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2004 DIGILAW 624 (CAL)

SHYAM BAHADUR LAMA v. UNION OF INDIA

2004-09-16

ARUN KUMAR MITRA

body2004
ARUN KUMAR MITRA, J. ( 1 ) THE petitioner herein is a Constable of Railway Protection Force and is posted in the workshop under South Eastern Railway at Kharagpur. Departmental proceedings was initiated against the petitioner. He was suspended w. e. f. 24. 1. 1994. Subsequently the order of suspension was revoked. He was served with a charge-sheet dated 18. 5. 1994 which has been made Annexure-A to the writ petition. The allegation against the petitioner was that there was wilful omission of duty on the part of the petitioner for prevention and detection of offence. It was also alleged that he remained absent from duty without reporting his whereabouts under a false coverage of a Medical Certificate dated 6. 2. 1994 issued from Midnapore. ( 2 ) ACCORDING to the petitioner he was denied reasonable opportunity of hearing since he was not supplied with copies of relevant records and documents. The petitioner alleged that he sent representation dated 10. 5. 1994, 10. 6. 1994 and 16. 6. 1994 which were made Annexures-B, F and G to this writ petition. ( 3 ) ACCORDING to the petitioner, the Inquiry Officer cannot direct the petitioner to submit the name of his defence counsel for and below the rank of Sub-Inspector in terms of Rule 153. 8 of R. P. F. Rules, 1987 inasmuch as the said rule has been declared ultra vires in a judgment delivered by Hon'ble Justice Manoranjan Mallick in C. O. No. 6694 (W) of 1991 dated 6. 12. 1991 in the matter of Tarapada Chowdhury v. Union of India and Ors. and C. O. No. 2600 (W) of 1992 passed by Hon'ble Justice S. B. Sinha (as his Lordships then was) in V. K. Khanna v. Union of India and Ors. and in another judgment in Sanjoy Kumar Singh v. Union of India and Ors. , 2002 (2) SLR 266. It has further been alleged by the petitioner that the Inquiry Officer, on consideration of the entire evidence on records found the petitioner not guilty of the charges and submitted his report on 12. 6. 1995. The said report of the Inquiry Officer has been made Annexure-P. ( 4 ) DISCIPLINARY authority disagreeing with the report of the Inquiry Officer issued second show-cause notice dated 10. 11. 1995 which has been made Annexure-Q to the writ petition. ( 5 ) CHALLENGING the charge-sheet dated 10. 5. 6. 1995. The said report of the Inquiry Officer has been made Annexure-P. ( 4 ) DISCIPLINARY authority disagreeing with the report of the Inquiry Officer issued second show-cause notice dated 10. 11. 1995 which has been made Annexure-Q to the writ petition. ( 5 ) CHALLENGING the charge-sheet dated 10. 5. 1994 and the second show-cause notice dated 10. 11. 1995 being Annexures-A and Q herein the petitioner moved this writ petition and prayed for quashing all those two items i. e. the charge-sheet and the second show-cause notice. ( 6 ) AFFIDAVIT-IN-OPPOSITION was filed on behalf of the respondents. The said opposition was affirmed by one Assistant Security Commissioner, R. P. F. Eastern Railway. In the said opposition all the allegations made by the petitioner were denied. It is stated in the said opposition that during the course of departmental proceeding/ inquiry the petitioner was given all opportunities till the said inquiry was completed by the Inquiry Officer and he did not raise any question alleging that he was not given any opportunity, therefore the petitioner's plea that the action of the disciplinary authority is absolutely illegal or arbitrary or in violation of the principles of natural justice are not correct. ( 7 ) IT has been further stated that the allegations of non-supply of records are afterthought. The petitioner finding himself to be guilty of the charges and made out in the charge-sheet took this plea in a mala fide manner. ( 8 ) IT has further been stated in the opposition that the petitioner was negligent of his duty and committed gross misconduct and this is outside the purview of the criminal cases referred to by the petitioner. The said criminal case is subjudiced before the learned CJM, Midnapore and, as such, the claim of the petitioner for supply of documents relating to criminal case was rejected. ( 9 ) IT has also been stated in the affidavit-in-opposition that the Inquiry Officer afforded all reasonable opportunities to the petitioner as per the extant rules. In the opposition the respondents stated that at the time of inquiry, the petitioner never complained that he was debarred from cross-examining the prosecution witness. ( 10 ) IT has been stated in the opposition that at the time of inquiry the petitioner never claimed that he was not given any document. In the opposition the respondents stated that at the time of inquiry, the petitioner never complained that he was debarred from cross-examining the prosecution witness. ( 10 ) IT has been stated in the opposition that at the time of inquiry the petitioner never claimed that he was not given any document. The opposition alleged that serious misconduct has been committed by the petitioner and he had failed to maintain integrity as a member of the disciplined force. ( 11 ) IT has been stated that the petition is not maintainable in law inasmuch as the inquiry proceeding was conducted in accordance with the statutory provisions. ( 12 ) IN paragraph 5 of the opposition it has been stated that both Sri Lama and Sri S. P. Pathak had been assigned duty to check the movement of materials at the gate but the petitioner failed or neglect to perform his duty. ( 13 ) IT has also been stated in the said opposition that one Chandra Shekhar Singh of R. P. (U. P.) gave a confessional statement and this confessional statement does not render anything from which the petitioner can be exempted from the charges. The respondents denied all the allegations made by the petitioner in the said writ petition and stated that the petition should be dismissed. ( 14 ) THE writ petitioner submitted reply to this affidavit-in-opposition and in the reply the petitioner denied the allegations made by the respondents and reiterated his stand made in the writ petition. ( 15 ) THE learned Counsel for the petitioner submitted that the charge-sheet is bad in law and is the result of bias on behalf of the respondent authorities. ( 16 ) THE learned Counsel submitted that in a decision in State of Punjab v. V. K. Khanna and Ors. , AIR 2001 SC 343 , the Hon'ble Apex Court made the following observations:"8. The test, therefore, is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collected and necessary conclusion drawn therefrom. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. In the event, however, the conclusion is otherwise that there is existing a real danger of bias administrative action cannot be sustained. If on the other hand allegations pertain to rather fanciful apprehension in administrative action, question of declaring them to be unsustainable on the basis therefor would not arise. ""21. Soon after the issuance of the charge-sheet however the Press reported a statement of the Chief Minister on 27th April, 1997 that a Judge of the High Court would look into the charges against Shri V. K. Khanna--this statement has been ascribed to be mala fide by Mr. Subramaniam by reason of the fact that even prior to the expiry of the period pertaining to the submission of reply to the charge-sheet, this announcement was effected that a Judge of the High Court would look into the charges against the respondent No. 1-Mr. Subramaniam contended that the statement depicts malice and vendetta and the frame of mind so as to humiliate the former Chief Secretary. The time has not expired for assessment of the situation as to whether there is any misconduct involved--if any credence is to be attached to the Press report, we are afraid Mr. Subramaniam's comment might find some justification. ""25. Bias admittedly negates fairness and reasonableness by reason of which arbitrariness and mala fide move creep in--issuance of the two notifications assuming in hot haste but no particulars of any mala fides move or action has been brought out on record on the part of Shri V. K. Khanna--while it is true that the notings prepared for Advocate General's opinion contain a definite remark about the mala fide move on the part of Shri V. K. Khanna yet there is singular absence of any particulars without which the case of mala fides cannot be sustained. The expression 'mala fide' has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona fide--actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is in accompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act. ""33. ""33. While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any Court pending inquiry but it is equally well settled that in the event there is an element, of malice or mala fide, notice involved in the matter of issue of charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcial show and the conclusions are well known then and in that event law Courts are otherwise justified in interfering, at the earliest stage so as to avoid the harassment and humiliation, of a public official. It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law Courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings. " ( 17 ) THE Hon'ble Apex Court in this judgment observed that if a disciplinary authority before considering the reply of the show-cause submitted by the petitioner decides about inquiry that smacks of bias. ( 18 ) IN the decision of Krishna Chandra v. Union of India, it has been observed"it is very necessary for an authority which orders an inquiry to be satisfied that there are prima facie grounds for holding a disciplinary inquiry, and, therefore, before he makes up his mind he will either himself investigate or direct his subordinate to investigate in the matter and it is only after he receives the results of this investigation that he can decide as to whether disciplinary action is called for or not. Therefore, their documents of the nature of inter-departmental communication between officers, preliminary to the holding of inquiry have really no importance unless the Inquiry Officer wants to rely on him for reaching conclusions. In that case it would only be right that copies of the same should be given to the delinquent. Therefore, their documents of the nature of inter-departmental communication between officers, preliminary to the holding of inquiry have really no importance unless the Inquiry Officer wants to rely on him for reaching conclusions. In that case it would only be right that copies of the same should be given to the delinquent. " ( 19 ) AGAIN charge-sheet is nothing but the compilation of certain specific allegations against an employee and naturally a show-cause issued with the charge-sheet gives a chance to the employee concerned to submit his reply to the specific allegations. If the allegations are vague, the charge-sheet is not proper. Therefore, the allegations must be specific and the employee must be given a chance to give reply to the said charge-sheet. And on the basis of the reply of employee in respect of the charges labelled against him, the authority is to decide whether there will be an inquiry on the basis of the charge-sheet or not; If from issuance of the charge-sheet, before receipt of reply the authority decides that an inquiry would be held then it smacks of bias. ( 20 ) THE further allegation of the petitioner is that proceeding was continued by the Inquiry Officer in violation of the statutory provisions. ( 21 ) THE Inquiry Officer proceeded in terms of Rule 153. 8 of the Railway Protection Force Rules, 1987 which is quoted hereinbelow :"members charged shall not be allowed to bring in a legal practitioner at the proceeding but he may be allowed to take the assistance of another member of the force hereinafter referred to as "friend" wherein the opinion of the Inquiry Officer may, at the request of the party charged, but his defence properly. Such "friend" must be a serving member in the same division or the battalion where the proceedings are pending and not acting as a friend in any other proceedings pending anywhere. Such friend shall however, not be allowed to address the Inquiry Officer, not to cross-examine the witness. " ( 22 ) THIS provision i. e. Rule 153. 8 has been declared ultra vires as referred to above by Hon'ble Justice Manoranjan Mallick (as his Lordship then was) and Hon'ble Justice S. B. Sinha (as his Lordship then was ). Such friend shall however, not be allowed to address the Inquiry Officer, not to cross-examine the witness. " ( 22 ) THIS provision i. e. Rule 153. 8 has been declared ultra vires as referred to above by Hon'ble Justice Manoranjan Mallick (as his Lordship then was) and Hon'ble Justice S. B. Sinha (as his Lordship then was ). This Court in various judgments also declared this rule as ultra vires but in spite of the said fact the Inquiry Officer proceeded on the basis of said rule and made the inquiry a biased one, though the inquiry report ultimately went in favour of the petitioner. ( 23 ) IT is also a settled principle of law that the inquiry authority is to supply the copies of the relevant documents upon which he or they want to rely upon for proving the charges labelled against the petitioner. But as it appears from Annexure-B, the petitioner prayed for certain documents on which the authority relied upon. From Annexure-C it appears that the authority did not supply all the said documents and from Annexure-E to the writ petition it appears that the Assistant Security Commissioner observed that "documents under Sl. No. 1, 2, 4 to 6, 8 and 9 may be consulted at the RPF Post workshop. Other documents, if turn out to be relevant during enquiry, the same should be made available to the delinquent by the P. W. concerned. " ( 24 ) ON such background the inquiry against the petitioner was conducted. As it appears from Annexure-P to the writ petition which is the Inquiry Report, the Inquiry Officer concluded with the observation "in view of the above I found the party charged, not guilty of the above charges. " ( 25 ) ON the basis of this inquiry report the disciplinary authority issued second show-cause notice which is Annexure-Q to the writ petition. From this second show-cause notice it appears that the disciplinary authority disagreed with the findings of the Inquiry Officer and decided to punish the petitioner. " ( 25 ) ON the basis of this inquiry report the disciplinary authority issued second show-cause notice which is Annexure-Q to the writ petition. From this second show-cause notice it appears that the disciplinary authority disagreed with the findings of the Inquiry Officer and decided to punish the petitioner. ( 26 ) IT is again a settled principle of law that the disciplinary authority has got power to differ with the Inquiry Officer's report and the disciplinary authority has got power to impose penalty but in that event the disciplinary authority has to assign reasons for his difference of opinion insofar as the Inquiry Officer's report is concerned but in the instant case the disciplinary authority differed with the opinion of the Inquiry Officer but did not assign any reason which clearly shows the bias on the part of the disciplinary authority. ( 27 ) IT appears from the entire Inquiry proceeding that the inquiry was conducted with close mind in a biased manner and also with a mala fide intention to victimise the petitioner. ( 28 ) THE learned Counsel for the petitioner referred to the decisions in R. S. Singh v. Union of India, 2002 (2) SLR 499; Anil Kumar v. Presiding Officer, and Nando Kishore Prasad v. State of Bihar, 1978 SLR 46. ( 29 ) IT appears to me that the law of departmental proceeding is settled and it is unnecessary to encumber this judgment by referring to so many judgments of different High Court and the Hon'ble Apex Court in all these regards. ( 30 ) IN my opinion the charge-sheet suffers from bias, the inquiry report goes in favour of the petitioner and in that view of the matter the issuance of second show-cause notice to the petitioner indicating punishment is not only illegal but also mala fide and the entire inquiry is vitiated. ( 31 ) THE charge-sheet being Annexure-A to the writ petition and the proceeding on the basis of the said charge-sheet as well as the second show-cause notice being Annexure-Q to the writ petition are set aside. ( 32 ) THE respondents are directed to allow the petitioner to commence his services as before. ( 31 ) THE charge-sheet being Annexure-A to the writ petition and the proceeding on the basis of the said charge-sheet as well as the second show-cause notice being Annexure-Q to the writ petition are set aside. ( 32 ) THE respondents are directed to allow the petitioner to commence his services as before. ( 33 ) THE petitioner will be entitled to all his emoluments in arrears and on current basis and the respondent authorities are directed to pay the arrear dues of the petitioner within a period of one month from the date of communication of this order. ( 34 ) THE petitioner will also be entitled to all his service benefits including promotions and fixation of pay scales as he would have been entitled had he not been fastened with this departmental inquiry.