K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. The M.A. No. 732/11 in O.A. No. 788/11 for condoning the delay of 52 days in filing the O.A. is allowed, as the delay was not on account of any wilful laches or negligence on the part of the applicant.
2. The applicant in this O.A. while working as Senior Assistant Loco Pilot had participated in a flash strike on 08.12.2007 by not reporting for working the nominated train without any notice. The strike paralysed the entire train net work in the Trivandrum Division and caused immense hardship to the public and heavy financial loss and the image of the Railways was tarnished. For having violated Rule 3(1)(ii) and (iii) of Railway Services (Conduct) Rules, 1966, he was charge sheeted. The charges were held as proved in the enquiry that followed. The Disciplinary Authority imposed on him the penalty of reduction to the post of Assistant Loco Pilot for a period of 5 years with recurring effect and loss of seniority. The penalty was modified by the appellate order as reduction to the post of Assistant Loco Pilot for a period of 3 years without the effect of postponement of increments and loss of seniority which was confirmed in revision. Aggrieved, the applicant has filed this O.A. for quashing the impugned orders and for a direction to the respondents to grant all consequential benefits arising therefrom as if the order had not been issued at all.
3. The applicant contended that the impugned orders at Annexures A-1, A-2 and A-3 are opposed to the principles of natural justice. There was absolutely no evidence on record to substantiate the allegations against him. The documents mentioned in the charge memorandum were neither placed on the record of enquiry nor proved by any process known to law. The impugned orders are issued on the presumption that the charged official has to disprove the charges against him. Consequent upon the revision of pay as per VI Central Pay Commission recommendations, the penalty imposed is unworkable.
4. The respondents in their reply statement contended that having participated in the departmental enquiry wherein the applicant was not willing to adduce any proof to disprove the charges against him, it is not fair on his part to argue against the proceedings now. The penalty was imposed on him as per rules. The principles of natural justice were followed in the disciplinary proceedings. The misconduct on the part of the applicant is grave and unbecoming of a Railway servant. The penalty imposed is workable in the new Pay Band.
5. We have heard Mr. T.C. Govindaswamy, learned counsel for the applicant and Ms. P.K. Radhika, learned counsel appearing for the respondents and perused the records.
6. The instant O.A. is squarely covered by the decision of this Tribunal in O.A. No. 03/2010 and O.A. No. 865/2011. In O.A. No. 03/2010, it was held as under:
"6. xxxxx xxxxxxx True, whether there is any explanation offered by the applicant or not, it is incumbent on the authority to hold the inquiry in cases where the punishment to be imposed is a major punishment. Unlike the case where the disciplinary proceedings are governed by natural justice only and not based on any statutory rules, there is no option for the authority in the matter of holding an inquiry as it is mandated by virtue of statutory provisions under Article 311 of the Constitution of India. As per Article 311 (2) of the Constitution of India, " No person who is a member of a Civil Service of the Union or an All India Service or a Civil Service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed. No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges." Following the above Constitutional provision, the Railway Rules itself provides under Rule 9 (1) that no order imposing any of the penalties specified in Clauses (v) to (ix) of Rule 6 shall be made except after an inquiry held as far as may be, in the manner provided in this Rule and Rule 10, or in the manner provided by the Public Servants (Inquiries) Act, 1850 where such inquiry is held under that Act. As per Rule 9 (b) in a case where no written statement of defence is submitted by the Railway servant, the disciplinary Authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint, under sub-rule (2) an inquiry authority for the purpose and also inform the Railway servant of such appointment.
7. In the light of the above clear provisions, it becomes mandatory for the authority to hold an inquiry in cases they propose to impose a major punishment and rightly in this case an inquiry was held after an Inquiry Officer was appointed for the same. But then the purpose of holding the inquiry is to prove the charges by placing materials before the inquiry and then considering such materials etc. to give a conclusion that the charges has been proved or not. In this case the inquiry proceedings clearly reveals that there was no witness examined even to formally prove the charges. No documents were also exhibited to prove the charges. We are surprised to find that in a case of this nature, where the allegations are very serious, the respondents ought to have taken the matter seriously and at least examined one witness formally to prove the sustenance of charge leveled against the applicant. The delinquent denied the charges before the Inquiry Officer. The fact that he is guilty is required to be proved by the employer and cannot cast the burden on the delinquent to prove the negative. First of all, the allegation that he had reported for duty late causing inconvenience to the public is required to be brought on record by examining somebody, in which case, there would not have arisen the slightest doubt that nothing further remains to be proved unless the delinquent has got valid explanations against his non reporting for work at the proper time and the delay in reporting for work as the case may be. In the absence of any formal evidence is lacking to support the charges, this is a case of no evidence. Therefore, the purpose of holding an inquiry is completely lost. In a departmental inquiry, the rigour of the Evidence Act will not apply, and the quality and the degree of proof required could not be equated with criminal law. If there is some evidence, it may be sufficient and Court will not interfere but if there is a total lack of evidence in the inquiry, then the finding of guilt becomes a perverse finding which in a given situation will empower the Court of law to interfere. Though sufficiency or otherwise of evidence may not be a matter for the Court to look into, but where there is total want of evidence or when the findings are arrived at contrary to the evidence and thereby perverse the Court can have judicial review of administrative action.
8. We are fortified in our conclusion by the decision of the Apex court in AIR 1969 SC 983, Central Bank of India Limited v. Prakash Chand Jain , Para 9 and 10 extracted as under:-
9. In the case of Khardah Co. Ltd. v. Their Workmen, this aspect was noted by this Court as follows:-
"Normally, evidence on which the charges are sought to be proved must be led at such an enquiry in the presence of the workman himself. It is true that in the case of departmental enquiries held against public servants, this Court has observed in the State of Mysore v. S.S. Makapur, that if the deposition of a witness has been recorded by the enquiry officer in the absence of the public servant and a copy thereof is given to him, an an opportunity is given to him to cross-examine the witness after he affirms in a general way the truth of his statement already recorded, that would conforms the requirements of natural justice; but as has been emphasised by this Court in M/s. Kesoram Cotton Mills Ltd. v. Gangadhar, these observations must be applied with caution to enquiries held by domestic tribunals against the industrial employees. In such enquiries, it is desirable that all witnesses on whose testimony the management relies in support of its charge against the workman should be examined in his presence. Recording evidence in the presence of the workman concerned serves a very important purpose. The witness knows that he giving evidence against a particular individual who is present before him, and therefore, he is cautious in making his statement. Besides, when evidence is recorded in the presence of the accused person, there is no room for persuading the witness to make convenient statements, and it is always easier for an accused person to cross-examine the witness if his evidence is recorded in his presence. Therefore, we would discourage the idea of recording statements of witnesses ex parte and then producing the witnesses before the employee concerned for cross-examination after serving him with such previously recorded statements, even though the witnesses concerned make a general statement on the latter occasion that their statements already recorded correctly represent what they stated."
10. In the case of M/s. Kesoram Cotton Mills Ltd. v. Gangadhar and Others(1) referred to in the quotation above, it was held:--
"Even so, the purpose of rules of natural justice is to safeguard the position of the person against whom an inquiry is being conducted so that he is able to meet the charge laid against him properly. Therefore, the nature of the inquiry and the status of the person against whom the inquiry is being held will have some bearing on what should be the minimum requirements of the rules of natural justice. Where, for example, lawyers are permitted before a tribunal holding an inquiry and the party against whom the inquiry is being held is represented by a lawyer, it may be possible to say that a mere reading of the material to be used in the inquiry may sometimes be sufficient see New Prakash Transport Co. v. New Suwarna Transport Co. (2)] but where in a domestic inquiry in an industrial matter lawyers are not permitted, something more than a mere reading of statements to be used will have to be required in order to safeguard the interest of the industrial worker. Further, we can take judicial notice of the fact that many of our industrial workers are illiterate and sometimes even the representatives of labour union may not be present to defend them. In such a case, to read over a prepared statement in a few minutes and then ask the workmen to cross-examine would make a mockery of the opportunity that the rules of natural justice require that the workmen should have to defend themselves. It seems to us, therefore, that when one is dealing with domestic inquiries in industrial matters, the proper course for the management is to examine the witnesses from the beginning to the end in the presence of the workman at the enquiry itself. Oral examination always takes much longer than a mere reading of a prepared statement of the same length and bring home the evidence more clearly to the person against whom the inquiry is being held. Generally speaking, therefore, we should expect a domestic inquiry by the management to be of this kind."
9. It was held by the Apex Court that domestic Tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Evidence Act, but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the inquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic Tribunals are not bound by the technical rules of procedure contained in the Evidence Act.
10. In the light of the discussions we have made as above and after going through the inquiry proceedings, we are satisfied that in the absence of any evidence to support the charges, finding of guilt against the applicant cannot be sustained in the eye of law. Hence we set aside Annexure A-1 order of punishment as confirmed by the appeal in Annexure A-2. It is, however, open to the respondents to proceed to hold the inquiry in accordance with law and take such action as may be warranted. However, the same shall be done within a reasonable time within a period of six months from the receipt of a copy of this order. In case of default, the applicant be restored with all the benefits as though no punishment is inflicted on him.
11. OA is disposed of as above. No costs."
Following the decision of this Tribunal in O.A. No. 03/2010, we allow this O.A. as under.
7. The impugned orders at Annexures A-1, A-2 and A-3 are set aside. The respondents are at liberty to hold an enquiry in accordance with law. If an enquiry is to be held against the applicant, it shall be completed within 6 months from the date of receipt of a copy of this order. In case of default, the applicant be restored with all the benefits as if no punishment is imposed on him.
8. No. order as to costs.