Central Administrative Tribunal - Delhi
Bhajan Lal vs M/O Railways on 9 May, 2019
Central Administrative Tribunal
Principal Bench
OA No.3970/2013
Orders Reserved on 26.04.2019
Pronounced on: .09.05.2019
Hon'ble Mr. Pradeep Kumar, Member (A)
Hon'ble Mr. Ashish Kalia, Member (J)
Bhajan Lal,
Ex-Station Master Macharia,
District Moradabad,
Under DRM, Moradabad,
R/o 161, Near Water Tank,
Mahroli New Delhi.
-Applicant
(By Advocate: Mrs. Meenu Mainee)
-Versus-
Union of India through:
1. Secretary,
Railway Board,
Ministry of Railways,
Railway Bhawan,
New Delhi.
2. General Manager,
Northern Railway,
Baroda House,
New Delhi.
3. Divisional Railway Manager,
Northern Railway,
Moradabad.
-Respondents
(By Advocate: Shri Shailendra Tiwary)
2 OA No.3970/2013
ORDER
Hon'ble Mr. Pradeep Kumar, Member (A):
The applicant was initially appointed as Assistant Station Master (ASM) on 05.11.1980. He was promoted as Station Master (SM) in 1995 and came to be posted at Macharia Station of Moradabad Division. In due course of time, a major penalty charge-sheet was issued to him on 26.04.2008. A total of 10 charges were levelled and the charges related to non-accountal of station earnings amounting to Rs.16,517/- for 29.06.2006 and Rs.16,360/- for 30.06.2006 which was detected in a vigilance check conducted by the team from Vigilance Directorate of Railway Board. The charges were denied. However, an Enquiry Officer (EO) was nominated and all 10 charges were proved beyond doubt as per the report dated 23.08.2010. Before concluding the enquiry, the EO had also put certain mandatory questions to the applicant relating to the charges and his culpability. During this enquiry, the applicant acted as his own defence helper and he submitted a defence note also.
2. The Disciplinary Authority (DA) imposed a punishment of dismissal from service on 31.07.2012. The applicant preferred an appeal to ADRM, which was considered by him and taking into account the past service, the Appellate 3 OA No.3970/2013 Authority (AA) vide order dated 16.11.2012 reduced the punishment to removal from service. The applicant preferred a revision petition to COM who rejected the same on 10.04.2013.
3. Feeling aggrieved at this punishment, the applicant had preferred the instant OA. It has been pleaded that the EO was a Vigilance Officer who could not have acted as EO in the interest of natural justice. It has also been pleaded that during enquiry the applicant had requested on 23.02.2010 for the statements given by Shri Ishwar Dayal and Shri Muni Ram Meena to the Railway Board Vigilance team on 25.11.2008. However, these two officials were made the defence witnesses by the EO even while the two statements were not given. It was also pleaded that the applicant was not allowed to cross-examine the witnesses. It has also been pleaded that the provisions of clause 9.21 of Railway Servants (Discipline & Appeal) Rules, 1968 have not been followed and lastly reasoned and speaking orders were not passed by the DA and AA.
4. The applicant relied upon the following judgments:
(i) Ministry of Finance vs. S.B.Ramesh, (1998) 3 SCC 227
(ii) Satpal Arora vs. UOI, 1990 (2) SC SLJ 110
(iii) R.Robert vs. UOI, 1991 (2) SC SLJ 139 4 OA No.3970/2013
(iv) Union of India vs. Prakash Kumar Tandon, (2009) 1 SCC (L&S) 394
(v) Roop Singh Negi vs. Punjab National Bank and another, (2009) 2 SCC 570
(vi) Union of India through Secretary, Ministry of Information and Broadcasting & anr. vs. Tarlok Singh, WP (C) No.1760/2008 decided on 10.03.2011 by Hon'ble High Court of Delhi.
(vii) UOI and anr. vs. Surinder S. Batra, WP (C) No.4357/2015 decided on 01.05.2015 by Hon'ble High Court of Delhi.
(viii) Satya Prakash vs. Union of India & ors., WP (C) No.8086/2014 decided on 01.12.2015 by Hon'ble High Court of Delhi.
5. The respondents opposed the OA. It was pleaded that the instant OA is one where the applicant was working as SM and in terms of the provisions of Indian Railway Commercial Manual daily station earnings are required to be accounted for and remitted to the Divisional cash office. During inspection by team from Vigilance Directorate of Railway Board, conducted on 25.11.2006, it was detected that the applicant had not remitted the cash earnings for 29.06.2006 and 30.06.2006. This was a serious offence and accordingly disciplinary action was taken and charges were found to be proved beyond doubt. Adequate opportunity to defend himself was afforded to the applicant and thereafter while the DA has imposed the punishment of dismissal from service, the AA had reduced the punishment to removal from 5 OA No.3970/2013 service and the Revisionary Authority (RA) had upheld the punishment imposed by AA.
6. It was also pleaded that in Railways, various officers are deputed to work in Vigilance Department and while the Vigilance Directorate in Railway Board is an apex body, there are Vigilance Department in each of the Zonal Railways also. The officers from other departments are deputed to vigilance to man these posts from time to time. While the EO was posted in Vigilance Department of Northern Railway, the EO himself had not participated in the vigilance check. All opportunities were afforded to the applicant to make his defence. The applicant had cross-examined all the witnesses including the two for whom the statements were requested by him. It was also brought out that these two officials were actually prosecution witnesses and opportunity to cross- examine them was afforded to the applicant. 6.1 In regard to compliance with clause 9.21 of the Railway Servants (Discipline & Appeal) Rules, 1968, reliance was placed on the decision of the Hon'ble Supreme Court in Sushil Kumar Banerjee v. State of West Bengal & Ors., [(1980) 3 SCC 304], wherein it was held:
"Mere failure to comply with such a rule does not Ipso facto lead to the departmental inquiry being vitiated. In addition to non compliance, what have to be shown by the delinquent officer is prejudice caused to him."6 OA No.3970/2013
It was pleaded that no prejudice has been caused to the applicant in the entire DAR process.
6.2 It was also pleaded that in terms of the judgment in K.L. Shinde v. State of Mysore, [(1976) 3 SCC 76], the Hon'ble Apex Court has observed as under in respect of imparting natural justice:
"It is well settled that whether a delinquent had a reasonable opportunity of effectively defending himself is a question of fact depending upon the circumstances of each case and no hard and fast rule can be laid in that behalf. In the instant case, the order restricting the movement of the appellant on which strong reliance has been placed on his behalf for assailing the impugned order of his dismissal was not such as can be said to have deprived him of a reasonable opportunity of making his defence. The order, it would be noted, did not place any embargo on the appellant's going to Belgaum for the purpose of and in connection with the departmental enquiry. In fact the appellant fully participated in the enquiry held at that place. He also made full use of the assistance of a police man (called police friend) provided to him to conduct the defence on his behalf. The police friend appeared on his behalf before the Enquiry Officer and cross-examined all the witnesses whom the prosecution examined or tendered for cross-examination. He was also furnished with copies of the statements of the three police constables recorded by the Cantonment P.S.I. and allowed an adequate opportunity of cross-examining them. There is also nothing to indicate that the appellant's request for an opportunity to examine any witness in his defence was refused. In fact, he did examine some witnesses in his defence. In view of all this, it cannot be held that a reasonable opportunity of defending himself as contemplated by Article 311 of the Constitution was denied to the appellant."
In this regard, reliance was also placed on the decision of the Hon'ble Supreme Court in State Bank of Bikaner & Jaipur v. Prabhu Dayal Grover, [1996 (1) SCSLJ 145], wherein it has been held that the Appellate Authority was 7 OA No.3970/2013 not required to record all detailed reasons particularly when it agreed with the findings of inquiry officer, and as accepted by the Disciplinary Authority. Further, when findings recorded by the inquiry officer as well as orders passed by Disciplinary Authority, Appellate Authority and Revision Authorities are detailed, analytical and reasoned orders, no judicial interference is warranted.
6.3 The respondents further relied upon the decision of the Hon'ble Apex Court in Apparel Export Promotion Council v. A.K. Chopra, [JT 1999 (1) SC 61], where the Apex Court has held that Disciplinary Authority and on appeal the Appellate Authority are the sole fact finding authorities. The relevant part of the said judgment is as under:
"16. The High Court appears to have overlooked the settled position that in departmental proceedings, the Disciplinary Authority is the sole judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciated the evidence and come to its own conclusion, on facts being the sole fact-finding authorities."
6.4 Several other judgments were also relied upon:
(i) State Bank of Patiala vs. S.K.Sharma, JT 1996 (3) SC 722: 1996 SCC (L&S) 717;
(ii) Govt. of T.N. vs. A.Rajapandian, 1995 SCC (L&S) 292
(iii) State of U.P. vs. Harvinder Kumar, (2004) 13 SCC 117 8 OA No.3970/2013
(iv) Union of India vs. Alok Kumar & Ors., 2010 (3) SCSLJ 1 (para 57,58 & 61)
(v) Sarva Uttar Pradesh Gramind Bank vs. Manoj Kumar Sinha, 2010 SCC (L&S) 861
(vi) Narender Nath Bhalla vs. State of UP, 2010 SCC (L&S) 766
(vii) SBI vs. Bidyut K Mitra, 2011 (1) SCC (L&S) 323 para 32, 43 & 30
(viii) State of Punjab & Ors. vs. Dr. Harbhajan Singh Greasy, JT 1996 (5) SC 403
(ix) Union of India vs. Alok Kumar & Ors., 2010 (3) SCSLJ 1.
6.5 Reliance was also placed upon the case of State of Meghalaya v. Macken Singh, [(2008) 2 SCC (L&S) 431], where the Apex Court held as follows:
"The legal position is fairly well settled that while exercising power of judicial review, the High court or a Tribunal it cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal."
6.6 It was pleaded that there is no bar for non-appointment of an officer from the vigilance department as EO and in the instant case the said EO had not participated in the raid conducted by the vigilance department team from Railway Board.
9 OA No.3970/2013
In view of the foregoing, the OA is required to be dismissed.
7. Matter has been heard at length. Ms. Meenu Mainee, learned counsel represented the applicant and Shri Shailendra Tiwary, learned counsel represented the respondents.
8. In regard to complying with the requirement of natural justice the applicant has pleaded that the vigilance officer cannot be nominated as EO. Reliance has been placed on Union of India & Others v. Prakash Kumar Tandon (supra) by Hon'ble Apex Court. The fact of the relied upon case were noted by the Hon'ble Apex Court 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."
9. In this regard, the applicant had also relied upon a judgment in Union of India & Anr. v. Surinder S. Batra (supra). The relevant part of the judgment as observed by the Hon'ble High Court of Delhi is reproduced below:
"We have heard the counsel for the petitioners. The Tribunal after placing reliance on one of its decisions in the case of Y.P.Singh vs. UOI, O.A. No.1534/2012 dated 17.01.2014 took a view that in the departmental enquiry initiated at the instance of the vigilance department, the Enquiry Officer should not be from the same vigilance department. We find no infirmity in the view taken by the learned Tribunal. The view of the Tribunal also finds 10 OA No.3970/2013 support in the decision of the Apex Court in the case of UOI vs. Prakash Kumar Tandon, (2009) 1 SCC L&S
394. In any event, the Tribunal has not completely foreclosed the right of the petitioners but has given an opportunity to conduct a de novo enquiry as per law. Certainly if the petitioners are convinced that there is a need to conduct a de novo enquiry then they shall proceed in the matter within a period of two months from the date of this order. It is ordered accordingly."
10. In this regard, it is noted by Tribunal that while the vigilance inspection was carried out by a team from Vigilance Directorate of Railway Board, the EO was an official who was posted in the vigilance department of Northern Railway who was in no way connected with the vigilance inspection. The records of the enquiry, as are presented by the applicant and the respondents clearly establish that full opportunity was afforded to the applicant.
In respect of the two officials for whom the applicant had sought the statements, given to the Railway Board vigilance, it is noted that in respect of those two statements, EO passed following orders on 23.02.2010 and it was signed by applicant also as acknowledgement:
"However CO has not indicated the proper relevancy of documents with the charge as well as the custodian of the documents but in view of natural justice both of the items are permitted by IO."
Moreover, the applicant had cross-examined them including other witnesses.
On conclusion of the enquiry the EO had also put-forth the mandatory questions relating to the duties of SM in general as well as in connection with the remittance of the earnings and specifically in respect of daily earnings for 29.06.2006 and 30.06.2006 which were not remitted to the cash office.
11 OA No.3970/2013The principles of natural justice have, therefore, been observed and the reliance upon the judgment by the applicant in Roop Singh Negi (supra) is of no help to him. The relevant observations by the Hon'ble Apex Court in Roop Singh Negi (supra) are reproduced below:
"17. In Moni Shankar v. Union of India and Anr. [(2008) 3 SCC 484], this Court held:
"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."
Xxx xxx xxx
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."
11. The circumstances in which the vigilance officer was debarred from holding enquiry are entirely different as are noted in the relevant judgment quoted in para-8 above where it was the head of vigilance department who was himself acting as EO. As against this, in the instant case the 12 OA No.3970/2013 vigilance inspection was carried out by a different office and the EO was working in the vigilance department of another office namely Zonal Railways. The ratio of the relied upon judgment, therefore, is not attracted.
12. The applicant has also pleaded that the provisions of clause 9.21 of Railway Servants (Discipline & Appeal) Rules, 1968 have not been followed. Reliance has been placed on the judgment of the Hon'ble Supreme Court in Ministry of Finance vs. S.B. Ramesh (supra). In this case the petitioner was imposed certain punishment and it was pleaded that provisions of Rule 14.18 of CCS (CCA) Rules, 1965 were not followed. This rule is similar to clause 9.21 of Railway Servants (Discipline & Appeal) Rules, 1968.
The charged officer was working as ITO Group B. He had one wife living and he started living with another woman and also had children. A charge-sheet was issued on 25.03.1998 for marrying another woman and living with her while his first wife was still alive. This charge was denied. Thereafter the enquiry was conducted. In this enquiry the allegation in respect of marriage with the second woman was not proved. However, living together with the second woman was proved. The enquiry report was accepted and punishment of compulsory retirement was imposed on 23.04.1992. The charged officer preferred an appeal on 13 OA No.3970/2013 04.06.1992. This appeal was not decided for long and feeling aggrieved the charged officer approached the Tribunal.
It was pleaded that the matters relating to personal life cannot be a cause for issuing a departmental charge-sheet. This plea was rejected by the Tribunal.
The proof in respect of living together with the second wife was found to be inadequate and accordingly the Tribunal quashed the punishment order. While doing so, the Tribunal also observed that living together with a second woman, even when the first wife was alive and not legally divorced, was not unlawful and as such it was observed that the departmental charge-sheet cannot be issued.
This judgment by the Tribunal was challenged by the department in the Hon'ble Supreme Court. At the very outset, the Hon'ble Apex Court rejected the observations made by the Tribunal in respect of maintainability of the charge-sheet. The relevant part of the order by the Hon'ble Apex Court is reproduced below:
"After these proceedings on 18.6.91 on the Enquiry Officer has only received the brief from the PO and then finalised the report. This shows that the Enquiry Officer has not attempted to question the applicant on the evidence appearing against him in the proceedings dated 18.6.91. Under Sub-Rule 18 of Rule 14 of the CCS (CCA) Rules. It is incumbent on the Enquiry authority to question the officer facing the charge, broadly on the evidence appearing against him in a case where the officer does not offer himself for examination as witness. This mandatory provision of the CCS (CCA) Rules has been lost sight of by the Enquiry authority. The learned counsel for the respondents argued as the applicant did not appear in response to notice. It was not possible for the Enquiry 14 OA No.3970/2013 authority to question the applicant. This argument has no force because. on 18.6.91 when the inquiry was held for recording the evidence in support of the charge, even if the Enquiry officer has set the applicant ex-parte and recorded the evidence, he should have adjourned the hearing to another date to enable the applicant to participate in the enquiry hereafter/or even if the inquiry authority did not choose to give the applicant an opportunity to cross- examine the witness examined in support of the charge, he should have given an opportunity to the applicant to appear and then proceeded to question him under sub-rule 18 of Rule 14 of CCs (CCA) Rules. The omission to do this is a serious error committed by the enquiry authority........"
Thereafter the Hon'ble Supreme Court decided the Petition as under:
"15. On a careful perusal of the above findings of the Tribunal in the light of the materials placed before it. we do not think that there is any case for interference, particularly in the absence of full materials made available before us in spite of opportunity given to the appellants. On the facts of this case, we are of the view that the departmental Enquiry conducted in this case is totally unsatisfactory and without observing the minimum required procedure for proving the charge. The Tribunal was, therefore, justified in rendering the findings as above and setting aside the order impugned before it.
16. In the result, the appeal fails and is dismissed accordingly with no order as to costs."
It is noted that while the observations in respect of clause 14.18 as noted by Tribunal, were reproduced by the Hon'ble Apex Court, no specific direction per se was passed by the Hon'ble Apex Court in their judgment as reproduced above.
13. In regard to clause 9.21 of Railway Servants (Discipline & Appeal) Rules, 1968 the applicant had also relied upon another judgment by Hon'ble High Court of Delhi in Satya Prakash (supra). This judgment is in the context of Rule 14 15 OA No.3970/2013 (18) of CCS (CCA) Rules, 1965. The relevant part of this judgment is reproduced below:
"10. The Office Memorandum issued as late as on 18th February, 2015 reiterated that Rule 14(18) of the CCS(CCA) Rules 1965 should be complied with and noticed that in the absence of compliance of this Rule, the enquiry gets vitiated and emphasised that the enquiry should be conducted strictly in accordance with the procedures prescribed. We deem it appropriate to the facts of this case, without expressing any opinion on the merits of the matter and as agreed between the parties to remand the matter before the Disciplinary Authority. The Enquiry Officer, after complying with the Rule 14(18) of the CCS (CCA) Rules 1965, shall submit a fresh report. Taking into consideration that it is an old matter, the enquiry be completed within four months. Since this order is passed with the consent of the parties, it would not be treated as precedent."
Clause 9.21 of Railway Servants (Discipline & Appeal) Rules, 1968 is analogous to Rule 14 (18) of CCS (CCA) Rules, 1965.
14. In regard to Rule 14 (18) of CCS (CCA) Rules, 1965, the applicant has also relied upon decision of the Hon'ble High Court of Delhi in Union of Inida v. Tarlok Singh, [W.P. (C) No.1760/2008, dated 10.03.2011]. The relevant parts of this judgment are reproduced below:
"19. The next contention on behalf of the petitioner is about the non- compliance of the Rule 14(18) of CCS(CCA) Rules. According to the petitioners, Rule 14(18) was substantially complied with. Perusal of the record, however, reveals that it is an admitted case that the respondent did not examine himself as a witness. In case the respondent had not examined himself as witness, it was incumbent upon the enquiry officer to put evidence adduced against the respondent during the enquiry to him in compliance of Rule 14(18) of CCS(CCA) Rules. The said rule had been enacted with a view that whatever evidence comes in the enquiry, explanation may be sought to rebut 16 OA No.3970/2013 the circumstances, which would be in the consonance with the principle of reasonable opportunity and audi alterm partum as inbuilt in the principles of natural justice. ..... .... ....
20. Perusal of Rule 14(18) clearly reveals that it is obligatory upon the enquiry authority to question the delinquent officer on the circumstances appearing against him in the evidence, for the purpose of enabling him to explain any circumstance. As there is no reference to the evidence brought on record or circumstances appearing against the applicant, putting the charges against the respondent was not valid compliance of Rule 14(18) of the CCS(CCA) Rules 1965.
21. Provisions analogous to Rule 14(18) of CCS(CCA) Rule exist in Rule 9(21) of Railway Servant (Discipline & Appeal) Rules, 1958. In the matter of Moni Shankar V. Union of India, 2008 (1) AJW 479, an enquiry proceeding was conducted in which the following questions that were put to the Charged Officer: "please state if you plead guilty?" ; "Do you wish to submit your oral or written arguments?"; "Are you satisfied with the enquiry proceeding" and "Can I conclude the enquiry?", were held to be not in compliance of Rule 9(21) of Railway Servant (Discipline & Appeal) Rules, 1958 as such type of questions did not reveal the evidence adduced in support of charges against the charged officer."
Rule 14 (18) of CCS (CCA) Rules, 1965 and clause 9.21 of Railway Servants (Discipline & Appeal) Rules, 1968 are analogous. In view of the factual position in respect of the instant case the ratio of this judgment is not attracted.
15. In the instant case, full opportunity was afforded to the applicant to defend his case and before concluding enquiry, the EO had put mandatory questions also to the applicant which pertained to the allegations. The applicant submitted his defence also and it is only thereafter that DA had issued punishment order. No prejudice has been caused to the applicant in this entire process. In this connection, the 17 OA No.3970/2013 observations made by the Hon'ble Apex Court in Apparel Export Promotion Council (para 6.3 supra) are also relevant. Hence, it is the Tribunal's view that on merits, the requirements of clause 9.21 of Railway Servants (Discipline & Appeal) Rules, 1968 have been complied with. Therefore, contention of applicant in this regard is not finding acceptability.
16. In view of the foregoing, the pleas put-forth by the applicant are not gaining acceptability. The OA is dismissed being devoid of merits. There shall be no order as to costs.
(Ashish Kalia) (Pradeep Kumar) Member (J) Member (A) 'San.'