Benoy Bhusan Banerjee vs Divisional Superintendent, Eastern Railway

D. Basu, J.—The Petitioner is aggrieved by the order of stoppage of his increment dated October 21, 1960, as affirmed by the order of October 26, 1962, which are at annexes. XIII and XV respectively.

The Petitioner was at the material time working as a shed clerk under the Eastern Railway. On August 8, 1958, he was served with the charge-sheet at annEx. I, issued by the District Traffic Superintendent. But, after the Petitioner submitted his explanation to the same, the Petitioner was served with a second charge-sheet dated December 9, 1958, issued by the Assistant Personnel Officer (Respondent No. 5) which is at annEx. IV. After an inquiry held by a committee, headed by the Assistant Personnel Officer, the Petitioner was held guilty of the charges, and after a second show-cause notice the Petitioner was removed from service by the order dated August 11, 1960, passed by the Divisional Superintendent (Respondent No. 1) which is at annEx. XII to the petition. The Petitioner, thereafter, prayed for a reconsideration of the penalty, and upon such reconsideration the Divisional Superintendent cancelled the order of removal and substituted the punishment of stoppage of increment by the order at AnnEx. XIII. The Petitioner has failed to get any relief by successive appeals to Respondents 1 and 3.

The petition is opposed by a joint affidavit filed by the Assistant Personnel Officer on behalf of Respondents 1, 2 and 5.

The Petitioner mainly relies on the ground that the proceedings were not conducted in conformity with the requirements of Article 311 (2) of the Constitution as well as the Rules of the Railway Establishment Code. In para. 18 of the counter-affidavit, it has been contended that Article 311(2) is not attracted to this case as the punishment ultimately awarded in the proceedings is not removal but only stoppage of increment. It is also urged that the question whether the procedure laid down in the Railway Establishment Code relating to major penalties or minor penalties will also depend upon an answer to the question ''what order was passed'' in the proceeding after the inquiry alleged.

It is true that the order of removal has eventually been substituted by the order of stoppage of increment. But the order which was passed in the disciplinary proceeding, after issuing a provisional order with a notice to show cause, was one of removal. The order (annEx. XII) was passed by the punishing authority on August 11, 1960, and it was given effect to from August 16, 1960. Hence, with effect from August 16, 1960, the Petitioner had been removed from service. That was the penalty awarded in the disciplinary proceeding and upon that fact Article 311(2) of the Constitution as well as Rule 1708-1715 of the Railway Establishment Code, vol. I, will be attracted. The mere fact that after a reconsideration, upon the Petitioner''s representation, the penalty had been reduced to stoppage of increment, two months after the removal had taken effect (annEx. XIII) does not affect the proper procedure which was to be followed under the Constitution or the Railway Code.

In my opinion, the proceedings, as held, have violated the rules of natural justice as implied in Article 311(2) of the Constitution as well as Rule 1711 of the Code, in the matter of withholding relevant document from the Petitioner.

I. At the inquiry stage, the Petitioner was refused inspection or copies of certain documents, as to which the reply of the Respondents is to be found at annEx. VIII.

(a) As to ''delivery statements of 10th January, 1958'', it was said that they would be ''made available to you during inquiry''. Since it is not contended that they were not irrelevant, the document should have been shown to the Petitioner before he was asked to submit his explanation to the charge. Otherwise the very object of supplying documents necessary for meeting the charges would be meaningless. Since the charges involved short delivery there is no doubt that the delivery statements were not only relevant but also material for preparing a proper defence.

(b) As regards the complaint, if any, regarding the delivery of the disputed consignment, the reply of the authorities was that they were ''confidential'' and could not, therefore, be made available to the Petitioner. It has been held by the Supreme Court in State of M.P. v. Chintamani AIR 1961 S.C. 1623 (1628) that documents upon which the charge was founded should be supplied to the Petitioner. Nothing could be shown at the hearing to substantiate that those documents were such that they could not be supplied to the Petitioner without prejudice to the public interests.

II. Even at the second stage, i.e., after the second show-cause notice was served, the Petitioner was refused relevant and material documents, including the statements of witnesses examined by the Inquiry Committee, upon which the finding of guilt was based (annEx. XI). But no reply to the Petitioner''s request in this behalf was offered. On the other hand, in para. 12 of the counter-affidavit, it is urged that the Petitioner was not entitled to copies of those documents simply because at that stage the only question raised by the show-cause notice was ''against the penalty proposed against the Petitioner''. This contention of the Respondents is not sound, since it has been authoritatively laid down in Khem Chand Vs. The Union of India (UOI )and Others, that the opportunity of the delinquent to make a representation at the second stage is not confined to the quantum of penalty only and that at this stage the delinquent is entitled to contend�

(a) That the inquiry at which the findings were arrived at was vitiated by a breach of the principles of natural justice.

(b) That the findings are not supported by the evidence in the proceedings, or that the evidence against him is not worthy of credence or that he is not guilty of any misconduct to merit any punishment at all.

(c) That the punishment proposed could not be properly awarded on the findings arrived at, that is to say, the charges proved do not require the particular punishment proposed to be awarded.

Hence, at the second stage, the Petitioner is entitled to copies of all the evidence at the hearing, if not already supplied, with reference to which the Petitioner could show that the finding of guilt was not supported by the evidence before the Inquiry Committee. In case of refusal to supply such documents, the inquiry is vitiated by a contravention of the principles of natural justice.

The Petitioner is entitled to relief on this ground alone and there should be a fresh inquiry in the charges, from the stage after the service of the charge-sheet and after supplying the relevant documents, in the light of this judgment. In this connection, I should observe that the fact that the Petitioner obtained partial relief on a representation for reconsideration does not affect his right to obtain relief from this Court on the ground of violation of the principles of natural justice, in view of the observations of the House of Lords in Ridge v. Baldwin (1963) All E.R. 66 (H.L.) where it has been laid down that there cannot be any waiver of the right of a person to move against an order vitiated by non-compliance with the requirements of natural justice merely because he has pursued statutory or departmental remedies against the order complained of.

In view of the above finding, it is not necessary for me to go into other points raised by the Petitioner, except that I could find nothing wrong in a second charge-sheet, being issued after cancelling a previous charge-sheet whereas, in the instant case, the second charge-sheet was issued by a person having jurisdiction to issue the same.

In the result this Rule is made absolute, the impugned order and the appellate order are quashed, but with liberty to the Respondents to start afresh, in accordance with the law, from the stage after service of the second charge-sheet in the light of the observations made herein.

There will be no order as to costs.