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2002 DIGILAW 75 (GAU)

Ikram (Md. ) v. Union of India

2002-02-11

AMITAVA ROY, R.S.MONGIA

body2002
R.S. MONGIA, CJ. — The appellant while in service was charge sheeted and regular departmental proceedings was initiated against him. 29 prosecution witnesses were cited in the list of witnesses. However, only 26 were examined by the Enquiry Officer and so far the remaining prosecution witnesses are concerned it was observed by the Enquiry Officer as under - “In all, out of 29 witnesses cited in Annexure-IV of the charge memorandum, 26 witnesses were examined and the rest three witnesses, namely, Sri P.K. Agarwal, the then OC/1BN/RPSF/LMG and now Security Commissioner, RCB/Kapurthala, -jSri Rojit, 1PPF now at 9 BN/RPDF/Jagadari, and Sri K.K. Misra, Constable now at 8 BN/RPSF/ Chittaranjan did not appear in the inquiry inspite of repeated summons and hence their names were dropped from the list of witnesses.” 2. On the basis of evidence on record the Enquiry Officer vide his report dated 10.7.2000 held the appellant not guilty. When the report was placed before the Disciplinary Authority an order was passed on 11.08.2000 (communicated to the Enquiry Officer vide letter dated 16.8.2000), inter alia, mentioning therein that the enquiry report had been given without recording statements of three main witnesses to which reference has been made in the enquiry report. According to the Disciplinary Authority, the report was not acceptable as it was incomplete in the sense that entire evidence has apt been recorded. Further enquiry was ordered by recording the evidence of the aforesaid three witnesses. 3. When the Enquiry Officer summoned the appellant vide communication dated 18.08.2000 informing the appellant that he had been ordered for conducting further enquiry and the appellant was required to appear before the Enquiry Officer on 28.08.2000, he challenged the said order of the Enquiry Officer by way of Writ Petition (C) 586/2001. By order dated 2.2.2001 the learned Single Judge stayed further proceedings in the enquiry. However, the said order was vacated by the impugned order dated 30.1.2002. Hence, the present appeal. It may be observed here that the writ petition is still pending adjudication before the learned Single Judge. 4. The appellant has since retired from service on 31.07.2000. Under Rule 154.4 of the Railway Protection Force Rules, 1957 the Disciplinary Authority for reasons to be recorded, is empowered to remand'a case for further enquiry and report. Hence, the present appeal. It may be observed here that the writ petition is still pending adjudication before the learned Single Judge. 4. The appellant has since retired from service on 31.07.2000. Under Rule 154.4 of the Railway Protection Force Rules, 1957 the Disciplinary Authority for reasons to be recorded, is empowered to remand'a case for further enquiry and report. In the present case we do find that the Disciplinary Authority was not satisfied with the enquiry report that had been given without recording the evidence of three witnesses which, according to the Disciplinary Authority were main prosecution witnesses. No doubt the Enquiry Officer has given reason as to why these three witnesses could not be examined. That part of the enquiry report has already been culled out above. It may be added here that in paragraph 7 of the report, the Enquiry Officer has observed as under:- “7. Before recording the finding on this case, the undersigned dums it appropriate to mention here that the appearance of PWs 1, 3 and 18 could not have changed the final outcome of the enquiry materially, inasmuch as, PW-1 could have testified only to what is alleged to have transpired in his chamber at 10.30 hrs. of 30.3.99 and that too is not proved from what he himself has recorded in his report dated 31.3.99 (pD-1). Similarly, IPF/Rajit's (PW-3) statement on taking Shri Ikram to Railway Hospital could not have changed the finding of fact materially on the basis of what has been recorded above. Further, K.K. Mishra (PW-13) stated (pD-18) that he was on quarter guard duty and he did not see RC Goraknath being slapped by Shri Ikram.” 5. From the enquiry report it is not very clear as to whether the witnesses who had not been examined had been duly served or not and that despite service they had not appeared. In our view the learned Enquiry Officer was not correct in making the observations in paragraph 7 of the enquiry report (supra) to the effect that statement of these witnesses could not have materially affected the findings in the enquiry. As to what the witnesses would state while appearing before the Enquiry Officer, the Enquiry Officer could not visualise. In our view the learned Enquiry Officer was not correct in making the observations in paragraph 7 of the enquiry report (supra) to the effect that statement of these witnesses could not have materially affected the findings in the enquiry. As to what the witnesses would state while appearing before the Enquiry Officer, the Enquiry Officer could not visualise. The Enquiry Officer had only to give findings on the basis of the record/evidence as was available before him and not what these witnesses might have stated or might not have stated. As per Rule 154.4 of the Railway Protection Force Rules, 1957 the Disciplinary Authority, after recording reasons, has a right to order for further enquiry. We find nothing wrong in the view taken by the Disciplinary Authority. In this view, we also do not find anything wrong in the impugned order of the learned Single Judge vacating the stay order granted earlier. Consequently, we find no merit in this appeal which is hereby dismissed. 6. The parties' counsel are agreed that for the view we have taken in the matter the writ petition itself stand disposed of. We order accordingly. A copy of this judgment be placed in the file of the writ petition as well. 7. The Railway authorities are given 3 months' time to produce the three witnesses who were earlier been examined. If they fail to produce these witnesses within three months then the earlier enquiry report would stand. However, if all the three witnesses or any one appears before the Enquiry Officer within the aforesaid period, fresh enquiry report would be submitted and further action in accordance with law would be taken. It is clarified that the fresh enquiry report will be without prejudice and not influenced by the observations made in this judgment and the Enquiry Officer would give his own independent finding. 8. A copy of this judgment, attested by the Bench Assistant, be given to the learned counsel for Railways for onward transmission to Railway Authorities.