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Shri O.P. Nigam Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberC.W. No. 316 of 1975
Judge
Reported in1983(4)DRJ365
ActsRailway Servants (Discipline and Appeal) Rules, 1968 - Rules 2 and 9
AppellantShri O.P. Nigam
RespondentUnion of India (Uoi) and ors.
Appellant Advocate M.S. Vohra, Adv
Respondent Advocate H.S Dhir, Adv.
DispositionWrit petition allowed
Excerpt:
departmental enquiry--asstt. works manager (maintenance) appointed as enquiry officer but enquiry held by asstt. works manager (construction) who was also the disciplinary authority of the petitioner--held enquiry is vitiated. - .....wish'.5. this opened a new chapter. the matter went back to the appointing authority namely, the works manager. it is not in dispute before me that the works manager is the appointing authority of the petitioner. on 17th march, 1971, the works manager made the following order-'the judgment received with headquarters letter at s.no. 221 has quashed the departmental action on account of procedural lacuna, and not the charge itself leading to that action. the charge still stands and needs to be investigated under the d & a rules. orders removing shri o.p. nigam from services are hereby cancelled. denovo proceedings should be instituted by the competent authority, viz. awm/m. the man is deemed under suspension w.e.f. 30-7-64 a.n. (the date of removal from service) till decision on dar.....
Judgment:

Avadh Behari Rohtagi, J.

1. This ease has a chequered history. The petitioner has been in these courts for the last 17 years.

2. These are the fasts. The petitioner was employed in NorthernRailway. Originally he was selected for appointment as a trade apprentice.After completing his apprenticeship, he was appointed in the post of a skilledwelder in the grade of Rs. 110-180 plus usual allowances in the RailwayWelding Shop at Amritsar. The petitioner, it was alleged, Was guilty of misconduct. It was alleged, that he had committed a theft. Departmental proceedings were initiated against him which culminated in an order of hisremoval from service on 30th July, 1964.

3. The petitioner brought a writ petition in this court (C.W. No. 56-D/66; challenging the order of his removal from service. Prakash Narain J. quashed the departmental action including the inquiry and the ultimate punishment awarded to the petitioner on the ground that the charge-sheet issued to the petitioner was issued by an authority not competent to do so. From his order the Railway preferred a Letters Patent Appeal. The Letters Patent Bench by judgment dated 21-10-1970 set aside his judgment and remanded the matter to him for re-decision.

4. Prakash Narain, J. on remand again heard the matter. He adhered to his previous view more or less. By order dated December 10, 1970 he quashed the departmental action culminating in the petitioner's removal from service and issued a writ to that effect. He, however, added at the end of his judgment that 'the respondents would however, be free to start departmental proceedings in accordance with law, if they so wish'.

5. This opened a new chapter. The matter went back to the appointing authority namely, the Works Manager. It is not in dispute before me that the Works Manager is the appointing authority of the petitioner. On 17th March, 1971, the Works Manager made the following order-

'The judgment received with Headquarters letter at S.No. 221 has quashed the departmental action on account of procedural lacuna, and not the charge itself leading to that action. The charge still stands and needs to be investigated under the D & A rules.

Orders removing Shri O.P. Nigam from services are hereby cancelled. Denovo proceedings should be instituted by the competent authority, viz. AWM/M. The man is deemed under suspension w.e.f. 30-7-64 A.N. (the date of removal from service) till decision on DAR proceedings to be held,...''

The result of this order is that the appointing authority, namely, the Works Manager (Maintenance as the competent authority to make a denovo inquiry into the matter of petitioner's misconduct.

6. The inquiry started. The first inquiry officer was A. Parshad. He was an AWM/M He issued the memorandum to the petitioner on 24th March, 1971 requiring him to submit his written statement of his defense within ten days of the receipt of the memorandum. The charge against him as set out in the articles of charge was the same as before, namely, that on 23rd August, 1963 he was caught while taking out 126 Electrodes out of the locomotive workshop. It was said that he had committed theft of railway material which amounts to serious misconduct.

7. Parshad was succeeded by R. Mehta. He was also an AWM/M. He fixed 7th August, 1972 as the next date of inquiry and required the petitioner to appear before him along with his defense helper. He also could not complete the inquiry. He was succeeded by Bhim Sen Sharma. He was also an AWM/M. Sharma was then succeeded by K.L. Chatterjee as the inquiry officer. He was an AWM/C (Assistant Works Manager (Construction). He was a different man. He was not Assistant Works Manager (Maintenance). At this stage when Chatterjee took over the inquiry, the office note says,'since Welding shop is now under AWM/C, he may kindly look to the inquiry proceedings as attached'. This note is dated 5-4-1973. Chatterjee, thereforee, started the inquiry proceedings and concluded them. He made his report dated 4-6-1973. His finding was that the petitioner was guilty of serious misconduct.

8. This report of Chatterjee, the inquiry officer, was submitted to the Works Manager. The Works Manager issued notice dated 16-6-1973 asking the petitioner to show cause why the penalty of removal from service be not imposed on him as a result of the report of the inquiry officer with which he agreed. The petitioner submitted a reply to the show cause notice. But his Explanationn was not accepted. The Works Manager on 28th March, 1974 made an order removing the petitioner from service So another innings started. From the order of Works Manager removing him from service, the petitioner filed an appeal to the Chief Mechanical Engineer. The appellate authority rejected the appeal on 11th December, 1974. The petitioner brought this writ petition on 7-3-1975 again challenging the order of removal from service on several grounds.

9. Several questions were raised before me by counsel for the petitioner but this case can be decided on a short ground. That ground is that K.L. Chatterjee who acted as the Inquiry Officer was not an AWM/M. He was AWM/C. He was a different man, as I have said. The Works Manager, viz. the appointing authority, by his order dated 17th March, 1971, had appointed AWM/M as the inquiry officer. His order is specific on this point. He was explicit that the competent authority to take denovo proceedings against the petitioner will be AWM/M. So only AWM/M could act as the inquiry officer. A. Parshad, R. Mehta and Bhim Sen Sharma were all AWM/ M. To their holding the inquiry no objection can be taken on this ground. But to Chatterjee acting as an inquiry officer the petitioner had a serious objection. He raised this objection when he submitted a reply to the show cause notice to the Works Manager. He said in so many words that the appointments of the inquiry officers were not valid. He has raised the same point before me.

10. It is not disputed that the office of AWM/M existed at the relevant time when Chatterjee took up the inquiry as an inquiry officer. Mr. Dhir on behalf of the Railway says that though it is true that AWM/M was there, the Welding Shop had however been transferred from the charge of AWM/M to the charge of AWM/C and thereforee, as is shown by the above office noting, the matter of inquiry went to Chatterjee and he acted as the inquiry officer. This may be so. But the order of the Works Manager appointing the inquiry officer is specific, explicit and unambiguous. He appointed none other than AWM/M. On this view Chatterjee being AWM/ C had no authority and jurisdiction to act as the inquiry officer. He was an utterly different man from AWM/M. If I am right in this conclusion, then I must hold that the inquiry officer's report, namely, Chatterjee's findings, are all vitiated. The Works Manager accepted his report and agreed with his findings. On that basis he made the order of petitioner's removal from service. That order of the Works Manager must also fall to the ground with the report of Chatterjee. If the inquiry officer had no jurisdiction then the entire proceedings must be held to be null and void because the findings arevitiated, the show cause notice issued in persuance thereof was vitiated and the order passed by the Works Manager is also null and void.

11. Mr. Dhir raised another point. He said that though it is true that the appointing authority was the Works Manager, the disciplinary authority in the case of the petitioner was AWM/M. He referred me to Rule 2(c) (iii) and Rule 9(ii) and Schedule II of Railway Servants (Discipline and Appeal) Rules, 1968, to show that AWM was the disciplinary authority of the petitioner. The argument is this. All the Assistant Works Managers were the disciplinary authorities of the petitioner and in terms of Rule 9(2) of the: Railway Servants (Discipline and Appeal) Rules, 1968, and they were competent to inquire into the matter themselves. I do not agree. The reason is that R. Mehta, Bhim Sen Sharma and K.L. Chatterjee have all described themselves throughout as the 'inquiry officer'. Chatterjee did not describe himself as the 'disciplinary authority'. If he was acting as the disciplinary authority, as is the case of Mr. Dhir, he should have made an order in that capacity. From the record it appears that he was no more than an inquiry Officer who was acting under the original order of the Works Manager appointing AWM/M as the competent authority to enquire into the misconduct of the petitioner. The office note which I have quoted above also does not support Mr. Dhir's contention. The note says that as the Welding shop has been transferred to Chatterjee's charge, he should take up the inquiry proceedings. This is also what is stated in paragraphs 9-10 of the counter affidavit. This shows that if the shop had not been transferred to him Chatterjee had nothing to do with the enquiry. I have no doubt that the only order, which held the field was the original order of the Works Manager dated 17th March, 1971 appointing AWM/M as the competent authority to inquire into the petitioner's misconduct. Chatterjee being not an AWM/M his inquiry must be held as invalid and void.

12. For these reasons I quash and set aside the order dated 28th March, 1974 and the appellate order dated 11th December, 1974, removing the petitioner from service. As a consequence the petitioner will always be deemed to have been in service. I order his reinstatement. The petitioner will also be entitled to all the benefits consequent to his reinstatement and costs of the petition. The writ petition is accepted.


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