H.K. Rathod, J.
1. Heard learned Advocate Mr. Mukesh Patel for petitioners-Union of India and others and Ms. Nita C. Banker for respondent original petitioner.
2. In this petition, petitioners, Union of India and others have challenged order passed by Central Administrative Tribunal, Ahmedabad Bench dated 8-10-2003 in O.A. No. 553 of 1999 with M.A. No. 506 of 1999. Original petitioner-present respondent, being aggrieved by order of the disciplinary authority imposing penalty of removal from service and non-disposal of his representations dated 27-6-1996 and 27-8-1997 by appellate authority, preferred O.A. on 4-6-1998. It was registered on 20-8-1999. Thereafter, O.A. was amended in April, 2003 to challenge order of appellate authority dated 23-8-1996 rejecting appeal of original petitioner-employee. Prayer was made for quashing order passed by disciplinary authority and appellate authority.
3. Case of the employee was that he was appointed as inquiry-cum-reservation clerk and training was given in computerized reservation. Then, he was transferred to Nadiad. He was charge-sheeted. After inquiry, Inquiry Officer found him guilty but recommended that his case may be considered sympathetically. However, disciplinary authority imposed penalty of removal from service. Departmental appeal was filed before appellate authority raising contention that principles of natural justice have been violated by respondents. Appellate authority directed fresh inquiry for limited purpose and appointed Inquiry Officer to examine passengers, then, to submit report. Appellate authority appointed Inquiry Officer to verify new facts alleged in appeal. Thereafter, newly appointed Inquiry Officer submitted report holding that the charges are not proved, however, appellate authority rejected his appeal.
4. Original respondents Union of India and others raised preliminary contention of limitation against original application. According to respondent, inquiry was properly held, order passed by disciplinary authority is legal; appellate authority has power to order fresh inquiry if any new facts are brought out by employee. Appellate authority can disagree with the findings given by Inquiry Officer. After receiving report of new Inquiry Officer, appellate authority rejected appeal filed by original petitioner-employee.
5. C.A.T. examined rival contentions raised by respective parties. Tribunal came to conclusion that Central Vigilance Inspector's report is not supplied to petitioner-employee to enable him to effectively cross-examine Vigilance Inspector. Appellate authority has no power to hold new fresh inquiry without quashing the order of punishment. C.A.T. considered order passed by appellate authority, Para 9(18) of Railway Servants (Discipline and Appeal) Rules, Decision of C.A.T., Chandigarh Bench of Surjit Kumar Dubey v. Union of India 1997 (2) SLJ 299 (CAT) decision of Apex Court in Institute of Chartered Accountants v. L. K. Ratna : [1987]164ITR1(SC) , page 165-168 of M.L. Jand's Railway Servants (Discipline and Appeal) Rules, that Railway Board Circular E (D&A;) 61 RG-6-45 of 1961, Railway Board Circular No. E dated 30th December, 1968 and decision of Apex Court in State Bank of India v. D.C. Agrawala : (1993)ILLJ244SC . Thereafter, Tribunal allowed O.A. and quashed orders of disciplinary authority as well as appellate authority and remanded matter back to disciplinary authority with direction to appoint Inquiry Officer and make available a copy of report of vigilance officer; inquiry shall commence from the stage of cross-examination of vigilance officer, and thereafter, if need be, petitioner-employee will be examined, Inquiry Officer will thereafter submit his report and the disciplinary authority will pass orders in accordance with law. As regards intervening period between date of removal and date of passing order by Tribunal, C.A.T. directed disciplinary authority to decide same in accordance with rules.
6. Learned Advocate Mr. Mukesh Patel raised contention that C.A.T. has erred in quashing both orders. He submitted that report of vigilance officer is privileged and confidential document and respondent employee is not entitled for copy of such document. He submitted that reasonable opportunity was given to respondent while conducting inquiry. Appellate authority has rightly directed inquiry because new facts were brought to notice of appellate authority by petitioner, therefore, to verify new facts, Inquiry Officer was appointed. In that inquiry also, reasonable opportunity was given to petitioner. Appellate authority after considering report, rightly rejected appeal. He also submitted that appellate authority has power under Rule 22(2)(c) of Railway Servants (Discipline & Appeal) Rules, 1968 to hold inquiry and to pass appropriate orders on appeal. So, according to him, appellate authority has power to hold such inquiry or to direct for such inquiry in accordance with rules, therefore, appellate authority has not committed any error in rejecting appeal. He submitted that charges levelled against petitioner-employee are proved and because of serious charge, punishment of removal is not disproportionate or harsh, therefore, his request is to quash order of C.A.T. and allow this petition.
7. Learned Advocate Ms. Nita C. Banker for petitioner-employee submitted that report of vigilance officer was part and parcel of charge-sheet dated 7th April, 1994. She submitted that list of documents which list of witnesses by whom articles of charges are proposed to be sustained as per memorandum dated 7th April, 1994, Vigilance Officer's report and charge-sheet is based upon vigilance officer's report. She submitted that Annexure III along with memorandum supplied to petitioner wherein name of Rakesh Sharma, vigilance officer is shown as witness and statement of petitioner dated 6th January, 1994 is document which was relied upon against petitioner, therefore, vigilance officer become reporter who held preliminary inquiry against petitioner. After receiving vigilance report by disciplinary authority, charges were framed against petitioner on the basis of said report, thereafter, petitioner was served with memorandum dated 7th April, 1994 for alleged misconduct enumerated by department. She also submitted that vigilance officer was examined as administrative witness but no opportunity of cross-examination was offered to petitioner, therefore, petitioner was not able to cross-examine vigilance officer, therefore, it is a denial of reasonable opportunity to petitioner. She also submitted that the appellate authority has no power to fill up gap or cure defective inquiry without first quashing order of punishment to direct new inquiry for limited purpose. She also submitted that the service Rule 22(2)(c) is not permitting such kind of inquiry by appellate authority. According to her, appellate authority has to consider whether departmental inquiry was conducted against petitioner is in accordance with the principles of natural justice or not, if not, then, appellate authority should have first quashed order of punishment and then to remand matter back to disciplinary authority, to have fresh inquiry from such stage which is necessary. She submitted that Inquiry Officer recommended for sympathetic approach and yet harsh order of punishment is passed by disciplinary authority. She also submitted that C.A.T. has rightly decided O.A. and directed fresh inquiry from stage of examination of vigilance officer after supplying copy of report to petitioner. She submitted that petitioner is out of job since last about nine years and it is difficult to maintain family as petitioner is unable to get another job and has no means to maintain the family. She also submitted that if C.A.T. order is implemented, then, no prejudice going to be caused to department and mental agony of petitioner may come to an end.
8. We have considered rival submissions of both learned Advocates. We have perused order passed by C.A.T. We have also perused original record of inquiry including inquiry by appellate authority. Charges are proposed to be made against petitioner as per memorandum dated 7th April, 1994 on the basis of report of vigilance officer. In memorandum, following averments of Para 1 are relevant, therefore, they are reproduced:
The undersigned propose(s) to hold an inquiry against Shri Rajendrakumar H. Patel, ECRC/ND of the Railway Servants (Discipline & Appeal) Rules, 1968. The substance of the imputations of misconduct or misbehavior in respect of which inquiry is proposed to be held is set out in the enclosed statement of Articles of Charges (Annexure-I). The statement of imputation of misconduct or misbehavior in support of each article of charge is enclosed (Annexure-II). A list of documents by which which a list of witness by whom the articles of charge are proposed to be sustained are also enclosed (Annexure III and IV). Further, copies of the documents mentioned in the list of mentioned as per Annexure-III are enclosed.
9. Documents relied upon as per Annexure-III & Annexure-IV page 56 is reproduced:
(i) Reservation Register of 9008 Up of S/2 coach dated 12-12-1993 and 16-12-1993 (not seized)
(ii) Reservation Register of 9018 Up of S/2 Coach dated 7-1-1994 (no seized)
(iii) Requisition form of Shri and Smt. S. N. Joshi
(iv) Requisition form of Shri Govindbhai
(v) Requisition form of Shri Ashit R. Shaha.
(vi) Deposition of Shri R.K.H. Patel dated 6-1-1994.
ANNEXURE IV
(i) Shri Rakesh Sharma, C.V.I./B.R.C.
10. In view of above memorandum and Annexures III and IV, it appears that Vigilance Officer's report has been taken into account for issuing chargesheet against petitioner. Vigilance Officer's report was prepared after completion of preliminary inquiry. Thereafter, on the basis of report, memorandum of charge was issued against petitioner, therefore, charge to be sustained against petitioner on the basis of Vigilance Officer's report. Then, Vigilance Officer become reporter. Vigilance Officer reported to disciplinary authority that petitioner has committed certain irregularities/misconduct. After receiving report, disciplinary authority framed charges relying on certain documents and witnesses and served it upon employee. Request was made by employee to disciplinary authority to supply relevant documents. Certain documents were supplied as per demand made by petitioner. By letter dated 16-8-1994, petitioner specifically made it clear that he received documents asked by him during the inquiry except report of Vigilance Inspector. During the course of inquiry, statement of Central Vigilance Inspector (B.R.C.) was recorded on 10-10-1994 as administrative witness and same was closed without offering said witness for cross-examination to petitioner. If C.V.I, was examined in departmental inquiry as administrative witness, then, his report is relevant for defence and to cross-examine C.V.I. Thus, it is clear that copy of report of C.V.I. (B.R.C.) was not supplied to petitioner. Not only that, petitioner was also not permitted to cross-examine administrative witness namely C.V.I. (B.R.C.). So, evidence of C.V.I, in departmental inquiry remained without cross-examination by petitioner. No such offer was made by Inquiry Officer to petitioner. That violated basic principles of natural justice. These facts were brought to notice by petitioner in his appeal dated 18-4-1995. After completion of departmental inquiry, Inquiry Officer recorded his findings. In his finding, Inquiry Officer has not made mention about examination of administrative witness, C.V.I. (B.R.C.) during departmental inquiry. C.V.I. was examined in absence of petitioner, who remained without cross-examination and yet his report has been taken into account and on basis of report of irregularities alleged against petitioner which is ultimately found to be proved by Inquiry Officer. Disciplinary Authority while agreeing with this finding, passed removal order on 23-2-1995 on file.
11. Petitioner preferred departmental appeal on 18-4-1995 and requested for personal hearing along with defence representative which was granted on 2-6-1995. Appellate authority came to conclusion during pendency of appeal that new facts are brought out and affidavits have also been placed on record, therefore, these facts needs to be examined and to be considered by Inquiry Officer. So, appellate authority ordered to appoint Inquiry Officer and to consider new facts brought out in appeal and submit report. This order was passed by appellate authority on 26-6-1995. Inquiry Officer appointed pursuant to order of appellate authority submitted his report about examination of defence witnesses who were not examined by former Inquiry Officer Shri P. K. Sharma. second Inquiry Officer while giving finding, nowhere come to conclusion that defence raised by petitioner is wrong or not proved. There is no positive finding against petitioner in fresh inquiry conducted pursuant to order of appellate authority. On the contrary, defence witnesses accepted and admitted affidavits given by them and there is no finding against petitioner which would establish charge against petitioner. Defence witnesses explained circumstances. After receiving report of fresh inquiry by appellate authority, appellate authority passed final order in appeal which is communicated to petitioner by letter dated 23-8-1996. Order of appellate authority is reproduced as under:
You have while working as ECRC/ND during December, 1993 has been charged with not allotting confirmed berth to the passengers, though the berths were lying vacant on those particular days, and thereby, blocked berths by putting fictitious names in the reservation register.
Inquiry was conducted in this case by Sr. CMI-ND and he has concluded in his findings that charges against Shri R.H. Patel have been proved. Consequently, D.A. awarded the punishment of 'removal from service'.
You were granted personal hearing on 2-6-1995 and it is established that berths were blocked by putting fictitious names in the reservation register. In view of the above, the appeal is rejected.
Revision Petition lies to A.D.R.M. (B.R.C.) within 45 days.
Please acknowledge receipt.
12. Appellate authority has not at all referred to report of fresh inquiry as ordered by him. He has also not discussed finding given by second Inquiry Officer appointed pursuant to his own order. He simply rejected appeal without considering report of second inquiry as ordered by him. Before rejecting appeal, petitioner was not supplied copy of report of Inquiry Officer appointed pursuant to order of appellate authority. Manner and method which adopted by appellate authority to fill up gap or cure lacuna which was remaining in first inquiry which was held by Inquiry Officer Shri P. K. Sharma is not proper. Petitioner was not supplied copy of report of C.V.I. Petitioner was not permitted to cross-examine C.V.I. who was examined as administrative witness. Report of C.V.I. was taken into consideration while examining him in the departmental inquiry as administrative witness. Further, report of second inquiry made pursuant to order of appellate authority was also not supplied to petitioner. No reason has been given by appellate authority for not accepting report of second Inquiry Officer. No reason has been given by appellate authority why appeal is rejected after fresh inquiry. Defence of petitioner was totally ignored by appellate authority. Therefore, departmental inquiry as well as proceedings before appellate authority both are vitiated because of violation of principles of natural justice. Therefore, C.A.T. has rightly quashed both orders and remanded matter back to disciplinary authority to hold fresh inquiry from the stage of examination of C.V.I. (B.R.C.) after supplying him copy of report of C.V.I. (B.R.C).
13. Elementary principles of natural justice in respect of departmental inquiry have been examined by Apex Court in Meenglas Tea Estate v. The Workmen : (1963)IILLJ392SC . Relevant Paragraph 4 is quoted:
(4) The Tribunal held that the inquiry was vitiated because it was not held in accordance with the principles of natural justice. It is contended that this conclusion was erroneous. But we have no doubt about its correctness. The inquiry consisted of putting questions to each workman in turn. No witness was examined in support of the charge before the workman was questioned. It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then, he must be given a chance to rebut the evidence led against him. This is the barest requirement of an inquiry of this character and this requirement must be substantially fulfilled before the result of the inquiry can be accepted. A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him. In the present case, neither was any witness examined nor was any statements made by any witness tendered in evidence. The inquiry, such as it was, made by Mr. Marshall or Mr. Nichols who were not only in the position of Judges but also of prosecutors and witnesses. There was no opportunity to the persons charged to cross-examine them and indeed they drew upon their own knowledge of the incident and instead cross-examined the persons charged. This was such a travesty of the principles of natural justice that the Tribunal was justified in rejecting the findings and asking the Company to prove the allegation against each workman de novo before it.
In Sur Enamel and Stamapaing Works Ltd. v. The Workmen : (1963)IILLJ367SC , Apex Court observed as under in Paragraph 4:
In support of the appeal against this order, Mr. Sen Gupta has urged that it was not open to the Industrial Tribunal to go behind the finding arrived at by the domestic Tribunal. He contended that the Tribunal was wrong in thinking that the rules of natural justice were not followed. It appears that a joint inquiry was held against Manik and one Birinchi. Notoby was examined at this inquiry to prove the charges. Only Manik and Birinchi were examined. They were confronted with the reports of the supervisor and other persons made behind their backs and were simply asked why these persons would be making the reports against them falsely. It is not clear whether what they said was recorded. According to the inquiring authority, they were 'unable to explain as to why these persons would be making the reports against them falsely.' In our opinion, it would be a misuse of the words to say that this amounted to holding of proper inquiry. It has been laid down by this Court in a series of decisions that if an industrial employee's services are terminated after a proper domestic inquiry held in accordance with the rules of natural justice and the conclusions reached at the inquiry are not perverse the industrial Tribunal is not entitled to consider the propriety or the correctness of the said conclusions. In a number of cases which have come to this Court in recent months, we find that some employers have misunderstood the decisions of this Court to mean that the mere form of an inquiry would satisfy the requirements of industrial law and would protect the disciplinary action taken by them from challenge. This attitude is wholly misconceived. An inquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him; (ii) the witnesses are examined-ordinarily in the presence of the employee-in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the Inquiry Officer records his findings with reasons for the same in his report. In the present case, the persons whose statements made behind the back of the employees were used by the inquiring authority were not made available for cross-examination but it would appear that they were not even present at the inquiry. It does not even appear that these reports were made available to the employee at any time before the inquiry was held. Even if the persons who made the reports had been present and the employee given an opportunity to cross-examine them, it would have been difficult to say in these circumstances that was a fair and sufficient opportunity. But in this case, it appears that the persons who made the reports did not attend the inquiry at all. From whatever aspect the matter is examined, it is clear that there was no inquiry worth the name and the Tribunal was justified in entirely ignoring the conclusion reached by the domestic Tribunal.
In State of U. P. v. Shatrughan Lal and Anr. : [1998]3SCR939 , Apex Court observed as under in Paragraph 4, 5, 6 and 7:
4. Now, one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge-sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him (See : Chandrama Tewari v. Union of India : [1988]1SCR1102 ; Kashinath Dikshita v. Union of India : (1986)IILLJ468SC ; State of Uttar Pradesh v. Mohd. Sharif ' : (1982)IILLJ180SC .
5. In High Court of Punjab and Haryana v. Amrik Singh 1995 Supp (1) SCC 321, it was indicated that the delinquent officer must be supplied copies of documents relied upon in support of the charges. It was further indicated that if the documents are voluminous and copies cannot be supplied, then, such officer must be given an opportunity to inspect the same, or else, the principles of natural justice would be violated.
6. Preliminary inquiry which is conducted invariably on the back of the delinquent employee may often constitute the whole basis of the charge-sheet. Before a person is, therefore, called upon to submit his reply to the charge-sheet, he must, on a request made by him in that behalf, be supplied the copies of the statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial. This principle was reiterated in Kashinath Dikshita v. Union of India : (1986)IILLJ468SC wherein it was also laid down that this lapse would vitiate the departmental proceedings unless it was shown and established as a fact that non-supply of copies of those documents had not caused any prejudice to the delinquent in his defence.
7. Applying the above principles to the instant case, it will be seen that the copies of the documents which were indicated in the charge-sheet to be relied upon as proof in support of articles of charges were not supplied to the respondent nor was any offer made to him to inspect those documents.
(See : (i) Ghanshyam Das Saxena v. U. P. Sahkari Sansthagat Sewa Mandal and Ors. 2000 Lab. 1C 405, (Allahabad High Court); (ii) U.G, Dalsania v. Gujarat Electricity Board 2004 (2) GLH 535 (Gujarat High Court); (iii) Union of India & Ors. v. Mohd. Ibrahim 2004 SCC (L&S;) 863; (iv) Smt. Maneka Gandhi v. Union of India and Anr. : [1978]2SCR621 ; (v) State of Gujarat v. R. G. Teredesai and Anr. : [1970]1SCR251 ; (vi) N.T.C. (WBAB and O) Ltd. & Anr. v. Anjan K. Saha 2004 AIR SCW 4878; (vii) Gope Laxmichand Badlani v. Oriental Bank of Commerce and Ors. 2002 Lab. 1C 242; (viii) Canara Bank and Ors. v. Debasis Das and Ors. 2003 SCC (L&S;) 507; (ix) Anand Chandra Prusty v. Orissa Mining Corporation Ltd. and Anr. 1997 (1) CLR 361; (x) Yoginath Bagde v. State of Maharashtra and Anr. 1999 SCC (L&S;) 1385; (xi) Pepsu Road Transport Corporation v. Lachhman Dass Gupta and Anr. 2002 SCC (L&S;) 61; (xii) Anil Kurnar Chopra v. Engineers India Ltd. and Ors., reported in 2005 (3) LLJ 971 (Bombay High Court); (xiii) Cauvery Grameen Bank Mysore and Anr. v. Ningaiah, reported in 2005 (3) LLJ 939 (Karnataka).
14. Contention raised by learned Advocate Mr. Patel for Union of India that appellate authority has power during pendency of appeal to direct fresh inquiry and to pass appropriate order under Rule 22(2)(c) is not acceptable. Section 22(2)(c) page 453 is quoted thus:
22. Consideration of appeal :- (1) in the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Rule 5 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.
(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall consider
(a) Whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) Whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe;
And pass orders -
(i) Confirming, enhancing, reducing or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case;
15. Rule 22(2) is, thus, relating to penalties specified in rule 6 or enhancing any penalty imposed under said rule. It provides that authority shall consider (a) Whether procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) whether findings of the disciplinary authority are warranted by the evidence on the record; and whether penalty or the enhanced penalty imposed is adequate, inadequate or severe. These are thus limited powers to consider in appeal and then to confirm, enhance, reduce or set aside such penalty or remitting case to authority which imposed or enhanced penalty or to any other authority with such direction as it may deem fit in the circumstances of the case. Therefore, bare perusal of Rule 22(2) makes it clear that appellate authority have no power to cure lapse committed by Inquiry Officer by holding fresh inquiry for deciding appeal. In case, if appellate authority wants to enhance penalty, then, he can direct other authority to consider some evidence, but in this case, appellate authority has not enhanced penalty. On the contrary, appeal has been dismissed by appellate authority. If appellate authority, after considering, came to conclusion that non-compliance of principles of justice or any rule which amounts to failure of justice, then, appellate authority ought to remand matter after quashing order of punishment with direction to hold fresh inquiry from stage which found to be necessary. However, in this case, new method unknown to law has been adopted by appellate authority as defence witnesses were examined while ordering fresh inquiry. Procedure adopted by appellate authority is allowing department to fill up gaps and lacunae by directing fresh inquiry against petitioner. Such course is not open to appellate authority under Rule 22(2) without quashing order of penalty. In this case, appellate authority has, without quashing order of penalty, directed fresh inquiry which is contrary to principles of natural justice and Rule 22(2) and this aspect has rightly been examined by Tribunal while relying upon decision of Apex Court which is relevant. In Paragraphs 10 and 11, Tribunal observed as under:
10. C.A.T. Chandigarh Bench of Surjit Kumar Dubey v. Union of India 1997 (2) SLJ 299 (CAT) was considering Rule 27 of C.C.S. (C.C.A.) rules which is pan materia Rule 22 of Railway Servants (Discipline & Appeal) Rules. It held:
As far as exercise of powers by an appellate authority is concerned, Rule 27 lays down as to who and to what extent the powers can be exercised. An appellate authority has the power of confirming, enhancing, reducing or setting aside the penalty. If the appellate authority sets aside the penalty and this is done on some valid grounds, we see no impediment in his exercising the power of remitting the case to the authority which imposed or enhanced the penalty or to any other authority to proceed with further inquiry. If we accept the contention of learned Counsel for the applicant that appellate authority could remit the case without setting aside the order of penalty, with a direction to hold further inquiry, this would result in an anomalous situation where the disciplinary authority or the authority to whom the case is remitted back is allowed to adduce evidence only for upholding the orders which remain operative and have not been set aside. This is accepted in the legal jurisprudence that if some legal defects are found in particular order for any of valid grounds, the appellate authority would first set aside the order and then remit the case for further proceedings, if any. The contention that once power under Rule 27(1) is exercised, the power under (ii) cannot be exercised, cannot be accepted. Clarification if any issued by the respondents on this aspect will not be found to be legal to that extent. Both the Clauses (2)(i) and (ii) in Rule 27 have to be read in this context. If the order of penalty is confirmed, enhanced or reduced, it would not be necessary to remit the case, but in case the penalty is set aside and the appellate authority is of the opinion that either the inquiry has not been held according to the procedure laid down under the rules or that the findings of the disciplinary authority were not warranted by the evidence on record or for any valid reasons, and on the given facts of a particular case, it is thought fit to remit the case for further inquiry or for some further proceedings other than a de novo enquiry, or even in case where the appellate authority comes across that no inquiry has in fact been held under the rules, and a proper inquiry is a must, he will be within the powers to set aside the penalty and remit the case.11. We note the following decision of Apex Court in Institute of Chartered Accountants v. L.K. Ratna : [1987]164ITR1(SC) :
It is then urged by learned Counsel for the appellant that the provision of an appeal under Section 22A of the Act is a complete safeguard against any insufficiency in the original proceeding before the Council and it is not mandatory that the member should be heard by the Council before it proceeds to record its finding. Section 22A of the Act entitles a member to prefer an appeal to the High Court against an order of the Council imposing a penalty under Section 21(1) of the Act. It is pointed out that no limitation has been imposed on the scope of the appeal and that an appellant is entitled to urge before the High Court every ground which was available to him before the Council. Any insufficiency, it is said can be cured by resort to such appeal. Learned Counsel apparently has in mind the view taken in some cases that n appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases are mentioned in Sir William Wade's Crudite and classic work on 'Administrative Law' But as that learned author observes 'in principle there ought to be an observance of natural justice equally at both stages', and
If natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing instead of fair trial followed by appeal the procedure is reduced to unfair trial followed by fair trial.
And he makes reference to the observations of Megarry J. in Leary v. National Union of Vehicle Builders 1971 (1) Ch. 34. Treating with another aspect of the point, the learned Judge said:
If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rule and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal' Even if the appeal is treated as a hearing de novo, the member is being slipped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid compulsion will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice the trial body cannot be cured by a sufficiency of natural justice in an appellate body.The view taken by Megarry, J. was followed by the Ontario High Court in Canada in Recardinal and Board of Commissioners of Police of City of Cornwall, 1974 (42) DLR (3) 323. The Supreme Court of New Zealland was similarly inclined in Wislang v. Medical Practitioners Disciplinary Committee 1974 (1) NZLR 29 and so was the Court of Appeal of New Zealand in Reid v. Rowley 1977 (2) NZLR 472.
18. But perhaps another way of looking at the matter lies in examining the consequences of the initial order as soon as it is passed. There are cases where an order may cause serious injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected on subsequent appeal. For instance, as in the present case, where a member of a highly respected and publicly trusted professional reputation can be immediate and far-reaching. Not all the King's horses and all the King's men can ever salvage the situation completely notwithstanding the widest scope provided to an appeal. To many a man, has professional reputation is his most valuable profession. It affects his standing and dignity amongst his follow members in the profession, and guarantees the esteem of his clientele. It is often carefully garnered fruit of a long period of scrupulous, conscientious and diligent industry. It is the portrait of his professional honour. In a world said to be notorious for its blase attitude towards the noble values of an earlier generation, a man's professional reputation is still his most sensitive pride. In such a case, after the blow suffered by the initial decision, it is difficult to complete complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal or a successful appeal may result in refund of money or restitution of property, with the period of deprivation. And therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding.
19. Upon the aforesaid considerations, we are of definite opinion that a member accused of misconduct is entitled to a hearing by the Council when on receipt of the report of the Disciplinary Committee, it proceeds to find whether he is or he is not guilty. The High Court is, therefore, right in the view on this point.
In view of above observations, contention raised by Mr. Patel is rejected. It is a clear case of violation of the principles of natural justice. Vigilance Inspector, though examined, remained without cross-examination by petitioner-employee. No such opportunity was given to petitioner-employee. Copy of report of C.V.C. (B.R.C.) was also not supplied to petitioner. Further, finding of fresh inquiry was also not supplied to petitioner. Appellate authority rejected appeal without discussing and considering fresh evidence of fresh inquiry. These defects in disciplinary proceedings and appellate proceedings have rightly been appreciated by Tribunal in light of facts and record of case.
16. Contention of Mr. Patel that Vigilance Report is privileged and confidential record cannot be accepted in view of the discussion in Para 13 of C.A.T. order. Tribunal has discussed Railway Board Circular. Vigilance Inspector has been cited as witness in Annexure IV along with memorandum, therefore, report submitted by Vigilance Inspector cannot be considered to be a confidential and privileged document. Once, reference of a particular document is made in memorandum of charges, then, it is very difficult to deny access of this document to delinquent. Statement of petitioner was recorded before Vigilance Inspector on 6th January, 1994 on preliminary Inquiry. This statement was denied by petitioner and it was contended that it was obtained from him under coercion and duress. Therefore, statement of petitioner is part and parcel of vigilance report. In absence of cross-examination of reporter namely C.V.C. (B.R.C.), such defence is not available to petitioner-employee. It is denial of reasonable opportunity to delinquent employee as vigilance report was also not supplied and no opportunity was given to him to cross-examine Vigilance Inspector who was examined in departmental inquiry as administrative witness on 10-10-1994. In light of these facts, the, contention raised by Mr. Patel has no merit and same is rejected.
17. Therefore, Tribunal is right in quashing orders of disciplinary authority and appellate authority and remanding matter back to disciplinary authority. In doing so, Tribunal has not committed any error. For that, Tribunal has given detailed and elaborate reasons with application of mind. No other contention was raised by Mr. Patel. There is no error committed by Tribunal warranting our interference.
18. In result, petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated. Disciplinary authority is directed to pass appropriate orders under Rules during the fresh inquiry as directed by Tribunal for interim period between date of removal till date of final order passed against petitioner within one month from date of receipt of copy of this order.