Krishna Bahadur Chhetry v. Union of India — 1987 DIGILAW 21 (CAL)

JUDGMENT This writ petition is directed against the Memorandum of Chargesheet being No. PF/195/76 dated 9/19.11.76 issued by the Assistant Security Officer, Eastern Railway, Asansol, departmental proceedings arising out of the said chargesheet and the finding of the Enquiry Officer dated 26/2/78, Memorandum No. PF/105/76 dated 24/10/78 issued by the Assistant Security Officer, Eastern Railway, Asansol and Regional Order No. 956/79 dated 25/7/79 and the Office Order No. PF/105/76 dated 25th July, 1976 respectively issued by the Assistant Security Officer, Eastern Railway, Asansol. 2. This case presents an unfortunate chapter of administrative inertia and callousness having sweeping grip over the Administration of Railway Protection Force. From objective reading and effective perusal of the record of the present case, it appears that service career of an employee by reason of extreme form of arbitrariness has been fastened with the order of removal of service, which affected the petitioner's livelihood. The petitioner was compelled to sustain the prolonged agony and deprivation of livelihood. The concerned respondents without having any regard to the materials on record and consideration of the basic grievances of the petitioner in careful manner held enquiry proceeding, issued a show-cause notice and passed an order of removal in clearest and grievious violation of the rules of Railway Protection Force Rules, 1959 (For short the said Rule hereafter) in particular sub-rules 8, 9 and 10 of Rule 44 of the said Rules. The petitioner, a member of the Railway Protection Force at the material time, held the post of Rakshak, Eastern Railway, Asansol. The petitioner was chargesheeted vide Order No. PF/105/76 dated 9/19.11.76 which reads thus :– "Sri K. B. Chhetry, R. K. is hereby charged for gross misconduct in that on 7/9/75 he was detailed for Armed Patrolling duty from 00 to 08 hrs. at the New UP Receiving Yard under the IPE (DN)/Post/Asansol when he failed to prevent and detect theft of three bales of CP goods from Wagon No. WR 82109 Ex Howrah to Dhanbad standing on line No. 4 of New UP Receiving Yard/ Asansol." 3. The charge was framed on the basis of complaint and report dated 7/9/79 made by the Inspector, Protection Force, Dn/Asansol, copy of the Memorandum of Chargesheet together with the unsigned statement of allegation dated 16/9/75 and the complaint and report dated 7/9/75 is contained in Annexure A to the writ petition. 4. The charge was framed on the basis of complaint and report dated 7/9/79 made by the Inspector, Protection Force, Dn/Asansol, copy of the Memorandum of Chargesheet together with the unsigned statement of allegation dated 16/9/75 and the complaint and report dated 7/9/75 is contained in Annexure A to the writ petition. 4. The petitioner denied the allegations contained in the chargesheet by letter dated 17th Dec., 1976, stating, inter alia, therein that seal checking inside the Yard were fully responsible for any incoming or outgoing trains about their seal, rivets etc. As soon as the petitioner took over charge, the senior Rakshak Sri Dudh Nath Dubey ordered him to rush to Sub Inspector's quarter in order to inform that a theft had taken place in the Yard; that the petitioner without lossing time immediately ran towards Sub Inspector's quarter and appraised him of the theft, that the petitioner was not responsible for the alleged theft. The respondent No.5 was thereafter, appointed an Enquiry Officer to enquire into the charge levelled against the petitioner. 5. In departmental proceedings, nine prosecution witnesses were examined including Rakshak Sri Sitaram Paswan, against whom a common charge was framed, but ultimately the authority concerned did not proceed against him. The statement and evidence made and/or adduced before the Enquiry Officer are contradictory to each other and the petitioner highlighted the said contradictory and inconsistent statements before the concerned authority. After the conclusion of the proceedings the Enquiry Officer on 26th February, 1978, submitted his findings before the respondent No.4 and held the petitioner guilty of the charges framed against him. The Enquiry Officer found the petitioner guilty of charges levelled against him. 6. On 30th October, 1978 the petitioner was served with the purported notice dated 24th October, 1978 whereby the petitioner was directed to show-cause why the penalty of removal of service should not be imposed. The said notice is contained in Annexure D. The petitioner submitted a detailed reply to the show cause notice proposing penalty of removal of service upon the petitioner's before the respondent No.4 and asserted that the finding of the Enquiry Officer was a stereotyped one inasmuch as material facts of the case had not been brought to bear in its merit by proper examination of the prosecution witnesses as a result whereof substantial wrong and miscarriage of justice had been perpitrated. The petitioner also submitted that the prosecution failed to prove by adducing effective evidence that theft from the subject wagon was committed after 01.00 hours of 7/9/75 during the duty period of the petitioner; that the seal checking and the res-sealing memo were not exhibited in enquiry and the enquiry officer did not examine them and thus the most valuable evidence was ignored. That apart, in his defence the petitioner categorically mentioned about serious lapses on the part of the Enquiry Officer which rendered the entire proceedings vitiate and inoperative. The statement of defence is contain in Annexure E to the petition. The fundamental grivance of the petitioner was that the disciplinary authority without considering the representation of the petitioner, the record of the case and without applying his mind to the facts of the entire case mechanically passed an order of removal vide order dated 25th July, 1979. The said orders are contained Annexure F to the writ petition. The petitioner thereafter, in terms of the provisions as contained in Rule 51, preferred an appeal against the order of the respondent No. 4 on 3rd August, 1979, Rule 58(2) of the said Rules provides that in case of an appeal against an order imposing any of the penalties specified in Rule 41 of the said Rules the appellate authority shall consider whether the procedure prescribed in these Rules has been complied with and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice, whether the findings are justified and whether penalty imposed is excessive or inadequate and then pass orders accordingly. But the appellate authority in utter disregard to the provisions as contained Rule 58(2) in particular sub-rule (2) of the Rule 58 of the said Rules mechanically and without any application of mind and any active consideration of the pros and cons of the case, passed the appellate order now impeached in the writ petition. 7. Mr. Saha, appearing in support of the Rule contended that the infirmities as stated in the writ petition vitiated the entire proceedings. "The orders thus impugned in the writ petition cannot be sustained by reason of the incurable defects as pointed out by the petitioner before the concerned authorities as also averred in the petition. 8. 7. Mr. Saha, appearing in support of the Rule contended that the infirmities as stated in the writ petition vitiated the entire proceedings. "The orders thus impugned in the writ petition cannot be sustained by reason of the incurable defects as pointed out by the petitioner before the concerned authorities as also averred in the petition. 8. The serious and foundational grievance of the writ petitioner is that the charge was initially framed not against the petitioner alone, but also against the senior Rakshak Sri Dudh Nath Dubey and Rakshak Sri Sitaram Paswan. Ultimately however, the authority concerned for reasons best known to them, did not proceed against the aforesaid members of the force, although the aforesaid members were on duty along with the petitioner when the incident was alleged to have been taken place. 9. The finding of the guilt by the Enquiry officer according to Mr. Saha is wholly dehorse the provisions as contained sub-rule 7 of Rule 44 of the said Rules. Sub-rule 7 of Rule 44 of the said Rules read thus : "At the conclusion of the enquiry, the Inquiring authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefore. If, in the opinion such authority, the proceedings of the inquiry establish charges different from those originally framed, it may record its findings on such charge provided that findings on such charges shall not recorded unless the member so charged has admitted the facts constituting them or has had an opportunity of defending himself against them." The petitioner was not given any inspector of certain documents which were relied on by the Enquiry Officer and thereby the enquiry officer rendered himself disabled from reaching a fair and just decision by some consideration wholly extraneous to the evidence and merit of the case and allowed himself to be influenced by irrelevant considerations. It was also the specific grievance of the petitioner that the finding reached by the Enquiry Officer not founded upon the evidence adduced and the statement made by the senior Rakshak Sri Dudh Nath Dubey and Rakshak Sri Sitaram Paswan against whom charge was framed. The petitioner asserted that by allowing the senior Rakshak Sri Dudh Nath Dubey and the Rakshak Sri Sitaram Paswan to be let off the respondent's acted arbitrarily and discriminatory manner. 10. The petitioner asserted that by allowing the senior Rakshak Sri Dudh Nath Dubey and the Rakshak Sri Sitaram Paswan to be let off the respondent's acted arbitrarily and discriminatory manner. 10. Apart from the infirmities highlighted, the petitioner according to Mr. Saha was found guilty of a charge which did not find its please in the Article of Charge. The appellate authority found the petitioner guilty of the act of negligence if not connivance in the theft. That was not the charge. Appellate Authority therefore, added a new charge without giving any opportunity to the petitioner to rebute the same in conformity with the principles of procedural and natural justice. From a reference to the order impugned in the writ petition it is clear that the concerned authority namely, the disciplinary authority did not at all consider the basic grivance of the petitioner nor did he consider the material on record and in particular record of the case. The word 'consider' which has been interpreted in Supreme Court in different judgments, was consiously overlooked by the disciplinary authority and the appellate authority. 11. This case presents a very shabby and sordid way of dealing with the case of the petitioner by the disciplinary authority and the appellate authority. The orders impugned did not demonstrate that there was, in fact and effect any active application of mind to the material on record and the respective defence of the petitioner and the basic infirmities as detailed in the written defence. So there has been no consideration of the case of the petitioner terms of the statutory mandate as contained in Rules 44(9), 44(10) and 58(2) of the Rules. 12. The appellate authority without any jurisdiction or in violation of the said rules framed a new charge as detailed above. Mr. Saha, argued that the appellate authority while exercising the powers under Rule 58 of the Rules did not consciously comply with sub-rule (2) of Rule 58 of the said Rules. The work "consider" appearing in sub-rule (2) of Rule 58 of the said Rules has different shades of meaning and must be read in the context of sub-rule (2) of Rule 58 of the Rules in which it appear that the appellate authority shall consider after due application of mind which implies giving all reasons for his decision. Mr. The work "consider" appearing in sub-rule (2) of Rule 58 of the said Rules has different shades of meaning and must be read in the context of sub-rule (2) of Rule 58 of the Rules in which it appear that the appellate authority shall consider after due application of mind which implies giving all reasons for his decision. Mr. Saha claimed and contended that it was incumbent upon the appellate authority to strictly adhere to the requirements of Rule 58(2) of the Rules which was not admittedly complied with, followed or observed. There was no attempt on the part of the appellate authority to decide whether the findings of the disciplinary authority could be sustained or not. There was no indication in the appellate order that the appellate authority was satisfied as to whether the procedure as laid down in the said Rules had been complied with ; and if not whether such noncompliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. The appellate authority also failed to reach any conclusion that major penalty of removal of the petitioner from service was adequate or justified in the facts of the instant case. The appellate authority did not consider that the extreme penalty was warranted at all when the petitioner rendered long period of service. The appellate authority was required to give his own reasons, more particularly when the appellate authority, as submitted by Mr. Saha, framed a new charge. The concerned authority ought not to have reached ex parte decision which affected the right of the petitioner without first giving him an opportunity of meeting the new charge. Both the Privy Council as well as the Hon'ble Supreme Court have in a series of cases laid down the principle that strict adherence to the rules of natural justice is rigorously required in a case where the public authority or body has to deal with the right of a person. In the instant case, the petitioner was never charged with misconduct of negligence or connivance in theft. Since the new charge being incorporated in the appellate order, the main thrust of Mr. Saha remains is as to whether appellate stage it was necessary for the appellate authority to allow the petitioner to know the charge. Mr. In the instant case, the petitioner was never charged with misconduct of negligence or connivance in theft. Since the new charge being incorporated in the appellate order, the main thrust of Mr. Saha remains is as to whether appellate stage it was necessary for the appellate authority to allow the petitioner to know the charge. Mr. Saha strenuously pinpointed that the petitioner could not have been found guilty of a charge which did not find place in the chargesheet and also the petitioner did not get any opportunity to deal with the said charge, to present his case and to controvert the charge in conformity with the basic concept of natural justice. It has been held by the Supreme Court in (1) Ramchandra v. Union, AIR 1986 SC 1173 that in a given situation post-decisional hearing is permissible. In the instant case according to Mr. Saha a new charge was framed. The appellate authority ought to have given the petitioner opportunity of being heard on the new charge, which could not thus be framed against the petitioner by the appellate authority. That could have been done during the stage of the enquiry proceeding by the disciplinary authority in terms of sub-rule 7 of Rule 44 of the said Rules. 13. Mr. Surathi Mohan Sanyal, the learned Advocate appearing on behalf of the respondents seriously and strenuously resisted the plea of Mr. Saha by contending that the enquiring officer conducted departmental enquiry strictly in accordance with the said Rule and the regulations framed thereunder. He further contended that the charge having been established during enquiry, the enquiring officer submitted findings in accordance with the Rules holding the petitioner guilty of the charges. Mr. Sanyal further claimed and contended that the enquiring officer did not act in violation of the Rules nor did he withhold the document relied on by the enquiring officer. Mr. Sanyal asserted that exhibits demanded by the petitioner were supplied to him and he was afforded reasonable opportunity to defend his case. It is also urged by Mr. Sanyal that the contention of Mr. Saha that the enquiry proceeding was conducted in violation of principles of natural justice is, wholly unwarranted. Mr. Sanyal stressed that the orders passed by the authorities concerned were based on some evidence and therefore, this Court cannot interfere with the said finding under Article 226 of the Constitution. Regarding the submission of Mr. Sanyal that the contention of Mr. Saha that the enquiry proceeding was conducted in violation of principles of natural justice is, wholly unwarranted. Mr. Sanyal stressed that the orders passed by the authorities concerned were based on some evidence and therefore, this Court cannot interfere with the said finding under Article 226 of the Constitution. Regarding the submission of Mr. Saha that the case of the petitioner was arbitrarily picked up in clear breach of Article 14 of the Constitution to the exclusion of the senior Rakshak, Dudh Nath Dubey and Sitaram Paswan. Mr. Sanyal submitted that the disciplinary authority at his discretion, dropped the proceedings against the members of therefore, and in the instant case there was no case of discrimination as alleged by the petitioner. 14. After considering the rival contentions of the learned Advocates for the parties, I find that the enquiring officer while submitting his report relied on the statements of Rakshak Sitaram Paswan and Senior Rakshak Dudh Nath Dubey, both of whom were equally answerable for the alleged theft. It is somewhat strange and curious that the senior Rakshak being one of the co-accused inspite of being departmentally proceeded with, was not only allowed to be let off but was cited as a witness to sustain a charge against the petitioner. Even Mr. Sanyal submitted in his usual fairness that no steps were taken against Dudh Nath Dubey and to that effect an averment has been made in the affidavit-in-opposition. The enquiring officer by relying on the evidence of the co-accused acted improperly and illegally. This is an instance of groseer form of procedural impropriety. The finding of the enquiring officer is, therefore, infected with illegality and the enquiry report and the orders passed in pursuance thereof cannot therefore be sustained by reasons of unwarranted actions on the part of the disciplinary authority and the enquiring officer in allowing senior Rakshak Dudh Nath Dubey to come forward and say against the petitioner. It would have been proper for the disciplinary authority to initiate proceeding against senior Rakshak Dudh Nath Dubey and Rakshak Sitaram Paswan but that was done and no reason could be found in the affidavit-in-opposition. 15. The next contention of Mr. It would have been proper for the disciplinary authority to initiate proceeding against senior Rakshak Dudh Nath Dubey and Rakshak Sitaram Paswan but that was done and no reason could be found in the affidavit-in-opposition. 15. The next contention of Mr. Saha as regards initiation of proceeding against the petitioner to the exclusion of Dudh Nath Dubey and Sitaram Paswan finds support from the judgment of the Supreme Court report in (2) Sangham Singh v. State of Punjab, AIR 1984 SC 1499 . The Supreme Court held that the dismissal of several members of police force for participation in agitation cannot be sustained by reason of the fact that there was re-instatement of large number of personnel to the exclusion of the petitioners. In the aforesaid case it was conceded that over the 1100 dismissed agitators, 1000 were reinstated and the rest were left to find their health for themselves. Those who were weeded out, claimed protection of Article 14 of the Constitution and it was held by the Supreme Court that logically the petitioners must receive the same benefit which those reinstated received in absence of any distinguished feature appearing their case. Applying the principle as laid down in the said decision. I am of the view that if the misconduct of senior Rakshak, Dudh Nath Dubey and Rakshak Sitaram Paswan could be condoned and there was no justification in treating the petitioner differently without pointing out how he was guilty of more serious misconduct or degree of negligence or his case was on different footing, the treatment meted out to the petitioner suffers from infection of arbitrariness and Article 14 of the Constitution forbids any arbitrariness in the action of the executive which tantamounts to denial of equality as guaranted by the said Article. The decision of the authority not to initiate proceeding against the senior Rakshak and Rakshak to the exclusion of the petitioner was perverse and ultra vires Article 14 of the Constitution. Apart from that, there is complete absence of fairness. Beyond all the rules and the procedure, fairness is the sine qua non. The decision in (3) Sawai Singh v. State of Rajasthan by the Supreme Court in 1986 (3) SCC 454 is illumenation Mr. Justice Sabyasachi Mukherji, while speaking for the Court held this above view. The concept of fairness is a challenging advance in the field of Judicial review. The decision in (3) Sawai Singh v. State of Rajasthan by the Supreme Court in 1986 (3) SCC 454 is illumenation Mr. Justice Sabyasachi Mukherji, while speaking for the Court held this above view. The concept of fairness is a challenging advance in the field of Judicial review. It was held by Lord Roskill in (4) Council of Civil Services and Others v. Minister for the Civil Services, (1985) LRC 948, that the principle of natural justice is offence mis-understood and a time has come when the natural justice will find its permanent resting place and will be replaced by the doctrine of fairness or duly to act fairly. The respondents utterly failed to act properly reasonably and fairly in dealing with the case of the petitioner. The discriminatory treatment coupled with arbitrariness affected the petitioner's livelihood. The petitioner suffered prolonged agony of removal from service without any sustenance to live and thereby Article 21 of the Constitution while includes livelihood, is utterly infringed in the facts of the case. I find in complete agreement with the contentions of Mr. Saha that the disciplinary authority acted in utter breach of sub-rules (8), (9) and 10(2)(c) of Rule 44 of the Rules. Sub-Rule 8 of Rule 44 of the Rules read thus : (8) "The record of the inquiry shall include :– (i) The charges framed against the member of the force and the statement of allegations furnished to him under sub-rule (2); (ii) his written statement of defence, if any (iii) the oral evidence taken in the course of the inquiry; (iv) the documentary evidence considered in the course of the inquiry; (v) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry; and (vi) a report setting out the findings on ecch charge and the reasons therefore." (9) "The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge." Sub-rule (9) of Rule 44 of the said Rule requires the disciplinary authority to consider the records of the case. The words "record of the enquiry" are to be construed very strictly in terms of sub-rule (8) of Rule 44 of the Rules. The words "record of the enquiry" are to be construed very strictly in terms of sub-rule (8) of Rule 44 of the Rules. The assistant security officer while dealing with the case of the petitioner under Rule 44 discharged quasi judicial function and he being responsible officer while passing the provisional order of removal and final order of removal acted in deliberate violation of sub-rule (8), (9) and 10 of Rule 44 of the said Rules. It is patent that the disciplinary authority did not consider the record of the enquiry nor did he consider the written statement of defence of the petitioner, the oral evidence taken in course of the enquiry and the documentary evidence produced in the enquiry, but on a mere consideration of the enquiry report, he passed the final order against the petitioner. In my view, this does not constitute valid, effective and proper compliance with sub-rules 8, 9 and 10 of Rule 44 of the said Rules. 16. The disciplinary authority after considering only the report of the enquiring officer reached the conclusion and thereby failed to act in terms of the statutory mandate and there is also breach of Art. 311(2) of the Constitution. The materials constituting the records of the enquiry were overlooked by the disciplinary authority. Apart from above, it is incumbent upon the disciplinary authority to record his own reason for each charge, but there is no such independent finding of the disciplinary authority on charge. The provisional order of removal impugned in the writ petition is vitiated by clear violation of the Rules as aforesaid. In view of the word 'consider' appearing in sub-rule (9) and sub-rule (10)(2)(c), the provisional order of removal and the final order of removal passed by the Assistant Security Officer cannot be sustained and they are liable to set aside. I am also in agreement with the contention Mr. Saha that the appellate order is ultra vires of the provisions of the said Rule, inasmuch as, the appellate authority cannot usurp the function of the disciplinary authority nor is he empowered to frame the charge against the petitioner. My view finds support from the decision in the case of (4) Collector of Customs v. Md. H. Haque, 1973(1) SLR 321. My view finds support from the decision in the case of (4) Collector of Customs v. Md. H. Haque, 1973(1) SLR 321. In this case the deliquent officer was charged with an act of abetting in the smuggling of foreign goods and such a charge was found to have been established by the enquiring officer on the evidence of two persons, who according to the enquiring officer were architect of the crime. But the enquiring officer made a finding that the deliquent officer connivance in the act of aiding and abetting the smuggling of various articles found in the canvas bag and Haque's own brief-case as listed in Annexure II to the charge-sheet was clearly established. This, however, was not the charge against the deliquent officer, for there is no charge of connivance of act of aiding and abetting smuggling of foreign goods against the deliquent officer. Strangely enough the disciplinary authority issued a show-cause notice in the aforesaid case and found that the delinquent officer himself was guilty of smuggling of foreign goods with which the deliquent officer was never charged with. In the instant case, the petitioner was never charged with the connivance in theft. The appellate order, in my view, cannot be sustained, inasmuch, it is tainted with incurable infirmity. 17. The proceedings right from the charge-sheet to the passing of the appellate order are thus vitiated by incurable infirmities as also by breach of the procedural and natural justice. The impugned orders including the charge-sheet are therefore set aside. 18. The Rule is made absolute and the writ petition is allowed. There will be no order as to costs. Let appropriate writ do issue. Since the petitioner thus succeed in the Rule, respondent are directed to pay all the service and consequential benefits to which the petition would have been entitled had he not been removed from service.