Sri Jiwit Prosad Arya vs Chief Security Commissioner, Railway Protection Force And Others

Sambuddha Chakrabarti, J.

The facts of the case, shorn of all details, is that the petitioner who was a constable of the Railway Protection Force, Eastern Railway, was charged

with theft of urea bags which had allegedly occurred from a wagon stationed at Rajgram station between August 18 and 22, 1987. On September 1,

1987 three persons were arrested. On September 3, 1987 when the wagon was taken to the Rampurhat goods shed it was found that the seals on the

bags were tampered and 134 bags were found short. A criminal case was initiated and on September 15, 1987 the petitioner surrendered in the Court

of the Sub-Divisional Judicial Magistrate, Rampurhat.

The petitioner was placed under suspension which was challenged by him by way of a writ petition. During the pendency of the writ petition and the

criminal case, the respondents issued a charge-sheet proposing to hold an enquiry against the petitioner for the alleged gross neglect in duty for his

failure to prevent theft of urea bags. At the enquiry the petitioner was exonerated. However, the disciplinary authority differed and imposed the

penalty of removal from service with effect from May 25, 1992. The petitioner challenged the said order by a writ petition. A learned Single Judge set

aside the order of removal and sent the matter back to the disciplinary authority with liberty to proceed afresh.

In the meantime, by a judgment and order, dated April 12, 2005 passed in the criminal case which had been initiated against the petitioner and other

accused persons, the learned Judicial Magistrate, 1st Class, 2nd Court, Rampurhat found all the accused persons not guilty of the charges and

acquitted them. In the departmental proceeding which was sent back by the High Court, the petitioner had submitted his representation and after

considering the same the Divisional Security Commissioner by an order dated July 1, 2009 imposed the punishment of removal from service with

effect from May 25, 1992. Against that the petitioner filed an appeal which was dismissed by the appellate authority on February 25, 2010.

The petitioner has challenged the order of the appellate authority and has prayed for a direction upon the respondents to pay all service benefits to

him. During the pendency of the departmental proceeding the petitioner had reached the age of superannuation in the year 1996. Although the liberty

was given to the respondents to file an affidavit-in-opposition on March 15, 2010 when the matter was taken up, none appeared on behalf of the

respondents and consequently, no affidavit-in-opposition has been filed. The petitioner, however, filed his affidavit-in-reply as a copy of the affidavit-

in-opposition was served upon his learned Advocate.

Although the petitioner has challenged the order passed in the disciplinary proceeding a very major thrust of the submission of the petitioner is that

after acquittal from the criminal case the respondents should not have imposed the penalty or even proceeded with the disciplinary proceeding. Mr.

Mukherjee, the learned Advocate appearing for the petitioner submitted that charges in both the criminal case as well as the disciplinary proceeding

being similar the judgment passed in the criminal case should have been given weightage. In support of his contention the petitioner relied on the case

of Sudarshan Rajpoot Vs. Uttar Pradesh State Road Transport Corporation, reported in (2015) 2 SCC 317, for a proposition that the burden of proof

to justify termination of service is on the employer. That is, however, far too well-known a proposition of law and is not under challenge in the present

proceeding.

However, more serious reliance was placed upon the case of Pandiyan Roadways Cropn. Ltd. Vs. N. Balakrishnan, reported in (2007) 9 SCC 755.

There the question whether acquittal in a criminal case is conclusive with regard to the order of punishment imposed upon the delinquent officer in a

departmental proceeding, came up for consideration. The Supreme Court observed that there are two lines of decisions operating in the field. One

such line is represented by the judgment in the case of Capt. M. Paul Antony Vs. Bharat Gold Mines Ltd. and Another, reported in (1999) 3 SCC 679

and G. M. Tank Vs. State of Gujarat and Others, reported in (2006) 5 SCC 446. The second line of decisions held that an acquittal in the criminal case

itself may not be determinative in respect of an order of punishment meted out to a delinquent officer when the order of acquittal had not been passed

on the same set of facts or same set of evidence and when the effect of difference in the standard of proof in a criminal trial and disciplinary

proceeding had not been considered or where the delinquent officer had been charged with something more than the subject matter of the criminal

case.

The petitioner has also relied on the judgment in the case of Corporation of the City of Nagpur, Civil Lines, Nagpur and Another Vs. Ramchandra and

Others, reported in (1981) 2 SCC 714. There the Supreme Court had observed that normally where the accused is acquitted honourably and

completely exonerated of the charges, it would not be expedient to continue a departmental enquiry on the very same charges or grounds or evidence.

However the fact remains that merely because the accused is acquitted, the power of the authority concerned to continue with the departmental

enquiry is not taken away nor is its discretion in any fettered.

The next case relied on by the petitioner is Capt. M. Paul Antony (Supra). In that case the appellant before the Supreme Court was involved in a

criminal case and on the identical set of facts a departmental proceeding was initiated against him. The same witnesses were examined both in the

criminal case and also in the departmental enquiry. The court on a consideration of the entire facts acquitted the appellant. The Supreme Court

observed that where the appellant is acquitted by a judicial pronouncement that the case against him had not been proved it would be unjust, unfair and

rather oppressive to allow the finding recorded at the ex-parte departmental proceeding to stand. The Supreme Court further held that since the facts

and the evidence in both the proceedings, viz., the departmental proceeding and the criminal case, were same without there being any iota of

difference the distinction which is usually drawn between the departmental proceeding and the criminal case on the basis of approach and burden of

proof, would not be applicable to that case.

The petitioner lastly relied on the case of G. M. Tank (Supra) where also the appellant was charged with a criminal offence of acquisition of

properties disproportionate to his known sources of income. On the same set of facts he was also departmentally proceeded against. In the

departmental enquiry he was dismissed from service but he was acquitted by the criminal court as the prosecution had failed to prove the charges

levelled against him. The Supreme Court observed that there was no iota of evidence against the appellant to hold that he was guilty of the charges.

The Investigating Officer and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their

statement came to the conclusion that the charges were established against the appellant. The judicial pronouncement was made after a regular trial

and on hot contest. Under these circumstances, the Supreme Court held that it would be unjust, unfair and rather oppressive to allow the findings

recorded in the departmental proceeding to stand.

Based on the principles of law contained in these judgments the petitioner argued that since the criminal court after a full-fledged trial had acquitted

the petitioner the same must have weightage over the finding arrived at the departmental proceeding. Now that the petitioner has been acquitted in the

criminal case, it has been submitted, the findings recorded in the departmental proceeding must give way to the judicial finding.

There is, however, no little difficulty in accepting the submission of the petitioner absolutely, particularly in the facts of this case. Although the charges

in the departmental proceeding as well as those framed in the criminal case arise out of the same alleged incident there are definite differences

between the two. In the charge framed for the departmental proceeding the emphasis was on the neglect in duty on the part of the petitioner and

another in detecting and preventing theft of urea bags from a wagon at Rajgram station during their duty. In the criminal case, however, the points for

determination were very different. They were: i) whether the urea bags were seized from the possession of accused Bhola Bhagat and Dilip Bhagat,

ii) whether those properties exclusively belonged to the Indian Railways, iii) whether Bhola Bhagat and Dilip Bhagat committed theft of railway

property in connivance with other accused persons, and iv) whether the accused persons were liable to be convicted for commission of offence.

Thus, if in the departmental enquiry the purpose of enquiry was to find out if the petitioner was negligent in discharging his duty of protecting the

railway properties and preventing theft the criminal case absolutely was concerned with the commission of theft of urea bags by three persons in

connivance with the Railway Protection Force staff on duty including the petitioner.

Since the charges in the departmental enquiry and the points for consideration in the criminal case differed in their respective foci and the eventual

finding that was to be the evidence adduced was also necessarily different. The evidence adduced in the criminal case was primarily about how three

persons were caught with urea bags. Even the Inspector, RPF Post, Rampurhat, who appeared as P.W. 4 in the criminal case and who was present

at the time of seizure of the bags, spoke of the involvement of three persons who were caught with three bags of urea. The name of the petitioner

figured in the evidence in connection with tampering of the seal of the bags by him and another constable.

The primary concern of the learned Magistrate was to find out if the charge against the accused persons had been proved. In this connection, it is

worth mentioning that he found 151 bags of urea were short at the time of checking at the Rampurhat goods shed and concluded that those bags were

stolen from the concerned wagon. Even if the seizure of the bags containing urea had been established the learned Magistrate declined to conclude

that the recovered urea bags were part of the consigned goods of the railway. P.W. 3 was not produced for cross-examination who had recorded the

alleged confessional statement. For various infirmities in the prosecution case the learned Magistrate acquitted all the six persons.

But such was not the case with the enquiry proceeding. The recommendation of P.W. 1 for punishment of the petitioner and another constable was

for lapses in duty. The subject matter of the alleged theft was not the charge against the petitioner in the departmental enquiry. The entire focus was

on the failure of the petitioner and another constable to prevent the alleged theft. Therefore, the authorities were not required to go into that aspect at

all. Moreover, this is a case where the witnesses appearing in the departmental proceeding were not the same who appeared at the criminal case. It

cannot also be ignored that two of defence witnesses figured as prosecution witnesses in the criminal case and both of them turned hostile. This is a

very important distinguishing feature of the criminal case.

Therefore, the judgments relied on by the petitioner have no application to the facts of the present case inasmuch as the two proceedings, i.e., the

disciplinary proceeding as well as the criminal case cannot be said to be directed towards the same purpose, with the same witnesses, with the

identical findings and with identical evidence. Merely because the petitioner has been acquitted in a criminal case it cannot be said that the findings of

the departmental enquiry should also be set aside. On this point the submissions of the petitioner must fail.

However, since the petitioner has also challenged the departmental enquiry independently it is also necessary to consider the validity of the same. As

mentioned earlier, the enquiry officer after a detailed report found the petitioner not guilty of the charges. The report is consistent, elaborate and hangs

together. He specifically found that Sri S. C. Mallick, IPF, Rampurhat and Mr. A. K. Shahu and S.I. R. C. Chakraborty contradicted the statements

of each other. The enquiry officer specifically observed that the IPF Sri. Mallick deliberately held up the enquiry to conceal a very important fact.

Moreover, the seal examination certificate was found to be defective in the concerned memo. The enquiry officer found very major lacuna in the

procedure adopted by the respondents to prove the charge home. Some of the major requirements of law were not done leaving a very wide gap in

the prosecution case at the departmental enquiry. The local witnesses who figured as prosecution witnesses in the criminal case totally denied the

recovery of three bags of urea at Rajgram from the arrested persons. From the totality of the evidence adduced the enquiry officer held that the case

against the petitioner was not proved.

The order passed by the disciplinary authority does not deal with the lacuna in the prosecution case found by the enquiry officer. Considering the

elaborate report of the enquiry officer, the report of the disciplinary authority is rather short and does not deal with the issues raised in the enquiry

report. He picked up only certain pieces of evidence to draw the conclusion about the commission of the alleged offence by the petitioner. The major

discrepancies in the prosecution case as pointed out by the enquiry officer have not been addressed by the disciplinary authority.

Unfortunately the disciplinary authority placed the onus of proof of the case upon the defence as well as tried to come to the conclusion based on

certain evidence without appreciating that they were not adequate to prove the case against the petitioner even by the standard of probabilities. It is

obvious that the disciplinary authority had given the benefit of doubt to the prosecution whereas the same should have been given to the petitioner. A

very major mistake committed by him was to rely on alleged confession of the accused persons arrested in connection with the criminal case without

appreciating that such confession, if at all, were not made in course of the departmental proceeding, but in connection with a criminal case in which

the learned Judicial Magistrate declined to attach any importance to the same. There is no mention in the order impugned that in spite of this purported

confessional statement the accused persons had been acquitted in the criminal case.

The appellate authority practically discussed nothing about the case of the petitioner. The Chief Security Commissioner as the final court of fact was

required to pass a reasoned order considering the fact that the effect of the dismissal of appeal was likely to have grave and serious effect on the

delinquent employee. After dealing with the background of the case, the Chief Security Commissioner disposed of the appeal by a non-speaking order.

It is not what is expected of an appellate authority while dealing with a case of such nature. If he maintains that the quantum of penalty imposed upon

the petitioner was commensurate with the gravity of the charge, it was the gravity of the charge that demanded that the case should have been dealt

with more seriously taking into consideration the evidence in its entirety.

Where the appellate authority went wrong was not to provide any reason for his conclusion. He had merely stated that after going through the

proceedings and the records he found that the charges have been proved. In the process, the objections taken by the petitioner against the finding of

the disciplinary authority in the memorandum of appeal went entirely untouched. Even if the appellate authority was affirming the finding of the

disciplinary authority he was required to provide why he was holding what he was holding. Unless the reasons are mentioned the petitioner cannot

know the mind of the authority dismissing his appeal which has enormous consequences for him.

What the authorities quite frequently fail to appreciate is that the requirement of giving reasons in support of the decision taken by them is like the

principle of natural justice and the Supreme Court in the case of Krishna Swami Vs. Union of India, reported in (1992) 4 SCC 605, held it to be a part

of the right flowing from Articles 14 and 21 of the Constitution of India. Long before that in the case of Union of India Vs. M. L. Kapoor, reported in

AIR 1974 SC 87, the Supreme Court emphasized the requirement of recording reasons as this is the only safeguard against possible injustice and

arbitrariness. The Supreme Court observed that reasons are the links between the materials on which certain conclusions are based. There should

reveal a rational nexus between the facts considered and the conclusions reached.

In the case of Ram Chandra Vs. Union of India, reported in AIR 1986 SC 1173, the Supreme Court considered the necessity of recording reasons in

disciplinary appeals. While interpreting Rule 22 (2) of the Railways Servant (Discipline and Appeal) Rules, 1968, the Supreme Court held that the

word ‘consider’ appearing in the said Rules means an objective consideration by the Railway Board after application of mind which implies

providing reasons for its decision. The same view was expressed by the Supreme Court in Maharashtra State Board of Secondary and Higher

Secondary Education Vs. K. S. Gandhi, reported in (1991) 2 SCC 716. The Supreme Court observed that reasons assure an inbuilt support to the

conclusion from the decision reached when an order affects the right of a citizen or a person irrespective of the fact whether it is a quasi-judicial or

administrative order and unless the rules expressly or by necessary implication excludes recording of reasons, it is implicit that the principles  of

natural justice or fair play require recording of relevant reasons as part of fair procedure.

It is a settled position of law that an appellate authority in a disciplinary proceeding acts in a quasi-judicial capacity and the order passed by it has to be

a reasoned one showing application of mind. In the case of Divisional Forest Officer Vs. Madhusudan Rao, reported in (2008) 3 SCC 469, the

Supreme Court held that if that is not done the appeal order is vitiated. What is lacking in the present case that even if it is an order of affirmation, the

appeal order does not disclose any application of mind to the issues raised by the appellant in the appeal. In Surjit Ghosh Vs. Chairman and Managing

Director, United Commercial Bank, reported in AIR 1995 SC 1053, the Supreme Court observed that the remedy of an appeal is a substantive remedy

given to the employee by the Rules and Regulations and he cannot be deprived of this right wrongfully by the authorities. In Divisional Forest Officer

(Supra) the Supreme Court stressed the necessity of providing reasons by the appellate authority as well even if the disciplinary authority has given an

order in details. The reason is that the officer is entitled to know the mind of the appellate authority in arriving at his decision.

The appellate authority has deprived the petitioner of that right in the present case. Apart from the major lacuna in the prosecution case as pointed out

by the enquiry officer neither the disciplinary authority nor the appellate authority addressed themselves to a very major issue that the consignee of the

bags never complained that he had not received the requisite number of bags at least that is not on record. The number of bags was counted at

Rajgram station. This, however, does not conclusively establish that theft had not been committed before. The nature of allegation throws up a very

basic possibility of entertaining such a doubt. It is obvious that the respondents never sought to distinguish between commission of an offence and its

detection. That apart, the respondents erred very seriously in not considering that the counting of the number of bags did not take place in presence of

the petitioner. Thus the petitioner is not a privy to the process of the detection of the alleged theft. There is also no evidence that the bags contained

urea bearing the mark of the Indian Railway.

The disciplinary authority failed to appreciate the statement of the Sub-Inspector that he could not say that the entire 134 bags of urea were stolen at

Rajgram but some bags were definitely stolen. They also did not attach due importance to the fact that the seals were examined by the expert who

nowhere declared about tampering of seal on any side. If 134 bags had been stolen at Rajgram why only 3 bags could be recovered is an aspect

which was not taken into consideration by the appropriate authorities. Out of the 5 prosecution witnesses two witnesses who were present with the

officers making enquiry, search and raid totally dismissed the prosecution story of the case. The contradictions in the statements of the other

prosecution witnesses also escaped the notice of the respondents. With the sort of uncertain evidence on record the prosecution case could not be said

to have been established at the enquiry. The evidence adduced merited only one consequence i.e., exoneration of the petitioner from the charges

framed against him.

These along with the other lacuna as mentioned before are some of the aspects which should have been taken into consideration by the respondents.

Without undertaking any such an exercise and, what is more important to note, without trying to demonstrate why the finding of the enquiry officer

were not acceptable, the disciplinary authority proceeded to impose penalty by picking up pieces of evidence without making endeavour to either

collage them together or to read them holistically in their proper perspective. And the appellant authority as mentioned before, did not venture to

undertake any such exercise.

While making above observation the Court is aware that a writ court does not sit in appeal over the orders passed by the disciplinary authority unless

they are vitiated by perversity. This, however, is a rather rare case where the exceptional circumstances justifying interference at the writ stage exist.

This is a case where the findings of the disciplinary authority as well as the appellate authority are both based on inadequate evidence pointing to the

charge and the effect of the whole body of evidence taken together is such that no man of ordinary prudence would come to the conclusion about the

guilt of the petitioner, far less the punishment imposed. The conclusion drawn by the respondents is not borne by the evidence on record, if one had

read the evidence in their perspective.

In such view of it, the orders passed by both the disciplinary authority as well as the appellate authority are set aside and quashed. The matter was

once sent back by the High Court to the disciplinary authority after setting aside the order of removal from service. Since then many years have

passed. The authorities have again passed orders which, for the reasons mentioned above, are not sustainable. The respondents do not deserve a third

chance. In the mean time the petitioner has also become aged; he is now above 80 years. Sending the matter back to the respondents with liberty to

start a proceeding afresh from any stage whatsoever will be oppressive and very unjust for the petitioner. It is all the more so when the evidence on

record, as contained in enquiry report, does not justify any such liberty to be given to the respondents. The totality of the evidence and the legal effect

thereof do not establish the charge against the petitioner. A further remand will not serve any fruitful purpose.

Therefore, the petitioner should be notionally re-instated in service from the day of his removal from service and shall be deemed to have continued to

work till he attained the age of superannuation. The respondents are directed to pay 50% of the salary and other allowances during the period had he

been in service taking into account the monetary benefits which he would have been entitled to. The respondents are further directed to calculate the

retiral and other consequential benefits of the petitioner treating him to be in service till the date of his retirement.

The respondents are directed to release all the retiral benefits and 50% of the salary and other allowances for the period as mentioned above within a

period of eight weeks from the date of communication of the order. The arrear of pension, if the petitioner is otherwise entitled to, shall be liquidated

by six equal monthly instalments starting from December 1, 2018. The writ petition succeeds. There shall, however, be no order as to costs. Urgent

Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.