses produced by the railway servant shall then be examined by or on behalf of him and shall be cross-examined by or on behalf of the Presenting Officer, if any. The railway servant shall be entitled to re-examine the witnesses on any point on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
(21) The inquiring authority may, after the railway servant closes his case, and shall, if the railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the railway servant to explain any circumstances appearing in the evidence against him.
28. It is considered expedient now to refer to the contents of R.B.E.89/2001 in its entirety as follows:-
R.B.E 89/2001Subject : Procedure to be followed in conducting departmental inquiries and the role of the Inquiry Officer regarding.
[No.E(D&A)/2000 RG 6- 60, dated 9-5-2001 A case has come to the notice of this Ministry where, while conducting the inquiry in a disciplinary case, the Inquiry Officer examined the charged official in regard to the charges during the preliminary hearing(s) itself before examination of the Prosecution Witnesses. Also, though no Presenting Officer had been appointed, the Inquiry Officer prepared a written brief himself, purported to have been prepared by the Presenting Officer, and sent a copy of the brief to the charged official under his own signature. In the inquiry report also, under the heading oral arguments given from the Prosecution Side, the Inquiry Officer actually gave details of the questions put by him. The general conduct of the Inquiry Officer was also not befitting his role as an impartial authority as he subjected the charged official to a searching cross-examination. In the said case, the appeal had to be disposed of in favour of the charged official solely on account of the improper manner in which the inquiry was conducted in gross deviation of the prescribed procedure, which had vitiated the proceedings.
2. Railways are aware that the procedure for conducting departmental inquires has been laid down in detail in Rule 9 of RS[D&A] Rules. It is evident from sub-rules (11) and (12) of Rule 9 that a preliminary hearing has to precede the regular hearings. The combined effect of the above two sub-rules is that, before the regular inquiry is held, a preliminary meeting may be arranged between the parties concerned viz., the Inquiry Officer, the charged official and the Presenting Officer, if any, with a view to ascertain what evidence they shall be producing during the inquiry and the modalities which may be adopted to ensure expeditious disposal of the inquiry. The Inquiry Officer may also use this opportunity to inquire from the Charged Official regarding the receipt of the charge memo/listed documents etc., the nomination of defence helper by the Charged Official, the additional document(s), if any, that he requires, and also regarding his admission or denial of the charge(s), so that the time is not wasted in holding an inquiry on the admitted charge(s).
1. The regular inquiry involving actual presentation of the case on behalf of the disciplinary authority and the charged official will naturally commence only after the above preliminaries to the inquiry are completed. What procedure should be followed once the regular inquiry has started has also been brought out clearly in the sub-rules (17) to (22) of Rule 9. In brief, the case on behalf of the disciplinary authority shall first be presented and only then shall the charged official be called to present his defence.
2. The principles of natural justice demand that the charged official should not be called upon to disclose his defence before the prosecution has completed the presentation of its case. It is emphasized here that the sequence laid down in the above sub-rules should be strictly adhered to, as violation of this sequence may cause a serious flaw in the proceedings.
3. It is also emphasised here that the Inquiry Officer is not a prosecutor and therefore, it is not his duty to somehow prove the charge(s). He has been appointed to assist the disciplinary authority in taking a correct and impartial decision on the basis of the evidence on record. For this purpose, the Inquiry Officer may ask questions from the witnesses with a view to elucidating answers for a proper understanding of the facts before him. However, he should obviously avoid searching cross examination.
1. The most crucial facet of the personality of the official conducting the departmental inquiry is his impartial approach, as he is performing a quasi-judicial function. His conduct must be above board so much so that he should not merely be impartial but also seem to be so, to ensure that the inquiry commands the confidence it deserves. This aspect assumes greater significance when there is no Presenting Officer. As it is not feasible to appoint Presenting Officers in majority of the inquiries, the Inquiry Officer has to examine/cross examine the witnesses including the defence witness to find out the truth in the charges.
4. It is desired that the position brought out in paras 2 and 3 above is brought to the notice of all concerned for their guidance and strict compliance so that the types of situation brought out in para 1 above is avoided in future.
29. The administrative instructions as to the sequence in procedure required to be followed in disciplinary inquiry under Rule 9 are prescribed in E (D&A) 70 RG 6-14 of 15.1.1970 read with E (D&A) 80 RG 6-47 of 25.5.1981 and read as follows:-
It is incorrect to examine the delinquent first. All the documents listed in the charge-sheet have to be taken on record, given exhibit marks and signed by the E.O. Then all the listed witnesses shall be examined one by one and the delinquent given opportunity to cross-examine them. The E.O. may put questions as necessary. Pre-recorded statements of the witnesses must be confirmed before taking them on record. If any listed witness is to be dropped, it may be done in the proceedings in presence of the delinquent and it must be recorded in the proceedings.
30. Insofar as the requests for additional documents by charged officials are concerned, the administrative instructions inter alia provide as follows:-
Request for additional documents to be addressed to Inquiry Officer - The amendment to Rule 9 of the RS (D&A) Rules,1968 lays down that the additional documents, if any, when asked for by the charged Railway servants for inspection by him, he will submit his request in this regard to the inquiry officer and not to the disciplinary authority, as was the procedure heretofore. The inquiry officer will take a decision with regard to their relevant in relation to his defence and summon the documents from the concerned authority who may be the custodian of those documents so as to arrange their inspection by the charged officer if considered necessary by him. (Railway Boards letter No.77/Vig./I /VP/1/22 dated 20.2.1980) Relevance of Documents The right to access to official records is not unlimited and it is for the Government to deny such access, if, in its opinion, such records are not relevant to the case or it is not desirable, in the public interest to allow such access. The power to refuse access to official record should, however, be very sparingly exercised, the question of relevancy should be looked at from the point of view of the defence and it there is any possible line of defence to which the documents may, in some way, be relevant, though the relevance is not clear to the disciplinary authority at the time the request is made, the request for access should not be rejected. The power to deny access on the ground of public interest should be exercised only when there are reasonable and sufficient grounds to believe that public interest will clearly suffer. Cases of the latter type are likely to be very few normally and occasion for refusal of cases on the ground that it is not in public interest should not arise if the document is intended to be used in proof of the charge and if it is proposed to produce such a document before the Inquiry Officer, if any inquiry comes to be held. It has to be remembered that serious difficulties arise when the Courts do not accept as correct the refusal to be cogent and substantial and should invariably be recorded in writing. Role of E.O. in deciding Relevance of Documents Delinquent normally aske for (i) R.U. Ds (ii) Statements of witnesses recorded earlier, (iii) Other documents which he considers for his defence, (iv) Police Investigation reports or Fact Finding Enquiry Reports etc. Ordinarily the E.O. may allow them except when he considers them irrelevant or holder not considers them in public interest to produce. Sometimes the E.O. allows the request initially but later on either being advised by the D.A., or the holder of document or on his own reconsideration he may feel some of those documents should not be produced. The E.O. may do so but after recording reasons why they are not relevant. (E (D&A) 76 RG 6 -1 8 dated 22.6.76 read with NF/DA 304, SC 118/76)
31. It would relevant to note the following administrative guidelines on mandatory questioning of the delinquent employees on the circumstances appearing him in terms of Rule 9 (21) viz.:
Rule 9(21) provides that if the delinquent has examined himself as a witness in his own case then the E.O. may, else the E.O. shall question him generally on the circumstances appearing against him. It is seen that in many cases the E.O., do not follow this mandatory step for which the whole proceedings may be quashed in the court of law. Hence the EOs must give due notice to this provision and follow it scrupulously.
Mandatory questions [Rule 9(21)]- Many a time a defence will be taken that if the non-compliance of Rule 9(21) has not created a prejudice (as in the cases of ex-parte enquiry), the non compliance may not be treated as a fatal flaw. This is a valid plea but if it causes a prejudice then the non-compliance is fatal. Thus where the employee has not examined himself, the EO has relied upon a tape recorder without producing those whose voice it is purported to be, it will be a serious flaw to not to examine him as per Rule 9(21). [E(D&A)2000 RG 6-60 of 9.5.2001, read with RBE 89/2001]
32. We may now proceed to examine the present case in the light of the aforesaid rule position, both statutory as well as administrative. The preliminary inquiry hearing was conducted on 3.11.97, 5.11.97, 7.11.97 and 3.12.97 and the applicant was put as many as 71 questions. As a matter of fact, the applicant ought not to have been so examined by the Inquiry Officer during the preliminary inquiry hearing. Rules 9 (19) and (20) expressly provide that when the case for the disciplinary authority is closed, the Railway servant shall be required to state his defence orally or in writing if he so prefers. The evidence of the Railway servant shall then be produced. He may examine himself in his own behalf if he so prefers. The procedure followed by the Inquiry Officer is ex facie not in accordance with there requirements. On the other hand, he has acted more as a prosecutor rather than as a impartial judge. During the course of the preliminary inquiry hearing, the applicant was confronted by the Inquiry Officer as to the replies given by the applicant earlier to the questions of Inquiry Officer by calling Shri R.P.Sharma, CTFO (R) and Shri Mahesh Chand D. Besides, the findings arrived at by the Inquiry Officer are entirely based on the replies given by the applicant to the questions so put up during the preliminary inquiry hearing without bringing on record any additional evidence. The Inquiry Officer in para 3 of his report has, inter alia, observed that the statements of Shri Kuldeep Kumar were recorded straightway to avoid delay in finalizing this enquiry on 3.11.97. During the statements recorded of Shri Kuldeep Kumar to verify the facts, Shri Mahesh Chand D on duty TNC-GGC, and Shri R.P.Sharma, CTFO (R )GGC were also called for cross-examination. The statements of Shri Kailash Chand D, call boy-GGC on duty were also recorded, who was the key person in delivering the call to Shri Kuldeep Kumar on 27.7.97 for 2627 DN of 27.7.97, and also to verify and establish the fact about missing pages of the call book of Shri Kailash Chand D of dt.27.7.97 which would have established the fact of delivering the call to Shri Kuldeep Kumar who stated that he had signed the call for other train and not the 2627 DN of 27.7.97, which has delivered by the call boy Shri Kailash Chand D, but could not be established as the pages of dt.27.7.97 in the shift 16.24 hours were missing from the call book, which was later on seized by the undersigned. A plain reading of the inquiry report reveals that the charge had been proved on the basis of statement of the applicant recorded during the preliminary inquiry hearing by the Inquiry Officer.
33. From the aforesaid, it would be seen that the preliminary inquiry hearing held by the Inquiry Officer had not been conducted under Rule 9(11) & (12) of the Railway Servants (Discipline & Appeal) Rules, 1968, as referred to above. The preliminary inquiry was not held with a view to ascertain as to what evidence the parties would adduce. As against this, the Inquiry Officer had proceeded to examine the applicant with a view to ascertain his guilt, which is otherwise required to be dealt with in the regular inquiry. It is thus clear that the Inquiry Officer has acted more as a prosecutor rather as an impartial Judge. Furthermore, the prescribed sequence in recording evidence was also not followed by the Inquiry Officer, which is clearly in violation of the express statutory rules in this regard.
34. Rule 9 (15) of the Railway Servants (Discipline and Appeal) Rules, 1968 makes it obligatory upon the inquiring authority to requisition the documents from the authority in whose possession such documents are kept unless the inquiring authority is of the opinion, for reasons to be recorded in writing, that the documents demanded by the railway servant are not relevant to the case. Rule 9 (16) further provides that on receipt of the requisition referred to in sub rule (15), every authority shall produce the requisitioned documents before the inquiring authority. The only exception to this as provided under the proviso to sub-rule (16) is that if the concerned authority is satisfied for reasons to be recorded in writing that the production of the requisitioned documents would be against the public interest or security of the State, it shall inform the inquiring authority accordingly who, in turn, inform the same to the Railway servant and thereupon withdraw the requisition made by it for the production of such documents. The requirements of these statutory provisions are not satisfied in the present case as can be seen from the relevant extracts of the inquiry report as follows:-
In view of the above, vide this office letter of even no. the next date of enquiry was fixed as 3.11.97, but some of documents which were required by Shri Kuldeep Kumar vide his defence dt. 20.7.97, could not be made available to him as they were not the relied upon documents of the SF/5 under reference. In this context reference was also made to DA & SR DEE (TRD) KTT vide letter of even no. dt.28.10.97 (CP 33 ) to make available the documents as asked by the DE Shri Kuldeep Kumar and his DC Shri L.A. Bhatnagar retired DSD/Kota, but DA & Sr. DEE (TRD) Kota advised that the documents asked by the DE & DC of the D.E. do not form relevant documents relied upon in the SF/f dt. 16.9.97 and in the SF/5 the charges to be seen based on the statements and the circumstantial evidences, and hence cannot be made available to them. After recording the above facts in the preliminary enquiry held on 3.11.97, enquiry was further progressed on 5.11.97, 7.11.97 and finally closed on 3.12.97.
35. It is an admitted fact that the copy of CR report was not supplied to the applicant by the respondents inspite of the applicants request for the same. This is sought to be justified on the ground that this report was not among the relied upon documents. Yet the fact remains that the Inquiry Officer has indeed relied upon this report to establish contradictions in the statement of applicant given in the DAR enquiry on the one hand and CR inquiry on the other. There is a clear and express reference to CRS inquiry report that has been relied upon by the Inquiry Officer while recording his findings at page 8 of his report (page 83 of the paper book) when he said the statement given during the course of CRS enquiry are contradictory to his statements recorded during the DAR enquiry, which are as under:- Then again at page 79, para 4.3. iii, the inquiring authority stated that during CRS enquiry also, it was admitted by Shri Kuldeep Kumar at page 19, para 5.4 (9) that he repeated aspect of distant to the driver and later the aspect of Home was also repeated and exchanged by the driver in support his finding Shri Kuldeep Kumar did not apply emergency brakes even though the driver passed the distant (first warning signal with signal yellow at the same speed and passed home and starter signals at danger. Supply of copy such an Inquiry Report could not be validly and legally withheld from the applicant by the I.O. and respondents especially when the same has been relied upon as aforesaid by the inquiry officer against the applicant in DAR enquiry. Non-supply of such a document has caused serious prejudice to the applicant and has vitiated the inquiry and the action subsequently based on.
36. In Moni Shankar vs. Union of India and another, (2008) 2 SCC (L&S) 819, the departmental inquiry was held to be bad for the failure on the part of the inquiry officer in questioning the charged employee generally on the circumstances appearing against him as envisaged under Rule 9 (21) of the Railway Servants (Discipline & Appeal) Rules, 1968. This Rule envisages that the inquiring authority may, after the railway servant closes his case, and shall, if the railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the railway servant to explain any circumstances appearing against him. The Honble Court held that the purpose of this procedure is to afford an opportunity to the charged employee to explain the circumstances appearing against him. Reference in this regard may also be made to the decision of the coordinate Bench of this Tribunal in Raj Kumar Sharma vs. Union of India and others in OA No.1185/2008 decided on 15.1.2009 wherein relying on the decision of the Apex Court in Moni Shanker vs. Union of India and another (supra) the said Original Applicatiion was allowed by setting aside the impugned orders therein. Considering the present case in the light of the aforesaid, the inquiry proceedings against the applicant also stand vitiated for the reason of non-compliance with the mandatory requirement of Rule 9(21), as the inquiry officer has not generally questioned the applicant on the circumstances appearing against him on the evidence to enable him to explain those circumstances. It may be noted that the applicant has not examined himself in the regular inquiry. Ordinarily, in such a case, the matter is remanded back to the authority concerned to consider the matter afresh from the stage of non-compliance with the Rule. However, in the facts and circumstances of the case, it may not be expedient to do so especially when the respondents action is faulted with on more than one count.
37. We also find force in the applicants contention that the impugned orders do not deal with all the points raised by the applicant in his representation/appeal. One of the points raised by the applicant in his appeal dated 22.7.2004 at page 110 of the paper book, is to the effect that none of the rules alleged to have been violated by the applicant, were applicable to Diesel Assistant but applicable to driver only. As a Diesel Assistant I was simply to assist the driver and carry out his instructions. Unfortunately, the E.O. has held me guilty of violation of alleged rules by misleading the rules and evidence itself. Infact, it was a case of no evidence because no evidence was brought out in support of the charges during the course of enquiry conclusively. The worthy disciplinary authority has failed to pass the speaking orders which may justify that it has applied its mind on each Article of charge indeed. This averment goes to the root of the matter. There is no reference to this contention of the applicant by appellate authority. This aspect has been dealt with by the learned Magistrate in his judgment dated 11.4.2008 in Case No.7511/2005 in which the applicant was prosecuted along with two other co-accused. It would be relevant to refer to the extracts of that judgment as it relate to the applicability of the rules for whose violation the applicant has been dismissed from service in the departmental inquiry which reads as follows:
Accused No.1 Kuldeep was admittedly assistant driver, whose duty was to assist the main driver N.H. Alish. To ascertain as which of the duties were including in the assistance to be performed by accused No.1 Kuldeep, perusal of the General Rules for Indian Railways is of much importance. Rule 3.78 of chapter 3 of General Rules for Indian Railways prescribes the duties the engine crew in respect of signals. Clause-1 of Rule 3.78 says that the driver shall pay immediate attention to and obey every signal whether the cause of signal being shown is known to him or not. As per contents of Clause-1 of Rule 3.78, chapter 3, it comes out that it is the driver, who has to observe strictly and has to pay his attention in entirety to the signals whether cause of the signal is known to him or not. N.H. Alish (since deceased) was the driver of the Karnataka Express, which allegedly trespassed the red signal, was required to observe and pay his attention in entirety and to stop his train when he had found the track as not clear for moving ahead. Trespassing of signal which resulted in accident, as per case of the prosecution, can only be attributed towards the main driver of Karnataka Express, who is no more in this world being died in the accident.
21. Now, question is what assistance should have been granted by accused No.1 Kuldeep to the main driver N.H. Alish of the Karnataka Express. Rule 3.83 further says that the first fire main or the assistant driver as the case may be, shall identify each signal affecting the movements of the train as soon as it becomes visible. The main driver and the assistant driver shall call out the aspects of signals to each other. Clause 3 of Rule 3.83, Chapter 3 further says that Sub-Rules 1 & 2 shall not absolve the driver of his responsibilities in respect of observance of and compliance with the signals. On reading all this Rule 3.83, it comes out initially that observing signals is primarily the duty of the driver. However, the assistant driver is also duty bound to observe the signals and to intimate the position of the signals to the main driver in case in hand, accused No.1 whether had observed the signals and whether he had intimated to the main driver, is further question which requires attention. In this relation PW 22 Dalip Kumar Batnagar is material one being he was present at Karnataka Express on 27.7.1997 being Guard. This witness has specifically stated that when he felt jerk, he utilized the vacuum break but it was found as zero. This position as narrated by PW 22 shows that someone prior to PW 22 being Guard at Karnataka Express, has utilized the vacuum break to avoid fatal accident. Now, question arise who had tried to utilize the vacuum break before PW 22 being Guard. DW 2 Pardeep Kumar Keshri, Divisional Medical Officer, Health Unit, Faridabad has proved the medical and treatment record of accused Kuldeep Kumar. The medical and treatment record Ex.D1 to Ex.D4 relates to the injuries, which he had received in the train accident in question. As per deposition of PW 2 Dr. Pardeep Kumar, accused No.1 Kuldeep sustained injury while applying the emergency break as his hand was capsized while applying breaks. Accused No.1 Kuldeep Kumar as per his treatment record Ex.D1, suffered crushing injuries with amputation of right middle and index finger with gangiling of right little finger. Receiving of such an injury as was suffered by accused NO.1 Kuldeep, can only be presumed as possible if he would have applied the vacuum/pressure break of the Karnataka Express being assistant driver. Making efforts to avoid the accident, in which the assistant driver lost his most of the fingers from his valuable hand, cannot be termed as a negligent act and conduct. Rather, it shows that accused No.1 Kuldeep did everything, which was assigned towards his part being the assistant driver of the Karnataka Express.
22. A presumption initially may be drawn that the deceased main driver would have applied the vacuum break. However, this presumption stands negativated because in case the main driver N.H. Alish would have applied the vacuum break, its pressure certainly had become zero and there was no such chance to sustain injury as were received by accused No.1 Kuldeep as proved by DW2. PW 22 also tried to utilize the vacuum break, but he had found the pressure of the break as zero. So, in all these probabilities the inference and possibility which can be inferred is that accused No.1 Kuldeep had applied the pressure break on feeling the apprehension of dangerous accident of the two trains. It shows that when accused No.1 Kuldeep was so vigilant that he applied the vacuum break, it can also be presumed and inferred that he would have intimated the position of the signal to his main driver N.H. Alish (now deceased). So, in any way the act and conduct of accused No.1 Kuldeep being assistant driver cannot be taken as negligent towards his duties, which were assigned to him being the assistant driver of Karnataka Express.
38. In view of the aforesaid, it would be incumbent upon the appellate authority, as a matter of fact, upon all the authorities concerned, to see if the rules whose violation is alleged to have been committed by the applicant are indeed applicable to him as assistant drivers. Holding the applicant guilty of the same without going into this aspect of the matter would tantamount to convicting the applicant on surmises and conjectures rather than on cogent evidence.
39. Even if the judgment in the criminal case is of subsequent date to the inquiry report, nevertheless the issue dealt therein is relevant and crucial to the case. This certainly highlights the importance and relevance of the issue which ought to have been given due consideration by the disciplinary and appellate authorities before recording their respective conclusions. Even if for the sake of argument, it may be conceded that it was open to the Disciplinary authority to reach to a different conclusion, yet the fact remains that it was incumbent upon them to consider this on merits which they failed to do. Before holding guilty of alleged violation of rules, it was obligatory upon the authorities concerned to ascertain in the first instance if the rules are otherwise applicable to the applicant being the Assistant Driver.
40. It may be relevant to note in the regard that what transpired between Sh. Elis, the main driver and the applicant, the assistant driver, is confined to the knowledge of these two persons only. One of the two, namely, Shri Ellis, is no longer there to testify on this aspect of the matter. The only other evidence from which corroboraton to the applicants version could be gathered both in the criminal trial as well as disciplinary enquiry is the testimony of Shri D.K. Bhatnagar, the guard of Karnataka Express and the injury sustained by the applicant while applying the emergency brake. Thus the evidence based on which the finding has been recorded both in the trial and the enquiry as to whether the applicant applied the emergency brake or not, is the same, viz. statements of the applicant and that of the guard. The whole departmental case against the applicant has been that he had not applied the emergency brake in time. The essence of timing is a matter of judgment of the person concerned in the given situation. While analyzing the matter at the post event stage, it could be easier to say that the delinquent could have done this or that. But in such a scenario it is not logical to infer that the person would not act diligently at the peril of his own life and safety. Certainly, the applicant did not appear to have any inclination to commit suicide. The injury suffered by the applicant in applying the emergency brake is a proven facts. Failure, if any, to assess the correct timing for this can at best be viewed as an error of judgment rather than a misconduct. In this regard, it may be relevant to note the following submissions, inter alia, made by the applicant in his reply to the disciplinary authority upon receipt of a copy of the inquiry report, viz..:- this was my first occasion to open R.S. Valve because never before either in the Ratlam Training School, application of R.S. Valve had been demonstrated, nor during CRD or working conditions, application of R.S. Valve was ever used. My opening of R.S. Valve for 20 seconds, then closing it, and then again opening and closing intermittently as above, has been considered wrong by the E.O. whereas opening it continuously until the train stops is considered by him (E.O.) as the correct method vide his Q. NO.61. But when this procedure was adopted by Asstt. Driver Sukh Jeevan, it damaged the wheels of the locomotive and he was punished vide S.F.11 E/L/300/10/145 of 01-5-97 which was handed over to E.O. The administration has not notified so far, nor educated the concerned staff about the correct method of applying R.S. Valve. (Annexure A-10 page 85, para 3 (B) (ii) (c) at page 88). Then the applicant had earlier submitted, inter alia, in his reply to the charge sheet that it was open to me to open Emergency Valve to avert the accident but I can not do it on my own without the concurrence of the driver who has first to indicate his inability to control the train. If I were to do it on my own, it might have led to another Bilaspur accident, by premature application of Emergency Brakes. That I did open the Emergency valve, whenever I could anticipate the accident (for which one has to be more or les sure before actual acting/stands proved by the right hand fingers cut in the process. (Annexure A-5 page 3 at page 31 in reply to allegations no.3). It may thus be seen that there has been bonafide difference of opinion between the EO and the applicant as to the correct method of applying R.S. Valve. This is further confounded by lack of any authoritative pronouncement/ clarification by the Department. These aspects ought to have been given due consideration before holding the applicant guilty of the charges. It also needs to be borne in mind that accident may happen in spite of exercising due care and caution. Therefore, any accident by itself cannot be viewed as a proof of misconduct on the part of charged officer unless proved otherwise by cogent evidence. The gravity of the accident can not operate to dispense with the requirement of proof of the quilt which has to be established independently on merits before indicting the charged official. It is in this context, one has also to view the impact of an order of acquittal in criminal case on the order of penalty in a departmental action on the same evidence. This aspect has been very aptly discussed by the Honble Supreme Court in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd and another (AIR 1999 SC 1416) in paras 34 and 35 of its judgment as follows:-
34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.' The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the 'raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.
41. The aforesaid view find further support in the case of G.M.Tank Vs. State of Gujarat and another (JT 2006 (11) SC 36) wherein the Honble Supreme Court, inter alia, observed as follows:
30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.
42. It is very pertinent to note that the inquiry officer found the charge proved against the applicant on the basis of his own statements recorded in the preliminary inquiry by the inquiry authority. The main charges levelled against the applicant are contained in paras 3 and 5 of the chargesheet as per SF-5. Para 3 reads as while working on such an important train like Karnataka Express hauled by multiple diesel locos with 100% brake power, you by your unsafe and weak driving knowledge and working you passed FDB (CR) Station. Home and starter signals at danger (though distant, first warning signal was single yellow) collided with Himgiri Express leaving this station from rear at such a speed that your driver Shri N.H. Ellis including 13 passengers and Railway staff died and there was a loss of Railway property worth Rs.1.5 crores, and also Railways image suffered heavy damage. In para 4.3 of the inquiry report, the inquiry officer held that the above charges are substantiated beyond doubt that Shri Kuldeep Kumar did not apply emergency brakes even though the driver passed distant (first warning signal with signal yellow at the same speed and passed home and starter signals at danger from the statements of Shri Kuldeep Kumar as mentioned thereunder. Then para 5 of the charge sheet states that the above paras lead to the conclusion that driver loco and its driving you did not take any prescribed actions to avert the seriousness of this accident. On this, the inquiry officer held in para 4.5 of his report that this has already been substantiated in para 4.3 above that he did not took timely action to avert this accident. It may thus be seen that the only basis underlying the inquiry officers findings is the statement of the applicant himself. On the same evidence being the applicants statement the court has returned diametrically opposite findings. We point this out not with a view to reappraise the evidence but more with a view to bring home the points propounded by the Honble Apex Court in the aforesaid cases to the effect that when judicial pronouncement is made after a regular trial, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to the contrary on the same evidence to stand.
43. It may be relevant to note in this regard that administrative instructions of the respondents provide in this regard as follows:-
3. However, if the facts, circumstances and the charges in the Departmental proceedings are exactly identical to those in the criminal and the employee is exonerated/acquitted in the criminal case on merit (without benefit of doubt or on technical grounds,) then the departmental case may be reviewed if the employee concerned makes representation in this regard.
[No. E(D&A) 95 RG 6-4, dated 7.6.95; RBE 54/95)
44. In view of the aforesaid, it would be open to the applicant to make a representation to the respondents to review his case in the light of his acquittal in the criminal case based on the same case. However, in the peculiar circumstances of the case, specially having regard to the fact that applicant is undergoing the agony since the occurrence of the accident in 1997 in which he lost certain fingers of his right hand while applying the emergency brakes, on the one hand, and the serious infirmities in the conduct of the inquiry noted earlier in the proceedings on the other, we are not inclined to subject the applicant with further round of proceedings in the matter. In aforesaid premises, the impugned orders cannot be sustained and the same are accordingly set aside. The applicant shall be reinstated in service forthwith and shall also be paid entire arrears of salary along with all the allowances of which he has been deprived of as a result of departmental action against him. The applicant would also be entitled to his cost which is quantified as Rs.25,000/- (Rupees Twenty Five Thousand only).
(Dr. Dharam Paul Sharma) (L.K.Joshi)
Member (J) Vice-Chairman (A)
/usha/