GATI KRUSHNA SAHOO Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner has been working as a 'Rakshyak' in the Railway Protection Force. He was posted to Dhanmandal Railway Station on duty on 28.5.1983. On account of an occurrence which took place at the Dhanmandal Railway Station on 3.6.1983, he was placed under suspension w.e.f. 1.7.1983. On 7.7.1983 the Asst. Security Officer, Railway Protection Force, Khurda Road served a charge sheet on the petitioner. In the said charge sheet, the charge alleged against the petitioner is that he committed gross misconduct and was guilty of negligence in duties in as much as he failed to prevent or detect the theft of 149 kgs. of rice from Wagon No. SE 25093 Ex. Patiala to Bhubaneswar standing on Line No. 3 of Dhanmandal Station. Alongwith the charge, a statement of allegations against the petitioner was furnished and on the said statement of allegations it was alleged that on 3.6.1983 at 1.00 hrs. S. I. M. Khan of Cuttack and others during their secret watch, noticed that two criminals pilferred rice from Wagon No. SE 25093 standing on line No. 3 of Dhanmandal Station, in presence of the petitioner during his duty hours, and the stolen property comprising of rice weighing 137 kgs. was subsequently recovered and seized and the two criminals arrested. The petitioner denied the said charges and an enquiry into the said charge against the petitioner was ordered by the disciplinary authority. On or about 19.7.1983 the petitioner wrote to the Asst. Security Officer, Southern Railway, Khurda Road requesting him to supply the extracts of records/documents mentioned therein. The documents/records mentioned in the said letter dated 19.7.1983 of the petitioner were 16 in number. On 17.12.1983 the petitioner wrote to the Enquiry Officer that he has nominated Sri H. C. Mishra, S. I., R. P. F., Cuttack as his defence counsel. On 28.1.1984 the petitioner while praying for some time before the Enquiry Officer, stated that he has been furnished with only five out of 16 records/ documents listed in his earlier letter dated 19.7.1983 and that 11 documents/records are yet to be furnished to him and he requested him to pass orders directing the officer concerned to make the said 11 documents/records available to his defence counsel. But, by letter dated 4.2.1984 the Asst. Security Officer, Khurda Road informed the petitioner that the five documents have been duly received by him and the rest of the documents were not relevant and not available, and the question of furnishing the rest of the documents did not arise. Thereafter, the enquiry was held and concluded and the petitioner's case is that only at the time of conclusion of the enquiry on 21.9.1984 the remaining 11 documents/records were furnished to the petitioner. The Enquiry Officer submitted the enquiry report on 27.9.1984 holding the petitioner guilty of the charge and the 2nd show cause notice was issued to the petitioner on or about 11.10.1984. The petitioner submitted his reply to the said 2nd show cause notice. But, by order dated 17.11.1984 the petitioner was removed from service by way of punishment. Being aggrieved by the order of removal, the petitioner initially approached Calcutta High Court and obtained an order of interim stay against the order of removal. The said order of the Calcutta High Court was given effect to by the authorities and the petitioner was reinstated in service on 31.5.1985. But, thereafter the writ petition in the Calcutta High Court was withdrawn as there were some objections from the opposite parties that Calcutta High Court has no jurisdiction to entertain the matter. After the writ petition was dismissed as withdrawn, the petitioner was removed from service again by order dated 6.2.1985 of the Security Officer. The petitioner preferred an appeal against the order of punishment of removal, but, the appellate authority rejected the appeal by his order dated 12.3.1986. The petitioner filed a revision, but the said revision application was also dismissed by the revisional authority. Being aggrieved, petitioner has filed this writ petition under Articles 226 and 227 of the Constitution of India, praying for quashing the enquiry report, order of removal, the order passed in the appeal and the order passed by the revisional authority.

(2.) AT the hearing of this writ petition, Mr. K. N. Jena, learned counsel for the petitioner submitted that the principles of natural justice in this case have been violated in as much as only five out of the 16 documents asked for the petitioner in his letter dated 19.7.1983 to the Asst. Security Officer, Southern Railway, Khurda Road (Annexure 6), were furnished to the petitioner, but the remaining 11 documents were not furnished on the ground that they were not relevant. Mr. Jena referred to the findings in the enquiry report to show as to how the Enquiry Officer has relied upon the remaining 11 documents in support of his conclusion that the petitioner was guilty of the charges. According to Mr. Jena, therefore, the 11 documents not furnished to the petitioner were also relevant and as the said documents have not been furnished, the findings of the Enquiry Officer and the findings of the Disciplinary Authority, which are also based on the findings of Enquiry Officer, are liable to be quashed on the ground of violation of the principles of natural justice. Mr. Jena further submitted that Rule 44 of the Railway Protection Force Rules, 1959 (referred to hereinafter as the 'Rules, 1959') provides the procedure for imposing major penalty and Sub Rule (5) thereof provides that the member of the Railway Protection Force charged of any misconduct may be permitted by the inquiring authority to present the case with the assistance of any other member of the Force of the Zonal Railways serving in the same division in which the member so charged is working. Mr. Jena argued that although the petitioner sought for such assistance of Sri S. C. Mishra in his letter dated 17.12.1983 to the Enquiry Officer, no such assistance was provided and thus there has been an infraction of the aforesaid statutory provision causing grave injustice to the petitioner. He submitted that Rule 58 of the Rules 1959 provides the manner in which the appellate authority will consider the appeals filed against the order of punishment passed by the disciplinary authority and Sub Rule (2) of Rule 58 of the Rules 1959 provides that the Appellate Authority shall consider whether the procedure prescribed in the rules had been complied with and, if not, whether such non compliance has resulted in violation of the provision of the Constitution or failure of justice, whether the findings of the disciplinary authority are justified and whether the penally imposed was excessive, adequate or inadequate. But the order of the appellate authority, Mr. Jena pointed out, does not show that the appellate authority complied with aforesaid requirements of Sub Rule (2) of Rule 58 of the Rules 1959. He further submitted that the revisional authority is also required to comply with the provision of Rule 58, as has been mentioned in Sub Rule (3) of Rule 60 of the Rules, 1959, but the revisional authority in this case has also passed a criptic order dismissing the revision of the petitioner. Finally, Mr. Jena argued that in any case the findings recorded by the Enquiry Officer and Disciplinary Authority are not justified and the charge of misconduct, as mentioned in the charge sheet, has not been established against the petitioner.

(3.) THE impugned Appellate Order dated 20.3.1986 was passed when the Rules 1959 were in force. Rule 58 of the Rules, 1959, which is titled as 'consideration of appeals' is quoted as hereunder: