CIVIL WRIT JURISDICTION CASE No. 8455 OF 2009 1. UNION OF INDIA THROUGH THE GENERAL MANAGER EASTERN RAILWAY, FAIRLIE PLACE, KOLKATA. 2. CHIEF PERSONNEL OFFICER, EASTERN RAILWAY, FAIRLIE PLACE, KOLKATA. 3. CHIEF MECHANICAL ENGINEER, EASTERN RAILWAY, FAIRLIE PLACE, KOLKATA. 4. CHIEF WORKS MANAGER, JAMALPUR RAILWAY WORKSHOP, EASTERN RAILWAY, JAMALPUR, MUNGER. 5. DEPUTY CHIEF MECHANICAL ENGINEER (PRODUCTION), JAMALPUR RAILWAY WORKSHOP, EASTERN RAILWAY, JAMALPUR, MUNGER. 6. SENIOR SECTION ENGINEER, BRASS FINISHING SHOP, JAMALPUR RAILWAY WORKSHOP, EASTERN RAILWAY, JAMALPUR, MUNGER. ……… Petitioners Versus SHAMBHU SAH, SON OF LATE MOTILAL SAH, RAILWAY QUARTER NO. 699, C.D. JUBLEE ROAD, EAST COLONY, JAMALPUR, POST OFFICE AND POLICE STATION JAMALPUR, DISTRICT- MUNGER. ………. Respondent For The Petitioners :Mr. Anil Singh, Advocate For The Respondent :Mr. Ram Balak Mahto, Senior Advocate P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S.K. Katriar, J. Heard Mr. Anil Singh for the petitioners, and Mr. Ram Balak Mahto for the respondent. This writ petition is directed against the order dated 7.1.2009, passed by the Central Administrative Tribunal, Patna Bench, in O.A. no. 172 of 2005 (Shambhu Sah versus The Union of India & Ors), whereby the original application preferred by the respondent herein has been allowed with certain directions for payment of salary with interest, promotions, etc. 2 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The Chief Works Manager, Jamalpur Workshop(hereinafter referred to as CWM), was on a round of inspection of the factory, described in the charge as „Shop‟. The date of inspection is not stated throughout the proceedings. The respondent was posted in the shop as Sectional Engineer. The CWM put questions to him about the manufacturing process, and he was unable to answer any question at all. This led to framing of charge in terms of rule 11 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as the Rules), and was conveyed to the respondent alongwith covering letter dated 24.5.2004(Annexure-1 to the respondent‟s counter affidavit here). The respondent submitted his explanation dated 1.6.2004 (Annexure-5 to the counter affidavit), taking the plea that he is an office bearer of the trade union, and was instrumental in filing O.A. no. 343 of 2004 before the Calcutta Bench of the Tribunal against the Railway administration, challenging merger of 15 trades. As to the merits of the charges, he stated that “the charge is vague, not explicit and even it does not reflect the date when CWM visited the shop and found me not having the details of the different items manufactured in the shop.” He also stated that he was responsible only to the particular job entrusted to him in his shop. 3. The learned inquiry officer-cum- disciplinary authority (i.e. the Deputy Chief Mechanical Engineer), recorded 3 the following finding: “ Reply is not satisfactory. His salary may be reduced by three stages in the present scale of pay for a period of three years (NC).” The learned disciplinary authority imposed the punishment of reduction of salary by three stages for a period of three years (non cumulative). Aggrieved by the order, the respondent preferred the statutory appeal, which has been allowed in part by order dated 17.1.2005, passed by the CWM, whereby the punishment was reduced from 3 stage reduction of three years to 3 stage reduction of two years. . Aggrieved by the appellate order, the respondent preferred the present O.A. no. 172 of 2005, which has been allowed by the Tribunal. Hence this writ petition. 4. While assailing the validity of the order of the Tribunal, learned counsel for the petitioner submits that the learned Tribunal has erred in holding that detailed procedure was required to be followed to impose the penalty in question. In his submission, minor penalty has been imposed, which could be done by following a summary procedure in view of the provisions of rule 11(1)(b) of the Rules. He next submits that the departmental proceeding is an exception to the principle of law that no body can be a judge in his own cause. Therefore, the learned Tribunal has erred in holding that the authorities erred in holding that ad-hoc disciplinary authority should have been appointed. He relies on the judgment of a Division Bench of this court in the case of Sitaram Paswan versus State of Bihar reported in 2001 (2) P.L.J.R. 717. He next submits that, in view of 4 the facts and circumstances of the case, the learned Tribunal could have utmost remitted the matter back to the learned appellate authority. He lastly submits that the learned Tribunal has exceeded its jurisdiction by giving directions for promotion. 5. Learned counsel for the respondent has supported the order of the learned Tribunal. He submits that the charges are vague. He next submits that the finding of the learned enquiry officer is unsupported by reasons which renders the same bad in law. He relies on the following reported judgments: (i) A.I.R. 1976 S.C. 1785, Siemens Engg. & Mfg. Co. versus Union of India (para. 6) (ii) (1979) 1979 S.C.C. 477, The Manager Government Branch Press and Anr. Versus D.B. Belliappa (para. 24) (iii) A.I.R. 86 S.C. 1173, Ram Chandra vs. Union of India. He lastly submits that learned appellate authority has travelled beyond the charge which, in substance , is of “apathy”, and he has taken into account irrelevant materials. He relies on the judgment of the Supreme Court in A.I.R. 1979 S.C. 1022 (Union of India versus J. Ahmad). 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. We would first of all like to deal with the question whether or not the proceedings in question have been in violation of the principle 5 of law that no body can be judge in his own cause. Learned counsel for the respondent has submitted that the learned disciplinary authority as well as the learned appellate authority had conducted the inspection, the former acted as the Inquiry Officer and the disciplinary authority whereas the CWM had acted as the appellate authority. This question fell for the consideration of a Division Bench of this court to which one of us (S.K. Katriar,J), was a party. The appellant there was Enforcement Sub-Inspector in the services of the Bihar Government, and was posted in Patna. A sitting M.L.A. along with a number of goons armed with sophisticated weapons entered into the chambers of the Transport Commissioner, and had the transfer order with respect to the appellant signed at gun point, whereafter he joined at Siwan. The learned disciplinary authority took action in terms of proviso (b) to Article 311(2) of the Constitution of India, whereby he dispensed with the services of the appellant in a summary manner on the ground that it was reasonably not practicable to hold an inquiry. The appellant challenged the same by preferring a writ petition in this court, which was dismissed by a learned Single judge of this court leading to the Letters Patent Appeal. The appellant challenged the order of dismissal from service, inter alia, on the ground that the learned disciplinary authority had allegedly been forced to sign the transfer order, and he had issued the order of dismissal from service which was in violation of the principles of natural justice. He acted as a judge in 6 his own cause. This aspect of the matter was dealt with by the Division Bench. It has been held therein that the principle Nemo Judex In Causa Sua means that no person can be a judge in his own cause. This general principle, however, admits of a few exceptions. Paragraphs 19 and 21 of the judgment is reproduced hereinbelow: “19. The third exception relates to the category of departmental proceedings where the disciplinary authority is the judge in his own cause. He takes the decision to initiate disciplinary proceedings, to frame charges, to appoint enquiry officer or enquire himself, takes the decisions on the enquiry report, and passes the final order. Reference may be made to the judgments reported in AIR 1956 Cal. 662 (Choudhary vs. Union of India), and AIR 1967 M.P. 81 (Ramesh Chandra vs. Union). ……. ……. 21. The present case is thus covered by the third exception stated above.” This Court had placed reliance on the judgment of a learned Single Judge of the Calcutta High Court in Choudhary versus Union of India(Supra). The learned Single judge observed as follows:- “ But the person dealing with the enquiry at any stage is in the position of a Judge, and the rules of natural justice demands that he should not himself be personally interested in the case. Frome United Breweries Co. v. Bath Justices. (1926) AC 586 (X). He should be a person with an open mind, a mind which is not biased against the delinquent. Eckersly v. Mersey Docks and Harbour Board. (1894) 2 QB 667 (Y); R.v. Sussex Justices, ,(1924) 1 KB 256 (Z): R. v. Rand, (1866) 1 QB 230 (Z1); (1926) AC 586 (X); R.v. Camborne Justices, (1954) 2 All ER 850 (Z2). He should not have prejudged the issue 7 East India Electric Supply and Traction Co. Ltd. v. S.C. Dutt Gupta 59 Cal WN 162 (Z3). He cannot act both as a Judge and a witness. Bijoy Ch. Chatterjee v. State of West Bengal, 58 Cal WN 988 (Z4). There is no bar to a person, issuing the show cause notice to try it himself. The principle that a prosecutor cannot be a Judge is not strictly applicable to departmental enquiries. Province of Bombay v. Kushaldass Advani AIR 1950 SC 222 (Z5). But he must not lower himself to the status of a common prosecutor, that is to say of a person who feels it a part of his function to bring the guilt home to the accused at any cost. He must act with the detachment of a Judge, since he is professing to exercise that dignified function.” (Emphasis added) This Court had also placed reliance on the judgment of a Division Bench of the Madhya Pradesh High Court in the case of Rameshchandra versus Union of India (Supra), paragraphs 5 and 9 of which are reproduced hereinbelow: “5 .As to the first round, it may be noted that it has not been suggested by the petitioner that Shri Patankar had any personal animosity against him. No other personal ground has also been urged against Shri Patankar so as to disqualify him from being appointed on the Board of Enquiry. In other words, no personal bias is pleaded against Shri Patankar. It may also be noted that the question of bias not raised at the time of the enquiry. That question was raised for the first time only in the grounds of appeal before the Chief Engineer and is being canvassed here. What is urged on behalf of the petitioner is that Shri Patankar was both a prosecutor and a Judge and that being the position it was not possible for the petitioner to secure justice at his hands and that the principles of natural justice were violated. In support it was stated that during the police investigation Shri Patankar was present throughout. In his presence the stock of the cement bags was verified, the account-books and other registers were checked and the amount of Rs. 400 was seized by the police from the petitioner. Shri Patankar was also shown as the 8 complainant in the first information recorded by the police and that he was also a witness before the Magistrate. It has already been stated that the investigation was not initiated at the instance of Shri Patankar or on his report to the police authorities. On the contrary, the police authorities on their own suspicion had seized the cement bags from the truck and conducted the entire investigation. Shri Patankar was present during the investigation in his capacity as the immediate superior of the petitioner. From the mere fact that Shri Patankar was present during the investigation, it cannot be inferred that he had prejudged the issue or that he had any personal interest in the matter. No doubt, Shri Patankar was examined as a witness before the Court at the criminal trial; but in that statement he has stated nothing more than what was done by the police authorities during the investigation. I may also be noted that he was examined before the Magistrate much after the enquiry report was submitted by the Board of Enquiry. On the facts alleged, it is, therefore, difficult to hold that Shri Patankar had any prejudice or bias against the petitioner. 7. We also recall the judgment of the English Court in Maclean v. Workers Union, reported in (1929) All England Law Reports 468. That was a case where the plaintiff was a member of the defendant Union, and was in fact a member of the executive committee for some time. During that year, the Presidency of the Union fell vacant and the plaintiff was nominated as a candidate. He had as a candidate caused to be issued election addresses in the form of circulars, which were in due course sent to the branches of the union which was alleged in violation of Rule 45 of the Rules of the union. The plaintiff was proceeded against by the Domestic Tribunal, and was expelled from the members of the Worker‟s union, the same was 9 challenged but was rejected, and the application was dismissed with costs. The court held that a Domestic inquiry is not required to comply with the strict rule of evidence, and the procedure is very flexible. Portion of the judgment relevant in the present context is reproduced hereinbelow: “The jurisdiction of the courts in regard to domestic tribunals- a phrase which may conveniently be used to include the committees or the councils or the members of trade unions, of members‟ clubs and of professional bodies established by statute or royal charter while acting in a quasi-judicial capacity- is clearly of a limited nature. Parenthetically, I may observe that I am not confident that precisely the same principles will apply in all these cases; for it may be that a body entrusted with important duties by an Act of Parliament is not in the same position as, for example, the executive committee in the present case. Speaking generally, it is useful to bear in mind the very wide differences between the principles applicable to courts of justice and those applicable to domestic tribunals. In the former the accused is entitled to be tried by the judge according to the evidence legally adduced and has a right to be represented by a skilled legal advocate. All the procedure of a modern trial, including the examination and cross-examination of the witnesses and the summing up, if any is based on these two circumstances. A domestic tribunal is in general a tribunal composed of laymen. It has no power to administer an oath, and- a circumstance which is, perhaps, of greater importance- no party has the power to compel the attendance of witnesses. It is not bound by the rules of evidence; it is, indeed, probably ignorant of them. It may act, and it sometimes must act, on mere hearsay, and in many cases the members present or some of them- like a British Jury in ancient days- are themselves both the witnesses and the judges. Before such a tribunal counsel have no right of audience and there are no effective means for testing by cross- examination the truth of the statements that may be made. The members of the tribunal may have been discussing the matter for weeks with persons not present at the hearing, and there is no one even to warn them of the danger of acting on preconceived 10 views. It is apparent, and it is well settled by authority, that the decision of such a tribunal cannot be attacked on the ground that it is against the weight of evidence, since evidence in the proper sense there is none and since the decisions of the tribunal are not open to any sort of appeal unless the rules provide for one.” We are mindful of the position that the judgment dealt with domestic enquiry conducted by a trade union with respect to its own affairs, and did not deal with issues with respect to departmental proceedings, affecting terms and conditions of employment, by an authority which is „State‟ within the meaning of Article 12 of the Constitution. The aforesaid judgment nevertheless indicates the position in law as to the manner in which a departmental proceeding has to be conducted, unshackled by the trappings and the formal procedure of a court. 8. It is thus evident on a perusal of authoritative pronouncements of the courts that departmental proceeding is an exception to the principle of law that no person can be a judge in his own cause. In view of this legal provision, it is evident that the Deputy Chief Mechanical Engineer, who was perhaps an eye witness, had acted as the disciplinary authority, and the appellate authority who had conducted the inspection which forms the basis of the charges, are not hit by doctrine of Nemo Judex In Causa Sua. 9. We, therefore, do not Per Se find fault with the Deputy Chief Mechanical Engineer acting in the capacity of the disciplinary authority, and the CWM acting in the capacity of the 11 appellate authority. We wish to reiterate the observations of the Calcutta High Court in Choudhary versus Union of India (Supra) reproduced hereinabove, that the person dealing with the inquiry at any stage is in the position of a Judge, and the rules of natural justice demand that he should not himself be personally interested in the case. There is no bar to a person issuing show- cause notice to try it himself. There is no material on record to show that the two authorities were personally interested in the case, or had any personal animus against the respondent. 10. We read the observations of the Calcutta High Court, and apply the words of caution to the facts and circumstances of the present case, with utmost care that such a disciplinary authority must not lower himself to the status of a common prosecutor, that is to say, of a person who feels it a part of his function to bring the guilt home to the accused at any cost. He must act with the detachment of a Judge, since he is professing to exercise that dignified function. In the facts and circumstances of the case, and the materials placed before us, we have not noticed any circumstance whereby it could be suspected that the learned disciplinary authority or the learned appellate authority had not conducted themselves with the requisite detachment, or the requisite dignity and objectivity, expected of him in a situation where he was both the prosecutor, the witness, and the disciplinary authority, all rolled into one. 11. The learned Tribunal has erred in holding that 12 detailed procedure was required to be followed in the present proceeding. The Tribunal has perhaps taken into account the amended provisions of law which are inapplicable to the facts and circumstances of the present case. The order of punishment is of July 2004, whereas amendment to rule 6(r) had taken placed w.e.f. 10.12.2004. Obviously, therefore, the unamended Rules are applicable to the facts and circumstances of the present case, according to which the punishment inflicted by the learned appellate authority was a minor punishment and, therefore, the learned disciplinary authority rightly adopted the summary procedure. 12. Learned counsel for the respondent has also submitted that the charge is vague. The same has been reproduced hereinabove. The inspection by the senior-most functionary of the Jamalpur Workshop, who also happens to be the appellate authority, found that the respondent is completely ignorant of his duties and functions as Sectional Engineer. The same is clearly indicated in the charge-sheet, and indeed covered by rule 3(1)(ii) of the Railway Services (Conduct) Rules 1966, which provides that every railway servant shall, at all times, maintain devotion to duty. We have no manner of doubt that such ignorance of basic duties and functions shows absence of devotion to duty, and is indicative of apathy, and is liable to disciplinary proceeding. The contention is rejected. 13. Learned counsel for the petitioner has also 13 submitted that the learned Inquiry Officer has recorded his finding unsupported by reasons. The contention is correct, but the matter does not rest there. After all the appellate forum is created to correct the errors of the authority below. We observe from a perusal of the appellate order that he has dealt with the issues exhaustively. The entire context of the appellate order is reproduced hereinbelow: “Sri Shambhu Sah is not even aware of tools & gauges to be used for effective measurements of components produced in his Shop under his charge. His performance is not steady at all. Grounds made in his appeal are imaginary. He has not given any reasons due to which he considers the punishment given by Dy. CME/Prod. Is illegal. His reply to charges were vague. As per Annex „B‟ he says, esjh tkudkjh esa tks lgh ckr Fkh …… He has not realised that his tkudkjh about tools to be used, gauges to be used is shocking and that due to his apathy large nos. of Libcah PINS (sic) and many other components have failed inspection. His wanting to know the date on which CWM visited the shop is mischievous as CWM has been visiting his shop almost daily due to perpetual crisis raised by his apathy. Sri Shambhu Shah has shown a habit of running away from his place of work as soon as any inspecting authority comes. His presumption that he has been punished because of O.A. 343 is as wrong as the claim made by him in Ann „A‟ that since he is an SE, therefore he will be responsible for only one component. His contention that for plural items only SSE has to be responsible is shameful. As SE, he has to look after the production of the components assigned to him/his section. I see no reason to reduce his punishment but in view of promise made by him to improve, the punishment is reduced from 3 stage reduction of three years to 3 stage reduction of two years.” We are, therefore, of the view that the deficiency in the order of the learned disciplinary authority has been well made up by the 14 exhaustive order of the learned disciplinary authority. The contention is rejected. 14. The order of the learned appellate authority assigns reasons in support of the order of punishment, he had indeed personally made the inspection which formed the basis of the charge, and permissible in view of the various reported judgments discussed hereinabove. It goes to the credit of the learned appellate authority that he reduced the punishment which shows close application of the mind, apart from assigning reasons which we consider to be entirely relevant. The contention is rejected. 15. Learned counsel for the respondent has also submitted that the learned appellate authority has travelled beyond the charge-sheet. We are unable to accede to the submission. It is for this reason that we have reproduced hereinabove the entire text of the order of the learned appellate authority. On a plain reading of the same, we are of the view that he has not travelled beyond the terms of the charge. The substance of the charge, as well as the order of the learned appellate authority, is the negligence shown by the respondent in discharge of his duties which was detected during the course of inspection. He has assigned convincing reasons in support of the order of punishment. The contention is rejected. 16. In the result, we allow this writ petition, and set aside the order