IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:13.07.2007 CORM: THE HON’BLE MR. JUSTICE P. JYOTHIMANI Writ Petition No.13196 of 2001 S. Singaravelu .. Petitioner Vs. 1. General Manager Southern Railway Madras. 2. Presiding Officer Central Government Industrial Tribunal- cum - Labour Court Sasthiri Bhavan Nungambakkam, Chennai. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated therein. Mr. Balan Haridas For petitioner : Mr. R. Kamatchi Sundaresan For respondents : Ms. Aparna Nandakumar for R.1 ORDER This writ petition is filed challenging the order of the second respondent Central Government Industrial Tribunal –cum–Labour Court, Chennai dated 06.06.2001 passed in I.D.No.485 of 2001. 2. The short facts relating to this case are as follows: The petitioner joined in the services of the first respondent Railway as a Clerk on 14.03.1977. A charge memo was issued against the petitioner on 23.07.1986, stating that the petitioner while functioning as Enquiry- cum-Reservation Clerk in the Reservation Office, Madras Central, Southern Railway, Madras, committed misconduct and failed to maintain absolute integrity and devotion to duty inasmuch as he has misappropriated an amount of Rs.10,070/- on or about 15.12.1984 by 6.15 pm by making false https://hcservices.ecourts.gov.in/hcservices/ entries in the Railway records as if he has refunded the said amount on demand for cancellation by a bona fide passenger in BPT.No.085444 purported to have been issued on 22.09.1984 for 95 adults for journey on 30.12.1984 in Train No.145 Navjeevan Express from Ahmedabad to Madras. The said charges were framed as the conduct of the petitioner was in violation of Rule 3(1)(i), 3 (1)(ii) and 3(1) (iii) of the Railway Service (Conduct) Rules, 1966. The petitioner has given a detailed explanation on 27.06.1987, denying the charges. According to him, on 15.12.1984, when he was working in the Enquiry-cum-Refund Counter, he has made refund of the amount based on the cancellation made by the Cancellation Clerk along with refund application. The said refund was made to the person, who presented it across the counter, since the ticket was cancelled and the endorsement was made by the Cancellation Clerk. 2 (a). The first respondent has conducted enquiry, in which 10 witnesses were examined. However the case of the petitioner is that he was not allowed to be represented by a Government servant of his choice, even though the Railway was represented by a CBI Inspector, who, according to the petitioner, is a legally trained person. According to him, the Cancellation Clerk J. Gnaneshwara Rao, examined as P.W.1 has made an endorsement in the cancellation form and the cancellation form was not produced before the enquiry and if it was produced before the enquiry, the petitioner would have proved that he made payment only on the basis of the endorsement made by the Cancellation Clerk. 2 (b). According to the petitioner, in spite of the fact that there is no eye witness and even though in the charge it is stated that the ticket was sent to an handwriting expert and name also given, no such Handwriting Expert was examined and no such report from the Handwriting Expert was furnished to him. The Enquiry Officer, after conducting enquiry, has sent a report stating that the charges framed against the petitioner stand established and has also suggested deterrent punishment. It was, based on the Enquiry Officer's report, the Disciplinary Authority has imposed the punishment of removal from service on 08.06.1988 and the same was confirmed by the Appellate Authority on 03.07.1989. When the petitioner filed Original Application in O.A.No.156 of 1990 before the Central Administrative Tribunal, the same was allowed on the ground that the Enquiry Officer's report was not furnished to him and therefore by setting aside the punishment, the matter was remanded back by permitting the first respondent Railway to continue the disciplinary proceedings after giving a copy of the enquiry report to the petitioner. It was pursuant to the said remand, the petitioner has given further explanation on 21.11.1991, and according to the petitioner, the Disciplinary Authority, without application of mind, has passed order on 07.12.1992, removing him from service. 2 (c). The petitioner has preferred an appeal before the appellate authority on 21.12.1992 and the appellate authority, without re- appreciating the material on record, by order dated 09.09.1993, has modified the punishment of removal from service to one of compulsory retirement. It was challenging the said punishment of the appellate authority, the petitioner has raised an industrial dispute in I.D.No.37 of 1998 before the Industrial Tribunal, Chennai, which was subsequently https://hcservices.ecourts.gov.in/hcservices/ transferred to the second respondent Tribunal and re-numbered as I.D.No.485 of 2001. 2 (d). According to the petitioner, it was not the case of the first respondent Management that in the event of domestic enquiry being held as not fair and proper, the Management would like to lead evidence to prove the charges. The petitioner has raised the point that the domestic enquiry was not properly conducted for the reason that when the Railway was represented by an outsider, being C.B.I. Inspector, who is a legally trained person, the request of the petitioner to have an outsider for his assistance, viz., a retired Government servant of his choice was denied by quoting Rule 9 (13) (1) (a) and (b) of Chapter Part IV Procedure for Imposing Major Penalties under the Railway Servants (Discipline & Appeal) Rules, 1968. According to the petitioner, the denial of permission to him to be assisted by an outsider, viz., a retired Government servant, especially in the circumstances that the Management is represented through a C.B.I. Inspector, who is a legally trained person, will make the domestic enquiry as a farce. It is also the further case of the petitioner that in the charge there are two names mentioned, one is P.S.S.P. Babu, Investigating Officer and another is D.R. Rohilla, who is an Handwriting Expert. However, the reports of the Babu, who is an Investigating Officer on the criminal side as well as the Handwriting Expert, have not been furnished to him and therefore, the enquiry is vitiated by violation of principles of natural justice. According to the petitioner, the Tribunal has passed an award holding that the domestic enquiry was fair and proper and the charge framed against the petitioner was proved and as against the award of the Labour Court, the writ petition is filed. 3. The first respondent has filed a counter affidavit. It is the case of the first respondent that the factual situation which has been analysed by the Enquiry Officer cannot be re-canvassed by the petitioner in the writ petition. In the counter it is also stated that in respect of the unlawful refund of an amount of Rs.10,070/- the petitioner has committed various discrepancies, which are as follows: "1.Issue of single ticket for 95 passengers which is unusual. 2.Ticket was issued from Madras to Ahmedabad for which Message charges of Rs.3/- were collected. 3.Message No. does not tally with the Message Book. 4.Train No.145 was from Ahmedabad to Madras but the ticket issued was from Madras to Ahmedabad. 5.Train No.145 of 30.12.84 is shown in the Ticket. 30.12.84 was a Sunday, it is Navjeevan express and it was not running on Sundays. 6.The application for cancellation was not there. 7.The ticket did not contain the names of 95 persons. 8.The respondent conclusively submits that the petitioner Shri. Singaravelu did not follow the procedure for refund. " This was also pointed out in the statement of imputation sent with the charge memo. It is the case of the first respondent that simply because the amount of loss has been recovered from the salary of the petitioner, https://hcservices.ecourts.gov.in/hcservices/ it does not mean that the conduct of the petitioner causing embezzlement and committing breach of orders will be scrapped. In this regard, the first respondent also refers to the order passed by the Central Administrative Tribunal in O.A.No.156 of 1990 stating that recovery of the amount from the petitioner's salary will not have the effect of preventing imposition of penalty for the loss within the meaning of Clause 6(v) of the Rules. It is also the case of the first respondent that the report of the Handwriting Expert was not at all relied upon either by the Enquiry Officer or by the Disciplinary Authority for proving the misconduct against the petitioner. 3 (a). It is the further case of the first respondent that even though the Management has let in 10 witnesses, the petitioner has not chosen to examine any witness nor produced any documents to prove his innocence. It is also the case of the first respondent that pursuant to the order of the Central Administrative Tribunal in O.A.No.156 of 1990, a copy of the enquiry report was furnished to the petitioner and the Disciplinary Authority has considered the case on merits and the Appellate Authority has also considered the same and awarded punishment of compulsory retirement by reducing the punishment of removal. As far as the representation of the delinquent through another person, the case of the first respondent is that it is subject to the Service Rules. A lawyer can be permitted to be represented in the domestic enquiry only if the Rules specifically provides and there is no provision under the relevant Rules to provide an assistant from the lawyer to the delinquent. It is also stated that as per the Service Rules there is no provision for an outsider to represent the delinquent. According to the first respondent, non- production of the report of V.S.S.P. Babu, the Investigating Officer as well as the Handwriting Expert has not vitiated the enquiry proceedings, since they were not relied upon in the domestic enquiry proceedings to substantiate the charges. The first respondent would also further submit that the conduct of the petitioner is so serious that it is not only misappropriation of amount of Rs.10,070/-, but it is also by making false entries in the Railway records as if he has refunded the amount based on a bogus ticket stated to have been issued on 29.10.1984 for 95 adults especially on a day when the Navjeevan Express was not at all running. Therefore, according to the first respondent, the charges framed against the petitioner is proved and the same are serious and therefore there is no defect in the enquiry proceedings and the writ petition deserved to be dismissed. 4. Mr. R. Kamatchi Sundaram, learned counsel appearing for the petitioner, would submit the following points in support of the petitioner: (i) When the first respondent Management has engaged a C.B.I. Inspector to assist the Management in the domestic enquiry, the petitioner should have been given an opportunity to represent through a proper person of his choice, so as to have a right of effective defence. According to him, the C.B.I. Inspector is presumed to be a legally trained person and therefore to match with his representation, the employee, viz., the petitioner should have been given permission for assistance of a legal practitioner. https://hcservices.ecourts.gov.in/hcservices/ He would submit that by not permitting the petitioner to have such assistance, a gross disadvantage is suffered by the petitioner and therefore, according to him, the disciplinary proceedings are vitiated. He has relied upon various judgments, viz., (a) Indian Airlines Corporation vs. N. Sundaram (1992 (II) L.L.N. 811); (b) The Board of Trustees of the Port of Bombay vs. Dilipkumar Raghavendranath Nadkarni (1983 (1) L.L.J. 1); (c) S. Gnanasambandam vs. Tamil Nadu Cements Corporation Ltd., (2001 (3) L.L.N. 677); (d) Chairman and Managing Director, Hindustan Teleprinters Ltd., vs. M.Rajan Isaac (2005 (2) L.L.N. 853). (ii)The charge memo contains the names of witnesses, including the Handwriting Expert, viz., D.R. Rohilla, Senior Scientific Officer and also P.S.S.P. Babu, Inspector of Police. It was the duty of the first respondent Management to furnish the copies of report submitted by them. While admitting that the said D.R. Rohilla, was not examined as witness, it is the case of the learned counsel that the Inspector of Police was examined as PW.10 and therefore, it is incumbent on the part of the Railway to furnish the copy of the report and according to him, non- furnishing of the Handwriting Expert's report is fatal to the proceedings. He would also submit that by referring to Handwriting Expert's report, if it is supplied, the petitioner/delinquent would have been in a better position to defend his case. Likewise, in respect of non-furnishing of the report of P.S.S.P. Babu, Inspector of Police, who investigated the criminal case, he submits that the same violates the principles of natural justice. (iii) According to the learned counsel for the petitioner, the Disciplinary Authority has traversed beyond the charge. According to him, the charge memo does not say that there is manipulation of the number of passengers from 90 to 95. While the charge relates to improper refund of the amount under a cancelled ticket, the Disciplinary Authority has gone beyond the same to find that the petitioner has manipulated the number of travelers from 90 to 95. Therefore, according to him, the entire proceedings are vitiated and these factors have not been considered by the Labour Court. 5. Per contra, Mrs. Aparna Nandakumar, learned counsel appearing for the first respondent has submitted the following points: (i)As far as the legal practitioner to represent the petitioner, she would submit that as per the records, https://hcservices.ecourts.gov.in/hcservices/ it is seen that the petitioner himself has never asked for the assistance of a legal practitioner and he only asked for a Government servant of his choice and as per the relevant Rules, especially Rule 9 (13) (1) (a), the delinquent officer of the Railway can represent his case by assistance of any other Railway servant including a retired Railway servant. She would also submit that on the facts and circumstances of the case, there is no legal issue involved and therefore it is not correct to state that the C.B.I. Inspector who has represented the Management is a legally trained person; (ii) As far as the report of Handwriting Expert is concerned, her submission is that the Management has not relied upon the report of the Handwriting Expert or the Investigating Officer. Therefore, there was no question to submit the said reports. In any event, it is her contention that the Handwriting Expert was not at all examined, but, on the other hand, the Investigating Officer was examined and the petitioner was given an opportunity to cross examine him and the domestic enquiry or the departmental proceedings are not based on the criminal investigation done by the said witness P.W.10; (iii) Regarding the next argument that the Disciplinary Authority has traversed beyond the charge, the learned counsel for the first respondent would submit that the imputation of charge itself makes everything clear and therefore there was no question of Disciplinary Authority having traversed beyond the charge and therefore according to her, the petitioner has availed the opportunity to the maximum possible extent and he has participated in the domestic enquiry throughout and in view of the same there is no question of violation of principles of natural justice and therefore she submitted that the writ petition is liable to be dismissed. 6. I have heard the learned counsel for the petitioner as also the first respondent and perused the entire records. 7. A reference to the charge framed against the petitioner dated 23.07.1986 shows that the said charge was in violation of the Rules under the Railway Service (Conduct) Rules, 1966. The charge framed against the petitioner is as follows: " That the said Sri. S. Singaravelu, while functioning as Enquiry-cum-Reservation Clerk, Reservation Office, Madras Central, Southern Railway, Madras committed misconduct and failed to maintain absolute integrity and devotion to duty and did acts of which were unbecoming of a Railway of Govt. servant inasmuch as he has granted and misappropriated an amount of Rs.10070/- in or about 15.12.84 by 18.15 https://hcservices.ecourts.gov.in/hcservices/ hours, belonging to Railway Office, by making false entries in Railway records as if he had refunded the said amount on demand for cancellation by a bona fide passenger on the passenger foil of B.P.T.No.085444 purported to have issued on 29.10.84 for 95 adults for journey on 30.12.84 in Train No.145-Navjeevan Express from Ahmedabad to Madras Central in violation of Office procedures and he thereby violated Rule 3(1)(i), 3(1) (ii) and 3(1)(iii) of the Railway Service (Conduct) Rules, 1966." 8. Along with the said Charge Memo, Statement of Imputation has been given to the petitioner, which contains details along with the discrepancies found in Passenger Foil No.085444, on which the refund was stated to have been made by the petitioner. The Statement of Imputation specifically states the following discrepancies. "1. Issue of single ticket for 95 passengers which is unusual. 2.Ticket was issued from Madras to Ahmedabad for which Message charges of Rs.3/- were collected. 3.Message No.MC-22/29/7/RJ of 29.10.84 is not at all tallying with the Message Book. 4. Raghavan E.C.R.C who is said to have issued it never worked in Central Station. 5.Train No.145 was from Ahmedabad to Madras but the ticket issued was from Madras to Ahmedabad. 6. Train No.145 of 30.12.84 is shown in the Ticket. 30.12.84 was a Sunday, it is Navjeevan express and it was not running on Sundays. 7. The application for cancellation was not there. 8. The ticket did not contain the names of 95 persons." 9. It is also true that the list of documents and witnesses relied upon contains the name of one D.R. Rohilla, Senior Scientific Officer as Witness No.12 and one P.S.S.P. Babu, Inspector of Police as one of the witnesses. It is also not in dispute that the said Handwriting Expert was not examined as his report was also not relied upon either in the domestic enquiry or by the Disciplinary Authority. Likewise, it is also not in dispute that the said Babu, Inspector of Police was examined as a witness (PW.10) and reference to the proceedings shows that the report of the Inspector of Police has not been relied upon for the purpose of proving the charges. A reference to the imputation of charges show that there was no application for cancellation and another astonishing factor is that the ticket stated to have been produced before the petitioner for refund, which, according to the first respondent, was a bogus ticket and was relating to Train No.145 and that train was to run from Ahamedabad to Madras as Navjeevan Express. But, the ticket contains as if the Train No.145 is a Navjeevan Express to run from Madras to Ahamedabad. More astonishingly, the ticket shows that the train was to run on Sunday, viz., on 30.12.1984 and it is not in dispute that Navjeevan Express did not run on Sunday. Moreover, the said ticket stated to have been produced before the petitioner relates to 95 passengers and it did not contain the names https://hcservices.ecourts.gov.in/hcservices/ of the 95 persons and therefore in such circumstances, the refund made by the petitioner is questioned. Prima facie there is no difficulty in coming to the conclusion that bereft of the other argument that the Cancellation Clerk has made endorsement and therefore, as a Refund Clerk, he has only refunded the amount, as a refunding officer, the petitioner cannot say that he has no duty to find out that such train was not in existence at all and such train was running from Madras to Ahamedabad while the ticket produced before him states otherwise. Therefore, the contention as if the petitioner has only followed what was endorsed by the refund officer cannot be countenanced. Further, it is relevant to point out that it is the case of the first respondent Management that there was no cancellation form at all and therefore the ticket produced across the counter to the petitioner was only a bogus ticket. The case of the petitioner is that on that date Sri. T. Gnaneswara Rao was working in the next counter as Cancellation Clerk and after he has made endorsement, the ticket was produced before the petitioner and on the basis of that endorsement he has made the refund. When a specific question was put by the petitioner in cross examination to the said T. Gnaneswara Rao, he has specifically stated that there was no cancellation remark in the ticket. The question and answer in this regard is as follows: "Q.19. Having worked in the issue and at refund counter, please see exhibit P.1 and say what are the defects you are able to note? A. T.No. is mentioned as 145 whereas the ticket is for Madras Central to Ahmedabad and no cancellation remark were made in the ticket." Therefore, it is clear that Ex.P.1-ticket does not contain any cancellation remark, as it is elicited by the petitioner himself during cross examination of the said Cancellation Clerk Sri.T. Gnaneswara Rao. In such circumstances, it is also clear that the stand taken by the petitioner as if he has acted based on cancellation remark made by the Cancellation Clerk and therefore there was no intentional or willful act of misappropriation and utmost negligence, cannot also be accepted. 10. It is also not in dispute that throughout the domestic enquiry proceedings the petitioner has participated and in fact effectively cross examined various witnesses examined on the side of the first respondent Management. It is clear from the records that the petitioner has not chosen to produce any evidence to substantiate his defence. This is the factual position. In the light of the above circumstances, I proceed to consider the various arguments advanced by the respective counsel. 11. In respect of first contention raised by the learned counsel appearing for the petitioner that the petitioner was not permitted to effectively defend his case during domestic enquiry, it is his contention that when the first respondent Management has permitted the C.B.I. Inspector to assist the Management, he should be presumed to be a legally trained person and therefore, the petitioner also should have been permitted to be assisted by a legally trained person. First of all, the contention that the C.B.I. Inspector, who has been appointed to assist the first respondent Management, is a legally trained person, is not https://hcservices.ecourts.gov.in/hcservices/ sustainable. Simply because the said C.B.I. Inspector is well versed in the investigation in respect of the offences, he cannot be claimed to be a legally qualified person for the purpose of disciplinary proceedings like in the present case. Admittedly, the said C.B.I. Inspector, who has assisted the first respondent Management is not a legal practitioner and therefore, in such circumstances,, the claim of the petitioner as if he should have been permitted to represent through a legal practitioner is not acceptable. Even on the factual position, in the present case, as rightly pointed out by the learned counsel appearing for the first respondent, the claim of the petitioner himself is that he wanted himself to be assisted by a Government servant of his choice. Even assuming that the C.B.I. Inspector has been appointed as a Presenting Officer for the first respondent, it was never the claim of the petitioner to have the assistance of a legal practitioner. The evidence of the petitioner before the Enquiry Officer in this regard is very clear. The question and answer are as follows: "Q.1. A copy of the charge memorandum together with the statement of imputations of misconduct or misbehaviour is read over and given to you by me now. Do you understand the charge/s thoroughly? Do you admit the charge/s? If not, are you ready to proceed with the enquiry? Have you perused all the documents connected with the case? A. I understand the charges but deny the same. The statements/opinion of the witnesses mentioned against items 12 to 16 in Annexure IV of the Charge Memorandum which are necessary for me for my defence, I have not been made available to me. I request that these may be made available and on receipt of these I am prepared to proceed with the enquiry. Again I request Enquiry Officer to