UNION OF INDIA Vs. PHUNOO

JUDGEMENT

(1.) The plaintiff was working as a Khalasi in Bridge workshop in North Eastern Railway, Gorakhpur. It is alleged that on 23.4.1975, he assaulted the bridge inspector while on duty. On the basis of the complaint filed by the bridge inspector a charge-sheet dated 21.5.1975 was served upon the plaintiff proposing to take action under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. The said charge-sheet was not accompanied by any documents nor was accompanied by any list of witnesses. Pursuant to the said charge-sheet an enquiry was initiated in which the plaintiff participated and thereafter on the basis of the enquiry report the disciplinary authority passed an order of dismissal dated 19.12.1977. The plaintiff filed an appeal which was also dismissed. Thereafter, the plaintiff filed a suit praying that the order of dismissal was void, as the same was contrary to the Rules, against Article 311 of the Constitution of India and was also violative of the principles of natural justice. The plaintiff further prayed that he should be treated to be in service with all consequential benefits.

(2.) The trial court after framing the necessary issues dismissed the suit with costs holding that the enquiry was held in accordance with the rules and in accordance with the principles of natural Justice and that the dismissal order is legal and is not contrary to law.

(3.) Aggrieved by the dismissal of the suit the plaintiff filed an appeal before the first appellate court, which was allowed and the suit was decreed with costs holding that the dismissal order dated 19.12.1977 dismissing the plaintiff from service is arbitrary, Illegal and void. The appellate court held that the charge-sheet was not accompanied by a list of witnesses, which was fatal and was violative of the mandatory provisions contained in Rule 9 (6) (ii) (b) of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as the Rules). The appellate court further found that the contravention of the mandatory provisions of the aforesaid rules vitiates the entire departmental enquiry. The appellate court further found that the names of the witnesses were disclosed by the complainant in his statement during the enquiry proceedings and the names of the witnesses were not disclosed by the disciplinary authority. Based on the statement of the complainant, the witnesses were examined and even though the plaintiff was given an opportunity to cross-examine the witnesses, the appellate court found that no reasonable opportunity was given to him and that the plaintiff was taken by surprise and had no time, to prepare himself except to formally cross-examine the witnesses. The appellate court further held that the denial of opportunity of hearing prejudiced the plaintiff, which vitiated the entire proceedings before the enquiry officer. The appellate court further found that the complainant himself was the Presenting Officer in the enquiry proceedings and did not disclose the name of the witnesses except at the last moment when he made his deposition and therefore, came to a conclusion that the enquiry officer did not conduct the enquiry impartially and acted under the influence of the Presenting Officer. In view of the findings given by the appellate court, the suit of the plaintiff was decreed.