1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO 5928 OF 2010. Union of India, thr. General Manager,Central Railway, Mumbai(CST) and another. .Vrs. Mohmood Ahmed,Nagpur. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. (Shri R.S.Sundaram and Miss U.R.Tanna, Advocates for Petitioners) S/Shri Harsulkar, P.S.Mahagaonkar,Advocates for respondents) CORAM : B. P. DHARMADHIKARI & P.D.KODE, J J. DATED : 15.06.2011 Heard finally with the consent of respective Counsel for both the parties. Mr. Sundaram, learned Counsel for the employer has contended that departmental enquiry was conducted after a departmental trap. Both the articles of charges have been conclusively established. The punishment of compulsory retirement accordingly 2 has been imposed and that punishment has been confirmed by appellate authority, as also by revisional authority. In this background the Central Administrative Tribunal (CAT) could not have interfered in the matter only by placing reliance upon the judgment of Hon'ble Apex Court in 2008(2) Service Law Reporter, 818 (Moni Shankar Vrs Union of India and another). He contends that said judgment has been later on explained by the Hon'ble Apex Court. He relies upon express language of paragraph No.705 of the Manual to urge that said paragraph itself demonstrate that presence of gazetted officer as independent witnesses is not mandatory in all circumstances. He further states that for the first time before Central Administrative Tribunal (CAT) denial of opportunity to defend the proceeding was pressed into service by the present respondent. According to him mere denial of opportunity by itself cannot be presumed to be a prejudice grave enough to vitiate the departmental enquiry. Learned Counsel states that there must be pleading and then proof of a real prejudice suffered by an employee because of violation of any statutory 3 provision or rule. He is placing reliance upon judgment of Hon'ble Apex Court in 2010 (5) SCC 349(Union of India and Others .Vrs. Alok Kumar) for this purpose. Mr. Harsulkar, learned Counsel during arguments has heavily relied upon the statements of petitioners recorded by Enquiry Officer, to urge that the violation of Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules, 1968 is apparent. He invites attention to consideration of this aspect by Hon'ble Apex Court in judgment in case of Moni Shankar Vrs Union of India and another (supra), particularly paragraphs No. 4,7,20 and 21. He specifically states that grievance of respondents will be satisfied if they are given an opportunity to explain the circumstances against them as per said provision, as currency note of Rs 100/-(Rs. One Hundred) in dispute was never recovered from Mr. P.M.Dongre. After hearing respective counsel and in view of specific statement by the respondents we find the only question to be looked into is the ambit of provisions of Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules, 1968. The Hon'ble Apex Court in judgment in case of Moni Shankar Vrs Union 4 of India and anothers (supra), has noted the contention about its violation in paragraph No.7 and the types of questions put by enquiry officer to delinquent there are mentioned in paragraphs No.20. The very same questions are also put by the enquiry officer in the present matter to both the respondents. In paragraphs No.21 thereafter Hon'ble Apex Court has held that such questions do not comply with Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules, 1968. The Hon'ble Apex Court has declared that circumstances appearing against the appellant before it ought to have been put to them. For the proved misconduct, punishment of compulsory retirement has been inflicted upon both the respondents. Central Administrative Tribunal (CAT) has not recorded any express finding on grievance of violation of Rule 9(21) of the above mentioned Discipline and Appeal Rules. The provision appears to have been made in order to enable the employee to explain the circumstances appearing against him in the departmental enquiry, The enquiry officer therefore ought to have put circumstances which came on record against the respondent during departmental enquiry 5 and obtained their explanation about the same. It appears that this procedure has not been followed in the present matter. The Judgment of Hon'ble Apex Court in Union of India and Others .Vrs. Alok Kumar (supra), considers the case whether the challenge to departmental enquiry was on the ground that the enquiry officer was a retired officer and some of the documents used in departmental enquiry were not furnished to the appellant. These grounds itself show that no prejudice as such could have been caused merely because departmental inquiry was conducted by retired officer or some documents were not supplied. The prejudice on account of non supply of some of the documents could have been pointed out by inviting attention to necessary facts or difficulty felt and that also was not done. The provisions of Rule 9(21) of the Railway Servants (Discipline and Appeal) Rules, 1968 specifically contemplate an opportunity to delinquent to explain the circumstances appearing against him. Denial of that opportunity itself therefore is a serious prejudice and the contention that prejudice needs to be accompanied with a proof,is misconceived. 6 We find the controversy covered by judgment of Hon'ble Apex Court in case of 1996 (3) SCC 364 (State Bank of Patiala Vrs. S.K.Mishra) particularly paragraph No.35 thereof. In this view of matter, we quash and set aside the judgment delivered by Central Administrative Tribunal (CAT). The enquiry officer shall give respective respondents an opportunity as contemplated in Rule 9(21) and thereafter shall prepare fresh enquiry report in accordance with law within 6 weeks from today. As the enquiry is being commenced afresh from the stage at which lacuna is noticed the doctrine of relation back will apply and the entitlement of respondent to consequential benefits will depend on its outcome. The enquiry officer shall extend necessary opportunity to respondents, within a period of 6 weeks' from today and thereafter Petitioner shall proceed further with the departmental enquiry and complete the process as early as possible, and in any case within a further period of 6 weeks' thereafter. The reliefs to respondents shall be governed by the result of the departmental enquiry. 7 Rule made absolute accordingly in aforesaid terms with no order as to costs. JUDGE JUDGE scd//