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Amulya Ratan Mukherjee Vs. Deputy Chief Mechanical Engineer, Eastern Rly. and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 3136 of 1959
Judge
Reported inAIR1961Cal40,[1962(5)FLR71],(1962)IILLJ537Cal
ActsConstitution of India - Articles 226 and 311
AppellantAmulya Ratan Mukherjee
RespondentDeputy Chief Mechanical Engineer, Eastern Rly. and ors.
Appellant AdvocateB. Bhattacharjee, Adv.
Respondent AdvocateBhabesh Narayan Bose, Adv. for Opposite Parties Nos. 1 and 2
Excerpt:
- .....that shortly before that date, a report was received from the vigilance officer and there was a 'fact finding enquiry'. the allegation was shortly as follows: some persons had secured blank pass application forms for the issue of railway passes. these blank pass applications were filled up with a bogus name and a false rubber stamp was put thereon, together with a forged signature of a clerk in the d. c. o. s.'s office, and they were passed on to the petitioner, who was a clerk in the pass section. on the strength of this, passes were issued, which were fraudulently utilised. it appears that there was a very exhaustive enquiry at which witnesses were examined. on 26-6-58 the personal assistant to the deputy chief mechanical engineer issued a charge-sheet upon the petitioner and several.....
Judgment:
ORDER

Sinha, J.

1. The facts in this case are shortly as follows: On the 26th June, 1959 the petitioner was employed as a clerk in the General Branch of the Eastern Railway at Lillooah, in the office of the Deputy Chief Mechanical Engineer, who was his appointing authority. It appears that shortly before that date, a report was received from the vigilance officer and there was a 'fact finding enquiry'. The allegation was shortly as follows: Some persons had secured blank pass application forms for the issue of Railway Passes. These blank pass applications were filled up with a bogus name and a false rubber stamp was put thereon, together with a forged signature of a clerk in the D. C. O. S.'s office, and they were passed on to the petitioner, who was a clerk in the Pass section. On the strength of this, passes were issued, which were fraudulently utilised. It appears that there was a very exhaustive enquiry at which witnesses were examined. On 26-6-58 the Personal Assistant to the Deputy Chief Mechanical Engineer issued a charge-sheet upon the petitioner and several other persons. The charges were as follows:

'1. For fraudulent issue of 367 Nos. of foreign line passes (two II class and three hundred and sixty-five III class) for 1,085 1/2 adults during the years 1956 and 1957 on faked pass applications alleged to have been forwarded from office of the District Controller of Stores Eastern Railway, Lillooah, involving a cost of Rs. 17,415.18 nP. thereof which were neither received nor date stamped by the Receiving Clerk of Pass Section.

2. For fraudulent disposal of all the above passes by entering them in a separate peon-book instead of sending them in the particular peon-book in which all passes issued on genuine pass applications are sent to office of the District Controller of Stores, Lillooah, and delivering to unauthorised persons against some fictitious acknowledgment other than those employed in the Pass Section of D. C. O. S's office with view for illicit gain.'

2. The petitioner gave his explanation and stated that the charge-sheet was couched in vague generalisations although the disciplinary action rules clearly prescribe that the charge should be free from ambiguities and should be clear. The petitioner, therefore, asked that the charges should be made clear and all the relevant records and cognate documents made available for inspection. On the 29th August, 1958 the defence counsel for the petitioner complained before the enquiring committee which had been constituted to make the enquiry, that although the enquiry had started for a week, the prosecution had not produced any witnesses or documentary evidence to establish the charges. On the other hand, the onus was being shifted to the petitioner.On the 21st August, 1958 the defence counsel for the petitioner cited in writing the names of 11 witnesses. The petitioner also asked for the production of papers and documents of the year 1955. He was told that the documents of 1955 were not relevant and in any event they were destroyed. He asked for inspection of the order of destruction, but it was not given to him. The departmental enquiry appears to have been held from 16-8-58 to 10-9-58 and some of the petitioner's witnesses were examined. Thereafter, the enquiring committee held that the petitioner was responsible for fraudulent issue ot 365 foreign line passes during the years 1956 and 1957 on faked pass applications, alleged to have been forwarded from the office of the District Controller of Stores, Lillooah. It was stated in the finding that the members of the enquiring committee had 'carefully considered all the evidence'. The order was supported by 'Remarks and reasons for the finding'. On the 115-1-1959 a second show cause notice was given. The petitioner was asked to show cause why he should not be dismissed from service. The petitioner wanted to see the records of the examination and cross-examination of different witnesses in connection with the proceedings against the other two accused, namely, D.N. Sarkar, an office Superintendent, and H.K. Mittra, a clerk, Pass Section. The petitioner was given the record of the examination and cross-examination of D.N. Sarkar and H.K. Mittra but nothing else. On the 13th February, 1959 the Deputy Chief Mechanical Engineer passed an order dismissing the petitioner. Thereafter, the petitioner preferred an appeal to the Chief Mechanical Engineer. The Chief Mechanical Engineer, by his order, dated 6-7-1959 held that the petitioner had been suitably dealt with and as there was no other extenuating circumstances to justify clemency the appeal was dismissed. Thereafter, this application has been made. In the petition, a point has been specifically taken that the petitioner was charged with fraudulent issue of 367 Nos. of foreign line passes during 1956 and 1957 on faked application, but no particulars have been given. These passes were not identified by serial Nos. or dates. The names and addresses of persons in whose favour they were issued have not been disclosed, nor the names of the foreign lines which were covered by the passes, specified. The charge-sheet did not specify the details of the faked applications which would identify the same so that an answer was possible. The unauthorised persons mentioned in the charge-sheet were not named or identified to make an answer possible. It is therefore, stated that the petitioner could not specifically refute the charges and defend himself. It is stated in the petition that during the enquiry the prosecution did not produce any witnesses and threw the onus on the petitioner to establish his innocence. It is stated that witnesses asked by him to be produced were not produced. The answer to these allegations in the affidavit-in-opposition is rather surprising. It is stated that prior to the service of the charge sheet upon the petitioner, there was a preliminary enquiry, or as it is called a 'fact-finding enquiry', where various documents were shown to the petitioner and various witnesses were examined. After that, the charge sheet was issued. It is, therefore, seriouslysuggested that at the enquiry no further witnesses were necessary to be called, and no further particulars were necessary to be given, and no document need have to be inspected. With regard to the inspection of documents, I am not quite certain from the materials whether inspection was given again to the petitioner during the enquiry proper. But certainly, the documents of 1955 were withheld on the plea that they were destroyed and were irrelevant. They were certainly not irrelevant. As the petitioner has pointed out, they were extremely necessary to show the practice in keeping the books and registers and the part that is taken in it by the petitioner. His case was that regard being had to the procedure and practice followed, he could not be blamed if a fraud was committed by other persons. It is said that according to the rules, the 1955 books and documents had been destroyed. The petitioner however asked for the inspection of the order for destruction, but that has not been produced. It has not been produced before me either. But quite apart from the books and documents, the point made by the petitioner that the charge-sheet was entirely vague and wanting in particulars is perfectly correct and is a point of substance. It is no answer at all to say that the necessary books and documents had been shown to the petitioner during the 'fact-finding enquiry', and, therefore, he knew the particulars of the charges and, therefore, it was not necessary to disclose it again. The position with regard to a 'fact-finding enquiry'' is as follows: Before making a charge, the authorities are entitled to have a preliminary investigation or a 'fact-finding enquiry'. This is not a formal enquiry at all, and in such an enquiry, if it can be called an enquiry at all, no rules are observed. There can be an ex parte examination or investigation and ex parto reports. All this is to enable the authorities to apprise themselves of the real facts and to decide whether an employee should be charge-sheeted. But the departmental enquiry starts from the charge-sheet. The charge-sheet must be specific and must set out all the necessary particulars. It is no excuse to say that regard being had to the previous proceedings, the delinquent should be taken to have known all about the charges. Whether he knew it or not he must again be told of the charges to which he is called upon to show cause and these charges must be specific and all particulars must be stated, without which, a man cannot defend himself. It is obvious, therefore, that there was no duty cast upon the petitioner to connect the charge sheet with any previous proceedings. The charge-sheet speaks about the issue of 367 foreign line passes. There was no duty cast on the petitioner to connect this with any of the documents disclosed to him during the fact-finding enquiry. After all, the report of the fact-finding enquiry was not available to him. It was not possible for him to determine which of the numerous documents used during the 'fact-finding enquiry' related to the formal charges, As regards the witnesses, the defence taken in the affidavit in opposition is the same. It is seriously argued that after all, during the fact-finding enquiry, witnesses were examined, mainly indicated by the petitioner himself. It is therefore claimed that no further witnesses need have to be called by the prosecution during the enquiry proper.Thus, the evidence given by the witnesses during the fact-finding enquiry has been liberally relied upon, without producing them at the enquiry proper, so that their evidence would be on record, and the petitioner would not (?) get an opportunity to cross-examine them. Briefly put, the respondents were not entitled to rely on evidence which had been given at the fact-finding stage, without producing those witnesses at the enquiry proper. In effect, the petitioner, is justified in saying that the proceedings were conducted in a manner as if at the enquiry proper, the onus was on the petitioner to establish his innocence. This is not the position in law, and the departmental enquiry has been conducted in a manner contrary to law. It is no good using expressions like 'fraud', 'fraudulent issue' or 'fraudulent disposal,' without giving particulars of the fraud. It is an elementary principle that when fraud is alleged, complete particulars must be given. It is no good sneaking about 'unauthorised persons' without specifying who they are. Here, again, it is not of the slightest use to state that the petitioner knew or must have known all about it. At the earliest possible moment, the petitioner objected to the vagueness of the charge-sheet, and it was the duty of the respondents to have at once furnished him with all particulars. In my opinion, upon the admissions made in the affidavit-in-opposi-tion, as to the manner in which the enquiry took place, this application must succeed, and the proceedings must be quashed. I am by no means unaware or lacking in appreciation of the seriousness of the charges. It is true that the state of affairs disclosed by the charges themselves, if true, is extremely serious and calls for drastic punishment. For that very reason however the delinquent must be given the fullest Opportunity of defending himself. Whether it means duplicating the preliminary proceeding or not, departmental proceedings must be properly conducted and in accordance with the rules which have been, by now, firmly established. Coming now to the appeal, I find that the Chief Mechanical Engineer thought that he was called upon to find out the existence of extenuating circumstances justifiying clemency. That is not at all the correct approach. In an appeal, the whole thing is open, and one must not proceed upon the assumption that the appellant is guilty. The whole thing should be examined with an open mind.

3. For these reasons, I am o the opinion that these proceedings, together with the orders made thereon are defective and must be set aside. The Rule must, therefore, be made absolute and there will be issued a writ in the nature of certiorari quashing and/or setting aside the order of the Deputy Chief Mechanical Engineer dated 13th February, 1959 dismissing the petitioner from service, and the appellate order thereon of the Chief Mechanical Engineer referred to in the letter dated 6th July, 1959 being annexure 'JI' to the petition. There will be a writ in the nature of mandamus directing the respondents not to give effect to the same. This will, however, be without prejudice to the respondents issuing a fresh charge-sheet and/ or giving proper particulars of the charge sheet dated 26th June, 1958 and thereafter conductingthe departmental proceedings, if they are so mindedto renew the same, in accordance with law. Therewill be no order as to costs.


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