Central Administrative Tribunal - Lucknow
Raja Ram Verma vs Union Of India (Uoi) And Anr. on 10 January, 2003
Equivalent citations: 2003(3)SLJ365(CAT)
ORDER J.K. Kaushik, Member (J)
1. Raja Ram Verma has filed this original application under Section 19 of the Administrative Tribunals Act and has sought the following reliefs:
"(a) This Hon'ble Tribunal be pleased to quash the impugned order contained in Annexure A-3 in so far as it relates issue of fresh charge sheet and also quash the fresh charge sheet dated 28.12.93 contained in Annexure No. A-4.
(b) This Hon'ble Tribunal be pleased further to quash all other consequential orders contained in Annexures No. A-5, A-6 issued by the respondent No. 2 after the issue of fresh charge sheet dt. 28.12.93 nominating fresh Enquiry Officers and Presenting Officer.
(c) This Hon'ble Tribunal be pleased further to quash the impugned order dated 29.9.95 contained in Annexure No. A-10.
(d) Any other relief which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case be given to the applicant.
(e) Cost of this application be awarded to the applicant."
2. The indubitable facts, as necessary for resolving the controversy involved in this case are, that the applicant was issued with a charge sheet on 23.3.93 under Rule 9 of Railway Servants (Discipline and Appeal) Rules, 1968 (for bravity the Rules). The allegation of charges relate to a vigilance check which was conducted by the Vigilance inspector on 22.12.92. The charge sheet was well in conformity with Rule 9 of the Rules and its sub rules. The Enquiry Officer as well as Presenting Officer were appointed and the detailed enquiry was held on various dates mentioned in para 4.8 of the O.A.
3. The further case of the applicant is that everything was going on as usual but all of a sudden the respondent No. 2, at the direction of the Vigilance issued through letter dated 22.12.93, the impugned order dated 28.12.93 (Annexure A-3). By this order, the charge sheet dated 22.3.93 has been ordered to be cancelled and a fresh charge sheet dated 28.12.93 was issued in the same matter. Thereafter, the Enquiry Officer and the Presenting Officer were appointed to proceed with the disciplinary case in pursuance of the fresh charge sheet.
4. The applicant has further averred that there is no rule to issue fresh charge sheet by the disciplinary authority on the same allegations and the applicant protested against the charge sheet vide representation dated 16.12.94. But the respondent No. 2 who was acting under the dictation of Vigilance, referred the matter to the Vigilance for advice and enquiry officer was asked to stop the proceedings. But subsequently, the enquiry officer was asked to proceed in the matter.
5. The Original Application has been filed on multiple grounds e.g. the impugned act of respondent No. 2 in issuing the fresh charge sheet is without jurisdiction, the respondent 2 had no authority to issue the fresh charge sheet as per the rules, all subsequent proceedings after issuance of the fresh charge sheet are illegal, arbitrary and without jurisdiction, the impugned order Annexure A-1 is also illegal and arbitrary and similarly Annexure A-3 in so far as it relates to the issuance of fresh charge sheet is illegal, arbitrary and without jurisdiction, hence this application.
6. The respondents have contested the case and have filed a counter reply wherein they have refuted the contentions and grounds raised in the Original Application. It has been submitted that the fresh charge sheet had to be issued because certain allegations were slipped which were pointed out vide letter dated 22.12.93 (C.R.-1). Even the name of the actual witness had to be mentioned in the fresh charge sheet. Therefore, the charge that the applicant did not disclose his private cash had to be added since it relates to the same incident. The General Manager, Vigilance, through letter dated 23.2.93 proposed major penalty charge sheet against the applicant and the respondent No. 2 issued the charge sheet against the applicant dated 23.3.93, after application of mind and due consideration. The impugned order has been issued in conformity with the Railway Board Circular and the applicant is not entitled to any relief and the Original Application deserves to be dismissed.
7. We have heard the learned Counsel for the parties at considerable length and have bestowed our thoughtful consideration to the arguments led on behalf of the parties, pleadings and the record of the case.
8. The learned Counsel for the applicant has emphasised primarily on two points namely the impugned order dated 28.1.93 (Annexure A-3) does not contain any reason as per the mandate of Railway Board Circular dated 1.12.93, inasmuch as the order is not a self contained order and does not disclose any reason as to why it was necessary to cancel the previous charge sheet and issue the fresh charge sheet. Secondly, he has stressed that the second charge sheet has been issued at the instance and dictation of the S.D.G.M. Vigilance and the disciplinary authority respondent No. 2 has not at all applied its mind.
9. We proceed to deal with the aforesaid points in seriatum as regards the first issue, to appreciate the same, the relevant para 2 of R.B.E. No. 171/93 is extracted as under:
"2. The matter has been examined and it is cleared that once the proceedings initiated under Rule 9 of Rule 11 of RS (D&A) Rules, 1968 are dropped, the disciplinary authority would be debarred from initiating fresh proceedings against delinquent employee unless the reasons for cancellation of the Original Charge Memorandum or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without any prejudice to further action which may be considered in the circumstances of the case. It is, therefore, necessary that when the intention is to issue a fresh charge sheet subsequently, the order cancelling the original one or dropping the proceedings should be carefully worded so as to mention the reasons for such an action indicating the intention of issuing charge sheet a fresh appropriate to the nature of the charges."
10. The learned Counsel for the applicant has banked upon the contents of impugned order dated 28.12.93 which are as under:
"In continuation of this office letter of even No. dt. 27.3.93 the charge sheet is hereby cancelled and the fresh charge sheet is being issued to you."
It has been stressed that the same does not contain any reason for issuance of fresh charge sheet as per the mandate of the Railway Board circular (supra). Therefore, the impugned order, so far it relates to issuance of fresh charge sheet, is not sustainable.
11. On contrary, the learned Counsel for the respondents has, with his usual force at his command, has submitted that the impugned order should not be read in isolation but as per the rules of interpretation, the same should be read in whole by taking into account the annexure to it i.e. fresh charge sheet. He has pointed out certain differences in earlier charge sheet and the fresh charge sheet and has urged that reading the same conjointly would inescapably result in reaching to the conclusion that the impugned order contains the reasons also. The intention of proceeding afresh is evident from the fact that a fresh charge sheet is already attached to the impugned order itself. In this way, the same is valid and well in conformity with the instructions issued by the Railway Board and deserves to be upheld.
12. We have considered the aforesaid rival contentions of the learned Counsel for the parties. As far as the intention of issuance of fresh charge sheet is concerned, the same is evident from the very impugned order and there can hardly be any dispute on the same. But as far as the contention of learned Counsel for applicant that the impugned order does not contain any reason as per the instructions of Railway Board, the same has forced and is well founded. As per the principles of interpretation of a document, the same is to be read as it is and nothing can be added or substracted from it. Our view is fortified with a Constitution Bench judgment of Supreme Court in Mohinder Singh Gill v. State of Punjab, AIR 1978 SC 851, wherein their lordships have observed that once a statutory authority passes an order, it must be read as it is, otherwise an order which is illegal in the beginning, can be said to be legal on the basis by supplementing Affidavit. In view of the ratio laid down in the aforesaid judgment, we have to take simple meaning of the contents of the letter and not the reasons sought to be supplemented or to be found out by carrying out investigations or by perusing the charge sheet as contended by the applicant. Thus, the contention of the learned Counsel for the applicant stands repelled and we hold that the impugned order does not contain any reason for issuance of fresh charge sheet and the same is illegal, not being in conformity with the mandate laid down by the Railway Board.
13. Adverting to the second issue involved in this application, the learned Counsel for applicant has urged that the impugned order has been issued at the instance of the vigilance authority and the disciplinary authority has not applied its own mind. It has also been submitted that the earlier inquiry was sliding in his favour and this was not acceptable to the vigilance authority. Our attention was invited towards letter dated 22.12.93 (C.R.-l). The contents are extracted as under;
"Please refer to this office letter of even number dated 23.2.93 in which major penalty charge sheet was sent. Few discrepancies have come to notice in the said draft charge sheet. The fresh charge sheet is enclosed herewith for your necessary action as Annexure-I to VI. The previous charge sheet may be treated as cancelled.
It is further advised that E.O. (Vig)/NDLS may be nominated as Enquiry Officer in this case. Shri S.N. Rai, VI/HQ will work as Presenting Officer in this case.
Kindly take necessary action in this regard under advise to this office."
Sd/-For General Manager (Vigilance) The learned Counsel has submitted that mere perusal of the aforesaid letter amply makes the factum of his contention that completed action is being taken under dictation of vigilance authorities.
14. On the other hand, the learned Counsel for the respondents has opposed the aforesaid contention and argued that the vigilance authorities have only suggested the disciplinary authority and there was nothing like dictation from any authority. The vigilance actually conducted the vigilance check and dealt with the prosecution case. In this view of the matter, making any suggestion especially in regard to certain discrepancies of facts, can not be said to dictating the disciplinary authority.
15. We inquired from the learned Counsel for the respondents as to why the charge sheet itself was drafted by the vigilance department and also the disciplinary authority was informed that charge sheet is cancelled. The learned Counsel tried to justify his stand by repeating his argument and was at difficulty to give any direct answer to our question. His main submission was confined to infer the letter dated 22.12.93 only as a suggestion and nothing more.
16. We are not persuaded with the arguments of the learned Counsel for the respondents in view of the dictum of Supreme Court in the case of Mohinder Singh Gill (supra). The contention of learned Counsel for the applicant has forced and we are of the firm opinion that in the present case the disciplinary authority has not applied its mind. If that be so, the impugned orders can not be sustained. The statement of law is well settled by the Supreme Court in Nagaraj Shivarao Karjagi v. Syndicate Bank, 1991 SCC (L&S) 965, where their lordships have observed as under:
"19. The corresponding new Bank referred to in Section 8 has been defined under Section 2(f) of the Act to mean a Banking Company specified in Column 1 of the First Schedule of the Act and includes the Syndicate Bank. Section 8 empowers the Government to issue directions in regard to matters of policy but there cannot be any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases. The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See De Smith's Judicial Review of Administrative Action 4th edn., p. 309). The impugned directive of the Ministry of Finance, is therefore, wholly without jurisdiction and plainly contrary to the statutory Regulations governing disciplinary matters."
Before parting with our order, we find it expedient to enter into a caveat inasmuch as we have taken the judicial notice of the practice which seems to be prevalent in the Railways inasmuch as the draft charge sheets are prepared by the vigilance authorities, directions are issued for appointing a particular person as inquiry officer and presenting officer for conducting inquiries. The disciplinary authority in such circumstances can not be expected to apply its independent mind in the particular disciplinary cases. Such interference by the vigilance tantamounts to thrust upon its own whims on the authorities and principles of fair play and natural justice is given good bye. It may result in demoralising the disciplinary authorities in particular and the delinquent official in general. Any interference with the functioning of statutory authorities gives rise to mal-administration and the possibilities of victimisation of innocent employee also cannot be ruled out. Such practice is required to be curbed forthwith and we expect the Railway authorities to take note of it and take suitable action in the matter.
17. The upshot of the aforesaid discussion is that the Original Application deserves to be partly allowed. The impugned order dated 28.12.93 (Annexure A-3), charge sheet dated 28.12.93 and order dated 29.9.95 (Annexure A-10) are hereby quashed. It shall be scarcely necessary to mention that the disciplinary authority shall be at liberty to proceed with the disciplinary proceedings held in pursuance of the charge sheet dated 23.3.93 (Annexure A-1) from the stage it was stopped. However, due care shall be given to our observation made herein above. The result of the disciplinary proceedings shall regulate the consequential benefits admissible to the applicant. However, in the facts and circumstances of the case, we make no order as to costs.
18. The Registry is directed to send a copy of this order under the seal of this Bench of the Tribunal directly to the Railway Board so as to enable them to take corrective action in view of our observations made therein above.