Central Administrative Tribunal - Allahabad
Daya Shanker vs Union Of India on 13 August, 2025
(Reserved on 05.08.2025)
Central Administrative Tribunal, Allahabad Bench
Allahabad
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Original Application No. 1657 of 2011
This the 13th day of August, 2025.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Daya Shanker, S/o Shri Shiv Dhari, R/o Village Bohasara Kalan, District
Mirzapur.
Applicant
By Advocate: Sri S.K. Kushwaha
Versus
1. Union of India through General Manager, Northern Railway
(Now North Central Railway) Headquarter Allahabad.
2. Divisional Railway Manager Northern Railway now North
Central Railway, Allahabad 211001.
3. Divisional Engineer, Northern Railway now North Central
Railway, Allahabad 211001.
4. Divisional Suptd. Engineer (DSE-I) Northern Railway now
North Central Railway DRM's office, Allahabad.
Respondents
By Advocate: Sri Atul Kumar Shahi
ORDER
By Hon'ble Mr. Justice Om Prakash VII, Member (J) The present original application has been filed by the applicant under section 19 of the AT Act, with the following reliefs:-
MANISH KUMAR SRIVASTAVA 2 "(a) to quash/set aside the impugned order dated 27.6.1996 (filed as Annexure No. A-1 to this OA) passed by the Disciplinary Authority and impugned appellate order vide letter dated 15.01.2004 passed by D.S.E.-I/N.C. Railway Allahabad (Annexure A-1/A) and reinstate the applicant in service with all consequential benefits.
(b) To issue any other order or direction which this Hon'ble Court may deem fit and proper.
(c) To award cost of the original application to the applicant".
2. The brief facts of the case are that the applicant, a regular employee of the Railways, was transferred from Mirzapur to Aligarh. Due to his wife's prolonged illness, he applied for leave, which was granted. Later, the applicant himself fell ill, was hospitalized, and remained under treatment until 31.08.1993. Because of this long absence, a chargesheet dated 04.03.1995 was issued to him for disciplinary proceedings. The applicant denied all charges in his explanation. An enquiry was held on 16.12.1995 and concluded on the same day, without giving the applicant adequate and reasonable opportunity to defend himself. The applicant then approached this Tribunal by filing OA No. 789 of 1995, which was decided on 17.11.1995, directing him to report for duty. In compliance, the applicant rejoined his duty. Subsequently, the Enquiry Officer submitted his report on 16.12.1995, and based on that report, the applicant was removed from service by order dated 27.06.1996. His appeal against the removal order was rejected on 02.08.1997. The applicant again approached this Tribunal through OA No. 1076 of 1997, which was partly allowed by judgment dated 19.09.1993. The Tribunal quashed the appellate authority's order dated 02.08.1997 and directed the appellate authority to pass a reasoned and speaking order. Following this direction, the applicant submitted a representation on 18.12.2003 and made repeated requests to the appellate authority to decide his appeal. Ultimately, on 15.01.2014, the appellate authority again rejected his appeal. Aggrieved by this, the applicant has filed the present OA.
3. The respondents, in their counter affidavit, have stated that after the transfer, he availed leave on account of his wife's illness, which was duly sanctioned. However, he remained absent for a long period, further MANISH KUMAR SRIVASTAVA 3 claiming his own illness and hospitalization until 31.08.1993. Since the applicant did not resume duty for a long time, disciplinary proceedings were initiated, and a chargesheet dated 04.03.1995 was served. The applicant submitted his reply, which was considered, and an enquiry was conducted on 16.12.1995 in accordance with the rules. Based on the enquiry report, which found the charges proved, the competent authority issued an order dated 27.06.1996 removing him from service. The applicant's appeal against the removal was examined and rejected by the appellate authority on 02.08.1997, as there was no merit to interfere with the penalty. When the matter was remitted by the Tribunal in OA No. 1076 of 1997 for passing a reasoned and speaking order, the appellate authority reconsidered the case in light of all records and, by a detailed order dated 15.01.2014, again rejected the appeal. The respondents contend that all proceedings were conducted lawfully, giving the applicant sufficient opportunity, and that the present OA is without any valid ground.
4. The applicant has filed Rejoinder Affidavit to the Counter Affidavit as filed by the respondents refuting the contentions made by the respondents in their Counter Affidavit while reiterating the averments made in the O.A.
5. We have heard Shri S.K Kushwaha, learned counsel for the applicant and Shri Atul Kumar Shahi, learned counsel for the respondents and perused the record.
6. Submission of the learned counsel for the applicant is that the impugned orders passed against the applicant are illegal. Procedure prescribed for conducting the enquiry have not been followed. It is also argued that applicant has crossed the age of superannuation. Proper opportunity to defend the case has not been given to the applicant. It is also argued that chargesheet is defective as name of witnesses proposed to be examined on behalf of the prosecution has not been disclosed. No oral evidence has been adduced to prove the documents relied upon in the enquiry. Enquiry was concluded in a haste manner. Mandatory provision provided under Rule 9 of the Railway Servants (Discipline and MANISH KUMAR SRIVASTAVA 4 Appeal) Rules have not been followed, thus, on this ground itself entire enquiry proceeding is vitiated. It is also argued that copy of the enquiry report was not supplied to the applicant. Witnesses named by the applicant were not summoned, thus, applicant was deprived to place his stand during enquiry and on this ground also, entire enquiry proceeding is vitiated. It is next argued that order passed by the Disciplinary Authority is cryptic, unreasoned and non-speaking. Evidence collected during enquiry has not been analysed. Opinion formed by the Disciplinary Authority is based on conjecture and surmises. Punishment imposed upon him is also disproportionate. Initially appellate authority dismissed the appeal affirming the order passed by the Disciplinary Authority. Applicant approached before this Tribunal and a direction was issued to the appellate authority setting aside the order passed by the appellate authority to decide the appeal afresh by passing a reasoned and speaking order. It is also argued that specific direction has been given to the appellate authority to see as to whether punishment imposed upon the applicant was commensurate to the gravity of the charges or not, appellate Authority while passing the fresh order on the appeal did not take into account this observation and again affirmed the order passed by the Disciplinary Authority. Referring to the order passed by the Appellate Authority, it was also argued that issues raised at the end of applicant have not been considered. It is also argued that enquiry officer as well as Disciplinary Authority have not decided as to whether absence was willful or not. Until and unless, absence is willful, it cannot be construed as misconduct, thus, on this count also impugned orders passed in the matter are liable to be set aside. Thus, argued that OA be allowed and impugned orders passed against the applicant be quashed. Learned counsel for the applicant placed reliance on the following case laws:-
(i) Satendra Singh Vs. State of Uttar Pradesh and others decided in Civil Appeal Nos. Nil of 2024 (arising out of SLP (Civil) 29758 of 2018) on 18.11.2024;
(ii) Union of India and others Vs. Smt. Savitri Sharma reported in LAWS(DLH) 2012 10 374;
MANISH KUMAR SRIVASTAVA 5
(iii) Chhel Singh Vs. M.G.B Gramin Bank Pali reported in LAWS (SC) 2014 -
7- 36;
(iv) Krushnakant B. Parmar Vs. Union of India and others reported in (2012) 1 Supreme Court Cases (L&S) 609;
7. Learned counsel for the respondents argued that proper procedure have been followed in conducting the enquiry. Opportunity to file the reply to the chargesheet was given to which the applicant has availed. He was informed time and again to participate in the enquiry but he was not cooperating to the enquiry officer. Defence Assistant was also appointed by the applicant belatedly. He has admitted his unauthorized absence, thus, there was no occasion to lead oral evidence and to interrogate the applicant under Rule 9 (21) of Railway Servants (Discipline and Appeal) Rules, 1968. It is further argued that mere non-examination of charged official under Rule 9 (21) of Railway Servants (Discipline and Appeal) Rules, 1968, enquiry proceedings will not be vitiated until and unless prejudice is established by the charged official. It is also argued that in the present matter unauthorised absence was admitted by the applicant. He has been afforded ample opportunity to defend his case but he has not cooperated to the enquiry officer, thus, it shall be presumed that no prejudice has occasioned to the applicant. Punishment imposed upon the applicant is commensurate with the allegation leveled against the applicant. He was habitual absconder prior to the period disclosed in the chargesheet regarding unauthorized absence, applicant was remain absent from the duty on many occasions. Applicant was transferred but he did not obey the transfer order, thus, attending circumstances, itself indicate that absence was willful. It was not due to compelling circumstances. Pleadings taken by the applicant was not proved by cogent evidence, thus, opinion formed by the Inquiry Officer, Disciplinary Authority as well as Appellate Authority cannot be termed to be illegal and perverse. Learned counsel for the respondents placed reliance on the following case laws:-
(i) Ravindran K.N. Vs. Union of India and others decided on 12.06.2025 in OA No. 340 of 2024 by CAT, Ernakulam Bench.
MANISH KUMAR SRIVASTAVA 6
8. Before discussing the submissions raised across the bar, it will be useful to quote the relevant paragraphs of the case laws.
9. In Satendra Singh (supra) in para 13, 14 and 15, Hon'ble Supreme Court held as under:-
"13. This Court in a catena of judgments has held that the recording of evidence in a disciplinary proceeding proposing charges of a major punishment is mandatory. Reference in this regard may be held to Roop Singh Negi v. Punjab National Bank and Others9 and Nirmala J. Jhala v. State of Gujarat and Another.10
14. In the case of Roop Singh Negi11, this Court held that mere production of documents is not enough, contents of documentary evidence have to be proved by examining witnesses. Relevant extract thereof reads as under: -
"14. Indisputably, a departmental proceeding is a quasi- judicial proceeding. The enquiry officer performs a quasi- judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been 9 (2009) 2 SCC 570 10 (2013) 4 SCC 301 11 Supra note 9. brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
...
19. The judgment and decree passed against the respondent in Narinder Mohan Arya case [(2006) 4 SCC 713 : 2006 SCC (L&S) 840] had attained finality. In the said suit, the enquiry report in the disciplinary proceeding was considered, the same was held to have been based on no evidence. The appellant therein in the aforementioned situation filed a writ petition questioning the validity of the disciplinary proceeding, the same was dismissed. This Court held that when a crucial finding like forgery was arrived at on evidence which is non est in the eye of the law, the civil court would have jurisdiction to interfere in the matter. This Court emphasised that a finding can be arrived at by the enquiry officer if there is some evidence on record. ..." (emphasis supplied)
15. Same view was reiterated in State of Uttar Pradesh v. Saroj Kumar Sinha,12 wherein, this Court held that even in an ex-parte inquiry, it is the duty of the Inquiry Officer to examine the evidence presented by the Department to find MANISH KUMAR SRIVASTAVA 7 out whether the unrebutted evidence is sufficient to hold that the charges are proved. The relevant observations made in Saroj Kumar Sinha13 are as follows: -
"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. ....
33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of the principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet."
(emphasis supplied)
10. In Savitri Sharma (supra) case, Hon'ble Supreme Court in para 3 has held as under:-
"WE, however, are not examining that aspect of the Tribunal's order and the present decision of ours ought not to be construed as one confirming the reasoning adopted by the Tribunal. We have taken an entirely different route in view of the recent decision of the Supreme court in the case of Krushnakant B. Parmar v. Union of India & Anr:: (2012) 3 SCC 178. In the said decision the Supreme Court has clearly held that in a departmental proceeding, if the allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is willful and if there is no such finding, the absence would not amount to misconduct. In the present case we find that the disciplinary authority has not examined the question as to whether the absence was willful or not. In any event, there is no finding that the unauthorised absence was willful. Since there is no such finding, the order of the disciplinary authority dated 10.11.1994 cannot be sustained on this ground alone in view of the Supreme Court decision in the case of Krushnakant B. Parmar (supra). It is for this reason that we are not going into the other aspects of the matter. We agree with the conclusion arrived at by the Tribunal but on an entirely different reasoning".
11. In Chhel Singh (supra) case, Hon'ble Supreme Court in para 10 has held as under:-
"14. The following charges were leveled against the appellant, as mentioned in the inquiry report:
Charge No.1: According to Rule 22(1) of Marwar Gramin Bank Employee Association Rules, 1980 no officer or employee would absent himself without the prior permission from competent authority and in case of disease and accident no one would absent himself without providing medical certificate, but you flouted the instructions of competent authority and without permission you remained absent from 11.12.89 to 24.10.90 and you got the medical certificate issued in connection with your illness you submitted the medical certificate on 20.10.90 with so much of delay.
MANISH KUMAR SRIVASTAVA 8 Charge No.2: According to Rule 22(2) of Marwar Gramin Bank Employee Association Rules, 1980 if any officer or employee remains absent without leave or remains absent after the expiry of leave, (leaving the circumstances which is beyond their control and for that he has to give satisfactory clarification), then he would not be entitled for payment of such absence or the period after the absence and would be liable for such action which would be charged by competent authority. But you violated these instructions:
(D) You remained on medical leave from 11.12.89 to 24.10.90 and you did not submit leave application as per rule.
(E) You had been instructed by the head office by its letter no.K/7901 dated 23.08.90 to present yourself on duty within 7 days and also to give clarification for being absent without leave but you did not submit any reply. Thereafter also, you were again given instruction by head quarter letter no.K/10076 dated 22.9.90 you were instructed to present on duty by 05.10.90 and also to submit the clarification.
The said letter was received by you on 4.10.90. Then also you did not send any information to bank about your absence.
(F) In your clarification you have stated that you could not give information since you were suffering from incurable disease but in medical certificate submitted by you there is no mention of any incurable disease, where it was not possible for you to send the leave information. Thus, you gave wrong information to bank.
Charge No.3: You not being seriously ill, produced the evidence of illness from various doctors whereas: (A) You travelled during your alleged serious illness. According to medical certificate issued by Dr. S.S. Purohit, Navdeep Hospital Palanpur issued on 25.10.90, you got treatment from him from 13.8.90 to 24.10.90 and rest has been prescribed whereas during that period you were on your permanent residence at Chitalwana. You yourself received the registered letter no.K/1-0078 dated 22.9.90 and K/11211 dated 11.10.90 at Chitalwana.
(B) In the letter K/11211 dated 11.10.90 the instruction given was very clear that join the duty by 27.10.90 and it was stated in that letter that if you do not join the duty then it would be presumed that you are not interested to work in the bank. Then you had shown yourself to be healthy and you joined duty on 25.10.90 Charge No.4: In Circular no.21/78 dated 22.6.78 it has been instructed that the employees on leave on health reason would submit medical certificate while joining on duty. You violated these instructions and did not present the medical certificate while joining duty. You submitted the said certificate on 20.10.90 with delay."
From the plain reading of the charges we find that the main allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10 and ½ months), for which no prior permission was obtained from the competent authority. In his reply, the appellant has taken the plea that he was seriously ill between 11.12.89 and 24.10.90, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies of medical certificates issued by Doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant's unauthorized absence from duty was willful and deliberate. The Inquiry Officer has also not held that appellant's absence from duty was willful and deliberate. It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay".
12. In Krushna Kant, Hon'ble Supreme Court in paras 16 to 21 has held as under:-
MANISH KUMAR SRIVASTAVA 9 "16. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful.
Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
18 . In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.
19. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held:
"25 It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty".
13. In Ravindran K.N. (supra) Central Administrative Tribunal, Ernakulam Bench of this Tribunal in paras 21 to 23 has held as under:-
"21. The respondents took up the stand that mere non-observance of Rule
14 (18) cannot vitiate the inquiry in view of the full opportunity given to the MANISH KUMAR SRIVASTAVA 10 charged officer to submit his brief, his representation on the inquiry officer's report before the disciplinary authority reached a tentative conclusion. It was contended that the officer was given full opportunity to participate in the inquiry and to cross examine the witnesses. He availed that opportunity. To supplement the above contentions, the respondents relied on the decision of the Hon'ble Supreme Court reported in Sunil Kumar Banerjee v. State of West Bengal [(1980) 3 SCC 304] which held that failure to comply with the requirement of a rule procedure will not vitiate the proceedings.
22. It is also settled legal position that even if there is a breach of noncompliance of Rule 14 (18), the Courts shall not interfere, unless the charged officer is able to establish prejudice. The decision of the Hon'ble Supreme Court in Sunil Kumar Banerjee's case (supra) is an authority on that proposition. That was a case in which the petitioner therein 15 contended that Rule 8 (19) of All India Service Disciplinary Authority Rules, 1969, which is exactly similar to Rule 14(18) CCS (CCA) Rules, was not complied with. Holding that such a contention is not sustainable in the absence of materials to show substantial prejudice, the Supreme Court held that failure to comply with the requirements of Rule 8(19) of the 1969 Rules does not vitiate the enquiry, unless delinquent officer is able to establish prejudice. In the case at hand, the appellant had cross examined the witnesses himself, submitted his defense in writing in detail, and conducted the case all by himself, at every stage. The appellant was fully aware of the allegations against him and dealt with all aspects of allegations in his written defense. Hence it is evident that he was least prejudiced by the failure of the inquiry authority to question him under Rule 14(18). The principle laid down in Sunil Kumar applies equally to the case at hand.
23. In the light of the fact that the applicant was given an opportunity to be generally examined, that legal requirement was also complied with. In the light of compliance of Rule 14 (18), the present contention of the applicant will not survive".
14. It will also be useful to reproduce the article of charges framed against the applicant:.
vuqPNsn &A Jh n;k"kadj iq= f'ko/kkjh] xSx esu fcuk fdlh lqpuk ds fnukad 31-8-93 dks e.My fpfdRlk~ vf/kdkjh fetkZiqj ds }kjk M;wVh gsrq QhV gksus Ik"pkr fnukad 01-9-93 ls yxkrkj viuh M;wVh s es vukf/k--r py jgs gS A budh fiNyh vukf/k--r vuqifLFkfr ls lkQ lkQ tkghj gksrk gS fd vki vukf/k--r :Ik ls vuqifLFkr jgus ds vkfn gS rFkk vkidks jsy lsok dh vo";drk ugh gSA vr% fnukd 01-09-93 ls vkt fnukad 4-3-95 rd yxkrkj viuh M;wVh ls vukf/k--r :Ik ls vuqifLFkfr jgdj jsy deZpkjh vkpj.k vf/kfu;e 1967 ds mi fu;e 3 ¼1½ ¼1½ 3¼1½ ¼2½ rFkk 3¼1½ ¼3½ dh ----- vogsyuk rFkk voekuuk dh gSA vuqPNsn&2 jsy iFk fujh{kd@pqdZ ds i= fnukad vi@prqFkZ Js.kh@vuq0@95 fnukad 28-2-95 ds lanzHkZ esa bl dk;kZy; ds i= fnukad b0 Dykl-4@95 fnukad 1-3-95 ds }kjk e.My fpfdRlk vf/kdkjh@fetkZiqj dks fy[sk x;s i= ij --- }kjk vafdr fVIi.kh ls lkQ lkQ tkghj gksrk gS fd fnukad 31-8-93 dks gh vkidks M;wVh gsrq QhV ?kksf'kr dj fn;k x;k Fkk ijUrq vki fcuk fdlh lwpuk ds fnukad 01-9-93 ls yxkrkj vktrd fnukad 4-3-95 rd vukf/kd`r :Ik ls viuh M;wVh ls vuqifLFkr py jgs gSA vkidh fiNyh vukf/kd`r vuqifLFkfr ls lkQ lkQ tkghj gksrk gS fd vki vukf/kd`r :Ik ls vuqifLFkfr jgus ds vkfn gS rFkk vkidks jsy lsok ldh vko";drk ugh gS vkidh fiNyh vukf/kd`r vuqifLFkfr fuEu izdkj gS MANISH KUMAR SRIVASTAVA 11 o'kZ 1990 es 96 fnu vukf/kd`r vuqifLFkfr o'kZ 1991 es 97 fnu -------;Fkksd`r----------
o'kZ 1992 es 162 fnu -------;Fkksd`r----------
o'kZ 1993 es 314 fnu -------;Fkksd`r----------
o'kZ 1994 es 365 fnu -------;Fkksd`r----------
vr% fnukad 1-9-93 ls fnukad 4-3-95 rd yxkrkj viuh M;wVh ls vukf/kd`r :Ik ls vuqifLFkr jg dj jsy deZpkjh vkpj.k vf/kfu;e 1967 ds mi fu;e 3 ¼1½ ¼1½ 3¼1½ ¼2½ rFkk 3¼1½ ¼3½ dh ----- vogsyuk rFkk voekuuk dh gS
15. Now coming to the issue raised on the behalf of the parties, first we take up the issue of non-supply of the chargesheet to the applicant and non-appointment of the Presenting Officer in the enquiry proceeding. Record reveals that copy of the chargesheet was supplied to the applicant but the Presenting Officer in the matter has not been appointed. Issue of appointment of Presenting Officer was considered by the Hon'ble High Court of M.P in Union of India through its ----- Vs. Mohd. Nasim Siddiquie 2005 ILLJ 931 MP and has held that absence of the Presenting Officer by itself will not vitiate the enquiry and it is recognized that Inquiry Officer can put question to any or all witnesses to elicit the truth. Only limitation is that Inquiry Officer will not ask a leading question from the witness concerned and he will not act as prosecutor. Thus, in the present matter since no prosecution witness has been examined, thus, enquiry proceeding cannot be held to be vitiated due to non-appointment of Presenting Officer.
16. As far as issue raised in regard to the non-mentioning the name of the witnesses in the chargesheet is concerned, certainly in the chargesheet in the column of Article 4 in the list of witnesses, the word nil has been mentioned. Perusal of the impugned orders also reveals that no witness has been examined in the matter whereas two documentary evidence in article 3 has been disclosed in the chargesheet. Opinion has been formed on the basis of documentary evidence disclosed in the chargesheet but same have not been proved by any witness which was mandatory as has been held in Satendra Singh (supra) case. Examination of the witnesses to prove the documentary evidence is must. The documents which have not been proved by examining the witnesses MANISH KUMAR SRIVASTAVA 12 cannot be read as evidence, thus, submission raised on behalf of the applicant in this respect is acceptable.
17. As far as unauthorized absence of the applicant is concerned, certainly in the chargesheet word unauthorized absence has been used and the Disciplinary Authority as well as Appellate Authority have not considered as to whether absence was wilful or due to some compelling reason as has been held in Krushnakant B. Parmar (supra) case. Mere unauthorised absence if it is not willful cannot be construed as misconduct. It was incumbent upon the Inquiry Officer, Disciplinary Authority as well as Appellate Authority to see whether unauthorized absence of the applicant as disclosed in the article of the charges and in the impugned orders was willful or not. No specific charge to this extent has also been framed in the matter nor any opinion to this extent has been formed in the impugned order, thus, on this ground also impugned orders are not sustainable.
18. As far as compliance of the provision of Rule 9 (21) of Railway Servants (Discipline and Appeal) Rules, 1968 is concerned, This issue came up before the Hon'ble Supreme Court of India in Sunil Kumar Benerjee Vs State of West Bengal and others reported in 1980 AIR SC 1170, (the Full Bench) for consideration and the Hon'ble Supreme Court has held that failure to comply with procedural requirement such as questioning the charged official does not vitiate the inquiry unless the delinquent officer establishes prejudice. It is also held that mere non- compliance of the preliminary rules akin to Section 313 of CRPC does not warrant interference. It is pertinent to mention that compliance of the provision of Rule 8(19) of the All India Services, Discipline and Appeal Rules, 1969 was in issue before the Hon'ble Supreme Court.
19. Subsequently, in the year 1998 in Ministry of Finance and Anr Vs S B Ramesh reported in AIR 1998 SUPREME COURT 853, this issue regarding compliance of the provision of Rule 14(18) of CCS (CCA) Rules, 1965 came up for consideration before the Hon'ble Supreme Court and in this case the Tribunal while deciding the OA had MANISH KUMAR SRIVASTAVA 13 opined that non-interrogation of the charged official under Rule 14(18) of CCS (CCA) Rules, 1965 vitiates the entire proceedings because it is a mandatory provision. Hon'ble Supreme Court affirmed the order passed by the Tribunal meaning thereby the provision of Rule 14(18) of CCS (CCA) Rules, 1965 was held as mandatory.
20. This issue again came up for consideration before the Hon'ble Supreme Court in 2008 in Moni Shanker vs Union of India and another case in Appeal (Civil) No. 1729 of 2008 decided on 04.03.2008 and in that case the Hon'ble Court explicitly held that "the High Court also committed a serious error in opining that compliance of Rule 9(21) of Railway Servant (Discipline & Appeal) Rules, 1968 was not imperative. The purpose for which Rule 9(21) of Railway Servant (Discipline & Appeal) Rules, 1968 has been framed is clear and unambiguous. The Railway servant must get an opportunity to explain the circumstances appearing against him. In this case, he has been denied from the said opportunity". Thus, Hon'ble Supreme Court was of the opinion that if the charged official has not examined himself as a witness, it is incumbent upon the inquiry officer to interrogate the charged official by placing all the incriminating materials collected during investigation before him and this provision is mandatory in nature. Inadequate compliance of this provision was also found prejudicial in nature.
21. The aforesaid discussion abundantly rules that it is incumbent upon the inquiry officer to interrogate the charged official under Rule 9 (21) of Railway Servants (Discipline and Appeal) Rules, 1968 and it is a mandatory provision to be followed during the course of inquiry. But certainly, it has been established from the perusal of the records and taking into consideration the pleadings exchanged across the Bar that the aforesaid provision was not adhered to in the instant case of the applicant. At this stage, it is also pertinent to refer to the Office Memorandum dated 18.02.2015 issued by the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, MANISH KUMAR SRIVASTAVA 14 Government of India vide F. No. 11012/3/2015-Estt.A-III dealing with the subject "Importance of following the due process in disciplinary proceedings - reg.". The paragraph 3 of the said OM reads as under:
"3. Rule 14(18) of CCS (CCA) Rules, 1965, provides that, "the inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.".
This is a formal action required to be taken by the inquiry officer before closing the inquiry. It has been seen that many a times this is not formally recorded and the inquiry gets vitiated. It is imperative that the inquiry is conducted strictly in accordance with the procedures prescribed."
A perusal of the aforesaid OM further reveals that its copy was also sent to all the Ministries and departments including the C&AG of India, New Delhi.
Since the Government of India itself has issued the aforesaid OM directing all the departments to follow the provision of Rule 14(18) of CCS (CCA) Rules, 1965 mentioning therein that this provision is imperative, thus, non-adherence to the provision of Rule 9 (21) of Railway Servants (Discipline and Appeal) Rules, 1968 will vitiate the inquiry proceedings. In the present matter, the applicant has not examined himself as witness during inquiry and he was not permitted to examine the witnesses in his defence, no effort has been made at the end of the inquiry officer to interrogate the applicant taking recourse to the provision of Rule 9 (21) of Railway Servants (Discipline and Appeal) Rules, 1968 placing all the incriminating materials collected during the inquiry before him for his say. Thus, on this ground, in our considered view, the inquiry proceedings as well as orders passed on that basis will be vitiated because this OM has been issued in the year 2015 deeming that Rule 14(18) of CCS (CCA) Rules, 1965 is imperative.
22. In this matter, applicant has not examined himself as witness nor the witness named by him in the defence were summoned for examination and no prosecution witness has also been examined on behalf of the applicant to prove the relied upon documents, thus, it shall be presumed that due to non-interrogation of the applicant under Rule 9 (21) of the Railway Servants (Discipline and Appeal) Rules, 1968, prejudice is caused to the applicant and on this ground entire enquiry MANISH KUMAR SRIVASTAVA 15 proceeding and the impugned orders will be vitiated as proper procedure prescribed for conducting the enquiry have not been followed and also there is violation of principle of natural justice. It is also argued on behalf of the applicant that applicant has furnished the list of witnesses but the same were not summoned to examine them in defence. We have also gone to the record to ascertain this fact and Appeal memo (Annexure A-6) clearly reveals that not only applicant has demanded certain documents but name of the witnesses to be examined in his defence have also been given but no order has been passed nor those witnesses were summoned rather opinion was formed that delinquent employee failed to adduce any evidence in his defence. Apart to this Disciplinary Authority as well as Appellate Authority have not given any finding as to whether unauthorized absence was willful or not. In absence of such finding impugned orders become unsustainable.
23. Thus on the basis of aforesaid discussion, OA is liable to be allowed and accordingly allowed and impugned orders dated 27.06.1996 and 15.01.2004 are hereby quashed. Since applicant has crossed the age of superannuation and he was out of job due to impugned orders, therefore, the period from the date of removal till the age of superannuation shall be treated in service without back wages. Absence period shown in the chargesheet be regularized in any kind of leave available in the account of the applicant. If no leave is available extra ordinary leave be allowed to him. Thus, all consequential benefits be extended to him including the post retiral benefits. The aforesaid direction shall be complied with within a period of three months from the date of receipt of a certified copy of this order. There shall be no costs. All associated MAs are disposed of.
(Mohan Pyare) (Justice Om Prakash-VII)
Member (A) Member (J)
Manish/-
MANISH KUMAR
SRIVASTAVA