Delhi High Court
Union Of India & Ors vs Gyan Dev Prasad on 6 August, 2015
$~01.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 702/2015
% Judgment dated 6th August, 2015
UNION OF INDIA & ORS ..... Petitioners
Through : Malaya Kumar Chand, Adv.
versus
GYAN DEV PRASAD ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J (ORAL)
1. Present petition has been filed by the petitioners under Articles 226 and
227 of the Constitution of India seeking a writ of certiorari or any other
writ, order or direction thereby setting aside the Order dated 15.7.2014
passed by Central Administrative Tribunal (hereinafter referred to as
"Tribunal") in O.A.No.2216/2013 and thereby upholding the charge sheet
dated 13.12.2004, the order dated 5.1.2012 passed by Disciplinary
Authority, the order dated 22.8.2012 passed by Appellate Authority and
the order dated 20.3.2013 passed by Revisional Authority, which are
claimed to be illegal and contrary to the Rules by the respondent.
2. The necessary facts to be noticed are that the respondent, Sh.Gyan Dev
Prasad approached the Tribunal by filing O.A.No.2216/2013 challenging
the Order dated 13.12.2004, the report of the inquiry officer dated
31.5.2011, order imposing penalty dated 5.1.2012, order passed by the
appellate authority dated 22.8.2012 and the order passed by the
Revisionary Authority dated 20.3.2013 claiming, inter alia, that they are
illegal and contrary to the Rules.
3. The respondent was posted as an Enquiry and Reservation Clerk at
Faridabad Station under the Northern Railways. He was served with a
Memorandum dated 16.11.2004/13.12.2004 proposing to hold an inquiry
against him under Rule 9 of the Railway Servants (Discipline and Appeal)
Rules, 1968.
4. On 13.06.2007, an Inquiry Officer was nominated. The report of inquiry
was submitted on 31.5.2011. The Disciplinary Authority by an order
dated 5.1.2012 imposed a penalty on the respondent herein of "reduction
in pay at initial stage in same time grade i.e., Rs.5200/- in Rs.5200-20200
+ Grade pay for a period of 5 years with cumulative effect. By an order
dated 22.08.2012, after considering mercy plea of the respondent, the
Appellate Authority took a lenient view and ordered reduction in penalty
to "reduction in pay by initial stage in the same time scale from 5 years to
3 years with cumulative effect". On a revision filed, by an order dated
20.3.2013, the Revisional Authority ordered further reduction in penalty
to "reduction in pay to initial stage in the same time scale for a period of
one year with cumulative effect".
5. The Tribunal has allowed the said O.A. and quashed the orders so passed
against the respondent, which has forced the petitioner to approach this
Court.
6. Learned counsel for the petitioners contends that the impugned order
dated 15.7.2014 passed by the Tribunal is illegal and the same is liable to
be set aside. It is further contended that no allegations of bias were ever
raised by the respondent and further the Tribunal has failed to take note of
the fact that misuse of Circular Tour Ticket (CTT) by the respondent
resulted in defrauding the Railways. Counsel further submits that the
Tribunal has failed to consider the report of the inquiry officer and the
reasoning in the order of penalty. The Tribunal has also failed to consider
that the representation of the respondent was rejected by the appellate
authority and the revisional authority. It is further contended that a
complete fair procedure was followed by the Railways and the
misconduct of the respondent stands duly proved.
7. We have heard learned counsel for the petitioners and also carefully
examined the impugned order dated 15.7.2014 passed by the Tribunal.
8. At this stage, we may note that the respondent had approached the
Tribunal raising the following pleas that:
(i) the relevant documents listed along with the memorandum
were not supplied to him, thus, depriving him of an
opportunity to make an effective defence statement.
(ii) Sh.M.K. Sharma, an officer from the Vigilance Department,
was appointed as an Inquiry Officer, who was requested that
relevant documents be supplied to the respondent but despite
the matter being adjourned from time to time the documents
were not supplied to him. Subsequently, Sh.Yogesh Sharma
was appointed as an Inquiry Officer in place of Sh.M.K.
Sharma, and the said, Sh.Yogesh Sharma, was also from the
Vigilance Department.
(iii) the charges levelled against the respondent were absolutely
vague. There was no specific charge against him except that
"He misused the official capacity with dishonest motive and
facilitated the passenger in defrauding Railways by violating
the Railway Rules while neither the Inquiry Officer nor
Disciplinary Authority had mentioned the relevant Rule,
which had been violated by the respondent". The Inquiry
Officer has failed to prove that the appellant (respondent
herein) had misused his official capacity with dishonest
motive.
(iv) the respondent had also placed reliance on the report of the
revisionary authority wherein it was observed that there were
only procedural lapses and careless working on the part of
the respondent herein.
(v) the Revisionary Authority had specifically held that neither
any malafide nor charge alleged of connivance had been
established.
(vi) respondent had also complained before the Tribunal that both
the Inquiry Officers, who were appointed, belonged to the
Vigilance Department of the Railways and, thus, the inquiry
conducted by them was not fair as it was their endeavour to
somehow prove the charges levelled against him by other
Vigilance Officers.
9. The learned Tribunal while passing the impugned order has taken note of
the judgment rendered in the case of Union of India v. Prakash Kumar
Tandon, reported at 2009 2 SCC 541, wherein it was held as under:
"12. 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."
10. It is not a matter of dispute that in this case also the inquiry was
conducted by Mr.M.K.Sharma and Mr.Yogesh Sharma who were two
Vigilance Officers. Thus, in our view, the Tribunal has rightly rendered a
finding that the inquiry conducted by them was not fair.
11. We have also examined the Memorandum of Charge and find that no
Rule has been stated therein, which has been violated by the respondent
and, thus, in our view in the absence of reliance on specific rules the
respondent was put at a definite disadvantage during the inquiry
proceedings.
12. We may also note that the respondent had demanded the following
documents as he claimed that no Rules governing allegations made
against him were available:
S.NO. Document demanded Reason for not
permitting being not
relevant to charge as
:
1. Photocopies of complete rules No specific rule
specifying under which conditions number indicated in
free EFT is issued. the list.
2. Photocopies of relevant No specific rule
rules/Circular issued if any number indicated in
restraining the ERC. the list.
3. Photocopies of the direction/rules No specific rule
for making the endorsement on the number indicated in
CTT. the list.
4. Photocopy of the direction/rules No specific rule
got noted by the CO. number indicated in
the list.
5. Photocopy of rules taught to the No specific rule
reservation clerk. number indicated in
the list.
6. Photocopy of rules taught to the No specific rule
TTE for checking of genuineness number indicated in
of fake ticket. the list.
7. Photocopy of rules, which No specific rule
provides the methods/system to number indicated in
verify the genuineness of CTT. the list.
8. Photocopies of the No specific rule
rules/instructions of type of frauds number indicated in
running. the list.
9. Photocopies of MR i.e. Rs.8900/- No specific MR
fare of fake CTTs No.575835 and number indicated in
575922 for the loss. the list.
13. But none of the documents were supplied to him on the ground that no
such rules governing them were in existence.
14. The Tribunal has also taken note of the fact that the respondent had
submitted that the Inquiry Officer did not take into consideration the
defence of the respondent not to hold him guilty in the absence of any
specific Rule. The submissions were included in the report which reads as
under:
"a. Rule Violated: CO is not obliged issuing a ticket to a
passenger unless there are any guidelines, circular/orders issued
by the competent authority for the staff. "There is no rule available
in this office at present as mentioned by CO in his request for add.
Documents". Moreover, the alleged violated rules were not
adduced during the course of entire proceedings by any of the
officers, i.e., the DA, PO and PW-2. It may be appreciated under
the above circumstances how the case could be contested by the
poor employee to save his skin from being blamed, hence the
charge is not made out at all."
15. Having regard to the settled position of law as laid down in the case of
Union of India vs. Prakash Kumar Tandon (supra) the Tribunal has
correctly reached a conclusion that in a departmental proceeding, fairness
and adherence to the principle of natural justice are two essential
requirements.
16. The Supreme Court of India in the case of Union of India vs. Prakash
Kumar Tandon (supra) has also observed that even though strict Rules
of evidence are not applicable in departmental inquiry proceedings, the
allegations against the delinquent officer must be established by such
evidence acting upon which a reasonable person with objectivity may
arrive at a finding against the delinquent officer [Also see 1999 (5) SCC
762].
17. The Tribunal has also taken note of the observations made by the
Supreme Court of India in the case of Union of India v. J. Ahmed,
reported at 1979 (2) SCC 286, wherein it has been held by the Apex Court
in clear terms that negligence or inefficiency in performance of duty
would not amount to misconduct. It was also held that an act or omission
or lack of efficiency or failure to attain highest standard of efficiency in
discharge of duty attached to public office would ipso facto not constitute
misconduct. The Apex Court again in its judgment rendered in the case of
Inspector Prem Chand v. Government of NCT of Delhi and Others,
reported at 2007 (4) SCC 566 held that error of judgment or negligence
simpliciter would not be misconduct. The respondent in our view had
raised a reasonable and cogent defence as detailed in para 12 above but
the same though noted by the IO was not considered at all.
18. Having carefully examined the judgment passed by learned Tribunal, we
find no grounds to entertain the present petition, the same is without any
merit and is dismissed accordingly.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
AUGUST 06, 2015
msr
