G. GeorgeParacken, M(J)
1. The Applicant in this Original Application is aggrieved by the Disciplinary Proceedings initiated against him which culminated in his removal from service with effect from 02.02.2010.
2. The brief facts of the case are that vide Memorandum dated 20.04.2009, Shri P.K. Jain, Sr. Commercial Manager(DB), the Competent Authority proposed to hold enquiry against the Applicant under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. The Article of Charge framed against him was as under:-
œA preventive check was conducted by vigilance on 14/01/2008 in the office of the CCM/IT, NR, IRCA New Delhi. During the vigilance check Sh. Y.P. Singh, ERS/CO/PRS, IRCA, NDLS was found responsible for under noted lapses-
He was held responsible for misusing of his privilege pass no.048217 dated 10.10.2007 as secured the reservation twice on 18.11.07 and 4.01.08 on the strength of same privilege pass number 0482 vide PNR No.244-4069056 and 250-7535718 once in favour of himself and his wife only in train no.2017A ex. NZM to HW respectively.
The above act of omission and commission Shri Y.P. Singh, ERS/CO/PRS, IRCA, NDLS failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a railway servant, there by contravened the provision of rule 3.1(i), (ii), (iii) of railway service conduct rule-1966.?
The Articles of imputation of misconduct was as under:-
A preventive check was conducted by M.A. Ansari, SVI, on 14.01.08 in office of the CCM/IT, Northern Railway, IRCA, New Delhi to check misuse of privilege passes. In this regards, relevant record pertains to Shri Y.P. Singh, CRS/IRCA i.e. a requisition form, photocopy of privilege pass, PNR history of both PNR and destination chart of train no.2017A were seized from Shri R.K. Aggarwal Dy. CCM/System/IRCA, New Delhi for further investigation. Thereafter Shri M.A. Ansari SVI handed over their documents to Shri A.M. Khan, CVI on 10.03.2008 for further investigation and to register as a preventive check. Accordingly the case was registered on 31.03.2008.
On scrutiny the relevant record as mentioned above it is found that: i) Sh. Y.P. Singh secured the reservation twice on 18.11.07 and 4.01.08 on the strength of same privilege pass number 043217 vide PNR No.244-4069056 and 250-7535718 once in favour of himself alongwith his wife and his son namely Sh. Arun Kumar and second time for himself and his wife only in train no.2017A ex. NZM to HW respectively.
ii) He travelled on both the occasions. On 18.11.07 he along with his wife and son travelled on berth no.25, 26, 27 in coach no. A-I of train no.2017A from HNZM to HW and again he travelled along with his wife on berth no.25 and 27 in coach no.A-I of train no.2017A on 04.01.2008 ex. NZM to HW.
iii) He secured the reservation by PNR No.2444069056 ex. NZM to HW by train no. 2017A in class 2A from the counter no.102 of PRS/IRCA on 18.11.2008 at 13.02 hrs.
iv) He again secure the reservation vide PNR no.2507535718 ex. NZM to HW by 2017A in class 2A from the counter no.4360 of PRS/BGZ on 03.01.2008 at 9.57 hrs.
In this regard a written statement of Sh. Y.P. Singh ERS/CO/PRS, IRCA, NDLS was recorded on 09.02.2009 in which he admitted that he secured the rail reservation and travelled twice on the strength of privilege pass no.048217dated 10.10.2007 which was issued in favour of him from the office of the CCM/IT, Northern Railway, IRCA, New Delhi.
By the above acts of omission and commission Shri Y.P. Singh, ERS/CO/PRS, IRCA, NDLS failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of Railway servant, thereby contravened the provision of Rule 3.1 (1)(2) and (3) of railway service conduct Rules-1966.
3. The Enquiry Officer held an enquiry in the matter and submitted his report dated Nil and a copy of the same was forwarded to the Applicant vide the Respondents letter dated 17.11.2009. According to the said report, on the basis of evidence on record, both documentary and circumstantial, the charge stood proved. Its concluding part is as under:-
œPerusal of the documents on record submitted by prosecution it is revealed that once reservation was made from Reservation office IRCA on 18.11.2007 as also accepted by the CO. Moreover it is also accepted by the CO that at the time of making reservation his duty was in the office of SDM/Najafgarh. No evidence has come on record that CO applied for any leave from his office even for that journey for which he got prepared the ticket vide Ex.P-2. Defence has raised certain issues like the seizure memo of destination charts, statement of TTE who handled the charts (Ex.P-4) etc. In view of evidences discussed above these objections has got no strength and also not bearing on the gravity of the charge. The submission of attendance certificate Ex.D-2(ii) of CO indicates that there has been misuse of the privilege pass as alleged supporting the charge. The documents submitted by the CO regarding whereabouts of his family also indicate the someone along with his family resembling the family of the CO has travel on the privilege pass of CO and again support the charge by the CO. In view of record available on record the privilege pass No.04817 was valid pass issued in the name of CO on strength of this privilege pass two reservations were made vide Ex.P-3 and Ex.P-3(i) and both of the journeys were carried out vide Ex.P-4, Ex.P-(i) to Ex.P-4(iii). These RUDs were confirmed by the PWs as correct during enquiry.
Keeping in view the evidences on record the charge stands proved.
Conclusion
On the basis of evidence on record, documentary, circumstantial and oral the charge stands proved.
Submitted please.
Sd/-
(Ashwani Kumar Sharma)
Inquiry Officer.?
4. The Applicant submitted his representation dated 09.12.2009 against the aforesaid report stating that there was no evidence against him and, therefore, the conclusion arrived at by the Enquiry Officer that the charge was proved was wrong. He has also reiterated that the charge against him was false and fabricated. He has also requested the Disciplinary Authority to exonerate him from the aforesaid charge.
5. However, Shri P.K. Jain, Sr. Commercial Manager (DB) in his capacity as the Disciplinary Authority vide his letter No. MBD/Vig/PC/20/2009 dated 14.01.2010 accepted the Enquiry Officers report and imposed the penalty of removal from service on the Applicant with immediate effect. The relevant part of the said order reads as under:-
œFrom the working charts of 18.11.07 and 04.01.08 it is very clear that reservation was secured twice on Pass No.048217. On 18.11.2007 for CO Shri Y.P. Singh his wife and son and on 4.1.2008 for Shri Y.P. Singh and his wife. Dy.CCM/System (PW-1) Shri R.K. Agarwal clarified during the enquiry that charts were procured by him from HNZM station and handed over to SVI Sh.M.A. Ansari as seizer memo of charts, signed by Shri M.A. Ansari and Shri R.K. Agarwal, is also available with RUDs. No evidence/witness produced by CO to prove that charts were marked by a person other than concerned TTE.
Therefore, COs plea of falsely generating charts and marking is not acceptable. In his statement, recorded on 09.02.2009, CO admitted that he might have travelled from HNZM to HW and ready to pay cash for second journey if misuse of twice journey on the pass is found. This statement shows casual approach of CO towards misuse of pass. He did not think that twice use of pass is serious offence. Misuse of pass is a serious offence as per the rules (Annexure-B to rule No.13 of the Railway Servants Pass Rules, 1986). It states that:-
Passes and PTOs are not transferable and should be used only the person in whose favour they have been issued. Special care should be taken to ensure that passes and PTOs are not lost while in the custody of the pass holder. In the case of loss the pass or PTO may pass into unauthorised hands leading to fraudulent use for which pass or PTO holder may have to share responsibility and be also liable action under the rules and Deterrent punishment should be awarded to railway servant detected misusing passes and PTOs; this may take the form of dismissal or removal from service or reduction to a lower post depending upon the seriousness of the offence.
Thus misuse/loss of pass is serious offence and pass holder is responsible and also liable for action under rule.
As per COs own defence that he took many steps regarding loss of pass No.048217 such as lodging of FIR and information to the Vigilance team while giving statement. It is unbelievable that he forgot to mention these actions at the time of giving a statement on 09.02.2009. This shows that he misused pass for twice seeking reservation and travelling twice on the same pass and deliberately concealed the facts.
It is clearly mentioned in Annexure-II of charge sheet that relevant record was seized from Dy.CCM/Sys. On 14.01.2008. Therefore, the proceeding of check was accomplished within an hour. Being a railway officer Dy.CCM/Sys. correctly has taken measures to get matter examined and handed over documents to Sr. Vigilance Inspector.
CO was working in console and he himself has worked in reservation office and he is well acquainted with the working of reservation. If the pass was actually lost by him he should have given a message immediately to put a tag on system to avoid misuse of pass and berths. Copy of working charts of train No.2017A Coach No.A-1 dated 18.11.2007 and 04.01.2008 were provided to CO as RUD. In both the charts name of CO and his family is printed against Pass No.048217 for same originating/destination station and mark on chart as turned up which proves that CO and his family members have travelled twice for same originating and destination station. The charge of twice use of pass is also proved by IO against CO.
It is obvious from the facts discussed above that CO has not only used pass for getting reservation twice for same originating and destination station but also travelled twice on same pass which is substantial evidence to misuse of pass. I accept enquiry report and conclusion drawn by IO and impose a penalty of REMOVAL FROM SERVICE with immediate effect.
The appeal against above orders lies with Dy.CCM/DB provided it is submitted within 45 days from the date of receipt of this letter and the same does not contain any improper and disrespectful language.?
6. Later on, vide Notice No.752-E/557/Punishment/EIC dated 05.02.2010, one Shri Raman Kumar Sharma, on behalf of General Manager informed the Applicant and all other concerned that the aforesaid order of the Disciplinary Authority dated 14.01.2010 was withdrawn vide another letter dated 01.02.2010 due to technical reasons and a fresh memorandum was issued on 02.02.2010 removing the Applicant from service with immediate effect, i.e., 02.02.2010. The Authority NIP No.MDB/Vig/PC/20/2009 dated 14.01.2010 was also mentioned in the Notice.
7. The Applicant, on 11.03.2010, made an appeal against the aforesaid order of the Disciplinary Authority removing him from service followed by reminders dated 23.05.2010 and 28.05.2010. He has specifically pointed out that the order dated 02.02.2010 was passed without any application of mind.
8. The Appellate Authority, however, vide its order dated 15.07.2010, held that he was not inclined to extend any relief to the Applicant and upheld the punishment of removal from service awarded to him. The relevant part of the said order is as under:-
œI have carefully gone through the entire case file, enquiry report, defence brief, facts adduced during the enquiry and on the basis of all the facts available on record, I conclude that CO has indeed misused his privilege pass no.048217 dated 10.10.2007 by not only seeking reservation for originating and return journey twice but also travelled on the same, which itself is a vital evidence to prove the charge leveled against him.
CO has stated that his pass was lost and he lodged the FIR for the same is an after thought as he failed to record the same during the recording of his statement by the vigilance team.
In terms of annexure-B to rule 13 of the Railway Servants Pass Rules, 1986 misuse of Railway pass is a serious offence which if proved attracts the punishment of dismissal or removal from service or reduction to a lower post depending upon the seriousness of the offence.
Thus, keeping in view the nature of charge which is grave, I am not inclined to extent any relief to CO. Hence, I uphold the punishment already awarded by DA i.e. Removal from service with immediate effect to Shri Y.P. Singh, CO.?
9. Challenging the aforesaid order, the Applicant had earlier filed OA No.1221/2011 before this Tribunal but the same was dismissed as withdrawn on 05.04.2011 with liberty to file a review petition. Thereafter, he filed the revision petition dated Nil-4-2011 addressed to the General Manager but on the advice of the Respondents, dated 07.06.2011, he filed another petition to the Chief General Manager on 27.06.2011. But Revisional Authority has also, vide its order dated 27.01.2012, rejected his petition. The relevant part of the said order reads as under:-
Your plea that you were on election duty under SDM/Najafgrarhw.e.f. 02.11.2007 to 17.03.2008 but the charge sheet was got issued by the said Dy.CCM for your unauthorized absence from 19.11.2007 to 17.03.008 has no evidentiary value as the alleged minor penalty charge sheet was issued by Sr. Commercial Manager/DB. You, yourself have mentioned that there was suspicion only but no evidence was produced and thus the allegation against Dy.CCM/System, Shri R.K. Aggarwal, that he conspired against you are found to be without any basis.
The defence has cited certain documents in support of the plea taken that you and your family members for whom the reservation was secured were present in Delhi and have not availed the pass or commenced journey including FIR for loss of the said privilege pass lodged with SHO Najafgarh at 20.00 hrs on 18.11.2007 on Sunday. These documents have no strength as these were not produced or even mentioned at the time of Vigilance investigation in Ex.P-6. The plea that due to extensive roll revision, you were busy and you could not apply tag are not acceptable too. You, yourself are responsible for loss of your privilege pass and the ticket and being on a responsible post in reservation office you were well aware of the rules but you failed to apply the tag.
As on record privilege pass no.048217 dated 10.10.2007 issued in your favour secured reservation twice on 18.11.2007 as well as on 04.01.2008 on the same privilege pass according to reservation charts and PNR history. The first reservation dated 18.11.2007 is found to have been done on 18.11.2007 from window No.102 IRCA building whereas second on dated 04.01.2008 on 03.01.20008 from PRS/BGZ window No.430. The defence has also raised the point that in Annexure-III it has been mentioned that privilege pass No.048217 dated 10.10.2007 is one of the RUD which means that the said privilege pass was with the Vigilance whereas counter (record) foil of the said pass has been produced as and cited as RUD. Your this contention is not found correct as the record foil of the said pass was cited and produced as RUD in the enquiry.
Your further contention that the Enquiry Officer was from Vigilance Branch itself is not tenable as the Inquiry Officer was working independently directly under the SDGM, Northern Railway and he permitted the relevant documents demanded by you during the enquiry and no infirmity has been found in the proceedings of DandAR enquiry conducted by the Enquiry Officer against him. There is no allegation made by you against the Enquiry Officer of being biased and after completion of the enquiry such allegation against the Inquiry Officer are not acceptable. On going through the entire report it has been found that each and every aspect has been examined by the Inquiry Officer and full opportunities have been given to you to defend yourself during the course of enquiry.
The Disciplinary Authority i.e. Dy.CCM/DB while awarding the punishment of Removal from Service has passed detailed speaking orders after considering your all the pleas in your defence and his decision in this case has been found appropriate.
Your appeal was duly examined by the Appellate Authority and findings the nature of charge which is grave and proved in the enquiry, the same was rejected.
You were also granted personal hearing to explain your case to afford your opportunity in the interest of justice on 03.01.2012. However, during the hearing you repeated the points made by you in your defence and no new fact was revealed.
Keeping in view the above deliberations and the charge having been fully proved against you and on the basis of documentary as well as circumstantial evidences, I find no merit in your Revision Petition and, therefore, I hereby uphold the decision taken by the Appellate Authority.
Hence your Revision Petition is regretted.
Sd/-
Chief Commercial Manager.
10. Applicant has, therefore, again approached this Tribunal by this OA seeking a direction to quash and set aside the aforesaid orders of the Disciplinary Authority, Appellate Authority and the Revisional Authority. He has also sought a direction to the Respondents to reinstate him in service with all consequential benefits. In support of the aforesaid reliefs, the Applicant has taken the following grounds in this OA:-
(i) The working Reservation charts based on which the disciplinary proceedings were initiated against him, had neither been seized from the Railway Station, Nizamuddin nor there was any information as to how those charts travelled to Shri R.K. Aggarwal nor there was any seizure memo nor those charts were available at Railway Station Nizamuddin. Therefore, the only conclusion could have been that the said charts have been destroyed before the issue of the charge sheet or soon after.
(ii) The entire conspiracy was hatched by Shri R.K. Aggarwal who had been nursing ill-will against him and it is clear that he had received the working reservation charts from Nizamuddin without explaining as to when, by whom and under what authority the said charts were withdrawn from the Railway Station Nizamuddin without any seizure memo.
(iii) The Inquiry Officer did not give any weightage to his Defence that his pass and ticket had been lost for which he had made a report to the police as well as to the department to safeguard against its misuse and the second PNR had been issued to him through someone else without requisition slip after the loss of the pass.
(iv) The Inquiry Officer wrongfully interpreted his statement (Exh.P-6), believing that he had admitted to have travelled twice on the same pass. What he had actually stated was that if it is ever proved that he had travelled twice, he was liable to pay the fare, but the Inquiry Officer has unfortunately, with closed mind, not cared for correct construction and meaning of the statement to the Vigilance staff, which even otherwise is not admissible. This shows that the Inquiry Officer with mala fide intention has twisted the statement which was given by him to the Vigilance Inspector, prior to the inquiry. Exhibit (P-6) could not be treated as admission of guilt.
(v) Shri R.K. Aggarwal had wrongfully stated that he had been transferred to CRIS when the information about the loss of pass had been given by him. As a matter of fact, Shri Aggarwal was still there and transferred about eight months after the information was given.
(vi) Unfortunately, the SCM/DB, wrongly and unconstitutionally imposed the highest punishment of Removal from service without applying his mind to the disciplinary proceedings, his defence and also representation made by him on 09.12.2009. The issues raised by him were side-tracked and the maximum punishment was imposed upon him. The said penalty is disproportionate to the gravity of the alleged misconduct as he had already served for more than 23 years. The punishment of Removal from Service imposed against him was shocking to the conscious of even court of law as the unblemished service rendered by him for more than 23 years has been ignored.
(vii) After the order dated 14.01.2010 was communicated to him, it was withdrawn vide letter dated 01.02.2010 without giving any specific reason and another order was passed on 02.02.2010 without application of mind and ignoring his defence.
(viii) There were no independent witnesses during the enquiry proceedings. Out of three listed prosecution witnesses, 2 were Vigilance Inspectors who had acted at the behest of the Respondent No.3 and the third witness Shri R.K. Aggarwal (Respondent No.3) himself who has been nursing ill-will against him as he did not succeed in his earlier attempt to punish him by imposing minor penalty for the alleged unauthroised absence whereas during the relevant period he was on election duty. Further, the officer who had been nominated to hold enquiry was ex-Vigilance Inspector and, therefore, he was also acting on behalf of the Vigilance Branch. Therefore, according to the Applicant, no independent or impartial enquiry was held in his case and such an action was against the principles of natural justice.
11. In this regard, he has relied upon the judgment of Lucknow Bench of this Tribunal in Raja Ram VermaVs. U.O.I. SLJ 2003 (3) 365. The relevant part of the said order reads as under:-
œ13. Adverting to the second issue involved in this application, the learned Counsel for applicant has urged that the impugned order has been issued at the instance of the vigilance authority and the disciplinary authority has not applied its own mind. It has also been submitted that the earlier inquiry was sliding in his favour and this was not acceptable to the vigilance authority. Our attention was invited towards letter dated 22.12.93 (C.R.-l). The contents are extracted as under;
"Please refer to this office letter of even number dated 23.2.93 in which major penalty charge sheet was sent. Few discrepancies have come to notice in the said draft charge sheet. The fresh charge sheet is enclosed herewith for your necessary action as Annexure-I to VI. The previous charge sheet may be treated as cancelled.
It is further advised that E.O. (Vig)/NDLS may be nominated as Enquiry Officer in this case. Shri S.N. Rai, VI/HQ will work as Presenting Officer in this case.
Kindly take necessary action in this regard under advise to this office."
Sd/-For
General Manager (Vigilance)
The learned Counsel has submitted that mere perusal of the aforesaid letter amply makes the factum of his contention that completed action is being taken under dictation of vigilance authorities.
14. On the other hand, the learned Counsel for the respondents has opposed the aforesaid contention and argued that the vigilance authorities have only suggested the disciplinary authority and there was nothing like dictation from any authority. The vigilance actually conducted the vigilance check and dealt with the prosecution case. In this view of the matter, making any suggestion especially in regard to certain discrepancies of facts, can not be said to dictating the disciplinary authority.
15. We inquired from the learned Counsel for the respondents as to why the charge sheet itself was drafted by the vigilance department and also the disciplinary authority was informed that charge sheet is cancelled. The learned Counsel tried to justify his stand by repeating his argument and was at difficulty to give any direct answer to our question. His main submission was confined to infer the letter dated 22.12.93 only as a suggestion and nothing more.
16. We are not persuaded with the arguments of the learned Counsel for the respondents in view of the dictum of Supreme Court in the case of Mohinder Singh Gill (supra). The contention of learned Counsel for the applicant has forced and we are of the firm opinion that in the present case the disciplinary authority has not applied its mind. If that be so, the impugned orders can not be sustained. The statement of law is well settled by the Supreme Court in NagarajShivaraoKarjagi v. Syndicate Bank, 1991 SCC (LandS) 965, where their lordships have observed as under:
19. The corresponding new Bank referred to in Section 8 has been defined under Section 2(f) of the Act to mean a Banking Company specified in Column 1 of the First Schedule of the Act and includes the Syndicate Bank. Section 8 empowers the Government to issue directions in regard to matters of policy but there cannot be any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases. The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Government. No third party like Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See De Smith's Judicial Review of Administrative Action 4th edn., p. 309). The impugned directive of the Ministry of Finance, is therefore, wholly without jurisdiction and plainly contrary to the statutory Regulations governing disciplinary matters."
12. Further he has relied upon the judgment of the Supreme Court in the CIVIL APPEAL NO. 7349 OF 2008 - Union of India Vs. Prakash Tandon [(2009) 2 SCC 541] decided on 17.12.2008. The Apex Court in the said judgment held where the disciplinary proceedings have been initiated at the behest of the Vigilance Department, the Enquiry Officer could not have been the Chief of the Vigilance Department. The relevant para of the said judgment is as under:-
œ14. The disciplinary proceedings were initiated only after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. He evidently being from the Vigilance Department, with a view to be fair to the delinquent officer, should not have been appointed as an enquiry officer at all.
15. From the evidence of another Assistant Engineer who had taken part in the raid, it is evident that the alleged loss caused to the railways was negligible and mere marginal allowances are permitted for measurement of `scantlings and planks'.
16. In the aforementioned situation, we are of the opinion that the Tribunal as also the High Court cannot be said to have erred in holding that the said Mr. Walia should have been examined as a witness.?
13. In this regard, he has also relied upon the order of this Tribunal in OA No. 740/2010 S.K. SaxenaVs. U.O.I. and Others wherein it was held that an officer who was the part of the Vigilance dispensation could not have been appointed as the Inquiry Authority. The relevant part of the said order reads as under:-
œ15. We find the plea raised on behalf of the respondents to be indefensible. We repeatedly called upon the learned counsel for respondents to invite our attention to any part of the counter wherein it may have been averred that the Inquiry Officer did not belong to the Vigilance dispensation. The learned counsel was not in a position to invite our attention to any part of the counter wherein that fact may have been mentioned. He kept on asserting all through that the Inquiry Officer was not a part of the Vigilance Organisation and that he was under the administrative control of the Vigilance dispensation either. However, he was not in a position to categorically say where exactly was the IO posted. Information about his exact posting would have surely enabled us to find out his relatability or otherwise to the Vigilance dispensation. In the absence of a precise indication about the identification about the placement of the Inquiry Officer, either in the pleasing or in the course of presentation, we feel justified in holding that there is force in the plea on behalf of the Applicant that the Inquiry Officer was a part of the Vigilance dispensation and he could not have, thus, conducted the inquiry in the context which was based upon allegations of corruption against the applicant for which a trap had been laid by the Vigilance Wing itself.?
14. Further, according to the applicant, the Respondents have not supplied him the additional documents sought by him. Out of the 8 additional relevant documents sought by him, 2 related to Shri R.K. Aggarwal who was also the prosecution witness No.3. The respondents did not supply those two documents to him simply stating that they were not relevant.
15. The other contention of the applicant was that the Enquiry Officer did not give him the opportunity to refute the evidence against him adduced during the enquiry and thereby violated the provision contained in sub-Rule 9 (21) of the Railway Servants (Discipline and Appeal) Rules, 1968 which reads as under:-
(21) The inquiring authority may, after the Railway servant closes his case, and shall, if the Railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Railway servant to explain any circumstances appearing in the evidence against him.
In this regard he has relied upon the judgment of the Apex Court in Ministry of Finance Vs. S.B. Ramesh AIR 1998 SC 853. The relevant part of the said judgment reads as under:- 14. On a careful perusal of the above findings of the Tribunal in the light of the materials placed before it, we do not think that there is any case for interference, particularly in the absence of full materials made available before us in spite of opportunity given to the appellants. On the facts of this case, we are of the view that the departmental enquiry conducted in this case is totally unsatisfactory and without observing the minimum required procedure for proving the charge. The Tribunal was, therefore, justified in rendering the findings as above and setting aside the order impugned before it.
15. In the result, the appeal fails and is dismissed accordingly with no order as to costs.
He has also relied upon the judgment of the Apex Court in MonishankerVs. U.O.I. and Others JT 2008 (3) SC 484. In the said judgment, the Apex Court emphasized for need of the authorities to follow the procedure prescribed in sub-Rule 9 (21) of the Railway Servants (Discipline and Appeal) Rules, 1968 as well as paras 704 and 705 of Vigilance Manual dealing with departmental trap cases. The relevant part of the said judgment reads as under:-
14. While we say so we must place on record that this Court in Chief Commercial Manager, South Central Railway v. G. Ratnam((2007) 8 SCC 212) opined that non-adherence to the instructions laid down in Paras 704 and 705 of the Vigilance Manual would not invalidate a departmental proceeding, stating: (SCC pp. 220-21, paras 17-18)
"We shall now examine whether on the facts and the material available on record, non-adherence of the instructions as laid down in Paras 704 and 705 of the Manual would invalidate the departmental proceedings initiated against the respondents and rendering the consequential orders of penalty imposed upon the respondents by the authorities, as held by the High Court in the impugned order. It is not in dispute that the departmental traps were conducted by the investigating officers when the respondents were on official duty undertaking journey on trains going from one destination to another destination. The Tribunal in its order noticed that the decoy passengers deployed by the investigating officers were RPF constables in whose presence the respondents allegedly collected excess amount for arranging sleeper class reservation accommodation, etc. to the passengers. The transaction between the decoy passengers and the respondents was reported to have been witnessed by the RPF constables. In the facts and circumstances of the matters, the Tribunal held that the investigations were conducted by the investigating officers in violation of the mandatory instructions contained in Paras 704 and 705 of the Vigilance Manual, 1996, on the basis of which inquiries were held by the enquiry officer which finally resulted in the imposition of penalty upon the respondents by the Railway Authority. The High Court in its impugned judgment has come to the conclusion that the inquiry reports in the absence of joining any independent witnesses in the departmental traps, are found inadequate and where the instructions relating to such departmental trap cases are not fully adhered to, the punishment imposed upon the basis of such defective traps are not sustainable under law. The High Court has observed that in the present cases the service of some RPF constables and railway staff attached to the Vigilance Wing were utilised as decoy passengers and they were also associated as witnesses in the traps. The RPF constables, in no terms, can be said to be independent witnesses and non-association of independent witnesses by the investigating officers in the investigation of the departmental trap cases has caused prejudice to the rights of the respondents in their defence before the enquiry officers.
We are not inclined to agree that the non-adherence of the mandatory instructions and guidelines contained in Paras 704 and 705 of the Vigilance Manual has vitiated the departmental proceedings initiated against the respondents by the Railway Authority. In our view, such finding and reasoning are wholly unjustified and cannot be sustained."
15. It has been noticed in that judgment that Paras 704 and 705 cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. This Court proceeded on the premise that the executive orders do not confer any legally enforceable rights on any person and impose no legal obligation on the subordinate authorities for whose guidance they are issued.
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20. The enquiry officer had put the following questions to the appellant:
"Having heard all the PWs, please state if you plead guilty? Please state if you require any additional documents/witness in your defence at this stage? Do you wish to submit your oral defence or written defence brief? Are you satisfied with the enquiry proceedings and can I conclude the enquiry?"
21. Such a question does not comply with Rule 9(21) of the Rules. What were the circumstances appearing against the appellant had not been disclosed.
16. The applicant has also submitted that Shri. P.K. Jain who passed the order in his capacity as Disciplinary Authority should not have done so as he was the subordinate to the officer who had appointed him as Enquiry-cum-Reservation Supervisor. The aforesaid fact is evident from the order of removal from service passed by the said Shri P.K. Jain which was later on cancelled and fresh order passed under the signature of the Deputy Chief Commercial Manager(DB)/IRCA/New Delhi. Even though the Deputy Chief Commercial Manager(DB)/IRCA/New Delhi, later on, signed the removal order, yet it was done in a mechanical manner as he had no opportunity to go through the Enquiry Officers report and the Applicants representation on the same. On the other hand, as per the Railway Servants (Discipline and Appeal) Rules, 1968, it is the Disciplinary Authority who has to consider the enquiry report and representation of the Government servant before he passes any order. In his case the said consideration was done only by Shri P.K. Jain and not by the Disciplinary Authority.
17. The Respondents in their reply have submitted that the major penalty charge sheet dated 20.04.2009 was issued to the Applicant and he was held responsible for misusing privilege pass No.048217 dated 10.10.2007 as he secured the reservation twice on 18.11.2007 and 04.01.2008 on the strength of the aforesaid privilege pass No.048217 vide PNR No.244-4069056 and 2507535718, one in favour of himself along with his wife and his son and the second in favour of himself and his wife only in train No.2017A ex-NZM to Howrah respectively. Firstly, he booked his ticket on 18.11.2007 at 13.2 hrs for journey by train No.12017A with full proof plan and second reservation was secured on 03.01.2008 at 09.57 hrs for journey on 04.01.2008. Generally family members names were known only by the pass holders or very dearest one and both reservations were secured in the name of family members. He has worked in reservation office for very long period and he knew everyone. He did not put lost tag on pass No.048217 as he claimed.
18. They have also stated that during the course of preliminary enquiry, Applicant himself has admitted that he was ready to pay the fare of the train, therefore, it is evident that he has committed the misconduct knowingly.
19. As regards the submission of the learned counsel for the Applicant that the Inquiry Officer was working in the vigilance office, they have submitted that at the time when he was nominated, he was not working in the vigilance office. They have also submitted that at the time of his appointment, the Applicant did not make any objections.
20. As regards the additional documents sought by the applicant, they have submitted that all the demanded documents relating to the case were supplied to him but only irrelevant documents were withheld. They have specifically stated that out of 8 additional documents demanded by the Applicant, two of which have not been given to him, were not relevant to the case at all.
21. We have heard the learned counsel for the Applicant Mrs. Meenu Mainee and the learned counsel for the Respondents Shri Shailendra Tiwary. The allegation against the Applicant was that he misused the Railway passes. Admittedly, the decision to hold enquiry against the Applicant was taken by Shri P.K. Jain, SCM/DB which is evident from the Memorandum dated 20.04.2009 itself. Again, admittedly Shri Jain was not the Disciplinary Authority of the Applicant. On the other hand, his Disciplinary Authority was General Manager/P. Therefore, in our considered view, the very proposal to initiate departmental enquiry against the Applicant is not sustainable as the same was done by an incompetent authority. In this regard, the judgment of the Apex Court in the case of Union of India Vs. B.V. Gopinath JT 2013 (12) SC 392 is quite relevant and its operative part reads as under:-
œ39. Article 311(1) of the Constitution of India ensures that no person who is a member of a civil service of the Union or an all India service can be dismissed or removed by an authority subordinate to that by which he was appointed. The overwhelming importance and value of Article 311(1) for the civil administration as well as the public servant has been considered stated and re- stated, by this Court in numerous judgments, since the Constitution came into effect on 19th January, 1950. Article 311(2) ensures that no civil servant is dismissed or reduced in rank except after an inquiry held in accordance with the rules of natural justice. To effectuate the guarantee contained in Article 311(1) and to ensure compliance with the mandatory requirements of Article 311(2), the Government of India has promulgated CCS (CCA) Rules, 1965.
40. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge sheet. Such a charge sheet can only be issued upon approval by the appointing authority i.e. Finance Minister.?
22. Yet another important aspect of the case is that not only Shri P.K. Jain, SCM/DB illegally and unauthorizedly issued the Memorandum initiating the departmental enquiry against the applicant, he has also assumed the power of the Disciplinary Authority without considering the applicants submissions and went ahead and imposed the penalty of Removal from Service. However, when the Respondents realized the illegality committed by the aforesaid officer, they adopted the short cut by withdrawing the aforesaid order of penalty vide its letter dated 01.02.2010 and imposed the very same punishment on 02.02.2010 by way of a fresh order under the signature of the actual Disciplinary Authority, namely, the General Manager. It has just replaced the signature of Sh. P. K. Jain and put his signature there. Further, it is seen that the aforesaid order of the General Manager (P) was not even addressed to the applicant. It was communicated to him by one Raman Kumar Sharma on behalf of the General Manager. From the aforesaid procedure adopted by the Disciplinary Authority, it is clear that he was extremely casual in his approach and he passed his order in a very mechanical manner without any application of mind. 23. Further, it is seen that the Enquiry Officer Shri Aswani Kumar Sharma himself was working in the Vigilance Branch immediately before his nomination by the Disciplinary Authority. When the departmental enquiry was initiated at the instance of the Vigilance Department, the fairness and transparency in enquiry demands that the Enquiry Officer should be an independent officer. This is particularly so when the Respondent-Railway has no dearth of officers who were/are not part of the Vigilance Branch. The Railway Board itself vide its Circular No.RBE 89/2001 emphasized the need of the personality of the official conducting departmental enquiry to have impartial approach. The said Circular reads as under:-
RBE No. 89/2001
Sub: Procedure to be followed in conducting departmental Inquiries and the role of the Inquiry Officer regarding.
[No.E(DandA)/2000 RG6- 60 dated 9-5-2001)]
A case has come to the notice of this Ministry where, while conducting the inquiry in a disciplinary case, the Inquiry Officer examined the charged official in regard to the charges during the preliminary hearing(s) itself before examination of the Prosecution Witnesses. Also, though no Presenting Officer had been appointed, the Inquiry Officer prepared a written brief himself, purported to have been prepared by the Presenting Officer, and sent a copy of the brief to the charged official under his own signature. In the inquiry report also, under the heading oral arguments given from the Prosecution Side , the Inquiry Officer actually gave details of the questions put by him. The general conduct of the Inquiry Officer was also not befitting his role as an impartial authority, as he subjected the charged official to a searching cross-examination. In the said case, the appeal had to be disposed of in favour of the charged official solely on account of the improper manner in which the inquiry was conducted in gross deviation of the prescribed procedure, which had vitiated the proceedings.
4. The most crucial facet of the personality of the official conducting the departmental inquiry is his impartial approach, as he is performing a quasi-judicial function. His conduct must be above board so much so that he should not merely be impartial but also seem to be so, to ensure that the inquiry commands the confidence it deserves. This aspect assumes greater significance when there is no Presenting Officer. As it is not feasible to appoint Presenting Officers in majority of the inquiries, the Inquiry Officer has to examine/cross examine the witnesses including the defence witness to find out the truth in the charges.
4.1 It is desired that the position brought out in paras 2 and 3 above is brought to the notice of all concerned for their guidance and strict compliance so that the types of situation brought out inn para 1 above is avoided in future.
24. The Apex Court in its judgment in Prakash Tandon(supra),Lucknow Bench of this Tribunal in the case of Raja Ram Verma (supra) and the Principal Bench in the case of S. K. Saxena (supra) emphasized the need to hold disciplinary proceedings fairly and in accordance with the principles of natural justice. It has been held in those judgment/orders that the officers of the vigilance dispensation cannot be appointed as Enquiry Officer, particularly in those cases the disciplinary proceedings have been initiated at the instance of the Vigilance Department.
25. It is the settled position that in department proceedings, the Disciplinary Authority is the sole judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities (Apparel Export Promotion Council Vs. A.K. Chopra 1999 (1) SCC 759). Therefore, both the authorities have to apply their mind while passing orders. But in the present case, both the Disciplinary Authority and the Appellate Authority have been totally casual in their approach and upheld the order of punishment of removal from service passed against the appointment by an incompetent authority. In Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Others 2006 (4) SCC 713, the Apex Court has held as under:-
31. We may for the aforementioned purpose take note of the extant rules operating in the field. Requirements of consideration in an appeal from an order of the disciplinary authority by the appellate authority is contained in Rule 37 whereas the provisions as regards filing of a memorial are contained in Rule 40 thereof, which read as under:
"37. Consideration of Appeals- (1) In case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Rule 20 and having regard to the circumstances of the case the order of suspension is justified or not and confirm or revoke the other accordingly.
(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 23, the appellate authority shall consider:
(a) Whether the procedure prescribed in these Rules has been complied with and if not, whether such non-compliance has resulted in failure of justice;
(b) Whether the findings are justified; and
(c) Whether the penalty imposed is excessive, adequate or inadequate, and pass orders:
I. setting aside, reducing, confirming orenhancing the penalty; or
II. remitting the case to the authority which imposed the penalty or to any otherauthority with such direction as it maydeem fit in the circumstances of the case.
"40 . Memorial - An employee whose appealunder these Rules has been rejected by theChairman/Chairman-cum-Managing Director or in whose case such appellate authority has enhanced the penalty either on appeal under Rule 24 or on review under Rule39 (2) may address a memorial to the Chairman/Chairman-cum-ManagingDirector in respect of that matter within a period of a 6 months from the date the appellant received a copy of the order of such appellate authority."
32. The appellate authority, therefore, while disposing of the appeal is required to apply his mind with regard to the factors enumerated in sub-rule 2 of Rule 37 of the Rules. The judgment of the civil court being inter parties was relevant. The conduct of the appellant as noticed by the civil court was also relevant. The fact that the respondent has accepted the said judgment and acted upon it would be a relevant fact. The authority considering the memorial could have justifiably came to a different conclusion having regard to the findings of the civil court. But, it did apply its mind. It could have for one reason or the other refused to take the subsequent event into consideration, but as he had a discretion in the matter, he was bound to consider the said question. He was required to show that he applied his mind to the relevant facts He could not have without expressing his mind simply ignored the same.
26. In the above facts and circumstances of the case, the OA is allowed. Consequently, we quash and set aside the impugned order dated 05.02.2010. The Respondents shall reinstate the Applicant in service with all consequential benefits. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order. No costs.