Central Administrative Tribunal - Allahabad
Dilip Kumar vs Union Of India on 8 March, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH,
ALLAHABAD
*****
Orders reserv ed on : 06.12.20 17
Orders pronounced on : 08.03.2018
Hon'ble Mr. Justice Dinesh Gupta, Member (J)
Hon'ble Mr. Gokul Chandra Pati, Member (A)
O.A. No.330/155/2011
Dilip Kumar S/o Late Rampe aged about 50 years resident of Dhilwari Ka
Bag, Dadiapura, Jhansi (U.P.).
............... Applicant
(By Advocate : Shri S.K. Mishra)
Versus
1. The Union of India through the General Manager, North Central
Railway, Allahabad.
2. The Chief Workshop Manager, North Central Railway Workshop,
Jhansi (U.P.).
3. The Deputy Chief Mechanical Engineer, North Central Railway
Workshop, Jhansi.
4. The Works Manager, North Central Railway Workshop, Jhansi (U.P.).
............... Respondents
(By Advocate : Shri R.K. Tiwari)
ORDER
Delivered by Hon'ble M r . G o k u l C h a n d r a P a t i , M e m b e r ( A ) :
By filing this OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs:-
"(1) That the Hon'ble Tribunal may be pleased to declare the dismissal orders dated 31.03.2009 of the applicant from the post of Technician Grade III (Annexure A-I), the order dated 10/06/2009 rejecting the applicant's appeal (Annexure A-II) and the order dated 20/08/2010 (Annexure A-III) rejecting the revision petition of the applicant are all illegal, null and void and quashed 2 them and further applicant be treated continue in service with all consequential benefits including arrears of pay and a allowance as also seniority etc. (2) That the Hon'ble Tribunal may be pleased to call for all the records relating to the service and the departmental enquiry held against the applicant from the respondents for its kind perusal.
(3) That any other relief to which the applicant is found to be legally entitled to may be awarded to him against the respondents."
2. Brief facts of the case are that the applicant was appointed as Monthly Rated Casual Labour in the Railways (in short MACL) on 4.9.1982 and vide letter dated 9.12.1992 (Annexure A-IV), the applicant was appointed as a Gangman after regularization. He was then transferred from the Engineering Department to the then Central Railway Workshop Jhansi vide order dated 5.5.1996 (Annexure A-V) issued by the Divisional Railway Manager, Jhansi on his request and he was relieved to join the workshop vide order dated 6.6.1996 (Annexure A-XII). Applicant worked there from 12.6.1996 till he was ordered to be dismissed from his post vide order dated 31.3.2009 (Annexure A-1).
3. The applicant was served with a charge sheet in Form No.5 dated 29.10.2007 (Annexure A-VI) alleging that he is guilty of trying to get appointment in the Railway on the basis of fake relieving letter dated 6.06.1996, purportedly signed and issued by PWI (South), Jhansi fraudulently. It was further alleged that the applicant has never worked as Gangman and was MRCL but had shown himself as Gangman under AEN (South) and has tried to get appointed in the Railways. The third charge levelled in the chargesheet was that the applicant tried to get employment in Railways on the basis of false/bogus documents and received his salaries and wages causing financial loss to the administration.
4. It is further stated by the applicant in the OA, that Shri P.K. Singh was appointed as Inquiry Officer (in short IO) and after holding enquiry, he submitted his report dated 30.1.2009 (Annexure A-VII) with finding that the applicant is guilty of the charge No.1 with the charge nos.2 and 3 not proved. The applicant was given a copy of the said report of the IO for his comments. The applicant submitted his representation against the said inquiry report on 17.2.2009 (Annexure A-VIII). Earlier the applicant had submitted his defence brief before the IO on 8.12.2008 (Annexure A- IX). In spite of applicant's aforesaid representation and defence brief, the 3 respondent No. 4 vide his order dated 31.3.2009 (Annexure A-I) imposed the punishment of removal from service with immediate effect.
5. Thereafter, the applicant submitted his departmental appeal against the order of removal on 1.5.2009 (Annexure A-XI) before the respondent No. 3 who is the appellate authority, who rejected the appeal of the applicant vide order dated 10.6.2009 (Annexure A-II).
6. Against the order of the appellate authority, the applicant filed a revision petition under Rule 25 of the Railway Servants (Discipline & Appeal) Rules, 1968 (referred hereinafter as 'Rules, 1968') before the respondent No. 2 on 21.7.2009 (Annexure A-XII), who also rejected the revision petition of the applicant vide his order dated 20.8.2010 (Annexure A-III), which was stated to have been received by the applicant on 2.9.2010.
7. Being aggrieved by the aforesaid impugned orders, the applicant has filed this OA for seeking the reliefs as quoted above on the following grounds:-
a) It is the ground of the applicant that the charges mentioned in the Charge Memo are not only false and vague but are also self contradictory, as it has been denied that at the time of the applicant's joining Central Railway Workshop at Jhansi on 12.6.1996 as Khallasi, he was already in the service of the Railways and was working as Gangman under AEN (South) Jhansi. Further the fact that the applicant was promoted as Gangman vide order dated 9.12.1992 of the AEN (South), Jhansi and the authenticity of this letter has been proved by Shri Veer Singh, Head Clerk, working in the office of the PWI, Jhansi (DW). The IO has agreed with the statement of Shri Veer Singh and has recorded a clear finding that the applicant was promoted vide order dated 9.12.1992 of the A.E.N. (South) Jhansi and it is for this reason that the IO has found the charge no.2 as not proved.
b) Another ground of the applicant is that on the one hand, IO has held the applicant was promoted as Gangman from MRCL on 9.12.1992 by AEN (South) Jhansi, which means that he has held that the applicant was already in the Railway service at the time of the issuance of the charge memo to him, on the other hand, the IO has found the applicant guilty of charge no.1 and as a result, the finding of the IO on charge no.1 is not only contradictory but also perverse. It is also noteworthy to 4 mention here that the letter dated 6.6.1996 (Annexure CR-3 to the Counter Reply filed by the respondents) is not an order of appointment, but it is an order relieving the applicant from the Engineering Department for joining Central Railway Workshop at Jhansi as Khallasi. This letter dated 6.6.1996 has been used against the applicant in the inquiry and has been described as a relied upon document. It is further stated that the letter dated 6.6.1996 was issued by the CPWI (S), Jhansi on the order of the DRM, Jhansi dated 5.5.1996 and this fact is clearly mentioned in the letter dated 6.6.1996. The applicant stated in the OA that if the letter dated 5.5.1996 is not fake and bogus, how can the letter dated 6.6.1996 be fake and bogus. However, this aspect has not been looked into by the IO, disciplinary, appellate and revisionary authorities.
c) Further ground of the applicant is that IO has given no reason for his finding on charge no.1, nor has he discussed the evidence on the basis of which he has found the charge no.1 as proved. Applicant's stand is that there is no evidence worth the name on record to substantiate the allegation mentioned in charge no.1, except the letter dated 26.3.2002 (Annexure A-XIII), which is addressed to the Chief Vigilance Inspector, Bombay CST and which says that (i) the copy of the letter dated 6.6.1996 purportedly signed by Shri K.D. Mathur, the then CPWI (S), Jhansi is not available in the office and that (ii) the signatures of K.D. Mathur are different from his signatures. On the basis of these two observations, it has been stated that the letter dated 6.6.1996 (Annexure CR-3) is fake and bogus. Shri K.D. Mathur, who has signed the letter dated 6.6.1996 has not been produced before the IO, nor has he been cited in the chargesheet as a P.W. Even the officer, who has written the letter dated 26.3.2002, based on which the IO has found the charge no.1 as proved, has not been produced before the IO as PW nor he had been cited as a PW in the chargesheet. The applicant has, therefore, not had any opportunity to cross examine them and he has been punished without giving to him an adequate opportunity of defence, as the IO has committed gross illegality in relying upon the said letter dated 26.3.2002 and has wrongly come to conclusion holding charge no.1 as proved against the applicant.
The IO has in his report on page 3 has stated the following:
"......No action has been taken to get the signature on forged documents got checked by hand writing expert."5
Thus the IO himself was not convinced that the letter dated 6.6.1996 is fake or bogus and in spite of that he held the charge no.1 as proved on account of pressure of the vigilance department who had investigated the matter.
d) It is also the ground of the applicant that before relieving the applicant vide letter dated 6.6.1996, the office of AEN(S), Jhansi under whose administrative control the applicant was working, had sent all his service record including service book to the respondent No. 2 for scrutiny and after a thorough scrutiny of all the documents pertaining to the service of the applicant, it was found that he was absorbed on the post of Khallasi vide order dated 11.6.1996 (Annexure A-XV). The applicant was absorbed in the Railway Workshop on the basis of the DRM, Jhansi Office letter dated 5.5.1996 as would appear from Annexure A-XVII itself and the letter dated 5.5.1996 is alleged to be fake or bogus.
e) Applicant while working in the Railway Workshop at Jhansi, was promoted to the higher post of Technician Grade III vide Order dated 10.12.2005 (Annexure A-XVI).
f) The applicant's another ground is that the applicant cited Shri K. Mathur as his defence witness but his whereabouts were not given by the department for obvious reasons, as Shri Mathur had since retired from service but his address was concealed. The applicant, therefore, had no choice but to drop him as a defence witness.
g) The applicant also raised another ground that in the Railway Medical Attendance Identity Card issued on 22.1.1994 by the office of the Chief Permanent Way Inspector (CPWI) South, Central Railway, Jhansi, the applicant's description has been shown as Gangman, which falsifies the allegation that the applicant was working as MRCL in 1996 and not as a Gangman.
h) Further all the impugned orders are vague, self contradictory and cryptic and non-speaking and are, therefore, liable to be quashed and set aside. Further, the disciplinary, appellate and revisionary authorities have found the applicant guilty of the charges for which the IO found the applicant not guilty, without giving any dissent note, therefore, impugned orders are liable to be.
i) The IO has committed illegality in holding that the applicant is guilty of fabricating the letters dated 26.03.2002 and 6.6.1996 without 6 recording the statement of the signatories of these letters and without giving to the applicant an opportunity of cross examining them, thus, denying a reasonable opportunity to the applicant of defending himself.
8. Pursuant to the notice issued to the respondents, they have filed counter reply (in short 'CR'), stating that the applicant's charge sheet has resulted in a major penalty as the applicant has failed to maintain absolute integrity and behaved in a manner unbecoming of Railway servant as he had indulged in grievous misconduct in contravention of Rule 3.1 (i) and (iii) of the Railway Services (Conduct) Rules, 1966. It is further stated that the allegation of the applicant that he had not been supplied any document is incorrect, as he was supplied all relevant documents, which had been relied upon by the IO and the disciplinary authority and full opportunity was given to the applicant to defend the charges, as evident from the letter dated 24.3.2008 (Annexure CR-1). It is also stated that applicant had requested for two witnesses, who have been allowed by the authority, vide letter dated 11.9.2008 (Annexure CR-2).
9. It is also stated by the respondents that the applicant was working as Technician Grade-III, when he was given a major penalty charge sheet on grievous charges of misconduct and fabrication as noted above. The letter dated 6.6.1996 (Annexure CR-3) clearly shows that it could not be verified by the Senior Section Engineer (South) and doubts have been raised by him vide his letter dated 26.3.2002 (Annexure CR-4).
10. It is specifically averred by the respondents that in applicant's application for transfer, his status was mentioned to be that of a 'Gangman' instead of MRCL. Besides, the relieving letter dated 6.6.1996 was not verified by Senior Section Engineer (South), as mentioned in his letter dated 26.3.2002. The said letter dated 6.6.1996 was not issued by Senior Section Engineer (South) and the signature of Shri K.D. Mathur was also found to be different and the entries of service record were also not filled up by the said office. It is further stated that after issue of the charge sheet, Sri P.K. Singh, CEI (Head Quarter), Allahabad was appointed as inquiry officer and the applicant was represented by Sri S.K. Sharma retired Senior Engineer as Assisting Railway Employee to the applicant (in short 'ARE'). The applicant during course of the fact finding enquiry had accepted his mistake, which was admitted in his statement (Annexure CR-5). Also on 11.9.2008, the statement of prosecution witness Sri Vikas Chandra was recorded and he was cross examined by the ARE.
7After all the statements were recorded, the applicant submitted his defence statement on 8.12.2008 and subsequently on 9.12.2008 the IO examined the applicant in presence of his ARE and submitted the enquiry report on 30.1.2009, which was served on the applicant vide letter dated 9.2.2009 (Annexure-VII). As per the inquiry report, charge no.1 was found to be proved and charge nos.2 and 3 were not proved.
11. It is also stated in the CR that after receiving the enquiry report, the disciplinary authority again discussed/examined the matter in great detail and passed a reasoned and speaking order dated 31.3.2009, dismissing the applicant from service while holding that the applicant could not prove during course of the inquiry that he ever worked as 'Gangman' during year 1992 to 1996. Applicant preferred an appeal against the aforesaid order of the disciplinary authority and the appellate authority after considering all relevant facts arrived at a conclusion that applicant was guilty of charges related to forgery of relieving letter purportedly signed and issued by CPWI (S) to facilitate his transfer to Jhansi Workshop as Khalasi and upheld the punishment imposed by the disciplinary authority. Aggrieved by the order of the appellate authority, a revision was filed which was again rejected by a reasoned order dated 20.8.2010. The respondents further stated that the applicant has not been able to point out a single instance in the whole enquiry proceedings where any allegation of bias or prejudice can be levelled against the Railway authorities. Opportunity has been given to the applicant and the punishment is justified seeing the conduct of the applicant.
12. The respondents also stated in the CR that the applicant is trying to mislead the court by showing himself as 'Gangman' whereas he never worked as Gangman, but worked as a Monthly Rated Casual Labour (MRCL). The applicant has given false information of his status in order to get the transfer to Jhansi Workshop. Had the applicant given his true status that of MRCL then he would have never been transferred to the Workshop. It is further stated that after securing a transfer on a fabricated relieving letter, the applicant continued to Jhansi workshop and was also promoted to the post of Technician Grade-III. His misconduct was detected later on scrutiny of records and then the whole process of inquiry started which eventually culminated in termination of service of the applicant. It is also stated that Shri Mathur was not examined by the applicant himself and therefore, he cannot raise this issue that he was not allowed to examine Sri Mathur.
813. The applicant has filed his rejoinder affidavit, in which besides denying the contentions of the respondents and reiterating the averments made in the OA, it is stated that the letter dated 6.6.1996 was not fabricated by the applicant, nor is this letter a fabricated one. It was stated that the IO had committed illegality in relying upon the letter dated 26.3.2002 that was purportedly sent by the Senior Section Engineer (South), North Central Railway, Jhansi to the Vigilance Inspector, Bombay, as the author of the said letter dated 26.3.2002 was neither cited nor examined as a prosecution witness in the disciplinary proceedings, while relying on it for proving the charge against the applicant without giving an opportunity to him to cross-examine. The defence was seriously prejudiced and the principles of natural justice stood violated. There is also no evidence on record to sustain the charge of fabricating letter dated 6.6.1996 by the applicant. This letter dated 6.6.1996, which is alleged to have been forged, is a letter issued by the CPWI/South Jhansi in pursuance to the letter No.B/329/Eng/CD/PW dated 5.5.1996 of the Divisional Railway Manager, Jhansi and this fact is endorsed in the letter dated 6.6.1996 itself. If the letter dated 5.5.1996 of the Divisional Railway Manager, Jhansi is not forged, how can the letter issued on its basis the letter dated 6.6.1996 can be forged. By letter dated 6.6.1996, the applicant was relieved from the Engineering Department to the Railway Workshop. Although this letter is not an appointment letter, the allegation in the chargesheet is that the applicant tried to obtain appointment in the Railway on the basis of this forged letter dated 6.6.1996.
14. It is further stated by the applicant in the rejoinder that the charges framed against him on the basis of the statement of the applicant recorded at Bombay by the Vigilance Inspector in his office has not been found proved by the IO. The statement in question was recorded under threat of sending him to jail, if he will not write the dictated statement instead of allowing him to go back at Jhansi. The dictated statement of the applicant was not only false but was also against the documents on record. It cannot, therefore, be relied upon against the applicant.
15. Learned counsels for the parties were heard and they reiterated the stands as per the respective pleadings. Learned counsel for the applicant also submitted the written arguments enclosing copy of the following judgments:-
9(i) Hardwari Lal vs. State of U.P. and others, Civil Appeal No.6118/1999 decided on 27.10.1999, MANU/sc/0685/1999;
(ii) Latoor Singh vs. Union of India and others, 2003(1) ATJ 105;
(iii) Union of India and others vs. Prakash Kumar Tandon, (2009) 2 SCC 541; and
(iv) Roop Singh Negi vs. Punjab National Bank and others, (2009) 2 SCC 570.
16. We have also carefully perused the materials placed on record and considered the submissions. It is noted that this Court has limited scope for judicial review of the disciplinary proceedings as per the judgments of Hon'ble Apex Court in catena of cases. In the case of Union of India Vs. P. Gunasekaran 2015 (2) SCC page 610 in para 12 Hon'ble Supreme Court has observed:-
"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;10
i. the finding of fact is based on no evidence."
In the case of B.C. Chaturvedi vs. Union of India & Ors. 1995 (6) SCC 749, Hon'ble Supreme Court has observed as under:-
"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
17. As per the case laws discussed above, the findings of the IO as well as the disciplinary authority holding the applicant guilty of the Charge No. 1 must be based on some evidence, although the rules under the Evidence Act are not strictly applicable for the disciplinary proceedings. The Article of Charges framed against the applicant vide order dated 29.10.2007 (Annexure A-VI) are as under:-
"That the said Shri Dlip Kumar Pampe while working as khalasi during the year 1996, has committed serious misconduct in that :11
Article - I He managed to get appointment in the Railway on the basis of fake/bogus relieving letter purportedly singed and issued by CPWI(S)/JHS which has been issued fraudulently.
Article - II He has never worked as "Gang man" while as has was MRCL working under PWI(S)/JHS and tried to get appointment in Railway as he shown himself as "Gang man" working under AEN(S)/JHS.
Article - III He tried to get employment in Railway on the basis of fake/ bogus documents and received his salaries and wages causing financial and pecuniary loss to the Railway Administration.
Thus by the aforesaid act, he failed to maintain absolute integrity, and behaved in a manner of unbecoming of a Railway servant and thereby contravened Rule No.3.1 (i) & (iii) of Railway Service Conduct Rules-1966."
The findings of the IO in respect of above three charges as in his inquiry report are as under:-
"..........................In this connection, it is seen that the base of this case has been made on the basis of letter of PWI/S/Jhansi, dated 26.03.02. On the basis of this letter of this letter the entire case has been framed to be as a case of promotion/transfer of Delip Kumar Rampe from MRCL to Gang man further transfer to workshop. It is seen from this letter that the PWI/S in para -I has stated that the copy of PWI/South, letter dated 24.04.96 is not available in this office. On review of the entire case it is seen that the CO was working as MRCL and letter on vide AEN's letter of 09.12.92, he was promoted to Gang man from MRCL and vide PWI/South's letter of 25.04.96, this documents of CO were sent to CWM workshop for screening and appointment in workshop. During the course of enquiry for DW Shri Veer Singh it is observed that the reliving letter from the office is issued only after obtaining the approval of PWI. It is not clear as to how this letter was issued without the approval of PWI. The PWI vide his letter of 26.03.02 is not available.
It is also seen that necessary railway documents were also not seized by the Investigating Inspector during investigation to keep the record for proof. He has simply stated during the course of examination on 11.09.08 that it was not necessary without the sport of this document the reliving letter it can not be said that the CO has gone to workshop by his own self.
In para - II his letter (RUD-2) of PWI/south dated 26.03.03 it is stated that the letter of 06.06.09 issued in favour of CO is not available and it is seen form the photocopy that the 12 signature of Shri K.Matur differs. The same thing is stated in para -III also that the entries made in S.R. is not of the PWI office and the signature of Shri K. Mathur differs. PWI, south has stated that (it appears) this signature on the documents differs form the signature of Shri K.Mathur.
No action has been taken to get the signature on forged documents got checked by the hand writing expert.
...............................................................................................
When the letter of promotion of CO from MRCL to gang man has been issued by the AEN it was confirmed by the DW clerk workin in PWI office in Jhansi, it is not know as to how he has said that he was not promotion as gang man and how it can be said that this letter is fake and bogus.
EO Observation It is seen from the entries investigation of this case that the CO in question has worked from MRCL, to gang man and a lot of lapses have been reported but if that was a the case some suitable necessary action should have been taken by the railway official at differed stage under whom he had/has worked from time to time. It is not known as to how no action was at any time taken by concerned official for example:-
1. It is seen that he was promoted as gang man vide AEN/south letter of 09.11.92 and posted in gang no.19. But the CO has stated that gang man of gang - 19 were of quarrel some nature. It has been stated by the CO on enquiry of EO as to where he had worked between 1992-96. On this CO has stated that during the period from 1992-96 he worked under PWI/Jhansi and AEN/S/Jhansi, no documentary record is available in this regard.
2. The maintenance of service record that is the SR personnel files, leave account etc is in the charge of controlling officers PWI/AEN. It is not understood as to how and MRCL/Gang man is supposed to have made entries in the service book and in other personnel records.
Conclusion and findings:-
..............................................................
Charges in Annexure of Article -I is proved.
(In case of Shri Delip Kumar Rampe, the gangman, there is no clear evidence adduced on record to prove the charge that the CO has done all the writing work in his case right from the promotion form an MRCL to gangman and further his transfer to CWM JHS.
The case has been taken up against him on the preponderance of probabilities and there is no on record 13 which could be established by the prosecuting agency of the PW.
In case of Shri Delip Kumar Rampe is has been reported and tried to established that the CO himself has worked as different officials at different level as PWI or AEN/S/JHS etc. To prove the charge that the entries were made by the CO in all the related papers the same should have been got confirmed by finger print or hand writing expert.) Charges in Annexure of Article-2 is not proved Charges in Annexure of Article-3 is not proved."
18. As per the report of IO as extracted above, the Charge No. 2 and 3 are not proved, which would mean that the charges that the applicant had never worked as "Gangman" and that he tried to get employment in Railway on the basis of fake/bogus documents could not be proved. This would imply that the applicant had worked as a Gangman as per the entries in his service records, which could not be proved to be incorrect or fake and there is no proof that the applicant tried to get employment on the basis of fake/bogus documents. From the report of the IO as extracted in paragraph 17 of this order, it is seen that the finding of the IO in respect of Charge No. 1 is based on the letter dated 26.03.2002, although doubts have been raised by the IO in his report observing that "it can not be said that the CO has gone to workshop by his own self". The letter dated 26.03.2002 (Annexure CR-4) stated the following about the letter dated 6.6.1996 (Annexure CR-3):-
"कायालय, व र0 ख ड अ भयंता (द0), झाँसी | दनांक 26.03.2002 प सं या:- टाफ/ कॉन/ From/ व0 ख0 अ भयंता (द0) झाँसी | To/ मु य सतकता नर क (पी). ( वजी.) मु ंबई, सी. अस.ट .एम.
वषय :- वयं के ाथना प पर मु य कारखाना बंधक झाँसी मे
थानांतरण एवं सतकता जाँच बावत |
14
स दभ :- आपका प सं० - 02/जी-130/पी०सी०/वीसीआर/पीवीसी/ दनांक
23.03.02
..............
उपरो त स दभ म माँगी गई जानकार कायालय म उपल ध रकॉड
अनु सार न नवत है |
1. प स० - टाफ/एस/2/ए स/ दनांक 25.04.96 के प क त कायालय
फाइल म उपल ध नह ं है |
2. प स० - टाफ/एस/2/ ट /ए स/ दनांक 06.06.96 issued in favour of
Shri Dileep Rampe G/M कायालय रकॉड म उपल ध नह ं है| इस प क फोटो टे ट कॉपी (आपके ारा द गई) दे खने से तीत होती है क यह प इस कायालय से जार नह ं कया गया है| एवं उस समय म कायरत मु०रे ०प० न०(द०), झाँसी ी के०डी० माथु र के ह ता र एवं ह ता र के मलान से पाया जाता है , क उस पर कए गए ह ता र उनके मू ल हरता रो से भ न है|
3. स वस रिज टर क फोटो टे ट दे खने से तीत होता है क इसम क गई ति टया इस कायालय ारा नह ं क गई है और रे ०प० न० ी के०डी० माथु र के ह ता र भी भ न है |"
The letter dated 26.03,2002 as extracted above, stated that the letter dated 6.6.1996 issued in favour of the applicant was not available in the office. Starngely, the said letter referred the applicant as G/M, meaning 'Gangman' and still the applicant was charged for wrongly posing himself as a Gangman. From the Photostat copy of the letter dated 6.06.1996, it appeared to the officer issuing the letter dated 26.03.2002 that it was not issued by that office and signature of Sri KD Mathur on the letter dated 6.06.1996 appeared to be different. For any reasonable person, only on the basis of the letter dated 26.03.2002, it is difficult to conclude that the applicant had fraudulently produced a bogus/fake letter dated 6.6.1996 to get himself transferred to Jhansi Workshop, unless some additional evidences like establishing the signature of Sri KD Mathur to be forged or the service record of the applicant regarding his status as Gangman to be forged, are brought by the prosecution side in the inquiry. This is because, the letter dated 6.06.1996 was not examined by a hand-writing expert as mentioned in the report of the IO and the views in letter dated 26.03.2002 were based on a Photostat copy of the letter dated 6.06.1996.
19. In addition to above, the applicant is admittedly a railway servant since the Charges No. 2 and 3 could not be proved against the applicant and there is no disagreement note by the railway authorities for this finding if the IO. If his transfer to Jhansi was on the basis of a fake letter 15 as alleged in Charge No. 1, then for the period he had worked in Jhansi workshop, where the applicant was posted as Technician in Grade-III also as stated in para 3 of the CR, the applicant would be absent from duty in his previous office i.e. Engineering Department and it was not explained why no action was taken against him for his absence from his place of duty in Engineering Department from 11.06.1996 to 31.03.2009 when he was working in the Workshop till his dismissal from service on 31.03.2009. Also, the letter dated 26.03.2002 did not say anything about the status of the employment of the applicant prior to 1996 and whether he was relieved to join Jhansi on his request or otherwise. Regarding service record of the applicant, it was observed by the IO that since the maintenance of the service record is by the controlling officers, how a MRCL/Gangman can make entries in the service record. There is no allegation in the charge sheet that the applicant has manipulated his service record or made forged entries therein. Hence, as rightly observed by the IO in his report, the prosecution has failed to prove the charge of forging/manipulating the service and other records of the applicant.
20. Learned counsel for the applicant has cited 4 case laws alongwith the written arguments filed by him to support his case. In the case of Hardwari Lal (supra) on the issue of the disciplinary proceedings, Hon'ble Apex Court has held as under:-
"5. In the circumstances, we are satisfied that there was no proper enquiry held by the authorities and on this short ground we quash the order of dismissal passed against the appellant by setting aside the order made by the High Court affirming the order of the Tribunal and direct that the appellant be reinstated in service..........."
In the case of UOI and others vs. Prakash Kumar Tandon (supra), Hon'ble Apex Court has laid down the following principles for the enquiry officer to follow in case of a disciplinary proceedings:-
"15.......................................................A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi-judicial authority. He, therefore, must perform his functions fairly and reasonably which is even otherwise the requirement of the principles of natural justice."
In the case of Roop Singh Negi (supra), Hon'ble Apex Court while examining the issue of the evidence in disciplinary proceeding, has held as under:-
16"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 applicant before the police. According to the appellant, he was forced to sign 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 brought on record to show that he was indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence............................................."
21. In view of the facts of this OA and the case as discussed above, we are of the view that taking into consideration the evidence as discussed in the report of the enquiry officer and available on record and considering the fact that the Charges No. 2 and 3 against the applicant could not be proved during the inquiry as per the inquiry report, the findings of the enquiry officer in respect of the Charge No. 1 are not supported by evidence available on record, particularly when the letter dated 6.6.1996, which has been alleged to have been forged by the applicant, was not confronted with the signatory of the letter, or was not examined by a hand writing expert as observed in the inquiry report. The respondents have taken the stand in the pleadings that it was the responsibility of the applicant to call Sri Mathur as a witness. This contention is not acceptable, since it was the responsibility of the prosecution to establish the charges. If Sri Mathur could not participate in the inquiry, it was open for the respondents to prove the allegation of forgery of the letter dated 6.06.1996 by adopting other legally permissible steps. By holding this letter to have been forged by the applicant, without legally establishing the same, the applicant has been prejudiced in the disciplinary proceedings, 17 for which the impugned orders of punishment cannot be sustained in the light of the case laws as discussed above in this order.
22. In the circumstances, the impugned orders dated 31.03.2009 (Annexure A-I), dated 10.06.2009 (Annexure A-II) and dated 20.08.2010 (Annexure A-III) are set aside and quashed and the case is remanded to the disciplinary authority (respondent No. 4) to pass a fresh order in the case, taking into account the observations made in this order as well as the provisions of the Railway Servants (Discipline & Appeal) Rules, 1968 and communicate his order to the applicant within three months from the date of receipt of a copy of this order. It is made clear that till the disciplinary authority passes the fresh order as above, the applicant will be deemed to have been under suspension from the date he was dismissed from the service, with all consequential benefits as per the Rule 5(4) of the Railway Servants (Discipline & Appeal) Rules, 1968.
23. The OA is partly allowed as above. Under the circumstances, there will be no order as to costs.
(G o k u l C h a n d r a P a t i ) (Justice Dinesh Gupta)
Member (A) Member (J)
/ravi/