Calcutta High Court
Sri Bishnu Prosad vs Union Of India (Uoi) And Ors. on 26 June, 1990
Equivalent citations: (1992)ILLJ458CAL
JUDGMENT Ajit Kumar Sen Gupta, J.
1. In this application under Article 226 of the Constitution petitioner has challenged the disciplinary proceedings culminated in the order of removal of the petitioner and the order of rejection of the appeal preferred by the petitioner.
2. Shortly stated, the facts are that the petitioner was appointed as Rakshak, Railway Protection Force, in the year 1956. In the year 1958, the petitioner was promoted to the post of Senior Rakshak. He was charge-sheeted in 1973 and removed from service in 1975. From the report of the R.P.F., Asansol, it appears that in respect of recovery of about 25 kgs. sugar along with empty bag and one wrapper in the receiving yard, a charge-sheet was issued to the petitioner. It appears from the report of the Enquiry Officer , as to why the said Charge-sheet was issued on March 17, 1973. He has recorded as follows:
"On receipt of the report of OC/RPF/ASN in respect of recovery of about 25 kgs. sugar along with empty Jhola and one chander in the Dn. Receiving yard in the night of February 10-11, 1973 fixing up responsibility on SR 4211 Bishnu Pd. ASO/ASN a charge sheet to the SR vide No. PF/39/73 dt. March 17, 1973 under Rule 44 on the charge framed against him as appended below:
CHARGE "For gross neglect of duty in that on February 11, 1973 while he was on seal checking duty in Dn. Receiving yard from 11 ms. 1008 co. ims he failed to detect and prevent theft of sugar weighing about 25 kgs which subsequently recovered, during his duty period. The petitioner submitted his reply on June 29, 1973 in Hindi.
Thereafter, the Enquiry Officer enquired into the said allegations made against the petitioner. The reasoning and findings of the Enquiry Officer are as follows:-
Reasons for finding:
On scrutiny of the statements of P. Ms and D.Ws and going through the available records I am convinced that the theft took place in the yard in connivance with the team of R.P.F. staff posted in the Dn. Receiving yard. The similess and ineffective round in the yard by the A.S.I. plea of checking the load by the S.R. and performance of R.K. near the bridge far from the stable wagons with available contents suspected the integrity of the staff.
Although S.I. Rajeshwar Singh after detection of the case tried to give some benefit to the accused person not preparing seizure list on the spot with the plea of not detection of victimised wagon, it is convinced that the theft took place in the yard in connivance with the A.S.I.S.R. and on duty or near Patrol. Therefore, the S.R. was responsible for theft and the charge is established."
3. Thereafter the Disciplinary authority issued a show cause notice under Rule 4(10)(2) of the Railway Protection Force Rules and recor-ded as follows: -
"Perused the findings of E.O. and find that the charge framed against S.R./Bishnu Prosad has been established during the proceeding enquiry. I do agree with E.O.'s findings and hold him guilty and consider that he is not a fit person to be retained in the Force and thus he should be removed from service. A show cause notice under rules may be issued to him accordingly."
4. The petitioner submitted his reply to the said show cause notice. By the order dated August 25, 1975 the petitioner was removed from service.
5. An appeal was preferred by the petitioner against the said order of removal before the Appeallate Authority. In the said appeal the petitioner agitated his grievances against the findings and conclusions of the Enquiry Officer. The Appellate Authority passed an order on November 25, 1975 which is to the following effect:
"I have gone through the appeal submitted by SR 4211 Bishnu Prosad Ex. Sr/CE/HWH against the order of removal from service passedby the A.S.O.(L)HWH on August 25, 1975.
I do not find any reason to alter the order passed by the A.S.O.(L)/HWH.
The appeal is therefore rejected."
6. At the hearing several contentions have been raised.
7. Firstly, it has been contended in the second show cause notice the conclusion arrived at by the Disciplinary Authority is not tentative hut final as to the guilt of the petitioner. He decided that the petitioner was not a fit person to be retained in service. This contention has some substance. I have already set out the contents of the second show cause notice. It would be evident from the said show cause notice that the Disciplinary Authority at that stage came to the finding that the petitioner "was not a fit person to be retained in service" and therefore the Disciplinary Authority proposed to impose on him the penalty of 'removal from service'. This Court in the case of Nripendra Nath v. State of West Bengal reported in 1981(1) SLR. 533 held that at the stage of second show cause notice it is obligatory on the part of the Disciplinary Authority to come to a tentative finding and not any positive finding and/or firm conclusin that the delinquent is not a fit person to be retained in service. If any such positive conclusion is arrived at that stage, it would be violative of Rule 44(1)(10) of the Railway Protection Force Rules, 1959. Accordingly the second show cause notice must be set aside and quashed and if it is quashed, the subsequent proceedings may not survive.
8. It is then contended the petitioner was charged with an offence but he was found guilty altogether on a different count. I have already set out hereinbefore the charge sheet as well as the finding of the Enquiry Officer. The charge was gross neglect of duty in as much as the petitioner failed to detect and prevent the theft of sugar weighing about 25 kgs, whereas the finding of the Enquiry Officer is that the theft took place in connivance with ASL, Senior Rak- shak and others on duty or near patrol. He con- 5 eluded that "S R was responsible for theft and the finding is".
9. It is now well-settled that the finding cannot be at variance with the charge. The petitioner was not charged with the theft, but for neglect of duty as he failed in detecting the theft, whereas the Enquiry Officer found him guilty of a new charge not levelled against him that he himself was responsible for theft. According to the Enquiry Officer such theft took place in connivance inter alia with him.
10. Accordingly the findings of the Enquiry Officer are laible to be set aside and quashed. If the findings cannot be sustained subsequent proceedings based on such findings cannot survive or be sustained.
11. The last contention is that the appellate order cannot be also sustained as it suffers several infirmities.
12. The Appellate Authority passed an order on November 25,1985 under Regulation 58 of the Railway Protection Force Rules. The said rule provides that for consideration of appeal (1) in case of an Appeal against an order of suspension the Appellate Authority shall consider whether in the light of the provisions of Rule 40 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2) in case of an appeal against an order imposing any of the penalty specified in Rule 41 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 findings are justified, and
(c) Whether the penalty imposed is excessive, adequate or inadequate; and pass orders;
The word 'consider' in Rule 56 of the Railway Protection Rules implies due application of mind. It is clear upon the term of Rule 58(2) that the Appellate Authority is required to consider (1) whether provisions laid down in the rule 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 (2) whether the findings are justified and (3) whether the penalty imposed is excessive, adequate or inadequate.
13. There is no indication in the impugned order that the appellate authority was satisfied as to whether the procedure laid down in the Rules has been complied with.
14. Reference may be made to the decision of the Supreme Court in the case of Ram Chander v. Union of India & Ors. reported in (1986-II-LLJ-334)
15. In that case the Supreme Court was considering Rules 22(2) and 18(ii) pf the Railway Servants (Discipline and Appeal) Rules, 1968. The said rules provide that the appellate authority must afford an opportunity of hearing and pass a reasoned order. The Supreme Court also construed the word 'consider' in the context. The Supreme Court observed that the right to make a representation on the proposed penalty which was to be found in Article 311(2) having been taken away by the Forty Second Amendment, there was no provision of law under which a Government servant could claim that right. The only stage at which a Government servant gets "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him", i.e. an opportunity to exonerate himself from the charge by showing that the evidence adduced at the inquiry is not worthy of credence or consideration or that the charges proved against him are not of such a character as to merit the extreme penalty of dismissal or removal or reduction in rank and that any of the lesser punishments ought to have been sufficient in his case, is at the stage of hearing of a departmental appeal. That being so, the appellate authority must not only give a hearing to the Government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. Although in the absence of a requirement in the statute or the rules, there is no duty cast on an appellate authority to give reasons where the order is one of affirmance, Rule 22(2) of the Railway Servants Rules in express terms requires the Railway Board to record its findings on the three aspects stated therein. Similar are the requirements under Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The word 'consider' has different shades of meaning and must in Rule 22(2), in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision. Reasoned decision by tribunals, such as the Railway Board in the present case, will promote public confidence in the administrative process. An objective consideration is possible only if the delinquent servant is heard and given a chance to satisfy the authority regarding the final orders that may be passed on his appeal. Considerations of fair play and justice also require that such a personal hearing should be given.
16. Reference may also made to the decision of the Supreme Court in the case of R.P. Bhat v. Union of India and Ors. . There the Supreme Court observed as follows:-
"The word 'consider' in Rule 27(2) implies 'due application of mind'. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the 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; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass order confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in Clauses (a), (b) and (c) thereof. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of Clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside."
17. There is another aspect of this matter. In the appeal the writ petitioner categorically pointed out that the Enquiry Officer without analysing the deposition of the witness and without considering the case for and against the petitioner and the issues highlighted by the petitioner in the written statement came to the conclusion that the petitioner was guilty of the charges not framed against him. This was not considered by the appellate authority at all, which has vitiated the appellate order. Reference may be made to the decision of the Supreme Court in Anil Kumar v. Presiding Officer & Ors. reported in (1986-I-LLJ-101 at 102-103), where the Supreme Court observed as follows:-
"We have extracted the charges framed against the appellant. We have also pointed out in clear terms the report of the Enquiry officer. It is well settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipso dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not creditworthy. He did not permit to peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. The enquiry report in a quasi judicial enquiry must show the reasons for the conclusion. It cannot be an ipso dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India, , this Court observed that a speaking order will at best be a reasonable and at its worst be atleast a plausible one. The public should not be deprived of this only safeguard. Similarly, in Mahabir Prasad v. State of Uttar Pradesh, , this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly discolsed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a gross case of non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court.
Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order-sheet and no correlation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable."
18. The last contention is that the order of removal having been merged with the order of the appellate authority, if the appellate order is found to be unsustainable by a law because of the infirmities and illegalities mentioned hereinbefore, in the event, the order of removal must also fail as it is merged with the appellate order. In my view, this contention has substance. The order of removal has merged with the orcder of the appellate authority dismissing the appeal. Apart from the fact that the earlier stages of proceedings including tthe findings of the Enquiry Officer and the second show cause notice are illegal which would make the subsequent proceedings also illegal and bad, because the appellate authority's order is unsustainable, the order of removal would no longer survive. Reference may be made to the decision of the Supreme Court in Tekraj v. Union of India reported in (1988-I-LLJ-341 at 355), where the Supreme Court observed as follows:
"Now that the order of dismissal is set aside and the proceedings have been restored to the stage of enquiry, the appellant shall be deemed to have been restored to service. The appellant would have become entitled to the normal relief available in such a situation. He should be deemed to be in service and we do not agree with Dr. Ananda Prokash that his suspension would continue. His suspension which had merged into dismissal has been vacated. It shall, however, be open to the employer to make any directions as is deemed appropriate in that behalf in future. The appellant, therefore, becomes entitled to the salary for the past period subject to his satisfying the authority that he has not earned any other income during the period."
19. In my view the findings of the Enquiry Officer and the second show cause notice as well as the order of removal based on the find-ings of the Enquiry Officer and the order of the appellate authority cannot be sustained and must be set aside and quashed. This application is, therefore, allowed. The Rule is made absolute; let appropriate writs be issued.
20. The only question is what relief the petitioner is entitled to at this stage. The petitioner came to this court long after five years from the date of his removal or from the date of the rejection of his appeal against his removal by the 5 appellate authority. He has given reasons for the delay and this court issued the rule nisi on December 16, 1980. At this stage, therefore, this delay will not be a bar in considering the case of the relief. In my view, the petitioner shall be entitled to the following reliefs only:-
(a) Since the order of removal as well as the order of the appellate authority are set aside and quashed, the petitioner shall be allowed to resume his duties forthwith on a xerox/ plain copy of the Judgment and order.
(b) The petitioner shall not be entitled to any monetary benefits until May, 1986, when the rule was made ready. He shall, however, be entitled to full salary from June, 1986 as would have been admissible.
(c) The entire period from the date of his removal till the date of his resumption of duty shall be treated as the period spent on duty for all purposes excepting for the purpose of arrear salaries upto May, 1986.
(d) The salary and allowance shall be fixed notionally, giving all benefits of the scale and revision and all other incidental benefits which the petitioner would have been entitled to, had he continued in service.
(e) The petitioner shall be paid a sum of Rs. 10,000 (Rupees ten thousand only) within two weeks from the date of communication of this order, which shall be adjusted against his future salary payable to the petitioner in terms of the order.
(f) There will be no order as to costs.
21. Let a Xerox copy of this Judgment and order, counter signed by an officer of this court, be supplied to the petitioner on payment of the usual charges and upon the undertaking of the petitioner to apply for and obtain a certified copy.