Central Administrative Tribunal - Delhi
Shri Giriraj Prasad Meena vs Union Of India Through on 18 September, 2009
Central Administrative Tribunal Principal Bench, New Delhi OA 1042/2009 OA 1096/2009 OA 1105/2009 OA 1116/2009 OA 1119/2009 OA 1140/2009 OA 1219/2009 OA 1221/2009 OA 1234/2009 OA 1277/2009 This the 18th day of September 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) OA 1042/2009 Shri Manjuddin Khan s/o Shri Ajmeri Kahn working as Ex. Substitute Khallasi under Sr. Section Engineer Tele/Exch Headquarters Office, New Delhi r/o Railway Pump House No-2, Saria Kalan Khan Hazrat Nizamuddin, New Delhi OA -1096/2009 Shri Raghubir Singh s/o Shri Balu Ram working as Ex. Substitute Khallasi Under Sr. Section Engineer Tele/Exch New Delhi r/o 33 Saria Kalan Khan, New Delhi-33 OA-1105/2009 Shri Ram Dayal Meena s/o Shri Parbhu Dayal Meena working as Ex. Substitute Khallasi Under Sr. Section Engineer Tele/Exchange/New Delhi OA-1116/2009 Shri Sharif Mohd s/o Shri Jahoor Khan working as Ex. Substitute Khallasi Under Sr. Section Engineer Tele/Exch. New Delhi r/o 203, Gali No.5 Sir Ram Nagar, Shahdara, New Delhi OA-1119/2009 Shri Kailash Chand Barwa s/o Shri Parbhati Lal working as Ex. Substitute Khallasi Under Sr. Section Engineer Tele/Control New Delhi OA-1140/2009 Shri Hari Narain Verma s/o Shri Budha Ram working as Ex. Substitute Khallasi Under Sr. Section Engineer CNL/ New Delhi OA-1219/2009 Shri Shakrudeen Khan s/o Shri Ram Gafoor Khan working as Ex. Substitute Khallasi Under Sr. Section Engineer Tele/Exch./ New Delhi OA-1221/2009 Shri Virender Pal Singh s/o Shri Ram Vir Singh working as Ex. Substitute Khallasi Under Sr. Section Engineer Tele/Exch. New Delhi OA-1234/2009 Shri Nissar Khan s/o Shri Alladin Khan working as Ex. Substitute Khallasi Under Sr. Section Engineer Tele/Exch. New Delhi OA-1277/2009 Shri Giriraj Prasad Meena s/o Shri Ram Sahai Meena working as Ex. Substitute Khallasi Under Sr. Section Engineer Tele/Exch. New Delhi ..Applicants (By Advocates: Shri A K Behera and Shri Manjeet Singh Reen) Versus Union of India through 1. The General Manager Northern Railway Baroda House, New Delhi 2. The Divisional Railway Manager Northern Railway State Entry Road, New Delhi ..Respondents (By Advocates: Shailendra Tiwary and Shri M K Pandey) O R D E R
Shri Shanker Raju:
As these OAs are grounded on similar facts and founded on identical questions of law, they are being disposed of by this common order.
2. For the sake of convenience, we are taking OA-1042/2009 and OA-1096/2009 as lead cases.
3. Applicants, who were erstwhile casual workers and were appointed as Substitute Khalasi, had been charge sheeted in 1994 under Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1987 for gaining appointment as Substitute Khalasi in connivance of Jhelum Singh, Senior Clerk and Rattan Kumar, MCC through a forged casual labour service card showing the casual labour service rendered for 123 days. Earlier to the disciplinary proceedings, the vigilance branch of Railways had conducted a preliminary investigation and on the basis of the finding, charge sheet has been issued. The disciplinary proceedings were initiated against in the vigilance branch of Railways. On receipt of memorandum, all the applicants have sought additional documents required for defence and for the purpose of effective cross examination. Documents, include personal file and assumed duty register, which includes pay rolls, muster rolls, etc. but these documents have been declined without any reasons by the inquiry officer without communicating to the applicants to be irrelevant. On the basis of the inquiry proceedings, which included one retired officer and two delinquents, who have been punished for issue of bogus casual card and later on giving evidence against the applicants, they have been held guilty of the charge by holding that there is no direct evidence against them of connivance but on preponderance of probability, as the applicants were the only beneficiaries to these certificates, held them guilty, which on being represented, led to passing orders for removal from service by the respondents, which when appealed against, appeals were rejected without passing a speaking order and without dealing with the contentions of the applicants.
4. Applicants have approached the Tribunal challenging the orders and in a group of cases in Shri Jagbir Singh & others v. Union of India & others (OA-1357/2007 with connected OA-1413/2007) decided on 19.9.2007, the Tribunal directed the disciplinary authority to finalize the disciplinary proceedings and subsequent decision of the Tribunal. In Shri Giriraj Prasad Meena & others v. Union of India & another (OA-1615/2008 with connected OAs) decided on 9.2.2009, the Tribunal directed the respondents to consider the revision petition of the applicants by passing a speaking order. The revisional authority in all the cases detailing the charge and events leading to revision holding that there is no direct evidence against the applicants to obtain appointment by bogus card but there is preponderance of probability, taking a sympathetic view converted the penalty of removal from service to compulsory retirement.
5. Shri A K Behera, learned counsel along with Shri Manjeet Singh Reen, learned counsel argued these cases on behalf of the applicants by stating that by non-production of the pay slips, pay register, muster roll, assumed duty register and personal files, applicants have been prejudiced and in view of the decision of Constitution Bench in Trilok Nath v. Union of India & others, 1967 SLR SC 759 and Railway Boards instructions dated 10.10.1961 and 20.2.1980, denial of these documents and non-arranging the documents for the defence of the applicants, their defence is prejudiced and this is deprivation of a reasonable opportunity.
6. Learned counsel for applicants would also state that as per the decision of Full Bench of Apex Court in Mahabir Singh & others v. Union of India & others, 2000 (3) ATJ CAT 1, the casual labour card need not to be approved and for employment of casual workers, he states that this infirmity does not render the certificate as forged.
7. Learned counsel would also contend that the applicants have been punished on mere suspicion and circumstances and while relying upon the decision of Apex Court in a railway case of Union of India & others v. Gyan Chand Chattar, 2009 (8) SCALE 575, it is stated that when the statement of facts and allegations are not specific, there is a distinction between proof and suspicion and on suspicion one cannot be punished.
8. Learned counsel has also relied upon the decision of Apex Court in Union of India & others v. Prakash Kumar Tandon, 2009 (1) SCALE 175 to contend that when in railways the vigilance raid was conducted or a preliminary investigation was done by the respondents, the appointment of the inquiry officer from vigilance department is not fair. Other plethora of submissions have been taken.
9. Learned counsel for applicants lastly stated that the disciplinary authority has not considered the grounds raised by the applicants in their representations and on surmises and suspicion without conclusive proof, held the applicants guilty of the charge and punished.
10. On the other learned counsel for respondents, Shri Shailendra Tiwary vehemently opposed the contentions and stated that the applicants have been found guilty of producing bogus casual card and insofar as the documents are concerned, he states that in State of U.P. & others v. Mahesh Chandra Mangalik, (2002) 3 SCC 443, the Apex court has held that failure of the delinquent to pinpoint any particulars of documents will not be prejudiced to him.
11. Learned counsel further states that the entire procedure as per the rules has been followed and the punishment imposed is commensurate to the misconduct.
12. Another learned counsel Shri M K Pandey has almost reiterated the pleas taken by Shri Shailendra Tiwary, learned counsel and stated that in DAR inquiry an independent vigilance inquiry officer was initiated and revisional authority on a sympathetic view toned down the punishment, which has saved the pensionary benefits of applicants, as the appointment of illegally appointee, even if continued for number of years on forged certificates, has to be treated as void abinitio.
13. We have carefully considered the rival considered the rival contentions of the parties and perused the departmental records.
14. In appointment of inquiry officer, it has to be ensured that fair and unbiased approach is adopted by the respondents. Admittedly, before proceeding, the applicants in disciplinary proceedings, a vigilance investigation was carried out and on its finding a major penalty charge sheet has been issued to the applicants, which was continued by the vigilance department. It would be fair in law that some other inquiry officer, other than the vigilance department, may have been appointed, as the vigilance report when accuses the applicants prima facie held them guilty of the charge, there would be probably an attempt on part of the vigilance inquiry officer to uphold with inquiry, which he has been done in these cases. This procedure has been deprecated and set aside by the Apex Court in Prakash Kumar Tandons case (supra).
15. Additional documents are required for the defence of the delinquent, which are in possession of the respondents. The Apex Court have preferred an application immediately on receipt of the memorandum for a major penalty charge sheet and in that course, they have asked for personal files of the witnesses, which have, after being given clemency as to their reinstatement in service, as they were also instrumental in issuing the labour card, have deposed before the respondents that this was with a view to highlight by way of cross examination their misdemeanor, yet the same has not been given. The inquiry officer is duty bound to record reasons when refusing the documents. These documents have been rejected only holding that they are irrelevant.
16. Another aspect, which has to be looked into, is recording of evidence. The earlier recorded statement of witnesses have been exhibited and taken as their statement in the inquiry and in response to witnesses even opportunity to cross examine was not given. However, as per Railway Board procedure laid down under letter dated 17.3.1977 statement made during the preliminary investigation is admissible, except when it is read to the witnesses and admitted by them. We do not find that such a procedure has been adopted, which is a violation of the substantive rules and their testimony is not legally admissible even applying the test of a preponderance of probability.
17. Denial of these additional documents has prejudiced the applicants, which has prejudicially affected their right to effectively cross examine, which, in turn, is an infraction to the principles of natural justice. If the relevancy of each document is not given, what prevented the respondents from asking the same, yet we find on record in subsequent proceedings that relevancy has not been given, as the documents were not supplied to the applicants.
18. In Moni Shankar v. Union of India & another, (2008) 1 SCC (L&S) 819, the Apex Court ruled that inquiry officer is an independent, impartial and unbiased authority, yet in the present cases, whatever has not been deposed by the witnesses either in their earlier recorded statement adopted by them or an evidence which has not been brought by way of cross examination by the delinquent and also certain material, which is going against the prosecution came in the cross examination. The inquiry officer, despite presenting officers presence, assumed the role of a prosecutor and by cross examining the witnesses not only filled up the gaps but also brought evidence in support of the prosecution. This leaves no doubt in our mind that he had acted partially in a biased manner and such a conduct of the inquiry officer cannot be permitted in law.
19. The disciplinary authority is duty bound to pass a speaking order dealing with the contentions of the applicants though in brief, as ruled by the Apex Court in Roop Singh Negi v. Punjab National Bank & others, 2009 (1) SCALE 284, yet we do not find any mention or discussion of the contentions raised by the applicants, which even according to Railway Boards circulars of 1978 and 1984 is an illegality, which vitiates the impugned orders.
20. The appellate authority under Rule 27 of Railway Rules is duty bound to consider illegality in procedure and proportionality of punishment but the order passed by the appellate authority is absolutely bald without containing any reasons.
21. The revisional authority when considered the claim of the applicants despite mentioning as to the factual matrix of the inquiry upto appellate order, held that though there is no direct evidence against the applicants to obtain appointment by bogus casual service card but applied preponderance of probability merely because the applicants were the only beneficiaries. As such the presumption has been drawn that the documents were false. This finding is based on conjectures and surmises and rested on suspicion, which cannot take place of proof, as ruled by the Apex Court in a Constitution Bench decision in Union of India & others v. H.C. Goyal, AIR 1964 SC 364.
22. Resultantly, leaving other grounds open, we allow these OAs to the extent that the impugned orders are set aside. Respondents are directed to forthwith reinstate the applicants in service. They shall be entitled to consequences, as admissible in law. However, this shall not preclude the respondents, if so advised, to take up the proceedings from the stage of initiation of inquiry to be entrusted to an officer other than the officer from vigilance department. In that event, law shall take its own course. No costs.
Let a copy of this order be kept in each file.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/