- (1.) The petitioner, while working as Driver-cum-Mechanic Grade-II, was served with a charge-sheet on 27.10.1992, on the charges that 20 liters of diesel have been taken out of the official vehicle No. MRC-5245 which was under the charge of the petitioner and the same had been recovered. It was alleged that the petitioner had allowed a contractor man to take out that diesel from his vehicle on 25.08.1992 while he himself was present with the intention of misappropriation.
(2.) After the petitioner filed reply to the charge-sheet, an inquiry under Rule 9 of the Railways Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as 'the Rules of 1968') was held. The Inquiry Officer submitted his report and found the petitioner guilty of the charges leveled against him. A notice was served on the petitioner for imposition of penalty informing him that he is reverted as a Driver at the lower stage in the scale of Rs. 950-1500 for a period of three years with cumulative effect. The departmental appeal preferred against the order of punishment failed before the Appellate Authority and was accordingly dismissed on 28.05.1993.
(3.) That the principal issue raised by the petitioner for consideration before the Tribunal was that concededly the respondents failed to appoint any Presenting Officer to present its case, though, the respondents could do so, under sub Rule 9(9)(c) of the Rules of 1968. Resultantly, the Inquiry Officer played a dual role of a Prosecutor and of a Judge. The inquiry proceedings were assailed being in flagrant violation of the principles of natural justice and on the ground of bias. It may be expedient and necessary, at this stage, to refer to the specific averments set out by the petitioner in this regard, in the Original Application, filed before the Tribunal, which read as thus:- "iv) The learned Inquiry Officer did not follow any procedure prescribed under the Railways Servants (Discipline and Appeal) Rules, 1968, for the reasons best known to him and adopted a peculiar procedure unknown to law. He not only acted as Inquiry Officer, but also acted as a Prosecutor on behalf of the department. Under Sub Rule 9(9)(C) of the ibid Rules, the competent authority, may by an order, in writing, appoint a Railway or any other Government servant, to be known as Presenting Officer, to present on behalf of the Department the case is support of the articles of charges, but the Department never appointed any Presenting Officer and this duty was also performed by the Inquiry Officer himself. v) The Inquiry Officer in contravention of Rules 17(1) of the ibid Rules, first of all recorded the statement of Harjit Singh, driver, on 11.12.1992 and then put leading questions to him and put the whole case of the department and immediately thereafter, Inquiry Officer put searching questions to the applicant. The said Harjit Singh, witness, did not support the case of the department, at all on 11.12.1992, and the department served him with a charge-sheet vide No. 72/RCF/Mech/TPT-60 dated 2.1.1993. Again on 1.2.1992, i.e. after about one month of the service of charge-sheet to Harjit Singh he was recalled as a witness, and the Inquiry Officer examined him and put leading questions and also cross-examined the applicant. There was no request from the department to recall and re-examine Harjit Singh who was earlier examined as a witness on 11.12.199_. The procedure adopted by the Inquiry Officer is unknown to law. According to Rule 9(17) of the Railway Servants (Discipline and Appeal) Rule, 1960, the evidence in support of the Articles of charge is to be produced by the department on behalf of the Punishing Authority and the witnesses are to be examined by or on behalf the Presenting Officer, if any, and may be cross-examined by or on behalf of the Railway Servant. The procedure adopted by the Inquiry Officer is not only against the Rules, but also against the principle of natural justice. He did not examine the witnesses on oath. vi) The Inquiry Officer, without any application or request from the department, of his own inspected the spot i.e. Katcha building to record a finding of guilt as is evident from the report of the Inquiry Officer annexed as Annexure A-4.";