Alok Dey Roy Vs Union of India and others

Pratap Kumar Ray, J.@mdashHeard the learned advocates appearing for the parties.

2. Assailing the order dated 31st July, 2008 passed in O.A. No. 756 of 2008 by Central Administrative Tribunal, Calcutta Bench, this writ application has been filed. The issue involved herein is on a very short question whether on cancelling a first charge-sheet as issued in a departmental proceeding second charge-sheet could be issued without disclosing the sufficient reasons while issuing the second charge-sheet on dropping the first disciplinary proceeding. The writ petitioner is a Railway employee and is controlled by the regulation framed by the Railway Authority. The Railway Board has framed a rule on issue when any departmental proceeding is dropped and subsequently proceeding is initiated by a fresh charge-sheet. Railway Board has framed the guidance and necessary action and it ultimately became a rule by incorporating the same in the Manual under Index No. 1033. The relevant communication of the Railway Board and the Index No. as it appears from the circular letters submitted before us fling the circular letter issued for Chief Personal Officer being No. 308/O/Vol. XV dated Calcutta, the 17th January, 1994 under Serial No. 10/94 read with the Railway Board''s letter No. E (D&A) 93 RG6-83 dated 1st December, 1993 (RBE No. 171/93) addressed to G.M. (P), All Indian Railways and others reads such:

EASTERN RAILWAY

No. E-308/O/Vol.XV

Sl. No. 10/94

Calcutta, the 17.1.1994

All concerned.

Sub: Issuing fresh charge Memorandum after cancellation/withdrawal of original charge Memorandum of after dropping disciplinary proceedings.

A Copy of Railway Board''s letter No. E (D&A) 93 RG6-83 dated 1.12.1993 (R.B.E. No. 171/93) is forwarded for information, guidance and necessary action.

Sd/-

For CHIEF PERSONNEL OFFICER.

Copy of Railway Board''s letter No. E (D&A) 93 RG6-83 dated 1.12.1993 (RBE No. 171/93) addressed to G.M. (P), All Indian Railways and others.

Sub: Issuing fresh charge Memorandum after cancellation/withdrawal of original charge Memorandum of after dropping disciplinary proceedings.

In has come to the notice of the Railway Board that on one of the Zonal Railways, the Memorandum of charges issued to an employee was withdrawn by the disciplinary authority with the intention of issuing fresh detailed charge Memorandum. However, while withdrawing the charge-sheet, no reasons therefor were given and it was only stated that the charge-sheet was being withdrawn. The issue of a fresh charge Memorandum subsequently was challenged by the employee before CAT/Bombay. The Central Administrative Tribunal on hearing the case have quashed the said charge Memorandum holding that unless there is a power in the disciplinary authority by virtue of the rules or administrative instructions to give another charge-sheet on the same facts after withdrawing the first one, the second charge-sheet will be entirely without authority.

2. The matter has been examined and it is clarified that once the proceedings initiated under Rule 9 or Rule 11 of RS (D&A) Rules, 1968 are dropped, the disciplinary authorities would be debarred from initiating fresh proceedings against the delinquent officers unless the reasons for cancellation of the original charge Memorandum or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without prejudice to further action which may be considered in the circumstances of the case. It is, therefore, necessary that when the intention is to issue a fresh charge-sheet subsequently, the order cancelling the original one or dropping the proceedings should be carefully worded so as to mention the reasons for such an action indicating the intention of issuing charge-sheet afresh appropriate to the nature of the charges.

Please acknowledge receipt.

INDEX No. 1033: Sufficient reasons should be worded for issuing fresh charge Memorandum after cancellation/withdrawal of original charge Memorandum or after dropping disciplinary proceedings.

3. It is an admitted position that the first charge-sheet as issued by issuing a memorandum No. SDA/VIG/875 dated 20th December, 2005 containing statement of article of charges and the list of the documents as to be relied upon including the list of witnesses was withdrawn by letter No. SDA/VIG/875 Sealdah dated 30th August, 2006 by the Divisional Operations Manager without prejudice to the liberty to issue a fresh major penalty memorandum on the same charge and the subsequent charge memo issued under Memo No. SDA/VIG/875 dated 5th October, 2006/10th October, 2006 is on the identical charge with identical statement of imputation of misconduct and other particulars.

4. Learned Tribunal below, however, dismissed the application on the ground that as the first charge memo was withdrawn with liberty to file a fresh charge, accordingly, there was no breach. Learned advocate for the writ petitioner relied upon the regulation framed by the Railway Board under Index No. 1033 as already quoted above and has submitted that sufficient reasons were not mentioned while issuing the fresh charge memo on dropping the earlier departmental proceeding.

5. Having regard to the language used in the said Index No. 1033, the regulation, the issue now is required to be considered whether that provision is a mandatory provision or directory provision. To test a provision whether mandatory or directory, the use of the word ''shall'' or ''may'' is not a guiding factor, but the main guiding factor is context and purpose for which the provision has been made and the beneficial purpose for whom it is made. By a Constitution Bench judgment passed in the case The Collector of Monghyr and Others Vs. Keshav Prasad Goenka and Others, , in paragraph 12, the Court identified the legal position by holding to this effect "It is needless to add that the employment of the auxiliary verb "shall" is inconclusive and similarly the mere absence of the imperative is not conclusive either. The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specie provision which for instance, sets out toe consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve". In the case Mannalal Khetan and Others Vs. Kedar Nath Khetan and Others, , a judgment of three Judges Bench, the Court held "negative, prohibitory and exclusive words are indicative of the legislative intend when the statute is mandatory. Negative words are clearly prohibitory and are ordinarily 4 used as a legislative device to make a statutory provision imperative. Non-compliance of provision even if not provides any offence, the provision of such test cannot be said as directory". In the Constitution Bench judgment passed in the case Collector of Monghyr and others (supra), it has been observed categorically by the Apex Court that test whether a provision is a mandatory or directory depends on whether the requirement is insisted on as a protection for safegaurding the right of liberty of a person. In the instant case initiation of a departmental proceeding for the alleged misconduct is controlled by a procedural law safeguarding the interest of the delinquent by providing opportunity of hearing following the principle of natural justice. Furthermore, the disciplinary proceeding is controlled by the Railways Servants (Discipline & Appeal) Rules, 1968, whereby in Part-IV under Rule 9, the elaborate procedural steps have been prescribed including the step under sub-rule 9(a)(i) of the said Rule 9, which stipulates that on receipt of the written statement of defence, the disciplinary authority shall consider the same and decide whether the enquiry will be proceeded with under this Rule or not. The sub-rule 9(a)(i) and (ii) of the said Rule 9 reads such:

9(a)(i) On receipt of the written statement of defence, the disciplinary authority shall consider the same and decide whether the inquiry should be proceeded with under this rule.

(ii) Where the disciplinary authority decides to proceed with the inquiry it may itself inquire into such of the articles of charge as are not admitted or appoint under Sub-rule (2) a Board of inquiry or other authority for the purpose.

6. In the instant case it appears from the records that the first charge memo when issued, delinquent filed a written statement of defence denying the charges as levelled against him and thereafter withdrawal of the same may be considered is an action under 9(a)(i) of the aforesaid sub-rule, but this could be saved and protected if the rule under Index No. 1033 as introduced is considered. On application of the said Rule under Index No. 1033, namely, disclosure sufficient reasons in the fresh charge memo on withdrawing the earlier charge memo, is a mandatory provision and the respondents Railway Authority were bound to follow their own rule as framed by the Railway Board. The said Rule is a mandatory prevision as per our reading by applying the test of Collector of Monghyr and others (supra) as the provision is to safeguard the interest of the delinquent from unnecessary harassment in the service career.

7. In the instant case it appears that after withdrawal of the charge memo, a fresh charge memo has been issued without assigning the sufficient reasons thereof, as such, there is a breach to comply with the Board''s decision, which subsequently became a Rule in the procedural law of the departmental proceeding.

8. Besides the aforesaid Rule, even the decision of the Railway Board is binding to the Subordinate Officers working in the Railway, having regard to the settled principle that when any authority empowered under a statute to issue any order/direction, it is binding to all subordinate departmental employee and is enforceable in the Court of law on considering the same having a statutory flavour. Reliance is made to the judgment passed in the case K.P. Varghese Vs. Income Tax Officer, Ernakulam and Another, , wherein u/s 119 of the Income Tax Act, a circular letter was issued and the Court held that it was binding upon the Subordinate Officers. In the case K.P. Varghese (supra) the Court relied upon the Constitution Bench judgment passed in the case Navnitlal C. Javeri Vs. K.K. Sen, Appellate Assistant Commissioner of Income Tax, ''D'' Range, Bombay, . The case K.P. Varghese (supra) has been approved subsequently by a Constitution Bench judgment passed in the case C.B. Gautam Vs. Union of India and Others, ). In the case UCO Bank, Calcutta Vs. Commissioner of Income Tax, West Bengal, a judgment of three Judges Bench, the aforesaid cases K.P. Varghese (supra), Navnit Lal C Javeri (supra) and C.B. Goutam (supra) have been relied upon by holding, inter alia, that even on application of order passed u/s 119 of the Income Tax Act, if the same fouls with a statutory provision, still it to be implemented for the benefit of the assessee by the Subordinate Officers. Applying those test, the Railway Board''s letter dated 1st December, 1993 (RBE No. 171/93) stipulating the guidance and necessary action on clarifying the statutory rule, namely, Rule 9 or Rule 11 of the aforesaid Railways Servants (Discipline & Appeal) Rules, 1968, has a binding effect and accordingly there was necessity of giving sufficient reasons while issuing the fresh charge memo on withdrawing the earlier charge memo. In the instant case, it has not been done, so it has caused breach of said Board''s circular.

9. Learned advocate for the Railway Authority, however, submits that modification of the charge-sheet is permissible under the rule, we are not finding any such rule in the said rule itself. Since it is an admitted position that the Railway Authority has already amended the relevant rule and incorporated the same under Index No. 1033 of the Railway Manual, the same is binding to the Railway Officers, who initiated the departmental proceeding. It has not been done in the instant case, accordingly there is a mandatory breach and the impugned charge memo being the second charge memo on withdrawing the earlier charge memo is not legally sustainable due to the lack of sufficient reasons for issuing the fresh charge memo on withdrawing the earlier charge memo. It accordingly is set aside and quashed. Impugned-judgment of the Tribunal dated 31st July, 2008 passed in O.A. No. 756 of 2008 is also set aside and quashed on the basis of the aforesaid observation. However, the quashing of the second charge memo as issued on withdrawing the first charge memo, will not debar the respondent, Railway Authority, to issue appropriate charge memo following the rule under Index No. 1033 as referred to above, namely, specifying the sufficient reasons in the charge memo itself for issuing the fresh charge memo. The writ application, accordingly, is allowed with a cost of Rs. 20,000/- payable by the Railway Authority to the writ petitioner. Such cost to be paid within a month from this date.

MRINAL KANT SINHA, J.

10. I agree.