Gujarat High Court
Shankerlal Kanaiyalal Narwele vs Divisional Security Commissioner on 1 February, 2001
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari, P.B. Majmudar
JUDGMENT D.M. Dharmadhikari, C.J.
1. This LPA has been preferred against the order of the learned Single Judge dated 10.1.2000 whereby SCA No. 447 of 1990 filed by the appellant against the order dated 4.7.1988 dismissing him from service as a constable of railway protection force has been dismissed.
2. The impugned order of dismissal dated 4.7.1988 states the grounds on which services of the petitioner were dismissed. It is stated, while working as constable at Pratapnagar, he failed to maintain absolute integrity and code of conduct, in that, he aided and abetted in the commission of offence of theft of railway material valued at Rs.14,438/- from railway store, Pratapnagar on the night of 20/21-6-1988 as reported vide IPF Pratapnagar's special report No.2/88. In the said report, it has been stated that on search the stolen property was brought back by him from the receiver's shop and handed over to head constable Anil Damore of Pratapnagar at about 0430 hrs. on 24.6.1988. The impugned order states that the petitioner had admitted that he went back to the receiver's shop where he had kept his cycle.
3. It is further stated in the impugned order that the petitioner subsequently gave a confessional statement on 29.6.1988 in the presence of Assistant Security Commissioner, Baroda, another inspector, HQ Baroda and inspector `R' Coy, Baroda. It is alleged that he confessed the fact of having gone to the shop of the receiver of the stolen property and after bringing it back handing over the same to the head constable Anil Damore and thereafter leaving the place for his residence after taking his cycle from the receiver's shop. On personal interrogation on 30.6.1988, the petitioner is alleged to have admitted his guilt.
4. On the above confessional statement and conduct of the petitioner, by the impugned order, the disciplinary authority i.e. the Divisional Security Commissioner held the petitioner guilty of the charge of aiding and abetting in the commission of offence of theft of the railway material.
5. The disciplinary authority dispensed with holding of regular inquiry on two grounds, firstly that it is not `reasonably practicable to hold the inquiry' and secondly, it is not `necessary to hold regular inquiry' in view of the confession of guilt by the petitioner. The exact language used in recording satisfaction for dispensing with the inquiry by the disciplinary authority deserves to be noted:
"In view of the prevailing circumstances and facts of the case, I am satisfied that `it is not reasonably practicable nor it is necessary to hold a regular inquiry as provided under Rule 153 of RPF Rules, 1987, as the guilt has been admitted by the delinquent at his own volition and no witnesses are required to be examined in this case."
(underlining for supplying emphasis).
6. The last operative portion of the impugned order of dismissal states:
"Now, therefore, in exercise of the powers vested in me under Rule 161 (ii) of the RPF Rules, 1987 read with Article 311(3) of the Constitution of India, I, as the appointing authority, have decided to dispense with the formality of regular inquiry and do hereby dismiss the said Shankerlal Kanaiyalal, BRE 2933, constable of Pratapnagar from service with immediate effect".
7. Against the order of dismissal dated 4.7.1988, the petitioner preferred an appeal to the Deputy Chief Security Commissioner, Baroda by memorandum of appeal dated 1.8.1988. In the memorandum of appeal, the petitioner stated that in connection with the alleged offence of theft, the Assistant Security Commissioner, Baroda detained the petitioner for the whole night on 29.6.1988 and by threatening, beating and pressurising him, obtained his signature on the paper written in English. It is alleged that when the petitioner demanded that he may be explained in Hindi what he was made to sign, he was warned that he would be removed from service and would be handed over to the police. He was pressurised to sign the paper if he wanted to continue in service. In the circumstances, the petitioner signed the papers. According to the petitioner, he was totally innocent and was falsely implicated with others in the alleged crime. It is stated that he was arrested and a criminal case was instituted against him. Along with the petition, the petitioner has filed English translation of the copy of the judgment of the criminal court i.e. Judicial Magistrate, First class, Baroda dated 28.3.1989 in which the petitioner has been acquitted of the charges under sections 454, 457, 380 and 114 of the Indian Penal Code in connection with same alleged offence of aiding and abetting in the theft of railway property.
8. The appellate authority rejected the contention of the petitioner that he was pressurised to give confessional statement in writing and orally. His appeal was, therefore, dismissed on 10.2.1989.
9. The learned Single Judge by the impugned judgment dated 10.1.2000 maintained the action of the disciplinary authority and the appellate authority and dismissed the writ petition of the petitioner.
10. The learned counsel Mr. H.C. Raval for the petitioner submits that merely because the petitioner is alleged to have confessed his misconduct, disciplinary inquiry could not have been dispensed with. The petitioner, at the earliest opportunity before the appellate authority submitted that the confessional statement was taken from him under duress and coercion. It is submitted that such alleged confessional statement in writing and orally was only a piece of evidence against the petitioner which he would have been able to meet only if a regular inquiry was held. It is contended that dispensation of inquiry cannot be lightly made and whether dispensation of inquiry was good or bad, is subject matter open to judicial review. This court should, therefore, hold that dispensation of inquiry was wholly unwarranted, and set aside the impugned order of dismissal. Strong reliance has been placed on the constitution bench decision of the Supreme court in the case of Union of India vs. Tulsi Ram Patel, AIR 1985 SC 1416 followed in the case of Jaswant Singh vs. State of Punjab, AIR 1991 SC 385. Reliance is also placed on the decision of the Single Judge of this court (Ahmadi, J. as he then was) in Ashwin Parekh vs. Union of India, 27 (1) GLR, 569.
11. We have heard Mr. J.C. Sheth ,learned counsel appearing for the respondents representing the Railway Protection Force who made some effort to support the order.
12. On perusal of the record of the case and the reasonings of the learned Single Judge, we find that the learned Single Judge has committed more than one grievous error in upholding the action of the disciplinary authority. The learned Single Judge totally lost sight of the fact that Article 311 of the Constitution of India provides procedural safeguards to a public servant against dismissal. This Article requires grant of reasonable opportunity of defence by holding an inquiry into the alleged misconduct. Clause (b) of the second proviso to Article 311(2) empowers disciplinary authority to dispense with holding of disciplinary inquiry only ` if he is satisfied, for the reasons to be recorded by him in writing, that it is not reasonably practicable to hold such inquiry'. In the constitution bench decision of the Supreme court in Tulsi Ram Patel (supra) followed subsequently in the case of Jaswant Singh (supra), the constitutional provision conferring power to the disciplinary authority to dispense with inquiry has been interpreted to determine its scope. It has been held-
"The decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."
Learned Single Judge Ahmadi, J. (as he then was ) in the case of Ashwin Parekh (supra) had before him, a case with similar facts and circumstances where a railway servant was held to have confessed his guilt. It was held that admissions or confessions made by the railway servant are merely pieces of evidence to be led in the inquiry and cannot in themselves, without holding inquiry, constitute evidentiary material to hold him guilty. Relevant observations need to be reproduced:
"This clearly shows that admissions or confessions made by the railway servant are merely pieces of evidence which can be relied upon in the course of the departmental inquiry by the presiding officer. Only when they are relied upon can the petitioner challenge them as having been obtained under duress. The petitioner would otherwise have no opportunity to point out that these statements were not voluntary and were obtained under circumstances which could be described as coercive. It is, therefore, difficult to accede to the submission of the learned counsel for the railway administration that in view of the admissions made by the petitioner in the aforesaid documents, it was not necessary for the department to go through the rigmarole of a regular departmental inquiry before terminating the service of the petitioner, a temporary railway servant. It is by now well settled that even the services of a temporary servant cannot be terminated by way of punishment for alleged misconduct unless the misconduct is established at a regular departmental inquiry held against him."
We have also looked into Rule 153 framed under the Railway Protection Force Act, 1957 which contains procedure for imposing major punishment. A look at the relevant Rule reveals that pre-charge confession or admission has no evidentiary value. It is only admission or confession made after the charge is framed which may justify dispensation of further inquiry. The following rules need to be reproduced:
"153.10 At the commencement of the inquiry, the party charged shall be asked to enter a plea of `guilty' or `not guilty' after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary. If oral-
(a) it shall be direct;
(b) it shall be recorded by the inquiry officer in the presence of the party charged; and the party charged shall be allowed to cross-examine the witness."
"153.12 All evidence shall be recorded, in the presence of the party charged by the inquiry officer himself or on his dictation by a scribe. Cross-examination by the party charged or the fact of his declining to cross-examine the witness, as the case may be, shall also be recorded. The statement of each witness shall be read over to him and explained, if necessary, in the language of the witness, whose signature shall be obtained as a token of his having understood the contents. Statement shall also be signed by the inquiry officer and the party charged. Copy of each statement shall be given to the party charged who shall acknowledge receipt on the statement of witness itself. The inquiry officer shall record a certificate of having read over the statement to witness in the presence of the party charged."
13. Ignoring the aforesaid constitutional provisions and the provisions in the rules statutorily framed for holding inquiry, it was totally unconstitutional and illegal on the part of the disciplinary authority to straightaway dismiss the petitioner on the alleged confessional statement in writing and orally made. Confessional statement in itself did not warrant dispensation of inquiry. Such confessional statement made in writing or orally could have been proved in a regularly constituted disciplinary inquiry in accordance with the RPF Rules. There is justification in the grievance raised on behalf of the petitioner that on the basis of an arbitrary order of dispensation of disciplinary inquiry, the petitioner was denied reasonable opportunity to demonstrate that confessional statements in writing and orally were obtained from him under threat and coercion. Pre-inquiry confessions or admissions can constitute an evidentiary material in themselves or with other, against the delinquent which has to be led in the course of inquiry, when set up against him in accordance with the Rules regulating it so that he gets opportunity to meet it in his defence as part of constitutional protection available to him under Article 311 of the Constitution. They cannot in themselves constitute a ground to totally dispense with inquiry.
14. The learned Single Judge committed a serious mistake in holding that disciplinary inquiry can be dispensed with both on the satisfaction recorded by the disciplinary authority that it was `impracticable to hold an inquiry' and also on the ground that `it was not necessary to hold any inquiry'. See the following observations of the learned Single Judge which prima facie are against the constitutional mandate of Article 311 and unsustainable on judicial scrutiny:
"11. It is pertinent to note that the disciplinary authority has not dispensed with the inquiry merely because it is impracticable to do so. The disciplinary inquiry has recorded a subjective satisfaction on the facts of the case that it is not necessary to hold any inquiry in view of the confessional statements of delinquent, supported by the confessional statement of co-delinquent. Thus, the aforesaid decisions would be of no assistance to learned counsel for the petitioner."
(underlining by the court).
15. Clause (b) of the second proviso to Article 311(2) of the Constitution of India permits dispensation of inquiry only where holding of inquiry is not `practicable'. The provision in the Constitution does not permit dispensation of inquiry only on the subjective satisfaction, may be based on objective material, of the disciplinary authority, that `it is not necessary to hold inquiry'. The learned Single Judge has erroneously upheld the dispensation of inquiry by the disciplinary authority both on the ground of `impracticability' of holding of inquiry and `non-existence of necessity of holding inquiry' in view of the alleged confessional statement. Dispensation of inquiry on the ground that `it is not necessary to hold inquiry' is clear denial of constitutional protection of Article 311 of the Constitution of India. Rule 161 (ii) of the aforesaid Rules is in conformity with the provisions of Article 311 of the Constitution of India and the said rule also permits dispensation of inquiry only on the ground of impracticability of holding inquiry and not on the ground of non-existence of necessity to hold inquiry. Unfortunately, the learned Single Judge failed to see this distinction in considering the power of the disciplinary authority to dispense with inquiry. `Impracticability of holding inquiry' and `want of necessity of holding inquiry' are totally different. Only the former and not the latter ground is constitutionally permitted for dispensation of inquiry. A combined ground as is taken for dispensation of inquiry by the disciplinary authority and as upheld by the appellate authority as also the learned Single Judge, therefore, cannot get our approval while exercising our power of judicial review which has been recognised by the Supreme court in the case of Tulsi Ram Patel (supra).
16. The learned Single Judge is also not right in coming to the conclusion that at the earliest opportunity, the petitioner did not retract from his confessional statement and failed to properly plead the same in the petition. What we find is that the petitioner has stated in the memorandum of appeal, itself, that he was detained in the night of the alleged incident and was handed over to the police. He preferred the appeal on 1.8.1988 in which he stated that the confessional statement was obtained from him under coercion and undue influence. Against the order of dismissal passed on 4.7.1988 which was founded on alleged confessional statement of the petitioner, the grounds urged by him in his appeal dated 1.8.1988 cannot be said to be very late to infer, as suggested that it was an afterthought on his part. So far as pleadings in the petition are concerned, the action of the disciplinary authority and appellate authority was challenged on the main ground that there was no justification to dispense with disciplinary inquiry. It was, therefore, not necessary for the petitioner again to state in the petition that his confessional statement was not voluntary and it was obtained under pressure and coercion. In any case, these were not grounds on which such constitutionally invalid action of the disciplinary authority and appellate authority could have been upheld by the learned Single Judge. On the reasonings contained in the impugned order of the learned Single Judge, such blatantly unconstitutional action cannot be sustained.
17. We, therefore, allow this LPA and set aside the impugned order of dismissal dated 4.7.1988 , the order of the appellate authority dated 10.2.1989 and the order of the learned Single Judge dated 10.1.2000.
On quashing of the aforesaid order, the next question that arises is what relief can be given to the petitioner. By setting aside of the impugned order of dismissal, the petitioner, as a consequence , is entitled to be reinstated in service with continuity and all other benefits of seniority, etc. So far as arrears of salary are concerned, it has to be assumed that in the interregnum period, the petitioner must have been making both ends meet by gainful employment or self employment. Learned counsel for the petitioner, therefore, fairly stated that question of grant of arrears of salary and its proportion is left to the discretion of the court. The conduct of the petitioner was not at all properly investigated. The action of dismissal based on alleged confessional statement suffers from serious procedural flaw as discussed above. There is much time lag between the date of dismissal in July 1988 and passing of our order in 2001. In our considered opinion, therefore, consequent upon quashing of the impugned orders, the petitioner would be entitled to be reinstated in service with continuity and benefit of seniority, etc. and other benefits naturally flowing from such reinstatement. He would, in the circumstances, be entitled only to 25% of arrears of salary between the date of the impugned dismissal from service dated 4.7.1988 and the actual date of his reinstatement on issuance of consequential orders, on the basis of the order of this court. Let orders of this court now be implemented within an outer period of three months to avoid any further grievance. In the circumstances of the case, we make no order as to costs.