N. Ram vs Union Of India And Others
2017 Latest Caselaw 5713 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						Reserved on 06.10.2017
 
						Delivered on 25.10.2017
 

 
Court No. - 35
 

 
Case :- WRIT - A No. - 40200 of 2010
 

 
Petitioner :- N. Ram
 
Respondent :- Union Of India And Others
 
Counsel for Petitioner :- Shiv Kant Pandey
 
Counsel for Respondent :- A. S. G. I., Ajeet Kumar Singh,Chandra Prakash Yadav,S.C.
 

 
Hon'ble Bharati Sapru,J.

Hon'ble Siddharth,J.

(Delivered by Hon'ble Siddharth, J.)

Heard Shri Shiv Kant Pandey, learned counsel for the petitioner and Shri Chandra Prakash Yadav, learned counsel for the respondent.

Petitioner's case is that he was duly selected and appointed in the year 1970 as Junior Technical Officer in the erstwhile Department of Telecommunication of Government of India and was promoted to the post of Sub-Divisional Engineer in the year 1986. The petitioner became eligible for promotion to the next higher post of Senior Sub-Divisional Engineer. There were four financial matters of the petitioner pending before the respondent No.7, Accounts Officer (Cash), Department of Telecommunication office of Chief Manager Telecom, Banglore, who was not clearing the same and was sitting over the same with ulterior motives and for extraneous considerations:-

(a) Home town LTC bill (Tour conducted in December 1994);

(b) Lesser payment of salary for the month of April, 1995;

(c) Excess recovery of sctoor advance and;

(c) Wrongful deduction of income tax in the month of January, 1996.

The petitioner approached the Chief Account Officer against the conduct of the respondent No.7, who was only Accounts Officer and on his direction, the respondent No.7 had to settle the aforesaid payments of the petitioner. However, the respondent No.7 took it otherwise and became vindictive and inimical against the petitioner and was on the look out to fix the petitioner.

While serving on the aforesaid post, the petitioner made an application for leave from 28th May, 1996 to 15th June 1996 to visit his home town Hazaribagh, which was approved by the competent authority - respondent No.2 and he was paid Rs.6000/- as Leave Travel Concession (LTC) on 20th May, 1996 as per the All India Services (Leave Travel Concession) Rules, 1965.

The petitioner produced journey tickets before the respondent No.2, Deputy General Manager, Department of Telecommunication, Naini, Allahabad (U.P.) on 21.5.1996 and also submitted prior intimation of journey on 25th May, 1996 before the respondents, three days prior to commencement of the journey on 28.5.1996, as required by the LTC Rules, 1991. At that stage, the petitioner was not required to submit return journey ticket and therefore, he did not submit the same.

The petitioner alongwith his family undertook the journey on 28.5.1996 from Rewa to Allahabad by Taxi and then from Allahabad to Hazaribagh Road by train and further to Hazaribagh town by Taxi. He undertook journey with his family on 15th June, 1996 to Allahabad and back to Rewa on 16.6.1996 in the same manner as he went to Hazaribagh from Rewa. Thereafter, the petitioner submitted his LTC bill claim on 10th July, 1996 before the respondent No.2 who forwarded the same to the respondent No.7, Account Officer (Cash), Department of Telecommunication, O/o Chief Manager Telecom, Cock Burn Road, Banglore. The respondent No.7 instead of approving or rejecting the LTC claim of the petitioner or sending it back to the respondent No.2 forwarded it to the Vigilance Section of the respondent No.5, Chief General Manager, Department of Telecommunication Telecom, Cock Burn Road, Banglore, along with a complaint, relying upon a letter dated 12.2.1997 of the Office of Chief Commercial Manager, Reservation Complex I.R.C.A. Building, New Delhi. The Vigilance Section of respondent No.7 did not find any substance in the complaint of the respondent No.7 and consigned the same to the record. The aforesaid letter dated 12.2.1997 of Railway was relied upon by respondent No.7 to prove that the petitioner and his family never travelled by train on the ticket dated 28.5.1996 and got it cancelled before the date of journey on 27.5.1996 and misappropriated the ticket amount of Rs.6000/-. The above letter did not mention the year of booking of the ticket and the date of its cancellation.

When no interest was taken by the Vigilance Department on the complaint of respondent No.7, he recovered Rs.3,500/- from the salary of the petitioner in May, 1997 and Rs.3,410/- from the salary of the petitioner in June, 1997 amounting to Rs.6910/- against the advance of Rs.6000/-. The aforesaid recovery was made from the petitioner without following the procedure established by Law. Since no notice or any inquiry was made against the petitioner prior to deduction of the amount of Rs.6910/- from the salary of the petitioner, such a recovery amounted to minor punishment under Rule 11 (iii) of Central Civil Services (Classification, Control & Appeal) Rules, 1965 ["CCS (CCA) Rules, 1965" in short].

After the aforesaid minor punishment awarded to the petitioner of recovery of alleged misappropriated amount from the salary of the petitioner, the respondent No.5, at the behest of the respondent No.7, issued a charge-sheet dated 05.01.1998 against the petitioner alleging charges of misconduct, failure to maintain integrity and acting in a manner unbecoming of Government Servant, violating provision of Rule 3 (1) (i) & (iii) of CCS (conduct) Rule, 1964 and proposed to hold inquiry under Rule 14 of CCS (CCA) Rule, 1965 for awarding major punishment. There was a clear charge in the charge-sheet that the petitioner booked ticket on 21.5.1996 for journey on 28.5.1996 but cancelled the same and afterwards took refund of the ticket amount on 27.5.1996, but submitted LTC bills for the aforesaid journey as a false claim.

The petitioner submitted his reply dated 27.1.1998 to the aforesaid charge-sheet denying the charges and then another reply before the respondent No.5 on 03.02.1998. However, the respondent No.5 decided to hold inquiry under Rule 14 of CCS (CCA) Rule, 1965 against the petitioner and thereafter he realized that the inquiry is wholly unwarranted and unjustified and, therefore, he directed to the respondent No.6, Divisional Engineer, Department of Telecommunication, office of General Manager Competent Approval Centre Telecom (CACT), Dooravaninagar, Banglore, vide order dated 4.7.1998, to postpone the same for indefinite period and later directed the inquiry to be closed by the order dated 29.7.1998 exercising his inherent power under Rule 14 (4) r/w 14 (5) of CCS (CCA) Rule, 1965 and the inquiry was closed.

Thereafter the incumbent of office of respondent No.5 got changed and the respondent No.7 pressurized the new incumbent for revival of the closed inquiry and the respondent No.5 issued a letter dated 13/17.8.1998 stating that earlier charge-sheet dated 05.01.1998 is cancelled and the new charge-sheet shall be issued. Accordingly, a fresh charge-sheet dated 26.8.1998 was issued against the petitioner which was similar to the first charge-sheet dated 05.01.1998 and the petitioner denied the charges vide his reply dated 01.9.1998. The respondent No.5 produced two witnesses, namely, M.V. Kamath, Junior Accounts Officer (JAO) (Bill) as SW-1 and B.Dey Majumdar, Accounts Officer (A.O.) (Cash) as SW-2 working in the office of respondent No.5. The statements-in-chief of the aforesaid witnesses were prepared and got signed by them by the inquiry officer behind the back of petitioner. Statements of the prosecution witnesses, SW-1 and SW-2, were recorded. SW-2 denied any knowledge about the letter of the railway dated 12.2.1997. SW-2 admitted in the cross-examination that he is not the eye-witness in the present case and denied any knowledge of the railway letter dated 12.2.1997.

The statement of the petitioner was recorded on 19.1.1999 and he made allegations of mala fide, ill-will and inimical vengeance against the then Account Officer (Cash). The Inquiry Officer submitted his inquiry report dated 31.3.1999 alleging that the petitioner has committed misconduct and failed to maintain absolute integrity and acted in a manner unbecoming of Government Servant. The respondent No.4, Assistant Director General, Vigilance, New Delhi, issued second show cause dated 24.1.2000 to the petitioner to submit his representation against the findings of the Inquiry Officer in his report dated 31st March, 1999 and the petitioner submitted his representation dated 04.4.2000 rebutting the findings of the Inquiry Officer in his report dated 31.3.1999.

By the order dated 04.7.2000, the respondent No.3, Member (Services) Telecommunication, Ministry of Communication Department of Telecommunication, New Delhi passed the punishment order as follows:-

"Taking into account the findings of the Inquiring Authority, submissions made by Shri N. Ram in his representation dated 4.4.2000, records of the case and on an objective assessment of the facts and circumstances of the case in its entirety, I, N.R. Mokhariwale, Member (Services), Telecom Commission, hereby order that the 'pay of Shri N. Ram SDE, be reduced by four stages from Rs.10,250/- to Rs.9250/- in the time scale of pay of Rs.7500-250-12000/- till his retirement on attaining the age of superannuation i.e. 31.01.2004. It is further directed that Shri N. Ram shall not earn increments of his pay during the period of such reduction."

Aggrieved by the above punishment order dated 4th July, 2000, the petitioner preferred an appeal before the Hon'ble President of India wherein he took many grounds. The relevant grounds are:-

"That the Inquiry Officer in his assessment of evidence in respect of charges has committed mistakes which no reasonable person would have committed on the facts of this case. In proving the charges on the basis of the verification of the N.R. Report the Inquiry Officer on the one hand had categorically admitted that none of these Ex. SW-1 & Ex. SW-2 could tell who has signed the Railway Report, Ex. S-2. The Inquiry Officer has also remarked it is true that Ex.SW-1 & SW-2 could not identify the signature of the officer who has singed Ex.S-2 but in order to somehow get the charges proved the Inquiry Officer had based his reasonings completely on imaginations and with a view that the departmental proceedings are quasi-judicial proceedings and they have to be proved to the hilt. No imagination or suspicion can take the position of proof. The Inquiry Officer arbitrarily remarked that government letter received in government offices are not scrutinized especially when the documents are received from another government organization and on specific request after following regular laid down procedure. The said observations are quite baseless and anybody challenge the same that the said documents can be proved like any other documents.

It is a basic principle of law that in a departmental enquiry the authority has to come forward to prove the same otherwise the document is a waste paper.

It was a departmental proceeding and therefore, imagination cannot take the place of positive proof. Similarly the observations of the Inquiry Officer that "Just because of non identification of signature and designation, a letter from government could not be treated as non-authentic" is baseless.

That in the enquiry report, the Inquiry Officer has very clearly admitted that the person who singed Ex. S-2 could not be produced as state witness before the Inquiry Officer as such simply because I was given an opportunity to inspect the document. The fact that I was given an opportunity to inspect the document cannot be a licence for non-production of author of Ex.S-2. The view taken by the Inquiry Officer is not only illegal but arbitrary and it also shows his bias against me.

That the Inquiry Officer has tried to nullify the contention that Ex.S-2 would show that its contents constitute hand written informations against each column of computer typed NR From and signed illegible by someone as "for Chief Commercial Manager/CR". The Inquiry Officer has taken shelter by saying that "in this modern times almost all documents are prepared in computer sheets by saying that "in this modern times almost all documents are prepared in computer sheets and it is accepted practice now-a-days as an authenticated document". Such type of imaginations are not appreciated by any court of law. By stretching everything by imagination makes the enquiry report as null and void. That the Inquiry Officer has tried to shift the burden of proving the charge on my head when the department failed to produce the Railway Authority. The charge has to be proved by the Department and the said burden cannot be thrown on my shoulders.

That the Inquiry Officer was so much biased and prejudiced when my argument for non-compliance for class of travel stating to be second class instead of A.C. II Tier as stated in Ex-S-1 and 5 digit PNR No. in stead of six digit PNR No. 110008, he said that these are due to the 'slippage' from the Railway Officer who has filled up the proforma after verification. This clearly goes to show that the Inquiry Officer was so much biased that he wanted charges proved against me by hook or by crook.

That it has already been pointed out that I cannot be compelled to produce the Railway Officer. If the department wanted to hold the charges proved them they should have produced those Railway employees as state witness.

That in the impugned punishment the Disciplinary Authority has not applied its mind with regard to impact of reducing my pay by four stages till superannuation without earning future increments, would adversely affect the pension and pensionary claims as such no adverse Orders have been passed by the Disciplinary Authority and thus the adverse effects caused is contrary to the provisions of Rule 11(v) of CCS (CCA) Rules 1965, though substituted and incorporated under Govt. of India, Department of Personnel & Training O.M. No. 11012/4/86-Estt(A) dated 26.05.1992 punished in Govt of India Gazette under S.O. No. 1481 dated 13.06.1992 known as CCS (CCA) Amendment Rules, 1992.

That the provisions of Rule 11(v) of CCS(CCA) Rules 1965 enforced by CCS (CCA) Amendment Rules 1992, could not have been applied/availed of without issuing the impugned chargesheet under CCS (CCA) Rules, 1965 as amended under CCS (CCA) Amendment Rules 1992, hence the impugned punishment cannot be legally enforced and is, therefore, liable to be set aside.

That neither the Inquiry Officer has considered that I have already been punished when from my pay for the month of May & June, 1997, the advance of Rs. 6000/- has already been realized by imposing the penal interest, thus by realizing Rs. 7000/- from may salary, when I was already punished, I cannot be doubly punished for the same allegation and as such the punishment order is liable to be set aside. That I have not been given the reasonable opportunity to defend my case as the Railway employee has been withheld from being produced under department enquiry and no reasonable opportunity was given to me for his cross examination and yet their report has been taken as authentic.

This harsh and very serve punishment was awarded to me, a person who has been serving the department fro more than 30 years very honestly and efficiently with a very good unblemished service records through out the length of service without any complaint whatsoever from within the department or outside from public which can be seen from my service records till date.

That it is the admitted fact that recovery of LTC advance with penal interest thereon had already been made much before the issue of the Chargesheet, the case is deemed to have been closed, the quantum of punishment to the tune of several lacs by reducing the pay by 4 stages and further direction for stopping future increments of pay upto 31.01.2004, the date of retirement, causing a heavy financial loss affecting even my pension, is patently a multi-jeopardy."

The aforesaid appeal which was decided by the order dated 19.12.2001 by the respondent No.4, Assistant Director General, Vigilance II Section, Department of Telecommunication, New Delhi upholding the order of punishment passed by the respondent No.3 recording the following findings:-

"The President has carefully considered the submissions made by the appellant in his appeal records of the case and advice tendered by the Commission. After careful and objective assessment of the case in its entirely the President has found no reason nor justification to interfere with the order of the disciplinary authority. The appellant could not bring forth any point worth consideration in his appeal. He was given every reasonable opportunity to defend himself in the case and there has been no violation of any laid down procedure. Therefore, the President hereby rejects the appeal dated 25.8.2000 preferred by Shri N. Ram SDE. A copy of the UPSC advice enclosed."

Aggrieved by the punishment and appellate orders, the petitioner preferred an Original Application No. 882 of 2002 before the Central Administrative Tribunal, Bench Allahabad, wherein the following orders were passed on 22nd of January, 2004:-

"22.01.2004

Hon'ble Mr. Justice S.R. Singh, V.C.

Hon'ble Mrs. D.R. Tiwari, A.M.

Sri B.P. Srivastava fro the applicant. Shri N.C. Nishad for the respondents. Heard counsel for the parities.

Charge against the applicant was that he claimed the L.T.C. Advance on a ticket which was cancelled and refund granted. Shri R.C. Nishad counsel for the Railway administration, is directed to produce the cancellation slip, if any, filed by the applicant in respect of PNR No. 110008, Ticket No. 06437234 for Train No. 3004 Bombay Hawrah Mail, and original receipt, if any, by on or behalf of the applicant of having received and refund. Putup on 20/02/04 for hearing as part heard.

Copy of the order be given to Shri N.C. Nishad."

In pursuance of the aforesaid order, the respondents did not produce any documents and on 26th February, 2004 filed an application praying for two months' further time for compliance of the order dated 22nd January, 2004. The respondents failed to comply with the order dated 22.1.2004 and vide judgment and order dated 17th March, 2010, the Central Administrative Tribunal dismissed the original application of the petitioner without considering non-complaince of its order dated 22.01.2004 and hence the petitioner has preferred an abovenoted writ petition before this Court.

A counter affidavit has been filed on behalf of he respondent Nos. 1 to 7 stating that the LTC claim preferred by the petitioner was checked as per Rules. It has been further stated that the petitioner undertook performed journey on 28th May, 1996 from Rewa to Allahabad and on 29.5.1996 from Hazaribagh Road to Hazaribagh town by bus and took return journey on 15th June 1996 from Hazaribagh town to Hazaribagh Road and on 16.6.1996 from Allahabad to Rewa by bus and thus the contention of the petitioner that he travelled by Taxi is wrong and not accepted. The respondents have denied that the respondent No.7 took any revenge from the petitioner. The report received from Northern Railway is based on specific request of the Department for verification of doubtful claim relating to journey performed by the petitioner. The report of LTC advance alongwith penal interest has been recovered from the petitioner as per Rules. The petitioner has committed misconduct and failed to maintain absolute integrity. The first charge-sheet dated 05.01.1998 was withdrawn because the list of the witnesses was not attached with it and later a fresh charge-sheet dated 26.8.1998 was issued to the petitioner and, therefore, contention that the charges were dropped against the him, is not correct. Though, there is discrepancy in the PNR Number, Class of travel, but the other particulars are correct and, therefore, the report of the railway was reliable. The petitioner has been given reasonable opportunity to defend himself during the inquiry proceedings and he has not raised any objection in the daily order sheet. The appellate authority has considered the appeal of the petitioner on behalf of the Hon'ble President on the basis of comments of the Union Public Service Commission which has considered the entire material on record. The Central Administrative Tribunal passed the order on merits and there is no illegality therein. Hence the writ petition is devoid of merits and deserves to be dismissed.

The petitioner has filed rejoinder affidavit rebutting the averments made in the counter affidavit.

The first argument raised on behalf of the petitioner is that under the Central Civil Services (CCA) Rules, 1964, the major and minor penalties have been defined and the recovery of full or part of any pecuniary loss caused by the Government Servant by negligence or breach of order is a minor penalty, defined under Rule 11 (iii) and major penalty of reduction to lower time-scale of pay grade etc., is defined as major penalty under Rule 11 (v) and (vi) of the Rules aforesaid. The relevant Rules are as follows:-

"The Central Civil Services (Classification, Control & Appeal) Rules, 1965

11. PENALTIES:

The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:-

Minor Penalties -

(i) censure;

(ii) withholding of his promotion;

(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;

(iii)(a) reduction to a lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.

(iv) withholding of increments of pay;

Major Penalties -

(v)       save as provided for in clause (iii) (a), reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay:
 

 
(vi)     reduction to lower time-scale of pay, grade, post or Service for a period to be specified in the order of penalty, which shall be a bar to the promotion of the Government servant during such specified period to the time-scale of pay, grade, post or Service from which he was reduced, with direction as to whether or not, on promotion on the expiry of the said specified period - 
 

 
(a) the period of reduction to time-scale of pay, grade, post or service shall operate to postpone future increments of his pay, and if so, to what extent; and 
 

 
(b) the Government servant shall regain his original seniority in the higher lime scale of pay, grade, post or service.] 
 

 
(vii)    compulsory retirement;
 
(viii) removal from service which shall not be a disqualification for future employment under the Government;
 

 
(ix)     dismissal from service which shall ordinarily be a disqualification for future employment under the Government."
 

 
The petitioner was awarded minor penalty of recovery of Rs.6910/- against the advance payment of Rs.6000/- in May/June 1997 and, therefore, he cannot be punished again by way of major penalty after holding departmental inquiry regarding the same incident and allegations. 
 

The second argument raised on behalf of the petitioner is that once the disciplinary authority decided to postpone the inquiry by its order dated 04.7.1998 for indefinite period and latter decided to close the same by order dated 29.7.1998 by exercising his discretion under Rule 14 (iv) and (v) of the CCS (CCA) Rule 1965, there was no occasion for the issuance of second charge-sheet and to hold further inquiry.

The third argument raised on behalf of the petitioner is that the departmental inquiry conducted against the petitioner was vitiated since the statements of the witnesses for the prosecution were recorded behind the back of the petitioner and there was violation of Rule 14 and Rule 15 for the CCS (CCA) Rule, 1965. Even the prosecution witnesses admitted the case of the petitioner and did not support the case of the prosecution but the inquiry officer did not considered the same and recorded the findings against the petitioner. The Inquiry Officer has not mentioned about dropping the first charge-sheet dated 05.01.1998 and closure of the inquiry on 29.7.1998 by the respondent No.5. The burden of proving the case was on the department to prove the charges against the petitioner and the original letter dated 12.2.1997 of the railway, ticket cancellation form, etc. were not produced by the prosecution in evidence nor any officer of the railway was produced in the inquiry to prove the alleged letter dated 12.2.1997, but the Inquiry Officer has recorded the findings against the petitioner relying upon the same. The aforesaid document was not admissible without corroboration. Further the burden of proof to establish the evidence of the railway letter, Exhibit S-2, was on the department and it was wrongly shifted on the petitioner, stating that he has not produced any railway employee to disprove the same.

The fourth argument raised on behalf of the petitioner is that he filed his appeal before the President of India through proper channel under Rule 24 (1) (I) (b) of CCS (CCA) Rule 1965 but the respondent No.4 who is subordinate of respondent No.3 decided the appeal of the petitioner on 14.9.2001 i.e., after more than a year. The appellate order has been passed only on the comments of the Union Public Service Commission (UPSC) and it does not reflect any application of mind by the appellate authority. The appellate order is cursory and arbitrary and deserves to be set aside.

The petitioner has finally assailed the order of the Central Administrative Tribunal dated 17th of March, 2002 on the ground that the Tribunal vide order dated 22nd January, 2004 directed the respondents to provide the cancellation slip of the tickets cancelled by the petitioner and the original receipt of refund but the same was not produced before the Tribunal. The Tribunal ignored the aforesaid order and dismissed the original application of the petitioner. The Tribunal agreed that it can interfere with the orders of the disciplinary authority and the appellate authority, in case, it finds that the findings to be perverse but it did not apply its mind.

Even in view of the Judgment of "B.C. Chaturvedi Vs. Union of India and others reported in 1996 SCC (L & S) 80" the sanctity and veracity of the railway letter was doubted by the learned Tribunal and therefore it directed the production of cancellation slip and cash receipt but the same was not produced by the respondents but the learned Tribunal ignored the same and failed to exercise the jurisdiction vested in it by Law.

Per contra, the learned counsel for the respondents has argued that the recovery of advance payment of LTC with penal interest is not punishment and the charge-sheet was served on the petitioner because he has committed major misconduct. The petitioner has booked ticked on 21.5.1996 for journey on 28.5.1996 from Allahabad to Hazaribagh but got the refund of the same on 27.5.1996 and he misappropriated the public fund.

The second argument advanced on behalf of the respondents that the letter of the railway dated 12.2.1997 was issued after the claim of the petitioner was found to be suspicious and it was a valid document and rightly relied upon by the Inquiry Officer and disciplinary authority. Aggrieved by that, the petitioner never raised any objection regarding the inquiry proceedings in the daily order sheet and therefore he cannot object to the procedure of inquiry, at this stage. He was given fair opportunity of hearing by the Inquiry Officer and he adduced his evidence before him.

The third argument advanced on behalf of the respondents is that the order of the appellate authority based on consultation with Union Public Service Commission, was statutory requirement. The appellate authority duly considered the appeal in accordance with the Rule 27 of CCS (CCA) Rule 1965 and issued a reasoned and speaking order.

The fourth argument advanced on behalf of the respondents is that the Inquiry Officer produced with the departmental inquiry in accordance with law. The order passed by the Central Administrative Tribunal is in accordance with law and based on legal findings based on the material on record and it does not warrants any interference by this Hon'ble Court.

The last argument advanced on behalf of the respondents that the strict rule of evidence do not apply to the domestic inquiry and even photocopy of document can be read in evidence and the findings of fact recorded in domestic inquiry cannot be interfered by the Hon'ble High Court in exercise of jurisdiction under Article 226 of the Constitution of India. The learned counsel for the respondents has relied upon the judgment of this Court in the case of "S.R. Kashyap Vs. Canara Bank and other (2004) 1 UPLBEC 581" and of Apex Court in "Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane (2005) 2 SCC 254".

We have gone through the material on record and given thoughtful consideration to the arguments advanced on behalf of the respective parties.

First argument advanced on behalf of the petitioner that he was awarded minor penalty of recovery of the amount of Rs.6910/- against the advance LTC amount of Rs.6000/- with interest, was as per Rule 11 (iii) of the CCS (CCA) Rules, 1965 and no further inquiry for awarding major punishment was required to be initiated against the petitioner, has force. The recovery from the salary of the petitioner, was made without any opportunity of hearing to the petitioner. Such amount should not have been recovered from salary of the petitioner on account of any alleged misconduct on his part by the respondent No.7 without opportunity of hearing. This was the position when the respondent No.7 was only required to approve or disapprove the LTC claim of the petitioner. He was not a disciplinary authority of the petitioner to order or make any deduction from his salary on his own. He recovered the amount from the salary of the petitioner without any order of the respondent No.5. Argument that the minor penalty awarded to the petitioner was final for the alleged misconduct which was not proved by the respondents. The respondents have failed to point out how even after the deduction for LTC amount along with interest and penalty by way of minor punishment, further major punishment was awarded to the petitioner after holding fresh inquiry. No justification has come forth from the side of respondents. Therefore, the irresistible conclusion is that once the minor penalty by way of recovery of alleged misappropriated amount and made from the salary of the petitioner, there was no occasion of initiating further proceedings for awarding him major penalty against the mandate of Article 20 (2) of the Constitution of India.

Second argument advanced on behalf of the petitioner that after the inquiry, the first charge-sheet dated 05.01.1998 was withdrawn and hence there was no occasion for the respondent No.5, to issue a second charge-sheet and the second inquiry proceeding was not legally permissible. It was clear from the order dated 29.7.1998 passed by the Inquiry Officer, that the case was closed and record was returned to the disciplinary authority. The respondents have stated that by the letter dated 13/17.8.1998, the respondent No.5 informed the petitioner that the original charge-sheet was not accompanied by list of witnesses, by whom charges framed against the petitioner were proposed to be proved, hence, a fresh charge-sheet containing all the documents will be issued. Therefore, it appears that on account of technical mistake is issuing of the first charge-sheet, the same was withdrawn and the inquiry was stopped, but later the disciplinary authority issued a charge-sheet in accordance with Rules and proceeded with the inquiry which cannot be faulted with.

Regarding third argument advanced on behalf of the petitioner that the departmental inquiry was illegal, it is evident from the cross-examination of SW-1, M.V. Kamath and that his statement was recorded by the Presenting Officer (P.O.) not during the inquiry but before the P.O. Further the original file regarding the processing of the LTC bill of the petitioner was not produced in the inquiry. Witness of the prosecution further admitted that he was only shown the record by the Presenting Officer and his statement was recorded. He denied any knowledge about any report received from the railway and, therefore, the same was not proved by the witness. Learned counsel for the petitioner stated that the original railway letter dated 12.2.1997 was not produced by the respondents and its copy was only filed in evidence has relied upon the following case laws "H. Siddiqui (dead) by Lrs. Vs. A. Ramalingam AIR 2011 SC 1492" and "Smt. J. Yashoda Vs. Smt. K. Shobha Rani AIR 2007 SC 1721".

The above noted case laws have been relied in respect of contention that the copy of the railway inquiry report dated 12.2.1997 was concocted and fabricated documents and its original was never produced and, therefore, it was at the most secondary evidence relied upon while passing the punishment order. The case laws submitted by the petitioner are not very relevant for deciding the present controversy since they relate to the trial of civil suit and the proceedings of civil suit have different standard of proof vis-a-vis the departmental proceedings conducted by the Inquiry Officers. Petitioner has further relied upon the following judgments: " M.V. Bijlani Vs. Union of India, 2006 Law Suit (SC) 277", "LIC of India Vs. Ram Pal Singh Bisen, 2010 Law Suit (SC) 96" and "Krushnakant B Parmar Vs. Union of India and Another, 2012 Law Suit (SC) 110" which do not apply to the facts and issues involved in this case. The issue involved in the case is whether the letter dated 12.2.1997 of the railway filed as Exhibit, S-2, was reliable document to be relied upon in a departmental proceeding on which Supreme Court in the case of "Roop Singh Negi Vs. Punjab National Bank and Others, (2009), 2 SCC 570" has held that the evidence collected during the investigation cannot be treated to be evidence in the disciplinary proceedings unless such evidence is proved by the witnesses of the department. If the departmental witnesses merely tender the document and do not prove the contents thereof, the same could not be treated as evidence in a departmental proceeding which is quasi judicial proceedings. The Hon'ble Apex Court in the case of "Central Bank of India Ltd. Vs. Prakash Chandra Jain, AIR 1969 SC 983" and "Kuldeep Singh Vs. Commissioner of Police, (1999) 2 SCC 10" that suspicion or presumption cannot take the place of proof even in a domestic inquiry and the writ court is entitled to interfere with the findings of the fact of any Tribunal or Authority in such circumstances. Therefore, the arguments of the counsel for the respondents that the departmental inquiry was fair and proper cannot be accepted.

Regarding the fourth argument advanced on behalf of the petitioner that the appeal preferred by him before the President of India was not decided by the President of India but by the authority subordinate to him does not appear to be correct in view of the argument of the respondent that it was decided in accordance with the statute.

However, the argument that the appellate authority did not decide the appeal by application of mind and has only copied the comments of the UPSC merits consideration. Article 320(3)(c) of the Constitution of India provides that the Union Public Service Commission or the State Public Service Commission shall be consulted in all disciplinary matters affecting a person serving under the Government of India or the Government of State in civil capacity including memorials or petitions relating to such matters and it shall be the duty of the Public Service Commission to advise on any matter so referred to them and on any other matter which the President or the Governor of the State, as the case may be, may refer to them. The said article further provides that the Government may make a regulation to specify the matters In which the Public Service Commission is not required to be consulted. In case the Public Service Commission is not required to be consulted then the records of enquiry together with the second show cause notice and reply thereto are sent to the Commission for advice before taking final action in the matter.

Even if the Public Service Commission is consulted, the opinion of the commission should not be accepted automatically by the disciplinary authority, which is not absolved of its responsibility to apply its mind to the facts of the case and come to an independent decision. If the disciplinary authority does not apply its mind then the order will be mala fide. This is based on the general principle that when an authority is given a power to pass certain order and to consult advisory body before taking the decision, then he cannot act simply on the advice without applying its own mind because the responsibility for the decision or final action lies on him. The object of associating an advisory body is only to provide a safeguard against the abuse of an unguided power and not to substitute discretion of the Advisory Body with that of the statutory authority. It is applicable when Government is required to consult Public Service Commission. The advice of Public Service Commission is not binding on the Government. If the statute provides consultation then it does not bind a party to the transaction. Consultation does not imply that decision will be accepted by the party and, therefore, there is no estoppel by conduct.

A further perusal of the impugned appellate order shows that the appellate authority has merely reproduced the charges against the petitioner and the gist of the Inquiry Report. The Appellate Authority has not dealt with the various grounds raised by the petitioner in his Appeal. No reason has been given by the Appellate Authority for agreeing with the order of the Disciplinary Authority. In our opinion, the order passed by the Appellate Authority is not a speaking order.

In Divisional Forest Officer, Kothagudem and others Vs. Madhusudhan Rao, (2008) 3 Supreme Court Cases 469, the Apex Court has held as under( paragraphs 19 and 20 of the said SCC):

"19. Having considered the submissions made on behalf of the respective parties and also having regard to the detailed manner in which the Andhra Pradesh Administrative Tribunal had dealt with the matter, including the explanation given regarding the disbursement of the money received by the respondent, we see no reason to differ with the view taken by the Administrative Tribunal and endorsed by the High Court. No doubt, the Divisional Forest Officer dealt with the matter in detail, but it was also the duty of the appellate authority to give at least some reasons for rejecting the appeal preferred by the respondent. A similar duty was cast on the revisional authority being the highest authority in the Department of Forests in the State. Unfortunately, even the revisional authority has merely indicated that the decision of the Divisional Forest Officer had been examined by the Conservator of Forests, Khammam wherein the charge of misappropriation was clearly proved. He too did not consider the defence case as made out by the respondent herein and simply endorsed the punishment of dismissal though reducing it to removal from service.

20.It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum." (Emphasis supplied).

In the Judgement in Chairman, Disciplinary Authority, Rani Laksmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney & Others, (2009) 4 Supreme Court Cases 240, wherein the Apex Court has held as under (paragraph 5 of the said SCC):

"5.In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover's case [(1995) 6 SSC 279)] has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority." (Emphasis supplied)."

It is, thus, evident that even if the Appellate Authority agrees with the order of the Disciplinary Authority, it (Appellate Authority) is required to give its reasons, though brief reasons, so that the delinquent officer may know that the Appellate Authority has applied its mind in dismissing his Appeal and in affirming the order of the Disciplinary Authority.

In the present case, we find that the Appellate Authority has rejected the Appeal filed by the petitioner and has upheld the order of the Disciplinary Authority but has not given any reason for agreeing with the order of the Disciplinary Authority. The Appellate Authority has also not dealt with the various grounds raised in the Appeal submitted by the petitioner. Rule 27 of the CCS (CCA) Rules, 1965, has not been complied by the Appellate Authority which clearly provides the manner of deciding departmental appeals.

The final argument of the petitioner is that the Central Administrative Tribunal initially informed that the letter dated 12.2.1997 of the railway was not proved and not reliable and therefore it passed the order dated 22.01.2004 directing the respondents to produce cancellation slip, if any, of the ticket filed by the petitioner in respect of the PNR No. 11008, Ticket No. 06437234, Train No. 3004 and receipt of receiving refund, if any, by the petitioner on having received refund. The respondents sought time to file the same but never complied the order and therefore the order of the Central Administrative Tribunal lacks substance. Adverse inference was required to be drawn against the respondents by the Central Administrative Tribunal, since they never came out with the defence that the documents are not available or not in existence. The findings of Central Administrative Tribunal that the railway inquiry report was a valid document to be relied upon for awarding major punishment to the petitioner, was not warranted under the law. The contention of the respondents that the order of the Tribunal was legally correct, since it has rightly refused to disturb the findings of facts is patently erroneous, where the orders of punishment and appellate authority were based on no admissible evidence and the charges were found proved on such evidence, it could have interfered and set aside the same.

Before the part with the case, it is necessary to state that the deduction of the amount of Rs.6910/- from the salary of the petitioner was made in May and June, 1997 to which he acquiesced and did not challenged the same before any forum. He only started disputing the same after receiving the charge-sheet dated 05.01.1998, issued by the respondent No.5, initiating proceedings for awarding major penalty to the petitioner regarding the same misconduct for which the amount of Rs.6910/- was earlier deducted from him by way of minor penalty defined under CCS (CCA) Rules, 1965. Therefore, the petitioner, is estopped from raising any dispute regarding the recovery of amount of Rs.6910/- from his salary in May and June, 1997 by the respondent No.7 by way of minor penalty. It might be an illegal recovery but the petitioner is not entitled to dispute the same at this stage, after initiation of the proceedings for award of major penalty on 05.01.1998. Further his entire case is based on Article 20(2) of the Constitution of India, regarding principle of double jeopardy and therefore, the part of relief "I" in the writ petition, praying for refund of Rs.6000/- with penal interest, cannot be granted to the petitioner. However, regarding the other reliefs prayed by the petitioner, the writ petition succeeds and is hereby allowed and the judgment and order dated 17.03.2010 (Annexure 44 to the writ petition) passed by the Central Administrative Tribunal, Allahabad, Bench Allahabad, order dated 19.12.2001 (Annexure No. 38 to the writ petition) passed by the appellate authority and the order dated 04.7.2000 (Annexure No. 34 to the writ petition) passed by the disciplinary authority are hereby quashed.

In view of the fact that the petitioner has retired from service in the year 2004, he is held entitled to notional benefits of promotion to the post of Senior Sub Divisional Engineer w.e.f., 01.02.1998 and promotion to the post of Divisional Engineer (Group-A) w.e.f. 05.3.2002 after opening sealed covers regarding his promotion orders. His difference of salary, on account of denial of promotion and post retirement dues, may be re-calculated accordingly and paid to him with simple interest of 7 per cent per annum from the date they became due, within a month from the date of presentation of certified copy of this order before the respondent concerned.

Since the petitioner was dragged into litigation for no fault on his part and has suffered harassment on account of loss of timely promotion and monitory deprivation on account of fault on the part of the respondents, therefore, the respondents are liable to be saddled with heavy cost. However, following dictum of the Apex Court in the case of "Rameshwari Devi Vs. Nirmala Devi, 2011 8 SCC 249", which provided that imposition of only realistic cost of litigation should be awarded, a conservative cost of Rs.50,000/- is awarded in favour of the petitioner. The same shall be paid to him by the respondent concerned within the same period of one month alongwith his other dues.

The petition stands allowed to the extent stated above.

Order Date :- 25.10.2017

Ruchi Agrahari