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2006 DIGILAW 634 (CAL)

SANKAR THAKUR v. UNION OF INDIA

2006-09-25

ASHIM KUMAR BANERJEE, TAPAN MUKHERJEE

body2006
TAPAN MUKHERJEE, J. ( 1 ) THIS appeal is directed against the judgement and order passed by the learned Single Judge on 18. 8. 94 dismissing the writ application. ( 2 ) THE writ petitioner-appellant while serving as a constable of the Railway protection Force of South Eastern Railway was served with suspension order dated 3. 12. 87 on the ground of indiscipline. Subsequently, the said suspension order was revoked. A domestic enquiry was started against the petitioner on the charge that he created nuisance in the G. R. C. Hospital premises and also misbehaved with a lady Doctor on duty on 1. 12. 87. All the acts of misbehaviour amounted to gross indiscipline as the writ petitioner was a member of the disciplined force. The Enquiry Officer found the writ petitioner guilty to the charge. The Disciplinary Officer on the basis of the finding of the Enquiry Officer dated 5. 1. 81 issued notice to the petitioner after agreeing with the finding of the Enquiry Officer proposing to impose the penalty of removal from service and thereafter imposed penalty of removal from service upon him. Hence, the writ petitioner moved the present writ petition. ( 3 ) LEARNED Single Judge by his impugned order dismissed the writ petition. ( 4 ) BEING aggrieved by the said order the writ petitioner preferred this appeal. ( 5 ) IT has been contended by the learned lawyer for the appellant that the charge levelled against the writ petitioner -appellant was vague and unspecific and no order of discharge could be founded on the said charge and the report of the Enquiry Officer was bad in law as the same was not reasoned and not in appreciation of the evidence on record. The finding of the Enquiry Officer was perverse. Copies of relevant documents in connection with enquiry were not supplied to the appellant. The close analysis of the evidence on record would show that the charge of misconduct was not proved and consequently, there was no basis of inflicting the punishment of dismissal upon the petitioner by the disciplinary authority. Learned lawyer for the appellant further contended that even if it assumed that the charge had been proved still then the punishment inflicted upon the writ petitioner appellant for such a minor ommission was not justified and the same was disproportionate and liable to be quashed. Learned lawyer for the appellant further contended that even if it assumed that the charge had been proved still then the punishment inflicted upon the writ petitioner appellant for such a minor ommission was not justified and the same was disproportionate and liable to be quashed. He further submitted that it was to be decided whether the case of the petitioner was to be governed by the railway Protection Force Rules, 1959 or by the Railway Protection Force rules, 1987. ( 6 ) IN the new rule No. 155. 3 it has been provided that where disciplinary authority is of the opinion that the punishment warranted is such as is not within its competence that authority shall forward the records of the enquiry to the appropriate disciplinary authority who shall act in the manner as provided thereafter but in Rule 44 of the Railway Protection Force Rules, 1959 there is no such provision for referring the matter to any appropriate disciplinary authority. Learned lawyer further contended that the past conduct of the writ petitioner was not relevant and the same was not to be taken into consideration. It was observed by the learned Single Judge that the writ petitioner was earlier awarded penalty of reduction in pay twice, stoppage of increment thrice and was censured once for his unauthorised absence and also for his neglect of the duty and misconduct during the period of service and learned Single Judge was of opinion that if the petitioner had been earlier punished departmentally 5 or 6 times with minor penalties of different nature it could not be said that the penalty of removal from service for a fresh misconduct thereafter was disproportionate if the disciplinary authority has chosen to impose any such major penalty this time. The plea of disproportionate penalty is thus not tenable. Learned lawyer further contended that in view of Rule 155 of the Railway Protection force Rules, 1987 in determining the punishment, the character, previous bad record and punishment of party charged should not be taken into consideration unless in a case where they were made subject-matter of a specific charge in the proceeding itself. In this case, there is no specific charge about the previous bad record and punishment of the petitioner. In this case, there is no specific charge about the previous bad record and punishment of the petitioner. ( 7 ) LEARNED lawyer for respondent contended that all documents had been supplied to the delinquent writ petitioner and the charge against him had been well proved. The finding of the Enquiry Officer was quite justified and legal and the penalty imposed upon the appellant was also proper and justified. The appellant being member of the disciplined force created nuisance in the grc Hospital premises and misbehaved with the lady DM0 on duty in drunken condition and that surely amounts to misconduct so as to attract the mischief of removal from service and the punishment was quite justified and the learned lawyer supported the judgement of the learned Single Judge. ( 8 ) IT is undisputed that the appellant is a Rakhak now constable of RPF, south Eastern Railway and he is working at present at Gardenreach as constable. It is further undisputed that the penalty of removal from service was imposed upon the petitioner on acceptance of the report of Enquiry officer after the termination of disciplinary proceedings against him. The allegations against the appellant/writ petitioner are that on 30. 11. 87 that he was absent on duty and sent an intimation of disposition of RPF post through his daughter. On 1. 12. 87 he attended GRC Hospital in a drunken state and on being asked about his drunkenness by Dr. Mrs. N. Kohili he started shouting creating nuisance in the hospital premises he also misbehaved with the said Doctor and threatened to do harm on her way to going to hospital. His all those acts of misbehaviour as a member of a disciplinary force amounted to misconduct and so he was suspended as the disciplinary proceeding was contemplated against him. The disciplinary proceeding was started against the appellant for the charge that on 1. 12. 87 the appellant created nuisance in the GRC Hospital premises and also misbehaved with on duty DMO/casually at GRC. Under Rule 44 (4) of the railway Protection Force Rules, 1959. Shri B. S. Ghosh I. P. F/ce/grc was. appointed as an Enquiry Officer to enquire into the charge framed against the appellant. After enquiry the Enquiry Officer held that it was proved that on 1. 12. 87 the delinquent constable attended the DMO/casualty in drunken state and misbehaved with the Doctor on duty Mrs. Shri B. S. Ghosh I. P. F/ce/grc was. appointed as an Enquiry Officer to enquire into the charge framed against the appellant. After enquiry the Enquiry Officer held that it was proved that on 1. 12. 87 the delinquent constable attended the DMO/casualty in drunken state and misbehaved with the Doctor on duty Mrs. N. Kohili and found the delinquent guilty of the charge and then on receipt of enquiry report the copy of the same was served upon the delinquent appellant and there was proposal to impose on him the penalty of removal from service and he was given opportunity to submit representation against the proposed penalty, the entire proceeding along with the findings of the Enquiry Officer was forwarded by the Assistant Security Commissioner to the Divisional Security commissioner, Kharagpore as the Assistant Security Commissioner was not empowered to inflict the deterrent punishment in conformity with the gravity of the offences committed by the delinquent and Divisional Security commissioner on going through the entire proceeding the findings of the enquiry Officer concluded that the prosecution witnesses, had de jure established the charges against the delinquent on the basis of oral and documentary evidence whereas the delinquent failed to refute or mitigate the gravity of the charges levelled against him in the chargesheet and as the charges were serious in nature so that the said Divisional Security commissioner, Kharagpore considered retention of the delinquent in service undesirable and detrimental to the interest of the disciplinary force and therefore tentatively proposed to impose upon him the penalty of removal from service and directed on 25. 7. 89 to issue show-cause notice. Accordingly, notice was issued to him. Then a final order of removal dated 14. 9. 89 was forward to him. ( 9 ) AS already observed the appellant has already challenged the report of the Enquiry Officer branding the same as perverse and without appreciation of the evidence on the materials on record. ( 10 ) IT was contended by the learned lawyer for the appellant that there was no evidence to support the charge levelled against the appellant. Reference was made to the evidence of P. W. 3, Dipten Patra, P. W. 2, Mrs. Rita Singh. It was contended that they have not supported the prosecution case. ( 10 ) IT was contended by the learned lawyer for the appellant that there was no evidence to support the charge levelled against the appellant. Reference was made to the evidence of P. W. 3, Dipten Patra, P. W. 2, Mrs. Rita Singh. It was contended that they have not supported the prosecution case. ( 11 ) IT appears from the statement of P. W. 3, Dipten Patra that he was on duty at Casualty along with Dr. Mrs. N. Kohili and on that date, at about 12 hrs he heard some shouting in casualty just in front of Dr. Mrs. Kohili. He then went toward along with serious patient. ( 12 ) P. W. 2, Mrs. Rita Singh, Staff Nurse who was on duty at Casualty on 1. 12. 97 with Dr. Mrs. Kohili stated that on that date at about 12 hrs delinquent came to the Casualty and started hot discussion with Dr. Mrs. Kohili and she informed the RPF Post. In cross-examination she has stated that she cannot say whether the hard language amounted to misbehaviour or not. She cannot say whether there was smell of liquor from the mouth of the delinquent as she had no knowledge regarding liquor smell. ( 13 ) P. W. 4, S. N. Singh received message from Dr. Kohili that the delinquent was misbehaving with her. He heard the occurrence from Mrs. Kohili on that date the delinquent was in drunken state. He made diary in the post. ( 14 ) P. W. 5, Shri N. K. Sarkar O. C. , RPF also received phone message from some casualty about creating nuisance at hospital by the delinquent. Mrs. Kohili said that on 1. 12. 87 at 12 hrs. the delinquent constable was examined by her and she advised to take medicine from O. P. D. He came in drunken state. He started shouting and created nuisance in the hospital premises in presence of available witnesses. The matter was intimated to o. C, RPF over phone through Nurse Mrs. Rita Singh and immediately S. I. S. N. Singh came and took away the constable from hospital. The discharge memo bore the testimony of the fact that there was alcoholic intoxication. There is nothing to show that Mrs. N. K. Kohili bore enmity towards the delinquent. There is nothing to disbelieve the statement of Dr. Mrs. Rita Singh and immediately S. I. S. N. Singh came and took away the constable from hospital. The discharge memo bore the testimony of the fact that there was alcoholic intoxication. There is nothing to show that Mrs. N. K. Kohili bore enmity towards the delinquent. There is nothing to disbelieve the statement of Dr. Mrs. N. Kohili who states that delinquent started shouting and created nuisance in the hospital and he was in drunken state P. W. 2, Rita Singh corroborated mrs. Kohili in the point of hot discussion with Mrs. Kohili. P. W. 3 also says about the hot discussion P. W. 4 found that he was in drunken state. So the materials on record support the fact that the delinquent attended casualty in drunken state and misbehaved with Dr. Mrs. N. Kohili. So the finding of the Enquiry Officer cannot be said to be perverse and not supported by the evidence. The finding of the Divisional Security Commissioner to the effect that the prosecution witnesses had de jure established the charge against the delinquent is also justified. In the case reported in AIR 1997 Supreme court at page 1030 it has been held that the High Court in cases of departmental enquiries and the findings recorded therein does not exercise the powers of Appellate Court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee. It appears from the report of the Divisional Security Commissioner that the Enquiry Officer conducted the enquiry strictly following the rules and extending all reasonable opportunities to the delinquent to defend his case. The delinquent defended his case without engaging any Defence counsel. It further appears that the delinquent submitted explanation to the chargesheet to the Assistant Security Commissioner, Shalimar on 22. 4. 88. Since the representation was not convincing and departmental enquiry was required so, the Assistant Security Commissioner, Shalimar nominated I. P. F. , B. N. Ghosh to conduct enquiry and submit his finding. It further appears that the delinquent submitted explanation to the chargesheet to the Assistant Security Commissioner, Shalimar on 22. 4. 88. Since the representation was not convincing and departmental enquiry was required so, the Assistant Security Commissioner, Shalimar nominated I. P. F. , B. N. Ghosh to conduct enquiry and submit his finding. In his affidavit-in-reply (page 81 of the paper book) to affidavit-in-opposition submitted by the writ petitioner the writ petitioner admitted that the documents on the basis on which prosecution had to rely were supplied to him. It appears from the report of the Enquiry Officer that the delinquent did not engage any Defence Counsel and he himself defended his case. It cannot be said that the appellant did not get any opportunity of hearing or the domestic enquiry was made offending the principles of natural justice and also in denial of reasonable opportunity. It cannot be said that the findings are based on no evidence. So finding of guilt of the appellant is justified. It is submitted by the appellant in his affidavit-in-reply (at page 81 of the paper book) that the Assistant Security Commissioner is the disciplinary authority. He has of course stated that he was not given the coy of the finding to the disciplinary authority but Annexure-'e' (page 40 of the paper book) shows that the appellant replied to the chargesheet issued against him. The memorandum dated 25. 7. 89 of the Assistant Security Commissioner (page 51 of the paper book) shows that the copy of the report of the Enquiry officer was given to the appellant. It appears from the report of Divisional security Commissioner, Kharagpore (at page 53 of the paper book) that the assistant Security Commissioner agreed to the finding of the Enquiry Officer and held the delinquent guilty to the charges. The entire proceeding case filed along with the findings of the Enquiry Officer was forwarded by Assistant , security Commissioner to him since as per schedule of power he was not empowered to award deterrent in punishment in conformity with the gravity of the misconduct committed by the delinquent. So, the Assistant Security commissioner referred the matter to the Divisional Security Commissioner as he was not empowered to inflict the deterring punishment. As per schedule-II he had no power of dismissal. So, the Assistant Security commissioner referred the matter to the Divisional Security Commissioner as he was not empowered to inflict the deterring punishment. As per schedule-II he had no power of dismissal. So, the reference of the matter to the Divisional Security Commissioner who was got the power of dismissal, removal, and compulsory retirement cannot be said to be illegal. The delinquent appellant is entitled to the copy of report of the Enquiry Officer. It is already observed that the same was forwarded to him. He was also given the show-cause notice proposing imposition of penalty of removal from service. The copy of the letter of the Divisional Security Commissioner, rpf (at page 60 of the paper book) shows that show-cause notice was acknowledged by the appellant on 16. 8. 89 but he did not submit any reply to the show-cause notice and Divisional Security Commissioner decided that his guilt of the charge of gross indiscipline as detailed in chargesheet was proved and he will be removed from service as a disciplinary measure and same will take immediate effect. ( 15 ) WITH regard to the contention of the appellant that the proceeding was vitiated by the irregularity since it was not conducted under the new rules. We are of the opinion that the new rule had no application in the instant case and respondent authority rightly applied old rules to conduct the disciplinary proceeding. The incident occurred on December 1, 1987 whereas the new rules of 1987 came into force on December 3, 1987. Under rule 280. 2 of the old rules of 1987. The old rules was made applicable in respect of the cases initiated under the old rules where there was no inconsistency. In the instant case, the incident occurred on December 1, 1987 when the old rules was prevalent. The authority initiated proceeding under the old rules. Under the old rules the disciplinary authority was empowered to refer its proposal for inflicting major punishment to the superior authority. New rules was obliged to recommend major punishment with the approval of his superior authority in case he was otherwise not entitled to impose such punishment whereas such Rule was absent in old rules of 1959. In the instant case, the Assistant Security Commissioner suggested major punishment and recommended the same to the superior authority for his approval. New rules was obliged to recommend major punishment with the approval of his superior authority in case he was otherwise not entitled to impose such punishment whereas such Rule was absent in old rules of 1959. In the instant case, the Assistant Security Commissioner suggested major punishment and recommended the same to the superior authority for his approval. We do not find any inconsistency or irregularity on that score. Hence, such contention of the appellant being devoid of merit is directed. ( 16 ) NOW the question is whether the punishment is totally disproportionate to the proved misconduct of the appellant. Admittedly, the appellant is a member of the disciplined force. The charge of indiscipline amounting to misconduct has been proved against him. The charge is that he misbehaved with Dr. Kohili and created nuisance and he was then in drunken condition. There is no proof of past conduct or previous punishment alleged to have been inflicted upon the delinquent. There is no specific charge in the proceeding about the previous bad record or punishment. ( 17 ) LEARNED lawyer for the respondent has supported the punishment inflicted upon the appellant writ petitioner by stating that the acts of indiscipline of the appellant amount to misconduct of gravest nature and imposition of penalty of dismissal was justified and penalty of removal from service imposed upon the appellant is perfectly justified and said cannot be interfered with. Learned lawyer has placed his reliance upon the decision reported in AIR 1974 Supreme Court at page 2188 where it has been laid down that the police service is a disciplined Service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order. In the said case, the delinquent constable was found to roam in the market with service revolver in drunken condition while he was on duty. When he was sent to doctor for medical examination he abused the Medical Officer on duty. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order. In the said case, the delinquent constable was found to roam in the market with service revolver in drunken condition while he was on duty. When he was sent to doctor for medical examination he abused the Medical Officer on duty. The penalty of dismissal was imposed upon him and the Apex Court considering the facts that the delinquent resorted to drink and he was in a drunken stage while on duty and after having heavy drink he as wondering in the market with service revolver and he abused Medical Officer on duty which shows depravity or delinquency due to his drinking habit held that the same would constitute gravest misconduct warranting dismissal from service and the authorities were justified in imposing the penalty of dismissal. In the case before us the delinquent appellant was not on duty. The facts and circumstances of the case reported in the Apex Court are not similar to the facts and circumstances of this case. So relying on the said decision it cannot be said that the awarding punishment of removal from service is justified. ( 18 ) CONSIDERING the nature of the charge, the disciplinary authority should not have awarded the maximum punishment of removal from service. He should have been given the opportunity to mend himself. In other words, considering the nature of misconduct proved against the appellant he should have given lesser punishment. So we are constrained to hold that the punishment of removal from service inflicted upon the appellant is disproportionate to the proved misconduct of the appellant. So, interference in the matter of punishment inflicted upon the appellant by exercising writ jurisdiction under Article 226 of the Constitution of India is called for. It appears that the appellant has not moved the appellate authority against the order of punishment of removal from service and he has resorted to the writ jurisdiction of this Court. We think that the ends of justice is sufficiently met if the writ petitioner appellant is given opportunity to move the appropriate authority against the order of imposition of major punishment upon him. ( 19 ) UNDER the circumstances the appeal stands allowed. The judgement and order of the learned Single Judge is hereby set aside. We think that the ends of justice is sufficiently met if the writ petitioner appellant is given opportunity to move the appropriate authority against the order of imposition of major punishment upon him. ( 19 ) UNDER the circumstances the appeal stands allowed. The judgement and order of the learned Single Judge is hereby set aside. The appellant is given opportunity to move the appropriate authority within four weeks after vacation for revision of the order of punishment of removal from service imposed upon him. On such application being filed before the appropriate authority for revision of the order of punishment the appropriate authority shall dispose of the said petition of the appellant according to law and in the light of the observations made by us in the judgement regarding punishment within six weeks thereafter. We make no order as to costs. Appeal allowed.