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2001 DIGILAW 101 (CAL)

Balaram Ghosh v. General Manager, Eastern Railway

2001-02-23

ASHIM KUMAR BANERJEE, SAMARESH BANERJEA

body2001
Judgment Banerjee, J.: 1. Appellant was a constable in the Railway Protection Force, working at Howrah. He was implicated in a Criminal case for alleged offence under Section 3A of the Railway Properties Unlawful Possession Act, 1956 on the basis of complaint case filed on September 25, 1988. He was, simultaneously, suspended from the service and was charge-sheeted on March 29, 1989. It appears that the Enquiry Officer held a domestic enquiry wherein 14 witnesses were examined on behalf of the prosecution and, ultimately, the Enquiry Officer found the appellant guilty of such offence and the report was forwarded to the disciplinary authority for punishment. The disciplinary authority by an order dated January 11, 1992 removed the appellant from service with immediate effect. Being aggrieved by the order of the disciplinary authority, the appellant preferred an appeal before the Appellate Authority on February 7, 1992. During the pendency of the said appeal, the appellant was acquitted by the learned Magistrate, 6th Court, Howrah by the order dated October 6, 1993. After the said order of the learned, Magistrate, applied to the authority for revocation of the order of dismissal. Complaining about the inaction on the part of the authority concerned in considering his representation for permission to join in service, appellant filed a writ petition before this Court being C. O. No. 233 (W) of 1994, inter alia, claiming that he is entitled to join in service not only by virtue of his acquittal but also on the ground that the entire enquiry proceedings and disciplinary proceedings have been vitiated by the principles of natural Justice. The principal grounds of which the said writ petition were based upon were inter alia, as follows :- (i) Since on the self-same facts the Criminal proceeding was pending, proceeding with the domestic enquiry simultaneously is an element of bias and in other words Justice have not seemed to have been done to him; (ii) While imposing major punishment of removal, it was incumbent upon the authority concerned to issue a second show-cause notice, having not done so, such proceedings is liable to be set aside; (iii) The Appellate Authority is bound to complete the hearing of the appeal within the stipulated time as per Rule 220 of the Railway Protection Forces Rules, 1987 and since the appeal had not been disposed of within such time, it should be deemed to have been decided in favour of the appellant; (iv) Since the appellant has been acquitted by the Criminal Court he is entitled to join in service and the enquiry proceedings and disciplinary proceedings are liable to be quashed on the said ground. 2. In the Affidavit-in-Opposition filed by the respondent, it was asserted that the appeal had already been disposed of. 3. The said writ petition was heard by P.K. Samanta, J., and was disposed of by an order dated December 21,1995. 4. It appears from the said judgment that although the appellant could not succeed in any of the aforesaid points His Lordship was pleased to quash the order of the Appellate Authority holding that the same has been decided in the absence of the appellant and directed the Appellate Authority to hear the appeal afresh by giving reasonable opportunity to the appellant of hearing. 5. In terms of the order of His Lordship dated December 21, 1995, the appeal was heard afresh and was dismissed by the Appellate Authority upon hearing the parties by an order dated March 21, 1996. The Appellate Authority has, inter alia, held that during enquiry the delinquent was given every opportunity to defend himself and there was no violation of principles of natural Justice. It was recorded that the delinquent did not produce in evidence any witness during domestic enquiry. 6. Being aggrieved by the said decision of the Appellate Authority, the appellant moved a further writ petition being C.O. No. 140(W) of 1996. It was recorded that the delinquent did not produce in evidence any witness during domestic enquiry. 6. Being aggrieved by the said decision of the Appellate Authority, the appellant moved a further writ petition being C.O. No. 140(W) of 1996. The said writ petition was heard by P. K. Samanta, J., and was dismissed by a judgment and order dated August 20, 1998. 7. His Lordship in the said judgment has been pleased to hold inter alia, as follows :- (i) Appellant was given a copy of the enquiry report. Hence, there had been no violation of natural Justice on that score ; (ii) Question of giving any second show-cause notice or nonsupply of the enquiry report had been decided by His Lordship by the earlier order which was not appealed. Hence, the appellant was not entitled to raise the said issue again; (iii) In the earlier writ petition appellant never raised plea that the punishment was based upon the enquiry report which was not given to him earlier. In any event, the appellant got opportunity to make effective representation against the said report at this stage of the appeal ; (iv) No case was made out before the Appellate Authority that the report of the Enquiry Officer was based on perverse finding and as such, question of violation of principles of natural Justice at this stage could not arise. 8. Before examining the judgment of the Court below, let us first discuss the view of the Apex Court in similar facts and circumstances. The various decisions of the Apex Court are discussed serially hereinafter :- (1) AIR 1986 Supreme Court page 995, Sawai Singh v. State of Rajasthan. The Supreme Court in this case held that the departmental enquiry entailing consequences like loss of job which nowadays means loss of livelihood, there must be fair play in action: in respect of an order involving adverse or penal consequences against an employee, there must be investigation to the charges consistent with the requirement of the situation in accordance with the principles of natural Justice in so far as these are applicable in a particular situation; (2) AIR 1991 Supreme Court page 471, Union of India v. Md. Ramzan Khan. In this case, the Supreme Court was of the view that delinquent is entitled to a copy of the enquiry report. Ramzan Khan. In this case, the Supreme Court was of the view that delinquent is entitled to a copy of the enquiry report. According to Supreme Court, there is no change in the 42nd amendment altering such provision. The Supreme Court categorically held that in case delinquent desires, he should be supplied a copy of the enquiry report arid non-furnishing of the report would amount to violation of the rules or the natural Justice and make the final order liable to challenge; (3) AIR 1991 Supreme Court page 1310, Babulal v. State of Haryana. In this case, the appellant was an ad hoc employee whose service was suspended as he was implicated in a Criminal case wherefrom he was subsequently acquitted. The Supreme Court was of the view that since the suspension was related to the Criminal proceedings acquittal from the said proceedings would entitle the appellant for regularisation of his service; (4) AIR 1994 Supreme Court page 1074, Managing Director, E.C.I.L. v. B. Karunakar. In this case, the five Judges bench held that the delinquent employee has a right to receive a copy of the enquiry report before the disciplinary authority arrives at conclusion, denial of the Enquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural Justice. The Supreme Court went to the extent that even if the rules is silent on the same a copy of the enquiry report has to be given before the final decision of the disciplinary authority. The Supreme Court also held that such report has to be given irrespective of whether the delinquent asked for the same or not. 9. Let us now analyse the order impugned in the light of the observations made by the Apex Court as discussed hereinbefore. 10. The first ground on which the writ petition was dismissed was that although the enquiry report was given at a belated stage the appellant got opportunity to challenge the said report even at the appellate stage. As such, there has been no violation of natural Justice. With due respect to the learned Judge, we fed that such finding is totally erroneous in view of what has been held by the Apex Court. As such, there has been no violation of natural Justice. With due respect to the learned Judge, we fed that such finding is totally erroneous in view of what has been held by the Apex Court. According to Apex Court, specially, in the case of E.C.I.L., five Judges bench categorically held that it is a duty of the authority to apply the enquiry report before any action is taken by the disciplinary authority irrespective of the fact whether it has been asked for or not and the it respective of the fact whether the same has been provided in the service rules or not. The Apex Court in Sawai Singh's case was of the view that since disciplinary proceedings involved loss of means of livelihood of a person the authority must be too cautious that there is no violation of the principles of natural Justice. We are of the view that violation of natural Justice vitiates the entire proceeding. The findings of the learned Judge that supply of the enquiry report at a belated stage has not vitiated the proceedings is thus, erroneous. 11. The second ground on which the learned Judge had dismissed the petition was that the question of serving a second show cause notice or non-supply of the enquiry report was all issue before His Lordship in the earlier writ petition and had been decided against the appellants since the appellant did not prefer any appeal from the said order, the appellant was not entitled to raise such question afresh. The first writ petition was disposed of by His Lordship by an order dated 21.12.1995. In the said order, it is true that the appellant ...... on all grounds on which he had attacked the proceedings However, ultimately, learned Judge quashed the order at the Appellate Authority since it was heard in the absence of the appellant and directed the concerned authority to hear the appeal afresh. Since the Appellate Authority was directed to hear him afresh, all questions regarding merits of the appeal were automatically kept open for the appellant to urge before the Appellate Authority. Those observations of His Lordship with regard to the merits of the appeal became lighter at the end of the judgment when the matter was remanded back to the Appellate Authority. Those observations of His Lordship with regard to the merits of the appeal became lighter at the end of the judgment when the matter was remanded back to the Appellate Authority. We presume that those findings of the learned Judge were of prima facie nature otherwise the sending of appeal back to the Appellate Authority was a mere formality in the case, the appellant was not allowed to argue all points taken before the Appellate Authority. Hence, the question that nonsupply of the enquiry report or the second show-cause notice have not been decided. So, the plea that earlier order cannot be an issue in the present writ petition, is erroneous. 12. The third ground that the appellant got opportunity to make effective representation against the enquiry report at the appeal stage is also erroneous in view of the discussion we made earlier. 13. With regard to the fourth ground, we feel that in view of the decisions of the apex Court; as discussed before, it was not necessary to examine whether the challenge to the Enquiry Officer's report was made before the Appellate Authority or not; Such investigation is immaterial as non-supply of the enquiry report before the action was taken, is a violation of principles of natural Justice and it goes to the very root of the proceedings and vitiates the entire proceedings. Hence, on the said ground also we respectfully differ from the finding of the learned Judge. 14. Hence, we hold that the order impugned is erroneous and contrary to the principles laid down by the apex Court as discussed before. 15. We, accordingly, set aside the impugned order dated August 20, 1998. 16. Now, question comes up as to what would be the consequential relief which the appellant is entitled to. The incident for which the appellant was implicated was of 1988. It appears from the enquiry report that 14 witnesses were examined before the Enquiry Officer by the disciplinary authority and 13 documents were tendered as exhibits. No opportunity, was given to the appellant to produce any witness in defence. It was sought to be contended by the respondent that there was no recording to show that the appellant did ask for such opportunity. No opportunity, was given to the appellant to produce any witness in defence. It was sought to be contended by the respondent that there was no recording to show that the appellant did ask for such opportunity. It is very difficult to believe that when 14 witnesses had been produced on behalf of the prosecution to prove the charges, which they could not do so in 4 years before the Criminal Court where the appellant was acquitted for want of evidence as recorded by the learned Magistrate. It is also very hard to believe that the accused who was facing an enquiry which might result in loosing his means of livelihood, would not examine any witness in defence. The enquiry was conducted by the authority themselves. Appellant being a constable and presumably not so much conversant as to rules and procedures and technicalities involved in the said proceedings, it was incumbent upon the authority to appraise him about his rights in defending the proceedings. Hence, we held that the appellant was not given any reasonable opportunity to defend his case even before the Enquiry Officer. The charge against the appellant was serious in nature and it was expected that• the respondent authority would try their level best to prove such charges before the learned Magistrate. It is curious that the respondent authority was vigilant before the Enquiry Officer by producing as many as 14 witnesses in support of the charges and, simultaneously, failed to produce a single one before the learned Magistrate. This smaks of element of bias. We find that at all stages the appellant was denied reasonable opportunity to defend himself. 17. In such circumstances, we quash the entire enquiry proceedings as well as the disciplinary proceedings and direct authority concerned to reinstate the appellant in service along with all back wages. We had no other option but to pass above order since we find that entire proceedings have been vitiated by violation of principles of natural Justice. If we grant liberty to the respondent to initiate a fresh proceedings against the appellant, it would be too unfair asking him to face a fresh enquiry since the appellant has suffered the order of suspension and, subsequently, followed by an order of dismissal for last twelve years. If we grant liberty to the respondent to initiate a fresh proceedings against the appellant, it would be too unfair asking him to face a fresh enquiry since the appellant has suffered the order of suspension and, subsequently, followed by an order of dismissal for last twelve years. It would cause tremendous hardship on him as it would be difficult for him to produce witness and documentary evidence in support of his defence after twelve years of occurrence and, specially, when he had been acquitted by the Criminal Court. The appeal is allowed accordingly. There will be no order as to cost. Xerox certified copy, if applied for, be given to the parties expeditiously. Banerjea, J. : I agree.