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Jugal Kishore Sharma Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 804 of 1972
Judge
Reported inILR1981Delhi345
ActsRailway Servant (Dicciplinary and Appeal) Rules, 1968 - Rule 9A
AppellantJugal Kishore Sharma
RespondentUnion of India and ors.
Advocates: S.A.K. Dhar and; R.N. Tikku, Advs
Excerpt:
.....be communicated to the delinquent--under rule 12 he is also entitled for a copy of the report of enquiry--rule 22 : imposes a mandatory duty on the appellate authority to consider (a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the constitution or in failure of justice, (b) whether the findings of the disciplinary authority are warranted by the evidence on record or (c) whether the penalty or (d) whether the penalty or the enhanced penalty imposed is adequate or severe.; in the instant case petitioner faced number of departmental enquiries during the year 1970 to 1977. in three different departmental proceedings he was awarded punishment of holding of increments for..........for the reasons stated above the writ petition is allowed with costs. the petitioner would be entitled to all consequential monetary benefits according to rules. rule is made abssolute.
Judgment:

S.B. Wad, J.

(1) The petitioner was appointed as a Ticket Collector in Northern Railway on 7-7-1951 after passing the competitive test. He was performing his duties satisfactorily for 20 years. Between 1970 and 1972 number of departmental proceedings were held against him. In the three enquiries the orders were passed withholding his increments for different periods. He was censured in three proceedings. One proceeding was dropped and in one proceeding he was given the benefit of doubt. He was suspended for six months when the first proceeding was held against him in 1970. After the suspension order was revoked it was ordered that the period of suspension will not quality him 'for increments, leave and retirement benefits.' He was thrice transferred from Delhi during this period but the orders were cancelled after his representation. In 1972 adverse remarks were passed in his confidential report and the remarks were communicated to him. In this petition the petitioner has challenged all these orders. His submission is that they are contrary to the Rules and malafide.

(2) It maybe noted that .the punishment of withhelding of increments for a specific period and censure are minor penalties as defined by Rule 6 of the Railway Servants Discipline and Appeal Rules, 1968. Two of the proceedings were started in the beginning under Rules 9 and 10. The procedure laid down in Rules 9 and 10 is applicable where the Disciplinary Authority thinks that the charges might necessitate major penalties. Rule 11 lays down the procedure to be followed where minor penalties are to be imposed. Procedure laid down in Rules 9 and 10 is more elaborate and detailed one. Compared to that the procedure laid down in Rule Ii is more summary in nature. However, under both the procedures a care has been taken to see that the trial is a fair trial and the principles of natural justice are observed. They also incorporate the well established principle applicable to quasi-judicial proceedings, namely, passing of a speaking order regarding the guilt and the punishment imposed. Since, the petitioner has alleged serious illegalities in the actual procedure followed in these proceedings, I may note some salient provisions of Rules 9, 10 and 11.

(3) No order imposing a major penalty can be passed unless a departmental enquiry is held in the manner laid down by Rules 9 and 10. Under sub-rules 3 and 4 of Rule 9 the Articles of Charge along with statement of imputations of misconduct should be served on the delinquent employee. Within ten days he should file written statement in his defense. He is also to be informed of the documents relied upon by the Department and the list of witnesses. The delinquent has a right to inspect the documents relied upon. He can ask for the supply of copies of the statements of the witnesses which are intended to be relied upon. A detailed enquiry is to be conducted thereafter if the delinquent does not admit the charge. The Disciplinary Authority may itself conduct the enquiry or appoint an Enquiry Officer and a Presenting Officer. The delinquent is entitled to the assistance from another Railway servant for conducting his defense. On the date fixed for the enquiry relevant documentary evidence is to be laid by the Department. The delinquent has a right to cross-examine the witnesses. The delinquent is entitled to give a statement orally or in writing after the citing of the deparment's evidence in his defense. After the enquiry is complete the Enquiry Officer should forward the repart with his findings on the evidence to the disciplinary Authority.

(4) Rule 10 provides for the procedure to be followed, after the enquiry report is received by the disciplinary Authority or when the disciplinary Authority itself has conducted an enquiry and it has reached findings on facts. Two different procedures are followed thereafter under Rule 10(4) and Rule 10(5). If the disciplinary Authority comes to a conclusion that any minor penalty should be imposed, the disciplinary Authority may proceed to impose such penalty. But if it comes to the conclusion that a major penalty is called for, it shall furnish copy of the report to the delinquent and give him a notice to show cause why the specific penalty should not be imposed on him.

(5) Where on the written statement submitted by the delinquent the disciplinary Authority come? to a conclusion that the case called for only minor penalties the following procedure is to be followed under Rule II. No elaborate enquiry as laid down in rule 9 is necessary unless the disciplinary Authority is of the opinion that such enquiry is necessary. The delinquent has to be given the reasonable opportunity of mak'rg a representation against the alleged misconduct. The disciplinary Authority should then record its findings on each of the imputations of misconduct or misbehavior. The disciplinary Authority should then pass an order on the case with reasons adduced in support. An order passed by the disciplinary Authority together with the findings on each article of charge are to be communicated to the delinquent. He is also entitled 'to a copy of the report of enquiry. This is provided by rule 12. Under rule 14 the disciplinary Authority may dispense with an enquiry if it so satisfied But it has to record its reasons in writing for net holding the enquiry. Rule 22 provides for an appeal. Sub-rule 2 lays down the procedure where the appeal is againstthe minor penalty imposed under rule 6. It is the mandatory duty of the disciplinary Authority to consider (a) whether the procedure laid down in these rules has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution or in failure of justice; (b) whether the findings of the disciplinary Authority are warranted by the evidence on the record and (e) whether the penalty or the enhanced penalty imposed is inadequate or severe. After considering these requirements the appellate authority should pass an appropriate order.

(6) Thus under the rules it is incumbent on the disciplinary Authority to have the proper assessment of the evidence in respect of each articles of charge and then to record findings on each article with the reasons for the said findings. This is the minimum requirement for any quasi judicial adjudication. All the impugned orders suffer from the fact that they do not disclose the assessment of evidence' clear 'findings' on each of the articles of charge or reasons' for the findings. The orders are thereforee in clear breach of the statutory requirement and deserve to be struck down. The Appellate orders are also nonepeaking orders and are thereforee bad in law. There is also a failure of the mandatory requirements of rule 22. The appeallate orders do not disclose 'that the appellate Authority was even aware of the requirements of rule 22. It would be shown later that there are other breaches of rules 9, 10 and 11. The appellate Authority has failed to notice and correct the non-compliance of the rules as required by rule 22 (a). No effort has been made by the appellate Authority to examine whether the findings of the disciplinary authority are warranted by evidence on record or whether the penality imposed is proper. The appellate Authority should have passed a speaking order disclosing therein that the appellate Authority had addressed itself to the requirements of rule 22 and had consciously applied the provisions of rule 22 to the appeals. The appellate orders also thereforee, are contrary to law and cannot stand.

(7) In view of his finding it is really unnecessary to go into other infirmities in the impugned orders. But since some of then are quite serious, they can be noticed.

(8) The second proceedings were started in regard to an alleged incident which took place at New Delhi Railway Station on 31-12-1969. Some lady passengers were found to be without ticket when the petitioner checked them. It is alleged in the charge-sheet that in the heated discussions that took place the petitioner used indecent language against the ladies. He also behaved in a rude manner with the Chief Medical Officer, who happened to be on the platform and tried to intervene in the matter. The defense of the petitioner was that the false complaint was made against him by the ladies who were caught traveling without tickets. The fact of their traveling without ticket was confirmed by letter issued to the ladies by the Railways on 11-6-1970 to make the payments. The enquiry was started against the petitioner by charge-sheet served under rule 9 for major penalties. However, no enquiry was held at all either by the disciplinary Authority or by the Enquiry Officer appointed, as required by the Rule. This was a very serious breach of the rules. When this charge-sheet was pending another charge-sheet was issued on the same allegations, this time under Form Vii which is meant for minor penalties. This was clearly illegal because the procedures for major penalty and minor penalty are quite different, and on the same charge there cannot be two departmental enquiries. The second departmental enquiry was cancelled on 20-1-1971 and on the same date a show cause notice was issued imposing the proposed penalty in the first proceeding, which was a proceeding meant for major penalties. The show cause notice merely stated that the disciplinary authority wanted to impose a 'minor' penalty and that the petitioner should show cause against it. The respondents could not show under that provisions of the rules the said show cause notice for minor penalty was issued. The show cause notice is no notice in law because no specific penalty was mentioned in the show cause notice. Rule 6 provides for four distinet penalties as minor penalties. Since the show cause notice was itself bad all further proceedings were rendered illegal. Under rule 9 the delinquent is to be given an inspection of the documents within 5 days of his application. Thereafter be must submit statement in defense within 10 days. He is also entitled to the supply of copy of statement of witnesses. None of these requirements were followed. Inspection of some documents were allowed to the petitioner after he made repeated representations and that to 51 days after his application. In his reply to show cause notice, the petitioner pointed out all the irregularities in the procedure. The disciplinary Authority rejected them treating them as 'irrelevant' objections.

(9) The first departmental proceedings was started against the petitioner by a Memorandum issued on 7-3-1959 (Annsxure Z-ll). The charge against him was that he failed to inform the Station Master regarding non-attaching of Ranchi Coach and thereby late starting of 12 Down train by thirty minutes on 4-12-1968. The petitioner's Explanationn was that he informed the Station Master about the short composition, when passengers booked in the carriage had been constantly asking him whereabouts of Ranchi Coach. It is because of his information that Ranchi Coach was traced otherwise there would have been a longer delay or the train would have gone without Ranchi Coach and without even the knowledge of the responsible persons. He complained that instead of appreciating his service he was given the charge-sheet because it was actually the duty of Yard Foreman and not of T.C. Although the proceeding was started under Rule Ii, no further enquiry was held and the punishment of Censure was imposed upon him on 24-1-70 (Annexure Z-13) and on 12-5-1970, (Annexure Z-14). The first order was by the Disciplinary Authority and the second order was by the Appellate Authority. Bo*h orders are non-speaking orders without discussing the evidence and without recording any findings on the charge. He made a further grievance of it to the Supterintendent, Delhi Area in which he pointed out 'The Station Superintendent, Delhi Junction has cleared me out and had fixed the responsibility on the part of the Yard Foreman' but his appeal was not considered.

(10) A third chargesheet was issued to the petitioner under Rule 11 on September 23, 1971. The charge was that on 14-2-1971 he misbehaved and used abusive language against a lady passenger Mrs. Kamlesh Mittal. In the statement of imputations it was alleged that a confronted enquiry was held in which the petitioner admitted his fault and gave a written apology for his behavior. In defense the petitioner stated that no such lady ever came in his contact. He also stated that there was no enquiry as such but he was told that it was merely an identification parade. He further stated that he never gave a written apology. He asked for copies of the complaint, the findings of the Inspector and a copy of the written apology. He submitted that he would be able to avail of full opportunity to clear his position if these documents were furnished. No further enquiry was held. On January 13, 1972 the Disciplinary Authority passed the following order :

'defensenot accepted. In the enquiry his responsibility has been correctly fixed. In his cross examination also the employee has admitted that he was the person responsible for misbehavior with the complainant. He is awarded W.I.T. for two years w.e.f. 22-8-73.'

The petitioner preferred an appeal. He complained that the copies of the documents were not furnished to him, that there was no formal enquiry nor any cross-examination. The' appeal was rejected on 14-3-1972. The learned counsel for the respondent stated that after the petitioner's admission of his misbehavior it was not necessary for the Disciplinary Authority and the Appellate Authority to state any reasons other than the admission. This submission is not tenable in view of the mandatory requirements of Rule 11. Counsel for the respondents could not state as to whether the so called confronted enquiry was the enquiry under Rule II. Admittedly, the said enquiry was conducted before the chargesheet was issued. The Disciplinary Authority ought to have looked into the defense of the petitioner and particularly the non-compliance of the Rules and his denial of the so called admissions. Neither the Disciplinary Authority nor the Appellate Authority further looked into the grievance of the petitioner that the copies of the relevant documents were not furnished to him. Both, the order of the Disciplinary Authority and the Appellate Authority are thus contrary to Rule 11 and deserve to be quashed.

(11) The fourth departmental proceeding was started against the petitioner in February, 1972. This proceeding was under Rule 9, that is, for major penalty. The charge-sheet was issued to him in the form prescribed for enquiry under Rule 9 which contemplates an elaborate enquiry. The charge against the petitioner was that on 5-8-1971 the petitioner demanded and accepted Rs. 10- as illegal gratification from a passenger Shri Jaswant Singh for reservation of two first class berths ex-Delhi to Howarh. The petitioner asked for inspection of the written complaint of the passenger, the statements of the lady passenger accompanying him, the abatements of the Vigilance Inspectors and Vigilance Officers who had allegedly seen the acceptance of the illegal gratification. The Authorities refused inspection on the ground that inspection of the statements of the passenger and the lady passenger were irrelevant. The statements of Vigilance Inspectors and Vigilance Officers were also denied on the ground that they would come as witnesses. In the counter affidavit it was stated that the inspection of some documents was given to the petitioner without staling as to which documents were inspected by him. The counter-affidavit asserted that no statements of the passenger and the lady passenger were recorded. This is contrary to the earlier written communication made to the petitioner. The contemporaneous statements of the Vigilance Inspectors and Officers should have been made available to the petitioner for cross examining the said officers. The approach of the Disciplinary Authority in refusing these statements was clearly contrary to law and Rule 9. These were the documents mentioned in the chargesheet. No enquiry was completed by the time the petition was filed. Even at the time of hearing the counsel for the Respondent could not tell me whether the enquiry was over and what penalty was imposed.

(12) The next charge-sheet was served on the petitioner on 4-3-1972. In that charge-sheet it was alleged that on 25.12.69 he issued E.F.T. for Rs. 19.70 only and the short amount of Rs. 81- was made good by him: on 3-1-1970. The petitioner submitted that it was through inadvertence that the shorter amount was deposited initially. But after discovering it, he deposited the short amount within eight days without anybody raising the question- He contended that he had no intention of misappropriating the amount. This charge-sheet was issued under Rule II. No further enquiry was held. On 20-5-72 the Disciplinary Authority informed the petitioner that his 'defense not accepted. Censure be recorded against him.' The appeal against the order was rejected on 7-9-1972. No enquiry was held under Rule Ii, no findings recorded and no reasons were stated either in the order of- the Disciplinary Authority or the Appellate Authority. Apart from this, the impression that is left on one's mind is that. the alleged incident was delibrately raked up after two years. Although the incident took place more than two years back, the charge-sheet was issued on 4.3.1972, i.e. after the charge-sheet in the earlier proceeding regarding illegal gratification of Rs. 10.00 was issued. This does not look like a more coincidence. There is clear breach of Rule 11 in these proceedings and neither the order of the Disciplinary Authority nor the Appellate Authority can be sustained .

(13) Six days after the last charge-sheet was issued a new charge-sheet was served on the petitioner (Annexure 'G'). This charge-sheet issued on 10-3-1972 was also under Rule II. It was stated in the charge-sheet that the petitioner left his duty of attending 34 Dn.|4 Up. on 30-4-1971. He went to the Metre Gauge platform without any authority, confronted one Asa Ram who was holding 3-112 tickets and demanded illegal money from him. This was confirmed by the statement of one Jaswant Rai Bhatia, S. I. TCR-Delhi. The petitioner in his defense pointed out that he left the platform for correcting the final reservation chart. On the way he found a child unaccompanied by any elder person and looking worried. Thinking that 356 the child had lost his way, he asked for his parents. His parents joined him: and it was found that all of them were traveling without ticket. He submitted that it was the part of the general duty of a Ticket Collector to check without ticket travel. He B further stated that any passenger who is charged of traveling without ticket makes false complaints about illegal gratification. He also filed the statement of said Mr. Bhatia (S. I. TCR-Delhi) wherein he had stated that the earlier statement was made by him on the dictation of Mr. O. P. Nanda, Deputy S. S. The petitioner was not informed of any order passed by the Disciplinary Authority in his proceeding. However, in the counter-affidavit it is stated that the Acs (T) recorded a finding and imposed the penalty of withholding increment temporarily for six months. A copy of the order imposing punishment is not even produced along with the counter affidavit. It is difficult to know, thereforee, whether the defense of the petitioner was taken into consideration or not and what part of the allegation has been held to be proved. This is in clear breach of the rules. The Rules require a reasoned order to be passed and communicated, to the delinquent with findings on such articles. The alleged order imposing punishment of withholding incremetats for six months is, thereforee, illegal and is quashed. The last proceeding was started with a chargesheet dated 25-5-1972 under Rule II. The charge against him was that he was careless and negligent in not seeing that the staff working under him affixed the labels regarding reservations on the coaches on 14-5-1972. A list of documents relied upon was furnished to him- The petitioner wrote a letter on 2-7-1972 calling upon the Acs (T) as follows :

'THEletter of the Station Superintendent, Delhi referred to as relied upon document to frame charges be allowed to be inspected to enable me to take extract of the same and submit the appropriate reply.'

No inspection was allowed with the result that the petitioner could not file his statement in defense. However, on 29-8-72 the Disciplinary Authority passed the following order :

'YOURdefense is not satisfactory. Your further increment is withheld for one year temporarily which will not effect your further increments w.e.f. 22-8-76'.

The petitioner preferred an appeal. His appeal was dismissed on 12-10-1972. Refusal to furnish the inspection of the documents and to impose an order of penalty without giving a chance to the petitioner to file his statement in defense was clearly in breach of Rule 11. The order of the Disciplinary Authority and the Appellate Authority are non-speaking orders which is contrary to Rule 11. Both the orders are, thereforee, illegal and are quashed.

(14) The petitioner has also challenged the order (Annexure 'X') regarding the period of suspension between 8-1-1970 to 5-7-1970. In this order the petitioner was informed that the said period of suspension 'will also not qualify for increment, leave and retirement benefits'. Under the relevant Rules, in anticipation of departmental proceeding a delinquent can be put on suspension. Even assuming that the order of suspension was Justified, it is not known under what Rule hi? increment and retirement benefits can be denied. Indeed, no rule has been quoted in the counter-affidavit nor was brought to my notice at the time of the hearing. Where a person is suspended he is to be paid suspension allowance. He cannot claim full salary if the suspension is justified. A delinquent cannot be made to suffer monetarily beyond a part of his normal pay. Where his increment is delayed or pension is affected such suspension would be itself be a penalty. No such penalty can be imposed unless a delinquent is given an opportunity to show cause against such an order. The said order (Annexure 'K') is, thereforee, bad in law and is quashed.

(15) The other grievance of the petitioner is that he was transferred three times but said transfers were cancelled on his representation to the Railway Minister. His submission is that his transfers were mala fide. I do not find much substance in these submissions. No material has been produced to record any definite finding. However, it is rather difficult to understand why was it necessary to transfer the petitioner when he was already suspended.

(16) The result is that all the orders imposing penalties on the petitioner are quashed and set aside. Rules laying down the procedure of holding departmental enquiries are simple Rules in simple language. They are not complicated Rules of procedures like Civil Procedure or Evidence Act. It is surprising that the Disciplinary Authority and the Appellate Authority have not even read the Rules before passing the order. Wht is the result of this Apparently, the petitioner had created a friction with his superiors because of his method of dealing with the public. But there is no satisfactory evidence to show tha,t he was involved in moral terpitude. It is an admitted fact that where he was involved in using bad language or the alleged attempt of getting illegal gratification, the passengers involved were traveling without ticket. It is true that in dealing with public more tact and courtesy is necessary. It is also an admitted fact that there were no adverse reports against his work for about 20 years and suddenly for a period of three years several irregularities were noticed. Perhaps the problem could have been better tackled by more direct and personal contact by the superior officers and by change of duties of the petitioner.

(17) For the reasons stated above the writ petition is allowed with costs. The petitioner would be entitled to all consequential monetary benefits according to Rules. Rule is made absSolute.


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