Andhra Pradesh High Court – Amravati
B.Krishna Kumar, vs Union Of India Represented By on 7 August, 2025
1
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
&
* THE HON‟BLE SRI JUSTICE CHALLA GUNARANJAN
+ W.P.No.8434 OF 2012
% 07.08.2025
# B. Krishna Kumar
......Petitioner
And:
$ Union of India, rep. by the
General Manager, S.C.
Railway, Secunderabad
and others
....Respondents.
!Counsel for the petitioner : Sri K.R.K. V. Prasad
^Counsel for the respondents 1 to 6
: Sri Venna Hemanth Kumar,
Central Govt., Counsel
<Gist:
>Head Note:
? Cases referred:
1
2023 SCC OnLine AP 3925
2 (1980) 2 SCC 205
3.(1979) 4 SCC 289: 79 SC 1912
MANU/TL/1217/2021
4.(2008) 3 SCC 484
5.AIR 1986 SC 1173
6.1990 SCC OnLine SC 474
7.(2007) 8 SCC 212
8.(2009)2 SCC 541
9.WP.No.26790/2015, APHC
Decided on 14.09.2015
10.(2009) 2 SCC 541
2
HIGH COURT OF ANDHRA PRADESH
****
W.P.No.8434 OF 2012
DATE OF JUDGMENT PRONOUNCED: 07.08.2025
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE CHALLA GUNARANJAN
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the Yes/No
fair copy of the Judgment?
____________________
RAVI NATH TILHARI, J
_______________________
CHALLA GUNARANJAN,J
3
THE HON‟BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON‟BLE SRI JUSTICE CHALLA GUNARANJAN
W.P.No.8434 OF 2012
JUDGMENT:
per the Hon’ble Sri Justice Ravi Nath Tilhari:
Heard Sri K.R.K.V. Prasad, learned counsel for the
petitioner and Sri Venna Hemanth Kumar, learned Central
Government Counsel for the respondents 1 to 6.
2. The petitioner was the applicant in O.A.No.958 of 2011 (in
short OA) before the Central Administrative Tribunal, Hyderabad
Bench, Hyderabad (in short, the Tribunal). The same was
dismissed on 15.02.2012 and challenging the said judgment, the
present writ petition was filed.
3. The petitioner shall be referred as the applicant and the
respondent as the respondent.
I. FACTS:
4. The applicant was appointed as Peon in Vijaywada Division
of South Central Railways. He was later on promoted to the post
of Junior Clerk-cum-Typist, after the said promotion panel was
approved by the Additional Divisional Railway Manager,
Vijayawada Division, South Central Railway-2nd respondent in
terms of the proceedings dated 13.03.1997 issued by the 3rd
4
respondent-the Senior Divisional Personnel Officer, Vijayawada
Division. While working as Junior Clerk (Mechanical Bills),
pursuant to a Vigilance trap dated 28.10.2009 the applicant was
served with a charge memo vide Memorandum
No.B/P227/IV/2009/3/Vig., dated 14.12.2009 by the 5th
respondent the Senior Divisional Personal Officer, Guntakal
Division, with respect to the demand and receipt of illegal
gratification of Rs.500/- from one Smt G. Parameswari (the
complainant) to process her Provident Fund withdrawal
application.
5. The Article of Charge against the applicant reads as under:
―ANNEXURE TO STANDARD FORM No.5
The Memorandum of Charge Sheet under Rule – 9 of the RS
(D&A) Rules, 1968:
ANNEXURE-I
ARTICLE OF CHARGE FRAMED AGAINST SHRI.B.KRISHNA
KUMAR, Jr. Clerk/Mech., Bills, Sr.DPO/O/BZA.
Article(i)
That the said Shri. B.Krishna Kumar, Jr. Clerk, Mechanical
Bills, Sr. DPO/O/BZA while working as such on 28.10.2009 had
committed serious misconduct in that he had demanded and
collected an amount of Rs.500/- as illegal gratification from Smt.
G. Parameswari, Welder Gr.I, Wagon Depot/BZA to process her
Provident Fund withdrawal application dt. 16.10.2009 as detailed
in the statement of imputations.
5
Thus, the said Shri. B. Krishna Kumar had failed to
maintain absolute integrity, devotion to duty and acted in a
manner unbecoming of a Railway Servant and has violated Rule
No.3(1)(i),(ii) & (iii) and Rule 26 of Railway Services (Conduct)
Rules, 1966.‖
6. The applicant was given an intra Divisional transfer from
Vijayawada Division to Guntakal Division.
7. The applicant submitted reply dated 04.01.2010 to the
charge memo to the 5th respondent denying the allegations. Not
being satisfied with the reply, the 5th respondent considered to
conduct enquiry and nominated the 6th respondent as the
Enquiry Officer to enquire into the charges. However, any
presenting officer was not appointed.
8. The Enquiry Officer submitted the report to the Disciplinary
Authority holding the charge as proved and the Disciplinary
Authority forwarded the copy of the report of the Investigating
Officer to the applicant on 06.01.2011. The applicant submitted
his representation dated 24.01.2011 against the findings of the
Enquiry Officer to the Disciplinary Authority also raising the plea
of visible bias by the Investigating Officer. The 5th respondent
however imposed the punishment of removal from service vide
order dated 14.02.2011. The applicant filed O.A.No.192 of 2011
before the Tribunal, challenging the order of removal, which was
6
disposed of on 23.06.2011 granting liberty to the applicant to file
the departmental appeal.
9. The applicant then filed the departmental appeal which was
dismissed on 07.09.2011 confirming the order of removal. The
applicant filed O.A.No.958 of 2011, which has been dismissed by
the impugned order dated 15.02.2012.
II. ORDER OF TRIBUNAL:
10. The Tribunal held that the order of removal was passed by
the competent authority. The disciplinary authority and the
appellate authority were not from the vigilance department. They
formed an independent opinion on independent consideration.
There was no bias or prejudice either in the enquiry or in the
orders of disciplinary or appellate authority. The Tribunal
recorded that the Vigilance Manual and its paragraphs relating to
vigilance/decoy check while laying trap, were procedural in nature
and so, any deviation from certain provisions of the Vigilance
Manual did not cause prejudice to the applicant. In the
disciplinary proceedings, the applicant was given adequate
opportunity to defend. It was not a case of no evidence. The
findings were based on evidence. The defense of the applicant
that the complainant had taken loan of Rs.500/- from the
7
applicant and that the loan amount was being returned to the
applicant which was not towards any illegal gratification for
processing the Provident Fund withdrawal application of the
complainant was not accepted and it was held to be an
afterthought defence, by the Tribunal.
III- SUBMISSION OF LEARNED COUNSEL FOR PETITIONER:
11. Learned counsel for the applicant-petitioner submitted that
the applicant was appointed to the post of Junior Clerk by the 3 rd
respondent-the Senior Divisional Personnel Officer with the prior
approval of the 2nd respondent-Additional Divisional Railway
Manager, Vijayawada. The 5th respondent-Senior Divisional
Personnel Officer, Guntakal could not be the disciplinary authority
to pass the order of penalty, being below in rank to the 2nd
respondent. So, the order of removal was without jurisdiction.
The petitioner-applicant could not be removed by 5th respondent
an authority below in rank to the 2nd respondent.
12. Learned counsel for the petitioner next submitted that the
complaint was received directly by the Vigilance Inspector from
the complainant without taking any written approval from the
Vigilance Officer. The complaint had not even been registered as
8
per the Vigilance Manual. He further submitted that in the laying
of decoy trap, the procedure as per Paras 704 and 705 of the
Vigilance Manual were violated. The decoy (Parameshwari) did
not give money to Vigilance Inspector but the Vigilance Inspector
gave money to the decoy contrary to Vigilance Manual
Provisions. He submitted that Paras 704 and 705 of Vigilance
Manual require at least the two independent witnesses.
13. Learned counsel for petitioner-applicant next submitted that
any Presenting Officer was not appointed in the disciplinary
proceedings. The Enquiry Officer acted as Presenting Officer.
Further, the Enquiry Officer was functioning under the control of
the Chief Vigilance Officer South Central Railway so he could not
be appointed the Enquiry Officer. This vitiated the enquiry
proceedings. He also referred to the depositions of witnesses of
P.W.(s) to substantiate the plea. He further submitted that the
applicant was not confronted with the adverse circumstances in
the evidence and was simply asked by the Investigating Officer,
in Q.84, which did not comply with the requirement of Rule 9(21),
and so, based on such enquiry the order of penalty could not be
passed.
9
14. Learned counsel for the petitioner next submitted that the
appellate authority did not consider the appeal on its merit,
independently, by appreciating the material on record. It just
affirmed the order of the disciplinary authority, which is not by a
reasoned or speaking order.
15. Learned counsel for the petitioner placed reliance on the
following cases.
i) Union of India, rep. by the General Manager,
South Central Railway and others vs. B.S. Purushotham1
ii) Dharam Dev Mehta V. Union of India and others2
iii) Krishna Kumar v. Divisional Assistant Electrical
Engineer and others3
iv) Union of India and others vs. The Registrar, The
Central Administrative Tribunal, Hyderabad and others4 (M.
Chandrashekar)
vi) Ram Chander vs. Union of India and others.6
1
2023 SCC OnLine AP 3925
2
(1980) 2 SCC 205
3
(1979) 4 SCC 289: 79 SC 1912
4
MANU/TL/1217/2021
5
(2008) 3 SCC 484
6
AIR 1986 SC 1173
10IV- SUBMISSION OF LEARNED COUNSEL FOR
RESPONENTS:
16. Learned counsel for the respondents submitted that the
enquiry was conducted in accordance with law. The enquiry
officer recorded specific finding on proof of charge on
consideration of the evidence on record. The petitioner- applicant
was granted full opportunity of defense. There was no violation of
the principles of natural justice in conducting the enquiry. The
applicant was granted an opportunity against the enquiry officer’s
report and after the applicant’s reply, the disciplinary authority
passed the order of removal from service. The appellate authority
dismissed the appeal and the Tribunal also dismissed the O.A.
So, finding on proof of charge was concurrently recorded against
the petitioner in all the three stages.
17. Learned counsel for the respondents next submitted that
the disciplinary authority-5th respondent, who passed the order of
removal, is not below the rank of the applicant’s appointing
authority-3rd respondent. So, the contention that the applicant
could not be removed from service by an authority below in rank
than the appointing authority, does not hold good.
11
18. Learned counsel for the respondents further submitted that
the vigilance check was conducted following the provisions of
Vigilance Manual. The applicant admitted the receipt of Rs.500/-
from the complainant in his reply dated 03.11.2009 but his
defense that the amount was being repaid by the complainant
towards the cash loan taken from the applicant could not be
established. The disciplinary authority and the appellate authority,
as observed by the Tribunal, were not from the vigilance
department. So, there was no illegality in the order of the Tribunal
which called for no interference in the exercise of the writ
jurisdiction.
V. POINT FOR DETERMINATION:
19. The point that arises for consideration and determination is
as to whether in the light of the submissions advanced the
impugned order of the Tribunal deserves to be maintained or it
calls for interference by this Court?
VI. ANALYSIS:
20. We have considered the aforesaid submissions and
perused the material on record.
21. We would discuss the point under different heads as
follows:
12
i) APPOININTING AUTHORITY:
22. The ‗appointing authority’ and the ‗disciplinary authority’
have been defined under rule 2(1)(a) and Rule 2(1) (c) of the
Railway Servants Rules, 1968 as under:
“2. Definitions.- (1) In these rules, unless the context otherwise
requires –
(a) “appointing authority” in relation to a railway servant means –
i. the authority empowered to make appointments to the service of
which the railway servant is, for the time being, a member or to the
grade of the service in which the railway servant is, for the time
being, included, or
ii. the authority empowered to make appointments to the post which
the railway servant, for the time being holds, or
iii. the authority which appointed the Railway servant to such Service,
grade or post, as the case may be, or
iv. Where the Railway servant having been a permanent member of
any other Service or having substantively held any other permanent
post, has been in continuous employment under the Ministry of
Railways, the authority which appointed him to that service or to any
grade in that service or to that post: Whichever authority is the
highest authority.‖
23. Rule 2(1) (c) of the Rules, 1968 reads as under:-
13
―(c)disciplinary authority” means- i. in relation to the imposition of
a penalty on a Railway servant, the authority competent, under
these rules, to impose on him that penalty; ii. in relation to Rule
9 and clauses(a) and (b) of sub-rule (1) of Rule 11 in the case of
any Gazetted Railway Servant, an authority competent to
impose any of the penalties specified in Rule 6; iii. in relation to
Rule 9 in the case of any nongazetted railway servant, an
authority competent to impose any of the major penalties
specified in Rule 6; iv. in relation to clauses (a) and (b) of sub
rule (1) of Rule 11, in the case of a non-gazetted railway
servant, an authority competent to impose any of the penalties
specified in Rule 6.‖
24. In Scientific Adviser to the Ministry of Defence and
others v. S. Daniel7 which was a case also under Railway
Servants (Discipline and Appeal) Rules, 1968, the question fell for
consideration was with respect to the appointing authority. Rules
2 (a), 9, 12, 13 of the Central Civil Services (Classification,
Control & Appeal) Rules, 1965 were also for consideration.
Under Rule 2 (1) (a), 2 (1) (c) and 7 & 8 of the Rules 1968,
referring to the definition of the ‗appointing authority’, the
‗disciplinary authority’, the Hon’ble Apex Court made an elaborate
consideration on the basic question whether in the context of
Rule 2(a) read with Rule 9(1) of the Central Service Rules, the
reference to the ‗authority empowered to make the appointment’
7
1990 SCC OnLine SC 474
14
is to which authority. For our purposes, with respect to rule 2 (a)
of 1968 rules which is same as rule 2 (a) of Central Service Rules
1965, the Hon’ble Apex Court held that on a proper and
harmonious reading of Rule 2(a), sub-rule (a) of Rule 2 only
envisages the authority to whom the power of appointment has
been delegated. It is apt to refer paras – 8 and 15 as under:
―8. To turn, next, to the railway cases, we are concerned with
appointees to Group C and Group D of the services, which
correspond to Class III and Class IV of the Civil Service. In respect of
these persons, the relevant provisions are as follows:
―2.(1)(a) ‗Appointing Authority’, in relation to railway servant,
means –
(i) the authority empowered to make appointments to the service of which
the railway servant is, for the time being, a member or to the grade of
the Service in which the railway servant is, for the time being,
included, or
(ii) the authority empowered to make appointments to the post which the
railway servant, for the time being holds, or
(iii) the authority which appointed the railway servant to such Service,
grade or post, as the case may be, or
(iv) where the railway servant having been a permanent member of any
other Service or having substantively held any other permanent post,
has been in continuous employment under the Ministry of Railways,
the authority which appointed him to that Service or to any grade in
that Service or to that post whichever 20authority is highest
authority.‖
―2.(1)(c) ‘Disciplinary Authority’ means –
15
(i) in relation to the imposition of a penalty on a railway servant, the
authority competent, under these rules, to impose on him that
penalty;
(ii) in relation to Rule 9 and clauses (a) and (b) of sub-rule (1) of Rule 11
in the case of any gazetted railway servant, an authority competent to
impose any of the penalties specified in Rule 6;
(iii) in relation to Rule 9 in the case of any non-gazetted railway servant,
an authority competent to impose any of the major penalties specified
in Rule 6;
(iv) in relation to clauses (a) and (b) of sub-rule (1) of Rule 11, in the case
of a non-gazetted railway servant, an authority competent to impose
any of the penalties specified in Rule 6.‖
―7. Disciplinary authorities.–(1) The President may impose any of
the penalties specified in Rule 6 on any railway servant.
(2) Without prejudice to the provisions of sub-rule (1), any of the
penalties specified in Rule 6 may be imposed on a railway servant by
the authorities as specified in Schedules I, II and III.
(3) The disciplinary authority in the cases of a railway servant
officiating in a higher post, shall be determined with reference to the
officiating post held by him at the time of taking action.‖
―8. Authority to institute proceeding.–(1) The President, or any
other authority empowered by him, by general or special order, may
20-
(a) institute disciplinary proceedings against any railway servant;
(b) direct a disciplinary authority to institute disciplinary proceedings
against any railway servant on whom that disciplinary authority is
competent to impose, under these rules, any of the penalties
specified in Rule 6.
(2) A disciplinary authority competent under these rules to impose
any of the penalties specified in clauses (i) to (iv) of Rule 6 may,
subject to the provisions of clause (c) of sub-rule (1) of Rule 2,
institute disciplinary proceedings against any railway servant for
imposition of any of the penalties specified in clauses (v) to (ix) of
16Rule 6, notwithstanding that such disciplinary authority is not
competent under these rules, to impose any of the latter penalties.‖
Schedule II referred to in Rule 7(2) lays down that an order of
compulsory retirement, removal or dismissal from service may be
ordered, in the case of a Group C or Group D railway servant by the
appointing authority or authority equivalent in rank of any higher
authority and Note 2 to the Schedule mentions that such an authority
may also impose any of lower penalty. Under Rule 275 of the Railway
Establishment Code (Vol. I), which deals with the recruitment, training
and promotion of Group C and Group D railway servants, the
authority competent to make a first appointment is the General
Manager or any lower authority to whom he may delegate the power.
The General Manager of each railway has delegated his powers
under several heads. One set of the Schedule of Delegation of
Powers by the General Manager of the Southern Railway in
Establishment Matters has been set out in some detail in the order of
the Central Administrative Tribunal (CAT) in the case of Gafoor Mia
Kausal v. Director, DMRL [(1988) 6 ATC 675] (which is one of the
orders in appeal before us). It is neither useful nor necessary to
repeat them here in extenso. Here also, the argument is that,
notwithstanding the delegation of powers of appointment of Group C
and Group D employees to various other zonal officers, the General
Manager has not divested himself of the power to make such
appointments and continues to be the ‗appointing authority’. Being
the highest among the various appointing authorities, he alone stands
vested with the power to institute disciplinary proceedings and
impose penalties. It is, therefore, submitted that the disciplinary
proceedings, in the cases under this batch, initiated by the Divisional
Superintendent and like officers were without jurisdic∼tion and were
rightly quashed by the CAT in Gafoor Mia case [(1988) 6 ATC 675] ,
already referred to, and the decisions in the other matters before us
following the said decisions.‖
17
“15. Still the basic question that remains is, whether, in the
context of Rule 2(a) read with Rule 9(1), the reference to the authority
empowered to make the appointment is to the authority mentioned in
the proviso to Rule 9 or to both the authorities falling under the main
part of Rule 9(1) as well as the proviso. The sheet anchor of the
respondent’s case is that the expression ‗appointing authority’ is used
in very few of the rules. One of them is Rule 12 and there can,
therefore, be no valid reason to refuse to apply the definition clause in
the context of those rules. It is urged that, by holding the person
specified in the schedule also to be the ‗appointing authority’ as
defined in Rule 2(a), none of the other rules relating to appeal,
revision, etc. become redundant as urged on behalf of the appellants.
We agree with the respondents that the expression ‗appointing
authority’ in Rule 12 should have the meaning attributed to it in Rule
2(a). But what is the real and true interpretation of Rule 2(a)? What
does that sub-rule talk when it refers to a ‗person empowered to
make the appointment’ in question? These words clearly constitute a
reference to Rule 9. Does Rule 2(a) refer then to the authority
empowered by the schedule to make the appointments or the
authority to whom he has delegated that power or both? We think, on
a proper and harmonious reading of Rule 2(a) and Rule 9, that sub-
rule (a) of Rule 2 only envisages the authority to whom the
power of appointment has been delegated under Rule 9 and not
both the delegator and the delegate. We have come to this
conclusion for a number of reasons. In the first place, it is clear, on
the plain language of Rule 2(a), that it directs the ascertainment
of the authorities specified, in such of clauses (i) to (iv) of the
rule as may be applicable to a particular case and designates the
highest of them as the „appointing authority‟. It envisages
only one authority as falling under each of these clauses and not
more. The respondent’s contention which involves interpretation of
clause (i) or (ii) as contemplating more than one authority runs
counter to the tenor of the rule. Secondly, the strictly literal meaning
18
of Rule 2(a) insisted upon by the respondents would render the rules
unworkable. For instance, under clause (i), one of the authorities to
be considered is the ‗authority empowered to make appointments to
the service of which the government servant is for the time being a
member’. The respondents belong to one of the Central Civil
Services. Though they belong to Class III or Class IV, there are Class
I and Class II officers as well therein. Rule 8 declares that only the
President can make appointments to Class I in the service. If each of
the clauses is read as envisaging a plurality of authorities as
contended for and if clause (i) is literally interpreted, it will also
include the President who is one of the authorities empowered to
make appointments to the service of which the concerned employee
is a member. This will render the entire gamut of the rules
unworkable. On this interpretation, the President will be the only
appointing authority under Rule 2(a) in all cases, being the highest of
the authorities envisaged therein. This cannot clearly be correct. Rule
2(a) does not contemplate any authority other than the one
empowered to appoint a person belonging to the post or grade which
the concerned government employee holds. In that sense the two
parts of clause (i) and clause (ii) are not to be read distributively to
ascertain the authority empowered to make appointments (a) to the
service (b) to the grade and (c) to the post and consider the highest
of them. One has to restrict oneself to the post or grade of the
government servant concerned and invoke clause (i) or (ii) as the
case may be. Thirdly, the whole purpose and intent of Rule 2(a) is to
provide that appointing authority means either the de facto or the de
jure appointing authority. It will be appreciated that, generally
speaking, only the de jure authority can make the appointment but,
occasionally, a superior authority or even a subordinate authority
(with his consent) could have made the appointment. Again it is
possible that the authority empowered to make the appointment at
the time when relevant proceedings in contemplation may be higher
or lower in rank to the authority which was empowered to make the
19
appointment or which made the appointment at a different point of
time. The whole intent or purpose of the definition to safeguard
against an infringement of Article 311(1) and ensure that a person
can be dealt with only by either a person competent to appoint
persons of his class or the person who appointed him, whoever
happens to be higher in rank. That rule is not infringed by the
interpretation placed by the appellants. The provisions of Schedule II
in the case of the railways which specify the appointing authority or
an authority of equivalent rank or any higher authority as the
disciplinary authority are also consistent with this interpretation.
Fourthly, the interpretation sought to be placed by the respondents on
Rule 2(a) is artificial and strained. It amounts to saying that a person
who is empowered to appoint a government servant (as the Director,
DERL, for example, undoubtedly is) and who has also appointed him
will not be the appointing authority, because, theoretically, even a
more superior authority could have appointed him despite having
delegated his authority in this regard to a subordinate. On the
contrary, the interpretation urged by the Union will not adversely
affect the few employees, if any, who may be appointed by a superior
scheduled authority despite delegation of such power to a
subordinate authority. For, in such a case, the superior authority
would be the person who has factually appointed such an employee
and he will clearly be the ‗appointing authority’ by virtue of Rule 2(a).
Lastly, the interpretation sought for by the Union is consistent with
practical consideration. The appointing authority under the Schedule
is a high-ranking authority and, in an organisation like the railways for
instance, it will be virtually impossible for him to consider each and
every case of appointment of, or disciplinary action against all the
Class III or Class IV employees in the organisation. It is indeed this
realisation that has rendered necessary delegation of the power of
appointment and cannot be ignored, in the absence of compelling
reasons, in the matter of disciplinary powers.‖
20
25. The Tribunal in its order considered this aspect. The
contention of the petitioner applicant was that the 5th respondent
the Senior Divisional Personnel Officer, South Central Railway,
Guntkal Division, Ananthapur District was not the appointing
authority/disciplinary authority. The respondent’s contention was
that the applicant/petitioner was appointed to the post of Junior
Clerk by the 3rd respondent i.e the Senior Divisional Personnel
Officer, Vijayawada Division, South Central Railway, and was not
appointed by the 2nd respondent-the Additional Divisional Railway
Manager, though the prior approval of such authority was
obtained but the approval would not make 2nd respondent the
appointing authority. The authority which issued the appointment
order was the appointing authority. The Senior Divisional
Personnel Officer, Guntakal Division was equivalent to the rank of
Senior Divisional Personnel Officer, Vijayawada so, he was
competent authority to remove the applicant/petitioner. The
petitioner’s appointing authority is the Senior Divisional Personnel
Officer, Vijayawada Division and the order of removal was also
passed by an authority of equivalent rank.
21
26. With respect to the ‗appointing authority’ of the petitioner,
there is no dispute that he was appointed by Senior Divisional
Personnel Officer, Vijayawad. There is also no dispute that he
was removed by the Senior Divisional Personnel Officer,
Guntakal. It is so evident from the order of the appointment of the
petitioner to the post of Junior Clerk-cum-Typist. The approval to
that promotional panel by the Additional Divisional Railway
Manger, Vijayawada Division, South Central Railways, the 2nd
respondent, would not have the effect of changing the appointing
authority actually appointing the Senior Divisional Personnel
Officer, under Rule 2 (a), unless it was shown that the approval
required to the panel of selection by the 2nd respondent would
make the 2nd respondent an authority ‗empowered to make the
appointment’ in Rule 2 (a). In such a case, only the question of
the highest authority under Clause (i) to (iv) of sub-rule 2 (a)
might arise. It has not been brought to our notice that the 2nd
respondent was empowered to make the appointments to the
post of Junior Clerk-cum-Typist. It is further not the case of the
petitioner that the Senior Divisional Personnel Officer, Guntakal,
the authority which passed the penalty order of the petitioner, is
not of the rank of Divisional Personnel Officer at Vijayawada
22
Division. Consequently, we are of the view that the appointment
of the applicant having been made by the Senior Divisional
Personnel Officer, Vijayawada Division, his removal from service
by the authority of the same rank at Guntakal Division was not by
an authority inferior to the appointing authority. It, being by an
authority of equal rank, there would be no violation of the
provisions of Article 311 (1) of the Constitution of India. The
argument to the above effect is unacceptable and is rejected.
27. In Dharam Dev Mehta (supra), upon which the learned
counsel for the petitioner placed reliance, the question was as to
who was the appointing authority of the appellant therein, who
was retired under Rule 56(j) of the Fundamental Rules. In Rule
2(a) of C.C.S. (C.C.A) Rules, 1965, after setting out the
alternative authorities, the appointing authority was said to be one
out of those four categories who was the highest. It was held that
the authority one falling under sub rule(3) i.e., Controller and
Auditor General was the highest, but the order of retirement was
issued by the Director of Commercial of Audit, a lower authority.
So, it was held that the order of compulsory retirement was not by
the competent authority.
23
28. In Krishna Kumar (supra), upon which also learned
counsel for the petitioner placed reliance, the appellant therein
was appointed by the Chief Electrical Engineer and was removed
from the service by the order passed by an authority who was
subordinate in rank to the Chief Electrical Engineer, on the date
of the appointment. So, it was held that such officer had no
power to remove from service and the order of removal violated
the principles of Article 311(1) of the Constitution of India. In the
present case the petitioner has been removed by an authority of
the rank equivalent to the appointing authority and not by an
authority, subordinate to the appointing authority.
29. In M. Chandrasekhar (supra) the question was with
respect to Group ‗C’ Officers for which the appointing authority, as
also the disciplinary authority was the Junior Administrative Grade
Officer. The order of removal from service was passed by the
Junior Administrative Grade Officer. The 2nd respondent therein
had joined the service as Section Engineer (Dsl-Elec.,) in
Guntakal Division, South Central Railway. Consequent to the
decision of the Railway Board to merge Section Engineer with
that of Senior Section Engineer, the 2nd respondent therein was
24
inducted as Senior Section Engineer and while working in the
said capacity, the disciplinary proceedings were initiated.
Punishment of removal was imposed which was challenged and
one of the contentions raised was that the Senior Divisional
Mechanical Engineer//DSL/Gooty was not competent to impose
punishment. The Tribunal found that the Senior Administrative
Grade Officer appointed the 2nd respondent as Senior Section
Engineer and the order of removal was passed by the Junior
Administrative Grade Officer, below the rank of appointing
authority and there was violation of Article 311 (1) of the
Constitution of India, so, the order of removal from service was
set aside. The writ petition was filed by the Railways. The
erstwhile Andhra Pradesh High Court held that a person can be
elevated in status either in the form of up-gradation of post or in
the form of promotion. The element of elevation may result in
higher status in hierarchy, higher emoluments attached to the
post concerned and discharge of higher duties and
responsibilities. The 2nd respondent therein, the Senior Section
Engineer was an elevation of status and emoluments from the
post of Section Engineer. Such elevation was granted by the
order of the Chief Personnel Officer. The Chief Personnel Officer
25
as also the Chief Motive Power Engineer, as the contention
advanced therein was that the Chief Motive Power Engineer
granted elevation, the Court found that both were in the cadre of
Senior Administrative Grade. So, whether it was by the Chief
Motive Power Engineer or by the Chief Personnel Officer, the
elevation of status was granted by the Officer in rank of Senior
Administrative Grade and the order of removal was by an Officer
in the rank of Junior Administrative Grade. So, there was
violation of Article 311 of the Constitution of India.
30. In this case, the order of removal is not by an authority
below the rank of the petitioner’s appointing authority. So, there is
no violation of Article 311(1) of the Constitution of India or the
principles underlying that provision. The judgments cited by the
petitioner’s counsel are of no help to the petitioner on this point.
ii. Violation of provisions of Vigilance Manual:
31. We would now consider if there is violation of the
provisions of the Vigilance Manual in laying the Vigilance
trap. Paras 704 and 705 of the Vigilance Manual deserve
reference.
26
32. Para 704 of the Vigilance Manual provides the
important points to be kept in view when laying the trap and
as per sub para (5)
(a) Two or more independent witnesses must hear the
conversation, which should establish that the money was
being passed as illegal gratification to meet the defence that
the money was actually received as a loan or something
else, if put up by the accused.
(b) The transaction should be within the sight and hearing of
two independent witnesses.
(c) There should be an opportunity to catch the culprit red-
handed immediately after passing of the illegal gratification
so that the accused may not be able to dispose it of.
(d) The witnesses selected should be responsible witnesses
who have not appeared as witnesses in earlier cases of the
department or the police and are men of status, considering
the status of the accused. It is safer to take witnesses who
are Government employees and of other departments.
(e) After satisfying the above conditions, the Investigating
Officer should take the decoy to the SP/SPE and pass on
the information to him for necessary action. If the office of
the S.P., S.P.E., is not nearby and immediate action is
required for laying the trap, the help of the local police may
be obtained. It may be noted that the trap can be laid only
by an officer not below the rank of Deputy Superintendent
27
of Local Police. After the S.P.E. or local police official have
been entrusted with the work, all arrangements for laying
the trap and execution of the same should be done by
them. All necessary help required by them should be
rendered.
33. As per para 705 for the departmental traps the instructions
given thereunder are further required to be followed in adition to
the instructions in para 704. As per this para 705,
(a) The Investigating Officer/Inspector should arrange two gazetted
officers from Railways to act as independent witnesses as far as
possible. However, in certain exceptional cases where two gazetted
officers are not available immediately, the services of non-gazetted
staff can be utilised.
All railway employees, particularly, gazetted officers, should assist
and witness a trap whenever they are approached by any officer or
Vigilance branch. The Head of Vigilance Branch detail a suitable
person or persons to be present at the scene of trap. Refusal to
assist or witness a trap without a just cause/without sufficient reason
may be regarded as a breach of duty, making him liable to
disciplinary action.
(b) The decoy will present the money which he will give to the
defaulting officers/employees as bribe money on demand. A memo
should be prepared by the Investigating Officer/Inspector in the
presence of the independent witnesses and the decoy indicating the
numbers of the G.C. notes for legal and illegal transactions. The
memo, thus prepared should bear the signature of decoy,
independent witnesses and the Investigating Officer/Inspector.
Another memo, for returning the G.D. notes to the decoy will be
28
prepared for making over the G.C. notes to the delinquent employee
on demand. This memo should also contain signatures of decoy,
witnesses and Investigating Officer/Inspector. The independent
witnesses will take up position at such a place where from they can
see the transaction and also hear the conversation between the
decoy and delinquent, with a view to satisfy themselves that the
money was demanded, given and accepted as bribe a fact to
which they will be deposing in the departmental proceeding at a
later date. After the money has been passed on, the Investigating
Officer/Inspector should disclose the identity and demand, in the
presence of the witnesses, to produce all money including private,
Railway and bribe money. Then the total money produced will be
verified from relevant records and memo for seizure of the money
and verification particulars will be prepared. The recovered notes
will be kept in an envelope sealed in the presence of the witnesses,
decoy and the accused as also his immediate superior who should
be called s a witness in case the accused refuses to sign the
recovery memo, and sealing of the notes in the envelope.
34. As per para 704 of Vigilance Manual, when laying a trap,
two or more independent witnesses are required, who must hear
the conversation which should establish that the money was
being passed as illegal gratification. The transaction should be
within the sight and hearing of two independent witnesses. The
witnesses should be responsible witnesses who should not have
appeared as witnesses in earlier cases of the department. It is
safer to take witnesses who are Government employees and
other departments. Para 705 of the Vigilance Manual also
29
contains the instructions in addition to those in para 704. It also
emphasis for two Gazetted Officers of Railway to act as
independent witnesses as far as possible. However, in certain
exceptional cases where the gezetted officers are not available
immediately the services of non gazette staff can be utilized.
35. As per para 705 clause(b) of the Railway Vigilance Manual,
clause (b), the decoy will present the money which he will give to
the defaulting officers/employees as bribe money on demand. A
memo should be prepared by the Investigating Officer/Inspector
in the presence of the independent witnesses and the decoy
indicating the numbers of the G.C.notes for legal and illegal
transactions. The memo thus prepared should bear the signature
of the decoy, independent witnesses and the investigating
officer/inspector. The para 705 further requires another memo for
returning G.D.notes to the decoy will be prepared for making
over the G.C.notes to the delinquent employee on demand. This
memo should also contain signatures of decoy, witnesses and
investigating officer/inspector.
36. We find from the record of the petition enquiry R1 that
the memo Ex.P.4, was not signed by two independent
witnesses. It was signed only by one witness, besides the
30
decoy and the Vigilance Inspector. The requirement under
paras 704 (a) and 705(a) and (b) is of two independent
witnesses signing the memo. Such requirement is also for
their position to hear the conversation and see the
transaction between the decoy and the delinquent signing of
the memo by two independent witnesses was not complied.
Para 705 which provides for two Gazetted Officers from
Railway to act as independent witnesses, though uses the
expression ‗as far as possible’ in Clause(a), proviso further
that in certain exceptional cases where two Gazetted
Officers are not available immediately, the services of non
gazette staff can also be utilized, in our view, as far as
possible, refers to the Gazetted Officers. If the Gazetted
Officers are not immediately available, the service of non
gazette staff could be utilized. But, the requirement of two
independent witnesses is not dispensed with. So, even in
the absence of the Gazetted Officers, there should be two
independent witnesses may be one gazetted and one non
gazetted or two non gazette but there must be two
31
independent witnesses which follows from the reading of
704 (a) and 705(a) of the Vigilance Manual.
37. The applicant had clearly set up the case that the vigilance
inspector had given Rs.500/- to the decoy which was to be used
in the decoy check. His case was that the provision with respect
to the money being given by the decoy for which the memo was
to be prepared was not complied. Learned counsel for the
petitioner emphasized that the money was not given by decoy but
by vigilance inspector to the decoy. For this he referred to the
enquiry report, which refers to Ex.P-4, the test check memo as
also the evidence of PW 5, the Inspector Vigilance.
38. This is undisputed that the money was given by the
vigilance inspector to decoy which is also evident from the
documents annexed with the petition including Ex.P.4 as also the
statement of P.W.5. The Tribunal however observed that whether
money was given by decoy to the Vigilance Inspector or by
Vigilance Inspector to Decoy of which memo was prepared did
not make any material difference, as the money from vigilance
secret fund was used in decoy check. We are of the view that, in
the facts and circumstances of the case that the complaint was
directly received by Vigilance Inspector which was not even got
32
registered in the Vigilance Department, which is the petitioner’s
case, also evident from the statement of P.W.5, on record in
question-answer no.76, and further there being no written order
from the competent authority, though it was deposed by P.W.5
that he got oral instructions from Vigilance Officer; all indicated
that the entire proceedings were not as per the Vigilance Manual.
So, the giving of the money by Vigilance Inspector to the decoy
was an important and relevant factor in which, the strict
compliance with para-705 of Vigilance Manual should have been
considered by the Tribunal.
39. The Tribunal appears to have taken aforesaid view, as it
was of the further view that the paragraphs of the Vigilance
Manual were directory and not mandatory. So, the violation
thereof did not prejudice the petitioner.
40. Learned counsel for the petitioner placed reliance in Moni
Shankar (supra) and B.S. Purushotham (supra) to contend that
the Paras 704 and 705 of Vigilance Manual are not merely
directory.
41. In B.S. Purushotham (supra), a Coordinate Bench of this
Court, inter alia considered the point as to whether the violation of
Paras 704 and 705 of the Vigilance Manual vitiated the
33
disciplinary proceedings and the order of penalty could therefore
not be sustained. It was held on consideration of Chief
Commercial Manager v. G. Rathnam8 and Moni Shankar
(supra), that the safeguards provided to a railway employee
under Paras 704 and 705 of the Railway Vigilance Manual,1996,
could not be given a complete go-bye and in order to judge
whether the departmental proceedings stood vitiated or not the
cumulative effect of the illegalities/irregularities was required to be
taken into consideration.
42. In B.S. Purushotham (supra), this Court held as under in
paras 20 to 27:
―20. As per para 704 of Vigilance Manual, when laying a
trap, two or more independent witnesses are required, who
must hear the conversation which should establish that the
money was being passed as illegal gratification. The
transaction should be within the sight and hearing of two
independent witnesses. The witnesses should be
responsible witnesses who should not have appeared as
witnesses in earlier cases of the department. It is safer to
take witnesses who are Government employees and other
departments. Para 705 of the Vigilance Manual also contains
the instructions in addition to those in para 704. It also
emphasis for two Gazetted Officers of Railway to act as
independent witnesses.
8
(2007) 8 SCC 212
34
21. In Chief Commercial Manager v. G. Ratnam1, upon
which the learned counsel for the petitioner placed reliance,
the Hon’ble Apex Court held that the instructions contained
in Paragraphs 704 and 705 of the Vigilance Manual, 1996
are procedural in character and not of a substantive nature.
The violation thereof, if any, by the investigating officer in
conducting departmental trap cases would not ipso facto
vitiate the departmental proceedings initiated against the
respondents on the basis of the complaints submitted by the
investigating officers to the railway authorities. It was also
observed that the instructions under paras 704 and 705 of
the Manual were issued not for the information of the
accused in the criminal proceedings or delinquent in the
departmental proceedings, but for the information and
guidance of the investigating officers.
22. In Chief Commercial Manager (supra), the Hon’ble Apex
Court declined to agree that the non-adherence of the
mandatory instructions and guidelines contained in
paragraphs 704 and 705 of the Manual vitiated the
departmental proceedings against the railway authorities.
23. Paras 19 and 24 of the Chief Commercial Manager
(supra) are reproduced as under:
―19. We are not inclined to agree that the non-adherence of
the mandatory Instructions and Guidelines contained in
paragraphs 704 and 705 of the Vigilance Manual has
vitiated the departmental proceedings initiated against the
respondents by the Railway Authority. In our view, such
35finding and reasoning are wholly unjustified and cannot be
sustained.
24. On consideration of the foregoing facts and in the teeth
of the legal aspect of the matter, we are of the view that the
instructions contained in paragraphs 704 and 705 of the
Vigilance Manual, 1996 are procedural in character and not
of a substantive nature. The violation thereof, if any, by the
investigating officer in conducting departmental trap cases
would not ipso facto vitiate the departmental proceedings
initiated against the respondents on the basis of the
complaints submitted by the investigating officers to the
railway authorities. The instructions as contemplated under
paragraphs 704 and 705 of the Manual have been issued
not for the information of the accused in the criminal
proceedings or the delinquent in the departmental
proceedings, but for the information and guidance of the
investigating officers.‖
24. The Chief Commercial Manager (supra) was considered in
Moni Shankar vs. Union of India and another ((2008) 3 SCC 484).
25. In Moni Shankar (supra), the departmental proceedings were
initiated based on a decoy check. One of the points was whether non-
adherence of the instructions as laid down in paragraphs 704 and 705
of the Manual would invalidate the departmental proceedings. The
Hon’ble Apex Court held that with a view to protect the innocent
employees from traps, appropriate safeguards were provided in the
Railway Manual in paras 704 and 705. The Hon’ble Apex Court
observed that the case of Chief Commercial Manager (supra)
proceeded on the premise that the executive orders do not confer any
36
legally enforceable rights on any person and impose no legal
obligation on the subordinate authorities for whose guidance they are
issued. The Apex Court emphasized in Moni Shankar (supra) that
the total violation of the guidelines together with other factors
could be taken into consideration for the purpose of arriving at a
conclusion as to whether the department has been able to prove
the charges against the delinquent official. In Moni Shankar
(supra), the Apex Court held that Para 705 of the Manual was also
very relevant. If the safeguards are provided to avoid false
implication of a railway employee, the procedures laid down
therein could not have been given a complete go bye.
26. It is apt to reproduce Paras 15 to 17 and 26 to 30 of Moni Shankar
(supra) as under:
―15. It has been noticed in that judgments that Paras 704 and 705
cover the procedures and guidelines to be followed by the
investigating officers, who are entrusted with the task of
investigation of trap cases and departmental trap cases against the
railway officials. This Court proceeded on the premise that the
executive orders do not confer any legally enforceable rights on
any persons and impose no legal obligation on the subordinate
authorities for whose guidance they are issued.
16. We have, as noticed hereinbefore, proceeded on the
assumption that the said paragraphs being executive instructions
do not create any legal right but we intend to emphasise that total
violation of the guidelines together with other factors could be taken
into consideration for the purpose of arriving at a conclusion as to
whether the department has been able to prove the charges
against the delinquent official.
37
17. The departmental proceeding is a quasi judicial one. Although
the provisions of the Evidence Act are not applicable in the said
proceeding, principles of natural justice are required to be complied
with. The Court exercising power of judicial review are entitled to
consider as to whether while inferring commission of misconduct
on the part of a delinquent officer relevant piece of evidence has
been taken into consideration and irrelevant facts have been
excluded therefrom. Inference on facts must be based on evidence
which meet the requirements of legal principles. The Tribunal was,
thus, entitled to arrive at its own conclusion on the premise that the
evidence adduced by the department, even if it is taken on its face
value to be correct in its entirety, meet the requirements of burden
of proof, namely preponderance of probability. If on such
evidences, the test of the doctrine of proportionality has not been
satisfied, the Tribunal was within its domain to interfere. We must
place on record that the doctrine of unreasonableness is giving way
to the doctrine of proportionality. (See – State of U.P. v. Sheo
Shanker Lal Srivastava, (2006) 3 SCC 276 and Coimbatore District
Central Cooperative Bank v. Coimbatore District Central
Cooperative Bank Employees Association, (2007) 4 SCC 669.
26. The High Court has only noticed paragraph 704 of the
Manual and not the paragraph 705 thereof. Paragraph 705 was
very relevant and in any event both the provisions were
required to be read together. The High Court, thus, committed a
serious error in not taking into consideration paragraph 705 of
the Manual. The approach of the High Court, in our opinion,
was not entirely correct. If the safeguards are provided to avoid
false implication of a railway employee, the procedures laid
down therein could not have been given a complete go bye.
27. It is the High Court who posed unto itself a wrong question. The
onus was not upon the appellant to prove any bias against the RPF,
but it was for the department to establish that the charges leveled
against the appellant.
38
28. The High Court also committed a serious error in opining that
sub-rule (21) of Rule 9 of the Rules was not imperative. The purpose
for which the sub-rule has been framed is clear and unambiguous.
The railway servant must get an opportunity to explain the
circumstances appearing against him. In this case he has been denied
from the said opportunity.
29. The cumulative effect of the illegalities/irregularities were
required to be taken into consideration to judge as to whether the
departmental proceeding stood vitiated or not.
30. For the aforementioned purpose, the manner in which the
enquiry proceeding was conducted was required to be taken into
consideration by the High Court. The trap was not conduced in terms
of the Manual ; the Enquiry Officer acted as a Prosecutor and not as
an independent quasi judicial authority ; he did not comply with Rule
9(21) of the Rules, evidently, therefore, it was not a case where the
order of the Tribunal warranted interference at the hands of the High
Court.
27. Thus, it is well settled in law that the safeguards provided to
a railway employee under Paras 704 and 705 of the Railway
Vigilance Manual, 1996, cannot be given a complete gobye and
in order to judge whether the departmental proceedings stood
vitiated or not the cumulative effect of illegalities/irregularities is
required to be taken into consideration.”
43. So, there is violation of paras 704, 705 of Vigilance
Manual, which could not be given a complete go bye.
iii. Enquiry Officer from Vigilance Department and No
Presenting Officer:
39
44. The Enquiry Officer was from the Vigilance Department
functioning under the Control of Chief Vigilance officer of the
South Central Railway. The Tribunal observed that the
disciplinary and the appellate authority were not from the
Vigilance Department and had formed opinion by independent
application of mind and so no case for bias or prejudice in the
enquiry report or in the order of the disciplinary/appellate
authority has. The view taken by the Tribunal is not correct. The
disciplinary and the appellate authority may not have been from
Vigilance Department but enquiry officer was certainly from
Vigilance Department functioning under the control of Chief
Vigilance Officer.
45. In Union of India and others vs. Prakash Kumar
Tandon9, the Inquiry Officer was the Chief of the Vigilance
Department. The Hon’ble Apex Court held that with a view to be
fair to the delinquent officer he should not have been appointed
as an enquiry officer at all. Para 12 reads as under:
―12. The disciplinary proceedings were initiated only after
a raid was conducted by the Vigilance Department. The
enquiry officer was the Chief of the Vigilance Department. He
evidently being from the Vigilance Department, with a view to9
(2009)2 SCC 541
40be fair to the delinquent officer, should not have been
appointed as an enquiry officer at all.
46. The Presenting Officer was also not appointed.
47. On behalf of department, 5 witnesses were produced. It is
clear from perusal of the evidences of PWs 1 to 5 annexed to the
writ petition that, they were examined in chief by the Enquiry
Officer. The Enquiry Officer took the role of the Presenting
Officer, which is not at all permissible for the Enquiry Officer in
discharge of his duties. The Enquiry Officer has to be
independent and impartial. The Enquiry Officer took the role of
the Presenting Officer. He also re-examined two of the PWs
which reflects that the enquiry officer at some point of time,
considering that the cross examination of those two PWs by the
defence side, might have been beneficial or advantageous to the
delinquent, thought it fit to re-examine those PWs. This re-
examination of those witnesses is prima facie indicating that the
enquiry officer was playing the active role of the presenting officer
during the enquiry. In our view, this should not be the function of
the enquiry officer of its own. That should be in the decision of the
presenting officer for the department. If such a role is played by
the enquiry officer, in the absence of the presenting officer, it can
41
be said that the enquiry officer was actively playing the role of
the presenting officer.
48. The enquiry officer, law is well settled, is to be impartial for
a fair enquiry, without there being any likelihood of bias towards
the delinquent. We reiterate the settled principle that the
impartiality of the enquiry requires that it should also be seen to
be impartial and fair to both the sides.
49. In B. S. Purushotham (supra) the facts were that the
Presenting Officer was not appointed. The Coordinate Bench of
this Court considering the judgment in the case of Union of India
v. A. R. Rakesh10 observed that the principle to which the
concept of appointing a Presenting Officer owes its existence is
that the Enquiry Officer is required to maintain adequate distance
from both sides and to hold the scales even. So, the Enquiry
Officer should not act or conduct as Prosecutor/Representing
Officer.
50. Paras-28 to 30 of B. S. Purushotham (supra) read as
under:
―28. In the present case, the Presenting Officer was not
appointed and the appointed Enquiry Officer was working under
the Senior Deputy General Manager (Vigilance).
10
WP.No.26790/2015, APHC
Decided on 14.09.2015
42
29. In Union of India, rep. by the General Manager, S.C.
Railway, Secunderabad and others vs. A.R. Rakesh and another
(W.P.No.26790 of 2015 decided on 14.09.2015), it was observed that
the principle to which the concept of appointing a Presenting Officer
owes its existence is that the Inquiry Officer so appointed, no doubt,
by the very same disciplinary authority belongs to the same
department/unit, but is required to maintain adequate distance from
both sides. He is required to hold the scales even. He must
necessarily demonstrate that he is fairly objective and impartial
in his approach and mind. It was observed that justice must not
only be done, but it must appear to have been so done. The
Enquiry Officer should not act or conduct as prosecutor.‖
30. Para 7 of A.R. Rakesh (supra) reads as under:
―7. We are conscious that some times for sheer want of
adequate man-power, it may not be always possible for an Inquiry
Officer to be assisted by a Presenting Officer, but at the same time,
the principle to which the concept of appointing a Presenting Officer
owes its existence is that the Inquiry Officer so appointed, no doubt,
by the very same disciplinary authority belongs to the same
department/unit, but is required to maintain adequate distance from
both sides. He is required to hold the scales even. He must
necessarily demonstrate that he is fairly objective and impartial in his
approach and mind. Before a witness is introduced for examination or
before a witness examined on behalf of the employee is cross-
examined, a certain amount of briefing is required. Certain
information may have to be secured from various other sources
independently. Imagine the situation where the Inquiry Officer doing
the above acts behind the back of the employee and thereafter the
impression brought before him in the inquiry undertaken by him.
Therefore, it is always set out by the Constitutional Courts that
justice must not only be done, but it must appear to have been
so done. What would a Bungalow Peon expect from an Inquiry
Officer, who is also acting on behalf of the very same
43disciplinary authority who is conducting the prosecution as
well? Would it be fair to expect that the man, who is facing the
charge, will still have the same fair and fearless attitude that the
Inquiry Officer is an impartial individual and that he is objective
in his mind? That is why, we feel, that the concept that “no man
should be a judge in his own cause‟ has been developed to the
extent it has been done by the Indian Courts. Looked at it from
any perspective, we cannot approve the conduct of either the
Inquiry Officer or the Railways in litigating in the manner in
which they have done.‖
51. We are therefore of the view that the enquiry conducted by
the enquiry officer cannot be said to be a fair enquiry. At least the
likelihood of the enquiry being unfair, impartial and prejudicial to
the delinquent cannot be ruled out.
iv. COMPLIANCE WITH RULE 9(21) OF RULES, 1968:
52. Rule 9(21) of the Railway Servants (Discipline and Appeal)
rules, 1968 read as under:
―9.Procedure for Imposing Major Penalties:
“(21) The inquiring authority may, after the Railway servant closes
his case, and shall, if the Railway servant has not examined himself,
generally question him on the circumstances appearing against him
in the evidence for the purpose of enabling the Railway servant to
explain any circumstances appearing in the evidence against him.‖
53. The applicant had chosen not to examine himself. So, the
enquiry officer was required to question the applicant on the
44
circumstances appearing against him in the evidence to enable
him to explain those circumstances. The requirement is in
consonance with the principles of natural justice. The employee
must know the circumstances against him appearing in the
evidence, so that he may explain those circumstances.
54. After the examination of the witnesses, the enquiry officer
made general examination of the applicant by putting question
No.84, which is to the following effect.
―Q.84. So far documentary and oral evidence adduced during the
inquiry appears to go against you, what have you got to say?.
55. To the aforesaid question, the applicant, answered as
under:
Ans. I disagree with you suggestion that evidence adduced
during the inquiry is going against me. I will prove my
innocence duly submitting the details in my defence brief. A
false case was foisted against me with a ill will feeling and
bad motive by Smt G. Parameswari with the active support of
other members of other team. I may be given 15 days time to
submit my defence brief.‖
56. This provision Rule 9(2) requires strict compliance as it is
couched in a mandatory form by use of the expression ‗shall’ if the
railway servant has not examined himself. The question which
was put to the applicant i.e Question No.84, as reproduced above
45
shows that, such question is too general with no specifications. It
was vague as it did not disclose the circumstances appearing
against the applicant, in the evidence. Merely saying that the
documentary and the oral evidence adduced appears to go
against the applicant and what he had to say, is not a compliance
with rule 9(21) of the Rules, 1968. That part of the documentary
and the oral evidence adduced during enquiry which appeared to
be going against the applicant was to be specifically brought to the
notice of the applicant which was not done. In the absence of any
such disclosure, the applicant would have no opportunity to
explain the incriminating circumstances. This results in violation
of the principles of natural justice. The enquiry thus conducted
would not be a fair enquiry, giving a fair opportunity to applicant,
besides being violative of the statutory Rule 9(21).
57. In Moni Shankar (supra), the enquiry officer had put the
following questions to the appellant therein. Para 20 of the
judgment reads as under:
―20. The enquiry officer had put the following questions to
the appellant:
―Having heard all the PWs, please state if you plead
guilty? Please state if you require any additional
documents/witness in your defence at this stage?
Do you wish to submit your oral defence or written
46defence brief? Are you satisfied with the enquiry
proceedings and can I conclude the enquiry?‖
58. The Hon’ble Apex Court held that such a question did not
comply with the rule 9(21) of the rules. What were the
circumstances appearing against the appellant had not been
disclosed. Para 21 of Moni Shankar (supra) reads as under:
―21. Such a question does not comply with Rule 9(21) of the
Rules. What were the circumstances appearing against the
appellant had not been disclosed.‖
59. In Moni Shankar (supra), the Hon’ble Apex Court further
held that the High Court committed a serious error in opining that
rule 9(21) was not imperative.
60. In other words, we may say that, rule 9(21) was held
imperative. Para 28 of Monishankar (supra) reads as under:
―28. The High Court also committed a serious error in
opining that sub-rule (21) of Rule 9 of the Rules was not
imperative. The purpose for which the sub-rule has been
framed is clear and unambiguous. The railway servant
must get an opportunity to explain the circumstances
appearing against him. In this case he has been denied the
said opportunity.‖v. Order of the appellate authority:
61. Part V of the Rules, 1968 deals with ―appeals‖. Rule 18
provides as to what orders are appealable. An order imposing
47
any of the penalties specified in Rule 6, whether made by the
disciplinary authority or by any appellate authority or revising
authority, is appealable. Rule 19 deals with the appellate
authorities; Rule 20 provides for the period of limitation, and Rule
21 for the formation, contents and submission of appeal. Rule 22
provides for such consideration, the manner for consideration of
the appeal and what order the appellate authority may pass.
62. Rule 22 of the Rules, 1968 is reproduced as under:
―22 The inquiring authority may, after the completion of the
production of evidence, hear the Presenting Officer, if any, and
the railway servant, or permit them to file written briefs of their
respective cases, if they so desire.‖
63. Rule 22 of the Rules, 1968, makes it evident that the
appellate authority shall consider (a) whether the procedure laid
down in the rule has been complied and if not, whether such non
compliance has resulted in the violation of the provisions of the
Constitution of India or in the failure of justice (b) whether the
findings of the disciplinary authority are warranted by the evidence
on record and whether the penalty or the enhanced penalty
imposed is adequate or inadequate or severe. The appellate
authority, on such consideration has to pass the orders
48
confirming, enhancing, reducing or setting aside the penalty. It
may also remit the case to the authority which imposed or
enhanced the penalty or to any of the authority with such
directions as it may deem fit in the circumstances of the case.
64. Thus, what is relevant is the exercise of the appellate power
in the manner as provided by Rule 22. The appellate authority
has to see if the procedure laid down has been complied with and
what is the effect in case of non compliance. The findings of the
disciplinary authority are also to be tested to determine if such
findings are warranted by the evidence on record. It clearly
implies that the appellate authority has also to consider the
evidence on record, to make appreciation thereof so as to arrive
at the subject satisfaction as to whether the finding recorded by
the disciplinary authority are warranted in the light of the evidence
on record. It has also to see if the penalty imposed is adequate or
inadequate or severe i.e if the penalty is not disproportionate to
the proved charge. The order of the appellate authority is
therefore required to be a speaking order. The appeal cannot be
dismissed by a non speaking order without considering the
49
material aspects for consideration by the appellate authority as
envisaged by Rule 22(2).
65. Right of appeal, it is well settled in law, is a right conferred
by the statute. The findings of the appellate authority, generally
are taken as final and conclusive by the Tribunal and by the High
Court, except in certain circumstances, which are well recognised.
The scope of interference with such finding gets restricted and
restricted, firstly, before the Tribunal and thereafter under Article
226 of the Constitution of India before the High Court.
Consequently, the duty cast on the appellate authority is of greater
responsibility and is required to be discharged as per the
mandate of rule 22(2), which itself is termed in the statutory
mandatory form by the use of the expression, ―the appellate
authority shall consider”.
66. In Ramchander (supra), the question was whether the
order passed by the Railway Board dismissing the appeal was
inconformity with the requirements of rule 22(2) of the Railway
Servants Disciplinary Authority Appeal Rules 1968. The Hon’ble
Apex Court held that the duty to record the reasons is an incident
of the judicial process. Referring to the previous judgment, which
50
in almost similar circumstances interpreted Rule 22 of the Central
Servants Classification Control and Appeal Rule, 1965, in pari
materia with Rule 22 (2) of the Railway Servants Disciplinary
Authority Appeal Rules, 1968, it was held that the appellate
authority is required to consider (1) whether the procedure laid
down in the rules is complied and if not whether such non
compliance has resulted in violation of any of the provisions of the
Constitution of India or in the failure of justice. (2) whether the
finding of the disciplinary authority were warranted by the
evidence on record and (3) whether penalty imposed was
adequate inadequate or severe. The Hon’ble Apex Court held
that the word ‗consider’ implied due application of mind. It was
emphasised that the appellate authority discharging Quasi judicial
functions in accordance with natural justice must give reasons for
its decision. The appellate authority therein had not recorded as to
whether the findings of the disciplinary authorities were warranted
by the evidence on record. The Hon’ble Apex Court emphasised
that there should not be just a mechanical re-production and
exercise without any attempt either to appreciate the evidence on
record with a view to discharge whether the findings arrived at by
the disciplinary authority could be sustained or not. There was
51
also no indication whether the appellate authority applied its mind
as to whether the act of mis-conduct of which the employee had
been charged together with the attendant circumstances and his
past record, were such that he should have been visited with the
extreme penalty of removal from service. Dismissal or removal
from service was a matter of grave concern to a civil servant who
after a long period of service, might not deserve a harsh
punishment. The non compliance with the requirement of rule
22(2) of the Railway Servants Rules was held to be fatal to the
appellate order, which was held liable to be set aside.
67. Paras 4,5 and 9 of Ramachander (supra) deserve
reproduction as under:
―4. The duty to give reasons is an incident of the judicial
process. So, in R.P. Bhatt v. Union of India [(1986) 2 SCC
651] this Court, in somewhat similar circumstances,
interpreting Rule 27(2) of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965 which
provision is in pari materia with Rule 22(2) of the Railway
Servants (Discipline and Appeal) Rules, 1968, observed:
―It is clear upon the terms of Rule 27(2) that the
appellate authority is required to consider (1)
whether the procedure laid down in the rules has
been complied with; and if not, whether such non-
52
compliance has resulted in violation of any of the
provisions of the Constitution of India or in failure of
justice : (2) whether the findings of the disciplinary
authority are warranted by the evidence on record;
and (3) whether the penalty imposed is adequate;
and thereafter pass orders confirming, enhancing
etc. the penalty, or remit back the case to the
authority which imposed the same.‖It was held that the word ―consider‖ in Rule 27(2) of the Rules
implied ―due application of mind‖. The Court emphasized that
the appellate authority discharging quasi-judicial functions in
accordance with natural justice must give reasons for its
decision. There was in that case, as here, no indication in the
impugned order that the Director General, Border Road
Organisation, New Delhi was satisfied as to the aforesaid
requirements. The Court observed that he had not recorded
any finding on the crucial question as to whether the findings
of the disciplinary authority were warranted by the evidence
on record. In the present case, the impugned order of the
Railway Board is in these terms:
―(1) In terms of Rule 22(2) of the Railway Servants (Discipline
and Appeal) Rules. 1968, the Railway Board have carefully
considered your appeal against the orders of the General
Manager, Northern Railway, New Delhi imposing on you the
penalty of removal from service and have observed as under:
(a) by the evidence on record, the findings of the
disciplinary authority are warranted; and
53
(b) the penalty of removal from service imposed on you is
merited.
(2) The Railway Board have therefore rejected the appeal
preferred by you.‖
5. To say the least, this is just a mechanical
reproduction of the phraseology of Rule 22(2) of the Railway
Servants Rules without any attempt on the part of the Railway
Board either to marshal the evidence on record with a view to
decide whether the findings arrived at by the disciplinary
authority could be sustained or not. There is also no
indication that the Railway Board applied its mind as to
whether the act of misconduct with which the appellant was
charged together with the attendant circumstances and the
past record of the appellant were such that he should have
been visited with the extreme penalty of removal from service
for a single lapse in a span of 24 years of service. Dismissal
or removal from service is a matter of grave concern to a civil
servant who after such a long period of service, may not
deserve such a harsh punishment. There being non-
compliance with the requirements of Rule 22(2) of the
Railway Servants Rules, the impugned order passed by the
Railway Board is liable to be set aside.
9. These authorities proceed upon the principle that in
the absence of a requirement in the statute or the rules, there
is no duty cast on an appellate authority to give reasons
where the order is one of affirmance. Here, Rule 22(2) of the
Railway Servants Rules in express terms requires the
Railway Board to record its findings on the three aspects
54
stated therein. Similar are the requirements under Rule 27(2)
of the Central Civil Services (Classification, Control and
Appeal) Rules, 1965. Rule 22(2) provides that in the case of
an appeal against an order imposing any of the penalties
specified in Rule 6 or enhancing any penalty imposed under
the said rule, the appellate authority shall ―consider‖ as to the
matters indicated therein. The word ―consider‖ has different
shades of meaning and must in Rule 22(2), in the context in
which it appears, mean an objective consideration by the
Railway Board after due application of mind which implies the
giving of reasons for its decision.‖
68. In Dharam Devi Mehta (supra), the appellate authority had
not assigned the reasons for dismissal of the appeal. So, the
appeal order was held unsustainable.
69. We find force in the submission of the learned counsel for
the petitioner that the appellate authority failed to discharge its
duty under rule 22(2) of the Rules, 1968. It has not considered
the appeal by making an objection consideration of this evidence,
the provision of the Vigilance Manual and the rules regarding
enquiry, with an independent application of mind, giving the
reasons for its decision.
55
VII. Conclusion:
70. Thus, considered our conclusions are that
i) there was violation of para 704, 705 of Vigilance Manual.
ii) The Enquiry Officer was from Vigilance Department
and he acted as Presenting Officer as well.
iii) Rule 9(21) of the Rules, 1968 was violated.
iv) the enquiry was not fair and violated the principles
of natural justice and based on such enquiry the order of
removal could not be passed.
v) The appellate authority failed to decide the appeal
as per rule 22(2) of the Rules, and the orders deserved
interference by the Tribunal which also failed to decide the
OA in a judicious manner.
71. In Union of India and others vs. Prakash Kumar
Tandon11, the Hon’ble Apex Court held in para 12 as under:
―12. The disciplinary proceedings were initiated only
after a raid was conducted by the Vigilance Department.
The enquiry officer was the Chief of the Vigilance
Department. He evidently being from the Vigilance
Department, with a view to be fair to the delinquent
officer, should not have been appointed as an enquiry
officer at all.
72. At this stage, we may again refer to Moni Shankar
(supra). The Hon’ble Apex Court observed that the trap was not
11
(2009) 2 SCC 541
56
conducted in terms of the Vigilance Manual; the enquiry officer
acted as a prosecutor and not as an independent quasi-judicial
authority; the enquiry officer did not comply with Rule 9 (21) of the
Rules, and therefore, it was held that, that was not a case where
the order of the Tribunal warranted interference at the hands of
the High Court. There the Tribunal had allowed the O.A and the
High Court interfered with the order of the Tribunal.
73. Paras-29 & 30 of Moni Shankar (supra) reads as under:
―29. The cumulative effect of the illegalities/irregularities was
required to be taken into consideration to judge as to whether the
departmental proceeding stood vitiated or not.
30. For the aforementioned purpose, the manner in which the
enquiry proceeding was conducted was required to be taken into
consideration by the High Court. The trap was not conducted in terms
of the Manual; the enquiry officer acted as a prosecutor and not as an
independent quasi-judicial authority; he did not comply with Rule
9(21) of the Rules, evidently, therefore, it was not a case where the
order of the Tribunal warranted interference at the hands of the High
Court.‖
74. The writ petition therefore deserves to be allowed.
Result:
75. In the result, the writ petition is allowed. The order
dated 15.02.2012, passed by the Central Administrative
Tribunal, Hyderabad Bench in O.A.No.958 of 2011; the order
57
of removal from service vide order
No.B/P.227/IV/2009/3/Vig., dated 14.02.2011, and the
appellate order No.B/P.227/IV/2009/3/Vig., dated 07.09.2011
are hereby quashed.
76. The petitioner shall be deemed to be in service till the
date of attaining the age of superannuation and would be
entitled for grant of all the consequential benefits, as if he
was not removed from service, which shall be paid by the
respondents within three months. No order as to costs.
Consequently, the Miscellaneous Petitions, if any, pending
shall also stand closed.
____________________
RAVI NATH TILHARI,J
________________________
CHALLA GUNARANJAN,J
Date: 07.08.2025.
Note:
L.R copy to be marked.
B/o.
Gk.
58
THE HON‟BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON‟BLE SRI JUSTICE CHALLA GUNARANJANW.P.No.8434 OF 2012
Date: 07.08.2025.
Gk.