G AKBAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Pursuant to the disciplinary action initiated against the petitioner, who was working as a Head Constable in the third respondent/ Factory, charging that:

(2.) Mr.Shafiur Rahman, learned counsel for the petitioner assails the impugned order of dismissal dated 20.2.1998 as under: (i) placing reliance on the decision of this Court in BALIAH DAVID A. Vs. R.M., CENTRAL BANK OF INDIA reported in 2002-I-LLJ 270 it is contended that: (a) the impugned disciplinary proceedings vitiates due to the appointment of the Enquiry Officer while framing the charge memo itself, as the same amounts to denial of an opportunity to the petitioner to explain his charges preliminarily; (b) when the petitioner was initially permitted to engage one S.A. Rasheed, as a friend to assist him in the enquiry under Rule 153(8) of the Railways Rules, 1987 from 25.10.1994, the respondents ought to have permitted the petitioner to avail the assistance of S.A.Rasheed during the entire enquiry and the denial of such an opportunity to avail the assistance of a friend during the enquiry by transferring S.A. Rasheed from Integral Coach Factory to Madras Division amounts to violation of principles of natural justice; and (c) the denial of granting adjournment to cross-examine the department witnesses again amounts to violation of principles of natural justice; (ii) the finding of the enquiry officer holding both the charges proved is erroneous as there is absolutely no evidence for the same, inasmuch as the enquiry officer purely relied upon the alleged confession statement of one S.Ramalingam, the accused, who was not at all examined before the enquiry officer, and as a result, the petitioner was deprived of an opportunity to cross-examine S.Ramalingam to disprove the alleged confession statement. In this regard, reliance was placed on the decision of the Apex Court in BHAGAT RAM Vs. STATE OF H.P. reported in AIR 1983 SC 454 and contended that as the conclusion of the enquiry officer is based on 'no evidence', the consequential order of dismissal is also liable to be quashed. Furthermore, it is contended that the failure on the part of the disciplinary authority, the appellate authority and the revisional authority to consider that the findings of the enquiry officer are based on 'no evidence' also vitiates the impugned order of dismissal and suffers from nonapplication of mind; and (iii) the enquiry officer was biased, in the sense that the enquiry officer who was expected to be impartial during the enquiry had put incriminating questions to the petitioner, and the statements to such incriminating questions were relied upon.

(3.) In reply, Mr.V.Suresh Kumar, learned counsel for the respondents submits that: (i) the appointment of the enquiry officer along with the framing of charges would not amount to denial of principles of natural justice to make his objections preliminarily to the charge memo, as the petitioner was given all fair and reasonable opportunity of hearing before the enquiry officer; (ii) inviting attention to the proceedings of the Security Commissioner, Integral Coach Factory, dated 20.4.1995, it was contended that S.A.Rasheed, who was cited as a friend of the petitioner to assist him in the enquiry, was transferred from Integral Coach Factory to the Madras Division, at his own request, but not to deny an opportunity to the petitioner to engage S.A.Rasheed as a friend in the enquiry. Moreover, the petitioner, having stated that he was willing to defend himself during the enquiry on 12.7.1995, could not have any grievance on account of transfer of S.A.Rasheed; (iii) the mere denial of an adjournment, unless it is blended with malafide, would not amount to an arbitrary exercise of power, particularly when the petitioner unreasonably seeks time to crossexamine the department witnesses; (iv) the findings of the enquiry officer are based on sufficient materials available on record, viz., the confession statement of S. Ramalingam, the accused, which corroborates with the statement of department witnesses, viz., (a) C.K.Harilal, Assistant Sub Inspector at the same Time Office Gate, Counter No.5; (b) R.Mani, Naik, and (c) R. Ravichandran, and is also supported with the corroborative evidence of independent witnesses, viz., (1) S.Asokan, and (2) S.Parthasarathy; and therefore the evidence of none of the above witnesses could be said as hearsay witnesses, as all of them are eye-witnesses to the incident and two of them are independent witnesses, as referred to above. In view of the corroboration of the evidence of the department witnesses and the independent witnesses with that of the confession statement of S.Ramalingam, the accused, the non-examination of S. Ramalingam, the accused, would not vitiate the disciplinary proceedings; (v) the allegation that the enquiry officer had put incriminating questions and therefore, the enquiry as well as the findings of the enquiry officer are liable to be held arbitrary and biased is not tenable, inasmuch as the findings of the enquiry officer are purely based on materials available on record; and (vi) it is contended that the decision of the disciplinary authority based on the findings of the enquiry officer and the further orders of the appellate authority and the revisional authority are purely based on materials available on record and therefore, the contention that the respondents failed to apply their minds is not tenable.