W.P.(C) No. 1717 of 2004 page 1 of 25 IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 15th January, 2010 Decision on : 19th March 2010 W.P.(C) No. 1717 of 2004 SHRIKANT PRAJAPATI ..... Petitioner Through: Ms. Meenu Mainee, Advocate. versus UNION OF INDIA & ORS. ..... Respondents Through: Mr. V.S.R. Krishna, Advocate. CORAM: HON'BLE DR. JUSTICE S.MURALIDHAR HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Whether Reporters of local papers may be allowed to see the judgment? No 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes J U D G M E N T S. Muralidhar, J. 1. This petition initially sought to challenge a judgment dated 10th February 2003 passed by the Central Administrative Tribunal („CAT‟) Principal Bench, New Delhi in OA No. 1738 of 2000. By a subsequent amendment, the writ Petitioner was permitted to challenge an order dated 7th July 2008 passed by the Appellate Authority, i.e. Secretary to the General Manager, Northern Railways upholding the decision of the Disciplinary Authority W.P.(C) No. 1717 of 2004 page 2 of 25 removing the Petitioner from service. 2. The background to the present case is that the Petitioner was appointed as a Bungalow Khalasi in the pay scale of Rs.750-950 to work with Shri N.P. Srivastava, Adviser (Budget), Railway Board initially for a period of three months from 19th June 1996 to 18th September 1996. The working period of the Petitioner was extended first to 30th September 1996 and then till 31st December 1996. It is not in dispute that Petitioner‟s services were extended even thereafter. 3. In 1998 when Shri N.P. Srivastava was promoted and posted as General Manager, Railway Electrification at Allahabad, the Petitioner was, under his orders, deputed to work in Delhi. The order dated 28th January 1998 issued by the Head Quarters‟ Office, Central Organisation, Railway Electrification, Allahabad to the APO Railway Electrification, Allahabad reads as under: “Letter No.G-6/23/Pt.8 Dated: 28.01.1998 APO RAILWAY ELECTRIFICATION, ALLAHBAD. Sub: Regarding payment of Shri Shrikant Prajapati. In accordance with the orders of the General Manager, Shri Shrikant Prajapati has been deputed to work in Delhi. Arrangements may be made to charge the pay on separate sheet till further orders. Sd: N.P.Singh For General Manager (G), Railway Electrification, Allahabad.” W.P.(C) No. 1717 of 2004 page 3 of 25 4. According to the Petitioner although he was supposed to be working as a Bungalow Khalasi with Shri N.P.Srivastava, by virtue of the above order he was now required to work with his daughter Ms. Teesa Srivastava who was living in a private residence at Vasant Kunj in New Delhi. It is the Petitioner‟s case that Ms. Teesa Srivastava was living alone and he was required to work as her domestic servant cooking her meals, cleaning her house and utensils and so on. It is alleged that the Petitioner was tortured mentally and physically as he was made to work for 24 hours at the residence of Ms. Teesa Srivastava who on the slightest pretext used to reprimand, abuse and even assault the Petitioner. The Petitioner alleges that Ms. Teesa Srivastava made a false report against him that he was absenting from duty since 8th June 1998. As a result, a letter dated 13th October 1998 was issued by the General Manager Railway Electrification to the Petitioner at his address at District Azam Garh, UP asking him to report for duty failing which the disciplinary enquiry would be initiated against him. 5. The Petitioner states that he appeared on 10th November 1998 and submitted the following letter: “Shri J.P.Singh Asstt. Secy. To G.M. Central Rail Elect. Org. Allahabad. Sir, Sub: Unauthorised absence. In accordance to your letter No.G6/23/D&R dt. 30.10.98 directing me to report for duty, I beg to report for duty on date. W.P.(C) No. 1717 of 2004 page 4 of 25 Kindly allow me to resume duty as I was seriously ill and could not attend my duties early. Thanking you, Yours faithfully, (Sri Kant Prajapaty) Bungenlow Khalasi. Under GM/RE. Dated: 10.11.98” 6. It is stated that notwithstanding the above request, on 11th November 1998 a charge sheet was served upon the Petitioner for his unauthorised absence from 8th June 1998 onwards. The Petitioner in his reply dated 17th November 1998 denied the charges. By a separate letter dated 25th December 1998 the Petitioner requested the Public Relation Officer to allow him to join duty pending enquiry. However, he was not permitted to do so. 7. The case of the Petitioner is that although he had been deputed to work at the residence of Ms. Teesa Srivastava at Vasant Kunj in Delhi, his attendance was being marked and payment was being made by the Chief Liasion Inspector, Railway Electrification, Tilak Bridge, New Delhi. It is stated that some time later it transpired during the inquiry that the muster sheet was forged showing the Petitioner‟s attendance in the office of the General Manager (Electrification), Railway Electrification at Allahabad. 8. One Shri Mohd. Masroof, working as Assistant Personnel Officer was appointed as an enquiry officer. The Petitioner has submitted a letter dated W.P.(C) No. 1717 of 2004 page 5 of 25 24th January 1999 seeking permission to resume duties. He prayed that in the alternative he should at least be placed under suspension. Another letter dated 26th January 1999 was written by his Defence Helper stating that his family was going for a pilgrimage, and that the date of the preliminary enquiry should be adjourned to the first week of March 1999. However, by a letter dated 1st February 1999 the Inquiry Officer declined to do so. This led to another application dated 17th February 1999 by the Petitioner to the Inquiry Officer indicating that no journey pass was made available to the Petitioner for travelling to Allahabad to attend the DAR enquiry. However the facility was made available to his Defence Helper. The Petitioner also pointed out that he had also not been reinstated during the pendency of the enquiry. Consequently, the Inquiry Officer was requested to forward the case of the Petitioner to the competent authority for a decision on whether the Petitioner should be allowed to resume duties. It is stated that on 9th March 1999 the Inquiry Officer rejected the request of the Petitioner and fixed the next date in the inquiry as 22nd March 1999. 9. Aggrieved by the above decision of the Inquiry Officer, the Petitioner on 15th March 1999 wrote to the PRO, Railway Electrification requesting that he should either be allowed to resume duties or be placed under suspension. In reply thereto, on 30th March 1999 the General Manager informed the Petitioner that he should appear before the Secretary to the General Manager, Railway Electrification on 16th April 1999. For a second time on 6th April 1999, the Petitioner wrote to the General Manager, Railway Electrification seeking passes for himself as well as for his Defence Helper to appear before the Inquiry Officer as well as before the Secretary to the W.P.(C) No. 1717 of 2004 page 6 of 25 General Manager. 10. By a letter dated 7th May 1999, the Inquiry Officer („IO‟) informed the Petitioner that his complaint against the IO had been rejected by the competent authority. He was directed to appear on 20th May 1999 for the preliminary enquiry. 11. The Petitioner‟s Defence Helper expressed his unwillingness to continue on account of ill-health. Thereafter Shri Mohd. Ismail was nominated by the Petitioner as his Defence Helper. Shri Ismail made an application dated 8th June 1999 requesting for additional documents including copies of the letters dated 23rd June 1998 and 2nd July 1998 and also a copy of the report regarding unauthorized absence along with other documents. After the witnesses were examined by the Inquiry Officer, pursuant to an order, the Petitioner submitted his defence note on 20th December 1999. 12. However nothing was heard from the Respondents thereafter. The Petitioner points out that after he was turned out by Ms. Teesa Srivastava, another Khalasi Smt. Meera Devi working in the Railway Electrification was deputed the work in the residence of Ms. Teesa Srivastava. Smt. Meera Devi also was turned out by Ms. Teesa Srivastava, who reported the matter to her father. The General Manager thereafter passed an order on 4th August 1999 transferring Smt. Meera Devi from Delhi to Ambala. Smt. Meera Devi challenged the said orders by filing OA No. 1771 of 1999 in the CAT. An order was passed by the CAT on 19th August 1999 restraining the transfer of Smt. Meera Devi to Ambala. After notice was served upon Respondent W.P.(C) No. 1717 of 2004 page 7 of 25 No.1, the CAT was informed that by an order dated 1st September 1999 the transfer order of Smt. Meera Devi had been cancelled. 13. With the Petitioner having filed his reply in December 1999 and not having been informed of the outcome of the enquiry, he filed OA No. 1738 of 2000 in the CAT on 29th August 2000. During the pendency of the OA, the Respondents passed an order dated 16th March 2001 removing the Petitioner from service. This led to the Petitioner amending the application before the CAT to challenge the said order. 14. The CAT by the impugned order dated 10th February 2003 held that the Petitioner had been posted at the camp office of the General Manager at Delhi from where he had absented himself from 8th June 1998. He was not permitted to rejoin duty after he returned from his illness on the ground that no medical certificate was produced. The CAT noted that the Petitioner did seek permission of the Respondents to rejoin duties. He had submitted medical certificates for the period of October and November 1998. The CAT held that “there is nothing on record to show that the period of absence from June to October 1998 has been regularized in any manner.” Consequently, it was concluded that “the proceedings initiated against the applicant were, therefore, in order and cannot be assailed.” The punishment was also held to be not harsh or disproportionate. The CAT, nevertheless found that the Respondents did not place the Petitioner under suspension at any time between the period when he was found to be absent and 16th March 2001 when he was ultimately removed. Therefore the said period i.e. 8th June 1998 to 16th March 2001 was directed to be regularised in accordance W.P.(C) No. 1717 of 2004 page 8 of 25 with law. 15. In conclusion, the CAT in its impugned ordered observed and directed as under: “In the circumstances, we are convinced that the respondents‟ action in initiating disciplinary proceedings against the applicant for his unauthorized absence from June, 1998 till October, 1998, which culminated in his removal on 16.3.2001. The same is good in law and is, therefore, upheld and OA is dismissed. Side by side, we direct the respondents to pass appropriate orders with regard to the period he was stated to be absent from duty, i.e., from June, 1998 to March, 2001 in accordance with law. This may be done within four months from the date of receipt of a copy of this order is entitled for draw his pay and allowances for the period after his return from duty in October, 1998 till the date of his removal, i.e., 16.3.2001. This amount may be sanctioned and disbursed to the applicant within a period of two months from the date of receipt of a copy of this order.” 16. Despite notice being issued in this petition on 6th February 2004, no counter affidavit was filed on behalf of the Respondents till October 2006. When the case was heard on 4th October 2006, this Court directed a responsible officer from the Respondents to be present on the next date i.e. 31st October 2006 to explain how the Petitioner who had been engaged as a Bungalow Khalasi to work with the General Manager, Railway Electrification at Allahabad was working at Delhi while the General Manager himself was posted at Allahabad. Thereafter, this Court passed the following order: W.P.(C) No. 1717 of 2004 page 9 of 25 “An advance copy of the counter affidavit has been handed over to the counsel for the petitioner. Let the same be placed on record. Let the respondents file an affidavit giving full details and particulars with regard to the camp office at Delhi of the General Manager, Railway Electrification, the location of the said office, whether it was a leased or licenced premises and the staff deployed therein, and the period thereof, whether any expense for utility such as water, electricity etc. were in fact incurred at the camp office. The affidavit be filed within a week. A responsible officer from the respondent side would also be present on the next date of hearing. List on 31.10.2006.” 17. On 31st October 2006, one Shri Rakesh Chaturvedi, Liason Officer of the Respondents appeared. He informed the Court that the Respondents were reviewing the question of engagement of the Petitioner. Thereafter on 31st October 2006 the following order was passed by this Court: “Mr. Rakesh Chaturvedi, Liason Officer is present. He seeks further time to file the affidavit in terms of order dated 4.10.2006. He says that the respondents are also reviewing the question of the engagement of the petitioner. Affidavit of the Deputy General Manager be also filed within 15 days from today, failing which the Deputy General Manager (Electrification) would personally be present in Court on the next date. List on 27.11.2006.” W.P.(C) No. 1717 of 2004 page 10 of 25 18. Pursuant to the above order an additional affidavit was filed by the Respondents on 24th November 2006 stating that the camp office of the General Manager, Northern Organisation for Railway Electrification was situated behind Hanuman Mandir, Tilak Bridge, Railway Colony near ITO, New Delhi and that it consisted of 7 rooms with 29 staff deployed therein. 19. On 27th November 2006, this Court was again informed that the Respondents were still examining the feasibility of engaging the Petitioner. The following order was passed by this Court: “Let the original file relating to the termination of the petitioner be produced in court. In the meanwhile, learned counsel for respondent submits that they are also examining the feasibility of engagement of the petitioner and would be seeking necessary instructions in this regard from the competent authority. Renotify on 19th January, 2007.” 20. Again on 19th January 2007, learned counsel for the Respondents sought time to take instructions and the case was adjourned. 21. On 18th July 2008, the additional affidavit was filed by the Petitioner detailing all that had transpired till then. This Court was informed that the Petitioner had submitted an appeal to the Appellate Authority on 26th March 2007 against the order of removal from service. However that appeal had been rejected on 11th July 2007 by a non-speaking order. When the case came up for hearing on 7th December 2007 this Court passed the following order: W.P.(C) No. 1717 of 2004 page 11 of 25 “Affidavit be filed and placed in the record. While we are not entirely satisfied with the manner in which the appeal filed by the petitioner has been handled, nevertheless, we permit the petitioner to challenge the order dated 11th July 2007 dismissing the appeal filed by the petitioner before the Central Administrative Tribunal (CAT). If a challenge is made before the CAT against the said order within four weeks from today, the CAT is directed to dispose of the said application not later than three months from date of first hearing. Parties are directed to appear before CAT on 9th January 2008 when the OA challenging the order dated 11th October, 2007 shall be listed. List on 20th April 2008 before this Court.” 22. Pursuant to the above order, the case was heard by the CAT. By an order dated 3rd March 2008, the CAT remanded the matter to the Appellate Authority to pass a fresh speaking order. Pursuant thereto on 7th July 2008, the Appellate Authority by another non-speaking order reiterated the dismissal of the appeal. 23. Instead of remanding the case to the CAT once again, this Court permitted the Petitioner to amend the writ petition to challenge the order dated 7th July 2008. The order passed by this Court on 29th August 2008 reads as follows: “The learned counsel for the petitioner states that pursuant to the orders passed by this Court, the CAT by its order dated 14th March, 2008 had remanded the matter W.P.(C) No. 1717 of 2004 page 12 of 25 to the Appellate Authority of the Railways to pass a speaking order. By order dated 7th July 2008, the Appellate Authority has dismissed the said matter reiterating the earlier order and according to the petitioner the said order has been passed again without any reasons. The learned counsel for the petitioner seeks leave to challenge the above order directly under Article 226 of the Constitution. Considering the facts of the case and the tortuous nature of this litigation, we permit the petitioner to do so by amending this writ petition. The petitioner is directed to serve a copy of the amended writ petition on the respondents. List on 3rd October, 2008. Copy of the order be given dasti to the learned counsel for the petitioner.” 24. Several adjournments were granted to enable the Respondents to either file a reply or to take a decision. Ultimately, the Court heard the matter finally on 15th January 2010. No reply had been filed to the amended writ petition. Learned counsel for the Respondents stated that he would go ahead with the final arguments on the basis of the existing pleadings. 25. Learned counsel for the Petitioner submitted that the fundamental question was how the Petitioner, who was posted as a Bungalow Khalasi with the General Manager Railway Electrification at Allahabad, could be transferred to Delhi to work at the residence of his daughter while the W.P.(C) No. 1717 of 2004 page 13 of 25 General Manager continued to be posted at Allahabad. This had not been answered by the Respondents. The so-called unauthorised absence of the Petitioner at Allahabad was, therefore, on the face of it untenable. It is submitted that the articles of charge make it abundantly clear that the allegation was that while working as Bungalow Khalasi at the General Manager‟s Bungalow, the Petitioner “has committed misconduct and he is absenting unauthorisedly with effect from 8th June 1998 without any leave or permission…”. However the CAT had erroneously accepted the explanation offered by the Respondents that the Petitioner was in fact unauthorisedly absent from the camp office at Delhi. This was a complete change of stand of the Respondents which ought not to have been permitted by the CAT. 26. Secondly, it is submitted that the letters on record available with the Respondents clearly show that he had been requesting for issuance of a railway pass to undertake the journey from Delhi to Allahabad to attend the disciplinary enquiry. This had been wrongly refused, despite the fact that the Petitioner, a railway employee, had not even been placed under suspension during this period. It was not the case of the Respondents that the Petitioner was not in Delhi during this time. Consequently, the Petitioner was denied effective participation in the enquiry. It is submitted that the enquiry was totally unfair and biased and, therefore, the impugned order of removal of the Petitioner stood vitiated. 27. Thirdly, it is submitted that the cross-examination of Shri R.S.Vishwakarma, the principal witness who appeared on behalf of the Railways, revealed that the Respondents were maintaining the Petitioner‟s W.P.(C) No. 1717 of 2004 page 14 of 25 muster roll at Allahabad while he was supposed to be working at the camp office in Delhi. This completely contradicted the case of the Respondents. If indeed he was posted at the camp office in Delhi, he could not be expected to be present at Allahabad. 28. Fourthly, it is submitted that no records were being maintained to show that the Petitioner was posted at the camp office at Delhi. He could, therefore, not prove that he was working at Delhi. This unfair manner of dealing with the Petitioner had led to the passing of a wholly improper order of removal from service. The Appellate Authority had two opportunities to comply with the requirements of the law and pass a speaking order. Yet, it failed to do so. It is submitted that for the aforementioned reasons the impugned order ought to be set aside and the Petitioner shall be reinstated in service with all consequential benefits. 29. As already noticed, the Respondents time and again informed, this Court that they were considering the question of taking the Petitioner back in service. However, despite taking numerous adjournments for this purpose they ultimately decided not to take the Petitioner back in service. Learned counsel for the Respondents, therefore, tried to support the impugned order of removal of the Petitioner by stating that in terms of para 542 of the Railway Establishment Code, the Petitioner was not even entitled to get allowances during the period for which he was found absent from the duty i.e. 8th June 1998 to 16th March 2001. It was denied that the Petitioner had been treated unfairly. It was maintained that the Petitioner did not have the prior permission of the competent authority for his absence. It is submitted W.P.(C) No. 1717 of 2004 page 15 of 25 that since the Petitioner was not suspended “the question of paying the subsistence allowance does not arise.” It is stated that the medical certificates produced by the Petitioner showed that he was not fit to resume his duties during October and November 1998. Therefore, he was rightly not permitted to join duty. 30. The Respondents have simply denied the specific averment in para 3(c) that the Petitioner was compelled to work in the residence of Ms. Teesa Srivastava. The case of the Respondents is that the Petitioner was directed to work at the General Manager‟s camp office at Tilak Bridge, New Delhi. Again in reply to para 3(i) it is denied that the Petitioner was working at the residence of the daughter of Shri N.P. Srivastava. It is stated that “however the payment was being arranged at Delhi at the oral request of the Petitioner because the Petitioner was temporarily posted at the camp office of the General Manager, Tilak Bridge, New Delhi.” 31. This Court has perused the entire record of the case. It depicts an unhappy state of affairs. It raises serious questions about the manner in which the staff attached to the senior officers of the Railways are being shunted out from one place to the other for their private needs, contrary to the specific job description of such person. The fact that the Petitioner was appointed as a Bungalow Khalasi to work with Shri N.P.Srivastava, the General Manager, Railway Electrification is not denied. The fact that on the orders of the General Manager, a letter dated 28th January 1998 was issued posting the Petitioner to work in Delhi is also not denied. What is significant, however, is that the Respondents are unclear why the Petitioner W.P.(C) No. 1717 of 2004 page 16 of 25 was posted at Delhi at the camp office even while the General Manager to whom he was attached was posted at Allahabad. The case of the Respondents that the Petitioner was assigned to the camp office at Delhi appears to have emerged only during the proceedings in the CAT and not earlier. The letter dated 28th January 1998 referred to hereinbefore only shows that the Petitioner “has been deputed to work in Delhi.” It does not talk of a camp office at all. 32. In the memorandum dated 11th November 1998, the specific charge for which an inquiry was conducted was of “unauthorised absence from duty and