Delhi High Court
Uoi vs Shri Virender Pal Singh on 20 May, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 20.05.2010
+ WP(C) No.13638/2009
( Arising from OA No. 1042/2009)
UOI .... Petitioner
Through Mr. Chandan Kumar, Advocate
Versus
Shri Manjuddin Khan .... Respondent
Through Mr. A.K. Behera and Mr. Manjeet Singh
Reen, Advocates
+ WP(C) No. 13625/2009
(Arising from OA No. 1105/2009)
UOI .... Petitioner
Through Mr. Chandan Kumar, Advocate
Versus
Shri Ram Dayal Meena .... Respondent
Through Mr. A.K. Behera and Mr. Manjeet Singh
Reen, Advocates
+ WP(C) No. 13626/2009
(Arising from OA No. 1219/2009)
UOI .... Petitioner
Through Mr. Chandan Kumar, Advocate
Versus
Shri Shakrudeen Khan .... Respondent
Through Mr. A.K. Behera and Mr. Manjeet Singh
Reen, Advocates
+ WP(C) No. 13629/2009
(Arising from OA No. 1116/2009)
UOI .... Petitioner
Through Mr. Chandan Kumar, Advocate
Versus
W.P.(C) Nos.13638, 13625, 13626, 13629,
13634, 13635, 13636, 13637, 13639, 13640/2009 Page 1 of 19
Shri Sharif Mohd. .... Respondent
Through Mr. A.K. Behera and Mr. Manjeet Singh
Reen, Advocates
+ WP(C) No. 13634/2009
(Arising from OA No. 1234/2009)
UOI .... Petitioner
Through Mr. Chandan Kumar, Advocate
Versus
Shri Nissar Khan .... Respondent
Through Mr. A.K. Behera and Mr. Manjeet Singh
Reen, Advocates
+ WP(C) No. 13635/2009
(arising from OA No. 1096/2009)
UOI .... Petitioner
Through Mr. Chandan Kumar, Advocate
Versus
Shri Raghubir Singh .... Respondent
Through Mr. A.K. Behera and Mr. Manjeet Singh
Reen, Advocates
+ WP(C) No. 13636/2009
(arising from OA No. 1140/2009)
UOI .... Petitioner
Through Mr. Chandan Kumar, Advocate
Versus
Shri Hari Narain Verma .... Respondent
Through Mr. A.K. Behera and Mr. Manjeet Singh
Reen, Advocates
+ WP(C) No. 13637/2009
(arising from OA No. 1277/2009)
UOI .... Petitioner
Through Mr. Chandan Kumar, Advocate
Versus
W.P.(C) Nos.13638, 13625, 13626, 13629,
13634, 13635, 13636, 13637, 13639, 13640/2009 Page 2 of 19
Shri Giriraj Prasad Meena .... Respondent
Through Mr. A.K. Behera and Mr. Manjeet Singh
Reen, Advocates
+ WP(C) No. 13639/2009
(arising from OA No. 1119/2009)
UOI .... Petitioner
Through Mr. Chandan Kumar, Advocate
Versus
Shri Kailash Chand Barwa .... Respondent
Through Mr. A.K. Behera and Mr. Manjeet Singh
Reen, Advocates
+ WP(C) No. 13640/2009
(arising from OA No. 1221/2009)
UOI .... Petitioner
Through Mr. Chandan Kumar, Advocate
Versus
Shri Virender Pal Singh .... Respondent
Through Mr. A.K. Behera and Mr. Manjeet Singh
Reen, Advocates
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
ANIL KUMAR, J.
*
1. This common order will dispose of all the above noted writ
petitions which have been filed against the common order dated 18th
September, 2009 passed by the Central Administrative Tribunal,
W.P.(C) Nos.13638, 13625, 13626, 13629,
Principal Bench in OA 1042/2009 titled as Sh. Manjuddin Khan Vs.
Union of India through General Manager Northern Railway; OA No.
1096/2009 titled as Sh. Raghubir Singh Vs. Union of India through
General Manager Northern Railway; OA No. 1105/2009 in Shri Ram
Dayal Meena Vs. Union of India through General Manager Northern
Railway; OA 1116/2009 in Shri Sharif Mohd. Vs Union of India through
General Manager Northern Railway; OA No. 1119/2009 in Shri Kailash
Chand Barwa Vs. Union of India through General Manager Northern
Railway; OA 1140/2009 in Shri Hari Narain Verma Vs. Union of India
through General Manager Northern Railway; OA 1219/2009 in Shri
Shakrudeen Khan Vs. Union of India through General Manager
Northern Railway; OA 1221/2009 in Shri Virender Pal Singh Vs. Union
of India through General Manager Northern Railway; OA 1234/2009 in
Shri Nissar Khan Vs. Union of India through General Manager Northern
Railway; OA 1277/2009 in Shri Giriraj Prasad Meena Vs. Union of India
through General Manager Northern Railway, whereby the original
applications of the respondents in different writ petitions were allowed
and the impugned order passed against the respondents were set aside
and the petitioners were directed to reinstate the respondents in
different writ petitions forthwith. The respondents were also held to be
entitled to consequential benefits as admissible in law. However, the
petitioners were permitted to initiate the inquiry from the stage of
initiation of inquiry which was directed to be entrusted to an officer
other than the officers from vigilance department of the petitioner.
W.P.(C) Nos.13638, 13625, 13626, 13629,
2. The respondents in different writ petitions are erstwhile casual
workers and they were appointed as substitute Khalasi. The
respondents were charge sheeted under Rule 9 of the Railway Servants
(Discipline & Appeal) Rules, 1987 for gaining appointment as substitute
Khalasi in connivance of Jhelum Singh, Senior Clerk and Rattan
Kumar, MCC through forged casual labour service card showing the
casual labour service rendered for 123 days. The charge sheets were
issued to all the respondents in 1994 after a preliminary investigation
conducted by the Vigilance Branch of the petitioner.
3. The respondents had challenged the different charge sheets
initiated against them, inter alia, on the ground that they had sought
additional documents required for defense and for the purpose of
effective cross examination such as their personal files and assumed
duty register including pay rolls, muster rolls etc. However, these
documents were not produced by the petitioner without any rational
justification. Before the Tribunal, the order of punishment was also
challenged on the ground that though in Giriraj Prasad Meena v. Union
of India and ors, O.A No.1615/2008 decided on 9th February, 2009 and
Sh.Jagbir Singh and Ors v. Union of India & Ors being O.A
No.1357/2007 connected with O.A No.1413/2007 decided on 19th
September, 2007 the revisional authorities were directed to pass a
reasoned order, however, the direction of the Tribunal was not complied
W.P.(C) Nos.13638, 13625, 13626, 13629,
with. It was contended by the respondents that there was no direct
evidence against them that they had obtained bogus cards or had
forged the cards, however, by a non speaking order and merely on
suspicion and on the basis of preponderance of probability the penalty
for compulsory retirement had been imposed. The penalty imposed was
also challenged on the ground that pay slips, pay register, muster roll,
assumed duty register and personal files were not produced which was
the best evidence available with the petitioner to demonstrate that the
respondent had not worked as casual labour but had obtained a bogus
casual labour certificate and in the circumstances the defense of the
respondents was gravely effected and that they were also deprived of a
reasonable opportunity. Reliance was also placed by the respondent on
Trilok Nath v. Union of India & Ors, 1967 SLR SC 759 and Mahabir
Singh & Ors v. Union of India & Ors, 2000 (3) ATJ CAT I to contend that
a casual labour card was not to be approved for employment of casual
workers and therefore, in the circumstances there was no necessity or
requirement for the respondent to have obtained the bogus card.
4. The petitioner had contested the pleas of the respondents
contending inter-alia that before imposing the punishment the
procedure as per rules had been followed and the punishment imposed
on respondents is commensurate with their misconduct. It was also
asserted on behalf of petitioner that pursuant to the directions given in
earlier original applications filed on behalf of some of the casual
W.P.(C) Nos.13638, 13625, 13626, 13629,
labours, a sympathetic view was taken by the revisional authority and
the order of punishment of removal was toned down to order of
compulsory retirement.
5. The Tribunal, while allowing the original applications had noted
that Inquiry Proceedings were conducted by one retired officer and two
delinquents, who had been punished for issue of bogus casual card and
later on also gave evidence against the respondents and other officials.
The respondent were also guilty of charge of holding bogus employment
card on the basis of preponderance of probability and on the ground
that the respondents were the only beneficiaries of the certificates
though, no direct evidence was produced by the petitioners nor the
documents which apparently were relevant for the determining the
culpability of the respondents, were not produced during the inquiry.
6. The tribunal also noticed that before the disciplinary proceedings,
vigilance investigation was carried out and the charge sheet was issued
on the basis of alleged investigation by the vigilance department. It was
held that appointment of enquiry officers from the vigilance officers
would have the probability on the part of vigilance enquiry officer to
uphold the charges leveled against the respondents in the enquiry
proceedings and justify their vigilance report and relied on the decision
of Union of India and Ors v. Prakash Kumar Tandon, 2009(1) SCALE
W.P.(C) Nos.13638, 13625, 13626, 13629,
175. The Tribunal also noticed that though the petitioner was in
possession of relevant documents such as pay slips, pay register,
muster roll, assumed duty register and personal files, non production of
the same adversely effected the respondents. It was also held that the
enquiry officer was duty bound to record the reasons while refusing to
consider the relevant documents, however, the enquiry officer rejected
the documents only holding that they were irrelevant without specifying
or eLabourating as to how those documents were irrelevant. The
Tribunal also noticed that the statement of witnesses recorded earlier
were taken on record in the enquiry without giving a right or
opportunity to respondents to cross examine such witnesses whose
statements were not recorded during the enquiry proceedings which
was contrary to the procedure laid down under letter dated 17th March,
1977 stipulating that the statements made during the preliminary
investigation are admissible except that such statements must be read
to the witness and admitted by them. Such a procedure admittedly was
not followed by the petitioner and, therefore, the testimony relied on by
the enquiry officer could not be relied on and in absence of such
testimony the inferences as drawn by the disciplinary authority could
not be reached.
7. The Tribunal also considered that the enquiry officer despite the
presence of presenting officer assumed the role of prosecutor in as
W.P.(C) Nos.13638, 13625, 13626, 13629,
much as the enquiry officer who was also from the vigilance department
cross examined the witnesses with the intention to fill up the gaps in
the testimony of such witnesses which was in a biased manner and had
thus vitiated the enquiry. The Tribunal also noticed that there was no
direct evidence against the respondent to have obtained appointment by
bogus casual service card but the disciplinary authority allegedly
applied preponderance of probability. It was also noticed that under
Rule 27 of Railways Rules, the appellate authority was duty bound to
consider the illegality in the procedure and proportionality of
punishment but the order passed by the appellate authority is bald
without containing any reasons and in the totality of the facts and
circumstances the Tribunal set aside the order of punishment of
compulsorily retiring the respondents and directed the petitioner to
reinstate the respondents in service and also granted them
consequential benefits as admissible in law and also held that it will not
preclude the petitioner to take up the proceedings from the stage of
initiation of enquiry which should be entrusted to an officer other than
the officer from vigilance department.
8. While setting aside the punishment of compulsory retirement
imposed by the petitioner, the Tribunal also relied on Union of India &
Ors. Vs. Gyan Chand Chattar, 2009 (8) SCALE 575, holding that there
is a distinction between proof and suspicion and an employee cannot be
W.P.(C) Nos.13638, 13625, 13626, 13629,
punished merely on the basis of suspicion. Reliance was also placed on
Mahabir Singh & Ors. Vs. UOI & Ors. 2000 (3) ATJ CAT 1, holding that
the casual labour card was not needed to be approved for employment
of casual workers. The Tribunal while setting aside the order of
compulsory retirement relied on Union of India & Ors. Vs. Prakash
Kumar Tandon, 2009(1) SCALE 175 and also held that since the
Vigilance raid was conducted by the Vigilance Department, the
appointment of the inquiry officer from Vigilance Department was not
appropriate.
9. The learned counsel for the petitioner has challenged the orders
passed in different original applications filed by the respondents and
has raised the same grounds which were raised before the Tribunal
contending inter-alia that though there may not be direct evidence
against the respondents but on the basis of preponderance of
probabilities it can be inferred that the bogus casual cards were
obtained by the respondents. The learned counsel for the petitioner has
also contended that since the Tribunal has set aside the enquiry
proceedings and has also permitted the petitioners to take up the
proceedings from the stage of initiation of enquiry by appointing an
officer other than the officers from the vigilance department, therefore,
the tribunal could not award consequential benefits to the respondents
as the same should have been left to be decided by the petitioner in
accordance with law after culmination of the fresh enquiry and
W.P.(C) Nos.13638, 13625, 13626, 13629,
depending on the final outcome. The reliance has been placed by the
learned counsel for the petitioner on (2005) 8 SCC 211, U.P State
Textile Corpn. Ltd v. P.C.Chaturvedi and Ors. The learned counsel for
the petitioner has also relied on 1963 (3) SCR 25, State of A.P v. S.Sree
Rama Rao to contend that the High Court while exercising jurisdiction
under Article 226 of the Constitution does not sit as a Court of appeal
over the decision of the authority holding a departmental enquiry and it
is only to see whether the enquiry has been held by the competent
authority according to the procedure prescribed and whether the rules
of natural justice have been observed. It is further contended that if
there is some evidence which the authority has accepted and which
evidence may reasonably support the conclusion that the officer is
guilty, it will not be a function of the Court exercising its jurisdiction
under Article 226 of the Constitution of India to review the evidence and
to arrive at an independent finding on the evidence.
10. The learned counsel for the respondents, Mr.Behera challenged
the pleas and contentions of the petitioner contending inter-alia that
the case of petitioner against respondents is of no evidence. It is
contended that even on the basis of preponderance of probabilities no
such inferences as has been drawn by the petitioners can be arrived at
because there is no evidence against the respondents as they do not
benefit from the alleged bogus casual labour card. It is contended that
W.P.(C) Nos.13638, 13625, 13626, 13629,
the best evidence which could have proved or demonstrated that
respondents were not employed as casual labours and so the labour
card got issued by them were bogus, had been withheld by the
petitioner such as pay slips, pay register, muster roll, assumed duty
register and personal files and, therefore, it cannot be held that the
casual labour card was obtained by the respondent. It is contended that
merely on the basis of the testimony of the witness Jhelum Singh, it
could not be concluded that the casual labour card was bogus. The
implication and culpability of the respondents for obtaining the bogus
casual card was also refuted on the ground that casual labour card
need not to be approved for employment of casual workers and relied on
Mahabir Singh & Ors v. Union of India & Ors, 2000 (3) ATJ CAT I. The
learned counsel, Mr.Behera has raised similar pleas which were raised
before the Tribunal which have been accepted by the Tribunal as that
the respondents had been punished on mere suspicion and the orders
imposing punishment are perverse as there was no direct evidence and
in the absence of the relevant documents which ought to have been
produced by the petitioner, no adverse inference could be taken against
the respondents even on the basis of preponderance of probability. The
learned counsel for the respondent, Mr.A.K.Behera has relied on 2009
(91) SCT 563, Union of India &Ors v. Prakash Kumar Tandon holding
that the enquiry officer could not be from the vigilance department as
there could be an element of bias to substantiate the finding as a
vigilance officer during the enquiry proceeding also and it would be in
W.P.(C) Nos.13638, 13625, 13626, 13629,
violation of the principles of natural justice. Reliance was also placed by
Mr.Behera on the decision of this Court in W.P(C) No.8414-8416/2006
titled as Union of India & Ors v. Vinod Kumar decided on 26th October,
2009; W.P(C) No.13894/2009 titled as Union of India & Ors v. Shri Ram
Kishan decided on 23rd December, 2009 and W.P(C) No.506/2010 titled
as Union of India & Ors v. Babu Lal Meena decided on 25th January,
2010.
11. The learned counsel for the petitioner cannot refute the decision
of the Supreme Court in Mahabir Singh & Ors (Supra), holding that the
casual labour card need not to be approved for employment of casual
workers. If that be so there was no necessity for the respondent to forge
the casual labour card. Even the enquiry officer and the disciplinary
authority have held that there is no direct evidence against the
respondents. If there is no direct evidence, what is the evidence in order
to show that the respondents had obtained the bogus casual labour
cards. The mere statement of Jhelum Singh, as has been emphasized
by the petitioner is not sufficient. Rather it cannot be construed as
evidence unless it could be proved on the basis of the record of the
petitioner that the respondents had not been employed as a causal
labour during the relevant period. Nothing of substance has been
shown by the learned counsel for the petitioner on the basis of which
applying the principles of preponderance of probability it can be
W.P.(C) Nos.13638, 13625, 13626, 13629,
inferred that the respondents had forged the bogus casual labour card
or obtained them and they would have been benefited from the same.
12. The respondent would forge the bogus casual labour card only if
they had not worked during the period they were alleged to have been
employed as a casual labour. If the respondent had not been employed
as a casual labour this would be reflected from the documents which
were sought by the respondents which included pay rolls, muster rolls,
personal files, assumed duty register etc. The petitioners had not
produced these documents nor had disclosed any cogent reason for not
producing the same. Rather in Ram Kishan (Supra), the Tribunal had
set aside the enquiry proceedings on account of inordinate delay and on
account of not producing these relevant documents which are muster
rolls, attendance register of the relevant period in case of Khalasi under
Northern Railways who were also accused of forging the casual labour
card and had set aside the enquiry proceedings which order was upheld
by this Court in W.P(C) 13894/2009 titled as Union of India & Ors v.
Shri Ram Kishan. Even in Vinod Kumar (Supra), it was held that non
production of casual labour register and payment vouchers etc which
were sought by the persons accused of forging the casual Labour card,
it was held that it would be denial of principles of natural justice and
since the relevant documents were not available, the enquiry could not
proceed against such employees who were alleged to have forged the
W.P.(C) Nos.13638, 13625, 13626, 13629,
documents. It was held that the petitioner, Union of India could not be
allowed to short circuit the procedures as whether the casual Labour
cards were forged or not could be ascertained only from the documents
for the relevant period showing whether such employees were employed
as a casual Labour or not and not merely on the basis of oral statement
of an employee of the petitioner.
13. The plea of the learned counsel for the petitioner that the burden
to prove, that the casual Labour card was not forged was on the
respondent, cannot be accepted in the present facts and circumstances.
The Apex Court in the case of Mahabir Singh & Ors (Supra), has already
held that casual labour card was not to be approved for employment of
casual workers and in the circumstances, if the allegation of forging the
casual Labour card was made by the petitioners, the petitioner ought to
have produced the relevant documents for the relevant period to show
that they were not employed as a casual Labour during that period. In
the circumstances, it could not be held that the burden was on the
respondents. It is apparent in the facts and circumstances that the
burden was on the petitioner which the petitioner failed to discharge
and in the circumstances, the reasoning of the Tribunal and setting
aside the orders imposing punishment cannot be faulted.
W.P.(C) Nos.13638, 13625, 13626, 13629,
14. The plea of the petitioner that since the scope of judicial review is
limited and, therefore, the Tribunal could not have interfered with the
decision of the petitioner also cannot be accepted in the present facts
and circumstances as there should have been some cogent or reliable
evidence to prove the charge against the respondent that they had
forged the casual Labour card. Although the charge in the departmental
proceedings is not required to be proved like a criminal trial that is
beyond all reasonable doubts, however, while analyzing the evidence
and documents to prove the charge, the petitioner could not take into
consideration of irrelevant facts nor could refuse to consider the
relevant facts. The decision of the petitioners could not be based on the
assumptions nor the burden of proof could be shifted to the respondent.
In the entirety of facts and circumstances, especially the finding of the
Tribunal that there is no direct evidence against the respondents to
obtain appointment by bogus casual service merely because the
respondents were beneficiary and as the presumptions have been
drawn by the petitioner without any basis, the findings of the Tribunal
cannot be held to be suffering from any illegality or irregularity or such
perversity which will require correction by this Court. The Tribunal's
observation that Rule 27 of the Railway Rules has been violated as no
reasons have been disclosed while passing the order by the revisional
authority also cannot be faulted in the facts and circumstances. In the
circumstances, the decision of the Tribunal to set aside the punishment
of compulsory retirement imposed upon the respondents cannot be
W.P.(C) Nos.13638, 13625, 13626, 13629,
faulted nor the decision of the Tribunal can be held to be vitiated on
any of the grounds raised by the petitioner.
15. The learned counsel for the petitioner has also contended that
even if the decision of the Tribunal in setting aside the punishment
order is justifiable, while permitting the petitioner to take up the
enquiry proceeding from the stage of initiation of enquiry by appointing
an officer other than from the vigilance department and thus permitting
a fresh enquiry by the petitioner, could not grant consequential benefits
to the respondents as the same will be contrary to the ratio of the
decision of the Supreme Court in U.P.State Textile Corpn. (Supra). It is
contended that whether the respondents are entitled for consequential
benefits or not is to be determined in the fresh enquiry which the
petitioner has been allowed to conduct.
16. The learned counsel for the respondent does not dispute the ratio
of the Supreme Court in case of U.P.State Textile Corpn. and contends
that whether the respondent shall be entitled for all the consequential
benefits till the date of setting aside the punishment order by the
Tribunal by its order dated 18th September, 2009 be decided during the
enquiry to be initiated by the petitioner by appointing an enquiry officer
other than from the vigilance department. He however, contends that
W.P.(C) Nos.13638, 13625, 13626, 13629,
since the proceedings are pending for a long period, the time be fixed for
the petitioner to conclude the fresh enquiry. The learned counsel for the
respondents also submitted that in view of the ratio of U.P.State Textile
Corpn Ltd (Supra), the respondent shall be deemed to have been
reinstated for the purpose of holding a fresh enquiry and shall be
entitled for all the benefits of reinstatement.
17. Therefore, in the facts and circumstances and for the foregoing
reasons the order of the Tribunal dated 18th September, 2009 impugned
by the petitioner is sustained to the extent of setting aside the
punishment imposed on the respondents of compulsorily retiring them.
However, the decision of the Tribunal dated 18th September, 2009
granting consequential benefits till the date of the order of the Tribunal
is set aside. The petitioner shall be entitled to take up the proceedings
from the stage of initiation of enquiry by an enquiry officer other than
the officer from the vigilance department in accordance with law and
shall conclude the enquiry positively within six months considering the
facts and circumstances of this case. The respondent shall be deemed
to be reinstated from the date of the order of the Tribunal as a result of
setting aside of earlier enquiry proceedings and on reinstatement from
the date of the order of Tribunal they will also be entitled for benefits in
accordance with law and rules and regulations. Considering the facts
and circumstances it is clarified that the enquiry be concluded by the
W.P.(C) Nos.13638, 13625, 13626, 13629,
petitioner within six months and this time shall not be extended. The
question of grant of wages and all the consequential benefits till the
date of the order of the Tribunal dated 18th September, 2009 quashing
the earlier enquiry and punishment imposed shall also be decided in
the fresh enquiry by the petitioner. With these directions, the writ
petitions are disposed of. Parties are, however, left to bear their own
cost.
ANIL KUMAR, J.
MAY 20, 2010 MOOL CHAND GARG, J.
'rs'
W.P.(C) Nos.13638, 13625, 13626, 13629,
