REPORTABLE

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

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. This 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 dismissed.

3. Respondent,  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 :

“3.  Appointment  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 Authority”.

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.”

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4. An 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.   

5. Before  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 an inquiry.

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

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inquiry officer to derive at a fair and free judicious conclusion.”

6. The  said  letter  was  not  responded  to.   It  was  not  rejected  either.

Concededly, the said Mr. Walia was not examined.   

7. In  the  disciplinary  proceedings,  respondent  was  found  guilty.

Punishment  of  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.   

8. Order 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 unsustainable.   

The learned Tribunal held :

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“After 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 justice.”

9. The writ  petition  filed  by the  appellant  has  been dismissed  by the

High Court by reason of the impugned judgment.   

10. Ms.  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

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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.

11. Mr. 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.

12. The  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 :

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“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.

However, after 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.”

13. Respondent,  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 in question.   

14. The  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 all.   

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15. From 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’.

16. In  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.

17. The  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.

18. In  M.V. Bijlani v.  Union of India & Ors. [(2006) 5 SCC 88], this

Court has held :

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“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.”

19. If  the  disciplinary  proceedings  have  not  been  fairly  conducted,  an

inference can be drawn that the delinquent officer was prejudiced thereby.

20. In 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.

21. The appeal, therefore, is dismissed with costs.  Counsel’s fee assessed

at Rs.10,000/-.

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……………………………….J. [S.B. Sinha]

New Delhi; ..…………………………..…J. December 17, 2008 [Cyriac Joseph]

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