Central Administrative Tribunal - Bangalore
K. Prakasha vs The Divisional Safety Officer And Ors. on 17 April, 2003
Equivalent citations: 2003(3)SLJ129(CAT)
ORDER Mukesh Kumar Gupta, Member (J)
1. Sri K. Prakasha, Pointsman Grade-I, Kyatsandra Railway Station in the present O.A. under Section 19 of the Administrative Tribunals Act, 1985 seeks quashing of charge memo dated 28th September, 1998 (Annexure-A4), order dated 3.3.1999 (Annexure-A1) imposing penalty of dismissal from service and orders dated 21.6.1999 (Annexure-A2) 17.11.2000 (Annexure-A3) passed by the Appellate and Revisional Authorities respectively upholding the said penalty order dated 3.3.1999.
2. Vide charge memo dated 28th September, 1998 it was alleged that the applicant, Gateman while on duty at level crossing Gate No. 35 C at KM 62/3-4 between HHL and KIAT station on 6.1.1998 failed to close the gate properly and secure the lifting barrier of the LC which is the normal position of the gate and deserted the place of duty without permission, keeping the gate open for the road traffic without even planting danger flags in centre of the track on either side of the LC which resulted in the light engine WDM 2A/ 16549 hitting into an autorickshaw No. KA 06/7562 and thus killing all the 6 occupants in the autorickshaw. Since the charge was denied by the applicant vide representation dated 18.10.1998, an oral inquiry was held and the Inquiry Officer after holding the oral inquiry submitted his report holding the aforesaid charge as proved. The said inquiry report was supplied to the applicant vide letter dated 21.1.1999 and the applicant submitted his representation dated 21.2.1999. Taking into account the charge-sheet dated 28th September, 1998, the show cause memo dated 21.1.1999 and reply dated 21.2.1999 submitted by the applicant to memo dated 21.1.1999, the Divisional Safety Officer, SBC, Bangalore vide order dated 3rd March, 1999 agreeing with the findings of the Inquiry Officer, imposed the penalty of dismissal from service. Being aggrieved with the said penalty order dated 3rd March, 1999, applicant submitted a detailed appeal on 24.3.1999 wherein he specifically expressed his desire "to be heard in person." The Appellate Authority without considering this request of the applicant, rejected the applicant's appeal vide order dated 21st June, 1999 in terms of Rule 22(2) of Railway Servants (Discipline and Appeal) Rules, 1968. Thereafter, the applicant submitted detailed revision petition dated 3rd August, 1999 to the Chief Operations Manager, Chennai being the Revisional Authority and the said Revisional Authority also dismissed the said revision petition vide order dated 17.11,2000.
3. A charge memo dated 28.9.1998 was issued under SF 5 by the Divisional Safety Officer, Bangalore. It would be relevant at this stage to reproduce the same which reads as under:
"Sri K. Prakash, Gateman while on duty at Level Crossing Gate No. 35-C at KM 62/3-4 between HHL and KIAT Station on 6.1.1998 failed to close the gate properly and secure the lifting barrier of the LC which is the normal position of this gate and deserted the place of duty without the permission, keeping the gate open for the Road traffic without even planting danger flags in centre of the track on either side of the LC which resulted the light engine WDM 2A/16549 hitting into an Autorickshaw No. KA 06/7562 and thus killing all the 6 occupants in the autorickshaw.
Thus Sri K. Prakash, Gateman who was working at LC No. 35-C at KM 62/ 3-4 on 6.1.1998 violated the following Rules;
1. Para-A.3.4, A.3.5, A.3.6 of SWR No. 34 of 19.3.1996 with Correction Memo No. 2 of 28.8.95 of KIAT Station.
2. GSR 2.06, 2.08(2) 2.09, 2.11, 16.3 and 16.10 and
3. Contravened Rule 3(i)(ii) of Railway Service (Conduct) Rule, 1966."
4. The said charge memo was received by the applicant on 7.10.1998 and vide representation dated 18.10.1998, the charge contained therein were denied. The applicant pointed out the deficiency in the locking system and also stated that he may be permitted to take extracts from specified documents. It was also mentioned therein that he will submit the reply after perusal of the documents. The applicant also required four additional documents vide the said representation. On 28.4.1998 Enquiry Officer was appointed and vide communication dated 9.11.1998 the applicant was permitted to peruse the documents and the records. A preliminary enquiry was held on 23.11.1998 wherein the applicant denied the charge. Vide communication dated 6.11.1998, the date of enquiry was fixed for 7.12.1998 on which date the statement of SW1 and SW2 S/Shri K. Mahendra, Goods Driver and G.S. Mahesh, DAT/ASK was recorded. Shri Syed Sadiq Ali, SW3 statement was recorded on 21.12.1998. The applicant submitted his defence statement on 1.1.1999. The Enquiry Officer submitted his report holding the charge against the applicant as proved. Vide memo dated 2.11.1999 the applicant was supplied the copy of the enquiry report and was directed to make his representation, if any, against the same which was received by the applicant on 9.2.1999. The applicant made a detailed representation dated 21.2.1999. After considering the report of the EO as well as the representation of the applicant dated 21.2.1999, vide order dated 3.3.1999 apenalty of dismissal from service was inflicted upon the applicant.
5. In the O.A. the applicant has basically raised the following contentions:
(i) The applicant being a part and parcel of operating department in the Railways he could neither be charge-sheeted by first respondent nor he is competent to impose the penalty upon the applicant. It is further contended that the Divisional Safety Officer, Respondent No. 1 is not the Appointing Authority for the applicant and, therefore, penalty order dated 3.3.1999 is illegal and without any jurisdiction. The applicant has relied upon the Railway Board Circular No. 16/97-RBE No. 82/97 dated 4.8.1997 (Annexure A-7), wherein it has been notified that only Senior DOM and DOM will exercise disciplinary powers in respect of Operating Staff even in matters relating to violation of safety norms. It was also emphasised therein that any practice contrary to the above which might be in force on the zonal railways should be discontinued forthwith.
(ii) The next contention raised by the applicant is that the applicant when asked for leave or sick memo, the same was refused due to shortage of staff and forced to continue duties. After passage of Train No. 228, having ascertained that there was no train on the section to approach KIAT, was orally permitted by the Station Master to leave the LC gate No. 35C at KM 62/3-4 to go to Hospital at KIAT for medical check up and as such holding the applicant responsible for the said incident is not tenable. None of the witnesses produced by the respondents has stated that the applicant left the gate opened for road traffic, as alleged. He had planted red flags on either side of the track and lowered the lifting barrier and tied it with wire. The applicant was also not aware of any PN Exchange number which enables the Station Master to give line clear to Light Engine WDK2A/164549. The applicant has also contended that the Station Master Kyatasandra involved in the same accident, was imposed a punishment of reduction of pay to lower scale for three years which was later modified by the Appellate Authority. Therefore, the applicant has contended that with prejudice to other contentions raised, the punishment imposed is not only discriminatory but disproportionate too to the alleged misconduct. It is contended that the Station Master, Kyatasandra could not have given line clearance to the light engine WDM 2A/16549 to pass through LC gate 35C at KM 62/3-4 unless he had recorded the PN Exchange number given by the Pointsman gateman i.e., the applicant. Once the applicant had left the place of duty with permission of Station Master the allegation of deserting the place of duty without permission does not arise and consequently the question of keeping the gate open for road traffic did not arise. It is further contended that there was no locking arrangements for the boom and he had already pointed out the deficiencies in the booking system for securing the lifting barriers in the condition to the concerned authorities.
The applicant has also contended that the EO has admitted procedural irregularities which has caused miscarriage of justice and the same cannot be rectified or cured by any authority. The applicant has also contended that during the preliminary enquiry held on 23.11.1998 he had requested to summon certain relevant and essential documents i.e., PN Book of LC gate No. 35C and PN Exchange Register kept at the gate on 6.1.1998 as well as copy of all concerned messages issued after the accident. The EO failed to summon those documents and as such the applicant was handicapped in substantiating his innocence, which consequently has caused serious prejudice to the applicant. It is also the contention of the applicant that the enquiry report submitted by the EO is one sided, perverse, biased and perfunctory and is based on 'no evidence.' The possibility of Station Master II, Kyatasandra, tampering with the PN register to save his skin had not been ruled out by the DA while imposing the penalty on the Station Master vide order dated 13.7.1999 (Annexure A-15). The applicant had sought permission to appear in person before the Appellate Authority which request was neither considered nor granted and as such the order passed by the AA i.e., second respondent is in violation of the law laid down by the Hon'ble Supreme Court in Ramachandra v. Union of India, AIR 1986 SC 1173=1986(2) SLJ 249 (SC). The said appellate order also did not even consider the mandate of Rule 22(2) of the Railway Servants (Discipline and Appeal) Rules, 1968. The EO as well as the AA had specifically relied upon the report submitted by the Commissioner of Railway Safety, (hereinafter referred to as CRS's report') which was neither a listed document under Annexure III to the charge memo dated 28.9.1998 nor supplied despite request made to supply the said document, which action of the respondents is in violation of the law so settled by the Hon'ble Supreme Court. The third respondent though accepted the defence of the applicant to the extent that he had left the duty for medical help at about 11 AM and no locking arrangements were provided and also observed that the crew of the light engine did not whistle properly while approaching the level crossing, yet the applicant had been held to be guilty of the charge in question which is untenable and unwarranted. Similarly despite no evidence was recorded of S/Shri Prasad and Srinivas during the departmental enquiry yet vide order dated 17.11.2000 the Revisionary Authority had relied upon certain conduct of the applicant which was neither the charge nor the applicant was afforded an opportunity to meet the said allegations.
On the other hand, the respondents have fervently submitted that the applicant was provided all reasonable opportunity to place his defence during the enquiry proceedings and there is no violation of the principles of natural justice. The orders passed by the authorities are based on facts and evidence. The applicant's contention that there had been mechanical defects and deficiencies in the gate though reported, and yet not rectified, is not correct. Before giving clearance for the train/light engine, the Station Master has to ensure exchange of PN number by providing number to the gateman for the safe passage of train/ light engine. It is urged that the Station Master at Kyatasandra had also exchanged private number with the gateman i.e., the applicant for ensuing closure of the gate. It is urged that the first respondent had been the appointing authority of the applicant and it exercised his power to issue charge memo as well as in imposing the punishment against the applicant, which act is just and in order. The applicant did not dispute the disciplinary power exercised by the first respondent when he submitted representation dated 18.10.1998. It is urged that the second respondent considered the appeal in terms of the mandate of Rule 22(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 and passed a speaking order. The contention raised by the applicant that he was not given personal hearing is stated to be not tenable. It is urged that the grant of personal hearing is not mandatory and hence there is no violation of principles of natural justice. Similarly it is urged that the revision petition preferred by the applicant had been rejected after taking note of the record and the material fact that the applicant deserted duty and shirked his responsibility. Therefore, blaming the Station Master on duty is not justified. It is further urged that consumption of alcohol by the applicant had been proved from the analysis of the blood sample taken on the date of the incident though on query raised by the Bench, it is admitted that the applicant was not charge-sheeted for such erratic behaviour in the discharge of his duties. It is further contended that the impugned orders were passed by the Competent Authorities after due consideration of the material available on record in accordance with law. It is further contended that there was negligence, lack of devotion to duty on the part of the applicant because of which the accident has occurred, resulting in loss of six lives apart from loss to Railways. There is no error or irregularity in the matter of conducting the enquiry, submission of the enquiry report and the others passed by the Competent Authorities. Therefore, it is urged that the O.A. should be dismissed being untenable in law.
6. The applicant has filed a detailed rejoinder refuting the contentions raised by the respondents and reiterated his contentions. Now we shall deal with the contentions raised by parties.
7. Learned Counsel for the applicant has contended that there was absolutely no justification in issuing the charge memo dated 28th September, 1998 as the said charge-sheet was issued by the Divisional Safety Officer who was not the Appointing Authority of the applicant. In support of said contention, the learned Counsel has strongly relied upon the Railway Board's letter No. E (D&A) 94/RG-6/69 dated 4th August, 1997 wherein it has been stressed that all the Senior DOMs and DOMs will exercise disciplinary powers in respect of Operating Staff. It is further contended that the applicant is borne on Operating department and as such he is a Operating Staff. This contention of the applicant has been seriously denied by the learned Counsel for the respondents. In the reply furnished by the respondents to this contention, it has been stated that respondent No. 1 had been the Appointing Authority in the case of the applicant and had exercised his power to issue the charge memo and imposed the punishment, which is in order so far as the exercise of the said power is concerned. It would be relevant at this stage to reproduce the contents of the Railway Board's order dated 4th August, 1997 in its entirety, which reads as follows:-
"Attention is invited to Board's letter No. E (D&A)72 RG 6-13 dated 16.10.1973, wherein, while reiterating instructions contained in Board's letter No. E (D&A) 60 RG 6/30 dated 28.7.1962 to the effect that the disciplinary action should be initiated and finalised by the authorities under whose administrative control the delinquent employee may be working, the Commercial Officers were specifically excluded from exercising disciplinary powers in respect of Operating Staff like ASMs/SMs etc. These instructions tacitly permitted the Safety Officers to exercise the disciplinary powers in respect of Operating Staff since the Safety Officers also belong to the Operating Department, unlike Commercial Officers.
2. Arising out of discussion with AIRF in the PNM Meetings, the Board have reviewed the existing practice of Safety Officers simultaneously exercising disciplinary powers in respect of Operating Staff who are under the administrative control of Operating Managers.
3. After taking into account all the relevant aspects of this issue, including orders of the Hon'ble Supreme Court in the SLPs filed before it, Board have decided that henceforth only Sr. DOMs. DOMs will exercise disciplinary powers in respect of Operating Staff, even in matters relating to violation of safety norms. Any practice contrary to the above that may be in force on the Zonal Railways, may be discontinued forthwith." (Emphasis supplied) A perusal of the aforementioned Railway Board's letter would show in clear and unequivocal terms that the existing practice of Safety Officers simultaneously exercising disciplinary powers in respect of Operating Staff under the administrative control of Operating Managers was disapproved and after taking note of the Hon'ble Supreme Court orders filed in the SLP before it. The Railway Board also decided and stressed upon that henceforth i.e., the date of issuance of the said letter, only Senior DOMs and DOMs will exercise disciplinary powers in respect Operating Staff. The charge-sheet in the present case was issued on 28th September, 1998, i.e., almost after an year of issuance of the said circular/instructions by the Railway Board. The learned Counsel for the respondents contended that the Railway Servants (Discipline and Appeal) Rules, 1968 have not been amended and the 1st respondent as an Appointing Authority has issued the charge memo as well as imposed the penalty upon the applicant on 3rd March, 1999 and as such was in order. No appointment letter of the applicant has been produced by either sides to establish as to whether the respondent No. 1 in fact appointed the applicant or not. We have carefully bestowed our thoughtful considerations on these aspects. The 1 st respondent may or may not be the Appointing Authority of the applicant but the Railway Board's letter dated 4th August, 1997 clearly prohibits Safety Officers including Divisional Safety Officers from exercising disciplinary powers in respect of Operating Staff, category to which applicant belongs. We are conscious of the fact that in catena of cases, the Hon'ble Supreme Court has held that it is not necessary that the charge-sheet must be issued by the Appointing Authority and what has been stressed by the Hon'ble Supreme Court time and again is that the power of dismissal, removal, compulsory retirement or reduction in rank as a disciplinary measure should not be exercised by an authority other than the Appointing Authority. The protection available under Article 311 of the Constitution of India is thus available only in respect of punishments imposed and not to the issuance of charge-sheets. Be that as it may, the Railway Board which is the Competent Authority to issue such an order, has in its wisdom after taking note of all aspects on the said issue, including orders of the Hon'ble Supreme Court in the SLP filed before it, particulars of which were not detailed even after query raised on this aspect, decided that only Senior DOMs and DOMs will exercise disciplinary powers in respect of Operating Staff. Admittedly, the applicant is borne on Operating Department and accordingly he ought not to have been either charge-sheeted or punished by respondent No. 1. Therefore, we are of the considered view that the charge memo dated 28.9.1998 as well as punishment order dated 3.3.1999 have been issued by the incompetent authority and are thus liable to be declared null and void. We make it clear that even this finding of ours in the present case could be easily separated for the reasons recorded hereinafter and we are not interfering in the exercise of the disciplinary action in the present case on this finding alone.
8. The second contention raised by the learned Counsel for the applicant is that the allegations levelled against the applicant that he deserted the place of duty without permission is not borne out of the record and such an allegation was unwarranted. The applicant has repeatedly urged that he had taken oral permission from the Station Master concerned to seek medical aid. In support of this contention, the learned Counsel has relied upon the observation made by the Chief Operating Manager (i.e., Revisional Authority) to its order dated 17.11.2000 (Annexure A-3). The relevant portion of the said order is extracted hereinbelow :
"On duty SM had permitted you to go for medical help at about 11.00 hours with instructions to come back in the shortest possible time."
(Emphasis supplied) From this specific finding of the Revisional Authority it is abundantly clear that the applicant left the place of duty with the permission of Station Master concerned. The learned Counsel for the respondents seriously refuted this suggestion and contention of the applicant by stating that the Station Master concerned i.e., Sri Syed Sadiq Ali, SW-3 did not accord any permission to the applicant to leave the place of duty. It would be relevant to note at this stage that Sri Syed Sadiq Ali was also charge-sheeted and punished for the said incident dated 6.1.1998. The learned Counsel for the respondent, therefore, suggested that the observation as noted above in the Revisional Authority's order dated 17.11.2000 is liable to be ignored. It is unfortunate on the part of respondents to suggest that the Tribunal should ignore the findings so recorded by the Revisional Authority, who in our opinion could review and re-appreciate the entire material evidence, oral or documentary in nature and could arrive at different and independent conclusion and as well differ with the authorities below. It is after the review of the entire material on record the Revisional Authority, i.e., Chief Operations Manager has specifically recorded the aforenoted finding that the Station Master had permitted the applicant to go for medical help at about 11.00 hours, which findings in our considered view, could not be ignored by this Tribunal.
9. If the charge and allegation of desertion of duty without permission is not proved, consequently, the allegation of keeping the gate open for the road traffic without planting the danger flags in centre of the track on either side of the LC, which resulted in the light engine hitting an autorickshaw and consequently killing occupants in the autorickshaw would, in our opinion, also be without any substance. None of the witnesses produced by the respondents have stated that the applicant "failed to close the gate properly" and left the place "keeping the gate open for the Road Traffic", as alleged. The learned Counsel for the applicant has strongly urged that the Station Master KIAT did not exchanged the PN with the gateman before granting line clear to the light engine. It appears that the Station Master KIAT did not record the station PN number, in the exchange book of the gateman and the said PN was entered in the gateman's book subsequent to the accident which goes to show that the Station Master on duty did not even follow the procedure or took proper precaution in granting the signal to the light engine to pass the railway line. Our attention has also been drawn to the observations made in the order passed by the Senior DOM, who had been the Disciplinary Authority of Sri Syed Sadiq Ali, dated 13.7.1999 in imposing the penalty upon Sri Syed Sadiq Ali. It would be relevant at this stage to extract the said finding:
"Having carefully gone through the proceedings, I conclude that there are enough circumstantial evidences which show that you did not exchange the PN with the gateman before granting line clear for the train.
Handwriting experts could not conclusively state that the PN recorded in the PN exchange book of the gateman was that of the gateman or not only on account of non-availability of sufficient written material. There was strong circumstantial evidence to suggest that the PN was entered in the gateman's book subsequent to the accident."
(Emphasis supplied)
10. We wish to make it clear that we have not re-appreciated evidence in the present case. We examined the report of the inquiry officer as well as other material including the impugned orders only to ascertain as to whether the finding recorded by the Inquiry Officer as well as the Disciplinary/Appellate and Revisional Authorities are based on some relevant materials on record. Moreover, the Hon'ble Supreme Court in Kuldip Singh v. Commissioner of Police (1999) 2 SCC 10=1999(3) SLJ 111 (SC), has held as under:
6. .....The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority,
7. In Nand Kishore Prasad v. State of Bihar (1978) 3 SCC 366, it was held that the disciplinary proceedings before a domestic Tribunal are of quasi judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which and that too, with some degree of definitness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic inquiries. If therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Inquiry Officer would be perverse.
8. The findings recorded in a domestic enquiry can be characterised as perverse if it is shown that such findings are not supported by any evidence on record or are not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence...."
(Emphasis supplied) In 1997(3) SCC 657 at page 659, in Para6, Rai Bareli Kshetriya Gramin Bank v. Bhola Nath Singh, the Hon'ble Supreme Court held that: "The High Court, in the proceedings under Article 226 does not act as an Appellate Authority but exercise within the limits of judicial review to correct error of law or procedural errors leading to manifest injustice or violation of principles of natural justice." (Emphasis supplied) In our considered opinion the law so laid down by the Hon'ble Supreme Court is squarely applicable in the facts of the present case. Recently, the Hon'ble Supreme Court in 2002(7) SCC 142, Sher Bahadur v. Union of India, has observed that:
"7. It may be observed that the expression "sufficiency of evidence postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however, voluminous it may be, which is neither relevant in a board sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the Inquiry Officer has noted in his report, in view of the oral, documentary and circumstantial evidence as adduced in the enquiry, would not in principle satisfy the rule of sufficiency of evidence."
(Emphasis supplied) The law so laid down, in our considered view, is squarely applicable to the facts and circumstances of the present case.
11. The observation made by the Senior DOM in its order dated 13.7.1999 imposing the penalty of reduction to a lower scale of Rs. 4,500-7,000 from the present scale Rs. 5,000-8,000 for a period of 3 years upon Sri Syed Sadiq Ali goes to show that the said Sri Syed Sadiq Ali had tampered with the gateman's book for obvious reasons.
12. The learned Counsel for the applicant has also raised a contention that the Inquiry Officer as well as other authorities including Appellate Authority had specifically relied upon the findings of statutory inquiry conducted by CRS, Bangalore, copy of which had not been supplied to the applicant, despite requests made on the said aspect. In this connection our attention was drawn to the report of the Inquiry Officer (Annexure A-12) as well as the appellate order dated 21.6.1999 (Annexure-A2) respectively. From the perusal of the Inquiry Officer's report as well as the appellate order it is clear that the Inquiring Authority as well as the Appellate Authority had relied specifically on the findings of the statutory enquiry conducted by the Commissioner for Railway Safety, Bangalore. Para 2 of the said enquiry report under the title: "Findings of Statutory enquiry by CRS/SBC" as well as Para 2 of the appellate order dated 21.6.1999 stated that: "I have also gone through the CRS's enquiry report into the accident.....," proves beyond doubt that the said document which was neither part of the charge memo dated 28.9.1998 nor had been supplied to the applicant had been taken into consideration by the authorities in imposing the punishment upon the applicant. Annexure-III annexed to the charge memo dated 28.9.1998, which is the list of documents relied upon to prove the charge, did not include the CRS report. It is well settled law laid down by the Hon'ble Supreme Court in (1998) 6 SCC 651=1999(1) SLJ 213 (SC) (State of U.P. v. Shatrughanlal and Anr.) that copies of the documents that have been relied upon should be indicated to the delinquent official and he be allowed to inspect the same and in case he desires copies of the same or access to records must be made available to him. In said judgment, the Hon'ble Supreme Court had also relied upon its earlier judgments in Chandrama Tewari v. Union of India, 1987 Supp. SCC 518=1988(1) SLJ 180 (SC), Kashinath Dikshita v. Union of India, (1986) 3 SCC 229=1986(2) SLJ 279 (SC), State of U.P. v. Mohd. Sharif, (1982) 2 SCC 376= 1982(2) SLJ 259 (SC) and High Court of Punjab and Haryana v. Amrik Singh, 1995 Supp. (1) SCC 321=1995(2) SLJ 61 (SC). It is settled law that the principles of natural justice demand that the person against whom an action is proposed to be taken has to be given an opportunity of hearing, which must be an effective opportunity and not a mere pretence. In departmental proceedings where a charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge-sheet, but copies thereof are not supplied to him, inspite of his request, and he is at the same it was called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. In Chandrama Tewari v. Union of India, (supra) it has been held that it is not necessary that each and every document must be supplied to the delinquent Government servant, the document needs to be supplied if it is mentioned and relied upon by the Inquiry Officer or the punishing authority in holding the charges proved against the Government servant. In other words, if the document is not used against the party charged, the ground of violation of principles of natural justice cannot be successfully urged. It would be relevant at this stage to extract the relevant paragraph on this aspect, which reads--
"....The procedure at the enquiry must be consistent with the principles of natural justice. Principles of natural justice require that the copy of the document if any relied upon against the party charged should be given to him and he should be afforded opportunity to cross-examine the witness and to produce his own witnesses in his defence. If findings are recorded against the Government servant placing reliance on a document which may not have been disclosed to him or the copy thereof may not have been supplied to him during the enquiry when demanded, that would contravene principles of natural justice rendering the enquiry, and the consequential order of punishment illegal and void. These principles are well settled by a catena of decisions of this Court. We need not refer to them. However, it is not necessary that each and every document must be supplied to the delinquent Government servant facing the charges, instead only material and relevant documents are necessary to be supplied to him. If a document even though mentioned in the memo of charges is not relevant to the charges or if it is not referred to or relied upon by the enquiry officer or the punishing authority in holding the charges proved against the Government servant, no exception can be taken to the validity of the proceedings or the order. If the document is not used against the party charged the ground of violation of principles of natural justice cannot successfully be raised. The violation of principles of natural justice arises only when a document, copy of which may not have been supplied to the party charged when demanded is used in recording finding of guilt against him..."
(Emphasis supplied) The law and ratio laid down in the aforementioned judgment in our respectful view squarely applies to the facts of the present case. It is established from the perusal of the inquiry report. Disciplinary Authority's order as well as the appellate order that the findings and report of the Commissioner for Railway Safety was indeed relied upon in holding the charge against the applicant, which document had not been supplied, despite repeated demand made on the said aspect. Even the contention raised on the said aspect before the Revisional Authority did not find favour. Following the said ratio laid down by the Hon'ble Supreme Court in the aforementioned cases, the non-supply of report of CRS, which had been taken into consideration by the authorities concerned in imposing the penalty against the applicant, in our considered view, violates the principles of natural justice and on this score also the disciplinary proceedings initiated and concluded against the applicant are liable to be declared illegal, void, unjust and arbitrary. The said orders are liable to be declared to have been passed in violation of the principles of natural justice.
13. The learned Counsel for the applicant has also raised a specific contention that the applicant sought a personal hearing before the Appellate Authority which was denied to him, which amounts to violation of the principles of natural justice. In this respect, a reliance has been placed on (supra) (Ram Chander v. Union of India and Ors.). It would be necessary to extract the relevant portion of Para 24 of the said judgment which reads as follows :
"..... Such being the legal position, it is utmost importance after the Forty-
Second Amendment as interpreted by the majority in Tulsiram Patil's case that the Appellate Authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. We wish to emphasise that reasoned decisions by Tribunals, such as the Railway Board in the present case, will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the Authority regarding the final orders that may be passed on his appeal.
Considerations of fair play and justice also require that such a personal hearing should be given."
(Emphasis supplied) Admittedly, despite the request made by the applicant in his appeal which reads as follows:-
"I express my desire to be heard in person." The Appellate Authority did not deal with the said aspect and upheld the order dated 3.3.1999 imposing the penalty of dismissal from service passed by respondent No. 1 without even noticing the said request what to talk of noticing and dealing the specific contention. It would be relevant at this stage to reproduce the appellate order which reads as follows:
"In terms of Rule 22(2) of Railway servants (D and A) Rules, 1968, I have gone through your appeal and your DAR case.
I have also gone through the CRS's enquiry report into the accident, the DAR enquiry report against you records regarding SWR, assurance register, Gate working Rules etc. I find that you did desert the Gate, where you were posted, without taking adequate Safety measures, which resulted in the accident. You therefore, cannot be absolved of your responsibility. As such the punishment of "Dismissal from service" imposed on you is considered adequate and proper and is upheld, (Emphasis supplied) We have reproduced this order for the reason that the learned Counsel for the applicant has also contended that the Appellate Authority has violated the mandate of the provisions of Rule 22(2) of Railway Servants (Discipline and Appeal) Rules, 1968. The said Rule reads as under:
"(2) in the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the Appellate Authority shall consider--
(a) whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice.
(b) whether the findings of the Disciplinary Authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders--
(i) confirming, enhancing, reducing or setting aside the penalty; or (iii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case. (Emphasis supplied)
14. A perusal of the aforementioned rule clearly shows that the Appellate Authority is required to consider whether the procedure laid down in the Rules have been duly complied with or not whether such non-compliance has resulted in violation of any provisions of the Constitution of India or in the "failure of justice," whether the findings of the Disciplinary Authority were warranted by the evidence oh record etc. Perusal of the aforesaid appellate order did not take into consideration as to whether the procedure laid down in the Rules have been complied with as well as the findings recorded by the Disciplinary Authority were warranted. No doubt, the Appellate Authority had considered the adequacy of the impugned punishment imposed upon the applicant. But, that alone does not make full compliance of Rule 22(2) of the aforementioned rules. Accordingly, we have no hesitation to conclude that the Appellate Authority failed to consider the mandate and requirements of Rule 22(2).
15. The learned Counsel for the applicant further submitted that the Revisional Authority in passing the order dated 17.11.2000 (Annexure-A3) had observed that the applicant consumed alcohol and had been in the habit of deserting the duty etc., and also made reference about the evidence of SMR Sri Prasad and off duty SM Sri K. Srinivas. We have carefully perused original disciplinary proceedings/record made available to us by the respondent and we do not find from the said record that any evidence of SM Sri Prasad and off duty SM Sri K. Srinivas was even recorded by the Inquiry Officer. Therefore, the source of material on which the reliance has been placed by the Revisional Authority in its order dated 17.11.2000 is not coming forth. It is further contented that the charge of alcohol consumption was not the ground for which the charge memo dated 28th September, 1998 was issued. It is settled law that findings on acharge other than those included in the charge-sheet is untenable in law. Reliance can be had in his regard to 1998(1) SLR CAT Jabalpur 15, Y.K. Verma v. Union of India. Similarly in 1994(27) ATC 331 (PB), Sukhwant Singh v. Union of India, Mr. Justice Malimath Hon'ble Chairman, speaking for the Bench held that:
"Finding the petitioner guilty of an allegation or charge which was not levelled against him thus violates the principles of natural justice. On this short ground the impugned order as also the order made on revision are liable to be quashed."
The learned Counsel for the applicant has also invited our attention to the instructions issued by the Government of India, Ministry of Home Affairs by O.M. dated 28th August, 1968 which are printed in Swamy's Compilation of CCS (CCA) Rules, read as follows:
Not appropriate to bring in past bad record in deciding the penalty, unless it is made the subject-matter of specific charge in the charge-sheet itself--A question has arisen whether past bad record of service of an officer can be taken into account in deciding the penalty to be imposed on the officer in disciplinary proceedings, and whether the fact that such record has been taken into account should be mentioned in the order imposing the penalty. This has been examined in consultation with the Ministry of Law. It is considered that if previous bad record, punishment, etc., of an officer is proposed to be taken into consideration in determining the penalty to be imposed, it should be made a specific charge in the charge-sheet itself, otherwise any mention of the past bad record in the order of penalty unwritingly or in a routine manner, when this had not been mentioned in the charge-sheet, would vitiate the proceedings, and so should be eschewed."
Though the aforementioned O.M. had been issued with reference to the provisions under the Central Civil Services (Classification, Control and Appeal) Rules but the principle laid down therein are squarely applicable to the facts of the present case. The charge of alcoholism was not mentioned anywhere right from the issuance of charge-sheet till the disciplinary proceedings were concluded except in the revisional authority's order dated 17.12.2000. All these aspects taken cumulatively go to show that the impugned orders have been passed without any application of mind.
16. The object of doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice too. The Hon'ble Supreme Court in (2001) SCC 182, Kumaon Mandal Vikas Nigam Limited v. Girja Shankar Pant and Ors., after noticing the decision laid down in Ridge v. Baldwin, 1964 AC 40 and A.K. Kraipak v. Union of India, (1969) 2 SCC 262, held that it is neither feasible nor even desirable to lay down any fixed or rigorous yardstick to determine as to whether or not the principles of natural justice should regulate an administrative act or not. It was held that the concept of natural justice can't be put in a straight jacket. It would be relevant to extract the relevant observations of the Hon'ble Supreme Court from Para 1 of the said judgment:
"Since the decision of this Court in Kraipak case (A. K. Kraipak v. Union of India) one golden rule that stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. What, however, does this doctrine exactly mean? Lord Reid about four decades ago in Ridge v. Baldwin very succinctly described it as not being capable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstance--who then is a reasonable man--the man on the Clapham omnibus? In India, however, a reasonable man cannot but be a common man similarly placed. The effort of Lord Reid in Ridge v. Baldwin in not attributing a definite meaning to the doctrine but attributing it to be representing a fair procedure still holds good even in the millennium year. As a matter of fact this Court in the case of Keshav Mills Co. Ltd. v. Union of India [(1973) 1 SCC 380] upon reliance on the attributes of the doctrine as above stated as below: (SCC p., 387 Para 8).
8. The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yardstick in this manner. The concept of natural justice cannot be put into a strait jacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the Administrative Authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in H.K. (an infant), In re. It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin case as 'in susceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances.' However, even the application of the concept of fair play requires real flexibility. Everything will depend on the actual facts and circumstances of a case. As Tucker, LJ. observed in Russel v. Duke of Norfolk:
"The requirements of natural justice must depend on the circumstances of the cases, the nature of the inquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with and so forth." (Emphasis supplied) As could be seen from the said judgment that fairness in procedure is the test which has been emphasised by the Hon'ble Supreme Court time and again. It is the totality of the situation that ought to be taken note of and not factual aspects in isolation. In our considered view, there was no material on the basis of which the authorities could have found that the charge against the applicant stood proved. For the procedural irregularities committed by the Inquiry Officer and other authorities as well, we are of the considered view that there had been no evidence against the applicant that he deserted the place of duty without permission as alleged. The findings recorded by the authorities have resulted in miscarriage of justice. The whole issue has been dealt with in such a casual manner that it cannot but be termed totally devoid of any justifiable reasons. It is settled law that an order passed without due application of mind, being arbitrary, deserves to be quashed.
17. In view of the findings recorded hereinabove, we have no hesitation to conclude that the orders passed by the Disciplinary and Appellate Authorities as well as the Revisional Authority are rendered illegal and have been passed without application of mind. Therefore, the said orders dated 3.3.1999, 21.6.1999 and 17.11.2000 passed by the Disciplinary, Appellate and Revisional Authorities respectively are liable to be quashed and set aside. Accordingly we do so.
18. The next question which arises after quashing the aforementioned orders is as to whether the applicant is entitled to reinstatement with continuity of service with all benefits like backwages etc. or not. As we have noticed hereinabove, the orders passed by the authorities are held to be illegal because of no evidence as well as perverse findings of the authorities and also because of procedural irregularities committed by them but should the applicant be allowed to take advantage of these facts and claim full backwages? In Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80, a three Judge Bench of Hon'ble Supreme Court laid down: (SCC page 86, Para 11).
"In the very nature of things there cannot be a straight jacket formula for awarding relief of backwages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the direction of the Tribunal. Full backwages would be the normal rule and party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circum stances. But, the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. (Emphasis supplied) Similarly, in PGI of Medical Education and Research, Chandigarh v. Raj Kumar, (2001) 2 SCC 54, the Hon'ble Supreme Court did not approve the High Court action in setting aside the award of the Labour Court which restricted the backwages to 60% and directed payment of full backwages. At para 12 of the Hon'ble Court observed:
"12. Payment of backwages being a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight jacket formula can be evolved, though, however there is statutory sanction to direct payment of backwages in its entirety."
Though the said judgments were rendered in labour cases, but the principles laid down therein applies to the present case as well.
19. Since the applicant has not worked after imposition of penalty vide order dated 3.3.1999 and applying the ratio of the law laid down by the Hon'ble Supreme Court in aforementioned cases to the facts and circumstances of the present case, we are of the view that in the interest of justice the applicant be allowed only 50% of the backwages since the date of dismissal till the date of reinstatement.
20. In view of the above, we allow the O.A. quash and set aside the orders dated 3.3.1999, 21.6.1999 and 17.11.2000 and direct the respondents to reinstate the applicant forthwith and implement the rest of the aforesaid orders within a period of 3 months from the date of receipt of a copy of this order. In the facts and circumstances of the present case, there will be no order as to costs.