Calcutta High Court (Appellete Side)
Paras Nath Yadav vs Union Of India And Others on 5 October, 2018
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W.P. No. 27627 (W) of 2017
Paras Nath Yadav
Versus
Union of India and Others
For the petitioner : Mr. Achin Majumder, Advocate
For the State : None appears.
Heard on : 17.11.2017, 31.01.2018, 06.06.2018,
18.07.2018
Judgement on : 05.10.2018
Sambuddha Chakrabarti, J.:
The petitioner has challenged the charge-sheet, the enquiry report and the second show-cause notice issued to him.
The case of the petitioner in short is that he is a Head Constable of the Railway Protection Force (RPF, for short) of South Eastern Railway. A departmental proceeding was initiated against him by issuing a charge-sheet, dated October 19, 2016 framed by the Assistant Security Commissioner, RPF whereby it was alleged that an excess amount of Rs. 220/- was recovered by the investigating team over and above the declared amount of Rs. 85/-. He alleges that the said charge-sheet was not framed in accordance with Rule 153.3.3 of the RPF Rules as the disciplinary authority did not record any reason whether it was a case for a major or a minor punishment. On the contrary, the authority issued a charge-sheet for a major penalty which was not only contrary to the relevant provision of law but disclosed a biased mind of the disciplinary authority.
It has been further alleged by the petitioner that the disciplinary authority at the time of framing the charge-sheet appointed the enquiry officer and fixed the date of enquiry with the stipulation that if the petitioner failed to attend the enquiry proceeding the enquiry would be conducted ex parte without giving him any opportunity to give reply to the ex parte.
One Mr. M. K. Singh, Inspector, South Eastern Railway was appointed as an enquiring authority. In course of the proceeding statements of three prosecution witnesses were recorded. They were cross-examined by the petitioner who also produced five defence witnesses.
The petitioner also submitted his final defence statement at the enquiry. He mentioned in the said defence statement how he was deprived of reasonable opportunity of hearing by not allowing him to engage his defence friend Sub-Inspector, M. K. Thakur nor was he allowed 13 additional documents which were relevant in connection with the charge-sheet in spite of his representation for production of the same. The respondents did not disclose any reason why those documents as required by him were not supplied by him. He also mentioned the names of eight persons as his defence witnesses but three of them were not called at the enquiry.
The enquiry officer submitted a report, dated June 19, 2017, to the disciplinary authority holding the petitioner guilty in respect of charge no. 1, i.e., possessing excess cash than the one declared by him. He was, however, exonerated of the other charges. The petitioner has assailed the charge leveled against him as de hors the statutory rules which do not provide for possessing excess amount other than the declared one as a misconduct and there is no such rule that before resuming duty the said amount would have to be declared in the declaration register. Unless the same was possessed by way of unfair means this cannot be held to be a misconduct in terms of Rules 146 and 147 of the RPF Rules. If any guideline or circular has been issued requiring declaration of any cash in the possession of the petitioner in the register before resuming regular duty the same is arbitrary and contrary to Articles 14 and 16 of the Constitution of India and the same should be declared ultra vires as the executive authority has no jurisdiction to frame any guideline or circular to incorporate anything to the statutory rule.
The petitioner has variously assailed the findings of the enquiry officer, like non-consideration of the written defence statement, non-application of mind, failure to consider the mens rea, etc. On October 24, 2017 the Assistant Security Commissioner, RPF served a purported show-cause notice whereby the disciplinary authority confirmed the guilt of the petitioner, but he was directed to submit representation against the proposed punishment. This again has been the subject of much criticism as the disciplinary authority at the time of issuing the second show-cause notice came to a conclusion with regard to the guilt of the petitioner and he was show-caused against proposed major penalty which was contrary to the principles of natural justice. Before considering the reply of the petitioner against the findings of the enquiry, the disciplinary authority confirmed the guilt of the petitioner and the only opportunity that was given to him was against the proposed punishment.
Therefore the petitioner has filed the writ petition for the reliefs are mentioned earlier.
The respondents nos. 1 to 5 have filed an affidavit-in- opposition inter alia contending that the petitioner was issued a charge-sheet for major penalty on the report of the appropriate authority in connection with the neglect of duty and indiscipline After a nominated enquiry officer conducted the necessary enquiry extending all reasonable opportunities to the petitioner for his defence, the enquiry report was submitted and the same was sent to the petitioner. The answering respondents have mostly denied the allegations in the writ petition.
A point has been taken by the respondents in their affidavit that there is no existence of Rule 153.3.3 of RPF Rules. In terms of Rule 153, on receipt of complaint or otherwise, the disciplinary authority is to decide whether it was a case for a major or a minor penalty. In the present case on receipt of the report from the appropriate authority the disciplinary authority formed his opinion that there should be a charge under major penalty in commensurate with the gravity of the offence.
The respondents have relied on a judgment of the Supreme Court as laying down that appointment of enquiry officer while issuing charge-sheet and before filing of reply by the delinquent does not reflect bias. According to them, Rule 153.8 of the RPF Rules clearly stipulates that a friend of the delinquent must be a serving member of the force of or below the rank of Sub- Inspector for the time being posted at the same division or the battalion where the proceedings are pending and not acting as a friend in any other proceeding anywhere. The claim of the petitioner to appoint Sri M. K. Thakur was against the said Rule and was, therefore, not maintainable. The respondents say that out of the eight defence witnesses as named by the petitioner six were examined at the enquiry. The petitioner was asked to bring the remaining two at the time of enquiry but he failed to produce them.
The affidavit-in-opposition further records that in terms of the Directive no. 33 issued by the RPF directorate, New Delhi, before leaving for duty the Train Escorting Staff should declare personal cash and the same should be recorded in the register maintained for the purpose and also in the Movement Order. During preventive check conducted by the appropriate authority the petitioner was found to be in possession of excess cash than his declared amount which was also proved at the enquiry by the witnesses. The respondents have prayed for dismissal of the writ petition.
The petitioner has used an affidavit-in-reply largely reiterating the stand taken in the writ petition. He alleges that the charge of neglect of duty or indiscipline or disobedience to the order of the concerned authority had not been proved at the enquiry neither was he held guilty of those charges. The enquiry proceedings have been vitiated due to procedural irregularities. The petitioner has asserted that Rule 153.3.3 of the RPF Rules definitely exists whereby it has been specifically stated that the disciplinary authority before framing a charge-sheet must decide whether the same will be a major or a minor penalty charge- sheet. He is also required to record reasons for his decision. In the instant case no such reason was disclosed as to how and why the authority framed the charge-sheet under the Rule 153 of the said Rules. No specific reason was mentioned why the disciplinary authority concluded that the charge-sheet would be framed for a major penalty and not a minor penalty. The petitioner was never given any opportunity to submit his reply to the said charge-sheet.
The petitioner has stated in his reply that Rule 153 lays down the general principle regarding the engagement of friends, but when the prosecution took the help of a superior officer the delinquent employee was entitled to defend the case with the proper assistance of a defence friend according to his choice and the right of the delinquent cannot be restricted by Rule 153.8 of the RPF Rules. The petitioner has specifically stated that unless the enquiry officer issues summons to the defence witnesses they cannot appear in an enquiry. The enquiry officer has to call the defence witnesses at the enquiry proceeding. The responsibility cannot be shifted to the petitioner for not producing his witnesses at the time of enquiry. Directive no. 33 cannot supplant the statutory rules and, therefore, the same is not sustainable in law. The Director General, RPF has no authority to frame statutory rules by incorporating any clause or provision which is contrary to the rules. At most the said directive is a mere guideline and has not been framed in consonance with Article 309 of the Constitution of India.
The petitioner has further alleged that at the time of issuing the show-cause notice the disciplinary authority cannot came to any conclusion about the guilt without considering the representation of the delinquent on the same.
It may be mentioned that although the respondents were represented in court on two occasions thereafter none appeared for them. When the matter was taken up for hearing none appeared on behalf of the respondents and no accommodation was sought for.
The petitioner has assailed the issue of charge-sheet, the enquiry proceeding as well as show-cause notice on various grounds most of which have not been properly dealt with in the affidavit-in-opposition. The specific allegations made by the petitioner have been answered by the respondents very evasively.
Rule 153.3.3 of the RPF Rules, 1987 definitely exists, may be a different form. After the amendment of the Rules that provision has been incorporated in Rule 153 of the RPF Rules. That provision has neither been abolished nor modified. Merely the relative serial number has been abolished. A careful comparison between the provision of law as was contained in Rule 153.3.3 of the Rules of 1987 with Rule 153 of the post- amendment Rules would have removed the confusion.
Under Rule 153.3.3 of the said Rules of 1987 after receiving the complaint the disciplinary authority is required to decide whether it was a case for major or minor punishment. The reasons may not be disclosed in the charge-sheet itself; but that should be reflected in the official records. The respondents ought to have mentioned in their affidavit-in-opposition the reasons recorded by the disciplinary authority, if at all, before issuing a charge-sheet for a major penalty.
But this cannot be reckoned to be so a major a lacunae as vitiating the entire disciplinary enquiry. If the charge-sheet does not follow the case brought out in the complaint received by the disciplinary authority the petitioner can always take the point at the enquiry. This is more in the nature of an irregularity and not an illegality going to the roof of the enquiry. It is not an infraction of the magnitude that has taken the wind from the sail of the petitioner in the matter of putting up an effective defence to the allegations against him.
Another challenge to the charge-sheet is that it did not give the petitioner any opportunity to file his reply. The charge- sheet has been annexed to the writ petition as Annexure P-1 from which it appears that the petitioner was informed that it was proposed to hold an enquiry against him under Rule 153 of RPF Rules. The allegations were set out in enclosed statements. The disciplinary authority fixed the date of enquiry and the petitioner was informed that failing to attend the enquiry it would be held ex parte.
The proper course of action ought to have been to give the petitioner an opportunity to make a representation to the allegations leveled against him and then to decide whether to conduct an enquiry. Reply to a charge-sheet in the basic defence that an employee is entitled to.
But it will not be proper for the Court to direct a fresh enquiry from the stage of the charge-sheet for two reasons. First the petitioner should have approached the court long before or at least taken this point with the authorities. By appearing at the enquiry he submitted to the course of action fixed by the respondents. After being found guilty of the charges he cannot take up this point. Secondly, he on his own could have filed a reply to the charges. Whether the authorities would have accepted it is a different matter. The RPF Rules do not require any such opportunity to be given to the petitioner. But even without the rules it was a question of complying with the principles of natural justice. However, the criterion is to see if the petitioner has been materially prejudiced by the respondents is not allowing him to file a reply. He produced six defence witnesses and participated in the disciplinary proceeding without raising the issue for once. He filed his written brief after the conclusion of evidence where he had taken the point for the first time. Now he cannot be allowed to allege of any prejudice suffered by him.
The petitioner has taken a point that the acts alleged against him did not constitute misconduct as the RPF Rules never mention that any amount found to be in possession of the petitioner in excess of the amount declared is a misconduct and even if any such provision has been introduced by way of a circular or an executive memo that cannot supplant the rules.
At one point of time courts held that an employee could be proceeded against only on an enumerated misconduct. Gradually such a view has given way to the more modern one that unless there is any statutory prohibition, an employer has an inherent right to initiate a disciplinary proceeding against his employees, even if the act alleged is not a specified one.
This court in Probodh Kumar Bhowmik Vs. University of Calcutta, reported in 1994 (2) CLJ 456 observed that the earlier view could not be treated as a precedent on the point that an employer under no circumstances could proceed against an employee in the absence of the rule defining or specifying misconduct. The court observed that misconduct inter alia envisaged breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and discipline which is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally.
Subsequently, in the case of B. C. Chaturvedi Vs. Union of India, reported in AIR 1996 SC 484 the Supreme Court observed that possession of disproportionate assets amounted to a misconduct for which a disciplinary action lay although it was not an enumerated misconduct under the relevant rules. Again in the case of Secretary to Government Vs. ACJ Britto, reported in AIR 1997 Sc 1393 the Supreme Court held that a non-specified conduct might also amount to misconduct.
This clearly goes to show that a misconduct need not necessarily be an enumerated one as it is not possible for the framers of the rules to exhaustively lay down all the acts of misconduct which may be committed by an employee.
That apart, here also the petitioner submitted to the practice introduced by the administrative directive by declaring the cash amount he had in his possession. After having done so he cannot be heard to say that the act complained of does not constitute a misconduct in terms of the RPF Rules. The submission of the petitioner on this count must fail.
The petitioner has seriously assailed the show-cause notice, dated October 24, 2017, whereby the Assistant Security Commissioner informed the petitioner that he had agreed with the findings of the said enquiry report holding him guilty of the charges as mentioned in the charge-sheet. The petitioner was merely given an opportunity to submit his representation. This opportunity to make a representation after the disciplinary authority had agreed with the punishment was definitely against the principle of natural justice so far as a delinquent is concerned.
By asking the petitioner to make a representation about the punishment proposed to be awarded while sending a copy of the enquiry report the disciplinary authority had jumped into the second stage of the disciplinary proceeding without concluding the first stage. Sending a copy of the enquiry report is considered to be a part of the principle of natural justice inasmuch as that entitles the petitioner to make a representation on the findings made by the enquiry officer and that gives an opportunity to draw the attention of the disciplinary authority to any possible shortcoming of the enquiry proceeding or the report, if any. Until and unless the petitioner is given an opportunity to make a representation on the findings of the enquiry officer, the disciplinary authority must not agree with them. Consequently, the next stage of considering the punishment does not arise.
This is a principle of law which was settled for about a quarter of century before in the case of Managing Director, ECIL Vs. B. Karunakar, reported in AIR 1994 Sc 1074. The Supreme Court made a distinction between the two stages of the disciplinary proceeding after receiving the report of the enquiry. While the right to represent against the findings in the report is a part of the reasonable opportunity during the first stage of the enquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show-cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusion. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted.
The Supreme Court observed that the reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence taken into consideration by it has to come to its conclusion. The findings might have been recorded without considering the relevant evidence on record or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Both the dictates of the reasonable opportunity as well as principle of natural justice require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.
In such view of it the communication dated October 24, 2017 made by the disciplinary authority agreeing with the findings of the enquiry report is hereby set aside and quashed. I give liberty to the respondents to continue with the disciplinary proceeding from the stage of service of the enquiry report to the petitioner seeking his response to the same and then to proceed with the subsequent stages of the proceeding in accordance with law.
With the directions as above the writ petition is partly allowed.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Dr. Sambuddha Chakrabarti, J.) S. Banerjee