Ram Dutta Ram vs Union of India

Ashis Kumar Chakraborty, J.—The short question of law raised in this writ petition is whether in a disciplinary proceeding, the disciplinary authority can differ with the findings of the enquiry officer absolving the charged employee from the charges framed against him, without granting the charged employee an opportunity of hearing.

In this writ petition the petitioner has challenged the order dated November 17, 2008 passed by the Chief Security Commissioner, Railway Protection Force, Eastern Railway, Kolkata dismissing the appeal filed by the petitioner by affirming the decision dated January 21, 2008 passed by the Senior Security Commissioner, Railway Protection Force, Eastern Railway, Howrah, being the disciplinary authority, imposing the punishment on the petitioner of dismissal from service. This writ petition has a chequered background and this is the third occasion when the writ petitioner has approached this Court to challenge the decision of the disciplinary authority as well as the appellate authority.

The facts giving rise to the present writ petition are that while serving as a constable in the Railway Protection Force of Eastern Railway posted at Howrah station, the petitioner received a charge sheet dated September 07,1998 issued by the Assistant Security Commissioner, Railway Protection Force, Howrah-1 wherein it was alleged that on August 15, 1998 while being on duty along with arms at platform nos. 1 to 8 at Howrah Station, he forcibly extorted cash amounting to Rs.13,800/- from a bona fide passenger and being apprehended by other passengers, he returned Rs.9,200/- to the said passenger and as such, the petitioner acted in a manner prejudicial to discipline and conducted himself in such a way, which brought discredit to the reputation of the Force as per Rule 146.4 of the Railway Protection Force Rules, 1987. After the Railway Authority decided to initiate a disciplinary proceeding against the petitioner on the grounds of charges framed against him in the said charge sheet dated September 07, 1998, an enquiry officer was appointed by the disciplinary authority. The enquiry officer in his report found that the charges against the petitioner were proved and on December 09, 1998 the disciplinary authority accepted the enquiry officer''s report and dismissed the petitioner from his service. An appeal filed by the petitioner before the Chief Security Commissioner, Railway Protection Force, Eastern Railway against the decision of the disciplinary authority was rejected on February 14, 1999. Challenging the decision of the appellate authority and the said decision of the disciplinary authority dismissing him from service, the petitioner filed his first writ petition, being W.P. 8790 (W) of 2000 before this Court. On July 24, 2000 a learned Single Judge of this Court dismissed the writ petition filed by the petitioner. The petitioner carried the said order of dismissal in appeal, being M.A.T. No. 93 of 2001. By the judgment and order dated July 27, 2006 the Division Bench of this Court allowed the said appeal and set aside the decision of the appellate authority the decision of the disciplinary authority dismissing the petitioner from service. By the said order dated July 27, 2006 the Division Bench of this Court though reinstated the petitioner in service but directed that the petitioner put under deemed suspension with corresponding liberty to the administration to start the proceeding de novo from the stage of submission of reply to the charge-sheet.

Since, by the said order dated July 27, 2006 the Division Bench granted liberty to the petitioner to file his reply to the charge sheet in the de novo proceeding, on September 09, 2006 the petitioner filed his reply to the said charge sheet. Thereafter, the enquiry officer conducted the enquiry proceeding and after considering the evidence adduced on behalf of the petitioner and the department, both oral as well as documentary, on April 24, 2007 the enquiry officer filed his report before the disciplinary authority with a clear finding that from the evidence adduced by the prosecution side as well as the contention of the defence, the charges levelled against the petitioner could not be proved and, as such, he was found as "not guilty". It appears that after receipt of the report of the enquiry officer, the disciplinary authority considered the matter and issued a show cause notice dated June 18, 2007 to the petitioner. In the said show cause notice the disciplinary authority stated that he differed with the findings of the enquiry officer on various grounds and held that the charge against the petitioner as per Rule 146.4 of the Railway Protection Force Rules, 1987 is proved, the petitioner is guilty of the charge and called upon the petitioner as to why he shall not be imposed with the punishment of major penalty as prescribed under Rule 148.2 of the Railway Protection Force Rules, 1987. By a communication dated June 18, 2007 the Senior Divisional Security Commissioner, Railway Protection Force, Eastern Railway, Howrah-1 forwarded to the petitioner a copy of the enquiry report together with the show cause notice dated April 18, 2007 issued by the disciplinary authority. According to the petitioner, the decision of the disciplinary authority as mentioned in the said show cause notice dated June 18, 2007 to differ with the finding of the enquiry officer as well as to come to a finding that he acted in a manner prejudicial to the discipline and conducted himself in such a way which brought discredit to the reputation of the force and he was guilty of the charge, was violative of the principles of natural justice as because the disciplinary authority had given no opportunity of hearing to the petitioner before differing with the findings of the enquiry officer. Thus, the petitioner filed the second writ petition, being W.P. 14495 (W) of 2007 before this Court and challenged the said show cause notice dated June 18, 2007 issued by the disciplinary authority. By an order dated September 18, 2007, a learned Single Judge of this Court upheld the contention of the petitioner that since the disciplinary authority had differed with the findings of the enquiry officer without granting any opportunity of hearing to the petitioner, the decision of the disciplinary authority to differ with the finding of the enquiry officer and to conclude that the charges framed against the petitioner are proved, were in violation of the principles of natural justice. As such, by an order dated September 18, 2007 the learned Single Judge of this Court set aside the said show cause notice dated June 18, 2007 passed by the disciplinary authority. The disciplinary authority was directed to give an opportunity of hearing to the petitioner within three months from the date of communication of the said order and, thereafter, to record the finding on the basis of evidence already recorded. Thereafter, the disciplinary authority issued a fresh show cause notice dated October 24, 2007 to the petitioner. In the said show cause notice, the disciplinary authority once again differed with the findings of the enquiry officer and found that the charges framed against the petitioner in the charge sheet were proved and called upon the petitioner as to why the major penalty punishment as prescribed under Rule 148.2 of the Railway Protection Force Rules, 1987 should not be imposed upon him. The disciplinary authority directed the petitioner to file his reply to the said show cause notice within fifteen days from the date of receipt of the same and the petitioner filed his reply to the said second show cause notice dated October 24, 2007 to the disciplinary authority. In his reply to the said show cause notice, the petitioner expressly contended that since the disciplinary authority had once again in the said show cause notice dated October 24, 2007 has differed with the findings of the enquiry officer without granting any opportunity of hearing to him, the same resulted in violation of the principles of natural justice depriving him his right to opportunity of hearing. The petitioner also contended that since the disciplinary authority in the said show cause notice dated October 24, 2007 held that the charges framed against him in the charge sheet were proved, without granting any opportunity of hearing to him, once again his right under the principles of natural justice was violated. After receipt of the reply of the petitioner to the said show cause notice dated October 24, 2007, the disciplinary authority passed the order dated January 21, 2008 holding that the charges and allegations against the petitioner that he acted in a manner prejudicial to the discipline and conducted himself in such a way which brought discredit to the reputation of the force as per Rule 146.4 of the Railway Protection Force Rules, 1987 proved and awarded punishment on the petitioner of dismissal from service with immediate effect. In the said order dated January 21, 2008 while dealing with the contention raised by the petitioner that the said show cause notice dated October 24, 2007 was void on the ground that the disciplinary authority had differed with the findings of the enquiry officer absolving the petitioner of the charges framed against him and held that the charges framed against the petitioner were proved was violative of principles of natural justice, the disciplinary authority held as follows:

"I do not agree with the theory of the P.C., of action to be taken on findings of enquiry officer after the party charged is given opportunity of submission of explanation on the tentative findings of the disciplinary authority, then hearing and again giving him opportunity of explanation before imposing final punishment. In absence of the Law under which the P.C. has described his theory, it is not possible for me to follow the procedure as per his desire. Whatsoever I have done, I have implemented the order of the Hon''ble High Court, Kolkata by issuing him show cause notice dated 24.10.2007 after giving him the personal hearing."

Against the above decision of the disciplinary authority, the petitioner filed the appeal before the Chief Security Commissioner, Howrah (appellate authority). Before the appellate authority the petitioner also urged that the impugned decision of the disciplinary authority was void on the ground that the disciplinary authority had differed with the finding of enquiry officer absolving himself from all the charges framed against him and held that the charges framed against the petitioner were proved, without granting any opportunity of hearing to him. By the impugned decision dated November 17, 2008 the appellate authority rejected the appeal of the petitioner and upheld the order dated January 21, 2008 passed by the disciplinary authority. The appellate authority, however, did not consider the ground of challenge urged by the petitioner that since no opportunity of hearing was granted to him before the disciplinary authority differed with the findings of the enquiry officer absolving himself of all the charges mentioned in the charge sheet, the show cause notice dated October 24, 2007, as well as the order dated January 21, 2008 passed by the disciplinary authority were void. It is the said decision of the Chief Security Commissioner, Railway Protection Force, Eastern Railway, Kolkata, being the appellate authority, which is the subject matter of challenge in this writ petition.

At this juncture it may be noted that based on the complaint lodged by the Railway Protection Force with the Police about the aforementioned alleged acts of the petitioner on August 15, 1998 a criminal proceeding was also initiated against the petitioner before the Court of the learned Chief Judicial Magistrate, 4th Court, Howrah in G.R. No. 230 of 1998. By a judgment dated August 30, 2000 the Chief Judicial Magistrate, 1st Class, (4th Court), Howrah acquitted the petitioner under the canopy of benefit of doubt for want of evidence.

Mr. Majumder, learned advocate appearing for the petitioner strenuously contended that it is settled principle of service jurisprudence that whenever the disciplinary authority disagrees with the finding of the enquiry officer with regard to an article of charge framed against the delinquent employee then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent employee an opportunity to represent before it records its findings. According to him, the principles of natural justice requires the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records it findings on the charges framed against the officer. In support of such contention, Mr. Majumder relied on the decision of the Supreme Court in the cases of Punjab National Bank v. Kunj Behari Misra, reported in (1998) 7 SCC 84, Yoginath D. Bagde v. State of Maharashtra, reported in (1999) 7 SCC 739 and Lav Nigam v. Chairman & MD. ITI Ltd. & Anr. Reported in (2006) 9 SCC 440. On the strength of the said decision he contended that in the present case inasmuch as the disciplinary authority differed with the finding of the enquiry officer that charges levelled against the petitioner were not proved and held the petitioner guilty of charges framed against him without granting any opportunity of hearing to the petitioner, the said show cause notice dated October 24, 2007, the order dated January 21, 2008 as well as the order dated November 17, 2008 were all void and liable to be set aside.

Mr. Majumder further contended that in the present case the charges framed against the petitioner as mentioned in the charge sheet dated September 07, 1998 as well as the charges levelled against the petitioner in the aforementioned criminal proceeding were identical, the witnesses in both the proceedings were same and, therefore, when the petitioner was acquitted in the said criminal proceeding, there was no scope for the disciplinary authority to hold that the charges framed against the petitioner in the disciplinary proceedings were proved and the imposition of major punishment upon the petitioner dismissing him from service is vitiated by arbitrariness resulting in violation of the fundamental right guaranteed to the petitioner under Article 14 of the Constitution of India. In support of such contention, Mr. Majumder relied on various decisions of the Supreme Court.

However, Mr. P.S. Bose, learned senior advocate representing the respondents-Railway Authorities urged various points and strenuously contended that the present writ petition filed by the petitioner is not maintainable and the same is liable to be rejected. According to him, although by the said order dated September 18, 2007 a learned Single Judge of this Court set aside the second show cause notice dated October 24, 2007 passed by the disciplinary authority, but by the said order the disciplinary authority was only directed to give an opportunity of hearing to the petitioner within three months from the date of communication of that order and, thereafter, record its finding on the basis of evidence already recorded. He urged that since in the said order dated September 18, 2007 there was no express direction to the disciplinary authority to issue a fresh show cause notice before disagreeing with the findings of the enquiry officer, the disciplinary authority committed no error of law in issuing the said show cause notice dated October 24, 2007. Mr. Bose strenuously urged that the direction contained in the said order dated September 18, 2007 was binding between the parties and the said decision operates as res judicata between the parties. In support of such contention he relied the decisions of the Supreme Court in the case of T.P. Moydeen Koya v. Government of Kerala and Ors., reported in (2004) 8 SCC 106 and in the case of Union of India v. Southern Railway Employees Co-operative Stores Workmen Union & Ors., reported in (1998) 5 SCC 530. Mr. Bose cited various other decisions in support of his contention that in the present case, the acquittal of the petitioner from the criminal proceeding was not honourable acquittal and the finding of the disciplinary authority based on the documentary evidence adduced before the enquiry officer, that the charges framed against the petitioner were proved, does not suffer from any illegality. However, since the ground urged on behalf of the petitioner that the decision of the disciplinary authority dated January 21, 2008 imposing punishment upon the petitioner, as well as the decision of the appellate authority dated November 17, 2008 upholding the findings of the disciplinary authority are all liable to be set aside on the ground of the show cause notice dated October 24, 2007 being violative of the principles of natural justice goes to the root of the matter, I am of the opinion that such issue should be decided first.

Before coming to a finding with regard to the first contention raised by the petitioner in the facts of the present case, I find it apposite to consider the view of the Supreme Court on the subject.

In Kunj Behari Misra (supra), while considering Regulation 7(2) of Punjab National Bank Officer Employees'' (Discipline And Appeal) Regulations, containing no provision for giving, the Supreme Court held as follows:

"19. ''The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it 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. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.'' "

The above view was reiterated by the Supreme Court in Yoginath D. Bagde (supra). In the said case also while dealing with Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1997 which did not specifically provide for a disciplinary authority to give an opportunity of hearing to the delinquent officer before differing with the view of the enquiry officer, in paragraph 29 of the judgment the Supreme Court held as follows:

"But the requirement of ''hearing'' in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the ''TENTATIVE'' reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of ''not guilty'' already recorded by the enquiring authority was not liable to be interfered with."

Further, in the case of Lav Nigam (supra) the Supreme Court held that it is settled principle of law that in case the disciplinary authority differs with the view taken by the enquiry officer, he is bound to give a notice setting out his tentative conclusions to the charged employee and it is only after hearing the charged employee that the disciplinary authority can arrive at a final finding of guilt and thereafter, once again the charged employee would again have to be served with a notice relating to the punishment proposed.

In view of the above decisions of the Supreme Court, it is well settled that the disciplinary authority differs with the findings of the enquiry officer with regard to any charge against the charged employee, it must serve a notice/show cause informing the charged employee of the grounds on which it proposes to differ with the findings of the enquiry officer. This mandatory obligation of the disciplinary authority is based on the principles of natural justice and by no means the disciplinary authority can avoid this obligation on the ground of absence of any Rule or Regulation to that effect.

In the present case, by the said order dated September 18, 2007 a learned Single Judge of this Court set aside the show cause notice dated June 18, 2007 issued by the disciplinary authority on the ground that the disciplinary authority had decided to disagree with the finding of the enquiry officer without granting any opportunity of hearing to the petitioner and found the petitioner to be guilty of the charge framed against him. However, when the disciplinary authority issued the second show cause notice dated October 24, 2007, once again it had disagreed with the finding of the enquiry officer without granting any opportunity of hearing to the petitioner, held the charges framed against the petitioner have been proved and the petitioner was directed to show cause as to why the major penalty of punishment shall not be imposed upon him. In view of the ratio of the aforementioned decisions of the Supreme Court in the cases of Punjab National Bank (supra), Yoginath D. Bagde (Supra) and Lav Nigam (supra) it is trite law that any show cause notice issued by a disciplinary authority disagreeing with the finding of the enquiry officer on any charge, without granting an opportunity of hearing to the charged employee is void and I find that the principle of res judicata, as argued by Mr. Bose, will have no application in this case nor the decisions cited by him in support of his said contention have any application in the present case.

In his reply to the said show cause notice dated October 24, 2007 filed before the disciplinary authority, the petitioner expressly contended that the said show cause notice was illegal on the ground that before disagreeing with the findings of the enquiry officer that the charges framed against him were not proved the disciplinary authority did not grant him any opportunity of hearing. However, as already recorded above, in the decision dated January 21, 2008 the disciplinary authority held that he does not agree with the theory of the petitioner that before disagreeing with the findings of the enquiry officer he ought to have given an opportunity to the petitioner to submit an explanation on the tentative findings of the disciplinary authority and in absence of the law under which the petitioner has described his said theory, it is not possible for him to follow the procedure as per desire of the petitioner.

In view of the aforementioned decisions of the Supreme Court in the cases of Punjab National Bank (supra), Yoginath D. Bagde (Supra) and Lav Nigam (supra) I find that the above finding of the disciplinary authority in the order dated January 21, 2008 is patently illegal and the same is vitiated by utter arbitrary exercise of power.

For all the foregoing reasons, the writ petition succeeds. The order dated November 17, 2008 passed by the Chief Security Commissioner/RPF, Eastern Railway, Kolkata, in which the decision dated January 21, 2008 passed by the disciplinary authority had merged, is set aside.

Since the writ petition succeeds on the ground of absence of show cause notice to the petitioner before the disciplinary authority recorded his conclusion to differ with the finding of fact of the enquiry officer, the other contentions raised by the petitioner as well as the respondents during the hearing of the writ petition have become insignificant.

The petitioner is reinstated in service. However, he is put under deemed suspension with corresponding liberty to the Railway Authority to proceed with the disciplinary proceeding from the stage of issuing a fresh show cause notice to the petitioner indicating the grounds on which the disciplinary authority proposes to disagree with the findings of the enquiry officer, if any. Such show cause notice shall be served upon the petitioner within a period of six weeks from date and, thereafter, the petitioner will be at liberty to file his reply to the said show cause notice within the time to be stipulated by the disciplinary authority.

It is made clear that it is only after receipt of the reply of the petitioner to the aforementioned show cause notice to be issued by the disciplinary authority, if any, the disciplinary authority shall proceed to arrive at his/her finding with regard to the charges framed against the petitioner and issue another show cause notice to the petitioner before taking a final decision in the disciplinary proceeding. The disciplinary authority shall make all endeavour to conclude the disciplinary proceeding within December 31, 2016. Until the final decision in the disciplinary proceeding is taken, the petitioner shall continue to receive the subsistence allowance with effect from February, 2008.

With the above directions, W.P. 5698 (W) of 2009 stands allowed.

There shall, however, be no order as to costs.

Urgent certified website copy of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.