Dr Sitatam Bhaiyyaji Dhande vs M/o Railways on 28 December 2018

1. 1. Union of India, Through Secretary, Railway Board, Rail Bhavan, Raisina Road, Rafi Ahmed Kidwai Marg, New Delhi 011.

2. 2. The General Manager, Central Railway, Headquarters Office, CSTM, Mumbai 400 001.

3. 3. The Sr. Dy. General Manager (Vigilance) Central Railway, Headquarters Office, CSTM, Mumbai 400 001.

4. 4. Shri R.P. Misra, Inquiry Officer, Inquiry Room, Central Railway, Headquarters Office, CSTM, Mumbai 400 001.

... **Respondents**

**(By Advocate Shri V.S. Masurkar)**

**Reserved on : 26.09.2018.**

**Pronounced on : 20.12.2018**

✓

2OA No.316/2017**ORDER****Per : Shri R.N. Singh, Member (J)**

The Applicant who retired as Additional Chief Medical Superintendent, a Group 'A' post, has approached this Tribunal challenging the order dated 20.02.2017 communicated to him vide covering letter dated 23.02.2017 (Annex.A-1) vide which the request of the applicant to change the Inquiry Officer has been rejected.

2. We have heard the learned counsels for the parties and we have gone through the entire pleadings and documents on record.

3. The brief facts of the present OA are as under:- The Applicant was appointed to the post of Assistant Medical Officer after passing the due selection process and he retired while working as Additional Chief Medical Superintendent on attaining the age of superannuation. On 04.02.2015 (Annex.A-3) two Memoranda proposing to hold an inquiry against the applicant under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 were issued. The Applicant submitted his reply to the 3OA No.316/2017

aforesaid Memoranda. The Disciplinary Authority decided to go ahead with the inquiry and accordingly Respondent No.4 was appointed as Inquiry Officer vide two orders both dated 13.05.2016 (Annex. A-5) to conduct the inquiry and vide order dated 13.05.2016 the Presenting Officer was also appointed. The Applicant has annexed copy of the order-sheets regarding the inquiry being conducted by the Inquiry Officer i.e. dated 27.06.2016, 28.06.2016 and 29.06.2016. From perusal of the same, it appears that initially the applicant has no grievance from the ongoing inquiry, however subsequently on 29.06.2018, the applicant has alleged bias against the Respondent No.4 and, therefore, the Inquiry Officer, the Respondent No.4 adjourned the departmental enquiry till a final decision is taken on the representation of the applicant about continuation of the inquiry by the Respondent No.4. Learned counsel for the applicant submits that the impugned order is bad inasmuch as the same is non-speaking and cryptic. It is submitted on behalf of the applicant that Respondent No.4 has not been 4OA No.316/2017

conducting the inquiry in fair manner and in accordance with the relevant rules. It is also argued on behalf of the applicant that the impugned order has not been passed by the competent authority.

4. In response to the notice issued by this Tribunal on the aforesaid OA, the respondents have filed a reply affidavit and applicant has filed Rejoinder to it. In response to the rejoinder of the applicant, the respondents have filed sur-rejoinder.

5. In reply, the learned counsel for the respondents, Shri V.S. Masurkar, submits that the present OA is misuse of process of law inasmuch as the applicant has approached this Tribunal at interlocutory stage whereas he will get adequate opportunity not only before the Inquiry Officer but even thereafter before the Disciplinary Authority in accordance with the rules. He argues that the ongoing disciplinary proceedings are *quasi-judicial* in nature, should not be interfered with in the middle of the proceeding and in this behalf he relies upon the law laid down by the Hon'ble Apex Court in *Union of India and Anr. Vs. Upendra Singh (1994) 3 SCC*

5OA No.316/2017

357 and also in case of *Secretary, Ministry of Defence and Anr. Vs. Prabhash Chandra Mirdha in Civil Appeal No. 2333 of 2007 decided on 30.04.2007 reported in (2012) 11 SCC*

565. He also draws our attention to the reply affidavit filed by the respondents wherein the respondents have categorically taken a ground that the applicant has not approached this Tribunal with clean hands and has attempted to mislead the Tribunal inasmuch as the applicant has referred to proceedings in two different charge-sheets i.e. on page 64 and 65 to make out a case that Respondent No.4 has not been conducting inquiry in just and fair manner.

6. The Respondents have submitted that the applicant has intentionally annexed copies of the daily order-sheets from 27.06.2016 to 28.06.2016 (Annex. A-7 to Annex. A-10) to the OA as if they belong to the same disciplinary proceedings whereas in fact they are related to the proceedings in respect of two different Charge Memos issued to the applicant for major penalty. With regard to arguments on behalf of the applicant that the impugned order has not been issued by the competent authority, the 6OA No.316/2017

respondents have denied the same in para 30 of their reply affidavit and have further submitted therein that the allegation of bias against the Respondent No.4 has been considered by the Hon'ble Minister for Railways as the Reviewing Authority and after considering all the relevant facts has rejected the request of the applicant for change of Inquiry Officer. Though the applicant has filed rejoinder and has denied the averments of the respondents made in their counter-reply, however, after perusal of the documents on record especially the daily order-sheets, filed by the applicant himself, we do not find any material to conclude that the Respondent No.4 has been conducting the inquiry with bias. It is more clear from the fact that after allegation of bias, the Respondent No.4 has himself adjourned the matter till decision of the competent authority on the representation of the applicant. Moreover, it is settled law that the burden of establishing *mala fides* is very heavy on the person who alleges it. The allegations of *mala fide* are more easily made than proved 7OA No.316/2017

and the very seriousness of such allegations demands proof of a higher order of credibility. We may rely in this regard on the judgment of the Hon'ble Apex Court in *E.P. Royappa Vs. State of Tamil Nadu, reported in 1974 AIR 555*. The Applicant has failed to bring any material on record, less to say any credible material to prove bias or *mala fide* at the end of the Respondent No.4. Accordingly, we find no ground to interfere with the order passed by the authority at this stage of the disciplinary proceeding.

7. The OA is devoid of any merit and the same *is accordingly dismissed*. Interim order passed in the matter is vacated. No order as to costs.

(R.N. Singh) Member (J)

(Dr. Bhagwan Sahai) Member (A)

dm.

200