Nripendra Nath Das vs Union of India (UOI)

Satyabrata Sinha, J.—The Petitioner in this application has, inter alia, questioned the order of removal dated December 12, 1989 passed by the disciplinary authority as also the order dated July 13, 1990 passed by the Respondent No. 2- herein dismissing the Petitioner''s appeal taken from the said order of removal dated December 12, 1989.

The Petitioner was appointed as Rakshak of Railway Protection Force of South Eastern Railway in the year 1967. He was promoted to the rank of Head Constable in the year 1982. A charge-sheet was issued against him on November 14, 1986 which is to the following effect:

Serious misconduct and gross indisciplines in that on 19.10.86 at about 14.40 hrs. Hd. Constable 73 N.N. Das of Nimpura M. Yard Post on Seal checking duty along with Constable 8007 T.P. Dey of NMP M. Yard from 08.00 hrs. to 16.00 hrs. opened out the security devices (Nuts & Bolts) from the North side door oj Container No. 04/0531 Ex. WB to SHM loaded on BPR No. 05/0076 CR attached to train No. E/ Speed Link Express standing on line No. 3 of Through Yard with dishonest intention. When challenged he and the Constable left the place giving some false pretext and manipulated the seal checking certificate prepared earlier by him.

The Petitioner before filing his written statement and for the purpose of submitting his defence to the cnarge-sheet sought for the following documents:

Report of O.C/RPF/Nimpura about case.

Statement of the witness H/C 3042 S.P. Mishra and Const. 5539 D.S. Sahoo.

Seal checking certificate of Tata regarding checking of E/speed link October 19, 1986 at Tata.

Seal checking certificate of SHM and unloading particulars of the container No. 04/0531 BFK No. 05/0076 C.G.

Copy of the Diary entry made at RPF Post by OC/ RPF NMP.

The Petitioner was asked to take extract from the relevant records from the Officer-in-Charge of the Post to which he was attached and further asked to submit his explanation against the charge-sheet by a letter dated February 8, 1987. The Petitioner alleges that he had appeared before the Officer-in-Charge, R.P.F. Post Nimpura for the aforementioned purpose but the same had not been supplied to him which has been recorded by the Officer-in-Charge, R.P.F. himself in the following manner:

H/C-A73 N.N. Das attended this post on date. But, records are not supplied. He may be directed on intimation from this post.

The Petitioner thereafter submitted his explanation without having the copies of the said documents and the same having not been found to be satisfactory, by an order dated March 18, 1987 the disciplinary authority appointed enquiry officer. Three witnesses were examined by the enquiry officer. The Petitioner thereafter prayed for and was granted leave for four days i.e. from September 30, 1987 to October 3, 1987 but allegedly because of his wife''s serious illness he could not resume his duties on October 4, 1987. The Petitioner filed an application to his controlling officer on October 12, 1987 explain is as to why he could not resume his duties. The said intimation of the Petitioner was communicated to the Divisional Security Officer on October 15, 1987. However, there is nothing to show as to whether the said communication to the aforementioned effect have also been made to the enquiry officer. In absence of the Petitioner, enquiry had been held on October 12, 1987 and October 15, 1987. The Petitioner contends that after he had resumed duties he filed a medical certificate as regard the treatment of his wife to the competent authority. But in the mean time the enquiry proceeding was concluded without giving him an opportunity to produce defence documents and.lis written defence statement as well as oral statement inspite of the fact that the Petitioner had already informed the said authority about the illness of his wife and his inability to join his duties by the said letter dated October 12, 1987.

The Enquiry Officer submitted his report on January 14, 1988 which is contained in Annex. ''E'' to the writ application. In the enquiry report, the enquiry officer recorded the statements of the three prosecution witnesses and also noticed that the delinquent deliberately neither got his oral statement recorded not submitted his written defence statement. No defence witness had also been examined. He, therefore, observed:

The defence counsel was duly permitted to cross examine the P. Ws. It is not possible to discuss at length the defence points of the delinquent in absence of written defence statement.

Strangely enough although no documents had been supplied to the Petitioner as prayed for by him, the enquiry officer found:

The contention of the delinquent in cross-examination is that the prosecution has failed to prove the rivet position of the said container at previous seal checking point for which the contention of the prosecution should not be considered true. In that case the delinquent was at liberty to produce the seal checking particulars of the previous seal checking point concerning the said container of his own interest and defence in the departmental enquiry. But unlike prosecution the* delinquent has also failed to prove himself clear of the charges.

The Petitioner was not in custody of the documents upon which he wanted to rely upon. As noticed hereinbefore he was not allowed even to take extract of the documents but despite the same; accepting the said report a second show-cause notice dated March 14, 1988 was issued to him proposing punishment for removal by the Diciplinary Authority to which the Petitioner filed his representation on March 28, 1988. He was removed from service and an appeal preferred by him was also rejected. Thereafter, he filed a writ application in this Court which was marked as CO. No. 10294(W)/88. By reason of an order dated January 16, 1989, Mahitosh Majumder J., disposed of the said writ application by directing the disciplinary authority to consider the reply of the second show-cause notice along with the basic grievances taken in the writ application and the purported order of removal and purported order of the appellate authority were set aside. All points taken in the writ application were left upon.

An appeal was preferred against the said judgment and order by the Respondents herein which was marked as F.M.A.T. No. 368/89. The Appeal Court, however, although did not interfere with the findings of the learned trial Judge but modified the same to the following extent:

We are also of the view that the direction issued by the Trial Court with regard to the Respondent being given all the service benefits, which would have accrued to him had he not been removed from service, shall not be implemented at this stage. The right of the Respondent to claim such service benefits will abide by the out come of the fresh proceedings from the stage of the issue of the second show cause notice.

The Disciplinary proceedings to be held afresh as aforesaid shall be concluded in accordance with law within a period of eight weeks from date.

The Appeal Court further held that the proceedings from the stage of issue of fresh second show-cause notice should be held by a person other than the Divisional Security Commissioner, Kharagpur who passed the order of dismissal. Thereafter, a fresh second show-cause notice was issued on July 24, 1989 whereagainst the Petitioner filed his reply. On December 12, 1989 an order of removal was passed by the Divisional Security Commissioner, Chakradharpur which is contained in Annex. ''J'' to the writ application stating:

After considering your explanation dated 25.11.1989 to the show cause notice No. DA/R-44/89-86/11272 (i) dated 24.7.89, I have decided that as you are guilty of the charge of serious misconduct and gross indisciplineness as detailed in the charge - sheet No. DA/R-44/89-86/18800 dated 14.11.86, you shall be removed from service as a disciplinary measure and the same will take effect from the date of receipt of this notice. A copy of the final order of the disciplinary authority is also enclosed herewith.

The disciplinary authority in his findings merely recorded the defence of the Petitioner but without discussing the same held:

No other important point has been brought out by the delinquent in his representation to the show cause notice. The charges against him have been proved beyond doubt and he has not represented anything regarding the quantum of proposed punishment. Looking at the gravity of the charges, I hereby confirm the proposed penalty and HC A73 N.N. Das of Marshalling yard NMP now posted at Ghatsila is removed from service with immediate effect.

The Petitioner preferred an appeal against the said order and the appellate authority by an order dated July 13, 1990 dismissed, the said appeal.

Mr. Achin Majumder, the Learned Counsel appearing on behalf of the Petitioner, inter alia, submitted that Regulation 19 contained in Chapter-XVI of the Railway Protection Force envisages a preliminary enquiry which is to the following effect:

It is the responsibility of the competent superior officer alone to take a decision, after such preliminary enquiry as considered necessary, on whether the offence is such as to warrant a departmental enquiry.as envisaged in Rule 44 or a petty punishment in Orderly Room under Rule 46. Only after this dicision is taken, the procedure for awarding Major, Minor or Petty punishment as laid - down in the Rules shall be followed.

According to the Petitioner, no preliminary enquiry as was required under Regulation 19 had been held. Reliance in this connection has been placed to an unreported judgment in CO. No. 16196(W)/88 (Arjun Prasad Singh v. Union of India and Ors. ) disposed of on August 13, 1998. The Learned Counsel furthersubmits that a bare perusal of the charge sheet would show that the disciplinary authority had proceeded with a closed mind and, thus, the entire proceeding is vitiated. In support of his aforementioned contention reliance has been placed on Bimala Kanta Mukherjee v. State of West Bengal and Ors. 1980(2) C.H.N. 35 and Subrata Bhattacharjee v. Bharat Process & Mechanical Engineers and Ors. 1984(2) C.H.N. 185.

The Petitioner has further contended that he had not been given a reasonable opportunity of hearing by supplying the copies of the relevant records and, thus, on that ground too the principles of natural justice had not been complied with. Reliance in this connection has been placed on State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan AIR 1961 S.C. 1623, Dologobinda Das v. Union of India and Ors. 1981(1) C.L.J. 461, Anandram Jiandrai Vaswani v. Union of India and Ors. 1983(1) C.L.J. 8 and Trilok Nath v. Union of India and Ors. 1967 S.L.R. 759.

It has further submitted that the Petitioner had not been given an opportunity to submit his defence evidence and written defence statement as also oral statement. The Learned Counsel further submits that tiie enquiry report is perverse as relevant materials had been overlooked by the Respondents. Reliance in this connection has been placed on Bhagat Ram Vs. State of Himachal Pradesh and Others, Sree M/s. Shri Sitaram Sugar Co. Ltd. and another Vs. Union of India and others, , Sawai Singh Vs. State of Rajasthan, , Ananda Chakraborty v. Union of lndia 1987(1) C.L.J. 467, Anil Kumar v. Presiding Officer 1985 S.C.C. (L&S) 815 and Ministry of Finance and Another Vs. S.B. Ramesh,

It has further been submitted that the second show-cause notice is also bad in law inasmuch a definite finding as regard unsuitability of the Petitioner to held the post of Head Constable had been arrived at the rein. In support of his aforementioned contention reliance has been placed on Nripendra Nath Tarafdar v. Union of India and Ors. 1981(1) S.L.R. 533 and Bishnu Prasad v. Union of India and Ors. 1991(1) C.L.J. 343.

It has further been submitted that the findings of the enquiry officer are in consistent with the charges and in support of his aforementioned contention reliance has been placed on State of Punjab v. Bakhtawar Singh 1972 S.L.R. 85 and Allahabad Bank v. Pranab Kumar Mukherjee 1992(7) S.L.R. 51 It has further been submitted that the findings disciplinary authority and appellate authority are contradictory in nature.

The Learned Counsel for the Respondents, however, supported the orders of removal as also the order of the appellate authority.

For the purpose of disposal of this application, in the opinion of this Court, it is not necessary to considers all of the aforementioned submission of Mr. Majumder in great details.

Admittedly the Petitioner had asked for supply documents ; two of them being seal checking certificate, which are:

Seal Checking certificate of Tata regarding checking of E/speed link 19.10.86 at Tata.

Seal Cheaking certificate of SHM and unloading particulars of the container No. 04/0531 BFK No. 05/ 0076 C.R.

Keeping in view the charges levelled against the Petitioner the said documents were important ones. Non-supply of such vital documents evidently resulted in failure of justice. The Enquiry Officer, the disciplinary authority or the appellate authority did not at all consider this aspect of the matter. Furthermore, the Enquiry Officer has wrongly placed the burden of proof upon the delinquent officer. The disciplinary proceeding is quasi-criminal in nature and, thus it was for the prosecution to prove its charges. Had the aforementioned documents been produced, it could have been shown that the charges framed against the Petitioner were wrong inasmuch as there had been no change in the seal checking certificate by the authorities concerned in the earlier station and the next station. Non-supply of the documents as also the aforementioned approach of the enquiry officer, thus, in the opinion of this Court, have vitiated the entire proceedings.

In State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan(Supra) the Apex Court held:

In such a case it would be idle to contend that the infirmities on which the public officer relies flow from the exercise of discretion vested in the enquiry Officer. The enquiry officer may have acted bona fide but that does not mean that the discretionary orders passed by him are final and conclusive. Whenever it is urged before the High Court that as a result of such orders the public officer has been deprived of a reasonable opportunity it would be open to the High Court to examine the matter and decide whether the requirements of Article 311(2) have been satisfied or not. In such matters it is difficult and inexpedient to lay down any general rules; whether or not the officer in question has had a reasonable opportunity must always depend on the facts in each case. The only general statement that can be safely made in this connection is that the departmental enquiries should observe rules of natural justice and that if they are fairly and properly conducted the decisions reached by the enquiry officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in Courts of Law. As Venkatarama Aiyar, J. has observed in Union of India (UOI) Vs. T.R. Varma, ''stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them''. It is hardly necessary to emphasise tha* the right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice.

In Dol Gobinda Das v. Union of India and Ors. (Supra), G.N,. Ray, J; (as His Lordship then was) has held:

It, however, appears to me that in the facts and circumstances of the instant case, the preliminary investigation report should have been furnished to the Petitioner to give him a reasonable opportunity to defend himself. It is true that if the preliminary investigation report is not relied on either by the Enquiring Officer or by the punishing authority, such report is not required to be disclosed to the delinquent officer as a matter of course. But reasonable opportunity of being heard cannot be defined precisely and such opportunity depends in the facts and circumstances of each case. I respectfully agree with the view expressed by the Delhi High Court in the case of Jograj Singh (1970 SLR 400) wherein the Delhi High Court has observed that there are certain documents which even if they are not relied by the Enquiring Officer to support the charges against the delinquent, such documents are nevertheless required by the Petitioner to defend his case.

In Anandram Jiandrai Vaswani v. Union of India and Ors. (Supra), a Division Bench of this Court has held that it is obligatory on the part of the disciplinary authority to allow all the documents asked for by the delinquent officer, although the relevancy of such documents may not be very clear to the disciplinary authority.

In the instant case apart from the fact that the said important documents were not supplied to the Petitioner, the onus to prove the said document had wrongly been placed upon the delinquent officer. The entire approach of the enquiry officer is perverse. Furthermore, in terms of the Annex. ''C to the writ application, the Petitioner had been allowed to take extract of such documents, it was not for the disciplinary authority to contend that the said documents were not relevant particularly in view of the fact that the said finding was required to be arrived at by the enquiry officer.

In the peculiar facts and circumstances of this case it must also be held that when the controlling officer as also the disciplinary authority had known that the Petitioner for some reasons or other was unable to attend the enquiry officer, they ought to have informed the said fact to the enquiry officer. Holding of a departmental proceeding in absence of the Petitioner without serving him any notice and without giving him an opportunity to make his written submission and/or defence statement or to adduce oral evidence must be held to be bad in law.

Furthermore, the charges against the Petitioner that he had opened out the security devices from the North side door of the alleged container. From the enquiry report it appears that the evidence which had been adduced was to the effect that he had interferred with the alleged container but the disciplinary authority in his second show-cause notice, inter alia, held that the Petitioner had tampered with the security devices with a dishonest intention. Thus, the charge sheet, the evidence adduced and the findings of the disciplinary authority are inconsistent with each other.

In Allahabad Bank v. Sri Pronab Kumar Mukherjee and Ors. (Supra), a Division Bench of this Court has held:

The scrutiny of the charge-sheet and the aforesaid order of removal would clearly indicate that the Respondent was fastened with the charges which do not find place in the charge-sheet. There is no admission or evidence in support of the finding of the Disciplinary Authority that the Respondent had committed temporary misappropriation. The Supreme Court in State of Punjab v. Bakhtawar Singh and Ors., reported in 1973 SLR 85, held that no finding can be arrived at in taking into consideration a charge in respect of which a person was not given any opportunity to explain his position. The relevant portion of the said judgment was as follows:

(sic)

The disciplinary authority further in the improved order dated December 12, 1989 as contained in Annex. ''J'' to the writ application, inter alia, held that the Petitioner did not make any submission as regard to the quantum of proposed punishment. The said atement appears to be wrong in view of the statements made in that regard in his representation to the second show-cause notice dated July 2, 1989 as contained in Annex. ''H'' to the writ application as would appear from page 88 of the writ application. Even the other points raised in the said representation had not been considered by the disciplinary authority. Thus, the order of the disciplinary authority suffers from non-application of mind. Similarly the order of appellate authority also suffers from non-application of mind as the same is not a speaking order.

In R.P. Bhatt Vs. Union of India and Ors (UOI) ., the Apex Court has held that the appellate order should be supported by reasons.

In Ministry of Finance and Anr. v. S.B. Ra-mesh (Supra), the Apex Court has held:

On a careful perusal of the above findings of the Tribunal in the light of the materials placed before it, we do not think that there is any case for interference, particularly in the absence of full materials made available before us in spite of opportunity given to the Appellants. On the facts of this case, we are of the view that the departmental enquiry conducted in this case is totally unsatisfactory and without observing the minimum required procedure for proving the charge. The Tribunal was, therefore, justified in rendering the findings as above and setting aside the order impugned before it.

Similar is the position here as Respondents did not produce the records before us.

It may further be observed that it was not proper for the disciplinary authority while issuing the second show-cause notice dated July 24, 1989 as contained in Annex. ''H'' to the writ application to categorically come to a finding that the Petitioner himself tampered with the security devices with dishonest intention and also manipulated the seal checking certificate and, thus, the same was a serious charge deserving a civil punishment as his conduct does not match with the standard laid down for the members of the Force. The proposed punishment should be tentative in nature and, thus, second show-cause notice should not be couched insuch a fashion so as to give an impression that the same had been issued with a closed mind. However, to me it does not appear that Regulation 19 is mandatory in nature and non-compliance thereof would vitiate the entire proceeding but in view of my findings aforementioned it is not necessary to dilate further on this subject.

In State of Uttar Pradesh v. Mohd. Sharif AIR 1982 S.C.S37, upon which Mr. Majumder has placed strong reliance, the charge-sheet was found to be vague, but such is not the position here. The said decision cannot, therefore, be said to have any application whatsoever.

For the reasons aforementioned this application is allowed. The impugned orders dated December 12, 1989 and July -13, 1990 are set aside and the Respondents, if they so desired, may start a fresh proceedings against the Petitioner by supplying the documents to the Petitioner and by giving him an opportunity to further cross-examine witnesses examined on behalf of the prosecution end further allow him to file his written statement of defence, make his oral statement and examine any defence witnesses. In the facts and circumstances of this case there will be no order as to costs.