Honble Shri V.K.Majotra, Vice-Chairman (A): Applicant has challenged Annexure A-1 dated 31.5.2004 whereby enquiry officer has been appointed in disciplinary proceedings against him. The earlier enquiry in the chargesheet dated 25.4.1994 was quashed by this Tribunal vide order dated 2.9.1999 in OA No.2048/1995 by giving liberty to respondents to hold further enquiry. After holding disciplinary proceedings the charges were dropped vide order dated 4.10.2001 but the consequential benefits like fixation of pay, back wages, seniority and promotion were not allowed. Applicant then filed OA No.3024/2003 which was disposed of vide orders dated 15.12.2003 directing the General Manager, Northern Railway to consider applicants representation by passing a speaking order regarding the aforesaid consequential benefits. It is alleged that the General Manager instead of directing respondents 2 and 3 to deal with the case of applicant for grant of annual increments, back wages, seniority and promotion in accordance with rule 1343 of the Indian Railway Establishment Code Volume-II, directed respondents 2 and 3 to hold allegedly a fresh enquiry which is stated to be impermissible under the rules and law.

2. The learned counsel of applicant contended that applicant had requested the disciplinary authority to produce additional documents like attendance register, paid vouchers etc. to enable him to put up defence effectively and also for examination of defence witnesses such as S/Shri Sanjay Kumar, dealing clerk; A.P.Srivastava, appointing authority; the welfare officer who had verified the working of applicant before his appointment; S.P.Jutla; Noor Mohd., clerk; and Laxmi Narain, clerk. The learned counsel stated that verification report is a material document to show that applicant had actually worked as casual labour at the relevant time. Similarly, the personal file of applicant was also necessary to show service particulars of applicant as casual labour. These documents were not produced in the enquiry. The learned counsel stated that in order dated 2.9.1999 (Annexure A-2) whereby OA No.2048/1995 was disposed of, it has been clearly stated in paragraph 7 of the orders as to which documents ought to have been produced and which witnesses should have been examined. However, respondents did not produce those documents nor were the witnesses useful for defence of applicant examined. Thus the OA was allowed with the following directions: 12. In the result, the application is allowed. The impugned order of the Disciplinary Authority dated 25.10.1994 and order of the Appellate Authority dated 27.11.1994 are hereby set aside. The applicant shall be reinstated in service forthwith but shall be deemed to be under suspension from the date of his removal till today and till final orders are passed by the Disciplinary Enquiry. The applicant would be entitled to subsistence allowance from 25.10.94 as per rules. Liberty is given to the Administration to proceed with the departmental enquiry by giving opportunity to the applicant for production of relevant and available documents and to examine defence witnesses on his behalf. Then, it is open to the Disciplinary Authority to pass appropriate orders according to law. All contentions on merits are left open. Since it is a case of charge sheet of 1991, we expect the disciplinary authority to expedite the disciplinary enquiry and pass final orders at the earliest.

3. The learned counsel further stated that vide Annexure R-II dated 29.4.2004 the General Manager has wrongly ordered a fresh enquiry against applicant although the disciplinary authority vide order dated 4.10.2001 had dropped the charges against applicant. The learned counsel maintained that initiation of de novo enquiry in this manner is impermissible under rule 25 of the Railway Servants (Discipline and Appeal) Rules, 1968.

4. On the other hand, the learned counsel of respondents stated that the revisional authority, i.e., the General Manager, by Annexure R-II has merely ordered a further enquiry and not a de novo enquiry. The learned counsel stated that the enquiry officer had examined the charged officer only and submitted his report giving a finding that the charge framed against applicant was not proved and as such, the disciplinary authority had accepted the finding of the enquiry officer and dropped the enquiry proceedings. The General Manager suo motu under the powers conferred on him in terms of rule 25 of the Discipline and appeal Rules, 1968 had passed the orders dated 29.4.2004 and consequently the disciplinary authority appointed the enquiry officer by the impugned orders dated 31.5.2004. The learned counsel maintained that the General Manager had acted within his powers and directed the disciplinary authority to hold further enquiry. He relied on Union of India & Ors. v Upendra Singh, 1994 (2) SLJ 77 (SC) contending that the Tribunal had no powers to ascertain the correctness of charges or correctness of the findings by the enquiry officer. The learned counsel also relied on Union of India v J.R.Dhiman, JT 1999 (10) SC 241 to the effect that the Tribunal was not empowered to pass orders restraining the revisional authority from ordering a further enquiry in the matter.

5. We have considered the rival contentions as also perused the records relating to the disciplinary proceedings against applicant produced by respondents.

6. The following observations/directions of the Tribunals orders dated 2.9.1999 in OA No.2048/1995 are relevant: 7. It is not disputed that applicant made number of representations seeking production of certain documents in respect of his defence. The first document, on this point, is applicants letter dated 31.7.91 where he has asked the administration to supply number of documents. This is followed by the subsequent representations dated 14.9.91, 6.1.93, 3.3.94 and 6.4.94 wherein the applicant has sought the administration to produce certain documents which are very vital material for deciding the case. No reply was given to the applicant in respect of these representations. However, today counsel for respondents brought to our notice the order sheet dated 10.7.91, which is at page 42 of the disciplinary enquiry file now placed before us by the counsel for respondents. In this order sheet, two documents were not furnished on the ground that they are not relevant. One document, namely, paid voucher is stated to be destroyed. Another document will be furnished on the next date of hearing. Except the one document which is now shown to us, there is no other document on record for considering the demand of the applicant for production of certain documents. If we go by the order sheet dated 18.9.93, it is stated that the verification report and the personal file of the applicant, are not relevant. In our view, this stand of the administration is not acceptable to us. Verification report is a material document to show that the applicant had actually worked as casual labour at the relevant time or not. How can the administration say and reject the request summarily on the ground it is not relevant. Similarly, the personal file of the applicant was also necessary to show service particulars of the applicant as casual labour. But unfortunately, the enquiry officer has observed in the order sheet that these two documents are not relevant. It may be that as far as paid voucher, the administration could not produce them since they are stated to destroyed. If we accept the statement regarding supply of documents, the stand of the administration cannot be accepted. When, there is no reply by the administration regarding other documents demanded by the applicant in support of his defence, we only mentioned two documents to show that the applicant is prejudiced in his defence. The applicants casual labour card which contained service particularly, was sent for verification. That document could have shown the period which the applicant had worked and the corresponding verification by the concerned official.

8. Now we come to the applicants demand for examination of certain witnesses as defence witnesses. The names of the witnesses were disclosed in number of representations given by the Administration. On the other hand, the Enquiry Officer rejects the demand for examination of defence witnesses by a reason which is not acceptable to us. The Enquiry Officers report is at page 30 of the paper book and at page 38, the Enquiry officer has given reasons as to why he is not allowing defence witnesses to be examined. He says that witness, namely, Shri Sanjay Kumar, Sr.Clerk, is not allowed to be examined on the ground he is not relevant since he has given remarks on the basis of verification Shri B.K. Dass. Shri B.K. Dass is not allowed to be examined since he was taken up under disciplinary action for false verification. Then, APO is not allowed to be examined on the ground he is also involved in the scam. Then, AEN is not allowed, since he is retired. Even if AEN had retired, there was no difficulty for the Enquiry Officer to send the notice to him and if he did not turn down, the matter will be different. Then, the AME is not allowed on the ground he has simply passed the order of posting on the basis of verification of Shri B.K. Dass. What evidence AME would have given, the Enquiry Officer could not visualize at this stage. He could not summarily reject witnesses on the ground that they have no idea as to how the verification was done. Similarly, Shri Ram Pal has not been allowed on the ground he has no concern with the office working.

9. In our view, the reasons given by the Enquiry Officer for rejecting the request of the applicant for examination of defence witnesses, do not appear to be reasonable whether the witnesses are reliable or not, is a different question. But the Enquiry Officer could not summarily reject the request of the applicant for examination of defence witnesses on such grounds as mentioned above. Therefore, this action of the Enquiry Officer summarily rejecting the request of the applicant for examination of the defence witnesses, has certainly prejudiced the defence of the applicant.

7. Basically on the basis of the discussion in the above paragraphs in orders dated 2.9.1999 it was found that the enquiry officer had not properly exercised his powers in rejecting the request of applicant for production of documents and for examination of witnesses. Particularly, the verification report and the personal file of applicant ought to have been produced in the enquiry. Their non-production has certainly prejudiced the defence of applicant. Similarly, various witnesses referred to above were also not examined. In this backdrop, it was directed that not only that applicant should be reinstated but the documents asked for by him should be produced and the defence witnesses should be examined. In his report Annexure A-13 the enquiry officer had observed that the lacunae pointed out by the Tribunal had not been removed in the DAR proceedings and as such the position as it obtained earlier continued and the DAR proceedings were vitiated on the basis of this report. The disciplinary authority had vide order dated 4.10.2001 (Annexure A-4) ordered the DAR proceedings to be dropped with immediate effect. These are the orders which the General Manager vide his orders dated 29.4.2004 (Annexure R-II) set aside in revision directing that further proceedings be initiated from the stage of appointment of enquiry officer by providing available and relevant additional documents and also examining the defence witnesses.

8. The learned counsel of respondents has stated that the Tribunal cannot look into the correctness of charges or the correctness of findings of the enquiry officer. He has relied on the ratio in the case of Upendra Singh (supra). In our view, the same is not applicable in the present case, as we are not looking into the correctness of the charges or the correctness of findings of the enquiry officer. We are looking at whether the General Manager has exercised his powers properly and passed correct orders in accordance with which the impugned orders have also been passed, by appointing a new enquiry officer. Relying on J.R.Dhiman (supra) the learned counsel maintained that the Tribunal cannot set aside the order of the revisional authority.

9. Tribunals directions in order dated 2.9.1999 in OA No.2048/1995 were to provide to applicant the available documents and also to facilitate examination of defence witnesses. The enquiry officer in his report Annexure A-13 observed that the directions of the Tribunal for making available the documents and also examination of defence witnesses were not complied with. In this backdrop, on the recommendations of the enquiry officer, the disciplinary authority dropped the proceedings. The General Manager in his capacity as revisional authority vide orders dated 29.4.2004 (Annexure R-II) has set aside the orders of the disciplinary authority and directed further proceedings from the stage of appointment of enquiry officer by providing available and relevant additional documents and also permitting examination of defence witnesses. Directing provision of available and relevant additional documents and also examination of defence witnesses is quite in accordance with the directions contained in Tribunals orders dated 2.9.1999 in OA No.2048/1995. The question is whether directing initiation of the proceedings from the stage of appointment of enquiry officer would constitute further proceedings. In the opinion of the learned counsel of applicant, respondents have resorted to change in the enquiry officer as the enquiry officer had given a finding that the disciplinary authority had not provided documents to applicant and recommended dropping of the enquiry. Basically, in our view, the General Manager has directed provision of available and relevant additional documents and also examination of defence witnesses, which is quite in consonance with the directions of this Court. However, no reasons have been assigned regarding the change of the enquiry officer. If the same enquiry officer had been continued if he was available, the orders of the General Manager would have been absolutely all right. Change in the enquiry officer would also be quite all right if there are reasons enough for non availability of the same enquiry officer.

10. In the light of the above discussion, the OA is partly allowed quashing Annexures A-1 dated 31.5.2004 and R-II dated 29.4.2004, directing the General Manager to pass fresh orders permitting appointment of another enquiry officer only if the same enquiry officer who had earlier held the enquiry is not available for some good reason. It is further directed that in case the documents in terms of Tribunals orders dated 2.9.1999 and 15.12.2003 in OA No.2048/1995 and OA No. 3024/2003 are not available, the enquiry shall abate forthwith. However, if they are made available to applicant, then the defence witnesses asked for by applicant shall be examined and the enquiry shall be completed within a period of four months from the date of communication of these orders. It is further held that applicant shall be entitled to all wages and consequential benefits from the date of reinstatement in view of the inordinate delay caused in implementing the directions of this Court contained in orders dated 2.9.1999 and 15.12.2003. ( Shanker Raju ) ( V. K. Majotra ) Member (J) Vice-Chairman (A) /as/