MAHENDRA KR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE appellant filed the writ petition being Writ Petition (c) No. 3399/2003 challenging the order dated 16th/17th of August, 2002 passed by the disciplinary authority dismissing the petitioner from service as Head Constable of the Railway Protection Force (in short, RPF) mainly contending that the procedure required to be adopted in the disciplinary proceeding initiated against him has not been complied with, inasmuch, the Enquiry Officer in coming to the finding that charges have been proved, has placed reliance on the statements made by two persons, namely, Ram Avatar Singh and Shri Bijendra Singh before the preliminary enquiry conducted by the authority prior to issuance of charge memo, without producing them before the disciplinary proceeding conducted against him, for cross-examination by the appellant, thereby denying the appellant of his right to cross-examine the witnesses and consequently violating the principles of natural justice. Such order of dismissal has also been challenged on the ground that the disciplinary authority before disagreeing with the finding recorded by the Enquiry Officer in the enquiry report did not issue any notice to him asking him to show cause as to why the charge levelled against the appellant should not be held to be proved by disagreeing with the finding recorded by the Enquiry Officer in the enquiry report.

(2.) THE appellant while serving as Head Constable of RPF and posted in NF Railway, Lumding, was served with a charge sheet being charge memo dated 06. 04. 2000 by the disciplinary authority asking him to show cause as to why the disciplinary action should not be taken against him for commission of gross misconduct by taking a sum of Rs. 60,000/- with a commitment to arrange appointment of the nephew of Shri Ram Avatar Singh as constable in RPF of NF Railway. The appellant on receipt of the said charge memo submitted his reply denying the allegations levelled against him. The disciplinary authority being not satisfied with the reply submitted by the appellant decided to hold a disciplinary proceeding against him and cosnequently the Enquiry Officer was appointed, who during the enquiry proceeding conducted by him examined two witnesses, namely, Shri M. C. Medhi and Shri S. K. Basak in support of the charges levelled against the appellant who conducted the preliminary enquiry against appellant. These witnesses were duly cross-examined by the appellant. The said witnesses also exhibited the statements of Ram Avatar Singh and Bijendra Singh made during the preliminary enquiry. The Enquiry Officer, thereafter submitted the report dated 15. 04. 2000 with the finding that the allegation of taking a sum of Rs. 60,000/- by the appellant from Ram Avatar Singh could not be proved. However, the Enquiry Officer in the said report has held that the demand of money has been proved. The disciplinary authority thereafter forwarded the said report submitted by the Enquiry Officer to the appellant vide communication dated 14. 06. 2002 for submission of his representation against the finding of the Enquiry Officer, if any. The appellant submitted his representation against the finding. The disciplinary authority by the order dated 16th/17th of August, 2002 dismissal the appellant from service by disagreeing with the finding recorded by the Enquiry Officer in the report that the allegation of taking a sum of Rs. 60,000/- has not been proved, which according to the disciplinary authority has been duly proved in the proceeding conducted against the appellant.

(3.) THE learned single Judge upon hearing the learned counsel for the parties, by the judgment and order dated 08. 06. 2004 dismissed the writ petition by holding that under the Railway Protection Rules, 1987 there is no requirement of giving prior opportunity to the delinquent before the disciplinary authority disagree with the finding recorded by the Enquiry Officer, which, such authority can do, if the evidence on record is sufficient for the said purpose. The learned single Judge has rejected the contention of the appellant relating to non-examination of Ram Avatar Singh and Bijendra Singh in the proceeding and taken into account their statements recorded in the preliminary enquiry by the disciplinary authority in passing the order of dismissal, on the ground that the appellant having himself brought on record of the enquiry the evidence in affidavit of the said two persons, he cannot complain of not giving him an opportunity to cross-examine the said two persons.