Rajasthan High Court - Jaipur
Union Of India (Uoi) And Ors. vs Poosa Ram And Anr. on 22 November, 2001
Equivalent citations: 2002(3)WLN372
JUDGMENT Balia, J.
1. Heard learned counsel for the parties. This petition is by Union of India challenging the order passed by the Central Administrative Tribunal dated 23rd July 1998 allowing the Original Application filed by the respondent No. 1, Poosa Ram. The respondent was subjected to disciplinary enquiry under Railway Servant (Discipline and Appeal) Rules, 1968. The charge levelled against the respondent was that a complaint had been received from on Sh. Sita Ram on 30.3.1990. A trap was laid by CBI Inspector and the respondent was caught red handed accepting a bribe of Rs. 75/-from Sh. Sita Ram and that was recovered from the left side of his trousers' pocket. For the conduct of inquiry into the said charge of the memorandum dated 13 March 1991, one Dr. Atla Mohd was appointed as an Inquiry Officer, who was the then ADMO, Northern Railway Hospital Jodhpur. Said Atta Mohd submitted his inquiry report (Exb.5) dated 10.2.94, holding the incumbent guilty of the charges levelled against him and submitted it to the Disciplinary Authority viz. Divisional Medical Officer for further action.
2. Against the inquiry report the delinquent officer raised certain objections' which included the allegation that inquiry has been conducted without opportunity to cross-examine the witnesses, whose statements were made available to him. In his objection (Annex. 7) dated 24.3.1994, the delinquent specifically alleged summing up that, 'the worthy inquiry officer might be under fear of SPE/CBI case hurried up in concluding the inquiry.'
3. The Disciplinary Authority vide his order (Annexure-8) dated 13.4.94 upheld the objection raised by the delinquent that during the course of inquiry opportunity of cross-examination of the complainant Shri Sita Ram & Witness Dr. V.K. Gupta has hot been given by the Inquiry Officer and neither any remarks have been recorded by the Enquiry Officer for his deviation from procedure of the disciplinary inquiry. In view thereof he also recorded that if the delinquent railway servant and his defence helper were at fault for not attending the D&AR enquire on the fixed dates, without any genuine and convincing reasons then such remarks should have been given by the Enquiry Officer about the same but no such remarks have been recorded by the E.O. Thus accepting those contentions about the violation of principle of justice, which was admitted by the Disciplinary Authority, that Sh. Sita Ram and Sh. Poosa Ram and his defence helper and witness V.K. Gupta, all have been called in one sitting for cross-examination and the Enquiry Officer was directed to complete the enquiry in above respect giving the delinquent railway officer reasonable opportunity to defend his case and to submit the enquiry report after completing the same at the earliest.
4. In pursuance of this order when the Enquiry was to be completed in the light of directions issued by the Disciplinary Authority, the then Enquiry Officer Dr. Atta Mohd. excused himself from continuing as an Enquiry Officer on the ground that delinquent has expressed his doubts about his independence in his representation that the Enquiry Officer is probably under the influence of CB1 Officer. In such position, is not fair and according to law of justice to conduct enquiry into the case again by him. He therefore, requested to nominate another Enquiry Officer. This letter was sent by the Enquiry Officer Dr. Atta Mohd. on 2.5.1994. Acting on that, the Disciplinary Authority by conveying, that since delinquent employee has objected to enquiry conducted in the vigilance case and the validity of his report on the basis of violation of natural justice, nominated Sh. N.K. Khandelwal, as another Enquiry Officer lo complete the enquiry and make the report.
5. Thereafter, the enquiry was conducted by said Mr. Khandelwal in which the delinquent participated without any objection and submitted his report Exb. 12, dated 10.2.95 again coming to the same conclusion that the charge levelled against the delinquent officer is proved.
6. The findings of the enquiry report were accepted by the Disciplinary Authority after giving opportunity of hearing to the delinquent and considering the objections raised by him to the finding recorded by the Enquiry Officer, imposed the punishment of removal from service vide order dated 5.5.95, Exhibit-15.
7. Appeal against which was also dismissed by the appellate authority, the Chief Medical Superintendent, Northern Railway, Jodhpur vide Exb. 18, dated 18.8.95.
8. This led to filing of Original Application before the Central Administrative Tribunal. Amongst other contentions it was contended by the delinquent before the Tribunal that in terms of Rule 10(1) and 10(2) only the same Enquiry Officer could continue and make report against whose report has not been accepted by the Disciplinary Authority where the disciplinary authority himself is not the enquiry officer and matter has been sent back to him. No power vest in the Disciplinary Authority to appointee another E.O. and it ought to be conducted by the same officer. As the Enquiry Officer has proceeded contrary to the rules, the entire enquiry has been vitiated.
9. The aforesaid contention of the delinquent officer was accepted by the tribunal and the order of the punishment has been set aside on that ground alone by reinstating the delinquent with all consequential benefits except the arrears of emoluments for the period during which he remained out of employment.
10. Having heard the learned counsel for the parties we are of the opinion that the order of the tribunal is erroneous on the face of record and is contrary to the rules of holding disciplinary enquiry in accordance with principle of natural justice by adopting fair and just procedure. It also ignores that the power to appoint another Enquiry Officer in place of the one already continuing with the enquiry and power to remit the case for further enquiry and make report thereon are two distinct matters. It is nowhere envisaged that any order passed in Sub-rule (2) of Rule 10 that further enquiry should be conducted by the very same officer whatever may be the circumstances. The same enquiry officer may not be available for carrying out the directions of Disciplinary Authority or Appellate Authority on remand. If contention of respondent was to be accepted, it will amount to hold that where the Enquiry Officer has defectively conducted the enquiry and submitted his report to the disciplinary authority which is not accepted on the objections raised by delinquent officer and the matter is remitted back, the enquiry itself must come to a close because according to learned counsel for the respondent, in such cases another enquiry officer cannot be appointed to conclude that enquiry.
11. In fact the provision envisage the change of enquiry officer at any stage of the proceedings as mentioned in Rule 9 (24) which reads as under:
"Whenever any inquiring authority after having and recorded the whole or any part of the evidence in an inquiry case to exercise jurisdiction therein and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor, and partly recorded by its predecessor, and partly recorded by itself:
Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine, cross-examination and re-examine any such witnesses as hereinbefore provided."
12. Thus the inquiry officer can be changed at any stage while he has not completed his inquiry. Once he completes an inquiry and submits his report to the disciplinary authority and for any reason if the report is not accepted then the position reverts back that Inquiry has not been completed until the same is completed on remand in accordance with the directions of the disciplinary authority. It also envisages that wherever another inquiring officer is appointed, he shall continue from same stage wherever it has not been left by his predecessor and evidences so recorded by his predecessor can be read into. If he is of the opinion that in the interest of justice further examination of any witness is necessary it can record fresh evidences.
13. The contention of the learned counsel for the respondent is that since the earlier enquiring officer has completed the enquiry and submitted the report, there was no stage at which the enquiring officer could be altered. The contention is fallacious in as much as once the said enquiry report has not been accepted by the disciplinary authority and matter has been sent back for conducting further inquiry and submitting the report, the stage of the completion of enquiry comes to an end, it remains incomplete until completed as per directions of disciplinary authority.
14. Moreover, the respondent has participated in the inquiry conducted by Mr. Khandelwal after his appointment was made way back in 1994 until its conclusion by him without demur and without raising any objection.
15. In these circumstances the appeal is allowed, the order passed by the tribunal is set aside and it is directed to hear and decide the Original Application filed by respondent delinquent officer on merit. No costs.