Mool Chand vs Union Of India And Ors

S.N. Terdal, J

We have heard Mr. Yogesh Sharma, counsel for applicant and Mr. Shailendra Tiwary, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 25.2.2014 (A/1), Appellate Authority order dated 5.5.2014 (Annex.A/2), Revisional Authority order dated 14.11.2014 (Annex.A/3), charge sheet dated 31.12.12 (Annex.A/4), Disagreement Note (Annex A/6) and complete disciplinary proceedings, declaring to the effect that the same are illegal, arbitrary, against the rules and against the principle of natural justice and consequently, pass an order directing the respondents to restore the applicant with all the consequential benefits including arrears of pay and allowances during the intervening period with interest deeming no charge sheet was issued to the applicant.

(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation."

The relevant facts of the case are that a memorandum dated 31.12.2012 was issued to the applicant for proposing to hold an enquiry for demanding and accepting illegal money for extending official favour to one Shri Dhan Singh. The details of articles of charge are extracted below:-

"Statement of imputation of misconduct/Negligence on the basis of which article of chares are proposed to be substantiated against Sh.Mool Chand SS/DTN A decoy check was conducted by Northern Railway Vigilance on 07/11/12 at Railway Station Dhamtan Sahib. As a result of the decoy check Sh. Mool Chand SS/DTN was found responsible for:

A) Demanding and accepting illegal money @ 5% of the over time claim for passing/forwarding the same.

B) Accepting Rs.4700/- from Sh.Dhan Singh on 07/11/2012 which were recovered from his possession.

By above act of omission and commission Sh. Mool Chand SS/DTN failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner of unbecoming of a Railway servant, thereby contravened the provision of Rule No. 3.1 (i), (ii) and (iii) of Railway Service Conduct Rules 1966."

Alongwith the article of charge, list of documents and list of witnesses were served on the applicant. As the applicant denied the article of charges, an Inquiry Officer was appointed to enquire into the allegation. The Inquiry Officer following the principles of natural justice and all the relevant rules regarding holding of the departmental enquiry examined PW 1 to PW6 and after discussing and analysing the deposition of all the witnesses came to the conclusion that out of 4 sub-charges which he had framed three are not substantiated and the fourth one regarding accepting Rs.4700/- from Sh. Dhan Singh on 7.11.2012 which were recovered from his possession was substantiated vide his inquiry report dated 19.02.2013. The relevant portion of the conclusion of the enquiry report is extracted below:-

"Having gone through the material on record including all RUDs, statements and cross-examinations of all PWs, it is concluded that:-

(A) (i) The charge of passing overtime claim by SS/DTN is not true because overtime claim of any employee is passed by the overtime branch DRM Office/NDLS.

The charge is not substantiated.

(ii) The charge of demanding illegal money @ 5% of the overtime claim for forwarding the same. In this case it is said that overtime claim of Sh. Dhan Singh was forwarded by Sh. Mool Chand SS/DTN for a very short period and remaining by SS/BSPH. But, Sh. Dhan Singh gave Rs.4700/- for the whole amount of the overtime claim. Why the money would be demanded and given for the overtime claim which was not forwarded by SS/DTN.

Thus, the charge is not substantiated.

(iii) The charge of demanding illegal money while giving payment to Sh. Dhan Singh has been ruled out by Sh. Rajesh Dahiya, constable/RPF, who was present at the time as the only independent witness in this case, by saying, "Mere Saamne To Nahi Maange".

So, the charge is not substantiated.

(B) Accepting Rs.4700/- from Sh. Dhan Singh on 7.11.12 which were recovered from his possession:-

Video recording of recovery proceedings shows that Sh.Mool Chand admitted that Sh. Dhan Singh gave him Rs.4700/- and he (C.O) kept tem. That decoy money was recovered by the vigilance team from the table of Sh. Mool Chand the C.O.

Thus, the charge is substantiated.

Thus, the C.O has contravened the provision of Rule no. 3.1(i), (ii) and (iii) of Railway Service Conduct Rules, 1966."

The disciplinary authority disagreeing with the finding of the inquiry officer regarding the other charges issued a disagreement note dated 31.10.2013. Alongwith the disagreement note, the disciplinary authority served on the applicant enquiry report and gave him 15 days time for making his representation. The applicant submitted his representation.

The disciplinary authority after considering the entire material including the representation submitted by the applicant imposed a penalty of reduction to a lower stage in the same time scale of pay by three stages for  a  period  of  two  years,  with  cumulative  effect  vide  order  dated 25.02.2014.The applicant filed an appeal. The appellate authority dismissed the applicant vide order dated 5.05.2014. The applicant filed a revision petition which was also dismissed by the Revisional Authority vide order dated 17.11.2014.

The counsel for the applicant vehemently and strenuously contended that disagreement note is bad in law in so far as the disciplinary authority instead of tentatively coming to different conclusion on the basis of reasoning given by him for disagreeing with the report of the inquiry officer came to the conclusion that both the charges are proved beyond doubt. In support of his contention the counsel for the applicant brought to our notice the Railway Board Circular (R.B.E) No. 36/2012 wherein it is stated that in giving effect to the provisions of Rule 15(2) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965, the disciplinary authority has to give tentative reasons for disagreement and they should avoid using the phrases like "article of charge is fully proved or substantiated" which would be construed to mean that the disciplinary authority is biased even before considering the representation of the delinquent employee. The relevant portion of the said R.B.E. circular is extracted below:-

" xxx xxx

The necessity of following the aforementioned rule 15(2) both in letter and spirit is reiterated. The communication forwarding the IO's report alongwith the tentative reasons for disagreement, if any, seeking comments/representation of the Charged Officer should reflect this position. All Ministries/Departments are, therefore, requested to ensure that the communication forwarding 'the IO's report etc. does not contain phrases such as 'Article of charge is fully proved' or 'Article of charge is fully substantiated' which could be construed to mean that the disciplinary authority is biased even before considering the representation of the charged officer and this would be against the letter and spirit of the CCS (CCA) Rules, 1965.

In support of his above contention, he further relied upon the law laid down by the Hon'ble Supreme Court in the case of Yoginath D. Bagde Vs. State of Maharashtra & Anr (JT 1999 (6) SC 62 and the order of this Tribunal (PB) in OA No. 3612/2014, titled Smt. Amita Sudan Vs. GNCT of Delhi through the Chief Secretary and Others. The relevant portion of para 33 of the law laid down by the Hon'ble Supreme Court in Yoginath D. Bagde (supra) case is extracted below:

"33. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final."

The counsel for the respondents vehemently and strenuously contended that though in the disagreement note the disciplinary authority stated that the charges are proved beyond doubt yet the very fact that he had given an opportunity to the applicant for giving representation against the disagreement note, it is clear that the disagreement note was tentative in nature and the applicant was given sufficient opportunity to make representation against the said disagreement note. The counsel for the respondents referring to the appeal filed by the applicant submitted that the applicant was not prejudiced by use of the words "proved beyond doubt" in the disagreement note, as such even in his appeal filed before the appellate authority the applicant has not raised any issue regarding the same.

In view of the facts and circumstances of the case and in view of the fact that the disciplinary authority recorded in the impugned disagreement note to the effect that the charge at (A) above is proved beyond doubt" and in view of the law laid down by the Hon'ble Supreme Court extracted above we set aside the disagreement note and disciplinary proceedings held thereafter.

Accordingly this OA is allowed, the Disagreement Note dated 31.10.2013 (Annexure A/6), the Disciplinary Authority order dated 25.02.2014 (Annexure A/1), the Appellate Authority order dated 5.05.2014 (Annexure A/2) and the Revisional Authority order dated 14.11.2014 (Annexure A/3) are set aside. However, the respondents are at liberty to issue a disagreement note in terms of the laid down guidelines and go ahead with the proceedings further from that stage in accordance with the relevant provisions of law. No order as to costs.