JUDGMENT By the Court.—Heard Shri Amit Sthalekar, learned counsel for the petitioners. Shri N.L. Srivastava appears for respondent No. 1. 2. Shri Parshu Ram-respondent No. 1 filed Original Application No. 609 of 2002 in Central Administrative Tribunal, Allahabad Bench, to set aside the order dated 7.8.2001 passed by the Divisional Operating Manager, Northern Railway, Allahabad removing him from service; the order dated 28.1.2001 passed by the Senior Divisional Operating Manager, Northern Railway, Allahabad dismissing the appeal under Rule 18 of the Railway Servant (Discipline and Appeal) Rules, 1968 and the order dated 8.4.2002 by which the Additional Divisional Railway Manager, Northern Railway, Allahabad dismissed his revision under Rule 25 of the Rules, but modified the punishment and substituted it with compulsory retirement in place of removal from service. 3. Shri Parshu Ram was serving as Head Clerk at Naini Railway Station of Northern Railways. He made complaints against the Station Manager Shri D.C. Misra of insult, humiliation and intimidation to National Commission of SC, ST and State Commission for SC and ST and lodged an FIR in April, 2000 under The Scheduled Castes and Scheduled Tribes (Prevention for Atrocities) Act, and the provisions of IPC. He was transferred in December, 1999, to Chunar Railway Station. 4. In July, 2000 he was served with charge-sheet dated 5.7.2000 with substance of allegations that he spent only six months during his posting at Chunar Station. He was not serious towards his duties and was negligent in performance of his responsibilities. His behaviour with fellow employee was not cordial. He was habitual of coming late and leaving duties before the close of the duty hours. He never stayed at Chunar, whereas housing allowance of Rs. 295/- was paid to him every month. He had availed 10 days’ casual leave, as well as gazetted leave on 12.4.2000 and 21.4.2000 against the leave rules applicable to him. He did not give any noting of his earn leave and sick leave of the period April-May, 2000, and availed the entire salary. He was also charged with leaving after duty hours on 2.5.2000 and thereafter reporting sick at Naini on 3.5.2000, whereas the medical facilities were available at Chunar and for availing excess of Rs. 40/- in travelling allowance in December, 1999, and for travelling for 20 days without any pass, when he was absent in 5 months, only a period of 25 days. 5. 40/- in travelling allowance in December, 1999, and for travelling for 20 days without any pass, when he was absent in 5 months, only a period of 25 days. 5. The disciplinary action was challenged on the ground that he was not supplied with copies of the document relied by enquiry officer in proof of the charges and was not given reasonable opportunity of hearing. The enquiry officers were in the administrative control of respondent Nos. 4 and 5. They were not impartial and independent. Their actions reflected their biased attitude. The order of compulsory retirement was also challenged on the ground that penalty is disproportionate to the guilt, and further that the findings regarding guilt are not based on any reliable evidence. 6. The Tribunal found that there was no difficulty in supplying the documents to him even on an oral demand. The copies of the relevant documents mentioned in the charge-sheet were not given to the petitioner before the start or during the course of enquiry. They were supplied to him by registered post on 22.7.2000 causing prejudice to him in as much as he could not file his replies nor could cross-examine the witnesses. 7. The Tribunal further found that the allegations that since the applicant did not withdraw the criminal case against Shri D.C. Misra, the respondents were not acting independently and impartially. The Divisional Railway Manager initially replaced Shri L.D. Singh as enquiry officer by Shri Behari Ram. On the retirement of Shri Behari Ram, Shri R.N. Sagar, Station Superintendent, Kanpur Central was appointed as Enquiry Officer on 4.5.2001. All the three enquiry officers, however, did not act impartially in the proceedings of the enquiry. The Divisional Railway Manager could have changed the enquiry officer of some other branch as demanded by the petitioner to remove his apprehension. The Tribunal came to the conclusion that the enquiry officer, who conducted the enquiry were not free and independent as they were under the administrative control of Senior Divisional Operating Manager, who was dissatisfied with the applicant, because he refused to oblige him by withdrawing FIR and compounding the cases lodged against Shri D.C. Misra. 8. The Tribunal further found that the applicant was not provided with the services of Defence Assistant. The enquiry report itself says that the enquiry proceeded ex-parte. 8. The Tribunal further found that the applicant was not provided with the services of Defence Assistant. The enquiry report itself says that the enquiry proceeded ex-parte. The Tribunal allowed the application on 26.7.2007 and while setting aside the impugned orders gave liberty to respondent No. 5, to hold enquiry afresh in accordance with the Rules, in the light of the observations made by the Tribunal from the stage of service of documents in the charge-sheet and other relevant documents as mentioned in the representation dated 22.7.2000. The Tribunal further directed that the applicant shall be treated to be in service as if the impugned orders were never passed. The order was stayed by the Court on 17.1.2008. 9. Shri Amit Sthalekar submits that the findings of the Tribunal, suffer from gross error of fact and law. He would submit that all the documents were supplied to the petitioner and that Shri Jang Bahadur was allowed to defend the petitioner. The enquiry was not ex-parte. Infact Shri Parshu Ram refused to sign the enquiry proceedings. He elaborated the submission in submitting that in para 12 of the supplementary counter affidavit, it was clearly stated that all the documents required by Shri Parshu Ram-respondent No. 1 were sent to him by registered post dated 18.7.2000. He had received these documents and was not prejudiced in either submitting his defence or cross-examining the witnesses. His request for appointment of an officer to assist him in enquiry was allowed. Out of the three persons nominated by him, it was found that Shri Samuel had stated that he was very busy; and that Shri O.P. Dubey was defending the railways and thus could not be appointed as Defence Assistant. Shri Jang Bahadur Tiwari, the third officer nominated by him was allowed to defend him. He, however, did not appear. The petitioner was intimated by the enquiry officer to appear in the enquiry proceedings on the next date on 27.10.2000. 10. With regard to prejudice caused by the appointment of an enquiry officer of the same department, and the alleged influence exercised by Shri D.C. Misra, it is submitted that the first enquiry officer was changed on the request of Shri Parshu Ram. The second enquiry officer retired without concluding the enquiry. The petitioner thus had the benefit of change of enquiry officer on two occasions. The second enquiry officer retired without concluding the enquiry. The petitioner thus had the benefit of change of enquiry officer on two occasions. His request to appoint an enquiry officer from some other department, was not justified. Shri Sthalekar submits that Shri Parshu Ram did not have a right to choose his own enquiry officer. The enquiry officer has mentioned in the enquiry report, that Shri Parshu Ram did not cross-examine any prosecution witnesses. He used to be present throughout the enquiry proceedings and would examine the question answers. He would also accept the statement of witnesses, but kept on requesting for declaring the entire enquiry proceedings to be illegal, and to stop the proceedings. He had accepted the documents given to him and was present on the dates fixed in the proceedings on 15.5.2001, 4.6.2001, 7.6.2001, 13.6.2001, 16.6.2001 and 21.6.2001 as it is evident from pages 120, 123, 125, 137 and 160 of the proceedings of the enquiry. He, however, did not sign on the statements of Shri R.K. Verma and Smt. Sushma, on the ground that his questions should also be added to the witnesses. The enquiry officer suggested that he may ask questions himself or give his questions in writing. Whenever he was requested to ask questions, he told the enquiry officer that he is not satisfied with the proceedings. The enquiry officer has thereafter observed that during the entire proceeding of enquiry, the delinquent employee did not accept the validity of the enquiry proceedings and requested to close the enquiry. In the circumstances, the enquiry officer had no option but to continue with the proceedings against him. The enquiry officer, thereafter, discussed the evidence and found that all the allegations made against the delinquent employee were proved. 11. Shri N.L. Srivastava states that the documents were not supplied with the charge-sheet and that they were sent to him by registered post without there being any demand by respondent No. 1 to the enquiry officer to send them by post. He was not present on all the dates. The fact that the documents were sent by registered post established that he was not present in the proceedings, and that defence assistant was not provided. 12. He was not present on all the dates. The fact that the documents were sent by registered post established that he was not present in the proceedings, and that defence assistant was not provided. 12. We have gone through the record of the enquiry proceedings as well as the order of the Tribunal and find that the observations made by the Tribunal are against the record of the enquiry proceedings. The charge-sheet dated 5.7.2000 was served upon the petitioner. He made representations to supply copies of the documents. The documents were sent to him by registered post on 18.7.2000 and were received by him. His request for defence assistant was allowed and that Shri Jang Bahadur was picked up out of penal of the three defending officers nominated by him. The delinquent employee was present on all the dates in the enquiry proceedings and had signed the record on each date. He did not make any further request to supply any further documents, or for inspection of records. He also did not choose to cross-examine the witnesses. In fact he insisted to drop the proceedings from the beginning, till the end of the departmental enquiry. 13. The observations of the Tribunal that the enquiry officer could have been appointed from another department, as there was apprehension that the enquiry officers were prejudiced against him has no foundation on the Rules or any order or directions on the record. On the request of the delinquent employee Shri L.D. Singh, Enquiry Officer was replaced by Shri Behari Ram and that after the retirement of Shri Behari Ram, Shri R.N. Sagar was appointed as enquiry officer. It is difficult to believe that all the three enquiry officers were prejudiced against him. Atleast such prejudice is not demonstrated from the records. The delinquent employee did not have a right of the appointment of an enquiry officer from any other department. The allegations that all the enquiry officers were prejudiced is entirely vague, and was based only on the apprehensions of delinquent employee. 14. The enquiry officer has narrated the conduct of the delinquent employee in detail, in his report. He has explained as to how the delinquent employee did not cooperate in the enquiry. He used to be present on all the dates but went on requesting to declare the enquiry proceedings to be illegal. 14. The enquiry officer has narrated the conduct of the delinquent employee in detail, in his report. He has explained as to how the delinquent employee did not cooperate in the enquiry. He used to be present on all the dates but went on requesting to declare the enquiry proceedings to be illegal. He accepted all the documents and the statement of witnesses given to him, but did not choose to cross-examine the witness. 15. We do not agree with the findings of the Tribunal that any prejudice was caused to the petitioner by not supplying the documents along with charge-sheet, and change of enquiry officer. The disciplinary authority found that all the charges were proved against him. The respondent No. 1 did not take interest in work after he was posted at Chunar and was not performing the duties regularly. The allegations of remaining absent from duties and leaving the office before duty hours regularly was established against him. The statement of Asstt. Station Master proved that he was not present on many dates during duty hours. The punishment of removal was thus justified. The revisional authority, however, substituted it with compulsory retirement. 16. The punishment in our view cannot be said to be disproportionate with the allegations established against him. 17. The writ petition is allowed. The impugned judgment of the Central Administrative Tribunal dated 26th July, 2007 is set aside with no order as to costs. The retirement benefits shall be paid to the respondent No. 1 without any delay. ————