THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 5814 of 2010 ORDER: This writ petition is filed for issuance of a Writ of Mandamus declaring the judgment dated 22.02.2010 rendered by the Central Administrate Tribunal dismissing O.A.No.71 of 2010 as premature with inconsistent observation and conclusions and also approving the silence on the part of the respondents in non-disposal of representations dated 10.03.2008, 16.12.2009, 20.01.2010 and 29.01.2010 touching upon the aspects of the jurisdiction of the Enquiry Officer in appointment as well as rank and also non-appointment of presenting officer, as arbitrary and illegal and consequently to direct the respondents in general and respondent No.3 in particular to dispose of the above representations considering all the aspects and pending consideration to stay all further proceedings relating to the disciplinary proceedings dated 21.06.2007. The petitioner filed O.A.No.71 of 2010 assailing the action of the third respondent in not responding to the representations of the petitioner in furtherance of the charge sheet dated 21.06.2007 issued by the first respondent, who is the disciplinary authority, as illegal and arbitrary and in direct contravention of the law laid down by the Supreme Court in Union of India v. Prakash Kmar Tandon[1] read with Railway Service (Disciplinary and Appeal) Rules, 1969 (for short ‘the D&A Rules’). It is stated that the petitioner was appointed on 19.04.1993 as Assistant Station Master by way of direct recruitment in the South Central Railway and thereafter he was promoted to Deputy Station Superintendent at Miryalguda Railway Station falling within the territorial jurisdiction of Guntur Railway Division. He was placed under suspension on 18.05.2007 while working at Miryalguda Railway Station on account of the check said to have been taken place on 17.05.2007. On 25.05.2007 he was reinstated into service on revoking the suspension order and he was allowed to continue at Miryalguda Railway Station. The petitioner was issued charge sheet on 21.06.2007 by the first respondent, who is the disciplinary authority in exercise of the powers conferred in him under Rule 25 of the D&A Rules, on the allegation that he has collected excess amount of Rs.3.00 from a decoy passenger and railway employee while issuing second mail/express journey ticket from Miryalguda to Visakhapatnam for three adults, according to which there is failure on his part to maintain absolute integrity, devotion to duty amounting to violation of Rule No.3(1) (i) to Rule 3(1) (ii) and also (iii) and also Rule 26 of DA Rules. It was also alleged that the petitioner was in possession of one blank UTS Ticket. In response to the charge sheet, the petitioner submitted a representation on 10.07.2007 denying all the charges and requested to consider dropping of the charges levelled against him. He contended that the fourth respondent, namely, the Senior Deputy General Manager, is the Chief Vigilance Officer of the Vigilance Department under whose directions the vigilance/decoy checks are conducted. The second respondent, who has been appointed as an Enquiry Officer, attached to the Vigilance Department working under the direct supervision and control of the fourth respondent, is belonging to Group-C. However, according to Serial Circular No.149/90, for an inquiry against Group-C staff, the Enquiry Officer should be at least a Group-B Officer. Hence appointment of Enquiry Officer belonging to Group-C category to enquire into the departmental proceedings initiated is in violation of Railway Board Instructions contained in Sr. Circular No.149/90. The Tribunal after hearing both sides held that in the representation submitted by the applicant on 16.12.2009 the applicant has not taken the point of violation of instruction/guidelines. In the representation dated 29.01.2010 he has taken the point that the Enquiry Officer cannot be appointed from the Vigilance Department. The applicant also stated that Mr. Mohd Majeed Khan is Group-C employee of Operating Department, and on deputation, he worked as Vigilance Inspector for four years and again he was on deputation as Inquiry Inspector under the control of SDGM/CVO/SC. The applicant also submitted a representation alleging bias against the Enquiry Officer, which is yet to be disposed of. Since the competency of the disciplinary authority is not under challenge. The correctness of the charge memo cannot be questioned or decided at this stage. Hence, the applicant can raise all the points raised in the representation before the authority during the course of enquiry and the concerned authority shall consider the same and take appropriate decision. Observing so, the Tribunal dismissed the O.A. Aggrieved by the same, the petitioner filed the present writ petition. The learned counsel for the petitioner contended that the Enquiry Officer appointed is of the same cadre, but as per D&A Rules the Enquiry Officer should be of a higher rank and not of the same rank. Since the Enquiry Officer is working in the same Department, i.e., Vigilance Department, he will not get any fair treatment. Apart from that, the petitioner wanted to change the Enquiry Officer so as to have a fair treatment. Hence the petitioner made representations to the General Manager, who is the revisional authority, nonetheless those representations have not been disposed of, which causes prejudice to the petitioner. The learned counsel has drawn our attention to Circular No.61/2000 dated 11.04.2000 with regard to delegation of powers in respect of the D&A Rules, where the matter has been re examined, and it has been decided that wherever DRMs are the disciplinary/appellate authorities, appeal or revision, as the case may be, lies to the Principal Head of the Department (PHOD) in which the charged official is working and not to be functional Head of the Department (HOD) and the functional HODs shall continue to be the appellate/revising authorities in cases where ADRMs have dealt with the cases in the capacity of disciplinary/appellate authorities, as the case may be. The learned counsel further contended that though the petitioner had made representations to the General Manager, who is one of the revisional authority and who is the Head of the Zone, without considering the same, the impugned order has been passed. On the other hand, learned Standing Counsel for the respondents contended that the Tribunal has not committed any irregularities since the petitioner has been transferred from Miryalguda to Nanded Division along with the post on 30.08.2007. The petitioner had not joined the transferred post but applied for sick leave without admitting him in railway hospital. He also contended that the bias pleaded is that the Enquiry Officer is of the same cadre. The petitioner adopted this procedure only to prolong the enquiry and protract the litigation. He further contended that the petitioner has not indicated what type of bias he is expecting. Admittedly the petitioner impleaded the Enquiry Officer as the second respondent to the writ petition. The main grievance of the petitioner is that the Enquiry Officer belongs to the Vigilance Department and of the same rank, and hence, he is not expecting fair treatment in the hands of the Enquiry Officer if the enquiry is proceeded with by him. The petitioner submitted representations ventilating his grievance that if the enquiry is proceeded with by the present Enquiry Officer he will not get fair treatment. Rule 9(c) of the D&A Rules reads as under. Where the disciplinary authority itself enquires into any article of charge or appoints a Board of Enquiry or any other enquiring authority for holding an inquiry into such charge it may by an order in writing, appoint a railway or any other Government servant to be known as “Presenting Officer” on its behalf in support of articles of charge. The contention of the petitioner is that presently he is working at zonal level and the Enquiry Officer appointed is also of the zonal level. The Supreme Court in 1 Supra held that no officer should be appointed as an enquiry officer, who is of the same rank and particularly in respect of the Vigilance Department. Apart from the same, Circular No.61 clearly contemplates that the appeal or revision lies to the Principal Head of the Department. The learned Standing Counsel submitted that if the enquiry has not been completed it shall not be proceeded with until and unless the representation of the petitioner is disposed of by the Principal Head of the Department. Since the petitioner submitted his representations to the General Manager, let the Railway forward the representations to the Principal Head of the Department. In the circumstances, the writ petition is disposed of modifying the order passed by the Tribunal, and the respondents are directed to place the representations submitted by the petitioner before the revisional authority, who is stated to be Chief Passenger Trafic Manager/SC and the authority concerned shall dispose of the same within a period of two weeks from the date of receipt of a copy of this order. Till such time, the respondents shall not proceed with the disciplinary proceedings. ________________________ (GHULAM MOHAMMED, J.) _______________________ (G.BHAVANI PRASAD, J.) 31st March, 2010 Note: Issue C.C. in 3 days. (B/o) Js. [1] (2009) 1 SCC (L&S) 394