Himangshu Kumar Bose v. UNION OF INDIA — 1985 DIGILAW 48 (CAL)

JUDGMENT 1. THE petitioner, in this Rule has prayed for quashing of the Disciplinary proceeding, the suspension order, the charge-sheet, the report of the Enquiry Officer and, the punishment show cause notice. 2. THE instant writ application, has arisen under the facts and circumstances stated hereunder. The petitioner, at the relevant time, had been working as a clerk in the Office of the Security Officer, Eastern Railway, Sealdah. By a memo, dated 6th march, 1976, of the Security Officer, sealdah, all documents, relating to recruitment/employment, dealt with by the petitioner, were directed to be taken over by the chief clerk, Shri R. N. Mukherjee, when the petitioner would join duty on the 8th of March, 1976. The petitioner was also served with an order of suspension issued by the Assistant Security Officer, Sealdah, in contemplation of a disciplinary proceeding. On 27th April, 1976, under the signature of the Assistant Security Officer, the petitioner was served with a charge-sheet, inter alia, alleging that the petitioner issued medical memos Nos. 274926 and 274927 dated 10th April, 1975, in favour of Ramprobesh Roy and Subhnarayan Ojha respectively, forging the signature of the chief clerk, Shri R. N. Mukherjee, and wrongfully using the rubber stamp of A.S.O./SDAH to enable the said persons to obtain certificates of fitness and thus committed offences of forgery, conspiracy and misuse of his official position for his personal gains. Along with the charge-sheet a list of 6 documents and another list of 5 witnesses were enclosed, interims of Rule 9 of the Railway Servants Discipline and appeal Rules. 3. THE petitioner by his letters dated 15. 5. 76 and 1. 7. 76 asked for copies of about 10 documents and statements of witnesses mentioned in the charge-sheet and report of the Vigilance Inspector. Of the said documents, copies of some were given and inspection of some others were allowed but a number of such documents, asked for, had not been supplied. On a further representation by tie petitioner dated 31st July, 1976, the assistant Security Officer by ins letter dated 16th August, 1976 directed him to obtain copies of the records prepared by himself. It is alleged, in paragraph 20 of the writ application, that Shri 3. K. Dey of the vigilance Department, who investigated into the facts, refused to give inspection of certain documents. 4. It is alleged, in paragraph 20 of the writ application, that Shri 3. K. Dey of the vigilance Department, who investigated into the facts, refused to give inspection of certain documents. 4. THE petitioner's first grievance is that grounds, on which inspection was refused, were neither bonafide nor lawful. From the averments made in the said paragraph, it appears that the statements of Subhnarayan Ojha and Ramprobesh Roy were refused on the ground that those were not mentioned in the list of documents. It may be mentioned, at this stage, that the said two persons were named as witnesses in the charge-sheet. It also appears that the investigation report of Sri S. K. Dey. Vigilance inspector was refused on the ground that he was mentioned as a witness only and his statement was not included in the list of documents. The petitioner by another representation dated 31st July, 1978 reiterated that copies of items 3, 7, 8 and 9 only were given to him and the rest of the items as mentioned in his letters dated 15th of May, 1976 and 1st July, 1976 were not given to him, with the result, that he was not able to submit his reply to the sheet. As stated above, some of the relevant documents were not permitted to be inspected by the petitioner by the Vigilance Inspector Shri S.K. Dey and even without such inspection, the petitioner had to file his reply to the charge-sheet by his letter dated 27th august, 1976, denying all the allegations, brought against him and making a prayer for access to the report of the Government hand-writing expert. Thereafter an enquiry was started and during its pendency, the Enquiry Officer was changed. 5. THE second grievance of the petitioned is that the report of the hand-writing expert, inspite of a direction by Shri b. C. Roy, the 1st Enquiry Officer, was never produced, causing material prejudice to him. The third grievance of the petitioner is that the second Enquiry officer conducted the enquiry in utter violation of the fundamental norms and principles, governing the examination and cross-examination of witnesses. The procedure adopted by him was neither bonafide nor lawful. The third grievance of the petitioner is that the second Enquiry officer conducted the enquiry in utter violation of the fundamental norms and principles, governing the examination and cross-examination of witnesses. The procedure adopted by him was neither bonafide nor lawful. According to the petitioner after the cross-examination of shri S. K. Dey, on behalf of the petitioner, Shri R. N. Mukherjee, witness No. 2, was examined on behalf of the prosecution and even before the cross examination by the petitioner was complete, shri Dey was produced and the Enquiry officer stated examining him on his own at length as if to fill up the lacunae in the evidence tendered till then from the side of the prosecution. The petitioner alleges that the nature of the questions put by the Enquiry Officer would amply illustrate that he was not maintaining impartially and was not without bias. After the conclusion of deposition of the witness no. 1, Shri Dey, Shri Brahmo ojha, witness no. 3 for the prosecution was produced and cross-examined by the Enquiry Officer. The petitioner was not allowed to further cross-examine witness no. 3 to indicate his defence against the facts sought to be brought out by the questions of the Enquiry Officer. After the cross-examination of witness no. 3, witness no. 2, Shri R. N. Mukherjee was produced again for further cross-examination and he was cross-examined by the Enquiry Officer. On behalf of the petitioner questions 4 onwards and Q. 43 by defence helper and thereafter ques tions of Enquiry Officer relating to P.W.1 questions 10, 16, 23, 29 by defence helper and questions 12 to 17 by Enquiry officer relating to P.W.2, questions 9,13 of defence helper and 3 and 8 of Enquiry, officer relating to witness no. 3 and questions 7 to 9 of Enquiry Officer put to p. W. 4, were referred to and commented upon to justify the reasonableness of the above grievance of the petitioner. 6. IN my view the first three grievances of the petitioner have substance and the enquiry which was held cannot be sustained for the reasons which are discussed hereinafter. It is an accepted position in law that; the necessity of supplying copy of a document will have to be judged not only from the stand point of the prosecuting authority but also from the stand point of the defence. It is an accepted position in law that; the necessity of supplying copy of a document will have to be judged not only from the stand point of the prosecuting authority but also from the stand point of the defence. A document may not at all be relevant or useful for the purpose of prosecution but may be of immense value for the purpose of defence the reason, justifying the recognition of this principle, is not far to seek. The right to cross-examine a particular witness, on which reliance has been placed by the prosecution, is a fundamental part of the principle of natural justice. Keeping the defence or the delay quent deprived of the previous, statements or reports renders illusory such a right. No doubt, normally, the rules of natural justice are intended to supplement the law and not to supplant it and their application can be excluded either by express words or by necessary implication, yet where it is found that the rules are silent the principle operates with full force and a Court of law would not entertain an argument that even if such principle had been observed the result would have been the same, as justice must not only be done but must be shown to have been done. The grievance of the petitioner about the justice being denied to him as proved by non supply of the copy of the necessary documents has been sought to be countered by Mr. Ghose for the respondents saying that the Rules do not provide for any opportunity being given to the delinquent at the stage of fact finding preliminary enquiry. Reliance was placed on the principle laid down in the case of champak Lal vs. Union of India reported in AIR 1964 SC 1854 . This case, however, is distinguishable on facts in as much as the termination of service in that case was made not in course of disciplinary proceeding but in terms of the contract and accordingly principles of article 311 (2) were found in applicable. 7. This case, however, is distinguishable on facts in as much as the termination of service in that case was made not in course of disciplinary proceeding but in terms of the contract and accordingly principles of article 311 (2) were found in applicable. 7. ON the other hand in case of He mendubiksh Nag vs. Union of India reported in 1973 CLJ 236 , cited on behalf of the petitioner it was held by Anil K. Sen, J that principles of Natural Justice are violated by refusal of copy of the earlier statement of a departmental witness irrespective of its relevance on the ground that the prosecuting. Authority does not propose to rely on such statement as the need for the document cannot be adjudged from the stant point of the prosecuting authorities alone. The resulting enquiry, it was observed, would then be not to find out guilt or otherwise of the delinquent but would only be an enforced procedure to adjudge him guilty. It was held also in the case of Anandram Jianarai Vaswam vs. Union of India reported in 1983 (1) CLJ 8 (paragraph 92) by the Division Bench of our High Court that a report, although by way of preliminary investigation report, used for the purpose of framing charge-sheet, is a document which ought to be supplied to the delinquent and refusal to supply the same would result in failure of justice. In another case State of U. P. v. Md. Sharif reported in 1982 (2) SLR 265f, it was laid down that denial of copies of statements, recorded during preliminary enquiry of the persons, who were examined as witnesses in course of the Disciplinary Proceeding, would amount to denial of reasonable opportunity in conformity with the principles of natural justice and renders the enquiry invalid. Sharif reported in 1982 (2) SLR 265f, it was laid down that denial of copies of statements, recorded during preliminary enquiry of the persons, who were examined as witnesses in course of the Disciplinary Proceeding, would amount to denial of reasonable opportunity in conformity with the principles of natural justice and renders the enquiry invalid. Reference in this connection may also be made to the case of State of M. P. vs. Chintamon Sadashib, reported in AIR 1961 SC 1623 , wherein, while considering the effect of non-supply of application on the strength of which the preliminary enquiry was started, it was held, inter alia, by Gajendra Gadkar, J, presiding over a five judges' Bench, that if, denial of a document hinders the effective exercise of the right of the delinquent to cross-examine a witness against him, the inevitable consequence would be that the enquiry would have to be declared vitiated for not being in accordance with the Rules of natural justice. Applying the above principles to the facts of present case, it appears that refusal of items nos. 1 and 2 as mentioned in paragraph 20 of the petition amounted to failure of the principles of natural justice and vitiated the entire enquiry. On the complaints of Subhnarayan Ojha and Ramprabesh Roy, the preliminary enquiry was initiated and as far as the investigation report of Mr. Dey was concerned that was also a document required to be supplied to enable the delinquent to effectively cross-examine Mr. Dey, who was examined as a witness on behalf of the prosecuting authority. The charge-sheet was framed on the basis, inter alia of the said report. The non-supply of this document vitiated the entire enquiry and the enquiry is liable to be quashed. 8. FROM another angle also the enquiry cannot be allowed to be effective as it appears that in the matter of cross examination of the witness even the fundamental rules of evidence were not adhered to. The procedure, which was followed, in examining and cross examining witness, coupled with the trend of questions put by the Enquiry Officer himself would suggest that the Enquiry officer was not acting in an impartial or bona fide manner but he was trying to elict materials for the purpose of assisting the prosecution. The procedure, which was followed, in examining and cross examining witness, coupled with the trend of questions put by the Enquiry Officer himself would suggest that the Enquiry officer was not acting in an impartial or bona fide manner but he was trying to elict materials for the purpose of assisting the prosecution. In such cases the enquiry cannot but be declared vitiated and reference in this connection may be made to the cases of S. Krishnan Nair v. D. Supdt. (B. E.) reported in 1973 (2)SLR 2353 of the Kerala High Court and anandram Jiandrai Vaswani vs. Union of India reported in 1983 (1) CLJ 8 of our High Court. In addition to the above points challenging the propriety and validity of the enquiry, the petitioner has also challenged the jurisdiction and the scope of authority of the Security Officer and the Assistant Security Officer to initiate the impugned Disciplinary Proceeding as also the applicability of the provisions of Railway Servants (Danda) Rules, 1968 to the petitioner. According to the petitioner he was not a part of the railway Protection Force establishment and as such the Officer of the Railway protection Force had no authority to issue any charge-sheet against him. The petitioner in the same breath contended that in view of the terms of the Railway Servants (D and A) Rules, the said rules do not have any application to the case of the petitioner. It is argued, an the other, hand, by Mr. P. K. Ghosh appearing on behalf of the respondents that upon a proper construction of the provisions of Railway Protection Force act, the petitioner does not fall within these specified category covered by such act and the Rules framed there under and does not constitute a part of the railway Protection Force and but is really a Clerical Staff, under the Railway administration subject to the Railway servants (D and A) Rules. Mr. Ghose, in this connection, also submits that there has been no violation of any provision, by initiation of the proceeding through the Security Officer and/or the Assistant security Officer, who can be co-related to the grades of Disciplinary Authorities under the Railway Servants (D and A)Rules. Mr. Mr. Ghose, in this connection, also submits that there has been no violation of any provision, by initiation of the proceeding through the Security Officer and/or the Assistant security Officer, who can be co-related to the grades of Disciplinary Authorities under the Railway Servants (D and A)Rules. Mr. Ghose further contends that at any rate, the petitioner cannot claim immunity from being subjected to the disciplinary Proceeding by pleading that he is neither a part of the Railway Protection Force nor a part of the general railway Administration. 9. IN my view the aforesaid submissions made on behalf of Mr. Banerjee are without much substance and should accordingly be rejected. A reference to Section 2 Clauses (a) and (c) Section 3 section 5, Section 6 and Section 8 of the railway Protection Force Act would clearly show that the petitioner does not fall within the categories of the railway Protection Force. The definition of Railway Servant as given in Section (3) Sub-section (7) of the Railways Act would clearly bring the petitioner within the ambit of the said definition and accordingly it cannot be accepted that the Railway Servants (D and A) Rules do not apply to him, 10. IN view of my findings above Rule is made absolute in part. The entire enquiry proceeding and the enquiry report dated 15.2.78 as also the punishment show cause notice dated 12/13.4.78 are quashed. The respondents, however, are given liberty to proceed, in accordance with law, from the stage of the charge-sheet after giving the delinquent petitioner inspection of the necessary documents on lines of the observations in my judgment as made above. It is further directed that the enquiry, if any, is held afresh, the same should be entrusted to some officer other than Sri a. K. Ramtek, who held the instant enquiry and such enquiry should be started within a reasonable time and completed, in view of the long delay since the date of origin of the allegations against the petitioner, as expeditiously as possible and not beyond a period of six months from the date of its commencement. Parties are given liberty to pray for appropriate directions in future, if necessary. There will, however, be no order as to costs. Rule made absolute in part.