Da has taken exparte decision

jayesh sinha (Querist) 22 April 2012 This query is : Resolved
Chargesheet was given by D.A levelling charges ,I the undersign (chargesheeted employee) in schedule period of 10days replied that relied upon documents in support of charges framed by D.A should be furnished to me so that I can file replyin the reply I have not mentioned that I deny all the charges levelled againt me,the D.A to my reply asked the charge sheeted employee to write letter to vigilance department to get documents the vigilance department failed to supply documents to chargesheet employee and both the vigilance and D.A have failed to supply documents based on which charges are framed against me.
In the meantime D.A wentto training and the other officer who was asked to look after works finalized my chargesheet EXPARTE by violating all laid down norms of exparte on the ground that though I have replied to D.A in schedule time but in the reply I have not denied charges levelled against me MY QUESTION IS though I have not denied charges in my reply to charges levelled against me due to non-supply of documents by D.A/VIGILANCE DEPT in support of charges CAN D.A can take exparte decision simply on the ground that I have denied charges in my reply.
HOWEVER after appealing to APPELLATE AUTHORITY AFTER IMPOSITION OF PENALTY BY D.A I HAVE MADE IT CLEAR THAT I DENY ALL THE CHARGES LEVELLED AGAINST ME BY ATTACHNG ALL RELEVANT DOCUMENTS AVAILABLE TO ME AT THE TIME OF EXECUTION OF WORK I met appellate authority and gave my personal hearing and broght to his notice how D.A has violated all STATUORTY NORMS OF EXPARTE AND DEMANDED THAT CHARGESHEET should be dropped and penalty should me set aside what are the legal option available to me.
I am attaching the reply which I had given to D.A.

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Guest (Expert) 22 April 2012
Dear Jayesh,

You have not mentioned whether the chargesheet was meant for major penalty or minor penalty. However, the DA was not justified to direct you to ask for the documents from the vigilance department. He would have caused the supply of documents directly or through the vigilance department. If the charge sheet was meant for major penalty, you were required to ask for the documents during departmental inquiry after appointment of an Inquiry Officer.

An Officer with looking after charge of the DA was not entitled to decide your charge sheet case, if he was not posted on regular basis.

Sudhir Kumar, Advocate (Expert) 22 April 2012
In addition to what Mr Dhingra stataed I would add that you have not even intimated to which department/PSU you belong. Complete and correct advise should not be exptected by you on half facts.

The views expressed by Mr Dhingra are based on the established norms in the disciplinary proceedings. But unfortunately this person has already availed of the Appellate remedy.

The file attached with your query clearly indicates that you have not taken advise of anyone well versed in disciplinary matters and even the Appeallate remedy appears to have been spoiled by you.

Please remember that

(i) generally the court do not enter into assessemnt of evidence such issue case be resolved in Appeal/ Revision.

(ii) You have already misfiredd the Appeallate stage and only Revision stage is available to you befor egoing to Court.

Your case appears to have some strentgth which you will spoil if advise fo well conversant person is not sought.

Please contact a knowledgeable person immediatley before writing even a single shred opf paper.

jayesh sinha (Querist) 22 April 2012
i am working in railway department and given minor penalty chargesheet i am working as sectional engg

Sudhir Kumar, Advocate (Expert) 22 April 2012
You are still not a total loss case.

You still have remedy for revision petition and I would advise you not to attempt the same without a proper advise which you appear to have been going on so far.

In minor penalty there is generally there is no inquiry unless (i) penalty is intended to be comulative or (ii) the charged officer demands the same. From your blog it appears that you perhaps did not demand inquiry rather only demanded some documents.

In your case the the officer looing job of DA in concurrent charge has acted as DA which is illegal. I am deliberately not quoting the rule because you have already suffered becuase of half knowledge.

In case you have asked for certain documetns for preparing reply then either the DA (not the person looking after corrent charge)could have refused the same
or givne the same. In this cae as appearing from your facts that he has not refused the documents and also not provided. As Mr Dhingra has rightly observed and pointed out the same.

jayesh sinha (Querist) 22 April 2012
what is meaning of corent charge as per laymans language i have followed all the rules as per railway servant dar rules 1968 i have pointed to appelate authority that as per supreme court judgement without following rule of natural justice penalty cannot be imposed on me .
.(SUPREME COURT JUDGEMENT IN KASHINATH DIKSHITA VS UNION OF INDIA AIR 1986 SC 2118(PHOTO COPY ENCLOSED) –in which the final order of penalty was set aside on the ground that reasonable opportunity of access to official records was not given to the charged officer).
all these things are on record can the appellate authority can go above the ruling of supreme court

Sudhir Kumar, Advocate (Expert) 24 April 2012
It is typing error. It is "current charge" when one officer looks after the duties of another in additon of his own. In such case he cannot discharge quasi-judicial functions. This rule cannot be stretched in case of judges looking after cases of other judge on leave/training.

Sudhir Kumar, Advocate (Expert) 24 April 2012
many Appellate Authorities/ Disciplinary authorites are ignoring such directions.

While drafting appeal one has to take care as to on which ground the Appellate Orders will be challanged. Now you have to file Revision Petition you kindly contact a knowledgeable person. Your career is not for experimenting.

jayesh sinha (Querist) 28 April 2012
both the experts have not given comments on my attached file which i replied first time to the disiplinary authority can D.A can take exparty decision simply on the ground that i had only demanded documents to reply to framed chargesheet but i have not denied charges in my original reply to D.A IN attached file which i have attached kindly clarify

Guest (Expert) 28 April 2012
Dear Jayesh,

In the absence of the inquiry report, your own document does not have any meaning at least for me to give any comment without seeing the reason quoted by the I.O. for the conduct of ex-parte inquiry.

jayesh sinha (Querist) 16 May 2012
high regards for sincere and meningful advise given my eminent jurit that appelate authority had set aside the order imposed by D.A on the ground that laid down norms not followed and reqired documents in support of charges not supplied to charge sheet employee ordered to carry fresh trial by D.A,my question to eminent jurist is can they retrial the matter afresh as per railway dar rules 1968 and do i have edge over it
kindly give your legal opinion and remedy the further course of action available to me

Guest (Expert) 20 May 2012
If the inquiry is faulty, the competent authority, DA or the appellate authority, can order for denovo trial (retrial in layman's language). But, in the present case, the charge sheet being of a minor nature, the DA himself would repeat the procedure from initial stage of providing appropriate opportunity of defence to you upon which you would be required to submit your defence statement. Based on that defence statement the DA would take a fresh decision.

jayesh sinha (Querist) 20 May 2012
whether i am edge over this case in the present circumstances has not been answered by you

Da has taken exparte decision

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