Union of India &
Ors. Vs. Prakash Kumar Tandon  INSC 2207 (17 December 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7349 OF 2008 (Arising
out of SLP (C) No.3660 of 2006) Union of India & Ors. ... Appellants Versus
Prakash Kumar Tandon ... Respondent
S.B. Sinha, J.
appeal is directed against a judgment and order dated 12.05.2005 passed by a
Division Bench of the Madhya Pradesh High Court whereby and whereunder a writ
petition filed by the appellant herein from a judgment and order of the Central
Administrative Tribunal allowing the respondent's original application, was
at all material times, was and still is working as Inspector of Works at Satna.
Allegedly, on the premise that he had accepted substandard quality of wood, a
charge-sheet was issued. Indisputably, the procedure for imposition of major
penalties on Railway Servants is governed by Chapter V of Establishment Code
Volume-I; paragraph 3 whereof reads as under :
of Board of Inquiry or Inquiring Officer (R.1710). The Disciplinary Authority
may enquire into the charges itself or if it considers necessary, it may,
either at the time of communicating the charges to the Railway servant under
Rule 1709 or at any time thereafter, appoint a Board of Inquiry or an Inquiring
Officer for the purpose, which will be termed as the "Inquiring
Note--This is an
enabling rule. The inquiry may be conducted by the Disciplinary Authority
itself or he may get the same done through an agency of his choice. The choice
is confined either to a Board or a named Officer. The procedure in all cases is
to be in accordance with that laid down in Rule 1709 ante."
Enquiry Officer was appointed for holding the said disciplinary enquiry. He was
a Chief Engineer being on deputation to the Vigilance Department. Whereas the
appointing authority of the respondent was of the rank of District Railway
Manager, the Disciplinary authority is only a Senior Executive Engineer. The
District Railway Manager of Railways is also the appellate authority.
the disciplinary proceedings commenced, respondent, indisputably by a letter
dated 20.2.1996 requested the Inquiry Officer to summon the Assistant Engineer
Mr. B.S. Walia, stating :
"You will be
kind enough to fix up date of the next inquiry in first Fortnight of March 1996
anywhere as per your convenience.
Shri B.S. Walia,
A.E.N.(M) STA now A.E.N. (M) N.G.P. "Headquarter" must be called for
as the AEN who recorded 100% test check.
All other witnesses
to whom the vigilance wants to examine may be called and there presence be
ensured. Further the inquiries date to be fixed for examination and the same
sequence arguments are also submitted. This will facilitate early completion of
EX AEN (C) STA Shri
B.S. Walia, who is of course is a Rly. Witness but since he is very much
involved in measurements and checking in supply, he may be specifically be
requested to be present to clear many contradiction to enable the 4 inquiry
officer to derive at a fair and free judicious conclusion."
said letter was not responded to. It was not rejected either.
Concededly, the said
Mr. Walia was not examined.
the disciplinary proceedings, respondent was found guilty.
reduction of pay to the lower stage in the scale of 6500- 10500/- for a period
of two years with cumulative effect was imposed on him by the disciplinary
authority by an order dated 6.1.1998. He preferred an appeal thereagainst
before the Appellate Authority which was also dismissed. The Appellate
Authority enhanced the penalty by directing reduction of his pay to the lowest
stage of Rs.6500/- in the scale of pay of Rs.6500-10500/- for a period of three
years with cumulative effect.
of the Appellate Authority was questioned by the respondent by filing an
original application before the Central Administration Tribunal.
In the said
application, respondent, inter alia, contended that Inquiry Officer being
superior in rank to the Disciplinary Authority and Mr. B.S. Walia having not
been examined as a witness by the Department, the order imposing penalty was
The learned Tribunal
hearing the learned counsel for the parties, we find from Annexure-A3 that
"AEN is responsible for correctness of m/ment for all works" and
applicant has also requested to the respondents to call the AEN for clarifying
the picture. But, he was not called whereas he was main person to clarify the
picture. In the reply the respondents have stated that Shri Walia was
interrogated by the vigilance and nothing was found against him. Hence he was
not called nor cited as witness. It seems to be not satisfactory, therefore,
the contention of the respondents is rejected. We have also found that the
enquiry officer was from a different department and of a different division and
thus there is no question of daring to disagree or a reappreciated the findings
by independent application of mind. However, the argument advanced by the
respondents also does not seem to be proper and justified. The enquiry officer
must be junior to the disciplinary authority.
He may be of any
department. If the enquiry officer is senior to the disciplinary authority, the
same is neither legal nor justified and it is against the principles of natural
writ petition filed by the appellant has been dismissed by the High Court by
reason of the impugned judgment.
Rajni Ohri Lal, learned counsel appearing on behalf of the appellant, would
submit that respondent cannot be said to have been prejudiced by reason of the
appointment of the Chief Engineer as an enquiry officer who was on deputation
to Vigilance Department as he was from a different department and, thus, the
disciplinary authority or the appellate 6 authority were not working under
him. In any event, had such a plea been raised by the respondent before the
disciplinary authority, the enquiry officer could have been changed and in that
view of the matter, he must be held to have waived his right. It was urged that
as the function of the disciplinary authority and the enquiry officer are
different, the question of suffering any prejudice by the respondent did not
arise. So far as non- summoning of the witness of Mr. Walia is concerned, the
learned counsel would contend, he had been interrogated by the vigilance
department and as he was found to be innocent, it was not found necessary to
examine him. It was always open to the prosecution, the learned counsel would
contend, to examine or not to examine any witness on behalf of the department.
Raju, learned counsel appearing on behalf of the respondent, on the other hand,
would contend that examination of Mr. Walia was essential as the passing of
timber and wood work was within the domain of the Executive Engineer.
learned counsel appears to be correct. The Central Railway Administration as
far back as on 3.4.1990 issued a clarification as to whether the power of the Assistant
Engineer to pass the timber/wood work has been taken away or not, to state :
7 "The matter
has been scrutinized & it is observed that the confusion has arisen due to
use of the word `Engineer' in the specification No.1001.
Corelating the word Engineer
with GCC implied Divisional Engineer and hence the interpretation was extended
accordingly in the circular referred above.
reconsidering the matter and going through the instructions on delegation of
powers in respect of measurement (RB's letter No.71/W1/CT/16 dated 23.7.87) it
is seen that AEN is responsible for correctness of m/ment for all works. Wood
work and other materials have been traditionally been passed by Asst. Engineer.
Hence, it has been
decided by CE in partial modification of above circular that woodwork shall
continue to be passed by Asst. Engineer."
in his defence, contended that the measurement book was checked by Mr. Walia on
5.7.1991 and 6.7.1991. According to him, he was not at all responsible either
as regards the quality of wood or the correctness of measurement of the timber
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
the evidence of another Assistant Engineer who had taken part in the raid, it
is evident that the alleged loss caused to the railways was negligible and mere
marginal allowances are permitted for measurement of `scantlings and planks'.
the aforementioned situation, we are of the opinion that the Tribunal as also
the High Court cannot be said to have erred in holding that the said Mr. Walia
should have been examined as a witness.
principles of natural justice demand that an application for summoning a
witness by the delinquent officer should be considered by the enquiry officer. It
was obligatory on the part of the enquiry officer to pass an order in the said
application. He could not refuse to consider the same.
It is not for the
Railway Administration to contend that it is for them to consider as to whether
any witness should be examined by it or not. It was for the enquiry officer to
take a decision thereupon. A disciplinary proceeding must be fairly conducted.
An enquiry officer is a quasi judicial authority. He, therefore, must perform
his functions fairly and reasonably which is even otherwise the requirement of
the principles of natural justice.
M.V. Bijlani v. Union of India & Ors. [(2006) 5 SCC 88], this Court has
9 "Although the
charges in a departmental proceeding are not required to be proved like a
criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the
fact that the enquiry officer performs a quasi-judicial function, who upon
analyzing the documents must arrive at a conclusion that there had been a
preponderance of probability to prove the charges on the basis of materials on
record. While doing so, he cannot take into consideration any irrelevant fact.
He cannot refuse to consider the relevant facts. He cannot shift the burden of
proof. He cannot reject the relevant testimony of the witnesses only on the
basis of surmises and conjectures. He cannot enquire into the allegations with
which the delinquent officer had not been charged with."
the disciplinary proceedings have not been fairly conducted, an inference can
be drawn that the delinquent officer was prejudiced thereby.
S.L. Kapoor v. Jagmohan & Ors. (1980) 4 SCC 379, this Court has held that
non-compliance of the principles of natural justice itself causes prejudice. We
are not oblivious of the fact that the said principle has since been watered
down but in a situation of this nature, we are of the opinion that the
concurrent findings of the Tribunal, as also the High Court cannot be said to
be unreasonable or suffering from any legal infirmity warranting interference.
appeal, therefore, is dismissed with costs. Counsel's fee assessed at