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CASE NO.: Appeal (civil)  4634 of 2006

PETITIONER: Mathura Prasad                                           

RESPONDENT: Union of India & Ors.                                    

DATE OF JUDGMENT: 01/11/2006

BENCH: S.B. SINHA & MARKANDEY KATJU

JUDGMENT: J U D G M E N T (Arising out of SLP) No. 25654 of 2005)

S.B. Sinha, J.

       Leave granted.

       Appellant was engaged as a casual labour in the year 1978 for a  period of four months.  He was posted in Ganj Basoda Station.   Subsequently, he was appointed at Bina Depot in the year 1981 and served  upto 30.6.1982.  He was appointed similarly on a few more occasions and  was declared as a monthly rated casual labour in 1986.  He was issued a  service card wherein the details of his service as a casual labour were  recorded from time to time.  Service Card contained the particulars of the  places, number of days and the capacity in which he had worked.   

Pursuant to or in furtherance of a scheme of regularization in 1989,  his name was short-listed.  The service card was sent for verification.  A  purported report dated 31.5.1990 was sent by an Electrical Foreman, Ganj  Basoda challenging that it was a fake one; whereupon a major penalty was  imposed on him, inter alia, on the charges; firstly, his service card bearing  No. 303774 was fake; and secondly, that he secured employment on the  basis of the fake service card.   

A departmental inquiry was initiated.  The Inquiry Officer upon  considering the materials placed on records in his report, stated:-

"This employee worked with the Works Inspector (Pul)  Beena.  His record was said to be at Beena with the IOW  (East) but it came to be known from there that the record  I.O.W. (M) was with the petitioner.  Having gone there  the matter was worked in to.  There the full record of  Works Inspector (Pul) Beena became available.  I.O.W.  (M) Vidisha gave it in writing that Shri Mathura Prasad  S/o Babu Lal as per his service card No. 303774 worked  under the Works Inspector (Pul) Beena as canal Khalasi  w.e.f. 30.6.81 to 18.7.81 who is mentioned at S.No. 101  in the L.T.I. Register and at that time he was working  under the Works Inspector (Pul) Beena K.L. Shridhaaran.   NCMR Sheet was also seen.  The name of the employee  is mentioned in sheet No. 66253 of 18.7.81."

       The disciplinary authority was, however, not satisfied with the report.   It was sent it back to the Inquiry Officer under a demi-official letter dated  2.11.1993 stating:-         "You were nominated as enquiry officer in case of S-5

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served to Shri Mathura Prasad, MRCL Khalasi on dated  5.7.90.  You have submitted your enquiry report on  15.10.93, while going through enquiry report, it is not  clear how you have come on the conclusion and you have  given the final findings. The file is being sent to you back.  Kindly submit  your report giving clear remarks about every points of  charges framed in SF-5. You are hereby advised to re-submit your enquiry  report by enquiring properly to this office immediately."

       Without any further inquiry and without giving any further  opportunity of hearing to Appellant, the Inquiry Officer opined that the said  service card was fake, stating:-

"On 4.12.93 the perusal of the record of the matter of the  A.R.E. Shri S.C. Upadhyaya also was made and it was  given in writing to Shri Mathura Prasad S/o Babu Lal  that the service card bearing No. 303774, the copy of  which has been given on 3.3.92 has not been issued by  the R.T.I. (Sec) Gunjbasoda but according to that your  name has been showed against the T.I. of Phulle at S.No.  8 in the L.T.I. Register which has not been verified by  any of the FRTI (Sec.) which is at page No. 64 and bears  the signatures of the ARE and Mathura Prasad. From this thing it transpires that the card No.  303774, which has been given to Mathura Prasad S/o  Babu Lal, has not been issued by RTI (Sec.) Gunjbasoda.   Therefore, this card is forged."

       Relying on or on the basis of said purported report of the Inquiry  Officer, punishment of removal from service was imposed by the  disciplinary authority by an order dated 26/28.4.1994.  The punishment of  removal of service of Appellant was confirmed by an order dated 7.7.1994  passed by the Appellate Authority i.e. Upper Divisional Electrical Engineer,  Bhopal.   

       Appellant filed an Original Application before the Central  Administrative Tribunal, questioning the said order of the disciplinary  authority as also the Appellate Authority.  By a judgment and order dated  13.2.2001, the Tribunal allowed the said application and directed  reinstatement of Appellant with consequential benefit but with 50% back- wages.  The Tribunal arrived at the said conclusion on the premise that the  disciplinary authority at the first instance having differed with the findings  of the Inquiry Officer was enjoined with a duty to record reasons therefor  and record its own findings on the said charge that the evidence was  sufficient for the purpose as required under Rule 10(3) of the Railway  Servants (Discipline & Appeal) Rules, 1968 (for short the Rules).  It was  further held by the Tribunal that there was no finding with regard to  endorsements of work rendered by Appellant between 1978 to 1986  contained in the service card of Appellant are inaccurate in particulars.   

Respondent herein preferred a Writ Petition before the Madhya  Pradesh High Court thereagainst wherein, inter alia, it was contended that a  finding of fact having been arrived at by the disciplinary authority that the  service card was fake, the Tribunal could not have interfered therewith.  It  was further contended that only because the entries therein were in relation  to the service by Respondent-Appellant, the same by itself was not a fresh  ground for overturning the finding of the disciplinary authority.  The High  Court agreed with the said contentions and allowed the Writ Petition, inter  alia, holding:-

"The Inquiry Officer surmised that as the entries in the

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service card was not issued by the PW-1, Ganj Basoda,  when he submitted the first report.  Therefore, the  Disciplinary Authority wanted him to give specific  findings thereon and he gave further finding that the card  was a fake.  Therefore, the second inquiry report is  virtually a continuation of the first inquiry report and the  second report rightly considered the charge and recorded  appropriate findings therein which he had failed to do in  the first report.  The fact that the first respondent might  have served as Casual Labourer in the year 1978 and  again from 1981 to 1983 and from 1985 to 1989 as per  the endorsements contained in the service card, to repeat,  is not relevant.  The charge was not that the first  respondent did not serve during that periods.  The charge  was that he obtained fake service card where several  entries were genuinely made.  It is apparent that when  such entries were made in the years 1981 and 1985, the  authorities were not aware that the service card was a  fake.  Only when it was sent for verification to the  authority who is said to have issued the service card, it  was found that the service card was not issued by that  office and it was realized that it was a fake."

       The short question which falls for our consideration is application of  sub-Rules (2) and (3) of Rule 10 of the Rules.   

Rules were framed by the Union of India in exercise of its jurisdiction  under the proviso appended to Article 309 of the Constitution of India.  Sub- Rules (2) and (3) of Rule 10 of the Rules read thus:-

"10. Action on the Inquiry report.

(1)  \005 (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 thereupon proceed to hold further inquiry according  to the provisions of Rule 9 as far as may be. (3)     The disciplinary authority shall, if it disagrees with  the findings of the inquiring authority on any article of  charge, regards its reasons for such disagreement and  record its own findings on such charge, if the evidence on  record, is sufficient for the purpose."

       Indisputably the Inquiry Officer was enjoined with a duty to enquire  into the charges of misconduct levelled against Appellant.  He enquired into  the matter.  He found that the contents of the service card were correct.  In  other words, the particulars in regard to the period of work, place of work  and the nature of work entered into therein were correct.  He might not have  been recorded that the service card was genuine or fake but substance of the  allegation against Appellant was as to whether he had obtained an  appointment by using a fake service card.   

The disciplinary authority merely sent a demi-official letter to the  Inquiry Officer.  He did not pass any order.  The file was sent back to him  for a clear remark on every point of charges framed against Appellant.  It  could not have been either an order passed in terms of sub-Rule (2) of Rule  10 or sub-Rule (3) thereof.  The disciplinary authority was a statutory  authority.  He was, therefore, bound to act within the four corners of the  statute.  Procedures relating to conduct of a disciplinary proceeding have  been laid down by the Rules.  He was bound to follow the same  scrupulously.  It is one thing to say that he wanted the Inquiry Officer to

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state the points to clear the said findings arrived at by him on each of the  charges separately, but he did not have his jurisdiction to issue the direction  under either of the sub-rules of Rule 10. Inquiry Officer held a further  enquiry in furtherance of the direction of the disciplinary authority.  He  proceeded on the basis that his Disciplinary Authority required him to hold  further enquiry.  Inquiry Officer, therefore, pursuant thereto or in furtherance  of the said letter dated 2.1.1993 issued by the disciplinary authority could  not have arrived at a different finding, when no further opportunity was  given to Appellant herein and no reason was recorded therefor.  Even in his  report dated 21.12.1993 he arrived at the conclusion that the service card  was forged only because the purported card had not been issued by RTI  (Sec), Ganj Basoda.   

       Whether any of the entries contained in the said card was correct or  not, was not verified.  It could not have been held to have no relevance for  arriving at a finding that the same was a forged one.

       Curiously the disciplinary authority in its order dated 26.4.1994, inter  alia, recorded:-

"I have decided to impose upon you the penalty of  compulsory retirement/removal/dismissal from service.   You are therefore, compulsorily  retired/removed/dismissed from service with\005"

       The punishment proposed was vague.  The Tribunal, therefore,  although relied on sub-Rule (3) of Rule 10, in our opinion, arrived at the  right conclusion as the matter having not been remitted to the disciplinary  authority for a further inquiry under sub-Rule (2) of Rule 10 of the Rules,  the same was illegal and without jurisdiction.  It had not been disputed  before us and it would be a mere repetition to state that the entries contained  in the service record were correct.  The High Court, therefore, may not be  correct in arriving at its conclusion in its judgment.

       The Inquiry Officer in his first report might not have specifically  recorded his findings with reference to each of the charges levelled against  Appellant but he arrived at a finding on analysis of the materials on record.   If he was to differ with the said findings on the basis of any fresh materials,  he was enjoined with a duty to grant another opportunity of hearing to  Appellant.

       Even if the Inquiry Officer had, in his first report, proceeded on  surmises and conjectures as was observed by the High Court, the  disciplinary authority  could disagree with the said finding but it was,  therefor, required to record its reasons.  No reason was recorded.  Sub-Rules  (2) and (3) of Rule 10 aim at achieving the same purpose.  If sufficient  materials are not available on record, a direction for holding a further inquiry  may be issued in terms of sub-Rule (2) of Rule 10 so as to enable the  department to lead further evidence before him.  For the said purpose also,  reasons are required to be recorded by the disciplinary authority.  An  opportunity of hearing to the delinquent officer is required to be given.   However, in the event, the disciplinary authority comes to the conclusion  that the conclusion arrived at by the Inquiry Officer on the basis of materials  placed by the parties are incorrect, he may disagree with the said findings  but even, therefor, he is required to record reasons in support thereof.  The  requirement of sub-Rule (2) or sub-Rule (3) having not been complied with,  the Inquiry Officer could not have arrived at a different finding.  The High  Court unfortunately did not consider this aspect of the matter.

       When an employee, by reason of an alleged act of misconduct, is  sought to be deprived of his livelihood, the procedures laid down under sub- Rules are required to be strictly followed.  It is now well settled that a  judicial review would lie even if there is an error of law apparent on the face

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of the record.  If statutory authority uses its power in a manner not provided  for in the statute or passes an order without application of mind, judicial  review would be maintainable.  Even an error of fact for sufficient reasons  may attract the principles of judicial review.

       Shri S.N. Chandra Shekhar & Anr. v. State of Karnataka & Ors. 2006  (3) SCC 208 wherein this Court held:- "34.    The Authority, therefore, posed unto itself a wrong  question.  What, therefore, was necessary to be  considered by BDA was whether the ingredients  contained in Section 14-A of the Act were fulfilled and  whether the requirements of the proviso appended thereto  are satisfied.  If the same had not been satisfied, the  requirements of the law must be held to have not been  satisfied.  If there had been no proper application of mind  as regards the requirements of law, the State and the  Planning Authority must be held to have misdirected  themselves in law which would vitiate the impugned  judgment. 35.     In Hindustan Petroleum Corpn. Ltd. v. Darius  Shapur Chenai, this Court referring to Cholan Roadways  Ltd. v. G. Thirugnanasambandam held: (SCC p. 637,  para 14) 14. Even a judicial review on facts in certain  situations may be available.  In Cholan Roadways  Ltd. v. G. Thirugnanasambandam, this Court  observed: (SCC 253, paras 34-35) ’34\005It is now well settled that a quasi-judicial  authority must pose unto itself a correct question  so as to arrive at a correct finding of fact.  A wrong  question posed leads to a wrong answer.  In this  case, furthermore, the misdirection in law  committed by the Industrial Tribunal was apparent  insofar as it did not apply the principle of res ipsa  loquitur which was relevant for the purpose of this  case and, thus, failed to take into consideration a  relevant factor and furthermore took into  consideration an irrelevant fact not germane for  determining the issue, namely, that the passengers  of the bus were mandatorily required to be  examined.  The Industrial Tribunal further failed to  apply the correct standard of proof in relation to a  domestic enquiry, which is "preponderance of  probability" and applied the standard of proof  required for a criminal trial.  A case for judicial  review was, thus, clearly made out. 35.     Errors of fact can also be a subject-matter of  judicial review. (See E. v. Secy. of State for the  Home Deptt).  Reference in this connection may  also be made to an interesting article by Paul P.  Craig, Q.C. titled "Judicial Review, Appeal and  Factual Error" published in 2004 Public Law, p.  788.’" (See also Sonepat Coop. Sugar Mills Ltd. v. Ajit  Singh, SCC paras 23 & 24.) 36.     The order passed by the statutory authority,  it is trite, must be judged on the basis of the  contents thereof and not as explained in affidavit.  (See Bangalore Development Authority v. R.  Hanumaiah)."  

       The said dicta shall apply to the facts of the present appeal also.   

       The impugned judgment, therefore, cannot be sustained.  The appeal  is, thus, allowed.  However, the matter is remitted to the disciplinary

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authority.  It may pass an appropriate order upon application of his mind  afresh in the light of the observations made hereinabove.

       Appellant is entitled to costs.  Counsel’s fee assessed at Rs.15,000/-.