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2001 DIGILAW 239 (CAL)

KAILASH NATH v. UNION OF INDIA

2001-04-26

MAHEMMAD HABEEB SHAMS ANSARI

body2001
M. H. S. ANSARI, J. ( 1 ) -AS identical notices have been issued by the Enquiry Officer in relation to a charge sheet issued by the same disciplinary authority levelling identical charges against the respective petitioners in the above three writ petitions and are subject matter of challenge. The three writ petitions have been heard analogously and are being disposed of by this common judgment and order. ( 2 ) FOR the sake of convenience, the facts in W. P. No. 8131 (W) of 1996 have been noticed in this judgment and order. The facts in the other two writ petitions being identical. ( 3 ) THE petitioner while working as Constable under Railway Protection Force was proceeded with departmentally and a charge sheet was issued. The charge and the imputation levelled against the petitioner read as under;"cons/8103 Uma Kant of RPF Post/andal (P) is charged for active connivance in a theft case of sugar from Rly. Wagons in that-on 6-1-93 while he along with Nk/1508 R. N. Singh, Cons/8980 K. Nath and Cons/3924 S. D. Ram was detailed for duty at West Dn. Departure yard/udl From 08/00 hrs. to 20/00 hrs. Officers of UDL (P) Post, IPF/inv. ASN with staff of C and TE/asn under directed supervision of ASC/rpf/udl arrested three persons while carrying bags of sugar from West Dn. Dep. Yd. UDL towards main line/andal after committing theft from Rly. Wagons stabled in above yard. Many other criminals fled away leaving 30 bags of sugar weighing about 850 Kgs. which were seized in presence of the witnesses. Hence, the charge. " ( 4 ) AN Enquiry Officer was appointed who submitted his report. There in, the finding recorded by the Enquiry Officer reads as under (annexure 'e' ). "in view of the facts stated in the foregoing para and taking the defence note submitted by the delinquents into account the charges are proved except "for active Connivance". ( 5 ) THE disciplinary authority by its letter dated 6. 2. 96 (annexure E) forwarded a copy of the report of the Enquiry Officer to the petitioner and intimated the petitioner thereby that if he wished to make any representation or submission, he may do so in writing to the disciplinary authority within 15 days thereof. ( 6 ) ANNEXURE 'g' is the representation submitted by the petitioner. 2. 96 (annexure E) forwarded a copy of the report of the Enquiry Officer to the petitioner and intimated the petitioner thereby that if he wished to make any representation or submission, he may do so in writing to the disciplinary authority within 15 days thereof. ( 6 ) ANNEXURE 'g' is the representation submitted by the petitioner. Therein plea was taken that as the Enquiry Officer has in his findings held that the charges are proved except for active connivance, the said finding of the Enquiry Officer is that of not "guilty" as the very charge is with respect to connivance in the theft. It was further stated therein that if the disciplinary authority differed with the findings of the Enquiry Officer, a copy of the findings may be given to the petitioner for submitting his representations on it before passing final orders. ( 7 ) THE petitioner, however, was not intimated about the result of the said representation instead the petitioner was served with a notice dated 20. 4. 96 being annexure 'h' issued by the Enquiry Officer whereby the petitioner was informed that the Enquiry Officer was ordered to conduct further enquiry in the charges. The next date of enquiry was fixed on 26. 4. 96 by and before the Enquiry Officer. ( 8 ) THE aforesaid notice of the Enquiry Officer dated 20. 4. 96 has been questioned in the instant writ application. ( 9 ) AN affidavit-in-opposition has been filed on behalf of the respondents and various averments made in the writ application have been traversed. As regards the impugned notice of the Enquiry Officer, it has been stated as under;"the Enquiring Officer has submitted his enquiry report. The report enquiry has been considered by the disciplinary authority who found that some clarifications in the enquiry report on some points is needed as such he has returned the case file and enquiry report to him for further enquiry and his report. " ( 10 ) IN paragraph 10, it has been stated as under;"that with respect to statements contain in paragraph 7 of the "the said affidavit", I say that his contention that respondents failed to prove the allegation against the petitioner is a baseless pleas hence the same is denied. " ( 10 ) IN paragraph 10, it has been stated as under;"that with respect to statements contain in paragraph 7 of the "the said affidavit", I say that his contention that respondents failed to prove the allegation against the petitioner is a baseless pleas hence the same is denied. It is stated that the matter has been referred to Inquiry Officer and unless his full enquiry report is received nothing can be said at this enquiry stage. " ( 11 ) FURTHER in paragraph 15, it has been stated as under;"that with respect to statements contain in paragraph 13 of the 'the said affidavit', I say that since the case of petitioner has not been finalized giving any order of enquiry to him does not arise. The E. O. has been directed by the disciplinary authority to hold further enquiry into the case and the E. O. has issued notice to the petitioner (annexure - I) which is sufficient. No any order needs to be issued to the petitioner from the said of disciplinary authority when the case is still under enquiry stage. " ( 12 ) FROM the averments in the affidavit-in-opposition, quoted supra, it will be seen that the disciplinary authority considered the report of the Enquiry Officer and found that some clarifications in the enquiry report "on some points is needed" and, therefore, returned the case file and enquiry report to the Enquiry Officer for further enquiry and report. ( 13 ) THE short question for consideration, therefore, in the instant writ application is as to whether the notice of the Enquiry Officer impugned in the instant writ application is valid in law. The answer to this question would depend upon the consideration of the question as to whether the disciplinary authority acted in accordance with the law in remitting the matter to the Enquiry Officer. ( 14 ) MS. Bharati Ghosh, learned counsel for the petitioner contended that the order passed by the disciplinary authority behind the back of the petitioner and without affording him any opportunity of being heard before remitting the matter to the Enquiry Officer, is in utter violation of the principles of natural justice and contrary to the procedure prescribed in the relevant RPF Rules. Ms. Ms. Bharati Ghosh further contended that after having called for the representation of the petitioner in respect of the conclusions arrived at by the Enquiry Officer, the disciplinary authority's action in remitting the matter to the Enquiry Officer is malafide. Before remitting the matter to the Enquiry Officer, the disciplinary authority ought to have recorded reasons therefor and the same ought to have been intimated to the petitioner. This not having been done the entire procedure adopted by the disciplinary authority is vitiated. It was further submitted that neither the Enquiry Officer nor the petitioner has been informed of the reasons for conducting further enquiry into the matter. The petitioner is thus denied of the opportunity of making suitable or effective representation in the enquiry proposed to be conducted pursuant to the impugned notice. ( 15 ) ON behalf of the respondent, Mr. Kazi Md. Ali, learned advocate submitted that power is conferred on the disciplinary authority to direct the Enquiry Officer to conduct further enquiry in terms of RPF Rule 154. 4. It is further contended that the said Rule does not provide for any opportunity of hearing the petitioner or for communicating the reasons to the petitioner in the matter of conducting further enquiry by the Enquiry Officer. The question of violation of principles of natural justice do not arise, it was contended, as the petitioner will be afforded every opportunity by Enquiry Officer. Mr. Kazi Md. Ali, learned advocate further submitted that the only requirement of the rule is that the reasons are to be recorded and such reasons have been duly recorded by the disciplinary authority in its file and, therefore, there has been compliance with the provisions of RPF Rule 154. 4. Lastly, Mr. Kazi Md. Ali, learned advocate submitted that the writ application is premature, as only a notice has been issued by the Enquiry Officer. The petitioner may have a grievance if any orders are passed by the disciplinary authority based upon the enquiry report and as that stage has not been reached, the Court, it was submitted, ought not to interfere at this stage of the proceedings. ( 16 ) AS much reliance has been placed upon RPF Rules 154. 4 by Mr. Kazi Md. Ali to sustain the action of the respondents the said Rule is extracted hereunder. "154. ( 16 ) AS much reliance has been placed upon RPF Rules 154. 4 by Mr. Kazi Md. Ali to sustain the action of the respondents the said Rule is extracted hereunder. "154. 4: The disciplinary authority, if it is not itself the Enquiry Officer may, for reasons to be recorded, remit the case to the Enquiry Officer for further Enquiry and report. The Enquiry Officer shall thereupon proceed to hold further Enquiry according to the provisions of Rule 153 and submit to the disciplinary authority the complete records of such Enquiry along with his report. " ( 17 ) THE important words in the Rule 154. 4 are "for reasons to be recorded". Such requirement for recording reasons is to know whether the directions to Enquiry Officer are based on reasons, which are relevant and material. The Court of course, cannot investigate into the adequacy or sufficiency of the reasons but it can certainly examine whether the reasons are relevant and have a bearing on the matters in regard to which a further enquiry is required to be made by the Enquiry Officer. ( 18 ) EVEN, if it is accepted as contended by the learned advocate Mr. Kazi Md. Ali that such reasons need not be communicated to the delinquent officer, the respondents have failed to satisfy the Court as to the reasons or their relevancy to justify the action of the respondent-disciplinary authority. ( 19 ) IT is also relevant to note in this context that in terms of RPF Rule 154. 4, the further enquiry by the Enquiry Officer is to be held according to the RPF Rule 153. ( 20 ) RULE 153 prescribes the procedure for imposing major punishments. The said rules embody a principle, which is one of the basic of a reasonable or adequate opportunity to the delinquent for defending himself. Certain relevant sub-rules are extracted hereunder;"153. 1: Without prejudice to the provisions of the Public servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction in rank shall be passed on any enrolled member of the Force (save as mentioned in Rule 161) without holding an inquiry, as far as may be in the manner provided hereinafter, in which he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded a reasonable opportunity of defending himself. 153. 153. 5: The disciplinary authority shall deliver or cause to be delivered to the delinquent member, at least seventy-two hours before the commencement of the inquiry, a copy of the articles of charge, the statement of imputations of misconduct or misbehaviour and a list of documents and witnesses by which each articles of charge is proposed to be sustained and fix a date when the inquiry is to commence; subsequent dates being fixed by the Enquiry Officer. " ( 21 ) THE sub-rules, quoted supra, contemplate the holding of an enquiry in which the delinquent has been informed in writing of the grounds on which it is proposed to take action. ( 22 ) THE disciplinary authority is to deliver to the delinquent officer at least seventy-two hours before the commencement of the enquiry the charges, statement of imputations and list of documents and witnesses and fix a date when the enquiry is to commence. Subsequent dates being fixed by the Enquiry Officer. ( 23 ) THE whole object of furnishing such statement of allegations is to give all the necessary particulars and details, which would satisfy the requirement of giving a reasonable opportunity to put up defence. ( 24 ) IN the instant case it is not clear as to whether any additional evidence, oral or documentary is required to be presented before the Enquiry Officer. Whether any witness already examined is to be recalled and further examined. The delinquent officer cannot possibly, by projecting his own imagination discover what may be in the contemplation of the authorities to be established against him in the further enquiry contemplated. ( 25 ) HOWEVER, if the object of the further enquiry is only with regard to the difference in the matter of conclusions arrived at by the Enquiry Officer and that of the disciplinary authority on the basis of the material already on record, then invocation of the discretionary powers in RPF Rule 154. 4 is not appropriate. ( 26 ) IN the case of disagreement with the findings of the Enquiry Officer, RPF Rule 154. 5 is relevant and is extracted hereunder;"154. 5: The disciplinary authority shall, if it disagrees with the findings of the Enquiry Officer on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purposes. 5 is relevant and is extracted hereunder;"154. 5: The disciplinary authority shall, if it disagrees with the findings of the Enquiry Officer on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purposes. " ( 27 ) IT cannot be disputed that the disciplinary authority has the power to dissent from the findings arrived at by the Enquiry Officer. In that event, procedure for further action has been laid down in Rule 154. 5. ( 28 ) IN High Court of Judicature at Bombay v. Sashikant S. Patil and Anr. , reported in 2000 (1) SCC 416 , the Supreme Court dealt with ambit and scope of judicial review and the power of a writ Court to interfere with decision of disciplinary authority. ( 29 ) IT was held that interference with the decision of departmental authorities can be permitted while exercising jurisdiction under Article 226 of the Constitution, if such authority had held proceedings in violation of principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry. ( 30 ) IT was further held that "it must be borne in mind that the enquiry is primarily intended to afford the delinquent officer of reasonable opportunity to meet the charges against him and also to afford the punishing authority with the materials collected in such enquiry as well as the views expressed by the Enquiry Officer thereon. " ( 31 ) AS regards the power of the disciplinary authority to differ with the findings of the Enquiry Officer, it was held as under;"the findings of the Enquiry Officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision-making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the Enquiry Officer. But it is not necessary that the disciplinary authority should "discuss materials in detail and contest the conclusions of the Enquiry Officer". Otherwise the position of the disciplinary authority would get relegated to a subordinate level. But it is not necessary that the disciplinary authority should "discuss materials in detail and contest the conclusions of the Enquiry Officer". Otherwise the position of the disciplinary authority would get relegated to a subordinate level. The legal position on that score has been stated by this Court in A. N. D'silva v. Union of India ( AIR 1962 SC 1130 ) that neither the findings of the Enquiry Officer nor his recommendations are binding on the punishing authority. The aforesaid position was settled by a Constitution Bench of this Court way back in 1963 (Union of India v. H. C. Goel, AIR 1964 SC 364 ). The Bench held that "the Government may agree with the report or may differ, either wholly or partially, from the conclusions recorded in the report". Their Lordships laid down the following principle;"if the report makes findings in favour of the public servant and the government disagrees with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf. " ( 32 ) IN the instant case, it is not clear as to whether the disciplinary authority has merely differed with the findings of the Enquiry Officer and, therefore, directed further enquiry in the matter or as to whether any additional evidence oral or documentary is required to be presented before the Enquiry Officer. The very object of further enquiry has not been disclosed. Thus, the petitioner-delinquent officer has been denied reasonable opportunity of defending himself in the contemplated further enquiry before the Enquiry Officer. ( 33 ) FOR the reasons aforestated, the impugned notice being annexure 'h' cannot be sustained and is liable to be and is hereby quashed and set aside. ( 34 ) THIS order, however, shall not preclude the disciplinary authority from taking such further steps and actions as may be open to him in law for the conclusion of the enquiry proceedings pending against the petitioner pursuant to the charge sheet already issued. ( 35 ) IT is, however, directed that the disciplinary authority shall complete the pending departmental proceedings within a period of four months from the date of communication of a copy of this order. ( 35 ) IT is, however, directed that the disciplinary authority shall complete the pending departmental proceedings within a period of four months from the date of communication of a copy of this order. ( 36 ) IT is hereby clarified that this order shall not preclude the disciplinary authority, if in the opinion of the disciplinary authority, the report already submitted by the Enquiry Officer warrants that a further enquiry is needed in that behalf, the disciplinary authority for the reason to be recorded by him shall communicate to the petitioner the nature and object of the further enquiry contemplated against the petitioner-delinquent officer at least seventy-two hours before the commencement of the enquiry and fix a date when the enquiry is to commence, subsequent dates being fixed by the Enquiry Officer. C. O. No. 8131 (W) of 1996. In the result, the writ application is accordingly allowed in part with the observations and clarifications and directions as above. The impugned notice being annexure 'h' dated April 20, 1996 issued by the enquiry officer be and is hereby quashed and set aside. C. O. No. 8133 (W) of 1996. For the aforesaid reasons and with the observations, clarifications and direction as in C. O. No. 8131 (W) of 1996, the instant writ application being C. O. No. 8133 (W) of 1996 is allowed in part and the impugned notice being annexure 'h' dated April 20, 1996 be and is hereby quashed and set aside. C. O. No. 8134 (W) of 1996. For the aforesaid reasons and with the observations, clarifications and directions as in C. O. No. 8131 (W) of 1996, the instant writ application being C. O. No. 8133 (W) of 1996 is allowed in part and the impugned notice being annexure 'h' dated April 20, 1996 be and is hereby quashed and set aside. There shall, however, be no order as to costs. Let urgent xerox certified copy of this judgment and order be furnished to the parties, if applied for, on priority basis. Applications allowed in part.