Mohd. Haleem Khan, Member (A):

1. Dr. Ashok Bagchi, Son of late S. Bagchi, aggrieved by the impugned order dated 20th April, 2011 whereby the penalty of removal from service was imposed upon him, filed this application under Section 19 of the Administrative Tribunal Act. The applicant submitted that charge sheet was issued against him in 1999 and the inquiry was completed in 2000 proceeding ex-parte against the applicant. However, it was kept pending for 12 years. The order dated 20th April, 2011 is therefore, malicious. The respondents, the applicant alleged, were awaiting the outcome of Writ Petition (C) 6178 of 2002 before the Hon’ble Guwahati High Court against the order dated 27th February, 2002 in OA No. 377 of 2000 whereby the penalty of compulsory retirement imposed upon the applicant was quashed by the learned Tribunal. The applicant further contended that the order of removal form service is also violative of order in OA No. 113/2004 dated 16th June, 2004 whereby the learned Tribunal directed the respondents to complete the departmental proceedings within a period of two months from the communication of the order of the Tribunal.

2. In brief the applicant joined the Railway service as Assistant Medical Officer (ad hoc) on 28th April, 1984 at Central Hospital, Maligaon. In due course of time he was appointed as Assistant Divisional Medical Officer in N.F. Railway and posted at Hojai Health Unit on 1st February, 1985. He was allotted Railway quarter No. M-2, Type II with effect from 1st April, 1985. In 1995 he was falsely implicated by C.B.I. in a case of acceptance of consultation fees from a private person and using his official residence as nursing home. The respondents, in the background of the C.B.I. case, started departmental proceedings which were concluded and the applicant was compulsorily retired. Thus, aggrieved he filed OA No. 377 of 2000 before the Hon’ble Tribunal. On 27th February, 2002 the penalty of compulsory retirement was quashed. The respondents, however, filed WP(C) 6178/2002 against the order of the Tribunal in OA 377/2000 under Article 226 of the Constitution before the Guwahati High Court.

3. According to the applicant, during the pendency of the disciplinary proceedings he fell sick on 9th February, 1996 and underwent treatment at Lumding Regional Railway Hospital. He was referred to Maligaon Central Hospital for treatment by respondent No. 4 by memo No. H/184/LM-17, dated 1st March, 1996. On 6.5.1996 he was referred to Guwahati Medical College. The Department of Neurology, Guwahati Medical College advised three months rest with effect from 20th August, 1996 and the same was accordingly brought to the notice of respondents. The respondents however, directed the applicant by letter dated 13th September, 1996 asking the applicant to appear before the Medical Board of Lumding on 18th September, 1996. Since he could not attend the Medical Board because of his poor health the respondents re-fixed the date of medical appearance before the Medical Board on 20th September, 1996 which again he has to obtain from because of sickness. Interestingly this was the time when he was under treatment at Guwahati Medical College, Department of Neurology virtually in the same town (Maligaon & Guwahati are for all practical purposes a twin city).

4. While the applicant was on sick list and was taking treatment at Divisional Railway Hospital, Lumding he was transferred from Hojai to Lumding vide order No. 37/96, dated 12th February, 1996. Being sick the applicant could not comply with the transfer order.

5. In the above background the respondent No. 3 issued charge memo No. E/74/GAZ/386/CON, dated 26th June, 1999 under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 and the applicant was informed that an inquiry under Rule 9 of the said rules was proposed to be held against him on the allegation that he had remained on unauthorized absence since 20th September, 1996. The applicant submitted his defence statement on 3rd September, 1999 denying all the charges and explaining the facts and circumstances. The respondents however did not take into account the written statement of defence submitted by him under Rule 9(9)(a)(i) of the Rules and decided to proceed with the departmental Inquiry and appointed Shri P.K. Agarwal a Mechanical Engineer as Inquiry Officer by letter No. E/74/GAZ/386/CON, dated 26.11.1999. Though the Inquiry Officer fixed various dates i.e. 31st January, 2000, 27th March, 2000, 24th April, 2000 at Rangiya Station but the applicant could not attend the hearing as he was unable to undertake such a long journey because of his back pain as well as Kerato-conjunctivitis. Accordingly, the applicant claims he informed the Inquiry Officer. By letter dated 27th April, 2000 the Inquiry Officer fixed 8th May, 2000 for ex-parte hearing. Applicant’s contention is that he was never served the letter intimating the ex-parte hearing on 8th May, 2000. This fact was communicated by respondent No. 4 by a wireless message no. H/SS/LN-8(Loose), dated 5th May, 2000 to the Inquiry Officer. Even this communication did not deter the Inquiry Officer and he went ahead with his decision to complete the inquiry ex-parte and finalized the same accordingly on 8th May, 2000.

6. The applicant was served with the Inquiry Officer’s report on 9th June, 2000 as submitted by the Inquiry Officer on 10th May, 2000 along with a show cause notice by letter No. E/74/GAZ/386/CON, dated 31st May, 2000 whereby the applicant was asked to make a representation if any against the findings of the Inquiry Officer within 15 days. According to the applicant he submitted his representation on 16th June, 2000. According to the applicant the inquiry report based on the documents and completed ex-parte proving the charges is most perverse. He further contended that the Inquiry Officer did not discuss evidence neither gave reasons for his findings. Since the Inquiry Officer failed to take cognizance of his sickness from 8/9th February, 1996 which is on record and also the fact that the applicant was advised rest for three months by the Department of Neurology, Guwahati Medical College and Hospital the inquiry report can legally speaking taken in to account. The applicant further contended that in view of his sickness and being advised of rest, the Medical Board, if at all required, should have met at Hojai where he was located.

7. The applicant submitted representation on 4th April, 2001 and repeated it on 5th February, 2003 for being communicated of the decision of the disciplinary authority in the departmental proceedings but to no avail. The respondents kept the proceedings pending with ulterior motives to use it at the time of their choice to hurt the interest of the applicant. The applicant, therefore, field OA No. 113/2004. The learned Tribunal by its order dated 16.6.2004 disposed of the application at the admission stage. The relevant portion of the judgment is extracted below:

'5. In view of the above facts and circumstances, we find it just and proper to dispose of the application at the stage of admission itself by directing the respondents to complete the disciplinary proceedings initiated against the applicant. Accordingly, respondents are directed to complete the disciplinary proceedings initiated against the applicant within a period of two months from the date of communication of this order. The applicant is also directed to co-operate with the disciplinary proceedings initiated against him. If the applicant is further aggrieved with order of the disciplinary authority, he shall be at liberty to approach the appropriate forum after exhausting the appropriate remedy.'

8. The respondents however, did not comply with the learned Tribunal’s order instead filed Writ Petition (C) 9131/2004. The Hon’ble High Court in a common judgment in Writ Petition (C) 6178/2002 and WP(C) 9131/2004 disposed of the matters. The relevant portion of the order is extracted below:

'12. The above conclusion of ours would be sufficient to hold that the punishment imposed on the respondents (applicant) is vitiated in law. We, therefore, affirm the order dated 27.2.2002 passed by the learned Tribunal and dismiss the writ petition. The respondent (applicant) will, naturally, be entitled to all consequential reliefs including re-instatement with effect from the date of dismissal with full pay and allowances and continuity of service.

7. We are also inclined to take the view that this writ petition has been filed without adequate justification and the same is entirely frivolous and an abuse of the process of the Court. We, therefore, deem it appropriate to impose a cost of Rs. 10,000/- on the writ petitioners which will be paid to the respondent (applicant) within a period of thirty days from today.

8. Having answered both the writ petitions in the manner indicated above, we are of the view that it is necessary for us to address ourselves to the actions of the Union of India (Ministry of Railways/Railway Board) in not implementing the orders of the learned Tribunal passed in the two cases despite the fact that there was no interim order passed by this Court while entertaining the writ petitions in question. In WP(C) No. 6178/2002, the learned Tribunal as far back as on 27.2.2002 had interfered with the order of compulsory retirement of the applicant (respondent). The writ petition filed on 23.9.2002 was entertained, but no interim relief was granted to the writ petitioner. In such circumstances, it was incumbent on the part of the writ petitioner to implement the order of the learned Tribunal. The same had not been done and, in fact, the order of the learned Tribunal remains unimplemented till date. Similarly, in WP(C) No. 9131/2004 the learned Tribunal had directed conclusion of the departmental proceeding initiated against the applicant (respondent) as far back as on 16.6.2004. Though the writ petition was entertained, once again no interim relief was granted to the petitioner. Yet, the writ petitioner had not implemented the order of the learned Tribunal. The writ petitioner is the Union of India represented by the Ministry of Railways (Railway Board). We are distressed by the conduct of the Union of India in showing scant respect to the orders passed by judicial and quasi-judicial forums. At the same time, the applicant (respondent in both the writ petitions), at no point of time; brought the fact of non-implementation of the orders to the notice of this Court. Such facts had been revealed to the Court only when the writ petitions were heard. In such circumstances we do not deem it necessary to proceed any further in the matter except to indicate our deep dis-pleasure with the conduct of the Union. The Union will now implement the orders of this Court passed in the two writ petitions forthwith and without any delay.'

(emphasis supplied)

The applicant further contended that in spite of the court orders of the Hon’ble High Court no compliance was made by the respondents and the applicants was forced to file contempt petition No. 242/2010 before the Hon’ble High Court. The portion of the Hon’ble High Court’s order dated 16.08.2010 is extracted below:-

'The petitioner should now report to the respondents for his posting and the respondents will process the consequential benefits and continuity of service and other service benefits within a period of one month time from today. Learned counsel of the respondents has given an assurance to the Court that the needful processing will be carried out within a month and in any case before the end of September, 2010.

The contempt petition is disposed of.'

9. The applicant further contended that the Hon’ble High Court vide order and judgment dated 22nd February, 2011 closed the contempt petition and the respondents on the basis of the U.P.S.C. advice dated 28th March, 2011 passed the impugned order dated 20th April, 2011. The applicant prayed that since the impugned order is based on an ex-parte order without taking into account the favourable orders passed by the Tribunal and the Hon’ble High Court, the applicant has been highly prejudiced by the actions of the respondents and therefore, having no other alternative, approached this Hon’ble Tribunal again with the following prayers.

10. The relief sought is being reproduced below:-

'It is, therefore, prayed that your Lordships would be pleased to admit this application, call for the entire records of the case, ask the respondents to show cause as to why this application should not be allowed and the impugned order dated 20.4.2011 (Annexure-XII to the O.A.) imposing the penalty of removal from service upon the applicant should not be set aside and quashed and also as to why the applicant should not be reinstated in service with all consequential benefits including back wages from the date of removal to the date of reinstatement, and promotions to the Selection Grade and Senior Administration Grade at par with his immediate junior and after perusing the causes shown, if any, and hearing the parties quash and set aside the impugned final order dated 20.4.2011 (Annexure-XII to the O.A.) with a direction to reinstate the applicant in service with all consequential benefits including back wages from the date of removal to the date of reinstatement, and promotions to Selection Grade and Senior Administrative Grade with effect from the dates him immediate junior was so promoted and/or pass any other order/orders as Your Lordships may deem fit and proper.

And for this act of our kindness the applicant as in duty bound shall every pray.'

11. Accordingly, the notice was service.

12. In the written statement the respondents emphasized that unless admitted all averments made by the applicant be considered as denied. Respondents further submitted that as per the Hon’ble Guwahati High Court’s order and judgment dated 22nd February, 2011 in Contempt Case No. 242/2010 the impugned order has been passed within the time of two months and accordingly, the Hon’ble High Court’s order for completing the disciplinary proceedings within a period of two months stands fully complied with.

13. According to respondents the applicant was transferred from Hojai to Lumding by order dated 12/13th February, 1996. The applicant did not comply with the orders on the plea of sickness and remained absent for duty unauthorizedly. Respondents emphasized that neither the applicant appeared before the Medical Board at Railway Hospital, Lumding on 18th September, 1996 nor on the subsequent dated 20th September, 1996. Further applicant was also advised to attend the Medical Board at Central Hospital/Maligaon. It is to be noted that the applicant was under treatment of Guwahati Medical College, Neurology Department. The respondents were therefore, left with no option but to proceed against the applicant for unauthorized absence by charge memo No. E/74/GAZ/386/CON, dated 26th June, 1999. Respondents further justified proceeding against the applicant ex-parte as the applicant did not participate on the dates fixed namely 31st January, 2000, 27th March, 2000, 24th April, 2000 and 8th May, 2000. In support of their decisions to proceed ex-parte they have quoted rule 9(23) of RS (D&A) Rules, 1968. The same is being reproduced hereunder:-

'Rule 9(23): If the Railway servant, to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiry authority may hold the inquiry ex-parte.'

14. The respondents emphasized their adherence to procedure by submitting that the inquiry report was duly furnished to the applicant. The applicant’s representation along with the relevant records were sent to the Railway Board as Board was competent to impose penalty. Explaining the delay in the finalization of departmental proceedings, respondents submitted that in a departmental proceeding initiated earlier against the applicant as a fall out of a C.B.I. trap case, the applicant stood compulsorily retired from 21.6.2000. The same however, was successfully challenged by the applicant in OA 377/2002. The Tribunal’s order dated 27th February, 2002 in favour of the applicant in OA 377/2002 was challenged by the Department in WP(C) No. 6178/2002. While Writ Petition was pending the applicant filed OA 113/2004 against the disciplinary proceedings not yet concluded and the Tribunal disposed of the same by order dated 16.6.2004 with the direction to the respondents to complete the disciplinary proceedings within two months from the date of order. The order of the Tribunal was also challenged by the respondents in Writ Petition (C) No. 9131/2004.

15. The Hon’ble High Court of Guwahati by a common order and judgment dated 18th July, 2009 disposed of both the Writ Petitions and upheld both the decisions of the Tribunal i.e. the reinstatement against the order of compulsory retirement with consequential benefits as decided in OA No. 377/2002 and direction to the respondents for completion of disciplinary proceedings within two months as directed in OA No. 113/2004. The respondents, however, filed a Special Leave petition (CC 508-509/2010) which was dismissed by the Apex Court by its order dated 18th January, 2010. Railways, therefore, informed the applicant of his reinstatement and to report for duty and further postings by letter dated 9th February, 2010. The applicant however, chose not to report on duty and instead filed contempt petition No. 242/2010 for non-compliance of the Hon’ble High Court’s order which was disposed of by order and judgment dated 22nd February, 2011 with direction to complete the disciplinary proceedings within a period of two months. Accordingly, the respondents made out the case for not being responsible for delay in the departmental proceedings. The respondents further controverted the allegations of the applicant that the proceedings were kept pending with an ulterior motive and further contended that the applicant is responsible for not allowing the smooth conduct and finalization of the departmental proceeding and reiterated the contention that the applicant was given opportunity several times but because of his non-cooperation the Inquiry Officer was left with no option but to complete the inquiry ex-parte. Respondents also tried to make out a submission against the contention of the applicant that the respondents were having some ulterior motive by submitting that the first departmental proceeding was a fall out of the C.B.I. trap case. The respondents also submitted that Group-A officers medical treatment is covered by paragraph 520 of the Indian Railway Establishment Code Volume – I read with paragraph 547(3) of the Indian Railway Medical Manual. Even after the Hon’ble High Court’s order in his favour the applicant did not turn up for assuming his duty in spite of the repeated request made by the authority and instead chose to file the contempt case No. 242/2010. In the absence of his joining duty, the respondents could not proceed further for taking up the next course of action and the departmental proceedings could not be finalized even after the Hon’ble High Court’s order dated 18th July, 2009. The respondents further justified that the order dated 20th April, 2011 has been passed following the due process scrupulously, giving enough opportunity to the applicant of being heard and to defend himself. Therefore, the contention of the applicant with regard to not following the principles of natural justice is not supported by facts. Respondents further contended that the Medical Board first convened at Lumding Hospital and then at Maligaon Central Hospital as per the provisions of the Medical Manual. The records, according to the respondents reveals that the applicant was not an indoor patient which would physically prevent him from attending the medical examination. The respondents further submitted that the order dated 20th April, 2011 removing the applicant from service has been issued after following the rules and the procedure laid down and therefore, the learned Tribunal is left with little option to interfere with the decision in a quasi judicial process by the competent authority in accordance with the Apex Court judgment. The respondents in support of their contentions quoted following judgments of the Hon’ble Supreme Court:

'a) Damoh Pnna Sagar RRB v. Munna Lal Jain in Civil Appeal No. 8258 of 2004, dated 17.12.2004,

b) Dr. Anil Kumar v. Union of India – 1998 (9) SCC 47,

c) B.C. Chaturvedi v. Union of India – 1195 (6) SCC 749,

d) Government of Tamil Nadu & Ors. v. S. Vel Raj – 1997 (2) AISLJ 32

e) Government of Tamil Nadu v. N. Ramamurthy – AIR 1997 SC 3571

f) Government of Tamil Nadu & Anr. v. A. Rajapandian – AIR 1995 SC 561

g) R.S. Saini v. State of Punjab & Ors. – JTI 1999 (6) SC 507

h) Bank of India v. Digale Suryanarayanan – 1999 (5) SCC 762

i) Parma Nanda v. State of Haryana & Ors. – SLP (Civil) No. 6998 of 1988'.

16. In view of the facts as well as law supplied by Apex Court judgments and quoted in the written statement the respondents strongly prayed for dismissal of the application in the interest of justice.

17. The applicant filed the rejoinder wherein the averments and contentions made in the Original Application were reiterated. The applicant forcefully re-emphasized the in-ordinate delay in finalizing the departmental proceedings even after the inquiry was concluded in the year 2000. The applicant in the rejoinder relied on the judgment of the Apex court in Krushnakant B. Parmar v. Union of India & Anr. (Civil Appeal No. 2106 of 2012 arising out of SLP (C) No. 15381 of 2006) which deals with the unauthorized absence from duty and its civil consequences and relied on paragraphs 16, 17, 18 and 19 of the judgment. In brief the applicant denied in the light of the above judgment that his absence from duty was wilful.

18. In the rejoinder, the applicant submitted that the citations relied upon by the respondents are not applicable to his case and instead relied upon Bank of India v. Degala Suryanarayanan – 1999 (5) SCC 762 and also Hon’ble Apex Court decision in Kuldeep Singh v. Commissioner of Police – AIR 1999 SC 677 which lays down the parameters of a departmental proceedings. The applicant also referred to Hon’ble Apex Court judgment in Anil Kumar v. Presiding Officer, AIR 1985 SC 1121 which lays down the minimum expectation on the Inquiry Officer that the report should be a reasoned report. The applicant also relied on Hon’ble Apex Court decision in B.L. Sreedhar v. K.M. Munireddy – AIR 2003 SC 578. According to applicant the plea of estoppels taken by the applicant subsists as not been refuted by the respondents. The applicant’s contention is therefore, that in view of the above averments the respondents’ case as made out in the written statement is not legally sustainable and the applicant deserves the relief from the Hon’ble Tribunal as prayed for in the Original Application.

19. The respondents filed Miscellaneous Petition No. 177/2012. The respondents in the miscellaneous petition made submissions against the contention of the applicant in OA as well as in the rejoinder relating to non-submission of records. The respondents through miscellaneous petition contended that the records are before the Tribunal in the Original Application filed by the applicant and therefore, have not been annexed with the written statement. In paragraph 4 of the miscellaneous petition the respondents prayed for submission of following records:-

'i) DAR case file No. E/74/Gaz/386/CON of Dr. Ashok Bagchi, Ex. Sr. DMO/Hojai which includes Charge Memo dated 26.6.1999, enquiry proceeding and up to imposition of order of penalty of removal from service on Dr. Bagchi dated 20.4.2011 by the DA are placed along with the relevant notings.

ii) The edition of IREC – Vol-I which contains rules regarding Medical Attendant’s Rule.

iii) The Railway Servant’s (D&A) Rules, 1968 which contains rule-9 (23)(25) with regard to exparte decision.

iv) The Indian Railway Medical Manual – Vol – I containing para 547, 553(3)(iv) and 556(4) regarding medical sick under PMC and the authority empowering to call medical examination of the staff and officer.'

20. The miscellaneous petition however was disposed of on 19th February, 2013 and this Court observed as under:-

'By this MP petitioners/respondents make a prayer for permission to file an affidavit against the rejoinder filed by the opposite party/applicant based on record.

Mr. M. K. Majumdar, learned counsel for the petitioners submit that in pursuance to the rejoinder filed by the opposite party/applicant the Railway authority is required to file some documents to substantiate the averments made by the opposite party in the rejoinder.

In my view the respondents are always at liberty to file any document. Accordingly, I do not pass any order in the matter.

M.P. stands disposed of as being infructuous.'

21. Pleadings being complete the case was heard extensively.

22. Learned counsel for the applicant in arguments reiterated the averments in the OA and the rejoinder. The crux of the arguments was two fold. First, the charge sheet issued on 26th June, 1999 following which the ex-parte inquiry report was submitted on 10th May, 2000 against which the applicant submitted a representation on 16th June, 2000 and reminders sent on 4th April, 2001 and 5th February, 2003, yet the proceedings were not concluded till the Hon’ble High Court of Guwahati in its order and judgment dated 22nd February, 2011 issued directions in a Contempt Case (C) 242/2010.

23. With regard to finalization of departmental proceedings, learned counsel however, admitted that in view of the above order of the Hon’ble High Court the proceedings were finalized within the time provided in the Hon’ble High Court’s order by the disciplinary authority by his order dated 20th April, 2011. The legal aspect which was emphasized by the learned counsel for the applicant was that inordinate delay in the finalization of the disciplinary proceedings itself is violative of the law and deserves the Hon’ble Tribunal’s interference.

24. The other issue raised by the learned counsel for the applicant is regarding the inquiry report per se. According to the learned counsel even though Inquiry Officer has the right to conclude the inquiry ex-parte the conclusions has to be substantiated on the basis of records and cannot be ipse dixit without analyzing the material on record. In support of his arguments the learned counsel for the applicant relied on the following judgments of the Hon’ble Apex Court:-

a) State of A.P. v. N. Radhakishan – (1998) 4 SCC 154

Service Law – Departmental Enquiry – Delay in conclusion of – When vitiates the proceedings – Held, there are no predetermined principles applicable to all cases and in all situations – Each case has to be considered taking into account all relevant facts and circumstances – Balance has to be maintained between purity of administration and the adverse effect which the prolonged proceedings have on an employee – Unexplained delay in conclusion of the proceedings, further held, itself is an indication of prejudice caused to the employee – Disciplinary proceedings in the present case therefore, quashed – Employee directed to be promoted in accordance with recommendations of the DPC – Two charge memos subsequent to DPC also directed to be ignored for the purpose of promotion – Andhra Pradesh Civil Services (CCA) Rules, 1963, R. 19(2) – Andhra Pradesh Civil Services (CCA) Rules, 1991, Rr. 20, 21 and 45 – Promotion – Sealed cover procedure – Delay in conclusion of departmental enquiry – Effect.

b) P. V. Mahadevan v. Md. T.N. Housing Board – (2005) 6 SCC 636

11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and suffering of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.'

(emphasis supplied)

25. The above citation however does not come to the support of the applicant as in the present case the departmental proceedings have already been concluded while in the case of P.V. Mahadevan’s case (supra) the Apex Court has intervened as in that case the departmental proceedings were being initiated after a lapse of 10 years and accordingly quashed the charge memo.

26. Learned counsel for the applicant also relied on the decision in Anil Kumar v. Presiding Officer & Ors. – AIR 1985 SC 1121 which lays down certain guiding principles with regard to application of mind during the inquiry. The relevant part of the judgment is extracted below:-

'5. We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the Enquiry Officer. It is well settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not credit-worthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial must shown the reasons for the conclusion. It cannot be ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. V. Union of India (1966) 1 SCR 466 : (AIR 1966 SC 671), this Court observed that a speaking order will be best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad v. State of Uttar Pradesh (1971) 1 SCR 201 : (AIR 1970 SC 1302), this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a gross cause of non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court.'

(emphasis supplied)

27. Learned counsel for the appellant also relied on the judgment of the Hon’ble Apex Court in B.L. Sredhar & Ors. v. K.M. Munireddy (dead) & Ors. – AIR 2003 SC 578. The Apex Court in this judgment has considered the Evidence Act and the doctrine of estoppel. Learned counsel for the applicant in his argument could not establish before this Court as to how in the present case the doctrine of estoppels comes to his help. The learned counsel for the applicant also relied on the decision of the Apex Court in Union of India & Ors. v. I.S. Singh – 1994 Supp (2) SCC 518, wherein the Hon’ble Apex Court has held as under:-

'2. So far as the first ground is concerned, it stands negative by the recent decision of this Court in Managing Director, ECIL, Hyderabad v. B. Karunakar, inasmuch as the order of punishment is of the year 1980. So, far as the second ground is concerned, a few facts need be stated. An inquiry was held, in the first instance, which was not found to be in order by the disciplinary authority who directed a fresh inquiry. When notices were issued in the second inquiry, they could not be served on the respondent. On a later date, the respondent sent an application stating that he is suffering from unsoundness of mind and that the inquiry may be postponed till he regains his mental health. The respondent also states that he sent his medical certificate along with he is application. (Indeed, according to him, he sent not one but three letters to the said effect.) The report of the Enquiry Officer, however, does not show that he paid any attention to these letters. If, indeed, the letters were not accompanied by medical certificates, as is now asserted by Shri Mahajan, learned counsel for the appellants, the proper course for the Enquiry Officer was to have called upon the respondent either to produce a medical certificate or to direct him to be examined by a medical officer specified by him. The inquiry report does not even refer to the request contained in the said application nor does it mention why and for what reasons did he ignore the said plea of the respondent. The Enquiry Officer proceeded ex parte, in spite of the said letters and made his recommendation on the basis of which the aforesaid penalty was imposed. It is evident from the facts stated above that the Enquiry Officer has not only conducted the inquiry in a manner contrary to the procedure prescribed by Rule 14(2) of CCS (CCA) Rules but also in violation of the principles of natural justice. The result of this finding would have been to set aside the order of punishment and allow the authority to proceed with the inquiry afresh. In our opinion, however, this is not advisable at this distance of time and also having regard to the nature of the charges levelled against the respondent. We think that the more appropriate course would be to give a quietus to the matter at this stage itself, at the same time providing for some measure of penalty to the respondent. We suggested to the learned counsel for the respondent whether he is agreeable to our suggestion, viz., that the respondent should forego the emoluments for the period commencing from June 1, 1980 to August 31, 1985 (approximating to the date of punishment and the date on which the respondent approached the High Court). Learned counsel, Shri H.M. Singh, agrees to the said course after consulting his client. In the circumstances, we dismiss the appeal but direct that the respondent shall not be entitled to any emoluments for the period June 1, 1980 to August 31, 1985. The said period shall, however, count for seniority and other purposes. The respondent shall be reinstated forthwith.'

(emphasis supplied)

28. Learned counsel also brought to the notice of this Court the judgment of the Apex Court in the matter of State of Uttar Pradesh & Ors. v. Saroj Kumar Sinha – (2010) 2 SCC 772. In the above case the Hon’ble Apex Court has laid down the requirement of ensuring natural justice to the charged officer by the inquiry officer. The relevant portion of the judgment is extracted below:

'An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, the same could not have been taken into consideration to conclude that the charges have been proved against the respondents.'

(emphasis supplied)

29. Learned counsel for the respondents however drew the attention of this Court with regard to the peculiar circumstances of the case. According to the learned counsel for the respondents the delay in the conclusion of the departmental proceedings cannot be placed at the doors of the respondents. The applicant has admitted that on 16th June, 2000 he submitted his representation against the inquiry report which was initiated by charge memo No. E/74/GAZ/386/CON, dated 26.6.1999 thus within a period of one year the departmental proceedings has reached the stage where not only the inquiry was completed but it was also served upon the employee. However, by order dated 21st June, 2000 another departmental proceeding which was started as a consequence to C.B.I. trap case the applicant was served penalty of compulsory retirement. Once the penalty of compulsory retirement has been imposed the applicant ceased to be the employee of the Railways and therefore another departmental proceeding in which the applicant had submitted his representation could not be concluded with equal dispatch. The respondents however admitted that the applicant could successfully challenge the compulsory retirement order by OA No. 377 of 2000 which was disposed of by order dated 27.2.2002. According to the respondents the delay from 6th June, 2000 on which the applicant submitted his representation against the inquiry report till the decision of the Hon’ble Tribunal on 27th February, 2002, therefore, cannot be attributed to the respondents malice. The learned counsel for the respondents further submitted that the respondents challenged the above order of the Hon’ble Tribunal by Writ Petition (C) No. 6178/2002. The Hon’ble High Court disposed of the Writ Petition by order dated 18th July, 2009. Against this order the respondents filed SLP. The SLP was disposed of on 18th January, 2010. Learned counsel further submitted that the applicant has also filed contempt case which was disposed of on 22nd February, 2011 and as per the directions of the Hon’ble High Court the respondents has concluded the departmental proceeding. In view of the above chronological development the applicant cannot blame the respondents for delay in finalization of the departmental proceeding out of malice.

30. Learned counsel for the respondents also argued in support of the inquiry officer as well as the inquiry report. Learned counsel for the respondents submitted that the inquiry officer has given enough opportunities to the applicant but on one ground or the other the applicant choose not to participate in the inquiry proceeding. The inquiry officer was therefore, left with no option but to conclude the report ex-parte. Learned counsel also drew the attention of the Court on the nature of the charge against the applicant and also the contents of Annexure A4, of the charge memo whereby it has been clearly mentioned that no witness is proposed to be examined by the Department to prove the charges against the applicant. Learned counsel emphasized that the following documents were relied upon by the inquiry officer to substantiate the charge.

'(1) GM(P)/MLG’s order No. E/283/III/130/Pt.X(O), dated 12-2-96;

(2) MS(IC)/LMG’s letter no. H/184/LM-17 dated 1-3-96;

(3) MS(IC)/LMG’s letter no. H/SS/LM/8 (loose), dtd 14-8-96;

(4) MS(IC)/LMG’s letter no. H/174/LM, dated 13-9-96;

(5) MS(IC)/LMG’s letter no. H/174/LM, dated 18-9-96;

(6) MS(IC)/LMG’s letter no. H/174/LM, dated 29-1-97.'

Since the applicant has never in his pleadings disputed the authenticity of these letters the inquiry officer’s reliance on the same, cannot be treated as prejudicial to the principles of natural justice.

31. Learned counsel for the respondents vehemently contested the arguments of the respondents and specifically drew the attention of this Court decision in OA No. 113 of 2004 delivered on 6th June, 2004 whereby the Hon’ble Tribunal has disposed of the application with a direction to the disciplinary authority to conclude the proceedings within two months from the date of communication of this order. According to the learned counsel the respondents neither complied with the decision of the Hon’ble Tribunal nor the decision of the Hon’ble High Court in Writ Petition (C) 9131/2004 delivered on 18th July, 2009 instead they choose to file SLP where they did not succeed. Applicant ultimately had to resort to filing the contempt case and only on the direction in the contempt case No. 242/2010 delivered on 25.2.2011 the departmental proceedings were concluded and that too by an order whereby the applicant has been removed from service. Learned counsel for the applicant alleged that the respondents purposefully kept the departmental proceedings pending so that in case they file any Writ Petition against the reversal of fortune in OA No. 377 of 2000 whereby the order of the respondents to retire the applicant compulsorily could not be favourably decided. The respondents according to the learned counsel were very specific upon removing the applicant from the service on one ground or the other.

32. In view of the submissions made by the learned counsel for the applicant as well as the respondents and the pleadings and the record made available by rival parties following emerges:

i) The applicant was visited by a C.B.I. trap case in 1995, CBI having not found sufficient evidence ultimately left the matter to be decided by the department. Accordingly the department initiated departmental proceedings against the applicant and retired him compulsorily. From the pleadings as well as material available on records it cannot be inferred that the visit of the C.B.I. trap case on the applicant was malafide and could have triggered by some malice against the applicant at the level of respondents.

ii) After the CBI trap incident the Department transferred the applicant from Hojai to Lumding. The transfer per se cannot be treated as a measure of prejudice against the applicant. By his own admission the applicant fell sick on 9.2.1996 during the pendency of departmental proceeding started in the background of C.B.I. trap case. In paragraph 4.3 of the application the applicant volunteered the information that from the time he fell sick on 9.2.1996 he sought treatment at Lumding Divisional Railway Hospital. The department transferred him to Lumding on 12/13th February, 1996. The court has not been able to convince itself that the applicant who was posted at Hojai and was under treatment till 1st March, 1996 at the Divisional Railway Hospital, Lumding could have been adversely impacted by complying the transfer orders. In fact it might have facilitated his treatment and would have saved him from travelling from Hojai to Lumding for medical treatment. The Court however, has taken note of the fact that the applicant got referred to Maligaon Central Hospital on 1st March, 1996 and later to Guwahati Medical College. From the records it is evident that the applicant did not comply with the transfer order on the ground of sickness. Apparently the department was not supportive of the idea of his being kept at Hojai where he was visited with the C.B.I. trap case. It is also not the case of the applicant that in the interest of his proper medical treatment he requested to transfer him and to post him to Guwahati, where he was under treatment. Instead the applicant chose to remain posted in Hojai.

33. The departmental proceedings against the applicant were started by memo No. E/74/GAZ/386/CON, dated 26th June, 1999 i.e. more than three years after the transfer from Hojai to Lumding. In between the applicant was given opportunity to present himself matters before the medical board to justify his reasons for not complying with the transfer order on the ground of sickness. The applicant however availed none of the opportunities.

34. The charge memo issued against the employee is being extracted below:

'That the said Dr. Ashoke Bagchi, Sr. DMO, did not comply with the orders of transfer, issued under GM(P)/Maligaon’s No. E/283/III/130/Pt.X(O), dated 12-2-96 and remained on unauthorized absence since 20-9-96, thereby failed to ensure complete devotion to duty and acted in a manner unbecoming of a Railway servant in clear violation of Rule 3(1)(ii) and (iii) of Railway Service (Conduct) Rules, 1966.'

The charge basically relates to non-compliance of the transfer order and remaining on unauthorized absence from 20th September, 1996. The applicant has not been able to prove by the documentary evidence that he has applied for medical leave and on rejection of the same he has sought legal remedy. From 12th February, 1996 to 26.6.1999 there was enough time and opportunity before the applicant to clear the clouds of his feigned sickness. The medical Board called at Lumding as well as Maligaon were not availed of by him. The applicant pleaded that it should have been at Hojai. On the face of record this also appears an after thought as no where in his submissions it has come out that he was willing to present himself before the medical board had it been organized at Hojai Railway Medical facility or made a request for the medical board being organized at Hojai.

35. With regard to the absence from duty following observations of the Hon’ble High Cuort in Contempt Case No. 242/2010 dated 16.8.2010, is relevant and is being extracted hereunder:-

'The petitioner should now report to the respondents for his posting and the respondents will process the consequential benefits and continuity of service and other service benefits within a period of one month from today.

Learned counsel for the respondents has given an assurance to the Court that the needful processing will be carried out within a month and in any case before the end of September 2010.

The contempt petition is disposed of.'

(emphasis supplied)

36. In Writ petitions Nos.6178 of 2002 and 9131 of 2004 the Hon’ble High Court of Guwahati in its judgment dated 18.7.2009 has observed as under:

'8. Having answered both the writ petitions in the manner indicated above, we are of the view that it is necessary for us to address ourselves to the actions of the Union of India (Ministry of Railways/Railway Board) in not implementing the orders of the learned Tribunal passed in the two cases despite the fact that there was no interim order passed by this Court while entertaining the writ petitions in question. In WP(C) No. 6178/2002, the learned Tribunal as far back as on 27.2.2002 had interfered with the order of compulsory retirement of the applicant (respondent). The writ peti

tion filed on 23.9.2002 was entertained, but no interim relief was granted to the writ petitioner. In such circumstances, it was incumbent on the part of the writ petitioner to implement the order of the learned Tribunal. The same had not been done and, in fact, the order of the learned Tribunal remains unimplemented till date. Similarly, in WP(C) No. 9131/2004 the learned Tribunal had directed conclusion of the departmental proceeding initiated against the applicant (respondent) as far back as on 16.6.2004. Though the writ petition was entertained, once again no interim relief was granted to the petitioner. Yet, the writ petitioner had not implemented the order of the learned Tribunal. The writ petitioner is the Union of India represented by the Ministry of Railways (Railway Board). We are distressed by the conduct of the Union of in showing scant respect to the orders passed by judicial and quasi-judicial forums. At the same time, the applicant (respondent in both the writ petitions), at no point of time; bought the fact of non-implementation of the orders to the notice of this Court. Such facts had been revealed to the Court only when the writ petitions were heard. In such circumstances we do not deem it necessary to proceed any further in the matter except to indicate our deep dis-pleasure with the conduct of the Union. The Union will now implement the orders of this Court passed in the two writ petitions forthwith and without any delay.' (emphasis supplied) 37. Apparently the Hon’ble High Court was also taken by surprise that during the pendency of the Writ Petitions neither the applicant nor the writ petitioners brought the fact to the notice of the court that the orders of the Tribunal has not been implemented and the court came to know of the non-implementation of the relief granted by the Tribunal at the time of hearing. The Hon’ble Court’s above observation on the fact of it could not be interpreted in a way that could reach to conclusion that none from the rival parties took pains to implement the Hon’ble Tribunal’s order in OA No. 377 of 2002 and as well as OA No. 113/2004. One may probably find it as a logical behaviour on the part of the Railways as they were contesting to get the orders reversed but the applicant’s non-insistence for letting him join after the order of compulsory retirement having been reversed to say the least cannot be understood as a logical behaviour on the part of the applicant. In the present OA neither in the pleadings nor during arguments it has been brought to the notice of this Court that the applicant after being successful in getting compulsory retirement order reversed made efforts to join but was not allowed by the respondents. The absence from duty, therefore, is not fully explained by the medical health of the applicant or reasons beyond his control because of the pending litigation. The wilful avoidance of duty on one pretext or other is, therefore, gets fully controverted by the applicant. 38. The inquiry report has confined itself on various records and communications exchanged between the applicant and the Railway authority. Since the prosecution has not adduced evidence by producing any witness, therefore, the analysis of the evidence and the opportunity of cross-examination and legal requirement related to that cannot be invoked in this case. This court has also perused the impugned order of removal from service. Paragraph 9 of the order has clearly brought out the legal position with regard to sanction of leave on medical grounds to Group-A and B officers of the Railways. Since neither in the pleadings nor at the time of arguments learned counsel for the applicant has been able to point out any legal flow or factual mistake in the impugned order, this court does not find any relevant material in the averments in support of the applicant on this count. 39. The delay in the conclusion of the departmental proceedings has to be seen in the backdrop of long drawn litigations which reached up to the Apex court and consisted of multiple interventions of this Tribunal as well as the Hon’ble High Court where even the provisions of the Contempt of Court Act were invoked. The delay in the conclusion of the proceedings cannot be considered mala fide. The Apex Court in N. Radhakishan’s case (supra) which has also been relied upon by the applicant has held that delay in conclusion of departmental inquiry when vitiated there cannot be pre-determined principle applicable to all cases and in all situations. Each case has to be considered taking into account all relevant facts and circumstances. Balance has to be maintained between purity of administration and the adverse effect which the prolonged proceedings have on an employee. Evidently in the present case the departmental proceeding has been prolonged because of the various cases filed in various legal forums by both parties. The behaviour of the applicant of not complying with the transfer orders and remaining absent on the ground of sickness and the consequential long drawn litigation does not give confidence to this Court to blame the respondents solely for the delay. 40. In view of the above observations the application is found wanting of merits both on matters of facts as well as that of law and is accordingly, dismissed. No order as to costs.