Central Administrative Tribunal - Cuttack
K Rama Rao vs M/O Railways on 17 November, 2023
i DA ZOR/GOGRG of 2044
8) . 3 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA 260/00989 of 2013 Reserved on: T6410 1.2023 Pronounced on: 17, 11.2028 CORAM:
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A} HON'BLE MB, RATNISH KUMAR RAI, MEMBER ()) K. Rama Rao, aged about 44 years san of Late K. Krishna Rao, Ex- Diesel Loco Pilot/Goods] at present residing at 50/17/77, Shanti Nagar, NAD Cross Read, P.O. NAD, Dist Visakhapatnam.
oodipplicant YERSUS wey {, Union of India represented through its General Manager. E Co Railway, Eco.R Sadan, Samant Vihar, PO. Mancheswar, Dist. Khurda, PIN 751007.
2. Chief personnel Officer, E.Co.Rly, Chandrasekharpur, Rail Vihar, Bhubaneswar.
%, Divisional Railway Manager, East Coast Railway, Khurda Road, jated, Dist. Khurda, PIN 732090.
& The Senior Divisional Mechanical Engineer, East Coast Railway, Nhurda Road, Jatni, Dist. Khurda, PIN-?S2 050.
5. The Divisional Mechanical Engineer, East Coast Railway, Khurda Read, Jatni, Dist. Kharda, PIN 75< 050,
6. Chief Crew Controller, East Coast Railway, Khurda, PIN 752 O50.
cease Respondents ted GA TA GORNE OF RES Por the applicant . M/s, N.A.Routray, 5 S.Rath, Counsel For the respondents "My. G.BVerma, Counsel oO. R DER PRAMOD KUMAR DAS, MEMBER [Ah Since, none was represented on nehalf of the applicant, after hearing, Ld. Counsel for the respondents and upon perusal of the records, this OA was disposed of by the Divi sion Bench of the Tribunal vide order dated 05.03.2020, The applicant challenged the said order before the Hon'ble High Court of Orissa in W.PIC] No. 37102 /2022, Since the order was passed by the Tri sbunal in absence of the Ld Counsel for the applicant, the Hon' ble High Court vide order dated 1L012023 quashed the order of the Tribunal and remitted hack the matter for fresh adjudication, in acca "Jance with law, by giving appartunity of hearing to the applicant. Accordingly, the matter was restored ta its We and Ld. Counsel for both sides were heard afresh.
>» 'The case of the applicant, Sri K-Rama Rao, is that while he was working as Loco Pilot (G)/KUR, ander Chief CC/E.Co.Rly./RUR, a charge sheet under Rule 9 of Railway Servant [Disc ipline and Appeal) Rules, 3 OA SOU RPHEY of BOTS 1968 was issued to him vide memorandum dated 10/18,01.2006 on the allegation that he remained ahsent unauthorizedly from duty, without prior intimation to the supervising unit, from 18.03.2005 to 10.08.2009, which contravened Rule 3,1 (ii) ef Railway Services (Conduct) Rules, 1966 as amended from time to time, Applicant submitted his defence on 29.01.2006. The matter was inquired into but as applicant did not participate in the inquiry, the JO submitted its report, which was communicated to the applicant vide letter dated 25/26.11.2008. The applicant submitted his reply on 02.12.2008 and 18.12.2008. The Disciplinary Authority imposed the punishment of removal from service wef 25.05.2009 vide order dated 07.08.2009. Applicant preferred appeal on 06.04.2009, It is alleged that the DA rectified the mistake crept in the order of punishment vide order dated 09/13.07 2009. Thereafter, he approached this Tribunal in QA No. 46/2010, which was disposed of on 10.02.2010 with direction for dispasal of the appeal. The Appellate Authority considered the appeal and disposed of the same vide order dated 30.03.2010 modifying the order of punishment of removal to as under:
"Cansidering you appeal, enquiry reports of both enquiry officers speaking order of Disciplinary authority the & SS & OA Zo /GR8es of AVA undersigned as an appellate authority feels you are not a HE person to remain In service as your charges have been proved & in each defence statement you have failed to advised on PMC deposit which is the basic cause of not satisfying to both DA & Appellate Authority. As [ explained parawise on the appeal you made on date 08.06.2009, it Is clear that neither you understom] major penalty charge sheet nor you nnnersioat the procedure of making sick PMC/RMC, nor you are intimating Information of your whereahout within 48 howt's of sick, nor you understocd the Importance of permanent address as mentioned in service sheet which is the bible of your basic data & further promotion, Rather you have lingered at every moment the wrong full motive of your superiors. You have been given sufficient notice to represent your case during enquiry, but you have failed, You have only come out after the enquiry is cpaiheled & punishment issued, However considering the plea of a family & plea of doing duty with devotion sincerity the undersigned as an appellate authority has decided to reduce the punishment you "Removal from Service" to punishment of Reversion fram the pest af Loco Pilot in pay band-02, with grade pay Rs. 4200/- te SrALP (Senior Assistant Loca Pilot} with pay band-O1 and gerade pay Rs.2400/- for a period of 24 (Twenty four} Months your pay will be fined at Rs 14 280)! {Band Pay- 12,180 + Grade pay Rs 2400) and you will lose your seniority after completion of two years of punishment. The appeal dated. 04.06.2009 submitted by you is disposed oft The intervening period i e from date of Removal to re- instatemment will be treated as "Dies nen" from 20.05.2009 (FN) ty the date of joining shall treat as Dies Non"
be DA ZOU OGG af 2D1S 3, The applicant again filed OA No. 211/2010, which was disposed of ag 31.G8. 2072 with direction as under
"4 Ig is an admitted fact that the Disciplinary Authority having not been convinced with the 18 Inquiry report, ordered fresh inquiry to be carried and in effect appointed one Sri Rajendra Naik ADME{Assistant Divisional Mechanical Engineer}, Khurda Read for conducting such inquiry Thereafter, in consideration of the Inquiry report as well as other relevant materials before him, the Disciplinary Authority imposed the punishment of removal from service, which also Rad formed the subject matter of 0. A Na. 48/2010 as referred to above. While going through the speaking order of the Appellate Authority dated 3.3.2010 fAnnexure-A/18}, we found that the Appellate Authority while considering the appeal of the applicant had taken into consideration both the reports submitted by the Inquiry Officers notwithstanding the fact that the Disciplinary Authority having not appreciated the 1S inquiry report had ordered for conducting a fresh enquiry and accordingly, appointed Sri Rajendra Naik ADME to enquire into the matter. Therefore, cognizance taken by the Appellate Authority on the 1° report of the 10 which was no longer in existence, while deciding the appeal, In aur cansidered view, has vitiated the appellate order In its entirety. in this view of the matter, we have no hesitation to quash the impugned appellate authority's order dated 33.2010 as at Annexure-A/18 and remand the matter to the Appellate Authority, with direction to take a decision on the appeal having regard to what has been observed above and communicate the same to the applicant..."
4. The AA reconsidered the appeal of the applicant and disposed of the same by imposing the punishment as order by him earlier noted ors OS ZOE MOIRT oF LNTS above. Being agerieved, the applicant preferred this OA with the following reliehs:
") Toe quash the charge sheet under Annexure-A/e being contrary to the letter af the disciplinary authority.
fu} to quash the report of the 10 under Annexure-A/5 being perverse and contrary to well known and codified rules and law:
fl} To quash the Punishment Notice under Annexure-A/8.
fdPo guash the order under Annexure-A/i3 of the appellate authority and direct the Respondents to reistate the applicant to his original post with all consequential service and financial benefits r etrospectively, fv} To pass any other order/ orders as deemed fit and proper"
& Respondents fled their counter in which it has been stated that the charge sheet dated 18.01.2006 was received by the applicant on 21.01.2006 and the applicant submitted his reply, After considering the reply, the competent authority decided to proceed with the inquiry by appointing 10 in this regard, The 10 issued notice on 05.08.2008 to hold the inquiry on 19.08.2006. The natice could not be sarved as the applicant was absent fram 15.05.2006. A second notice was issued to him by the {0 on 27.08.2006 fising the inquiry to 09.09.2006. Apphicant UA 26090989 af £013 ed received notice an 22.08.2006 and attended inquiry on 09.09.2006. The applicant requested some time to engage a defence counsel to participate in the Inquiry on his behalf, which was allowed by the 10 and the next sitting of the inquiry was fised on 23.09.2006, On 23.09.2006, the applicant attended the inquiry and submitted that as no defence counsel is available he will defend his awn case. The inquiry was again fixed te 30.09.2006. The applicant and the prosecution witnesses attended the inquiry on the date fixed. The [0 concluded the inquiry and submitted the same te the DA. The DA upon examination of the report of the inquiry, found certain discrepancies In the repart of the 10 and, accordingly, directed for a fresh inquiry through another 1Q, namely Sri Rajendra Naik, ADME, KUR. The 10 issued notice on 27.04.2007 fixing the inquiry to 14.05.2007 but the said notice was not served on the charged official as Ae was absente from duty wel QLUE2006. However, the notice was pasted in the notice board in presence of three witnesses on 12.05.2007. The (0 issued notice again on 03.08.2007 fixing the date of pquiry to 24.08.2007 but the notice was returned unserved with postal remarks that no such addressee is available, Hence, the said notice dated 03.08.2007 was displayed in the notice board on 13.08.2007 in present OS of three witnesses. The CO (applicant) reported te duty on 31.12.2007 with fit PMC of a private docter for resumption to duty. He was directed to report te Chief Medical Superintendent, NUR for thorough medical checkup. The 1Q issued letter dated 19.06.2008 to appear with all documents and defence counsel on 08.08.2008 in connection with the inquiry. The said letter was also retuned unserved. The CO did not attend inquiry on 08.08.2008. In the circumstances, the 10 conducted and concluded the inquiry ex parte. Copy af the inquiry report was a ccepted by the DA and sent to the CO on 112 1.2008 but the same ais returned unserved. However, the report was directed to be sent te the applicant In the new address furnished by him while furnishing the fe PMC. Accordingly, the report was sent through letter dated 25, 11.2008, on receipt of the same, the CO submitted his defence dated O2.12. 2008 and, after receipt of the reply, the DA allowed him opportunity of personal hearing scheduled to held on 23.12.2008 but the CO did not availed the said opportunity, instead submitted an explanation dated TB.12.2008 to DME/KUR. Upon consideration of the reply of the applicant vis a vis the record, the DA imposed the punishment of removal vide order dated 7.052009, Applicant preferred appeal As the applicant was Q OA FOO ANTS af LOE continuously absent from duty, the order of punishment could net be served on him in person and, therefore, the same was sent by Registered Post with A.D. as also was displayed in the Loco Lobby Notice Board on 19.05.2009 in presence of three witnesses. The applicant submitted appeal on 04.06.2009 and representation on OLA? 2009, Thereafter, the error crept in the order of punishment was corrected and sent to him 29.06.2009. The applicant submitted further representation on 05.08.2009, 14.08.2009, 05.09.2009 and 13.10.2009, The AA considered the appeal sympathetically and converted the arder of removal from service to that of the punishment as reflected above vide speaking order dated 30.03.2010. Applicant challenged the sald order in OA No. 211/2010 and, as per the order af this Tribunal, the appeal was. reconsidered and the decision was communicated to the applicant. Despite due opportunity granted to the applicant, he did not participate in the inquiry. The absence from duty unauthorizedly being serious In nature, the authority with due application of mind and after following due procedures of rules and complying with the principles of natural justice imposed the punishment on the applicant, which needs no interference by this Tribunal, accordingly, the OA should he dismissed.
i QA SAU SAINS of BEES 6 In course of hearing, Ld. Counsel for the applicant has submitted that the absence of the applicant was not willful or deliberate but for the reasons of his idness. The Inquiry OMicer, appointed to conduct the inquiry afresh, did not examine the witnesses on the ground that the CO did not attend the inquiry is contrary to rules. In the Master Circular No. &7, issued by the Railway Board, it was specifically made known to the DA. AA and. RA as to how to deal with the disciplinary proceedings initiated against an employee whereas the 10 did not follow the said instructions [At (e](k) and (p) of Para 15 of the Master Circular No. 67], itis submitted that it was the specific case of the applicant during second inquiry that the Presenting Officer neither produced the RUDs nor adduced evidence to substantiate the allegation made in the charge sheet and, therefore, it was held that, In absence of the above, the [0 did not analyze the documents, which is contrary to rules. No day to day report of the proceedings was communicated to the applicant as required under the rules. The [0 prepared and submitted the report contrary to Rule 9 (25} of RSCKA) Rules, 1965, which inter alle provides that the report shall contain (a) the articles of charge and the statement of imputations of misconduct or misbehavior, (b} the defense of the Railway servant in i QA SHU AMISH oF 28 TS respect af each article of charges, (c} assessment of the evidence in respect of each article of charge and {d) the findings on each article of charge and the reasons therefor. The punishment imposed was not as per rules because the same is perpetual in nature and the DA su also AA without examining as to whether the proceedings were conducted and concluded strictly in accordance with rules and principles of natural justice, imposed the punishment, which is not sustainable in law requiring judicial interference /intervention, ta substantiate, Ld. Counsel for the applicant has placed reliance on the decision of the Hon'ble Apex Court in the case of MLV.Bijlani Vs. UOT & Ors, 2006 SCC (L&S} 915, anc State af Karnataka & Anr. Vs. Umesh, (2022) 2 5CC (L&S) 321,
7. Lad. Counsel for the respondents by emphasizing the points raised in the counter noted above, has tried to substantiate the stand for dismissal of this OA by placing rellance on the decisions of the Hon'ble Apex Court relating to scape af the court and Tribunal ti Interfere in the matter of disciplinary proceedings and, accordingly, has prayed fur dismissal of the OA, 42 CEA SAQFOGSR nf BOTS 8 We have given careful consideration to the arguments advanced by Ld. Counsel for both the parties and perused the pleadings and documents so also the decisions relied on by them.
9. The solitary issue raised by the applicant for our consideration is as to whether the DA can order de-nove enquiry by apmainting 2 Aw Inquiry Officer or not 7 Rule U0 of the Railway Servants (Discipline & Appeal } Rules, 1968 deals with regard to action to be taken by the DA on the Inquiry report. For better appreciation, the same Is produced hereunder:
"19, Action an the inquiry report :-
(1) If the disciplinary authority:
(a) after considering the inquiry report, is of the opinion that further examination of any of the witnesses is necessary in the interests of fustice, 1€ may recall the said wittess and examine, cross-examine and re-examine the WHTESs;
fb) is not itself the Inquiring authurity may, for reasons fo he recorded by it In writing, remit the case to the Inquiring authority for further inquiry and repert and the Inquiring authority shall thereupon proceed to hold further inquiry according to the provisions af rule 8, as far as may bs.
(2) The disciplinary authority:
fa} shall forward or cause to be forwarded a copy of the report of the Inquiry, if any, beld by the disciplinary 43 QA ZHO/HOURS of ZOT3 authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority, its Andings on further examination of witnesses, Wo any. held under sub-rule{1} (a) together with its own tentative reasons for disagreement, if any, with findings of the inquiring authority on any article of charge to the Railway Servant, wha shall be required to submit, if he so disciplinary authority within fifteen days, frrespective of whether the report is favourable or not to the Railway servant (bh) shall consider the representation if any, submitted by the Railway Servant and record its findings before proceeding further In the matter as specified in sub-rules (3). (4) and (5).
(3) Where the disciplinary authority is of the opinion that the penalty warranted is such as is not within its competence, he shall forward the records of the inquiry to the appropriate disciplinary authority who shall act in the manner as provided in these rules, (4) lf the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses {1} to (iv) of rule & should be imposed on the railway servant, it shall, nobwithstanding anything contained in rule 11, make an arder imposing such penalty: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Railway Servant.
{5} ifthe disciplinary authority, having regard to its findings ac all er any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of the opinion that any of the penalties specified in clauses{v} ta {ix} of rule 6 should be fmposed on the railway servant, it shall make an id OAPI SELOR order imposing such penalty and it shall not be necessary to give the railway servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where It is necessary to consul the Commission, the recard of the inquiry shall be forwarded by the disciplinary authority to the Commission fer its advice and such advice shall be taken inte consideration befare making an order imposing any such penalty on the railway servant'.
10. Rule 102} of 1968 Rules makes & clear that if the disciplinary authority is not agreeing with the en quiry report, then he has two course ret to note disagreement and supply copy af the Inquiry report with disagreement note to the delinquent officer to Ale objection and second course is fo record reasons for not agreeing with the inquiry repot of come defects have crept Into the enquiry, then send matter back to the same inquiry officer te hold further enquiry as provided under Ride 10(1)fb) according to Rule 9. Ris Gear that Rule does not debar the DA for ordering de-nove enquiry, What rule mandates that the disciplinary authority has to record reason in writing. The expression further eng ulry cammot be restricted es mean to start from the stage defect was noticed or left by the previous Inquiry 0 ficer, Expression further enguiry is ane amplitude and i imeludes the same or fresh evidence as well as appreciation of the record. But if is equally settled that the enquiry 18 GA IHG ANAS of KALI report if did not suit the disciplinary authority then under the garb of de- nove enquiry, he cannot appoint another Inquiry Officer to hold de-novo enquiry, but he can only remit the matter to the same very Inquiry Officer to continue with the enquiry on the point which as per his submission has not been considered by the Inquiry Officer. In any eventuality, when the earlier Inquiry Officer is not available to act as an Inguiry Officer, then in that eventuality, a new Inquiry Oficer can be appointed. But the disciplinary authority cannot order for fresh enquiry by appointing a new Inquiry Officer,
11. The law on the question of power of the disciplinary authority to direct a fresh enquiry or de nevo enquiry by appuinting another [0 where the delinquent is exonerated by the 10 so appointed and after inquiry submitted its report is well settled by a catena of decisions holding that unless rules applicable so provide, a second/fresh or de crept into the enquiry, the punishing authority is empowered to ask the Inguiry Officer te record further evidence or it may Itself consider the evidence and come to its awn conclusion. But in the absence of a specific BES OA SSO GOI of LOLS rule enabling it to do so, ft cannot order a fresh enquiry by anther Inquiry Officer.
12. The Han'ble High Court of PAN in the case of Paramyit Walla v. State of Punjab, ILR (2007) 1 P&H 248, after referring to yanlous precedents quashed the de nove enquiry ordered, on the ground that there was no provision in the relevant rules for ardering a de nave inquiry and the only provision was that the matter could be remitted to the same enquiry officer fer further Inquiry. In Paramfit Walla's cass, it was observed as under:
provide that the punishing authority may, for reasons to be recorded by it in writing, remit the case to the inquiring autherity for further inquiry. The Inquiring authority shall thereupon proceed to hold further inguiry according to the provisions of nde 8 as far as may be. [tis appropriate to note that the Municipal Council has not remitted the case fo the inquiring authority but has entrusted the case fo the CVO, Local Government for fresh inquiry. In fact, In terms of Ride G of the 1970 Rules, after the receipt of the report af the Inquiring Authority, the punishing CWP- 11985-1995 [11] authority may after recording its reasons in writing remit the case for further Inquiry to the. reporting authority/inguiry officer, Besides, the said rule only "Phe provisions of rule 9(7} of the 1970 Rules, however, inquiring authority and it does not provide for the officer other than the Inquiring authority. The conduct of 3 de nove inquiry is, therefare, sat provided by the Statute. In State of Haryana and others versus Roshan Lal Sharma, g N N BS 3°F SRS DE CoE et ee > 33 OA Sa0 SORRY af SO 3 Letters Patent Bench of this Court observed that if a superior officer holds a departmental inquiry in a slip shod manner or yen dishanestly, the State can take action against the superior officer and it is also open to ft to prosecute inca Court of law a person once exonerated In a departmental Inguiry. On the other hand, if a secand departmental inquiry could be ordered without the authority of the Statute or the relevant service rules, the danger of harassment to the Government Officer would be immense and in the present climate of rapid political change such a course would be very demoralizing to the public servant. [t was further held that dropping of certain charges against the public servant means the exoneration therefrom. The same is a quasi fadicial order and is not Hable to be varied at the will of the authority unless the relevant Statute or the rules give the authority the power to review. In Parkash Nath Saidha, Naib Tehsildar versus The Financial Commissioner (Revenue) Panjab and others, it was held that there is authority for the proposition that the fundamental principle vig. that no one shall be punished or pat in perl twice for the CWP-119B5-1995 [12] same matter, is applicable even to orders passed on departmental maquiries, In KR Deb versus The Collector of Central Excise, Shillong, it was held by the Supreme Court that Rule 15 of the Central Civil Services {Classifcation, Contro! and Appeal) Rules, 1957 on the face af it provides far one inquiry, but it may be passible if in a particular case there has been no proper enquiry because some serious defect has crept Inte the Inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some reason, the Disciplinary Authority may ask the Inquiry Officer to record Aurther evidence. But there is no provision In rule 15 of Central Civil Services Rules 1957 for completely setting aside previous inquiries on the ground that the report of the inquiring Officer or officers dees not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come te its own conclusion under Rule 9 18 OA PHO FOSRS OF AOI of Central Civil Services (Classification, Control and Appeal) Rules, 1957. It seemed that punishing authority was determined to get some afficer to report against the appellant. The procedure adopted was not anly not warranted by the rules but was harassing to the appellant.
was further observed that from the material on record, 8 suspicion did arise that the Collector was determined to get some inquiry officer to report against the appellant therein. in Pawan Kumar Garg versus The Punjab Co-operative Cotton Marketing and Spinning Mulls Federation Ltd. and others, the inquiry officer had exonerated the petitioner there. The punishing authority disagreeing with the inquiry officer appointed a new inquiry officer with a direction to hold a de novo Inquiry. It was held that a de novo inquiry cannot be ordered and only further Inquiry can be ordered by the disciplinary authority. The impugned order in the said case was quashed with liberty to start the inquiry from the stage when the inquiry findings were submitted by the Inquiring officer. In the case in hand, as hag already been noticed, the petitioner has been exonerated of some of the charges and particularly charge No.3 which is with respect to his misbehaviour with the President of the Municipal Council (respondent-3), The petitioner was exonerated in term of the inquiry report (Annexure P-8) after fall fledged departmental inquiry. No statutory provisions or rules have been brought to our notice which give the Municipal Council (respondent-2)} the power to get a de novo inquiry conducted merely because it disagrees with the report of the inquiring authority, The disagreement that has been recorded is without reasons. In rerms of the inquiry report (Annexure p-§}, the punishing authority could, after recording its reasons in writing, remit the case to the inquiring authority for further inquiry and the inquiring authority was ts proceed thereupon according to the provisions of rule 8 of the 1970 Rules. Therefore, . there being a clear Infraction af Rule 9 of the 1970 Rules, the impugned resolution No, 8 dated Srd January, ZEN} fAnnexure P-9) is unsustainable."
n Sey Netey febone tenes gos ~ 38 DA 280 MOSBY of 2675 in the case of State of Punjab Vs. Harjinder Singh 1999{3) RS} 264 after referring to Rule 9(1) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, the Hon'hle High Court has observed as unden-
"The language of Rule 9{1} is not suggestive that the disciplinary autherig¢y is vested with the jurisdiction to direct de move enquiry and rendering the previously held enquiry as ineffective. The power vested in the authority is limited for further enquiry and report. This authority cannot be enlarged if the rule making authority opted to limit the powers of the disciplinary authority where it has intention and it records reasons for remittance of the case to the enquiry officer. In this regard reference can be mads« ta the judgment of the Hon'ble Supreme Court in the case of K. R. Deb vs. The Collector of Central Excise Shillong, AIR 197i Supreme Court 1447, where the Court was concerned with some what similar rules governing the conditions of service of the petitioner In that case. It was held as under:-
"ft seems to us that Rule 15, on the face of it, really provides for one Inquiry but it may be possible ifin a particular case there has been no proper enquiry because some serinus defect has crept into the Inquiry ar some important witnesses were not available at the thne of the Inquiry or were not examined for some other reasons, the Disciplinary Authority may ask the no provision in rule 15 for completely setting aside previous Inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come ta its own conclusion under rule &."
In the present case, a reading of the relevant Statute of the respondent-University, reproduced above, reveals 20 GA DRO 00089 of SOS that there is no provision therein as per which, in case of disagreement by the disciplinary authority with the first enquiry report, enquiry can he entrusted to a second enquiry officer."
14. 'This aspect of the matter has also been considered by the Hon'ble High Court in the case of Union of India & Ors. vs. Shashi Bhushan & Another (2011(1) RS]. Page 506) where the Division Bench after noticing the judgment relied upon by the applicant in the case of Pg:
K.R.Debfsupra} and Union of India versus PThayagaraian ( 1999(7) S.C.C. Page 733) has come to the conclusion that ff the disciplinary authority comes with definite finding that there is procedural lapse in conducting the enquiry, then he can order de nove enquiry under Rule 15(1) of the 1596S Rules. Relevant part of the judgment passed in the case of Shashi Bhushan (supra) reads as under
"18 When we apply the principles laid down by Han'ble the Supreme Court, it emerges that the disciplinary authority has notled in paras 3 am? 4 of its order dated (BL2007 (supra) that during Inquiry, the prosecution documents as per details in Annexure IH of charge memo have not been taken on record although these documents were presented by the Presenting Officer and inspected by the charged officer. This was regarded as procedural lapse. The disciplinary authority has further recorded that deposition of SAW.2 and SAW. 3 recorded on 16.12.2005 are same and even designation have not been cnrrectly mentioned The disciplinary authority felt that the Enguiry Officer has conducted the enquiry ina casual manner. It is in 21 DA ZHU / O99 wh the aforesaid context that the disciplinary authority exercised power under Rule 15 (1) of the Rules and ordered further enguiry by appointing Shri HAG Abuja, as Enquiry Olicer, The order passed by the Disciplinary Authority falls within the four carners of its power conferred by Rule L5(} af the Rules and the judgments of Hon'ble the Supreme Court. Accordingly, it has to be concluded that on precedent, principle and on the anvil of statutory rules, the order passed by the disciplinary authority deserves to be upheld", iS. Further, it is noticed that the newly appointed 10 conducted the inquiry afresh and held that as the CO/applicant did not attend the inquiry question of examination of witnesses and analysis of witness does not arise. This itself establishes that the report submitted by the [0 appainted to conduct inquiry afresh was not in accordance with rules and law. In the event, the CQ/the applicant did not attend the inquiry, how the ex parte inquiry is to be held is governed by Railway Servants (D& A} Rules, wherein it has been provided that if the Government servant to whom a copy of the articles of charges has been delivered does not submit the written statement of defence on or before the date specified for the purpuse or does net appear in person before the Inquiring Authority, the Inquiring Authority may hold the enquiry ex- parte, The notices of all hearings should be served on the accused or communicated to him unless the first notice says that the enquiry will 22 CA SRO YSOINGS OU SUES contrnue from day-to-day. In ex-parte proceedings, the entire gamut of the enquiry has to be gane through. The notices to witnesses should be sent, the documentary evidence should be produced and marked, the Presenting OfNcer should examine the Prosecution Wimesses and Inquiring Authority may put such questions to the witnesses as he thinks The Inquiring Authority should recard the reasons why he is proceeding 'ex-parte and what steps he had taken to ask the accused officer to take part in the enquiry. {n such a case the details of what has transpired In his absence, Including depasitions, may be Rarnished to the accused officer, During the course of enquiry, the accused {s free te put in an appearance and participate in the enquiry. [f the CO appears in the anquiry when some business has already been transacted, it is aot necessary fo transact the same business again unless the accused officer is able to give justification te the satisfaction of the Inquiring Authority for not participating in the enquiry earlier, Therefore, non-examination of the witnesses and non-analyzation of the documents on the ground that the CO/applicant did not attend the inquiry also vitlates the report. The DA as also AA In their orders, ag it appear, did not look into this aspect of the matter. The authority concerned failed to take decision as 33 DA 2HOQGGHS af SHLS per rules and law and with proper application of mind, considering the facts of the case and give plausible reasons for its action. If the CO/applicant did not attend the inquiry that itself cannot be a ground not to examine the witness or evidences by the [0.
16. This Tribunal is reminded by the law laid down by the Hon'ble Apex Court In the case of Taylor v. Taylor, (1875) 1 Ch. D0. 426 and Nazir Ahmed v. Emperor, AIR 1936 PC 253 that if a statute requires a arnot at all.
7. The legal maxim quod centra legem fit, pro infecto hahetur means what is done contrary to law Is considered as not done is a well accepted principle cammoniy applied to all proceedings. It is also trite law thatifa thing is to be done In a particular manner then it has to be dome in that manner and not in any other manner.
18. The legal maxim sublate fundament cadit opus is a well recognized principle that if the foundation is removed, the superstructure will collapse. it is alse well settled proposition that if initial action is not in cansanance with law, subsequent proceedings would not sanctify the same, 24 DA SHOES Sa
19. In view of the discussions made above, it is established that the inquiry conducted afresh by another Inquiry Officer under Annexure-
A/S is in gross violation of the rules and law and, therefore, aa he subsequent order imposing punishment under Annexure-A/8 and the order of the AA under Annexure-A/13 do not have any sanctity in law. The applicant has sought to quash the report of the 10 under Annexure- A/5 dated 25/26.11.2008, order of the DA under Annexure-A/S dated 06/7.05.2009 and the order the AA under Annexure-A/13 dated
15.10.2012 even though by the order of the AA dated 15.10.2012, the applicant was taken to service. As discussed above, since the report of the 10 is not sustainable and consequently, the orders of the DA and AA do not hold good in the field, the report of the [O/order of the DA and AA are hereby quashed with clarification that the quashing of the order of the AA shall not prejudice the interest of the applicant in continuing in service, However, the matter is remitted back to the Respondents to deal with the matter stricthy In accardance with the rules and law. The entitlement of the benefits as prayed for by the applicant shall be derided by the authority concerned after conclusion of the proceedings.
20. In the result, the OA stands allowed to the extent stated above, 35 QA TOS /VGURY oF FO73 {Rajnish Kumar Rai) {Pramod Kumar vasy Member (ud) Member {Admin} RK/PS