•^- e>4 '<. o7- HI6H C.OURT OF CHHATTIS6ARH AJ BILASPUR lE,:sait«si Hon'ble Shri S.R.Nayak, Chief Justice & Hon'ble Shri DJ ,J. Petiti P. Sanyasi, 5/o Late P. Raminaidu, aged about 64 year-s, Head Clerk, Office of the Stdtion Manoiger, 5outh Eastern Railway, Durg (C.G.), R/o Karmcharinagar, near House No.B-45, 5'koiebhata, &urg (C.&.). Versus 1. Secretar/. Ministry of Railways, Rai Bhavan, New Oelhi. 2. The ©enero! Manager, 5. E. Railway, ©ardenReach, Calcufta. 3. TTie Divisiona! Railway Manager, 5.E. Rai'wciy, Bilaspur (C.6.) 4. /4dditional Diyit. ftailiway Manager, S.E.Railway, Bibspur (C.S.) 5. Sr. Divisional Commer'cial AAanager, S.E.Raiiwcty, Bilaspur (C.&.) 6. 5r. Divii. Personnel Officer, S.E.Railway, Bffaspur (C.6.5 7. Assisf. Personne! Officer (Welfare) S.E.Railway, Bhilai, Distt. Durg (C.6.) 8. Shri J.Tirkey, Assist. Commercial Wtonager, S.E.Railway, Bilaspur (C.6.) Smt. Smita &hai, learned counsel for the petitioner. Sinri P.S.Koshy, ieamed counsel with Shri Naha ftai for +he respondents. ORALOR&ER (Passed on 04.07.2006) TTie foliowing oral order of the Court was passed by S.R. tVAv r t ^rni^, ^.a. Tiie petitioner while serving as first Division Clerk in ti-ie establishment of RaiSways, the Senior Divisional Commercia! Manager, SsuA Ess^ern Railway, Biiaspur, the 5 raqiondent herein, initio.ted departmenta! proceedings against the petitioner by issuing a charge memo alSeging that the petitioner secured the job foilsety- claiming that his date of birth is 6.6.1938, whereas, his actual date of birth is 6.6.1933. T1ie 5 ra^andent, havin9 issued the charga mamo but without concluding the enquir1/ contemplated under the M. P. Civil Services (Classification, Control and Appeal) Rules, by his order datec! 3.3.1994, terminated the services of tiie petitioner. The petitioner, fasiing OQy'w/e.d by the said orcisr of the 5 responcSent, instituted Original Application No.173/1994. That applicstion wasallowed by the Central Administrative Tribunal (for short 'C.A.T.') by its order dated S.7.1994 and the C.A.T. set aside the order dated 3.3.1994. While loing so, the C.A.T., however, permitted the Department to conduct the enquir/ against tiie petitioner by fixing a time-frame of 6 mon+hs. The petitioner was also directed to fu!ly cooperate with the enquiry. The order made by the C.A.T. on 8.7.84 has become fina!, and 1+serefore, the Department and the petitioner are bound by the same. 2. As perisittad by the C.A.T., the 5 respondent procesded to conduct and conclude the enquiry. On 1+ie basis of oral and docusnentary eviefence led in the enquiry, the 5 raspondent found the petitioner to be guilty of the misconduct alleged against him and thought it fit to impose the penalty of removal from service as a disciplino.ry measure. Accorciingly, the 5 raspondent by his order dated 16.1.1995 removed the petitioner from service as a discipiinary measure. Jhs. challenge made by the petitioner by way of appeal tesar: 3 within the Department a!so went in vain. That led to the petitioner again instituting Originat Application No.421/1995 before the C.A.T. ossQilin9 the order of the 5 respondent, as affirmed by tha Appeliate Autiiority', on various grounds. The C.AT. without finding any merit in the Original Application, by its order da-ted 21.4.2002, dismissed the application, That is how, this matter is landed before this Court under Articies 226/227 of the Constitution of India. 3. We have heard learned counsel for the parties. Mrs. Smitha 6hai, learnsd counsel for the petitioner phced three fotd contentions; (i) that after the diffposal of O.A.No.173/1994 by the C.A.T. on 8.7.1994 though 1+ie petitioner reported for duty and submitted his reporting letter to the Station Manager, South Eastern Railway, Durg on 10.7.1994, he refused to sermit him to report for duty. It was a!so contended that the petitioner was not paid a!!owances admissible to nim; ';i\ that the relevant documents sought by the petitioner were not furnished to hlm, and therefore, the enquiry conducted by the discipiinary' authority' is vitiated; and (iii) that tha 5 rsspondent is not -riie competent outhority to impose the penalty of removal from service, and the only corapetent authority' to impose such penalty on the Ktitioner is the Seneral Manager of ttie South Eastem Raiiways, in terms of the instructions contsined in the Sailway Board's feti'er No.E(&AA) 63 R& 6-23 dated 21.2.i964. 4 jct'-yfSiV 4. Shri P. S. Koshy, learned counsel for the respondents, per contra, whije supporting fne impugned disciplinarY action and the Order- of the C.A.T., would contend that notwithstanding repeated directions issued by the Deportment to produce the matriculation certificate to show the date of birth of the petitioner is 6.6.1938, •the petitioner- has faited to produce tiiat certificate and on the other hand, the documents produced in the enquiry' by •rfie Department would c!eariy go to show that •t+»e actual date of birth of tiie petitioner is 6.6.1933 and not 6.6.1938, and therefore, there is no failure of justlce. 5. Having heard +he learned counsel for the parties, the point that arises for decision is whetiier the petitioner has made out any permissibie ground on the basis of which we could possibly step in under Article. 226 to interfere with the disciplinary action taken against the petitioner-deiinquent. It is true that the scope of judicial review in the matter of departmenta! enquiry is very much limited snd circurnscribed b'y' a catena of decisions handsd down by •tfie Apex Court and High Courts. It is qui+e often said and reiteroted that the r-eviewing Court wou'd not go into the question of adequaey aid sufficiency of evidence on the basis of which factual findings are recorded by enquiring and/or disciptinary authority. It is atso well se+tled that strict ruies of evidence have no q)p!ication in conduct of departmenta! enquiry. At the sarne time, it is a!so well settied that before imposing a punishment on a delinquent as a disciplinary measure, the Oisciplinary Authority' is required to practise the principle of fair play in action and strictly adhere to principles of nattjral justice. It is also well sett'ied that the findings recorded by ^ •"J'"^ww iiT?^;iiS^ t^%^1 the enquiring au+hority and/or disciplinary authority shou!d be based on objective facts and not surmises or conjectures. It is a!so welt sett'ied that disciplinar/ action could be initiated only by a competent authority' in terms of the service rules governing conduct of er 6. In the preroise of these norms and genera! principles applicable to the conduct of departmenta! enquiry, when we look at the facts of this case, we shou!d say that there is a serious Sapse on the part of the appellate authority' as we!! as the C.A.T. in not adverting to the competency of ths 5 responden* to initio.te departmanto.l enquiry against the petitioner. The petitioner in his representation sought production of certain documents which inciuded initial appointment order of the petitioner issued in the year 1961. Adfflittedly, this document was not made avaitable to tiie petitioner. This fcct is borne out froro the deposition of S.V.S.Murfny who was examined on behalf of the Department. In his evidence, it is stated that the o!d records of 1961 are not available and are not traceable. Tnerefore, it is not. clear as to who had appointed the petitioner initially cis a Class-IV employee. If that is the state of affairs, in our considered opinion, the. adfflinistrative instruction issued by the Railway Board in its leti'er. No.EC&AA) 63 R6 6-23 dated 21.2.1964 squarely applies. The said cir'cular directs that in the situa+ion of non-avaitabitity of appointment orders, the iSeneral Manager should be treated as an appointing outhority, as far as disciplinary mat{'ers are concemed. In that view of matter, this lega! tion ouqht to have been considered 1+!e Tribunal having secured al! relevant materials. Since that question tll" ..^^'^'^.'.^i^SS. is notdealt with bytheC.A.T.,onlyon1+iatground,theordermade by it could not be sustained. 7. However, we make it clear that the other groundsTirged before us by the learned counsel for the petitioner do not merit our acceptance. Although in parograph 4.5 of the Original Appticdtion No.421/1995, it was urged by the petitjoner that though he reported for duty on 10.7.1994,-the Station iWanager.South Eostem Railways, Durg refused to take him to duty, meeting thatallegation in pdragraph 4(v) of the retum, it is stated Isy 1+ie toilwacs that Station Managpr, Durg wais not a competent authority to reinstate the petitioner into service and only the 5r. Divisionat Personnel Officer, South Eastern Railway, Bilaspur was competent outhority to reinstate him. Meeting the allegation of the petitioner that he was not reinstated into service and not paid consequential and admissible benefits, in paragraph 4(vii) of the return.it is stated that os per order of the C.A.T. dated 28.7.1994 in O.A.No.173/94, the petitioner Wos reinstated into service in his former post with all consequentiat benefits. This factuat assertion made on oath by the Railways is no+ contested by the petitioner by filingony rejoinder. We have no good reason to doubt the integrit/ of the above statement made by the Railways. 8. With regard to non-fumishing of alt relevant documents, suffice it to state that the witness who Wdsexamined on behalf of the Raihuays has depossd that old recopds of the year 1961 are not available and traceofcle. It appears thgt those documents being very old documents must have been lost and destroyed. Be that as it may, since it is the specific case of-the petitioner that his actual date bf ^.ii:;'•-•"}'ii'S-fesl^F ^i'i!;" ^•':5%.1!^1 birth was 6.6.1938, there wcs no difficult for the petitioner to produce either original certificate isajed by the schoo! aul+iorities and if it is lost by -rtie petitioner, as claimed by his counsel during the course of hearing, he could have obtained the dupiicate certificate from the school authorities and produced the sarae. From the side of the petitione", there is no evidence at a!l to support his claim. On the o'rtier hand, -S4ie documents collected by the Department to which (•aferance is mada in the ordai' of the 5 respondent datad 16.1.1995 would prima facie show that fne date of birth of ths petitioner is < 9. In tiie result and for the foregoing reasons, we allow the writ petition and set aside the order of the Tribunai and remand the proceedings to •rfie C.A.T. with a direction to consider the plea raised by th®patitioner with regard to the competanc/ of the 5 respondent to injtiate disciplinary proceedings and pass the order dated 16.1.1995, after giving opportunity to bofn the sides. We perrait the both the sides to file additional pleadings as well as documents in support and opposition of tiie jurisdictiona! plea raised by tiie petitioner as a ground of attsck. 10. In the facts eand circumstances of the case, the parties shal bear their respective costs. The C.A.T. shall dispose of the O.A. within a period of three months from the date of receipt of a copy of fnis Order. ./-, __-_—--—-—— Sd/- Chief Justice Sd-/' Dilip Raosaheb Deshmukh Judge •7h^3)f\^