Gopal Kishan Soti vs Union Of India & 5 Ors.
2013 Latest Caselaw 1798 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 36
 
Case :- WRIT - A No. - 25394 of 2013
 
Petitioner :- Gopal Kishan Soti
 
Respondent :- Union Of India & 5 Ors.
 
Petitioner Counsel :- H.C.Shukla
 
Respondent Counsel :- Sudhir Bharti
 
Hon'ble Vineet Saran,J.

Hon'ble B. Amit Sthalekar,J.

(Delivered by Hon'ble B. Amit Sthalekar, J.)

This writ petition has been filed by the petitioner challenging the

order of the Central Administrative Tribunal, Allahabad dated 23.3.2013

passed in Original Application No.326 of 2013, Gopal Kishan Soti Vs.

Union of India & others and also challenging the memorandum of charges

dated 2.11.2012 issued to the petitioner.

Briefly stated the case of the petitioner is that one Sri Sandeep

Kumar Verma, Train Ticket Commissioner posted at Haridwar Railway

Station of the Northern Railway was issued a charge-sheet, wherein, the

allegation was that while working in the Railways, he took admission as a

regular student in the Krishna College of Law, Noorpur Road, Bijnor

concealing the fact of his employment in the Railways. The said Sandeep

Kumar Varma was also caught during the examination by the Invigilating

Team of using unfair means and was also charged with misbehaviour with

the employees of the aforesaid college. A departmental inquiry was

initiated against the said Sandeep Kumar Verma and the petitioner was

appointed as the Enquiry Officer to conduct the said enquiry. The

petitioner conducted the enquiry and during scrutiny of the Enquiry

Report dated 3.4.2012 certain lapses were found by the Senior Divisional

Commercial Manager, Northern Railway, Moradabad who was the

Disciplinary Authority of the petitioner. It was found that during the

enquiry against Sandeep Kumar Verma, the petitioner has allowed one Sri

Iftikar Ahmad, an outsider, to participate in the enquiry as PW-3 while no

such person had been mentioned in the charge-sheet as a witness in the

list of witnesses. In the charge-sheet in the list of witnesses Sri R.D. Ram

had been mentioned as PW-3. The second allegation against the

petitioner was that the order-sheet of the enquiry proceedings dated

23.12.2010 and 7.1.2011 were prepared by the Charged Officer himself

i.e., Sri Sandeep Kumar Verma, and was merely signed by the petitioner

as the Enquiry Officer. On these allegations the Disciplinary Authority had

grave doubts as to the fairness and impartiality of the enquiry

proceedings on the part of the petitioner and therefore on the enquiry

report dated 3.4.2012 submitted by the petitioner an investigation was

conducted and the truth of the charges was also ascertained from the

Krishna College of Law, Noorpur Road, Bijnor and M.J.P. Rohilkhand

University, Barelly, who submitted their reports against Sri Sandeep

Kumar Verma. On these facts and documentary evidence the Senior

Divisional Commercial Manager, Northern Railway, Mirzapur as the

Disciplinary Authority concluded that the petitioner had deliberately tried

to assist the Charged Officer Sri Sandeep Kumar Verma by concealing the

truth and trying to mislead the Railway-Administration by submitting a

false and cryptic enquiry report dated 3.4.2012 with a dis-honest motive

and for personal gain. Accordingly, a charge-sheet was issued to the

petitioner on 2.11.2012 which was received by him on 17.11.2012.

The petitioner filed the Original Application No. 326 of 2013

challenging this charge-sheet. The grounds taken by the petitioner was

that while acting as Enquiry Officer, his status was that of a Judicial

Officer and therefore, his conduct cannot be questioned.

The Tribunal by the impugned order dated 23.3.2013 has however

dismissed the writ petition, recording a finding that the Original

Application was premature as it was filed challenging the charge-sheet

dated 2.11.2012 and enquiry against the petitioner was still pending and

it was open for the petitioner to lead evidence and participate in the

enquiry proceedings with the assistance of a Railway Servant as a

Defence Assistance and further that in case any order of punishment was

passed against him, it would be open for him to challenge the same by

way of departmental appeal and further by way of revision if aggrieved by

the appellate order.

Before us also the petitioner referred to the provisions of the

Railway Servants (Discipline and Appeal) Rules, 1968 as well as various

documents filed by him along with the Original Application No. 326 of

2013 copy of which has been filed today by way of a supplementary

affidavit dated 23.4.2013 and tried to show that the enquiry proceedings

were not maintainable against the petitioner.

We have heard Sri H.C. Shukla, learned counsel for the petitioner as

well as Sri Sudhir Bharti, learned counsel appearing for the respondents 1

to 4.

Sri H.C. Shukla submitted that the petitioner while acting as Enquiry

Officer had assumed the status of a Judicial Officer and therefore,

misconduct, if any, conducted by the petitioner during the enquiry could

not be investigated and that the original application against the charge

sheet was liable to be quashed.

We have gone through the order of the Central Administrative Tribunal

and perused the documents on record. It is not disputed by the petitioner

that the Original Application No. 326 of 2013 was filed by him challenging

the charge-sheet issued to him on 2.11.2012. It is not disputed that the

enquiry proceedings against the petitioner are still pending and no final

orders have been passed.

In the case reported in (1993) 2 SCC 56 Union of India Vs. K.

K. Dhawan the respondent had challenged the charge sheet dated

2.5.1989 issued to him while he was working as Income Tax Officer,

Muktsar alleging certain irregularities while considering the assessments.

The Supreme Court held that a charge sheet can be issued even against a

judicial officer or a person exercising quasi judicial powers. Paragraphs

4,5 and 6 of the said judgement are important as they give the history of

the case and are quoted as under:

"4. Against the said memorandum dated May 2, 1989, the respondent

preferred an application O.A. No. 2540 of 1989 before the Central Administrative

Tribunal, New Delhi praying for a stay of the disciplinary proceedings and to

consider his case for promotion on merits without resort to the sealed cover

procedure.

5. By its order dated February 8, 1991, Central administrative Tribunal,

Principal Bench, New Delhi directed the respondent-Union of India to open the

sealed cover immediately and implement the recommendations of the Departmental

Promotion Committee insofar as it pertained to the petitioner and to promote him to

the post of Deputy Commissioner of Income Tax, if he was found fit for promotion,

within two weeks from the date of said order.

6. Thereafter, by a detailed judgment dated March 22, 1991, the Tribunal

relying on SLP (C) Nos. 2635-36 of 1989 in Civil Appeal Nos. 4986-87 of 1990 held

that the action taken by the officer was quasi-judicial and should not have formed

the basis of disciplinary action. Therefore, the application was allowed and the

impugned memorandum dated May 2, 1989 was quashed. The earlier order dated

February 8,1991 to open the sealed cover and implement the recommendations of

Departmental Promotion Committee was made absolute.

Thereafter the Supreme Court in paragraph 28 of the said judgment

has laid down succinctly the law in this regard which reads as under:

"28. Certainly, therefore, the officer who exercises judicial or quasi-judicial

powers acts negligently or recklessly or in order to confer undue favour on a person

is not acting as a Judge. Accordingly, the contention of the respondent has to be

rejected. It is i,important to bear in mind that in the present case, we are not

concerned with the correctness or legality of the decision of the respondent but the

conduct of the respondent in discharge of his duties as an officer. The legality of the

orders with reference to the nine assessments may be questioned in appeal or

revision under the Act. But we have no doubt in our mind that the Government is

not precluded from taking the disciplinary action for violation of the Conduct Rules.

Thus, we conclude that the disciplinary action can be taken in the following cases:

1. Where the officer had acted in a manner as would reflect on his reputation for

integrity or good faith or devotion to duty;

2. if there is prima facie material to show recklessness or misconduct in the

discharge of his duty;

3. if he has acted in a manner which is unbecoming of a Government servant;

4. if he had acted negligently or that he omitted the prescribed conditions which

are essential for the exercise of the statutory powers;

5. if he had acted in order to unduly favour a party;

6. if he had been actuated by corrupt motive, however small the bribe may be

because Lord Coke said long ago "though the bribe may be small, yet the

fault is great."

In 1995 Supp. (1) SCC 180 Union of India and another Vs.

Ashok Kacker, the Supreme Court in a case where the Original

Application was filed challenging the charge sheet has held that the

Tribunal entertained the respondent's application at that stage and

quashed the charge sheet issued during the pendency of the matter

before the Tribunal on a ground which even the learned counsel for

the respondent made no attempt to support. Paragraph 4 of the

said judgment reads as under:

"4. Admittedly, the respondent has not yet submitted his reply to the chargesheet

and the respondent rushed to the Central Administrative Tribunal

merely on the information that a charge-sheet to this effect was to be issued

to him. The Tribunal entertained the respondent's application at that

premature stage and quashed the charge-sheet issued during the pendency

of the matter before the Tribunal on a ground which even the learned counsel

for the respondent made no attempt to support. The respondent has the full

opportunity to reply to the charge-sheet and to raise all the points available

to him including those which are now urged on his behalf by learned counsel

for the respondent. In our opinion, this was not the stage at which the

Tribunal ought to have entertained such an application for quashing the

charge-sheet and the appropriate course for the respondent to adopt is to file

his reply to the charge-sheet and invite the decision of the disciplinary

authority thereon. This being the stage at which the respondent had rushed

to the Tribunal, we do not consider it necessary to require the Tribunal at this

stage to examine any other point which may be available to the respondent

or which may have been raised by him.

In the facts and circumstances of the case and the law laid down by

the Supreme Court the present writ petition is wholly devoid on merit and

is accordingly dismissed.

There shall be no order as to costs.

Order Date :- .8.5.2013

N Tiwari

(B. Amit Sthalekar, J.) (Vineet Saran, J.)