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2000 DIGILAW 65 (CAL)

Bhowchand Singh v. Union of India

2000-02-04

SAMARESH BANERJEA

body2000
JUDGMENT Today, this matter is fixed 'for judgment' and when this Court is about to deliver the judgment Kazi Mohammed Ali, learned Counsel appearing for the respondents wanted to produce the records. It may be recorded that when this matter was taken up for hearing on 22.11.99 first, none appeared for the respondents nor any prayer for adjournment was made for which it was recorded that if the learned Counsel for the respondents did not appear on the next adjourned date, the Court might proceed in his absence. 2. Thereafter, on 17.1.2000 when this matter was taken up again, learned Advocate for the petitioner submitted his written notes of arguments. On that date, learned Counsel for the respondents did not appear nor he produced any records nor did he file any written notes of arguments despite directions dated 22.11.99. Accordingly, the hearing was concluded and the matter was placed for judgment. Under such circumstances, the Court did not permit the learned Advocate for the respondents to produce the records at this stage after conclusion of the hearing. 3. In the instant writ application, the petitioner who was the Rakshak under the Railway Protection Force, has challenged the entire disciplinary proceedings initiated against him including the second show-cause notice proposing to remove the petitioner from service. 4. In may 1990, the disciplinary proceeding was initiated against the petitioner' serving him with the charge-sheet dated 12th/19th May, 1990 on the following ground :- "For gross negligence of duty in that while on guarding the train passing duty at Andal West Home Signal from 00/00 hrs. to 08/00 hrs. of 31.12.78, he failed to prevent or detect theft of wheat from Wgn. No. CR/3438 attached to train No. EC/413/433 at Andal Home Signal committed at about 00/04 hrs. On 31.12.78, on search the one side broken seal card of the Wagon and one bag containing about 50 Kg. wheat was recovered within his beat and duty hrs. On checking of the Wgn. on 3.1.79, 9 entire bags and partial shortages of 1875 Kgs. wheat were found short at Andal Goods Shed." 5. On 31.12.78, on search the one side broken seal card of the Wagon and one bag containing about 50 Kg. wheat was recovered within his beat and duty hrs. On checking of the Wgn. on 3.1.79, 9 entire bags and partial shortages of 1875 Kgs. wheat were found short at Andal Goods Shed." 5. It is not disputed that the aforesaid charge was initiated against the petitioner on the basis of a preliminary report dated 1st March, 1979 wherein it was stated by the Officer submitting the preliminary report that RK/Sona Lall Thakur and RK/l303 B. Singh were responsible for their failure to prevent or detect theft. The aforesaid charge was issued by the Assistant Security Officer, Andal Railway Protection Force. 6. Admittedly, along with such charge-sheet no list of witness and documents to be relied upon by the disciplinary authority at the enquiry was annexed. One of the contentions of the writ petitioner is that the said enquiry• was conducted in violation of the principles of natural Justice. Inasmuch as that although the petitioner was asked for certain documents for the purpose of preparation of his defence, such documents were refused by the said Assistant Security Officer on the ground that the same are irrelevant. 7. The petitioner by his letter dated 10th June, 1990 asked for a number of documents for his defence to enable him to submit a proper reply to the charge-sheet. Out of such documents• asked for by the petitioner some documents namely statements of RK-Md. N. Khan, RK-872-I.D. Maharaj, RK-1393-B.C. Singh and RK-Nil-Sona Lall Thakur and Statement of Sri K. N. Pandey, Train Guard, S.E. Rly.; were not supplied to the petitioner on the ground that the same are irrelevant. 8. The learned Advocate appearing for the petitioner submitted inter alia that since such documents which were asked for by the petitioner for his defence to enable him to defend himself properly at the enquiry, such documents could not have been refused in the manner as aforesaid merely by saying that the same are irrelevant without stating proper reasons. It has been submitted that it was not stated by the Assistant Security Officer why such documents were not relevant. 9. It has been submitted that it was not stated by the Assistant Security Officer why such documents were not relevant. 9. Reliance has been placed in this connection in an unreported judgment of the Division Bench of this Hon'ble Court in F. M.A.T. No. 2745/93, I am accepting the contention of the learned Advocate appearing for the petitioner that refusal of the Assistant Security Officer to supply such documents to the petitioner which were asked for as his defence documents merely stating that the same are not relevant can hardly be said to be a reasoned order. Such witnesses made statements at the preliminary enquiry and therefore, it was certainly open to the petitioner to ask for copy of such statement to enable him to defend properly at the enquiry confronting the witnesses to be examined at the enquiry with such statement made before the preliminary enquiry. It is not understood how such documents could have been held to be irrelevant. Even though the respondents might not be relying on such statements of the said witnesses at the enquiry, it is open to a delinquent to ask for documents other than the documents relied upon by the disciplinary authority to enable himself to defend at the enquiry properly provided of course; the same are relevant. 10. The Assistant Security Officer, therefore, could not have refused to supply such documents without clearly indicating why such documents cannot be said to be relevant for the defence of the petitioner. The only contention of the learned Advocate appearing for the respondents, in this connection is that such documents were refused as these were found irrelevant. The discretion if any, of the disciplinary authority to refuse such documents in terms of Rule 44(3) of the Railway Protection Force, however, is not unfettered one and cannot be exercised arbitrarily. 11. Under such circumstances; the Assistant Security Officer was duty bound to record reasons why such documents were found to be irrelevant by him for 'which it was thought that copies of such documents need not be supplied. In my view refusal of such documents in the manner as aforesaid, vitiates the entire disciplinary proceeding. 12. The Enquiring Officer in his reports found that the charge against the petitioner about his failure to prevent theft had not been proved, but the charge he failed to detect theft has been proved. 13. In my view refusal of such documents in the manner as aforesaid, vitiates the entire disciplinary proceeding. 12. The Enquiring Officer in his reports found that the charge against the petitioner about his failure to prevent theft had not been proved, but the charge he failed to detect theft has been proved. 13. The aforesaid finding of the Enquiring Officer has also been assailed by the learned Advocate appearing for the petitioner on the ground that finding of the Enquiring Officer to the effect that the petitioner failed to detect the theft has been proved is perverse, inasmuch as in coming to such finding he considered the memorandum submitted by the Guard of the Train Sri K.N. Pandey (Exhibit-20) although he was never produced at the enquiry as witness and therefore the petitioner had no opportunity to challenge to cross-examine the said witness. 14. It has been further submitted that in any view of the matter such memorandum of the Train Guard could not have been relied upon by the Enquiring Officer inasmuch as it is also one of the documents which was' asked for by the petitioner as a defence documents and the same was refused to be irrelevant. 15. There is substance in such submission of the learned Advocate appearing for the petitioner that the Enquiring Officer while coming to its finding could not have relied upon such a memorandum submitted by the Train Guard as the said Train Guard was never produced at the enquiry by the disciplinary enquiry either for proving the aforesaid memorandum or even for the purpose of giving opportunity to the petitioner for cross-examining. It appears to this Court that Sri Pandey although the author of the said memorandum was never produced at the enquiry to prove the same and yet the Enquiring Officer relied upon the same. 16. In any view of the matter since such memorandum was relied upon by the Enquiring Officer coming to such finding he considered the memorandum submitted by the Guard or the Train Sri K. N. Pandey (Exhibit-20) although he was never produced at the enquiry as witness and therefore the petitioner had no opportunity to challenge to cross-examine the said witness. : 17. : 17. It has been further submitted that in any view of the matter such memorandum of the Train Guard could not have been relied upon by the Enquiring Officer inasmuch as it is- also one of the documents which was asked for by the petitioner as a defence documents and the same was refused to be irrelevant. 18. There is substance in such submission of the learned Advocate appearing for the petitioner that the Enquiring Officer while coming to its finding could not have relied upon such a memorandum submitted by the Train Guard as the said Train Guard was never produced at the enquiry by the disciplinary enquiry either for proving the aforesaid memorandum or even for the purpose of giving opportunity to the petitioner for cross-examining. It appears to this Court that Sri Pandey although the author of the said memorandum was never produced at the enquiry to prove the same and yet the Enquiring Officer relied upon the same. 19. In any view of the matter since such memorandum was relied upon by the Enquiring Officer really the important witness to the enquiry were not examined by the disciplinary authority, the same has been held to be in violation of the principles of natural Justice. 20. The second show-cause notice has also been assailed on more than one grounds. It has been contended that it will appear from the second show-cause notice itself that the finding which has been arrived at by the disciplinary authority is not a tentative but final order and therefore the same vitiates the said notice. Reliance has been placed in this connection on the judgment of this Court in the case of (1) Nipendranath v. U.O.I. reported in 1981 (1) SLR page 533. 21. It is, however, not necessary for this Court to go into such question raised by Mr. Chakraborti inasmuch as, it appears even the second show-cause notice has been issued without proper application of mind and without even caring to record the reason of difference with the finding Of the Enquiring Officer. 22. As, pointed out hereinbefore, the Enquiring Officer held that the charge against the petitioner that he failed to detect the theft was not proved. It appears in second show-cause notice the Assistant Security Officer stated that he disagrees with the finding of the Enquiring Officer to that effect. 22. As, pointed out hereinbefore, the Enquiring Officer held that the charge against the petitioner that he failed to detect the theft was not proved. It appears in second show-cause notice the Assistant Security Officer stated that he disagrees with the finding of the Enquiring Officer to that effect. Since he disagreed with such finding, it was incumbent upon him to record the reason therefore. Unfortunately; however, no reason has been recorded by him for such difference. In this connection, reference may be made to the decision of the Supreme Court in the case of (2) Yognath Bagde v. State of Maharashtra reported in 1999 (7) SCC 79. On that ground alone also the said second show cause notice stands vitiated. 23. Lastly, it appears to this Court that the said second show-cause notice has been issued by the Assistant Security Officer proposing punishment of removal. 24. Under the relevant Rules, the Assistant Security Officer has no power to pass such order of removal. In such view of the matter, he also could not have considered the report of the Enquiring Officer and thereafter issued such notice proposing such punishment. The second show-cause notice, therefore; is wholly without jurisdiction and is liable to be quashed. 25. It is• also necessary to record that the learned Counsel appearing for the respondents has submitted that since the petitioner has come at the second show-cause notice stage and no final order has been passed, this Court should not interfere and the matter should go back to the disciplinary authority for consideration and thereafter he will have a remedy to prefer appeal provided for under the Rules. 26. Althaugh the Court normally may not interfere at the second show-cause notice stage, in my view, there is no absolute bar far the Court to do so and in a fit and proper case the Court can interfere even at that stage to prevent suffering of further agony by the petitioner. If the Court finds that by ......... is violation of natural Justice or certain orders have been passed which are without jurisdiction, the Court may certainly interfere even at such stage. If the Court finds that by ......... is violation of natural Justice or certain orders have been passed which are without jurisdiction, the Court may certainly interfere even at such stage. In the instant case, as this Court found that the entire proceeding was being continued in vialatian of the principles of natural Justice right from the beginning and the second show-cause notice is wholly without jurisdiction, I do not find any reason why the petitioner should be asked to' submit to' such an order giving a reply to the same, specially when, violation of natural Justice vitiates the entire enquiry. In this connection, reference may be made to the decision of the Supreme Court in the case of (3) Whirlpool Corporation v. Registrar of Trade Marks, Bombay reported in 1998 (8)SCC 1 . 27. It appears to this Court that when the present writ application was moved the interim order was granted to the effect that the proceeding will continue and final order may be passed but no effect to' the same shall be given. It is submitted by Mr. Kazi Mohammed Ali, learned Advocate far the respondents that such final order of removal has been passed. But since the Court has already found that the entire proceeding is vitiated and because of the aforesaid interim order no effect should be given to the final order, the same cannot be given effect to. Far the self-same reason, however, the final order which has been passed also stands quashed. 28. Far the reasons aforesaid, this writ petition succeeds and the Rule is made absolute. The entire disciplinary proceeding including the charge-sheet, the report of the Enquiring Officer and the second show-cause notice as well as the final order are hereby quashed. Let a writ in the nature of Certiorari be issued accordingly. 29. It has been brought to the notice of the Court that the petitioner has 'been served with a superannuation notice and he will retire with effect from 31-7-.2000. It is submitted by Mr. Chakraborti, learned Advocate far the petitioner that although he has been continuing in his service because of the interim order granted in the writ proceedings and he has not been put under suspension, he was not given the incremental benefits which were due to' him. It is submitted by Mr. Chakraborti, learned Advocate far the petitioner that although he has been continuing in his service because of the interim order granted in the writ proceedings and he has not been put under suspension, he was not given the incremental benefits which were due to' him. Now that the entire proceedings have been quashed by this Court, the petitioner writ be entitled to all such benefits and the same shall be paid to the petitioner within three months from the date of communication of this order. Let a writ in the nature of Mandamus be issued accordingly. 30. There will be no order as to costs. 31. Learned Advocate for the respondents prays for stay of operation of this order. The prayer is considered and rejected. Certified Xerox copy of this order, if applied for, be granted as expeditiously as possible.