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2014 DIGILAW 291 (CAL)

Ran Vijai Yadav v. Union of India

2014-03-28

SANJIB BANERJEE

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JUDGMENT : Sanjib Banerjee, J. 1. The petitioner questions the propriety of the notice issued to the petitioner for conducting an inquiry into the perceived acts of misconduct by the petitioner. The ground urged is that prior to the disciplinary authority appointing an inquiry officer, the disciplinary authority ought to form an opinion that it is necessary to conduct an inquiry into the allegation of misconduct after affording the concerned employee an opportunity to place his version. 2. The challenge in this case is on the ground that the charge-sheet is appended to the inquiry officer's invitation to the petitioner to participate in the inquiry. The petitioner contends that the inquiry officer could not have been appointed at all without the disciplinary authority forming an opinion that it was necessary to call for an inquiry. This opinion of the disciplinary authority, according to the petitioner, would per force require the petitioner's version to be obtained before it is formed and, the petitioner suggests, it is imperative that such opinion be not formed merely on the basis of complaints or other facts brought to the notice of the disciplinary authority without reference to the concerned employee. 3. In support of such contention, the petitioner relies on an order of a Division Bench of this court passed on November 17, 2008 where, relying on the Supreme Court dicta in the judgments reported at (1985) 3 SCC 398 and (2001) 2 SCC 330 , it was held that the nomination of an inquiry officer without seeking any explanation from the employee prior to the nomination being made was liable to be set aside. The petitioner says that such order has not been interfered with by the Supreme Court as the petition for special leave to appeal therefrom was dismissed on December 18, 2009. 4. Since the special leave petition was merely dismissed, it would not amount to the order of the Division Bench having been affirmed. In any event, the rules relevant for the matter are not quoted in the Division Bench order and it must be presumed that the rules required a special procedure to be followed that warranted the order being made. 5. In the present case, disciplinary proceedings and penalties are covered by Chapter XII of the Railway Protection Force Rules, 1987. In any event, the rules relevant for the matter are not quoted in the Division Bench order and it must be presumed that the rules required a special procedure to be followed that warranted the order being made. 5. In the present case, disciplinary proceedings and penalties are covered by Chapter XII of the Railway Protection Force Rules, 1987. Rule 153.4 of the said Rules provides as follows:- "153.4 Where it is proposed to hold an inquiry against an enrolled member of the Force under this rule, the disciplinary authority may order that the enrolled member shall not be transferred to any other place nor given leave without its written permission till the conclusion of the disciplinary proceedings, and the disciplinary authority shall draw up or cause to be drawn up:- (a) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge; (b) a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain:- (i) a statement of all relevant facts including any admission or confession made by the enrolled member of the Force, and (ii) a list of documents by which and a list of witnesses by whom the articles of charge are proposed to be sustained." 6. If the relevant rule is paraphrased and the unnecessary details which are irrelevant for the present purpose are discarded, the rule can be said to suggest that where it is proposed to hold an enquiry against an enrolled member of the Force under that rule, the disciplinary authority shall draw or cause to be drawn up the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge. It is not relevant, in the present context, to refer to the details that must accompany the articles of charge or the statement of the imputations of misconduct or misbehaviour. 7. Thus, it will be evident from the applicable rule, that the opinion to hold an enquiry precedes the drawing up or service of a charge-sheet. The charge- sheeted employee gets an opportunity to place his version before the enquiry officer whereupon the enquiry officer renders a report. 7. Thus, it will be evident from the applicable rule, that the opinion to hold an enquiry precedes the drawing up or service of a charge-sheet. The charge- sheeted employee gets an opportunity to place his version before the enquiry officer whereupon the enquiry officer renders a report. Such report is placed before the disciplinary authority and if the disciplinary authority wishes to reverse the finding rendered in favour of the charge-sheeted employee or if the disciplinary authority finds reason to proceed against the charge-sheeted employee on the basis of the enquiry report, an opportunity is again afforded to the charge-sheeted employee to present his version before the disciplinary authority. Disciplinary proceedings are generally conducted in two stages. In the first stage there is only a fact-finding exercise. In the second stage the charge-sheeted employee is allowed to question the findings of fact of the inquiry officer and is also permitted to argue on the quantum of punishment that may ultimately be levied. Such two- stage procedure conforms to the principles of natural justice and it is not necessary to make it a three-stage process, as the petitioner suggests, unless the rules so demand. 8. After the Forty-second Amendment to the Constitution, Article 311(2) was modified. The previous requirement, of affording an opportunity to a delinquent to make a representation against the penalty proposed, was done away with. The issue came to be considered by the Constitution Bench in the judgment reported at (1993) 4 SCC 727 (ECIL v. B. Karunakar) where the two-stage procedure in disciplinary proceedings was discussed. The Constitution Bench held that the effect of the Forty- second Amendment was only "to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered." 9. Article 311(2) of the Constitution commands that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed from service or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. 10. 10. In practice, the rule as ordained in the Constitution is followed, generally, by inviting the perceived delinquent to participate in the inquiry to be conducted by an inquiry officer and to make a representation against an adverse report of the inquiry officer, if the disciplinary authority is of the opinion that the inquiry officer's report may be acted upon. It is also possible that the inquiry report may find in favour of the employee, but the disciplinary authority may not agree with such finding and decide to proceed against the employee. It is only a prima facie opinion which is formed by the disciplinary authority if the disciplinary proceedings are to be continued against the employee, whereupon the employee is afforded an opportunity to either deal with the adverse findings against him by the inquiry officer or contest the disciplinary authority's tentative view to proceed against him despite a finding rendered in his favour in the inquiry report. 11. Notwithstanding the Forty-second Amendment deleting the previous condition in Article 311(2) of the Constitution for a delinquent to be afforded an opportunity to make a representation against the penalty proposed to be levied against such employee, in practice, the representation made by the employee before the disciplinary authority may be both on the factual aspect and the likely punishment. As long as an employee who is entitled to the protection under Article 311 of the Constitution is afforded reasonable opportunity of being heard in respect of the charges against him, the mandate of the provision is satisfied. 12. If the petitioner's argument is to be accepted, the disciplinary proceedings would have to be conducted in three stages with the employee's participation at each stage: an opinion formation stage before the inquiry officer is appointed; the inquiry stage; and, the stage before the disciplinary authority. Such three-stage procedure would not be warranted if the rules do not stipulate so. In the said Rules of 1987 governing the petitioner's case, the first stage as suggested by the petitioner is not only unnecessary, but is also not warranted as the charge-sheet is to be drawn up only after an opinion is formed to hold an inquiry against the concerned employee. 13. A point of territorial jurisdiction was sought to be taken on behalf of the respondents. 13. A point of territorial jurisdiction was sought to be taken on behalf of the respondents. The respondents sought to suggest that since all the respondents were outside the State of West Bengal, the petition should not be entertained. It is not necessary to enter into such question in greater detail since the petition is liable to be dismissed on merits. However, it may only be observed that when it is an employee fights the State, the fundamental canons of justice would demand that the forum of convenience for the employee would be the appropriate forum if an infinitesimal part of the cause of action has arisen within the jurisdiction of such forum. 14. On merits, however, the petitioner has no case. W.P. 8927 (W) of 2014 is dismissed and the petitioner is required to face the disciplinary proceedings in accordance with law. 15. There will be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.