CWP No. 15080-CAT of 2004 v. Union of India & Ors.

etc. The petitioner, inter alia, challenged the aforementioned orders on the ground that he was denied a fair opportunity to defend himself, inasmuch as, the documents relied upon by the department in the departmental inquiry were withheld. A preliminary fact finding inquiry was conducted by the Commissioner of Railway Safety (CRS). Despite requests made by the petitioner, the CRS report was not supplied to him, whereas the same was relied upon by the C.W.P. No. 15080-CAT of 2004 3 respondents against the petitioner in the departmental inquiry. The petitioner further pleaded that the removal orders were passed by an authority who was not competent to act as Disciplinary Authority. The appellate order was non-speaking and against the provisions of Railway Servants (Discipline and Appeal) Rules, 1968. During the pendency of the O.A., even the review/revision application filed by the petitioner was also dismissed by the respondents, vide order dated 19.7.1991 and the petitioner, thus, amended the O.A. seeking quashing of that order. The Tribunal allowed the O.A., vide its order dated 19.2.1999 (Annexure A-4 with Annexure P-1), by holding as under:- “10. From the above discussion, we are of the opinion that not only the applicant has been denied a fair opportunity of defending himself as is required under the law, but the orders at Annexure A-1 to A-3 have to be quashed for the reasons that the removal order was passed by an incompetent authority and the appellate order is against the law laid down by the Hon’ble Supreme Court and the provisions of Railway Servants (Discipline & Appeal) Rules, aforementioned. The orders of the disciplinary authority, appellate authority and the revisional authority, mentioned above, are hereby quashed and set aside. The applicant will be reinstated in service by the respondents with all consequential benefits which are attached with such C.W.P. No. 15080-CAT of 2004 4 reinstatement, including payment of arrears of salary and allowances. Respondents will comply with these directions within a period of two months from the date of receipt of a copy of this order.

11. The above decision on merits is being given by us in our view that the objection of limitation taken by the respondents is without merit and as seen from the appellate order and the order passed on revision, the OA is within limitation.” It is claimed that no liberty was granted to the respondents to start a de novo enquiry or issuance of a fresh charge sheet. The petitioner was reinstated in service vide order dated

16.7.1999 (Annexure A-5 with Annexure P-1). The petitioner was due to retire from service on attaining the age of superannuation on

31.12.2003. However, 3½ months ahead of his retirement and after expiry of four years again a charge sheet was served upon the him on

21.8.2003 (Annexure A-1 with Annexure P-1). However, this time the CRS Report which was earlier relied upon against the petitioner was deleted from the list of documents. The respondents have resorted to hold a fresh inquiry against the petitioner after 16 years of the incident, which had taken place on 16.12.1987, and after five years of the judgment dated 19.2.1999, passed by the Tribunal. The petitioner again filed O.A. No. 1093-PB of 2003 before the Tribunal challenging the Memorandum of charge sheet dated 21.8.2003 on the ground that the same could not be issued and C.W.P. No. 15080-CAT of 2004 5 at the most the respondents could start a de novo enquiry from the stage after completion of the enquiry report because the order of punishment and subsequent orders passed in appeal and review/revision were already quashed by the Tribunal (P-1). In the written statement filed before the Tribunal the respondents took the stand that the termination order was quashed on technical grounds and there is no bar for conducting a second enquiry on the same set of charges. Explaining the delay in initiating the de novo enquiry it was asserted that the respondent department had to seek the opinion and orders at the highest level, which took some time. The Tribunal dismissed the O.A., vide its order dated 14.5.2004 (P-3), by observing as under:- “9. Taking into consideration the facts and circumstances of the case, we are convinced that no irregularity has been committed by the respondents in ordering a fresh enquiry into the same allegations as were contained in the earlier chargesheet. The charges against the applicant are very serious which pertain to the safety of the Railway and the people at large. These cannot be overlooked and quashed merely on technical grounds. In any case, the second enquiry ordered by the respondents is in accordance with the law laid down by the Apex Court. We, therefore, see no good ground to interfere in the matter. C.W.P. No. 15080-CAT of 2004 6

10. In the result, the OA is held to be devoid of any merit and the same is dismissed, without any order as to costs.” Order dated 14.5.2004 (P-3), passed by the Tribunal is subject matter of challenge in the instant petition. In the written statement filed on behalf of respondent Nos. 1 to 3 similar averments as were pleaded before the Tribunal, have been made. The factual position as has been elaborated above, has been admitted and explained. The respondents have justified the order passed by the Tribunal. Explaining the delay in issuance of fresh charge sheet it has been submitted that after passing of judgment dated 19.2.1999, by the Tribunal, the case was examined at several levels. Orders for implementation of judgment of the Tribunal were issued on 24.5.1999 and the file remained under process at several levels/offices for initiation of action under Discipline and Appeal Rules (D&AR). Thereafter, the file was referred to the Legal Branch and Headquarters office twice, where the file was examined by the Safety Branch, Dy. G.M. (Law)/Law Branch and by the Personnel Department as well. In this process fresh charge sheet could be issued only in 2003. It has further been asserted that fresh charge sheet has been issued in accordance with law and there is no ambiguity in the same. In the replication, the petitioner has controverted the stand taken by the respondents reiterating the averments made in the petition. C.W.P. No. 15080-CAT of 2004 7 We have heard learned counsel for the petitioner at a considerable length and have perused the record. We find that the impugned order dated14.5.2004 (P-3) passed by the Tribunal does not suffer from any legal infirmity warranting interference of this Court. It has come on record that an accident took place on 16.12.1987 and on 1.3.1989 a charge sheet was served upon the petitioner leveling allegation that he failed to ensure proper procedure concerning passing of trains. A departmental enquiry was held and the Enquiry Officer submitted his report on 14.5.1989. The Divisional Safety Officer (DSO) passed the order of removal of the petitioner from service on 31.5.1989 and his statutory appeal was dismissed on

2.7.1990. It is further clear that the Tribunal set aside the order of removal of the petitioner from service on the ground that an incompetent authority has passed the order of removal and that the petitioner was denied a reasonable opportunity of hearing. It is, thus, evident that the order of removal passed on the earlier enquiry was quashed by the Tribunal on the ground of violation of principles of natural justice, inasmuch as, copies of the documents were not either given or offered for inspection, which, in fact, were relied upon by the department and that the order of removal was passed by an authority not competent to pass the same. We are of the view that the following two questions of law need to be determined in the instant case:-

1. Whether in the facts and circumstances of the case a de novo departmental enquiry could be initiated C.W.P. No. 15080-CAT of 2004 8 after the earlier enquiry has been quashed by the Tribunal on the ground that principles of natural justice were violated?

2. Whether delay in issuing a charge sheet for holding de novo enquiry would be fatal? RE: QUESTION 1: There is not much controversy on the first question, namely, a de novo enquiry can always be initiated once the first enquiry and the punishment order has been vitiated on account of some technical defect. In that regard we may place reliance on a judgment of Hon’ble the Supreme Court in the case of Anand Narayan Shukla v. State of M.P., (1980) 1 SCC 252. In para 3 of the judgment it has been held that second enquiry could be held if the order passed in the earlier enquiry was quashed on technical ground and reinstatement of the delinquent is no ground for not holding second enquiry. The same principle has been followed and applied in the case of Union of India v. M.B. Patnaik, AIR 1981 SC 858. In para 4 of the judgment, the following observation has appeared, which is relevant:- “4. …… This Court has held in Anand Narain Shukla v. State of Madhya Pradesh [AIR 1979 SC 1923], that when the earlier order of reversion was quashed on a technical ground, a second enquiry on merits could be held and that the order of reinstatement pursuant to the quashing of the earlier order on a technical ground is not C.W.P. No. 15080-CAT of 2004 9 a bar, and this Court negatived the contention that after the earlier order of reversion was quashed by the High Court and the Government servant was reinstated, no second enquiry on the very same charge could be held and no second order of reversion could be legally and validly made. A similar view has been taken by this Court in Superintendent (Tech. I) Central Excise I.D.D. Jabalpur v. Pratap Rai, [(1978) 3 SCR 729 : AIR 1978 SC 1244], in which it has been held that where an order passed in appeal vacates the order of the First Tribunal on purely technical grounds and expressly states that it was being passed without prejudice, which means that it was not an order on merits of the case, such an order does not debar fresh adjudicatory proceedings which may be justified under the law and that when an order is struck down as invalid being in violation of the principles of natural justice, there is no final decision of the case and all that is done is that the inherent defect is removed but the proceedings are not terminated. ……” When the facts of the present case are examined in the light of the principles laid down in the aforementioned judgments it emerges that the second enquiry initiated against the delinquent petitioner does not suffer from any lacuna because the first enquiry and the order based on that enquiry were set aside on technical ground of violation of principles of natural justice and that the order C.W.P. No. 15080-CAT of 2004 10 was not passed by an competent authority. Moreover, the charges against the petitioner are serious in nature and he cannot be let off. We feel that earlier when the Tribunal heard the order removing the petitioner, it could have followed a better course. The competent authority could have been directed to ask the Enquiry Officer to supply the whole material to the petitioner and a report could have been requisitioned by the competent authority. On the basis of the report, the competent authority could have passed the order. We fail to understand as to why such a course was not adopted by the Tribunal and as to why the respondents have sat over the initiation of de novo enquiry for such a long period. Be that as it may, the clock cannot be put back. Therefore, we uphold initiation of de novo enquiry against the petitioner. RE: QUESTION 2: The question then is whether delay in initiating de novo enquiry is fatal. The order of the Tribunal quashing the earlier enquiry is dated 19.2.1999 (P-1). The charge sheet to the petitioner has been issued on 21.8.2003. The delay of four years in issuing the charge sheet by itself would not constitute basis for setting aside the charge sheet. In the case of M.B. Patnaik (supra) holding of de novo enquiry was not permitted because a period of 15 years has gone by. There is no principle of law that delay in initiation of enquiry would vitiate the charge sheet. One principle of service jurisprudence, which is settled, is that delay itself is no ground to set aside issuance of charge sheet. The question of delay is more a C.W.P. No. 15080-CAT of 2004 11 question of prudence based on exercise of sound discretion in the facts and circumstances of a given case. In the case of State of M.P. v. Bani Singh, AIR 1990 SC 1308, their Lordships’ of Hon’ble the Supreme Court refused to permit holding of an enquiry after a period of 12 years whereas in the case of State of Punjab v. Chaman Lal Goyal, (1995) 2 SCC 570, delay of 5½ years was not considered sufficient for quashing the charge sheet because the delinquent was charged with escape of jail inmates involving death of a number of persons. Therefore it is evident that it would depend on the facts and circumstances of each case as to whether the delay would result into causing prejudice to the rights of a delinquent employee. In the present case, the petitioner has fought litigation before the Tribunal till 1999 when his Original Application was allowed. He has already taken his stand in defence before the earlier Enquiry Officer. Looking at the nature of the charges and seriousness of the imputation we do not deem it just and appropriate to conclude that the delay in the facts and circumstances of this case would vitiate issuance of charge sheet. Accordingly, the second question is answered in the negative. For the reasons aforementioned, this petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (SABINA) C.W.P. No. 15080-CAT of 2004 12 May 13, 2008 Pkapoor FIT FOR INDEXING JUDGE