Central Administrative Tribunal - Ernakulam
K.G. Appan vs Union Of India (Uoi) And Ors. on 23 July, 1998
JUDGMENT
A.V. Haridasan, Vice Chairman.
1. The applicant while working as Assistant Station Master, Koregaon was placed under suspension by order issued by the 4th respondent on 14.3.84. Thereafter an enquiry against him under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 was initiated by service of a memorandum of charges dated 21.3.84. There were two articles of charges. The allegation forming the 1st article of charge is that the applicant while working as Assistant Station Master misused the control phone from 19.35 hours to 21.30 hours on 13.3.84, when he was not on duty in violation of para 5.08 of General and Subsidiary Rules and thereby he has committed serious misconduct and behaved in a manner unbecoming of a Railway Servant and violated Rule 3(i)(iii) of the Railway Services (Conduct) Rules, 1966. The Article 2 of the charge was that the applicant who was rostered to work at Koregaon station from 21.30 hours on 13.3.84 to 07.30 hours on 14.3.84 had come to the station premises much earlier to his duty hours on 13.3.84 and by misusing the control phone incited his colleagues over control phone to detain the trains at their respective stations and as a result various trains as detailed in the statement of imputations were detailed wilfully. The applicant denied the charges and an enquiry was held. The enquiry officer found that the charges were established and on the basis of the report, the disciplinary authority issued the order dated 9.7.1985 dismissing the applicant from service. The appellate authority confirmed the decision of the disciplinary authority in its order dated 16.4.86. This order was challenged by the applicant in O.A. No. 225 of 1987. This Tribunal finding that the disciplinary proceedings against the applicant was initiated by an authority which had no jurisdiction to do so, allowed the application on that single ground without going into the merits of the other contentions. This decision of the Tribunal was reversed by the Hon'ble Supreme Court in Civil Appeal No. 7435 of 1995 in SLP (C) No. 1207/1990. The case was remanded to the Tribunal for a fresh disposal considering the other points raised in the Original Application on merits. After remand this Tribunal passed the final order in O. A. No. 225/87 on 30th October, 1995 setting aside the appellate order and remitting the matter to the appellate authority with a direction to examine each of the grounds raised in the appeal, to refer to the materials leading to the conclusions and to pass a speaking order. The appellate authority pursuant to the above order passed a fresh order again confirming the order of the disciplinary authority which was challenged by the applicant in O.A. No. 428/96. This Tribunal disposed of O.A. No. 428/96 by judgment dated 20th May, 1996 setting aside the appellate order and directing the competent authority to pass a fresh order in appeal dealing with each contentions on merits adhering to the directions in the judgment in O.A. No. 225/ 87. The second respondent, the appellate, authority has passed the impugned order dated 16.8.96 (Annexure A-18) again confirming the order of the disciplinary authority imposing on the applicant the penalty of dismissal from service. The applicant filed the O.A. challenging this order. Noting that the applicant had not exhausted the remedy of revision the Tribunal by order dated 7.11.97 allowed the applicant to prefer a revision petition directing the 5th respondent to dispose of such revision petition within two months from the date of its receipt. The 5th respondent in obedience to the directions contained in the said order ot the Tribunal disposed of the revision petition by order dated 27.2.97 (Annexure A-20) confirming the punishment of dismissal from service with effect from 9.7.1985 imposed on the applicant. It is aggrieved by these orders that the applicant has filed this application praying for setting aside the impugned orders at Annexures A11, A18 and A20 and for a direction to the respondents to reinstate the applicant in service with all consequential benefits with effect from the date of his dismissal. The main grounds on which the applicant has assailed the impugned orders are :
(a) the enquiry is vitiated as the applicant has not been given reasonable opportunity of making a proper defence by disallowing permission to examine defence witnesses for no justifiable reason.
(b) the direct evidence which could have been made available having been suppressed, there is a dearth of evidence to bring home the alleged misconduct of the applicant.
(c) the enquiry is vitiated as the applicant was not questioned by the enquiry officer after the close of the evidence in support of the charge as required under Sub-section 21 of Rule 9 of the Railway Servants (Discipline and Appeal) Rules which is mandatory in nature.
(d) that the finding that the applicant is guilty of the charges is perverse, based on no legal evidence.
(e) that the appellate and revisional authorities have failed to discharge their statutory duties despite clear direction in that regard in the orders of the Tribunal in the earlier cases between the parties.
2. The respondents in their reply statement have contended that the enquiry was held in full conformity with the principles of natural justice, that the decision of the enquiry authority to disallow the examination of the witnesses was perfectly in order, that no prejudice has been caused to the applicant either by not calling the witnesses he wished to examine or by not questioning him as required under Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules and that the appellate and revisional authorities have considered all the relevant points raised by the applicant in appeal and revision. According to the respondents, the application is devoid of any merit and the same is liable to be dismissed.
3. We have carefully gone through the pleadings and all the materials on record.
4. Shri T.C. Govinda Swamy, learned counsel of the applicant took us elaborately through the impugned orders, the enquiry report, the proceedings of the enquiry including the dispositions of various witnesses. He with considerable tenacity argued that the applicant who was facing an enquiry into an alleged grave misconduct was denied reasonable opportunity of making a proper defence. He pointed out that material witnesses who would have been in a position to depose about the truth or falsity of the imputations made against the applicant in the memorandum of charge and statement of imputations have been conveniently kept away from examination at the enquiry. Referring to the Article 1 of the charge Shri Swamy argued that the Assistant Station Master who was incharge of Koregaon station between 19.35 hours and 21.30 hours on 13.3.84 would have been the most competent witness to dispose as to whether the applicant had come to the station premises earlier than his rostered hours of duty and has misused the control phone between 19.35 hours and 21.30 hours issuing message inciting his colleagues to detain the trains, wherever they were. Even though the applicant requested the enquiry officer to examine this witness and the other Assistant Station Masters atleast as defence witnesses, the enquiry officer without any justifiable reason declined to grant permission to examine these witnesses, stated the learned counsel. Similarly the learned counsel argued that although 14 witnesses including those Assistant Station Masters to whom the applicant was alleged to have passed the messages and the officials whose names were mentioned by PW 1 Sivaraman Nair were cited by the applicant as defence witnesses, the enquiry authority for no reason at all, turned down the request and chose to examine only two of them which has resulted in great prejudice in the defence of the applicant, argued the learned counsel. The reason for not permitting the applicant to examine the witnesses the applicant wanted to examine stated by the enquiry officer in his proceedings is that "in this regard I have already given my ruling in earlier occasions that the officers who were available in the control cubicle will not be called for as a witness since they may not depose their statement in favour of the charged employee" is totally unsustainable, argued the learned counsel. The way in which the enquiry officer restrained the cross-examination of the witness in support of the charge especially the 5th witness, according to the learned counsel would display the anxiety of the enquiry officer to deny to the applicant a reasonable opportunity to establish his innocence, submitted Shri Swamy. Learned counsel further argued that while the applicant did not choose to examine himself as a witness in defence, the enquiry officer should have as required under Sub-rule 21 of Rule 9 of the Railway Servants (Discipline and Appeal) Rules, questioned the applicant broadly on the evidence appearing against him in the depositions of the witness examined in support of the charge and from the documents so as to enable the applicant to explain. The learned counsel argued that the failure on the part of the enquiry authority to do so has caused considerable prejudice to the applicant especially when an alleged tape recorded conversation of which the applicant was said to be one of the participants was received in evidence. The learned counsel argued that these infirmities in the procedure adopted by the enquiry officer have vitiated the proceedings as the applicant has been deprived of a fair and reasonable opportunity to defend himself. We find considerable force in the argument of the learned counsel. Since the essence of articles of the charges was that the applicant while rostered for duty at Koregaon station from 21.30 hours on 13.3.84 to 07.30 hours on 14.3.84 came to the station premises at about 19.35 hours on 13.3.84 and misused the control phone to give messages inciting his colleagues to detain the trains wherever they were and that 7 trains were detained as a result thereof, the most competent witnesses to speak about the occurrence would have been the Assistant Station Master incharge of Koregaon station at 19.35 hours as also the Assistant Station Masters of other stations to whom the message were alleged to have been passed by the applicant as also the drivers of the respective trains. Neither the Assistant Station Master incharge of the Koregaon station nor the other Assistant Station Masters or other drivers except two of them were examined. No explanation is given by the enquiry authority for not examining the material witnesses in this case. The denial of opportunity to examine the Assistant Station Master on duty at Koregaon at 19.35 hours on 13.3.84 and other Assistant Station Masters on the ground that those witnesses may not depose in favour of the applicant even if examined is not a proper reason to justify the refusal to examine these witnesses. Whether those witnesses would depose in favour of the applicant or against him was not the concern of the enquiry officer. The important question which should have weighed with the enquiry officer in deciding whether the defence witnesses cited were to be called or not are whether their examination would be relevant to the issue involved in the case and whether this examination would be possible without undue delay and expense. Unfortunately the enquiry officer did not consider these relevant points, but refused permission to call these relevant witnesses on the ground that they may not support the applicant. Obviously, as stated earlier, the examination of these witnesses, especially the Assistant Station Master incharge of Koregaon station on duty during 19.35 hours on 13.3.84 would have been crucially important. By not examining the crucial witness and refusing permission to examine the witnesses cited by the applicant, we are of the considered view that the applicant has been deprived of a fair and reasonable opportunity to defend his case.
5. The applicant has chosen not to examine himself as a witness on his side. Therefore, according to Sub-rule 21 of Rule 9 of the Railway Servants (Discipline and Appeal) Rules, the enquiry officer should have questioned the applicant on the evidence tendered in support of the charge appearing against him. This mandatory requirement of the rule has been violated by the enquiry officer in this case. The argument of the learned counsel of the respondents is that non-compliance of a rule or procedure will not vitiate the proceedings unless it is established that by such non-compliance, prejudice has been caused to the delinquent employee facing the charge. It is true that non-compliance of a rule or procedure may not always vitiate the proceedings. But if by such non-compliance, the employee facing the charge is prejudiced in defence, then it has to be held that the proceedings is vitiated. In the instant case, to arrive at a conclusion that the applicant was guilty of the charged the enquiry officer has made reference to the tape recorded conversation in addition to the deposition of the five witnesses examined in support of the charge. The applicant has not been examined in this case, nor has any other person who participated in the telephonic conversation been examined. A true transliteration of the tape-recorded statement has not been marked in evidence. What was in evidence about the alleged conversation over the control phone was in the words of the Bench in its order in O.A. No. 225/1987 (Annexure A-15) "only a distorted version of its content through one Sivaraman Nair." Under these circumstances the failure on the part of the enquiry authority to question the applicant on the evidence appearing against him, especially of the tape-recorded conversation has, in our view, caused considerable prejudice to the applicant in his defence and therefore, we have no hesitation to hold that the non-compliance with the provisions of Sub-rule 21 of Rule 9 of the Railway Servants (Discipline and Appeal) Rules, has vitiated the proceedings in this case.
6. Shri Govinda Swamy, learned counsel of the applicant, further argued that the finding of the enquiry authority that the applicant is guilty of both the charges is perverse and is therefore liable to be set aside. On a careful scrutiny of the entire evidence available on record, we find ourselves in agreement with the argument raised on behalf of the applicant. Regarding the articles of charges, no evidence at all has been attempted to be adduced to establish that the applicant came to the premises of the Koregaon station at 19.35 hours on 13.3.84, that had access to the control phone unauthorisedly and had given out messages inciting his colleagues to stop the trains, wherever they were and that as a result, the trains were stopped. Apart from examining Sri Sivaraman Nair, PW I, the Section Controller, who has deposed that he heard through the Section phone cross-conversations in which the applicant had been giving messages. Though the Section Controller has stated that he could recognise the voice of the applicant and some other ASMs this can only be considered as an inference. When cross-conversations are heard through wireless instruments it is not normally possible to fix the identity of the speaker with absolute certainty. Further it would be impossible to say from which particular place the voice emanated. Even though it can be argued that witness No. 1, Sivaraman Nair could infer that the applicant participated in the conversation, we are of the considered view that his inference can not be a substitute for legal proof. Though the degree of proof required in a departmental disciplinary proceedings need not conform to the same standard of proof as in a criminal case, it is well-settled by now that suspicion however strong, can not be a substitute for proof even in a departmental disciplinary proceedings. It is not a case where it was not possible to adduce better evidence. If only the Assistant Station Master on duty at Koregaon between 19.35 hours and 21.30 hours on 13.3.84 was examined, the truth and falsity of the allegations forming the basis of the charge would have come to light. For reasons unknown, this evidence have been left out. The other witnesses examined in support of the charge, does not in any way implicate the applicant with the alleged misconduct. There is no evidence that the stoppage of the trains was at the instigation of the applicant, the witnesses examined have not stated that the trains were detained on the instigation of the applicant.
7. Learned counsel of the respondents argued that the conversation of the applicant through the control phone with other Assistant Station Masters on duty was recorded in a tape-recorder and as the tape was produced at the enquiry this along with the statement of the witness Sivaraman Nair would establish both the articles of charges against the applicant. We do not agree. The previous statement made by a person which has been recorded can be made use of as corroboratory evidence as also to contradict his testimony. However to make use of such an evidence, the person who has made the statement which was recorded should be examined. In this case the applicant was not examined. He was not even questioned after close of the evidence in support of the charge with reference to the alleged tape-recorded statement. The extent to which the tape-recorded statement could be made use of in evidence, came up for consideration of the Hon'ble Supreme Court in N. Rama Reddy and Ors. v. V. V. Giri reported in AIR 1971 SC 1162. Discussing the case law on the point, the Court held:
"22. Having due regard to the decisions referred to above, it is clear that a previous statement, made by a person and recorded on tape, can be used not only to corroborate the evidence given by the witness in Court but also to contradict the evidence given before the Court, as well as to test the veracity of the witness and also to impeach his impartiality. Apart from being used for corroboration, the evidence is admissible in respect of the other three last-mentioned matters, under Section 146(1), Exception 2 to Section 153 and Section 155 (3) of the Evidence Act."
In Mahabir Prasad Verma v. Dr. Surinder Kaur, AIR 1982 SC (sic), their Lordships held as follows:
"Tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon."
In this case as stated earlier, the applicant having been not examined at all, the tape-recorded conversation could not be made use in the light of the above referred rulings of the Hon'ble Supreme Court.
8. Learned counsel of the respondents argued that the technical rules of evidence is not applicable in a departmental enquiry and that therefore the tape-recorded statement could be made use of validly by the enquiry officer to see whether the charge has been established or not. We have no doubt that in a departmental disciplinary proceedings all the technical rules of evidence would not be strictly applied and that the standard of proof required in such proceedings is different from the standard of proof required in a criminal case. We are also aware that finding in a departmental proceedings can be arrived at on the basis of the preponderance of probabilities. However substantive rules, the failure of which have the effect of violation of principles of natural justice will have to be followed even in a departmental disciplinary proceedings. Otherwise the proceedings would be reduced to an empty formality. It is profitable to quote from the decision of the Apex Court in Central Bank of India Ltd. v. P.C. Jain, AIR 1969 SC 983 wherein it was observed as follows :
"It is true that, in numerous cases, it has been held that domestic Tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act."
Even from the distorted version of the telephonic conversation spoken to by the witness Sivaraman Nair, the charges against the applicant have not been established. We, therefore, hold that the finding of the enquiry authority which was accepted by the disciplinary authority that the applicant is guilty of the charges is based on no evidence at all and is therefore, perverse.
9. The litigation between the applicant and the respondents had a very long career. After the remand of the case by the Hon'ble Supreme Court, the Tribunal first disposed of O. A. No. 225/87 by judgment dated 30th October 1995. In that order, the Tribunal had in paragraph 4 observed as follows:
"4. In the disciplinary enquiry the applicant made request to examine certain witnesses on his behalf. The request A-8 was rejected by A-14 on the ground that the witnesses 'will not depose for the applicant' (see ground-8). Prima facie whether a witness would speak for someone or other, is not a matter of concern for the disciplinary authority. His only concern should be whether the evidence would be relevant, and whether examining the person is part of the right of a reasonable opportunity to defend himself, available to the charged officer."
Similarly in paragraph 5 of the order, it was observed that what was available was only a distorted version of the tape-recorded conversation through witness Sivaraman Nair, that the applicant has raised this issue as also the requirement of Rule 9 (21) of the Railway Servants (Discipline and Appeal) Rules, that these aspects were not carefully considered by the appellate authority. In paragraph 6 of the order, the necessity of application of mind by the appellate authority was emphasised. Finding that the appellate order in this case was bad for non-application of mind, while allowing the application and quashing the appellate order, it was directed as follows:
"The said authority will examine each of the grounds raised in the appeal, refer to the material leading to his conclusions, and pass a speaking order within four months from today, and communicate the same to the applicant. If he finds that irregularities have been committed in the disciplinary enquiry he will do well to mend matters, instead of leaving the case to run another full circle. Illegalities, if any, would cost the Railways and the employee not only in terms of money but also in terms of morale. Cases are not rare where proceedings are prolonged, leading to heavy costs."
Though the Tribunal was so eloquent in giving clear and definite directions to the appellate authority as to how the appeal has to be dealt with, unfortunately in the revised order passed by the appellate authority pursuant to the above judgment (Annexure A-15), the appellate authority committed the very same error of passing a cryptic order which did not disclose application of mind to the relevant facts. This necessitated the applicant's filing O. A. No. 428/ 96 against the Annexure A-16 order. Finding that the revised order passed by the appellate authority cannot claim loyalty to the Tribunal's directions in its orders in O.A. No. 225/87, by order dated 29th May, 1996 in O.A. No. 428/96 the Tribunal set aside the Annexure A-16 order and directed the competent authority to pass appropriate orders dealing with each contention in the appeal on its merits within two months of that order. It was pursuant to this order of the Tribunal that the second respondent passed the impugned order Annexure A-18 dated 16.8.96. A reading of this order would give an impression that the second respondent was not happy over the observation in the order of the Tribunal in O.A, No. 428/96 that "A-16 cannot claim loyalty to A-15". The entire paragraph 2of the appellate order Annexure A-18 which is the longest paragraph in this order has been devoted for establishing that the order dated 6.2.96 (Annexure A-16) was an elaborate speaking order. In paragraphs 3 and 4, the alleged indiscipline of the applicant and the inconvenience caused to the Railways by filing the application before the Tribunal without filing a revision has been highlighted. However, the appellate authority has stuck to its grounds in the earlier appellate orders but has given a detailed parawise comments as annexure to the appellate order with reference to the grounds of appeal. A very careful examination of Annexure A-18 order and its annexure also lead us to the very same conclusion that the appellate authority has not discharged its statutory duties in seeing whether the enquiry has been held in conformity with the rules giving fair and reasonable opportunity to the delinquent to make his defence, whether the finding arrived at by the disciplinary authority is supported by legal evidence and whether the penalty imposed is adequate, inadequate or excessive. While the appellate authority was convinced that the enquiry authority should have called the defence witnesses named by the applicant, the failure on the part of the enquiry officer to allow the applicant to examine these witnesses have been sought to be justified on the ground that the enquiry authority was probably of the view that the applicant was trying to exploit the provisions of the rules to protract the proceedings. The failure on the part of the enquiry authority to question the applicant as required under Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules is sought to be justified by the appellate authority on the ground that after the close of the evidence in support of the charge, the applicant was asked by the enquiry authority whether he wanted to make any statement and that would satisfy the requirement of the rules. These finding of the appellate authority are unreasonable and unsustainable. In deciding whether refusal to grant permission to examine a defence witness was proper or improper, the appellate authority should have considered whether the examination of the witnesses sought was relevant to the issue and whether there was any serious inconvenience in calling such a witness. This aspect was not considered by the appellate authority. Similarly the appellate authority did not properly consider the purport of sub rule 21 of Rule 9 of the Railway Servants (Discipline and Appeal) Rules while holding that the requirement of the rule was met by the enquiry authority by asking the applicant whether he would like to make any statement. In the order of the Tribunal in O.A. No. 225/87 the Tribunal had eloquently guided the appellate authority by giving definite direction that if it found that any irregularity had been committed in holding the enquiry it would take steps to mend matters with a view to avoid another full round of litigation costing heavily to the administration as also the applicant. This well-meaning direction of the Tribunal have unfortunately fallen into deaf ears. The revisional authority also has not considered these aspects in the right perspective. Regarding the grievance of the applicant on refusal of permission to examine the witnesses cited by him, the revisional authority has concurred with the opinion of the appellate authority that prosecution witness No. 1 alone was the material witness and that the station masters who were examined were extremely casual in their approach and therefore it was not incumbent on the enquiry officer to call all the witnesses cited by the delinquent employee. This view, according to us, is not in conformity with the principles of natural justice. The decision of the revisional authority that the requirement of Sub-rule 21 of Rule 9 would be met by the enquiry officer asking the delinquent after the close of the evidence in support of the prosecution, whether he would like to say anything more, is also unsustainable. The action of the enquiry authority in this case in denying the applicant a reasonable opportunity to defend his case properly by examining the witnesses cited by him and his failure to question the applicant after the close of the evidence against the applicant, in our view, denied the applicant the reasonable opportunity to defend the charge against him which is guaranteed under Article 311 (2) of the Constitution. The appellate and revisional authorities unfortunately despite very clear directions by the Tribunal, did not discharge their statutory liability while disposing of the appeal and revision by the impugned orders Annexures A-18 and A-20. The impugned orders Annexures A-11, A-18 and A-20, for the reasons stated above, are liable to be set aside. In the facts and circumstances of the case, we are of the considered view that it would be improper to remit the matter again either to the appellate or to the disciplinary authority for two reasons, firstly, the clear directions given by the Tribunal in its order in O.A. No. 225/87 that the appellate authority would mend matters if there has been any irregularity in holding the enquiry, has been not complied with and acted upon and secondly, the order of the disciplinary authority finding the applicant guilty of the charge is not only vitiated by violation of the principles of natural justice, but is also bad for perversity as it is not supported by any legal evidence.
10. In the result in the light of the above discussion, the application is allowed. The impugned orders at Annexures A-11, A-18, and A-20 are set aside and the respondents are directed to reinstate the applicant forthwith and to give him all consequential benefits within a period of three months from the date of receipt of a copy of this order. We are not making any order as to costs.