DBCWP2737/2004 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN D.B. Civil Writ Petition No.2737/2004 Union of India and Others Vs. Shri H.S. Shekhawat and Another Date of Order ::: 19.10.2010 Present Hon'ble Mr. Justice Arun Mishra Hon'ble Mr. Justice Mohammad Rafiq Shri Suresh Pareek, Counsel for petitioners #### (Per Hon'ble Mohammad Rafiq, J.), Petitioners Union of India and Indian Railways have filed present writ of certiorari challenging order dated 12.12.2003 of Central Administrative Tribunal, Jaipur Bench, Jaipur, (for short, 'the Tribunal') whereby Original Application filed by delinquent-respondent H.S. Shekhawat was allowed and, charge-sheet dated 18.06.1994 issued to him and all subsequent proceedings thereto, were quashed with all consequential benefits. Factual matrix of case is that delinquent-respondent was initially appointed as Assistant Goods Clerk with the Railways some time in 1972. He was promoted to post of Head Booking Clerk on 17.05.1986. At the time when his case for further promotion became ripe, he DBCWP2737/2004 // 2 // was facing a major penalty charge-sheet, which was served upon him on 30.03.1987, and therefore he was not promoted; however some of his juniors, namely, Sarva Shri O.P. Sharma, C.G. Carolias and M.P. Jain were promoted. On conclusion of disciplinary proceedings, he was awarded penalty of removal from service vide order dated 22.07.1988. He challenged order of removal by filing departmental appeal. Appellate Authority partly accepted appeal and modified order of removal from service and, instead awarded him penalty of reduction to next lower grade for five years. However, higher authorities than him, again passed order of removal of delinquent-respondent from service. Delinquent-respondent challenged said order of penalty by filing Original Application before the Tribunal at its Ahmadabad Bench, which was partly allowed vide order dated 14.10.1992 and order of penalty of removal from service was quashed. Review petition filed by petitioners was dismissed by Tribunal. The Disciplinary Authority then reinstated him in service while treating period from 31.07.1988 to 31.01.1994 to have been spent on duty. Tribunal, while partly allowing the Original Application, granted liberty to the DBCWP2737/2004 // 3 // Disciplinary Authority “to proceed further with the inquiry from the stage of giving an opportunity to the applicant to make representation against the findings of the inquiry officer and to take decision according to law.” It was further directed that “if the respondents so decide to proceed with the inquiry, they should do so within a period of two months from the receipt of this order, giving the opportunity to the applicant to make representation as stated above.” It is to be noted that Original Application was allowed by the Tribunal on the basis of law propounded by Supreme Court in Union of India Vs. Mohammad Ramzan Khan – (1991) 1 SCC 588. with direction to the Railways to supply copy of enquiry report to delinquent-respondent and then pass fresh order of penalty. After rejection of review petition, judgment of Tribunal was accepted by the Railways. But the Disciplinary Authority vide their order dated 16.05.1994 dropped charge memo dated 30.03.1987 without prejudice to take further action against delinquent. Fresh charge-sheet was issued to delinquent- respondent on 18.06.1994. It was this charge- sheet that was challenged by delinquent- DBCWP2737/2004 // 4 // respondent in Original Application which was allowed by impugned judgment wherein prayer was also made that the Railways be directed to allow next higher pay scale to delinquent- respondent (applicant before the Tribunal) from the date his juniors were allowed such higher pay scale. The Tribunal vide impugned judgment dated 12.12.2003, while allowing Original Application, not only quashed charge-sheet but also directed all consequential benefits to be paid to delinquent-respondent (applicant before Tribunal) including arrears and consequential benefits, which however, in view of objection of delay, were confined for a period of three years preceding the date of filing of Original Application. We have heard Shri Suresh Pareek, learned counsel for petitioners. None has however appeared for delinquent-respondent despite service of notice. Shri Suresh Pareek, learned counsel for petitioners, has argued that even if Original Application of delinquent-respondent was allowed by Ahmadabad Bench of Tribunal with direction to the Disciplinary Authority to supply copy of enquiry report to delinquent- DBCWP2737/2004 // 5 // respondent and then pass fresh order within two months, this did not restrict petitioner- Railways to drop charge-sheet without prejudice to their right to issue fresh charge memo and then pass appropriate order of penalty even after expiry of period of two months. The period that was fixed by Tribunal at the time of passing of order, was only directory and not mandatory. It was argued that charge-sheet was issued to delinquent-respondent on 18.06.1994 whereas Original Application was filed in 2002. Original Application was therefore barred by period of limitation. Ahmadabad Bench of the Tribunal allowed Original Application of delinquent-respondent. It granted liberty to petitioner to proceed with enquiry. Order of Tribunal does not in any manner restrict petitioner-Railways to proceed against delinquent-respondent by issuing fresh charge- sheet. In any case, charge memo dated 30.03.1987 was dropped vide order dated 16.05.1994 without prejudice to take further action against delinquent-respondent, which means that order of withdrawal of charge-sheet was conditional one entitling the employer to issue fresh charge-sheet. The charge-sheet was DBCWP2737/2004 // 6 // then issued on 18.06.1994. It was argued that the Tribunal has misread and misconstrued the Railways Board's circular RBE No.171/93 and in fact, this circular does not apply to the case of delinquent-respondent because fresh charge- sheet was issued to him in terms of judgment of the Tribunal dated 14.10.1992. It is therefore prayed that writ petition may be allowed. Although none has appeared for delinquent-respondent, however, he has filed reply to writ petition wherein it is contended that fresh charge memo dated 18.06.1994 was incompetent because the Tribunal in its order dated 14.10.1992 had fixed the time limit of two months to pass final order and petitioner- Railways in compliance of that order of Tribunal reinstated delinquent-respondent in service by treating intervening period as spent on duty. They also withdrew the charge memo dated 30.03.1987 by order dated 16.05.1994. Many juniors of delinquent-respondent were promoted. Only reason for which delinquent- respondent was not promoted was pendency of disciplinary proceedings against him, wherein they passed order of his removal, which removal order was set aside and delinquent-respondent DBCWP2737/2004 // 7 // was reinstated in service and ultimately the charge memo dated 30.03.1987 was also withdrawn vide order dated 16.05.1994. There then remained nothing which would stall his promotion. It has been therefore prayed that writ petition may be dismissed. We have given our anxious consideration to the submissions so made and perused impugned judgment as also other material forming pat of record. Although, we have our doubts about the correctness of view expressed by Tribunal that if order of penalty was passed after expiry of period of two months, which was the time limit fixed by it in its earlier judgment dated 14.10.1992 for doing so, such penalty order would be nullity in law and on that analogy, view expressed by the Tribunal that charge- sheet itself was a nullity but core question that arises for our consideration is whether the charge-sheet dated 18.06.1994 could have been legally issued to delinquent-respondent? The Tribunal has supported its judgment firstly by its direction contained in its earlier order requiring petitioner Railways to serve upon the delinquent copy of enquiry report and pass appropriate final order within DBCWP2737/2004 // 8 // two months and secondly by holding that Railways Board's circular RBE No.171/93 barred initiation of fresh proceedings by disciplinary authority in a matter in which charge memo has been dropped, unless the reasons for cancellation of the charge memo for dropping of proceedings are appropriately mentioned therein and the proceedings are dropped without any prejudice to the authority to take any further action. The Tribunal has found that although in the present case, the charge memo was dropped without prejudice to take further action but no reasons whatsoever were assigned while withdrawing earlier charge memo and issuing a fresh charge memo. Moreover, as already noticed above, Tribunal, in its earlier judgment dated 14.10.1992, granted liberty to petitioner- Railways “to proceed further with the inquiry from the stage of giving an opportunity to the applicant to make representation against the findings of the inquiry officer and to take decision according to law.” It further directed that “if the respondents so decide to proceed with the inquiry, they should do so within a period of two months from the receipt of this order, giving the opportunity to the applicant to make representation as stated above.” The DBCWP2737/2004 // 9 // word “enquiry” has been used in the said judgment of the Tribunal to mean the enquiry proceedings or the disciplinary proceedings. In any case, a fresh enquiry was not contemplated thereby. What was meant by use of the word “enquiry” was completion of enquiry proceedings. Read thus, it would be evident that the Tribunal granted liberty to the Disciplinary Authority that it should, after supplying copy of enquiry report to delinquent- respondent, proceed further with the enquiry from the stage of giving an opportunity to the respondent (applicant before the Tribunal) to make representation against findings of the inquiry officer and to take decision according to law. It was then further observed that if the Railways so decide to proceed with the inquiry, they should do so within a period of two months from the receipt of this order. This order clearly indicates that there was no compulsion for the Railways to mandatorily proceed against delinquent with further proceedings and enquiry. If, however, they decide so to do, they were required to do so within a period of two months from the date of receipt of the order. The Railways did not adopt the course indicated by the Tribunal in DBCWP2737/2004 // 10 // its order in that they neither supplied copy of the enquiry report to the delinquent and for that reason, did not pass any final order. The Railways rather dropped earlier charge memo and thereafter issued subsequent charge memo. It was not permissible in view of specific direction contained in earlier judgment of the Tribunal and also in view of Railway Board's circular RBE No.171/93. According to this Circular, mere dropping of proceedings without prejudice to further action would not be sufficient to debar initiation of fresh proceedings, unless reasons for cancellation of original charge memorandum or for dropping of proceedings are appropriately mentioned, which is evident from the mandatory language used in the circular that “the disciplinary authority would be debarred from initiating fresh proceedings against delinquent employee unless the reasons for cancellation of the original charge memorandum or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without any prejudice to further action which may be considered in the circumstances of the case.” Since no reason whatsoever mentioned by the DBCWP2737/2004 // 11 // Disciplinary Authority in the order withdrawing first charge memo, the Tribunal, in our considered opinion, was justified in allowing petitioner-Railways to proceed in disciplinary action against delinquent-respondent on the basis of second charge-memo. Coming now to question of delay, we find that Tribunal allowed the Original Application filed in 2002 by order dated 12.12.2003 on the question of limitation by treating the action of the Railways as nullity in law for the afore-stated reasons, yet restricted mandatory claim of delinquent-respondent for the period of three years from the date of filing of Original Application, we are not persuaded to interfere in the order. Learned counsel for petitioner-Railways has also not been able to persuade us to uphold his this contention either. For what we have discussed above, writ petition deserves to be dismissed and it is accordingly dismissed. There shall be no order as to costs. (Mohammad Rafiq) J. (Arun Mishra) J. //Jaiman//