Mahesh Singh vs Union of India and Others

Tapabrata Chakraborty, J.—This writ application has been preferred challenging the entire disciplinary proceeding including the order of suspension dated 6th January, 1991, the charge-sheet dated 20th February, 1991, the enquiry report dated 6th June, 1991, the order of punishment dated 22nd August, 1991 and the order of the appellate authority dated 27th November, 1991.

Shorn of unnecessary details, the facts are that the petitioner was appointed to the post of Constable on permanent basis in the year 1978 in Railway Protection Force (hereinafter referred to as RPF) and while he was working in the loco shed at Malda an order of suspension was issued against him on 6th January, 1991 and pertaining to an incident of 5th January, 1991, the petitioner was charge-sheeted by a memorandum dated 22nd August, 1991 issued by the respondent No. 3 to which the petitioner submitted a reply and participated in the enquiry and in the enquiry report dated 6th June, 1991 the petitioner was found guilty of charge Nos. IV and V amongst the five charges levelled against him through the charge sheet. The petitioner duly replied to the said enquiry report and the respondent No. 3 imposed a punishment of removal from service upon the petitioner by an order dated 22nd August, 1991. Aggrieved by the same, the petitioner preferred a statutory appeal on 12th September, 1991 and the appellate authority dismissed the petitioner''s appeal by an order dated 27th November, 1991. Aggrieved thereby the petitioner approached this Court through an application being C.O. No. 1011 (W) of 1993 under Article 226 of the Constitution of India but as the same was dismissed for default, a restoration application was filed and in the same an order was passed on 13th November, 2006 observing inter alia that in the event the petitioner''s right under the Constitution is a subsisting, it will be open for him to take out a fresh writ application and subsequent thereto, the instant writ application has been preferred by the petitioner.

Mr. Majumder, learned senior advocate appearing for the petitioner submits that the findings of the enquiry officer pertaining to the charge Nos. IV and V are not sustainable inasmuch as the Medical Examination Report would reveal that the petitioner was not intoxicated and that there was also no evidence on record to establish that the petitioner failed to deposit 25 rounds of live ammunition and such fact stands fortified through the statement made by the IPF, Malda, namely Sri J.M. Sen Sharma on 5th January, 1991 to the effect that he personally examined the empty cartoon as per seizure list and he found that there was no smell of barrel. Furthermore, in course of cross-examination J.B. Singh himself stated that he was not present when the petitioner deposited the arms and ammunition and that no diary as regards shortage of ammunition was lodged.

According to Mr. Majumder, the disciplinary authority has passed an order affirming the enquiry officer''s findings in respect of charge Nos. IV and V and also holding the petitioner guilty of the first three charges, which were not found proved by the enquiry officer and that the petitioner was also not granted any opportunity of hearing by the respondent No. 3 prior to arriving at a conclusion to the effect that the petitioner is guilty of all the five charges and that such action is violative of the principles of natural justice. In support of such contention, Mr. Majumder has relied upon an unreported judgment delivered in the case of Sri Patta Appala Ramulu vs. Union of India and Ors. and upon the judgment delivered in the case of Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, (1998) 6 AD 220 : AIR 1998 SC 2713 : (1998) 2 CTC 742 : (1998) 5 JT 548 : (1998) LabIC 3012 : (1998) 2 LLJ 809 : (1998) 4 SCALE 608 : (1998) 7 SCC 84 : (1998) SCC(L&S) 1783 : (1998) 1 SCR 22 Supp : (1999) 1 SLJ 271 : (1998) AIRSCW 2762 : (1998) 6 Supreme 486 .

Drawing the attention of this Court to the order passed by the appellate authority Mr. Majumder submits that the appellate authority has not taken into consideration the grounds agitated by the petitioner in the appeal petition and that the said order does not reflect any independent application of mind on the part of the appellate authority.

In support of his contention, Mr. Majumder has placed reliance upon the following judgments:

a) Anil Kumar Vs. Presiding Officer and Others, AIR 1985 SC 1121 : (1985) LabIC 1219 : (1986) 1 LLJ 101 : (1985) 2 SCALE 1365 : (1985) 3 SCC 378 : (1985) 17 UJ 639 .

b) Yoginath D. Bagde Vs. State of Maharashtra and Another, AIR 1999 SC 3734 : (1999) 7 JT 62 : (1999) 5 SCALE 620 : (1999) 7 SCC 739 : (1999) SCC(L&S) 1385 : (1999) 2 SCR 490 Supp : (2000) 1 SLJ 174 : (1999) AIRSCW 3775 : (1999) 8 Supreme 129 .

Per contra, Mr. Das, senior learned advocate appearing for the respondents submits that this Court, in exercise of the power of judicial review, can interfere with the domestic proceeding only when there has been a blatant violation of the principles of natural justice or when the findings arrived at by the concerned authorities in support of the charges are absolutely perverse or when there exists an error of jurisdiction or when the punishment imposed upon the persons shocks the conscience of this Court but in the instant case there exists no such infirmities warranting interference of this Court.

According to Mr. Das, the Railway Protection Force Rules, 1987 (hereinafter referred to as the said Rules) provides for a review against the order challenged in the writ application and that as such the writ application is not maintainable on the ground of availability of an alternative remedy.

Placing reliance upon the averments made in the affidavit-in-opposition, Mr. Das argues that the petitioner was a member of a discipline force and by using filthy and abusive language against the seniors, the petitioner has violated the standard of behaviour expected from a member of a discipline force.

Mr. Das further argues that the disciplinary authority has rightly found the petitioner to be guilty of the charge Nos. I to III since it is undisputed that the deposition tendered by the petitioner''s colleague, namely Md. M. Jawan at the time of preliminary hearing, differs with what he had deposed in course of the final enquiry.

According to Mr. Das, the argument of Mr. Majumder to the effect that the petitioner ought to have been granted an opportunity of hearing by the disciplinary authority prior to imposition of the punishment and prior to arrival at a finding to the effect that all the charges are proved, in disagreement with the findings of the enquiry officer, is not sustainable since the Rule 154.5 of the said Rules does not make it mandatory to grant an opportunity of hearing at the said juncture.

He further argues that there was no repentance on the part of the petitioner for having used abusive language against his senior and no apology to that effect was tendered and in the backdrop of such adamant and arrogant conduct of the petitioner, the punishment of removal of service has been rightly imposed.

It has also been argued by Mr. Das that even after dismissal of the earlier writ application on 2nd May, 2000 no steps were taken by the petitioner to have the same restored and that a perusal of the order dated 30th November, 2006 passed in the said writ application would also reveal that the restoration application itself was dismissed and that as such the instant writ application filed on the self-same cause of action is barred by the principles of res judicata.

In support of his contention, Mr. Das has placed reliance upon the following judgments:

1) L.K. Verma Vs. H.M.T. Ltd. and Another, AIR 2006 SC 975 : (2006) 108 FLR 1101 : (2006) 2 JT 99 : (2006) 1 LLJ 1074 : (2006) 142 PLR 838 : (2006) 2 SCALE 90 : (2006) 2 SCC 269 : (2006) SCC(L&S) 278 : (2006) 1 SCR 959 : (2006) 2 SLJ 350 : (2006) AIRSCW 460 : (2006) 1 Supreme 575 .

2) U.P. State Road Transport Corporation Vs. Subhash Chandra Sharma and Others, AIR 2000 SC 1163 : (2000) 85 FLR 284 : (2000) 3 JT 184 : (2000) 1 LLJ 1117 : (2000) 2 SCALE 371 : (2000) 3 SCC 324 : (2000) SCC(L&S) 349 : (2000) 2 SCR 451 : (2000) 1 UJ 724 : (2000) AIRSCW 3296 : (2000) AIRSCW 833 : (2000) 2 Supreme 316 : (2000) 6 Supreme 414 .

3) Biecco Lawrie Ltd. and Another Vs. State of West Bengal and Another, AIR 2010 SC 142 : (2010) 124 FLR 108 : (2009) 10 JT 340 : (2009) 4 LLJ 644 : (2009) 10 SCALE 334 : (2009) 10 SCC 32 : (2009) 2 SCC(L&S) 729 : (2009) 11 SCR 972 : (2010) 1 SLR 649 .

4) Union of India (UOI) Vs. P. Gunasekaran, (2014) 310 ELT 417 : (2015) 1 ESC 101 : (2015) 144 FLR 219 : (2015) LabIC 268 : (2014) 10 SCJ 341 .

I have heard the learned advocates appearing for the respective parties and I have considered the materials on record.

It would be necessary to first deal with the objection of availability of an alternative remedy to the petitioner. It is settled law that mere existence of an alternative remedy does not oust the jurisdiction of the Writ Court. In view of the decision of the Hon''ble Supreme Court reported in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, AIR 1999 SC 22 : (1998) 7 JT 243 : (1998) 5 SCALE 655 : (1998) 8 SCC 1 : (1998) 2 SCR 359 Supp : (1998) AIRSCW 3345 : (1998) 8 Supreme 176 , at least in four situations a Court of Writ would be justified in entertaining a writ petitioner despite availability of an alternative remedy. One of such situation is when the action impugned in the writ petition is violative of the principles of natural justice. The rule of exhaustion of alternative remedy, being a rule of discretion rather than a rule of compulsion. In an appropriate case the court would be justified in exercising its discretion. Having regard to the facts and circumstances of the present case, in my view, since the issue of violation of the principles of natural justice is involved in the instant lis, the petitioner can certainly approach the Hon''ble Writ Court notwithstanding the availability of an alternative remedy. I therefore do not propose to relegate the petitioner to the alternative remedy.

A perusal of the order dated 30th November, 2006 passed in C.O. No. 1011 (W) 1993 would reveal that the petitioner''s grievance was not considered on merits and it was categorically observed that in the event the petitioner''s right under the Constitution is subsisting, it will be open for the petitioner to take out a fresh writ application. In the instant case the petitioner has been imposed the severest of punishment which affects the livelihood of the petitioner and his family. Life is something more than mere animal existence and the removal of the petitioner from his service tantamounts to deprivation of life. Furthermore, the plea of abandonment of claim cannot be taken aid of unless there is an expression of an opinion on the merits. It is preposterous to suggest that the ground of delay or acquiescence can be applied as a bar to the relief where fundamental right has been transgressed. The negligence towards dismissal of the earlier writ application for default and the rejection of the restoration application, is not attributable to the petitioner. In the backdrop of the said sequence, I am of the opinion that the instant writ application is maintainable.

A perusal of the enquiry proceeding would reveal that there is no charge of lack of integrity or of any pecuniary loss and the misconduct alleged against the petitioner is primarily pertaining to alcoholism and that the enquiry officer himself has observed that the evidence recorded in course of enquiry does not prove the first three charges and that Sri J.B. Singh, against whom the petitioner was alleged to have used filthy and abusive language, did not put any remark in the command certificate and in the General Diary lodged by him. Furthermore, it is explicit from the enquiry report that except J.B. Singh none of the P.Ws. came forward to say that they had seen the petitioner sitting with two coal labourers with Labani of Tari and glasses and that none of the P.Ws. had seen the petitioner to use filthy language against the said J.B. Singh.

The enquiry officer himself observed that "none of the PW came forward to say that empty cartridge was not found from the bandollia of Const. Mahesh Singh" and that "neither SI C.P. Sinha made a G.D. entry nor IPF/MLDT submitted report in respect of ''refused to sign'' the Seizure list by Const. Mahesh Singh" and in the backdrop of such observations, the finding of the enquiry officer to the effect that charge Nos. IV and V stands proved is unsustainable in law and accordingly the said finding of the enquiry officer is set aside.

Rule 154.5 of the said rules is identical to the rule considered by the Hon''ble Apex Court in the case of Punjab National Bank (Supra) and it has been held that when the disciplinary authority disagrees with the enquiry authority on any article of charge then before the disciplinary authority records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. In the instant case no such opportunity was granted to the petitioner which tantamounts to violation of the principles of natural justice. Such infirmity in the decision making process warrants interference of this Court and accordingly the order of the disciplinary authority is set aside.

A perusal of the order of the appellate authority does not reveal any consideration of the contents of the petitioner''s appeal petition and the appeal has been rejected without disclosing any reason and that as such the said order being a cryptic one is not sustainable in law and the same is accordingly set aside.

The Hon''ble Apex Court in the judgment delivered in the case of Collector Singh Vs. L.M.L. Ltd., (2015) 1 ESC 83 : (2015) 144 FLR 447 : (2015) LabIC 707 : (2015) 1 LLN 306 : (2014) 10 SCJ 168 : (2015) 1 SLJ 76 has inter alia observed that when abusive language is used by anybody against a superior, it must be understood in the environment in which that person is situated and the circumstances surrounding the event that led to the use of abusive language. In the instant case the authorities have not considered the said riders prior to imposition of punishment upon the petitioner.

Even assuming that the petitioner''s version is not acceptable, the same does not constitute a misconduct that would justify the petitioner''s removal from service leading to forfeiture of his past service. The facts on record reveal that the petitioner has already suffered adequate penalty for the alleged incident of 5th January, 1991 and that no further purpose would be served by applying the penal sword upon a deadwood and taking into consideration the misconduct alleged, the petitioner should not be deprived of his terminal benefits which is the only source of his livelihood, moreso when there is no charge of lack of integrity or of a any pecuniary loss.

Applying the principles enunciated by the Hon''ble Supreme Court in the case of Collector Singh (Supra) to the facts of the instant case, this Court is of the opinion that the punishment of removal from service is thoroughly disproportionate to the alleged misconduct.

This Court is conscious of the proposition that in the ordinary course, the matter is required to be remitted back to the authorities for fresh enquiry from the stage of charge sheet but in the instant case as the petitioner has already reached the age of superannuation, he cannot be subjected to the agonies of any further protracted process.

Accordingly, while the petitioner shall have the benefit of continuity of service, he shall not be entitled to any arrears of pay or other financial benefits for the period from the date of removal till the date of superannuation. The respondents are thus directed to treat the petitioner to be in continuous service till the date of his superannuation and to disburse all consequential benefits thereto in favour of the petitioner within a period of 8 weeks from the date of communication of this order.

The writ application is, accordingly, disposed of.

In the facts of the present case, there will be no order as to costs.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.