1. Shri Shankar Lal Meena has invoked the jurisdiction of this Bench of the Tribunal and sought for the following reliefs: (a) By an appropriate order writ or direction, impugned orders Nos.
3-E/Dy CE/Const/II/JU/GO/SL dated 05 Mar. 2004 (Annex.A/1) passed by respondent No. 3 and impugned Order No. E/DAR/308/1/SVN/SLM dated 19 Aug. 2004 passed by respondent No. 2 conveyed vide Order dated 26 Aug. 2004 (Annex. A/2) wherein a recovery of Rs. 1,92,924 is awarded. Monthly recovery of Rs. 3000 p.m. From the pay of applicant may be declared illegal and be quashed and set aside as if they were never issued against the applicant.
(b) By an appropriate order, writ or direction, respondents may be directed to refund the recovered amount to the applicant along with the interest @ of 12% p.m.
(c) By an appropriate order, writ or directions, respondents may alternatively be directed to remove the sleepers 60 kgs along with the fittings, 150 in numbers, and hand over the same to the applicant.
(d) exemplary cost may be imposed on the respondents for causing undue harassments to the applicant.
(e) Any other relief, which is found just and proper may be passed in favour of the applicant in the interest of justice by the Hon'ble Tribunal.
2. With the consent of the learned Counsel for the contesting parties, this case was heard for final disposal at the admission stage. We have anxiously considered the pleadings and records of this case.
3. The factual backgrounds of this case as averred in the pleadings of the applicant are that the applicant, while working in the post of I.E.(P-Way) Constructions at Balotra Railway Station, was issued with a charge sheet dated 01.03.2004. The said charge sheet has been issued under Rule 11 of the Railway Servants (Discipline and Appeal) Rules, 1968. The same contains the set of gravamen that the applicant used 150 Nos. of PRC Sleepers 60 kg in excess in loop line No. 1 and the linking of loop line No. 1 was to have a density of M + 4 but that has not been done and the had resulted in loss of Rs. 1,92,924. The applicant replied to the same denying the allegations and has explained his position that the work was done as per the Contract Agreement, by the contractor and it was supervised by S.P. Tak AEN (Construction) and the respondent No. 3/4. The whole work has been done under the supervision of respondent No. 3/4. It has been further averred that without considering the factual aspect of the matter, the respondent No. 3 imposed the penalty of recovery of an amount of Rs. 1,92,924 vide order dated 05.03.2003. The further facts of the case are that the applicant preferred an appeal against the order of penalty to the respondent No.2, specifically indicating that the work was entrusted to Sh Banwar Lal Bijaniya on verbal Petty Contract from the main linking Contractor Shri Pankaj Gupta by Shri Alok Mishra. Deputy Chief Engineer (Construction II) i.e. the respondent No. 3/4 at the relevant point of time in the presence of R.P. Tak AEN (Construction) and the applicant. There were also verbal instructions from respondent No. 4 to keep the Sleepers density M + 7 in loop line No. 1/ Baitu, which is as per the condition of the original contract agreement. The payment was also released to the contractor by the said authority. But without considering the facts and points mentioned in the appeal, the appeal has been rejected vide order dated 19.04.2004. The O.A. has been filed on numerous grounds mentioned in para 5 and its sub paras, which we are not narrating here and we would be dealing with the grounds which have been pressed during the arguments and considered relevant for resolving the controversy involved in this case, in the later part of this order.
4. The official respondents have contested the case. The respondent No, 4 i.e. private respondent has not chosen either to contest the case or to file the counter reply to the O.A. The official respondents have filed a detailed reply to the O.A. and also they have narrated the scope of judicial review in such matters. It has been stated that the contract was awarded to Shri Pankaj Gupta and not to Shri'Bhanwar Lal Bijaniya. The loop line and the siding was to be executed by M+4 sleeper density. The applicant was holding the post of JEN Permanent way Balotra and Shri R.P. Tak, AEN Jaipur at Baitu. Respondent No. 3/4 was the Administrative Officer for the entire section between Tilwara to Jaisai. The charge against the applicant was not of theft but negligence which resulted in the loss to the Railways. Respondent No. 3 was not personally supervising the working. The amount was paid to the contractor as per the rate mentioned in the agreement for linking the loop line and side on M+4 density. As per the records no instruction had been given for keeping M+7 density sleepers by Respondent No. 3/4.
The submissions relating to loop lines at Baltraro, Pario, Janiyana and Samdari has no correlation with the loop line at Baitu, which were required to be laid down as per their respective agreements. It has been denied that any test check was carried out by respondent No. 3/4.
The grounds raised in the O. A have generally been denied. A short rejoinder has been filed on behalf of the applicant, wherein it has been reiterated that certain verbal orders were issued by the respondent No. 4. It has also been mentioned that the respondents may be directed to produce the original contract in respect of the various other stations so as to ascertain the correct position. The same is followed by reply to the rejoinder, wherein Annex. R/1 has been annexed narrating the same as revision petition filed by the applicant and the said revision petition is pending and therefore the O. A is premature.
5. Both the learned Counsel for the parties have reiterated the facts and grounds raised in their respective pleadings. The learned Counsel for the applicant has strived hard on the ground that respondent No.3/4 was the witness in as much as he had to bounden duty to check 20% of the project work as well as passing the bills releasing the payment to the contractor on considering that the work had been carried out satisfactorily. Therefore, he was a witness to the incident and should not have acted as Disciplinary Authority on the principle of law that no one can be a judge of his own cause and for this purpose reference has been made to a Constitution Bench judgment of the Apex Court in the case of Arjun Chaubey v. UOl and Ors. . He next contended that the applicant has not committed any misconduct in as much as he has only carried out the orders of his superiors, especially Respondent No. 4, who has directed that M+4 density sleepers were to be laid for loop line and siding. He has submitted that there is specific averment to this effect that oral instructions were given by respondent No. 3/4, but he has not chosen to file any counter refuting/denying the same. Such facts could be known to respondent No. 4 and he alone could refute the same and oral instructions cannot find place in the records of the respondents. He has simultaneously contended that 20% of the work was to be inspected by him in person and the same has to be accepted as true in the absence of any counter from him. He has next contended that 100% inspection is to be carried out by the concerned AEN, but in the instant case no action has been taken against the said AEN and the applicant has been made a scape goat due some extraneous reasons. The learned Counsel for the applicant has next submitted that the appellate order has been passed in stereo typed manner without considering the points raised in the appeal. He has also submitted that the applicant did not file any revision petition. It was also contended by him that for mere negligence no recovery can be ordered and recovery could be ordered as a measure of punishment and in this respect he has placed reliance on the judgment of a coordinating Bench of this Tribunal at Guwahati in the case of Dilip Kumar Rabidas v. Union of India and Ors. 2005(1) ATJ 40; another judgment of the Jabalpur Bench of this Tribunal in the case of Smt. Kalpana Shinde and Ors. v. Union of India and Ors. 2005(1) ATJ 45 was also referred to.
6. Per contra, the learned Counsel for the respondents with his usual vehemence countered the submissions put forth by the learned Counsel for the applicant. He has contended that the applicant is solely responsible in the whole matter since the work was being carried out under his supervision. Mere passing of bills by higher authorities cannot be a ground for the applicant to get rid of his responsibilities. He has also made us to traverse through Annex. R/1 which is filed along with reply to the rejoinder and submitted that it is the revision petition which is pending and the very OA is premature and otherwise also the revision is as statutory alternative remedy which the applicant ought to have availed but not availed of. He has next contended that by using M+7 sleepers, huge loss has been caused to the public exchequer and it may not be a case of theft or misappropriation of funds but definitely it is a case of negligence. He has also submitted that decision making process has not been faulty and therefore no judicial review is called for in the instant case.
7. We have considered the rival submissions put forth on behalf of both the parties. As far as the factual aspect of the matter is concerned, we find that the applicant has specifically averred in his pleadings that on the instructions of respondent No. 4 M+7 sleepers were laid. He has also indicated that the very contract was executed as per the specific instructions of the respondent No. 4. There is also a specific averment that 20% of the work was inspected by the respondent No. 4 and all the bills of the contractor were released by him for payment. These averments shall have to be taken as true since there is no counter affidavit filed by respondent No. 4 refuting these averments. This principle of law of the pleadings has been propounded by a Constitution Bench of the Apex Court in the case of S. Partap Singh v. State of Punjab . We also find it has been admitted by the respondents that 100% inspection of the work was to be carried out by the AEN, but no action seems to have been taken against AEN and the applicant alone has been held as responsible for the complete loss.
8. From the aforesaid facts, we have absolutely no difficulty in discerning that the respondent No. 4 who has acted as a Disciplinary Authority in the instant case was not only a material witness but also could aptly be considered as a delinquent officer who also contributed to so-called negligence which resulted in the loss to the Railways. The reason for such conclusion is obvious. Both the applicant as well as respondent No. 4 were admittedly supervising the job with difference of percentage checking only. We are unable to believe that by describing respondent No. 4 as only having administrative control he is absolved of his supervisory responsibilities; rather his responsibility of supervising continues because the said respondent is also a senior engineer and was in charge of the project.
9. However, our aforesaid perception should be seen only to the extent that respondent No. 4 ought not to have acted as a Disciplinary Authority and we are leaving the matter open as to whether any disciplinary action is to be taken against the said respondent No. 4 in addition to the Assistant Engineer Shri R.P. Tak, who has to carry out 100% inspection of the work. The law on the point that a person cannot be a judge of his own cause is clearly settled by a Constitution Bench of the Apex Court in the case Arjun Chaubey (supra), wherein Their Lordships have held as under: Held, that the order of dismissal was illegal on the ground that the order was passed by the Superintendent after considering the explanation himself which violated the principles of natural justice. The main thrust of the charges against the employee related to his conduct qua the Superintendent. Therefore, it was not open to the Superintendent to sit in judgment over the explanation offered by the employee and decide that the explanation was untrue. No person could be a judge in his own cause and no witness could certify that his own testimony was true. Any one who had a personal stage in the enquiry must have kept himself aloof from the enquiry (1983) 9 All LR reversed. AIR 1958 SC 86 Foll.
Since in the instant case, the respondent No. 4 has admittedly carried out 20% inspection of the work as well as passed the bills of contractor who has acted as a Disciplinary Authority, issued the charge sheet and passed the order of penalty who could be a co accused and/or, a material witness to the incident, the very charge sheet would have to be held as non est in the eye of law as having no existence.
10. Keeping in view the aforesaid position, we find that no other ground is required to be examined. However, we make it clear that the competent authority is not debarred from initiating fresh proceedings in the matter, but we expect that such authority shall be fair and reasonable. If a decision is taken to proceed afresh, it should also be expedient that a joint enquiry is conducted against all the erring officials.
11. In the premises, we reach an inescapable conclusion that the O.A.merits acceptance and the same stands allowed accordingly subject to our observations above. The impugned orders dated 05.0372004 arid 19.08.2004 and 26.08.2004 are hereby quashed. The applicant shall be entitled to all consequential benefits. No costs.