SANKAR THAKUR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner while serving as a Constable of the Railway Protection Force of South-Eastern Railway was served with a suspension order dated 3-12-87. By that order the petitioner was placed under suspension on ground of act of indiscipline. Subsequently however by an order dated 25-1-88 the said suspension was revoked. A domestic enquiry however was started against the petitioner. The statement of charge had been annexed as Annexure-C to the writ petition. The charge against the petitioner was that he created nuisance in G.R.C. hospital premises and also misbehaved with on-duty DMO/Casualty at G.R.C. on 1-12-87. In the statement of allegation in connection with the said charge, it is stated that the petitioner had 'C' shift duty on 31-11-87 but he remained absent on that date and sent one intimation of indisposition to the RPF-Post/GRC through his daughter and on 1-12-87 he was issued with a medical memo from the post on his demand and the petitioner attended GRC hospital on the date in a drunken state and on being asked about his drunkenness by Dr. (Mrs.) N. Kohili, he started shouting and created nuisance in the hospital premises and also misbehaved with the said doctor and threatened to do harm on the way of her going out of hospital. It is also stated therein that all these acts of misbehaviour on the part of a member of the Disciplined Force amount to gross indiscipline. The charge-sheet was drawn up on 25-1-1988 and was issued under the signature of the Assistant Security Commissioner, RPF/S.E.Rly./Shalimar. The petitioner gave reply to the charge-sheet. The Enquiry Officer after completing the enquiry held the petitioner guilty of the charge. The Disciplinary Authority on the basis of the finding of the Enquiry Officer dated 5-1-89 issued a notice to the petitioner, after agreeing with the finding of the Enquiry Officer, proposing to impose the penalty of removal from service and invited representation from the petitioner on the proposed penalty by his letter dated 25-7-89 which is Annexure I to the writ petition. Thereafter the petitioner moved the present writ petition under Article 226 challenging the charge-sheet dated 25-1-89, the finding of the Enquiry Officer dated 5-1-89 and the purported show-cause notice dated 25-7-89. On 7-11-89 the learned Judge who dealt with the matter granted liberty to the petitioner to file supplementary affidavit on receiving the order removing him from service. In the supplementary affidavit the petitioner has challenged the order of the Divisional Security Commissioner, RPF, S.E.Rly. Kharagpur removing the petitioner from service as a disciplinary measure.

(2.) It may be mentioned here that both the Railway Protection Force Rules, 1959 and the Railway Protection Force Regulations 1966 were repealed by the Railway Protection Force Rules, 1987. It has been contended by the learned Advocate for the petitioner that the charge-sheet was issued to the petitioner without making any preliminary enquiry into the matter. This however cannot be a ground for quashing the charge-sheet or the domestic enquiry when the petitioner has been asked to meet the specific charge mentioned in the charge-sheet. In this case, it also appears that the charge-sheet contained specific charge against the petitioner and the matter was initiated after the doctor on duty at the GRC hospital made a written complaint about the misconduct of the petitioner. It is contended on behalf of the petitioner that the petitioner was not supplied with the documents and the statements of PWs and the names of the PWs were not mentioned in the charge-sheet. This, according to the learned Advocate for the petitioner, violates natural justice and that being so, the departmental enquiry is liable to be quashed on that ground. In this connection, the learned Advocate for the petitioner also attracts my attention to Annexure-D to the writ petition which is an application made by the petitioner in February, 1988 to the Assistant Security Commissioner requesting to arrange to supply certain statements and extracts of certain documents mentioned therein. From Annexure-Y to the affidavit-in-opposition it appears that by letter dated 16-3-88 the Assistant Security Commissioner informed the petitioner that he was permitted to see the relevant and available documents in connection with the charge-sheet issued against him and take extracts thereof in presence of O.C., RPF, GRC within 3 days of the receipt of the letter. The petitioner was further advised in that letter to submit his explanation within 3 days of perusal of records positively. We thus find that the petitioner was granted opportunity not only to inspect the documents in connection with the charge-sheet but also to take extracts thereof. In his application also the petitioner mostly wanted extracts of documents. Therefore it cannot be said that the petitioner was given no opportunity to peruse the documents and take extracts thereof. From Annexure-E to the writ petition it appears that the petitioner submitted his reply to the charge-sheet on 22-4-88. In that reply he did not make any grievance whatsoever that he was not allowed to inspect or take extracts of the concerned documents or that he had been in away prejudiced in that respect. As we have seen, as a matter of fact, opportunity was extended to him in writing to inspect and take extracts of the relevant documents. In the circumstances, as noted above, the petitioner cannot now make a grievance that the relevant materials were not made available to him. The learned Advocate for the petitioner in this connection refers to a decision of the Supreme Court in Kashinath Dikshita v. Union of India, AIR 1986 SC 2118. In that case the officer proceeded against requested for supply of copies of statements of witnesses recorded ex parte at the pre-enquiry stage and also of the documents on which reliance was placed by the Department to establish the charge before the enquiry commenced. The request made by the appellant was however turned down by the Disciplinary Authority, but the Disciplinary Authority granted permission to the officer concerned to inspect the copies of the statements and documents in question. The request of the officer for allowing him to be accompanied by his stenographer to whom he could dictate notes based on his inspection was however turned dawn by the Disciplinary Authority though the appellant was told that he himself could take such notes as desired on the basis of inspection made by him. In the said case as many as 38 witnesses were examined and as many as 112 documents running into hundreds of pages were produced to substantiate the charges. It is also to be mentioned that in that case there were as many as 8 charges. Taking an overall view of the matter the Supreme Court in that case held that there had been a denial of reasonable opportunity. The said decision was given in the facts and circumstances of that case and the same does not necessarily apply to other cases where the facts and circumstances may be substantially different. That the question whether there has been any denial of reasonable opportunity resulting in prejudice to the concerned employee depends upon the facts and circumstances, will be evident from the following observations of the Supreme Court in the said case :

(3.) Again, in paragraph 11 of the said decision (supra) it has been further observed thus :