Lata Vijay Deokate vs M/o Railways on 30 October 2026

O R D E R

Per: Shri Krishna, Member (A):

The applicant has filed this OA but during pendency of the OA he had expired. Vide order dated 01.05.2023 in MA No. 270/2022, the legal heirs of the employee i.e. Smt. Late Vija Deokate has been brought on record. Therefore, the O.A. is being agitated by the legal heirs to claim for the following reliefs:

(a) This Hon’ble Tribunal will be pleased to call for records and proceedings of the case which let to the passing of the impugned orders of (1) Revisionary Authority’s order dated 03.12.2014, Annx. “A”,

(2) Appellate Authority’s order dated 02.01.2015, Annx. “B”, (3) Disciplinary Authority’s order dated 10/21.07.2014 received by the applicant on 26.7.2014, Annx. “C” and (4) Chargesheet dated 17.04.2013 issued by the SR. DME, Solapur as Disciplinary Authority, Annx. “D”, respectively, and after going through its’ proprietary, legality and constitutional validity be pleased to quash and set aside the same with all consequential benefits of continuation of service, back wages, and the benefits of seniority and promotions etc.

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(b) This Hon’ble Tribunal will be pleased to order and direct the respondents to take the applicant back on duty and in service with the benefits of continuation of service, back wages, and the benefits of Seniority and promotions and other consequential benefits.

(c) Any other and further orders as this Hon’ble Tribunal may deem fit, proper and necessary in the facts and circumstances of the cases.

(d) Cost of this Original Application maybe provided for.

2. The brief facts of the case are that the applicant was initially appointed as Junior Clerk in the Central Railway on 01.07.1985 and during course of his career he was promoted as Sr. Clerk and Head Clerk vide order dated 16.08.1991 and 18.1998 respectively. Later on, he was promoted as Office Superintendent – II in the pay scale of Rs. 9300- 34,800+4600 (GP). It is submitted that he was given a charge sheet (SF-

9) dated 17.04.2013 when he was working as Office Superintendent/NP (Fuel Issuer) at Kurduwadi Station by the Disciplinary Authority i.e. Sr. DME of Central Railway, Solapur Division. It was alleged in the charge sheet that he committed gross misconduct during the period between April 2010 to March 2011 as stated in the Article I in as much as that he failed to record proper reading of Flow Meter Register and T41B.

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2.1. In the second article of charge it was alleged that he failed to record details of fuel issued by him in Fuel Issuer Staff Diary and he also failed to record proper reading of Flow Meter Register and T41B. It is stated that there is no difference between Article 1 and Article II and no statement of allegation was mentioned in Article III. It is submitted that he filed written statement dated 27.09.2016 (Annexure A/6).

2.2. It is submitted that one Shri S K Majumder who was working as Chief Loco Inspector (CLI) was appointed as Inquiry Officer who was Group ‘C’ employee though a Fact Finding Inquiry was conducted by a Senior Scale Officer i.e. Sr. Assistant Divisional Mechanical Engineer, Solapur (A/7). It is contended that regular inquiry was conducted on 10.11.2013 itself wherein preliminary questions were put to the applicant. However, on 22.01.2014 and 23.01.2014 certain questions in the nature of cross examination were put to the applicant and it was described as examination. All the question were put to the Applicant by the Inquiry officer himself and the applicant was made to answer. Such a cross examination is bad in law as the applicant cannot be cross examined by the Inquiry Officer (A/8).

2.3. It is submitted that prosecution witness one Shri Ram Naresh was examined on 22.12.2013 and subsequently the same witness was subjected to re-examination on 12.01.2014 (A/9). It is submitted that by C SADISH KUMAR Date:

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defence witness was examined by the Inquiry Officer by putting about 13 questions and it is absolutely illegal and arbitrary as the Inquiry Officer has functioned as a Prosecution Counsel and not as Independent Impartial Inquiry Officer. The defence witness No. 2 Shri Jay Chandran Rtd. CLI was examined on 20.01.2014 (A/10). This witness has been cross examined by the Inquiry Officer which is illegal as Inquiry Officer cannot act as a Prosecution counsel and cross examine the witness.

2.4. The applicant submitted his written defence brief on 27.01.2014 wherein he has brought out his defence in respect of charges levelled against him (A/11). The Inquiry Officer however submitted inquiry report dated 10.03.2014 (A/12) holding the part of the charges is proved. It is submitted that it is not clear that which part of the charges are proved.

2.5. It is submitted that the applicant made representation to the Inquiry Report (A/13) but no disagreement note was given. It is submitted that points taken in his representation were neither considered by the disciplinary authority nor referred to in the punishment order. Therefore, it was illegal and wrong for the disciplinary authority to rely upon the Inquiry Officer’s report entirely against the applicant in as much as the Inquiry Officer only found that the applicant was partially guilty without disclosing as to what are the charges which have been by C SADISH KUMAR Date:

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found proved against the applicant and what charges have not been proved against the applicant. In this circumstances it is mandatory that the disciplinary authority ought to have issued a show cause notice only to the extent of charges which have been proved.

2.6. It is submitted that Disciplinary Authority i.e. Sr. DME, Solapur did not himself draw the charges nor cause it to be drawn up. Further as per Sub Rule 6, the disciplinary authority did not include a statement of imputation of misconduct in support of each article of charge. It is submitted that statement of allegations are not included in the chargesheet. Instead thereof Article of Charge I and II are repeated. Thus, no statement of imputation of misconduct or misbehaviour in support of each article of charges have been included and the same are missing. It is submitted that Inquiry Office straight way relied upon the report of the ADME without calling him as witness and without giving an opportunity to the applicant to cross examine him.

2.7. It has been submitted that charge memo is based only on one RUD report i.e. ADME’s report whereas writer of the said RUD is not part of listed witness. It is submitted that allegations are based on the T-41B of period pertaining to April 2010 to March 2011, however, those relevant documents were not supplied to the applicant during the inquiry on the by C SADISH KUMAR Date:

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pretext of non-availability in the office which is against the Railway Boards letter No. E(D&A) 83, RG-6-14 dated 29.03.1985.

2.8. It is further submitted that prosecution witness Mr. Ram Naresh CLI, Fuel, DD had taken over charge on 06.09.2012 and therefore was not concerned with the alleged period, therefore, listing of such PW is unauthentic and irrelevant witness. It is contended that not listing of the then CLI has caused prejudice to the applicant.

3. The applicant has placed reliance on the judgment of Hon’ble Supreme Court in the case of R P Namdev vs Union of India & ors SL 2004 (3) 17. It is submitted that disciplinary authority’s order clearly indicates pre-determined mind against the applicant as disciplinary authority’s order stated his strong desire to impose exemplary punishment to teach other staff in future which is clear violation of Railway Board letter dated 21.02.1992 which indicates that disciplinary authority has something against the applicant. In view of the above submission, the applicant has prayed for quashing and setting aside the impugned order and reinstatement in service.

4. After issuance of notice, the respondents have filed their reply and contested the OA. It has been submitted that the charge sheet dated 17.04.2013, orders of disciplinary authority dated 10/21.07.2014, by C SADISH KUMAR Date:

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appellate authority order dated 21.01.2012 as well as revising authority order dated 03.12.2015 are just and proper.

4.1. It is submitted that for appointment/promotion of Head Clerk Grade Rs. 5000-8000/-, Sr. DME is the Competent Authority and it is mandatory to put up promotion/transfer order file to ADRM/SUR being Divisional Head. It is submitted that allegations against the applicant in Article I to III are based on documentary evidence.

4.2. It is submitted that the Chief Loco Inspector (CLI) was appointed as E.O in the DAR Case against the applicant and no Presenting Officer was appointed by the Disciplinary Authority, hence the EO had to discharge the duties of both EO as well as PO. It is submitted that DE has defended his case before the EO along with his ARE and during the DAR enquiry, the applicant was given ample opportunity to defend his case on the basis of natural justice.

4.3. It is submitted that after due consideration of defense brief by the applicant, the EO had submitted enquiry report along with findings to Disciplinary Authority as per DAR rules. It is submitted that the Disciplinary Authority considered the IO’s report and representation of the applicant and thereafter the Disciplinary Authority has imposed the penalty of removal from services since the charges were proved.

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4.4. It is submitted that the contention of the applicant is not correct as the charges are framed in the prescribed format as per DAR procedure in which article of charges, list of documents mentioned in Annexure III and that the charge sheet is based on the report of ADME/SUR. It is further submitted that the applicant has been provided complete opportunity to put forward his stand and the EO has conducted the DAR enquiry as per laid down rules.

4.5. It is further submitted that the EO has clearly specified in his findings as well as in conclusion to the extent of charges as proved and the Disciplinary Authority has imposed the penalty taking into consideration the EO’s report, representation of the DE and all other aspects, hence there is no violation of rules, that charges framed in SF 5 are proved i.e. difference in issue quantity of fuel was proved.

4.6. It is submitted that charge sheet has been issued in the prescribed format as per DAR rules. It is submitted that the reporting authority inspected the records in the year 2013 and DA has taken action for issue of charge sheet in the year 2013 and hence there is no delay in the action of Disciplinary Authority.

4.7. It is submitted that EO has specifically mentioned in the conclusion of his enquiry report that there is difference in issue of quantity of fuel found more than 800 ltrs. It is submitted that there are by C SADISH KUMAR Date:

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no lacunas in the charge memo and there are no procedural lapses in DAR enquiry. It is submitted that the mistake committed by the applicant is not acceptable, hence DAR action has been taken as per laid down procedure and the EO has conducted DAR inquiry as per procedure and applicant has been given due opportunity to defend his case.

4.8. It is submitted that with regard to the analysis of the removal order of the applicant, the DA has imposed the penalty of removal from service taking in to consideration of documentary evidences, enquiry report as well as representation of the applicant and there is no violation of rules. It is submitted that the appellate authority has taken decision after considering all the points raised by the applicant as well as documents on records.

4.9. It is submitted that on receipt of revision petition the division forwarded the same along with para wise remarks and relevant files to CME’s office CSTM and the CMPE (D) has taken decision as a Revision Authority vide RB Estt. No. 10.2011 dated 19.01.2011 (Annexure R/1). It is submitted that Disciplinary Authority, Appellate Authority and Revising Authority has taken action as per the laid down rules and considering all the documentary evidences and representation of the applicant, hence the applicant is not entitled for any back wages since he by C SADISH KUMAR Date:

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has been removed from service. It is submitted that the applicant has been given complete natural justice during DAR enquiry and there is no violation of rules. Accordingly they prayed for dismissal of the OA.

5. Thereafter the applicant has filed rejoinder to the reply filed by the respondents reiterating and elaborating the submission made in the OA and also reproduced the relevant portions of the Railway Servants (Discipline & Appeal) Rules, 1968 under Rule 25 and reiterated that there has been violation of Rule 25. He placed reliance on the order of this Tribunal in the case of K N Prakshan vs Union of India & ors in OA No. 371/1991 decided on 14.11.1991 reported in (1992) Vol. 20 ATC 876 and order of this Tribunal in case of Pannalal Chakravorty vrs Union of India in OA No 158/2012 decided on 18.03.2016. He has also placed reliance on Railway Board RBE No. 211/2002 on the subject of imposition of penalty of dismissal, removal and compulsory retirement (RJ 4).

6. The respondents, in turn have filed additional affidavit to reply filed by the rejoinder reiterating and elaborating their reply. They have submitted a copy of letter dated 22.06.2017 addressed to DRM (P) Solapur written by SPO (Ruling) in the office of CPO, Personnel Branch, Headquarters, Mumbai CST

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7. During arguments ld. Counsels for both the sides have argued on the basis of pleadings.

8. Ld. Counsel for the applicant, Mr. Walia, has placed reliance on the order of this Tribunal dated 20.01.2025 in OA No. 721/2016 Vir Singh vs Union of India & Ors.

9. Ld. Counsel for the respondents on the other hand submitted that the said order of the Tribunal has not been accepted by the Respondents and they have challenged it before Hon’ble High Court of Bombay in WP No. 20775/2025 and the same is pending before Hon’ble High Court. Consideration and Findings

10. We have heard learned counsel for both the parties and carefully perused the pleadings, documents and material available on record.

10.1. The controversy involved in the present Original Application pertains to the disciplinary proceedings initiated against the applicant, culminating in the penalty of removal from service, which was subsequently upheld by the appellate and revisional authorities. During the pendency of the present Original Application, the applicant expired and his legal heirs were brought on record vide order dated 01.05.2023 passed in MA No. 270/2022.

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10.2. The principal question which arises for consideration is whether the disciplinary proceedings culminating in the removal of the applicant from service suffered from any procedural irregularity or violation of the applicable rules and principles of natural justice so as to warrant interference by this Tribunal in exercise of its jurisdiction under Section 19 of the Administrative Tribunals Act, 1985.

10.3. The applicant has challenged the disciplinary proceedings on several grounds, including defects in the articles of charge, non-supply of relevant documents, improper conduct of the inquiry by the Inquiry Officer, examination and cross-examination of witnesses by the Inquiry Officer, alleged non-consideration of his defence, and non-application of mind by the disciplinary, appellate and revisional authorities.

10.4. On the other hand, the respondents have maintained that the charges were framed in accordance with the prescribed procedure, that the applicant was afforded adequate opportunity to defend himself, and that the penalty was imposed after consideration of the inquiry report, the applicant's representation and the documentary evidence available on record.

10.5. It is well settled that this Tribunal, while exercising judicial review over disciplinary proceedings, does not sit as an appellate authority over the findings recorded by the Inquiry Officer. However, by C SADISH KUMAR Date:

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interference is warranted where the proceedings are vitiated by a violation of the prescribed procedure, breach of the principles of natural justice, consideration of inadmissible or irrelevant material, non- consideration of material evidence, or findings which are unsupported by evidence. Defects in the Charge Memorandum

11. The applicant has contended that the articles of charge were defective inasmuch as Articles I and II substantially repeated the same allegations and the statement of imputations of misconduct supporting the charges was not properly furnished. It has further been contended that the charge memorandum did not clearly specify the individual acts of misconduct attributable to the applicant.

11.1. The respondents, however, have maintained that the charge memorandum was issued in the prescribed format and that the allegations were supported by documentary evidence.

11.2. A charge memorandum initiating disciplinary proceedings must clearly and unambiguously communicate the allegations of misconduct to the delinquent employee so as to enable him to understand the case against him and effectively defend himself. The mere existence of some overlapping language in the articles of charge would not, by itself, invalidate the proceedings. The material consideration is whether the by C SADISH KUMAR Date:

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charges, read along with the statement of imputations and the documents relied upon, sufficiently disclosed the alleged misconduct and whether any defect therein caused prejudice to the employee.

11.3. In the present case, the applicant has specifically contended that the statement of imputations supporting the articles of charge was absent and that the two articles substantially duplicated each other. The respondents have disputed this contention and asserted that the charge memorandum was in accordance with the prescribed procedure.

11.4. Accordingly, the validity of the charge memorandum has to be examined with reference to the actual contents of the charge memorandum, its annexures and the applicable provisions of the Railway Servants (Discipline and Appeal) Rules, 1968. The mere assertion of either party cannot be treated as conclusive in the absence of an examination of the relevant documents. Role of the Inquiry Officer

12. The applicant has further contended that the Inquiry Officer himself put questions to the applicant and the defence witnesses in a manner which, according to him, demonstrated that the Inquiry Officer had assumed the role of the prosecution. It is also contended that the Inquiry Officer examined a defence witness by putting several questions by C SADISH KUMAR Date:

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and cross-examined another defence witness, thereby compromising his impartiality.

12.1. The respondents have explained that no Presenting Officer had been appointed by the disciplinary authority and that, in the circumstances, the Inquiry Officer was required to discharge certain functions ordinarily performed by a Presenting Officer.

12.2. The question which arises is whether the Inquiry Officer, while conducting the inquiry, remained an impartial adjudicator or assumed the role of a prosecutor, thereby prejudicing the defence of the applicant.

12.3. An Inquiry Officer is required to conduct the inquiry fairly and impartially. The absence of a separately appointed Presenting Officer does not, by itself, render the inquiry invalid. Equally, the Inquiry Officer is not prohibited from putting questions to witnesses for the purpose of clarifying the evidence or eliciting relevant facts. However, such questioning must remain within the bounds of impartial inquiry and must not result in the Inquiry Officer assuming the role of a prosecutor or conducting the case against the delinquent employee.

12.4. The legality of the procedure adopted in the present case must, therefore, be determined by examining the nature and purpose of the questions put by the Inquiry Officer, the manner in which the witnesses by C SADISH KUMAR Date:

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were examined, and whether the applicant was afforded a reasonable opportunity to challenge the evidence relied upon against him.

12.5. The mere fact that questions were put by the Inquiry Officer would not be sufficient to invalidate the inquiry. Conversely, if the record establishes that the Inquiry Officer actively prosecuted the charges, elicited evidence to fill material gaps in the prosecution case, or denied the applicant a fair opportunity to defend himself, such conduct would raise a serious question regarding the fairness of the inquiry.

13. From the records as pointed out by the learned counsel for the applicant that in the present case the Inquiry Officer has discharged the role of Presenting Officer. He has specifically relied on the statement of the delinquent employee available on page No.71 of the paperback from which it can not be gathered that the Inquiry Officer has discharged the role of Presenting Officer. At this stage, it is relevant here to quote the following paras of the judgement of Hon’ble Supreme Court in the case of Union of India and Others Vs. Ram Lakhan Sharma, reported in (2018) 7 SCC 670 as under: “31. A Division Bench of the Madhya Pradesh High Court speaking through Justice R.V. Raveendran, CJ (as he then was) had occasion to consider the question of vitiation of the inquiry when the Enquiry Officer starts himself acting as prosecutor in Union of India and Ors. vs. Mohd. Naseem Siddiqui, ILR (2004) MP 821. In the above case, the Court considered Rule 9 (9) (c) of the Railway Servants (Discipline & Appeal) Rules, 1968. The by C SADISH KUMAR Date:

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Division Bench while elaborating fundamental principles of natural justice enumerated the seven well recognised facets in paragraph 7 of the judgment which is to the following effect : “7. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well recognised facets:

(i) The adjudicator shall be impartial and free from bias,

(ii) The adjudicator shall not be the prosecutor,

(iii) The complainant shall not be an adjudicator,

(iv) A witness cannot be the Adjudicator

(v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges,

(vi) The Adjudicator shall not decide on the dictates of his Superiors or others,

(vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations.

If any one of these fundamental rules is breached, the inquiry will be vitiated.”

32. The Division Bench further held that where the Enquiry Officer acts as Presenting Officer, bias can be presumed. In paragraph 9 is as follows:

“9. A domestic inquiry must be held by an unbiased person who is unconnected with the incident so that he can be impartial and objective in deciding the subject matters of inquiry. He should have an open mind till the inquiry is completed and should neither act with bias nor give an impression of bias. Where the Enquiry Officer acts as the Presenting Officer, bias can be presumed. At all events, it clearly gives an impression of bias. An Inquiry Officer is in position of a Judge or Adjudicator. The Presenting Officer is in the position of a Prosecutor. If the Inquiry Officer acts as a Presenting Officer, then it would amount to Judge acting as by C SADISH KUMAR Date:

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the prosecutor. When the Inquiry Officer conducts the examination-in-chief of the prosecution witnesses and leads them through the facts so as to present the case of the disciplinary authority against the employee or cross- examines the delinquent employee or his witnesses to establish the case of the employer/ disciplinary authority evidently, the Inquiry Officer cannot be said to have an open mind. The very fact that he presents the case of the employer and supports the case of the employer is sufficient to hold that the Inquiry Officer does not have an open mind.”

33. The Division Bench after elaborately considering the issue summarised the principles in paragraph 16 which is to the following effect:

“16. We may summarise the principles thus:

(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor.

(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non- appointment of a Presenting Officer, by itself will not vitiate the inquiry.

(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications.

(iv) If the Inquiry Officer conducts a regular examination-in- chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross- examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.

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(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry.

Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may.” Under these circumstances, the impugned punishment order dated 10/21.07.2014, Appellate Authority’s order dated 02.01.2015 and Revisionary Authority’s order dated 03.12.2015 are unsustainable and liable to be set aside. Effect of the Death of the Original Applicant During Pendency of the OA

14. It is an admitted position that the original applicant expired during the pendency of the present Original Application and that his legal heirs were brought on record vide order dated 01.05.2023 passed in MA No. 270/2022.

14.1. The death of the original applicant does not, by itself, render the entire controversy infructuous. The nature of the reliefs sought and the by C SADISH KUMAR Date:

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extent to which they survive for adjudication must be considered separately.

14.2. The prayer for personal reinstatement into service can no longer be implemented in view of the death of the original applicant. Nevertheless, the challenge to the disciplinary orders may continue to have consequences concerning the service and terminal benefits payable to the deceased employee's legal heirs, subject to the applicable service rules and the outcome of the adjudication.

15. Order :

In view of the aforesaid discussion, the present applicant is entitled for all the post retiral benefits, flowing from setting aside of dismissal order. The respondents are directed to calculate the family pension and post retiral benefits as per the rules counting the service length of the deceased employee from the date of the appointment till his death and release the same to the applicant within a period of 90 days from the date of receipt of a certified copy of the order. So far as backwages are concerned, the impugned punishment order and subsequent orders are set aside on the ground that the enquiry was vitiated under the law. It is pertinent to mention that in every case in by C SADISH KUMAR Date:

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which the punishment order is set aside, the employee concerned or the applicant in present case is not entitled for backwages automatically but it depends upon the facts and circumstances of the case. As recorded earlier, the enquiry was vitiated under the law and due to death of the deceased employee, it is not possible to remit the matter from the stage to the Disciplinary Authority at which it was vitiated. Under these circumstances, the applicant is not entitled for any backwages and/or any other claim as sought in the OA except which is ordered by present order.

16. With the aforesaid, the Original Application is allowed to the extent indicated above. Pending MAs, if any, stand closed. No order as to costs.

(Umesh Gajankush)

(Shri Krishna) Member (J) Member (A)

(sadish)

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