ORDER
A.S. Sanghvi, Member (J)
1. All these O.As. involve the same question of law and fact and the same relief is prayed for in all of them. We have heard them together and are disposing them of by this common order.
2. This is the third round of litigation so far the applicants are concerned. All the applicants were initially engaged as casual labourers between years 1983 to 1987. They were conferred with temporary status and were subsequently, regularised. However, after they were regularised on receiving some intimation that they had obtained their engagement as casual labourers on fake labour cards, the Railway Administration initiated an inquiry against them. Charge sheets were issued to all the applicants in April, 1988 and the inquiry proceeded on the charges levelled against them. The Inquiry Officer in his report held that the charges against the applicants were proved and also observed that they were guilty of serious misconduct etc. The Disciplinary Authority accepted the findings of the Inquiry Officer and imposed the penalty of removal from service on all the applicants. After unsuccessful appeal etc. the applicants challenged the penalty order by filing O.A. No. 69 of 93, 254 of 93, 255 of 93 etc. in this Tribunal. The Tribunal vide its order dated 16.7.98 upholding the contentions of the applicants that refusal to call four witnesses for examination by the Inquiry Officer had resulted in serious prejudice to the defence of the applicant and that this alone was sufficient reason to hold that the penalty of removal from service could not be sustained, quashed and set aside the orders of the Disciplinary Authority and the Appellate Authority and directed the respondents to reinstate the applicants in service as early as possible. The respondents challenged this decision of the Tribunal before the Hon’ble High Court of Gujarat by filing special CAs. No. 7942 to 7955 of 1998 and while disposing of all the SCAs. Vide judgment dated 9.4.99 the Hon’ble High Court has observed as under:
“For the foregoing reasons, in our opinion all the petitions deserved to be partly allowed. So far as the reinstatement is concerned, the order is not disturbed and the direction is confirmed. The authorities will reinstate all the respondent-workmen on or before 30th June, 1999, So far as closing and dropping of inquiry is concerned, it would be open to the Railway Administration to hold inquiry after allowing the requirement of law and observing the principles of natural justice, if the Railway Administration so wishes. If such inquiry is proceeded with, it will be disposed of as expeditiously as possible, preferably before 31st December, 1999. The respondents-workmen would also co-operate with the said inquiry.”
3. It may be noted that the Hon’ble High Court while giving the above directions had not disturbed the observations of the Tribunal pertaining to the non-examination of the 4 witnesses resulting into the serious prejudice to the defence of the applicants. It appears that pursuant to the directions of the Hon’ble High Court, the Railway Administration took a decision to continue with the inquiry against the applicants and a fresh Inquiry Officer was appointed. The inquiry was started on 16.9.99 and the Inquiry Officer after concluding the inquiry submitted his report to the Disciplinary Authority and the Disciplinary Authority on acceptance of this report imposed the penalty of removal from service on all the applicants vide his order dated 29.12.99. We may point out that in the meantime, the applicants had approached this Tribunal by filing these O.As. on 24.12.99 complaining about the non-observance of the principles of natural justice by the Inquiry Officer, and non-observing the directions of the Tribunal and High Court and flouting the orders of the High Court by the Inquiry Officer. Interim relief was prayed to restrain the Disciplinary Authority from passing any order of punishment on the basis of the Inquiry Officer’s report. Since the inquiry was concluded at the relevant time and only the Disciplinary Authority’s order was awaited, the Tribunal had refused to grant any interim relief as prayed for by the applicants. Subsequently, vide order dated 29.12.99 the Disciplinary Authority has imposed the punishment of removal from service on all the applicants. The applicants after preferring departmental appeal on dated 11th November, 2000 against the order of the Disciplinary Authority and being unsuccessful in the appeal, have challenged the orders of the Disciplinary Authority as well as Appellate Authority by amending the O.As. They have contended inter alia that the Inquiry Officer as well as the Disciplinary Authority have again proceeded with the inquiry in the same manner and in spite of the observations of the Tribunal and Hon’ble High Court, have denied the prayer of examining 4 witnesses of the applicants. They have thereby again violated the principles of natural justice and hence the whole inquiry deserves to be quashed and set aside.
4. The respondents in their identical replies have contended inter alia that pursuant to the Hon’ble High Court’s direction in SCA No. 7942 of 98, the authorities have completed the inquiry against the applicants and the applicants were terminated on 29.12.99. They have also contended that before the Disciplinary Authority could pass any order the applicants have approached this Tribunal and therefore these O.As. are premature. According to them, the charges levelled against the applicants of acquiring service in the Railway Workshop Dahod on the basis of forged casual labour card are established during the inquiry and the Disciplinary Authority has consequently issued fresh penalty orders of removal from service on the applicants. They have admitted that the applicants had requested to call DPM and others as witnesses. They were not cited as witnesses in the charge sheet and also not relevant in the inquiry and hence they were not called. They have also admitted that the applicants have preferred appeal on dated 3.7.92 against the final order of the Disciplinary Authority and further contended that the said appeal was rejected by the Appellate Authority by order dated 30th September, 1992. They have conceded that the applicants had given the names of the witnesses for cross examination on dated 4.10.99 but those witnesses were not cited in the charge sheet and since as per the rules. Enquiry Officer has the jurisdiction to decide as to how and in which manner the defence witnesses are helpful in DAR case to the delinquent, the E.O. being not convinced with the justification given by the applicants, did not concede to their demand. They have contended that this has not resulted into violation of the principles of natural justice. According to them, the Inquiry Officer has acted as per the rules and has not exceeded his jurisdiction over the High Court’s judgment. Referring to the contentions of the applicants in Paras 19(a) and 19(b) of the amended O.A, the respondents have again reiterated that the applicants were advised to say in which manner their defence witnesses would be helpful in their cases, but the applicants’ justification was not acceptable to the E.O. and as such the request of the applicants was rejected. Referring to the Railway Electrification department reinstating some similarly situated casual labourers, they have contended that the same policy cannot be adopted by them as the Railway Electrification is a different organisation and the mistake committed in one case cannot be allowed to be repeated. They have prayed that the O.A. be dismissed with costs.
5. We have heard the learned Counsels of both the parties and carefully considered the rival contentions.
6. The above narrated facts make it abundantly clear that the inquiry held in the charges levelled against the applicants by charge sheet dated 20th April, 1988 had come to be quashed and set aside by the Tribunal in O.A 69 of 1993 and others on the only ground that the inquiry was vitiated on account of the non-examination of the 4 witnesses cited by the defence. The Tribunal had held that the refusal to call these 4 persons as witnesses has caused serious prejudice to the defence of the applicants and this alone was sufficient reason to hold that the penalty of removal from service cannot be sustained. The Tribunal had in no uncertain terms held that the non-examination of these witnesses had resulted into the violation of the principles of natural justice and vitiated the whole inquiry. The Tribunal had even refused to remand back the matter to the Inquiry Officer as the charge sheet was issued in 1988 and number of years had passed since then. One of the applicants Mr. P.D. Mishra had also died during the pendency of the O.As. The Hon’ble High Court in special C.A. No. 7942 of 1998 and others while upholding the finding of the Tribunal that the principle of natural justice was violated and the inquiry was vitiated observed that so far as the order passed by the CAT for reinstatement is concerned, in the facts and circumstances, it is not disturbed. The Hon’ble High Court then passed the following order:
“So far as the reinstatement is concerned, the order is not disturbed and the direction is confirmed. The authorities will reinstate all the respondents -workmen on or before 30th June, 1999. So far as closing and dropping of inquiry is concerned, it would be open to the Railway Administration to hold inquiry after following the requirements of the law and observing the principles of natural justice, if the Railway Administration so wishes. If such inquiry is proceeded with, it will be disposed of as expeditiously as possible, preferably before 31st December, 1999. The respondents-workmen would also co-operate with the said inquiry.”
7. These orders of the Hon’ble High Court clearly indicate that the Inquiry Officer was required to proceed with the inquiry by observing the principles of natural justice. It is to be borne in mind that the inquiry was held to be vitiated by the Tribunal on the ground that the 4 witnesses-who according to the applicants were material witnesses as they had given them appointment in the service were not permitted to be examined by the Inquiry Officer. This finding of the Tribunal has not been set aside by the Hon’ble High Court. The Hon’ble High Court remanded the matter back to the Inquiry Officer only with a view to see that the prosecuting agency is given an opportunity to rectify the error by allowing the defence to lead necessary evidence and the principles of natural justice is not violated. The Tribunal had refused to remand back the matter to the I.O. on the ground that the number of years had elapsed between the initiation of the inquiry and the finalisation of the same and that no purpose would be served by remanding back the matter to the Inquiry Officer. The Hon’ble High Court had however, taken a view that the inquiry was required to be remanded back so that the technical defect could be rectified and directed the Railway Administration to hold the inquiry after allowing the requirement of law and observing the principles of natural justice with a rider also that the same may be proceeded with only, if the Railway Administration so wishes. It appears that the Railway Administration was inclined to proceed further with the inquiry, but the Inquiry Officer as well as the Disciplinary Authority had very little concern about observing the principle of natural justice. The reply of the respondents makes it clear that the applicants had demanded the examination of the 4 witnesses but the demand of the applicants was turned down by the Inquiry Officer on the ground that they were not relevant witnesses. We are really amazed with the way in which the Inquiry Officer and the Disciplinary Authority have functioned in this inquiry. Even when the Tribunal had pointed out in O.A. 69 of 1993 etc. that non-examination of these 4 persons as witnesses had resulted into vitiation of the whole inquiry and that the penalty of removal from service could not be sustained only on this ground alone, the Inquiry Officer as well as the Disciplinary Authority have shut their eyes as well as ears to the demand of the applicants for examination of these 4 witnesses. Sub-rule 19 of Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 provides for the statement of the defence of the delinquent and Sub-rule 20 relates to the evidence to be adduced by the delinquent. It lays down as under :
“The evidence on behalf of the Railway servant shall then be produced. The Railway servant may examine himself in his own behalf, if he so prefers. The witnesses produced by the Railway servant then be examined by or on behalf of him and shall be cross-examined by or on behalf of the Presenting Officer, if any. The Railway servant shall be entitled to re-examine the witnesses on any point on which they have been cross-examined, but not an any new matter, without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit.”
8. It can be seen from the bare reading of the above Sub-rule 20 that it nowhere provides for the delinquent to justify the examination of the witnesses in his defence. The Inquiry Officer is also not given any powers to consider whether the evidence of the proposed witnesses is relevant or not. In spite of this position, the Inquiry Officer has asked for the justification of the examination of these 4 witnesses and then taken a view that the examination of the witnesses is not relevant. We are unable to understand under which provision the Inquiry Officer had concluded that justification for examining the defence witnesses was necessary and that he was given a power to decide the relevancy or irrelevancy of a particular defence witnesses. We also fail to understand how the Inquiry Officer had concluded that the 4 witnesses whom the applicants wanted to examine were not relevant for the purpose of inquiry. Unless and until he recorded their evidence, he could not have drawn any conclusion regarding the relevancy or irrelevancy of their evidence and hence it was not open for the Inquiry Officer to conclude that their evidence was irrelevant. The Disciplinary Authority unfortunately has also shut his eyes to this glaring defect in the inquiry proceedings, in spite of the fact that the Tribunal and the Hon’ble High Court had given specific direction in this regard. The Disciplinary Authority in every sentence of his order has mockingly used sentence that ‘in pursuance to the directions of the Hon’ble High Court regarding the principle of natural justice the inquiry is conducted’. What is surprising is that the Disciplinary Authority has gone to the extent of stating in his order that the delinquents were asked whether they were willing to produce any witness or evidence in their defence and they had not produced any witnesses or evidence which would go to establish that their claim of work with PWI Valsad between dates 1.3.82 to 15.1.83 was correct. The Disciplinary Authority has conveniently forgotten that applicants had not only orally asked for the examination of the 4 witnesses who had appointed them but had also given in writing that they be called as their witnesses and be examined as their defence witnesses. It was the duty of the Inquiry Officer to summon those witnesses and examine them as the defence witnesses. The proceedings of the Inquiry Officer dated 4.10.99 suggest that the delinquent was asked about the defence witnesses or production of the evidence and the delinquent had replied that he wanted to examine:
1. Mr. R.P. Madan
2. Mr. P.D. Mishra
3. Mr. P.N. Mishra and
4. Mr. Phool Singh
Admittedly, these witnesses were not summoned and not examined as the defence witnesses by the Inquiry Officer. In spite of this position, the Disciplinary Authority in his order has gone to the extent of saying that the delinquent had not produced any witnesses or not produced any evidence in support of their case and that the inquiry was conducted it) compliance with the principles of natural justice and in compliance with the directions given by the Hon’ble High Court. In view of non-production of any evidence by the delinquent, the charges levelled against them were treated as proved. The Disciplinary Authority has also not considered that the Tribunal had already held in the earlier challenge of the orders that the examination of the 4 witnesses cited by the delinquent was necessary and that their non-examination had clearly vitiated the whole inquiry proceedings. We find that in spite of the directions of the Tribunal as well as Hon’ble High Court the Inquiry Officer as well as the Disciplinary Authority have not mended their ways and have not thought fit to give an opportunity to the defence to examine those witnesses. The conclusion is therefore inevitable that their refusal to allow the applicants to examine those witnesses has clearly vitiated the fresh inquiry also. When pointed out, Mr. R.N. Singh learned Counsel for the respondents has prayed for the remand of the matter back to the Inquiry Officer. We note that earlier in O.A. No. 69 of 93 and other O.As. the Tribunal had refused to remand the matter to the Disciplinary Authority on the ground that it had been long time that the inquiry was continuing against these poor persons. The Hon’ble High Court had however considered that request and remanded the matter. The result has however been the same. Neither the Inquiry Officer nor the Disciplinary Authority has shown any consideration for the plight of this lowly paid employees of the Railways. We had therefore shown inclination to remand the matter to the Inquiry Officer on condition that the back wages of all these applicants will be borne by the Disciplinary Authority. Mr. Singh has however not agreed to this suggestion. We therefore do not deem it fit to remand the matter back again to the Disciplinary Authority or Inquiry Officer. The applicants cannot be made to suffer the agonies of hanging swords on their head for such a long period. For no fault of their, the Inquiry Officer as well as the Disciplinary Authority have without any concern whatsoever about their fate and the inquiry proceedings itself, continued to behave in most arbitrary manner and placed them in a pitiable condition. Least said is better so far Appellate Authorities of the Railways arc concerned as we have come across so many disciplinary cases where the Appellate Authorities have acted mechanically and without application of mind. Had the Appellate Authority considered the directions given by the Tribunal as well as the Hon’ble High Court, perhaps he could have retrieved the situation to some extent by remanding the matter back to the Disciplinary Authority but unfortunately he also has not taken any trouble to even read the judgment of the Tribunal and the Hon’ble High Court.
9. We have therefore no hesitation in concluding that the inquiry proceedings against the applicants were vitiated on account of the refusal of the Inquiry Officer to allow the applicants to examine the 4 witnesses in their defence and since the whole inquiry is vitiated, the punishment imposed of removal from service on the applicants deserves to be quashed and set aside and the applicants are required to be directed to be reinstated in service. We therefore allow all the O.As. and quash and set aside the orders of the Disciplinary Authority as well as Appellate Authority and direct the respondents to reinstate the applicants of all O.As. except that of O.A. 198 of 2000, with immediate effect with 50% backwages. The period from the date of the removal from service till the date they are reinstated shall count for the purpose of continuity in service for all purposes. With the above direction all the 13 O.As. stand disposed of.
10. The respondents are directed to bear the cost of Rs. 2000 for each O.A. Since the applicant Jagdish Chandra D of O.A. 198 of 2000 has died during the pendency of the O. A., his legal representative shall be entitled to all the benefits accruing in view of this order.
11. Copy of this order be placed in each O.A for record purpose.