1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 5455/2010. Union of India and another. -VERSUS- V.T. Atram _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ CORAM : B.P.DHARMADHIKARI & P.D. KODE, JJ. DATED : 16.06.2011. Heard finally by consent of Shri R.G. Agrawal, learned Counsel for the petitioners and Shri M.W. Harsulkar, learned Counsel for respondent/caveator, hence Rule, returnable forthwith. In furtherance of our order dated 11.04.2011, Shri Harsulkar, learned counsel for the respondent has produced before us questions put by the enquiry officer to the respondent Shri 2 Atram during enquiry, to point out that the provisions of Rule 9[21] of the Railway Servants (Discipline and Appeal) Rules, 1968 have not been complied with. He is also relying upon the judgment of Hon'ble Apex Court reported at (2008) 3 SCC 484 (Moni Shankar .vrs. Union of India and another). After hearing the respective Counsel, we find that the question whether there was or there was no compliance with the provisions of paragraph 705 of the Manual, arises lateron. As per the provisions of Rule 9[21], the enquiry officer has to question the delinquent generally upon the circumstances appearing against him. On 15.06.2011 while considering similar challenge we have placed the matter back before the enquiry officer for proceeding further from the stage of Rule 9[21], with observations that the doctrine of relation back shall apply in the matter. 3 Here the situation is identical. Questions put to Shri Atram are on same lines as considered by the Hon'ble Apex Court in paragraph no.16 of its judgment in the case of Moni Shankar (supra). Today Shri Harsulkar, learned Counsel for respondent has also invited our attention to page 186 of the compilation of Shri Bahari's to point out the instructions issued by the department in this respect. He states that as per those directions, even if the delinquent has examined himself as witness in his own case, the enquiry officer has been given discretion to question him generally, but, where he has not so examined himself, it is the duty of enquiry officer to put him such questions pointing out the circumstances appearing against him. He heavily relies upon the further directions by the department which read as under : “......... It is seen that in many cases the E.O., do not follow this mandatory 4 step for which the whole proceedings may be quashed in the court of law. Hence the EOs must give due notice to this provision and follow it scrupulously.” In view of this position, we set aside the impugned order dated 28.04.2010 and place the enquiry back before the enquiry officer for its further consideration from the stage of defect i.e. for giving respondent an opportunity as contemplated by Rule 9[21] of the 1968 Rules, and pass fresh orders in the matter. The enquiry officer shall extend necessary opportunity to the respondent within a period of 6 weeks from today, and shall proceed further with the inquiry and complete the process as early as possible and in any case within a further period of 6 weeks thereafter. Needless to mention that the entitlement of respondent to the consequential benefits will depend on the out come of the said enquiry. 5 Writ Petition is thus allowed. Rule is made absolute in the aforesaid terms, with no order as to costs. JUDGE JUDGE Rgd