IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10079 of 2010 4 9.8.2010 NIRANJAN PRASAD SINHA S/O LATE VIJAY DEO PRASAD SINHA SR. GOODS DRIVER UNDER DIVISIONAL MECHANICAL ENGINEER (POWER) DANAPUR DIVISION, E.C.RAILWAY, DANAPUR PETITIONER Versus 1. THE UNION OF INDIA THROUGH GENERAL MANAGER, E.C.RAILWAY, HAJIPUR 2. THE DIVISIONAL RAILWAY MANAGER, DANAPUR DIVISION, E.C.RAILWAY, DANAPUR 3. THE DIVISIONAL MECHANICAL ENGINEER (O & M), DANAPUR DIVISION, E.C.RAILWAY, DANAPUR 4. THE SR. DIVISIONAL PERSONNEL OFFICER, DANAPUR DIVISION, E.C.RAILWAY, DANAPUR 5. THE SR. SECTION ENGINEER (LOCO), DANAPUR DIVISION, E.C.RAILWAY, DANAPUR RESPONDENTS -------- For the Petitioner : Mr Abdul Hakim, Advocate For the Respondent : M/s Bindhyachal Singh and Railways Ram Binod Singh, Advocates -------- Heard learned counsel for the petitioner and learned counsel for the Railways. The petitioner preferred OA No.490 of 2007 before the Central Administrative Tribunal, Patna Bench, Patna seeking quashing of a charge memo dated 10.11.2004 as well as the departmental proceeding on the basis of said charge memo on the ground that earlier a departmental proceeding had been initiated on a part of 2 said charges. That OA has been dismissed by impugned order dated 14.5.2010 contained in Annexure-10 after noticing that when the charge relating to unauthorized absence from duty for four months was enquired into and the enquiry report came before the disciplinary authority, it was detected that the charge was framed on the basis of a report by an officer who was not competent to make such a report. Hence, that proceeding was found to be defective. Subsequently, a fresh proceeding was drawn up in which the charge is for unauthorized absence for a period slightly more than nine months. It is not in dispute that the larger period of absence forming part of the present charge memo includes the earlier period of four months as well as the period during which earlier enquiry was going on against the petitioner. Learned counsel for the petitioner has placed reliance upon the judgment of the Supreme Court in the case of K. R. Deb v. The Collelctor of Central Excise, Shillong, AIR 1971 SC 1447, to submit that after placing reliance upon provisions of the relevant rule of Central Civil Services (Classification, Control and Appeal) Rules, 3 the Apex Court held that the rule on its face provides for one enquiry and there is no provision in the rule for completely setting aside previous enquiry on the ground that the report of the enquiry officer does not appeal to the disciplinary authority. No doubt, the aforesaid proposition of law flows from the aforesaid judgment but in paragraph 13 of the said judgment it has been clarified that although the rule provides for one inquiry but in a particular case it may be possible that there has been no proper inquiry because of some serious defect and this situation may require different action although the disciplinary authority has enough power to reconsider evidence itself and come to its own conclusions. An employer is bound to follow the relevant rules and also not to act arbitrarily. However, in case there has been some serious defect such as enquiry being initiated on a report by an officer who was not competent, it cannot be held that setting aside that enquiry at any stage by the disciplinary authority would amount to acting against the rules or would constitute arbitrariness. In the facts of the present case, we are satisfied that the 4 disciplinary authority has acted in accordance with law and the subsequent charge memo and proceeding cannot be challenged on the spacious ground that the disciplinary authority has no jurisdiction because earlier for a period of four months absence, a charge memo had been issued and enquiry was initiated which resulted into no action. In the result, we find no merit in this writ petition. It is accordingly dismissed. It is observed that the disciplinary proceeding if pending should be disposed of expeditiously without any further delay. (Shiva Kirti Singh, J.) (Birendra Prasad Verma, J.) sk