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Madhya Pradesh High Court · body

2011 DIGILAW 1144 (MP)

Suresh Chand Upadhyay v. Union of India

2011-09-29

SUJOY PAUL

body2011
ORDER 1. The brief facts necessary for adjudication of this matter are as under: The petitioner who was a Constable in Railway Protection Force was subjected to disciplinary proceedings pursuant to the issuance of charge-sheet (Annexure P-1) dated 9.2.1993. The said charge-sheet was followed by departmental enquiry. After the enquiry a punishment of removal from service was inflicted on the petitioner by order dated 25.2.1994. The petitioner feeling aggrieved by the aforesaid punishment order, preferred an appeal before the statutory appellate authority. However, the said appellate authority did not decide the appeal preferred by the petitioner. At this stage, petitioner filed a writ petition before the Allahabad High Court. The Allahabad High Court passed the order in Writ Petition No.14226/94 on 25.1.2005 (page 77). A perusal of the order of the High Court shows that this was an admitted position between the parties that enquiry officer’s report was not supplied to the petitioner before imposition of punishment of removal. However, the High Court did not deal with the merits of the matter and relegated the petitioner to avail statutory remedy of revision by preferring a revision petition before the revisional authority. In turn, the revisional authority was directed to decide the revision expeditiously. 2. In turn, the petitioner preferred a revision petition Annexure P-10. The said revision is decided by the competent authority on 6.1.2006. The revisional order reads as under : “I have carefully considered the revision petition submitted by Shri Suresh Chandra Upadhyay, Ex-CT/RPF along with all the relevant documents. I find that the charges are of very serious nature. We cannot permit the officers and men of this force to indulge in corrupt practices. The men in uniform cannot take advantage of their position to fleece innocent passengers. I find no merit in the petition and there is no ground to interfere with the orders issued earlier. Hence the petition, which is devoid of any merit, is rejected.” 3. The learned counsel for the petitioner submits that the revisional order issued by the Railway Board is served on the petitioner at Gwalior. The petitioner has assailed the punishment order on following grounds : (i) The charge-sheet given to the petitioner in English contains different names of the passengers/complainants qua the names mentioned in the Hindi version of the same charge-sheet. The petitioner has assailed the punishment order on following grounds : (i) The charge-sheet given to the petitioner in English contains different names of the passengers/complainants qua the names mentioned in the Hindi version of the same charge-sheet. (ii) By an executive instruction dated 7.5.1992 the respondent department decided to follow the judgment of Supreme Court in Ramzan Khan’s case and, therefore, before punishment the enquiry officer’s report ought to have been given to the petitioner. (iii) The enquiry officer’s report has not been served to the petitioner before imposition of punishment of removal. Thus, it runs contrary to the judgment of the Supreme Court reported in AIR 1991 SC 471 (Union of India v. Mohd. Ramzan Khan), and vitiates the enquiry. (iv) The witnesses and documents desired by the petitioner were not summoned and provided. (v) The enquiry officer’s findings are perverse and it is a case of no evidence. (vi) Material witnesses were not examined in the departmental enquiry. (vii) The revisional order is cryptic and non-speaking order, which does not contain any reason. The punishment is expressively harsh and disproportionate. 4. Shri Bharadwaj, learned senior counsel with Shri Raja Sharma, per contra submits that the disciplinary proceedings are governed by the statutory rules which are known as the Railway Protection Force Rules, 1987 (hereinafter referred to as the ‘RPF Rules’). By taking the Court to various provisions of the rules, the learned senior counsel submits that the enquiry is conducted strictly in consonance with the aforesaid rules. The learned counsel heavily relied on rule 154.2 of the RPF Rules, which reads as under : “154.2 While communicating the order imposing the punishment, a copy of the findings of the enquiry officer shall also be given to the party charged.” By placing reliance on this rule, the submission of the learned senior counsel is that the rule mandates that the enquiry officer’s report is required to be served along with the punishment order. In absence of any challenge to the rules, the enquiry was conducted in accordance with rules and the aforesaid judgment in Ramzan Khan’s case has no application because of specific rule on the subject. 5. The learned counsel further submits that there may be some spelling discrepancy in the names of the complainants in the English and Hindi charge-sheet. In absence of any challenge to the rules, the enquiry was conducted in accordance with rules and the aforesaid judgment in Ramzan Khan’s case has no application because of specific rule on the subject. 5. The learned counsel further submits that there may be some spelling discrepancy in the names of the complainants in the English and Hindi charge-sheet. Petitioner’s contention that he does not understand English is an incorrect stand because the revision petition preferred by the petitioner is in English. The learned counsel further submits that no prejudice is caused to the petitioner in the matter of conducting departmental enquiry. 6. In nutshell, the learned counsel submits that the petitioner was a member of a discipline protection force and a higher degree of discipline is expected from the members of the discipline force. By no stretch of imagination, it can be said that the punishment is disproportionate to the conduct of the petitioner. He further submits that it is practically impossible to secure presence of the complainants in the enquiry because in running train persons used to prefer genuine complaints, but at later point of time, it is difficult to secure their presence because they reside in different places than the place where enquiry is being conducted. He submits that if there is some evidence, that is sufficient to hold a person guilty in a domestic enquiry. In rejoinder submission, the learned counsel for petitioner submits that he is not pressing the relief with regard to challenge of constitutional validity of rules. 7. I have heard the learned counsel for the parties at length and perused the record. 8. The allegation mentioned in the charge-sheet is as under : “Charge : On 16.1.1993 when Constable No.1183 Suresh Chandra Upadhyay was detained for ACP duty on train on 2137 DN took illegal money from two passengers while returning on duty for ACP towards NDLS.” The allegation against the petitioner amounts to illegally extracting money or taking bribe. In this factual background, it is required to be seen whether procedural part of the enquiry is proper or not. The prosecution is able to establish its case to the hilt and if yes, whether punishment is proportionate or not. However, I will deal these issues according to points. Point No. (i) : 9. In this factual background, it is required to be seen whether procedural part of the enquiry is proper or not. The prosecution is able to establish its case to the hilt and if yes, whether punishment is proportionate or not. However, I will deal these issues according to points. Point No. (i) : 9. No doubt that there is a discrepancy in the spelling of names of witnesses between English and Hindi version of charge-sheet. However, it is clear that the petitioner had preferred a revision petition in English. The presumption is that he knows at least that much English which was sufficient to understand the averments of the charge-sheet in English. The petitioner was unable to show as to how prejudice is caused to him because of aforesaid discrepancy which is minor in nature. Accordingly, this point cannot be accepted and is hereby rejected. Points No. (ii) and (iii) : 10. These points are inter-connected. It is true that the apex Court in Mohd. Ramzan’s case (supra), held that the enquiry officer’s report should be supplied to the delinquent employee and he be given an opportunity to represent against it before the disciplinary authority. It is also stated that the department issued an executive instruction dated 7.5.1992 with an intention to follow this judgment. The question is, what is the effect of non-supply of enquiry officer’s report before imposition of punishment. True it is that the Statutory Rule 154.2 of the RPF Rules permits supply of enquiry officer’s report along with punishment order and not before it. However, the issue is little different. Assuming that enquiry officer’s report was required to be supplied and yet not supplied before punishment, mere non-supply will not automatically render the punishment order as illegal. Ramzan’s case (supra), was further considered by a Five Judges (Constitution) Bench of Supreme Court in (1993)4 SCC 727 (Managing Director, ECIL, Hyderabad v. B. Karunakar), and the apex Court held as under : “Hence, in all cases where the enquiry officer’s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts.” 11. This view is consistently followed by Supreme Court till date.Thus, mere non-supply will not render the enquiry as illegal as a thumb-rule. In the present case, the enquiry officer’s report was supplied to the petitioner with punishment order. The petitioner has not advanced any argument to show as to how non-supply has caused prejudice to him. Accordingly, I am unable to hold that non-supply of enquiry officer’s report has any such impact or will render the punishment order as illegal. Thus, these points deserve rejection. Point No. (iv) : 12. Learned counsel for the petitioner submits that certain documents were demanded by him which were not provided to him in the enquiry. He further submits that certain witnesses should have been summoned by the enquiry officer which has not been done. He relied on (2009)2 SCC 541 (Union of India v. Prakash Kumar Tandon). Although the petitioner has specifically argued on this issue, the law on this issue is well settled. Mere non-supply of documents or non-summoning of witness will not render the domestic enquiry as illegal automatically. The delinquent employee has to show and establish the prejudice caused to him because of alleged non-supply of documents and non-summoning of witnesses. Learned counsel for the petitioner has not argued as to how the aforesaid has caused prejudice to the petitioner. The apex Court in (2005)8 SCC 211 (U.P. State Textile Corporation Ltd. v. P.C. Chaturvedi), and in a recent judgment reported in (2011)2 SCC 316 (State Bank of India v. Bidyut Kumar Mitra), held that mere non-supply of documents in absence of prejudice will not vitiate the departmental enquiry (para 10). In the light of aforesaid analysis, this point is also decided against the petitioner. Points No. (v and vi) : 13. These points are inter-related. Admittedly, the complainants were not produced in the departmental enquiry. There was no eye-witness to the incident of extracting money/taking bribe. In the light of aforesaid analysis, this point is also decided against the petitioner. Points No. (v and vi) : 13. These points are inter-related. Admittedly, the complainants were not produced in the departmental enquiry. There was no eye-witness to the incident of extracting money/taking bribe. The enquiry officer has given following finding : “That there was no eye-witness or any direct evidence or evidence except the statements of PW6, PW7 and PW8, from the evidence in forgoing paragraphs, it is well established that the delinquent Constable failed to perform his duties properly and he illegally extracted money from the two passengers under threat.” In view of this finding, there is no manner of doubt that neither the complainants/two passengers nor any other eye-witness entered the witness box in the domestic enquiry. 14. The apex Court in (2006)12 SCC 321 (Ritesh Chakarvarti v. State of M.P.), held that non-examination of material witnesses vitiates the enquiry. The apex Court in the case of Union of India v. Gyan Chand Chattar [ (2009)12 SCC 78 ], held that when a serious charge like bribery is made, it should be specific, definite and detailed. It cannot be based on hearsay statement. It is further held as under : “In a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeing in mind that it has both civil and criminal consequences. Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer the severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities.” (Emphasis added) 15. In the present case also the charge is of extracting money from two passengers. The punishment inflicted is also removal from service. In such a case applying the principle laid down in Gyan Chand Chattar’s case (supra), it is required to be seen whether the charge is proved to the hilt. This is also settled in law that even in domestic enquiries suspicion cannot take the place of proof however strong it may be. The punishment inflicted is also removal from service. In such a case applying the principle laid down in Gyan Chand Chattar’s case (supra), it is required to be seen whether the charge is proved to the hilt. This is also settled in law that even in domestic enquiries suspicion cannot take the place of proof however strong it may be. In catena of judgments the Supreme Court has consistently taken this view that suspicion cannot take the place of proof in departmental enquiries. In AIR 1964 SC 364 (Union of India v. H.C. Goel), followed by this Court in 2002(4) MPHT 418 (Union of India v. V.K. Girdonia), it is held that mere suspicion is not sufficient to crucify a delinquent employee. In (2009)2 SCC 570 (Roop Singh Negi v. Punjab National Bank), the apex Court took the same view. 16. In the light of aforesaid legal position, the question is whether the petitioner can be said to be guilty and charges can be said to be proved against him. Admitted position between the parties is that material witnesses and complainants did not enter the witness box. The charge is said to be proved by producing certain other RPF Staff as prosecution witnesses. A bare perusal of the enquiry report shows that none of the prosecution witnesses had seen the alleged transaction/extraction of money by the petitioner nor they were present at the time of incident. The charge is said to be proved on the basis of written complaints and the statements of prosecution witnesses who deposed that the said money was subsequently refunded by the petitioner later on in GRP Thana to the complainants. Thus, on the basis of this deposition that since money was refunded, a presumption is drawn that it must have been taken. Whether this proves the allegation against the petitioner to the hilt, is a million-dollar question. The apex Court in a recent judgment reported in (2011)6 SCC 376 (Commissioner of Police Delhi v. Jai Bhagwan), held as under : “Although there is some evidence that an amount of Rs.100/- was returned by the respondent to the complainant but there is no such direct and reliable evidence produced by the appellants in the departmental proceedings which could clearly prove and establish that the respondent demanded and received an illegal gratification of the said denomination. It seems that the proof of taking such illegal gratification has been drawn from the evidence of returning of Rs.100/ to the complainant by way of a link-up. Non-examination of the complainant during the departmental proceeding has denied the respondent of his right of cross-examination and thus caused violation of rule 16(iii) of the Delhi Police (F&A) Rules, 1980. In the absence of such a definite/clear proof supporting the case of the appellants it is difficult to draw a finding of taking illegal gratification by the respondent from the complainant. Therefore, as rightly held by the High Court the present case is a case of no evidence. Albeit there could be a needle of suspicion pointed towards the respondent. However, suspicion cannot take the place of proof.” 17. There is a unique similarity to a great extent between the case in hand and that of Jai Bhagwan (supra). In Jai Bhagwan’s case also there was no proof of taking bribe nor complainants were examined in the departmental proceedings. In absence thereof, on the basis of returning of that amount to the complainants it was held to be sufficient proof against the delinquent employee. Same is the case here. The apex Court in the said case held that it is a case of no evidence. However, by analyzing the entire factual backdrop, the apex Court held that needle of suspicion is against the delinquent employee. Since suspicion cannot take the place of the proof, the finding and punishment was although set aside no back wages were granted to the employee. 18. Following the ratio of this judgment, this Court is of the considered opinion that in the present case also the findings of enquiry officer are perverse and the charges are not established. It is a case of no evidence. However, in the present case also needle of suspicion points towards the petitioner. Accordingly, the petitioner is not entitled for any back wages. Point No. (vii) : 19. The next contention is that the punishment order and the revisional order are non-speaking. This is an admitted position that the appellate authority has not chosen to decide the appeal of the petitioner. The disciplinary authority has merely accepted the enquiry officer’s report and issued the punishment order. The revising authority has affirmed the same. 20. The next contention is that the punishment order and the revisional order are non-speaking. This is an admitted position that the appellate authority has not chosen to decide the appeal of the petitioner. The disciplinary authority has merely accepted the enquiry officer’s report and issued the punishment order. The revising authority has affirmed the same. 20. It is relevant to notice here that petitioner’s revision petition is a detailed petition pregnant with factualbackdrop as well as legal grounds. No reasons are assigned by the revisional authority as to why the petitioner’s defence is not found to be trustworthy. I have no hesitation to hold that the revisional order dated 6.1.2006 is against the principles of natural justice and is a cryptic order passed without application of mind. The apex Court in (2009)2 SCC 570 (Roop Singh Negi v. Punjab National Bank), emphasized the need of passing reasoned order by the statutory authorities. Thus, the revisional order being non-speaking deserves to be set aside by this Court. 21. In view of aforesaid analysis, this Court has no hitch to hold that the charges against the petitioner could not be proved to the hilt. Accordingly, the punishment order and revisional order are set aside. The petitioner shall be re-instated within two months. However, he shall not be entitled for the back wages. Petitioner shall be entitled to count his services for all other purposes except back wages. 22. Petition is allowed to the extent indicated above. No costs. .............