THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR W.P.No. 18345 of 2010 Dated 10-08-2010 Between: The Senior Divisional Commercial Manager, Commercial Branch, South Central Railway, Vijayawada Division, Vijayawada and another. …Petitioners Vs. P. Madhusudhan Reddy and two others. …Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM And THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR W.P.No. 18345 of 2010 Oral Order: (Per: GR, J) Heard Smt. C.V. Vinitha Reddy, the learned standing counsel for the South Central Railways and Sri Shiva Reddy, the learned counsel for the 1st respondent. The writ petition is filed by the South Central Railway authorities and is directed against the order dated 16-04-2010 allowing O.A.No. 83 of 2010 of the learned Central Administrative Tribunal, Hyderabad Bench, Hyderabad filed by the 1st respondent herein, challenging the order of compulsory retirement pursuant to the disciplinary proceedings initiated by the employer- railways. The 1st respondent was working as an Enquiry- cum-Reservation Clerk in railways at Eluru Railway Station. While so, on 14-09-2007, a vigilance check was conducted and excess cash of Rs.58-00 was found with the 1st respondent-Charged Officer. A charge memo was issued on 28-08-2008 enumerating two articles of charge pertaining to excess cash. The Charged Officer denied the charges and was subjected to disciplinary inquiry. P.Ws. 1 to 4 were examined on behalf of railways and cross-examined by the Charged Officer. On a subsequent date of inquiry however when the Vigilance Inspector was scheduled to be examined, the Charged Officer remained absent and the Inquiry Officer declared him ex-parte and proceeded with the inquiry, concluded the evidence on behalf of the Railways and the Charged Officer and submitted a report to the Disciplinary Authority finding him guilty of both charges. The disciplinary authority forwarded a copy of report to the Charged Officer on 17-06-2009 for his comments and received the representation of the Charged Officer on 07-07-2009 wherein it was complained that no opportunity was provided for cross-examining the Vigilance Inspector and for adducing evidence on his behalf and seeking a further opportunity to proceed with the inquiry including in the matter of cross-examining the Vigilance Inspector and adducing his own evidence. The Disciplinary Authority however did not accede to the Charged Officer’s request, accepted the Inquiry Officer’s report and passed an order dated 21-07-2009 visiting the Charged Officer with the penalty of ‘compulsory retirement’. Challenging the order of compulsory retirement, the Charged Officer earlier filed O.A.No. 649 of 2009 without availing the appellate remedy. The said O.A. was disposed of at the stage of admission by the order dated 06-10-2009 relegating the Charged Officer to avail the appellate remedy while observing that the appellate authority would be required to consider the several contentions in the appeal and pass a reasoned order therein. Thereafter the Charged Officer preferred an appeal and the appellate authority rejected the appeal on 27-01-2010. Challenging the primary order i.e., of the Disciplinary Authority dated 21-07-2009 and the order of the Appellate Authority dated 27-01-2010 rejecting the appeal, the Charged Officer preferred O.A.No. 83 of 2010 contending inter alia that he was denied reasonable opportunity in the disciplinary inquiry. The Charged Officer also assailed the appellate order on the ground that it is bereft of reasons notwithstanding the earlier order of the Tribunal directing the appellate authority to record reasons on the several appellate contentions of the Charged Officer. The learned Tribunal by the order impugned found that the conduct of the inquiry ex-parte, closing the prosecution evidence without affording a further opportunity to the Charged Officer to cross-examine the Vigilance Inspector and denying the Charged Officer the opportunity to adduce evidence in his defense constituted a violation of the principles of natural justice and in particular the principle of a fair and reasonable opportunity to defend oneself at a disciplinary inquiry. Accordingly, the learned Tribunal disposed of O.A., set aside the order of punishment of ‘compulsory retirement’; directed the disciplinary authority to instruct the Inquiry Officer to reopen the inquiry and proceed from the stage at which the Charged Officer was set ex-parte, to afford an opportunity to cross-examine the Vigilance Inspector and to adduce evidence in support of his defense. The Tribunal also directed the Charged Officer to co-operate with the Inquiry Officer to complete the inquiry within two months from the date of recommencement of the inquiry while observing that the treatment of the period of absence of the Charged Officer from duty (consequent on the order of compulsory retirement) shall be subject to further result in the inquiry to be conducted, as directed. The Tribunal in conclusion, directed that the Charged Officer shall be reinstated within a month. The learned standing counsel for the Railways would strenuously contend that the Charged Officer was remiss and had declined on a number of occasions to participate in the inquiry and choose not to address applications for his recusal from the inquiry or for adjournment of the inquiry process, not to the Inquiry Officer but to his Controlling Officer and therefore cannot be considered to have justifiably absented himself from the disciplinary inquiry. In the circumstances, the Inquiry Officer was constrained to proceed ex-parte and this conduct would not constitute denial of a fair and reasonable opportunity to the Charged Officer. From the material on record, including the elaborate reasons recorded by the Tribunal in the order impugned, it is apparent that the Charged Officer, the 1st respondent herein, had issued three telegrams addressed to his Controlling Officer seeking adjournment of the inquiry on the ground of ill-health. Though the conduct of the Charged Officer in addressing the Controlling Officer instead of Inquiry Officer was irregular, there is no occasion to attribute any mala fides or extraneous reasons for the course of action chosen by the Charged Officer. Inadequate knowledge about the disciplinary process might have prompted the Charged Officer to address the Controlling Officer who was undoubtedly the administrative supervisor. For this error of judgment in addressing a request for adjournment to the Controlling Officer, the Charged Officer should not be penalized by denial of a reasonable opportunity. On the aforesaid analysis, we concur with the reasoning and conclusions recorded by the learned Central Administrative Tribunal, Hyderabad Bench, Hyderabad that the 1st respondent – Charged Officer – must be afforded an opportunity to participate in the inquiry from the stage of cross-examination of the Vigilance Inspector (PW.5) and should also be permitted to adduce his evidence after the closure of P.W.5’s cross- examination. The inquiry proceedings shall commence expeditiously and in any event within thirty (30) days from the date of receipt of a copy of this order. The Inquiry Officer may consider proceeding with the inquiry on a day- to-day basis, to be concluded as expeditiously as possible. The 1st respondent – Charged Officer – shall co-operate unreservedly with the conduct of the inquiry and shall be present on all scheduled dates of inquiry. If he fails to attend without exceptionally justifiable reasons, the inquiry may proceed ex-parte. We however set aside the judgment of the Tribunal to the extent it directs that the 1st respondent – Charged Officer – to be reinstated. The entitlement of 1st respondent – Charged Officer – for reinstatement or any other benefits in service shall be subject to the result of the inquiry which is now directed to be proceeded de novo from the stage of cross- examination of the Vigilance Inspector. The writ petition is disposed of as above, at the stage of admission, after hearing the learned counsel for the respective parties. In the circumstances, however there shall be no order as to costs. ____________________ GODA RAGHURAM, J __________________________ B. CHANDRA KUMAR, J Dated: 10-08-2010 Pvks Nb:- Furnish c.c. in a week. b/o pvks/*