Full Judgment
2. Applicant, who was working as Keyman, has been proceeded against for a major penalty on the allegations that in May, 1994, a derailment had caused due to his negligence. An earlier enquiry proceeded against the applicant culminated into penalty of removal. The said order of removal was challenged by the applicant before this Tribunal by filing OA No.517/1997. The Tribunal vide its order dated 01.12.1998 set aside the punishment with liberty to the respondents to proceed with a fresh enquiry, if they so desire.
3. On reinstatement, an enquiry was proceeded against the applicant and the Enquiry Officer held the applicant partially responsible for derailment. The Disciplinary Authority imposed a major punishment.
Against the order of the Disciplinary Authority, the applicant preferred an appeal, which has not been paid any heed. Therefore, the present OA has been filed.
4. Learned Counsel for the applicant states that the enquiry report is non-reasoned and there is no conclusion as to the guilt of the applicant, which has been mechanically relied upon by the Disciplinary Authority without recording reasons, which vitiates the impugned order.
5. Shri Bhandari, learned Counsel for the applicant also contended that although the applicant has been held partially responsible for the misconduct, yet the Disciplinary Authority punished him on all the charges on an implied disagreement, without following due process of law depriving the applicant of a reasonable opportunity in violation of principles of natural justice.
6. Respondents' Counsel Shri P.K. Yadav vehemently contended that the documents sought for by the applicant have already been served in the first enquiry and he has not been caused any prejudice as per the decision of the Apex Court in Syndicate Bank and Ors. v. V.G. Kurati .
7. Shri P.K. Yadav, learned Counsel for the respondents would contend that principles of natural justice is not a straight jacket formula as only in case of disagreement, a reasoned order has to be passed by the Disciplinary Authority and in this regard he has relied upon the decision of the Apex court in National Fertilizers Limited and Anr. v.P.K. Khanna 8. We have carefully considered the rival contentions of the parties and perused the material on record.
9. In a judicial review, if an illegality on substantive procedure takes place in a disciplinary proceeding causing prejudice to the employee, the findings as well as the punishment can be interfered.
10. Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 prescribes the procedure for holding a disciplinary proceeding. As per Rule 9(25) of the Rules ibid, after conclusion of the enquiry, the report of the Enquiry Officer should contain a finding on each article of charge and the reasons therefor. The findings recorded by the Enquiry Officer in his Report are re-produced as under: History of case "Derailment of 3152 ex-at NRS Station, Line No. 1 at 2.25 hrs. on 30.05.1994" load 16 32, Engine No. 16135 WDM-2 and 1st Coach 937265 ER and IInd Coach 7627 WGS by all 12 wheels, 8 wheels and 6wheels respectively.
Proceedings The undersigned appointed as Enquiry Officer by AEN/BE vide his letter No. Cir./15 dated 19.09.1999.
First date of enquiry fixed on 20.12.1999. 2nd date for enquiry fixed on 21.01.2000.
On 22.01.2000, Shri Dhakkan, K.Man, demanded all papers, concerning to this case.
1. S/Sh. M.G. Sharma, SS/RMU, P.N. Badhawan, CC/WI/MB and P.N. Prasad, SLI/MB, were called to attend enquiry on 11.06.2000 and information was given to concerning Divisional Officers also, but above witnesses did not attend the enquiry. CC WI/MB and SE/Loco/MB informed that Sh. P.N. Badhawan and Sh. P.N. Prasad has already seen report, (at page No. 11, 164 and 167).
On 04.07.2000, and 30.07.2000, statement of Shri Dhakkan, K.man, were taken (at page No. 189, 190, 191).
Grounds: As per joint note, track was fully ash and keys were fallen down from sleepers and were covered with ash (at page No. 28 & 29).
2. As per joint enquiry report of enquiry conducted by DSE-I/MB, the track was covered with ashes and it was very difficult to examine sleepers and fittings by any inspecting official, including Keyman (at Page No. 12).
As per enquiry report, of the enquiry conducted by DSE-I/MB, AEN/BE had given certain specific directions to PW1 Incharge/RMU about this loop line during push trolley inspection on 24.05.1994, but those instructions were not conveyed to the staff of PW1/RMU till the date of derailment (at page No. 11 & 12).
11. From the above, it transpires that except mentioning the documents not even a whisper as a reason has been recorded by the Enquiry Officer as to how the charge against the applicant has been established. The aforesaid is an illegality of the procedure and it has prejudiced the applicant insofar as, for want of reasons, he has been deprived of opportunity to rebut the same before the Disciplinary Authority. The report of the Enquiry Officer should discuss the findings and reasons as to proof of the charge by weighing the prosecution and defence evidence. This is in consonance of the law declared by the Apex Court in Anil Kumar v. Presiding Officer . On this count alone, the punishment cannot be sustained against the applicant.
12. Moreover, it is trite that in case of any disagreement to the findings of the Enquiry Officer, Disciplinary Authority, in the wake of principles of natural justice, has to afford a prior reasonable opportunity to the concerned to show cause and thereafter take a final decision. Although in the conclusion by the Enquiry Officer applicant has been held partially responsible for the misconduct, yet the Disciplinary Authority in its order recorded as under: I, therefore, hold you guilty of the charge(s) viz. mentioned in the Charge-sheet No. Cir./15 dated 29.07.1994, upon you the penalty of withholding of increment. Your increment raising your pay from Rs. 1100/- to Rs. 1120/- in the grade Rs. 825-12/Rs. 2750-4000, normally due on 01.04.2001 is, therefore, withheld for a period of 3 years with postponing your future increment.
13. If one has regard to the above, applicant has been held guilty and punished on all the charges on an implied disagreement to the findings of the Enquiry Officer. Accordingly, as no prior reasonable opportunity to show cause has been afforded, the same has not only prejudiced the applicant, but also denied him a reasonable opportunity to defend.
14. Leaving other grounds open, on these two scores, this OA stands allowed. Impugned order is set aside. Applicant is entitled to all consequential benefits. No costs.