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16. We have heard Shri Shyamal Narain, learned counsel for the applicant and Shri Vidyapati Tripathi, learned counsel for the respondents at length.

17. Mr. Shyamal Narain, learned counsel for the applicant would submit as under:-

I. The charge against the applicant has not been fully proved with the categorical findings to the effect that it is established that the applicant filled the class of journey different in employee folio than the office folio of the same, but the malafide intention is not proved as it might be occurred due to human error.
III. The findings recorded by the Inquiry Officer in favour of the applicant and in the absence of any dissent of the Disciplinary Authority from those findings, the solitary charge levelled against the applicant, namely he had prepared the pass fraudulently, deliberately and with malafide intetntion , falls to the ground and, therefore, there could be no question of the applicant being visited with any punishment once that charge stood falsified. IV. Despite the applicant having been given a completely clean chit by the Inquiry Officer in reference to the solitary charge mentioned in the Article of Charge framed against him, the Inquiry Officer, wholly inexplicably, has proceeded to observed in the concluding lines of his report that 'although no malafide intention of charged officer has been established neither orally nor documentary in issuing the said ORS pass even though charge is proved on the basis of above point.' V. This observation of the Inquiry officer is totally perverse and without any evidence when seen in the contest of his OA No. 330/1424 of 2012 categorical and unambiguous findings that the applicant had not acted fraudulently, or with malafide intention or deliberately and that the error in question was only a human error and justified by the prevailing practice. VI. The allegation of violation of guidelines issued by Sr. DEE (OP), Ald to Sr. CCX/ALD vide letter dated 06.07.2005 by the applicant on the subject of avoidance in the matter of issuance of irregular passes is concerned, this allegation is not a part of the Article of Charge levelled against the applicant, but finds place only in the statement of imputation of misconduct in support of the solitary Article of charge which, essentially was to the effect that the applicant had issued the pass fraudulently, deliberately and with malafide intention. Thus, the allegation of violation by the applicant of any guidelines on the issue of passes cannot be read separately or independently as a different charge, but only in conjunction with, and in the contest of the article of charge as framed in the charge memo.

VII. Thus, only charge against the applicant was that he had issued the pass in question in violation of the guidelines, fraudulently, deliberately and with malafide intention and once, the inquiry officer had recorded his clear cut findings that malafide intention had not been proved and the error in question was only a human error justified by prevailing practices, it was wholly wrong on the part of the Inquiry Officer to observe in the last line of his report that 'the charge is proved on the basis of above point.' In other OA No. 330/1424 of 2012 words, the observation made by the Inquiry Officer in the list line of his report is totally perverse and a clear case of his having travelled beyond the charge memo, which is wholly impermissible in law.

30. The Inquiry Officer with regard to single charge mentioned in the Article of Charges, has not proved and the charge, which was not mentioned in the Article of Charge regarding the violation of Guidelines dated 06.07.2005 has been proved and considering the aforesaid charge, major punishment has been awarded to the applicant. The findings recorded by the Inquiry Officer with regard to solitary charge as mentioned in Article of charges is quoted as under:-

Therefore it is established that he filled the class of journey different in employee folio than the office folio of the same, but malafide intention is not proved as it might be occurred due to human error. The office folio had been shown issued for 1st + 2nd class journey in favour of Shri U.S. Singh, Electric Loco pilot with Assistant Loco Pilot, where as employee folio of the same had been issued only for 1st class journey for both the employees. Since Asistant Loco Pilot was not entitled for first class pass even than on the basis of Exhibit P/3 it is well established that Shri Shailesh Kumar had traveled in 1st /AC Coach.