MISRA, J. - (1.) THIS writ petition has been filed by the Union of India through the General Manager, Western Railway and the Additional Divisional Railway Manager, Western Railway, Kota against the order passed by the Central Administrative Tribunal (for short "the Tribunal"), Jaipur Bench, Jaipur on 22. 12. 2000 by which the order of punishment of removal from service passed against the respondent-applicant Mohammed Hanif has been set aside holding it as illegal, unjust and against the principle of natural justice.
(2.) THE facts of the case in so far as it is relevant for the purpose of disposal of this writ petition is that the respondent- applicant-Mohammed Hanif while working on the post of driver in the Western Railway was charge sheeted for violation of Rule 2. 06 of G & S Rules, 1981, Rule 3 (1) (2) of the Railway Service (Conduct) Rules, 1966 and Para 1007 (5) (6) and (7) of Operating Manual Western Railway alleging disobedience of rules and orders for which an enquiry was conducted and pursuant to the enquiry an order imposing punishment of removal from service was passed against the respondent. THE principal charge against the petitioner disclosed that while he was posted as a driver for Goods Train (Mal Gadi Chalak) on 27. 7. 97 at Kota Division, a call was issued to him to drive a Train bearing No. 2627 Karnataka Express for which the arrival time was 18. 10 but he refused to respond to the call and informed that some other driver be arranged for driving the train. THEreafter another driver was engaged for running the train but as he was unfamiliar with the route, the train caused an accident at Faridabad. As per the charge sheet, the respondent was the only train driver with two years experience to drive diesel engines who was driving goods train from Ganganagar to Tuglakabad Division and was aware of the route. In emergency situation as per the instruction of the Railway Board Headquarter, the petitioner with permission of the competent authority was competent to drive Mail/express Train which he refused. As per his driving skill he was having a B- Gradation Card for driving Mail and Express Trains, but had refused to drive the Express Train on 27. 7. 97 which met with an accident on account of respondent's refusal to drive. Thus, he was alleged of the charge of disobedience to the rules and orders in this regard as refusal to drive the train was a serious misconduct. The respondent-applicant denied the charges, but the enquiry officer who conducted the enquiry recorded a finding that he was guilty of misconduct by disobeying the orders of his superior by refusing to drive the train on the relevant date on 27. 7. 97. Consequently, an order of punishment for removal from service was passed against him which he challenged before the Tribunal by preferring an appeal. The learned Members of the Tribunal were pleased to set aside the order of removal from service passed against the respondent not on account of mis- appreciation of evidence recorded by the enquiry officer, but on the ground that there had been a gross violation of the principle of natural justice while conducting the enquiry in as much as the respondent had not been granted proper opportunity to submit his defence and without giving such opportunity, the enquiry officer was appointed. Learned Members of the Tribunal also held that copies of the documents/statements as demanded by the applicant were not supplied to him to enable him to prepare his defence and the list of witnesses although was given in the charge sheet, no witness was examined by the Department in support of the charges. Besides this, the enquiry officer himself abruptly examined the applicant and there was no Presenting Officer of the Department to examine the departmental witness, the applicant and his defence witnesses. It was therefore, held that the enquiry officer had acted as a prosecutor in this case. It further noted that the statement of one Shri Ashok Kumar was recorded behind the back of the applicant, but no opportunity to cross examine this witness was provided to the respondent. The process of conducting the enquiry was therefore, considered unjust and illegal hence the punishment of removal from service imposed by the authorities was set aside and the respondent was ordered to be reinstated in service with full back wages from the date of removal to the date of his reinstatement. Challenging the impugned order of the Tribunal, it was submitted by the counsel for the appellant-Union of India that the respondent had admitted the charge to the extent that he committed a mistake by not accepting the call for driving the Express (Passenger) Train and hence, nothing more was required to be examined by the enquiry officer and the Tribunal erred in interfering with the order of punishment of removal of the respondent from service by directing for his reinstatement with full back wages ignoring that it was not justified considering the gravity of the charge. The impugned order of the Tribunal was thereafter challenged by the appellant-Union of India by filing this writ petition which was admitted on 18. 9. 2001 and it was further ordered that the operation of the impugned order dated 20. 12. 2000 passed by the Tribunal shall remain stayed. The matter thereafter was finally heard by us wherein the counsel for the appellant-Union of India contended that the respondent had admitted the charge to the extent that he committed a mistake by not accepting the call for driving Express (passenger) Train and nothing more was required thereafter to be examined by the enquiry officer and therefore the Tribunal erred in interfering with the order of punishment of removal of the respondent from service by directing for his reinstatement with full back wages ignoring the fact that it was not justified considering the gravity of the charge which was admitted by the delinquent employee himself.
(3.) IN course of hearing of this matter it finally transpired that the respondent had already superannuated on 31. 5. 2001 during pendency of this writ petition and therefore, the question of his reinstatement does not arise at all. Hence, it was considered inessential to enter into the question as to whether the respondent was granted opportunity by the Enquiry Officer to defend himself which could impress upon this Court to set aside the enquiry report on the ground of violation of principle of natural justice. The question however still cropped up that if the order of the Tribunal directing for reinstatement of the respondent is allowed to remain, the respondent even after his superannuation would claim back wages for the period during which he did not discharge any duty and would be further entitled to pensionery benefits. It was therefore essential to consider whether the order of removal of the respondent which was set aside by the Tribunal was justified or not. In the light of this background when we considered the submission of the counsel for the appellant-Union of India we found substance in the contention of the Union of India that once the respondent admitted the charge to the extent that he had refused to abide by the instruction of the superior officers and refused to drive the Express (Passenger) Train inspite of the emergent situation which stands proved by his statement and his cross examination, he obviously was guilty of the charge of gross dereliction of duty and the finding of the Tribunal that the enquiry suffered from legal infirmity of denial of natural justice to the respondent cannot be upheld as correct. If the respondent had not accepted the charge that he had disobeyed the orders of his superior officers, perhaps it would have been open for him to contend that he should have been granted proper opportunity to offer his defence; but once he admitted the charge of disobedience in his statement and cross examination obviously there was no reason to summon the witnesses against the charge that he had violated the orders of the higher authorities by denying the instruction to drive the train. ;