Shekhar Agarwal, Member (A)
The applicant has sought the following relief:-
â(i) That this Honble Tribunal may be graciously pleased to allow this application and quash the impugned orders.
That this Honble Tribunal may be further pleased to direct the respondents to give all consequential benefits and refund the amount of pension which has already been recovered from the Applicant with interest.
That the Honble Tribunal may also be pleased to award any other or further relief which this Honble Tribunal may deem fit and proper on the facts and in the circumstances of the case.
That the cost of these proceedings may kindly be granted in favour of Applicant.â
2. The facts of the case are that applicant joined Railways as a Chargeman on 20.08.1964. Gradually, he got promoted to the post of Divisional Electrical Engineer. On 13.02.2003 he was served with a charge sheet for major penalty on the following charges:-
âCharge no.1
He nominated a Senior scale Accounts Officer as one of the member of Tender Committee in tender no. W/722/36/Solar/2K and accepted the said Tender Committee recommendation in the capacity of a senior scale officer, thus failed to observe the delegation of powers under SOP part-E item no.18.
Charge no.2
He failed to ensure adequate tender notice period between tender notice publication date and tender opening date in open tender No. W/722/36/Solar/2K and tender No. W/722/36/Solar/01, in violation of Engineering Code para 1238 and instructions vide letter No. W/623/0/A (W7b) dt. 8-3-1985.
Charge No.3
He as a departmental executive incorporated restrictive condition in the tender notice No.EL/50/T/8/2K dt. 8-3-2001 and refused to issue tender form to M/s Manasti Energy Severs on that basis, with ulterior motives, thereby acted in violation of instructions vide Railway Boards letter No. 2000/CE.1/CT/42 dt. 12-2-2001.
Charge No.4
He as a tender committee member blatantly favoured M/s. Surya International by recommending their offer for acceptance in tender No. W/722/36/Solar/01 at higher cost, in violation of para 166(1) of Finance Code Vol.1, which resulted in a loss of Rs.37,000/- to the Railway.
Charge No.5:-
He as an Executive failed to ensure subsidy for Railway, that was required to be arranged by the contractor M/s. Surya International from âGujarat Energy Development Engency, in the execution of contract No. W/722/36/Solar/01 as per the accepted stipulation in the tender, thus acted indifferently, in order to favour M/s Surya International.
Charge No.6:-
He as an Executive and Tender Accepting Authority in tender No. W/722/36/Solar/2K and as an Executive and Convenor member of Tender Committee in tender No. W/722/36/Solar/01 blatantly favoured M/s Surya International, Baroda and finally awarded the contract No. W/722/36/Solar/01 dt. 7-8-2001 in their favour by meticulously planning his actions at various stages as brought out in article of charges 1 to 5 among others in violation of all the laid down rules in the matter of dealing with tenders.â
3. The applicant retired on superannuation on 28.02.2003. The applicant denied the charges and an enquiry was held. The Enquiry Officer (EO) submitted his report dated nil. A copy of the same was made available to the applicant on 20.10.2005. The applicant submitted his representation against the enquiry report on 06.12.2005. Impugned order dated 19.06.2008 was passed imposing upon the applicant penalty of withholding of 10% monthly pension on permanent basis. Aggrieved by the same, the applicant has filed this O.A. before us.
4. The applicant has challenged this order on the following grounds:-
(i) The charges levelled against the applicant were misconceived and based on misconception.
(ii) Some of the vital documents were not supplied to the applicant during enquiry.
(iii) The EO violated the prescribed rules while conducting the enquiry inasmuch as he examined the applicant at the very first regular hearing before recording any evidence of the prosecution.
(iv) No prosecution witness was produced to authenticate any of the documents relied upon. As such, none of the documents were proved at the time of enquiry.
(v) The conclusions of the EO are based on surmises and conjectures without discussing the evidence produced by the applicant.
(vi) During the arguments, learned counsel for the applicant mentioned that the report of the UPSC relied upon by the respondents was made available to the applicant only along with the impugned order.
(vii) The order of the Disciplinary Authority (DA) is not speaking and reasoned.
5. The respondents have filed their reply in which they have denied the averments made by the applicant. According to them the applicant was charge sheeted for six charges and an enquiry was duly conducted. General Manager, Western Railway gave due consideration to the case records, report of the EO and the representation made by the applicant, before recommending a penalty of cut in pension to the Railway Board. After giving due consideration to all the relevant aspects of the case, the President (DA) in due consultation with the UPSC came to the conclusion that the charges No. 3, 4 and 5 indicating grave misconduct on the part of the applicant stood proved. Hence, it was decided to withhold 10% pension of the applicant on permanent basis. The respondents have further stated that this O.A. is not maintainable as this Tribunal has no authority to reassess the evidence as held by Honble Supreme Court in a catena of cases including the case of Transport Commissioner Vs. A. Radhakrishnan. Further, the Tribunals powers of judicial review do not extend its ambit to go into the truthfulness and correctness of the charges and the findings as held by Honble Supreme Court in the case of Transport Commissioner Vs. S.S. Patil. This Tribunal also cannot act as a Court of appeal and arrive at a different conclusion as held by Honble Supreme Court in the case of Sh. Parma Nanda Vs. State of Haryana and Ors., (SLP(C) No. 6998/1988.
6. We have heard both parties and perused the material placed on record.
7. It is true that this Tribunal cannot reassess the evidence in judicial review nor can it act as an Appellate Authority (AA). It also cannot substitute its discretion and judgment for that of the DA. However, in judicial review this Tribunal is very much entitled to go into the process adopted by the respondents while imposing the punishment and to see whether the principles of natural justice have been followed or not. In the instant case, learned counsel for the applicant pointed out certain grave procedural irregularities. We discuss each one of them hereunder:-
(a) The charged officer has been examined before recording any evidence of the prosecution.
From the enquiry report made available on the file we notice that the charged officer was examined by the EO on 13.09.2004 itself. This was before any evidence was adduced by the respondents. Thus the ground taken by the applicant appears to be correct. In this regard, the applicant has relied upon the judgment of Honble Supreme Court in the case of The Central Bank of India Ltd. Vs. Karunamoy Banerjee, AIR 1968 SC 266 in which the Honble Court has held as follows:-
âIt seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him.â
She has also relied upon the judgment of this Tribunal in the case of K.T. Venkatachalapathy Vs. D.S.O. Southern Railway, ATJ 1992(1) 265 in which the punishment order was quashed on various grounds one of them being that the EO examined the applicant first before examination of the prosecution witnesses.
Thus it appears that there is merit in the contention of the applicant.
(b) The next ground taken by the applicant was that no prosecution witness was produced in evidence. As such, all the documents relied upon remained unauthenticated and none of these documents can therefore be read as evidence. The respondents counsel admitted that no prosecution witness had been adduced. He, however, argued that the case against the applicant has been proved on the basis of documents. Learned counsel for the applicant stated that since no prosecution witness was produced in the enquiry to authenticate these documents they cannot be read as evidence as held by the Honble Supreme Court in the case of B.C. Chaturvedi Vs. UOI, JT 1995(8) SC 65. She also relied upon the judgment in the case of K.L. Sharma Vs. UOI, SLJ 2004(3) CAT 154.
We have considered the submissions made by the learned counsel of both the parties. We agree with the applicants counsel that since no prosecution witness was produced, the documents relied upon remained unauthenticated. Thus, they cannot be read as evidence. The net result is that neither there was any oral evidence in this case nor can the documentary evidence adduced be relied upon. Consequently, this becomes a case of âno evidence. In this regard the applicant also relied upon the judgment of the Honble Supreme Court in the case of Ministry of Finance and Anr. Vs. S.B. Ramesh, (1998) 3 SCC 227 in which the Honble Supreme Court held as follows:-
âThese documents which were not proved in accordance with law should not have been received in evidence and that any inference drawn from these documents is misplaced and opposed to law.â
Hence we find merit in the contention of the applicant.
(c) The next ground taken by the applicant is that UPSC report which has been relied upon by the respondents before imposing punishment was made available to the applicant along with the impugned order of punishment. She contended that as per law laid down by the Honble Supreme Court in the case of UOI and Ors. Vs. S.K. Kapoor, (2011) 4 SCC 589 any document relied upon must be made available to the charged officer to enable him to rebut the same. In the aforesaid case the Honble Supreme Court has held as follows:-
â5. It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same.
6. Mr. Qadri, learned counsel for the appellant submitted that the copy of the Report of the Union Public Service Commission was supplied to the respondent-employee along with the dismissal order. He submitted that this is valid in view of the decision of this Court in Union of India vs. T.V.Patel, (2007) 4 SCC 785. We do not agree.
7. In the aforesaid decision, it has been observed in para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory'. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V. Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula vs. Union of India and Others, Civil Appeal No.642 of 2004 decided on 30th January, 2004.â
The respondents counsel did not deny that the UPSC report was made available to the applicant along with the order of penalty. This is also clear from the impugned order dated 19.06.2008 in which it is mentioned as follows:-
âAfter careful consideration of all the records/aspects relevant to the case, in due consultation with UPSC, the President has decided to impose a penalty of âwithholding of 10% (ten percent) monthly pension on permanent basis. An Order bearing no. E(O)/2006/PU-W/WR/15 dt. 4.6.08 alongwith UPSCs advice bearing no. F.3/359/2006 SI dt. 07.08.07 are sent herewith.
In our opinion the respondents should have supplied a copy of the UPSC report to the applicant and given him a chance to rebut the same before arriving at any conclusion regarding the quantum of punishment to be imposed upon the applicant. Thus, procedural irregularity has occurred in this case in this regard also.
8. On the basis of above analysis, we come to the conclusion that grave procedural irregularities have occurred in the enquiry proceedings against the applicant. Therefore, the enquiry report and the impugned order passed on the basis of these proceedings cannot be sustained. Accordingly, the impugned order of punishment and the EOs report are hereby quashed. It is not necessary to give finding on other grounds taken by the applicant. The applicant will be entitled to restoration of his full pension and all consequential benefits. The respondents will, however, be at liberty to proceed afresh against the applicant in accordance with law. The O.A. is accordingly disposed of. There will be no order as to costs.