Kerala High Court
Rajendra Kurup vs Union Of India (Uoi) on 29 September, 1999
Equivalent citations: (2000)ILLJ572KER
Author: Arijit Pasayat
Bench: Arijit Pasayat
JUDGMENT Arijit Pasayat, C.J.
1. Heard.
2. Though in the Writ Appeal several points have been urged, we do not think it necessary to go into all of them in detail, as the appeal can be disposed of on a point of law which is squarely applicable to the facts of the case.
3. Factual position, briefly stated, is as follows:- Appellant is a member of the Railway Protection Force (in short 'the R.P.F.'). At the relevant point of time, he was working at Ernakulam South Railway Station. Disciplinary proceedings were initiated against him on the charge that he had been indulging in lending money at exorbitant interest to unauthorised vendors in the Railway Station. It was also alleged that by misusing his powers as a member of R.P.F., he gained illegal gratification from unauthorised hawkers. An enquiry was conducted and the enquiry officer found the appellant to be not guilty. The disciplinary authority disagreed with the findings of the enquiry officer and held that the appellant was guilty and advised that he did not deserve to be kept in a disciplined force like R.P.F. and direction was given for his removal from service. Aggrieved by this, appellant filed an appeal before the Chief Security Commissioner of the Southern Railway. Appeal was partly allowed and order of removal was modified, and a lesser penalty of reduction in pay by one stage for two years was imposed, and a warning that he should not indulge in any such activity in future was given. Aggrieved by the said order, Original Petition was filed. Learned single Judge observed that appellant's grievance regarding non-grant of reasonable opportunity of being heard before the first order of penalty was passed was not factually correct, as the disciplinary authority gave detailed reasons and copy of the enquiry report was also served on him. The fact that appellant had been let off with a minor penalty was also taken note of, and the Original Petition was dismissed.
4. According to learned counsel for appellant, no opportunity was granted to appellant by the disciplinary authority before it arrived at its views contrary to what was expressed by the enquiring officer. Learned counsel for the respondents submitted that in terms of Rule 154 of the Railway Protection Force Rules, 1987 (in short 'the R.P.F. Rules'), there was no requirement of giving an opportunity to the affected employee before a conclusion is arrived at contrary to the view expressed by the enquiring officer.
5. In order to appreciate the rival submissions, it has to be considered whether the principles of natural justice have to be read into Rule 154 of the R.P.F. Rules. The principles of natural justice must be read into unoccupied interstices of the statute unless there is a clear mandate to the contrary. Natural justice is an inseparable ingredient of fairness and reasonableness. Even if a statute is silent and there are no positive words in the Act or Rules spelling out the need to hear the party whose rights and interests are likely to be affected, the requirement to follow the fair procedure before taking a decision must be read into the statute unless the statute provides otherwise. The concept has gained significance and shades with time. When the historic document was made at Rannymede in 1215, the first statutory recognition of this principle found its way into the "MAGNA CARTA". The classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". Later in the famous Bentley's case the principle received further affirmation when it was stated that "the laws of God and man give the party an opportunity of making his defence". In the celebrated case of Cooper v. Wandsworth Board of Works (1914) 143 E.R. 414, the principle was thus stated:-
"Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam" says God, "where art thou, has thou not eaten of the tree whereof I commanded thou that thou should not eat."
Since then the principle has been chiselled, honed and refined, enriching its content. A more illuminating statement was made in Mullock v. Aberdeen 1971(2) All E.R. 1278:
"The right of a man to be heard in his defence is the most elementary protection. Judicial treatment has added light and luminosity to the concept like polishing a diamond. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental."
6. Under the scheme of the rules governing the field, the enquiry proceedings can be conducted either by an enquiring officer or by the disciplinary authority itself. When enquiry is conducted by enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by it. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officer succeeds before the enquiry officer, he is deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. The charged officer must have an opportunity to represent to the disciplinary authority before final findings on the charges are recorded and punishment imposed. The Apex Court in Managing Director, ECIL v. B. Karunakar (1994-I-LLJ-162) (SC), dealt with this aspect. In Punjab National Bank v. Kunj Behari Misra (1998-II-LLJ-809) (SC), also similar view was expressed. In paragraph 19 it was observed as follows :--
"The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principle of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer".
7. In view of the above position of law, we remand the matter to the disciplinary authority, and the proceedings shall commence from the stage of granting opportunity to the charged officer to have his say in the matter regarding the differing view expressed by the disciplinary authority. As a consequence, the order of punishment as modified by the appellate order stands vacated. We do not think it necessary to give any opinion on merits and that would not be proper.
Writ Appeal is allowed to the extent indicated.