JITENDRA YADAV vs General Manager, N E Rly on 3 November 2026

ORDER

By Hon’ble Mr. Justice Om Prakash VII, Member (J) Since O.A./405/2016 and O.A./599/2017 have been filed by the same applicant and are based on the same facts and circumstances, both the Original Applications have been clubbed and are being decided by a common order.

2. ​ Present Original Applications have been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:- “ Relief sought in O.A./405/2016 I.​ This Hon’ble Tribunal may graciously be pleased to quash the orders dated 29.02.2016 passed by the respondent No.3 (Annexure No. A-1 to this original application). II.​ This Hon’ble Tribunal may be pleased to direct the respondents to not initiate any inquiry proceeding in the event of appointment Enquiry Officer from the vigilance department. III.​ This Hon’ble Tribunal may be pleased to direct the respondents to initiate any departmental inquiry against the applicant only after appointing the Enquiry Officer from the commercial department or any other department but not from the vigilance department in order to avoid any biasness in the inquiry proceeding. IV.​ Any other relief, which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case, may be given in favour of the applicant. V.​ Award the costs of the Original application in favour of the applicant.”

Relief sought in O.A./599/2017 ​ ​ “In view of the facts mentioned above the applicant prays that this Hon’ble Tribunal be graciously be pleased to quash the following orders:-

(i) ​

(a) the order dated 15.9.2016 issued by the Disciplinary Authority imposing the penalty of reduction to two stages in the basic pay of the present time scale of pay for a period of three years and after 3 years the reduction to two stages will affect earning of future increments.

(b) the order dated 15.11.2016 issued by the Appellate Authority upholding the order of the Disciplinary Authority.

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(c) the order dated 13.02.2017 issued by the Revisionary Authority maintaining the penalty imposed on the applicant.

(ii) ​ to issue orders/directions to the respondents to pay entire arrears of pay and allowances with all consequential benefits.

(iii) ​ To issue any other order/direction as this Hon’ble court may deem fit and proper in the circumstances of this case.

(iv) ​ To award the costs of the suit.”

3. ​ Brief facts of this case are that while the applicant was working as a booking clerk, at Indara Junction, Railway Station, he was served as a charge sheet dated 11.01.2016 alleging the charge that the applicant while working as Commercial Clerk on 01.08.2015 at the Indara Junction Railway Station, as vigilance squad appeared in the booking office and found one person Ravi Kumar sitting at the ticket window counter, who after knowing the vigilance team escaped away leaving 17 reserved ticket, 2 ticket for cancellation, 17 reservation form etc, which shows that the aforesaid person was a tout and was illegally sitting in the reservation counter issuing tickets in connivance with the applicant. It was also alleged that the applicant produced Rs.43775.00 as Government money whereas to U.T.S., I.T.C. and P.R.S. Daily summary total Government money should have been Rs.60755.00, as such, total shortage of Rs. 16980.00 was found less in his Government money which creates doubt in his working. The applicant denied the charges levelled against him vide his representation dated 22.01.2016. Thereafter, on 29.02.2016, respondent no.3 appointed Shri Jaheer Ahmad as the inquiry officer. When the applicant was intimated to appear before the inquiry officer with his defence helper, the applicant, being aggrieved that the inquiry officer was a vigilance inspector, submitted a representation dated 03.03.2016 for change of inquiry officer. However, the inquiry was initiated against the applicant without change of the inquiry officer. The inquiry report dated 22.07.2016 was submitted to the Disciplinary Authority a copy of which was sent to the applicant through its letter dated 16.08.2016 for submission of representation within fifteen days. The applicant

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submitted his representation dated 03.09.2016 after which the Disciplinary authority issued the order of penalty on 15.09.2016 imposing a penalty of reduction to two stages in the basic pay of the present time scale of the pay for a period of three years and after three years the reduction to two stages will affect earning of future increments. The applicant submitted an appeal to Senior Divisional Commercial Manager on 21.10.2016 which was rejected by the Appellate Authority vide letter dated 15.11.2016. The applicant also submitted a Revision Petition on 09.01.2017 to the Additional Divisional Railway Manager, Varanasi which was also rejected vide order dated 13.02.2017 and the penalty order was upheld.

4. ​ We have heard learned counsel appearing for the parties.

5. ​ Submission of learned counsel for the applicant is that the appointment of Shri Jaheer Ahmad, a vigilance inspector, as an inquiry officer in the proceedings against the applicant was contrary to the settled legal position, violative of Article 311 (2) of the Constitution and in disregard to the representation dated 18.01.2016 of the applicant submitted by him to avoid appointment of inquiry officer from the vigilance department. The respondents should have appointed an inquiry officer from any of the departments other than the vigilance department to prevent the inquiry from being biased against him. In support of his argument, learned counsel for the applicant placed reliance on the the case of Prakash Kumar Tandon vs. Union of India and ors Civil Appeal No. 7349 of 2008 [2009 (2) SCC 541] decided by the Hon’ble Apex court on 17.12.2008.

6. ​ It is further argued by learned counsel for the applicant that as per the existing rules, whenever an application is moved by a Government servant against whom disciplinary proceedings are initiated, against the appointment of inquiry officer on ground of bias, the proceeding should be stayed and the applicant referred along with the relevant material, to the appropriate Reviewing Authority for considering the application and passing the

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appropriate orders thereon. But in the present case, the Disciplinary Authority himself rejected the request at his own level which is against the Government order and also in violation of principles of Natural Justice.

7. ​ Learned counsel for the applicant further submitted that no independent witness, neither from amongst the Railway employee nor from outside in support of the charges were arrayed as witness and only Vigilance team has been shown as witness in Annexure-IV of the charge sheet to corroborate the charges labeled against the applicant, which is against the principles of natural justice. Their report is based on surmises, suspicion and presumption and their own creation. The inquiry was held on 02.06.2016 and one of the Vigilance Inspectors Shri Rajai Kumar Sinha was examined and the inquiry was postponed for 08.06.2016. On inquiry, he himself presented the case as Presenting Officer, although he was arrayed as witness as no Presenting Officer was nominated. It is further argued that the applicant was not given the opportunity to cross-examine the persecution witness Shri Girish Kumar Singh who was examined by the Inquiry Officer behind the back of the Defence Assistant which is in violation of rule 9 (17) of the Railway Servants (Disciplinary & Appeal) Rules, 1968. Thereafter the inquiry officer asked the Defence Assistant to file a brief in his defence while no brief was given from the side of the prosecution which compromised the defence of the applicant. He further contends that the Disciplinary Authority hurriedly passed the penalty order without considering the representation of the applicant and the appellate authority and the revisionary authority also did not pass a reasoned and speaking order with application of mind while rejecting the petition of the applicant.

8. ​ Per contra, learned counsel for the respondents has submitted that the Inquiry wing and Vigilance Wing are separate & independent Wings, which are working under the control of Senior Dy. General Manager. There is no relationship between the Inquiry Wing and

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Vigilance Wing. Shri Zahir Ahmad is working under Officers of Senior Pay Scale. The inquiry proceeding under Discipline & Appeals Rules, is quasi judicial function in which the Inquiry Officer performs his duties without any interference of any other wing. It is also argued that all the representations of the applicant which were received in the office have been duly disposed of with a reply. They further argue that the inquiry against the applicant has been conducted as per the rules and the applicant has been given adequate opportunity to defend himself. Thereafter, the disciplinary authority has imposed the said punishment on the applicant taking into consideration the inquiry report as well as the representation of the applicant which has been rightly upheld by the Appellate and the Revisionary Authority. Thus, the respondents argue that there is no scope for interference by the Tribunal in this matter.

9. ​ We have considered the rival submissions of learned counsel for the parties and perused the entire documents on record.

10. ​ A similar case has also been brought to our notice by learned counsel for the applicant in O.A./403/2016 (Satya Deo Ram vs UOI & ors) decided by this Tribunal on 16.07.2024. In the aforesaid case also, Shri Jaheer Ahmad from the Vigilance Department was appointed as the inquiry officer and similar charges were leveled against the applicant. The order of this Tribunal in the above case is as under:-

6. Learned counsel for the applicant has relied upon the judgment passed in OA No.778 of 2014 decided on 24.06.2014. The verification of the aforesaid judgment reveals that in similar case on Mr. A.K. Khare was appointed as the inquiry officer who was objected by the applicant mentioning that to enquire the allegation arising out of Vigilance check should not be enquired by an officer of Vigilance Department. Mr. A.K. Khare was also from the inquiry branch working under the Vigilance Department. On the basis of Apex Court judgment passed in the case of Prakash Kumar Tandon (2009) 2 SCC 541, the Tribunal has decided that appointment of Inquiry Officer in disciplinary proceeding based upon an investigation carried out by the Vigilance Department, the respondents should refrain from appointing officer from Vigilance Department as an Inquiry Officer in such cases. The relevant portion of the Apex Court

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judgment relied upon by the applicant in the above OA is reproduced as below :- “ The disciplinary proceedings were initiated only after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. He evidently being from the Vigilance Department, with a view to be fair to the delinquent officer, should not have been appointed as an enquiry officer at all.”

7. Learned counsel for the applicant has relied upon the decision in Writ–A No.20809 of 2013 of Hon’ble High Court of Allahabad which was also decided on the basis of judgment of Hon’ble Apex Court reported in (2009) 2 SCC 541 in the case of Union of India & ors. Vs. Prakash Kumar Tandon. The relevant portion of the aforesaid judgment is reproduced as below :- “12. The disciplinary proceedings were initiated only after a raid was conducted by the Vigilance Department. The enquiry officer was the Chief of the Vigilance Department. He evidently being from the Vigilance Department, with a view to be fair to the delinquent officer, should not have been appointed as an enquiry officer at all."

31. Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court! Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court, Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should nut mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/Tribunals find that the furnishing of the report would have made a: difference to the result in the case that should set aside the order of punishment Where after following the above procedure the Courts/Tribunals sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority, management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the backwages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the

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date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law." The Hon’ble High Court in the above Writ Petition have not interfered with the order passed by the Tribunal and directed to reinstate the applicant in service with a liberty to start fresh inquiry by appointing the Inquiry Officer from other than the Vigilance Department.

8. On the basis of above discussions, it is clear that the Inquiry Officer appointed in the present case is working in Inquiry Branch of the Vigilance Department and hence the parity claimed by the applicant is squarely applicable in the above case and on the basis of above consideration the appointment of Inquiry Officer and inquiry report is liable to be set aside. The order dated 29.02.2016 is quashed and set aside. The OA is allowed. As the applicant has already retired, there is no issue to allow him to be reinstated. The respondents are directed to start fresh inquiry from the stage of appointment of Inquiry Officer by appointing the Competent Officer from the department other than Vigilance Department. No order as to costs.

9. All MAs pending in this O.A. also stand disposed off.”

11. ​ The facts and circumstances of the present cases, being on similar footing with the original application quoted in the preceding paragraph, is liable to be decided in similar terms as per the ratio of law laid down in Prakash Kumar Tandon (supra) case. Accordingly, O.A./405/2016 as well as O.A./599/2017 are allowed. The order dated 29.02.2016 regarding appointment of the inquiry officer is hereby quashed and set aside. Consequently, the entire inquiry proceedings become void and, therefore, the penalty order dated 15.09.2016, the appellate order dated 15.11.2016 and the revision order dated 13.02.2017 also stand quashed. The consequential benefits shall also follow which should be granted to the applicant along with the arrears thereof within a period of three months from the date of receipt of a certified copy of this order. The respondents are directed to start a fresh inquiry from the stage of appointment of Inquiry Officer by appointing the Competent Officer from the department other than Vigilance Department strictly following the rules governing the matter.

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12. ​ All associated M.A.s also stand disposed of. No order as to costs. Registry is directed to place a copy of this order in both the connected O.A.s i.e. O.A./405/2016 and O.A./599/2017.

(Manju Pandey) ( Justice Om Prakash VII) Member (A) ​ ​ ​ Member (J)

Madhu​​ ​

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