Citation Codes

Equivalent Citations

citation codes

Case Number

OA No. 1670/2006

Attorney(S)

(By Advocate Shri B.S Maine with Ms. Meenu Mainee, Advocate)
(By Advocate Shri P.K Yadav)

Judges

Shanker Raju, Member (J)
Shailendra Pandey, Member (A)

Acts

Indian Evidence Act, and Code of Criminal Procedure
Section 114 (b) of the Indian Evidence Act,
Section 106 of the Indian Evidence Act.
Rule 27 of the Railway Rules
Rule 9(25) of the Rules
Rule 9(6)

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The applicant, who was employed as a Passenger Driver, was charged in a major penalty proceeding for an incident dated 13.4.2004 on train No. 2393 UP (Kanpur to New Delhi). It was alleged that the applicant left the engine at Hathras Junction and went away without giving clear and definite instructions to the Assistant Driver not to drive the train; as a result the Assistant Driver drove the train and crossed the starter signal when it was in the red position.

An enquiry was conducted. The Assistant Driver admitted that the applicant had instructed him not to drive the train unless the applicant returned, and the Enquiry Officer (EO) recorded that the Assistant Driver acknowledged those instructions, yet also made conclusions regarding the driver's failure to apply brakes. The EO found the charge established in part. The Disciplinary Authority (DA) issued a non-speaking order holding the applicant guilty and removed him from service by an order dated 23.11.2004. The applicant's appeal was rejected by order dated 25.8.2005.

Legal Issues Presented

Whether the Disciplinary Authority (DA) and the appellate authority had jurisdiction and competence to pass the impugned orders (including the contention that dismissal by the DEE was without jurisdiction where the applicant's promotion had been approved by a JAG officer), raising Article 311(1) concerns.
Whether the DA and the appellate authority violated principles of natural justice and mandatory procedural requirements by passing non-speaking orders that failed to record reasons and deal with the applicant's contentions.
Whether the applicant was punished for a charge that was not levelled against him (i.e., whether punishment was imposed on an extraneous charge not framed in the charge-sheet), contrary to settled law that one cannot be punished on a charge not levelled.
Whether principles of strict liability and presumptions under the Indian Evidence Act / Cr.P.C. apply to disciplinary proceedings (as contended by respondents) or whether disciplinary matters follow the standard of preponderance of probability and natural justice.

Arguments of the Parties

Applicant's Arguments

The DA's order of removal dated 23.11.2004 was without jurisdiction and competence, contravening Article 311(1) of the Constitution because the authority imposing the penalty (DEE) was not the appointing or appropriate authority given the applicant's promotion had been approved by a JAG officer.
The DA's order was non-speaking and failed to deal with the applicant's contentions, violating Railway Board's circular dated 20.1.1986 and principles requiring recording of reasons.
The appellate authority upheld punishment on a charge that was not levelled against the applicant.
The DA punished the applicant on a charge not part of the chargesheet and relied upon extraneous material beyond the scope of the enquiry; thus the punishment is beyond the scope and record of the enquiry.
Relied on precedents (B.D. Lamba v. Union of India and H.D. Sharma v. Union of India) to contend that the jurisdictional issue was no longer open to debate.

Respondents' Arguments

The applicant was held guilty based on evidence and after due procedure was followed; the punishment was proportional and therefore sustainable.
Invoked Section 114(b) and Section 106 of the Indian Evidence Act to argue for drawing presumptions and placing onus on the applicant to prove innocence; urged application of strict liability in the circumstances.
Relied on the Apex Court decision in State of U.P. v. Desh Raj (2006) to support the proposition of strict liability for gross negligence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
B.D. Lamba v. Union of India, 1997 (2) ATJ 33	Relied upon by applicant regarding jurisdictional/competence issues; suggested the issue had attained finality.	The court recorded that the applicant relied on this decision for the jurisdiction point; the court did not base its primary holding on this precedent but noted it was cited by the applicant.
H.D. Sharma v. Union of India, OA No. 2997/2003 (decided 18.5.2005)	Relied upon by applicant for the proposition that the jurisdictional issue is settled.	The court noted the decision was cited by the applicant for the jurisdictional contention; the court's main analysis proceeded on other authorities and statutory/rule provisions.
State of U.P. v. Desh Raj, (2006) 9 SCC 278	Authority on strict liability in criminal law, cited by respondents to argue strict liability in disciplinary context.	The court distinguished and rejected the applicability of this criminal law authority to disciplinary proceedings, holding that criminal procedural rules and strict liability do not govern service jurisprudence.
M.V. Bijlani v. Union of India, 2006 (4) SCALE 146	Principle that a person cannot be punished on a charge which was not levelled against him; natural justice/audi alteram partem requirements.	The court relied on this decision to hold that punishment cannot be imposed for a charge not framed in writing and for which a reasonable opportunity to defend was not given; applied this principle to invalidate the impugned punishment.
Narpat Singh v. Rajasthan Financial Corporation, 2007 (11) SCALE 458	Authority for the proposition that a disciplinary authority must record reasons and deal with representations.	The court applied this authority to find that the DA's non-speaking order violated the obligation to record reasons and discuss contentions, rendering the order unsustainable.
Director (Marketing) Indian Oil Corporation Ltd. v. Santosh Kumar, 2006 (6) SCALE 358	Supports the requirement that disciplinary/administrative orders should record reasons.	The court relied on this decision in concluding that the DA failed to record reasons and discuss the applicant's representations, contributing to invalidation of the order.
S.N. Mukherjee v. Union of India, (1990) 4 SCC 594	Requirement that administrative or quasi-judicial authorities should pass reasoned orders in consonance with natural justice.	The court invoked this Constitution Bench decision to hold that the appellate authority's bald, non-speaking order violated the requirement to pass a reasoned order; applied this to set aside the appellate order.

Court's Reasoning and Analysis

The court proceeded by examining the record of the enquiry, the findings of the EO, the orders of the DA and the appellate authority, and the parties' arguments and authorities cited.

Key analytical steps and legal principles applied by the court:

The court reiterated the settled legal principle (citing M.V. Bijlani) that a person cannot be punished for a charge which was not levelled against him. The court emphasized the rule of audi alteram partem and that charges must be framed in writing so the accused has a reasonable opportunity to defend.
The court examined the EO's conclusions: the Assistant Driver had acknowledged that the applicant instructed him not to drive the train. The EO thus partly proved the charge. Nonetheless, the DA held the applicant guilty of a broader allegation — that he "has to ensure that train No. 2393 should not have been driven by any other person" — which was not the charge framed against the applicant.
The court found that the DA's conclusion constituted punishment on an extraneous charge that was not part of the charge-sheet and hence on which the applicant had not been afforded an opportunity to defend. This infirmity rendered the punishment unsustainable.
The court analyzed the form and quality of the DA's order and found it to be non-speaking: it did not deal with the applicant's representations or contentions and thus failed to comply with Railway Board instructions (circular dated 20.1.1986) and the requirement to record reasons. The court relied on Narpat Singh and Indian Oil (Santosh Kumar) to support the point that reasons must be recorded.
Regarding the appellate authority, the court held that it affirmed penalty on a charge not levelled against the applicant and failed to deal with the applicant's contentions, thus relying on extraneous material and issuing a bald, non-speaking order. The court invoked S.N. Mukherjee to emphasize that quasi‑judicial/administrative authorities must pass reasoned orders; Rule 27 of the Railway Rules was cited as mandating recording of reasons by the appellate authority.
The court rejected the respondents' contention that criminal law presumptions and strict liability (invoking Sections of the Indian Evidence Act and Code of Criminal Procedure and the criminal law precedent State of U.P. v. Desh Raj) apply to disciplinary proceedings. The court held that disciplinary proceedings are governed by the preponderance of probabilities and natural justice; criminal procedural rules and evidence presumptions are not applicable to service jurisprudence, and the cited criminal authority is inapplicable.
Having found fatal procedural and substantive infirmities (punishment on an uncharged allegation; non-speaking orders by DA and appellate authority; reliance on extraneous material; failure to afford opportunity), the court concluded that the OA succeeds on these grounds and that other legal grounds need not be adjudicated.

Holding and Implications

Holding: The court allowed the Original Application and set aside the impugned orders (the DA's order dated 23.11.2004 of removal from service and the appellate order dated 25.8.2005).

Direct consequences and implications as ordered by the court:

Respondents were directed to forthwith reinstate the applicant in service.
Respondents were permitted, if so advised, to initiate appropriate proceedings afresh in accordance with law.
The intervening period will be dealt with as per the applicable rules and law on the subject.
No costs were awarded.

Broader implications: The opinion does not discuss any broader precedential changes beyond applying established authorities on the need for charges to be framed, for reasoned orders, and the inapplicability of criminal presumptions to disciplinary proceedings. Accordingly, the direct effect is to restore the applicant to service and to require any future proceedings to conform to procedural and natural justice requirements; the opinion does not announce a novel legal principle.

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Moti Lal v. Union Of India

Applicant impugns respondents' order dated 23.11.2004 whereby pursuant to a disciplinary proceeding applicant was removed from service. Also assailed is an order dated 25.8.2005, rejecting the appeal.

2. While working as Passenger Driver, applicant was served with a major penalty chargesheet on the ground that on 13.4.2004 while working on train No. 2393 UP from Kanpur to New Delhi he had left the engine at Hathras Junction and went of without giving clear and definite instructions to the Assistant Driver not to drive the train, as a result of which the Assistant Driver started the train and the train had crossed the starter signal in red position. An enquiry was held where the Assistant Driver had clearly admitted that he had been instructed by the applicant not to drive the train, yet the Enquiry Officer (EO) on the ground that applicant though had gone for a call of nature and as per the Assistant Driver's statement it was established that applicant had instructed him that when the signal lowers down a whistle should be blown so that applicant would come and also acknowledged that applicant had directed Assistant Driver not to drive the train. However, as per the contradiction in the defence of the applicant the EO has concluded as follows:

“It is established that the Driver has not applied breaks and had it been applied before home signal the automatic fasal light would be working and the pressure would be lowered down and the train would have stopped.”

It is concluded that the applicant as a Passenger Driver has not taken MPJ with him and was negligent. Accordingly, allegations were established in part. The disciplinary authority (DA) with the following order held applicant guilty:

“He has to ensure that train No. 2393 should not have been driven by any other person in which he has been found unsuccessful.”

Accordingly, finding him guilty, he has been removed from service.

3. The appeal filed by applicant was rejected, with the following order:

“The case has been reinvestigated by calling Asstt. Gd's Shri N.K Gupta & as per Asstt. Gd's as well as RPF constable, co has been present in F/SLR toilet & was inside toilet when train moved from him signal to G/sheeting starter signal. CO should have taken MRJ to avoid driving of the loco by Asstt. driver on this he failed. Therefore charges are rightly proved & appeal is rejected.”

4. Learned counsel of the applicant, at the outset, states that the orders passed by the DA is without jurisdiction and competence being subordinate to the appointing authority of the applicant, passed the order, which is violative of Article 311 (1) of the Constitution of India. It is further stated that whereas applicant was promoted in the pay scale of Rs. 5000-9000 on approval by a JAG officer, his dismissal by the DEE, who is not a JAG officer is without jurisdiction. Learned counsel would further contend that the order passed by the appellate authority is also vitiated on lack of jurisdiction.

5. Shri Mainee states that the order passed by the DA is a non-speaking order, without dealing with the contentions of applicant and hence contravened Railway Board's circular dated 20.1.2986

6. Insofar as appellate order is concerned, it is stated that the appellate authority has upheld the punishment on a charge, which was not even levelled against the applicant.

7. Shri Mainee further contends that insofar as jurisdiction of the authority to pass an order is concerned, on reliance upon a decision of the coordinate Bench of this Tribunal in B.D Lamba v. Union of India, 1997 (2) ATJ 33 and also a decision of the Principal Bench of the Tribunal in OA No. 2997/2003 in H.D Sharma v. Union of India, decided on 18.5.2005, contended that the issue is no more res integra and has attained finality.

8. Lastly, it is contended that even the DA has also punished the applicant on a charge not forming part of chargesheet, yet established by the EO. As such, on an extraneous material applicant has been punished, which is beyond the scope and record of the enquiry.

9. On the other hand, Shri P.K Yadav, learned counsel of respondents vehemently opposed the contentions and stated that applicant has been held guilty on the basis of the evidence and after a due procedure was followed. As such when the punishment was proportional no infirmity can be found with the orders passed. Learned counsel has also stated that as per Section 114 (b) of the Indian Evidence Act, a presumption has to be drawn and on strict liability the onus to prove the innocence lies on applicant under Section 106 of the Indian Evidence Act. Learned counsel has also drawn our attention to paragraphs 41 and 42 of the OA, i.e, conclusion of the EO and stated that on a contradictory statement of applicant, who was functioning as main Driver and when other Assistant Driver was found guilty a strict liability has to be construed for his gross negligence, as only two persons have been held guilty. As the defence cited by the applicant is inconsistent, in the context of strict liability, relying upon the case of Apex Court in State Of U.P v. Desh Raj, (2006) 9 SCC 278, it is contended that the strict liability is a rule to be followed.

10. We have carefully considered the rival contentions of the parties and perused the material on record.

11. As ruled by the Apex Court in M.V Bijlani v. Union of India, 2006 (4) SCALE 146 that in a disciplinary proceeding one cannot be punished on a charge, which is not levelled against a Government servant. The principles of natural justice have been inbuilt in all the procedural rules for holding enquiry and one of the underlined principle is audi alteram partem. A railway servant, who is proceeded against cannot be punished, unless the charges are reduced in writing, framed against the railway servant and against which a reasonable opportunity to defend is afforded. Rule 9(6) of the Railway Servants (Discipline & Appeal) Rules, 1968, provides that substance of imputation of misconduct is to be compiled and a copy is delivered to the concerned, on which enquiry is proceeded by recording of evidence. Rule 9(25) of the Rules mandates the EO to prepare a report, which would include assessment of evidence in respect of each charge and the finding recorded thereon with reasons.

12. Having regard to the above, the only charge against the applicant in Articles I and II, was leaving the engine without any definite and clear instructions to the Assistant Driver not to drive the train. However, the Assistant Driver when examined on investigation in the enquiry has clearly stated that applicant had instructed him not to drive the train unless he comes back. Accordingly, the EO in hic conclusion has reiterated that the Assistant Driver has acknowledged the instructions given by the applicant to him not to drive the train but in the concluding part applicant has been held guilty of charge. The EO though partly proved the charge, yet the DA in a non-speaking order held the applicant guilty of the allegation that applicant should have ensured that the train could not be driven by any person other than him. The aforesaid was not a charge levelled against him, rather the charge of giving instructions to the Assistant Driver having not been substantiated, as it is proved on record that such instruction had been given, which was acknowledged in the conclusion of the EO. However, holding the applicant guilty without mentioning that the charge is partly proved on an extraneous charge, which is not levelled against applicant, against which he had not been given an opportunity either to rebut or to defend effectively, the punishment cannot be sustained in law.

13. Insofar as order passed by the DA is concerned, as per Board's instructions of 1986, the DA in a major penalty proceedings is obligated to record reasons. Although the applicant in the representation took several contentions, but none of it has been discussed, which is violative of the dicta of the Apex Court in Narpat Singh v. Rajasthan Financial Corporation, 2007 (11) SCALE 458 and Director (Marketing) Indian Oil Corporation Ltd. v. Santosh Kumar, 2006 (6) SCALE 358.

14. As regards orders passed by the appellate authority is concerned, it has affirmed the penalty on the charge that applicant has taken the key as to non-driving of loco by Assistant Driver, which is not even levelled as a charge against the applicant and against which no reasonable opportunity was afforded. This amounted to consideration of an extraneous material by the appellate authority. Moreover, the appellate authority has not even dealt with the contentions of applicant and rather passed a bald and non-speaking order. As per the Constitution Bench decision of the Apex Court in S.N Mukherjee v. Union Of India., (1990) 4 SCC 594 an administrative authority or a quasi-judicial authority while passing orders should pass a reasoned order, unless the requirement is dispensed with, with is in consonance with the principles of natural justice. Moreover, Rule 27 of the Railway Rules mandates recording of reasons by the appellate authority. Having not complied with it, the orders passed cannot be countenanced in law.

15. The plea taken by the respondents' counsel on propagation of the principle of strict liability on invocation of Indian Evidence Act, and Code of Criminal Procedure in Service Jurisprudence, it is trite that in the matter of disciplinary proceedings there is no applicability of the Cr. PC or Indian Evidence Act. In the matters of disciplinary proceedings preponderance of probability is the rule and principles of natural justice hold the field. If such an argument is accepted the disciplinary proceedings would have to be proceeded as if a trial on a criminal charge and would be contrary to law. The judgment cited is an authority on criminal law and shall have no applicability in the Service Jurisprudence.

16. The other legal grounds taken by the applicant are not adjudicated at present, as OA is liable to succeed on the above grounds alone.

17. Resultantly, OA is allowed. Impugned orders are set aside. Respondents are directed to forthwith re-instate the applicant in service. However, if so advised, respondents are at liberty to take up appropriate proceedings, in accordance with law. The intervening period would be operated as per rules and law on the subject. No costs.

Moti Lal v. Union Of India

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Moti Lal v. Union Of India

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