Union of India v. Kamal Das — 1989 DIGILAW 855 (ALL)

JUDGMENT A.N. Dikshita, J. - Union of India, appellant, has preferred this appeal against the judgment and decree dated 8-5-1975 passed by Sri Naseemuddin, IV Addl. Civil Judge, Varanasi in Civil Appeal No. 328 of 1974, arising out of Original Suit No. 352 of 1972. 2. The respondent was employed as Rakshak in the R. P. F. at Mughalsarai, U. P. a post under the Asstt. Security Officer, Danapur on 28-2-1971. When he was placed under suspension without any justification, as alleged, by the Security Officer, R. P. F., Mughalsarai. It was alleged by the respondent that the charge-sheet No. 101/71 dated 25-4-1971 issued by the Asstt. Security Officer, R. P. F., Danapur was based on wrong facts and was illegal. The respondent was later on removed from service by Order dated 30. 3. 72/3-4-1972. The respondent preferred an appeal against the above order of removal but was rejected by the Security Officer, R. P. F. Mughalsarai, by order dated 18-5-1972. The respondent served with a notice under Section 80, C. P. C. and then filed a Suit No. 352 of 1972 (Kamal Das v. Union of India and another) for a declaration that the order dated 30-3-1972/3-4-1972 passed by the Asstt. Security Officer, R. P. F., Danapur is illegal, invalid, unconstitutional and that the respondent continuous in service as a Rakshak in R. P. F. The appellant contested the suit and denied the plaint allegations. It was contended by the appellant that the respondent was suspended on 28-2-1971 for failing to prevent theft of one that C. P. Goods from wagon No. N. R. 6318 while on duty at Mughalsarai which resulted in the issue of a charge-sheet. A proper enquiry was held and full opportunity was given to the plaintiff. However, on the receipt of the report of the Enquiry Officer, respondent was found guilty and, consequently, removed from service by the impugned order. The appeal preferred by the respondent to the authorities was dismissed by the Competent Authority and there is no breach of R. P. F. Act or Constitution of India. 3. On the pleadings of the parties, the learned trial court framed the following issued; 1. Whether the suit is undervalued and the court-fee paid is insufficient?. 2. Is the suit bad for mis-joinder of defendant No. 2? 3. It the notice under Section 80, C. P. C. illegal?. 4. 3. On the pleadings of the parties, the learned trial court framed the following issued; 1. Whether the suit is undervalued and the court-fee paid is insufficient?. 2. Is the suit bad for mis-joinder of defendant No. 2? 3. It the notice under Section 80, C. P. C. illegal?. 4. Is the plaintiffs suit barred by Sections 34 and 42 of Specific Relief Act?. 5. Whether the plaintiff has any cause of action to maintain the suit ?. 6. Whether the order No. 605/720, dated 30-3-72/3-4-1972 passed by A. C., Danapur is illegal, void and in-operative?. 7. Whether the Departmental enquiry and its findings were bad in law?. If so it's effect?. 4. Issue Nos. 1 and 2 were decided in favour of the respondent and against the appellant. Issue No. 3 regarding the validity of the notice under Section 80, C. P. C. was found to be valid. It was, thus, decided in the negative. Issue No. 4 was also decided in the negative. While deciding issue Nos. 5 and 6, it was held that the suit was maintainable and cause of action accrued to the respondent. However, the trial court found that the Asstt. Security Officer had no jurisdiction to pass the impugned order. The suit was thus, decreed and it was declared that the impugned order is illegal and respondent continued to be in service. Aggrieved against the judgment and decree of the learned Munsif, the appellant filed an appeal to the Court of District Judge which was transferred to the Court of IV Addl. Civil Judge, Varanasi (Civil Appeal No. 328 of 1974). This appeal was dismissed by the judgment and order dated 8-5-1975 passed by the IV Addl. Civil Judge, Kanpur. 5. Hence this second appeal. 6. Heard the learned counsel for the parties. 7. The learned counsel for the appellant has submitted that the findings recorded by the court below are erroneous and illegal. It has been submitted that in the case of Union of India v. Babhan Singh (Second Appeal No 2272 of 1974 connected with Second Appeal No. 2273 of 1974 Union of India v. Safrullah) it was found that the Asstt. Security Officer was competent to pass the impugned order of the removal as he was the Appointing Authority. 8. The learned counsel for the appellants has submitted that in the instant case the Asstt. Security Officer was competent to pass the impugned order of the removal as he was the Appointing Authority. 8. The learned counsel for the appellants has submitted that in the instant case the Asstt. Security Officer had the power to pass the impugned order the findings to that effect recorded by the Court below are palpably illegal and are liable to be set aside. Placing reliance in the case of Union of India v. Babhan Singh (supra) and Union of India Safrullah, (supra) wherein was held that the Asstt. Security Officer is competent to pass the order of termination. It has been submitted that the court below has committed a substantial error of law in decreeing the suit of the respondent on the ground that the order of removal passed against the respondent was hit by Article 311 of the Constitution of India. Apparently the Asstt. Security Officer is the Competent Authority to pass the impugned order. The learned counsel for the respondent Sri A. D. Prabhakar has submitted that in view of decision in the cases of Union of India v. Babhan Singh and Union of India v. Safrullah, (supra) he agrees to the view taken by this Court that the Asstt. Security Officer is the Authority to pass the impugned order. Both the courts below have simultaneously held that the impugned order of removal having been passed by the Asstt. Security Officer, who was not competent to pass such order and the respondent has, thus, been denied an opportunity and, thus, hitting Article 311 of the Constitution of India. Such findings of the courts below are in fact bad in law and are liable to be reversed. 9. As regards the other grounds on which the impugned order was challenged that the Departmental enquiry was not fair and vitiated by error of law, the trial court found that the respondent was given charge-sheet, a preliminary enquiry was also done where after an Enquiry Officer was appointed, who gave his finding after affording the plaintiff full opportunity to defend himself and option to produce and witness whom he may desires. It was also found that a show-cause notice was issued to the respondent to explain why he should not be given the proposed penalty any after perusal of the explanation submitted by the respondent, the order removing him from the, service was passed. It was also found that a show-cause notice was issued to the respondent to explain why he should not be given the proposed penalty any after perusal of the explanation submitted by the respondent, the order removing him from the, service was passed. An appeal to the Competent Authority was preferred by the respondent, but was dismissed. The trial court ultimately found that there is no illegality in the entire proceedings nor the principle of natural justice have been violated. The appellants have thus fully complied the requirements of law. 10. The learned counsel for the respondents has very vehemently urged that the findings recorded by the courts below in regard to the proceedings during the Departmental Enquiry have not been discussed except casual observations. No opportunity, what-so-ever, was ever given to the respondent to assail such findings. The trial court no doubt framed issue No. 7-whether the departmental enquiry and his finding was bad in law? But there have been complete lack of discussion on this issue. A printed charge-sheet dated 25-1-1971 was served enclosing thereto the statement of charge that for gross neglect of duty while on duty of Mughalsarai-Coachin Yard-beat No. 20 the respondent had failed to preventer detect theft of one bale C. P. Goods. It had emerges from record that the Van in which the bale was repacked and sealed for destination was being snatched at Coaching Yard at Line No. 1. It is apparent from Ext-A-4 that Sri Kamal Das immediately rushed to detect the theft and rushed towards the porter to catch him. Some than were found to be missing. Without going into merits of this aspect suffice it to show that both the courts have not examined this issue. The respondent has, thus, been denied a reasonable opportunity to defend himself. In view of the totality of the circumstances and the documentary evidence filed on record, it is appropriate that an opportunity was to be given to the appellant to defend himself. 11. The learned counsel for the respondent has very strenuously urged that the entire departmental proceedings are vitiated on account of the fact that legal requirements, as contemplated, have not been complied with. It has been submitted that the charge-sheet (Ext. 11. The learned counsel for the respondent has very strenuously urged that the entire departmental proceedings are vitiated on account of the fact that legal requirements, as contemplated, have not been complied with. It has been submitted that the charge-sheet (Ext. A-2) is in a printed form and only sets out that it is proposed to hold an enquiry against the respondent under Rule 44 of the Railway Protection Force Rules, 1959. It further enjoins that the allegations on which the enquiry is proposed to be held are set out in the enclosed statement of allegations and the charges framed on the basis of the said allegations are specified in the enclosed statement of charges. This charge-sheet also requires the respondent to submit a written statement of his defence and to state whether he desires to be heard in person and also to furnish the name and addresses of the witnesses, if any, to whom he wishes to call and lastly, to furnish a list of documents, if any, which he wishes to produce in support of his defence. Para 3 of this charge-sheet further recites that for the 'preparation of the defence the respondent may inspect and take extracts from any official records, but he should furnish a list of such record. It is also revealing that in case the authorities find that such records are not relevant for the purpose or it is against the public interest to allow him access to such records he will not be permitted to inspect or take extracts from such records. The learned counsel for the respondent alter assailing this charge-sheet, has sought the indulgence of the Court to the statement of charge (Ext. A-2). This statement of charge is reproduced below : "For gross neglect of duty in that while on duty at MGS-Coachin Yard beat No. 20 from 00/00 to 08/00 hrs. on 28-2-1971, you failed to prevent or detect theft of one bale C. P. Goods U/M-"MTC 0080/19 HWD" from Parcel Van No. NR 6318 ex.-MGS to 72 Dn. while stabled on Line No. 1 Coaching Yard in beat No. 19 adjacent to your beat, which occurred at about 20/00 has. on 28-2-1971 during your duty period. on 28-2-1971, you failed to prevent or detect theft of one bale C. P. Goods U/M-"MTC 0080/19 HWD" from Parcel Van No. NR 6318 ex.-MGS to 72 Dn. while stabled on Line No. 1 Coaching Yard in beat No. 19 adjacent to your beat, which occurred at about 20/00 has. on 28-2-1971 during your duty period. In your statement, you also admitted that you noticed one porter getting up on bogie No. 10465 having one than Raj Khadi Cloth, but even on notice, you failed to apprehend the so-called porter". 12. It is significant to mention here that the charge-sheet dated 25-4-1971 nowhere discloses the documents which are to be used against the respondent nor the list of the witnesses which are sought to be produced to substantiate the charge. This charge-sheet was received by the respondent on 11-5-1971.- 13. Prior to the submission of the charge-sheet, an enquiry was conducted and the letter is in respect of the theft of one bale C. P. Goods from Wagon No. NR 6318 standing on line No. 1 at Coaching Yard MGS. An enquiry was held and four witnesses in support of the allegations, as contained in the charge-sheet, were examined. The Inquiry Officer found the charges to have been proved (Ext. A-5). After the enquiry show-cause notice within the postulates of Rule 44 (1) (2) was issued. This is Ext. A-6. The Asstt. Security Officer, Eastern Railway, Danapur vide order dated 30-3-1972 held that "he does not find any reason to mark any charge or modification in my provisional discussion. In view of what I have discussed above, I do not find any reason to mark any change or modification in my provisional decision formed at the time of issue of show-cause notice. I upheld my tentative decession and order removal of the delinquent RK-3710 Kamal Das from service on and from 12-4-1972." 14. An appeal against this order was preferred but that too failed. The learned counsel for the appellant has, thus submitted that the entire departmental proceedings which are vitiated by error of law, in-as-much as the charge-sheet did not contain the list of the witnesses to be produced against the respondent nor the documents which are sought to be relied upon by the appellants. I find merit in this submission. The learned counsel for the appellant has, thus submitted that the entire departmental proceedings which are vitiated by error of law, in-as-much as the charge-sheet did not contain the list of the witnesses to be produced against the respondent nor the documents which are sought to be relied upon by the appellants. I find merit in this submission. It was incumbent on the appellant to have disclosed in the charge-sheet, the information about the evidence to be proved against the delinquent official and such non-disciplinary amounts to denial to him of the reasonable opportunity to defend himself effectively within Article 311 (2). This was blatantly not done in the instant case. The learned counsel for the respondent has further submitted that the charges contained in the charge-sheet must be specified and precise and are conveyed to the delinquent official in the clearest possible term i.e., the act of misconduct levelled against him. The statement of allegations or the charges itself should give an idea of the evidence against him. It is distinctly clear that the charge-sheet did not mention specifically the evidence to be produced against the respondent and he was, thus, denied a reasonable opportunity for defence as envisaged by Article 311 (2) of the Constitution. Reliance has been placed by the learned counsel for the respondent in the case of State of U. P. v. Basisth Narain Singh and another (1973 L. I. C. 717) in which it has been held that: "The charge is an accusation based on certain allegations and sub-para (1) of para 490 requires that the substance of accusation must be reduced to the form of a charge. So, the charge framed must contain the substance of accusation and it must be as precise as possible. In other words, the allegations on the basis of which the accusation is being made must be brought home to the charged officer so that he must know what he has to meet in his defence. He must not be left to guessing. This rule is obviously to be read alongwith the mandatory provisions of Article 311 (2) of the Constitution which require that a reasonable opportunity must be given to the charged officer. He must not be left to guessing. This rule is obviously to be read alongwith the mandatory provisions of Article 311 (2) of the Constitution which require that a reasonable opportunity must be given to the charged officer. The reasonable opportunity as contemplated under Article 311 (2) of the Constitution envisages the opportunity to deny the guilt and establish the innocence which the charged officer can do only if he is informed of the accusation made against him. If a charge is vague, the officer against whom such a charge is levelled would neither be able to submit a proper defence nor would be in a position to make effective cross-examination of the witnesses. The material particulars of the specific act of misconduct must therefore, be given either in the charge or in the statement of allegations appended thereto. The allegations on which the charges are based may either be integral part of the charge or the charge-sheet may refer to the statement of allegations to be found in a separate document appended thereto. The charges must, however, be specific and precise and should convey to the delinquent official in the clearest possible term the act of the misconduct levelled against him. This can be done either by giving the material particulars of the specific act of misconduct in the charge itself or in the statement of allegations appended thereto." 15. In the case of State of U.P. v. Basisth Narain Singh and another (supra) catena of decisions were relied upon. "In this case of Shiv Kant Upadhyaya v. Union of India, AIR 1963 Pat 38 , it was held that the evidence oral, or documentary which forms the basis of the decision must be made available to the petitioner and if that is not done it would be contrary to natural justice. In that case it was observed that there was nothing to show that the report of the Enquiry Committee is based upon evidence, documentary or oral which was not available to the petitioner. This ruling does not apply to the facts and circumstances of the instant ease. In that case it was observed that there was nothing to show that the report of the Enquiry Committee is based upon evidence, documentary or oral which was not available to the petitioner. This ruling does not apply to the facts and circumstances of the instant ease. In the case of State of Madhya Pradesh v. Chintaman, AIR 1961 SC 1623 , the Supreme Court laid down that the departmental enquiries should observe rules of natural justice and that if they are fairly and properly conducted the decision reached by the Enquiry Officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in courts of law. The Supreme Court in the case of - AIR 1958 SC 300 laid down that reasonable opportunity envisaged by the provisions of Article 311 (2) of the Constitution includes an opportunity to deny his guilt and establish his innocence which the delinquent can only do if he is told what the charges levelled against him are and the allegations on which such charges are based. It is thus well-settled that in order to afford the delinquent a reasonable opportunity for defence as envisaged by the provisions of Article 311 (2) of the Constitution, he should be informed of the charges levelled against him as well as of the allegations on which such charges are based. These charges should be precise arid not vague and the material allegations on which such charges are based may either be mentioned in the charge-sheet or in a separate document appended to charge-sheet with sufficient clarify so that he should be able to put a proper and effective defence. He must be informed of the facts and circumstances which should be sought to be established against him in support of the charge. It is, however, not necessary that the oral and documentary evidence should be enumerated separately from the statement of the allegations. In fact the statement of the allegations or the charges itself may give an idea of the evidence which is against him." 16. In support of the case, the learned counsel for the respondent has further placed reliance in the case of K. C. Tandon v. Union of India ( AIR 1974 SC 1589 ). It was held that the charge-sheet is vague. In support of the case, the learned counsel for the respondent has further placed reliance in the case of K. C. Tandon v. Union of India ( AIR 1974 SC 1589 ). It was held that the charge-sheet is vague. Further reliance has been placed in the case of K. N. Dikshita v. Union of India (AIR 1987 SC 2118). In this case, the order of dismissal was struck down. The petitioner was denied the opportunity of the copies of the statement of the witnesses to be produced against him. Ext. A-1 memorandum only specifies that the respondent can take extracts from the record and that too where the authorities so decided to allow. In the case of Sri K. N. Dikshita v. Union of India (supra), the border of dismissal was found to be violative of Article 311 (2) of the Constitution of India for a simple reason that the statement of the copies of the witnesses were not supplied. There is not a wish per in the instant case that the copies of the statement of the witnesses were ever supplied to the respondent what to say about the names of the witnesses. The departmental enquiry was, thus, sham one and the decision seems to have been perempted. As the departmental enquiry is violative of the principle of Article 311 (2) of the Constitution of India, the termination order is patently illegal, void and inoperative. The appeal has no merit and deserves to fail. 17. In the result, the appeal fails and is hereby dismissed with costs throughout. The appellants shall treat the respondent to be in continuous service with all benefits which may have accrued to him including promotional benefits and if he has retired pensionary benefits. The entire amount of salary and other dues payable to the respondent shall be paid within two months from today.