Union of India and Others vs Ramesh Prasad

B. Amit Sthalekar, J.—The petitioners-railway administration have filed this writ petition challenging the order of the Central Administrative Tribunal dated 12.10.2012 passed in Original Application No. 780 of 2008. The brief facts, as appearing from the records, are that the respondent was posted as Head Booking Clerk at Azamgarh. The charge against the respondent, as per the charge-sheet filed as Annexure A-3 to the original application is that while posted at Ballia he issued two tickets one from Ballia station to Dalchhapra (distance 32 kms.) on 29.6.2002 the cost of which was Rs. 8/-each and another ticket for Chhapara for a distance of 66 kms., the cost of which was Rs. 14/- each but instead he issued two tickets for Howrah station, distance 779 kms. costing Rs. 162/- each. The second charge against the respondent was that in 8 minutes he issued 72 tickets, at the rate of 9 tickets per minute and in five minutes he issued 46 tickets at the rate of 9.2 tickets per minute with the intention of committing fraud. The respondent was placed under suspension w.e.f. 3.1.2006 to 21.6.2006. Disciplinary proceedings were held against the respondent and the charges having been proved against him a penalty order was passed on 12.10.2006 whereby the respondent was removed from service. He preferred a departmental appeal, as provided under the Railway Servants (Discipline and Appeal) Rules, 1968, which was rejected by the appellate authority by order dated 27.3.2008. At this point, it may be relevant to mention that earlier also an appellate order dated 26.2.2007 had been passed rejecting the appeal of the respondent which was challenged by the respondent by filing an Original Application No. 349 of 2007 and the appellate order dated 26.2.2007 was set aside by the Tribunal on the ground of its being a non-speaking order, hence the subsequent appellate order dated 27.3.2008. Aggrieved by these orders, the respondent filed the Original Application No. 780 of 2008. The grounds taken by the respondent before the Tribunal, inter alia, were: that the enquiry proceedings were conducted ex parte; that the enquiry was initiated at the instance of the Vigilance Department; and mat the enquiry officer also belonged to the vigilance department, therefore, the entire enquiry proceedings were vitiated and stained by bias. A counter reply was filed by the petitioners-railway administration denying the allegations made in the original application.

The Tribunal upon a consideration of the pleadings and the documents on record has set aside the penalty order as well as the appellate order and has directed as under:

The impugned penalty order and appellate order vide Annexures A-10 and A-16 are hereby quashed and set aside. The applicant shall be reinstated in service. However, since the charge levied against the applicant appear to be grave as contended by the respondent''s Counsel, the authorities are at their liberty to proceed with the inquiry afresh, and this time the Inquiry Officer be not from the Vigilance Department. Regularization of the period of absence from the date of removal from service till the date of reinstatement depends upon the decision to held a de novo inquiry or otherwise. As the same is left to the respondents, the period of absence shall be dealt with and regularized in accordance with law, for which purpose the competent authority shall pass suitable orders.

We have heard Shri A.K. Gaur, learned Counsel for the petitioners-railway administration and Shri P.N. Saxena, learned Senior Counsel duly assisted by Shri Kritikar Pandey for the respondent.

Shri A.K. Gaur, learned Counsel for the petitioners-railway administration has assailed the order of the Tribunal, inter alia, on the ground: that the respondent had himself not chosen to participate in the inquiry proceedings and, therefore, the department had no option but to proceed with the inquiry ex parte; and, therefore, the disciplinary proceedings could not have been faulted on that ground. It was also submitted that the inquiry was initiated at the behest of Divisional Commercial Manager and the inquiry officer was also appointed at his instance and the enquiry could not be said to be vitiated merely because the enquiry officer belonged to the Vigilance Department inasmuch as the raid was conducted by the Vigilance Department.

Shri P.N. Saxena, learned Senior Counsel, on the other hand, opposing the writ petition submitted that the entire inquiry proceedings were vitiated inasmuch as the inquiry officer belonged to the Vigilance Department and the enquiry was also initiated at the instance of the Vigilance Department and, therefore, the enquiry could not be said to be free and impartial and without the element of bias being involved. He referred to the averments made in paragraph 4(4) of the original application wherein a categorical averment has been made that one Shri Amai Raman who belonged to the Vigilance Department had been appointed as the inquiry officer and who conducted the inquiry. The averments made in paragraph 4(4) of the original application (at page 35 of the writ petition) have not been denied in paragraph 7 of the counter reply (at page 149 of the writ petition), which was filed before the Tribunal wherein the only plea taken by the railway administration is that the respondent had never raised any objection regarding the appointment of the inquiry officer. Shri P.N. Saxena in this regard referred to the decision of the Supreme Court Union of India (UOI) and Others Vs. Prakash Kumar Tandon, paragraph 13 of which reads as under:

The disciplinary proceedings were initiated only after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. He evidently being from the Vigilance Department, with a view to be fair to the delinquent officer, should not have been appointed as an enquiry officer at all.

Having considered the submissions of learned Counsel for the parties, it is quite clear from the averments made in paragraph 4(4) of the original application, which have not been denied in paragraph 7 of the counter reply of the petitioners filed before the Tribunal, that the inquiry officer belonged to the Vigilance Department and that the entire proceedings against the respondent had been initiated as a result of a raid conducted against him and, therefore, appointment of an officer from the Vigilance Department as inquiry officer vitiated the entire enquiry and the element of bias could be not ruled out. In such a situation the inquiry held against the respondent could not be said to be free and fair or impartial. The judgment of the Supreme Court in the case of Prakash Kumar Tandon (supra), squarely applies to the facts of the present case and, therefore, we are of the firm view that the Tribunal has rightly quashed the order of removal of the respondent from service as well as the appellate order.

Shri A.K. Gaur, next submitted that even if the Tribunal had set aside the order of removal and the appellate order, it could not have given a direction for the reinstatement of the respondent in service. Reliance has been placed upon the decision of the Supreme Court in the case of Hiran Mayee Bhattacharyya case, (2002) 10 SCC 293 wherein the Supreme Court relying upon the Constitution Bench judgment in Managing Director, E.C.I.L., Hyderabad Vs. B. Karunakar (II), directed that principles of natural justice should be followed and permitted the department to pass final orders but directed that there would be no reinstatement or payment of back wages. That was a case wherein the copy of the enquiry report had not been furnished to the petitioner and it was a case prior to the judgement of the Supreme Court in the case of Union of India and others Vs. Mohd. Ramzan Khan, . The Supreme Court had also directed the disciplinary authority to provide a copy of the enquiry report to the appellant within one month and had granted four weeks time to file fresh explanation and thereafter a further six weeks time to the disciplinary authority to take a final decision.

The other case relied upon by the petitioners is State of Haryana and another Vs. Jagdish Chander, . The said case was one of removal from service of a constable in terms of Rule 12.21 of the Punjab Police Rules which permitted the Superintendent of Police to discharge a constable found unlikely to prove an efficient police officer at any time within three years of enrolment. The Supreme Court held that although the rule confered the power upon the Superintendent of Police to discharge a police officer within three years of his appointment but if the order is stigmatic and which in the circumstances would cast a stigma on the career of a police officer, it was a settled law that principles of natural justice would require an opportunity to be given to such a constable. In paragraph 6 of the judgment, the Supreme Court held that the High Court was not justified in straight away setting aside the impugned order and directing reinstatement with consequential benefits. The appropriate course for the State would be to direct an enquiry if they intended to hold one and give an opportunity to the officer concerned to defend himself and then pass appropriate orders.

However, in the Constitution Bench judgment of the Supreme Court in the case of B. Karunakar (supra), the Supreme Court in paragraph 31 thereof has held that in the eventuality of non-supply of enquiry report, the proper course wherein the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the enquiry by placing the employee under suspension and continuing the enquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered can invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. Paragraph 31 of the Constitution Bench judgment reads as under:

Hence, in all cases where the Inquiry Officer''s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court, Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short-cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/Tribunals find that the furnishing of the report would have made a difference to the result in the case that should set aside the order of punishment Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority, management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.

The Constitution Bench judgment in the case of B. Karunakar (supra) has been followed by the Supreme Court in the case in U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Another, wherein the Supreme Court in paragraph 26 of the judgment has infact set aside the judgment of the Single Judge as affirmed by the Division Bench and has directed that the enquiry be completed within a period of four months starting from the stage of service of show-cause notice and consideration of reply if any filed by the delinquent employee and has also directed that the employee shall be reinstated in service but without back wages and other service benefits and his reinstatement shall be solely for the purpose of completing the departmental proceedings and his entitlements, if any, shall be adjudicated by the authority depending upon the result of the disciplinary proceedings. The relevant paragraph 26 of the said judgment reads as under:

In view of above, we set aside the order of learned Single Judge as affirmed by the Division Bench by the impugned judgment and direct that within a period of four months the enquiry shall be completed by starting from the stage of service of show-cause notice and consideration of the reply, if any, filed in accordance with the standing orders holding the field. The respondent No. 1 shall be reinstated to service but without any back wages and other service benefits and his reinstatement shall be solely for the purpose of completing the departmental proceedings. His entitlements, if any, would be adjudicated by the authorities depending upon the result of the disciplinary proceedings.

Thus in view of the law laid down by the Supreme Court in the case of B. Karunakar (supra) and R.S. Pandey (supra) we do not find any illegality or infirmity in the order of the Tribunal in directing the reinstatement of the respondent in service after quashing the penalty order and the appellate order. The Tribunal has infact granted liberty to the petitioners-railway administration to proceed with the enquiry afresh but the enquiry officer shall not be from the Vigilance Department. It has also been directed by the Tribunal that the regularization of the period of absence from the date of removal till the date of reinstatement shall depend upon any order which may be passed by the competent authority.

We may also put it on record that the impugned order of the Tribunal was passed on 12.10.2012 but till date, as we are informed by the learned Counsels for the parties, the petitioners-railway administration has neither initiated any de novo enquiry as directed by the Tribunal nor has the respondent been reinstated in service or placed under suspension or paid even subsistence allowance. The writ petition is, therefore, devoid of merit and is accordingly dismissed.