Central Administrative Tribunal - Delhi
Shri A.K. Maity vs The Secretary on 22 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.1911/2014
with
O.A. No.1912/2014 and
MA No.1946/2014
OA No.2188/2014
Reserved On:13.07.2015
Pronounced On:22.07.2015
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
OA No.1911/2014
Shri A.K. Maity
Aged 63 years
S/o Late Shri B.B. Maity,
R/o H.No.130, Ist Floor,
East of Kailash,
New Delhi-110065
Retired Joint Director (Works)
Railway Board. Applicant
By Advocate: Shri H.K. Gangwani.
Versus
1. The Secretary,
Railway Board,
Ministry of Railway,
Rail Bhawan,
New Delhi.
2. Member (Staff)
Railway Board,
Ministry of Railways,
Rail Bhawan,
New Delhi. Respondents
By Advocate: Shri Krishan Kumar and Shri Shailendra
Tiwary.
OA No.1912/2014
Shri Sanjay Gauri
Aged 47 years
Deputy Director (Estt./Welfare),
Railway Board,
New Delhi. Applicant
By Advocate: Ms. Jyoti Singh, Sr. Counsel with Shri Padma
Kumar.S
Versus
1. The Secretary,
Railway Board,
Ministry of Railway,
Rail Bhawan,
New Delhi.
2. Member (Staff)
Railway Board,
Ministry of Railways,
Rail Bhawan,
New Delhi. Respondents
By Advocate: Shri Krishan Kumar and Shri Shailendra
Tiwary.
OA No.2188/2014
Shri Jaya Kumar. G.
Aged 41 years
S/o Shri N. Gopinathan Pillai
R/o STC-906
C-II Block Suntower,
Shipra Sun City,
Indra Puram (UP).
Section Officer (Works)II,
Railway Board,
New Delhi. Applicant
By Advocate: Ms. Jyoti Singh, Sr. Counsel with Shri Padma
Kumar.S
Versus
1. The Secretary,
Railway Board,
Ministry of Railway,
Rail Bhawan,
New Delhi. Respondents
By Advocate: Shri Krishan Kumar and Shri Shailendra
Tiwary.
ORDER
G. George Paracken, Member(J) These Original Applications are similar and, therefore, they are disposed of by this common order. The Applicant in OA No.1911/2014 (Shri A.K. Maity) was working as Joint Director (Works), Railway Board discharging his responsibilities as the then Under Secretary (Establishment), Railway Board during the period between the year 2003 to 2005. The Applicant in OA No.1912/2014 Shri Sanjay Gauri and the Applicant in OA No.2188/2014 Shri Jaya Kumar G were the Deputy Director (Estt./Welfare) and Section Officer (Works)II working under him. The charges made against them were almost identical. For the sake of convenience, the facts stated in OA No.1911/2014 are delineated as under:
2. The Applicant in this case has challenged the Memorandum No.ERB-1/2011/7/5 dated 30.09.2011 by which departmental enquiry has been ordered against him under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968. Along with the said Memorandum dated 30.09.2011, a statement of imputations of misconduct or misbehavior in support each Article of Charge, a list of documents and list of witnesses by whom the articles of charges are proposed to be sustained are stated and have been enclosed vide Annexures I, II, III and IV respectively. While there were 10 listed documents in Annexure-III, the Annexure IV list contains Nil witnesses. The Article of Charges against him were as under:-
Shri A.K. Maity, an officer of Selection Grade of RBSS and presently posted and working as Joint Director (Works), Railway Board, while discharging his responsibilities as the then Under Secretary (Establishment), Railway Board during the period between the year 2003 to 2005 and in that capacity handling the matter of calculation/computation of the number of vacancies and the community-wise break-up thereof for the Section Officers Grade Limited Departmental Competitive Examination, 2003, (to be here-in-after referred to as LDCE,2003) being conducted by the Union Public Service Commission (to be here-in-referred to as UPSC), committed gross misconduct inasmuch as he willfully and deliberately allowed his sub-ordinate officers to commit the mischief of:-
(i) suppressing the number of vacancies while conveying the firm number of vacancies (6 UR+1SC+1ST =8) to UPSC for LDCE, 2003,
(ii) including the very same vacancies in the name of revision thereof on the pretext of however, since then few more vacancies which could not be anticipated at the time of finalization of vacancies has occurred. In such a manner that the revised vacancies (11 UR + 1 SC = 12) were communicated to UPSC more than a month after the official declaration of the written results of the said LDCE by UPSC,
(iii) fraudulently increasing the number of the aforesaid revised vacancies by way of adding thereto the number of Direct Recruit Quota vacancies by suppressing the fact that the indents for the Direct Quota vacancies had already been placed on UPSC for Civil Services Examinations, 2003, and
(iv) fraudulently altering the communitywise break up of the aforesaid revised vacancies to the disadvantage of Scheduled Tribe (ST) slot such that while in 8 number of initial vacancies there was a slot for ST category, there was no slot whatsoever for the said ST category in the revised 12 number of vacancies.
The said was both duty bound as well as in a position to prevent the said mischief but he willfully and deliberately allowed the same to be committed in gross misuse of his official position.
By the aforesaid acts of commissions and omissions, the said Shri A.K. Maity exhibited back of integrity and failure in devotion to duty and acted in a manner unbecoming of a Railway servant, contravening thereby the provisions contained in Rule 3.1(i), (ii) and (iii) of the Railway Services (Conduct) Rules, 1966, amended from time to time.
The aforesaid Articles of Charges were proposed to be sustained by the following documents:-
1. Copy of UPSCs letter No. F.9/2/2003-E.I (B), dated 1.04.2003.
2. Copy of UPSCs letter No. F.9/4/2003-E.I (B), dated 29.04.2003.
3. Copy of UPSCs letter No. F.9/4/2003-E.I (B), dated 14.01.2004.
4. Copy of notings from pages 6-8 of the file No. ERB-I/2003/14/8.
5. Copy of Boards letter No. ERB-1/2003/14/8 dated 09.03.2004.
6. Copy of notings of pages 10-12 of the file no. ERB-I/2003/14/8.
7. Copy of UPSCs letter No. F.1/16(6)/2004-E.VI (B), dated 28.04.2005.
8. Copy of Boards no.ERB-I/2002/3/10 dated 30.01.2004.
9. Copy of notings of pages 23-24 of the file no.ERB-1/2003/14/8.
10. Copy of Boards letter no.ERB-I/2003/14/8 dated 16.06.2005.
3. As regards the facts of the case are concerned, in March 2004, 20 vacancies were determined in the Section Officers Grade in Railway Board for the year 2003, out of which 8 vacancies (6 UR, 1 SC and 1 ST) were conveyed to UPSC to be filled through Limited Departmental Examination (LDCE for short) 2003 under the prescribed 40% quota. In June 2005, the number of vacancies in the LDCE quota was revised to 12 (11 UR and 1 SC) in view of changes in the cadre of Section Officers. Thus the total number of vacancies at the close of recruitment year 2003 was 24. Meanwhile, a decision was taken by the Railway Board to stop direct recruitment in the Section Officers grade from the year 2003 and to distribute vacancies equally between the remaining two streams i.e. LDCE and promotion on seniority basis. In July 2005, the UPSC declared result of LDCE-2003 but recommended only 8 candidates ignoring the revised intent for 12 vacancies. In May, 2006, a few candidates who had taken LDCE-2003 but did not qualify it filed OA No.973/2006 (supra) whereby they sought a direction to the UPSC to recommend additional 4 candidates on the basis of the result of LDCE 2003 so as to complete the intent of 12 vacancies conveyed by Railway Board. The Tribunal allowed the said OA in June, 2007 and directed the UPSC to recommend additional 4 names on the basis of the result of LDCE-2003. The UPSC filed W.P. ( C) 7052/2007 (supra) against the aforesaid direction but it was dismissed on 21.07.2010. In March, 2011, the Applicants in the aforesaid OA filed CP No.332/2011 before this Tribunal for the enforcement of its aforesaid order dated 08.06.2007. Later on, in June, 2011 the UPSC released a supplementary list recommending additional 4 candidates, namely, S/Shri Sunil Prabhat Bhaskar Roy Choudhary, Sanjay Singh and Rohit Kumar.
4. According to the Respondents, the Applicant committed gross misconduct inasmuch as he willfully and deliberately allowed his sub-ordinate officers to commit the mischief of suppressing the number of vacancies while conveying the firm number of vacancies, including the very same vacancies in the name of revision, fraudulently increasing the number of the aforesaid revised vacancies by way of adding thereto the number of Direct Recruit Quota vacancies, and fraudulently altering the communitywise break up of the aforesaid revised vacancies to the disadvantage of Scheduled Tribe (ST) slot and issued the aforesaid Memorandum of Charges.
5. The Applicant made a Representation dated 02.11.2011 denying the aforesaid Charges and submitted that he was only following the prescribed procedure/process in calculation of vacancies as had been adopted in the previous years and the same was duly approved by the then Joint Secretary (G), the then Adviser (Staff), the then Secretary, Railway Board and the then Member (staff), Railway Board. He has also stated that there has not been any complaint from any corner during all these years of any fraud or miscalculation of vacancies of LDCE-2003 and it is very strange that the charge sheet has been issued to him now in October, 2011 for the incident relating to 2003. Further according to him, the enquiry was instituted against him after 6 to 7 years of the occurrence of the alleged incident only to harm his reputation and to undermine his dedication and devotion to duty and it was done even without supplying the documents asked by him to prepare his defence. According to him, the inordinate delay in issuing the charge sheet has prejudiced him immensely. Further, even after issuing the charge sheet 3 years ago, nothing has been happening and the intention of the Respondents is only to prolong his agony.
6. The Applicant has also stated that this Tribunal, vide its order dated 18.12.2013, has clearly held that the discrepancy in calculation of vacancies has been settled and accordingly, the Revision Petition filed against the said order was held as infructuous. Therefore, the Respondents do not have jurisdiction to reopen the said issue which has already been settled. Moreover, the Secretary, Railway Board himself recorded in the relevant file in December, 2013 in the file that there is no case as in the instant case. Also there was not even a single witness to prove the charge. Moreover, the Disciplinary Authority has already approved the exoneration of the Applicant from the charges but the same has been subverted by the administration by deciding to proceed with the inquiry against them. The notices for the inquiry have been issued by the Respondents only after filing this OA for quashing the charge sheet.
7. The learned counsel for the Applicants has submitted that Respondents have not given any satisfactory explanation for the inordinate delay in issuing the charge sheet which has caused immense prejudice to them. According to them, at this distance of time, it is practically not possible to recollect matters and defend their cases properly. In this regard he has relied upon the judgment of the Apex Court in the case of State of Madhya Pradesh Vs. Bani Singh AIR 1990 SC 1308. The relevant part of the said order reads as under:-
4. The appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal.
He has also relied upon the judgment of the Apex Court in P.V. Mahadevan Vs. M.D. Tamil Nadu Housing Board 2005(2) SC(SLJ) 186 wherein it has been held as under:-
The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition.
He has further relied upon the judgment of the Apex Court in M.V. Bijlani Vs. Union of India and Others JT 2006(4) SC 469 wherein it has been held that delay in initiation of disciplinary proceedings after 6 years and continuance thereof for a period of 7 years prejudiced the delinquent officer.
8. The learned counsel for the Applicant has further submitted that the aforesaid charge sheet was issued to the Applicant on the date of his retirement i.e. 30.09.2011 only.
9. The ld. Sr. Counsel Mrs. Jyoti Singh for the Applicant has also submitted that the Charge Memorandum was issued to him in violation of the prescribed procedure in tune with the principles of natural justice inasmuch as not a single prosecution witness has been listed along with the same. In this regard, she has relied upon the Order of this Tribunal in OA No.1016/2014 Shri B. Prasad Vs. Secretary, Ministry of Finance and Another wherein it has been held as under:-
11. Yet another important aspect of this case is that the Respondents themselves had admitted that there were no witnesses to prove the charge levelled against the Applicant. In terms of Sub Rule 3 & 4 of Rule-14 of the CCS (CCA) Rules, 1965, it is an essential requirement of the enquiry proceedings that allegations made against the delinquent official has to be sustained with the help of the documents produced by the prosecution proved by its witnesses. According to the Sub Rule-(14) of Rule-14 of the CCS (CCA) Rules, 1965, it is by the Disciplinary Authority or on his behalf the Presenting Officer to produce oral and documentary evidence by which the Articles of Charge are proposed to be proved. Thereafter the witnesses have to be examined by or on behalf of the Presenting Officer and they may be cross-examined by or on behalf of the Government servant. However, in the present case, as pointed out earlier, there was not even a single prosecution witness. As held by the Apex Court in the case of Roop Singh Negi (supra) mere tendering of documents is not sufficient to prove the charges. Those documents have to be proved by the prosecution witnesses who are liable to be subjected to be examined by the Presenting Officer and cross-examined by the delinquent official. In fact the Apex Court has earlier considered this issue in its judgment in the case of L.I.C of India & Anr. vs. Ram Pal Singh Bisen 2011(1) SLJ 201. The question that considered in the said judgment was whether in absence of any oral evidence having been tendered by the appellants, and especially in absence of putting their own defence to the respondent during his cross examination in the Court, what is the effect of documents filed by appellants and marked as Exhibits. The findings of the Apex Court in the said judgment was that mere admission of document in evidence does not amount to its proof. On the other hand, documentary evidence is required to be proved. Further, the witnesses who are examined in the departmental enquiry shall be made available for cross-examination. Even though the provisions of the Civil Procedure Code and the Evidence Act are not strictly applicable in disciplinary proceedings, the principles behind those provisions cannot be altogether ignored. The relevant part of the said judgment is reproduced as under:-
20.Thus, the question that arises for consideration is whether in absence of any oral evidence having been tendered by the appellants, and especially in absence of putting their own defence to the respondent during his cross examination in the Court, what is the effect of documents filed by appellants and marked as Exhibits.
21.Despite our persistent requests made to the learned counsel appearing for the appellants they have not been able to show compliance of Order XII Rule 1 and 2 of the CPC, meaning thereby that there has not been any compliance thereof.
22.Order XII, Rules 1 and 2 appearing in the Code of Civil Procedure reads as thus:
"ORDER XII ADMISSIONS
1. Notice of admission of case. - Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.
2. Notice to admit documents. - Either party may call upon the other party to admit, within seven days from the date of service of the notice any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, what- ever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense."
XXX XXX XXX
26.We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.
27.It was the duty of the appellants to have proved documents Exh. A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.
XXX XXX XXX
31.Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court.
12. We are, therefore, of the considered view that the impugned charge Memorandum issued to the Applicant is not in conformity with the rules and the law laid down by the Apex Court on the issue. In the absence of any witnesses to prove the charge, the enquiry proposed to be held is an exercise in futility. As held by the Apex Court in State of Punjab Vs. V.K. Khanna and Others JT 2000 (Supp.3) SC 349, law courts are otherwise justified in Interfering at the earliest stage so as to avoid the harassment and humiliation. The Apex Court in the said judgment held further that it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion.
13. In the above facts and circumstances, we allow this OA and quash and set aside the Memorandum of charges dated 11.07.2008 served on the Applicant on 23.07.2008. Consequently, we also quash and set aside the Memorandum dated 18.02.2014 by which the Inquiry Officer has directed the Applicant to appear before him in the preliminary enquiry scheduled to be held on 28.02.2014. The Respondents shall comply with the aforesaid directions by passing appropriate orders within a period of 2 months from the date of receipt of a copy of this order. There shall be no order as to costs.
10. Further, according to the learned Sr. Counsel, the aforesaid order has been upheld by the Honble High Court of Delhi in W.P. ( C) No. 3273/2015 Secretary Ministry of Finance and Another VS. Shri B. Prasad decided on 06.04.2015 wherein it has been held as under:-
3. We have heard the aforesaid submissions made by the learned counsel for the petitioner and also gone through the impugned order and the contents of the present writ petition. We have also carefully scrutinised the material on record and we find that the contentions raised by the petitioner in the present petition have been convincingly dealt with by the learned Tribunal in the impugned order and we do not find any tangible ground to disagree with the reasoning given by the learned Tribunal.1
XXX XXX XXX .On the other aspect also, the learned counsel for the petitioner has not put forward any cogent argument that in case where the evidence sought to be proved is in the nature of documentary evidence, the petitioner is not required to prove the memorandum of charges framed against the respondent with the help of the prosecution witnesses. The learned Tribunal has placed reliance on the judgments in the case of Roop Singh Negi v. Punjab National Bank & Ors. 2009 (2) SCC 570 and LIC of India & Anr., vs. Ram Pal Singh Bisen, 2011 (1) SLJ 201, in support of its reasoning and we find no reason to disagree with the same.1
XXX XXX XXX
7. The petition as well as pending application are disposed of with no orders as to costs.
11. She has relied upon the similar Order of this Tribunal in OA No.1767/2013 R.R. Dhalve Vs. U.O.I. and Others decided on 16.04.2014. The relevant part reads as under:-.
However, according to Annexure A-IV of the said Memorandum, there is not a single witness to prove those documents. We are, therefore, of the considered view that the impugned Memorandum itself is not sustainable as it would not serve any fruitful purpose as in the absence of witnesses, the list of documents cannot be proved. In the absence of evidence adduced by the witness in a disciplinary enquiry, it cannot be held that charges have been proved. In this regard sub-rule (4) of Rule 14 of the CCS (CCA) Rules, 1965 is relevant and it is reproduced as under:-
(4) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
Again, sub-rule (14) of Rule 14 ibid prescribes the procedure to be followed as to how the oral and documentary evidence by which the Articles of Charges are proposed to be proved. The sub-rule reads as under:-
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
The aforesaid sub-rule (14) is akin to sub-rule (17) of Rule 9 which reads as under:-
(17) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved, shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer, if any, and may be cross-examined by or on behalf of the Railway servant. The Presenting Officer, if any, shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
12. She has also stated that the Respondents are not serious and they are treating the present enquiry proceedings as empty formality. In this regard, she has relied upon the judgment of the Apex Court in its judgment in State of U.P. & Others Vs. Saroj Kumar Sinha 2010 (2) AISLJ 59 wherein it has been held that the departmental enquiry cannot be treated as a casual exercise. The relevant part of the said judgment reads as under:-
28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The Inquiry Officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States, 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.
In the same judgment, the Apex Court has held that Since no oral evidence has been examined, the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
13. The Respondents have filed their reply stating that the decision to withdraw the Review Applicant No.398/2011 in OA No.973/2006 wherein the revised vacancy position of 12 of the Section Officers Grade Limited Departmental Competitive Examination for the year 2003 was challenged, was an internal decision of the Ministry of Railways and it does not mean that the Charged Officials are fully free from the charges of revising the indents in a careless manner. They have suppressed the pre-existing vacancies while sending the original indent of vacancies on 09.03.2004 and revision was justified citing false ground of few more vacancies which could not be anticipated at the time of finalization of original indent as on 09.03.2004. Two of the Charged Officials Shri A.K. Maity (Applicant herein) and Shri Sanjay Gauri did not submit detailed statement and raised the issue of additional documents. The third Charged Official Shri Jaya Kumar G submitted his detailed reply which was found satisfactory. Therefore, the Ministry of Railways have decided, in the interest of justice, to proceed further with the departmental enquiry against the Charged Officials to arrive at a logical conclusion.
14. Further, they have submitted that the file notings wherein the withdrawal of the RA was approved were not intended to exonerate the COs from all the charges. It was rather a sincere attempt to find in-house solution to the complicated issue instead of waiting endlessly for a solution from the court. This had become imperative as all the Section Officers of Ministry of Railways belonging to Select List 2003 and most of the Section Officers from Select List 2004 had been promoted as Under Secretaries/Dy. Directors on ad hoc basis and they were required to be regularized through UPSC for proper finalization of Grade-I Panels. For this, a settlement of SOs Select List for the year 2003 was needed. Moreover, 3 court cases in this matter were already pending in this Tribunal with no early finalization in the offing. Further, the issue of Ms. Alice Tirkey, the lone ST category candidate recommended by UPSC on the basis of earlier indent of 8 vacancies for LDCE 2003 was also there to be resolved as there was no ST slot to adjust her in the revised indent of 12. For this purpose, the cognizance was taken to Railway Boards letter No.2004 E (GC) 13-9 (RBSS) (42) dated 09.03.2005 according to which the direct recruitment of SO Grade was stopped from the year 2003. However, while taking cognizance of the said order, another fact came to the notice that an indent for Direct Recruitment of Section Officers through Civil Service Exam (CSE)-2003 had already been sent and against which UPSC had also recommended two candidates and the process of issuing offer of appointment of those candidates was already going on. It was lost sight of it as the same was not deliberated upon in LDCE 2003-04 file in detail while revising the indent from 8 to 12 posts for LDCE- 2003-04 because those two issues were dealt with in separate files and not corroborated in the LDCE 2003-04. Had the cognizance of those facts been taken, the mistakes committed by the COs would have become clear and the decision to withdraw the Review Petition might not have been taken.
15. As far as the relied upon documents are concerned, they have submitted that they were provided to the Presenting Officer in the disciplinary enquiry who will provide them to the Applicant at the earliest. Further they have submitted that the Disciplinary Authority had never exonerated the COs. Only a solution to resolve the problems pertaining to LDCE 2003 was approved which in no way is related to the exoneration of the COs. The decision to remit the charges to inquiry in respect of the Applicant (Shri A.K. Maitri) was taken by Disciplinary Authority, i.e., Member Staff on 13.06.2014.
16. We have heard the Sr. counsel for the Applicants Mrs. Jyoti Singh and Shri Padma Kumar S. in OA Nos. 1912/2014 with OA No.2188/2014 and Shri H.K. Gangwani for Applicant in OA 1911/2014 and the learned counsel for the Respondents Shri Krishna Kumar and Shir Shailender Tiwari. First of all, it is seen that the incident based on which Applicants have been charge sheeted occurred during the years 2003-2005 but the Memorandum of charge sheets had been issued to them on 30.09.2011 and 24.10.2011. If the action on the part of the Applicants were misconduct, nothing prevented them from initiating the disciplinary proceedings within a reasonable time after the occurrence of the alleged incident. It is a settled law that such unexplained delay in issuing the charge sheet amounts to denial of reasonable opportunity for defence and the order of the Disciplinary Authority is liable to be quashed on that ground alone. In this context, if the judgment of the Apex Court in the case of Bani Singh and Another (supra), N. Radhakrishnan (supra), T.N. Housing Board (supra) and M.V. Bijlani (supra) are relevant. In all these judgments the Apex Court had held that the delay in initiation of departmental proceedings after several years of occurrence of the alleged incident and continuance thereof for a further considerable period cause prejudice to the delinquent officers.
17. Yet another important aspect of this case is that the Respondents themselves had admitted that there were no witnesses to prove the charge levelled against the Applicant. In terms of Sub Rule (6) and (7) of Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 quoted elsewhere, it is an essential requirement of the enquiry proceedings that allegations made against the delinquent official has to be sustained with the help of the documents produced by the prosecution and proved them by its witnesses. According to the Sub Rule-(17) of Rule-9 of the Railway Servants (Discipline and Appeal) Rules, 1968, it is by the Disciplinary Authority or on his behalf the Presenting Officer to produce oral and documentary evidence by which the Articles of Charge are proposed to be proved. Thereafter the witnesses have to be examined by or on behalf of the Presenting Officer and they may be cross-examined by or on behalf of the Government servant. However, in the present case, as pointed out earlier, there was not even a single prosecution witness. As held by the Apex Court in the case of Roop Singh Negi (supra) mere tendering of documents is not sufficient to prove the charges. Those documents have to be proved by the prosecution witnesses who are liable to be subjected to be examined by the Presenting Officer and cross-examined by the delinquent official. In fact the Apex Court has earlier considered this issue in its judgment in the case of L.I.C of India & Anr. vs. Ram Pal Singh Bisen 2011(1) SLJ 201. The question that considered in the said judgment was whether in absence of any oral evidence having been tendered by the appellants, and especially in absence of putting their own defence to the respondent during his cross examination in the Court, what is the effect of documents filed by appellants and marked as Exhibits. The findings of the Apex Court in the said judgment was that mere admission of document in evidence does not amount to its proof. On the other hand, documentary evidence is required to be proved. Further, the witnesses who are examined in the departmental enquiry shall be made available for cross-examination. Even though the provisions of the Civil Procedure Code and the Evidence Act are not strictly applicable in disciplinary proceedings, the principles behind those provisions cannot be altogether ignored. The relevant part of the said judgment is reproduced as under:-
20.Thus, the question that arises for consideration is whether in absence of any oral evidence having been tendered by the appellants, and especially in absence of putting their own defence to the respondent during his cross examination in the Court, what is the effect of documents filed by appellants and marked as Exhibits.
21.Despite our persistent requests made to the learned counsel appearing for the appellants they have not been able to show compliance of Order XII Rule 1 and 2 of the CPC, meaning thereby that there has not been any compliance thereof.
22.Order XII, Rules 1 and 2 appearing in the Code of Civil Procedure reads as thus:
"ORDER XII ADMISSIONS
1. Notice of admission of case. - Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.
2. Notice to admit documents. - Either party may call upon the other party to admit, within seven days from the date of service of the notice any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, what- ever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense."
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26.We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.
27.It was the duty of the appellants to have proved documents Exh. A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.
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31.Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court.
18. We are, therefore, of the considered view that the impugned charge Memoranda issued to the Applicants are not in conformity with the rules and the law laid down by the Apex Court on the issue. In the absence of any witnesses to prove the charge, the enquiry proposed to be held is an exercise in futility. As held by the Apex Court in State of Punjab Vs. V.K. Khanna and Others JT 2000 (Supp.3) SC 349, law courts are otherwise justified in Interfering at the earliest stage so as to avoid the harassment and humiliation. The Apex Court in the said judgment held further that it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion. We accordingly allow these OAs and quash and set aside the impugned (i) Memorandum No. No.ERB-1/2011/7/5 dated 30.09.2011 in respect of the Applicant in OA No.1911/2014, (ii) Memorandum No.ERB-1/2011/7/5 dated 24.10.2011 in respect of the Applicant in OA No.1912/2014 and (iii) Memorandum No. ERB-1/2011/7/5 dated 24.10.2011 in respect of Applicant in OA No.2188/2014 with all consequential benefits. The Respondents shall also pass appropriate orders in compliance of the aforesaid directions within a period of 2 months from the date of receipt of a copy of this order. No costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh