Central Administrative Tribunal - Delhi
Shiv Raj Singh Meena vs Union Of India Through on 12 November, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1443/2012 Reserved On:18.09.2013 Pronounced on:12.11.2013 Honble Shri G George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member(A) Shiv Raj Singh Meena S/o Shri A.S. Meena R/o 58A/12, Jyoti Nagar, Near Arun Nagar, Agra (UP). Applicant By Advocate: Shri Yogesh Sharma. Versus 1. Union of India through the General Manager, New Delhi. 2. The Chief Commercial Manager, Northern Railway, Baroda House, New Delhi. 3. Additional Divisional Railway Manager/OP, DRM Office, Northern Railway, State Entry Road, New Delhi. 4. Senior Divisional Commercial Manager, Northern Railway, DRM Office, State Entry Road, New Delhi. 5. Divisional Traffic Manager, Northern Railway, DRM Office, State Entry Road, New Delhi. ..Respondents By Advocate: Shri Rajinder Khatter. O R D E R
Shri G. George Paracken, Member (J) Applicant in this case is aggrieved by the disciplinary proceedings initiated against him which culminated in the orders of the Disciplinary Authority removing him from service as modified by the Revisional Authoritys order compulsorily retiring him from service.
2. The brief facts of the case are that the Applicant was proceeded under Rule 9 of the Railway Servants (Discipline & Appeal) 1968 and he was served with the Annexure A-8 Memorandum dated 01.10.2004 containing the following Statement of Article of Charges:-
That Sh. Shiv Raj Singh/HBC/Ambala while working as such on dated 25.5.04 at 18.45 hrs in Booking Office Ambala Cantt and manning counter no.4 was subjected to vigilance check & detected to have committed following serious acts of omission and commission:-
That Sh. Shiv Raj Singh HBC/Ambala Cantt is responsible for defrauding railways by taking matter of ticket no.C-1453874 higher value Ex UMB-Mumbai Rs.1040/- 4 Adults on tickets no.14538373 lower value ticket which was kept blank by him by using some ingenious method in UTS system. The above ticket no. 14538373 was accounted for Rs.59/- in hard copy (DTC) UMB-NDLS although it was intentionally kept blank by using some ingenious method and taken contents of Ticket no.1458374 on it. Subsequently he non-issued ticket no.14538374 on ticket no.14538375 to clear the accountal of ticket no.14538374 in hard copy. He sold the same fraudulently manipulated ticket no.14538373 to the passenger and collected Rs.1040/- though this number ticket was accounted for Rs.59/- only with the railways and pocketed Rs.981/- with malafide intention for personal gain by defrauding railways.
Sh. Shiv Raj Singh/HBC/UMB is responsible for producing Rs.179/- excess in his Govt. Cash with unconvincing reason.
He is also responsible for using his skills with malafide intention to tempering the wipro printer carrying high security features with an intention to pocket railway revenue on revenue.
By his above act Sh. Shiv Raj Singh/HBC/UMB failed to maintain absolute integrity & devotion to duty and acted in a manner unbecoming of railway servant thereby contravened Rule 3.1 (1), (II), & (III) of Railway Service Conduct Rule 1966.
3. After detailed enquiry into the aforesaid charges, the Inquiry Officer submitted an undated report to the Disciplinary Authority, copy of which was furnished to him, vide Annexure A-16 letter dated 12.02.2008. According to the said report, all the aforesaid three Charges have been proved. The relevant part of the said report reads as under:-
6.0.0 Analysis and discussions on the Prosecution and Defense case.
After going through the evidence on record marked as Ex-P/1 to Ex-P/6 and from the depositions of the PWs and mandatory questions to the CO by the IO, it is concluded that the charges leveled against the CO are correct. It is evident from the documents marked as Exhibits and by the depositions of the PWs that during the course of vigilance check, CO was found issuing tickets by engineering the ticketing system provided at UMB/BC and the check was conducted on the basis of a source information by the Railway Board Vigilance. CO /DH have wrongly stated in their defence brief that he not given any demonstration at DLI station and the tickets were generated by the station and to contradict and to support their version CO/DH has not produced any material evidence nor introduced any defense witnesses. Hence the plea of the CO/DH cannot be taken into the consideration. From the depositions of PWs, it is proved beyond any doubt that CO used illegal method to cheat passengers on account of Railways and caused loss in the Railway revenue. Shri Shiv Raj Singh, HBC/UMB is responsible for producing Rs.179/- excess in his govt. cash with unconvincing reason, it is a matter of record.
Therefore the charges leveled against the CO are :-
6.0.0 Conclusion 6.0.1 Article of Charge I : Proved.
6.0.2 Article of Charge-II: Proved.
6.0.3 Article of Charge-III: Proved.
4. Considering the aforesaid enquiry report as well as the representation made by the Applicant against the same, the Disciplinary Authority agreed with the findings of the Inquiry Officer (IO for short) and vide Annexure A-1 order dated 3.6.2008 held him responsible for the charge leveled against him. Consequently, the Disciplinary Authority held that he was not fit to be retained in Railway Service and accordingly he was removed from service with immediate effect. The relevant part of the said order reads as under:-
As per evidence available on record you have non-issued tickets bearing Nos. G-14538374 and 14538375. You have explained that there were non-issued, because, the Ticket No.C-14538374 was misprinted due to mistake and, therefore, the next ticket was non-issued for the same amount, scrutinizing of record copy of detail DTC recalled that the Ticket No.C-14538373 was accounted for Rs.50/- only generated ex.UMB to NDLS, but the same ticket sold to the amount of Rs.1,040/- for four adults ex.Ambala to Bombay Central. When the Ticket No.C-14538373 ex.UMB to BCR amount of Rs.1040/- for four adults (seized from the passenger) shown to you and were asked how this ticket was accounted for Rs.59/- in the DTC Defrauding the Railway by Rs.981/- you took a plea that the passenger demanded a ticket ex.UMB to NDLS for one adult and you gave the command to print the same, but in system it remained blank. However, for accounted for Rs.59/- in DTC you advised the passenger to purchase the ticket from and their counter and their counter and subsequently another passenger came and demanded ticket for four adults ex.UMB to NCT and printed the contents of the same on the above previous blank ticket ex.Ambala to same passenger asked for another four tickets from Ambala to Bombay Central. Then you noticed that there was a mismatch in Ticket No.C-14538314. As such you made, i.e., non-issued Ticket No.C-14538375 and, therefore, after you concerted the Ticket No.C-14538376 ex.Ambala to Bombay Central amounting to Rs.1,040/- for four adults and giving to the passenger. You also admitted vide Ex.R-2 that Rs.981/- overcharged from the passenger could not be recovered in our Govt. Cash as you handed over this amount to one of your friend. These above facts were confirmed during the enquiry by the prosecution witnesses. It is thus clear that you had pocketed Rs.981/- with your mala fide intention by defrauding the Railway. This charge is proved by the Inquiry Officer and I agree with the same.
In Charge No.2 as per Cash Details vide Ex.R-1 Rs.179/- was excess in your Govt. Cash which was admitted by you, but you could not gave any convincing reason. Thus you are responsible for this charge also which is proved in the enquiry.
In charge No.-3 from the facts mentioned in Charge No.-1 it is clear that you are found responsible for mis-using your skills with malafide intention by tempering the Wipro Printer carrying high securing features with the intention to pocket the Railway Revenue. Thus this charge is also proved against you.
Keeping in view all the above fact, I hold you responsible for the charge I & II against you & therefore, find that you are not a fit person to be retained in Railway Service and as such I have decided to impose upon you the punishment of removal from service to meet the end of justice.
Accordingly you are hereby removed from service with immediate effect.
Under Rule-18 of Railway Servants (Discipline & Appeal) Rules, - 1968 an appeal against these orders lies to Sr.Divl, NDLS provided :-
i) the appeal is submitted within 45 days from the day you receive the orders and,
ii)the appeal does not contain improper or disrespectful language.
Please acknowledge the receipt of this letter.
5. Applicant submitted the Annexure A-5 appeal dated 23.06.2008 against the aforesaid penalty order imposed by the Disciplinary Authority. But Appellate Authority initially vide its order dated 16.09.2008 held that the prosecution witness could not produce any evidence except regarding the excess of Rs.179/- found in the Government cash. Accordingly, the Appellate Authority informed the General Manager (Vig.) that it took a lenient view in the matter and decided to reinstate the Applicant at the initial grade of Rs.3200-4900 for a period of ten years with cumulative effect cash debar for a period of 10 years also. However, General Manager (Vigilance) vide its letter dated 27.11.2008 informed the Disciplinary Authority that its proposal is not acceptable because the proposed punishment is not adequate in the light of gravity of offences committed by the Applicant while on duty. The General Manager (Vig.) has, therefore, asked the Disciplinary Authority to have the matter looked into once again and to furnish the report at the earliest for onward submission to Boards office. The Disciplinary Authority once again, vide its letter dated 27/1/4-2-2009 maintained with its earlier proposal dated 16.9.2008. However, the General Manager (Vig.) vide its his letter dated 7-10/08-09 asked the Disciplinary Authority to put up the case to the Revisionary Authority to inform the action taken in the matter to apprise the Board. Thereafter, the CTM, Delhi considered the case of the Applicant as revision appeal and vide its order dated 8.6.2010 decided to reinstate the Applicant in service at a initial grade for a period of 10 years with cumulative effect along with cash debar for 5 years to meet with the end of justice. However, CTM, New Delhi against sent his aforesaid decision for the concurrence of the General Manager (Vig.). The Vigilance Department again did not agree with the aforesaid decision of the Revisional Authority and decided to impose a stringent penalty on the Applicant. Finally, the Revisional Authority, vide its Annexure A-3 order dated 26.8.2011, modified the order of the Disciplinary Authority and reduced the punishment to that of compulsory retirement. According to the aforesaid order, the charge against him that he used his skills with mala fide intention to tamper with the Wipro printer carrying high security features to pocket Railway revenue has been proved in the enquiry and his plea that the charge was based on presumption and surmises was neither correct nor acceptable. However, the modification of the order of the Disciplinary Authority to remove him from service to that of compulsory retirement from service was out of compassion looking into his family condition. The relevant part of the said order reads as under:-
the charge you used your skills with malafided intention to tempering the Wipro printer carrying high security features with an intention to pocket railway revenue has also been proved in the enquiry. The plea taken by you in your petition that this charge is based on presumption and surmises is neither correct nor acceptable. As on record a demo was given by you at Delhi Main in presence of witnesses and tickets printed by you using your skill are available as documentary evidence ex P-15. Thus this charge is also proved against you.
The above shows that you were responsible for various acts leading to loss to railway and also shows that your intentions were doubtful. However, taking a compassionate view looking your family condition the punishment of removal from service is modified to that of compulsory retirement from service.
6. Against the aforesaid order in Revision, the Applicant submitted the Annexure A-7 petition dated 13.09.2011 under Rule 24(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 to the Chief Commercial Manager to consider his case on humanitarian and sympathetic grounds and to reinstate him in service so that he could handle his day to day life with his aged parents and two minor children and wife. However, the Appellate Authority, itself vide Annexure A-4 order dated 22.11.2011, without forwarding the said petition to the Chief Commercial Manager, rejected it on the ground that under the provisions of the Railway Servants (Discipline and Appeal) Rules, 1968 only one appeal and one revision are permissible. According to the said order, all the channel of Divisional Level has been exhausted no action/decision on the representation dated 12.09.2011 address to Chief Commercial Manager, New Delhi is required at this end. If so desired you may prefer mercy/appeal address to the President of India under the provision of D&AR Rule 31.
7. The Applicant challenged the aforesaid orders passed in the disciplinary proceedings initiated against him on several grounds. According to him, on receipt of the memo of charges dated 01.10.2004, he submitted a representation on 04.10.2004 requesting the Disciplinary Authority to supply him the readable photocopies of the relied upon documents as required vide Rule 9 (7) of Railway Servants (Discipline & Appeal) Rules, 1968 which is reproduced as under:-
(7) The disciplinary authority shall deliver or cause to be delivered to the Railway 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 charge is proposed to be sustained and shall require the Railway servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow.
Note: - If copies of documents have not been delivered to the Railway servant along with the articles of charge and if he desires to inspect the same for the preparation of his defence, he may do so, within 10 days from the date of receipt of the articles of charge by him and complete inspection within ten days thereafter and shall state whether he desires to be heard in person.
But the Disciplinary Authority without supplying the same, decided to proceed with the enquiry and appointed the IO and the Presenting Officer and it was only on 27.09.2006, he was allowed to inspect the documents. Such a procedure adopted by the Respondents, according to the Applicant, is in violation of principles of natural justice and the law laid down by the Honble Supreme Court of India in the case of Kashinath Dikshita Vs. Union of India and Others 1986 (3) SCC 229 in which it has been held that non-supply of the copies of the documents amounts to denial of opportunity in exonerating himself. The relevant part of the said order reads as under:-
11. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself. We do not consider it necessary to quote extensively from the authorities cited on behalf of the parties, beyond making passing reference to some of the citations, for, whether or not there has been a denial to afford a reasonable opportunity in the backdrop of this case must substantially depend upon the facts pertaining to this matter.
12. The appellant relied on Tirlok Nath v. Union of India 1967 Serv LR 759 (SC) in support of the proposition that if a public servant facing an inquiry is not supplied copies of documents, it would amount to denial of reasonable opportunity. It has been held in this case :
"Had he decided to do so, the documents would have been useful to the appellant for cross-examining the witnesses who deposed against him. Again had the copies of the documents been furnished to the appellant he might, after perusing them, well have exercised his right under the rule and asked for an oral inquiry to be held. Therefore, in our view the failure of the Inquiry Officer to furnish to the appellant with copies of the documents such as the FIR and statements recorded at Shidhipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the inquiry."
Reliance has also been placed on State of Punjab v. Bhagat Ram (1975) 2 SCR 370 : (AIR 1974 SC 2335) and State of Uttar Pradesh v. Mohd. Sharif (dead) through LRs. (1982) 2 Lab LJ 180: (AIR 1982 SC 937) in support of the proposition that copies of statements of witnesses must be supplied to the Government servant facing a departmental inquiry. It has been emphatically stated in State of Punjab V. Bhagat Ram by this Court as under : -
"The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given an opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.
The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination.
It is unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken."
13. In view of the pronouncements of this Court it is impossible to take any other view. As discussed earlier the facts and circumstances of this case also impel us to the conclusion that the appellant has been denied reasonable opportunity to defend himself. In the result, we are of the opinion that the impugned order of dismissal rendered by the disciplinary authority is violative of Article 311(2) of the Constitution of India inasmuch as the appellant has been denied reasonable opportunity of defending himself and is on that account null and void. We accordingly allow the appeal. The judgment of the High court is set aside. The impugned order of dismissal dated 10-11-1967 passed against the appellant is quashed and set aside We further declare that the impugned order of dismissal is a nullity and non-existent in the eye of law and the appellant must be treated as having continued in service till the date of his superannuation on January 31, 1983. Taking into account the facts and circumstances of this case and the time which has elapsed we are of the opinion that the State Government should not be permitted to hold a fresh inquiry against the appellant on the charges in question. We therefore direct the State Government not to do so.
8. The Applicant has also submitted that, vide his representation dated 15.5.2006, he requested the Disciplinary Authority to supply him copies of 5 additional documents and after considering the relevancy of same, the IO has also agreed to it but the Disciplinary Authority supplied only two documents out of them. He has, therefore, made another representation dated 25.08.2006 pointing out the relevancy of each documents but the copies of other documents were never supplied to him in violation of Rule 9 (15) of the Railway Servants (Discipline and Appeal) Rules, 1968 which reads as under:-
(15) The inquiring authority shall, on receipt of the notice for discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents by such date as may be specified in such requisition:
Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case.
9. He has also submitted that the aforesaid denial of documents to prepare the defence is in violation of the principle laid down by the Honble Supreme Court in the case of Chitranjan Chaudhary Vs. State of Bihar 1987 (2) SCC 104 in which it has been held that where relevant and vital documents had been withheld by the prosecution, action taken should be quashed. The same view was taken by the Honble High Court of Delhi in the case A.K. Dutta Vs. Union of India AIR 1971 Delhi 133 wherein it has been held that denial of right to access to the two documents for preparing defence vitiated the inquiry. Again he has relied upon the judgment of the Apex Court in State of U.P. and Others Vs. Saroj Kumar Sinha reported in JT 2010 (1) SC 618. In support of the aforesaid argument he has also stated that the Apex Court in Trilok Nath Vs. Union of India 1967 SLR 759 and State of Punjab Vs. Bhagat Ram 1975 (1) SCC 155 has also affirmed the aforesaid position. This Tribunal has also followed the said principle in its order in the case of Azizullah Khan Vs. Member (P) Postal Services 2005 (3) CAT SLJ 186.
10. He has also submitted that Disciplinary Authority appointed Shri Anil Vishnoi from the Vigilance Department as the Inquiry Officer in the case and said action was against the well settled principle by the Supreme Court in its judgment in Union of India and Others Vs. Prakash Kumar Tandon 2009 (2) SCC 541 that the IO should not be from the Vigilance Department. The relevant part of the said judgment is reproduced as under:-
12. The disciplinary proceedings were initiated only after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. He evidently being from the Vigilance Department, with a view to be fair to the delinquent officer, should not have been appointed as an enquiry officer at all. In this regard he has also relied upon the order of the Jodhpur Bench passed in OA No.89/2009 decided on 14.12.2011, having its operative part as under:-
10. In the instant case, the Vigilance Wing/section of the Department of Telecommunication has been involved in all the stages of the disciplinary inquiry conducted against the Applicant, and, therefore, the whole process of the disciplinary inquiry conducted against the applicant is illegal, improper and unjustifiable in law, as the Incharge of investigating and prosecuting the Government servant concerned cannot be allowed to function in quasi judicial capacity as the Disciplinary Authority, or the Appellate Authority, or the Review Authority. The issues raised at para 41 (g) and para 41 (h)/ante are therefore answered accordingly.
11. He has also submitted that the Inquiry Officer was biased and has not conducted the enquiry as per rules. Therefore, at the initial stage of inquiry itself, vide his representation dated 11.4.2005, he requested the Disciplinary Authority to change the IO on the aforesaid ground but the same was not even considered. He again made a detailed representation vide Annexure A-14 dated 19.01.2007 to the Disciplinary Authority, but the said Authority rejected the same vide Annexure A-15 order dated 26.3.2007 by a non-speaking order without giving any reasons. The said IO has also not even considered the detailed written brief submitted by him stating that no new material has been produced by him. According to the Applicant, the aforesaid conduct of the IO shows his pre-determined and biased mind against him.
12. The other submission of the learned counsel for the Applicant is that the Applicant submitted a detailed representation vide Annexure A-17 dated 11.3.2008 against the Annexure A-16 report of the IO but the Disciplinary Authority passed the impugned penalty order without considering the same but relying totally on the directions of the Vigilance Department. He has also stated that the Disciplinary Authority did not apply his independent mind in deciding the matter, rather he was acting on the behest of the Vigilance Department. He has also submitted that the Appellate Authority actually wanted to reduce the penalty by imposing the penalty of reduction to the initial grade but the Vigilance Department compelled the Appellate Authority to impose the penalty of removal from service upon him. For this purpose, twice the Vigilance Department remanded the file to the Appellate Authority. But according to the Applicant, the Appellate Authority being a quasi judicial authority, he was required to take independent decisions and the decision taken by the said authority on the advice of the Vigilance Department is liable to be rejected.
13. In this regard, he has also relied upon the order of this Tribunal in OA No.2090/1991 Anil Goel Vs. U.O.I. & Others wherein it has been held that the initiation of proceedings are invalid as the record show that the decision to initiate the same was not voluntary but on extraneous factor. The relevant part of the said order reads as under:-
28. We are of the view that these authorities would not have taken such a stand but for their firm conviction that the D.E. was not justified. In other words, the Department did hold very strong views that the applicant need not be charge-sheeted for imposition of major penalty.
29. It is unambiguously and abundantly clear that Department disagreed with the C.V.C.s advice till the last. Therefore, it had to consult the Department of Personnel as required by the standing instructions. The Department of Personnel did not give any new reason of its own as to why the C.V.C.s advice should be accepted. That department did not place on the file its detailed notes considering the pros and cons of the case and the diametrically divergent views of the Department and the C.V.C. and the reasons for its conclusions. Instead, it only recommended the acceptance of the C.V.C.s advice on the only ground that the C.V.C. had repeated its advice more than once and that the true facts would emerge only during the enquiry and the officer would have ample opportunity to prove his innocence. In other words, the Department of Personnel did not give any convincing reason as to why the Department of Revenue should reverse its opinion about the delinquency of the applicant and the need to initiate major penalty proceedings against him. That advice should not have weighed with the respondents at all, because the thrice repeated advice of the C.V.C. had been unambiguously and finally rejected by the department of Revenue when the Chairman, C.B.D.T. wrote a strong note vice para 19 supra and proposed that the Department of Personnel be consulted.
30. In our view, these circumstances show that the final decision has been taken only at the instance of the C.V.C. which insisted on a major penalty proceedings being instituted against the applicant. We could have come to a different conclusion if some official in the Board, or the Secretary (Revenue) had recorded at least at the last stage that the earlier observations made in the Department at various levels were the result of a wrong appreciation of the facts and circumstances and that the view propounded by the C.V.C. was more convincing and that it deserved to be accepted. If even a few lines expressing such a view had been written at the final stage of decision making, one could have held that, perhaps, the decision was taken independently of the C.V.C.s advice and not under pressure. We are unable to notice any such decision on the departmental file. It appears to us that the Ministry of Finance finally opted for a decision of convenience. The alternatives before the Ministry were to reject the advice of the C.V.C. about this case and thereby invite a report to Parliament by the C.V.C. which was sure to be made considering the background of the case and take steps to defend itself in Parliament or to accept the advice of the C.V.C., notwithstanding its strong convicting in the matter and give the C.V.C. no cause to make a report to Parliament. The Ministry had been alerted by the Director Investigation (Vigilance) about the consequences of disagreeing with the C.V.C. (para 17 supra). Therefore, the Ministry chose the latter alternative. We find that such a conclusion alone can be drawn from the circumstances of the case. We reject the contention of the respondents that the decision was voluntary and taken without any extraneous inference.
14. The Applicant has also contended that there is no evidence against him at all and the aforesaid position has also been admitted by the Revisional Authority which observed that there were number of procedural lapses in the enquiry, and, therefore, the whole enquiry is liable to be quashed. Further, he has also stated that the charge sheet is totally false and baseless and the impugned orders are liable to be quashed. Further, according to him, the IO in his report submitted that the Applicant/Charged Official refused to give reply of the question put by him but it was not factually correct. On the other hand, the IO did not put any questions on him on 09.10.2007 and he made a specific representation to the IO requesting him to put the mandatory question to him on the points which he had not explained in his defence statement. However, the IO being biased against him, submitted his report based on wrong facts which is in violation of the Railway Servants (Discipline & Appeal) Rules, 1968.
15. He has also pointed that under Rule 24 (2) of the Railway Servants (Discipline and Appeal) Rules, 1968, there is a specific provision for submitting a petition to the General Manager or Head of the Department, other than revision petition, in case of penalties of dismissal from service, removal from service and compulsory retirement and he has submitted his Annexure A-7 petition dated 13.09.2011 under the said provision but the Appellate Authority instead of forwarding the same to the Competent Authority rejected it vide Annexure A-4 order dated 22.11.2011. The said Rule 24 (2) reads as under:-
(2) A Group 'C' Railway servant who has been dismissed, removed or compulsorily retired from service may, after his appeal to the appropriate appellate authority has been disposed of, and within 45 days thereafter, apply to the General Manager for a revision of the penalty imposed on him. In this application, he may, if he so chooses, request the General Manager to refer the case to the Railway Rates Tribunal for advice before he disposes of the revision petition. On receipt of such a request, the General Manager shall refer the case to the Chairman, Railway Rates Tribunal for advice sending all the relevant papers.
On receipt of the revision application by the General Manager, or on receipt of advice from the Railway Rates Tribunal, as the case may be, the General Manager shall dispose of the application in accordance with the procedure laid down in Rule 25 and pass such orders as he may think fit:
Provided that the procedure mentioned in this sub-rule shall not apply in cases where the General Manager or the Railway Board are the Appellate Authority:
Provided further that where a revision application has been disposed of by the General Manager under this sub-rule, no further revision shall lie under Rule 25.
16. The Respondents have filed their reply. According to them, a Vigilance check was conducted on 25.05.2004 at 18:45 hrs in Booking Office, Ambala Cantt. On that day, the applicant was manning counter No.4 and it was found that he had committed serious irregularities as stated in the Memo of Charges and accordingly major penalty proceedings were initiated against him by serving upon him the statement of Article of charges on 01.10.2004. Along with statement of imputation of misconduct, the list of the documents relied upon and list of witnesses who would prove those documents have been furnished to him and he received them in June 2004. He was also placed under suspension on 16.06.2004 but his suspension was revoked w.e.f. 02.10.2004. On 08.12.2004 Sh. Anil Bishnoi, CEI Headquarter was nominated as Inquiry Officer to inquire into the charges and the same was intimated to him under his signature on 09.12.2004. The Inquiry Officer completed the inquiry as per the provisions of the Railway Servant (Discipline & Appeal) Rules 1968 and submitted his report on 25.11.2007 to the Disciplinary Authority. According to the said report, all charges were "proved" against the applicant. The copy of the inquiry report was also given to him and it was received by him on 20.02.2008. He submitted his representation on 14.03.2008 against the report to the Disciplinary Authority and the Disciplinary Authority on 03.06.2008, after going through the charge sheet, inquiry report, evidences adduced during the enquiry, representation of the Applicant, imposed the punishment of Removal from service with immediate effect upon him. The Applicant submitted his appeal on 15.7.2008. On 18.11.2009 the Appellate Authority upheld the aforesaid punishment imposed upon him by the Disciplinary Authority. The Applicant submitted the revision petition on 2.2.2010 and the Revisionary Authority, after going through the charge sheet, enquiry report, evidences adduced during the inquiry, appeal, representation and the revision petition, took a compassionate view in the matter looking into his family condition and vide its order dated 26.08.2011, modified the punishment from removal from service to compulsory retirement and the said order was communicated to him on 30.08.2011. However, the Applicant submitted another application on 12.09.2011 to the Chief Commercial Manager, Northern Railway and the Sr. Divisional Commercial Manager informed him that under the provisions of Railway Servants (Discipline & Appeal) Rules, 1968 only one appeal and one revision is permissible and since all the channels have already been exhausted by him, no action/decision on his aforesaid representation was taken. However, he was advised to prefer mercy appeal addressed to the President of India under the provisions of Rule 31 of the D&A Rules, if he so desires.
17. The learned counsel for the Respondents has also submitted that the Disciplinary Authority, the Appellate Authority and the Revisionary Authority have acted independently and passed reasoned and speaking order after going through the charge sheet, documents available on record, evidences adduced during the inquiry, inquiry report and representations made by the Applicant. He has also relied upon the judgment of the Apex Court in Sushil Kumar Banerjee Vs. State of West Bengal and Others 1980 (3) SCC 304 wherein it has been held as follows:-
Merely failure to comply with such a rule does not ipso facto lead to the departmental inquiry being vitiated. In addition to non-compliance, what have to be shown by the delinquent officer is prejudice caused to him.
18. He has further relied upon the judgment of the Apex Court in State of Bikaner and Jaipur Vs. Prabhu Dayal Grover 1996 (1) SLJ SC 145 wherein it has been held that the Appellate Authority was not required to record all detailed reasons particularly when it agreed with the findings of Inquiry Officer, and as accepted by the Disciplinary Authority. The findings recorded by the Inquiry Officer as well as orders passed by the Disciplinary Authority, Appellate Authority and Revision Authorities are detailed, analytical and reasoned orders, no judicial interference is warranted. Again, the learned counsel for the Applicant has relied upon the judgment of the Apex Court in Apparel Export Promotion Council Vs. A.K. Chopra JT 1999 (1) SC 61 wherein it has been held as under:-
The High Court appears to have over-looked the settled position that in departmental proceedings, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities.
19. Further, he has relied upon the judgment of Union of India and Others Vs. Upender Singh 1994 (2) SCC 77. The relevant part of the said order reads as under:-
6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this court.
20. Again, he has relied upon the judgment of H.B. Gandhi, Excise and Taxation officer-cum-Assessing Authority, Karnal & Others Vs. M/s Gopi Nath and Others 1992 Supp.2. SCC 312. The relevant part of the said order reads as under:-
Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.
9. On a consideration of all the circumstances of the case, we think that the order of the High court cannot be allowed to remain undisturbed. We allow these appeals, set aside the judgments of the Division bench in the letters patent appeals as also the orders of the learned Single Judge in the writ petitions in the High court.
10. Learned counsel for the respondents, however, said that though the legality of the refusal of the benefit of an order under the proviso to Section 39(5) had been raised before the High court, that question receded to the background in view of the relief having been allowed on the main question touching the nature of the transactions. Learned counsel said that the former question yet remains to be examined. Learned counsel also submitted that the refusal of the appellate authorities to exempt respondents from the deposit of the assessed tax as a precondition to the entertainability of the appeals was unsupportable and that in their present straitened financial circumstances it will not be possible for the respondents to avail themselves of the right of appeal.
11. It appears to us that having regard to the circumstances that we are considering this matter after lapse of several years it would neither be necessary nor appropriate to remit the matter to the High court to examine the question whether the refusal of the appellate authorities to give to the respondents a benefit of the proviso to Section 39(5) was legal or not. It appears just that respondents should be enabled to have the benefit of the right of appeal and that we should, as a rough and ready measure, determine the conditions on which relief under the proviso should be given to them. We, accordingly, set aside the orders of the appellate authorities declining or confirming, as the case may be, the refusal of the benefit of an order under said proviso and direct that the appeals filed by the respondents before the first appellate authority be now restored and proceeded with on the merits in accordance with law, subject to the condition that the respondent, in each of the appeals, deposits a sum of Rs 5,000.00 towards the assessed tax and furnishes security in respect of the balance of the tax to the satisfaction of the said first appellate authority within two months from today.
12. The appeals shall be taken up for consideration of the merits and dealt with and disposed of in accordance with law after compliance with these conditions.
21. We have heard the learned counsel for the Applicant Shri Yogesh Sharma and the learned counsel for the Respondents Shri Rajinder Khatter. The Applicant has alleged procedural and substantive lapses on the part of the different authorities in the disciplinary proceedings initiated against him. The first procedural lapse alleged by him is the denial of benefit under Rule 24(2) of the Railway Servants (Discipline and Appeal) Rules, 1968. According to the said Rule, a group C Railway servant who has been dismissed, removed or compulsorily retired from service may, after his appeal to the appropriate appellate authority has been disposed of, and within 45 days thereafter, apply to the General Manager for a revision of the penalty imposed on him. In this application, he may, if he so chooses, request the General Manager to refer the case to the Railway Rates Tribunal for advice before he disposes of the revision petition. On receipt of such a request, the General Manager shall refer the case to the Chairman, Railway Rates Tribunal for advice sending all the relevant papers. On receipt of the revision application by the General Manager, or on receipt of advice from the Railway Rates Tribunal, as the case may be, the General Manager shall dispose of the application in accordance with the procedure laid down in Rule 25 and pass such orders as he may think fit. However, according to the first and second proviso to the said rules, the said rules will not apply in cases where the General Manager to the Railway Board are the Appellate Authority and where a revision application has been disposed of by the General Manager, no further revision shall lie under Rule 25. In the present case, the Disciplinary Authority of the Applicant was Divisional Traffic Manager and the Appellate Authority was the Senior Divisional Commercial Manager. The Revision Petition submitted was to the Chief Traffic Manager but it was decided under Rule 25 of Railway Servants (Discipline and Appeal) Rules, 1968 by the Additional Divisional Railway Manager modifying the punishment of removal from service to compulsory retirement. It is in this circumstance that the Applicant sought revision of the aforesaid order under Rule 24(2) of the Railway Servants (Discipline and Appeal) Rules, 1968. It is a special provision incorporated in the aforesaid rules in the year 1989. Sub Rule (2) and (3) of Rule 24 is a special dispensation in respect of non-gazetted staff belonging to Group C and Group D respectively. By the said rules, the Group C and D employees who have been inflicted with three types of major penalties, namely, dismissal, removal and compulsory retirement from service can make an additional revision petition, apart from the normal revision petition under Rule 25 thereof, directly to the General Manager and the General Manager himself is to consider and dispose of it in a manner provided in the said rules. The only exemptions to this rule are (i) the appellate orders already passed by the General Manager himself or the Railway Board and the General Manager has already disposed of the revision petition of a delinquent Railway employee under the provision of Rule 25 of Railway Servants (Discipline and Appeal) Rules, 1968 which provides as under:-
25. Revision -
(1) Notwithstanding anything contained in these rules -
(i) the President, or
(ii) the Railway Board, or
(iii) the General Manager of a Railway Administration or an authority of that status in the case of a Railway servant serving under his control, or
(iv) the appellate authority not below the rank of a Divisional Railway Manager in cases where no appeal has been preferred, or
(v) any other authority not below the rank of Deputy Head of Department in the case of a Railway servant serving under his control ( may at any time, either on his or its own motion or otherwise, call for the records of any inquiry and revise any order made under these rules or under the rules repealed by Rule 29, after consultation with the Commission, where such consultation is necessary, and may )
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or
(d) pass such orders as it may deem fit.
22. Therefore, the Annexure A-4 order of the Appellate Authority dated 22.11.2011 refusing to entertain the Annexure A-7 petition of the Applicant dated 13.09.2011 seeking revision under Rule 24 (2) of the Railway Servants (Discipline and Appeal) Rules, 1968 is wrong and illegal.
23. Now, the question is whether it is appropriate and it is in the interest of justice, for the Tribunal to remit the case to the Respondents directing them to entertain the aforesaid Annexure A-7 petition of the Applicant dated 13.09.2011 and dispose of it in the manner prescribed in the aforesaid rules. First of all, it is seen that the charge against the Applicant relates back to the year 2004. The proceedings continued for seven years which culminated in compulsorily retiring him from service on 26.08.2011. One of the grounds of challenge to the aforesaid order is that the photocopies of the relied upon documents supplied to him were not readable and without considering his representation for providing him legible copies, the Disciplinary Authority went ahead with the appointment of the Inquiry Officer and the Presenting Officer which is against Rule 9(7) of Railway Servants (Discipline and Appeal) Rules, 1968. According to the said rules, the disciplinary authority shall deliver or cause to be delivered the relied upon documents. When the rules says so, it goes without saying that the Disciplinary Authority should have made available readable copies of the documents. The contention of the Respondents that the Applicant inspected the relied upon documents on 27.09.2006, i.e. during the enquiry proceedings and after the Enquiry Officer was appointed on 08.12.2004 will not meet the requirement of Rule 9(7) ibid. Non-supply of readable copies of the documents amounts to non-supply of the copies of the documents. In the reply statement, the Respondents submission is that the charge sheet and the relied upon documents were issued to the Applicant on 01.10.2004 and the applicant received them on June 2004 which is obviously not correct. As held by the Apex Court in Kashinath Dikshitas case (supra), non supply of documents amounts to denial of opportunity in exonerating himself.
24. The other ground taken by the Applicant was that he requested the Disciplinary Authority to supply him five additional documents in its custody which are necessary to defend his case. The IO has also certified its relevancy in the enquiry. But admittedly, the Disciplinary Authority gave only two of these documents and denied the rest without any explanation. The aforesaid fact has been stated by the Applicant in his appeal also. The Appellate Authority also did not consider this aspect. While the Disciplinary Authority are trying to prove the charge against the delinquent officer based on the official documents in his custody, he has also got the equal right to have those official documents which would help him to disprove the charge. In similar circumstances, the Apex Court has quashed in proceedings in Chitranjan Chaudharys case (supra) and Saroj Kumar Sinhas case (supra) etc. The view has been followed by Honble High Court of Delhi in A.K. Duttas case (supra) and this Tribunal in Azizaullah Khans case (supra).
25. Yet another aspect of this case is that the IO appointed in this case, Shri Anil Bishnoi is an ex-vigilance officer. The Applicant has made representation against the biased attitude of the IO. But the Disciplinary Authority ignored on the plea that at the time of holding the enquiry, he was not working with the Vigilance Department. It is an undisputed fact that the charge leveled against the Applicant was based on the check conducted by the Vigilance Branch on 25.5.2004. As held by the Apex Court in Prakash Kumar Tandons case (supra) to be fair to the delinquent officer, the IO should not have been an officer of the vigilance department. It is immaterial that the said officer was not part of the valiance branch at the time of holding the enquiry. It is also on record that the Applicant has made several complaints against the biased attitude of the IO to the Disciplinary Authority. But all of them were ignored. The Respondent being a large organization and there were large number of officers available for appointment as Inquiry Officer, the choice of the Respondent for an officer who was part of the Vigilance Branch till recently was quite unfair. In a departmental enquiry proceeding, fairness is a essential ingredient of natural justice.
26. The other contention of the Applicant was that there was no evidence against him to sustain the charges. This is quite evident from the order of the CTM, New Delhi who was the Revision Authority dated 08.06.2010. While the Disciplinary Authority and the Appellate Authority have blindly followed the enquiry report alleged to be a biased one, the revision authority critically analyzed the entire case file including charges/enquiry proceedings, documents on record, evidences available on record, report submitted by the IO, the revision petition filed by the Applicant and the comments of the General Manager/Vig. The said authority has conceded that there were several procedural lapses on the part of the prosecution including the fact that the demand of additional documents for defence was not acceded in the enquiry. As regards the Charge No.1, the revision authority has come to the conclusion that the Applicant was found responsible only to the extent that he generated/printed ticket for Ambala to Bombay Central on blank ticket No.14538373 and issued to the passenger and the said version of the Applicant was correct. As far as the 3rd charge was concerned, the Revisional Authority held that there was no evidence to prove that the demonstration was got conducted from CO as there was no witness appeared to have been recorded. The Revision Authority has also accepted the contention of the CO that the prosecution witness failed to prove what ingenious method was adopted by him. The only charge proved was that there was excess cash of Rs.179/- which has since been deposited vide money receipt No.433528 by the CO (Applicant).
27. However, the most blatant violation of the principles of natural justice in the case is the open interference of the Vigilance Department in the present case. The Appellate Authority under Rule 22 (2) of Railway Servants (Discipline and Appeal) Rules, 1968 has gone through the Appeal submitted by the Applicant against the orders of the Disciplinary Authority imposing the punishment of removal from service. It has also gone through the case file, the charges, enquiry proceedings, documents/evidences available on record, report submitted by the IO, comments of Applicant thereon. Thereafter, the Disciplinary Authority came to the conclusion that the prosecution witness could not produce any evidence as to how the Applicant allegedly used ingenious method to print the Ticket No.14538373 wrongly by keeping the blank and how he passed on printed material of Ticket No.14538374 on Ticket No.14538373. The PW-5 mentioned that what ingenious method was adopted by the Applicant we could not notice. However, according to the Disciplinary Authority the charge regarding the excess of Rs.179/- found in the Government cash of Applicant he has taken plea that the vigilance during check did not take the accountal of Rs.200/-, i.e., imprest Cash and as such there was a shortage of Rs.21/- in his Govt. Cash, but during the enquiry the Applicant has not given any evidence of it. Hence above pleas taken by the Applicant are not acceptable. Therefore, Disciplinary Authority decided to reinstate the CO at the grade of Rs.3200-4900 for a period of 10 years with cumulative effect including cash debar for a period of 10 years also. But the Disciplinary Authority, being an independent statutory authority failed to pass appropriate orders reinstating the Applicant as observed above. Instead, he played a subservient role and sent the said proposal to the General Manager (Vig.). The General Manager (Vig.) also did not exercise self restraint considering the fact that over the orders of the authoritys the disciplinary proceedings, he had no role or authority to pass any order neither concurring nor opposing. But the General Manager (Vig.) returned the proposal of the Disciplinary Authority stating categorically that it was not acceptable to it because the proposed punishment is not adequate in the light of the gravity of the offence committed by the Applicant while on duty. The General Manager (Vig.) has also directed the Appellate Authority to have the matter re-examined. The Appellate Authority has again stuck to his views but again it failed in its statutory duty to pass its own order. Instead, against the statutory requirement, it again sent the case to the General Manager (Vig.) for his concurrence. Now, the General Manager (Vig.) having failed to prevail upon the Appellate Authority asked the DRM Office to put up the matter before the next competent authority for revisionary action. Finally, the Appellate Authority succumbed to the illegal directions of the General Manager (Vig.) and vide the impugned order dated 18.11.2009 and agreed with the orders of the Disciplinary Authority removing him from service. But the Revisionary Authority, exercising provision under Rule 25 of the Railway Servants (Discipline and Appeal) Rules, 1968, vide the impugned order dated 26.08.2011 reduced the said punishment to that of compulsory retirement. Thus it is seen that aforesaid impugned orders dated 18.11.2009 and 26.08.2011 are not independent statutory orders of the Appellate and Revisional Authorities but they are only signatories to them under the directions of the General Manager (Vig.) and, therefore, illegal. The Applicant, therefore, invoking the special provision under Rule 24 (2) of the Railway Servants (Discipline & Appeal) Rules, 1968 submitted his representation to the General Manager but the same was rejected arbitrarily by the Appellate Authority itself vide order dated 22.11.2011 that it was not maintainable.
28. In the above facts and circumstances of the case, we are of the considered view that it is not a fit case to remit to the Disciplinary Authority to start the enquiry from the stage of appointing an Enquiry Officer again. Consequently, this OA is allowed and the impugned charge sheet dated 01.10.2004, Enquiry Officers report dated 26.03.2007, the Disciplinary Authoritys order dated 03.06.2008, Appellate Authoritys order dated 18.11.2009, Revisional Authoritys order dated 26.08.2011 and final order of the Respondents dated 22.11.2011 are quashed and set aside. The Respondents shall reinstate the Applicant in service with all consequential benefits. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order. No costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh