Central Administrative Tribunal - Delhi
The General Manager vs Shri Arun Kumar on 21 July, 2014
Central Administrative Tribunal
Principal Bench
RA No.88/2011
In
OA No.2118/2009
Reserved on : 21.04.2014
Pronounced on : 21.07.2014
Honble Shri Sudhir Kumar, Member (A)
Honble Shri A.K. Bhardwaj, Member (J)
Union of India
1. The General Manager,
Northern Railways,
Baroda House,
New Delhi.
2. Divisional Railway Manager,
Northern Railway,
State Entry Road,
New Delhi.
3. Chief Traffic Manager,
DRM Office, State Entry Road,
New Delhi.
4. Sr. Divisional Engineer (Estate),
Northern Railway,
New Delhi.
Review Applicants
(By Advocate : V.S.R. Krishna )
Versus
Shri Arun Kumar,
S/o Shri Himmat Raj,
Ex. Goods Clerk, Northern Railway,
R/o H.No.2180, Railway Colony,
Shakurbasti,
Delhi.
Review Respondent
(By Advocate : Ms. Meenu Mainee)
ORDER
HONBLE SHRI SUDHIR KUMAR, MEMBER (A) :
OA 2118/2009 had been filed on 19.01.2010 by the applicant, who is respondent in this RA, seeking certain reliefs like quashing of the orders dated 22.01.2009 of his Disciplinary Authority, imposing upon him penalty of removal of service with immediate effect, and against his eviction from the Government accommodation allotted in his favour, and also quashing of the orders passed by the Revisional Authority, and praying for any further reliefs which this Tribunal may deem fit and proper under the facts and circumstances of the case. The counter reply was filed on behalf of respondents on 29.01.2010, and thereafter the case was disposed of by this Tribunal through an oral order dated 29.09.2010, declaring the order passed by the Disciplinary and Appellate Authorities as having been illegal. While allowing the OA, respondents were directed to forthwith reinstate the applicant, but at the same time giving the respondents liberty to take up disciplinary proceedings against the applicant, in accordance with law, since his removal from service earlier had been under Rule 14 (ii) of the Railway Servants (Disciplinary and Appeal) Rules, 1968, [RS(DA) Rules, in short] on the ground that it was not practicable to hold an enquiry under Article 311 (2)(b) of the Constitution, in the peculiar circumstances of the case. The operative part of the said order reads as under :-
10. In the above view of the matter, we have no hesitation to hold that the disciplinary authority in this case without applying the dictum of Tulsi Ram Patels case and misusing the provision of Rule 14(2) and on adoption of shortcut having dispensed with the inquiry, which was very much possible, depriving the applicant a reasonable opportunity to show cause, which has a constitutional obligation on holding a civil post is a right of the applicant to be accorded an opportunity before his service as dispensed with in consonance with departmental rules, having been denied is not legally tenable.
11. Insofar as the appeal decided by the appellate authority is concerned, there is no application of mind. Even the possibility of holding an inquiry at the appellate stage have not been explored and no reasons have been cross-recorded on the same is also not in consonance with the constitution mandate in Tulsi Ram Patels case (supra).
2. The respondents of the OA filed this RA on 22.02.2011, inter alia praying for review of the order passed on 29.09.2010. In order to examine the context of the OA and the present Review Application, we must describe briefly the facts of the case.
3. The applicant of the OA/respondent of the RA was working as Goods Clerk in the Cement Siding, Shakurbasti Railway Station. A complaint was received in writing from Delhi Cement Dump/Handling Agents Association dated 05.08.2008, alleging that the applicant of the OA/respondent of the RA is involved in blackmailing, illegal extortion, unauthorized encroachment and unlawfully threatening, demanding illegal money, and pressurizing the handling agents, because of which there have been frequent stoppages of work at the Railway Goods Siding, Shakurbasti, resulting in detention of Railway wagons, and direct effect on handling of cement, which is an essential commodity. The Railway Administration conducted a fact finding enquiry, which revealed that the complaints were prima facie genuine, and the Disciplinary Authority was satisfied that the applicant was involved in malpractices, blackmailing, Gundagardi, illegal extortion and unauthorized encroachment etc. After recording his reasons in this regard, the Disciplinary Authority considered the material available on record, and passed the order for removal from service of the applicant of the OA/Respondent of the RA on 22.01.2009, after duly recording his finding that it was not found reasonably practicable to hold a disciplinary enquiry in the manner provided for under the Rules. The appeal dated 16.2.2009 filed by the delinquent was duly considered and rejected by the Sr. DCM, New Delhi, by passing a detailed speaking order dated 26.5.2009 (Annexure-2 of the OA). The applicant of the OA/respondent of the RA had, thereafter, submitted a Revision Petition dated 22.06.2009 to the Revisionary Authority i.e. Chief Traffic Manager, New Delhi, but that Revision Petition was also duly considered and rejected through orders dated 01.12.2009 (annexed as Annexure-A-3 of the OA). The Review Applicants have submitted that it was fully within the knowledge of the applicant that there were complaints against him, and that FIRs had also been lodged against him, but he did not disclose the same in the OA, when he came before the Tribunal, which was a request for seeking reliefs with tainted hands. Since some of those relevant documents which ought to have been considered by the Tribunal, did not form part of the file, the Review Applicants have filed this RA along with those documents.
4. The grounds taken by the Review Applicants are that while passing its order under review, this Tribunal did not appreciate that the order under challenge was issued on the basis of an internal fact finding enquiry, two FIRs, scores of complaints and newspaper reports, and one admitted incident of the arrest of the applicant of the OA/respondent of the RA and his detention for more than 48 hours. They have taken the ground that though being a Railway employee, the applicant of the OA/respondent of the RA was openly acting against its interests, by taking law into his own hands.
5. It was further submitted that the reliance placed by the Bench in passing its orders on the judgment of the Honble Apex Court in Chief Security Officer and Others Vs. Singasan Rabi Das AIR (1991) SC 1043 was misplaced, as in that case, there was no preliminary enquiry, and in this case, there was a preliminary enquiry, two FIRs , one instance of arrest for more than 48 hours, and scores of newspaper reports of strikes being organized, many complaints regarding gundas operating with impunity, and contractors being scared, to the extent of their moving out to truck transport, instead of Railway transportation of cement wagons. They have further taken the ground that the apprehension of danger to life was not that on the part of the Enquiry Officer, or the Disciplinary Authority, but that of the witnesses who would have been required to have been brought, and who mattered, but who were afraid to depose in any such disciplinary enquiry. They have pointed out that the issue was that one person was acting in concert with unruly elements, and hence his coercive powers were much more, and were unpredictable.
6. The Review Applicants have taken the further ground that in judicial review, it is not for this Tribunal to go into the sufficiency or otherwise of the materials placed before the Competent Authority, and the Tribunal can only verify and ascertain that some material was indeed so placed and considered, before such an order was passed, without being vitiated by malafide, and not being based on wholly extraneous or irrelevant considerations. It has been further submitted by the review applicants that both public interest and public good demanded that penalty should be imposed upon the applicant of the OA/respondent of the RA forthwith, and summarily, since he was not only bringing a bad name to the Railways, but was also causing business loss, as he was scaring the very business for the assistance of which he had been employed, and was being paid from public exchequer. The review applicants had thereafter cited the Honble Apex Courts observations in Union of India Vs. Tulsi Ram Patel (1985) 3 SCC 398 decided by a Constitution Bench, in which, in para 118 of the judgment, the phrase not reasonably practicable to hold the enquiry had been discussed and analysed by the Honble Apex Court.
7. The review applicants have further taken the ground that the observations of this Tribunal in paragraphs 10 and 11 of the judgment, as reproduced above, are like this Tribunal giving its own second opinion on the same set of facts, while it has been repeatedly held by the Honble Apex Court that the authorities concerned are the best judges of facts, and Courts and Tribunals should limit themselves to observations as to whether there was enough material for passing the order or not, which is the limited scope of judicial review. It was submitted that the Disciplinary Authority was a person who was closest to the spot, was seized of the facts already available on file, and was aware of the ground realities, and his decision ought not to have been reversed by this Tribunal, as if sitting in appeal. It had, therefore, been prayed for the Review Application to be allowed, and the OA to be restored to its original number, in the interest of justice.
8. Along with this RA, the review applicants had filed numerous documents, including copies of their internal correspondence, the complaint letter addressed to SHO, Police Station, Punjabi Bagh, by several members of Railway Cement Siding Workers Union, Shakur Basti, Delhi, along with photocopies of their ID cards, a copy of the First Information Report (FIR) registered with the Police Station, Saraswati Vihar, on 30.11.2008, the Notice under section 107/111 of CrPC issued to the applicant of the OA/respondent of the RA by the Court of the Special Executive Magistrate of Delhi West District on 18.10.2006, a copy of another FIR registered at Police Station, Punjabi Bagh dated 03.08.2008, and similar notices under Section 107/111 of CrPC dated 18.10.2006 issued by the Special Executive Magistrate, copies of numerous Press clippings, and the complaint dated 19.01.2009 of the Railway Contractors Work Men Union (Regd.) against the activities of the applicant. They have also enclosed an intimation sent by the Sub Inspector of Police Station, Punjabi Bagh, dated 05.08.2008, addressed to the DRM, Northern Railway, New Delhi, which stated as follows :-
Subject Information regarding involvement of your employee Arun Kumar Vidrohi in Case FIR No. 284/08 Dt 3/08/08 U/S 147/148/149 /308/323/427 /34 IPC P.S. Punjabi Bagh Delhi Sir, It is submitted that on dt 3/08/08 one of your employee Arun Kumar Vidrohi who is working as Goods Clerk at Shakur basti Railway station and is a union leader instigated the Labours working at Cement Siding Pubjabi Bagh Delhi due to which a Riot took place and many persons injured and many vehicles were damaged. A large force was called at the spot and situation was controlled and Case FIR No -284/08 Dt 3/08/08 U/S 147/148/ 149/308/323/427/34 IPC P.S.- Punjabi Bagh Delhi was registered against him. He is wanted in this case and absconding. Hence you are requested to produce him.
This is for your information and taking necessary action.
9. They had also filed a copy of the complaint of the Workers Union dated 04.08.2008, submitted in regard to the said incident.
10. The applicant in the OA/respondent in the RA filed his counter reply to the Review Application on 21.09.2011, contending that the Review Petition as filed is not maintainable, as no proper grounds for review have been pointed out by the review applicants. It was submitted that the Review Petition is not maintainable in accordance with the law as laid down by the Honble Apex Court in the case of Prasana Devi Vs. Union Of India JT (1997) 8 SC 480, in which case the Honble Apex Court had clearly held that Review Application can not be utilized for re-arguing the case, and for traversing the same ground once again, and review can be resorted to only when a clear error has crept in the earlier order, as review cannot be allowed to be filed as an appeal in disguise. The learned counsel for the Review Respondent had further submitted that in another case of M/s Associate Tubewells Limited AIR 1957 SC 743 , the Honble Apex Court has laid down the law that it is possible that a view, which ultimately appealed to a judge in coming to his conclusion, is erroneous, but that by itself can afford no ground for review. Learned counsel further submitted that in yet another case in Northern India Caterers (India) vs. Lt. Governor Of Delhi 1980 AIR 674, 1980 SCR (2) 650, the Honble Apex Court has held that a party is not entitled to seek review of the judgment of a Court merely for the purpose of re-hearing and fresh decision of the case. Learned counsel had thereafter cited the decision of Honble Apex Court in Union of India Vs. Tarit Ranjan Dass ATJ 2004 (2) SC 190; 2004 SCC (L&S) 160, pointing out that the scope of filing the Review Application is very limited, and that too when some error is pointed out on the face of record, or some documents which could not be earlier filed, in spite of due diligence, have come in the knowledge of the Review Petitioner subsequently.
11. It was submitted that the Review Applicants have not been able to point out any error apparent on the face of record, nor any fresh document has been produced, which was not available with them earlier, or which could not have been filed even after exercise of due diligence. It was submitted that the documents now filed are illegible copies of the originals, but that it can be gathered from the Review Petition that these documents are not relevant to the subject matter in any manner, and it has also not been explained as to how and why these documents could not be filed earlier, along with the counter reply in the OA. It was further submitted that merely because some complaints had been received against the applicant of the OA/respondent of the RA, the principles of natural justice and a reasonable opportunity of adducing evidence could not have been denied to him, which had been done while passing the order impugned in the OA, which had been rightly set aside by this Tribunal while deciding the OA.
12. It was further submitted that the conclusions arrived at by the Disciplinary Authority in his order show his pre-determination to punish the applicant, without making any sincere efforts for calling persons to depose in the Departmental Enquiry, and this cannot, therefore, be a ground for arriving at a substantive satisfaction, as is required by the Constitution Bench Judgment in Tulsi Ram Patels case (supra). It was submitted that when neither a charge sheet had been issued to the applicant of the OA/respondent in the RA, nor any attempt to call the witnesses had been made, it could not have been assumed that the witnesses will not come due to his fear, and such a conclusion of the Disciplinary Authority was clearly malafide, because of which, the Tribunal was pleased to direct the respondents to reinstate him, though after such reinstatement, the respondents have now passed the orders dated 01.07.2011, transferring the Review Respondent from Shakurbasti Railway Station to another Station. Thereafter, giving parawise replies to the Review Application, the above contentions had been repeated.
13. The applicant of the OA/respondent of the RA had further pointed out the case of Parnay Sinha & Ors., where the appellant had filed a Writ Petition by way of an appeal, but withdrew the same on the ground that some documents were being filed for review, which prayer was accepted, and the Writ Petition was dismissed as withdrawn, but when the documents on the basis of which the Review Petition was filed were found to be very much available with the Union of India, their Review Petition was dismissed.
14. It was submitted that even the Fact Finding Preliminary Enquiry had been held behind the back of the applicant of the OA/respondent of the RA, and no witnesses were examined in his presence, or a copy of the so called preliminary enquiry report was given to him. It was submitted that the Disciplinary Authority had failed to appreciate that those witnesses who were examined in the preliminary enquiry could have very well attended the Disciplinary Enquiry, if efforts had been made to hold such a Disciplinary Enquiry, and call the witnesses, as per law. It was submitted that even the Review/Revisional Authority had failed to appreciate that an illegality had been committed by the Disciplinary and Appellate Authorities, and that the Constitution Bench judgment in the case of Tulsi Ram Patel(supra) had not been followed, and it was, therefore, prayed that the Review Petition filed is not maintainable. The grounds raised by the Review Petitioners were, therefore, denied by submitting the justifications, as per the discussion above.
15. It was reiterated that the review applicants could not have taken resort to Rule 14(ii) of the RS(DA) Rules, 1968, merely because there were unsubstantiated allegations, which had not been tested on the touch stone of the evidence, and even an attempt had not been made to conduct an enquiry to determine the facts on merits, the conduct of which disciplinary enquiry was very much practicable, because a preliminary enquiry had already been held in a similar manner. It was submitted that the only course available to the Review Petitioners was to prefer an appeal before the Honble High Court, which they had done, but after knowing the views of the Honble High Court, they withdrew the Writ Petition, praying for being granted liberty to file a Review Application, on the basis of certain documents, which they have now done by filing the present RA.
16. It was submitted that there was no concrete material before the Disciplinary Authority on the basis of which he could have come to a conclusion that it was not reasonably practicable to hold the enquiry, and the Disciplinary Authority had, therefore, acted merely on the basis of the preliminary enquiry report, which had been recorded behind the back of the applicant of the OA/respondent of the RA. Having thus denied all the grounds taken by the Review Petitioners, it was submitted by the Review Respondent that no mistake/error/ irregularity had been committed by this Tribunal in paragraphs 10 and 11 while passing the orders in the OA, and that it had been rightly held by this Tribunal that the material available with the Disciplinary Authority could not have constituted sufficient ground to dispense with the enquiry. It was, therefore, prayed that the Review Petition should be dismissed, with exemplary costs.
17. The review applicants thereafter filed a rejoinder on 21.02.2012 and a further affidavit dated 19.10.2012. In the rejoinder dated 21.02.2012, the Review Applicants had submitted that the Review Petition had been filed on the strength of the liberty granted by the Honble High Court vide its order dated 17.01.2011, because of which the preliminary objection of the applicant in the OA/respondent of the RA was not maintainable. It was further submitted that there were complaints from established firms like Mundhra International, Sales Promoters and C&F Agents of Grasim Cements, and also on the behalf of Railway Unions as well as Indian Railway Malgodam Labour Union, on the basis of which, the FIR mentioned earlier had been filed. However, upon the OA of the applicant succeeding before this Tribunal, he was reinstated, but still he did not mend his ways. It was pointed out that after his reinstatement on the directions of the Tribunal, another FIR No.350/2011 has since then been registered against the applicant of OA/respondent of RA, on 05.11.2011, which was similar in nature to the complaints and FIRs registered earlier against him. They had pointed out that in the later incident the applicant of the OA/respondent of the RA had even been arrested, and the intimation regarding his arrest had been sent by the Police Station, Punjabi Bagh, through their letter dated 06.11.2011, because of which fresh orders dated 08.11.2011 were passed. He had been placed under deemed suspension w.e.f. the date of his being placed in judicial custody from 05.11.2011, since the learned Metropolitan Magistrate, Tis Hazari, had sent him to judicial custody till 19.11.2011 as reported by the Sub Inspector of Police Station, Punjabi Bagh, on 07.11.2011.
18. It was submitted that since the applicant of the OA had been afforded an opportunity to mend his ways, but he did not improve his working, and indulged in such actions that he had to be arrested, and was remanded to judicial custody, and placed under deemed suspension, it was clear that the case of Tarit Ranjan Dass (supra) cited by his counsel was distinguishable and not applicable, and that the Review Petition deserves to be allowed. Thereafter, on 19.10.2012, the Review Applicants filed another affidavit for bringing on record the fair copies of certain documents and Annexures. These included repeated photocopies of some of the documents already filed earlier, the complaint dated 20.05.2010 of M/s Mundhra International, Sales Promoter and C&F Agents of Grasim Industries Ltd., Cement Division, dealing with Birla Plus Cement, the internal correspondence between the Head Office and Chief Commercial Manager dated 30.04.2008, a copy of the Revision Petition filed by the applicant of the OA/respondent of the RA dated 22.06.2009, and the order dated 01.12.2009, by which his Revision Petition had been rejected by passing a detailed four typed pages order, meeting all the grounds in the Review Petition, and a copy of the earlier speaking order on the appeal dated 16.02.2009 of the applicant of the OA/respondent of the RA, which was passed on 26.05.2009. In both these orders, dated 26.05.2009 of the Appellate Authority, and dated 01.12.2009 of the Revisional Authority, the orders of the Disciplinary Authority, coming to the conclusion that it was not reasonably practicable to hold the Departmental Enquiry against the applicant, had been upheld.
19. The RA was heard in detail and reserved for orders on 21.04.2014, and both sides had been granted three days time to file further written submissions, if any, but that opportunity has not been availed of by both the parties.
20. This Review Application essentially revolves around the circumstances under which the Disciplinary Authority had come to the conclusion that conduct of a regular disciplinary enquiry is not reasonably practicable, which ground had not been accepted by this Tribunal earlier while passing its orders, particularly in para 10 and 11 of the order dated 29.09.2010. The powers of the Disciplinary Authority to come to such a conclusion have been clearly laid down in Article 311(2)(b), which says that where the authority empowered to dismiss or remove a person, or to reduce him in rank, is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry, it can dispense with the requirement of holding such an enquiry. When the OA was decided by this Tribunal earlier, reliance had been placed on the judgment of Honble Apex Court in Chief Security Officer & Others Vs. Singasan Rabi Das (supra), where the enquiry had been dispensed with only on the ground that it was considered not feasible or desirable to procure witnesses since it was felt that this will expose the witnesses, and make them ineffective in future. Therefore, the Honble Apex Court ruled that it was still possible to hold the inquiry, for which no sincere efforts had been made by the respondents, and there was total absence of sufficient material or good grounds, for dispensing with the enquiry.
21. However, we have examined the Honble Apex Courts judgment in the case of Tulsi Ram Patel (supra), relied upon by the Review Applicants for seeking a review of the earlier order of this Tribunal. The Honble Apex Court had in Tulsi Ram Patels case laid down the law as follows :-
.Much as this may seem harsh and oppressive to a government servant, this Court must not forget that the object underlying the second proviso is public policy, public interest and public good and the Court, must, therefore, repel the temptation to be carried away by feelings of commiseration and sympathy for those government servants who have been dismissed, removed or reduced in rank by applying the second proviso. Sympathy and commiseration cannot be allowed to outweigh considerations of public policy, concern for public interest, regard for public good and the peremptory dictate of a Constitutional prohibition..
..After all, it is not as if a government servant is without any remedy when the second proviso has been applied to him. There are two remedies open to him, namely, departmental appeal and judicial review.
..Further, the exigencies of a situation may require that prompt action should be taken and suspending the government servant cannot serve the purpose. Sometimes not taking prompt action may result in the trouble spreading and the situation worsening and at times becoming uncontrollable. Not taking prompt action may also be construed by the trouble-makers and agitators as a sign of weakness on the part of the authorities and thus encourage them to step up the tempo of their activities or agitation. ( Emphasis supplied )
22. We have seen here that the documents, as had been filed in the OA, and the further documents which could not be filed at the time of earlier hearing of the OA, but have been filed now by the respondents, clearly disclose an element of urgency on the part of the respondents in solving the problem of unloading of the cement bags at the Goods Cement Siding, where the activities of the applicant of the OA/respondent of the RA had led to a total stoppage in the unloading activities. It is seen from the orders of the Appellate Authority, and of the Revisional Authority, that even they had counselled the person concerned, who had been appointed on compassionate grounds himself, but had indulged in such illegal activities because of which there was hindrance in the performance not only of his own work, but the work of the others also, who were connected with the unloading of cement bags at concerned Railway Siding. The fact remains that the preliminary inquiry had come to the conclusion that an element of terror existed, because of which even if a detailed disciplinary enquiry had been conducted, it would have not resulted in an absolutely fair conduct of the Disciplinary Enquiry.
23. Fairness in the conduct of the disciplinary enquiry is not a right which is available only to the delinquent Government official. Even the Department concerned, which has to lead the case of the prosecution, is also entitled to fairness in the conduct of the disciplinary enquiry on the part of the Enquiry Officer. In this connection, we may borrow the following paragraphs from a judgment dated 20.12.2013 in OA No.395/2012 Vijay Shankar Pandey Vs. UOI & Anr. of Lucknow Bench of this Tribunal, which had been penned by one of us [Member (A)], and are relevant in the context of the present fact situation also:-
91. The further aspect that has to be seen by us is as to whether the Inquiry Officer could have used his discretion to do away with the rigours and the process of going through the motions of conducting a fair and Proper Disciplinary Enquiry, by maintaining a day to day daily diary of the proceedings, and recording evidence as adduced by the Presenting Officer on behalf of the Department and by the applicant as the delinquent official, under exercise of his functions as a quasi-judicial authority. The law regarding abuse of discretion has also been laid down fairly clearly, both in English Law and Indian Law. It is a classic constitutional doctrine that wide discretionary powers are incompatible with the Rule of Law. What the Rule of Law demands is not that wide discretionary powers should be eliminated, but that the law should be able to control its exercise. Therefore, when the 1969 Rules had laid down the process and procedure to be followed by the Inquiry Officer for conducting the inquiry, the Rules have also very aptly and appropriately limited the discretionary powers of the Inquiry Officer to do away with the motions which have necessarily to be gone through by him for conducting the Disciplinary Enquiry.
92. All powers have legal limits, and all the powers of the Inquiry Officer have also been laid down. If the Inquiry Officer chooses to do away with the procedure as prescribed for him to conduct an inquiry as per the Rules prescribed in this regard, any report which he submits thereafter can only be held to be void ab initio, and nothing else. Arbitrary power and unfettered discretion are what the Courts have always refused to countenance, and we have to most respectfully follow that basic legal tenet. Statutory powers have to be exercised with care, fairly, reasonably, and in good faith, and for proper purposes only, and in accordance with the spirit, as well as the letter of the empowering Act, or Rules, or Regulations. An Inquiry Officer appointed under the 1969 Rules cannot, therefore, abrogate to himself powers to do away with the prescribed procedure regarding conduct of the Disciplinary Enquiry, and it does not lie within either his administrative discretion or quasi-judicial function to do away with the process and procedure as prescribed for conducting the disciplinary inquiry.
93. Discretion is an element in all powers assigned to various levels of authorities, as opposed to duties. Powers assigned to administrative or quasi-judicial authorities are given to them for proper performance, and they hold their authority to perform those functions upon trust. But, at the same time, they must confine themselves to applying recognizable principles of law, since at any cost they must not expose themselves to the charge of abuse of discretion. In order to preserve the Rule of Law, the Courts have constantly reacted to any abuse of discretion by devising some means of preserving legal principles of control. This is what is known as judicial review, which means "review of the manner in which the decision was made".
94. Here, in the instant case, we find that the Inquiry Report which was submitted by the Inquiry Officer one day after the restrictions imposed upon him by the stay order earlier issued by the Allahabad Bench of this Tribunal was lifted through the pronouncement of the final order in OA No.623/2012 on 29.8.2012, was not in the manner the Inquiry Report could have been submitted, and in exercise of the power of judicial review, we have no hesitation in holding that it amounted to an abuse of the process of law, and an abuse of the discretionary power available to the Inquiry Officer to arrive at a conclusion after hearing both the sides. Therefore, any such Report, whether it has exonerated the applicant, as the applicant before us has repeatedly pleaded, or has, instead, found him guilty, is void ab initio. In submitting his report one day after the restriction upon him to conduct the Disciplinary Enquiry was lifted, without going through the motions of conducting the Disciplinary Enquiry actually, the Inquiry Officer failed to act fairly, reasonably, and in good faith, and was not on correct grounds, and therefore, the Report was ultra vires the prescription of the procedure for conduct of the Disciplinary Enquiry, and void ab initio, being devoid of the principles of fairness and natural justice having been followed, either towards the respondent Disciplinary Authorities, who had framed the charges, or towards the applicant delinquent Government officer, who was facing the charges.
95. When we apply the principles of law that judicial review means review of the manner in which the decision was made, as per the law as laid down in Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155 at 1174 (Lord Brightman), (supra), we cannot but observe that the Inquiry Officer had contravened the law, by acting in excess of the powers which the Rules of 1969 had provided for him, which flies in the face of the principles as laid down in the case "Associated Provincial Picture House Ltd. v. Wednesbury Cpn [1948] 1 K B 223 at 234, commonly known as Wednesbury principles.
96. We have since noticed some Indian case law also on the same subject, supportive of our conclusion as above. In the case of Bimal Charan Misra vs. State of Orissa, AIR 1957 Orissa 184, it was held by the Honble Orissa High Court that Inquiry Officer should strictly observe the principles of natural justice, and follow the mandatory provisions of the concerned Rules, otherwise it must be held that the disciplinary enquiry so conducted was in flagrant violation of the mandatory provisions of the relevant Rules, and the principles of natural justice, and, therefore, void. In the instant case before us, this is what has happened, and, therefore, his Report dated 30.08.2012 has to be treated as void, or a nullity in law.
97. In the case of Ramesh Chandra Verma vs. R.D.Verma, AIR 1958 All. 532 (543), it was held by the Honble Allahabad High Court that where the Inquiry Officer expressed his opinion on a charge even before cross-examination of the witnesses was over, it must be held that he had prejudiced the issue. In the instant case, the Inquiry Officer had even submitted his final report, without recording any evidence whatsoever. Therefore, he had prejudiced the issue, and his report was void, or a nullity in law.
98. In the case of State of Punjab vs. Karam Chand, AIR 1959 Punj. 402 (412-413), it was held by the Honble Punjab & Haryana High Court that the Inquiry Officer must conduct the hearing fairly and impartially. If the Inquiry Officer conducts the proceedings in a manner which is contrary to the rules of natural justice, or fair play, the superior Court would be perfectly justified in exercising its extraordinary powers vested in it by Article 226 of the Constitution. In the instant case, this Tribunal can therefore hold that when the Inquiry Officer earlier appointed had failed to follow the principles of natural justice and fair play, any Report submitted by him was void, and a nullity in law.
99. In the case of State of U.P. vs. C.S.Sharma, AIR 1963 Alld. 94, it was held by the Honble Allahabad High Court that when the enquiry cannot be said to have complied with the elementary principles of natural justice, the enquiry could not be held to be impartial or a proper enquiry. The same has been the case in the instant case, and we must also hold that no impartial or proper disciplinary enquiry was ever held by the previous Inquiry Officer.
100. In the case of State of Mysore vs. S.S.Makapur, 1963 SC 375 (377), it was held by the Honble Apex Court that the Inquiry Officer should not act on any information which they may receive unless they put it to the party against whom it is to be used, and give him a fair opportunity to explain it. What is a fair opportunity must depend upon the facts and circumstances of each case. In the instant case, the Inquiry Officer earlier appointed neither allowed the Presenting Officer to present his case, nor asked the delinquent to produce his evidence and witnesses. In that context, it cannot be said that he followed the principles of natural justice, and his report was, therefore, null & void.
101. In the case of State of Bombay vs. Nurul Latif Khan, AIR 1966 SC 269, the Honble Apex Court held to the following effect:-
(i) The Civil Services (Classification, Control and Appeal) Rules provide in r. 55 that if the charge- sheeted Officer so desires or if the authority concerned so directs an oral enquiry shall be held. This provision is mandatory and is based on considerations of natural justice and fair play. Therefore when the respondent expressed his desire to the Inquiry Officer that he wanted to lead evidence in support of his plea, it was obligatory on the Inquiry Officer to have fixed a date for recording such oral evidence and give due intimation to the respondent in that behalf.
(ii) Though an Inquiry Officer would be justified in conducting the enquiry in such a way that its proceedings are not allowed to be unduly or deliberately prolonged, it would be impossible to accept the argument that if the charge-sheeted officer wants to lead oral evidence the Inquiry Officer can say that having regard to the charges against the officer he would not hold any oral enquiry
(iii) In the present case the witnesses whom the respondent wanted to examine would undoubtedly have given relevant evidence. He wanted to examine his doctors but the Inquiry Officer failed to give him an opportunity to do so. That introduced a fatal infirmity in the whole enquiry as the respondent had not been given a reasonable opportunity to defend himself within the meeting of Art. 311 (2).
102. Therefore, as observed by Honble Apex Court in para 9 of the above judgment, it was not for the Inquiry Officer to avoid & decline to record any oral evidence, merely because the charges were based upon only documents, as the Inquiry Officer appointed in the instant case appears to have done.
103. In the case of Suryanarayana vs. State of A.P., (1967) 2 An. WR 253 (DB) it was held by the Honble Andhra Pradesh High Court that the Inquiry Officer need not to pre-judge the issue before the actual enquiry, and it was noted that the Inquiry Officer gave his judgment even before the trial, rendering the whole trial a mere farce, and hence it was held that the enquiry was not, therefore, validly initiated. This judgment is exactly parallel to the instant case before us, where the Inquiry Officer submitted his report even before conducting the disciplinary enquiry, and, therefore, it has to be held that the Departmental Enquiry was not validly initiated.
104. In the case of Bibhuti Bhushan Paul vs. State of West Bengal, AIR 1967 Cal 29 (31), it was held by the Honble Calcutta High Court that the Inquiry Officer must hold the enquiry to submit a report, even when the written statement of the employee is so convincing that the charges automatically fall to the ground. Hence, if the Inquiry Officer is asked to hold the enquiry after receiving the written statement, it does not show that the enquiry is tainted with bad faith at its inception. This case is also fully in parallel with the instant case before us, where the earlier Inquiry Officer found the applicants reply to be very convincing, and appears to have felt that the charges as levelled against him fall to the ground. Still, the I.O. was under a duty to conduct the Disciplinary Enquiry as per the procedure as laid down in this regard, which he failed to perform, and holding that Disciplinary Enquiry now cannot be held to have been actuated by any bad faith.
105. In the cases of Rao Ralla Palli vs. State of A.P., 1968 SLR 77 (79) and Amar Nath vs. Commissioner, 1969 Cur. LJ 484 it was held that where the Inquiry Officer has already prejudged the issue, he can never be expected to maintain an open mind during the course of enquiry, and in other words, it has to be held that the Inquiry Officer gave his judgment even before the trial, thus rendering the whole trial a mere farce. The ratio in these two judgments also apply to the instant case before us.
106. In the case of Abdul Gani vs. Union of India, (1978) 2 SLR 601 (605) All., it was held that the Inquiry Officer must conduct the departmental enquiry with an open mind, which has not happened in the instant case, where the Inquiry Officer did not even fix any dates for holding the Disciplinary Enquiry, and nor did he give any opportunity to even he Presenting Officer to present his case on the charges as framed and served upon the applicant, and nor did he give any opportunity to the applicant to defend his case against those charges as framed. Therefore, since there was a suo-moto and unilateral submission of a Report by the Inquiry Officer on 30.08.2012, we cannot help but notice, and record, that the Departmental Enquiry had actually never been commenced, or held, with an open mind, in a quasi-judicial manner by the Inquiry Officer.
107. Therefore, we have no hesitation in holding that the Respondent No.2 was fully within its rights to treat the Report dated 30.8.2012 submitted by the said earlier appointed Inquiry Officer, Shri Jagan Mathews, within one day of his having acquired the freedom to submit such a report, without going through the motions of actually conducting the Disciplinary Enquiry, and giving a fair hearing to both sides, as a nullity in law and void ab initio. After holding that the Respondent No.2 Disciplinary Authority had correctly appreciated that the report dt. 30.8.2012 submitted by the said Inquiry Officer, Shri Jagan Mathews, was void ab initio, and non est in law, it was open to the Disciplinary Authority to conclude that the disciplinary enquiry into the charges, and the reply of the applicant as delinquent Government servant informed of those charges, having not been properly conducted by the earlier Inquiry Officer, could now be conducted further within the Rules.
24. The constitutional requirement of Article 311(2)(b) is only that there should be some material atleast, or a reason good enough for the disciplinary authority concerned to believe, and to be recorded by him in writing, that it is not reasonably practicable to hold such an inquiry. The requirement is not that the non-practicability of holding the inquiry should be proved by the Disciplinary Authority in his order. The Constitution requires only subjective satisfaction of the Authority concerned, based upon some cogent reason, which reason must be recorded by him in writing. In the case of Jaswant Singh Vs. State of Punjab & Others AIR 1991 SC 385, the Apex Court had held as follows :-
Thus the English doctrine incorporated in Article 310 which is qualified by the opening words "except as expressly provided by this Constitution" is subject to Article 311(1) and (2) which contains safeguards against termination from service. However, the second proviso to Article 311 (2) is again in the nature of an exception and lays down that in cases catalogued in Clauses (a), (b) and (c) thereof the requirement of an inquiry can be dispensed with. The scope of Articles 310 and 311 of the Constitution was examined by this Court in Union of India v. Tulsi Ram Patel, 1985, (Suppl) 2 SCR 131 : (AIR 1985 SC 1416), wherein by majority of this Court held that once the requirements of the relevant clause of the second proviso are satisfied, the services of a civil servant can be terminated without following the audi alteram partem rule. It was held that since the requirement of Article 311 (2) was expressly excluded by the second proviso, there was no question of introducing the same by the back door. On this line of reasoning, the majority held that Challapan's case, (1976) 1 SCR 783 : (AIR 1975 SC 2216) was not correctly decided. It, therefore, took the view that it is not necessary to offer a hearing to the civil servant even on the limited question of punishment.. Insofar as Clause (b) is concerned this Court pointed out that two conditions must be satisfied to sustain any action taken thereunder. These are (i) there must exist a situation which renders holding of any inquiry "not reasonably practicable"; and (ii) the disciplinary authority must record in writing its reasons in support of its satisfaction. Of course the question of practicability would depend on the existing fact-situation and other surrounding circumstances, that is to say, that the question of reasonable practicability must be judged in the light of the circumstances prevailing at the date of the passing of the order. Although clause (3) of that Article makes the decision of the disciplinary authority in this behalf final such finality can certainly be tested in a Court of law and interfered with if the action is found to be arbitrary or mala fide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry. Also see Satyavir Singh v. Union of India, (1985) 4 SCC 252. (AIR 1986 SC 555), Shivaji Atmaji Sawant v. State of Maharashtra, (1986) 2 SCC 112 : (AIR 1986 SC 617) and lkramuddin Ahmed Borah v. Superintendent of Police, Darrang, 1988 (Supp 1) SCC 663: (AIR 1988 SC 2245).
5. The impugned order of April 7, 1981 itself contains the reasons for dispensing with the inquiry contemplated by Article 311(2) of the Constitution. Paragraph 3 of the said order, which we have extracted earlier, gives two reasons in support of the satisfaction that it was not reasonably practicable to hold a departmental enquiry against the appellant. These are (i) the appellant has thrown threats that he 'with the help of other police employees will not allow holding of any departmental enquiry against him and (ii) he and his associates will not hesitate to cause physical injury to the witnesses as well as the enquiry officer. Now as stated earlier after the two Revision Applications were allowed on October 13, 1980, the appellant had rejoined service as Head Constable on March 5, 1981 but he was immediately placed under suspension. Thereafter, two show cause notices dated April 4, 1981 were issued against him calling upon him to reply thereto within 10 days after the receipt thereof. Before the service of these notices the incident of alleged attempt to commit suicide took place on the morning of April 6, 1981 at about 11.00 a.m.. In that incident the appellant sustained an injury on his right arm with a knife. He was, therefore, hospitalised and while he was in hospital the two show cause notices were served on him at about 10.00 p.m. on April 6, 1981. Before the appellant could not reply to the said show cause notices the third respondent passed the impugned order on the very next day i.e. April 7, 1981. Now the earlier. departmental enquiries were duly conducted against the appellant and there is no allegation that the department had found any difficulty in examining witnesses in the said inquiries. After the Revision Applications were allowed the show cause notices were issued and 10 days time was given to the appellant to put in his replies thereto. We, therefore, enquired from the learned counsel for the respondents to point out what impelled respondent No. 3 to take a decision that it was necessary to forthwith terminate the services of the appellant without holding an inquiry as required by Article 311(2). The learned counsel for the respondents could only point out clause (iv)(a) o sub-para of the counter which reads as under:
"The order dated 7-4-81 was passed as the petitioner's activities were objectionable, He was instigating his fellow police officials to cause indiscipline, show insubordination and exhibit disloyalty, spreading discontentment and hatred, etc. and his retention in service was adjudged harmful."
This is no more than mere reproduction of paragraph 3 of the impugned order. Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3 thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on the respondents to disclose to the Court the material in existence at the date-of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No. 3 in the impugned order. Clause (b) if the second proviso to Article 311 (2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at p. 270 (of 1985 (Supp) 2 SCR 131): (at p. 1479 of AIR 1985 SC 1416) of Tulsi Ram's case:
"A disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail."
The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter filed by the third respondent it is contended that the appellant, instead of replying to the show clause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry officer if any departmental inquiry was held against him. No particulars are given. Besides it is difficult to understand how he could have given threats, etc., when he was in hospital. It is not shown on what material the third respondent came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding meetings with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. This allegation is based on his alleged activities at Jullundur on April 3, 1981 reported by SHO/GRP, Jullundur. That report is not forthcoming. It is no one's contention that the said SHO was threatened. The third respondent's counter also does not reveal if he had verified the correctness of the information. To put it tersely the subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with the inquiry envisaged by Article 311(2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be sustained. [Emphasis supplied )
25. Thus, in its judgment, the Honble Apex Court had clearly held that the question of practicability of holding the Disciplinary Enquiry would depend upon existing fact situation, and other surrounding circumstances, that is to say that the question of conduct of a proper DE being reasonably practicable must be judged in the light of the circumstances prevailing on the date of passing of the order. After noticing that the order passed for dispensing with the enquiry contemplated by Article 311 (2)(b) of the Constitution in that case, the Disciplinary Authority had recorded two reasons (i) that the appellant had thrown threats that he, with the help of other police officials will not allow holding of any enquiry against him, and that (ii) he and his associates will not hesitate to even cause physical injury to the witnesses, as well as to the Enquiry Officer. The Honble Apex Court had then come to the conclusion that since the earlier Departmental Enquiries had been was duly conducted against the appellant therein, and there was no allegation that the Department had found any difficulty in examining the witnesses in those inquiries, such a conclusion could not have been arrived in the case of the third departmental inquiry, because it was difficult to understand as to how the appellant could have given threats etc. when he was in the hospital at the point of time concerned. The present case before us is distinguishable from Jaswant Singh (supra) because here the delinquent had frequently indulged in lawlessness, and the preliminary fact finding enquiry had established the element of fear of him pervading the place of his work.
26. In the case of Director Navodaya Vidyalaya Smiti And Others Vs. Babban Prasad Yadav And Another (2004) 13 SCC 568, a teacher had been involved in an immoral conduct with a girl student, by writing undesirable letters/remarks to her, and the Director of the Institution had recorded his satisfaction that the procedure of holding a regular departmental enquiry was not expedient, as the same might cause serious embarrassment to the girl and her parents. Since the Inquiry Committee duly constituted had after a summary enquiry had found that evidence was on record would be sufficient to prove the guilt of the teacher, his services were terminated forthwith, after giving him three months pay and allowances in lieu of notice. The Honble Apex Court came to the conclusion that the preconditions for the exercise of power of dispensing with regular enquiry stood fulfilled in such circumstances, and that the reason given by the Director for dispensing with the inquiry could not be termed as unconstitutional and illegal, in the following words:-
7. We are of the view that the High Court erred in reversing the decision of the Tribunal. The rule quoted earlier, explicitly deals with such a situation as obtains in the present case. The rule is not under challenge. All that is required for the court is to be satisfied that the preconditions to the exercise of power under the said rule are fulfilled. These preconditions are: (7) holding of a summary enquiry, (2) a finding in such summary enquiry that the charged employee was guilty of moral turpitude; (3) the satisfaction of the Director on the basis of such summary enquiry that the charged officer was prima facie guilty; (4) the satisfaction of the Director that it was not expedient to hold an enquiry on account of serious embarrassment to be caused to the student or his guardians or such other practical difficulties and finally; (5) the recording of the reasons in writing in support of the aforesaid.
8. In this case, all the preconditions have been fulfilled. An Enquiry Committee was duly constituted. It held an enquiry and came to the conclusion that the respondent was guilty of the offence with which he was charged, namely, writing love letters to the student in question. The Director has recorded the reasons for dispensing with regular enquiry, reasons which have been upheld as being valid in the decision in Avinash Nagra((1997) 2 SCC 534 : 1997 SCC (L&S) 565) wherein this Court has held: (SCC pp. 537 & 542, paras 6 & 12) "With a view to ensure safety and security to the girl students, to protect their modesty and prevent their unnecessary exposure at an enquiry in relation to the conduct of a teacher resulting in sexual harassment of the girl student, etc. involving misconduct or moral turpitude, resolution prescribing special summary procedure was proposed and published by notification dated 23-12-1993, after due approval of the Executives of the respondent Samiti. The Minister of Human Resources and Development, Government of India is its Chairman.
* * * It is seen that the rules wisely devised have given the power to the Director, the highest authority in the management of the institution to take decision, based on the fact situation, whether a summary enquiry was necessary or he can dispense with the services of the appellant by giving pay in lieu of notice. Two safeguards have been provided, namely, he should record reasons for his decision not to conduct an enquiry under the rules and also post with facts the information to Minister, Human Resources Department, Government of India in that behalf."
9. It is true that the Court in Avinash Nagra((1997) 2 SCC 534 : 1997 SCC (L&S) 565) has made the following observations: (SCC p. 543, para 12) "In our considered view, the Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation." However, the Court goes on to say: (SCC p. 543, para 12) "In the circumstances, it is very hazardous to expose the young girls to tardy process of cross-examination."
(emphasis supplied)
27. In Chandigarh Administration, Union Territory, Chandigarh and Others Versus Ajay Manchanda, etc. AIR (1996) SC 3152, the Honble Apex Court had held as follows :-
11. We shall first take up the case against Ajay Manchanda. It was December, 1993. The complainant Swaran Singh alias Makhan Singh was one of the persons named as accused in the F. I. R. He was arrested. Admittedly, the respondent was one of the officers investigating the said case. Swaran Singh complained to the S. S. P. of extortion and the continuing harassment by the respondent. The S. S. P. ordered an enquiry through D. S. P. who reported that the complaint is true. The D. S. P. reported expressly that the complainant and other witnesses "are so terrorised by the threats given by SI Ajay Manchanda that they have expressed their inability of pursue the matter in the Court of law or in any other enquiry against him. They are so terrorised that they have even explained there inability to make any formal statement before me. Keeping in view the above circumstances when complainant and other witnesses are so terrorised and panic-stricken that they are not willing to come forward the departmental enquiry shall also not serve any purpose." On the basis of the said report, the S. S. P. was satisfied that it was "not reasonable practicable in view of threats and witnesses' inability to come forward to depose against the delinquent officer due to threats of elimination" and accordingly passed the order of dismissal. On the basis of the material placed before us-we have also perused the original record which was placed before us by Ms. Kamini Jaiswal pursuant to our direction-it is not possible for us to say that there were no reasonable grounds or relevant material before the S. S. P. for being satisfied that in the circumstances and the situation then obtaining, it was not reasonably practicable to hold a disciplinary enquiry against the respondent. No one would come forward to depose. The requirement of recording of reasons is also satisfied in this case. Indeed, the dismissal order itself incorporates the reasons. We have also looked into the report of the D. S. P. and the relevant record.
12. Sri P. P. Rao, learned counsel for the respondent, submitted that there was no relevant material on the basis of which the S. S. P. could form the requisite satisfaction. He submitted that only a minor penalty has been imposed upon the Station House Officer, Inspector Jagbir Singh who too is alleged to have extorted a sum of Rupees fifteen thousand from the said complainant as against his demand for Rupees thirty thousand. The learned counsel complained that the respondent is being made the scapegoat for the wrong done by his superiors and that the action taken against him is not bona fide. Counsel further submitted that the D. S. P. who conducted the preliminary enquiry and submitted the report was himself involved in the alleged extortion. This, the learned counsel says, is established from the statement of Sri Swaran Singh alias Makhan Singh wherein he had stated "after some days, Deputy Superintendent of Police Subhash Sagar himself called us and told Ajay Manchanda and Jagbir Singh that my remand will have to be extended by two more days. On that, Ajay Manchanda and Jagbir Singh in a satricial note said that Makhan to makhan laga chuke hai (in other words, money has already been taken from him)." From this statement, Sri P. P. Rao seeks to infer that D. S. P. Subhash Sagar (who had conducted the enquiry against the respondent and submitted the enquiry report) was in the know of and was a party to the entire episode and, therefore, could not have been appointed as the enquiry officer against the respondent. He was in the nature of a witness, it is contended. Learned counsel further submitted that if the complainant was so terrorised, he would not have gone to the S. S. P. complaining of harassment in writing nor would he have deposed before the D. S. P. (enquiry officer). The said facts, learned counsel submitted, negatived the plea of terrorising or intimidation. The learned counsel finally submitted that in such matters the Court/Tribunals are the only protection for the person proceeded against and that unless strict standards are adopted for judging the "satisfaction", the government officials will have no protection against the arbitrary acts and orders of the superior officers who may succumb to the temptation of adopting the easier course of dismissing/removing reducing in rank the lower officer without holding an enquiry instead of following the regular procedures prescribed by the rules.
13. We agree with and share the concern of the learned counsel contained in his last submission. At the same time, we have to judge each case on its own merits, keeping in mind the relevant provisions of Article 311 (2) and the interpretation placed upon it by this Court in Tulsiram Patel (AIR 1985 SC 1416). We must say immediately that the learned counsel is not right in inferring from the statement of the complainant extracted hereinabove that the D. S. P. (enquiry officer) was also a party to the extortion.The statement extracted hereinabove does not establish that the said words were addressed to or were meant for the benefit of the D. S. P. Moreover, the words "Makhan ko makhan laga chuke hai" do not mean what the complainant thought they meant. So far as the allegation against Jagbir Singh is concerned, it is equally unacceptable. Ms. Kamini Jaiswal has produced the file relating to the proceedings taken against Jagbir Singh which we have perused. The charge against Jagbir Singh was a not one of extortion from the complainant or anyone else, but one of laxity and negligence in carrying out the investigation. May be that the complainant had made an allegation against Jagbir Singh but there is no reference to it in the D. S. P. (enquiry officer's) report and we do not know the circumstances in which Jagbir Singh was not proceeded against for extortion. This plea not raised by the respondent before the Tribunal. It has been raised for the first time before us. Since the allegation is factual in nature, we are not inclined to entertain the same at this stage. In any event, as stated above, we have perused the file concerning Jagbir Singh also; and are satisfied that the charge against Jabir Singh was altogether different. We are, therefore, unable to agree with Sri P. P. Rao that there was no material upon which the S. S. P. could be satisfied that it is not reasonably practicable to hold a disciplinary enquiry against the respondent. One has to keep in mind the situation obtaining in Punjab in the year 1993 and must appreciate the orders passed by the S. S. P. in that context. We see no reason not to believe that the aforesaid power under Clause (b) was invoked by the S. S. P. for proper reasons. The comments made against him by the Tribunal to the effect that he acted casually, is unacceptable besides being uncharitable. The Tribunal was also not justified in saying that the order of dismissal does not say that the respondent was responsible for intimidating and terrorising the complainant and the witnesses. It was a hypertechnical objection. The order read as a whole and the accompanying report of the D. S. P. and the endorsement of S. S. P. on the report to clearly establish that it was respondent who was intimidating and terrorising the said persons. The judgment and order of the Tribunal in C. A. 366-Ch/94 is accordingly set aside and the appeal arising from Special Leave Petition (C) 26926 of 1995 is allowed. [Emphasis supplied ]
28. In the case of Chief Security Officer & Ors. Vs. Singasan Rabi Das (supra), which had been cited by the Bench while deciding this OA No.2118/2009 earlier, the only reason given for dispensing with the inquiry was that it was not considered feasible or desirable to procure witnesses of the security/other Railway employees, since it will expose these witnesses, and make them ineffective in future. If these witnesses are asked to appear at a disciplinary inquiry and confronted with questions, they were likely to suffer personal humiliation and insults, and even their family members may become targets of acts of violence. Honble Apex Court did not consider the same likelihood of such an eventuality as a sufficient ground, and had held that there is total absence of sufficient material of good grounds for dispensing with the inquiry.
29. The present case before us may perhaps be on slightly different grounds, as in the instant case, the friction, the tension and the violence was not merely a figment of imagination, but had already been manifested, and reflected in three FIRs being filed, as mentioned above, and when this Tribunal showed mercy, and ordered reinstatement of the applicant of the OA/respondent of the RA, he was perhaps even further emboldened, and an even more serious occurrence occurred on 05.11.2011, because of which he had to be arrested, and the Judicial Magistrate sent him to judicial custody till 19.11.2011.
30. Though, while deciding a Review Application, we cannot take subsequent events into account, but the occurrence of the subsequent events only goes to prove that on the date when the Disciplinary Authority had taken a decision that there may be threat of violence and an intimidation of witnesses, if a regular inquiry had been ordered, the Disciplinary Authority was perhaps not very much off the mark. The Honble Apex Court has again and again held that administrative/departmental authorities are best judges of facts, being close to the workplace, and that Courts and Tribunals should be loath to enter into the realm of facts by themselves, to decide differently.
31. In the case of Ex Constable Chottu Lal Versus UOI (2000) 10 SCC 196, merely because the appellant was a Police Constable, a view was taken that he had influenced the witnesses, and, therefore, dispensing of the Departmental Enquiry was justified, which view did not find favour with the Honble Apex Court, and it was held that the impugned order was not in accordance with law, and was set aside accordingly, and the Departmental Authorities were permitted in to hold an inquiry. But the instant case is not on all fours with that case.
32. In view of the persuasive force of the case laws as discussed above, since in the order passed by the Disciplinary Authority, the reason for his coming to the conclusion of dispensing with the Disciplinary Enquiry was specifically indicated as follows, to our mind, this fulfills the requirement of there being some reason for the Disciplinary Authority to come to the conclusion that the conduct of the disciplinary inquiry was not reasonably practicable :-
You are harassing the handling agents and extorting illegal money. You have created an atmosphere of fear and intimidation. People are afraid of you and your antisocial elementsregarding the safety of their life and property and they would not come forward to depose against you in a departmental enquiry in this kind of atmosphere. I am convinced that it would not be reasonably practicable to hold a detailed departmental enquiry prescribed under the Railway Servants (D&A) Rules, 1968.
Under the powers vested in me under Article 311(2)(b) of Constitution of India and for the reasons recorded above I dispense with the holding of the enquiry prescribed under the Rules.
33. Therefore, in the light of the overwhelming case laws supporting the authority of the Disciplinary Authority to assess the facts situation, as on the date of his passing of the order impugned in the O.A., as discussed above, and since an obvious illegality had crept in the earlier order of this Tribunal, inasmuch as the Bench that day had somehow taken it upon itself to re-appreciate the given facts, and to arrive at its own different conclusion, we allow this Review Application and recall the order passed in OA No.2118/2009 on 29.09.2010.
34. Review Application is, therefore, allowed and the OA is restored to its original number.
( A.K. Bhardwaj ) ( Sudhir Kumar )
Member (J) Member (A)
rk