Union of India and Others vs Sri. Deshraj

Satyabrata Sinha, J.—This appeal is directed against a judgment and order dated 1.3.91 passed by Mohitosh Majumdar. J in CO. No. 12335(W) of 1987 whereby and whereunder the learned Judge set aside the order of punishment of the disciplinary authority as well as the order of the appellate authority. The writ petitioner/respondent no. 1 admittedly is a member of the Central Industrial Security Force. A charge-sheet was issued against him on or about 15.10.86 which is to the following effect :

Article-I.

On 13-9-86. No. 830114 Constable Desh Raj of ''H'' Coy was detailed for ''C'' Shift duty from 2200 hrs to 0600 hrs at Section Mill area for guarding the DSP properties but he failed to do so. In that during his duty hours at about 0145 hrs criminals came to that area and stolen 2 pieces of spinal brass sleeper and tried to take those materials through under ground drain in his presence.

Article-II;

No. 8301114 Constable Desh Raj while deployed in night shift duty on 13.9.86 at section Mill area for guarding the Government property against theft/pilferage/damage etc but he failed to do so. During the period at about 0145 hrs 4 criminals came to that area and tried to take 2 pieces of spinal brass sleeper through the man hole of the under ground drain leaving to the outside the plant. Constable Desh Raj remained present in a bush near the man hole and gave signal to the criminals by the help of lathi to go away when crime people namely HC P.S. Rana, NK M.L. Singh, Const. J. Abedin and Constable Phool Singh reached at the site of occurrence. In the meantime criminal fled away but-materials were recovered by the crime people. Const. Desh Raj did not take any initiative to apprehend the criminals though he was present 5 to 6 meter away from the criminals.

The petitioner denied and disputed the allegations made against him. An enquiry officer was appointed by the disciplinary authority. The enquiry officer was changed from time to time. The enquiry proceeding later on was commenced. A report was submitted.

It appears that upon submission of the report by the enquiry officer, the disciplinary authority had himself agent to the place of occurrence with eye witness and prepared a report wherein he observed as follows :

I personally visited the place on the very next morning with the PWs who showed the place from where Const. Desh "Raj gave the signal. He was hiding in a bush just at the corner of the Time Office, and helping the criminals. I am well convinced that the Const. Desh Raj not only failed to guard the DSP properties from his area but also helped the criminals to steal and escape from the hand of the Crime personnel. So in my opinion this type of the personnel is not at all required in the Force who will spoil the prestige and morals of the Force.

The learned Judge in view of the aforementioned part came to the conclusion that the order of the disciplinary authority suffers from technical bias.

Mr. Ghoshal, Learned Counsel appearing on behalf of the appellant has raised a short question in support of this appeal. The learned. Counsel submitted that as a Court of Justice the disciplinary authority had the jurisdiction to visit the place of occurrence in order to appreciate the evidence. We are afraid that such view cannot be sustained in terms of the Rules framed under the Central Industrial Security Force Rules. The disciplinary authority can himself enquire into the matter. He did not choose to do so. He appointed an enquiry officer. Upon submission of the report by the enquiry officer it was for him either to agree with the said report or disagree therewith. In certain situation he can also ask the enquiry officer to make further enquiry but in our considered opinion he could not have usurped the role of the enquiry officer nor could gather evidence against the delinquent officer behind his back. It is now well-known that a statutory authority must act within the four corners of the statute. In the case of Howrah Jhikira Bus. Syndicate v. R.T.A. Howrah reported in 1996(1) CLJ, 397 it was observed by one of us as follows- :

In (5) M. Pentiah and Others Vs. Muddala Veeramallappa and Others, the Supreme Court observed :

In this context Learned Counsel for the appellants involved the doctrine of law that an action of a statutory corporation may be ultra vires its power without being illegal and also the principle that when a statute confers an express power, a power inconsistent with that expressly given cannot be implied

Similar view has been taken in (6) Hukam Chand Shyam Lal Vs. Union of India (UOI) and Others, Reference in this connection may also be made to (7) Maiuddin Bepari vs. The Chairman of the Municipality, Dacca, reported in 40 CWN 17 wherein it has been held :

It is a fundamental principle of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in the case of a statutory corporation it is just the other way. The Corporation has no power to do anything unless those powers are conferred on it by the statute which creates it

The aforementioned decision has been followed by this Court in (8) Scotte (P) Ltd. & Ors. vs. Corporation of Calcutta & Ors. reported in 79 CWN 883 and the said principle was reiterated by a Division Bench of this Court in (9) Sasanka Sekhar Panda vs. State of West Bengal & Ors. reported in 90 CWN 924 in the following terms :

The most serious objection to the settlement by auction of the aforesaid ferry in favour of Sadhapati Sagar Panchayat Samity was that under the provisions of West Bengal Panchayat Act, 1993, the said body was not authorised to offer bids in auction for settlement of a ferry under the management of the Zilla Parishad. It is settled law that a statutory corporation or authority like the Panchayat Samity has no power to do anything unless such power has been conferred upon it by the statute creating it.

It was observed :

We respectfully agree with the view expressed by D.N. Sinha, J. in the case of Narendra Nath Chakraborty vs. Corporation of Calcutta (Supra), that where the statute does not expressly or impliedly authorise the doing of a particular thing, it must be taken to have been prohibited. A statutory corporation cannot no beyond the ambit and extent of the powers which by law are given to the Corporation.

13: In (10) Shri K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and Others, the Supreme Court observed :

An excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel. The Court declines to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision. Lord Selberne in (11) Maddison vs. Alderson, (1883) 8 Appeal Cases 467said that Courts of equity would not permit the statute to be made an instrument of fraud. The impeached resolution of the Municipality has no legal foundation. The High Court was wrong in not quashing the resolution on the surmise that money might have been spent. Illegality is incurable

The Supreme Court in the case of (12) State of Punjab and Others Vs. Gurdev Singh, , observed :

Appopos to this principle. Prof. Wade states the principle must be equally true even where the brand invalidity is plainly visible for there also the order can effectively be resisted in law only by obtaining the decision of the Court. Prof. Wade sums up these principles :

The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person to the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiffs lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights or for some other legal reasons. In any such case the ''void'' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another and that it may be void against one person but valid against another.

It is also well settled that when the disciplinary authority takes the procedural sword he must perish with the sword in view of the fact that the disciplinary authority was bound by law. In our opinion, he had no jurisdiction to deviate from the procedure laid down under the law and make an attempt to gather the evidence himself having delegated his power to the enquiry officer.

In this view of the matter, we are satisfied that the judgment of the learned Trial Judge is correct We may however notice that the learned Trial Judge himself has left the charges in the charge-sheet open and gave liberty to the respondents to proceed pursuant to the charge-sheet if they are so advised. For the reason aforementioned, there is no merit in this appeal which is accordingly dismissed but in the facts and circumstances of this case, there will be no order as to costs.

Satya Narayan Chakraborty, J.

I agree.