ORDER Hon’ble Justice Kuldeep Mathur, J. 1. This Writ Petition has been filed by the petitioner-Railways assailing order dated 31.05.2023 passed by the Central Administrative Tribunal, Jodhpur Bench Jodhpur (for short ‘the Tribunal’) in O.A. No.0290/00226/2019, whereby the O.A. filed by respondent- Bhawani Singh has been allowed. 2. Succinctly stated, facts of the present case are that respondent-Bhawani Singh after passing all the qualifying tests, came to be appointed as yatayat khalasi against the post of Pointsman ‘B’ under the Railways w.e.f. 29/30.07.2013. The post of Pointsman ‘B’ comes under ‘safety’ category. In due course of time, the respondent came to be promoted on the post of Pointsman ‘A’. During the periodical/routine medical checkup of the railway employees conducted on 27.12.2016, the Medical Board constituted at Railway Hospital, Jodhpur found him to be possessing ‘defective colour vision with suspected malingering’ and declared him unfit for the posts under A-2 category but declared him fit to be appointed on the posts under B-2 and below categories. The Medical Board thus recommended the respondent for alternate appointment on medical grounds with a special mention that he should only get appointed in an unattractive post as per para 512 (2) Sub note (ii) of Indian Railways Medical Manual, 2000 (hereinafter referred to as IRMM, 2000). As per the recommendation of the Medical Board, the respondent was thereafter absorbed on the post of Clerk vide order dated 04.08.2017 and he thus joined his duties at Jalore. 3. Vide letter dated 16.11.2017, the respondent was again directed to appear for the medical examination to be held on 18.11.2017 at Railway Hospital, Jaipur and subsequently, he was sent for further medical examination to S.M.S. Hospital, Jaipur. The Medical Board of S.M.S. Hospital, Jaipur after considering the entire medical history of the respondent, vide its report dated 04.01.2018, declared him to be possessing ‘defective colour vision with established malingering’. In the month of 2019, the respondent was apprised of a vigilance case/inquiry pending against him and in pursuance of the same he, of his own accord got himself medically tested from M.D.M. Hospital Jodhpur on 22.05.2019. In the medical examination conducted at M.D.M. Hospital Jodhpur, the respondent was again declared to be possessing ‘defective colour vision’. In the month of 2019, the respondent was apprised of a vigilance case/inquiry pending against him and in pursuance of the same he, of his own accord got himself medically tested from M.D.M. Hospital Jodhpur on 22.05.2019. In the medical examination conducted at M.D.M. Hospital Jodhpur, the respondent was again declared to be possessing ‘defective colour vision’. The services of the respondent were thereafter terminated from the Railways vide office order/letter dated 10.09.2019 on the ground that he was unfit for employment on all the posts as he had been declared to be ‘a case of established malingering for colour vision’. 4. The respondent being aggrieved and dissatisfied with the order of termination dated 10.09.2019 filed Original Application No.0290/00226/2019 the learned Tribunal alleging inter alia that no disciplinary proceedings were conducted against him and without giving him an opportunity of hearing, an order having civil and evil consequences has been passed arbitrarily, without following the due process of law. He further stated that he was given appointment on the post of Pointsman ‘B’ after having successfully qualified all the requisite tests and further on having been declared to be a person with ‘defective colour vision with suspected malingering’, and therefore he was provided alternate, unattractive appointment as Clerk. Therefore, there was no reason or occasion available with the respondents for terminating his services, merely on the basis of the fact finding inquiry conduced by the Vigilance Department. 5. The learned Tribunal after hearing the counsel for the parties and after perusing the documents available on record, vide order dated 31.05.2023, was pleased to allow the said O.A. and directed the Railways to reinstate the respondent on the post of Clerk with all the consequential benefits, including arrears of pay and allowances. The reasonings assigned by the learned Tribunal in para Nos. 9 and 10 of its judgment for granting relief to the respondent are reproduced below for ready reference:- “9. It is also to be seen from a very different angel of 'Motive'. Behind every action there has to be certain role of Motive to decide the ultimate decision. In the respondent department there are having even jobs for completely blind persons, hence after appointment with the respondents even if the applicant acquires blindness (as the respondent themselves selected him through all the procedure) the respondents are to offer/adjust him to a suitable post. In the respondent department there are having even jobs for completely blind persons, hence after appointment with the respondents even if the applicant acquires blindness (as the respondent themselves selected him through all the procedure) the respondents are to offer/adjust him to a suitable post. Hence as the applicant has given the appointment by the respondents themselves as he qualified on merit, hence he ought to have been given appointment as per prescribed medical category, hence, we don't find any ulterior motive behind acting as Malingerer by the applicant. 10. To sum up to the conclusion in our considered view the action of the respondents are bad in law and not sustainable as the respondents have acted on the dictation of Vigilance Department without adhering the comment and advice of expert medical body. The respondent though decategorised the applicant and absorbed him in the post of Clerk in the Personnel Department which is a permanent post in nature, but while terminating his services the respondents did not felt it necessary to show cause or giving him a personal hearing which is completely violative of natural justice and in violation of the maxim 'audi alteram partem, hence not sustainable. The respondents' after decategorising him offered the post of Clerk, hence only on the dictation of Vigilance Department they cannot approbate and reprobate from their own decision which was taken on the basis of an expert bodies advice. The respondents also failed to establish any solid ground of Motive in respect of applicants malingering. Hence, in our considered view the termination order dated 10.09.2019 cannot sustain in the eyes of law hence needs to be quashed and set aside, accordingly, order dated 10.09.2019 and 11.07.2019 are quashed and set aside. The respondents are directed to reinstate the applicant on the post of Clerk with all consequential benefits, including arrears of pay and allowance within one month from the date copy of this order is produced before the respondents. 11. O.A. is allowed. No costs.” 6. Shri Bhanu Pratap Bohra, learned counsel appearing for the petitioner-Railways vehemently contended that had the petitioner disclosed the fact of being colour blind at the time of entry into the service he would not have been selected to the post of Pointsman ‘B’. 11. O.A. is allowed. No costs.” 6. Shri Bhanu Pratap Bohra, learned counsel appearing for the petitioner-Railways vehemently contended that had the petitioner disclosed the fact of being colour blind at the time of entry into the service he would not have been selected to the post of Pointsman ‘B’. Learned counsel submitted that the job of Pointsman in the Railway Department is of utmost importance as the Pointsman is required to operate the hand points for setting the railway lines as per the instructions of Station Master in the non-interlock and non-signal for shunting and the arrival and departure of trains. The concealment of information regarding the ailment/disability possessed by the respondent, disentitles him to continue in service. 7. It was further urged that on an inquiry conducted by the Vigilance Team, the information regarding the respondent suffering from colour blindness came to surface and therefore, his services have rightly been terminated in accordance with para 512 (2) Sub note (ii) of IRMM 2000. It was thus prayed that the impugned order dated 31.05.2023 passed by learned Tribunal may be quashed and set aside. 8. Per contra, Shri J.K. Kaushik, learned counsel appearing for the respondent contended that admittedly the services of the respondent have been terminated after about six years of regular service, only on the basis of the inquiry conduced by the Vigilance Department of the petitioner- Railways and no material was placed before the learned Tribunal to establish that the petitioner had concealed any relevant and material information while seeking employment in the petitioner-department in the year 2013. Learned counsel submitted that looking to the medical disability suffered by the respondent, his services were discontinued from ‘safety’ category and he was absorbed on the post of ‘Clerk’ vide order dated 04.08.2017 after having passed all the screening tests. Once he was given an alternate employment, there was no reason or occasion available with the petitioner-Railways for terminating his services, without conducting any regular disciplinary proceedings for proving the allegations raised against him, in conformity with the statutory rules and without following the principles of natural justice. Learned counsel submitted that by now it is too settled a law that if the termination order is stigmatic even for a temporary employee then also a disciplinary inquiry is required to be held, to observe the principles of natural justice and fair play. Learned counsel submitted that by now it is too settled a law that if the termination order is stigmatic even for a temporary employee then also a disciplinary inquiry is required to be held, to observe the principles of natural justice and fair play. Learned counsel for the respondent in support of the aforesaid contention and submissions has invited the attention of the Court towards the following judgments:- (1) AIR 1964 SC 449 (Constitutional Bench judgment) – “Jagdish Mitter v. Union of India”. (2) (1991)3 SCC 291 – “Om Prakash Goel v. Himachal Pradesh Tourism Development Corporation Limited, Shimla & Another”. (3) (1996)1 SCC 441 – “Union of India & Ors. v. Jayakumar Parida”. (4) (2000)5 SCC 152 – “Chandra Prakash Shahi v. State of U.P. & Ors.”. (5) (2000)10 SCC 184 – “Lakhan Lal Tripathi v. Commandant General & Anr.” (6) AIR 2001 SCW 2287 -“Prithipal Singh v. State of Punjab & Ors.” (7) (2002)10 SCC 130 – “UPSRTC through its Managing Director & Anr. v. Jeewan Prasad & Anr.” (8) AIR 1991 SC 1507 -“Nagaraj Shivarao Karjagi v. Syndicate Bank Head Office, Manipal and Anr.” (9) Lallu Ram Yadav v. UOI & Ors : D.B. Civil Writ Petition No.12975/2017 decided on 29.11.2018. 9. Heard learned counsel for the parties at Bar. Perused the material available on record. 10. It is not in dispute before this Court that the respondent joined the petitioner-Railways against the post of Pointsman ‘B’ which comes under ‘safety’ category. The respondent admittedly, cleared all the requisite tests conducted by the petitioner-department before joining the post w.e.f. 29/30.07.2013. Looking to the satisfactory services rendered by the respondent, in due course of time he was promoted to the post of Pointsman ‘A’. During periodical medical checkup of the employees working in ‘safety’ category with the Railways, the Medical Board found him to be possessing ‘defective colour vision with suspected malingering’ which was confirmed by the subsequent medical tests conducted at different centres including S.M.S. Hospital, Jaipur. On being decategorised from the ‘safety’ category, the services of the respondent were absorbed to the post of ‘Clerk’ in the year 2017. 11. Pertinently, there is nothing on record to establish that the petitioner-Railways was not in a position to discover the ailments suffered by the respondent at the time when he was offered employment. On being decategorised from the ‘safety’ category, the services of the respondent were absorbed to the post of ‘Clerk’ in the year 2017. 11. Pertinently, there is nothing on record to establish that the petitioner-Railways was not in a position to discover the ailments suffered by the respondent at the time when he was offered employment. A careful perusal of the record of the case indicates that in the initial medical examination of the respondent conducted at Bikaner on 01.01.2013, his colour vision was recorded as normal and he was declared fit for medical category A-2 and below. Thus, it cannot be said that the petitioner had played any fraud while seeking an employment. It is too well settled that a mistake, if any, committed by the department cannot be allowed to be reflected to the disadvantage of the employee as by going alongwith the mistake they have acquiesced to the position. 12. There is no quarrel on the issue that the order by which the services of the respondent were terminated has been issued with reference to para 512 (2) Sub note (ii) of IRMM 2000, on the advice of the Vigilance Department and so-called Vigilance inquiry (record of which was not placed before this Court) was conducted behind the back of the petitioner. In the opinion of this Court, a Vigilance inquiry conducted by the Vigilance Department of Railways though can be used to form a basis for issuing charge-sheet to a regular employee, based on the findings of fact arrived at by the Vigilance Department. However, at the same time, it cannot be made a basis to prove the alleged misconduct by an employee, without following The Railways Servants (Discipline and Appeal) Rules, 1968 framed by the President of India in exercise of powers conferred by proviso to Article 309 of the Constitution of India. This is for the reason that the Rules of 1968 have been framed with an object to fulfill the constitutional obligation of providing a reasonable opportunity to be heard about the charges which have been levelled against an employee. This is for the reason that the Rules of 1968 have been framed with an object to fulfill the constitutional obligation of providing a reasonable opportunity to be heard about the charges which have been levelled against an employee. The Hon’ble Supreme Court of India in the case of “Nagaraj Shivarao Karjagi v. Syndicate Bank Head Office, Manipal and Anr.”: AIR 1991 SC 1507 was pleased to held that the punishment/penalty imposed upon an employee on the basis of Vigilance recommendation is bad, while every department is having their own machinery to punish any employee. The Vigilance Department cannot dictate and the authorities have to take the decision judiciously on the basis of the facts circumstances of each case. 13. In view of the aforesaid discussion, we find no reason or justification to interfere with the impugned order dated 31.05.2023 passed by learned Tribunal in O.A. No.0290/00226/2019. 14. Consequently, the present Writ Petition is dismissed. 15. No order as to costs.