Calcutta High Court (Appellete Side)
Ran Vijai Yadav vs Union Of India & Ors on 28 March, 2014
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
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56 28.03.2014
W.P. 8927 (W) of 2014
gd
Ran Vijai Yadav
Vs.
Union of India & Ors.
Mr. Achin Kumar Majumdar
Ms. Moupiya De
..for the Petitioner
Mr. Malay Kumar Das
Ms. Aparna Banerjee
..for Union of India
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.
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
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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.
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.
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.
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
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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 misbehviour 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."
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 inquiry
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 misbehviour 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 misbehviour.
Thus, it will be evident from the applicable rule,
that the opinion to hold an inquiry precedes the
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drawing up or service of a charge-sheet. The charge-
sheeted employee gets an opportunity to place his
version before the inquiry officer whereupon the
inquiry 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
inquiry 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.
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
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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."
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.
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
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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.
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.
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
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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.
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.
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.
There will be no order as to costs.
Urgent certified website copies of this order, if 8 applied for, be made available to the parties upon compliance of the requisite formalities.
(Sanjib Banerjee, J.)