B BHIMRAJEE Vs. UNION OF INDIA

JUDGEMENT

(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.