Kalika Pathak vs Union of India & Ors.

MadhureshPrasad,J.:

Heard the learned advocate representing the parties.

The writ petitioner/appellant, an Inspector, Railway Protection Force Post,Balasore, was proceeded against based on a charge memo dated 10.01.2014.

The substance of allegation was that he accepted an illegal gratification of Rs.1.5 lac from one Sri AjoyKishen Dev Chechi, the Manager of R. R. Roadways Private Limited.

It is alleged that two vehicleshaving registration numbers G-04-FC-7194 and CG-04-JB-3382, were detained on National Highway No. 5 about 30 to 35 kms away from the Balasore Station at the instance of the writ petitioner. It is alleged that he asked four constables to detain the vehicle and the two drivers, since while passing through the BimpadaLevel Crossing (LC) Gate, these persons had lifted the overhead wire and passed through the Gate. It is alleged that subsequently the writ petitioner had solicited and accepted the illegal gratification, for release of the two vehicles.

It is relevant to take note of a fact that the same allegation was the basis for initiation of a CBI case bearing No. R.C. 21(A) of 2013 for the alleged offence under Section 7 of the Prevention of Corruption Act.

We have enquired from the learned advocates regarding the fate of the criminal trial. We are informed that the same is still pending.

The departmental proceeding was conducted by the Enquiry Officer, one Shri. A. K. Kundu, A.S.C. of RPF. An enquiry report dated 05.06.2014 was submitted by him holding the charges proved.

Thereafter, the Senior Divisional Security Commissioner RPF/Adra served a show-cause notice upon the petitioner on 07.07.2014. The petitioner made his submissions in response thereto raising alleged irregularities in the procedure adopted by the Enquiry Officer. The petitioner’s/appellant’s reply is dated 26.07.2014.

The Disciplinary Authority was of the view that the findings in the proceeding warranted a deterrent punishment, which was beyond the competence of the Senior Divisional Security Commissioner. Accordingly, the Senior Divisional Security Commissioner sent the entire case file of the departmental proceeding to the Inspector General-cum-Chief Security Commissioner RPF (for short IG) by a communication dated 18/20.04.2015.

The IG passed an order dated 10/11.05.2016 wherein he observed lacuna in the procedure adopted in the enquiry. He took note of the fact that the Manager of the Transport Company (alleged complainant) and the two drivers, Ram Vilas Choudhury and A. K. Md. Syed, who were allegedly detained, were not examined in the enquiry. He found discrepancy as regards date on which the vehicle was detained.Whereas the FIR mentioned the date of detention of the vehicles concerned on 20.11.2013, along with the drivers; the charge memo issued in the departmental proceeding records a different date of the selfsame detention, to be 22.11.2013. According to the IG, the enquiry report does not address this discrepancy.

Further it was noticed that the statement of only one of the allegedly detained two drivers, Choudhury (supra), was considered by the Enquiry Officer, however, the driver was not brought in the enquiry either to be examined, or to afford an opportunity to the charge-sheeted officer to cross-examine the drivers with reference to his alleged statements relied upon. After noticing these discrepancies, the IG arrived at a conclusion that “not much evidence has been collected for arriving at the findings”. Under these circumstances, the IG remitted the matter to the Disciplinary Authority in the following terms:

The matter thus sent was back to the Disciplinary Authority, who proceeded to issue a second show-cause notice dated 21.09.2017 upon the writ petitioner.

Despite specific discrepancies highlighted by the IG while remitting the matter by an order dated 10/11.05.2016, the Disciplinary Authority did not go into the evidence as was pointed out by the Inspector General and straight away issued a show cause notice dated 21.09.2017 in the following terms:

The undersigned has gone through all the relevant documents in the D&AR case file including the charge Memorandum, Enquiry Officer's report, written defence statement and the representation submitted by the party charged to the Enquiry Officer and the Disciplinary Authority respectively as well as recommendations of Sri J.K. Satija, the then Sr.DSC/RPF/Adra and Sri A.K. Chaurasia, present Sr.DSC/RPF/Adra.

The entire proceeding from issuance of the charge memo, till issuance of the show cause notice dated 21.09.2017 was put to challenge in the writ petition.

The learned Single Judge after considering the matter, however, did not find any occasion to interfere with the findings recorded in the second show-cause and was of the opinion that the enquiry officer had examined witnesses, considered the several evidence as per the list of evidence and witnesses, contained in the charge memo. Due opportunity was given to the petitioner/appellant to participate in the enquiry, he was served with the findings of the Enquiry Officer. He was given an opportunity to make his representation against the findings. The authorities thereafter had applied their minds to objection and remitted the matter for reconsideration.

The learned Single Judge, having regard to the voluminous evidence considered in the enquiry and the expected conduct of a member of the armed force being of a very high degree of integrity and dedication, vide judgment dated 03.04.2019 was of the view that the second show cause did not require any interference.

It is this judgment, which was the subject matter of the present intra court appeal.

During the pendency of the present proceeding, an order of dismissal was passed on 10.06.2019. The same was put to challenge in the present proceeding by filing an application being CAN 5495 of 2019.

When the matter was taken up earlier on 25.06.2019, this Court found that the petitioner/appellant had a prima facie case, which required consideration. The court also took notice of the fact that at a time when the second show cause notice itself was subjudice, the authority proceeded to pass the order of punishment (dismissal dated 10.06.2019). The co-ordinate Bench thus, passed the interim order dated 25.06.2019 staying the operation of the dismissal order; and directed that the petitioner be deemed to be continued as under suspension.

No appeal was preferred against the interim order dated 25.06.2019, passed after hearing both sides. We are informed that an application (CAN 3 of 2025) was filed for vacating the interim order.

Till date, the interim order has not been interfered with.

When the matter is taken up today, the learned advocate appearing for the writ petitioner/appellant has drawn attention of this court towards the enquiry report. Referring to the same, he points out that the voluminous enquiry report running into around 25 pages records the charge, the list of evidence and witnesses, statement of the prosecution witnesses and statement in the course of their cross-examination. The same manifest a lack of consideration by the Enquiry Officer, and suffers from non-application of mind and non-assigning of reasons.

The learned advocate further submits that despite remand by the IG; after specifying the procedural infirmities, the Disciplinary Authority took no steps whatsoever to rectify the same. On the contrary, the Disciplinary authority issued the second show cause dated 21.09.2017; and punishment (dismissal) order dated 10.06.2019, once again relying upon the material and procedure which was already held by the IG to be unreliable.

The second show cause and punishment order were thus not sustainable.

The learned advocate for the respondent/railway, on the other hand, has drawn attention of the court towards the order passed by the learned Single Judge to submit that the findings recorded by the learned Single Judge does not merit any interference in intra court appeal.

There was sufficient material on record before the enquiry officer.

Show cause was twice issued to the writ petitioner/appellant. The non-examination of the complainant and two drivers allegedly detained was inconsequential having regard to the voluminous evidence which was taken into consideration by the enquiry officer. It is further submitted that the writ petition itself was premature, since it was filed against the second show cause notice dated 21.09.2017. He submits that the petitioner/ appellant is a member of an armed force. Considering these factors, there is no scope for interference with the decision of the learned Single Judge which is the subject matter of the present intra court appeal.

We have considered the rival submissions.

At the very outset, we take notice of the objection raised by the learned advocate for the respondents regarding the writ petition being filed against the second show cause notice. The objection, in our opinion, is unsustainable having regard to the facts and circumstances, which took place after filing of the writ petition; and have been taken note of by the co-ordinate Bench while passing the interim order dated 25.06.2019 in the present proceeding.

The dismissal order dated 10.06.2019 was brought on record by way of an application. The order of dismissal thereafter became subject matter of the present appeal and was substantially considered at the time of passing of the interim order dated 25.06.2019, staying the punishment. The interim order dated 25.06.2019,was not interfered with thereafter, and is in operation till date.

In these circumstances, we find no force in such objection raised seven years after the stay of the dismissal order.

We proceeded to examine the Enquiry report and found that the enquiry officer, at page 15 of the enquiry report, has given a heading which states “Reason of Findings”. Thereafter, he proceeded to rerecord the statement of witnesses which was already recorded prior to the page 15 of the enquiry report. Such rerecording of evidence proceeds till page 25, whereafter the enquiry officer records his conclusion in the following terms:

We therefore concluded that the findings of the Enquiry Officer are manifest of total non-application of mind. The conclusions do not show any consideration; or any reasons to link the conclusions with the material on record.

We also found that the discrepancies highlighted by the IG while remanding the matter on 10.05.2016, were not addressed by the Disciplinary Authority. Thealleged complainant, Manager of the Transport Company, was not examined in the enquiry. The drivers were also not called for examination/cross-examination; and no steps were taken by the Disciplinary Authority to look into the discrepancy in the date of occurrence which also was highlighted by the IG.

The findings of the Enquiry Officer, therefore, were unsustainable as being devoid of consideration and also on the ground that the conclusions are not founded on any material in support of the allegations. The non-examination of the complainant and witnesses; and absence of any other material in the enquiry in support of the allegations, was fatal to the charges levelled against the petitioner/appellant.

We, therefore, found force in reliance placed by the learned Advocate for the appellant on the decision of the Apex Court in the case of Anil Kumar vs. Presiding Officer and others reported in AIR 1985 SC 1121 and another decision of the Apex Court in the case of Hardwari Lal vs. State of U.P. and others reported in AIR 2000 SC 277.

In so far as the submission regarding the enquiry report being vitiated, we have considered the submissions with reference to the record and find that the infirmities alleged by the petitioner/appellant that the complainant and the two detained drivers were not examined; or that there was no evidence collected during the enquiry to sustain the findings, stands fortified also by such findings of the IG in the letter dated 10/11.05.2016. This order takes note of these infirmities in the proceeding conducted prior to issuance of the letter dated 10/11.05.2016.

The IG by the said letter, relevant extract of which we quoted above, directed the disciplinary authority to ensure further consideration of the issue, after affording an opportunity and to have a fresh look into the matter as per extant rules to ensure that the consideration is in accordance with law. The material on record, however, does not show any such consideration.

Despite a remand by the IG no steps were taken by the Disciplinary Authority to examine the complainant or the alleged two drivers. No effort was made to collect any evidence whatsoever, in addition to what was already held to be insufficient by the IG. We also find that no opportunity was afforded to the petitioner/applicant in compliance with the IG’s letter dated 10/11.05.2016, in accordance with the principles of natural justice.

The second show cause, therefore, was not sustainable by any material on record, which stand of the petitioner stands vindicated by the IG’s communication dated 10.05.2016. The Disciplinary Authority upon remand recorded a cryptic and perverse finding in his alleged second show cause dated 10.07.2017, which also we extracted above.

It is a settled law which is apparent from the decision relied upon by the learned advocate for the writ petitioner/appellant that where an order is liable to such civil consequences, it is required to be sustained by procedural fairness and show application of mind. Unless the authority records reasons in support of its conclusions, the conclusions are not sustainable in the eyes of law.

In the present case, we found that conclusion of the Enquiry Officer in the enquiry report dated 05.06.2014 was manifest of total non-application of mind and suffered with the vice of non-assigning of reasons in support of the conclusion.The Enquiry Officer failed to admit the material evidence. The cryptic finding of the Enquiry Officer was based on no evidence. The findings of the Enquiry Officer, therefore, was unsustainable on a limited scrutiny permissible under judicial review as per decision of the Hon’ble Supreme Court of India in the case of Union of India and Others vs. P.Gunasekaran reported in (2015) 2 SCC 610.

We also consider it apposite to consider decision of the Hon’ble Supreme Court of India in the case of Kranti Associates Private Limited and Another vs. Masood Ahmed Khan and Others reported in (2010) 9 SCC 496. In this decision the Apex Court considered and laid down the law regarding assigning of reasons and the requirement of a “speaking order”. The Apex Court held:

The Apex Court proceeded to summarize the principles on the recording of reasons. It was held that the requirement of recording of reasons emanates from doctrine of fairness in decision making. The Apex Court laid down the law that insistence on recording of reasons serves the wider principle of justice and inspires confidence that the decision maker exercised discretion on relevant grounds and by disregarding extraneous considerations. In the present case we find that the enquiry report clearly manifests a lack of consideration and does not contain any reasons in support of the conclusion of charges being proved. The enquiry officer’s conclusion is a glaring example of a non-speaking order.

We already considered above that despite remit from the IG, the disciplinary authority also did not take any steps whatsoever for rectifying the lapses committed earlier. Neither the allegationist, nor the two drivers allegedly detained were examined in support of the charge. The other discrepancies pointed out by the IG regarding discrepancy in the date on which the vehicles were allegedly detained was also not examined. The disciplinary authority also failed to allow an opportunity to the writ petitioner to cross-examine the driver whose statement in absentia was relied upon, despite such lapse pointed out by the IG in the order of remit dated 10/11.05.2016. We, therefore, find the second show cause notice dated 10.07.2017 and order of punishment dated 10.06.2019 to be unsustainable.

It is apparent from our above consideration that the procedure adopted by the authorities (Enquiry Officer and the Disciplinary Authority) was vitiated on the grounds amenable to judicial review under Article 226 of the Constitution of India inasmuch as the decision was not supported by any material adduced in the enquiry. The finding shows total non-application of mind and is devoid of any reasons; and the procedure adopted by the authority was in violation of the principles of natural justice and fair play, requisite from a departmental enquiry.

In view of our finding as recorded herein, we set aside the order of dismissal dated 10.06.2019. We direct that the petitioner/ appellant would be entitled to all consequential benefits, as a result, of setting aside of the order of dismissal. The order passed by the learned Single Judge is hereby set aside. The appeal is allowed in these terms, and connected application being CAN 3 of 2025 is also disposed of.

Urgent certified copy ofthisjudgment,ifappliedfor,besuppliedtothe parties, expeditiously after complying with all necessary legal formalities.

I agree.