Central Administrative Tribunal - Allahabad
Rajni Kant Nigam Aged About 57 Years Son ... vs Union Of India Through General Manager on 20 April, 2011
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH ALLAHABAD
(THIS THE 20TH DAY OF APRIL, 2011)
Original Application No. 184 of 2005
(U/S 19, Administrative Tribunal Act, 1985)
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr. D.C. Lakha, Member (A)
Rajni Kant Nigam aged about 57 years son of late Shri P.L. Nigam resident of 104 Deen Dayal Nagar, Jhansi.
.. Applicant
By Adv. : Shri R.K. Nigam
V E R S U S
1. Union of India through General Manager, North Central Railway, Allahabad.
2. The Chief Workshop Manager, North Central Railway Workshop, Jhansi (Appellate Authority).
3. Deputy Chief Mechanical Engineer (R) North Central Railway Workshop Jhansi (Disciplinary Authority)
.... Respondents
By Adv. : Shri U.S. Mishra
O R D E R
(Delivered by Honble Dr. K.B.S. Rajan, Member-Judicial)
1. The applicant was served with a charge sheet the articles of charge being as hereunder:-
Shri R.K. Nigam, while working as Senior Section Engineer/CRWS/ Bhopal/Central Railway during the year 1996-97, had committed gross misconduct in as much as:
Article I:
Shri R.K. Nigam prepared inflated estimate in case No.CRWS/BPL/FRP/05 for laying FRP issues on coach shell, quantity 90 numbers, at the estimated rate of Rs.9,440.30 per coach.
Article II:
Shri R.K. Nigam accepted irrelevant test certificate of FRP tissues and Bituminous paint submitted by M/s. Maheshwari, Bhopal in Case No.CRWS/BPL/FRP/03.
By the aforesaid act of misconduct, Shri R.K. Nigam, the then SSE/CRWS/Bhopal/Central Railway tailed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of Railway servant, thereby contravened Rule 3.1(i), (ii) and (iii) of Railway Services (Conduct) Rules, 1966.
2. On the denial of charges, the inquiry officer was appointed and enquiry was conducted. Initially the applicant and his defence assistant participated and thereafter, according to the inquiry officer, there was no cooperation from the applicant and the I.O. furnished his inquiry inter alia stating as under:-
After arrangements through prosecution witness for inspection of original documents and supply of additional documents were made, enquiry was fixed on 11.03.2003. On this date, neither CE nor ARE attended. Instead they forwarded applications stating that ARE was to attend Meeting of All India Retired Railwaymens Federation at Jallandhar on 8th and 9th March 2003 and hence, he was unable to attend. The ARE could have attended the enquiry on 11.03.2003, after his Meeting of 09.03.2003, had the importance been given to this enquiry. From all above, it was clear that defence was adopting delaying tactics. On all the above occasions, PW was present and his examination-in-chief and incomplete cross-examination was done in the presence of CE/ARE. As the finalization of the enquiry was badly delayed for the reasons, as mentioned above, attributable to the defence, the enquiry was concluded. The decision is now being taken on the basis of documentary and available oral evidence.
3. Ultimately, the inquiry officer held that the two articles of charges stood substantiated. Accordingly, a copy of the inquiry report was sent to the applicant, against which he represented. The disciplinary authority had, on consideration of representation, imposed the penalty as hereunder:-
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4. The applicant had filed his appeal which had also been dismissed vide annexure A-2 order dated 24-12-2004.
5. Applicant has filed this O.A. inter alia on the following grounds:-
(i) Because the charge sheet itself is quite vague and deserves to be dropped altogether.
(ii) Because there was no rationale or any jurisdiction for the Enquiry Officer to proceed ex parte or return the verdict of guilty.
(iii) Because there is complete miscarriage of justice and the principles of natural justice as well as Article 311 (2) of the Constitution of India have been given good bye by the Enquiry Officer as well as the learned Disciplinary Authority/Appellate Authority.
(iv) Because the impugned order of the learned Disciplinary Authority also suffers with the same vice of arbitrariness.
(v) Because the learned Appellate Authority has not applied his mind to ensure that the accused (petitioner) was given reasonable opportunities in the teeth of Article 311(2) of the Constitution.
6. Written submissions were permitted to be filed and the counsel for the respondents filed the same. The main argument is as under:-
6. That so for as the argument of the applicant regarding opportunity to the applicant the respondents have specifically stated in paragraph 13, 15, 16, 18, 23, 25, 27, 33 and 34 regarding the proper and maximum appropriate opportunity was given to the applicant but the applicant has not availed the same in spite of repeated opportunity which has been mentioned in the above paragraph that will no option the authorities are bound on the basis of records to declare that the applicants is guilty for the conduct and therefore, the penalty/punishment was imposed for reduction two stages below in time scale of pay for two years with cumulative effect by order dated 19.12.2003 against are applicant submitted the appeal but in appeal also the applicant is not able to proof his innocent are bona fide with the result the appellate authority vide order dated 24.12.2004 came to the conclusion passed the speaking order upholding the order of the Disciplinary Authority.
7. The reply in the above paragraphs of the counter deal with the position till 11-03-2003 when the prosecution witness was to be closed. Thereafter, there has been no notice to the applicant and the I.O. concluded the Inquiry report as indicated in Para 3 above.
8. The above abrupt conclusion of the inquiry proceedings by the inquiry officer, without following the procedure as contained in rule 9(21) of the Railway Servants (D & A) Rules, has rendered the entire proceedings vitiated. Even in holding the inquiry ex-parte, , the respondents have to follow strictly the procedure contained in the Railway Servants (Disciplinary and Appeal) Rules. Even in ex parte cases, the prosecution case has to be got proved In this regard reference is invited to the decision of the Apex court in the case of State of U.P. v. Saroj Kumar Sinha,(2010) 2 SCC 772 wherein the Apex Court has held as under:-
27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.
And, notice at every stage was to be sent to the charged officer as he/she has every right to join the inquiry at any time. It is therefore, to be seen from the inquiry proceedings whether the proceedings have been duly conducted. While prosecution witnesses have been examined, in the absence of cross examination by the delinquent, after prosecution witnesses examination, the prosecution case gets closed. It is at this juncture, that the delinquent official ought to have been given an opportunity to project her defence. This calls for due notice. This notice has not been given.
9. The mandatory requirement of the inquiry officer asking the questions on the circumstances appearing against the charged officer after the prosecution closes its evidence when the charged officer himself does not enter the witness box, vide Rule 14(18) of the CCS (CC&A) rules, 1965 and corresponding provisions in the Railway Servants (Department and Appeal) Rules, has to be properly fulfilled to in strict sense. ( Moni Shankar v. Union of India,(2008) 3 SCC 484, wherein the Apex Court has held -
20. The enquiry officer had put the following questions to the appellant:
Having heard all the PWs, please state if you plead guilty? Please state if you require any additional documents/witness in your defence at this stage? Do you wish to submit your oral defence or written defence brief? Are you satisfied with the enquiry proceedings and can I conclude the enquiry?
21. Such a question does not comply with Rule 9(21) of the Rules. What were the circumstances appearing against the appellant had not been disclosed.)
10. The above law laid down by the Apex Court clearly holds that when the mandatory question is not asked, the inquiry gets vitiated. In the instant case notwithstanding the fact that the applicant did not participate, the requirement of issue of notice for defence witness ought to have been complied with. This vitiates the entire inquiry from that stage. As such, the order of the Disciplinary authority and Appellate authority are liable to be quashed and set aside and we do order so.
11. In the end, the OA is allowed. The penalty and appellate orders are quashed and set aside. The applicant is entitled to the restoration of his pay as if no penalty was imposed. The authorities shall revise the terminal benefits and pension on the basis of the last pay drawn. These should be paid within a period of four months from the date of receipt of copy of this order. The applicant by now has superannuated and as such it may not be possible to have the inquiry continued.
12. No cost.
(D.C. Lakha) (Dr. K.B.S. Rajan)
Member-A Member-J
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