UNION OF INDIA Vs. CHANDRAMA TIWARI

JUDGEMENT

(1.) This is a defendant's second appeal by the Eastern Railway administration. The plaintiff-respondent claimed a declaration to the effect that the notice dated 27th June, 1969 dismissing him from service was illegal, invalid, inoperative and unconstitutional and that the plaintiff respondent continues in employment and is entitled to all the benefits and privileges of the post of fireman. The trial court decreed the suit declaring the notice dated 27th June, 1969 dismissing the plaintiff respondent from service as illegal, inoperative and ineffective, the lower appellate court has confirmed the decree.

(2.) According to the plaintiff-respondent he joined railway service some 18 years before the suit. On 28th May, 1964 he was posted as fireman at Moghalsarai and "was booked on duty along with Kharpat, driver, and P.S.Lal Srivastava, second fireman." The same day coal was "fraudulently" removed from Pusauli Railway Station "by somebody posing himself as Shambhu Tewari before the Chaukidar." Shri A. K. Chatterjee, J. F. I. Moghalsarai, Deputy Loco Foreman Moghalsarai and Shri H.G. Goswami, Station Master were suspected but on investigation, the police could not make out any case against them. Thereupon, Shri B. N.Tiwari, Assistant Station Master Pusauli, alleged to bear a grudge against the plaintiff-respondent, gave it out that it was the plaintiff who had posed as Shambhu Tiwari, but the police did not find the plaintiff guilty and submitted a final report. A chargesheet was thereafter issued on 6th Feb. 1967 by the Railway Administration in respect of the very same matter. An enquiry was thereafter conducted by the disciplinary authority. The only witness who appeared against the plaintiff before the Enquiry officer was the said Assistant Station Master Shri B. N. Tiwari. The Chawkidar was not examined although the plaintiff requested the Enquiry Officer to examine him. The plaintiff-respondent has then proceeded to attack the findings recorded by the Enquiry Officer as "illegal, unwarranted by facts and record and based on surmises and conjectures and in utter breach of the statutory rules and against the principles of natural justice". It is then pleaded by the plaintiff that a show cause notice dated 11th April, 1969 was issued to him on the basis of the Enquiry Officer's findings. The plaintiff submitted a reply, but according to him no consideration was given to it and a notice dated 27th June, 1969 was issued dismissing him from service. It has then been pleaded that the said notice was illegal, ultra vires the Constitution, unwarranted by fact, perverse and against the principles of natural justice on grounds (a) to (g) that are specified thereunder in paragraph 9 of the plaint.

(3.) The defendant Railway Administration denied the plaint allegations and pleaded that the suit was filed on wrong and incorrect allegations and was not maintainable. It was asserted that the plaintiff was appointed in service on 14th August, 1949 and was removed from service on 27th June, 1969. Apart from the final punishment of dismissal from service, he had been punished twice before by stoppage of his annual increment, on the first occasion for not being found present when called for duty on 6th Feb. 1960 and on the second occasion for refusing the call when required on duty on 31st August 1960. Finally the plaintiff was removed from service with effect from afternoon on 27th June, 1969 for posing as Shambhu Tiwari before the Chowkidar and the Mate of Permanent Way Inspector/Karamnasa at Pusauli Station, and representing himself as the Coal Contractor sent by the Loco Foreman, Mughalsarai and taking away the coal from the custody of the Permanent Way Inspector Karamnasa at Pusauli Station. With regard to his punishment it was pleaded by the defendant Railway Administration that on 28th May, 1984 the plaintiff's Headquarter was at Mughalsarai; that he was booked up to six hours on that day, to work T.P. 8, along with Kharpat driver and Sri P. S. Lal Srivastava, 2nd Fireman; that he was on rest from six hours that day, that the base of T.P. 8 (DMT) was changed from Pusauli to Dehri-on-Sone. In the morning of 28th May, 1964, Ramandan Chowkidar saw that the coal was being loaded on a truck by some unknown persons and on interrogation, the person removing the coal, gave out his name as Shambhu Tiwari and represented that he was the owner of the truck and the coal contractor. It was found on enquiry that it was the plaintiff who had posed as Shambhu Tiwari. Enquiries were made and disciplinary action was taken against Shri A. K. Chatterjee, JFI and Shri H. G. Goswami, Station Master also, that there was no enmity between the plaintiff and Shri B. N.Tiwari, and that the defendant Railway Administration had no knowledge of the same. With regard to the enquiry in the disciplinary proceedings it was stated that on going through SP/SPE's report the disciplinary authority found the plaintiff responsible and accordingly issued a charge-sheet dated 6th Feb. 1967, against the plaintiff; that 8 persons were examined and cross-examined in the enquiry. All reasonable facilities were given and the plaintiff's allegations to the contrary were wholly wrong and unfounded; that the statement of Kharpat driver and other witnesses before the Enquiry Officer fully proved the plaintiff's guilt and it is wrong to say that the plaintiff did not commit any offence; that the Chowkidar Ramnandan of Gang No. 1 under Permanent Way Inspector, Karamnasa, did not turn up as a witness but his mate Ram Lakhan under Permanent Way Inspector, Karamnasa attended the enquiry and was examined; that copies of the oral evidence recorded in the enquiry were made available to the plaintiff and the documents relied upon were inspected by the plaintiff on Ist April, 1967 in the office of SP/SPE/Patna, and on 28th April, 1967 in the office of the Divisional Superintendent, Danapur. The defendant Railway Administration then relied on a statement made by the plaintiff on 19th Dec, 1968 before the Enquiry Officer, the statement as recorded by the Enquiry Officer being: "The enquiry was concluded at this stage and Sri Chandrama Tewari was asked if you had any written or oral submission to make in respect of the evidence recorded during the enquiry. Sri Tewari stated that he would submit a written defence note by 30-12-1968". It is then alleged that the plaintiff failed to submit his "defence note" to the Enquiry Officer till 29th Jan., 1969 whereupon the Enquiry Officer recorded his findings on the evidence adduced during the enquiry. It was added that as a result of the enquiries against Sri A. K.Chatterjee and Sri H. G. Goswami, the pay of Sri H. G. Goswami, Station Master, Pusauli was reduced by two stages for a period of two years as "penalty for not taking positive action in stopping removal of the coal with the result that the coal was removed to some unknown destination and it never reached the Pump House, Pusauli and the Railway was thus put to a loss of considerable amount." The pleas of under-valuation, insufficiency of court-fees, bar of Ss. 34 and 41 of the Specific Relief Act, non-maintainability of the suit and invalidity of the notice under S. 80 of the Civil P. C. were also raised.