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2001 DIGILAW 144 (CAL)

Rup Narayan Rathore v. Union of India

2001-03-14

Amitava Lala

body2001
JUDGMENT Amitava Lala, J. Let Acknowledgment Due Card and the requisition slip issued by the Postal Department as well as a copy of notice showing service upon the respondents filed in court today be kept with the record. 2. The matter is pending since 1994 for the purpose of hearing. Now, it is 2001. It is high time to take up the matter seriously and to proceed with the same on merit without extending any further time. Significantly enough nobody appeared before this court to ask for any adjournment. 3. In this writ petition, the petitioner challenged the impugned order of charge-sheet as well as the order of removal of the petitioner. However, initially there is no intention to take up the matter only on the ground of jurisdiction since the charge-sheet and the order of removal were issued from Bilashpur, Madhya Pradesh, out side the jurisdiction of this Court Charge-sheet. 4. Having heard the learned Counsel for the petitioner, I have come to know that not only the South Eastern Railway has its Head Office within the jurisdiction of this court but the petitioner has preferred an appeal therein in accordance with law but no reply for giving hearing has been given. As a result thereof, all the points, i.e. charge-sheet and the order of removal as also the right of appeal are taken by the petitioner. Therefore, it appears to me, that the case has nexus and connection of the Head Office situates within the jurisdiction. Therefore, in absence of the respondents and their affidavits taking any contrary view, I have no other alternative but to hold that this writ court has jurisdiction to entertain, try and determine the matter. 5. Mr. Majumdar, learned Counsel for the petitioner, cited two judgments in the case of Bimala Kanta Mukherjee vs. State of West Bengal, reported in 1980(2) C.H.N. 35(41) and in the case of Subrata Bhattacheriee vs. Bharat Processing Mechanical Engineering & Ors., reported in 1984(2) C.H.N. 185 , to establish the merit of the matter before this court by saying that charge-sheet cannot be issued with prefixed mind and if it is done then it cannot be construed as charge-sheet. In the instant case, two portions of the charge-sheet are as follows: "Thus by the above acts or omission and commission Sri R.N Rathore, Const. In the instant case, two portions of the charge-sheet are as follows: "Thus by the above acts or omission and commission Sri R.N Rathore, Const. 5474 of RPF Post BMY failed to maintain absolute integrity and devotion to duty and acted in such a manner which is unbecoming of a railway servant and violated Rule No. 3(i), (ii) and (iii) of the Railway Service Conduct Rules, 1966 and rendered himself liable for disciplinary action", and ; "Thus by his above acts he exhibited lack of integrity and devotion to duty and acted in such a manner which is unbecoming of a railway servant and violated Rule No. 3(i), (ii) and (iii) of the Railway Service Conduct Rule, 1966 and rendered him self liable for disciplinary action.:' 6. The learned Counsel for the petitioner has also pointed out about supply of the certain documents or ought to have given for inspection which was not given to the delinquent employee. Therefore, this case is also similar to the judgment in the case of Jug Raj Singh vs. The Delhi Adms. & Ors., reported in 1970 S.L.R.400 and in case of Anandram, Jiandrai, Vaswarii vs. Union of India & Ors., reported in 1983(1) C.L.J.8, wherein it has been held that it is well settled that the Disciplinary Authority or the Enquiry Officer will have to give reasons for withholding the documents asked for by the delinquent in writing not by merely stating that the same is irrelevant otherwise the principle of natural justice will not be fulfilled. 7. The learned Counsel for the petitioner has also cited two unreported judgments of the Division Bench of this Court being C.O. 6694(W)/1991 (T.P. Chowdhury vs. Union of India & Ors.) dated 4-12-1991 as well as C.O. 2600(W)/1992 with C.R.5127(W)/1995 (Vijay Kumar Singh vs. Dr. D.P. Saha & Ors.) dated 10-5-1996 wherein it has been held that the fairness of the enquiry demands that a delinquent officer has a right to be informed that he is entitled to take help of a friend. The right to be defended by a lawyer may be restricted by a statute but a right to be defended by a person of his choice cannot be restricted. Therefore, such type of refusal is also not acceptable by the Court of law. The right to be defended by a lawyer may be restricted by a statute but a right to be defended by a person of his choice cannot be restricted. Therefore, such type of refusal is also not acceptable by the Court of law. The learned Counsel for the petitioner further stated by showing page 85 of the writ petition that the gentleman who for his defence to be examined as witness was flatly refused without following the provisions as per Rule 153.16 of the appropriate Rules. 8. The learned Counsel for the petitioner has also cited a judgment in the case of Gopal Krishna Shaoo vs. Calcutta Port Trust & Ors., reported in 1999(1) S.L.R. 439 (Paragraphs 16 and 17) where it have been held that the preliminary enquiry going ex parte is nothing new but it is quite normal procedure. No cross-examination permitted at the preliminary stage. This enquiry is to be held for the purpose of proceeding whether a show-cause or charge-sheet would at all be issued or not. It is not to be held for the purpose of deciding the guilt. Hence, although the preliminary depositions played an important role, as a matter of law, it had to be kept completely out of consideration by the enquiry officer in so far as the aspect of establishment of the charge against the person concerned. These preliminary depositions are taken without following the dictates of natural justice. Giving these depositions importance and weightage at the stage of enquiry would thus vitiate the enquiry itself. The propose of preliminary depositions were completely lost sight of and those were used not merely for the purpose of deciding whether a show-cause would be issued or not but for the purpose of deciding whether the writ petitioner should be departmentally punished or not. There the violation of natural justice lies. 9. The learned Counsel for the petitioner has further taken a point that the order of removal was made by the higher authority than the appointing authority but I do not find that such submission has a serious role to play in the context. There the violation of natural justice lies. 9. The learned Counsel for the petitioner has further taken a point that the order of removal was made by the higher authority than the appointing authority but I do not find that such submission has a serious role to play in the context. In any event, if such order of removal is passed on a recommendation of the Disciplinary Authority merely after going through the case file of the report that will not serve the purpose until and unless a copy of the same is given to the delinquent• for the purpose of coming to an appropriate conclusion. The same ought to be confidential so far as the delinquent is concerned but when it becomes part and parcel for drawing an adverse inference on such basis, an aggrieved is entitled for copy or inspection of the same. In other words taking action against an employee on confidential document which is the foundation of order exhibits complete misapprehension about the procedure that is required to be followed by the disciplinary authority. In support of this contention the learned Counsel for the petitioner cited a judgment in the case of State Bank of India & Ors. vs. D.C. Aggarwal & Anr., reported in 1993 S.C.C. (L & S) 109. The learned Counsel for the petitioner has also cited another judgment in the case of Union of India & Ors. vs. Sardar Bahadur, reported in 1972 S.L.R.355. In its paragraph 10 I find that the purpose of an examination in the presence of a party against whom an enquiry is made, is sufficiently achieved, when a witness who has given a prior statement is recalled, that statement is put to him, and made known to the opposite party, and the witness is tendered for cross-examination by that party. 10. Hence, the appellate authority completely violated the principle of natural justice by not giving any credence to appeal of the petitioner. 10. Hence, the appellate authority completely violated the principle of natural justice by not giving any credence to appeal of the petitioner. Therefore, taking into totality of the matter, I am of the view that the Appellate Authority will have to be directed and hereby directed to hear out the appeal and pass an appropriate order/ award in the light of the judgment and order passed by this court and upon giving fullest opportunity to the petitioner and by passing a reasoned order thereon within a period of the two months from the date of communication of this order. 11. For the purpose of effective adjudication, a copy of the writ petition along with all annexures can be treated as part of the appeal. If the appeal is accordingly proceeded, the same will not be treated as a time barred due to pendency of the writ petition before this court and the principle of res judicata or equivalent the note will not be applicable in the present case. 12. The order of removal as passed by the appropriate authority is set aside. So far as the order of reinstatement and back wages, if any, is concerned the same will be abide by the result of the appeal. 13. The writ petition is, thus, disposed of. There will be nor order as to costs. 14. Let urgent xerox certified copy of this order, if applied for, be given to the learned Counsel for the petitioner within a period of fortnight from the date of submitting of the requisites. Writ petition disposed of.