Ganesh Chandra Das v. Union of India — 1995 DIGILAW 174 (CAL)

JUDGMENT The judgment of the Court was as follows :–– In this writ application, the petitioner have challenged the entire departmental proceeding including the order of the appellate authority and the show-cause notice issued by the Director General, Railway Protection Force dated 1st March, 1934 by which the said authority intended to review the order passed by the appellate authority and to enhance the punishment already awarded on him under rule 60 of the Railway Protection Force Rules. Sri J. S. Chhatre, Security Officer, Eastern Railway, Asansol, issued the said charge-sheet against the petitioner for gross neglect of duty and misconduct. The text of the said charge-sheet issued against the petitioner are as follows :–– "Shri G. C. Das, IPF/Asansol Dh. Post while holding the charge of Dh. Post Asansol miserably failed to control the crimes securing within his post during the month of January 1978. In both the 2 cases of V. T and 2 cases of pilferage of which one was a special report case––he failed to take proper action either for recovering the property or for arresting the criminals as also in fixing up staff responsibility. In those cases, he remained completely mum and did not rice to the occasion as an Inspector-in-charge and did not of a post should leave. In another incident of 30.1.78 in connection with theft of motor tyres, he remained practically silent and did not take any effective action. Besides, some more information of serious nature also came to the notice which goes to prove his incapability in running a post. All these clearly indicate that either he was out to suppress facts going on in his post or allowing the crimes to be committed with some ulterior motive." 2. On the basis of the said charge-sheet an enquiry was held by Sri S. S. Upadhayay, Assistant Security Officer, who was appointed as an Enquiring Officer. From the report of the Enquiring officer it is found that in order to prove the charges against the petitioner Sri J. S. Chhatre appeared as a prosecution witness and deposed in the said enquiry. The Enquiring Officer who held the enquiry had abruptly closed the enquiry immediately after the prosecution witnesses were examined. From the report of the Enquiring officer it is found that in order to prove the charges against the petitioner Sri J. S. Chhatre appeared as a prosecution witness and deposed in the said enquiry. The Enquiring Officer who held the enquiry had abruptly closed the enquiry immediately after the prosecution witnesses were examined. The Enquiring officer stated in the enquiry report that out of sixty four dates fixed for hearing, the petitioner only appeared on thirteen occasions and the petitioner was very reluctant in his appearance and in order to coerce the petitioner to attend the said enquiry he had to follow this procedure in closing the enquiry and concluded the enquiry ex parte. It is the case of the petitioner that the petitioner attended the enquiry and there was no negligence on the part of the petitioner in attending the enquiry. In paragraph 13 of the writ petition the petitioner have disclosed in detail the dates of the hearing and why the enquiry could not be concluded. It is the case of the petitioner that the petitioner attended the enquiry but the hearing was not held on some plea or other on those particular dates. The petitioner also denied categorically that there was no laches and/or negligence on the part of the petitioner for attending the said enquiry and the course of action that was adopted by the enquiry. Enquiring officer resulted substantial failure of justice inasmuch as the petitioner could not be able to represent his case and could not submit written statement in support of his defence. This factual aspect of the matter has not been denied by the respondents by filing affidavit-in-opposition as nobody appeared on behalf of the respondent. The Enquiring officer found the petitioner guilty of the charges levelled against him and thereafter by an order dated 22nd April, 1983 the disciplinary authority, viz., the Chief Security Officer, Railway Protection Force issued a second show-cause notice against the petitioner. The Enquiring officer found the petitioner guilty of the charges levelled against him and thereafter by an order dated 22nd April, 1983 the disciplinary authority, viz., the Chief Security Officer, Railway Protection Force issued a second show-cause notice against the petitioner. The text of the said second show-cause notice are as follows :–– "Whereas the charges framed under Rule 44(2) of the Railway Protection Force Rules, 1959, against Shri G. C. Das, IPF/C&TE/BWN have been proved as per findings of the inquiry conducted by Sri S. S. Upadhayay, ASO/DHN (now retired as Enquiry Officer, it is proposed to impose on him the penalty of reduction in rank from Inspector to Sub-Inspector for 2 years with cumulative effect as specified in Clause 41(d) of RPF Rules, 1959. However, before final orders are passed in this regard, a copy of the report of the inquiry together with findings is furnished to Shri G. C. Das and he is called upon to submit within period of seven days such representation as he may wish to make against the proposed action. If his representation is not received within the time specified, final orders in the case will be passed." 3. The petitioner submitted reply to the said second show-cause notice and the disciplinary authority on consideration of the said reply to the show-cause notice passed the following order on 10/17th May, 1983 : "I have decided that you are responsible in the above case and have passed the following orders. that you are reverted from the rank of inspector to the rank of Sub-Inspector in scale Rs. 330––560/- for two years with cumulative effect. This order will take effect from 18.5.1983." 4. Against the said order of reversion from the rank of Inspector for two years with cumulative effect, an appeal was preferred by the petitioner before the appellate authority. By the time when the appeal was taken up for hearing, the said Sri J. S. Chhatre became the Chief Security Officer being the Appellate Authority and the said Sri J. S. Chhatre, by an order dated 16th June, 1983, disposed of the said appeal by setting aside the order of reversion and by imposing the penalty of withholding the increments for three years with cumulative effect. The said order of the appellate authority was sought to be revised by the Director General, Railway Protection Force by an order dated 1st April, 1984 and the said authority intended to enhance the punishment. 5. Mr. Sircar appearing with Mr. Malay Chakraborty for the writ petitioner submits that the allegations contained in the charge sheet does not amount to any misconduct and in this connection reference was made to the decision of the Supreme Court in the case of (1) Union of India v. J. Ahamed reported in AIR 1979 SC 1022 wherein the Supreme Court had the occasion to lay down the concept of misconduct which could only arise from ill motives. It was stated that the acts of negligence, errors of judgment or innocent mistake do not constitute misconduct. The allegations made against the delinquent in that case were almost similar to the present case. In that case there was allegation against the petitioner for failure to tackle the situation and it was alleged that the delinquent showed complete lack of leadership when the disturbance broke out and that it also reveals complete inaptitude, lack of foresight, lack of firmness and capacity to take firm decision. In this connection it was observed by the Supreme Court that there may be negligence in performance of duty and a lapse of performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but that would not constitute misconduct unless resultant damages would be so heavy that the degree of culpability would be very high. The Supreme Court observes that these factors should be taken into consideration while considering the case of promotion and may perhaps be a good ground for withholding promotion. 6. According to Me. Sircar firstly, the allegations on the face of it even assuming the same was correct and admitted does not disclose any misconduct which entails punishment. Secondly, it was submitted by Mr. Sircar that the Enquiring officer had conducted the enquiry proceeding in a most prejudicial manner. The Enquiring officer has denied the petitioner reasonable opportunity of being heard in representing and/or defending his case and that the petitioner was deprived of submitting written statement in support of his defence and the Enquiring officer has no business to treat the reply to the charge-sheet which could only be submitted after the witnesses were examined. The Enquiring officer has denied the petitioner reasonable opportunity of being heard in representing and/or defending his case and that the petitioner was deprived of submitting written statement in support of his defence and the Enquiring officer has no business to treat the reply to the charge-sheet which could only be submitted after the witnesses were examined. The above course of action had resulted substantial failure of justice for which it is submitted that the report of the Enquiring officer cannot be allowed to stand in the interest of justice, equity and fairplay. Apart from fact, the enquiry proceeding was conducted in a manner which was in violation of the principles of natural justice. Thirdly, it was submitted by Mr. Sircar that the charge-sheet was issued by Mr. J. S. Chhatre was the prosecution witness no. 1 in the enquiry proceeding and had deposited in the said enquiry proceeding. Thus it is clear that when the prosecutor became the witness and ultimate the said witness became the appellate authority to dispose of the appeal. Mr. Sircar submitted that it is well-settled principles of law that a witness cannot be allowed to play the role of a Judge or an Appellate Authority, he cannot pass an impartial judgment. It is submitted that on the principle of bias, the appellate authority was disqualified from hearing and dispose of the appeal against the petitioner. Fourthly, it was submitted by Mr. Sircar that there was no occasion on the part of the disciplinary authority to agree with the findings of the Enquiring officer. It is submitted that it is well settled principle that when the disciplinary authority agrees with the finding of the Enquiring Officer, he ought to have record the reasons therefor, and also when he agrees he has to indicate that he had applied his mind and at least his expression should be recorded in the order in token that he has agreed with the finding of the Enquiring officer. Neither in the show-cause notice, nor in the final order there was any indication that the authority concerned had agreed with the charges or the findings made by the Enquiring Officer. It is submitted by Mr. Neither in the show-cause notice, nor in the final order there was any indication that the authority concerned had agreed with the charges or the findings made by the Enquiring Officer. It is submitted by Mr. Sircar that the disciplinary authority failed to deal with the contention of the petitioner and that the Enquiring officer has violated the principles of natural justice and it is also submitted that from the final order passed by the disciplinary authority it will be clearly established that the authority concerned had not applied his mind to the facts and circumstances of this case but mechanically acted on the basis of prejudice already there against the petitioner. The disciplinary authority has no occasion to record the findings and not dealt with any of the submissions and/or contentions raised by the petitioner before the Appellate Authority. The Appellate Authority simply record in the order that the petitioner as responsible. The order passed by the disciplinary authority clearly indicate total non application of mind and the authorities concerned exhibited their bias in the matter, lastly, it was submitted by Mr. Sircar that in the facts and circumstances of this case there was no question of invoking the jurisdiction of rule 60 of the Railway Protection Force Rules because of the infirmities that was there in the departmental proceeding and the order passed by the Appellate Authority. 7. During the pendency of the writ application an interim order was passed by this Court by which the revisional authority was restrained from passing any order. During the pendency of the writ application, the writ petitioner has retired from the service on 31st December, 1994 and accordingly the proceeding that was started against the petitioner under rule 60 of the Railway Protection Force Rules, have become infructuous. Mr. Sircar, appearing on behalf of the petitioner submits that even after retirement, the petitioner can proceed with the matter and the petitioner is entitled to claim relief. In this connection Mr. Mr. Sircar, appearing on behalf of the petitioner submits that even after retirement, the petitioner can proceed with the matter and the petitioner is entitled to claim relief. In this connection Mr. Sircar relies upon a decision of the Supreme Court as reported in (2) AIR 1974 SC P. 460, S. R. Seshadri v. State of Mysore & Ors., wherein even after retirement, the Supreme Court directed the Suite of Mysore to consider the petitioner's case for promotion and if it was found that he was eligible and given promotion in that event from the date of such promotion till the date or retirement the officer concerned was entitled to get the monitory benefit and accordingly that was done in that case. In view of the decision of the Supreme Court in Union of India v. J. Ahamed, I have no hesitation in holding that the charges that were framed against the petitioner does not amounts to misconduct and that the facts and circumstances of this case do not amounts to misconduct in view of the principles laid down by the Supreme Court in the above case. Secondly, as the facts stated by the petitioner in paragraph 13 of the writ petition has not been controverted by the respondents, I have no hesitation to held that the Enquiring officer had violated the principles of natural justice in holding the enquiry ex parte and closing the enquiry immediately after the prosecution witnesses were examined and treating the reply to the show-cause notice as written statement of defence. The question of submission of written statement of defence would arise only after the witnesses were examined and at the fag end of the enquiry. The Enquiring officer have no jurisdiction to treat the said reply to the charge-sheet as written statement of defence. Under the rules, this is not permissible and that further the course of action that was adopted by the Enquiring officer was arbitrary and has resulted substantial failure of justice and that the petitioner was deprived of his valuable right to submit written submission and contest the matter. The Enquiring officer, in my view, by adopting the procedure has acted arbitrarily and in violation of the principles of natural justice. The Enquiring officer, in my view, by adopting the procedure has acted arbitrarily and in violation of the principles of natural justice. The Enquiring officer had to discharge his function as an neutral officer but from the facts and circumstances of this case it is crystal clear that the Enquiring officer has exhibited his closed mind against the petitioner and that the decision to hold the enquiry ex parte and treat the reply to the charge-sheet as written statement of defence had acted arbitrarily and mala fide. Thirdly, the disciplinary authority who issued the charge-sheet, viz., Sri J. S. Chhatre should not have given the evidence as a prosecution witness No.1 thereby he has acted as a prosecutor and a witness and thereafter, the said prosecutor and the witness became the Appellate Authority and thus by dealing in and disposing of the appeal he has acted illegally in view of the fact that he has taken to be a prejudiced man and on the principles of bias he was disqualified to take up and deal with the appeal in respect of the disciplinary proceeding which was initiated on the basis of a charge-sheet issued by him and in the proceeding he has deposed as a prosecution witness. In this connection reference may be made to the decision of the Supreme Court in (3) Ratan Lal Sharma v. Managing Committee reported in AIR 1993 SC page 2155. In that case one member of the enquiring committee appeared as a witness to prove several charges. Relying on the principles as laid down by the Supreme Court in this case and also on several other cases, I have no hesitation in holding that the said Mr. J. S. Chhatre was disqualified to act as the Appellate Authority and he had acted illegally in dealing with and disposing of the appeal. Since the petitioner is retired from service and there is no scope for reversion in the facts and circumstances of this case, it is not necessary to deal with the proceeding initiated under rule 60 of the Railway Protection Force Rules. The final order that was passed by the disciplinary authority shows complete non-application of mind. The disciplinary has held the petitioner responsible and there was no charge and/or allegation by which the petitioner was charged with something for which the petitioner was responsible. The final order that was passed by the disciplinary authority shows complete non-application of mind. The disciplinary has held the petitioner responsible and there was no charge and/or allegation by which the petitioner was charged with something for which the petitioner was responsible. The allegation against the petitioner was that he failed to control the time and failed to take proper steps and that there is no charge by which the petitioner was made responsible for any act of omission or commission. Accordingly the finding of the Enquiring officer and the final order passed by the disciplinary authority on the fact of it indicates total non-application of mind. As pointed out by Mr. Sircar in view of the decision of the Supreme Court in Stale of Mysore v. S. R. Seshadri as reported in AIR 1974 SC p. 460, the petitioner is entitled to claim relief as prayed for in the instant case in view of the fact that from the date of passing the order of punishment till the date of retirement, the petitioner had not received any increment and accordingly the proceedings against the petitioner are quashed including the charge-sheet, the finding of the Enquiring officer and the order of the Appellate Authority. As the charge-sheet and the order of punishment fall through there is no scope of invoking rule 60 of the Railway Protection Force Rules. Accordingly, this writ application succeeds. 8. The respondents are now directed to pay to the petitioner the increments which the petitioner is entitled to, as if no order of punishment had been imposed upon the petitioner, within a period of two months from the date of communication of this order. 9. The respondents are further directed to forthwith release all the other retirement benefits in favour of the petitioner, which is he entitled to in accordance with the rules and on the footing that no disciplinary proceeding is pending against the petitioner. In the result, the rule is made absolute. Interim orders, if there be any, are vacated. There will be no order as to costs.