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Judgment
Om Prakash VII, Member (J)
The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-
“(i) To issue a writ order or direction in the nature of certiorari to quash and set aside the impugned order dated 20.04.2018 (Annexure A-1 of the OA) by which the punishment of removal from service was awarded to the applicant by illegal and unlawful manner.
(ii) To issue any further writ order or direction in favour applicant which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case.
(iii) To award the cost of this application in favour of the applicant”.
The brief facts of the case are that applicant, while working on the post of ‘Trackman' under Respondent No. 5, was allegedly involved in a criminal case and an F.I.R. was lodged against him along with 7 other persons belonging to applicant's village being criminal Case No. 15/2004 U/s 147, 148, 504, 336, 304/149 IPC & Section 3(2) v and 3(1)X SC/ST (PA) Act PS Manikpur District Chitrakoot in the Month of September, 2016. Competent Authority was issued certificate wherein it was certified that the applicant was on duty at the time incidence took place i.e. 07.03.2004 but due to malafide reasons, the opposite party mentioned the name of the applicant in the F.I.R. Police authorities submitted the charge-sheet and trial was started. Trial was concluded and the Court of Special Judge, SC/ST (PA) Act/ Additional Session Judge Fast Track Court, Chitrakoot awarded punishment of life imprisonment to the applicant and 07 other person vide its judgment and order dated 29.09.2016 and, therefore, applicant was sent in Jail.
It is relevant to mention here that the applicant was going to be retired on 31.10.2016 after attaining the age of superannuation but just before one month of the date of the retirement he was arrested and restrained in jail in the aforesaid criminal case which was falsely registered by the opposite party due to malafide reasons. Thereafter, the applicant and 5 others filed a Criminal Appeal No. 5182/2016 (Ajay and 5 Ors Vs State of U.P.) before the Hon'ble High Court against the conviction and punishment order dated 29.09.2016 and 30.09.2016 passed by the Additional Session Judge/Fast Track Court, Chitrakoot. After hearing both the parties, the Hon'ble High Court considered the case of the applicant and granted him bail. The Respondent No. 5 issued an undated Standard Form No. 12 which is the form of memorandum to be issued to an employee convicted in a criminal charge and action was proposed to be taken under Rule 14(1) DAR. The aforesaid memorandum is without date and never served upon the applicant. Respondent No. 5 issued a show-cause notice dated 30.03.2018 in which they have disclosed that the SF-5 dated 28.10.2016 was issued to the applicant when he was in jail. Applicant has not received the show cause notice issued to him as he was in jail, thus respondent No. 5 passed the impugned order dated 20.04.2018 whereby applicant was removed from service. Hence, this OA.
We have heard Sri Dharmendra Tiwari, learned counsel for the applicant and Shri S.C. Mishra, learned counsel for the respondents and perused the record.
Submission of the learned counsel for the applicant is that from a bare perusal of the aforesaid show-cause notice issued by the respondent No. 5, it is crystal clear that alleged SF-5 dated 28.10.2016 was issued to the applicant when he was in jail and just before three days to the date of retirement of the applicant i.e. 31.10.2016. Learned counsel further submitted that aforesaid alleged SF-5 was never served upon the applicant in spite of the knowledge of the Railway Administration/Competent Authorities that he was in jail. He also submitted that it is clearly evident from the perusal of SF-12 (Annexure A-5), that no date is mentioned on it but for the first time in show-cause notice the date was disclosed i.e. 10.03.2018 but the mode of service upon the applicant is not mentioned in the aforesaid show-cause notice. Learned counsel for the applicant further contended that when the applicant contacted in the office of Respondent No. 5 for payment of pension and other retiral dues/benefits then only the concerned clerk handed over the show-cause notice (SF-12) as well as punishment order to him. It is also contended that the applicant was misguided by the concerned clerk so he failed to submit any appeal or representation against the aforesaid illegal and unlawful DAR proceeding as well as punishment order.
On the other hand, learned counsel for the respondents argued that applicant in Annexure No. 5 has wrongly mentioned date, which is not on the basis of record. In fact, the applicant was given chargesheet (SF - 5) on 28.10.2016, which was verified from the documents annexed with the OA and applicant received the aforesaid chargesheet on 26.09.2017. Learned counsel also argued that after following the procedure prescribed under the Rules, applicant was removed from service vide order dated 20.01.2018. Learned counsel for respondents also contended that an FIR was lodged against the applicant and 7 others persons of the applicant’s village. In the aforementioned case, he was convicted for life imprisonment and, therefore, he was sent in jail. For the aforesaid reason, he was unauthorizedly absent from duty from 02.09.2016 to 23.09.2017. Disciplinary proceedings were initiated against the applicant and SF-5 dated 28.10.2016 was sent at his residence, but it could not be delivered to him. Further, SF-12 dated 10.03.2018 was sent at his residence and it was received by the applicant. In reply to the SF-12, applicant did not pay any heed to submit the reply. Therefore, impugned order was passed on 20.04.2018 whereby applicant was removed from service. Learned counsel lastly contended that proper opportunity was afforded to the applicant before passing punishment order.
We have considered the rival submissions of the learned counsel for the parties and have gone through the entire record.
Undisputed facts are that the applicant working with the respondents organisation, an FIR was lodged against the applicant and 7 other persons under sections 147,148,504, 336, 304/149 IPC and Section 3 (2) v and 3(1) X SC/ST (PA) Act at PS Manikpur District Chitrakoot in the month of September. Applicant was arrested and thereafter police submitted charge-sheet and trial was started. Vide order dated 29.09.2016, the Court of Special Judge, SC/ST (PA) Act/Additional Session Judge/Fast Track Court Chitrakoot awarded the punishment of life imprisonment to the applicant and 7 persons. Thereafter applicant was sent in jail. Further Applicant and 5 others filed a criminal appeal No. 5182/2016 before the Hon’ble High Court against the conviction and punishment order. After hearing both the parties, Hon’ble High Court granted bail to them vide order dated 6.9.2017. After release in jail, respondent No. 5 issued SF 12 to the applicant proposing to initiate disciplinary proceedings. The aforesaid SF-12 is undated. The aforesaid SF-12 was not received by the applicant. Applicant has not submitted his reply on the aforesaid SF-12 and therefore, enquiry was initiated against the applicant and ex-parte punishment order was passed. It is also relevant to mention here that SF-5 dated 28.10.2016 was issued to the applicant when he was in jail. It is notable that applicant was retired from service on 31.10.2016.
The entire proceedings which has been taken place in pursuance of the SF-12 without following due process of law, needless to say that the respondents have not followed the procedure as provided under the rules and ex-parte enquiry was initiated against the applicant and the enquiry officer submitted his report to the disciplinary authority and after considering the same, disciplinary authority passed the order of removal.
In the case of Union of India v. Bishamber Das Dogra, (2009) 13 SCC 102, the Hon’ble Supreme Court has observed that:-
“9. We have considered the rival submissions made by the learned counsel for the parties and perused the record. In view of the submissions made by learned counsel for the parties, only two questions arise for our consideration:
(1) Whether the delinquent employee is not supposed to establish de facto prejudice in case the enquiry report is not supplied to him before awarding punishment?
(2) Whether the order of punishment would be vitiated if the disciplinary authority takes into consideration the past conduct of the delinquent employee for the purpose of punishment?
In fact both these issues relate to the observance of the principles of natural justice as the delinquent employee may not get an opportunity to make the representation against the findings of fact recorded by the enquiry officer against him and also for the proposed punishment by the disciplinary authority.
“10. Principles of natural justice cannot be put into a straitjacket formula and its observance would depend upon the fact situation of each case. Therefore, the application of the principles of natural justice has to be understood with reference to the relevant facts and circumstances of a particular case”.
In Board of Mining Examination and Chief Inspector of Mines vs. Ramjee,(1977) 2 SCC256, the Hon’ble Supreme Court has observed that:-
“13. ... Natural justice is [not an] unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of.”
(emphasis supplied)
In Umrao Singh Choudhary (Dr.) v. State of M.P.,(1994) 4 SCC 329, the Hon’ble Supreme Court held that the principles of natural justice do not supplant the law, but supplement the law. In Syndicate Bank v. Venkatesh Gururao Kurati,(2006) 3 SCC 150, it was held:-
“18. ... To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.”
It is settled legal position that an order is required to be examined on the touchstone of doctrine of prejudice. A Constitution Bench of the Hon’ble Supreme Court in ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704], considered the issue at length and after taking into consideration its earlier judgment in Union of India v. Mohd. Ramzan Khan [(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : (1991) 16 ATC 505 and B. Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] , SCC p. 755, para 28), came to the conclusion that furnishing of the copy of the enquiry report and consideration of the employee's reply to the same by the disciplinary authority constitute an integral part of the enquiry and in para No. 28 has also held as under:-
“28. ... The second stage follows the enquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty.”
Thus, it is the right of the employee to get the opportunity to make a representation against the findings in the enquiry report.
From the aforesaid judgments referred to above, it is crystal clear that before passing punishment order for removal from service, opportunity of hearing must be followed, therefore, we are of the opinion that in this case, entire proceeding adopted by the disciplinary authority for removal of the applicant from service have been started without affording opportunity to the applicant. Rule specifically provides that before taking any decision on the subject, opportunity for filing representation to the concerned employee must have been given. In reply to the assertion in the counter affidavit, nothing is on record to establish that chargesheet said to have been issued during service period have been served upon the applicant whereas in the OA as well as in the rejoinder affidavit, it has specifically been contended that chargesheet said to have been issued to the applicant was not served upon him, thus there was no occasion to give reply to the charge sheet. Therefore, the impugned punishment order is illegal and liable to be quashed but it will be open to the respondents to start a fresh inquiry in accordance with law from the stage issuing show cause notice if permissible under law.
In view of the above observations, O.A. is allowed. Impugned order dated 20.04.2018 is quashed. Liberty is given to the respondents to start a fresh inquiry in accordance with law if so advised. No order as to costs. All associated MAs are disposed of.