Union of India & Ors Vs. M. B.
Patnaik & Ors [1981] INSC 27 (11 February 1981)
VARADARAJAN, A. (J) VARADARAJAN, A. (J)
FAZALALI, SYED MURTAZA
CITATION: 1981 AIR 858 1981 SCR (2) 817 1981
SCC (2) 159 1981 SCALE (1)297
ACT:
Disciplinary Proceedings in a service
matter-Order of reversion quashed by the High Court on a technical ground-
Propriety of the second enquiry on merits-Whether it is necessary that the
enquiry which had been held in part by more than one enquiry officers should be
continued by the same enquiry officers until the end-Original enquiry officers
ceased to hold their respective offices by reason of their promotion to higher
posts-Whether the second enquiry done by them while holding the higher
promotional posts are bad and without authority of law.
HEADNOTE:
Allowing the appeals by special leave, the
Court,
HELD: (1) When an earlier order of reversion
was quashed on a technical ground, a second enquiry on merits could be held and
it is open to the disciplinary authority to continue the proceedings in
accordance with law. The order of reinstatement pursuant thereto is not a bar
to the second enquiry.
[820 F-G] Superintendent (Tech. I), Central
Excise I.D.D. Jabalpur and Ors. v. Pratap Rai, [1978] 3 S.C.R. 729; Anand
Narain Shukla v. State of Madhya Pradesh, A.I.R. 1979 S.C. 1923, followed.
(2) It is not at all necessary that the
enquiry which had been held in part by more than one enquiry officers should be
continued by the same enquiry officers until the end. The post which the members
of the Inquiry Committee held originally might have been ceased to exist at a
later stage, or one or more of the members of the Inquiry Committee may no
longer be available either on account of retirement or due to any other cause.
For that reason, it could not be held that the enquiry could not be continued
at all. Therefore, there could be no valid objection to the supplementary
enquiry being continued by the very two individuals, in the instant case even
after they had ceased to hold their respective offices which they held at the
time of the original enquiry.
[823 G-H, 824 A-B] General Manager, Eastern
Railway and another v. Jwala Prasad Singh, [1970] 1 SCC 103, applied.
[Having regard to the long lapse of time, the
offence having been alleged to have been committed in or about 1955, the Court
held that the fresh enquiry need not be held, and accepted the equitable offer
of the Union Railways and directed payment of Rs. 12,000/- to each of the
respondent employees.]
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos. 2119- 2121 of 1979.
Appeals by special leave from the Judgment
and Order dated 10-1-1979 of the Orissa High Court in O.J.C. Nos.
1261/76, 833/77 and 834/77.
818 AND Civil Appeal No. 389 of 1981. Appeal
by Special Leave from the Judgment and Order dated 10-1-1979 of the Orissa High
Court in O.J.C. No. 832/77.
M. M. Abdul Khadar, P. A. Francis, Gurumurthy
and R. N. Poddar for the Appellants.
Amlan Ghosh for the Respondents.
The Judgment of the Court was delivered by
VARADARAJAN, J.-These appeals by special leave have been filed against two
judgments of a Division Bench of the Orissa High Court (C. A. No. 389 of 1981)
arising out of the judgment in Original Jurisdiction Case No. 832 of 1977 and
C. As. Nos. 2119-2121 of 1979 arising out of Original Jurisdiction Cases Nos.
1261 of 1976 and 833 and 834 of 1977 respectively. P. N. L. Das, the respondent
in C.A. No. 389 of 1981 was appointed as a Booking Clerk in the South Eastern
Railway in 1955 and had been duly confirmed at that post. M. B. Patnaik, the
respondent in C. A. No. 2119 of 1979, was working as a confirmed Commercial
Clerk at Khurda Road in the South Eastern Railway, having been appointed in
January-February 1964. D. Sahu and S. C. Mitra, the respondents in C.As. Nos.
2120 and 2121 of 1979 respectively were working as confirmed Booking Clerks in
the South Eastern Railway at about the same time. A departmental enquiry was
initiated against these four respondents and three others, namely, Ch. N.
Murty, B. S. N. Rao and B. Papa Rao in 1964 on the basis of a report of the
Travelling Inspector of Accounts, and two charges were framed against them. The
second charge was not pressed, and we are, therefore, concerned only with the
disciplinary proceeding relating to the first charge, which led to the removal
of all the seven persons from service. The first charge framed against these
six persons was this :- "On 20th May, 1959, 47 third-class express tickets
had been issued from Khurda Road to Howrah for a total fare of Rs. 497.73 and
these were accounted short on the plea of over-issue of these tickets on
12-5-59. The record at Howrah Station indicated that the tickets were actually
sold on 20-5-59 and not on 12-5-59. The result was the fare amounting to Rs.
497.73 had been misappropriated on 20th December, 1959 by tampering with the
figure relating to 12-5-59 in the cash book.
The record foils of foreign express fare
tickets issued on 12-5-59 were fraudulently cancelled and the sum of Rs. 493.53
already accounted in the cash book against those 819 two foreign express
tickets was erased, and to balance the sum a fictitious sale of 47 tickets had
been entered in the cash book." Several points had been raised in the Writ
Petition (Original Jurisdiction Case) No. 832 of 1977. But when that case was
taken up the learned counsel for the petitioner P. N. L. Das confined his
arguments only to two points, namely that though the Evidence Act does not
strictly apply, suspicion and conjecture cannot form the basis of any
conclusion in any departmental enquiry and (2) reasonable opportunity of
defending himself had not been given to the petitioner P. N. L. Das. The
disciplinary authority and punishing authority, namely, the General Manager,
constituted an Enquiry Committee consisting of the Assistant Commercial
Superintendent, Khurda Road and the Assistant Accounts Officer, Garden Reach,
namely, Shri K. Julhe and Shri B. B. Chatterjee. In the midst of the enquiry
Shri K. Julhe was transferred and thereafter his successor in office Shri B. K.
Patnaik and Shri B. B. Chatterjee, the Assistant Accounts Officers, Garden
Reach continued the enquiry. The Enquiry Officers found the appellants in these
appeals guilty of the charge. The punishing authority, the General Manager, on
the representation of the respondents in C. As. Nos. 2119-2121 of 1979,
directed a supplementary enquiry to be held. Notice of the supplementary
enquiry was given in April 1967. At that time Shri B. K. Patnaik, who succeeded
Shri K. Julhe as the Assistant Commercial Superintendent, Khurda Road as stated
above, had been promoted as a Divisional Commercial Superintendent and was
posted at Kharagpur while Shri B. B. Chatterjee, who was Assistant Accounts
Officer, Garden Reach, had been promoted as the Divisional Accounts Officer and
had been posted at Adra.
These very persons issued the notice for
continuing the enquiry after the General Manager directed the supplementary
enquiry. It is at this stage that P. N. L. Das, the appellant in C. A. No. 389
of 1981 challenged in O. J. C. No. 579 of 1971 the jurisdiction of the Enquiry
Board. In that Writ Petition, Misra and Panda, JJ. of the Orissa High Court
while negativing several other contentions raised on behalf of P. N. L. Das,
directed that the supplementary enquiry pending against P. N. L. Das shall be
continued by the officers holding the post of Assistant Commercial
Superintendent, Khurda Road and the Assistant Accounts Officer, Garden Reach
and not by Shri B. K. Patnaik who had been promoted as the Divisional
Commercial Superintendent and was posted at Kharagpur and ceased to be
Assistant Commercial Superintendent, Khurda Road and by Shri B. B. Chatterjee
who had been promoted as the Divisional Accounts Officer and posted at Adra and
ceased to be the Assistant Accounts Officer, Garden Reach.
820 In W. Ps. (O.J.C.) Nos. 1261/76 and 833
and 834/77 Misra and Mohanty, JJ of the Orissa High Court found that by the
time the decision in the said O. J. C. No. 579 of 1971 was rendered by Misra
and Panda, JJ on 20-9-72, the enquiry against the respondents in C.As. Nos.
2119-2121 of 1979 had been disposed of and the disciplinary authority had taken
into account the material collected in the supplementary enquiry and found the
respondents in these three appeals guilty, in consequence of which these respondents
were removed from service by the punishing authority. Writ Petitions (O.J.C.)
Nos. 1271/76 and 833 and 834/77 were filed for challenging the removal of the
respondents in C. As. Nos. 2119-2121 of 1979 from service. Misra and Mohanty,
JJ held in these three Writ Petitions in their judgment dated 10-1-79 that in
view of what has been stated in the decision in Writ Petition (O.J.C.) No. 579
of 1971 (P. N. L. Das v. Union of India & Ors. the supplementary enquiry
made by Shri B. K. Patnaik who had ceased to be the Assistant Commercial
Superintendent, Khurda Road and Shri B. B. Chatterjee who had ceased to be the
Assistant Accounts Officer, Garden Reach, must be held to be without authority
of law, and having regard to the fact that the case of the railway
administration was not that the material gathered in the supplementary enquiry
had not been used by the enquiry officers and the disciplinary authority, the
finding of guilt and the imposition of punishment on the basis of that finding
could not be sustained. Accordingly, the learned judges allowed these Writ
Petitions (O.J.C.) Nos. 1261/76 and 833 and 834/77 and quashed the order made
in the disciplinary proceedings and directed that each of the three petitioners
before them, namely, the respondents in C. As. Nos. 2119-2121 of 1979 shall be
deemed to be continuing in service and would be entitled to appropriate service
benefits on that footing.
Mr. Pal, who appeared for the Railway
Administration before Misra and Mohanty, JJ in these three Writ Petitions
requested the learned judges to indicate that it is open to the disciplinary
authority to continue the proceeding in accordance with law. We are of the
opinion that the learned course was perfectly justified in doing so. This Court
has held in Anand Narain Shukla v. State of Madhya Pradesh that when the
earlier order of reversion was quashed on a technical ground, a second enquiry
on merits could be held and that the order of reinstatement pursuant to the
quashing of the earlier order on a technical ground is not a bar, and this
Court negatived the contention that after the earlier order of reversion was
quashed by the High Court and the govern- 821 ment servant was reinstated, no
second enquiry on the very same charge could be held and no second order of
reversion could be legally and validly made. A similar view has been taken by
this Court in Superintendent (Tech. 1), Central Excise I.D.D. Jabalpur and Ors.
v. Partap Rai in which it has been held that where an order passed in appeal
vacates the order of the First Tribunal on purely technical grounds and
expressly states that it was being passed without prejudice, which means that
it was not an order on merits of the case, such an order does not debar fresh
adjudicatory proceedings which may be justified under the law and that when an
order is struck down as invalid being in violation of the principles of natural
justice, there is no final decision of the case and all that is done is that
the inherent defect is removed out the proceedings are not terminated. But
Misra and Mohanty, JJ declined to consider favourably the request of the
learned counsel for the Railway Administration before them namely, that they
should indicate that it is open to the disciplinary authority to continue the
proceeding in accordance with law on the ground that 15 years had elapsed since
the charges were framed and the petitioners before the namely, the respondents
in C. As. Nos. 2119-2121 of 1979, had been suffering on account of being
subjected to disciplinary proceedings for such a long time and that it would be
a mockery of justice if after the lapse of so many years the enquiry should
commence again on the same charges.
When the supplementary enquiry, mentioned
above, commenced and P.N.L. Das, the respondent in C. A. No. 389 of 1981 was
examined, he insisted upon production of certain documents and witnesses but
they were not made available here on the plea that the documents were not
available and the witnesses who appeared to be ticket collectors, could not be
co-related. However, as already stated, he was adjudged guilty of the charge on
the footing that he had misappropriated the sale proceeds of express fare
tickets.
Misra and Mohanty, JJ observed in their
judgment in W.P. (O.J.C.) No. 832/77 that there is no positive material worth
the name to support the charge and lead to the conclusion that tickets had
actually been utilized, that the relevant documents appeared not to have been
reserved on account of negligence on the part of the administration and that on
the ground that the evidence is not available prejudice cannot be allowed to be
caused to the petitioner before them by relying upon suspicion and conjecture
as evidence. The learned judges further observed that as things stood it is
indeed difficult for them to hold that there is any evidence on record to
support the charge. In that view they allowed the Writ Petition and quashed the
punishment imposed on 822 P.N.L. Das and held that he continues to be in
service and is entitled to all the service benefits admissible to him.
These Civil Appeals by special leave have
been filed against these judgments of the Orissa High Court.
In the course of hearing of these appeals it
was represented to us that C.N. Murthy, B.S.N. Rao and B. Papa Rao have since
retired and that all payments have been made to them in full. It was also
represented that even P.N.L. Das had been reinstated and all arrears etc. due
to him have been paid. Mr. M.M. Abdul Khader, learned counsel appearing for the
appellants in all these cases, submitted that the view expressed in P.N.L. Das
v. Union of India & Ors. (supra) that the supplementary enquiry directed to
be held by the disciplinary authority should be held only by officers holding
the post of Assistant Commercial Superintendent, Khurda Road and Assistant
Accounts Officer, Garden Reach and not by the officers who had held those posts
at the time of the original enquiry and ceased to hold posts subsequently, is
incorrect. The learned counsel submitted that this position would appear from
the decision of this Court in General Manager, Eastern Railway and another v.
Jwala Prasad Singh referred to in the Judgment of the learned judges of the
Orissa High Court itself. The learned judges of the Orissa High Court have
extracted the following passage from the judgment of this Court in General
Manager, Eastern Railway and another v. Jwala Prasad Singh (supra) in their
judgment:- "In our opinion the above procedure does not leave any scope
for the guidance of a member of an Inquiry Committee consisting of more than
one person by the impression formed by him about the truthfulness or otherwise
of a particular witness examined during the inquiry. From the stage antecedent
to the framing of the charges everything is recorded in writing. The
allegations on which the charges are based are made known to the railway
servant and he is called upon to file his written statement after looking into
all the relevant records. The oral evidence of all the witnesses tendered
during the enquiry is recorded in writing. Whereas here the oral evidence is
recorded in the presence of three persons constituting the Inquiry Committee,
any impression created by the demeanour of a particular witness on the mind of
any one member cannot affect the conclusion afterwards arrived at jointly by
them. It cannot be suggested that all the three persons would record 823 their
impressions separately about the demeanour of a witness and it is quite
possible that a particular witness may appear to one member of the committee to
be untruthful without his being considered so by the others. The members of the
Inquiry Committee cannot record their findings separately, but it is their duty
to record findings on each of the charges together with the reasons therefor.
It is to be noted that the duty of the Inquiry Committee ends with the making
of the report. The Disciplinary Authority has to consider the record of the
inquiry and arrive at its own conclusion on each charge. Whatever may be the
impression created by a particular witness on the mind of one member of the
Committee, the same is never translated into writing and the Disciplinary
Committee merely goes by the written record after giving a personal hearing to
the railway servant if he asks for it. Even if the Inquiry Committee makes a
report absolving the railway servant of the charges against him, the
Disciplinary Authority may, on considering the entire record come to a
different conclusion and impose a penalty. This is amply borne out by a
judgment of this Court in Union of India v. H.C. Goel (A.I.R. 1964 S.C. 364)
where it was said that neither the findings nor the recommendations of the
Inquiry Committee are binding on the Government.
In such a state of affairs a change in the
personnel of the Inquiry Committee after the proceedings are begun and some
evidence recorded cannot make any difference to the case of the railway
servant.
The record will speak for itself and it is
the record consisting of the documents and the oral evidence as recorded which
must form the basis of the report of the Inquiry Committee. The Committee is
not the punishing authority and the personal impression of a member of the
Committee cannot possibly affect the decision of the Disciplinary Authority. In
a state of affairs like this, we cannot see any reason for holding that any
known principle of natural justice is violated when one member of the Committee
is substituted by another." It would appear from the above extract that it
is not at all necessary that the enquiry which had been held in part by more
than one enquiry officers should be continued by the same enquiry officers
until the end. The post which the members of the Inquiry Committee held
originally might have been ceased to exist at a later 824 stage, or one or more
of the members of the Inquiry Committee may no longer be available either on
account of retirement or due to any other cause. For that reason, it could not
be held that the enquiry could not be continued at all. Therefore, there could
be no valid objection to the supplementary enquiry being continued by the very
two individuals, even after they had ceased to hold their respective offices
which they held at the time of the original enquiry. The plea of malafides
raised against the two Inquiry Officers on behalf of P.N.L. Das, the respondent
in C.A. No. 389 of 1981 before Misra and Panda JJ, when Writ Petition (O.J.C.)
No. 579/71 was heard was rejected by the learned Judges who have observed in
their judgment that after hearing the counsel they were satisfied that no good
foundation has been laid for the plea of malafides, bias or prejudice by the
enquiry officers and it was also conceded by the learned counsel who appeared
for P.N.L. Das in that Writ Petition that on the material on records it may be
difficult for him to persuade them to hold in favour of the petitioner before
them in regard to the plea of mala fides.
Therefore, we are clearly of the opinion
there could be. no bar to B.K. Patnaik and B.B. Chatterjee who were originally
the Assistant Commercial Superintendent, Khurda Road and Assistant Accounts
Officer, Garden Reach respectively, holding the supplementary enquiry even
after they ceased to hold their respective offices by reason of their promotion
as Divisional Commercial Superintendent, Kharagpur and Divisional Accounts
Officer, Adra sometime before the commencement of the supplementary enquiry.
However, we agree with Misra and Mohanty JJ of the Orissa High Court that it
would be inequitable for a fresh enquiry being made into the charge framed
against the respondents in S. As. Nos. 2119- 2121/79 or to go into the merits
of the case against P.N.L. Das the respondent in C.A. No. 389 of 1981, having
regard to the long lapse of time, the offences having been stated to have been
committed in about 1955. Mr. M.M. Abdul Khader, learned counsel for the
appellants in these appeals represented before us that no recovery will be made
from S/Shri Ch. R. Murty, B.S.N. Rao and B. Papa Rao who have retired from
service and also from P.N.L. Das the in respondent in C.A. No. 389 of 1981 who
has been reinstated subsequent to the decision of the Orissa High Court in Writ
Petition (O.J.C.) No. 832 of 1977. We, accordingly, dismiss these appeals and
direct the parties to bear their respective costs. Advocates fee Rs. 1,000/-,
one set.
It was also represented before us by Mr. M.
M. Abdul Khader that Rs. 22,400/-, Rs. 19,250/- and Rs. 19,250/- would be
payable to the respondents in C.A. Nos. 2119- 2121/79 respectively if these 825
appeals had been disposed of against the Railway Administration on merits and that
the Administration would, however, pay Rs. 12,000/- to each of these person,
namely, M.B. Patnaik, D. Sahu and S.C. Misra. We accept this offer as being
beneficial to these three respondents in C.As. Nos. 2119-2121 of 1979 who will
be entitled to recover from the Railway Administration a sum of Rs. 12,000/-
each up to 22-1-81 on account of arrears of salary etc. payable to them from
the date of their suspension.
V.D.K. Appeals allowed.
Back