Patna High Court
Bhagwati Singh vs District Electric Engineer, North ... on 4 January, 1966
Equivalent citations: AIR1966PAT205, (1967)ILLJ102PAT, AIR 1966 PATNA 205, 1966 BLJR 188 (1967) 1 LABLJ 102, (1967) 1 LABLJ 102
JUDGMENT Narasimham, C.J.
1. This is an application under Articles 226 and 227 of the Constitution by an oil engine fitter of the North Eastern Railway challenging the validity of the order of the District Electrical Engineer, Muzaffarpore (Annexure J) dated the 18th May, 1961 removing him from service, and the appellate order of the Chief Electrical Engineer, Gorakhpor dated the 18th December, 1961 rejecting his appeal. In the original application dated 23-4-1962 the petitioner impleaded the District Electrical Engineer alone as the opposite party. Subsequently, by an order of this Court dated 17-7-1965 he was permitted to implead as opposite party No. 2 the Chief Electrical Engineer, Gorakhpur, because the order of removal from service passed by the original authority had merged in the order of the appellate authority. One of the constitutional questions raised by opposite party No. 2 is that on the date on which he passed the impugned order, namely, 18-12-1961, this High Court had no jurisdiction to issue a writ under Article 226 of the Constitution against an authority situated outside its territorial jurisdiction.
It is true that this power was expressly conferred by the amendment made to Article 226 of the Constitution (15th Amendment, Act 1963), but it was urged that this amendment had no retrospective effect. The reference to Full Bench was made mainly because of this constitutional question, but in our opinion, for the reasons given below, it is unnecessary to decide this question, because even if it be assumed that we have jurisdiction, this is not a fit case for us to interfere with the orders passed by opposite parties 1 and 2.
2. On 30-11-1958, the District Traffic Superintendent, Samastipur Junction, namely, Sri Teja Ram, was at Naziraganj station. While on duty at Nazirganj station (near Narkatiaganj) he found a Chulha installed in T. L. R. No. 5545 (PH-51/NKE). He questioned the petitioner Bhagwati Singh as to why the Chulha was kept there and it was alleged that when he asked him to give his name and address, the petitioner falsely gave his name as Jagdeo Singh and his designation as S. P. A. thereby concealing his identity. Subsequently, the chargeman of the Railway, Sri G. C. Mukherjee, questioned him on the subject and it was alleged that the petitioner told him that he would tell a lie and thus admit his presence in another reserved compartment with a view to save himself and the D. T. S. would not be able to harm him. On these allegations, the following three charges were framed against the petitioner.
"(i) While you were working in TLR5544 (ML-51/NKE) attached to 264DN of 30-11-1958 at Nazirganj it was found by DTS/SPJ that you had installed a Chullah for cooking your meal which is dangerous in safety point of view.
(ii) On being asked by the DTS/SPJ you gave out, your actual name and designation "Jagdeo Singh, SPA" concealing your actual name and designation.
(iii) Later on when you were asked by your Chargeman Sri G. C. Mukherjee in this connection you told him that you would tell a lie and thereby describe your presence in the other reserved compartment to save yourself and D. T. S. would not be able to harm you."
It is now stated that No. T. L. R. 5544 given in the charge is a clerical mistake for T. L. R. 5545 and the enquiring officer has pointed out in his report (Annexure F) that this clerical mistake was explained to the petitioner at the time of the Departmental enquiry and that he was not prejudiced in any way. Before commencing the enquiry, the enquiring officer by his letter dated the 5th September, 1960 (Annexure L) informed the petitioner that the enquiry would be held on 25-9-1960 and that he should bring his witnesses and defence counsel. He was further informed as follows: "If he intimates the names of his witnesses and Defence Counsel immediately to this office, this office can request the departmental officers concerned to spare them. It will, however, be his responsibility to see that his witnesses and defence counsel are present in the enquiry at the proper time. The date of enquiry will not be altered".
In reply to this letter, the petitioner by his letter (Annexure C) informed the District Electrical Engineer that he had selected Sri B. B. Banerjee (another railway employee) as his defence counsel and that he wanted to examine one Sri Ram Rekha Singh, Mechanical fitter, Narkatiaganj, as his witness. He requested the District Electrical Engineer to spare them for attending the enquiry on the 25th. The enquiry was actually held on the 25th by a committee consisting of the Assistant Electrical Engineer, Samastipur, and one Assistant Personnel Officer, Samastipur, and seven witnesses were examined. But the District Traffic Superintendent, Sri Teja Ram, on whose inspection on 30-11-1958 the charges were framed, was not examined as a witness. It is true that he is the most important witness in the case, inasmuch as he saw a Chulha in the rake in question (T. L. R. 5545) and moreover when questioned by him, the petitioner was alleged to have given his name as Jagdeo Singh. But one Sri G. C. Mukherji, who is a Charge-man of the Railway, stated that on a subsequent date he questioned the petitioner who admitted that he had given a wrong name and designation to the D. T. S. on 30-11-1958.
Thus, the Department sought to prove charge No. 2 against the petitioner not by the direct evidence of the D. T. S. but by proof of the petitioner's confession said to have been made before Sri G. C. Mukherji. This confession was supported by another witness named Sri A. C. Mandal, a Khalasi. These two witnesses were, however, examined in the presence of the petitioner who got an opportunity to cross-examine them. The committee submitted a report to the effect that charges 2 and 3 were proved on the confession made by the petitioner before the chargeman, Sri G. C. Mukherji, corroborated by the evidence of Sri A. C. Mandal, Khalasi, but that charge No. 1 was not established inasmuch as there was no evidence to show that it was the petitioner who carried the Chulha in question.
The District Electrical Engineer accepted the findings of the committee so far as the proof of charges 2 and 3 was concerned but observed that so far as charge No. 1 was concerned, it was also proved to the extent that a Chulha, was carried by the staff in the train. This view of the District Electrical Engineer is not sufficient to show that charge No. 1 was proved as against the petitioner. Hence, this charge may be completely excluded from the present discussion. It was then tentatively decided to remove the petitioner from service. A second notice (Annexure H) was issued on 16-1-1961. While showing cause against the second notice (Annexure I) the petitioner made a grievance of the fact that the principal witness against him, namely, Sri Teja Ram, D. T. S., was not examined and that his witness, Sri Ramrekha Singh, was also not available for examination before the committee. His explanation was not accepted, and the District Electrical Engineer by his order dated 18-5-1961 (Annexure J) removed him from service with effect from 6-3-1961 from which date the petitioner was treated as absent unauthorisedly. The appeal to the Chief Electrical Engineer also failed as already stated.
3. Mr. Ghosh for the petitioner has contended that as all the charges were based on the personal inspection made by the D. T. S. on 30-11-1958 and his talks with the petitioner on the date, he was the most important witness in the enquiry, and as he was withheld from the witness box, it must be held that there was no evidence to substantiate the charges. Mr. Ghosh is undoubtedly right in saying that the most important witness in this case is the D. T. S., Sri Teja Ram. It was he who noticed the Chulha in the rake in question and it was to him that the petitioner was alleged to have given a false name and false designation. He should not have been withheld from the witness box during the Departmental enquiry except for grave and compelling reasons.
But it is well settled that in exercise of its jurisdiction, under Article 226 of the Constitution this Court cannot sit as an appellate Court (see State of Madras v. G. Sundaram, AIR 1965 SC 1103 and the previous decisions cited therein). Even if the best evidence is withheld in a Departmental enquiry, if there is some evidence which can justify the finding, this Court's jurisdiction to interfere under Article 226 of the Constitution is taken away. Confession is always considered legal evidence against a person, and to prove charges 2 and 3 the authorities seem to have relied solely on the confession alleged to have been made by the petitioner before the chargeman, Sri G. C. Mukherji, in the presence of one Sri A. C. Mandal, a railway Khalasi. Both these witnesses were examined in the presence of the petitioner and he was given ample opportunity to cross examine them. Therefore, the rules of natural justice were followed when the enquiry committee allowed the evidence of the confession of the petitioner to be brought on record. So long as there is some evidence, however meagre it may be, to support the findings of the Departmental Authorities, it will not be proper for this Court to set aside those findings on the ground that the best evidence was not adduced.
4. It was then urged that in the report of the enquiry committee (Annexure F) it was stated that the petitioner himself stated in his evidence that he admitted having given a false name and designation to the D. T. S. This statement was said to be a serious error of record and it was urged that the petitioner never made such an admission before the committee. But the report of the committee shows that their finding as regards the guilt of the petitioner in respect of charges 2 and 3 was based on the evidence of the chargeman, Sri G. C. Mukherji, and the khalasi, Sri A. C. Mandal. Hence, even if the committee committed an error of record in staling that the petitioner also admitted having given a false name and designation, it will not justify our interference.
5. Mr. Ghosh then contended that the rules of natural justice were not followed by the committee inasmuch as the petitioner's witness, Sri Ramrekha Singh, was not produced for examination. It is true that the petitioner had informed the committee prior to the commencement of the enquiry that Sri Ramrekha Singh would be his witness. But the extract from Annexure L quoted above will show that though the committee assured the petitioner that the departmental officers would be requested to spare the services of his witnesses, nevertheless the responsibility for producing the witnesses at the enquiry was on the petitioner. The enquiry committee cannot obviously compel Sri Ramrekha Singh to appear as a witness, if he is not inclined to appear. It was not alleged by the petitioner on any occasion that Sri Ramrekha Singh was deliberately prevented from attending the enquiry by refusal of permission or otherwise.
On the other hand, in the affidavit filed by Sri R. K. Kapoor it is stated that during the departmental enquiry the petitioner did not make a grievance of the fact that his witness, Sri Ramrekha Singh, was not present, nor did he ask for an adjournment with a view to examine him. In the appeal petition filed by the petitioner before the Chief Electrical Engineer (Annexure 1-1) also he never made a grievance of the fact that he was prejudiced in his defence due to the non-examination of Sri Ramrekha Singh. I must, therefore, hold that the Railway Authorities were not to blame if Sri Ramrekha Singh was not available to be examined as the petitioner's witness during the departmental enquiry.
6. It was also urged that one Sri Jugeshwar Prasad ought to have been produced for the purpose of cross-examination. But I find that this Jugeshwar Prasad was not examined as a witness against the petitioner and hence there is no question of his being produced for cross-examination by the petitioner. Moreover, in his earliest application to the District Electrical Engineer (Annexure C) he did not say that he wanted to examine Jugeshwar Prasad as his own witness.
7. I must, therefore, hold that the rules of natural justice were followed in conducting the departmental enquiry and that there was some evidence (though not the best evidence) to prove charge No. 2, which is the main charge against the petitioner, namely, the giving of false name and designation before the D. T. S. on 30-11-1958.
8. The authorities further held that charge No. 3 was also proved. It, however, appears that charge No. 3 is not an independent charge but merely a description of the nature of the evidence required to prove charge No. 2. The language of charge No. 3 is also not happy. It may be construed to mean that the departmental authorities were of the view that not only had the petitioner given a false name and designation to the D. T. S. on 30-11-1958 but that he persisted in his falsehood when questioned later on by the chargeman, Sri G. C. Mukherji, and stated that he would tell a lie with a view to prevent the D. T. S. from harming him. Whether this statement means his intention to give falsehood in future, or else whether it is merely evidence of the confession by the petitioner is not very clear from the language of the charge.
But I do not think anything turns on this ambiguity. The main charge is charge No. 2. and as pointed out by their Lordships of the Supreme Court in State of Orissa v. Bidyabhushan Mohapatra, AIR 1963 SC 779, this Court cannot interfere under Article 226 even if some of the charges fail because the order of dismissal "may be supported on any finding as to substantial misdemeanour for which a punishment can lawfully be imposed". It is open to the Railway Authorities to hold that the giving of false name and designation by a member of the staff of the Railway before his superior is a serious offence which justifies removal from service. I am, therefore, of opinion that it is academic to consider the true import of charge No. 3.
9. Mr. Ghosh then urged that the order of the appellate authority communicated to the petitioner (Annexure K) was extremely cryptic and that it did not indicate that the appellate authority gave due consideration to the various matters which it is required to consider by Rule 1731(2) of the Railway Establishment Code, Volume I, which is as follows:
"(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 1707, the appellate authority shall consider-
(a) whether the procedure prescribed in these rules has been complied with, and, if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice;
(b) whether the findings are justified, and
(c) whether the penalty imposed is excessive, adequate or inadequate and after consultation with the commission, if such consultation is necessary in the case, pass orders,
(i) setting aside, reducing, confirming or enhancing the penalty, or
(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;
Provided that-
(i) the appellate authority shall not impose any enhanced penalty which neither suck authority nor the authority which made the order appealed against is competent in the case to impose;
(ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty, and
(iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in Clauses (iv) to (vii) of Sub-rule (1) of Rule 1707 and an inquiry under Rule 1708 has not already been held in the case, the appellate authority shall, subject to the provisions of Rule 1719, itself hold such enquiry or direct that such enquiry be held and, thereafter, on consideration of the proceedings of such inquiry and after giving the appellant an opportunity of making any representation which he may wish to make against such penalty, pass such orders as it may deem fit."
10. There is undoubtedly considerable force in the contention of Mr. Ghosh. The order of the appellate authority as communicated to the petitioner is as follows:
"Reference your appeal dated 8-8-1961 addressed to C.E.E./G.K.P. against the order of removal.
C.E.E./G.K.P. has considered your above appeal and has ordered that the penalty imposed to you should stand."
The reasons for dismissal of the appeal are not disclosed. Mr. Ghosh produced before us a booklet named Discipline and Appeal Rules for non-gazetted railway servants published by the Eastern Railway which shows that the Railway Board has also issued instructions to the authorities concerned to see that "in every case the order passed in appeal and given to the appellant should be of such a character as to indicate that the grounds of his appeal have been understood and that an independent judgment has been brought to bear on the merits of the case."
11. But the question arises whether this is a sufficient ground for us to interfere now. In the application under Articles 226 and 227 of the Constitution the petitioner did not make a grievance of this omission. On the other hand, the Chief Electrical Engineer, Gorakhpur, in his affidavit before us has stated as follows:
"That I had dealt with the appeal preferred to me by the petitioner on 18-12-1961 and after carefully going through all the relevant papers on the subject including the charge sheet, the show cause petition of the petitioner, the report and the findings of the Enquiry committee and the statements of witnesses recorded by the said committee the notice of proposed penalty served upon the petitioner, the notice of removal dated 19-5-1961 and his memo of appeal addressed to me and after giving full consideration and applying my mind to them, I came to the conclusion that all reasonable facilities and opportunities were given to the petitioner and he had not been prejudiced in any way in this case and that he was rightly removed from service with effect from 6-3-1961 by the District Electrical Engineer by his order dated 18-5-1961 and in that view of the matter, I confirmed the said order of the District Electrical Engineer, North Eastern Railway, Muzaffarpur."
This statement in the affidavit of the Chief Electrical Engineer has not been properly challenged in the counter-affidavit filed by the petitioner on 24-8-1965 which is as follows:
"That paragraph 3 of the said copy is not complete and the deponent could not understand the meaning and sense thereof and is not in a position to reply to the same."
I, therefore, see no reason to disbelieve the affidavit of Shri C. L. Pasricha, Chief Electrical Engineer, Gorakhpur, to the effect that the various factors which are required to be taken into consideration by Rule 1731(2) of the Railway Establishment Code were fully considered before dismissing the appeal.
12. Mr. Ghosh cited before us the cases of Pashupati Banerjee v. Deputy Chief Engineer (North), North East Frontier Railway, AIR 1960 Assam 51 and S. P. Goswami v. General Manager, South Eastern Railway, AIR 1965 Cal 557 where cryptic orders passed by appellate authorities in contravention of the rules which require due consideration of various matters were held to be bad. The distinguishing feature between these cases and the present case is that here an affidavit has been filed by the appellate authority (which has not been properly challenged) which removes the defect.
13. For these reasons, I see no ground for interference by this Court. The application is dismissed, but in the circumstances without costs.
U.N. Sinha, J.
14. I agree.
S.N.P. Singh, J.
15. I agree.