Andhra Pradesh High Court - Amravati
B.Krishna Kumar, vs Union Of India Represented By on 7 August, 2025
1
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
&
* THE HON‟BLE SRI JUSTICE CHALLA GUNARANJAN
+ W.P.No.8434 OF 2012
% 07.08.2025
# B. Krishna Kumar
......Petitioner
And:
$ Union of India, rep. by the
General Manager, S.C.
Railway, Secunderabad
and others
....Respondents.
!Counsel for the petitioner : Sri K.R.K. V. Prasad
^Counsel for the respondents 1 to 6
: Sri Venna Hemanth Kumar,
Central Govt., Counsel
<Gist:
>Head Note:
? Cases referred:
1
2023 SCC OnLine AP 3925
2 (1980) 2 SCC 205
3.(1979) 4 SCC 289: 79 SC 1912
MANU/TL/1217/2021
4.(2008) 3 SCC 484
5.AIR 1986 SC 1173
6.1990 SCC OnLine SC 474
7.(2007) 8 SCC 212
8.(2009)2 SCC 541
9.WP.No.26790/2015, APHC
Decided on 14.09.2015
10.(2009) 2 SCC 541
2
HIGH COURT OF ANDHRA PRADESH
****
W.P.No.8434 OF 2012
DATE OF JUDGMENT PRONOUNCED: 07.08.2025
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE CHALLA GUNARANJAN
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the Yes/No
fair copy of the Judgment?
____________________
RAVI NATH TILHARI, J
_______________________
CHALLA GUNARANJAN,J
3
THE HON‟BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON‟BLE SRI JUSTICE CHALLA GUNARANJAN
W.P.No.8434 OF 2012
JUDGMENT:per the Hon'ble Sri Justice Ravi Nath Tilhari:
Heard Sri K.R.K.V. Prasad, learned counsel for the petitioner and Sri Venna Hemanth Kumar, learned Central Government Counsel for the respondents 1 to 6.
2. The petitioner was the applicant in O.A.No.958 of 2011 (in short OA) before the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (in short, the Tribunal). The same was dismissed on 15.02.2012 and challenging the said judgment, the present writ petition was filed.
3. The petitioner shall be referred as the applicant and the respondent as the respondent.
I. FACTS:
4. The applicant was appointed as Peon in Vijaywada Division of South Central Railways. He was later on promoted to the post of Junior Clerk-cum-Typist, after the said promotion panel was approved by the Additional Divisional Railway Manager, Vijayawada Division, South Central Railway-2nd respondent in terms of the proceedings dated 13.03.1997 issued by the 3rd 4 respondent-the Senior Divisional Personnel Officer, Vijayawada Division. While working as Junior Clerk (Mechanical Bills), pursuant to a Vigilance trap dated 28.10.2009 the applicant was served with a charge memo vide Memorandum No.B/P227/IV/2009/3/Vig., dated 14.12.2009 by the 5th respondent the Senior Divisional Personal Officer, Guntakal Division, with respect to the demand and receipt of illegal gratification of Rs.500/- from one Smt G. Parameswari (the complainant) to process her Provident Fund withdrawal application.
5. The Article of Charge against the applicant reads as under:
―ANNEXURE TO STANDARD FORM No.5 The Memorandum of Charge Sheet under Rule - 9 of the RS (D&A) Rules, 1968:
ANNEXURE-I ARTICLE OF CHARGE FRAMED AGAINST SHRI.B.KRISHNA KUMAR, Jr. Clerk/Mech., Bills, Sr.DPO/O/BZA.
Article(i) That the said Shri. B.Krishna Kumar, Jr. Clerk, Mechanical Bills, Sr. DPO/O/BZA while working as such on 28.10.2009 had committed serious misconduct in that he had demanded and collected an amount of Rs.500/- as illegal gratification from Smt. G. Parameswari, Welder Gr.I, Wagon Depot/BZA to process her Provident Fund withdrawal application dt. 16.10.2009 as detailed in the statement of imputations.5
Thus, the said Shri. B. Krishna Kumar had failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Railway Servant and has violated Rule No.3(1)(i),(ii) & (iii) and Rule 26 of Railway Services (Conduct) Rules, 1966.‖
6. The applicant was given an intra Divisional transfer from Vijayawada Division to Guntakal Division.
7. The applicant submitted reply dated 04.01.2010 to the charge memo to the 5th respondent denying the allegations. Not being satisfied with the reply, the 5th respondent considered to conduct enquiry and nominated the 6th respondent as the Enquiry Officer to enquire into the charges. However, any presenting officer was not appointed.
8. The Enquiry Officer submitted the report to the Disciplinary Authority holding the charge as proved and the Disciplinary Authority forwarded the copy of the report of the Investigating Officer to the applicant on 06.01.2011. The applicant submitted his representation dated 24.01.2011 against the findings of the Enquiry Officer to the Disciplinary Authority also raising the plea of visible bias by the Investigating Officer. The 5th respondent however imposed the punishment of removal from service vide order dated 14.02.2011. The applicant filed O.A.No.192 of 2011 before the Tribunal, challenging the order of removal, which was 6 disposed of on 23.06.2011 granting liberty to the applicant to file the departmental appeal.
9. The applicant then filed the departmental appeal which was dismissed on 07.09.2011 confirming the order of removal. The applicant filed O.A.No.958 of 2011, which has been dismissed by the impugned order dated 15.02.2012.
II. ORDER OF TRIBUNAL:
10. The Tribunal held that the order of removal was passed by the competent authority. The disciplinary authority and the appellate authority were not from the vigilance department. They formed an independent opinion on independent consideration. There was no bias or prejudice either in the enquiry or in the orders of disciplinary or appellate authority. The Tribunal recorded that the Vigilance Manual and its paragraphs relating to vigilance/decoy check while laying trap, were procedural in nature and so, any deviation from certain provisions of the Vigilance Manual did not cause prejudice to the applicant. In the disciplinary proceedings, the applicant was given adequate opportunity to defend. It was not a case of no evidence. The findings were based on evidence. The defense of the applicant that the complainant had taken loan of Rs.500/- from the 7 applicant and that the loan amount was being returned to the applicant which was not towards any illegal gratification for processing the Provident Fund withdrawal application of the complainant was not accepted and it was held to be an afterthought defence, by the Tribunal.
III- SUBMISSION OF LEARNED COUNSEL FOR PETITIONER:
11. Learned counsel for the applicant-petitioner submitted that the applicant was appointed to the post of Junior Clerk by the 3 rd respondent-the Senior Divisional Personnel Officer with the prior approval of the 2nd respondent-Additional Divisional Railway Manager, Vijayawada. The 5th respondent-Senior Divisional Personnel Officer, Guntakal could not be the disciplinary authority to pass the order of penalty, being below in rank to the 2nd respondent. So, the order of removal was without jurisdiction. The petitioner-applicant could not be removed by 5th respondent an authority below in rank to the 2nd respondent.
12. Learned counsel for the petitioner next submitted that the complaint was received directly by the Vigilance Inspector from the complainant without taking any written approval from the Vigilance Officer. The complaint had not even been registered as 8 per the Vigilance Manual. He further submitted that in the laying of decoy trap, the procedure as per Paras 704 and 705 of the Vigilance Manual were violated. The decoy (Parameshwari) did not give money to Vigilance Inspector but the Vigilance Inspector gave money to the decoy contrary to Vigilance Manual Provisions. He submitted that Paras 704 and 705 of Vigilance Manual require at least the two independent witnesses.
13. Learned counsel for petitioner-applicant next submitted that any Presenting Officer was not appointed in the disciplinary proceedings. The Enquiry Officer acted as Presenting Officer. Further, the Enquiry Officer was functioning under the control of the Chief Vigilance Officer South Central Railway so he could not be appointed the Enquiry Officer. This vitiated the enquiry proceedings. He also referred to the depositions of witnesses of P.W.(s) to substantiate the plea. He further submitted that the applicant was not confronted with the adverse circumstances in the evidence and was simply asked by the Investigating Officer, in Q.84, which did not comply with the requirement of Rule 9(21), and so, based on such enquiry the order of penalty could not be passed.
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14. Learned counsel for the petitioner next submitted that the appellate authority did not consider the appeal on its merit, independently, by appreciating the material on record. It just affirmed the order of the disciplinary authority, which is not by a reasoned or speaking order.
15. Learned counsel for the petitioner placed reliance on the following cases.
i) Union of India, rep. by the General Manager, South Central Railway and others vs. B.S. Purushotham1
ii) Dharam Dev Mehta V. Union of India and others2
iii) Krishna Kumar v. Divisional Assistant Electrical Engineer and others3
iv) Union of India and others vs. The Registrar, The Central Administrative Tribunal, Hyderabad and others4 (M. Chandrashekar)
v) Moni Shankar v. Union of India5 and
vi) Ram Chander vs. Union of India and others.6 1 2023 SCC OnLine AP 3925 2 (1980) 2 SCC 205 3 (1979) 4 SCC 289: 79 SC 1912 4 MANU/TL/1217/2021 5 (2008) 3 SCC 484 6 AIR 1986 SC 1173 10 IV- SUBMISSION OF LEARNED COUNSEL FOR RESPONENTS:
16. Learned counsel for the respondents submitted that the enquiry was conducted in accordance with law. The enquiry officer recorded specific finding on proof of charge on consideration of the evidence on record. The petitioner- applicant was granted full opportunity of defense. There was no violation of the principles of natural justice in conducting the enquiry. The applicant was granted an opportunity against the enquiry officer's report and after the applicant's reply, the disciplinary authority passed the order of removal from service. The appellate authority dismissed the appeal and the Tribunal also dismissed the O.A. So, finding on proof of charge was concurrently recorded against the petitioner in all the three stages.
17. Learned counsel for the respondents next submitted that the disciplinary authority-5th respondent, who passed the order of removal, is not below the rank of the applicant's appointing authority-3rd respondent. So, the contention that the applicant could not be removed from service by an authority below in rank than the appointing authority, does not hold good. 11
18. Learned counsel for the respondents further submitted that the vigilance check was conducted following the provisions of Vigilance Manual. The applicant admitted the receipt of Rs.500/- from the complainant in his reply dated 03.11.2009 but his defense that the amount was being repaid by the complainant towards the cash loan taken from the applicant could not be established. The disciplinary authority and the appellate authority, as observed by the Tribunal, were not from the vigilance department. So, there was no illegality in the order of the Tribunal which called for no interference in the exercise of the writ jurisdiction.
V. POINT FOR DETERMINATION:
19. The point that arises for consideration and determination is as to whether in the light of the submissions advanced the impugned order of the Tribunal deserves to be maintained or it calls for interference by this Court?
VI. ANALYSIS:
20. We have considered the aforesaid submissions and perused the material on record.
21. We would discuss the point under different heads as follows:
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i) APPOININTING AUTHORITY:
22. The ‗appointing authority' and the ‗disciplinary authority' have been defined under rule 2(1)(a) and Rule 2(1) (c) of the Railway Servants Rules, 1968 as under:
"2. Definitions.- (1) In these rules, unless the context otherwise requires -
(a) "appointing authority" in relation to a railway servant means -
i. the authority empowered to make appointments to the service of which the railway servant is, for the time being, a member or to the grade of the service in which the railway servant is, for the time being, included, or ii. the authority empowered to make appointments to the post which the railway servant, for the time being holds, or iii. the authority which appointed the Railway servant to such Service, grade or post, as the case may be, or iv. Where the Railway servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment under the Ministry of Railways, the authority which appointed him to that service or to any grade in that service or to that post: Whichever authority is the highest authority.‖
23. Rule 2(1) (c) of the Rules, 1968 reads as under:- 13
―(c)disciplinary authority" means- i. in relation to the imposition of a penalty on a Railway servant, the authority competent, under these rules, to impose on him that penalty; ii. in relation to Rule 9 and clauses(a) and (b) of sub-rule (1) of Rule 11 in the case of any Gazetted Railway Servant, an authority competent to impose any of the penalties specified in Rule 6; iii. in relation to Rule 9 in the case of any nongazetted railway servant, an authority competent to impose any of the major penalties specified in Rule 6; iv. in relation to clauses (a) and (b) of sub rule (1) of Rule 11, in the case of a non-gazetted railway servant, an authority competent to impose any of the penalties specified in Rule 6.‖
24. In Scientific Adviser to the Ministry of Defence and others v. S. Daniel7 which was a case also under Railway Servants (Discipline and Appeal) Rules, 1968, the question fell for consideration was with respect to the appointing authority. Rules 2 (a), 9, 12, 13 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 were also for consideration. Under Rule 2 (1) (a), 2 (1) (c) and 7 & 8 of the Rules 1968, referring to the definition of the ‗appointing authority', the ‗disciplinary authority', the Hon'ble Apex Court made an elaborate consideration on the basic question whether in the context of Rule 2(a) read with Rule 9(1) of the Central Service Rules, the reference to the ‗authority empowered to make the appointment' 7 1990 SCC OnLine SC 474 14 is to which authority. For our purposes, with respect to rule 2 (a) of 1968 rules which is same as rule 2 (a) of Central Service Rules 1965, the Hon'ble Apex Court held that on a proper and harmonious reading of Rule 2(a), sub-rule (a) of Rule 2 only envisages the authority to whom the power of appointment has been delegated. It is apt to refer paras - 8 and 15 as under:
―8. To turn, next, to the railway cases, we are concerned with appointees to Group C and Group D of the services, which correspond to Class III and Class IV of the Civil Service. In respect of these persons, the relevant provisions are as follows:
―2.(1)(a) ‗Appointing Authority', in relation to railway servant, means -
(i) the authority empowered to make appointments to the service of which the railway servant is, for the time being, a member or to the grade of the Service in which the railway servant is, for the time being, included, or
(ii) the authority empowered to make appointments to the post which the railway servant, for the time being holds, or
(iii) the authority which appointed the railway servant to such Service, grade or post, as the case may be, or
(iv) where the railway servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment under the Ministry of Railways, the authority which appointed him to that Service or to any grade in that Service or to that post whichever 20authority is highest authority.‖ ―2.(1)(c) 'Disciplinary Authority' means -15
(i) in relation to the imposition of a penalty on a railway servant, the authority competent, under these rules, to impose on him that penalty;
(ii) in relation to Rule 9 and clauses (a) and (b) of sub-rule (1) of Rule 11 in the case of any gazetted railway servant, an authority competent to impose any of the penalties specified in Rule 6;
(iii) in relation to Rule 9 in the case of any non-gazetted railway servant, an authority competent to impose any of the major penalties specified in Rule 6;
(iv) in relation to clauses (a) and (b) of sub-rule (1) of Rule 11, in the case of a non-gazetted railway servant, an authority competent to impose any of the penalties specified in Rule 6.‖ ―7. Disciplinary authorities.--(1) The President may impose any of the penalties specified in Rule 6 on any railway servant.
(2) Without prejudice to the provisions of sub-rule (1), any of the penalties specified in Rule 6 may be imposed on a railway servant by the authorities as specified in Schedules I, II and III.
(3) The disciplinary authority in the cases of a railway servant officiating in a higher post, shall be determined with reference to the officiating post held by him at the time of taking action.‖ ―8. Authority to institute proceeding.--(1) The President, or any other authority empowered by him, by general or special order, may 20-
(a) institute disciplinary proceedings against any railway servant;
(b) direct a disciplinary authority to institute disciplinary proceedings against any railway servant on whom that disciplinary authority is competent to impose, under these rules, any of the penalties specified in Rule 6.
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of Rule 6 may, subject to the provisions of clause (c) of sub-rule (1) of Rule 2, institute disciplinary proceedings against any railway servant for imposition of any of the penalties specified in clauses (v) to (ix) of 16 Rule 6, notwithstanding that such disciplinary authority is not competent under these rules, to impose any of the latter penalties.‖ Schedule II referred to in Rule 7(2) lays down that an order of compulsory retirement, removal or dismissal from service may be ordered, in the case of a Group C or Group D railway servant by the appointing authority or authority equivalent in rank of any higher authority and Note 2 to the Schedule mentions that such an authority may also impose any of lower penalty. Under Rule 275 of the Railway Establishment Code (Vol. I), which deals with the recruitment, training and promotion of Group C and Group D railway servants, the authority competent to make a first appointment is the General Manager or any lower authority to whom he may delegate the power.
The General Manager of each railway has delegated his powers under several heads. One set of the Schedule of Delegation of Powers by the General Manager of the Southern Railway in Establishment Matters has been set out in some detail in the order of the Central Administrative Tribunal (CAT) in the case of Gafoor Mia Kausal v. Director, DMRL [(1988) 6 ATC 675] (which is one of the orders in appeal before us). It is neither useful nor necessary to repeat them here in extenso. Here also, the argument is that, notwithstanding the delegation of powers of appointment of Group C and Group D employees to various other zonal officers, the General Manager has not divested himself of the power to make such appointments and continues to be the ‗appointing authority'. Being the highest among the various appointing authorities, he alone stands vested with the power to institute disciplinary proceedings and impose penalties. It is, therefore, submitted that the disciplinary proceedings, in the cases under this batch, initiated by the Divisional Superintendent and like officers were without jurisdic∼tion and were rightly quashed by the CAT in Gafoor Mia case [(1988) 6 ATC 675] , already referred to, and the decisions in the other matters before us following the said decisions.‖ 17 "15. Still the basic question that remains is, whether, in the context of Rule 2(a) read with Rule 9(1), the reference to the authority empowered to make the appointment is to the authority mentioned in the proviso to Rule 9 or to both the authorities falling under the main part of Rule 9(1) as well as the proviso. The sheet anchor of the respondent's case is that the expression ‗appointing authority' is used in very few of the rules. One of them is Rule 12 and there can, therefore, be no valid reason to refuse to apply the definition clause in the context of those rules. It is urged that, by holding the person specified in the schedule also to be the ‗appointing authority' as defined in Rule 2(a), none of the other rules relating to appeal, revision, etc. become redundant as urged on behalf of the appellants. We agree with the respondents that the expression ‗appointing authority' in Rule 12 should have the meaning attributed to it in Rule 2(a). But what is the real and true interpretation of Rule 2(a)? What does that sub-rule talk when it refers to a ‗person empowered to make the appointment' in question? These words clearly constitute a reference to Rule 9. Does Rule 2(a) refer then to the authority empowered by the schedule to make the appointments or the authority to whom he has delegated that power or both? We think, on a proper and harmonious reading of Rule 2(a) and Rule 9, that sub- rule (a) of Rule 2 only envisages the authority to whom the power of appointment has been delegated under Rule 9 and not both the delegator and the delegate. We have come to this conclusion for a number of reasons. In the first place, it is clear, on the plain language of Rule 2(a), that it directs the ascertainment of the authorities specified, in such of clauses (i) to (iv) of the rule as may be applicable to a particular case and designates the highest of them as the „appointing authority‟. It envisages only one authority as falling under each of these clauses and not more. The respondent's contention which involves interpretation of clause (i) or (ii) as contemplating more than one authority runs counter to the tenor of the rule. Secondly, the strictly literal meaning 18 of Rule 2(a) insisted upon by the respondents would render the rules unworkable. For instance, under clause (i), one of the authorities to be considered is the ‗authority empowered to make appointments to the service of which the government servant is for the time being a member'. The respondents belong to one of the Central Civil Services. Though they belong to Class III or Class IV, there are Class I and Class II officers as well therein. Rule 8 declares that only the President can make appointments to Class I in the service. If each of the clauses is read as envisaging a plurality of authorities as contended for and if clause (i) is literally interpreted, it will also include the President who is one of the authorities empowered to make appointments to the service of which the concerned employee is a member. This will render the entire gamut of the rules unworkable. On this interpretation, the President will be the only appointing authority under Rule 2(a) in all cases, being the highest of the authorities envisaged therein. This cannot clearly be correct. Rule 2(a) does not contemplate any authority other than the one empowered to appoint a person belonging to the post or grade which the concerned government employee holds. In that sense the two parts of clause (i) and clause (ii) are not to be read distributively to ascertain the authority empowered to make appointments (a) to the service (b) to the grade and (c) to the post and consider the highest of them. One has to restrict oneself to the post or grade of the government servant concerned and invoke clause (i) or (ii) as the case may be. Thirdly, the whole purpose and intent of Rule 2(a) is to provide that appointing authority means either the de facto or the de jure appointing authority. It will be appreciated that, generally speaking, only the de jure authority can make the appointment but, occasionally, a superior authority or even a subordinate authority (with his consent) could have made the appointment. Again it is possible that the authority empowered to make the appointment at the time when relevant proceedings in contemplation may be higher or lower in rank to the authority which was empowered to make the 19 appointment or which made the appointment at a different point of time. The whole intent or purpose of the definition to safeguard against an infringement of Article 311(1) and ensure that a person can be dealt with only by either a person competent to appoint persons of his class or the person who appointed him, whoever happens to be higher in rank. That rule is not infringed by the interpretation placed by the appellants. The provisions of Schedule II in the case of the railways which specify the appointing authority or an authority of equivalent rank or any higher authority as the disciplinary authority are also consistent with this interpretation. Fourthly, the interpretation sought to be placed by the respondents on Rule 2(a) is artificial and strained. It amounts to saying that a person who is empowered to appoint a government servant (as the Director, DERL, for example, undoubtedly is) and who has also appointed him will not be the appointing authority, because, theoretically, even a more superior authority could have appointed him despite having delegated his authority in this regard to a subordinate. On the contrary, the interpretation urged by the Union will not adversely affect the few employees, if any, who may be appointed by a superior scheduled authority despite delegation of such power to a subordinate authority. For, in such a case, the superior authority would be the person who has factually appointed such an employee and he will clearly be the ‗appointing authority' by virtue of Rule 2(a). Lastly, the interpretation sought for by the Union is consistent with practical consideration. The appointing authority under the Schedule is a high-ranking authority and, in an organisation like the railways for instance, it will be virtually impossible for him to consider each and every case of appointment of, or disciplinary action against all the Class III or Class IV employees in the organisation. It is indeed this realisation that has rendered necessary delegation of the power of appointment and cannot be ignored, in the absence of compelling reasons, in the matter of disciplinary powers.‖ 20
25. The Tribunal in its order considered this aspect. The contention of the petitioner applicant was that the 5th respondent the Senior Divisional Personnel Officer, South Central Railway, Guntkal Division, Ananthapur District was not the appointing authority/disciplinary authority. The respondent's contention was that the applicant/petitioner was appointed to the post of Junior Clerk by the 3rd respondent i.e the Senior Divisional Personnel Officer, Vijayawada Division, South Central Railway, and was not appointed by the 2nd respondent-the Additional Divisional Railway Manager, though the prior approval of such authority was obtained but the approval would not make 2nd respondent the appointing authority. The authority which issued the appointment order was the appointing authority. The Senior Divisional Personnel Officer, Guntakal Division was equivalent to the rank of Senior Divisional Personnel Officer, Vijayawada so, he was competent authority to remove the applicant/petitioner. The petitioner's appointing authority is the Senior Divisional Personnel Officer, Vijayawada Division and the order of removal was also passed by an authority of equivalent rank.
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26. With respect to the ‗appointing authority' of the petitioner, there is no dispute that he was appointed by Senior Divisional Personnel Officer, Vijayawad. There is also no dispute that he was removed by the Senior Divisional Personnel Officer, Guntakal. It is so evident from the order of the appointment of the petitioner to the post of Junior Clerk-cum-Typist. The approval to that promotional panel by the Additional Divisional Railway Manger, Vijayawada Division, South Central Railways, the 2nd respondent, would not have the effect of changing the appointing authority actually appointing the Senior Divisional Personnel Officer, under Rule 2 (a), unless it was shown that the approval required to the panel of selection by the 2nd respondent would make the 2nd respondent an authority ‗empowered to make the appointment' in Rule 2 (a). In such a case, only the question of the highest authority under Clause (i) to (iv) of sub-rule 2 (a) might arise. It has not been brought to our notice that the 2nd respondent was empowered to make the appointments to the post of Junior Clerk-cum-Typist. It is further not the case of the petitioner that the Senior Divisional Personnel Officer, Guntakal, the authority which passed the penalty order of the petitioner, is not of the rank of Divisional Personnel Officer at Vijayawada 22 Division. Consequently, we are of the view that the appointment of the applicant having been made by the Senior Divisional Personnel Officer, Vijayawada Division, his removal from service by the authority of the same rank at Guntakal Division was not by an authority inferior to the appointing authority. It, being by an authority of equal rank, there would be no violation of the provisions of Article 311 (1) of the Constitution of India. The argument to the above effect is unacceptable and is rejected.
27. In Dharam Dev Mehta (supra), upon which the learned counsel for the petitioner placed reliance, the question was as to who was the appointing authority of the appellant therein, who was retired under Rule 56(j) of the Fundamental Rules. In Rule 2(a) of C.C.S. (C.C.A) Rules, 1965, after setting out the alternative authorities, the appointing authority was said to be one out of those four categories who was the highest. It was held that the authority one falling under sub rule(3) i.e., Controller and Auditor General was the highest, but the order of retirement was issued by the Director of Commercial of Audit, a lower authority. So, it was held that the order of compulsory retirement was not by the competent authority.
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28. In Krishna Kumar (supra), upon which also learned counsel for the petitioner placed reliance, the appellant therein was appointed by the Chief Electrical Engineer and was removed from the service by the order passed by an authority who was subordinate in rank to the Chief Electrical Engineer, on the date of the appointment. So, it was held that such officer had no power to remove from service and the order of removal violated the principles of Article 311(1) of the Constitution of India. In the present case the petitioner has been removed by an authority of the rank equivalent to the appointing authority and not by an authority, subordinate to the appointing authority.
29. In M. Chandrasekhar (supra) the question was with respect to Group ‗C' Officers for which the appointing authority, as also the disciplinary authority was the Junior Administrative Grade Officer. The order of removal from service was passed by the Junior Administrative Grade Officer. The 2nd respondent therein had joined the service as Section Engineer (Dsl-Elec.,) in Guntakal Division, South Central Railway. Consequent to the decision of the Railway Board to merge Section Engineer with that of Senior Section Engineer, the 2nd respondent therein was 24 inducted as Senior Section Engineer and while working in the said capacity, the disciplinary proceedings were initiated. Punishment of removal was imposed which was challenged and one of the contentions raised was that the Senior Divisional Mechanical Engineer//DSL/Gooty was not competent to impose punishment. The Tribunal found that the Senior Administrative Grade Officer appointed the 2nd respondent as Senior Section Engineer and the order of removal was passed by the Junior Administrative Grade Officer, below the rank of appointing authority and there was violation of Article 311 (1) of the Constitution of India, so, the order of removal from service was set aside. The writ petition was filed by the Railways. The erstwhile Andhra Pradesh High Court held that a person can be elevated in status either in the form of up-gradation of post or in the form of promotion. The element of elevation may result in higher status in hierarchy, higher emoluments attached to the post concerned and discharge of higher duties and responsibilities. The 2nd respondent therein, the Senior Section Engineer was an elevation of status and emoluments from the post of Section Engineer. Such elevation was granted by the order of the Chief Personnel Officer. The Chief Personnel Officer 25 as also the Chief Motive Power Engineer, as the contention advanced therein was that the Chief Motive Power Engineer granted elevation, the Court found that both were in the cadre of Senior Administrative Grade. So, whether it was by the Chief Motive Power Engineer or by the Chief Personnel Officer, the elevation of status was granted by the Officer in rank of Senior Administrative Grade and the order of removal was by an Officer in the rank of Junior Administrative Grade. So, there was violation of Article 311 of the Constitution of India.
30. In this case, the order of removal is not by an authority below the rank of the petitioner's appointing authority. So, there is no violation of Article 311(1) of the Constitution of India or the principles underlying that provision. The judgments cited by the petitioner's counsel are of no help to the petitioner on this point. ii. Violation of provisions of Vigilance Manual:
31. We would now consider if there is violation of the provisions of the Vigilance Manual in laying the Vigilance trap. Paras 704 and 705 of the Vigilance Manual deserve reference.
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32. Para 704 of the Vigilance Manual provides the important points to be kept in view when laying the trap and as per sub para (5)
(a) Two or more independent witnesses must hear the conversation, which should establish that the money was being passed as illegal gratification to meet the defence that the money was actually received as a loan or something else, if put up by the accused.
(b) The transaction should be within the sight and hearing of two independent witnesses.
(c) There should be an opportunity to catch the culprit red- handed immediately after passing of the illegal gratification so that the accused may not be able to dispose it of.
(d) The witnesses selected should be responsible witnesses who have not appeared as witnesses in earlier cases of the department or the police and are men of status, considering the status of the accused. It is safer to take witnesses who are Government employees and of other departments.
(e) After satisfying the above conditions, the Investigating Officer should take the decoy to the SP/SPE and pass on the information to him for necessary action. If the office of the S.P., S.P.E., is not nearby and immediate action is required for laying the trap, the help of the local police may be obtained. It may be noted that the trap can be laid only by an officer not below the rank of Deputy Superintendent 27 of Local Police. After the S.P.E. or local police official have been entrusted with the work, all arrangements for laying the trap and execution of the same should be done by them. All necessary help required by them should be rendered.
33. As per para 705 for the departmental traps the instructions given thereunder are further required to be followed in adition to the instructions in para 704. As per this para 705,
(a) The Investigating Officer/Inspector should arrange two gazetted officers from Railways to act as independent witnesses as far as possible. However, in certain exceptional cases where two gazetted officers are not available immediately, the services of non-gazetted staff can be utilised.
All railway employees, particularly, gazetted officers, should assist and witness a trap whenever they are approached by any officer or Vigilance branch. The Head of Vigilance Branch detail a suitable person or persons to be present at the scene of trap. Refusal to assist or witness a trap without a just cause/without sufficient reason may be regarded as a breach of duty, making him liable to disciplinary action.
(b) The decoy will present the money which he will give to the defaulting officers/employees as bribe money on demand. A memo should be prepared by the Investigating Officer/Inspector in the presence of the independent witnesses and the decoy indicating the numbers of the G.C. notes for legal and illegal transactions. The memo, thus prepared should bear the signature of decoy, independent witnesses and the Investigating Officer/Inspector. Another memo, for returning the G.D. notes to the decoy will be 28 prepared for making over the G.C. notes to the delinquent employee on demand. This memo should also contain signatures of decoy, witnesses and Investigating Officer/Inspector. The independent witnesses will take up position at such a place where from they can see the transaction and also hear the conversation between the decoy and delinquent, with a view to satisfy themselves that the money was demanded, given and accepted as bribe a fact to which they will be deposing in the departmental proceeding at a later date. After the money has been passed on, the Investigating Officer/Inspector should disclose the identity and demand, in the presence of the witnesses, to produce all money including private, Railway and bribe money. Then the total money produced will be verified from relevant records and memo for seizure of the money and verification particulars will be prepared. The recovered notes will be kept in an envelope sealed in the presence of the witnesses, decoy and the accused as also his immediate superior who should be called s a witness in case the accused refuses to sign the recovery memo, and sealing of the notes in the envelope.
34. As per para 704 of Vigilance Manual, when laying a trap, two or more independent witnesses are required, who must hear the conversation which should establish that the money was being passed as illegal gratification. The transaction should be within the sight and hearing of two independent witnesses. The witnesses should be responsible witnesses who should not have appeared as witnesses in earlier cases of the department. It is safer to take witnesses who are Government employees and other departments. Para 705 of the Vigilance Manual also 29 contains the instructions in addition to those in para 704. It also emphasis for two Gazetted Officers of Railway to act as independent witnesses as far as possible. However, in certain exceptional cases where the gezetted officers are not available immediately the services of non gazette staff can be utilized.
35. As per para 705 clause(b) of the Railway Vigilance Manual, clause (b), the decoy will present the money which he will give to the defaulting officers/employees as bribe money on demand. A memo should be prepared by the Investigating Officer/Inspector in the presence of the independent witnesses and the decoy indicating the numbers of the G.C.notes for legal and illegal transactions. The memo thus prepared should bear the signature of the decoy, independent witnesses and the investigating officer/inspector. The para 705 further requires another memo for returning G.D.notes to the decoy will be prepared for making over the G.C.notes to the delinquent employee on demand. This memo should also contain signatures of decoy, witnesses and investigating officer/inspector.
36. We find from the record of the petition enquiry R1 that the memo Ex.P.4, was not signed by two independent witnesses. It was signed only by one witness, besides the 30 decoy and the Vigilance Inspector. The requirement under paras 704 (a) and 705(a) and (b) is of two independent witnesses signing the memo. Such requirement is also for their position to hear the conversation and see the transaction between the decoy and the delinquent signing of the memo by two independent witnesses was not complied. Para 705 which provides for two Gazetted Officers from Railway to act as independent witnesses, though uses the expression ‗as far as possible' in Clause(a), proviso further that in certain exceptional cases where two Gazetted Officers are not available immediately, the services of non gazette staff can also be utilized, in our view, as far as possible, refers to the Gazetted Officers. If the Gazetted Officers are not immediately available, the service of non gazette staff could be utilized. But, the requirement of two independent witnesses is not dispensed with. So, even in the absence of the Gazetted Officers, there should be two independent witnesses may be one gazetted and one non gazetted or two non gazette but there must be two 31 independent witnesses which follows from the reading of 704 (a) and 705(a) of the Vigilance Manual.
37. The applicant had clearly set up the case that the vigilance inspector had given Rs.500/- to the decoy which was to be used in the decoy check. His case was that the provision with respect to the money being given by the decoy for which the memo was to be prepared was not complied. Learned counsel for the petitioner emphasized that the money was not given by decoy but by vigilance inspector to the decoy. For this he referred to the enquiry report, which refers to Ex.P-4, the test check memo as also the evidence of PW 5, the Inspector Vigilance.
38. This is undisputed that the money was given by the vigilance inspector to decoy which is also evident from the documents annexed with the petition including Ex.P.4 as also the statement of P.W.5. The Tribunal however observed that whether money was given by decoy to the Vigilance Inspector or by Vigilance Inspector to Decoy of which memo was prepared did not make any material difference, as the money from vigilance secret fund was used in decoy check. We are of the view that, in the facts and circumstances of the case that the complaint was directly received by Vigilance Inspector which was not even got 32 registered in the Vigilance Department, which is the petitioner's case, also evident from the statement of P.W.5, on record in question-answer no.76, and further there being no written order from the competent authority, though it was deposed by P.W.5 that he got oral instructions from Vigilance Officer; all indicated that the entire proceedings were not as per the Vigilance Manual. So, the giving of the money by Vigilance Inspector to the decoy was an important and relevant factor in which, the strict compliance with para-705 of Vigilance Manual should have been considered by the Tribunal.
39. The Tribunal appears to have taken aforesaid view, as it was of the further view that the paragraphs of the Vigilance Manual were directory and not mandatory. So, the violation thereof did not prejudice the petitioner.
40. Learned counsel for the petitioner placed reliance in Moni Shankar (supra) and B.S. Purushotham (supra) to contend that the Paras 704 and 705 of Vigilance Manual are not merely directory.
41. In B.S. Purushotham (supra), a Coordinate Bench of this Court, inter alia considered the point as to whether the violation of Paras 704 and 705 of the Vigilance Manual vitiated the 33 disciplinary proceedings and the order of penalty could therefore not be sustained. It was held on consideration of Chief Commercial Manager v. G. Rathnam8 and Moni Shankar (supra), that the safeguards provided to a railway employee under Paras 704 and 705 of the Railway Vigilance Manual,1996, could not be given a complete go-bye and in order to judge whether the departmental proceedings stood vitiated or not the cumulative effect of the illegalities/irregularities was required to be taken into consideration.
42. In B.S. Purushotham (supra), this Court held as under in paras 20 to 27:
―20. As per para 704 of Vigilance Manual, when laying a trap, two or more independent witnesses are required, who must hear the conversation which should establish that the money was being passed as illegal gratification. The transaction should be within the sight and hearing of two independent witnesses. The witnesses should be responsible witnesses who should not have appeared as witnesses in earlier cases of the department. It is safer to take witnesses who are Government employees and other departments. Para 705 of the Vigilance Manual also contains the instructions in addition to those in para 704. It also emphasis for two Gazetted Officers of Railway to act as independent witnesses.8
(2007) 8 SCC 212 34
21. In Chief Commercial Manager v. G. Ratnam1, upon which the learned counsel for the petitioner placed reliance, the Hon'ble Apex Court held that the instructions contained in Paragraphs 704 and 705 of the Vigilance Manual, 1996 are procedural in character and not of a substantive nature.
The violation thereof, if any, by the investigating officer in conducting departmental trap cases would not ipso facto vitiate the departmental proceedings initiated against the respondents on the basis of the complaints submitted by the investigating officers to the railway authorities. It was also observed that the instructions under paras 704 and 705 of the Manual were issued not for the information of the accused in the criminal proceedings or delinquent in the departmental proceedings, but for the information and guidance of the investigating officers.
22. In Chief Commercial Manager (supra), the Hon'ble Apex Court declined to agree that the non-adherence of the mandatory instructions and guidelines contained in paragraphs 704 and 705 of the Manual vitiated the departmental proceedings against the railway authorities.
23. Paras 19 and 24 of the Chief Commercial Manager (supra) are reproduced as under:
―19. We are not inclined to agree that the non-adherence of the mandatory Instructions and Guidelines contained in paragraphs 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the respondents by the Railway Authority. In our view, such 35 finding and reasoning are wholly unjustified and cannot be sustained.
24. On consideration of the foregoing facts and in the teeth of the legal aspect of the matter, we are of the view that the instructions contained in paragraphs 704 and 705 of the Vigilance Manual, 1996 are procedural in character and not of a substantive nature. The violation thereof, if any, by the investigating officer in conducting departmental trap cases would not ipso facto vitiate the departmental proceedings initiated against the respondents on the basis of the complaints submitted by the investigating officers to the railway authorities. The instructions as contemplated under paragraphs 704 and 705 of the Manual have been issued not for the information of the accused in the criminal proceedings or the delinquent in the departmental proceedings, but for the information and guidance of the investigating officers.‖
24. The Chief Commercial Manager (supra) was considered in Moni Shankar vs. Union of India and another ((2008) 3 SCC 484).
25. In Moni Shankar (supra), the departmental proceedings were initiated based on a decoy check. One of the points was whether non- adherence of the instructions as laid down in paragraphs 704 and 705 of the Manual would invalidate the departmental proceedings. The Hon'ble Apex Court held that with a view to protect the innocent employees from traps, appropriate safeguards were provided in the Railway Manual in paras 704 and 705. The Hon'ble Apex Court observed that the case of Chief Commercial Manager (supra) proceeded on the premise that the executive orders do not confer any 36 legally enforceable rights on any person and impose no legal obligation on the subordinate authorities for whose guidance they are issued. The Apex Court emphasized in Moni Shankar (supra) that the total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official. In Moni Shankar (supra), the Apex Court held that Para 705 of the Manual was also very relevant. If the safeguards are provided to avoid false implication of a railway employee, the procedures laid down therein could not have been given a complete go bye.
26. It is apt to reproduce Paras 15 to 17 and 26 to 30 of Moni Shankar (supra) as under:
―15. It has been noticed in that judgments that Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued.
16. We have, as noticed hereinbefore, proceeded on the assumption that the said paragraphs being executive instructions do not create any legal right but we intend to emphasise that total violation of the guidelines together with other factors could be taken into consideration for the purpose of arriving at a conclusion as to whether the department has been able to prove the charges against the delinquent official.37
17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. (See - State of U.P. v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 and Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association, (2007) 4 SCC 669.
26. The High Court has only noticed paragraph 704 of the Manual and not the paragraph 705 thereof. Paragraph 705 was very relevant and in any event both the provisions were required to be read together. The High Court, thus, committed a serious error in not taking into consideration paragraph 705 of the Manual. The approach of the High Court, in our opinion, was not entirely correct. If the safeguards are provided to avoid false implication of a railway employee, the procedures laid down therein could not have been given a complete go bye.
27. It is the High Court who posed unto itself a wrong question. The onus was not upon the appellant to prove any bias against the RPF, but it was for the department to establish that the charges leveled against the appellant.38
28. The High Court also committed a serious error in opining that sub-rule (21) of Rule 9 of the Rules was not imperative. The purpose for which the sub-rule has been framed is clear and unambiguous.
The railway servant must get an opportunity to explain the circumstances appearing against him. In this case he has been denied from the said opportunity.
29. The cumulative effect of the illegalities/irregularities were required to be taken into consideration to judge as to whether the departmental proceeding stood vitiated or not.
30. For the aforementioned purpose, the manner in which the enquiry proceeding was conducted was required to be taken into consideration by the High Court. The trap was not conduced in terms of the Manual ; the Enquiry Officer acted as a Prosecutor and not as an independent quasi judicial authority ; he did not comply with Rule 9(21) of the Rules, evidently, therefore, it was not a case where the order of the Tribunal warranted interference at the hands of the High Court.
27. Thus, it is well settled in law that the safeguards provided to a railway employee under Paras 704 and 705 of the Railway Vigilance Manual, 1996, cannot be given a complete gobye and in order to judge whether the departmental proceedings stood vitiated or not the cumulative effect of illegalities/irregularities is required to be taken into consideration."
43. So, there is violation of paras 704, 705 of Vigilance Manual, which could not be given a complete go bye. iii. Enquiry Officer from Vigilance Department and No Presenting Officer:
39
44. The Enquiry Officer was from the Vigilance Department functioning under the Control of Chief Vigilance officer of the South Central Railway. The Tribunal observed that the disciplinary and the appellate authority were not from the Vigilance Department and had formed opinion by independent application of mind and so no case for bias or prejudice in the enquiry report or in the order of the disciplinary/appellate authority has. The view taken by the Tribunal is not correct. The disciplinary and the appellate authority may not have been from Vigilance Department but enquiry officer was certainly from Vigilance Department functioning under the control of Chief Vigilance Officer.
45. In Union of India and others vs. Prakash Kumar Tandon9, the Inquiry Officer was the Chief of the Vigilance Department. The Hon'ble Apex Court held that with a view to be fair to the delinquent officer he should not have been appointed as an enquiry officer at all. Para 12 reads as under:
―12. 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 9 (2009)2 SCC 541 40 be fair to the delinquent officer, should not have been appointed as an enquiry officer at all.
46. The Presenting Officer was also not appointed.
47. On behalf of department, 5 witnesses were produced. It is clear from perusal of the evidences of PWs 1 to 5 annexed to the writ petition that, they were examined in chief by the Enquiry Officer. The Enquiry Officer took the role of the Presenting Officer, which is not at all permissible for the Enquiry Officer in discharge of his duties. The Enquiry Officer has to be independent and impartial. The Enquiry Officer took the role of the Presenting Officer. He also re-examined two of the PWs which reflects that the enquiry officer at some point of time, considering that the cross examination of those two PWs by the defence side, might have been beneficial or advantageous to the delinquent, thought it fit to re-examine those PWs. This re- examination of those witnesses is prima facie indicating that the enquiry officer was playing the active role of the presenting officer during the enquiry. In our view, this should not be the function of the enquiry officer of its own. That should be in the decision of the presenting officer for the department. If such a role is played by the enquiry officer, in the absence of the presenting officer, it can 41 be said that the enquiry officer was actively playing the role of the presenting officer.
48. The enquiry officer, law is well settled, is to be impartial for a fair enquiry, without there being any likelihood of bias towards the delinquent. We reiterate the settled principle that the impartiality of the enquiry requires that it should also be seen to be impartial and fair to both the sides.
49. In B. S. Purushotham (supra) the facts were that the Presenting Officer was not appointed. The Coordinate Bench of this Court considering the judgment in the case of Union of India v. A. R. Rakesh10 observed that the principle to which the concept of appointing a Presenting Officer owes its existence is that the Enquiry Officer is required to maintain adequate distance from both sides and to hold the scales even. So, the Enquiry Officer should not act or conduct as Prosecutor/Representing Officer.
50. Paras-28 to 30 of B. S. Purushotham (supra) read as under:
―28. In the present case, the Presenting Officer was not appointed and the appointed Enquiry Officer was working under the Senior Deputy General Manager (Vigilance).10
WP.No.26790/2015, APHC Decided on 14.09.2015 42
29. In Union of India, rep. by the General Manager, S.C. Railway, Secunderabad and others vs. A.R. Rakesh and another (W.P.No.26790 of 2015 decided on 14.09.2015), it was observed that the principle to which the concept of appointing a Presenting Officer owes its existence is that the Inquiry Officer so appointed, no doubt, by the very same disciplinary authority belongs to the same department/unit, but is required to maintain adequate distance from both sides. He is required to hold the scales even. He must necessarily demonstrate that he is fairly objective and impartial in his approach and mind. It was observed that justice must not only be done, but it must appear to have been so done. The Enquiry Officer should not act or conduct as prosecutor.‖
30. Para 7 of A.R. Rakesh (supra) reads as under:
―7. We are conscious that some times for sheer want of adequate man-power, it may not be always possible for an Inquiry Officer to be assisted by a Presenting Officer, but at the same time, the principle to which the concept of appointing a Presenting Officer owes its existence is that the Inquiry Officer so appointed, no doubt, by the very same disciplinary authority belongs to the same department/unit, but is required to maintain adequate distance from both sides. He is required to hold the scales even. He must necessarily demonstrate that he is fairly objective and impartial in his approach and mind. Before a witness is introduced for examination or before a witness examined on behalf of the employee is cross- examined, a certain amount of briefing is required. Certain information may have to be secured from various other sources independently. Imagine the situation where the Inquiry Officer doing the above acts behind the back of the employee and thereafter the impression brought before him in the inquiry undertaken by him. Therefore, it is always set out by the Constitutional Courts that justice must not only be done, but it must appear to have been so done. What would a Bungalow Peon expect from an Inquiry Officer, who is also acting on behalf of the very same 43 disciplinary authority who is conducting the prosecution as well? Would it be fair to expect that the man, who is facing the charge, will still have the same fair and fearless attitude that the Inquiry Officer is an impartial individual and that he is objective in his mind? That is why, we feel, that the concept that "no man should be a judge in his own cause‟ has been developed to the extent it has been done by the Indian Courts. Looked at it from any perspective, we cannot approve the conduct of either the Inquiry Officer or the Railways in litigating in the manner in which they have done.‖
51. We are therefore of the view that the enquiry conducted by the enquiry officer cannot be said to be a fair enquiry. At least the likelihood of the enquiry being unfair, impartial and prejudicial to the delinquent cannot be ruled out.
iv. COMPLIANCE WITH RULE 9(21) OF RULES, 1968:
52. Rule 9(21) of the Railway Servants (Discipline and Appeal) rules, 1968 read as under:
―9.Procedure for Imposing Major Penalties:
"(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.‖
53. The applicant had chosen not to examine himself. So, the enquiry officer was required to question the applicant on the 44 circumstances appearing against him in the evidence to enable him to explain those circumstances. The requirement is in consonance with the principles of natural justice. The employee must know the circumstances against him appearing in the evidence, so that he may explain those circumstances.
54. After the examination of the witnesses, the enquiry officer made general examination of the applicant by putting question No.84, which is to the following effect.
―Q.84. So far documentary and oral evidence adduced during the inquiry appears to go against you, what have you got to say?.
55. To the aforesaid question, the applicant, answered as under:
Ans. I disagree with you suggestion that evidence adduced during the inquiry is going against me. I will prove my innocence duly submitting the details in my defence brief. A false case was foisted against me with a ill will feeling and bad motive by Smt G. Parameswari with the active support of other members of other team. I may be given 15 days time to submit my defence brief.‖
56. This provision Rule 9(2) requires strict compliance as it is couched in a mandatory form by use of the expression ‗shall' if the railway servant has not examined himself. The question which was put to the applicant i.e Question No.84, as reproduced above 45 shows that, such question is too general with no specifications. It was vague as it did not disclose the circumstances appearing against the applicant, in the evidence. Merely saying that the documentary and the oral evidence adduced appears to go against the applicant and what he had to say, is not a compliance with rule 9(21) of the Rules, 1968. That part of the documentary and the oral evidence adduced during enquiry which appeared to be going against the applicant was to be specifically brought to the notice of the applicant which was not done. In the absence of any such disclosure, the applicant would have no opportunity to explain the incriminating circumstances. This results in violation of the principles of natural justice. The enquiry thus conducted would not be a fair enquiry, giving a fair opportunity to applicant, besides being violative of the statutory Rule 9(21).
57. In Moni Shankar (supra), the enquiry officer had put the following questions to the appellant therein. Para 20 of the judgment reads as under:
―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 46 defence brief? Are you satisfied with the enquiry proceedings and can I conclude the enquiry?‖
58. The Hon'ble Apex Court held that such a question did not comply with the rule 9(21) of the rules. What were the circumstances appearing against the appellant had not been disclosed. Para 21 of Moni Shankar (supra) reads as under:
―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.‖
59. In Moni Shankar (supra), the Hon'ble Apex Court further held that the High Court committed a serious error in opining that rule 9(21) was not imperative.
60. In other words, we may say that, rule 9(21) was held imperative. Para 28 of Monishankar (supra) reads as under:
―28. The High Court also committed a serious error in opining that sub-rule (21) of Rule 9 of the Rules was not imperative. The purpose for which the sub-rule has been framed is clear and unambiguous. The railway servant must get an opportunity to explain the circumstances appearing against him. In this case he has been denied the said opportunity.‖ v. Order of the appellate authority:
61. Part V of the Rules, 1968 deals with ―appeals‖. Rule 18 provides as to what orders are appealable. An order imposing 47 any of the penalties specified in Rule 6, whether made by the disciplinary authority or by any appellate authority or revising authority, is appealable. Rule 19 deals with the appellate authorities; Rule 20 provides for the period of limitation, and Rule 21 for the formation, contents and submission of appeal. Rule 22 provides for such consideration, the manner for consideration of the appeal and what order the appellate authority may pass.
62. Rule 22 of the Rules, 1968 is reproduced as under:
―22 The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, and the railway servant, or permit them to file written briefs of their respective cases, if they so desire.‖
63. Rule 22 of the Rules, 1968, makes it evident that the appellate authority shall consider (a) whether the procedure laid down in the rule has been complied and if not, whether such non compliance has resulted in the violation of the provisions of the Constitution of India or in the failure of justice (b) whether the findings of the disciplinary authority are warranted by the evidence on record and whether the penalty or the enhanced penalty imposed is adequate or inadequate or severe. The appellate authority, on such consideration has to pass the orders 48 confirming, enhancing, reducing or setting aside the penalty. It may also remit the case to the authority which imposed or enhanced the penalty or to any of the authority with such directions as it may deem fit in the circumstances of the case.
64. Thus, what is relevant is the exercise of the appellate power in the manner as provided by Rule 22. The appellate authority has to see if the procedure laid down has been complied with and what is the effect in case of non compliance. The findings of the disciplinary authority are also to be tested to determine if such findings are warranted by the evidence on record. It clearly implies that the appellate authority has also to consider the evidence on record, to make appreciation thereof so as to arrive at the subject satisfaction as to whether the finding recorded by the disciplinary authority are warranted in the light of the evidence on record. It has also to see if the penalty imposed is adequate or inadequate or severe i.e if the penalty is not disproportionate to the proved charge. The order of the appellate authority is therefore required to be a speaking order. The appeal cannot be dismissed by a non speaking order without considering the 49 material aspects for consideration by the appellate authority as envisaged by Rule 22(2).
65. Right of appeal, it is well settled in law, is a right conferred by the statute. The findings of the appellate authority, generally are taken as final and conclusive by the Tribunal and by the High Court, except in certain circumstances, which are well recognised. The scope of interference with such finding gets restricted and restricted, firstly, before the Tribunal and thereafter under Article 226 of the Constitution of India before the High Court. Consequently, the duty cast on the appellate authority is of greater responsibility and is required to be discharged as per the mandate of rule 22(2), which itself is termed in the statutory mandatory form by the use of the expression, ―the appellate authority shall consider".
66. In Ramchander (supra), the question was whether the order passed by the Railway Board dismissing the appeal was inconformity with the requirements of rule 22(2) of the Railway Servants Disciplinary Authority Appeal Rules 1968. The Hon'ble Apex Court held that the duty to record the reasons is an incident of the judicial process. Referring to the previous judgment, which 50 in almost similar circumstances interpreted Rule 22 of the Central Servants Classification Control and Appeal Rule, 1965, in pari materia with Rule 22 (2) of the Railway Servants Disciplinary Authority Appeal Rules, 1968, it was held that the appellate authority is required to consider (1) whether the procedure laid down in the rules is complied and if not whether such non compliance has resulted in violation of any of the provisions of the Constitution of India or in the failure of justice. (2) whether the finding of the disciplinary authority were warranted by the evidence on record and (3) whether penalty imposed was adequate inadequate or severe. The Hon'ble Apex Court held that the word ‗consider' implied due application of mind. It was emphasised that the appellate authority discharging Quasi judicial functions in accordance with natural justice must give reasons for its decision. The appellate authority therein had not recorded as to whether the findings of the disciplinary authorities were warranted by the evidence on record. The Hon'ble Apex Court emphasised that there should not be just a mechanical re-production and exercise without any attempt either to appreciate the evidence on record with a view to discharge whether the findings arrived at by the disciplinary authority could be sustained or not. There was 51 also no indication whether the appellate authority applied its mind as to whether the act of mis-conduct of which the employee had been charged together with the attendant circumstances and his past record, were such that he should have been visited with the extreme penalty of removal from service. Dismissal or removal from service was a matter of grave concern to a civil servant who after a long period of service, might not deserve a harsh punishment. The non compliance with the requirement of rule 22(2) of the Railway Servants Rules was held to be fatal to the appellate order, which was held liable to be set aside.
67. Paras 4,5 and 9 of Ramachander (supra) deserve reproduction as under:
―4. The duty to give reasons is an incident of the judicial process. So, in R.P. Bhatt v. Union of India [(1986) 2 SCC 651] this Court, in somewhat similar circumstances, interpreting Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which provision is in pari materia with Rule 22(2) of the Railway Servants (Discipline and Appeal) Rules, 1968, observed:
―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-52
compliance has resulted in violation of any of the provisions of the Constitution of India 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 remit back the case to the authority which imposed the same.‖ It was held that the word ―consider‖ in Rule 27(2) of the Rules implied ―due application of mind‖. The Court emphasized that the appellate authority discharging quasi-judicial functions in accordance with natural justice must give reasons for its decision. There was in that case, as here, no indication in the impugned order that the Director General, Border Road Organisation, New Delhi was satisfied as to the aforesaid requirements. The Court observed that he had not recorded any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. In the present case, the impugned order of the Railway Board is in these terms:
―(1) In terms of Rule 22(2) of the Railway Servants (Discipline and Appeal) Rules. 1968, the Railway Board have carefully considered your appeal against the orders of the General Manager, Northern Railway, New Delhi imposing on you the penalty of removal from service and have observed as under:
(a) by the evidence on record, the findings of the disciplinary authority are warranted; and 53
(b) the penalty of removal from service imposed on you is merited.
(2) The Railway Board have therefore rejected the appeal preferred by you.‖
5. To say the least, this is just a mechanical reproduction of the phraseology of Rule 22(2) of the Railway Servants Rules without any attempt on the part of the Railway Board either to marshal the evidence on record with a view to decide whether the findings arrived at by the disciplinary authority could be sustained or not. There is also no indication that the Railway Board applied its mind as to whether the act of misconduct with which the appellant was charged together with the attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty of removal from service for a single lapse in a span of 24 years of service. Dismissal or removal from service is a matter of grave concern to a civil servant who after such a long period of service, may not deserve such a harsh punishment. There being non-
compliance with the requirements of Rule 22(2) of the Railway Servants Rules, the impugned order passed by the Railway Board is liable to be set aside.
9. These authorities proceed upon the principle that in the absence of a requirement in the statute or the rules, there is no duty cast on an appellate authority to give reasons where the order is one of affirmance. Here, Rule 22(2) of the Railway Servants Rules in express terms requires the Railway Board to record its findings on the three aspects 54 stated therein. Similar are the requirements under Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Rule 22(2) provides that in the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall ―consider‖ as to the matters indicated therein. The word ―consider‖ has different shades of meaning and must in Rule 22(2), in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision.‖
68. In Dharam Devi Mehta (supra), the appellate authority had not assigned the reasons for dismissal of the appeal. So, the appeal order was held unsustainable.
69. We find force in the submission of the learned counsel for the petitioner that the appellate authority failed to discharge its duty under rule 22(2) of the Rules, 1968. It has not considered the appeal by making an objection consideration of this evidence, the provision of the Vigilance Manual and the rules regarding enquiry, with an independent application of mind, giving the reasons for its decision.
55
VII. Conclusion:
70. Thus, considered our conclusions are that
i) there was violation of para 704, 705 of Vigilance Manual.
ii) The Enquiry Officer was from Vigilance Department and he acted as Presenting Officer as well.
iii) Rule 9(21) of the Rules, 1968 was violated.
iv) the enquiry was not fair and violated the principles of natural justice and based on such enquiry the order of removal could not be passed.
v) The appellate authority failed to decide the appeal as per rule 22(2) of the Rules, and the orders deserved interference by the Tribunal which also failed to decide the OA in a judicious manner.
71. In Union of India and others vs. Prakash Kumar Tandon11, the Hon'ble Apex Court held in para 12 as under:
―12. 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.
72. At this stage, we may again refer to Moni Shankar (supra). The Hon'ble Apex Court observed that the trap was not 11 (2009) 2 SCC 541 56 conducted in terms of the Vigilance Manual; the enquiry officer acted as a prosecutor and not as an independent quasi-judicial authority; the enquiry officer did not comply with Rule 9 (21) of the Rules, and therefore, it was held that, that was not a case where the order of the Tribunal warranted interference at the hands of the High Court. There the Tribunal had allowed the O.A and the High Court interfered with the order of the Tribunal.
73. Paras-29 & 30 of Moni Shankar (supra) reads as under:
―29. The cumulative effect of the illegalities/irregularities was required to be taken into consideration to judge as to whether the departmental proceeding stood vitiated or not.
30. For the aforementioned purpose, the manner in which the enquiry proceeding was conducted was required to be taken into consideration by the High Court. The trap was not conducted in terms of the Manual; the enquiry officer acted as a prosecutor and not as an independent quasi-judicial authority; he did not comply with Rule 9(21) of the Rules, evidently, therefore, it was not a case where the order of the Tribunal warranted interference at the hands of the High Court.‖
74. The writ petition therefore deserves to be allowed. Result:
75. In the result, the writ petition is allowed. The order dated 15.02.2012, passed by the Central Administrative Tribunal, Hyderabad Bench in O.A.No.958 of 2011; the order 57 of removal from service vide order No.B/P.227/IV/2009/3/Vig., dated 14.02.2011, and the appellate order No.B/P.227/IV/2009/3/Vig., dated 07.09.2011 are hereby quashed.
76. The petitioner shall be deemed to be in service till the date of attaining the age of superannuation and would be entitled for grant of all the consequential benefits, as if he was not removed from service, which shall be paid by the respondents within three months. No order as to costs.
Consequently, the Miscellaneous Petitions, if any, pending shall also stand closed.
____________________ RAVI NATH TILHARI,J ________________________ CHALLA GUNARANJAN,J Date: 07.08.2025.
Note:
L.R copy to be marked.
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THE HON‟BLE SRI JUSTICE RAVI NATH TILHARI & THE HON‟BLE SRI JUSTICE CHALLA GUNARANJAN W.P.No.8434 OF 2012 Date: 07.08.2025.
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