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B. Bhimrajee Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 529 of 1967
Judge
Reported inAIR1971Cal336
ActsEvidence Act, 1872 - Section 135; ;Railway Establishment Code - Rule 1712(3); ;Code of Civil Procedure (CPC) , 1908 - Section 9; ;Constitution of India - Article 311(2); ;Constitution of India (Fifteenth Amendment) Act
AppellantB. Bhimrajee
RespondentUnion of India (Uoi)
Appellant AdvocateSuresh Chandra Mukherjee and ;Hemesh Chandra Sen, Advs.
Respondent AdvocateAjoy Kumar Basu, Adv.
DispositionAppeal dismissed
Cases ReferredKhem Chand v. Union of India
Excerpt:
- .....& co. and he had been discharging his duties faithfully all along. on 14-8-61 he received a charge-sheet issued by the works manager (finishing) falsely alleging that he attempted to pass out railway materials on 18-7-61 through the main time office of south eastern railway at kharagpur and he was asked to show cause within a period specified therein. the plaintiff showed cause against the same and the matter was dropped. long after the said incident, a fresh charge-sheet was again illegally issued on 5-3-63 on the same allegation and the plaintiff again showed cause to this charge. the plaintiff denied that he committed the offence alleged. he further denied that he made or signed any confession and stated that all this was due to the grudge of the r.p.f. men and other employees.....
Judgment:

Salil Kumar Datta, J.

1. This is an appeal by the plaintiff against the judgment of reversal dismissing his suit. The material facts according to the plaint, are that the plaintiff was appointed a Fireman on 28-7-48 by the B. N. Railways & Co. and he had been discharging his duties faithfully all along. On 14-8-61 he received a charge-sheet issued by the Works Manager (Finishing) falsely alleging that he attempted to pass out railway materials on 18-7-61 through the main time office of South Eastern Railway at Kharagpur and he was asked to show cause within a period specified therein. The plaintiff showed cause against the same and the matter was dropped. Long after the said incident, a fresh charge-sheet was again illegally issued on 5-3-63 on the same allegation and the plaintiff again showed cause to this charge. The plaintiff denied that he committed the offence alleged. He further denied that he made or signed any confession and stated that all this was due to the grudge of the R.P.F. men and other employees concerned for his protest and exposition of their corrupt practices. It was further stated that a departmental enquiry was held but he was not given proper or reasonable opportunity to defend his case as he was not allowed to be represented by a lawyer to his choice nor to examine his witnesses. It was also stated that the order of dismissal which was passed, on the basis of the alleged enquiry, by the Works Manager (Finishing) was illegal and invalid as the said officer was not competent to dismiss the plaintiff from his service. The plaintiff contended that as the notice dismissing him from his service was illegal and bad in view of the violation of the provisions of Article 311 of the Constitution, his job had not been thereby terminated. He accordingly instituted the suit for declaring that the order of dismissal dated 13-9-63 was void and illegal and that he was in service on and from 18-9-63. The plaint further recited that due notice tinder Section 80 of the Code of Civil Procedure had been served, on the defendant --Union of. India.

2. The suit was contested by the Union of India by filing a written statement where the allegations made in the plaint were denied. It was stated that the plaintiff who was appointed by the defendant on 27-8-48 was not falsely charged by the R.P.F. nor the charge-sheet was illegally issued against him. It was stated that the plaintiff was apprehended by the R.P.F. staff when he was passing out through the main time office on 18-7-61 at 20-45 hours, with some railway materials concealed on his person which he himself brought out after detection. The plaintiff also made a confessional statement before the night shift Foreman which was read over and explained to him in Hindi and the plaintiff signed the same admitting it to be, correct. It was further stated that in regard to the earlier charge-sheet the matter could not be proceeded with as the files containing the relevant papers were found missing. Thereafter a fresh charge-sheet dated 5-3-63 was served on the plaintiff for the said misconduct and it was contended that the said charge-sheet was legal and valid and issued by a competent authority. The plaintiff was given all reasonable opportunities and facilities to defend his case. Under the rules he was not entitled to be represented by a lawyer nor did he ask for it as he himself nominated his defence counsel an employee of the railways who also agreed to defend the plaintiff. The Witnesses were examined in the presence of the plaintiff and his counsel and were cross-examined. It was further stated that the relevant witnesses were examined and the plaintiff did not call for any document nor examined any defence witness. On 20-6-63 the plaintiff requested for supply of the copies of the enquiry proceedings to enable him to submit his final statement and it was duly complied. The final defence statement was filed on 24-6-63 wherein he stated that he passed out of the workshop with his colleagues at the time of the incident and was seen by AYM and his staff on duty implying that nothing as alleged happened at all. The enquiry officer on the materials before him came to the conclusion that the plaintiff was guilty of the charges brought against him and submitted his findings to that effect. Thereafter the Works Manager (Finishing) by notice dated 20-8-63 informed the plaintiff that he had arrived at the conclusion that the plaintiff was guilty of the charge of attempted theft of railway materials and that he had provisionally formed the opinion that the plaintiff should be dismissed from his service. Accordingly the plaintiff was asked to show cause why the proposed penalty should not be inflicted on him. It appears that the cause was shown by the plaintiff and the Works Manager (Finishing) by order dated 13-9-63 informed the plaintiff that he was guilty of attempted theft of railway materials and that he would be dismissed from his service as a disciplinary measure with effect from 18-9-63. It was stated in the written statement that the order of dismissal was neither illegal nor invalid and was passed by a competent authority. Further the provisions of Article 311 of the Constitution and the rules of natural justice were all duly complied with and observed.

3. At the trial on evidence before the learned Munsif the plaintiff examined himself only while the defendant examined a Senior Clerk in the Mechanical Department of the Works Manager Office at Kharagpur Railway Workshop who proved the documents of the disciplinary proceedings. The learned Munsif was of the opinion that the second charge-sheet on the same allegations did not lie and consequently the order of dismissal passed in the said proceeding was also illegal. It was further held that the plaintiff was dismissed by a competent authority and that the plaintiff was not entitled to be represented by a professional lawyer, that there was nothing wrong in examining the plaintiff first in the enquiry proceeding. It was however found that there was denial of the reasonable opportunity in the failure of the enquiry officer to summon Sri Banerjee, A.Y.M, (w/s), and in taking a written note about the incident from an ex-A-Y.M. (w/s). In that view, the learned Munsif held that the order of dismissal was wrongful, illegal and void and not binding on the plaintiff and he was still in the railway service as his service was not validly terminated.

4. An appeal was taken by the Union of India against the said decision and the appellate court found that the proceeding started on the second charge-sheet was not illegal as there was no evidence to support that the earlier charge-sheet was disposed of or proceeding was dropped finally, and. no prejudice was thereby caused to the plaintiff. As to the examination of Sri Banerjee, witness of the plaintiff, it was held that the name and particulars given were incomplete and it was not disclosed on what point his evidence would be material. There was no failure of natural justice by reason 'of the non-examination of the said witness. Regarding the examination of the plaintiff first before the enquiry officer, it was held that the rules of the Evidence Act have no application in the enquiry proceedings, and, as it appears, in this proceeding the plaintiff was given all reasonable opportunities to explain the charges against him. Accordingly it was held that the plaintiff was not entitled to any relief. In the circumstances the appeal was allowed and the plaintiff's suit was dismissed. The present appeal is against the said decision.

5. Mr. Suresh Chandra Mukherjee, the learned Advocate appearing for the appellant has urged the same contentions as were made before the courts below and he submitted firstly that the enquiry proceeding before the enquiry officer was not maintainable as the proceedings by the earlier charge-sheet had been dropped and there could be no further proceeding on the same charges. This contention, in my opinion, has no substance. It will appear that the earlier charge for same offence was not proceeded with but there is nothing to indicate that the proceeding was dropped and it cannot be said that merely because the plaintiff was allowed to remain in service, it was so as pointed out by Mr. A. K. Basu, the learned Advocate for the respondent. I am, therefore, of opinion that there was no illegality in the proceeding initiated by the second charge-sheet and the same was legal and valid.

6. The second contention of Mr. Mukherjee is that the plaintiff was examined first and other witnesses were adduced to fill in the lacuna in the evidence of the plaintiff thereby causing serious prejudice to him. It is however clear that the rules of Evidence Act have no application to the departmental proceedings and the examination of witnesses need not be in the order as laid down in the said Act. There is nothing to show on the part of the plaintiff that he was prejudiced in any way and accordingly the procedure adopted cannot amount to any failure of the rules of natural justice. It also appears that no objection in this regard was taken by him or his counsel at the time of hearing before the enquiry officer.

7. The next point which was argued by Mr. Mukherjee was that the plaintiff was not allowed to be represented by a professional lawyer and a witness stated by him was not produced before the enquiry officer. It may be mentioned here that under Rule 1712 of the Indian Railway Establishment Code, Vol. 1, the accused railway servant may present his case with the assistance of any other railway servant employed on the same railway on which he is working subject to the approval of the Inquiring Authority. In the Note to the Rule, it is of course stated that such person shall not engage a professional lawyer. There is nothing to indicate in the said Note that it is a part of the rules or has any statutory force. It is however found that the plaintiff himself asked to be assisted by another railway servant as his counsel, who appeared with him on all the dates when the proceeding took place and cross-examined the witnesses adduced by the railway administration and no grievance was made at any time before the inquiring Authority on this score nor any case of any prejudice has been made out. I accordingly find no substance in this contention of Mr. Mukherjee.

8. The next contention urged by the appellant is that there has been a failure of natural justice in that the Inquiring Authority did not call the plaintiff's witness to appear at the hearing. The plaintiff while nominating the railway servant who would assist him as his counsel in the hearing, gave the name of one Sri Banerjee, A.Y.M. (w/s), old man in the capacity as spot witness, to be called at the hearing. This witness was not called and on the contrary the Inquiring Authority obtained a statement from one ex-A.Y.M. (w/s) Sri S. K. Sen Gupta to the effect that he was not present at the time of the alleged incident. In his final defence statement also submitted after the examination of the witnesses on 24-6-63 the plaintiff made a grievance that, the old A.Y.M. (w/s) whose correct name he was unable to state was present at the R.P.W. office, and he was asked to stand witness but he did not agree.

9. Under Rule 1712 (3), the railway servant shall have the opportunity of adducing evidence on which he relies. If a witness cited by him is not called by the Inquiry Officer, it will be contrary to the provisions of the rules and in violation of the principles of natural justice. It is also necessary that the railway servant should give the full name and particulars of such witness to enable the Inquiring Authority to issue notice to him. In this case there is no doubt that the description of the witness given was incomplete and nowhere it has been established that there is really any person, and an A.Y.M. (w/s) and an old man too, bearing the name of Sri Banerjee. That the Inquiring Authority took paina to contact one Sri S. K. Sen Gupta an ex-A.Y.M. (w/s) shows that there could be no such person bearing the name of Sri Banerjee as A.Y.M. (w/s). To establish his case the plaintiff did not obtain any categorical answer from the D.W.I, that Sri Banerjee was the A.Y.M. (w/s) on the material date. In his evidence the plaintiff stated that Sri B. B.Banerjee A.Y.M. Foreman was contacted by phone by the Inquiry Officer and he told the plaintiff that Sri Banerjee had told him that he did not remember the occurrence.

10. I have dealt with this aspect in some details, as it would be a serious thing to deprive the accused railway servant the benefit of evidence of his witness on whom he relies. As already seen, the particulars of the witness given were incomplete and even on the plaintiff's evidence misleading. The plaintiff could have cited Sri Banerjee even in this suit to establish that he was the A.Y.M. (w/s) at the material point of time. While this was not done, in his evidence the plaintiff stated that Sri B. B.Banerjee was A.Y.M. Foreman. It also appears that the Inquiring Authority took pains to find out the identity of the proposed witness. On the materials, I am unable to hold that the identity of the witness was established. And if he could not be examined it was due to the fault of the plaintiff in furnishing incomplete particulars. Accordingly it could not be said that in the circumstances a reasonable opportunity to examine the defence witness was not given.

11. The next contention of Mr. Mukherjee is that the charges against the railway servant should have been proved in the Civil Court once again. Whatever may have been the position before the Inquiring Authority, it was contended that it was incumbent on the railways to establish in the court of law having jurisdiction to prove that the plaintiff was guilty of the offences charged which however was not done. Mr. Basu has disputed the said contentions and has contended that the charge against the accused railway servant need only be proved before the Inquiring Authority which is a statutory body and need not be proved further before the Civil Court.

12. The contention of Mr. Mukherjee about the scope and jurisdiction of the Civil Court in respect of the findings of the domestic tribunal is misconceived. The Civil Court does not sit as a court of appeal against the findings of such tribunal. It can interfere with such findings only on specified grounds namely (i) where the Inquiry Authority has acted under bias or bad faith (ii) where it has violated, the principles of natural justice in proceedings and in conclusions and (iii) where it has exceeded its jurisdiction. These principles are now well settled vide State Medical Faculty of West Bengal v. Kshiti Bhusan, : AIR1961Cal31 and followed in Nani Gopal v. State of West Bengal, : (1968)IILLJ617Cal . There was thus no scope for the Civil Court to enter into the findings of the Inquiry Authority on the evidence adduced before it nor was the administration required to prove the charge against the accused railway servant again before the Civil Court, which could interfere only in cases where the proceeding before the domestic tribunal or its conclusion has been vitiated by reason of the defaults referred to above, which however is not the case here.

13. Mr, Mukherjee lastly drew my attention to the charge-sheet whereby the plaintiff was asked by notice dated 5-3-63 to show cause why he should not be punished with the penalty specified in item 9 of the list (Dismissal from service) or with any of the lesser penalties of the said list on the charge set out therein. This according to Mr. Mukherjee clearly indicated that the dismissing authority had no open mind about the charge but was already biased against the accused railway servant and the question was only one of imposition of penalty and thus there was failure of natural justice warranting interference. In support he relied on the decision in S. Manickram v. Supdt. of Police, : (1963)IILLJ62Mad where it was held that when the punishment is mentioned in the charge, it shows that even before the charges are enquired into and a finding arrived at on the basis of the enquiry, the Government servant has been prejudged. It is also held that this method of framing charge is not consonant with Article 311. Again in M. Chinnappa Reddy v. State of Andhra Pradesh, : AIR1969AP234 , it was held that if at the initial stage the charge framed indicates the proposed punishment, it vitiates the entire proceeding.

14. Mr. Basu opposing the above contentions, urged that the question of following the procedure of natural justice is one of substance and not of form. Here the accused railway servant was given all opportunity to deny the charge on disclosure of all facts, to examine and cross-examine the witnesses and to show cause against the proposed punishment on acceptance of the findings of the Inquiry Authority by the competent authority. Mr. Basu relied on the decisions in the case Bibhuti Bhusan v. State of West Bengal, : (1969)ILLJ300Cal in support of his contention that charge as framed did neither prejudge the guilt of the accused nor did it prejudice the enquiry. He also relied on some unreported decisions of this Court viz., Adyodhaya Prosad v. General Manager, S. E. Rly., C. R. 820W of 1964, D/- 23-5-1968 (Cal) and Bappa v. General Manager, S. E. Rly, C. R. No. 403W of 1965, D/- 8-7-1969 (Cal) both of D. Basu. J. and Gopendra v. General Manager, S. E. Rly., C. R. No. 2301W of 1966, D/- 26-8-1969 (Cal) of B. C. Mitra, J.

15. In : (1969)ILLJ300Cal . A. C. Sen J. held:

A charge-sheet is given when a prima facie case is made out and a departmental proceeding is not initiated unless the punishing authority is satisfied that a prima facie case has been made out against the delinquent employee. The words quoted above from the charge-sheet merely suggest that in view of the charges made against the petitioner he is to show cause why he should not be awarded any of the three modes of punishment contemplated by Article 311 of the Constitution. If at the enquiry he can satisfy the enquiring officer that the charges are baseless, then there is no question of punishing him. It is absurd to suggest that the enquiry was started with the sole idea of punishing the petitioner and that the enquiry was an idle ceremony. That the sole object of the enquiry was to afford the petitioner an opportunity to defend himself and to prove that he was innocent will be clear from the last sentence in the charge-sheet which is set out below: 'You are also directed to state to the above mentioned enquiring officer within the aforesaid tune whether you desire to be heard in person in your defence and to produce witnesses, if any'. If the only object of the enquiry was to punish the petitioner, he would not have been asked if he desired to be heard in person in his defence and to produce witnesses. Therefore, in my opinion, the enquiry was not tainted with bad faith at its inception. The same view was taken in Adyodhaya Prosad's case, C. R. No. 820W of 1964, p/- 23-5-1968 (Cal) where it was held that in the charge sheet the penalty specified was in item 8 of the list or lesser punishments which indicated that the authorities did not make up their mind but were informing the accused railway officer the various penalties that could be passed if he failed to show cause. The same view was taken in the other two cases.

16. The contention urged by Mr. Mukherjee would possibly have substance if it related to a charge sheet bearing date of 6-10-1963 or thereafter when the clause (21 of Article 311 was amended by the Constitution (Fifteenth) Amendment. 1963, and that will bring the case of M. Chinnappa Reddy, AIR 1969 Andh Pra 243 (Supra) out side our consideration. The Supreme Court in considering the charge sheet similar to what we have here, observed in the case of Khem Chand v. Union of India, : (1959)ILLJ167SC , with reference to Article 311(2) before amendment as follows:

'............All that it says is that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. He must not only be given an opportunity but such opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is quite obviously necessary that the Government servant should have the opportunity to say, if that be his case, that he has not been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and severe than he deserves. Both these pleas have a direct bearing on the question of punishment and may well be put forward in snowing cause against the proposed punishment. If this is the correct meaning of the clause, as we think it is, what consequences follow? If it is open to the Government servant under this provision to contend, if that be the fact, that he is not guilty of any misconduct then how can he take that plea unless he is told what misconduct is alleged against him? If the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and the evidence by which it is sought to be established, for it is only then that he will be able to put forward his defence. If the purpose of this provision is to give the Government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross-examine the witnesses called against him and to examine himself or any other witness in support of his defence. All this appears to us to be implicit in the language used in the clause, but this does not exhaust his rights, as he has, in addition, the right to show cause against the proposed punishment'.

17. In view of the interpretation given to the charge sheet like the one Impugned herein, it is no longer possible to contend that asking a delinquent to show cause against the penalty to be imposed on him does by itself mean that his case has been prejudged. The decision cited by Mr. Mukherjee in the case of Andhra Pradesh relates to the charge-sheet after the amendment of Article 311(2), which in its terms may support the contention of the plaintiff, while the terms of Article 311(2) before amendment are to the following effect.

'311 (2). No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him ... ... ...'

and thus do not support the contention of Mr. Mukherjee or the Madras case relied on by him. On the contrary on the authority of the decision cited above the contention of the plaintiff on this point must be overruled, as in the circumstances of this case, I hold in agreement with the appellate court, the rules of natural justice have been duly followed.

18. As all contentions on behalf of the appellant fail, this appeal is dismissed, without any order as to costs in this Court.


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