Deoki Dass vs Union of India (UOI) and Others

Arun Kumar Mitra, J.—Challenge in this writ petition is the departmental proceeding, charge-sheet, the inquiry and the inquiry finding as well as the second show cause notice. The Petitioner was charge sheeted by an Assistant Security Commissioner. Charge-sheet bearing No. P. F. 6 (9) 153/92 dated September 25, 1992. On the basis of the charge-sheet departmental inquiry was held and as a result of the departmental inquiry the Petitioner was given punishment to the extent of removal from service. The Petitioner challenged the charge-sheet dated 25/09/1992, finding of the inquiry Officer dated December 07; 1992 and the second show-cause notice dated December 07, 1992 being annexure ''B'', ''H'' and ''I'' respectively to the writ petition. Once on the same charge-sheet a departmental proceeding was initiated and ultimately, punishment order was passed and the: Petitioner was removed from service. The Petitioner challenged the said departmental proceeding and the removal order in a writ proceeding being C. R. No. 15184 (W) of 1982. The,said writ petition was disposed of by an order dated August 26th, 1992 by His Lordship the Hon''ble Justice K. M. Yusuf (As His Lordship then was). While disposing of the said writ petition His Lordship made the following observations:

In my opinion, there was no materials for arriving at the satisfaction that it was not reasonably practicable to hold any fair enquiry against the Petitioner under the RPF Rules. The Respondents have not produced before the Court any documents or papers to satisfy the reasoning given by the authorities for not holding the disciplinary proceeding. The Respondents simply argued without placing any substantial materials before the Court. An injustice has been done and the Petitioners were penalized without any established facts of offence against them. It is admitted in paragraph 7 on page 5 of the Affidavit-in-opposition that it was "reasonably suspected" that such offence had been committed. Though it is claimed that the enquiry was based on documentary facts and not otherwise but the Respondents have no guts to place those documentary facts before the Court. It is very difficult to say whether the Petitioners were actually guilty of the offence or not and whether their removal from service was justified or not because everything is clouded in mystery and confined within the files of the Respondents. In my opinion, the Petitioners are entitled to relief on this count.

In above circumstances, the Division Orders being Nos. 683/82, 684/82, 685/82, 686/82 and 687/ 82 all the dated 8th December, 1982 are hereby quashed. But the writ Petitioners shall not be entitled to join their duties and liberty is given to the Respondents to initiate proceedings against the Petitioners in accordance with law within 30th. September, 1992 and complete the proceeding by passing the final order within 31 st December, 1992.

In case the Respondents do not start and complete the proceeding in accordance with the above direction then writ Petitioners shall be entitled to join their duties in the Railway Protection Force, Eastern Railways on and from 1st January, 1993 and shal be entitled to all the arrears of salaries and other benefits including due promotions, if any as well as the continuity of service.

The writ application is disposed of in the aforesaid terms. There will be no order as to costs.

Let xerox copy of the judgment be made available to the parties on usual undertaking and upon compliance of necessary formalities.

On the basis of the liberty given by His Lordship in the said writ petition the departmental authority started fresh departmental proceeding. This proceeding proceeded up to second show-cause stage and accordingly, the Petitioner has challenged the said "proceeding up to that stage before any punishment was inflicted Though the Petitioner averred that no punishment order was served on him but the Union of India in its affidavit-in-opposition in paragraph 3 clearly stated that the final order was passed on december 24, 1992 and the same was pasted in the Notice Board on the RPF Post, Dhanbad and the order of the Hon''ble High Court restraining from giving any effect of the proposed decision of inquiry Officer was received on December 29, 1992. According to the authorities the interim order in the eye of lasw in infructuous. However, the Petitioner challenged the proceeding up to second show-cause stage.

The Petitioner challenged the proceeding on various grounds including the ground that the authorities wrongly relied on Rule 153.8 of the RPF Rules, 1987 and that Rule is ultra vires and accordingly the proceeding is bad.

The Petitioner also took a ground that Rule 44 of the Rules of 1959 has already been replaced by Rule 153 of new Rules of 1987. This Rule 44 is no more in existence. Therefore, the authority acted illegally by proceeding on Rule 44 of RPF Rules 1959.

The Union of India filed an opposition affirmed by one Sri Anil Sharma.

According the the affidavit-in-opposition, no action under the formal Rule was taken in case of the Petitioner.

It has also been stated in the said affidavit that those witnesses who were considered essential by prosecution were examined. 1n the affidavit-in-opposition al the allegations made in the writ petition were denied. It was further stated that there is no provision in Rule 153 to issue show-cause before final decision-only there is a provision to make available the copy of the finding to the delinquent for submitting representation, if any for his defence. Accordingly, the copy of the findings of the Inquiry Officer was sent to the Petitioner through Office letter dated December 07, 1992.

It was further stated that no suchshow-cause was issued under Rule 153 of RPF Rules. Allegations made in the writ petition were denied in specific.

The Petitioner submitted affidavit-in-reply to the said opposition and reiterated his stand.

The Petitioner initially, challenged the charge sheet, inquiry proceeding and the second show-cause notice but subsequently the disciplinary authority passed the final order. Accordingly, the Petitioner took leave from the Court and filed supplementary affidavit.

SUBMISSION

The Learned Counsel for the Petitioner submits that the charge-sheet is biased and malafide because it discloses the name fo the Inquiry Officer and date as well as venue of inquiry proceeding, the inquiry finding is perverse inasmuch as it goes beyond the evidence and examining any witness behind the delinquent is illegal.

It is also submitted by the Learned Counsel for the Petitioner that the final order does not disclose any reason. The Learned Counsel for the Petitioner also submits that proceeding on the basis of Rs. 153.8 is illegal and it has already been declared ultra vires to the Constitution by two Hon''ble Judges in different judgments.

The Learned Counsel also submits that the finding of the Inquiry Officer is not tenable inasmuch as it proceeds on the basis of Rs. 153.8 of the RPF Rules and it does not allow the Petitioner to take proper defence and it is contrary to the evidence on record. In support of his contention the Learned Counsel for the Petitioner cited so may decisions.

The Learned Counsel for the Petitioner submits that charge-sheet is based on bias and mala fide inasmuch as the charge-sheet discloses the name of the Inquiry Officer as^well as. the date of inquiry and the venue of inquiry which goes to show that the authority was biased. In this connection the Learned Counsel for the Petitioner relied on a decision reported in State of Punjab v. V.K. Khanna and Ors.AIR 2001 SC. 343 The Learned Counsel on this score relied on two other decisions which follow the same principle reported in Sanjoy Kr. Singh v. Union of India and Ors.2002 (2) SLR 267 Suresh Chowdhury v. Union of India & Ors:2003 (2) SLR 426

Then the Learned Counsel for the petitione referred to another decision reported in Kumaon Mandal Vikas Nigam Ltd. v. Girija shankar Pant and Ors. AIR 2001 SC. 24 The Learned Counsel submits that in this judgment the Hon''ble apex Court has clarified as to what is bias and the Apex court has observed that for proof general statements are not sufficient. The Learned Counsel laid stress on the observation made in paragraphs 25 and 26 of this judgment which are quoted hereinbeiow:

''Bias'' in common English parlance mean and imply - predisposition or prejudice. The Managing Director admittedly, was not well disposed to towards the Respondent herein by reason wherefor, the Respondent was denuded of the financial power as also the administrative maangement of the department. It is the selfsame Managing Director who levels thirteen charges against Respondent and is the person who appoints the Inquiry Officer, but affords a pretended hearing himself late in the afternoon no 26-11-93 and eomunicates the roder of termination consisting of eithteen pages by early evening, the chain is complete. Prejudice apparent Bias as stated stands proved".

The concept of ''Bias however has had a steady refinement with the changing structure of the society. Modernisation of the society, with the passage of time, has its due impact on the concept of Bias as well. Three decades ago this Court in S. Parthasarthi Vs. State of Andhra Pradesh, ) proceeded on the footing of real likelihood of ''bias'' and there was in fact a total unanimityon this score between the English and the Indian Courts.

Mathdw J. in Parthasarathi''s case observed:

The tests of "real: likelihood" and "reasonable suspicion" are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a - reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have, This follows from the principle that justice must not only be done but seen to be done. If right minded person would think that there is real likelihood of bias on the part of an inquiry officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise and conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced.. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision (see per Lord Denning, H.R. in Metropolitan Properties Company (F.G.C.) Ltd. v. Lannon (1968)3 WLR 694 at 707. We should not, however, be understood to deny that the Court might with greater propriety apply the "reasonable suspicion" test in criminal or in proceedings analogous to criminal proceedings.:

Lord Thankerton however in Franklin v. Minister of Town and Country Planning (1948) AC 87 had this to state:

I could wish that the use of the word ''bias'' should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of even-handed justice Which the law requires for those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute.

The Learned Counsel then submitted that the inquiry finding becomes perverse if it relies on statement of any particular person without making that person as witness. The Learned Counsel also submitted that the Inquiry Officer relied on some documents which are not on record and as such the report of the Inquiry Officer is perverse so that it can be said based on no evidence.

The Learned Counsel challenged the inquiry proceeding which continued under R. 153.8 which envisages that the delinquent employee can take a friend in his defence not below the rank of Inspector. The Learned Counsel submits that this restriction is unreasonable and two Hon''ble Judges of this Court has declared this rule as ultra vires to the Constitution ''though that judgments are unreorted passed in Company No. 6694 (W) of 1991 (T. P. Chowdhury v. Union of India), C.O. No. 2600 (W) of 1992 (with Company O. No. 5127 (W)/1995), again (Mr. Bijoy Kumar Singh v. Dr. C. P. Saha Roy), Company No. 2583 (W) of 1994 (Mir Elias v. Union of India & Orsl), C. O. No. 2584 (W) of 1994 (Vindyachal Yadav v. Union of India and Ors.) and Company No. 2585 (W) of 1994 (Prabhuhath Singh v. Union of India))

The Learned Counsel submits that when the rule is ultra vires, the proceeding based on this rule can also be said to be ''not sustainable''.

The Learned Counsel has also annexed a judgment delivered by Hon''ble Justice K. M. Yusuf on August 26th, 1992 in C. R. No. 15184 (W) of 1982 (Tribhuwan Prosad Singh and Ors. v. Union of India and Ors.). In this judgment the Hon''ble Single Judge observed "In my opinion, there was no materials for arriving at the satisfaction that it was not reasonable practicable to hold any fair enquiry against the Petitioner under the RPF Rules." The elarned counsel very much laid stress on this observation of the judgment. The Learned Counsel submits that RPF Rules are framed in such a manner that it is not possible to conduct a fair inquiry under the said rules.

The Learned Counsel then submits that examining of any witness behind the delinquent is illegal. The Learned Counsel in this regard relied on a decision of the Hon''ble Apex Court reported in Union of India v. Sardar Bahadur.1972 (7) SLR 355 The Learned Counsel laid emphasis on the observations made in paragraph 10 of this decision which is quoted hereinbelow:

We do hot think that the statements should have been received in evidence as the Appellant had taken no step to produce the persons who made the statements for cross-examination of the Respondent. It was the duty of the Appellant to have produced these persons whose statements were sought to be proved for the cross-examination of the Respondent. In State of Mysore v. S.S. Makasur, 2003 (2) SLR 426 this Court said that the purpose of an examination in the presence of a party against when an enquiry is made, is saficiently achieved, when a witness who has given a prior statement is recalled, that statement is put to him, and make known to the opposite party, and the witness is tendered for cross-examination by that party. As the persons whose statements were sought to be relied on were in Delhi and as they were not produced and tendered for cross-examination by the Respondent, we think that the Inquiring Office was right in refusing to act upon the statements reliedon by the Appellant. As there was no material before the Inquiring Officer to show that P. S. Sundaram mentioned in the cheque is P. S. Sundaram, the Deputy Secretary, we think the High Court was justified in holding that these charges had no been proved.

On the same principle the Learned Counsel for the Petitioner relied on a decision of the Hon''ble Apex Court reported in Ministry of Finance and Anrs. v. S. B. Ramesh AIR 1998 853. The Learned Counsel relied on the observations made in paragraph 12 of this judgment.

The Learned Counsel for the Petitioner summarised his submission in the manner as follows:

(i) Charge-sheet is biased, malafide and is a result to close mind.

(ii) Statement of a person cannot be looked into without making the statement-maker a witness in the proceeding.

(iii) Rule 153.8 of RPF Rules, 1987 has been declared ultra vires by different Judges of this Hon''ble Court; naturally, proceeding on the basis of Rule 153.8 is illegal.

(iv) The disciplinary authority in its order did not record any reason.

(V) The Inquiry Officer also Aid not disclose on What basis he arrived at the finding and the reasons for his such arrival.

(vi) The proceedings will be quashed starting from the charge-sheet till the final order.

DECISION

Now, on the above facts and on the above submission of respective parties I am to decide the fate of the entire proceeding including the final order.

In a disciplinary proceeding the normal procedure is that if any person comits any wrong the preliminary inquiry is conducted and deciding on the preliminary inquiry report the authority comes to a conclusion as to whether the employee will be charge sheeted or inquiry will be conducted against him. Before coming to such a conclusion the delinquent employee is supplied with a copy of the report to make his comment and the authority also considers those comments when coming to a decision about charge-sheet or inquiry. But in this case when issuing the charge-sheet the authority decided to hold the inquiry and named the Inquiry Officer on the body of the charge-sheet and also fixed the venue of the inquiry as well as the date and time of holding the inquiry. From these facts it appear that the authority acted in a biased manner or in a closed mind - not that charges are baseless but the way of proceeding or the mind of the authority is, somewhat pre-determined.

The Inquiry Officer then after the charge-sheet usually gets the reply to the charge and decided the venue, date5 and time of holding the inquiry but here, everything was pre-planned.

The Inquiry Officer proceeded with the inquiry and when proceeding, the Inquiry Officer relied on Rule 153.8 of RPF Rules, 1987 which has already been declared ulra vires by sevral judgments delivered by different Hon''ble Judges of this Court. The Inquiry Officer also relied on documents or statement of persons without making those statement-makes witness to the proceeding which is not permissible in law.

Then comes the question of final order where also reasons are mandatory. Since it is a quasi-judicial authority-decision must be backed by reasons. But in the instant case it does not appear from the order itself that reasoning is there and in that view of the mater the entire proceeding goes and I, set aside the entire proceeding and the final order.

However, since the charges remain, the authority can proceed on the basis of fresh charge-sheet only on those charges but the authority is not permitted to take advantage of Rule 153.8 of RPF Rules and the authority is to follow the principles of natural justice in each and every step of the inquiry.

The inquiry proceeding is to be completed within three months from the date fo communication of the order.

The Petitioner will also co-operate with the authority and will not take the plea of unnecessary adjournment in the inquiry proceeding.

During this period of this inquiry status quo as regards his service will be maintained.

With the above directions the writ petition is disposd of.

There will be, no order as to costs.

Urgent xerox certified copy, if applied for, be made available to the parties as expeditiously as possible upon usual undertaking.