Union Of India vs Alok Kumar

6. The facts necessary for dealing with this batch of appeals can be summarily stated. The respondents in all these appeals are the members in service of the Railway Establishment. Alok Kumar, respondent in SLP (C) No. 25293 of 2008, is a Group-A officer, while in all other appeals the respondents are from clerical cadre of the Railway Department. This is primarily the only distinguishing feature in the facts of the present appeals. The High Court as well as the Tribunal in all these cases recorded the finding that a retired officer of the Railways cannot be appointed as an inquiry officer within the meaning of the provisions of Rule 9 of the Rules.

7. Keeping in view the common question of law that has been answered against Union of India, it may not be necessary for us to refer to 4 the facts of each case in detail. Suffice it to notice the facts in some detail in Shri Alok Kumar's case. Shri Alok Kumar, respondent, an officer of the Indian Railway Services of Engineers was appointed as Senior Divisional Engineer and was one of the Members of the Tender Committee as well. It is the case of the appellants before us that some irregularities of the Tender Committee were noticed.

8. The Competent Authority on 11th September, 2001 thus served a charge sheet upon the delinquent officer under Rule 9 of the Rules, calling upon him to render his explanation with regard to the Article of Charges and imputations stated therein. It was alleged that Shri Alok Kumar, as convener member of the Committee besides the official position he was holding, submitted a brief calling for tenders on the basis of highly inflated estimates with a view to justify award of contract at very high rates. It was also alleged that he did not submit proper information before the Tender Committee and deliberately misled the other members of the Committee. The Tender Committee which met on 13th July, 1999, upon comparing the rates quoted by M/s Rajpal Builders with the estimated tender value, had found that these were (-) 1.7% lower than the estimated rates. 5

9. In short, it was stated that by misusing his official status he had awarded the contract to the contractor of the Department at high rates. To this, the delinquent filed reply denying the Article of Charges. One Shri J.K. Thapar, retired CAO/FOIS, Northern Railways was appointed as an Inquiry Officer. The inquiry was conducted by him during the year 2001-

02. The entire file including the Central Vigilance Commission (for short `CVC') advice was also placed before the competent authority. The Disciplinary Authority expressed disagreement and issued a Memorandum dated 6th May, 2003 giving a chance to Shri Alok Kumar for making a representation. The Railway Board vide its letter dated 14.6.2004, passed an order imposing punishment upon the respondent of reduction by one stage in the time scale of pay for a period of one year.

10. Aggrieved by this Order of punishment, the respondent preferred an appeal which came to be decided by the Ministry of Railways. The Competent Authority rejected the same vide Order dated 18th July, 2005. Since the respondent could not get any relief, he filed an Original Application No. 458 of 2006 before the Tribunal against the orders of the Disciplinary Authority and the Appellate Authority. Different points were raised in the application by the respondent, however finally only two 6 issues were raised before the Tribunal which were noticed in paragraph 6 of its judgment as under:-

14. The Union of India has challenged the judgment of the High Court in Ram Bahor Yadav's case in SLP (C) No. 24748 of 2008 and all other judgments in the aforementioned appeals. With the exception of Alok 8 Kumar's case, in all the other cases, as is evident from the above narrated facts, we would be concerned with the interpretation of the Rules and provisions of the Act read with the Circular issued by the Railways Department/Board to answer the controversy, whether a retired Railway Officer can be appointed as Inquiry Officer for the purposes of conducting departmental inquiries against the employees of the Railway Department. In case of Shri Alok Kumar an additional issue will have to be dealt with by us with regard to the alleged non-furnishing of the Central Vigilance Commission advice/notes, to the delinquent and its effect on the merits of the case.

45. In the present case even the respondents before us have participated in the entire inquiry and received the order of punishment without any protest. They, in fact, have admitted to the established practice of appointment of former railway employees as inquiry officers. The cumulative result of this discussion is that, it is not possible for this Court to hold, in the facts and circumstances of the case, that the "other authority" has to be only a person in service.

Non-furnishing of advise of Central Vigilance Commission and its consequences

46. In its impugned judgment the Tribunal accepted the contention of the respondents that the CVC's advice/note should have been made available to the delinquent during the stage of inquiry. While referring to another judgment of the Tribunal itself, it concluded that the case was akin to the referred judgment and the notes of the CVC should have been furnished and thus set aside the order of punishment. It will be useful to refer to the reason and conclusion recorded by the Tribunal in its order. There are only two paragraphs i.e., Paragraph Nos. 17 and 18 of the Tribunal's judgment which have been recorded in this regard: 42

47. The High Court has really not dealt with this issue in any further elaboration, except affirming the order of the Tribunal. The High Court mainly considered the arguments founded on the interpretation of Rule 9(2). The reasons recorded by the Tribunal are in no way sufficient to sustain that finding. Before setting aside the impugned orders on that ground, the Tribunal should have concluded in relation to certain facts. They be :

48. Unfortunately, the findings recorded by the Tribunal are entirely silent on the above material aspects, as is clear from Paragraph Nos. 17 and 18 of its judgment.

62. In the light of the above enunciated rudiments of law, let us revert to the two points argued before us. Firstly, the contention of the respondents that Rule 9 (2) necessarily debars appointment of former railway employees as inquiry officers (other authority) is without any merit. Secondly, they have suffered no prejudice at least none has brought to our notice from the record before us or even during arguments. The contention was that this being violation of the statutory rule there shall be prejudice ipso facto. We may also notice that the circulars issued by the Department of Railways cannot be ignored in their entirety. They have only furthered the cause contemplated under Rule 9 (2) of the Rules and in terms of judgment of Virpal Singh Chauhan (supra) the Court had taken the view that circulars should be read harmoniously and in given circumstances, may even prevail over the executive directions or Rules.

64. The judgment of the Tribunal and the High Court in our view are contrary to the settled principles of law and thus cannot be sustained, therefore, we set aside the judgment of the Tribunal as well as the High Court in all these cases. The appeals are allowed. However, in the facts and circumstances of the case we leave the parties to bear their own costs.