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TMI Blog2010 (4) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... l, that these alleged notes were part of the record and that they were actually considered by the Disciplinary Authority and such consideration had influenced the mind of the competent authority while passing the impugned orders. Absence of pleading of these essential features read with the fact that no such documentation has been placed on record except demanding circulars of the CVC, we are of the considered view that even on this account no prejudice, as a matter of fact, has been caused to the delinquent officers. Thus not able to accept the contention addressed on behalf of the respondents that it is not necessary at all to show de facto prejudice in the facts of the present cases. X X X X Extracts X X X X X X X X Extracts X X X X ..... and imputations stated therein. It was alleged that Shri Alok Kumar, as convener member of the Committee besides the official position he was holding, submitted a brief calling for tenders on the basis of highly inflated estimates with a view to justify award of contract at very high rates. It was also alleged that he did not submit proper information before the Tender Committee and deliberately misled the other members of the Committee. The Tender Committee which met on 13th July, 1999, upon comparing the rates quoted by M/s Rajpal Builders with the estimated tender value, had found that these were (-) 1.7% lower than the estimated rates. 9. In short, it was stated that by misusing his official status he had awarded the contract to the contractor of the Department at high rates. To this, the delinquent filed reply denying the Article of Charges. One Shri J.K. Thapar, retired CAO/FOIS, Northern Railways was appointed as an Inquiry Officer. The inquiry was conducted by him during the year 2001-02. The entire file including the Central Vigilance Commission (for short 'CVC') advice was also placed before the competent authority. The Disciplinary Authority expressed disagreement and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided against the appellants relying upon its judgment in the case of Ram Bahor Yadav, while taking the view that retired railway officer could not be appointed as the Inquiry Officer. Consequently, the orders of punishment in each case were set aside. 13. In the case of Ram Bahor Yadav, the High Court affirmed the view taken by the Tribunal that the words "other authority" in Rule 9 (2) of the Rules will not include a retired Railway Officer and, that empanelment of retired Railway Officers by the Railway Board's letter dated 29th July, 1998 does not constitute amendment of Rules and consequently set aside the orders of punishment imposed upon the respondents in those cases. 14. The Union of India has challenged the judgment of the High Court in Ram Bahor Yadav's case in SLP (C) No. 24748 of 2008 and all other judgments in the aforementioned appeals. With the exception of Alok Kumar's case, in all the other cases, as is evident from the above narrated facts, we would be concerned with the interpretation of the Rules and provisions of the Act read with the Circular issued by the Railways Department/Board to answer the controversy, whether a retired Railway Officer can be appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry may be committed either to the Court, Board or other authority to which the person accused is subordinate or to any other person or persons, to be specially appointed by the Government, commissioners for the purpose: notice of which commission shall be given to the person accused ten days at least before the beginning of the inquiry." 17. The Act remained unimplemented as the provisions thereof were hardly invoked by the authorities concerned. The President of India in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, 1950 made the rules termed as the 'Railway Servants Discipline and Appeal (Rules 1968)'. They came into force on 1st October, 1968. 18. The Preamble of the Act also indicates the Legislative intent as to which class of persons the provisions of the Act would be applicable. It is abundantly clear that the persons who are covered under the provisions of the Act are persons who are public servants and not removable from their appointment without sanction of the Government. This criterion has to be specified before the provisions of the Act can be made available, and an inquiry can be conducted under its provisions. In fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct either a public inquiry or a prosecution under the relevant provisions of the Act. The departmental proceeding against the said respondent was restricted to the applicability of Rule 9 of the 1968 Rules. Thus, recourse to the provisions of the Act for the purposes of interpretation or deciding the controversies in issue was entirely unwarranted in the facts and circumstances of the case in hand. 19. Now, let us examine the ambit, scope and ramifications of the Railway Service Disciplinary Rules, 1968 in relation to the departmental inquiries in the Department of Railways and the delinquent. The Rules in question, noticed at the very threshold, are a complete code in itself. It opens with the words "these rules have been framed under proviso to Article 309 of the Constitution and are applicable to the officers/officials of the Railways". Rule 2 of the Rules defines 'appointing authority', 'disciplinary authority', 'Head of the Department' and 'service' under its different sub-rules. Service is stated to mean, service under the Ministry of Railways and in terms of Rule 3. The Rules are applicable to every railway servant but shall not apply to the class of members or persons indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner provided in this rule and Rule 10, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850) where such inquiry is held under that Act. (2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a railway servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, [a Board of Inquiry or other authority] to inquire into the truth thereof. (3) Where a Board of Inquiry is appointed under sub-rule (2) it shall consist of not less than two members, each of whom shall be higher in rank than the Railway servant against whom the inquiry is being held an none of whom shall be subordinate to the other member or members, as the case may be, of such Board. Explanation: Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (12) and in sub-rule (14) to sub-rule (25), to the inquiring authority shall be construed as a reference to the disciplinary authority." 20. Sub rule 6 of Rule 9 states that, where it is proposed to hold an inquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority itself or it may appoint under the Rules a Board of Inquiry or other authority to enquire into the truth thereof. Formation of such an opinion is a condition precedent for the disciplinary authority, whether it intends to conduct the inquiry under the Rules or under the Act as the case may be. The expression "as the case may be" clearly suggests that law which will control such departmental inquiry would depend upon the class of officers/officials whose misconduct or misbehaviour subject them to such inquiry. If the employee is covered under the Act, the disciplinary authority shall have to appoint an inquiry officer and proceed with the inquiry under the provisions of the Act, whereas if he is covered under the Rules, the procedure prescribed under the Rules will have to be followed. 21. Other important feature in the language of the Rule is appoint under this Rule a Board of Inquiry or other Authority. What shall be the constitution of the Board of Inquiry and how the same would proceed further with the inquiry has been stated in sub-rules 3, 4 and 5 of Rule 9 of the Rules. The expression "other authority" has neither been explained nor defined under the Rules. In terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explains the word as under: "1. (a) The power to enforce laws, exact obedience, command, determine, or judge. (b) One that is invested with this power, especially a government or body of government officials : land titles issued by the civil authority. 2. Power assigned to another; authorization: Deputeis were given authority to make arrests. Merrium Webster's Law Dictionary, 1996 explains the word as under : "Authority pl. - ties 1. an official decision of a court used esp. as a precedent. 2. (a) a power to act est. over others that derives from status, position, or office. Example : the authority of the president. (b) the power to act that is officially or formally granted (as by statute, corporate bylaw, or court order). 3. ……. 4 (a) a government agency or corporation that administers a revenue-producing public enterprise. Example : the transit authority (b) a government agency or public office responsible for an area of regulation. Example : should apply for a permit to the permitting authority." In Law Lexicon, 2nd Edition, 1997 pg. 171, the word 'authority' has been explained and elucidated as follows : "A person or persons, or a body, exercisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action. 25. Now, we have to examine the argument of the respondents before the court that the expression 'other authority' shall have to be construed to cover only the persons who are in the service of the railways. In other words, the contention is that the expression 'person' used under Section 3 of the Act and expression 'authority' used under Rule 9(2) contemplates the person to be in service and excludes appointment of an inquiry officer (authority) of a retired railway officer/official. 26. Heavy reliance was placed by the respondents upon the judgment of this Court in the case of Ravi Malik v. National Film Development Corporation Ltd. & Ors. [2004 (13) SCC 427]. We have already discussed at some length the scheme of the Rules. As already noticed, we are not required to discuss in any further elaboration the inquiries taken under the Act, inasmuch as none of the respondents before us have been subject to public departmental inquiry under the provisions of the Act. Rule 9 (2) requires the authority to form an opinion, whether it should hold the inquiry into the truth of imputation of misconduct or misbehavior against the railway servant itself or should it appoint some oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rules and principles of natural justice. The inquiry officer appointed by the disciplinary authority is a delegatee and has to work within the limited authority so delegated to him. The charges and article of charges and imputations are served by the disciplinary/competent authority. The inquiry report is submitted again to the competent authority which is expected to apply its mind to the entire record and then decide whether any punishment should be imposed upon the delinquent officer or not. Thus, all substantive functions are performed by the disciplinary or the specified authority itself. It is only an interregnum inquiry. It is conducted by the delegatee of the said authority. That being the purpose and specially keeping in mind the language of Rule 9 (2), we are unable to accept the contention that 'other authority' has to be a person in service alone. Thus, it is not only the persons in service who could be appointed as inquiry officers (other authority) within the meaning of Rule 9(2). Reliance placed by the respondents upon the judgment of this Court in the case of Ravi Malik (supra) is hardly of any assistance to them. Firstly, the facts and the Rules falling for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retion of the disciplinary authority. Unless such exclusion of a former employee of the Government was spelt out specifically in the Rule, it will be difficult for the Court to introduce that element and the principle of implication simplicitor. Another aspect of the matter which would require deliberation of the Court is that, the competent authority in the Department of Railways as well as the Railway Board, Ministry of Railways, Government of India has issued certain circulars, specifically contemplating preparation of a panel of former officers/employees of the railway department, who can be appointed as inquiry officers to conduct the departmental inquiry as the disciplinary/competent authority. Firstly, the circular is stated to have been issued on 16th July, 1998 wherein it has been noticed by the authorities that a large number of cases are coming up before the Vigilance Department. These cases relate to corruption and other serious irregularities. Number of such cases pertain to non-gazetted staff. An inquiry is essentially conducted before imposition of major penalty in terms of Rule 9(2). Number of cases have been pending at the inquiry stage for a considerable time and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar that the circular issued is only supplementing Rule 9(2) and is in no way in conflict with the language or spirit of Rule 9(2). The argument advanced on behalf of the respondents is that in the event of clear conflict between circulars and the statutory rules, the circular cannot be permitted to prevail. This argument would be of worth consideration only if the respondents are able to demonstrate before the Court without ambiguity that it is a case of conflict and the circular issued is in terms contrary to the language of the statute. 31. We are unable to see any such conflict or contradiction. When a circular is issued for the purposes of supplementing the removal of ambiguity in the Rule or to achieve the purpose of the Rule more effectively, it can hardly be said that there is a conflict between the two. The matter shall certainly be on a different footing, where the Rule by a specific language or by necessary implication makes such exclusion or provides that a particular class of persons cannot be appointed as authority (inquiry officer). It may also be true in the case where the Rule itself makes it mandatory for the disciplinary authority to appoint a particular class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requires specifically, which is not the case here. It is a settled rule that the provisions of an Act/Rule should be examined in their entirety along with the scheme before a particular meaning can be given to an expression or sentence used in a particular language. Thus we must examine the Rules in their entirety along with the conditions of the Schedule and not merely look at Rule 9 (2) in isolation. 33. Still another aspect of the case can be that, the expression "public servant" cannot be equated to the term "other authority". Both these expressions cannot be treated as inter-changeable or synonymous. They have different connotations and meaning in law. "Public servant" is a term which is well defined and explained in the field of law, while "authority" is a generic term and is used in different places with different meanings and purposes. 'Authority' thus is an expression of wide magnitude and is frequently used not only in legal jurisprudence but also in administrative and executive field. Therefore, it is to our mind not permissible to permit restricted meaning of this term. 34. It was also contended on behalf of the respondents that the competent authority exercising pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive and therefore, this principle of interpretation would be hardly applicable to the facts of the present case. It is also incorrect to suggest, much less to argue, that under Rule 9 (2) a discreet choice is vested under the authority concerned. We have already indicated that the Act is applicable to a special class of persons while Rules are applicable to other class of persons including Grade - A to Grade - D. Once the provisions of the Act are attracted, a public inquiry has to be held in accordance with the provisions of the Act. The Rules and the Act, as self-contained codes within themselves, operate in a way without impinging upon the field of the other. There is hardly any discretion vested in the competent authority, it is only for the purposes of conducting an inquiry personally or through some other appointed authority that the discretion is vested. In the event of delegation by the competent authority, the delegatee authority has to function within the limit of the authority delegated to it. At the cost of repetition we may notice that neither in the Rules nor in the provisions of the Act which are independent in their application, there is any requirement or even sug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in the impugned judgments. By passage of time and practice the competent authorities and even the delinquent officers in disciplinary cases have given effect to these circulars and they were treated to be good in law. It is only in the arguments addressed before this Court, where it is suggested that these circulars supersede or are in conflict with the Rules. This part of the contention we have already rejected. 41. It is not opposed to any canons of service jurisprudence that a practice cannot adopt the status of an instruction, provided it is in consonance with law and has been followed for a considerable time. This concept is not an absolute proposition of law but can be applied depending on the facts and circumstances of a given case. This Court in the case of Confederation of Ex-Service Man Associations and Ors. v. Union of India and Ors., [(2006) 8 SCC 699] was concerned with providing of Medicare /Medical aid to ex-servicemen and the scheme framed by the Government to provide ex-defence personnel medical services provided they paid "onetime contribution", was held not to be arbitrary and based on the practice followed earlier. In such circumstances, this Court held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, primarily for the non-availability of the inquiry officers. Even that consideration would tilt the balance, in achieving larger public purpose and interest, rather than to take an approach which would add to the misery of the Railway officials who are facing departmental inquiries. It is a known fact that in most of the inquiries the delinquent is placed either under suspension or faces other adverse consequences. 45. In the present case even the respondents before us have participated in the entire inquiry and received the order of punishment without any protest. They, in fact, have admitted to the established practice of appointment of former railway employees as inquiry officers. The cumulative result of this discussion is that, it is not possible for this Court to hold, in the facts and circumstances of the case, that the "other authority" has to be only a person in service. Non-furnishing of advise of Central Vigilance Commission and its consequences 46. In its impugned judgment the Tribunal accepted the contention of the respondents that the CVC's advice/note should have been made available to the delinquent during the stage of inquiry. While referring to another ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll these ingredients are not satisfied in the records before us. It is a settled rule of departmental proceedings that, it is for the delinquent officer to specifically raise such an issue and discharge the onus of prejudice. The concept of prejudice, we shall discuss shortly. But for the present, we are only discussing its factual aspect and the law relating thereto. 50. The documents and the circulars issued by the Central Vigilance Commission, Government of India which have been placed on record as Annexure R-3 dated 28th September, 2000 relate to furnishing of information of the CVC advice and the purpose sought to be achieved as well as the need of the employee's representation in that regard. The record is entirely silent as to what were the comments of the CVC and whether they have been taken into consideration by the disciplinary authority or not. 51. Despite the factual aspect of the case, the learned counsel appearing for the appellants has relied upon the judgment of this Court in the case of Sunil Kumar Banerjee v. State of West Bengal & Ors. [1980 (3) SCC 304], contending that it was not necessary and no prejudice had been caused to the respondent because of the alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner that it is impossible to say that the disciplinary authority's mind was in any manner influenced by the advice tendered by the Vigilance Commissioner. We think that if the disciplinary authority arrived at its own conclusion on the material available to it, its findings and decision cannot be said to be tainted with any illegality merely because the disciplinary authority consulted the Vigilance Commissioner and obtained his views the very same material. One of the submissions of the appellant was that a copy of the report of the Vigilance Commissioner should have been made available to him when he was called upon to show cause why the punishment of reduction in rank should not be imposed upon him. We do not see any justification for the insistent request made by the appellant to the disciplinary authority that the report of the Vigilance Commissioner should be made available to him. In the preliminary findings of the disciplinary authority which were communicated to the appellant there was no reference to the view of the Vigilance Commissioner. The findings which were communicated to the appellant were those of the disciplinary authority and it was wholly unnecessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting appropriate inquiry but without consulting the Commission. The Court expressed the view that the expression 'shall' had to be construed as 'may' and non consultation with the Commission would not render the order illegal or ineffective. In view of the larger Bench judgment and particularly, with reference to the facts of the present case, we are unable to accept the contention of the respondents before us. 55. In its letter dated 28th December, 2001, the respondent claimed certain documents during the course of departmental inquiry. In Annexure-1 to this letter, at Sr. No.1, he had prayed for the circular dated 28th September, 2000 from CVC to CVO's of all the Ministries. At Sr. No. 2, he had asked for CVC's first stage advice and Railway's note sent to CVC for arriving at the first stage advice. Thus, both these documents were of a very general nature and in no way suggested that the concerned disciplinary authorities had taken into consideration any particular notes advising action against the said officer. Some element of prejudice is essential before an order of imposing penalty can be interfered with by the Court, particularly when the inquiry otherwise had been conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof. Even in the present cases, Rule 9 (2) empowers the disciplinary authority to conduct the inquiry itself or appoint other authority to do so. We have already held that the language of Rule 9(2) does not debar specifically or even by necessary implication appointment of a former employee of the Railways as inquiry officer. Even if, for the sake of argument, it is assumed otherwise, all the respondents have participated in the departmental inquiries without protest and it is only after the orders of the competent authority have been passed that they have raised this objection before the Courts. In the light of the peculiar facts and circumstances of the present case, it is obligatory upon the respondents to show that they have suffered some serious prejudice because of appointment of retired Railway officers as inquiry officers. We have no hesitation in stating that the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice are to apply, nor as to their scope and extent. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth." 60. In the case of ECIL v. B. Karunakar [(1993) 4 SCC 727], this Court noticed the existing law and said that the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are neither incantations to be invoked nor rites to be performed on all and sundry occasions. Whether, in fact, prejudice has been caused to the employee or not on account of denial of report to him, has to be considered on the facts and circumstances of each case. The Court has clarified even the stage to which the departmental proceedings ought to be reverted in the event the order of punishment is set aside for these reasons. It will be useful to refer to the judgment of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Rules and in terms of judgment of Virpal Singh Chauhan (supra) the Court had taken the view that circulars should be read harmoniously and in given circumstances, may even prevail over the executive directions or Rules. 63. We do not find any merit even in the contention that if departmental inquiry has been conducted under the Rules of 1968 in accordance with law, principles of natural justice and no de facto prejudice is pleaded or shown by cogent documentation, the court would be reluctant to set aside the order of punishment on this ground alone. Secondly, the argument in relation to non-furnishing of CVC notes is again without any foundation as it has not even been averred in the application before the Tribunal, that these alleged notes were part of the record and that they were actually considered by the Disciplinary Authority and such consideration had influenced the mind of the competent authority while passing the impugned orders. Absence of pleading of these essential features read with the fact that no such documentation has been placed on record except demanding circulars of the CVC, we are of the considered view that even on this account no prejudice, as a mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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