Bidyut Baran Nath vs Union of India and Others

V.M. Sahai, Actg. C.J.

We have heard Mr. P.H. Pathak, learned advocate for the petitioner and Mr. Ravi Karnavat, learned advocate for the respondent Nos. 1 and 2. Rule Learned advocate Mr. Ravi Karnavat waives service of Rule on behalf of respondent Nos. 1 and 2. Mr. Ravi Karnavat, learned advocate has produced the record before us in compliance of order passed by this Court on 29.09.2014.

Brief facts of the petition are that, the petitioner was appointed in the services of Railways as Permanent Wage Inspector (PW 1) Grade-III at Than under Rajkot Division and after promotion, he was working as Senior Section Engineer (P. Way). On 25.01.2010, the respondent served a memorandum of charges to the petitioner wherein it was alleged that while working as S&C during December 2008, he had not followed Rule 263 of Annexure-II of Indian Railway Establishment Manual (IREM) which has resulted into excess payment to the contractor and created problem for the Railways. Only one charge was framed against the petitioner on 25.01.2010 which is extracted below:

"MAJOR PENALTY CHARGE-SHEET AGAINST SHRI B.B. NATH, SSE (PW) E/RJT.

Annexure-I

ARTICLE OF CHARGE-SHEET

Lack of devotion to duty and unbecoming of Railway servant.

Annexure-II

STATEMENT OF IMPUTATION IN SUPPORT OF ARTICLES OF CHARGES

As per Sr. ADEN/T/RJT''s letter No. W43/2/4/4/WA dt. 21.1.2010, in the work of ''Re-pairs (Standardisation) of cuttings under SSE(PW)E/RJT section'', W.O. No. RJT/63 dt. 22.12.2008, it is found that while proposing quantity and during execution of work Shri B.B. Nath, SSE(PW)E/RJT has not followed para 263 of Annexure 2/11 of IRPWM which resulted in excess payment to the contractor and created a lot of problems to the administration.

For the above act of omission, Shri B.B. Nath, SSE(PW)E/RJT is charged for violation of rule 3.1(ii) & (iii) of Railway Services (Conduct) Rules, 1966.

Annexure-III

LIST OF DOCUMENTS BY WHICH THE ARTICLES OF CHARGES FRAMED

(1) Copy of Sr. ADEN/T/RJT''s letter No. W43/2/4/4/WA dt. 21.01.2010.

Annexure IV

LIST OF WITNESSES

NIL"

The respondent appointed an Inquiry Officer to enquire into the charges and after full fledged departmental inquiry proceedings, the Inquiry Officer submitted his report to the respondent No. 2 on 25.07.2011.

Instead of taking any decision on the report of Inquiry Officer, it appears that the Disciplinary Authority without assigning any reason has passed an order on 12.12.2011 withdrawing the charge-sheet and reserving the right to issue afresh one incorporating various charges. Thereafter, the Disciplinary Authority issued a fresh charge-sheet dated 12.12.2011 to the petitioner which is extracted below:

"Article of charges for imposing Major Penalty against Shri B.B. Nath, SSE(P. Way)E/RJT

Shri B.B. Nath, while working as SSE (P. Way) E/RJT in the year 2008-09 was responsible for execution of earthwork for widening of existing cuttings to standard width as per western railway''s specifications as per Work Order No. RJT/T/63 dated 22.12.2008 awarded to M/s. Jai Jawan Construction Co., Rajkot. While working as such, he had committed gross misconduct inasmuch as--

Charge No. 1

Shri B.B. Nath, while working as SSE (P. Way) E/RJT as an incharge of work is responsible for not following provisions of Para 1317 of engineering Code regarding plotting of cross sections and theoretical profile of earthwork in cutting on graph sheet before making payments to ensure that the work is done to the theoretical profile, resulting in excess payment to the contractor to the tune of Rs. 46,70,497/- and loss to the Railways.

Charge No. 2

Shri B.B. Nath, while working as SSE (P. Way) E/RJT as an in-charge of work is responsible for execution of the earthwork in cutting beyond the standard profile by violating para 263 of IRPWM Annexure 2/11, special conditions of the contract, resulting in excess payment to the contractor to the tune of Rs. 46,70,497/- and loss to the Railways.

Charge No. 3

Shri B.B. Nath, while working as SSE (P. Way) E/RJT as an in-charge of work is responsible for recording false and inflated measurements of earthwork in cutting in the measurement book resulting into payment of excess quantity of earthwork than what has been actually required, causing loss to the Railways.

Charge No. 4

Shri B.B. Nath, while working as SSE (P. Way) E/RJT as an in-charge of work is responsible for making payment of NS/2 of Schedule B without any calculations by violating instructions contained in Railway Board''s letter No. 85/W/l/Ct/15 (Audit) dated 20.03.1985, resulting in excess payment to the contractor.

Charge No. 5

Shri B.B. Nath, while working as SSE (P. Way) E/RJT as an in-charge of work is responsible for recording payment to the contractor for earthwork in cutting, which was not execution as per description of items as released serviceable material from cutting under item NS/1 & NS/2 was not stacked as per description of items, resulting in undue favour to the contractor and loss to the Railways.

Thus by his above acts, Shri B.B. Nath, while working as SSE (P. Way) E/RJT failed to maintain absolute integrity, exhibited lack of devotion to his duty and acted in a manner unbecoming of Railway servant and thereby contravened Rule 3.1(i)(ii) & (iii) of the Railway Services (Conduct) Rules, 1966.

Both the charge-sheets are in juxta position which reveal that charges against the petitioner are the same except that in the second charge-sheet, one charge has been bifurcated in five charges. Incident is the same, which is very clear from charge No. 2. In this petition, the petitioner has challenged the order of Central Administrative Tribunal dated 09.05.2014 passed in OA No. 338 of 2013 wherein the petitioner has challenged the issuance of second charge-sheet to the petitioner.

Having gone through all the facts and arguments of the learned advocate for the parties, short question arises for consideration for this Court is as to whether once a charge-sheet is issued to an employee and inquiry report is submitted, can the Disciplinary Authority issue second charge-sheet without taking any decision on the inquiry report submitted in pursuance of the first charge-sheet.

We have examined Rules 9 and 10 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as ''Rules''). Rule 9 lays down the procedure for imposing major penalties whereas Rule 10 provides for action on an inquiry report.

After the report was submitted by the Inquiry Officer in pursuance of the first charge-sheet, Disciplinary Authority was required to take action on the inquiry report as provided in Rule 10 of the aforesaid Rules. It was always open for the Disciplinary Authority to disagree with the report of the Inquiry Officer by recording reasons and direct for holding further or fresh inquiry for the reasons provided in his order but it was not open for the Disciplinary Authority not to take any action on the report of the Inquiry Officer and just to get out of the report of the Inquiry Officer, he could not cancel the earlier charge-sheet on the basis of which inquiry report was submitted and issue fresh charge-sheet by bifurcating the same charge into number of charges.

Mr. Ravi Karnavat, learned advocate for the respondents has relied upon RBE No. 171/1993, issued by the Government of India, Ministry of Railways/Rail Mantralaya (Railway Board) dated 01.12.1993 and as a result, it was open for the Disciplinary Authority to cancel or drop the first charge-sheet and issue second charge-sheet. RBE No. 171/1993 dated 01.12.1993 is extracted below:

"GOVERNMENT OF INDIA (BHARAT SARKAR) MINISTRY OF RAILWAYS/RAIL MANTRALAYA (RAILWAY BOARD) RBE No. 171/1993

No. E (D & A) 93 RG 683, dated 01/12/1993

Subject: Issuing fresh charge Memorandum after cancellation/withdrawal of original charge Memorandum or after dropping disciplinary proceedings.

It has come to the notice of the Railway Board that on one of the Zonal Railways, the Memorandum of charges issued to an employee was withdrawn by the disciplinary authority with the intention of issuing fresh detailed charge Memorandum. However, while withdrawing the charge-sheet, no reasons therefore were given and it was only stated that the charge-sheet was being withdrawn. The issue of a fresh charge Memorandum subsequently was challenged by the employee before CAT/Bombay. The Central Administrative Tribunal on hearing the case have quashed the said charge Memorandum holding that unless there is a power in the disciplinary authority by virtue of the rules or administrative instructions to give another charge-sheet on the same facts after withdrawing the first one, the second charge-sheet will be entirely without authority.

The matter has been examined and it is clarified that once the proceedings initiated under Rule 9 or Rule 11 of RS (D & A) Rules, 1968 are dropped, the disciplinary authorities would be debarred from initiating fresh proceedings against the delinquent officers unless the reasons for cancellation of the original charge Memorandum for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without prejudice to further action which may be considered in the circumstances of the case. It is therefore, necessary that when the intention is to issue a fresh charge-sheet subsequently, the order cancelling the original one or dropping the proceedings should be carefully worded so as to mention the reasons for such an action indicating the intention of issuing charge-sheet afresh appropriate to the nature of the charges."

We have carefully gone through RBE No. 171/1993. It does not provide that after the inquiry report is submitted by the Inquiry Officer, the charge-sheet could be dropped and on the same allegations it was open to the respondents to issue second charge-sheet. A Division Bench of this Court in the case of Dilip Ratilal Patel Vs. Gujarat State Financial Corp. has held that it is open to the disciplinary authority to direct further inquiry but it cannot direct de novo or fresh inquiry.

We are of the opinion that Rules 9 and 10 of the Rules do not permit dropping of the charge-sheet after the report was submitted by the Inquiry Officer in pursuance of the first charge-sheet and issue second charge-sheet on the same allegations. Therefore, second charge-sheet issued by the respondents is totally illegal and in violation of the Rules and is liable to be quashed. Any action taken in pursuance of the second charge-sheet by the respondents would automatically fall. However, it shall be open to the respondents to take decision on the first inquiry report submitted by the Inquiry Officer pursuant to the first charge-sheet as per Rule 10 of the Rules.

In the result, this petition succeeds and is allowed. The second charge-sheet dated 12.12.2011 issued by the respondents to the petitioner placed at Annexure ''C to the writ petition as well as the order passed by the Central Administrative Tribunal dated 09.05.2014 in OA No. 338 of 2013 placed at Annexure ''G'' to the Writ Petition are quashed. Any action taken by the respondents in pursuance of the second charge-sheet dated 12.12.2011 would also stand quashed. It shall be open to the respondents to take a decision on the inquiry report dated 21.07.2011 submitted by the Inquiry Officer in pursuance to the first charge-sheet. Rule is made absolute accordingly. Parties to bear their own costs.