Central Administrative Tribunal - Jodhpur
Ram Prasad Meena vs Union Of India (Uoi) And Ors. on 31 May, 2004
Equivalent citations: 2005(1)SLJ296(CAT)
ORDER J.K. Kaushik, Member (J)
1. Shri Ram Prasad Meena, has filed his O. A. under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
(A) that by an order or direction in the appropriate nature, the order dated 31st July, 2002 (Annex A/1) passed by the respondent No. 1- Ministry of Railways, Railway Board, Government of India, New Delhi may kindly be quashed and set aside with all consequential benefits.
(B) that further the respondents Railway Administration may kindly be directed to take drastic action against the respondents No. 5 to 10, (C) that further the stricture may kindly be passed against the respondent No.4 to 10. Accordingly, the drastic action may kindly be initiated or taken by the respective department.
(D) that any order or direction which this Hon'ble Tribunal deem fit and proper, in the facts and circumstances of the case, may kindly be passed in favour of the applicant.
(E) that the cost of the original application may kindly he awarded in favour of the applicant.
2. Skipping up The superfluities, the material facts considered necessary for resolving the controversy involved in this case are that the applicant was appointed as Assistant Commercial Manager (Goods) (for short ACM Goods), at the Central Railway Divisional Office at Bhusawal vide order dated 12,03.96 On 30lh March, 1996, an incident occurred. One Shri U.M. Baviskar (respondent No.6) informed the applicant that a cement consignment was received in a damaged condition for which the concerned party was insisting for 100% damage certificate. The applicant visited the Goods shed at Nasik Road, and carried out a detailed inspection and circulated the inspection note to the concerned party, which did not agree. Thereafter, the cement sample was drawn and sent to the Divisional Office, for analysis. The Chief Claims Officer had instructed that cement samples were not essential and assessment may he granted on factual position. It has been averred that the said instructions were not consistent (sic 'inconsistent') with Para 1841 (h) of the Indian Railway Commercial Manual Vol. II as well as the circulars issued by the Central Railways. A complaint was lodged on which the applicant sought clarifications from the Chief Goods Supervisor. He received a message that he was empowered to issue and the same can he finalised at the Divisional level. Accordingly, the matter was referred to the Divisional Commercial Inspector (HQ) for making proper assessment.
3. The further case of the applicant is that the Chief Goods Supervisor, Nasik, had prepared his report, without following the correct procedure. The applicant came to know this through a letter issued by the Chief Supervisor, that the Consignee, Manikgarh Cement had already been paid the damage amount on the assessment made and settled by the Chief Goods Supervisor]. The applicant immediately informed the higher authorities that no further claims should be sanctioned to M/s Manikgarh Cement. The applicant was given a personal hearing by the Chief Commercial Manager and came to the conclusion that the applicant is not guilty. But the note sheets were not put up before the G.M, by the Senior Deputy General Manager. The applicant was issued S.F. 5 under Rule 9 of Railway Servant (Disciplinary & Appeal) Rules, 1968 (for brevity rules), vide memo dated 7.9.98, alleging two articles of charges. Along with the charge sheet list of documents as well as list of witnesses were also enclosed. The applicant denied the allegations and the Disciplinary Authority appointed Smt. Rekha Goel, CDI, (respondent No. 4) as Inquiry Officer. The Inquiry Officer did not follow the relevant rules and it took 9 months for completion of the inquiry. The applicant was compelled to approach the Jabalpur Bench of this Tribunal by filing O.A. No. 711/2000, which came to be disposed of with a direction to the authorities to complete the disciplinary proceedings within a period of 60 days. It has been averred that the inquiry was conducted in a most slip short manner. She was granted permission for taking several documents on record, which were not mentioned in Annexure 3 of the memorandum of charges. Similarly number of additional witnesses were examined, whose name did not find in the list of witnesses annexed to the charge sheet. The applicant was not granted any opportunity to inspect the documents before taking them on record, especially documents marked at SI. Nos. 15 to 19. Similarly photo slat copies were allowed to be exhibited despite the objection from the applicant, which resulted in gross prejudice to the defence of the applicant. In respect of the additional witnesses, statements were prerecorded and they confirmed that what was recorded was correct. The Inquiry Officer allowed the Presenting Officer to examine them and put leading questions to them. The witnesses were called to fill up the gaps. Certain irregularities and illegalities have been narrated in the pleadings. The further case of the applicant is that he was imposed with the penalty of reduction in pay by one stage in the same time scale of pay for a period of one year with cumulative effect vide letter dated 14.11.2000. The applicant preferred an exhaustive appeal to the Competent Authority and on appeal the penalty was modified to that of 'censure' on the advice of UPSC. The O.A. has been filed on multiple grounds narrated in Para 5 and its sub-paras from A to L. We are refraining from narrating the grounds here and the same shall be dealt with a little later in this order.
4. The respondents have resisted the claim of the applicant and have filed exhaustive counter reply to the O.A. Four preliminary objections have been adduced in the reply. The first is related to the impleading of the Inquiry Officer, Presenting Officer and witnesses etc., as party respondents. The second objection is the resultant fact of the first objection wherein it has been averred that the jurisdiction of this Tribunal cannot be invoked for getting negative relief, in as much as the applicant has prayed for negative relied for taking drastic action against respondents 5 to 10 and for passing strictures against the private respondents who have discharged their official duties. Certain details have been given regarding the habit of the applicant. The third objection is relating to certain vigilance cases that are pending against him. And the fourth one is regarding the scope of the judicial review of the Tribunal.
5. As regards the facts, the procedure for making the assessment for the damages have been narrated. Further details have been given to the facts relating to the issuance of charge sheet. Additional prosecution witnesses and additional documents were permitted by the Inquiry Officer before the closure of the proceedings as per Rule 9(1 8) of the Rules. The applicant was permitted to submit his additional documents. It is also averred that in departmental inquiries technicalities will not prevail unless the defence of delinquent employee is prejudiced. Thus the theory of prejudice, which covers the question of illegality, would not be applicable in the present case, as the applicant has failed to make out any case of prejudice caused to him. It is also submitted that the order passed by the Railway Board was after consul ting the UPSC. The grounds narrated in the O.A. have been generally denied.
6. A very exhaustive rejoinder, almost, equivalent to the pleading in the main O.A. has been filed. The reply to the preliminary objections is almost reiterating the facts and grounds mentioned in the O.A. It is averred that the respondents have not made any attempt to meet the allegations made by the applicant in the O.A.
7. We have heard the elaborate arguments advanced by Mr. S.N. Trivedi. learned Counsel for the applicant and Mr. Kamal Dave, learned Counsel for the official respondents i.e. No. 1 to 3 and have earnestly bestowed our anxious consideration to the pleadings and records of the case. We have also perused the disciplinary case file, which was made available by the official respondents.
8. Mr. Trivedi reiterated the pleadings of the applicant. We were taken through various documents finding part of records of this case. He has also laid enormous stress on the ground (hat the Inquiry Officer did not follow the due procedure of conducting the inquiry in as much as he travelled beyond his jurisdiction and allowed the Presenting Officer to produce additional witnesses as well as documents, which were not listed in the annexure to the charge sheet and used them in proving the charges. She neglected the objection of the applicant and facilitated the prosecution to have its own way by throwing the rules overboard. His defence was seriously prejudiced since the charges have been held as proved on the material so called in an illegal manner. The applicant did not commit any misconduct and it is also a case of no evidence. He has also contended that the applicant was not given reasonable opportunity to defend his case in as much as he was permitted to appear as a defence witness. He also contended that the whole exercise was to damage his service career. The genesis of the episode was the concerted effort of the staff and to this effect he has made us to travel through the UPSE advice. Due to the penalty of censure, his promotion could not be given since the same was in sealed cover which cannot be opened till one is fully exonerated.
9. Per contra, Mr. Kamal Dave while reiterating the defence of the respondents asset out in their reply, cited numerous judgments on the point of law especially regarding the scope of judicial review, theory of prejudice etc. He has contended that the applicant is in habit of making frivolous complaints and was faced with number of disciplinary cases, He himself is responsible for the whole matter. It is not a case of 'no evidence' and mere deviation from the technical rules of inquiry would not vitiate the inquiry since the same has not caused any prejudice to the defence of applicant, He was also given full opportunity to defend his case and no judicial review is warranted in this case.
10. We have considered the rival contentions and arguments put forward by the learned Counsel for both the parties. Before adverting to the legal and factual aspect of the matter, we propose to dispose of the peripheral issues regarding the preliminary objections raised on behalf of the respondents. Firstly, we find that no separate Vakalatnama has been filed on behalf of the respondents impleaded by name. Thus the respondents No. 4 to 10 remained unrepresented. The objection has been raised on behalf of the official respondents that the private respondents have been so impleaded as just to harass them. We are not in a position to accede to this objection since the private respondents did not choose to contest the case and unconcerned person can not raise such objection. Similar is the fate of second objection that jurisdiction of this Tribunal cannot be invoked for getting negative relief. Thus both these objections cannot be sustained and stand overruled. As regards the third objection which is relating to certain vigilance cases that are pending against him, the same has no relevance to the instant case and it is no objection in the eyes of law. And the fourth one is regarding the scope of the judicial review by the Tribunal, which we shall deal with in the subsequent para. Thus none of the preliminary objection can be sustained and all of them stand repelled.
11. Before adverting to the factual aspect of this case, we would like to notice the scope of judicial review by the Courts including the Tribunals which has been elaborated in number of decisions of Hon'ble the Supreme Court and some of them are in cases of Commissioner and Secretary to the Government and Ors. v. C. Shanmugam, (1998) 2 SCC 394 and in case of Union of India and Anr. v. B.C. Chaturvedi, (1995) 6 SCC 750. In these cases, their Lordships of Hon'ble the Supreme Court have held that the Tribunal cannot re-appreciate the evidence and substitute its own findings. While, there is no quarrel on the statement of law on the scope of judicial review, we are very clear in our mind regarding the scope of judicial review that we do not have any power to appreciate or re-appreciate factual aspect and to substitute our own judgment for that of the Competent Authority. It is only When the conclusion upon consideration of evidence, reached by the authorities concerned is perverse or suffers from patent error on the face of the record or is based on no evidence at all or the decision making process was faulty or the order is otherwise perverse, the intervention of the Court may be warranted. In the present case, we find that the decision making process was faulty in as much as the inquiry proceedings have not been conducted in accordance with the rules in force. Mandatory provisions of law have been thrown overboard. The penalty order has been passed exclusively on the basis of extraneous material that has been gathered by permitting the additional witnesses and additional documents, which were not listed in the Annexures III and IV, respectively, to the charge-sheet. Therefore judicial intervention has become essential in this case.
12. To appreciate the controversy, we also take judicial notice of Rules 9(17) and 9(18) of the rules, which deal with the procedure for recording the evidence adduced on behalf of the prosecution. The contents of the same are extracted as under:
"9(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 tore-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit.
"9(18). If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiring Authority may, in its discretion, allow the Presenting Officer, if any, to produce evidence not included in the list given to the Railway servant or may itself call for new evidence or recall and re-examine any witness and in such cases the Railway servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiring Authority shall give the Railway servant an opportunity of inspecting such documents before they are taken on the record. The Inquiring Authority may also allow the Railway servant to produce new evidence if it is of the opinion that the production of such evidence is necessary in the interest of justice.
Note: New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally."
13. Now adverting to the facts of this case, the Inquiry Officer on dated 30.3.99 conducted the preliminary hearing of the inquiry. The P.O. made a prayer for calling two witnesses in support of prosecution without indicating any reason what so ever and the I.O. without any question allowed the same. Similarly two more witnesses, namely Shri S.W. Shaikh Ismain Suleman and S.B. Jadhav, were allowed to be produced as a prosecution witnesses just in the name of proving a document as false, produced on behalf of the applicant (which was found to be genuine during inquiry). The documents were first ordered to he taken on record and then only their copies were supplied to the applicant. The Inquiry Officer has not indicated that such evidence i.e. additional witnesses/documents, were called for the reason that there was an inherent lacuna or defect in the evidence, which has been produced originally.
14. We fail to understand; rather find unable to persuade ourselves as to why the additional evidence was allowed much earlier than the production of original evidence. It would have otherwise also been infeasible to know any lacuna or defect in the evidence, which was yet to come to light. Therefore the question of invoking the Sub-rule 18 of Rule 9 of the Rules did not arise at all. We can safely concur the submissions of the learned Counsel for the applicant that the Inquiry Officer allowed such evidence only to fill up the gap of evidence, which she could per-calculate to be necessary for proving the charges. This is also otherwise evident from the perusal of this inquiry report since the findings arc mainly based on the version of the additional witnesses and the documents produced by them. We also find another startling factor in the instant case [hat such witnesses have submitted the documents and that too of which they themselves were the authors. If such documents formed part of official records and were to be used to substantiate the charges, the same would have been available and produced by the Disciplinary Authority itself. We also find that the objections of the applicant regarding invoking the Rule 9(18) of the Rules were dealt with in a slipshod manner and came to be thrown overboard without any cogent reasons.
15. We would have out rightly concluded the matter with the aforesaid discussion in favour of the applicant, but we have a reasonable hesitation in not doing so abruptly, since there is a strong objection/hurdle of prejudice of defence, from the side of learned Counsel for the respondent department. While we have taken the judicial notice of the law laid down by the Apex Court that the test of prejudice is required to be met and a departure from the statutory provision can not be made to stand on a higher footing than the prejudice test. Each case is to he examined upon its own context, facts and circumstances. As we have noticed above we were apprised that the applicant was given opportunity to cross-examine the additional witnesses and also the copies of the additional documents were also made available to him. The assertion seems to be attractive but the same is precarious and deceptive. We have already noticed that the findings of Inquiry Officer are primarily based on such additional evidence, which has become available from the additional documents as well as from the version and documents produced by such witnesses.
16. We do not think that in service jurisprudence, there can be any better example of causing of prejudice of defence, than the case in hand where the very charges arc proved on the basis of additional evidence, gathered by using the Rule 9(18) of the Rules. Thus it is axiomatic that the defence of the applicant was gravely prejudiced and the findings of Inquiry Officer stand vitiated and can aptly be termed as perverse. Thus the consequential penalty order as well as the appellate order cannot be sustained and deserves to be quashed on this ground alone.
17. We cannot leave the basic concept regarding the initiation of disciplinary case. The Disciplinary Authority on the basis of certain evidences, which may he gathered through preliminary inquiry or otherwise, prepares a charge sheet which contains four Annexure i.e. I, II, III and IV known as Articles of charges, Imputation of charges, List of relied upon documents and list of witnesses to substantiate the charges. The Inquiry Officer is required to arrive at the finding as to whether the charges are proved or not primarily on the basis of admissible evidence collected on the basis of the listed documents and the statement of listed witnesses; defence is also required to submit the list of documents and witnesses with the statement of defence. In other words, he is required to ascertain the truthfulness or otherwise of the imputations alleged against the delinquent employee. Thus there is hardly any place for the material, which is extraneous to the charge sheet. As envisaged in the Rule 9(18) of the rules ibid, specific provision has been made to deal in cases when there is some inherent lacuna or defect in the evidence.
18. The Inquiry Officer has to confine it to the documents and witnesses listed in Annexures III & IV, respectively. His job is not to travel beyond that parameters fixed above by the Disciplinary Authority. The Inquiry Officer is not required to fetch the evidence from here and there or at the sweet will of the Presenting Officer and prove the charges at any pretext. His function is like that of judge who has to discharge his duty without any favour or fear. But in the instant case, taking the entire sequence of facts and circumstances into account, we are find that the Inquiry Officer has not acted in a fair manner and given goodbye to the rules of conducting inquiry proceedings. We arc giving (his finding with full awareness knowing well that the Inquiry Officer who conducted the inquiry in this case, was holding the post of Commissioner for Departmental Inquiries; supposed to be an expert of inquiry rules.
19. Numerous judgments were sought to be referred on the point of law especially regarding the scope of judicial review, theory of prejudice etc. Some of them we have already referred, but the others we have refrained from mentioning since there was hardly any dispute on the law point. However, since we have reached loan inescapable conclusion that the inquiry proceedings are vitiated and the impugned orders cannot be sustained, we are refraining from delving or debating on other grounds raised in this original application.
20. The upshot of the aforesaid discussion is that there is merit and substance in the original application and the same stands allowed in part. The impugned order dated 31.7.2002 Annexure A/1, is hereby quashed and the applicant shall be entitled for all consequential benefits including release of promotional benefits, if otherwise, eligible. This order shall he implemented within a period of three months from the date of its communication. However, in the facts and circumstances, the parties shall bear their respective costs.