R.M. Lodha, J.
1. The order of the Central Administrative Tribunal passed on 10th August, 2001 is impugned by the original applicant in this writ petition.
2. Smt. Poonam Arora-petitioner herein (for short, 'the delinquent') was appointed on the post of Senior Clerk on 22nd May, 1989. She was posted in the office of the Divisional Railway Manager, Western Railway, Kota. She was thereafter promoted to the post of Head Clerk on 18th March, 1994.
3. She was served with a memorandum of charge for imposing minor penalty under Rule 11 of the Railway Servants (Discipline & Appeal) Rules, 1968 (for short, 'the Rules of 1968') on 28th November, 1995. The allegation against her was that she had submitted a proposal for assessment of 18 posts of Chief Clerk in the scale of Rs. 1600-2660 (RP) of Establishment Branch to the Additional Divisional Railway Manager through the Assistant Personnel Officer-II taking into consideration anticipated vacancies-(a) due to retirement; and (b) due to promotion in higher grade; and taking the approval of the Additional Divisional Railway Manager without routing the file through the concerned authorities (Senior D.P.O.), while the applications dated 1st March, 1995 and 6th March, 1995 submitted by R.S. Gupta and D.M. Chawrekar respectively for seeking voluntary retirement were not submitted by her to the competent authority even up to the date of written test that was held on 16th April, 1995. It was alleged that taking into account the two vacancies was not correct and subsequently both the employees withdrew their applicants for voluntary retirement also. Due to wrong assessment of vacancies, the whole proceeding of selection had to be cancelled. It was, thus, alleged that the lapses showed her careless work and negligence of duties.
4. The delinquent was called upon to submit her explanation/representation within ten days of receipt of the memorandum of charge-sheet.
5. The delinquent submitted reply to the afore-stated charge-sheet. The competent authority held the delinquent guilty of carelessness and negligent in duty; charge was, thus, held proved and by the order dated 15th May, 1996, the disciplinary authority punished her of withholding of one set Privilege Ticket Order (P.T.O.) in the current year or whenever due to her. Pertinently, in his order dated 15th May, 1996, the disciplinary authority observed that the lapses occurred due to inexperience of the delinquent.
6. On 25th September, 1998, the delinquent was served with second charge-sheet. This charge-sheet was for the disciplinary proceedings against the delinquent under Rule 9 of the Rules of 1968 i.e. for the major penalty. Article of charges in the second charge-sheet dated 25th September, 1998 reads thus:
Smt. Poonam Arora, Head Clerk in Kota Division, while working as such during the year 1995 committed gross misconduct in as much as that:
(i) Smt. Poonam Arora, Head Clerk in collusion with APO(II)/Kota Sh. M.K. Chauhan and Shri D.M. Chavrekar, OS (Estt.) prepared misleading assessment of vacancies of draw herself an undue advantage during the selection of Chief Clerk, Grade Rs. 1600-2660 (RP), notification for which was issued on 20.3.95.
(ii) Smt. Poonam Arora also intentionally increased anticipated vacancy by one more number of taking into account the vacancies that would have arisen due to voluntary retirement application dated 1.3.95 submitted by Shri Radhey Shyam Gupta even though the same was not put up to the accepting authority till date of assessment of vacancies for the selection, i.e. 15.3.95.
By the above act Smt. Poonam Arora, failed to Exhibited absolute integrity, maintain devotion to duty and acted in a manner unbecoming of a railway servant thereby violating Rule 3.1(i) (ii) & (iii) of Railway Service Conduct Rules, 1966.
7. The statement of imputations in support of the afore-noticed article of charges set out in the second charge-sheet read thus:
Smt. Poonam Arora, while working as Head Clerk/Kota in the year 1995 committed gross misconduct in as much as that:
1.1 Smt. Poonam Arora, while working as HC/Kota processed the file for selection for the post of Chief Clerk.
1.2 Smt. Poonam Arora, Head Clerk prepared the assessment sheet as at (CP-1) of the selection file No. E/D/1025/25 Vol. I(L) wherein she had assessed the number of vacancies as 18 including 3 anticipated vacancies on account of retirements. Out of the 3 anticipated vacancies, 2 vacancies would have been caused if the applications of Sh. D.M. Chavrekar & Shri R.S. Gupta for voluntary retirement were to be accepted.
1.3 File No. E/D/III/1044 Exh. III contains two applications of Sh. D.M. Chavrekar, one dated 5.3.95 requesting for voluntary retirement and the another one dated 16.3.95 withdrawing the voluntary retirement. Both the applications do not bear any stamp of the receipt section. Both the applications were filed simultaneously at CP-148 & 149 of the file. The application dated 16.3.95 has an endorsement by Shri M.K. Chauhan, APO (II) as follows:
In view of this, the application dated 6.3.95 may please be filed.From NP-21 of the file it is seen that both the applications, one seeking voluntary retirement as well as another withdrawing it, were put up to Sr. DPO on 10.4.95 by Smt. Poonam Arora simultaneously in one note for perusal only.
1.4 As per extent instructions contained in Railway Board's letter No. E (WG)/I-80 PMI-21 dated 25.1.83 the anticipated vacancies due to Voluntary retirement should be considered only if the application is likely to be accepted. Since the applications were not even put up at the stage of assessment, the question of the same being likely to be accepted does not arise. Thus she violated the Board's instructions.
(2) File No. E/D/III/909 (Exh. IV) contains application of Sh. Radhey Shyam Gupta dated 1.3.95 requesting for voluntary retirement which has been withdrawn by him vide his application on 28.4.95. The application-dated 1.3.95 was put up to the Sr. DPO on 17.4.95, i.e. after the assessment was approved and one day after the written test for the same selection was held.
2.1 Since the above applications for voluntary retirement were not processed till 15.3.95, the inclusion of the resultant vacancies in the assessment was incorrect. Moreover from the fact that Shri D.M. Chavrekar withdraw his application on 16.3.95 one day after the assessment it is clearly evident that it was deliberately done to create a vacancy, as six candidates become eligible against two vacancies, and Smt. Poonam Arora was the second last in the list of eligible candidates.
By the above acts Smt. Poonam Arora, attempted to draw the benefit for which she was not entitled. She thereby failed to exhibit absolute integrity, maintain devotion to duty and acted in a manner unbecoming of a railway servant violating Rule 3.1(i), (ii) & (iii) of Railway Service Conduct Rules, 1966.
8. The delinquent made representation on 26th October, 1998 to the disciplinary authority for dropping the second charge-sheet on the ground that on the same allegations, she was earlier charge-sheeted and punished and, therefore, issuance of second charge-sheet was not justified. She submitted that the Rules of 1968 did not permit institution of successive disciplinary proceedings on the same allegations.
9. Upon receipt of the representation from the petitioner, vide communication dated 7th December, 1999, the delinquent was called upon to furnish the copies of the documents referred therein.
10. Vide her communication dated 10th December, 1999, the delinquent informed the disciplinary authority that due to shifting of her house, the documents, namely (SF 11 and NIP) were not traceable and no sooner the documents were found the same would be submitted. She forwarded the documents (SF 11 and NIP) which were issued to her in the years 1995 and 1996 respectively along with the letter dated 20th January, 2000. It appears that she waited for a week or so far the response from the disciplinary authority but when nothing was heard, she approached the Central Administrative Tribunal by filing original application on 28th January, 2000 for a declaration that the memorandum of charge-sheet dated 28th May, 1999 was illegal and for quashing and setting aside the same.
11. The railway authorities contested the original application before the Tribunal by filing reply. A plea was set up that the original application was beyond time prescribed under Section 21 of the Administrative Tribunals Act, 1985 (for short, 'Act of 1985') and also that the subsequent charge-sheet dated 25th September, 1998 was valid being based on different and distinct misconduct in asmuch as the delinquent has been charged now for failure to exhibit absolute integrity and in maintaining devotion to duty and having acted in a manner unbecoming of a railway servant.
12. The Central Administrative Tribunal heard the parties and vide its order dated 10th August, 2001 dismissed the original application on the ground of limitation as well as on the ground that the charges in the two charge-sheets dated 28th November, 1995 and 25th September, 1998 were not same. It is this order passed by the Tribunal on 10th January 2001, as noticed above, that is under challenge before us.
13. We shall first examine the correctness of the finding by the Tribunal on the question of limitation.
14. Section 19 of the Act of 1985 provides that a person aggrieved by an order pertaining to any matter within the jurisdiction of the Central Administrative Tribunal may make an application to the Tribunal for the redressal of his grievance. Section 20 thereof provides that the Tribunal shall not ordinarily admit an application unless it is satisfied that all the remedies available to him under the relevant service rules as to redressal of grievances has been availed of by him. For the purpose of Section 20, a person is deemed to have availed of the remedies available to him under the relevant service rules as to redressal of his grievances inter-alia where no final order has been made by the competent authority with regard to the representation within a period of six months from the date on which such representation was made has expired.
15. The limitation for making application under Section 19 of the Act of 1985 is prescribed in Section 21. It reads thus:
21. Limitation.- (1) A Tribunal shall not admit an application-
(a) in a case where a final order such as is mentioned in Clause (a) of Sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in Clause (b) of Sub-section 92) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in Sub-section (1), where-
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in Clause (a), or, as the case may be, Clause (b), of Sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), an application may be admitted after the period of one year specified in Clause (a) or Clause (b) of Sub-section (1) or, as the case may be, the period of six months specified in Sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.
16. Turning to the facts of the present case, it is seen that second memorandum of charge-sheet was served upon the delinquent on 25th September, 1998. On 26th October, 1998, she made a representation to the concerned authority for dropping the second charge-sheet on the ground that the institution of successive judicial proceedings for the same allegations was not permissible. The said representation was received in the office of Divisional Railway Manger on 27th October, 1998. The concerned authority sought for few documents from the delinquent which initially were not supplied but lateron vide communication dated 20th January, 2000 two documents were forwarded by the delinquent to the concerned authority. No final order on the said representation came to be passed within six months of the receipt of the representation by the disciplinary authority or any other authority competent in passing such order. In the back-drop of these facts, Clause (b) of Sub-section (1) of Section 21 is attracted which provides that where a representation is made and a period of six months had expired thereafter without such final order having been made, the application shall be made within one year from the date of expiry of the period of six months. The period of six months from 27th October, 1998 (the date when representation was made) expired on 27th April, 1999. Admittedly, by that time the representation dated 27th October, 1998 was not decided nor any final order came to be passed on the said representation by the competent authority. As per the period of limitation prescribed in Section 21(1)(b), the original application by the delinquent for redressal of her grievance before the Tribunal on or before 27th April, 2000 would be within limitation. The delinquent made original application under Section 19 of the Act of 1985 to the Tribunal on 28th January, 2000 i.e. much before the expiry of one year from the date of expiry of period of six months from the date of receipt of the representation. The finding of the Tribunal that original application was barred by limitation, thus, is erroneous and cannot be sustained. It is strange that the Tribunal made the ground of limitation as one of the grounds for non-suiting the delinquent without adverting to the facts and the legal position and dealing with this plea in a highly cryptic manner.
17. The delinquent having crossed the hurdle of limitation, the next question that arises for our consideration is whether the charges in the second charge-sheet dated 25th September, 1998 are same to the first charge-sheet dated 28th November, 1995, and if, the answer to this aspect is in affirmative, whether the proceedings pursuant to the second charge-sheet can be allowed to continue.
18. Though in the earlier part of our judgment we have noticed substance of the first charge-sheet, yet for the proper appreciation of the issue now for consideration before us, it needs to be stated that in the first charge-sheet (28th November, 1995), the allegation against the delinquent was that she submitted a proposal for assessment of 18 posts of Chief Clerk in the pay scale of 1600-2660 of the Establishment Branch through Assistant Personnel Officer-II and while doing so, she counted the anticipated vacancies due to voluntary retirement sought for by two employees namely R.S. Gupta and D.M. Chawrekar. The aforesaid file was not routed through Senior Divisional Personnel Officer and the two vacancies which she counted on account of the application for voluntary retirement made by R.S. Gupta and D.M. Chawrekar could not be counted. It was, thus, alleged that she made a wrong assessment of vacancies and proceedings of selection had to be cancelled. Her lapses according to the authorities, amounted to careless working and negligence to duty. In the second charge-sheet dated 25th September, 1998, the factual matrix is same but it is alleged that the act of delinquent in preparing the assessment of vacancies was in collusion with two other persons namely M.K. Chauhan and D.M. Chawrekar and that was intended to draw undue advantage during the selection of Chief Clerk. Thus, according to the second charge-sheet her misconduct amounted to not maintaining absolute integrity; not maintaining devotion to duty and doing the act un-becoming of the railway servants under Rule 3(1)(i) (ii) and (iii) of the Railway Servants (Conduct) Rules, 1966. Though an additional dimension concerning the collusion with other employees in preparing misleading assessment of vacancies and drawal of un-due advantage of herself has been made in the second charge-sheet in substance the imputations and allegations in support of article of charges are same and in any case substantially similar and materially identical. Importantly in the order of punishment passed on the first charge-sheet, the disciplinary authority held that the lapses on the part of the delinquent occurred because of her lack of experience and, therefore, in the light of the reply filed by the delinquent the matter was considered sympathetically.
19. The institution of successive disciplinary proceedings for the same allegations where the delinquent has already been punished or acquitted, is taken seriously by the courts. The doctrine of double jeopardy is not attracted but the Courts have invoked the principles of justice, equity and good conscious and held that once a departmental inquiry is over and a public servant has been exonerated or punished, no second departmental inquiry on the same facts can be ordered unless there is specific provision for reviewing such order in the service rules or any law.
20. More than 50 years before, in a writ petition decided by this court on 2nd August, 1957, the Division Bench presided over by K.N. Wanchoo, C.J. (as his Lordship then was) succinctly expounded the legal position thus:
6. Accepting that as the correct exposition of the law as between the State and its employees, we have to see whether the State can order a fresh departmental enquiry after an earlier departmental enquiry has resulted in the exoneration of a public servant. We have no hesitation in coming to the conclusion that in the absence of any specific rule in the Service Rules giving power to a higher authority to set aside an order exonerating a public servant in a departmental enquiry and ordering fresh enquiry, it is not open to a higher authority to order a fresh departmental enquiry ignoring the result of an earlier enquiry exonerating the public servant.
It was urged on behalf of the State that if this view is taken, it might result in great prejudice to the State inasmuch as the person holding the first enquiry must have held it in a very slipshod manner (as alleged in this case) or even dishonestly and the State would be helpless. We must say that we are not impressed by this argument for two reasons. In the first place, if a superior officer holds a departmental enquiry in a very slipshod manner or even dishonestly, the State can certainly take action against that superior officer and in an extreme case even dismiss him for his dishonesty in the departmental enquiry which he conducts.
That would, in our opinion, be a salutary check which would prevent those holding departmental enquiries from acting in a slipshod manner or dishonestly. In the second place, if the case is one like the present, it would, in our opinion, be open to the State to prosecute a person like the applicant in a Court of law in spite of what a departmental officer might have decided in the departmental enquiry, for, a Court of law is not bound by the results of a departmental enquiry one way or the other.
Therefore, the danger to the State is really not so great as has been submitted. On the other hand, if we were to hold that a second departmental enquiry could be ordered after the previous one has resulted in the exoneration of a public servant, the danger of harassment to the public servant would, in our opinion, be immense, If it were possible to ignore the result of an earlier departmental enquiry, then there will be nothing to prevent a superior officer, if he were so minded, to order a second or a third or a fourth or even a fifth departmental enquiry after the earlier ones had resulted in the exoneration of a public servant.
We are not unmindful of the fact that such a thing is hot likely to happen generally; but we cannot also overlook that it may. If for example, some higher authority is determined that a certain person should be dismissed, it may go on ordering one departmental enquiry after another till it can find someone who will do what it wishes. Therefore, of the two possible courses, we are of opinion that the one in which there is no second departmental enquiry after exoneration in the previous enquiry is the safer of the two.
(7) Let us look at the spirit of the rules framed under Article 309 or its corresponding provision in the Government of India Act. These rules may be compendiously called Service Rules. In most of them, so far as we know, there is no provision for reviewing an order of exoneration after a departmental enquiry. The rules have been in existence for many years and if there was a real danger of departmental enquiries resulting in dishonest exonerations or exonerations due to slipshod methods, some rule providing for a fresh departmental enquiry could have been framed.
The very fact that the rules exist for such a long time and no such rule has apparently been framed, so far as we know, anywhere, shows that the intention was that there should be only one departmental enquiry against a public servant and if he is exonerated, that should be the end. The rule also provide for appeals where a public servant is punished after a departmental enquiry, but no rule anywhere, so far as we know, provides for a review by a higher authority of an order of exoneration of a public servant in a departmental enquiry. It seems to us, therefore, that it is not contemplated that the order of exoneration passed in a departmental enquiry should be reviewed.
What the rules contemplate apparently is that if there is an order of exoneration, the matter should end there finally. In some of the rules, there is provision for enhancement vide Rule No. 10 of the Punjab Subordinate Services Punishment and Appeal Rules and we have no doubt that if such a provision for enhancement did not exist, it would not be open to the higher authority to enhance the punishment in case it considered that the punishment was inadequate.
Therefore, the more we consider the matter, the more we are satisfied that it was not the intention of the Service Rules that the exoneration of a public servant in a departmental enquiry should be open to review in the same manner as the acquittal of an accused is open to appeal in the Criminal Procedure Code. As we have said already, if that was the intention, it could have been provided in the rules somewhere in India, considering that the rules have been in existence for such a long time.
We, therefore, come to the conclusion that the 'pleasure' mentioned in Article 310 has to be exercised according to law or rules framed under Article 309 or analogous law. If there is no rule or law which lays down that an order exonerating a public servant in a departmental enquiry is open to revision and a fresh enquiry ordered, it is not, in our opinion, open to the State to assume such a power on the ground that Article 310 provides the tenure of public service is at the pleasure of the President or the Governor or on the ground that the State is the master and the public servant is the employee and the master can do anything to his employee.
(8) We have already mentioned that we have been unable to find any case taking the view which we have taken above. We have, however, been able to lay our hands on one case and would like to quote some observations from that though the facts of that case are not on all fours with the facts of the present case. In Kanakchandra Bairagi v. Superintendent of Police Sibsagar AIR 1955 Assam 240 at P. 242 (D), the learned Judges made the following observation though they appear to be obiter for the purposes of the case before them:
There is considerable force in the contention of Mr. Sen that a second departmental proceeding may not be drawn up against any Government officer.(9) On a careful consideration, therefore, of the entire matter, we are of opinion that once a departmental enquiry is over and a public servant has been exonerated, no second departmental enquiry on the same facts can be ordered unless there is a specific provision for reviewing an order of exoneration of this kind in the Service Rules or any law to that effect.
21. In a recent decision, the Supreme Court in the case of Canara Bank and Ors. v. Swapan Kumar Pani and Anr. : (2006)IILLJ432SC held that no fresh charge could be issued based on the same material when the delinquent has been exonerated in earlier departmental enquiry in absence of any statutory powers in this behalf under relevant regulations. This is what the Supreme Court said in paragraph 13 of the report:
13. Furthermore, the charges levelled against the first respondent herein are in two parts; (i) that he had on 6.11.1985 removed 20 special bearer bonds pledged by the Managing Director of M/s. Utkal Iron & Steel Industries from the strong room of the Bank; and (ii) out of those special bearer bonds five bearer bonds were disposed of at Calcutta for Rs. 59,500. Admittedly, the first part of the charge was covered by the first charge-sheet dated 20.5.1987. He having been exonerated therefrom, no fresh charge-sheet could have been issued in the absence of any statutory power in this behalf. Only the second part of the said charge-sheet is said to be based on the new materials purported to have been discovered by the Managing Director of the Bank. An inquiry in the second part of the charge-sheet could have been possible, if the first part of the charge viz. the respondent had removed the said bonds pleadged by M/s. Utkal Iron & Steel Industries was not required to be proved. As the Bank cannot be permitted to reopen the first part of the charge, it a fortiori cannot be allowed to enquire into the second part also as both the parts of the charge are interlinked with each other. In other words, proof of second part of the charge was wholly dependent upon the first part. The impugned judgment to that extent is unassailable.
22. Rule 25 of the Rules of 1968 provides for revisional powers to certain authorities. The said provision reads thus:
25. Revision (1) Notwithstanding anything contained in these rules:
(i) the President, or
(ii) the Railway Board, or
(iii) the General Manager of a Zonal Railway or an authority of that status in any other Railway Unit or Administration, in the case of a Railway servant serving under his or its control, or
(iv) the appellate authority not below the rank of a Deputy Head of Department or a Divisional Superintendent in cases where no appeal has been preferred, or
(v) any other authority not below the rank of a Deputy Head of Department or a Divisional Superintendent, in the case of a Railway Servant serving under its control;
may at any time, either on its own motion or otherwise, call for the records of any inquiry and review any order made under these rules or under the rules repealed by the Rule 29 and may, after consultation with the Commission where such consultation is necessary-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case;
(d) Pass such other orders as it may deem fit; provided that-
(i) no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Railway servant has been given reasonable opportunity of making a representation against the penalty proposed; and
(ii) where it is proposed to impose any of the penalties specified in Clauses (v) to (ix) (both inclusive) of Rule 6 or to enhance the penalty imposed by the order under review, to any of the penalties specified in those Clauses, subject to the provisions of Rule 14, where no enquiry in the manner laid down in Rule 9, has already been held, no such order shall be passed except after consultation with the Commission where such consultation is necessary and unless such inquiry has been held,
(Deleted vide Rly. Board's letter E (D & A) 79-RG-12 dated 18.10.1989).
(e) subject to the provisions of Rule 14, the revising authority shall-
(i) where the enhanced penalty which the revising authority proposes to impose, is the one specified in Clause (iv) of Rule 6 and falls within the scope of the provisions contained in Sub-rule (2) of Rule 11; and
(ii) where an inquiry in the manner laid down in Rule 9, has not already been held in the case,
Itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Rule 9 and thereafter, on a consideration of the proceedings of such inquiry, pass such orders as it may deem fit;
Provided further that no power of revision shall be exercised under this rule:
(i) by the appellate or revising authority where it has already considered the appeal or the case and passed orders thereon; and
(ii) by a revising authority unless it is higher than the appellate authority, where an appeal has been preferred and the time limit laid down for review by the appellate authority has expired.
Provided further that no action under this rule, shall be intimated by (a) an appellate authority other than the President or (b) the revising authorities mentioned in item (v) of Sub-rule (1)-
(i) more than six months after date of the order to be reviewed in cases where it is proposed to impose or enhance a penalty, or modify the order to the detriment of the railway servant, or
(ii) more than one year after the date of the order to be reviewed in cases where it is proposed to reduce or cancel the penalty imposed or modify the order in favour of the Railway servant.
Note-The time limits for revision of cases mentioned in this proviso shall be reckoned from the date of issue of the orders proposed to be reviewed. In a case where the original order has been upheld or modified or set aside by the appellate authority, the time limit shall be reckoned from the date of issue of the appellate order.
(Amended vide Board's letter No. (D & A) 77-RG-6-36 dated 7.7.1978].
(2) No proceeding for revision shall be commenced until after:
(i) the expiry of the period of limitation for an appeal, or
(ii) the disposal of the appeal, where any such appeal has been preferred:
Provided that the provisions of this sub-rule, shall not apply to the revision of punishment in cases of railway accident.
23. Rule 25-A of the Rules of 1968 empowers the President of India to review any order passed under these rules when a new material on evidence could not be produced or was not available at the time of passing the order under review. The said provision reads thus:
25-A. Review-The President may at any time either on his own motion or otherwise review any order passed under these rules when any new material on evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case has come or has been brought to his notice:Provided that no order imposing or enhancing any penalty shall be made by the President unless the Railway servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in Rule 6 or to enhance the minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an enquiry under Rule 9 has not already been held in the case, no such penalty shall be imposed except after inquiring in the manner laid down in Rule 9, subject to the provisions of Rule 14 and except after consultation with the Commission where such consultation is necessary.
24. Having thoughtfully and carefully examined the matter, we find that the issuance of second charge-sheet by the disciplinary authority in the facts of the present case is neither covered by Rule 25 nor Rule 25-A. The charge-sheet does not reveal ,that any such power as provided in Rule 25 has been invoked by issuance of second charge-sheet dated 25th September, 1998. As a matter of fact it could not have been for it is not covered by the said rule. In so far as Rule 25-A is concerned, the power has been conferred on the president (or for that matter his delegatee). Nothing has been shown that the disciplinary authority who has issued the second charge-sheet was empowered to issue the second charge-sheet on the same facts under Rule 25A.
25. In a matter as serious as this, where the delinquent has been issued second charge-sheet on the same facts and that she has already undergone penalty for the charges proved in the first charge-sheet, the Tribunal dealt with the matter casually and not with the seriousness it deserved.
26. All in all, we are satisfied that the order of the Central Administrative Tribunal passed on 10th August, 2001 cannot be sustained and has to be set aside and is set aside accordingly.
27. The original application stands allowed and the second charge-sheet dated 25th September, 1998 stands quashed and set aside.
28. Rule is made absolute in aforesaid terms.
29. No costs.