Legal Advice

Quashing of major penalty charge sheet and further stopping disciplinary proceedings or enquiry 

Query

Sir, I am transferred by the lending department of North Western railway to the borrowing department of railway RDSO Lucknow wherein a major penalty charge sheet has been issued for misuse of Duty Card Pass without approval of the tour programme which was not possible during the period of Covid-19. Hence can I file an OA on the following grounds.  That Borrowing department has not henceforth informed the lending department to commencement of disciplinary proceedings.  That the disciplinary authority has neither conducted preliminary enquiry nor issued any show cause notice before issuance of charge sheet. That the defense department required to prepare and then submit reply to the charge memorandum have not been supplied by the Disciplinary Authority so far.  That in the absence of my reply, the decision of Disciplinary Authority to proceed with further enquiry and appointing Inquiry Officer is correct or not? That the Railway Vigilance has not recorded the statement of my Nodal Officers who assigned duty and get reservation in trains as well as statement of TTE has not been recorded by the vigilance. The Disciplinary Authority has issued charge sheet with preset mind as adviced by vigilance officers. Kindly assess the success rate of my above grievances and advice about the Rules, Circulars or earlier decision of humble courts please.

Advice

Upon perusal of the facts of your case it seems that no opportunity of hearing afforded to you by the inquiry officer before submitting its report to the disciplinary authority. When an inquiry officer is appointed he has to hold a preliminary inquiry to make out a prima facie case against the delinquent officer. 

In that inquiry the delinquent officer may appear and place his explanation and evidence either oral or documentary. If the delinquent officer produces any evidence, the inquiry officer is bound to accept. 

In Amalendu Ghosh v. North Eastern Railway [AIR 1960 SC 992] the Constitution Bench of the Hon’ble Supreme Court has held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. 

In Champaklal Chimanlal Shah v. Union of India [AIR 1964 SC 1854] a Constitution Bench of the Hon’ble Supreme Court while taking a similar view held that preliminary inquiry should not be confused with regular inquiry. The preliminary inquiry is not governed by the provisions of Article 311(2) of the Constitution of India. Preliminary inquiry may be held ex parte, for it is merely for the satisfaction of the Government though usually for the sake of fairness, an explanation may be sought from the government servant even at such an inquiry.

So far as disciplinary inquiry under Railway Rules 1968 is concerned, the Disciplinary Authority can initiate regular inquiry after receiving imputation or misconduct against railway servant. Now after receiving a report of the vigilance department the disciplinary authority has initiated a regular inquiry by issuing a charge sheet and appointing an inquiry officer. Till this stage the proceeding is fair and legal under section 9 of The Railway Servants (Discipline & Appeal) Rules, 1968.

The delinquent officer has to appear before the inquiry officer and defend his case. During the defence he (delinquent officer) has the right to inspect any material/evidence which is in the custody of the department and also has the right to call the material witnesses for recording their statement. 

If the inquiry officer refuses to record the evidence of a material witness or not providing evidence falling in the custody of the department, it violates the principle of natural justice i.e. not affording fair opportunity to the delinquent officer to deny his guilt. 

In Laxmi Shankar Pandey v. Union of India AIR (1991) 2 SCC 488 the Supreme Court has held that the inquiries must be conducted in accordance with the principles of natural justice and that a reasonable opportunity to deny the guilt and to cross examine the witnesses produced and examined, should be given and that the enquiry should be consistent with the rules of natural justice and in conformity with the statutory rules prescribing the modes of enquiry.

You should move a representation to the show cause notice and request the disciplinary authority: 

  • To provide relevant documentary evidence which is necessary for the preparation of defence.
  • Call material witnesses and record their statement.
  • Keep the departmental inquiry in abeyance till the furnishing of evidence and recording of statement of material witnesses.  

If the disciplinary authority does not take proper action on your representation then you should approach the Central Administrative Tribunal for the stay of proceedings and take decision on your representation within a stipulated time.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Service & Labour

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