Central Administrative Tribunal - Patna
Anand Jwala vs Railway on 7 May, 2018
[1] OA/050/00178/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, P A T N A
REGN. NO.: OA/050/00178/2014
w i t h
MA/050/00182/2014
Reserved on : 04.05.2018
Date of Order : 07.05.2018
C O R A M
Hon'ble Mr. Justice Vishnu Chandra Gupta, Member (Judl.)
Hon'ble Dr. Nandita Chatterjee, Member (Admn.)
Hon'ble Mr. Jayesh V.Bhairavia, Member (Judl.)
.............
Anand Jwala, son of Shri Pulindra, resident of Mohalla-Janakpur, PO-
Buniyadganj, PS-Mufassil, District, Gaya, presently posted as ECRC,
Jehanabad.
.........Applicant.
By Advocate:- Shri Gautam Saha.
Vs.
1. The Union of India through the General Manager, East Central
Railway, Hajipur, Vaishali.
2. Chief Personnel Officer, East Central Railway, Hajipur, Vaishali.
3. Chief Vigilance Officer, East Central Railway, Hajipur, Vaishali.
4. Divisional Railway Manager, Danapur Division, East Central
Railway, Danapur, Khagaul.
5. Additional Divisional Railway Manager, Danapur Division, East
Central Raiwlay, Danapur, Khagaul.
6. Senior Divisional Personnel Officer, Danapur Division, East
Central Railway, Danapur, Kahgaul.
7. Senior Divisional Commercial Manager, Danapur Division, East
Central Railway, Danapur, Khagaul.
8. Divisional Commercial Manager, Danapur Division, East Central
Railway, Danapur, Khagaul.
9. Station Manager, East Central Railway, Jehanabad station.
.........Respondents.
By Advocate:- Shri B.K.Choudhary
Shri S.K.Griyaghey.
[2] OA/050/00178/2014
O R D E R
Justice Vishnu Chandra Gupta, Member (Judl.) :- This Full Bench is constituted in pursuance of the order of the Principal Bench passed by Hon'ble Chairman vide letter dated 03.11.2017 to resolve the points of reference based on difference of opinion between the two Hon'ble Members of the Bench. The points of reference, which has to be addressed by this Full Bench, are as under:-
"(i) In any Division Bench, when one of the Members has followed earlier two decisions of two Division Benches, another Single Member can disagree with the decisions of the earlier two Benches, whether it would not be in violation of principles of judicial discipline and propriety as held by the Constitution Bench in Dawoodi Bohra's case.
(ii) Whether the Railway Board circular is binding upon the authorities being statutory in nature under Article 309 and in violation thereof can be treated as procedural violation.
(iii) Whether infraction of RBE 1993 invalidates a charge-sheet, enquiry report and punishment orders?
(iv) If the answer to the above is in the affirmative, whether or not the Railway authorities can be given liberty to start de-novo proceedings from the stage of curing the aforesaid infraction?
(v) To adjudicate the OA 178/2014 pending before the Patna Bench of the Tribunal."
2. To begin with, to decide the points of reference, few facts are necessarily to be looked into.
3. The applicant, Anand Jwala, was subjected to vigilance check and he was found involved in malpractices of issuing reservation tickets through touts. On the basis of vigilance check, a memo of charges was prepared against the applicant and served upon him on 18.08.2010. The Article of Charges was made Annexure-5 to the charge-sheet which reads as under:-
[3] OA/050/00178/2014 "STATEMENT OF ARTICLE OF CHARGES FRAMED AGAINST SRI ANAND JWALA, ECRC/JAHANABAD WORKING UNDER SR.
DCM/DANAPUR ...........
Sri Anand Jwala, ECRC, JHD while working on the counter No.1 of the reservation office, Jahanabad in 08 to 14 Hrs. shift on 18.07.2009 committed gross misconduct in as much as:
Article-1 He issued a TATKAL Journey-cum-Reservation ticket containing PNR No. 623-9929940 for train No. 2393 Up of dated 21.07.2009 ex RJPB to NDLS with connivance of a tout named Surendra Kumar Singh. Sri Singh demanded excess amount Rs.42/-
than the actual fare on behalf of ECRC which was finally accepted by him. Besides the tout did not refund Rs.20/- to the deputed passenger also.
Article-2 He was found having Rs.62/- short with him in the Government cash. He produced Rs.11,810/- against the ITC cash Rs.11,872/-. The short in the Government cash indicates the misappropriation of the same by the staff for self interest.
Thus, Sri Anand Jwala, ECRC/JHD by his acts of commission and omission failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a railway servant thereby violating Rule 3.1 (i), 3.1(ii) & 3.1(iii) of Railway Services (Conduct) Rules, 1966."
4. Thereafter, the aforesaid memo of charges for major penalty was withdrawn by letter dated 18.02.2011 by the Disciplinary Authority which has been annexed as Annexure-6 to the OA and is reproduced herein below for ready reference:-
"EAST CENTRAL RAILWAY No. CS/Vig./Major/AJ/10 DNR/Dated 18.02.2011 Sri Anand Jawala ECRC/ECR/JHD Sub.:- Major Penalty Charge Sheet It is informed that Major Penalty charge sheet No. CS/Vig/Major/AJ/10 dated 18.08.2010 issued to you is hereby withdrawn without prejudice.
Sd/-
(B.Mohan) DCM/ECR/DNR & Disciplinary Authority"
[4] OA/050/00178/2014
5. After passing the aforesaid order of withdrawal of charge-
sheet without prejudice, the applicant made a representation on 02.03.2011 (Annexure-7) with the request not to issue major charge-
sheet afresh against him and prior to taking any action against him certain issues pointed out in representation should be taken into consideration.
6. A fresh memo of charges, identical to the earlier memo of charge which was withdrawn, was however, issued on 16.03.2011 and has been annexed as Annexure-1 to the OA. After receiving this memo of charges, the applicant filed his reply to the memo of charges on 12.05.2011 through proper channel, a copy of which has been annexed as Annexure-9 to the OA. In reply, he has taken the specific plea with regard to violation of IRVM 2006 (Para 836.2) which reads as under:-
"(C) Charge Sheet No. CS/Vig./Major/AJ/10 dt. 16.03.2011 issued without authority A charge sheet No. CS/Vig.Major/AJ/10 dated 19.08.2010 has been issued by DCM DNR/ECR. The charge sheet further withdrawn with letter No. CS/Vig. Major/AJ/10 dt. 18.02.2011 stating-
"It is informed that Major Penalty charge sheet No. CS/Vig/Major/AJ dt. 18.08.2010 issued to you is withdrawn without prejudice."
According to IRVM 2006 Para 836.2 - "If adequate reason for cancelling/withdrawal of the original charge sheet not indicated, issue of another charge sheet on the same facts after withdrawing the first one will be considered entirely without authority.
The charge sheet No. CS/Vig/Major/AJ/10 dated 16.03.2011 issued afresh against Anand Jawala ECRC/JHD on the same facts thus results in a charge sheet without authority."
7. Thereafter the Inquiry Officer was appointed on 01.06.2011 (Anenxure-10). The applicant again filed objection/reply to the [5] OA/050/00178/2014 Memo of Charges on 29.09.2011 (Annexure-18 to OA). The Inquiry Officer, without addressing the question raised and mentioned hereinabove, submitted an Inquiry Report wherein the applicant was found guilty for the alleged misconduct. After serving a copy of the Inquiry Report and after calling for the explanation of the charged official and the charged official submitted his reply to the inquiry report vide reply dated 01.03.2012/02.03.2012 and also after obtaining the opinion of the Vigilance Department, the punishment order was passed by the Disciplinary Authority on 26.07.2012. The charged official was punished with reduction of pay by two stages below in the same time scale for a period of four years only without cumulative effect. For ready reference, the order dated 26.07.2012 is reproduced herein below:-
"EAST CENTRAL RAILWAY No. CS/Vig/Major/AJ/10 DNR/Dated 26.07.2012 Sri Anand Jwala ECRC/JHD Sub.:- Major Punishment.
Ref.:- Major Penalty charge sheet No. CS/Vig.Major/AJ/10, dt. 16.03.2011.
....................................
The undersigned has gone through your reply dated 02.03.2012 and decided as under:-
Reference above, the facts related to the case, which appear to me relevant and reasonable in order to have judicious disposal, are again highlighted:
1. The decoy check is not a proved decoy check as it lacks some characteristics which are essential in the light of Railway Board's Policy No.2008/V-I/VP/1/6 dt. 16.12.2008. The Enquiry Officer has himself remarked as such in his enquiry report.
2. The allegations are not purely proved during the enquiry. The Enquiry Officer has stated that it appears to be true and substantiated in the circumstances. Therefore, it appears to me that it is based more on subjectivity and less on objectivity.
3. There is no evidence that the alleged tout demanded excess money on behalf of ECRC. No excess amount was charged by the CO in making of the reservation ticket in question. No currency [6] OA/050/00178/2014 notes of the vigilance in excess of the fare has been received from the C.O.
4. It has been only proved that the C.O. has issued the ticket from the inside of the Booking Office on realization of the due fare from the alleged tout. The alleged tout has not refunded the balance amount to the decoy passenger and the currency note has been recovered from the alleged tout. Hence, it is not justified to hold the C.O. responsible for charging excess amount by the alleged tout and not refunding the balance amount. There is no record of conversation etc. that the alleged tout has done as such on strength of the C.O's advice.
He is punished as under, which I feel adequate in view of gravity of the offence.
The Charged official i.e. Sri Anand Jwala, ECRC/JHD is punished with reduction of his pay by two stages below in the same time scale for a period of four years only with cumulative effect.
Sd/-
(B.Mohan) DCM/ECR/DNR & Disciplinary Authority."
8. The applicant preferred an appeal against that order. A copy of memo of appeal dated 24.08.2012 has been filed by the applicant as Annexure-22 to the OA. In this memo of appeal he has taken the specific plea in Para - 3 that the Disciplinary Authority proceeded on a charge-sheet which was issued without authority, the same is reproduced herein below:-
"(3) The charge sheet has been issued on dt. 16.03.2011 after charge sheet prior issued on dt. 18.08.2010 and subsequent withdrawal without specifying any reason. In the light of IRVM Para 836.2 without specifying adequate reason a charge sheet reissued will be treated as entirely issued without authority. A punishment cannot be imposed on charge sheet issued without authority."
9. This appeal was finally disposed of by a cryptic order dated 18.09.2012 by simply affirming the order of the Disciplinary Authority without addressing any point raised in the memo of appeal.
[7] OA/050/00178/2014 Thereafter, the Revisioning Authority, after going through the record of enquiry as well as the orders passed by the Disciplinary Authority and the Appellate Authority, was of the opinion that the punishment awarded to the applicant was non-commensurate and thus, took suo motu action with an intent to enhance the punishment awarded to the applicant by the Disciplinary Authority and maintained by the Appellate Authority. He issued a show cause notice to the applicant on 27.09.2012, a copy of which has been annexed as Annexure- 23 to the OA. In pursuance of that show cause notice, the applicant filed his reply dated 04.10.2012 and also took the plea of issuing charge- sheet without authority as under:-
"(A) The authenticity of Charge-sheet The charge sheet SF 5 No. CS/Vig./Major/AJ/10 dated 16.03.2011 has been issued on 16.03.2011 after charge sheet prior issued on 18.08.2010 and subsequent withdrawal without specifying any reason. In the light of IRVM Para 836.2 without specifying adequate reason a charge sheet reissued will be treated as entirely issued without authority.
A punishment cannot be imposed on charge sheet issued without authority. Thus, Disciplinary authority has violated Article 311 of the Constitution."
10. After considering the reply filed by the applicant the matter was finally disposed of by passing an order on 09.11.2012, a copy of which has been annexed as Annexure-3 to the OA and reads as under:-
"EAST CENTRAL RAILWAY No. CS/Vig/Major/AJ/10 DNR/Dated:09.11.2012 Sri Anand Jwala, ECRC/JHD Sub.:- Major Punishment.
Ref.:- Punishment Notice No. CS/Vig/Major/AJ/10 dated 16.03.2011.
[8] OA/050/00178/2014 The undersigned has gone through your reply dated 04.10.2012 and decided as under:-
1. I have gone through the explanation submitted by Sri Anand Jwala, ECRC/JHD against show cause notice and the whole case file carefully. There was information that excess amount is being realized by Sri Anand Jwala, for issuing journey-cum-reservation Tickets in connivance with tour Shri Surender Kumar Singh.
Rs.1100/- were given by decoy passenger Sri Shailendra Mohan to tour Shri Surender Kumar Singh to get a ticket. After search Rs. 1000/- were found with Sri Anand Jwala and Rs.100/- were found with tout Shri Surender Kumar Singh. Serial nos. of these GC notes tallied with the serial nos. mentioned in the pre check memo. Value of the issued ticket was Rs.1038/- only whereas Rs.1000/- were found with Shri Anand Jwala. It shows that Sri Anand Jwala had given the ticket of Rs.1038/- for Rs.1000/- only. It indicates that Sri Anand Jwala was totally connived with tout and Rs.100/- found with the tout was to be distributed later. Secondly, the tout has got the ticket from inside the counter which confirm connivance of Sri Anand Jwala with the tout of Sri Surender Kumar Singh. Touting activities destroy image of the Railways. There is no lacuna in the decoy check conducted by Vigilance. Connivance of charged official with tout was proved during inquiry also.
2. I find that the punishment imposed by Disciplinary Authority which was maintained by the Appellate Authority is less and does not commensurate with the gravity of offence. Therefore, I impose the following punishment.
"His pay is reduced to next lower grade pay in his existing pay band at initial stage for 5 years with cumulative effect."
Sd/-
(Randhawa Suhag) ADRM/ECR/DNR & Revisioning Authority."
11. Perusal of this letter/order reveals that the punishment awarded to the applicant by the Disciplinary Authority and maintained by the Appellate Authority was enhanced considering the gravity of the offence by reducing his pay to the next lower grade in the existing pay band at initial stage for five years with cumulative effect. After passing of the order by the Revisioning Authority, the applicant preferred this OA challenging the punishment awarded by [9] OA/050/00178/2014 the Disciplinary Authority and enhanced by the Revisioning Authority.
12. The matter was placed before Division Bench for hearing. While hearing the matter there was no consensus between the Hon'ble Members, namely, Hon'ble Mrs. Urmita Datta (Sen), Member (Judl.) and Hon'ble Mr. A.K.Upadhyay, Member (Admn.). Both the Hon'ble Members have expressed their opinion by separate draft orders. On the basis of difference of opinion, the matter was referred to the Hon'ble Chairman for his consideration under Section 26 of the A.T.Act for constituting a Larger Bench to adjudicate the following issues:-
"(i) In any Division Bench, when one of the Members has followed earlier two decisions of two Division Benches, another Single Member can disagree with the decisions of the earlier two Benches, whether it would not be in violation of principles of judicial disciplinary and propriety as held by the Constitution Bench in Dawoodi Bohra's case.
(ii) Whether the Railway Board circular is binding upon the authorities being statutory in nature under Article 309 and in violation thereof can be treated as procedural violation.
(iii) Whether infraction of RBE 1993 invalidates a charge-sheet, enquiry report and punishment orders?
(iv) If the answer to the above is in the affirmative, whether or not the Railway authorities can be given liberty to start de-novo proceedings from the stage of curing the aforesaid infraction?
(v) To adjudicate the OA 178/2014 pending before the Patna Bench of the Tribunal."
13. The Principal Bench after considering the request of reference constituted a Larger Bench to answer the questions of reference. As such, this Full Bench has been constituted for deciding the questions of reference made under the authority of the Hon'ble Chairman, Principal Bench vide letter dated 03.11.2017.
[10] OA/050/00178/2014
14. We have heard learned counsel for the applicant, Shri Gautam Saha and the learned counsel for the respondents, Shri B.K.Choudhary, assisted by Shri S.K.Griyaghey.
15. During the hearing of this matter, we observed that no reason has been assigned in the order for withdrawal of the charge-sheet. In the written statement submitted by the respondents, the reason for issuing fresh charge-sheet was mentioned as that there was a "typing" error in the earlier charge-sheet. To ascertain the correctness of the statement, we decided to summon the concerned records. Therefore, by an order dated 15.03.2018, we directed the respondents to produce the record of the department pertaining to the disciplinary proceedings which was placed before us in a sealed cover. After going through the original records placed before us, we find that the reason for withdrawal of earlier charge-sheet was that photocopy of the charge-memo had been supplied to the charged official. Therefore, the charge-sheet was withdrawn without prejudice so as to serve a typed copy of the charged memo.
It further transpires that the order of withdrawal does not contain any reason whatsoever and only mentioned 'withdrawal without prejudice'.
We further observed that the pleadings made by the applicant in para 4.35 that the Appellate Authority did not pass any order on appeal. The perusal of original record reveals that the Appellate Authority decided the appeal by a cryptic order dated 18.09.2012 which is reproduced herein below:-
[11] OA/050/00178/2014
"East Central Railway
No.K/Rectt./Appeal/Coml./AJ/12 Danapur, dated 18.02.2012
Shri Anand Jwala,
ECRC/JHD.
Sub.:- Disposal of appeal under the Rule 22 of RS(D&A) Rules, 1968.
Ref.:- Your appeal dated 24.08.2012 against the PS No.C/Vig./Major/AJ/10 dated 26.07.2012.
..............
Your above quoted appeal was put up before the appellate authority i.e. Sr. DCM/DNR. After going through relevant paper and contents in your appeal, the appellate authority has passed order, which is reproduced below for information:
Decision:- As regards the weakness of the case DA has gone into detail and stated the same in the speaking order. Objectionable points are shortage and issue of ticket to Shri S.P.Singh inside the reservation office. Issue of ticket strangers inside the office unless so advised by administration is not acceptable. Considering the above points I do not find any reason to reduce the punishment.
Sd/-
Appellate Authority Sr.DCM/DNR."
16. After making the observations in the order dated 04.05.2018 we decided to give an opportunity to the parties to address the Full Bench and finally heard the learned counsel for the parties. During the course of argument, the learned counsel for the parties relied upon several judgments in support of their contention rendered by the Tribunal, Hon'ble High Courts as well as by the Hon'ble Supreme Court on different issues. We will discuss those judgments, if necessary, while deciding the points of reference. Reference Question No.(i)
17. So far as this question of reference is concerned, it has no connection with the merit of the case and has cropped up on the [12] OA/050/00178/2014 basis of an opinion given by one of the Hon'ble Members of the Division Bench.
Before discussing it, we are of the view that the manner in which the reference was made was unusual. In this case the Hon'ble Judicial Member while interpreting the effect of RBE Circular No. 171/93 issued by the Railway Board on 01.12.1993, observed that violation of the same would be fatal. On the contrary, the Hon'ble Administrative Member was of the opinion that this violation does not go against the principles of natural justice and that the doctrine of prejudice applies and that the applicant failed to demonstrate any prejudice caused to him by non-observance of aforesaid RBE which was later on incorporated in the rules. The Hon'ble Administrative Member expressed his opinion after going through the draft judgment of Hon'ble Judicial Member, then the Hon'ble Judicial Member wrote another draft and tried again to pursuade the Administrative Member to concur with her opinion in view of a judgment rendered by the Hon'ble Supreme Court in the case of Central Board of Dawoodi Bohra vs. State of Maharashtra (2005 (2) SCC 673) delivered by the Constitution Bench which says that Single Member sitting in the Division Bench cannot differ with the judgment delivered by the coordinate Bench of equal strength. The difference with the earlier Division Bench could be expressed when all the Members of Bench having equal strength are of unanimous opinion that the law declared by the earlier Division Bench was not correct.
[13] OA/050/00178/2014
18. We have gone through the judgment delivered by the Constitution Bench in the Dawoodi Bohra's case (supra) and found that there is no such ratio propounded by the Hon'ble Supreme Court. While deciding the question of propriety and judicial discipline, certain guidelines have been issued on the basis of law of precedent, wherein it has been stated that a Bench of a lesser strength cannot dispute the correctness of a Larger Bench and cannot have the authority directing to place the matter before Larger Bench for consideration. The Hon'ble Supreme Court categorically stated that if a Bench of equal strength is of the view that correctness of the verdict of earlier Bench of the similar strength required reconsideration, then the matter may be referred to Chief Justice for making reference to the Larger Bench for determining the question expressed by subsequent Bench. As such, it is crystal clear that if a Bench of equal strength has any doubt regarding correctness of the ratio propounded in the earlier judgment of the Bench of equal strength, the matter may be placed through Chief Justice for deciding the controversy or difference of opinion by a Larger Bench. As such, in true sense, a Member sitting in the Division Bench can express his agreement or dis-agreement to the earlier Division Bench of equal strength and in case subsequent Bench of equal strength has a difference of opinion on the issue, the matter can be referred to the Hon'ble Chairman under Section 26 of the A.T.Act and the Hon'ble Chairman has a jurisdiction, after considering the point of reference, either to return the reference to be decided by the [14] OA/050/00178/2014 different Division Benche or by a Larger Bench. The Hon'ble Chairman has full power to do so which was done in this case. Therefore, we are of the firm opinion that dis-agreement in this case by one of the Members with the opinion expressed in the earlier judgment by the Bench of equal strength will not amount to violation of principles of judicial discipline and propriety and the question is accordingly answered.
Reference Question No. (ii), (iii) & (iv)
19. All these questions relate to RBE No. 171/93 and its applicability in the light of the provisions contained therein which subsequently was incorporated in the statutory rules. It will be better to reproduce RBE No. 171/93 for ready reference:- "R.B.E.NO.171/93
No. E(D&A)93 RG6-83, dated 01.12.1993 Subject:- Issuing fresh charge Memorandum after cancellation/withdrawal of original charge Memorandum or after dropping disciplinary proceedings.
...................
It has come to the notice of the Railway Board that on one of the Zonal Railways, the Memorandum of charges issued to an employee was withdrawn by the disciplinary authority with the intention of issuing fresh detailed charge Memorandum. However, while withdrawing the chargesheet, no reasons therefor were given and it was only stated that the charge sheet was being withdrawn. The issue of a fresh charge Memorandum subsequently was challenged by the employee before CAT/Bombay. The Central administrative Tribunal on hearing the case have quashed the said charge Memorandum holding that unless there is a power in the disciplinary authority by virtue of the rules or administrative instructions to give another chargesheet on the same facts after withdrawing the first one, the second chargesheet will be entirely without authority.
2. The matter has been examined and it is clarified that once the proceedings initiated under Rule 9 or Rule 11 of RS (D&A) Rules, 1968 are dropped, the disciplinary authorities would be debarred from initiating fresh proceedings against the delinquent officers [15] OA/050/00178/2014 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 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 chargesheet 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 chargesheet afresh appropriate to the nature of the charges."
20. Perusal of this RBE reveals that, earlier under Rule 9 or Rule 11 of RS (D&A) Rules, 1968, there was a provision for dropping of the disciplinary proceedings by the Disciplinary Authority once the charge-sheet has been issued. But the Disciplinary Authority was debarred from initiating fresh proceeding against the delinquent official after pronouncement of judgment by CAT, Bombay Bench. Thus, RBE 171/93 had been issued modifying the rule position and made it clear that the reasons for cancellation of original charge memo or dropping of proceedings are to be appropriately mentioned and duly stated in the order.
21. Here, in this case, a memo of charges issued on 18.08.2010 was withdrawn by an order dated 18.02.2011 and fresh memo of charges was issued on identical charges on 16.03.2011.
22. It is an admitted case that while withdrawing the charge-sheet specific mention was made in the order 'without prejudice'. This indicates that the Disciplinary Authority reserved his right to serve a fresh charge-sheet. The order dated 18.02.2011 is crystal clear that no reason has been mentioned with regard to withdrawal of the charge-sheet. It is a fact that after issuance of the fresh charge sheet, [16] OA/050/00178/2014 reply has been submitted by the applicant taking a specific plea in view of non-assigning reasons for withdrawal of the charge-sheet, the subsequent charge-sheet would be without jurisdiction.
23. The Inquiry Officer, without discussing this issue proceeded to conduct the enquiry and ultimately found the charged official guilty for the misconduct and found that the charges stand proved. The report was placed before the Disciplinary Authority and reply has been asked for from the delinquent official. Here, once again the Disciplinary Authority ignored the plea raised by the applicant regarding lack of jurisdiction in issuing the subsequent charge-sheet for the violation of non-observance of mandatory provisions of assigning reasons for withdrawal and punished the applicant with penalty. Against the punishment awarded by the Disciplinary Authority the applicant preferred an appeal to the Appellate Authority again raising the same controversy. The Appellate Authority again without discussing this legal aspect of the matter passed a cryptic order dismissing the appeal and affirming the punishment. Just after deciding the appeal the Revising Authority issued a show cause notice by exercising suo motu power for revising the punishment awarded to the applicant by the Disciplinary Authority and affirmed by the Appellate Authority. Again the applicant, the charged official, made a representation to show cause notice and took the specific plea of invalidity of the subsequent charge-sheet for want of assigning any reason in the light of IRVM (Para 836.2) which was based on the RBE No. 171/93. Again, the [17] OA/050/00178/2014 Revisioning Authority without addressing this question, exercised the power under the Rules and enhanced the punishment.
24. When the punishment and the enhanced punishment was challenged by the applicant before this Tribunal by filing the OA, both the Hon'ble Members of the Division Bench before entering into the merits of the case expressed their opinion. One of the Hon'ble Members was of the view that even if there is non-observance of the aforesaid rule, no prejudice would be caused to the applicant because he participated in the proceeding. On the other hand, another Member was of the view that provisions of RBE No. 171/93, which was later on incorporated in IRVM, are mandatory in nature and non-observance will vitiate the entire proceeding after relying upon the earlier decision of the Division Bench of equal strength of this Bench.
Consequently, to resolve the difference of opinion the matter was referred to the Hon'ble Chairman.
25. Before answering the referred questions, we are of the considered opinion that this Tribunal is not exercising its power like a Court of Appeal or Court of Revision but exercising the power of judicial review being the court of first instance in view of the judgment of the Constitution Bench rendered in L.Chandra Kumar vs. Union of India (1997 (3) SCC 261), which is akin to the jurisdiction conferred upon the Hon'ble High Court under Article 226 of the Constitution of India.
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26. The question of judicial review arises when there is a finding of the authority on a particular issue. We find that neither the Disciplinary Authority nor the Appellate Authority rendered their opinion. Even the Revisioning Authority also has not rendered its finding on this controversy. The issue which goes to the root of the case and related to the jurisdiction of Disciplinary Authority for issuing fresh charge-sheet ought to have been decided before further proceeding in the matter by all the authorities including Disciplinary Authority.
27. It is an admitted case of the parties that no reason has been assigned in the order of withdrawal of charge-sheet, nor any reason has been assigned while issuing a fresh charge-sheet. It is also admitted fact that the charged official challenged the authority of Disciplinary Authority of issuing a fresh charge-sheet on the aforesaid premises and none of the authorities addressed this issue for the reasons best known to them.
28. In view of the aforesaid factual scenario, we are of the view that in absence of any finding on the issue, the draft orders prepared by the Hon'ble Members of the Division Bench were unwarranted. The appropriate course, in such circumstance, was to remand the matter and ask the competent authority to decide this controversy first which affect the jurisdiction of Disciplinary Authority. .
29. As we are of firm view that the matter should have been remanded to the competent authority to decide the aforesaid controversy, we refrain ourselves to record our opinion on merit and [19] OA/050/00178/2014 propriety of the order passed for withdrawal of the earlier charge- sheet.
30. We are also of the view that though the divergent opinions would not have any judicial authority to bind the subordinate authority who will decide the matter on his own without being influenced with the findings recorded by the two Hon'ble Members on the issue. We are also making it clear that whatever has been discussed herein in this judgment is only to explain the factual scenario and in this process we have not given any opinion on any legal point regarding propriety and legality of the order of withdrawal.
31. Hence, we answer all the three questions accordingly. We also grant liberty to the applicant that if any adverse order is passed by the authorities on this issue, he would have a right to challenge the same in accordance with law. It is made clear that we have not expressed our opinion on the merits of the case, therefore, we are of the view that the judgments cited by the parties counsel on this issue need not to be discussed.
Reference Question No. (v)
32. In view of the opinion expressed by us on issues no. (ii), (iii) &
(iv), we are of the view that in the aforesaid set of circumstances, the order passed by the Disciplinary Authority, the Appellate Authority and Revisioning Authority deserves to be set aside and the Disciplinary Authority may be directed to decide this controversy in accordance with law keeping in view the objections raised by the [20] OA/050/00178/2014 charged official during the inquiry proceedings afresh on the basis of material already form part of the inquiry proceedings. The matter shall be decided on aforesaid issue as well as all other points raised by the applicant in his reply during enquiry.
The question no. (v) is, accordingly, answered.
33. Consequently, the OA is allowed. The Impugned orders passed by the Disciplinary Authority, the Appellate Authority and the Revisioning Authority are set aside. The Disciplinary Authority (respondent no.8 - Divisional Commercial Manager, Danapur Division, East Central Railway, Danapur) is directed to decide the matter afresh in accordance with law keeping in view the objections raised in the reply by the applicant dated 29.09.2011 after giving him an opportunity of being heard as well as to the Department, and pass a speaking and reasoned order within a period of three months from the date of receipt of a copy of this order under communication to the applicant.
34. The OA, along with the Misc. Application, stands disposed of in view of above observations. However, there shall be no order as to costs. Registry is directed to return the original records summoned by us to the concerned department.
Sd/- Sd/- Sd/- (Jayesh V.Bhairavia) (Nandita Chatterjee) (Vishnu Chandra Gupta) Member (Judl.) Member (Admn.) Member (Judl.) skj