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Judgment
R. K. Mahajan, J.—This is a Second Appeal against the judgment and decree dated 1851982 passed by Shri U.S. Tripathi, Vllth Additional District Judge, Allahabad by virtue of which the trial court judgment and decree was set aside and the suit of the appellant for declaration that the order removing him from service is illegal, inoperative and without jurisdiction and it was further ordered that appellant continues in service with all benefits accruing from the past was decreed with costs.
The appellant filed suit for declaration in the lower court that he was appointed as a Rakshak, Railway Protection Force on 1411967. He was served charge sheet for unauthorised absence from 621974 to 2781974. He was served chargesheet by registered letter under Rule 44 of Railway Protection Force Rules, 1959 ( here in after referred to as Rules of 1959). He was at relevant time was serving at Chunar, District Mirzapur. It may be mentioned that he was ill on 321974 and remained under treatment up to 521974 and there after discharged on 621979. This period relates before the absence period. Showcause notice was given to him. It appears that he did not participate in the enquiry to answer the serious misconduct of remaining absent. The grievance of the plaintiffrespondent is that he was not given list of documents, list of witness and as a result of which he has been prejudiced in his defence.
Show cause notice of proposed punishment was issued on 381976 and which was received by the plaintiffrespondent on 2581976 and the reply was to be given with in fourteen days of the receipt of the notice. Fourteen days expired on 891979 and order of removal is dated 2681976 w.e.f. 191976. The order for termination was signed on 3081976 before the expiry of period of fourteen days.
The case of the defendantappellant in the lower court was that full opportunity was given to defend the case. It is also alleged by the defendant that the plaintiff has exhausted the remedy of appeal and revision before the competent authority and, as such, this Court has hardly any scope to interfere.
Shri Lalji Sinha, learned counsel for the appellants submit that the appellate court has committed a grave error in holding that no reasonable opportunity was given to the plaintiff respondent by way of supply of documents and also regarding the notice of punishment. He further submits that respondent did not participate in the enquiry and as such it does not deserve any relief.
Learned counsel for the plaintiffrespondent submitted that the finding of the lower court is based on false and incorrect facts.
At the time of admission of this second Appeal grounds No. 1 and 2 of the memo of appeal were framed as substantial questions of law. They are reproduced as under:
"1. Because the enquiry proceedings against the plaintiff respondent was in accordance with the provisions of Railway Protection Force Act and the Rulesand the judgment of the Court below is wholly erroneous and illegal.
Because there has been no violation of Rule 44 of the Railway Protection Force Rules and the impugned order of removal does not suffer from any infirmity."
I have heard learned counsel for the parties and have gone through the record. I would like to quote relevant provisions of Rule 44(1), (2) and (3) of Rules of 1959 with an advantage:
"44. Procedure for imposing major penalties(1) Without prejudice to the provisions of the Public Servants (Inquiry) Act, 1850, no order imposing on a member of the Force any of the penalties specified in clauses (a) to (d) of Rule 41 shall be passed except after an enquiry held as far as maybe in the manner here in after provided.
(2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based shall be communicated in writing to the member of the force and he shall be required to submit such time as may be specified by the disciplinary authority, a written statement of his defence and also to state whether he desires to be heard in person.
ExplanationIn this subrule in subrule (3) the expression "the Disciplinary Authority" shall include the authority competent under these rules to impose upon the member of the force of the penalties specified in clauses (e) to (h) of Rule 41.
(3) The member of the force shall for the purpose of preparing his defence be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused, if for reasons to be recorded in writing in the opinion of the disciplinary authority, such records are not relevant for the purpose it is against the public interest to allow him access thereto."
The emphasis has been laid down on Rule 3 for the purpose of preparing his defence he be permitted to inspect and take extracts from official records as he may specify, if the opportunity is refused then of course he has been prejudiced.
Shri Lalji Sinha, learned counsel for the appellants state that there was no such occasion to refuse for inspection at all. He further submitted that the finding of the lower court was correct that plaintiffrespondent was given full opportunity to defend his case. He relied upon case law reported in AIR 1996 SC1669 State Bank of Patiala and others v. S.K. Sharma. In this case the petitioner himself did not participate in the enquiry. There is no question of denial of fair hearing. He himself shows dilatory tactics of noncooperation. My attention was diverted to the chargesheet with regard to the charge that if the delinquent wants to inspect and take extracts of any document he shall furnish list of such record. This aspect of nonsupply of document is irrelevant as it appears that he was not at all interested in participating in the enquiry.
Learned counsel for the respondent has relied upon very famous authority reported in JT 1993 (6) SC 1, Managing Director, E.C.I.L., Hyderabad v. B. Karunkar. The ratio of this ruling is that a copy of the enquiry report is to be furnished to the delinquent regarding punishment. But delinquent is entitled to copy of report of the enquiry even if the statutory rules are silent or do not permit supply of the report. However, there is exception for disciplinary authority. The idea behind this ruling is that in order to meet the principles of natural justice report may be furnished. The ratio of this ruling has been complied with as the showcause notice and enquiry report was sent by the registered post on 381976 and it was received on 2581976 (obviously per version of the appellant). The finding of fact has been recorded regarding the receipt of the chargesheet by the lower court, receipt of the enquiry report and showcause notice regarding punishment but this finding of fact was reversed by appellate court regarding the nonsupply of documents at the time of the enquiry by the enquiry officer. The appellate court was also influenced that the respondentappellants were in possession of the date on which the notice was received and same was not produced and adverse inference under Section 114 of the Evidence Act was drawn. This approach of the lower court is wrong in law and in not appreciated in the facts and circumstances of the case. It is admitted fact that the notice was received regarding punishment and enquiry report but the submission of the learned counsel for the appellant regarding notice is invalid. The order could not have been passed before expiry of two weeks. This arguments has been also countered that the evidence could have been produced by the respondentplaintiff to make the doubts clear. Nonproducing of the evidence by him also shows adverse inference.
The fact remains that presumption can be drawn under Section 114 of the Evidence Act that in the usual course of things the notice must have been received in usual course of time and even much before 2581976.
In my view there is no patent error or illegality or violation of any fair hearing and fair procedure in taking an action of terminating his employment.
I am also the view that the appellant did not participate as apparent from the record and his nonparticipation also shows that he was not interested in defending the case. Enquiry officer was appointed. He could have gone and inspected the statement, relied upon or seen the documents There is endorsement on the chargesheet given to him which he has received as record shows that he can examine the documents He can see the documents and even can take extract of them. So that is the fault of the enquiry officer if delinquent officer does not participate in the enquiry or does not demand the document. It is rather noncooperation on his part and just putting a blame on the disciplinary authority for not adopting a fair procedure.
Shri Lalji Sinha, learned counsel for the appellant has relied upon AIR 1996 SC 1669 State Bank of Patiala and others v. S.K. Sharma, Para 33 of the judgment is quoted with an advantage:
"Now in which of the above principles does the violation of sub clause (iii) concerned herein fall.In our opinion, it falls under principles Nos. 3 and 4 (a) mentioned above. Though copies of the statements of two witnesses (Kaur Singh Patwari and Balwant Singh) were not furnished, the respondent was permitted to peruse them and take notes there from more than three days prior to their examination. Of the two witnesses, Balwant Singh was not examined and only Kaur Singh was examined. The respondent did not raise any objection during the enquiry that the non furnishing of the copies of the statements is disabling him or has disabled him, as the case may be, from effectively crossexamining the witnesses or to defend himselfThe Trial Court has not found that any prejudice has resulted from the said violation. The Appellate Court has no doubt said that it has prejudiced the respondent''s case but except merely mentioning the same, it has not specified in what manner and in what sense was the respondent prejudiced in his defence. The High Court, of course, has not referred to the aspect of prejudice at all."
Shri Lal Ji Sinha, learned counsel for the appellant has also relied upon the following authorities:
1974 (2) Service Law Reporter 679 B.L. Kohli v. Union of India and others.
AIR 1996 SC 1669 (para 33) State Bank of Patiala v. S.K. Sharma.
3.1975 (2) Service Law Reporter 135 Onkar Singh Khosla v. Union of India & others.
AIR 1966 Punjab 175BishambarLal Daya Chand v. State of Punjab.
In view of the latest ruling of the Hon''ble Supreme Court the detail ratio need not be discussed as more or less the principle has been laid that if the employee has been given adequate opportunity and has been also allowed to inspect the record it would not amount denial of reasonable opportunity and failure of justice.
What is required under law is adequate opportunity to meet out the case and mat adequate opportunity is misused by non cooperation and there is no wrong done by the disciplinary authority. The respondentplaintiff cannot blame the disciplinary authority.
Shri Singh, learned counsel for the respondent has also relied upon 1972 Lab. I.C. 478 Govind Jee Khare v. State of U.P. This authority is with respect to the ratio regarding harassment of employee without disclosing the reason to him and without affording of opportunity of hearing to him and as such the enquiry is vitiated. In the facts and circumstances of the case the ratio of this ruling is not applicable to this case. The statement of the learned counsel for the respondent is not sustainable that no adequate opportunity was afforded to him.
It may be mentioned that the respondent was absent for more than six months and such type of indiscipline is not conducive and healthy to the discipline of service and, as such, he cannot be given any benefit regarding nonsupply of documents regarding that fact he was given opportunity, as discussed above. I do not agree with the submission of the learned counsel for the appellant regarding the substantial question of laws framed as there is no violation of Rule 44 of Rules of 1959 as well as enquiry was also conducted in accordance with the proceedings of Railway Protection Force Act and the Rules.
In view of the above discussion the order of the lower appellate court cannot be sustained and the same is set aside and the judgment of the trial court is maintained. The amount of Rs. 89, 379.65 was deposited at the time of admission of this appeal and I am informed that this amount has been withdrawn. If it is so, the appellants can take steps for recovery in accordance with law. The appeal is allowed. No orders as to cost.