ORDER
S.K. Hajra, Member (A)
1. Disciplinary enquiry was instituted against the applicant who was Gangman of the Railways by Memorandum dated 22.7.2000 (Annexure A-1). The following charges were framed against the applicant:
“Shri C. Bettappa, Gangman of SSE/PWAY/SBC Section has committed misconduct in that he has married to Smt. Lakshmi, as second wife having first wife Smt. Muniyamma, alive. This is against the Railway Servant Conduct Rule, 1966.
Thus the said Sri C. Bettappa, Gangman of SSE/PWAY/SBC Section is violated Rule 21(1) and (2) and Rule 3(i)(iii) of Railway Services Conduct Rules, 1966.
Shri C. Bettappa, Gangman of SSE/PW AY/SBC Section has committed misconduct in that he has married to Smt. Lakshmi as second wife having first wife Smt. Muniyamma alive. This is against the Railway Service Conduct Rules, 1966.
2. The Inquiry Officer (IO) who conducted the enquiry submitted his report dated 29.10.2000 (Annexure A-6) stating that the charges against the applicant had not been proved, copy of which was supplied to applicant vide communication dated 7.11.2000 (Annexure A-7). Another IO was appointed to enquire into the charges against the applicant by order dated 21.3.2001 (Annexure A-8). The second IO submitted a report dated 4.7.2001 (Annexure A-13)) stating that the charges against the applicant stood proved., The Disciplinary Authority (DA) passed an order dated 10.10.2001 (Annexure A-14) imposing on the applicant the penalty of removal from service with immediate effect. The applicant filed an appeal to the Appellate Authority (AA) seeking quashing of the penalty imposed on him. The AA by order dated 6.2.2002 (Annexure A-17) rejected the appeal and confirmed the penalty. The revision petition dated 26.2.2002 of the applicant was rejected by the Revisional Authority (RA) by order dated 3.7.2002 (Annexure A-19). Aggrieved by the orders of the Disciplinary, Appellate and Revisional Authorities, the applicant filed this O. A. seeking quashing of the removal order dated 10.10.2001 (Annexure A-14) and the orders of the AA dated 6.2.2002 and RA dated 3.7.2002 (Annexures A-17 and A-19) respectively with a direction to the respondents to reinstate him in service with all consequential benefits such as continuity of service, back wages and other consequential benefits.
3. The learned Counsel for the applicant argued as follows:
4. The applicant denied the charge of bigamy by letter dated 28.7.2000. The applicant appeared before Shri Hanumanthappa Rao, Inquiry Officer and participated in the enquiry. The enquiry report which was submitted on 29.10.2000 cleared him of the charges framed against him. To the applicant’s surprise, another IO was appointed by order dated 21.3.2001 (Annexure A-8) without assigning the reasons for non-acceptance of the first enquiry report dated 29.10.2000 and without giving findings on the charges in contravention of the principles of natural justice and Railway Servants (Discipline and Appeal) Rules. This apart, the respondents in the reply statement stated that de-novo enquiry was instituted, which was not permissible according to the rules. The second IO asked the applicant to sign a blank paper stating that he was adjourning the proceedings and date would be intimated to him in the future date. The applicant being illiterate signed the blank paper. The applicant later learnt that his admission of guilt was recorded in the said blank sheet converting it into daily proceedings illegally with a deliberate intent to substantiate the charges against him. These contentions have not been disputed by the respondents in their reply. The D.A. without issuing any show cause notice to the applicant passed the impugned order removing the applicant from service. The AA, without application of mind, rejected the appeal of the applicant. The RA rejected the revision petition of the applicant arbitrarily. The impugned orders which were passed based on ade-novo enquiry instituted in violation of rules are illegal, arbitrary and constitutes gross violation of the principles of natural justice.
5. The learned Counsel for the applicant cited the judgment of the Hon’ble Supreme Court in AIR 1996 SC 255, Ram Kishan v. Union of India and Ors. and AIR 1998 SC 2713=1999(1) SLJ 271 (SC), Punjab National Bank and Ors. v. Kunj Behari Misra in support of his contentions that Disciplinary Authority in case of disagreement with the Inquiry Officer on article of charge is required to record its reasons and give findings on the charge/charges.
6. The learned Counsel for the respondents argued as follows:
7. Disciplinary enquiry was instituted against the applicant on the charge of bigamy. Shri Hanumanthappa Rao, IO, who conducted the enquiry submitted a report concluding that the charges levelled against the applicant were not proved. The applicant was given an opportunity to submit his report against the enquiry report. On perusal of the enquiry report, the D.A. found several lapses in the enquiry like non-examination of witnesses etc. Therefore, he appointed Shri Rajanna, an IO, to conduct de-novo enquiry. The applicant, who appeared before the IO, accepted the charges framed against him. The applicant himself admitted the charges in his written statement submitted on 4.7.2001 (Annexure R-1). The allegation that the applicant was forced to sign a blank paper was an afterthought. The enquiry was conducted in keeping with the rules and procedure. The misconduct committed by the applicant was proved beyond doubt on the basis of records and according to his own admission. Therefore, the O. A. is liable to be dismissed.
8. We heard both sides and perused the connected records. It is undeniable that the applicant by his letter dated 28.7.2000 denied the charge that he had married Smt. Lakshmi inspite of having his first wife Smt. Muniyamma (Annexure A-2). The IO, on completion of the enquiry submitted a report to the effect that the charges against the applicant had not been proved (Annexure A-6). The enquiry report was sent to the applicant along with letter dated 7.11.2000 seeking his representation, if any. Shri K. Rajanna was appointed by order dated 21.3.2001 (Annexure A-8) to enquire into the charges against the applicant without giving any reason in the order. The respondents in the reply statement contended that this was done to conduct a de-novo enquiry as there were some lapses in the enquiry conducted by Shri Hanumanthappa Rao (first IO). Rule 10(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 (Rules) reads as follows:
“(2) The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall there upon proceed to hold further inquiry according to the provisions of Rule 9 as far as may be.” (Emphasis supplied)
9. The DA did not remit the case to the IO for further enquiry. Contrary to Rule 10(2), he appointed another IO to enquiry into the charges afresh. Therefore, the order of the DA for a de-novo enquiry by another IO instead of remitting it to the IO first appointed without recording any reason violates Rule 10(2) of the Rules.
Rule 10(3) of the Rules reads as follows:
“(3) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any articles of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record, is sufficient for the purpose.” (Emphasis added)
10. The DA, who according to reply statement found some lapses in the enquiry conducted by the first IO, did not record any reason for its disagreement with the findings of the first IO in his enquiry report dated 29,10.2000 nor did it record any findings on the charges framed against the applicant. The Hon’ble Supreme Court in (supra) Ram Kishan v. Union of India and Ors. observed as follows:
“….. It is true, as rightly contended by the Counsel for the appellant, that the show cause notice does not indicate the reasons on the basis of which the Disciplinary Authority proposed to disagree with the conclusions reached by the Inquiry Officer. The purpose of the show cause notice, in case of disagreement with the findings of the Inquiry Officer, is to enable the delinquent to show that the Disciplinary Authority is persuaded not to disagree with the conclusions reached by the Inquiry Officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the Inquiry Officer. In that situation, unless the Disciplinary Authority gives specific reasons in the show cause on the basis of which the findings of the Inquiry Officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the Disciplinary Authority to agree with the conclusions reached by the Inquiry Officer. In the absence of any ground or reason in the show cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him” (Emphasis added)
11. The Hon’ble Supreme Court (supra) Punjab National Bank and Ors. v. Kunj Behari Misra held as follows;
“…. As a result thereof whenever the Disciplinary Authority disagrees with the Inquiry Authority on any article of charge then before it records it own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings.” (Emphasis added)
12. It is beyond doubt that the DA did not assign any reason for disagreeing with the findings of the first IO nor did it give its own findings on the charge/charges. The failure of the DA in assigning reasons for disagreeing with the confusions drawn by the first IO in enquiry report dated 29.10.2000 is gross violation of Rule 10(3) of the Rules and the law laid down by the Hon’ble Supreme Court in the aforesaid cases.
13. Apart from violation of Rules 10(2) and 10(3) of the Rules, the order of the DA is impaired by other infirmities. Though another IO was appointed for the alleged failure of the first IO to examine witnesses, no witnesses nor documents listed in the article of charges were examined by the second IO. It is true that the applicant was alleged to have admitted the charge in his written statement dated 4.7.2001 (Annexure R-2). In view of the conflicting statements made by the applicant, the second IO should have examined the listed witnesses and documents. But this was not done.
14. The second enquiry report was prepared without examining any witnesses or documents except the applicant. The de-novo enquiry according to the reply statement was ordered by the DA contrary to Rule 10(2) of the Rules for lapses like non-examination of witnesses etc. This apart, there is no reference in the impugned order of the DA that the report of the second IO was sent to the applicant. The failure to make available the report of the second IO based on which penalty order was passed constitutes violation of the principles of natural justice.
15. The impugned order dated 10.10.2001 (Annexure A-14) was further tainted by its reliance on materials which did not fall within the purview of the disciplinary proceedings. This is clear from the following excerpts of the impugned order dated 10.10.2001:
“Further, certificates issued by Headmaster, Govt. Kannada Primary School, Marur indicates that you have a daughter by name (A) Devamma (B) Sarasamma and one more daughter (totally 3). This is also confirmed from the certificates issued by Residents of (a) Progurupally, Gudupalli Mandal, Chittoor district and also from Secretary, Jakkarasaguppa Village Panchayat, Bangarpet Taluk.
Besides, this you have taken privilege pass 1999 in favour of Premamma daughter aged 14 years (D.O.B: 11.9.85) who is the daughter of Lakshmamma as deposed by II wife Smt. Lakshmamma vide letter dated 31.11.00, with this it is concluded that you have taken privilege pass for the children born to legally wedded wife Smt. Muniamma and also to the children born to Smt. Lakshamma.”
16. There is no material to show that the applicant was given an opportunity to examine these documents which were not listed among the list of documents. The report of the second IO is silent on production and examination of these unlisted documents. Thus, the reliance of the DA on documents which were not part of the enquiry further renders the order of the DA illegal.
17. In view of these grave lapses, the impugned order dated 10.10.2001 of the DA (Annexure A-14) is liable to be set aside. That being so, the orders dated 6.2.2002 of the AA(Annexure A-17) and dated 3.7.2002 of the RA (Annexure A-19) which upheld the order of the DA cannot stand.
18. For the reasons given above, the impugned orders dated 10.10.2001 (Annexure A-14), 6.2.2002 (Annexure A-17) and 3.7.2002 (Annexure A-19 of the Disciplinary Authority, Appellate Authority and Revisional Authority respectively are set aside. The respondents arc directed to reinstate the applicant in service within one month from the date of receipt of a copy of this order. The applicant will not be paid any back-wages but will be entitled to other service benefits including continuity of service etc. The O.A. is accordingly allowed. No costs.
Sd/-
Member (A)
Shri Mukesh Kumar Gupta, Member (J)
19. I have had the advantage of reading the order prepared by my esteemed brother, Member (Administration). I agree with the aforesaid order but wish to add some more reasons for the same conclusions which are as under:
20. The issue regarding difference between de-novo proceedings and further proceedings had come up for consideration before various Benches of this Tribunal in catena of cases. By following the judgment of Hon’ble Supreme Court in K.R. Deb v. The Collector of Central Excise, Shillong, (1971) 2 SCC 102, it has been held that “there is a world of difference between de-novo enquiry and further enquiry. In further enquiry, whatever omission was there in the enquiry which can be supplied as per rules, can be supplied by adducing further evidence. But if it is de-novo enquiry, what was recorded at the earlier enquiry would not from part of enquiry file which is likely to prejudice the Government servant facing the charge. If it is allowed, the Disciplinary Authority if he finds that the evidence at the enquiry is in favour of the charged officer, can wipe them off by ordering a de-novo enquiry to be commenced with a clean state.” That is not the legislative intent in framing the rules. [See (1974) 27 ATC 771, Somnath Sharma v. Union of India and Ors.]. A perusal of the order dated 21st March, 2001 (Annexure-A8) would show that another Inquiry Officer, Shri K. Rajanna, SE/PWAY/ MLO was appointed as Inquiry Officer despite the fact that the earlier Inquiry Officer vide his report dated 29.10.2000 (Annexure-A-6) had categorically recorded the finding that the charge was “not proved.” In fact vide communication dated 7.11.2000 (Annexure-A7), the said findings of the Inquiry Officer were made available to the applicant with a direction to submit his representation within 15 days of its receipt. There is no decision or reasons for disagreement mentioned in the said communication dated 7.11.2000. Similarly, the communication dated 21st March, 2001, appointing Shri Rajanna, does not record or convey any reason as to why it was necessary to appoint Shri Rajanna as Inquiry Officer, particularly, when earlier Inquiry Officer had submitted his findings. The said communication does not state whether it should be a de-novo enquiry or further enquiry. Form the proceedings conducted by Shri Rajanna, the second Inquiry Officer, it is clear that he proceeded with the enquiry afresh, which is not permissible. What-is permissible under Rule 10(2) of Railway Servants (Discipline and Appeal) Rules, 1968 is “further” enquiry. As such neither a fresh enquiry nor de-novo enquiry is permissible.
21. There is yet another violation of the law laid down by the Hon’ble Supreme Court, in the present case, it is well settled law that the principle of natural justice demands that the person against whom an action is proposed to be taken has to be given an opportunity of hearing, which must be an effective hearing and not a mere pretence. The said principle of natural justice also requires that the copy of the document if any relied upon against the party charged should be given to him and he should be afforded an opportunity to cross examine the witness and to produce his own witness in his defence. [See Chandramma Tiwari v. Union of India, 1985 Suppl. SCC 516-1988(1) SLJ 180 (SC)]. The Disciplinary Authority in the present case while passing the order dated 10.10.2001 (Annexure-A14) had specifically referred to certain documents which were not part of the charge memo dated 22.10.2000. A perusal of the records produced by the learned Counsel for the respondents shows that the said documents seem to have been sent to respondent-department after the submission of inquiry report, and were admittedly not formed part of Charge Memo. The charge Memo was not amended at any stage. As such, the Disciplinary Authority had relied upon certain documents which were not even listed under the Charge Memo. This action violates the principle of natural justice.
22. It is further well settled law as laid down in Raibareli Kshetriya Gramin Bank v. Bholanath Singh and Ors., (1997) 3 SCC 657 at page 659, para-6, that the “High Court, in the proceedings under Article 226 docs not act as an Appellate Authority but exercises within the limits of judicial power to correct the errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice”
(Emphasis supplied).
In my considered view, the procedure adopted by the second Inquiry Officer as well as Disciplinary Authority in passing the impugned penalty order dated 10.10.2001 has led to manifest injustice as well as violation of principles of natural justice.
23. There is yet another aspect which needs to be noticed i.e. that the Disciplinary Authority cannot appoint another official as Inquiry Officer to conduct the further enquiry. It is already noticed that the communication dated 21st March, 2001 has to be read as “afresh” Inquiry by a different Inquiry Officer. A coordinate Bench of this Tribunal in 1988(7) ATC 481, 5. Nagarajan v. General Manager, Southern Railway, Madras and Ors., in Paragraph-5 has held as under:
“Thus even if the Disciplinary Authority felt that certain necessary witnesses or documents were not examined and as such the inquiry was defective, the said authority could have remitted the case to the inquiring authority for further inquiry with a direction to look into specific aspects and submit a report. There is no provision in the Railway Servants (Discipline and Appeal) Rules for a re- enquiry into the same charges as the statutory discipline and appeal rules pertaining to the Railway servants do not contemplate action as has been ordered in the communication of 6,5.1984 by the Disciplinary Authority, in this case, we hold that it was illegal to have conducted the re-enquiry into the same charges with a different Inquiry Officer” (Emphasis supplied).
I may also note at this stage that the aforesaid judgment was rendered after noticing the law laid down by the Hon’ble Supreme Court in K.R. Deb’s case (supra). As such, appointment of Shri K. Rajanna as second Inquiry Officer vide communication dated 21.3.2001 was illegal and void. Consequently, the proceedings conducted by him and the orders passed thereon are also liable to be quashed and set aside.
24. In 1986(1) ATC 387, S.P. Bansal v. Union of India and Ors., a co-ordinate Bench of this Tribunal after considering the aforementioned judgment in the case of K.R. Deb, held that Rule 15(1) of CCS (CCA) Rules, which provision is pari materia to Rule 10 of Railway Servants (Discipline and Appeal) Rules, is not meant to support a de-novo enquiry again and again till the desired result is available and the said provision cannot be used to fill up the gap in the enquiry report.
25. In view of the above, I find that there has been not only gross violation of principles of natural justice, but the procedure adopted in the enquiry was unjustified and untenable which has led to manifest injustice also, to the applicant.