Central Administrative Tribunal - Ernakulam
M. Narayanan Nair vs The General Manager, Southern Rly. And ... on 16 March, 2000
JUDGMENT G. Ramakrishnan, Member (A)
1. This application has been filed by the applicant an Electrical Signal Maintainer Grade-I posted at Chengannur Station of Southern Railway aggrieved by the penalty of removal from service imposed on him. The applicant sought the following reliefs through this O.A.:
"(a) Cal. for the records leading to the issue of Annexure A2 charge memorandum, Inquiry Report at Annexure A8 Annexure A-10 penalty memorandum, Annexure A-14 appellate order and Annexure A-17 appellate order and quash the same.
(b) Declare that all actions taken against the applicant pursuant to A2 charge memorandum are illegal and bad and as such the applicant is entitled to be reinstated to his post with effect from 20.6.95 with all attendant benefits;
(c) Direct all the respondents to reinstate the applicant in his post with effect from 20.6.95 with all attendant benefits and
(d) Pass such other orders or directions as deemed fit, just and proper by this Hon'ble Tribunal."
2. According to the applicant while holding the post of Electrical Signal Maintainer Grade-I/Call Duty/Chengannur on 21/22.12.92 night, Station Master/Chengannur handed over a message from Station Master/Kayamkulam to the applicant directing him to attend to a signal failure involving point No. 51 at Kayamkulam. The applicant reached Kayamkulam at 4.05 hours on 22.12.92 by 6348 Express and showed the memo to the Station Master, who initialled it and returned to the applicant. The applicant could not attend to the failure or even test Point No. 51 as the Points 50 and 51 were clamped and locked by the Station Master upto 5.30 hours for piloting of trains during signal failure. The regular Electrical Signal Maintainer of Kayamkulam, N. Chellappan Achary came to the station at 4.30 hours and ultimately relieved the applicant at 5.30 hours in accordance with Annexure A1 Duty Roster. According to the applicant as requested by Chellappan Achary, the applicant assisted him for 5 to 10 minutes to take voltage readings at location No. 12 and then returned to the platform to go back to Chengannur by the next train. While waiting on the platform, the applicant noticed that Ramanathan Karoth, Chief Signal Inspector/ Works, K. George, Signal Inspector, Mavelikara, S. Neelakantan Nair, Electrical Signal Maintainer/Works and his Khalasi Gopalakrishnan also had joined with N. Chellappan Achary in attending to the intermittent failure of Point No. 51 and while all of them were so working on point No. 51 train No. 6349 Express entered Road No. 1, instead of Road No. 2 due to wrong setting of Point No. 51 and collided with an empty train No. 311 passenger berthed there. The applicant rushed to the scehe and assisted in relief and restoration work. According to applicant, the 3rd and 4th respondents reached Kayamkulam soon after the accident, siezed relevant records and recorded the statements of all officials of their department present there, including the applicant and the 3rd respondent held a preliminary enquiry and placed under suspension all the said officials in terms of Rules 7(h) and 13(c) of Rules for Reporting and Enquiring into accidents. The preliminary enquiry and the various tests held by the said respondents showed that the accident occurred due to short circuit/earthing intermittently by damaged cables, which were not replaced since a long time. The applicant further claimed that before a statutory inquiry into the accident was held by the Commissioner of Railway Safety, Bangalore, high ranking officers of the Signal & Telecommunication department including the 5th respondent visited Kayamkulam held various tests and realized that the accident occurred due to cable fault remaining unattended for long, inspite of the remarks passed by the Chief Safety Officer, Madras in the Signal Failure Register of Kayamkulam on 13.11.92. The applicant claimed that in order to avoid the blame of bad maintenance and to protect the image of the Signal & Telecommunication Department the damaged cables were replaced with new cables and the cause of accident was projected as artificial energisation of 50 NWKR Relay by Electrical Signal Maintainer and non-observance of rules by Station Master. Applicant further submitted that during the Statutory Enquiry, the 3rd and 4th respondents appeared as witnesses, deposed to the above effect and arranged a demonstration to prove what they deposed. The damaged cables and the accident statements of lower officials recorded by 3rd and 4th respondents on 22.12.92 were withheld from the statutory inquiry contrary to Rule 13(c) of the Rules for Reporting and Enquiring into Accidents. Ramanathan Karoth, Chief Signal Inspector/Works and his staff, K. George, Signal Inspector, Mavelikara and others also deposed in the statutory inquiry in such a way as to safeguard themselves and suppressing the fact that they were working on point No. 51, when the accident occurred due to wrong setting of Point No. 51. Consequently, CRS held that the accident occurred due to artificial energisation of No. 50 NWKR Relay by Electrical Signal Maintainer and due to non-observance of rules by the Station Master. Suspension of all officials except N. Chellappan Achary and the applicant were revoked and there was no further action against them. The applicant submitted that his prolonged suspension and further disciplinary action were not justified since he did not attend to the signal failure and he was relieved at 5.30 hours and the accident occurred at 8.30 hours on 22.12.92. The applicant received A-2 major penalty charge memorandum dated 15.12.93 issued by the 3rd respondent. By A3 letter dated 29.12.93, the 3rd respondent agreed to provide access to the listed documents alone and refused access to the report of the Commissioner of Railway Safety, Bangalore on the ground that it was a confidential report. According to the applicant, the report of the CRS was not a confidential report and the same was printed and sold later. As it did not concern security of the State or did not contain anything against public interest, it could not be denied as per rules and hence its denial was unjust, without jurisdiction, arbitrary and amounted to denial of reasonable opportunity to defend his case. Aggrieved as above, the applicant by A4 letter dated 14.1.94 requested to summon as defence witnesses such of the officials who were attending Point No. 51 when the accident occurred and whose statements were recorded in the preliminary enquiry and in the statutory inquiry and for producing as defence documents the accident statements of the said witnesses and their diaries and T.A. journals for December, 1992 to January, 1993. By A5 letter the 3rd respondent refused to provide the required document on the ground that they were either not available or not relevant to the charges but agreed to provide 6 out of 8 witnesses requested. According to the applicant the documents requested were essential for his defence and the denial of the said documents was illegal arbitrary and violative of the principles of natural justice. By order dated 26.2.94, the 3rd respondent appointed the 4th respondent as inquiry officer to hold an inquiry against the applicant, despite the fact that the latter too had prejudged the case and deposed against the applicant in the statutory inquiry. The inquiry was commenced on 3.5.94 and concluded on 27.4.95. On completion of the inquiry, when the applicant was to submit the written brief of his case to the 4th respondent, the applicant came across the charge memorandum dated 15.12.92 issued by the 3rd respondent to Chellappan Achary, the regular Electrical Signal Maintainer of Kayamkulam. According to the applicant the allegation in A6 charge memorandum were exactly the same as in A2 charge memorandum. The offences alleged were such that they could not have been committed more than once or by more than one person. Hence, A6 and A2 charge memoranda could not co-exist. A6 having been made out before A2, A2 charge memorandum issued to the applicant was ab initio void. The written brief dated 14.5.95 was submitted by the applicant to the 4th respondent incorporating this and other objections and submissions. By A8 letter dated 19.5.95 the enquiry report was forwarded to the applicant by the 3rd respondent. According to the inquiry report all the charges were proved. Applicant claimed that the findings were not based on evidence adduced in that the enquiry officer rejected all evidence produced by defence and accepted all evidence produced by the 4th respondent. Applicant submitted A-9 representation dated 31.5.95 to the 3rd respondent against the inquiry report pointing out the defects therein and prayed for rejecting the same. The third respondent issued A-10 memorandum dated 15.6.95 imposing the penalty of compulsory retirement from service on the applicant with effect from 20.6.95. The applicant preferred A-11 appeal dated 3.7.95 before the second respondent against A-10 pointing out the defects therein and praying for setting aside the penalty imposed. The second respondent issued notice to review the penalty and impose removal from service on the applicant and calling for representation if any against the said proposal. Applicant preferred A-13 representation dated 1.9.95 to the second respondent against A-12 notice pointing out that the second respondent had not considered and disposed of any of the points raised in A-11 appeal before issuing A-12 notice. Second respondent by A-14 order dated 10.10.95 enhanced the penalty to removal from service. Applicant submitted that the A-14 order was non speaking cryptic and not in accordance with rules. Applicant aggrieved by A-14 filed O.A. No. 986/ 96 before the Tribunal. On 5.9.96 Tribunal issued order. In compliance of A-15 interim order, the applicant preferred A-16 appeal dated 12.9.96 before the fifth respondent. By A-17 order dated 12.11.96, the Appellate Authority rejected the points raised in A-16 appeal. When O.A. 986/96 came up for admission again on 8.1.97, the Tribunal passed A-18 order dated 8.1.97. Accordingly applicant filed A-19 Revision Petition dated 8.1.97 addressed to the first respondent which had not been disposed of by the first respondent. At this stage, the applicant filed this O.A. seeking the reliefs stated earlier.
3. Applicant advanced the following grounds for the reliefs sought:
(i) According to the applicant he reached Kayamkulam at 4.05 hours on 22/12.92 by 6348 Express. But the points 51 and 50 were under clamp upto 5.30 hours which was evident from answer to question No. 485 by K. Padmanabhan Nair, Station Master (PW-6) during the inquiry against the applicant. He submitted that as there was no chance even to test the points until clamps were removed, the applicant did not immediately present Form S&T/MR for Station Master's signature. Instead, he produced the message from Station Master, Chengannur which was initialed and returned to him as an authority. According to applicant they could not even test the points until the clamps were removed at 5.30 hours by which the applicant completed his duty hours in terms of Al Duty Roster and Chellappan Achary had to start attending the failure. At 5.30 Chellappan Achary presented Form S&T/MR and took Station Master's initial thereon. In support of this he cited the answer of DW2 to question No. 2023 to 2027 (A-22). The applicant admitted that he was in and around the work spot, but left for platform soon after the arrival of 6302 Express in support of which he cited the answer to question No. 1867 by DW-8 (A-23). According to the applicant he was not available when the accident took place in support of which he cited the answers to question No. 2448 and 2449 during the inquiry (A-24). He pleaded that A2 charge memorandum was not maintainable and was liable to be quashed.
(ii) According to the applicant A2 charge memorandum was not maintainable on facts for the above reasons and on law due to the reason of it being opposed to logic and common sense as the charge memorandum (A2) issued to him as well as the one (A-6) issued to Shri Chellappan Achari were the same. Further, the offence alleged in A6 and A2 were individual offences and not joint offence and hence they could not have been committed more than once or by more than one accused. He submitted that A6 was issued earlier to A2 and therefore, only A6 survived and A2 became void and further, he having been relieved three hours before the accident and Shri Achary having taken over charge since then, only A6 survived and A2 extinguished. According to the applicant this point had been raised specifically in A7 written brief, A-9 representation, A-11 appeal, A-16 appeal and A-19 revision petition submitted to the 4th, 3rd, 2nd, 5th and 1 st respondents respectively, but they had not either touched this point or rejected this point while disposing of the said items. Hence, A2 charge memorandum was liable to be quashed on this ground also.
(iii) According to the applicant charge memorandum was non-speaking and ambiguous as the time of offence was significant as the time of commitment of offences under item 1 (i) to (iii) and item 3 were not mentioned and item 2 of the Article of charge was ambiguous as he was on duty only upto 5.30 hrs and the time of offence was significant as the accident occurred at 8.35 hrs.. He also questioned the article of Charge under item 3 as to how, when and from what source the applicant provided artificial energy to No. 50 NWKR relay. Further, the witnesses in A2 charge memorandum were not witnesses to the alleged offences or the accident. The persons present at Kayamkulam just before the accident and at the time of accident were figuring in A-23 and A-24 questions and answers, but none of them figured among the listed witnesses. Hence, A2 memorandum was liable to be struck down.
(iv) According to the applicant, by A3 letter the third respondent refused to furnish a copy of the Report of the Commissioner of Railway Safety, Bangalore to the applicant on the ground that it was a confidential document. According to the applicant a document relevant for defence could be denied only when its production was against public interest or security of the State as per provisio to Rule 9(16) of the Railway Servants (Discipline & Appeal) Rules, 1968. The report did not affect public interest or security of the State. His request for documents was denied as per A5 letter on the plea that some were not available and some others were not relevant to the charges. The statement recorded soon after the accident (accident statement) were very vital for cross examining the witnesses and were to be included in the evidence as pet Rule 13(c) of the "Rules for Reporting and Enquiring into accidents. Some of the witnesses sought for by the applicant were also not made available. The denial of documents and witnesses were done most arbitrarily and contrary to the rules and violating the principles of natural justice. Thus, the enquiry was vitiated and therefore A8 enquiry report was liable to be struck down.
(v) The enquiry was vitiated since the 3rd and 4th respondents prejudged the case against the applicant. They recorded the accident statement of all the officials of Signal Department. It was the third respondent who held the preliminary enquiry and placed officials of the department under suspension soon after the accident on 22.12.92 in terms of Rule 7(h)(ii)(1) and Rule 23(c) with note 1 thereunder of the 'Rules for Reporting and Enquiring in to Accidents', 1987 edition. Applicant alleged that the third and fourth respondents who held various tests at Kayamkulam after the accident, replaced all defective cables, and arranged a demonstration before the Commissioner of Railway Safety, Bangalore to play down the cable defects and to show that the accident occurred due to artificial energisation of No. 50 NWKR Relay by Electrical Signal Maintainers and violation of rules by Station Masters. They were biased and though this point was specifically raised in A-11 appeal, A-16 appeal and A-19 revision petition, it had not been disposed of as per law. Thus, the enquiry was vitiated.
(vi) Further, 'the enquiry was vitiated since the findings were not based on evidence. According to the applicant on the basis of A-20, A-21, A-23 and A-24, on 22.12.92 the Station Master had given permission to the applicant to attend to the failure but he could not attend to the failure since points 50 and 51 were under clamp upto 5.30 hours and by then the applicant completed his duty hours and was relieved by N. Chellappan Achary and the initials of Station Master on Form S&T/MR was taken by N. Chellappan Achary and that the applicant had left the site much before the accident and he was not there when accident occurred. The 4th respondent ignored these evidences. The applicant relying on A-25 answers to questions 2476 and 2478 submitted that Sri Ramanathan Karoth disconnected the point groups. Further, according to the applicant Station Masters themselves resorting to restoration of intermittent signal failures without rectification by Signal Department officials had been prevalent at Kayamkulam since long. He submitted relying on the questions 541 to 546 by PW-6 to indicate this position. He submitted relying on answer to question No. 973 by A. Thavooth, Chief Signal Inspector Quilon that failure of Point No. 51 at Kayamkulam on 22.12.92 was not restored before the accident or thereafter (A27). According to the applicant by force of habit the Station Master ignored rules and even the observations of Chief Safety Officer in the Signal Failure Register on 13.11.92 and himself restored the Signal failure and dealt with the 8 trains mentioned in item No. 2 of Articles of charge. Relying on answer to question No. 1699 by PW9 applicant stated that the Station Master did not adhere to rules when he did so in support of which he had produced A-28. According to the applicant in the light of the above evidences the charges like failure to obtain prior permission from the Station Master to issue Disconnection Notice and to protect points and gadgets and the charge of conniving with duty Station Master to deal with 8 trains on signals were disproved in the enquiry. But the 4th respondent arbitrarily ignored all such evidence and held the above charges proved by surmisess and conjectures. According to him, there Was no evidence for the charge of resorting to artificial energisation of No. 50 NWKR relay. But the 4th respondent resorted to circumstantial evidence. But such circumstantial evidence was not adduced during the inquiry held. It was on hearsay evidence. According to the applicant the test mentioned in A-29 was not a conclusive evidence, as there were many other possibilities for 50 NWKR Relay picking up as given in the O.A. According to him finding in A-8 enquiry report were perverse and not based on evidence adduced in the enquiry and hence were violative of Article 311 (2) of the Constitution of India.
(vii) The findings in A-8 enquiry report were reached after similar findings were reached against N. Chellappan Achary by the 4th respondent. The applicant produced a copy of the findings dated 27.1.95 against Shri Chellappan Achary by the 4th respondent (A-32) and submitted that the later finding in A-8 was void and accordingly liable to be quashed.
(viii) A-10 penalty memorandum was passed by the 3rd respondent without any application of mind, without considering A-7 written brief and A9 representation. According to the applicant most of the objections and submissions were rejected without assigning any reason and the rest were ignored without referring to them. The 3rd respondent had nothing to say in A-10 memorandum or about the remarks passed by the Chief Safety Officer of Southern Railway at Kayamkulam on 13.11.92, or about relying on circumstantial evidence based on a single probable cause. Hence A-10 penalty memorandum was liable to be struck own on this ground.
(ix) According to the applicant A-14 appellate order was non-speaking and cryptic order and A-12 notice for enhancement of the penalty did not say why the penalty of compulsory retirement was inadequate or why the penalty of removal from service was warranted, The points raised in A-11 appeal and A-13 representation were not disposed of in A-14 penalty memorandum. While passing A-14 the 2nd respondent did not follow the mandatory provisions of Rule 22 of the Railway Servants' (Discipline and Appeal) Rules, 1968. Not even one objection or submission in A-11 appeal was discussed or referred to in A-14 order. Hence, A-14 penalty memorandum was liable to be quashed on this ground.
(x) A-17 order was passed arbitrarily and mechanically by the 5th respondent without any application of mind. No reasons have been assigned for rejecting the contentions and submissions in A-16 appeal. The mandatory provisions of Rule 22 of the Railway Servants (Discipline & Appeal) Rules were not complied with by the 5th respondent in passing A-17 orders. Many of the objection and submissions in A-16 appeal were not disposed of while passing A-17 order. A-17 appellate order was liable to be struck down on this ground alone.
(xi) According to the applicant senior officials like Chief Signal Inspector/ Works, Signal Inspector, Mavelikara and many others mentioned in A-23 and A-24 were attending to the failure when the accident happened. A-25 showed that Ramanathan Karoth disconnected the point group without giving any disconnection notice. A-20, A-22, A-23 and A-24 showed that the applicant did not attend the failure and he was not present at the station before the accident. Hence, it was arbitrary, vindictive and discriminatory to have let off others and punished the applicant especially after punishing N. Chellappan Achary for the same offence. Hence, A-10, A-14 and A-17 were liable to be quashed.
(xii) A-19 revision petition to the 1st respondent remained undisposed even after six months from the date of receipt of the same by him. The applicant had to his credit more than 20 years of unblemished service and he was jobless since 20.6.95. He and his family were virtually starving. The penalty awarded was harsh, excessive and disproportionate to the alleged offence, even if proved. On this ground also he sought quashing of A-10, A-14 and A-17.
4. Respondents filed reply statement resisting the claim of the applicant. According to them, the applicant did not deserve any consideration on merits of the case. According to them since the applicant violated the Rules and Procedure pertaining to attending and rectification of the signals, he was responsible for causing accident of Train No. 6349 Parasuram Express while being received on an unoccupied road No. 2 at Kayamkulam Station. As a chain action, it had caused collission with the rake of No. 311 Down Alappuzha Kayamkulam Passenger at about 8.35 hours on 22.12.92 and due to this accident there was mortality and even a child of a railway staff succumbed to death. Thus, the charge against the applicant was a grave one and the findings entered and the penalty imposed commensurate with the misconduct of the applicant, which should not be interfered by this Tribunal. According to them the charge against the applicant had been well proved. The applicant had received the charge memo on 15.12.93 but the applicant had not submitted explanation as required in the charge memo except that he had denied the charges. Though he requested for citing certain witnesses and also requested for the report of the CRS, he was given due intimation regarding the difficulty in supplying the same. In fact, the CRS was a statutory authority coming under the Civil Aviation Department. He had come to the accident spot and made independent inquiry. This was not a departmental inquiry contemplated under the Disciplinary and Appeal Rules of the Railways. The report was a confidential one. More over, A2 charge memorandum was not based on this report. Hence, he was not legitimately entitled for the report and non-supply of the same was not an infringement of the provisions of Discipline and Appeal Rules. They submitted that after receipt of the charge memo, the applicant had not submitted any explanation/statement. The bias alleged against the respondents 3 and 4 was not legally sustainable. Just because the CRS, came for making enquiry being officials of the Railway since respondents 3 and 4 were also questioned and they were also available at the accident spot, it could not be said that these respondents had personal knowledge of the charge of the facts relating thereto and should be prevented from holding the inquiry. Mere fact that these respondents had knowledge about the working of the department does not ipso facto debar them being the Disciplinary Authority and being the Inquiry Officer. They submitted that the enquiry was fairly and squarely conducted strictly adhering to the principles of natural justice and also the provisions of Railway Servants (Discipline and Appeal) Rules, 1968. They submitted that the applicant was given opportunity to peruse the documents listed in the charge memorandum and was permitted to take extracts of the same. Quoting from the prosecution witnesses evidences and various questions and answers of the enquiry, they submitted that sufficient opportunity was given to the applicant and the documents requested were made available to him for conducting effective cross examination. According to them it came out from the evidence of DW2 that the applicant had come for attending the failure work of point No. 51 and he was there to attend the work throughout. The respondents submitted that the Tribunal may go through the enquiry file and would find that the enquiry officer had examined ten witnesses on the prosecution side and ten witnesses on the defendant's side and the enquiry proceedings were commenced on 3.5.94 and were completed on 27.4.95. There were altogether 83 sittings and a total of 2585 questions were put to the witnesses. Thus, it could be seen that the charged employee had been given ample opportunity to defend himself and the charges were discussed individually. They submitted that the charged employee was furnished with seven copies of the documents referred to in A-2 charge memorandum. He also requested for additional documents often in number and for the statement of seven persons in the preliminary enquiry. For calling he had given ten witnesses name. Six documents additionally requested for were made available. They submitted that as and when documents which were found necessary by the applicant without strictly adhering to the Rule of Disciplinary proceedings that the incumbent need be furnished only with those documents which were mentioned in the charge memorandum for the proper enquiry, the enquiry officer had permitted the applicant to peruse the documents, which were readily available for his personal verification. They submitted that the contention of the applicant that there was no sufficient opportunity and there was no fair play could not be looked into. According to the respondents, in this case enquiry was conducted as per procedure prescribed under Rule 9. Merely because Sri Chellappan Achari was also implicated for the same accident and charge memo was issued to him also for the same cause of action, it could not be said that for one incident two actions could not be simultaneously taken. They referred to the applicant's evidence in Challeppan Achari's disciplinary proceedings as defence witness and submitted that the same showed that the applicant had attended failure of point No. 51 at Kayamkulam and was attending the gadget even after 5.30 hrs. According to them the enquiry conducted by the CRS, was an independent enquiry to find the real cause of the accident and his report was a confidential document and was not listed as a document by which the charges were proposed to be sustained. The same was not connected with the disciplinary proceedings which was an independent one conducted by the Railway officials. According to them, the applicant's statement that the false energisation of 50 NWKR was due to cable fault was incorrect as only one core of the 19 core cable between location of point No. 50 and relay room cary ing B24 of 50 NWKR was showing earth and all other cable cores were in good condition. They submitted that 10 witnesses were examined as defence witnesses. The applicant had also indicated one Shri K.M. Mathew Station Master, Chengannur as defence witness but he could not be examined as he had expired on 17.8.93. Shri K. George who was indicated as a Defence witness had advised vide his letter dated 25.3.95 his inability to attend the enquiry as a defence witness on medical ground. Shri Gopalakrishnan, Technical Mate who was indicated as a defence witness could not be examined as he had been terminated from Railway service on 4.11.93. The applicant also indicated Sr. DSTE and ASTE as defence witnesses. Since they were the Disciplinary Authority and enquiry officer, they could not be examined as defence witnesses. During the course of the enquiry, the applicant wanted five additional witnesses to be called as defence witnesses. Since the submission of these additional witnesses at the later stage of enquiry proceedings was not having relevance to in the case, it was not agreed to. They also submitted that additional documents sought for by the applicant during the course of the enquiry-18 in all were made available to the applicant and 6 documents requested were denied as they were not having any relevance with the charges framed against the applicant. Similarly some of the documents - 13 in number-being not available, the applicant was advised accordingly. They denied that by disposing as witness before CRS, the 4th respondent did not become disqualified for conducting the enquiry. They submitted that applicant was aware of the charges framed against Achari as early as on 16.4.94 itself whereas the inquiry of the applicant was completed on 21.4.95. According to the respondent as per records available both Chellppan Achari and the applicant were jointly attending to the failure at Kayamkulam Station on 22.12.92 which lead to the accident and as such there was no irregularity in framing the same charges against both the employees. The representation of the applicant to the enquiry report was thoroughly examined by the Disciplinary Authority before disposing the case and this was indicated in the speaking order. After imposition of the penalty advice, an appeal was filed by the applicant. Notice was issued proposing to review the penalty of "compulsory retirement" as one of "removal from service" and calling for representation if any against the said proposal. The applicant chose to challenge the appellate order before the Tribunal in O.A. No. 986/96. As per A-15, the Appellate Authority was directed to dispose of the appeal afresh within two months. In compliance of the order of the Tribunal, the Appellate Authority dealt with the contentions raised by the applicant in A-16 appeal. It was found that the charge against the applicant was that he had neutralised the interlocking function thereby leading to the accident and he had also connived with the duty Station Master, stood proved in the enquiry. Hence, the contention regarding the breaking of roster at 5.30 hrs was not relevant. They justified the appellate order and submitted that against the appellate order revision was contemplated as per the Rules. Even before the disposal of the same, the applicant approached the Tribunal with this O.A. Due to the pendency of the O.A., the revision petition had not been dealt with. They submitted that the contention of the applicant that when he reached Kayamkulam, Points 50 & 51 were under clamp upto 5.30 hrs. and hence he did not attend the failure was not proved, whereas the evidence of PW-6 & 7 and the applicant himself as answer to Question No. 639 in the enquiry of Shri Chellappan Achari proved to the contrary. According to them the charges were very specific and applicant had also fully understood the charges levelled against him. The applicant had produced the extract of certain questions and answers as A-22, 23 which had no relevancy in the instant case. The evidences had to be taken in totality. As regards the objection about the maintainability of the charges when already another incumbent had been charged with the charges, it was stated that as per the records available both employees were jointly attending the failure at Kayamkulam Station on 22.12.92 which lead to the accident. As such, there was nothing irregular in framing the charges against both the concerned employees. In fact, the objection was met with by passing a speaking order. They further submitted that it was clear from the evidence given by the applicant discussed earlier that the applicant was associated with the restoration work even after 5.30 hrs. If he had been relieved of his duty at 5.30 hrs. he could have left the station for his HQrs by the first available train i.e. 6302 Express. But, this had not happened and the applicant was available at Kayamkulam station even at the time of accident. They submitted that the applicant had not been charged on the basis of the CRS reports, the charges had been framed clearly based on the Rules and provisions of the relevant Manuals violated by the applicant. According to them the enquiry had been conducted to give opportunity to the charged employee to defend himself against the charges levelled against him for which different documents have been provided to him. They submitted that the applicant had not made any favourable inferences expected of those documents even though he had opportunities by way of his defence statement to the enquiry officer and to the Disciplinary Authority. According to them the accident which had occurred due to the failure of the applicant for properly attending to the defects of the points. Since the same had come out of the evidences, the O.A. was to be dismissed confirming the penalty advise by the Disciplinary Authority and the order passed by the Appellate Authority with costs.
5. Applicant filed rejoinder to the reply statement reiterating the points made out by him in the O.A. According to him public interest, security of State and non relevancy to the case were the three grounds on which documents could be refused. Relevancy should be looked at from the point of view of defence and not from the point of view of the charges. Therefore, by denying the defence documents, the applicant was denied reasonable opportunity to defend his case. Thus, the inquiry against the applicant was vitiated.
6. Heard Learned Counsel for the parties. The learned Counsel for the applicant argued the matter in great detail taking us through the pleadings and each of the grounds in the O.A. and the rejoinder. He also relied on the ratio of the judgment of the Hon'ble Supreme Court in Kuldeep Singh v. Commissioner of Police and Ors., 1999 SCC(L&S) 429 = 1999(3) SLJ 111 (SC), and submitted that the penalty imposed in this case on the applicant could not be sustained as it had been imposed at the instance of the report of the CRS a superior authority. Learned Counsel for respondents argued the matter extensively relying on the various answers given by the different witnesses during the course of the enquiry. She made available the enquiry file for our perusal in support of the respondents case.
7. We have given careful consideration to the submissions made by the learned Counsel for the parties and the rival pleadings and have also perused the documents brought on record.
8. Applicant is aggrieved by A2 charge memorandum, A8 enquiry report, A-10, A-14 and A-17 orders. He seeks to quash all of them and has advanced a dozen grounds. Respondents contest the applicant's claim stating that the proceedings were conducted in accordance with the statutory provisions and in some cases even beyond the same in favour of the applicant. According to them the applicant was given reasonable opportunities to defend and no principles of natural justice were violated. They submitted that the charges against the applicant had been proved by evidence on record . Respondents relying on the following judgments of the Hon'ble Supreme Court submitted as indicated against each :
(i) Director General Establishment (should be ESI Corporation) v. Abdul Razak, 1996(4) SLR 508-1996(3) SLJ 71 (SC).
".......In departmental enquiry this Hon'ble Tribunal will interfere only if an inference of misconduct cannot be drawn from the charges and the supporting particulars or if the charges are contrary to the law..."
(ii) Inspecting Assistant Commissioner Bombay, (Bombay) and Ors. v. Sharat Narain Parab, JT 1997(9) SC 123.
"The Tribunal is not justified in interfering with the enquiry proceedings and holding that the punishment imposed was not reasonable."
(iii) Union of India and Ors. v. B.K. Srivastava, JT 1997(8) SC 573.
"The Tribunal is not right in its approach of sitting as a Court of Appeal."
(iv) State of Tamil Nadu v. Thiru K.V. Paul and Ors., 1996(4) SLJ 603.
"It is not the province of the Tribunal to go into the truth or otherwise of the charges and that the Tribunal is not the Appellate Authority over departmental authorities.
Respondents further submitted that even before disposal of the revision petition contemplated as per Rules the applicant had approached the Tribunal. According to the applicant A-19 Revision Petition dated 8.3.97 was received by 1st respondent on 15.1.97. We find that this O.A. was filed on 19.8.97 more than six months after the revision petition. Respondents have also not pleaded for dismissal of the O.A. on this ground. Hence we will examine the O.A. on merits.
9. In a catena of decisions Hon'ble Supreme Court had laid down the scope of Judicial Review of disciplinary proceedings. In the recent case High Court of Judicature of Bombay through its Registrar v. Shashikant S. Patil and Anr., (2000) 1 SCC 416-2000(2) SLJ 98 (SC), the Hon'ble Apex Court held :
"16 : The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."
We will examine the claims of the applicant strictly on the basis of the above principles.
10. We find that the grounds advanced in this O.A. against the charge memorandum and inquiry report had also been stated by the applicant in A7 written brief dated 14.5.95 and in A9 representation submitted to the Disciplinary Authority against the enquiry report dated 31.5.95. Further, in A-11 appeal to the 2nd respondent dated 3.7.95 and A-16 appeal dated 12.9.96 to the 5th respondent these grounds have been raised. A-16 appeal was filed pursuant to the direction of this Tribunal in OA. No. 986/96 contained in A- 3 5 order dated 5.9.96.
11. Fifth respondent after considering A-16 appeal passed A-17 order. When O.A. No. 986/96 came upon 8.1.97, on the submission of the learned Counsel for respondents that the appeal filed by the applicant had been disposed of by the Appellate Authority, this Tribunal by A-18 order dismissed the O.A. as premature directing the applicant to exhaust the available departmental remedies. Applicant filed A-19 revision petition. As stated earlier, A-19 has not been disposed of till time of the filing of this O.A. In this background we felt that we should examine A-17 appellate order first and then the other grounds.
12. Hon'ble Supreme Court in Ramachander v. Union of India and Ors., 1986(3) SCC 103 = 1986(2) SLJ 249 (SC), held as under :
"...It is not necessary for our purpose to go into the vexed question whether a post-decisional hearing is a substitute of the denial of a right of hearing at the initial stage or the observance of the rules of natural justice since the majority in Tulsiram Patel's case, 1985(2) SLJ 145 (SC), unequivocally lays down that the only stage at which a Government servant gets "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him" i.e. an opportunity to exonerate himself from the charge by showing that the evidence adduced at the inquiry is not worthy of credence or consideration or that the charges proved as against him are not of such a character as to merit the extreme penalty of dismissal or removal or reduction in rank and that any of the lesser punishments ought to have been sufficient in his case, is at the stage of hearing of a departmental appeal. Such being the legal position, it is of utmost importance after the Forty Second Amendment as interpreted by the majority in Tulsiram Patel case that the Appellate Authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. We wish to emphasize that reasoned decisions by Tribunals such as the Railway Board in the present case, will promote public confidence in the administrative process..." (Para 25)
13. It is evident from the above that an important duty is cast on the Appellate Authorities while dealing with appeals of employees against whom penalties have been imposed/enhanced. Rule 22 (2) of Railway Servants (Discipline & Appeal) Rules specifically indicates how the Appellate Authority will consider the appeal. It is worthwhile reproducing the same :
"22(2)--In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the Appellate Authority shall consider :
(a) whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the Disciplinary Authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed in adequate, inadequate or severe and pass orders-
(i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case,"
14. In A-16 appeal apart from the other points the applicant raised the following point:
"The appellate order passed by DRM/TVC is non-speaking and cryptic. My valid objections, submissions and prayers on various points were not disposed of in accordance with Rule 22(2) of the RS (D&A) Rules, 1968. DRM/ TVC instead of cancelling my punishment, enhanced it to removal from service, only to comply with the punishment recommended by CRS/SBC. The empahasis in his order was more on the powers conferred on him by Rule 22(c)(i). Therefore, DRM's orders are liable to be set aside.
The above ground is also raised by the applicant in the O.A.
15. The applicant aggrieved by Disciplinary Authority's order filed A-11 appeal dated 3.7.95 to the second respondent. The second respondent by A-12 letter dated 4.8.95 proposed to enhance the penalty to that of removal from service. A-12 order dated 4.8.95 reads as under;
"Subject : Notice for enhancement of penalty.
Sri M. Narayanan Nair Ex. ESM. I (CD)/CNGR is hereby informed that the undersigned has carefully gone through his appeal dated 3.7.95 and found that the penalty of compulsory retirement with effect from 20.6.95 imposed by Sr.DSTE/TVC vide penalty advice No. V/SG. 155/DAR/29 dated 15.6.95 is inadequate.
Therefore the undersigned in exercise of his powers under Rule 22(2)(c)(i) proposes to enhance the penalty to that of "Removal from Service".
Sri Narayanan Nair is hereby given an opportunity of making representation on the penalty proposed but only on the basis of evidence. Any representation which he may wish to make on the penalty proposed will be considered by the undersigned. Such representation if any should be made in writing and submitting to the undersigned not late than 15 days from the date of receipt of this memorandum by Sri Narayanan Nair.
Receipt of this Memorandum should be acknowledged."
Applicant by A-13 reply represented against the proposed enhancement of penalty. He referred to the various points raised by him in his appeal and submitted that without reaching any finding on the points raised in the appeal the second respondent had rushed into a finding of inadequacy of the penalty. According to him the notice was misconceived and was not in accordance with Rule 22(2)(c)(i) quoted therein and that it was more in the form of a "revision" and was highly irregular. He requested for considering his appeal on merit and dispose it of as per law.
16. The second respondent issued A-14 order dated 10.10.95. A-14 reads as under:
''Subject: Appeal against penalty of compulsory retirement w.e.f. 20.6.95 imposed on you by Sr. DSTE vide Memorandum No. V/SG. 155/DAR/29 dated 15.6.95.
Ref: (1) Your appeal dated 3,7.95 (2) Notice for enhancement of penalty issued under No. V/P. 227/Revision/95 dated 4.8.95 You are hereby informed that your appeal dated 3.7.95 and the representation dated 1.9.95 in reply to the notice for enhancement of penalty, have been carefully considered by the penalty of "compulsory retirement" to that of "removal from service" for the following charges and reasons :
CHARGES (1) On 22.12.92 Shri M. Narayanan Nair ESM/Gr. I/CD/CNGR while on duty at KYJ station has failed:
(i) to obtain prior permission from Sm/KYJ to undertake the rectification work of point No. 50 and 51.
(ii) to issue a disconnection notice before attending to the said rectification of points.
(iii) to protect the point and connected gadgets, while undertaking the rectification.
(2) Moreover, he has connived with the duty Sm and enable the following trains to be dealt on signals against the public safety.
(i) Down NCJ Jet Goods from branch line on road-3 (ii) Down JPGT Light engine on road-2 (iii) Down Sabari Special on road-2 (iv) Down 6030 Express on road-2 (v) Down 311 Passenger on road-2 (vi) Up 6302 Express on road-2 (vii) Down 351 Passenger on road-2 (viii) Down 6303 express on road-2 (3) He was also responsible for resorting to artificial energisation of relay No. 50 NWKLR leading to total neutralisation of interlocking functions thereby resulting in No. 6349 UP TVC-MAQ Parasuram Express while being received on an unoccupied road No. 2 on signals entering into the occupied road No. 1 and thus causing a collision with the rake of No. 311 Down ALLP-KYJ Passenger at about 08.35 hrs. on 22.12.92
Thus, he has violated the rules and procedures pertaining to the attending and rectification of failures and resorted to shortcut methods to run trains which is against the interest and safety of public, thereby violating Rule No. 3(1) (ii) and (iii) of Railway Services (Conduct) Rules, 1966.
REASONS "I have gone through the representation dated 1.9.95 submitted by Sri M. Narayanan Nair, ex-ESM/I/CD/CNGR against the proposed penalty of removal from service on enhancement of the penalty of compulsory retirement already imposed by Sr. DSTE/TVC vide penalty advice No. V/SG. 155/DAR/29 dated 15.6.95.
The enhancement of penalty to that of "removal from service" was proposed duly exercising the powers conferred by Rule 22(2)(c)(i) duly taking into account the appeal dated 3.7.95 and not a revision" as stated in the first para of the representation dated 1.9.95. The proposed penalty of compulsory retirement imposed by Sr. DSTE/TVC was inadequate considering the gravity of the offence committed by the charged employee. Hence, the proposed removal from service.
The appeal dated 3.7.95 submitted by M. Narayanan Nair ex. ESM/I/CD/ CNGR is disposed of duly imposing the penalty of removal from service."
17. We find both A-12 and A-14 dated 4.8.95 and 10.10.95 respectively issued by the second respondent do not comply with the provisions of Rule 22(2)(a) and (b) reproduced above. They are cryptic and non-speaking. They do not show any application of mind by the Appellate Authority. In both of them none of the points raised in A-11 appeal are covered. While A-12 is a show cause notice, A-14 is the order enhancing the penalty. Therefore, A-14 cannot be sustained and is liable to be set aside.
18. A-17 order dated 12.11.96 passed by the fifth respondent is reproduced below ;
"Subject: Your appeal dated 12,9.96 against the enhanced penalty of removal imposed on you by DRM/TVC In pursuance of the orders dated 5.9.96 of the Hon'ble Central Administrative Tribunal, Ernakulam Bench, the undersigned has carefully considered the appeal dated 12.9.96 submitted by you against the enhanced penalty of removal imposed on you by DRM/TVC The undersigned is satisfied that ample opportunities have been given to you to defend the procedure laid down under the D&A Rules has been properly followed.
Your contention that as per the roster, your duty hours had ended at 05.30 hrs. and as such you were not on duty at the time of accident and therefore, you were not responsible for the accident, is not acceptable. The charge against you has been that you had neutralised the interlocking functions thereby leading to the accident, and you had also connived with the duty SMs enabling the trains to be dealt on signals against the public safety. These charges along with the other charges in the charge Memo have been proved in the enquiry and therefore your contention regarding the breaking of roster at 05.30 hrs. is not relevant.
Though there was no specific mention of joint offence, it has been proved in the enquiry that the unsafe condition was created by both the ESMs working together.
The report of CRS was not listed as a document in support of the charges and therefore it was not necessary to provide this document to you. Therefore your contention of denial of reasonable opportunity cannot be sustained.
The DAR enquiry is independent of the CRS enquiry and therefore your contention that ST. DSTE/ASTE of TVC Division had become biased, by deposing before CRS, is not correct.
Your contention that the signals had become automatically alright and there could have been other reasons for the unsafe condition is also not acceptable in view of the findings of the Enquiry Report.
The undersigned considers that theenhanced penalty of removal from service imposed by DRM/TVC is commensurate with the gravity of the offences proved and should hold good.
You are to acknowledge receipt of this advice."
19. From the above, we find that the fifth respondent had not at all dealt with the point raised by the applicant regarding A-14 order passed by DRM/TVC- the second respondent. Instead the fifth respondent in the above order confirmed the enhanced penalty imposed by DRM/TVC. We have already held that A-14 orders passed by the second respondent cannot be sustained and is liable to be set aside. Hence we hold that the fifth respondent has not considered A-16 appeal dated 12.9.96 in accordance with the provisions of Rule 22(2) especially with reference to A-14 order of the second respondent enhancing the penalty imposed on the applicant. On this ground we are of the view that A-17 appellate order of the fifth respondent is liable to be set aside and quashed.
20. A2 charge memorandum has been challenged by the applicant on the following grounds in the O.A.:
(i) that A2 charge memorandum is not maintainable on facts
(ii) that it is not maintainable in law, it is opposed to logic and common sense.
(iii) it is non-speaking and ambiguous in many respects.
21. We have carefully considered the pleadings made by the applicant in support of the above grounds as also the reply of the respondents given in the reply statement.
According to the respondents all the grounds raised were frivolous and without any bonafides. They referred to the evidence of PW-6 and PW-7 and the evidence of the applicant himself in the Disciplinary enquiry of Sri Chellppan Achari and stated that charges are very specific. According to them the evidence had to be taken as a whole and not in piecemeal.
22. Thus we find that both applicant and respondents have referred to the evidence adduced during the enquiry to support and oppose the validity/maintainability of A2 charge memorandum. As already stated in a catena of decisions by the Hon'ble Apex Court it is laid down that Tribunal/Courts in judicial review should not normally re-appreciate the evidence. Accordingly, while we do not propose to examine the maintainability of A2 charge memorandum on the basis of the evidence adduced during the enquiry, at the same time we would examine whether A2 charge memorandum is in accordance with the relevant provisions of the RS (D&A) Rules. Rule 9 of the said Rules deals with the procedure for imposing the major penalty.
23. Rule 9(6) reads as follows :
"Where it is proposed to hold an enquiry against a railway servant under this Rule and Rule 10, the Disciplinary Authority shall draw up or cause to be drawn up
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain;
(a) a statement of all relevant facts including any admission or confession made by the Railway servant
(b) a list of documents by which, and a list of witnesses by whom the articles of charge are proposed to be sustained."
24. We have perused A-2 charge memorandum. Annexure I and II of the said A-2 charge memorandum reads as under :
Annexure I : Statement of articles of Charges framed against Shri M. Narayanan Nair, ESM/I/CD/CNGR under SI/QLN- This is already extracted in A-14 order of Disciplinary Authority and is reproduced in para 16 above.
Annexure II: Statement of Imputations of misconduct or misbehaviour in support of the article of Changes framed against Sri M. Narayanan Nair ESM/ I/CD/CNGR.
(a) Shri M. Narayanan Nair, ESM/I/CD/CNGR has failed to see that every exertion is made by him for ensuring the safety of the Public, thus violated GR. 2. (ii)(1)(a).
(b) failed to obtain the stipulated prior permission which is an essential prerequisite for interfering with points and relays thus violated SR 3.51 (vi) and 3.68 (vi) (3)
(c) energised the relays without taking measures to ensure safety thus violated para 902 (b) of IRSEM (1984 Reprint).
(d) failed to ensure that the defective point and connected gadgets are taken up for rectification only on S & T Dn (Disconnection Notice) thus violated Para 723 read with 1416 of IRSEM.
Rules that are violated by the charged employee :
(i) GR.2.11(i)(a) (ii) SR3.51(vi) (iii) SR 3.68 (vi)(3) (iv) Para 902(b) of IRSEM (1984 Reprint) (v) Para 723 & 1416 of IRSEM (1984 Reprint)
We find from Annexure-II above that the same does not contain any details on the basis of which the Articles of Charges have been framed. Whereas according to Rule 9(6)(ii)(a), Annexure II shall contain a statement of all relevant facts including any admission or confession made by the Railway servant, in the Annexure-II to the charge memorandum issued to the applicant and reproduced above, only the rules violated are mentioned. In our view the provision of the rule had not been complied with, making A-2 charge memorandum non-speaking and ambiguous. On this ground A-2 is liable to be set aside. Consequently we also are of the view that all orders passed on the basis of A-2 are liable to be set aside.
25. Applicant has raised objection in regard to the charge memorandum at every stage and referred to the same and raised it again in A-16 appeal. But the same has not been dealt with/examined in accordance with the provisions of the RS (D&A) Rules at any stage including in A-17. Thus A-17 is vitiated on account of this also.
26. The applicant has advanced the ground that the enquiry is vitiated because he had not been given the copy of the report of CRS as an additional document asked for by him. Further non-furnishing of the accident statements had also vitiated the enquiry. According to the respondents the applicant had not been charged on the basis of the report of CRS and no where in the charge memorandum any reference had been made to the CRS report. It was so stated in A-10 penalty order and A-17 appellate order also. Regarding violation of principles of natural justice due to the non-supply of the statements made initially on 22.12.92 by the witnesses listed in the charge memorandum (accident statements) raised by the applicant in A-9 and A-16 representation and appeal respectively, we find that while the Disciplinary Authority had rejected the plea in A-10 penalty order, Appellate Authority had not dealt with the same at all in A-17 appellate order.
27. From A-8 enquiry report we find that statements of various officials were recorded immediately after the accident. The reason for their non supply was stated as they having been submitted to CRS formed part of the report of CRS and hence treated as confidential documents. We have elsewhere in this order accepted the plea of the applicant that if CRS report was not the basis of A-2 charge memorandum then the statements recorded on 22.12.92 would have been the basis for A-2 charge memorandum.
28. Hon' ble Supreme Court in State of U.P. v. Shatrughan Lal and Anr., 1998 SCC (L&S) 1635 = 1999(1) SLJ 213 (SC), held :
"4. Now one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge-sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him (See Chandrama Tewari v. Union of India, 1987 Supp SCC 518-1988(2) SLJ 41 (SC), Kashinath Dikshita v. Union of India, (1986) 3 SCC 229=1986(2) SLJ 279 (SC).
"6. Preliminary enquiry which is conducted invariably on the back of the delinquent employee may often constitute the whole basis of the charge-sheet. Before a person is, therefore, called upon to submit his reply to the charge-sheet, he must, on a request made by him in that behalf, be supplied the copies of the statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial. This principle was reiterated in Kashinath Dikshita v. Union of India (supra), wherein it was also laid down that this lapse would vitiate the departmental proceedings unless it was shown and established as a fact that non-supply of copies of those documents had not caused any prejudice to the delinquent in his defence."
29. In the present case, we find that the letters seeking the documents by the applicant were replied by the third respondent by A-3 and A-5. In these letters while CRS report had been denied stating that the same was a confidential document, accident statements had been denied on the plea that the same were not available in the third respondent's office. It had not been stated that the accident statements were not recorded but that the same were not available in the third respondents' office. We have already noted from A-8 enquiry report that the accident statements had been treated by the respondents as part of the CRS report and treated as confidential. Further, we find that the Disciplinary Authority in A-10 had stated that only after the acceptance of the CRS report A2 charge memorandum could be issued. This leads us to conclude that either the CRS report or the statements of officials recorded during the CRS enquiry and perhaps the accident statements handed over to CRS or all formed the basis for the charges framed against the applicant.
30. In view of the foregoing and in the light of the law laid down by the Hon'ble Apex Court referred to above, we are of the view that non supply of the statements of the witnesses recorded in the preliminary enquiry and non supply of the CRS report or at least the statements recorded during CRS enquiry caused prejudice to the applicant consequently vitiated the enquiry. Such non supply of documents amounted to denial of reasonable opportunity of defence to the applicant. Hence, we are of the view that A-8 enquiry report, A-10 Disciplinary Authority's penalty order and A-14 and A-17 appellate authority's orders are liable to be set aside and quashed.
31. Another ground raised by the applicant is that the 3rd and 4th respondents have prejudged the guilt of the applicant. According to the applicant it was they who recorded the "accident statements" of all officials of the Signal and Telecommunication Department, it was the third respondent who held a "preliminary enquiry" and placed the officials of the department under suspension soon after the accident on 22.12.92. It is alleged that it was the 3rd and 4th respondents who held various tests at Kayamkulam after the accident, replaced all defective cables, and arranged a demonstration before the CRS to play down the cable defects and to show that the accident occurred due to artificial energisation of 50 NWKR relay by Electrical and Signal Maintainers. It was further alleged that the preliminary enquiry and the various tests held by the respondents had showed that the accident occurred due to short circuit/earthing caused intermittently by damaged cables, which were not replaced since a long time. It was submitted that in order to avoid the blame of bad maintenance and to protect the image of the Signal and Telecommunication department the damaged cables were replaced and the cause of the accident was projected as artificial energisation of 50 NWKR by Electrical Signal Maintainers. It was submitted that the damaged cables and accident statements of lower officials recorded by the 3rd and 4th respondents on 22.12.92 were with held from the statutory enquiry. Respondents dealing with this ground had stated that the investigation into the cause of the accident was conducted by the CRS and not by the 3rd and 4th respondents and the various tests were conducted as directed by the CRS. Further, deposing before the CRS as witnesses did not disqualify respondents 3 and 4 for acting as Disciplinary Authority or enquiry officer, since the enquiry was conducted against the specific charges framed against the employee based on the rules in the relevant manuals of Railway working violated by the applicant. Respondents have specifically stated that the statements recorded by the CRS in the enquiry conducted by him were not made available to the respondents by him. They had also averred that A-2 charge memorandum is not on the basis of CRS report. According to the applicant's pleading in the rejoinder, there was no further enquiry into the cause of the accident except the preliminary enquiry held by the 3rd respondent assisted by the 4th respondent and hence A2 charge memorandum must be based on this preliminary enquiry/ investigation. According to the applicant the investigators became judges when the 3rd and 4th respondents became the disciplinary and enquiry authorities respectively. According to him, they ceased to be persons who had not prejudged the case.
32. Respondents have averred in the reply statement that A-2 charge memo was not issued based on CRS report. If that be so it must be on the basis of some other enquiry. Respondents have not specifically averred that there was no preliminary enquiry. This leads us to conclude that there was a preliminary enquiry/investigation wherein statements were recorded by the 3rd respondent. While we do not find anything in the pleadings to substantiate that a report was drawn up, the way in which A2 charge memorandum is prepared especially Annexure-II thereto with no factual details leads us to the conclusion that the authority who has issued the same viz. third respondent had come to tentative conclusions about the acts of ommission/commission of the applicant. As 4th respondent is stated to have assisted 3rd respondent, he must also be considered to have prejudged the guilt of the applicant. Moreover, the 4th respondent is subordinate to the third respondent. Hence, we are of the view that 3rd respondent having conducted preliminary enquiry/ investigation, on the basis of which A-2 charge memorandum had been issued, appointing 4th respondent as enquiry authority cannot instil a sense of confidence of fair play in the applicant. Thus, after taking all factors into account we hold that the applicant has succeeded in his plea of prejudgment by 3rd and 4th respondents. This vitiates A2 charge memorandum, A-8 enquiry report and A-10 Disciplinary Authority's order of imposition of penalty. The applicant has raised this question of "bias" of the 3rd and 4th respondents in A-7, A-9, A-l 1 and A-16. In A-10 order of the Disciplinary Authority (3rd respondent) and A-17 Appellate Authority's order (5th respondent) the question of "bias" had been rejected stating that just deposing before the CRS enquiry would not make the 3rd and 4th respondents "biased". We are of the view that the matter had not been examined in the proper perspective by these authorities before'passing their respective orders. Therefore, we reject the findings arrived by these authorities on this point in their respective orders viz. A-10 and A-17.
33. Another ground advanced by the applicant is that it is a case of "no evidence." In support of this plea, the applicant has referred to the statements of different witnesses recorded during the enquiry. Respondents too have resisted the plea quoting the statements of witnesses recorded during the enquiry. As we have already held that the enquiry is vitialcd for the reasons stated in the foregoing paragraphs find hence is liable to be set aside, we are of the view that this ground has become infructuous.
34. In the light of the detailed analysis made by us in the foregoing paragraphs this O. A. succeeds. We hold that the disciplinary proceedings against the applicant were initiated and conducted in violation of the statutory provisions contained in RS (D&A) Rules, provisions of the Constitution and the principles of natural justice. Accordingly, we set aside and quash A-2 charge memorandum, A-8 enquiry report, A-10 penally memorandum, A-14 appellate order enhancing the penalty and A-17 appellate order. As a result, the applicant is entitled for immediate reinstatement and all attendant benefits in accordance with law. We direct the respondents to take appropriate action for the applicant's reinstatement and grant of attendant benefits. We make it clear that our above directions do not preclude the respondents from initiating de-novo proceedings against the applicant, if they so decide, in accordance with law and the procedure prescribed.
35. The Original Application stands allowed as indicated above. In the circumstances, the parties will bear their respective costs.