IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1462 of 2004 to SPECIAL CIVIL APPLICATIONNo 1474 of 2004 with SPECIAL CIVIL APPLICATION NO 1768 TO 1778 OF 2004 WITH SPECIAL CIVIL APPLICATION NO 1668 OF 2004 Date of Decision: 23/4/2004 -------------------------------------------------------------- UNION OF INDIA THROUGH GENERALMANAGER WESTERN RAILWAY Versus RAMKRIPAL JAGANNATH EX KHALASI OF THE CHIEF (for full cause title, see next sheet) -------------------------------------------------------------- Coram: The Hon'ble Mr.Justice Bhawani Singh, Chief Justice The Hon'ble Mr.Justice H.K.Rathod, Judge Whether approved for reporting? For the petitioners MR.Adv. MUKESH A PATEL For the respondent No.2 MR.Adv. KK SHAH -------------------------------------------------------------- PER: H.K.RATHOD, JUDGE :- 1. Heard learned Counsel Mr. Mukesh A. Patel for the Union of India and others and Mr. K.K. Shah, learned Counsel for the workmen. In these petitions, order passed by the Central Administrative Tribunal, Ahmedabad Bench in OA NO. 881 of 1999; 184; 185; 186; 195 to 203 of 2000 dated October 22, 2003 is under --------------------------------------------------------- Whether reporters of Local Papers may be allowed to see the Judgment? challenge. The Tribunal has set aside the order of removal from service and directed the railway administration to reinstate the workmen of all OAs except that of OA No. 198 of 2000 with immediate effect with 50 per cent back wages. The period from the date of removal from service till the date they are reinstated was ordered to be counted for the purpose of continuity in service for all purpose, with costs of Rs.2000.00 for each OA. Since the applicant Jagdishchandra D. of OA No. 198 of 2000 has died during the pendency of the OA, it was ordered that his legal representatives shall be entitled to all the benefits accruing in view of the order. Said order is challenged by the petitioner Union of India in so far as it relates to the directions of reinstatement with 50 per cent back wages and the workmen have challenged the said order in so far as it relates to refusal of the back wages to the extent of 50 per cent. Brief facts of the present group of petitions are as under: 2. All the workmen were initially engaged as casual labourers between the years 1983 to 1987; they were conferred with the temporary status and were subsequently regularized. However, after they were regularized, on receiving some intimation that they had obtained engagement as casual labourers on the basis of fake labour cards, the Railway Administration initiated an enquiry against them; charge sheets were issued to all of them in April, 1988. Inquiry proceeded after service of the charge sheet and the Inquiry Officer in his report held that the charges levelled against the workmen were proved and they were guilty of serious misconduct. The disciplinary authority accepted the findings of enquiry officer and imposed punishment of removal from service on all the workmen. The departmental appeals filed by the workmen were rejected. Therefore, orders of removal were challenged by them before the Central Administrative Tribunal by filing OA No. 69 of 1993; 254 of 1993; 255 of 1993 etc. The Tribunal, vide its order dated July 16, 1998, accepted the contention of the workmen that the refusal to call four witnesses for examination by the Enquiry Officer has resulted in serious prejudice to the defence of the workmen. Therefore, orders of removal were set aside by the tribunal and the railway administration was directed to reinstate the workmen in service as early as possible. Under the said order, no back wages were awarded by the tribunal for the interim period from the date of removal till the date of the orders passed by the tribunal. Said orders of the tribunal were challenged by the railway administration before this Court by filing special civil application no. 7942 to 7955 of 1998. This Court disposed of the said petitions by order dated April 9, 1999. Relevant observations made by this Court in the order dated April 9, 1999 are reproduced as under: "10. For the foregoing reasons, in our opinion, all the petitions deserve to be partly allowed. So far as the reinstatement is concerned, the order is not disturbed and the direction is confirmed. The authorities will reinstate all the respondent workmen on or before 30th June, 1999. So far as closing and dropping of enquiry is concerned, it would be open to the railway administration to hold inquiry after following the requirements of law and observing the principles of natural justice, if the Railway administration so wishes.If such inquiry is proceeded with, it will be disposed of as expeditiously as possible, preferably before 31st December, 1999. The respondents workmen would also cooperate with the said inquiry." 3. Thus, while disposing of the petitions, it was kept open by this Court for the Railway Administration to hold inquiry after following the requirements of law and observing the principles of natural justice, if the Railway administration so wishes, if such inquiry is proceeded with, it was observed that it will be disposed of as expeditiously as possible, preferably before 31st December, 1999. This Court has not disturbed the relief of reinstatement and has confirmed the same. Pursuant to the said directions issued by this court, workmen were reinstated in service. 4. The Railway administration, considering the observations made by this court, took decision to continue with the enquiry against the workmen and fresh enquiry officer was appointed. The inquiry started on September 16, 1999. The Enquiry Officer submitted his report to the disciplinary authority. The disciplinary authority, on acceptance of the report submitted by the inquiry officer, imposed punishment of removal from service by order dated December 29, 1999. Meanwhile, the workmen had approached the Central Administrative Tribunal by filing Original Applications on December 24, 1999 complaining about non observance of the principles of natural justice by the inquiry officer. The workmen had also complained about the non observance of the directions issued by the tribunal and this court and flouting the orders of this Court by the inquiry officer. By way of interim relief, it was prayed to restrain the disciplinary authority from passing the order of punishment. The tribunal refused to grant any interim relief as prayed for by the workmen. Subsequently on December 29, 1999, orders of punishment were issued against all the workmen and the departmental appeals preferred on November 11, 2000 against the order of removal were also rejected and, thereafter, aforesaid original applications were amended by the workmen. It was contended by the workmen before the tribunal that the inquiry officer as well as the disciplinary authority have again proceeded with the inquiry in the same manner and violated the observations of the tribunal and this court by denying the prayer of the workmen to cross examine four witnesses and, therefore, the railway administration violated the principles of natural justice. 5. Before the tribunal, it was the contention of the railway administration that in view of the directions of this court, inquiry against the workmen had been completed within the time framed and punishment orders were issued on December 29, 1999. Charges levelled against the workmen of acquiring the service in the railway workshop at Dahod on the basis of forged casual labour cards were established in the inquiry and therefore, disciplinary authority issued fresh penalty order of removal from service against the workman. It was admitted by the railway administration that the request was made by the workmen to call four witnesses but they were not examined by the railway administration on the ground that they were not cited as a witnesses in the charge sheet and they were not relevant in the enquiry. It was also admitted by the railway administration that the workmen had given names of the witnesses for cross examination on October 4, 1999 but they were not cited in the charge sheet and as per the rules, inquiry officer has jurisdiction to decide as to how and in which manner the defence is helpful in DAR Case to the workmen. It was also contended by the railway administration that the inquiry officer was not convinced with the justification given by the workmen and, therefore, the request of the workmen for calling said four witnesses for their cross examination was not accepted by the railway administration. It was also contended that the refusal to call such witnesses for their cross examination by the workmen has not resulted into breach of principles of natural justice and the inquiry officer has acted in accordance with the rules. Referring to para 19(a) and 19(b) of the amended OA, it was contended by the railway administration that how and in which manner their defence witnesses would be helpful in their cases, justification submitted by the workmen in that regard was not acceptable to the inquiry officer and, therefore, said request of the workmen was rejected by the inquiry officer. It was also clarified by the railway administration that if the electrification department has reinstated some similarly situated casual labourers, same policy cannot be adopted by the railway administration as the railway electrification department is different organization and mistake committed in one case cannot be allowed to be repeated. 6. The tribunal, after considering the averments on record made by the parties and oral submissions made before it, passed order on October 22, 2003. The tribunal recorded conclusion that the Railway administration has committed breach of the principles of natural justice in not examining the four witnesses whose names were supplied by the workmen. The tribunal also rejected the request of the railway administration to remand the matters. It was held by the tribunal that the non examination of the said four witnesses has vitiated the inquiry and the workmen were placed in a pitiable condition. It was also observed by the tribunal that the observations made by the tribunal in the earlier round of litigation as well as the observations made by this Court in the judgment in earlier petitions were also violated by the railway administration. 7. Learned counsel Mr. Patel for the railway administration has placed the original record for our perusal. Learned counsel Mr. Shah for the workmen has also placed earlier orders of the tribunal and the letter dated April 8, 1994 of the General Manager (P) Western Railways, representation of the workmen and the copy of the charge sheet for our perusal. 8. Learned counsel Mr. Patel contended before us that the tribunal has committed error in holding that the inquiry was vitiated on the ground of non examination of four witnesses. He also submitted that the said four persons were not shown as a witnesses in the charge sheet. According to him, the statements of said four persons were not relevant. No material was utilized from said four persons to frame the charge sheet against the workmen. He also submitted that save and except the non examination of the said four witnesses, there was no challenge to the existing decision and the procedure adopted by the inquiry officer. According to him, because of the Vigilance Inquiry, it was found from the record that the labour cards which were issued to the workmen were fake and were not tallying with the register maintained at Dahod by the Railway Administration. Therefore, as a consequence of the vigilance inquiry, it was found that the workmen obtained fake labour cards, on that basis, workmen were appointed by the authority. They were therefore served with the charge sheets and after completion of the departmental inquiry, orders of punishment were issued as the charges levelled against them were proved. He also submitted that for the demand of the workmen to cross examine the four persons, no justification was given by the workmen. It was also his submission that if the inquiry officer has not accepted the request made by the workmen, then, it was open for the workmen to examine said four persons as the witnesses for the workmen but that was not done by the workmen. According to him, the inquiry officer has given reason for not accepting the request of the workmen; there was other enough material on record for proving the charges levelled against the workmen. Except the denial of cross examination of the said four officers, rest of the part of procedure and the findings given by the inquiry officer are not challenged by the workmen. If any mistake has been committed by the railway authority earlier, same cannot be allowed to be perpetuated and it can be rectified by the railway administration. Out of four officers, one officer Mr. P.D. Mishra has died and against one Head Clerk, departmental inquiry was initiated and he was punished by issuing order of reduction in rank and said Head Clerk has now retired from service. Therefore, it was his submission that the tribunal was in error in coming to such conclusion. According to him, the tribunal ought to have examined the question as to whether the examination of four persons was in fact necessary or not. He also submitted that the workmen admitted that the labour cards were not valid. It was his submission that the contentions raised by the railway administration its written statement as well as the additional written statement were not dealt with by the tribunal.He made reference of one affidavit dated 8th January, 1990 and submitted that the labour cards were received by the workmen after making payment of Rs.10,000.00 out of which Rs.8000.00 were paid towards the Railway Minister's Fund and Rs.2000.00 were paid towards the administrative work. The original labour cards were not given to the workmen by Mr. Mishra He also submitted that in inquiry, the workman admitted that such affidavit was made by him and, therefore, there is no need to examine said four persons. Therefore, it was his submission that the tribunal has committed error in holding that the non examination of said four persons has vitiated the inquiry. 9. Learned counsel Mr. Patel cited the following decisions before this Court: (1) Government of WB versus Tarun K. Roy and others [(2004) 1 SCC 347]. (2) Avinash Nagra versus Navodaya Vidyalaya Samiti and others [(1997) 2 SCC 534] which is relating to dispensing with regular enquiry and denial of cross examination. (3) Addl. District Magistrate (City) Agra versus Prabhakar Chaturvedi and anotehr [(1996) 2 SCC 12] which is relating to the admission of the delinquent voluntarily admitting in writing that due to carelessness and fault he could not deposit in the Post Office Account of the employees the amount received by him for this purpose from the employer's office. (4) State of UP and others versus Ramesh Chandra Mangalik [2002) 3 SCC 443] (5) Chandrarama Tewari versus Union of India (Through General [1987 (Supp) SCC 518] which is relating to departmental inquiry, enquiry procedure, supply of documents, documents mentioned in memo of charge but neither relevant to charge nor referred to nor relied upon by the authorities nor necessary for cross examination.It was held that non supply of such a document is not violative of the principles of natural justice and not violative of the proceedings. 10. Learned advocate Mr. K.K. Shah for the workmen supported the decision of the Tribunal in so far as it relates to reinstatement but it was his grievance that the tribunal has not given any reason for denying 50 per cent of the back wages. He submitted that there is no discussion in the body of the order for denying part of the back wages. No justification has been pointed out by the tribunal. According to him, it is arbitrary; quasi judicial authority must give reason for denying the relief of back wages. He also submitted that the back wages for the earlier period from 1992 to 1998 were not pressed by the workmen and, therefore, were not granted. He also submitted that the original labour cards were not produced on record before the inquiry officer and unless such original labour cards are produced on the record before the inquiry officer, whether it bears the signature of any authorized officer or not can be examined only if such labour cards in original produced and the authority who issued such cards is examined before the inquiry officer but in the entire proceedings against each of the workmen, relevant original labour cards were not produced by the railway administration and, therefore, according to him, in absence of the original labour cards, charges levelled against the workmen that they obtained fake labour cards cannot be established. He also submitted that by making cross examination of the said four persons, the workmen would have been able to establish the source of labour cards, to establish that such labour cards were obtained by them not from any other source but were issued by the authorized officer of the railway administration and therefore, the workmen were justified in raising demand for cross examination of the said four persons and the inquiry officer was not justified in rejecting such request and such rejection has deprived the workmen from establishing the source of labour cards. According to him, the affidavit dated January 8, 1990 is not an admission of the workman but it was an admission of the fact that the original labour card was issued by one of the officers amongst four after making payment of Rs.10.000 towards railways Minister's fund and the administrative fund.He specifically submitted that the charge was not admitted by the workmen. He also submitted that right from the stage of charge sheet till the stage of appeal, nowhere, the workmen had admitted the charges levelled against them. At this juncture, it was asked by this court to Mr. Patel, counsel for the Railway administration as to whether he is able to submit that the charges were admitted by the workmen from the stage of charge sheet till the stage of appeal. He answered that the charges levelled against the workmen were not admitted by the workmen at any stage. Then, the Court asked Mr. Patel as to whether the Railway Administration is prepared to produce the original labour cards in respect of each workmen before us or not and whether the original labour cards in question were produced and proved before the inquiry officer or not. He fairly submitted that the original labour cards were not produced and proved before the inquiry officer and further, the railway administration is not able to produce the original labour cards before us. Mr. Shah, learned counsel for the workmen submitted that earlier, departmental inquiry was vitiated and opportunity was given to the railway administration to hold fresh inquiry if desired by the railway administration, then whatever earlier record of departmental inquiry has gone and no evidentiary value thereof remains and in such circumstances, the railway administration has to prove the charges by leading fresh and proper evidence against the workmen. He also submitted that this court has partly confirmed the earlier orders of the tribunal by confirming the reinstatement and remanded back to hold fresh departmental inquiry in accordance with the principles of natural justice but the same defect has remained again. He also submitted that from 1984 till this date, more than 20 years have passed and poor labourers are facing one by one inquiry without any end and during the interim period, one workman Jagdish K.Mahavat who was working in the workshop at Dahod Railway committed suicide. According to him, poor casual labourers are fighting legal battle against the giant organization since last more than 20 years, therefore, in such circumstances, the tribunal was right in not remanding the matter back to the railway administration. According to him, the person who had issued labour cards under his signature was not examined or cross examined and it amounts to denial of effective and reasonable opportunity to the workmen and it has deprived the workmen from establishing the source of such labour cards and, therefore, it was violative of the principles of natural justice and, therefore, the tribunal was right in holding that this has vitiated the inquiry. He relied upon one decision of the apex court in Indian Railway Construction Co. Ltd. versus Ajay Kumar [All India Service Law Journal VIII 2003(2) page 334]. As per the facts of the said decision, the respondent was dismissed from service without enquiry on plea that assaulting the officer was a grievous offence, he continued threaten the witnesses who will be scared to give evidence, he had lost confidence in administration. It was held by the apex court that reasons recorded were based on presumption conclusions having no basis and hence dispensing with enquiry was wrong. In that case, the matter was not remanded for enquiry by the apex court. Relying on the said decision, it was submitted by Mr. Shah that the tribunal was also justified in not remanding the matter back to the railway administration. 11. He relied upon the decision of the apex court in APSRTC versus K. Bajjanna [2002 AIR SCW 2756] wherein the apex court granted similar relief which was granted in favour of other similarly situated workmen in respect of the workmen. He relied upon the decision in Sher Bahadur vs. Union of India and others [2002 SCC (L&S) 1028] and submitted that in the said matter, the apex court examined similar issue which is applicable to the facts of this case. In the said matter, apex court set aside the order of dismissal on the ground that sufficiency of evidence is necessary for existence of some evidence which links the charged employee with the misconduct alleged against him. 12. Mr. Shah also drew our attention to the fact that on April 8, 1994,in similar cases of 62 casual labourers who allegedly secured employment on the basis of fake card as fresh casual labour wherein the General Manager of the Railway Authority observed that 'six years have passed and I see no point in trying to dis-engage these casual labourers at this distant date. It is only natural that since they have secured employment through wrongful means, they should not be eligible for benefit of service as others who have been engaged on genuine grounds. In the circumstances, their seniority should be fixed below all the other casual labourers. ' By drawing our attention to the letter dated April 8, 1994, he submitted that in respect of 62 casual labourers similarly situated, no action was initiated and they were engaged by the railway authority, therefore, now, after the order of the tribunal in the second round of litigation, no further fresh inquiry can be initiated against the workmen. Therefore, tribunal was right in rejecting such plea of the railway administration. He also submitted that one such opportunity was given by this Court to the Railway administration but that was not effectively used by the railway administration and defect had remained. He placed reliance on the decision in Union of India versus Madhusudan Prasad [(2004) 1 SCC 43] and submitted that the workmen are entitled for full back wages as the railway administration has not followed the principles of natural justice, therefore, order of removal were set aside and the workmen are entitled for full back wages for the intervening period. 13. Mr. Shah submitted that the case of 62 casual labourers is relating to railway electrification department and the case of the present workmen is also relating to the establishment of railway and, therefore, the railway administration was not justified in taking the different stand. He submitted that the decision taken by the General Manager being the policy decision, the railway administration ought to have followed the same since the railway authority is one and the adoption of different policy by the railway is amounting to discrimination amongst equal in equal circumstances. No other submissions were made either by Mr. Patel or Mr. Shah before us. No other decisions were cited at the bar except those referred to above. 14. The submissions made by the learned counsel for the parties have been considered by us.