Central Administrative Tribunal - Delhi
S.K. Nagarwal vs The Union Of India Through on 1 September, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No. 4380/2011 Reserved on: 04.08.2015 Pronounced on:01.09.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) S.K. Nagarwal S/o Sh. R.D. Nagarwal R/o B-90, Siddharth Nagar, Near Jawahar Circle, Jaipur 302 017 Presently working as Dy. CE/Construction/ Design/Jaipur, HQ Office, North Western Railway. Applicant (By Advocate: Sh. Shailendra Shrivastava) Versus 1. The Union of India through General Manager, North Western Railway, HQ Office, Near Jawahar Circle, Jaipur 302 017. 2. Advisor/Vigilance/Railway Board, New Delhi 110 001. Respondents (By Advocate: Sh. V.S.R. Krishna) O R D E R By Dr. B.K. Sinha, Member (A):
The applicant, by means of the instant Application, filed under Section 19 of the Administrative Tribunals Act, 1985 has assailed the following orders:-
(i) Order dated 22.11.2011 issued by the General Manager/ N.W. Railway in violation of order dated 16.09.2011 rendered by Honble CAT/PB/Delhi in OA No.358/2011(Annexure A-1);
(ii) Letter dated 15.02.2010 issued by Director/Vigilance Railway Board, New Delhi [Annexure A-2];
(iii) Letter dated 02.03.2010 of General Manager (P)/ North Western Railway, Jaipur [Annexure A-3];
(iv) Part of para 4 of Railway Board letter No.E(D&A) 97 RG 6-72 dated 28.05.2001 (RBE 99/2001) [Annexure A-4]; and
(v) Para 2 of letter dated 25.04.2007 issued by Vigilance Officer of Railway Board [Annexure A-18].
2. The applicant has prayed for the following relief(s):-
(I) Quash and set aside
(a) Order dated 22.11.2011 issued by General Manager, N.W. Railway (Annexure A/1);
(b) Director/Vigilance/Railway Boards Order dated 15.02.2010 (Annexure A-2);
(c) Order dated 02.03.2010 (Annexure A-3);
(d) Para of para 4 of Railway Board letter No. E(D&A) 97 RG 6-72 dated 28.05.2001 (RBE 99/2001) to the extent that it cannot call for change by same authority of quasi-judicial orders passed under sub-rule 9(9)(a)(i) & (iv) of Railway Services (Discipline & Appeal) Rules, 1968 (Annexure A-4);
(e) Para 2 of Railway Board letter dated 25.04.2007 (Annexure A-18) (II) Direct the disciplinary authority to issue fresh charge sheet after taking action in accordance with speaking order dated 21.01.2010 passed by the disciplinary authority.
(III) Call for the records of the respondents in which impugned orders are conceived and issued.
(IV) Award cost in favour of the applicant.
(V) Any other relief as deemed fit by this Honble Tribunal in the facts and circumstances of the case.
3. The facts of the case, in brief, are that the applicant, a self-proclaimed whistle blower and Ombudsman, while posted as Executive Engineer, blew whistle against rampant corruption in a Railway Project in the year 2003. The applicant submits that he reported the case to C.V.C. and vigorously pursued the same resulting in advice of issuance of major penalty charge sheets against various officers. This made the respondents gang up against the applicant and they contrived to get a major penalty chargesheet issued against him vide letter dated 05.08.2008. The Articles of Charge are as under:-
Article of Charge I:
He recorded inflated measurements of works and also prepared the bills leading to excess payment for 758.414 cum of blanketing materials [i.e. @ Rs.498/- cum x 85% Rs.423.30/cum] against NS item No.1 in CC-IV bill of amounting to Rs.3,21,036.65 for works which had not been carried out by the contractor at site against the CA No.CON/EB/646 dated 22.08.2002.
Article of Charge II:
He neither ensured the execution of blanketing works as per RDSO specification of the CA No.CONEB/646 dated 22.08.2002 nor attempted to take approval of competent authority for any variance in CA condition in term of Para 3 (2) (ii) & (iv) of Indian Railway Service (Conduct) Rules, 1966.
Article of Charge III:
He neither ensured the submission of labour licence from contractor nor proposed any recovery on this account while processing the CC-I to CC-VI bill for payment to contractor during his tenure; which is violation of clause no.55(A) (2) & 55-A (5) of the GCC, 1998 edition, N.F. Railway and Para 2.2 & 7.00 of additional special condition of contract against the contract agreement no. CON/EB/646 dated 22.08.2002.
By the aforesaid acts, Shri Suresh Kumar Nagarwal, Dy. CE/C/Design/Jaipur under GM/NWR, Jaipur, the then XEN/CON/II/MLDT under GM/CON/MLG, N.F. Railway during period of April/2002 to May/2003 failed to maintain absolute integrity, devotion to duty and acted in a manner which is unbecoming of a Railway servant and thereby violated Rule No.3(1)(i), 3(1) (ii) and 3(1)(iii) and 3 (20(ii) & (iv) of Railway Services (Conduct) Rules, 1966. The applicant submitted his written statement of defence and preferred to challenge the Chargesheet by filing OA No.2528/2008, which was decided by the Tribunal, vide order dated 03.03.2009 directing the disciplinary authority to dispose of the proceedings within a period of six months (copy of the order not enclosed). The applicant, inter alia, alleged forgery, interpolations, violation of rules of natural justice and mala fide. On 24.08.2009, he requested the disciplinary authority to deal with the matter of forgery and get the documents examined by the forensic science experts. On 21.01.2010, the applicant submits, the disciplinary authority passed a quasi-judicial speaking order cancelling the chargesheet with intention to issue a fresh chargesheet following forensic examination of forged documents in RUD, deletion of charges no. 2 & 3 and removal of discrepancy in charge no.1 etc. The applicant further alleged that the Vigilance Officer illegally and mischievously withheld the communication of quasi judicial speaking order passed by one Vinay Mittal, GM, North-Western Railway on 20.01.2010 by not sending the file to the personnel department. The operative portion of the afore order dated 21.01.2010 is being extracted below for better clarity:-
In view of the above said discrepancies and there being a suspicion in respect of the veracity of the main Relied Upon Documents, action may be taken to get them checked through appropriate Agencies with required expertise in verification of suspected documents before these are made RUDs for substantiating this charge against the CO.
Certain other very relevant issues also appear to have been ignored in the investigation undertaken on NF Rly, i.e. vital relevant witnesses like Sh. B. Borah, the then JE/1/C/Drawing/Malda Town who used to check and certify the quantities recorded in the MB, and Sh. B. Chakraborty the then Head Clerk/Works under Dy.CE/CON/MLDT, who could have enabled much greater clarity on this case, have not been included in the list of witnesses.
In the light of the above deliberations, since the amendments are required in each of the article of charges and are considered as major amendments, therefore, in view of para 836 of IRVM it is decided to cancel the present charge sheet without any prejudice to initiation of subsequent action in the matter including issue of fresh charge sheet, if warranted. It has been submitted by the applicant that the Director/Vigilance/Railway Board, who was prejudiced towards him on account of whistle blowing activities in exposing one Ashok Gupta which ultimately led to vigilance raid being conducted against him and substantial property being recovered, illegally interfered with the order of the disciplinary authority dated 21.01.2010 by declaring the same as void with mala fide. The applicant further submitted that he has not been granted the Selection Grade as a consequence of which he has been drawing lesser salary to the extent of approximately Rs.25,000/- per month. The applicant had submitted a representation dated 23.11.2009 pointing out certain acts of corruption by different officers in that Zone including the arrest of one M.K. Khanna, Chief Vigilance Officer, who had been arrested red handed by the CBI while accepting bribe, and drawing attention of the illegalities involved in drawing up the chargesheet. The applicant further submitted that the chargesheet was about 1000 pages involving innumerable complex mathematical conclusions and, therefore, he was late only by 10 days in submitting his explanation for which his written defence statement had been rejected summarily without any reasoned and speaking order. He had further prayed for dropping the major penalty charge sheet on grounds of articles of charge No. 2 & 3 being in line with the vigilance report submitted by the Railway Board to the CVC and the analysis done by the CVC. The forged documents being relied upon by the respondents were to be examined by the Government Examiner of Questionable Documents (GEQD) or from the Central Forensic Science Laboratory and thus the same ought to be discarded; re-examination of charge no.1 etc. However, the respondents rejected the applicants representation vide order dated 02.03.2010, which was neither speaking nor reasoned one. For the sake of greater clarity, the afore order is being reproduced as under:-
The Disciplinary Authority & General Manager has considered your representation referred above and decided to continue the DAR inquiry in the subject case. You are requested to please participate in the inquiry and co-operate with the Inquiry Officer, so that the inquiry may be completed well in time.
4. Aggrieved, the applicant filed OA No. 358/2011 before the Tribunal challenging orders including order dated 15.02.2010 whereby the Director (Vigilance) held that the DA proceedings did not provide for entertaining representation from the charged officer after the departmental inquiry had begun to prematurely conclude the proceedings and drop the charges. However, the OA was disposed of vide order dated 16.09.2011 with the observation that the inquiry into the old chargesheet was not tenable and directed the respondents to reconcile the order dated 21.01.2010 and other impugned orders. For the sake of clarity, the relevant portion of the afore order is being reproduced as under:-
6. Having heard both the learned counsels, we are of the considered view that once the Disciplinary Authority had taken a view by a speaking and reasoned order dated 21.1.2010 to cancel the charge-sheet, though without prejudice to initiation of a subsequent action, including issuance of fresh charge-sheet, if warranted; the respondents present action in continuing with the same DE on the basis of the old charge-sheet is not found to be tenable. The least that is required is a consideration of the earlier OA and a reasoned decision by the competent authority regarding the future course of action. In other words, there is a need to reconcile the earlier order of the Disciplinary Authority dated 21.1.2010 and the present orders impugned in the instant OA.
7. Resultantly, without going into the merit of the case, the OA is disposed with directions to the respondents to have a re-look into the matter and pass a fresh reasoned and speaking order reconciling the order dated 21.1.2010 and the orders impugned in the present OA. This is to be done within a period of three months from the date of receipt of a copy of this order. We also make it clear that till the passing of an order as per our present directions, the departmental proceedings would remain stayed. Accordingly, the speaking order dated 22.11.2011 came to be passed by the respondents which was conveyed to the applicant vide order dated 23.11.2011 and the same is impugned in the instant Application. The afore speaking order considered the charges leveled against the applicant and his written defence statement as taken by him in OA No. 2528/2008 challenging the Memo dated 05.08.2008. The impugned order dated 22.11.2011 further mentioned that the applicant has filed a Civil writ Petition No.14040/2009 before the Honble High Court of Rajasthan at Jaipur seeking stay of the judgment dated 03.03.2009 of the Tribunal and quashing of major penalty chargesheet. The disciplinary authority considered the contention of the applicant as raised in his representation dated 23.11.2009 which has already been discussed earlier in this order. The respondents, in the impugned order, further held that as per the Railway Board Circular dated 27.06.1981, the disciplinary authority had the inherent power under Rule 9(9)(a) to review and modify the charges or drop some or all of the charges after receipt of written defence statement submitted by the accused, subject to consultation with CVC where action had been initiated on CVCs advice. As per practice, consultation with CVC is made through Railway Board and, hence, no infirmity was to be found with the process. It has also been mentioned therein that change in inquiry officer did not require the inquiry to be held de novo; the applicant had been given sufficient time to submit his written statement of defence and on his having failed to do so, the disciplinary authority decided to remit the case for enquiry as per Rule 9(9)(b) of D&A Rules, 1968. The speaking order further rebuts the allegations of the applicant regarding charges no. 2 & 3 which were not advised to be levied by the CVC and submitted that it is imperative as per OM dated 25.04.2007 that all charges should be included in the chargesheet. It has also been recorded in respect of the charge of documents being forged that to see the adequacy and reliability of the evidence is in the purview of the inquiry officer.
5. The respondents have filed their counter affidavit denying all the averments made in the OA and by and large supporting the contentions recorded in the reasoned and speaking order dated 22.11.2011. The major point submitted by the respondents is that the order of the Tribunal dated 16.09.2011 had not struck down the charge sheet but only directed that it be reconciled. This exercise had already been done as per order dated 21.01.2010 and it was found that in view of allegations and facts mentioned therein, the charges need to be pressed and decided at the level of the enquiry officer. The respondents have also reiterated the point relating to the written defence statement being received late leaving no room for the disciplinary authority except to appoint the enquiry officer and that the genuineness of the documents are only to be verified on the floor of the enquiry. It has been further submitted that as per the Railway Board Circular dated 25.04.2007 all irregularities need to be included in the chargesheet. The respondents have also refuted the stand of the applicant that the disciplinary authority is bound to follow the advice of the CVC or the vigilance and has relied upon the decision of the Chandigarh Bench of this Tribunal in OA No.428-PB-2001 to contend that if leniency is resorted to in one case, it is not necessary that it should be resorted in other cases as well. The respondents have reiterated that the enquiry should be allowed to undergo its prescribed course in order to establish the veracity of the charges.
6. The applicant has filed a rejoinder reiterating the averments made in the OA. He has also denied any consultation with the CVC.
7. We have carefully gone through the pleadings as also the documents so adduced by the rival parties and the departmental file produced by the learned counsel for the respondents. We have also patiently heard the arguments advanced by the respective learned counsel for the parties. The only issue that is to be determined by us is as to whether the chargesheet deserves to be quashed on account of non re-conciliation as per the directives of the Tribunal in OA No. 358/2011 (supra).
8. We start our enquiry by considering as to what is the scope of judicial intervention in departmental enquiry? It has been considered in a series of decisions by the Honble superior courts as well as by this Tribunal. The Tribunal in the case of Kum Abnuj Vs. Union of India (OA No. 2055/2010) decided on 24.12.2014 (Manu/CA/0731/2014) has examined the matter in depth. It has been held therein that the scope of judicial intervention in the departmental inquiry is indeed limited and is confined to only where the findings are perverse i.e. they have been arrived at by ignoring and excluding relevant materials or by taking irrelevant inadmissible matter into account. This has been supported by this very Bench in Dhirendra Khare Vs. Central Board of Direct Taxes (OA No. 1606/2014) that the Tribunals/Courts being not superior appellate authorities are not to substitute their opinion for the findings arrived at by the inquiring officer/DA on detailed appreciation of evidence on record. They could only interfere with the punishment where the order challenged reflects any violation of rules of natural justice or malafide or where the order of punishment is disproportionate. This stands further supported by the pronouncements of the Honble Supreme Court in Chander Kumar Chopra Vs. Union of India & Ors. (2012) 6 SCC 369, Union of India & Ors. Vs. Shivendra (2003) 6 SCC 539, Pala Singh Tanc Vs. Union of India, Kuldeep Singh Vs. Commissioner of Police (1999) 2 SCC 10 etc. In the instant case, we take cognizance of the fact that there has been no departmental proceeding, rather order of punishment had been passed under scope of Rule 10 of AIS (D&A) Rules, 1969. Hence, the scope of judicial inquiry is reduced further. To our mind, the scope of judicial inquiry can be summed up as under:-
(i) Where the charge-sheet has not been approved or the order of punishment not made by the competent authority.
(ii) Where the rights of natural justice have been violated.
(i) Where the order is hit by malafide.
(iv) Where the punishment inflicted is disproportionate to the gravity of the act committed by the applicant.
9. We find that the applicant leveled allegations of corruption against one Ashok Gupta, who was the General Manager, but he has not been impleaded individually as a party. We also take into account the fact that the relevant order dated 21.01.2010 was passed by one Vinay Mittal, GM, NWR, who was later elevated to the post of Chairman, Railway Board. In this regard, we have called for the file and having examined the same found that though it was one Vinay Mittal who had issued the speaking order dated 21.01.2010, the file, which has been submitted, relates to the period prior to 2010. Therefore, it is not very clear from the notings of the file that what transpired between the recording of the speaking order dated 21.01.2010 and issuance of the impugned order dated 22.1.2011. However, we find that the Tribunal, while passing the order dated 16.09.2011 in OA No. 358/2011 for reconciling the orders had the option to quash the chargesheet altogether as the disciplinary authority had taken a view to cancel the chargesheet by speaking and reasoned order dated 21.01.2010. Instead, the Tribunal has not taken this view and rather directed the respondents to look into the matter and pass a fresh speaking and reasoned order reconciling the order dated 21.01.2010 and the impugned order dated 02.03.2010 which was based upon the order dated 21.01.2010, within a period of three months from the date of receipt of that order. Thus, the ball has been placed in the court of the disciplinary authority once again to take a fresh decision in view of the above conflicting position between the order dated 21.01.2010 and 02.03.2010. The Tribunal deliberately did not exercise the option to quash the chargesheet altogether, though it did hold that the articles of charge nos. 2 & 3 were untenable. We glean from the order that refusal to quash the chargesheet was on account of gravity of the charges.
10. We are of the considered view that as it has been described earlier in preceding paragraphs of the order, quashing of chargesheet only takes place under exceptional circumstances. A chargesheet may be good or bad; it may bear serious or like allegations; it may be adequately supported by documentary and other evidence or may not be supported at all, it is for the inquiry officer to consider these issues and to take a decision. Where a chargesheet has been poorly drafted or is not supported by facts or is bad in law otherwise, it does not get substantiated during the course of the departmental enquiry. Here, it is significant to take into account that the plea of the applicant is not for quashing the chargesheet altogether, but it is for issuing a reconciled chargesheet. One thing that we fail to understand is as to whether it is for the charged officer to have a chargesheet issued to his liking. If a chargesheet is bad, unsupported by evidence, incorrect, without documentary evidence, based upon wrong facts, it is so much better for the charged officer as he could easily rebut and disprove the allegations contained in the chargesheet. We cannot and do not conceive a situation where a chargesheet is required to be reconciled to the liking of the charged officer. In the impugned order, the competent authority, after having considered all the points including those raised by the applicant in his representation, has taken a view that charges are not to be altered and the points raised by the applicant were not sustainable with reasons and justified.
11. In conclusion, we find that the points urged by the applicant for reconciling the chargesheet would have better served in a case of quashing of the chargesheet. They could still be useful at the time of the inquiry. However, the Tribunal is not in a position to direct that chargesheet be issued or not issued. It is for the competent authority to take a considered view in this regard. We find that the view taken by the respondent on 21.01.2010 had been considered in light of the directives of the Tribunal in OA No. 358/2011 (supra) and has been left to the disciplinary authority for taking a decision to continue with the departmental proceedings.
12. In totality of facts and circumstances of the case, we are of the considered view that the applicant has no case at this stage for reconciliation of the chargesheet and dropping some or all of the charges, as that stage would come at the time of departmental inquiry or beyond. With this, finding no merit in the OA, the same stands dismissed with no order as to costs.
(Dr.B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/