Ram Nagina Yadav vs Union Of India And Others
2015 Latest Caselaw 211 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					                                       A.F.R.
 
					Judgment reserved on 07.4.2015
 
					Judgment delivered on 29.4.2015
 

 
Case :- WRIT - A No. - 57360 of 2007
 
Petitioner :- Ram Nagina Yadav
 
Respondent :- Union Of India And Others
 
Counsel for Petitioner :- Sanjay Kumar Om
 
Counsel for Respondent :- Govind Saran,Praveen Kumar Srivastava,S.C.
 
Hon'ble Mahesh Chandra Tripathi,J.

1. Heard Shri Sanjay Kumar 'Om', learned counsel for the petitioner and Shri Praveen Kumar Srivastava, learned counsel for the respondents.

2. By means of present writ petition, the petitioner has prayed for quashing the impugned orders dated 14.8.2007 and 23.2.2007 passed by respondent nos. 2 and 3 respectively. He has further prayed for direction commanding the respondents to reinstate him in service and grant him all consequential benefits including salary, seniority etc. By an amendment application allowed on 19.4.2012, the petitioner has also prayed for quashing the orders dated 11.1.2011 and 12.9.2012.

3. Brief facts giving rise to the present writ petition are that the petitioner was initially appointed on 25.9.1975 as Constable by the Commanding Officer, 2nd Battalion, Railway Protection Special Force, Gorakhpur (in short RPSF). While he was posted as Constable in "B" Company of 2nd Battalion of RPFS for law and order duty in State Police at Birds Sanctuary, Nawabganj, he was assaulted by one Shri Sham Lal, Company Commander, who used to keep malafide intention and grudge against the petitioner. As a result of assault, the petitioner fell on a Gamla (flower pot) and received injuries in his chest. He applied for medical leave, which was not granted by the Company Commander and he was sent to headquarters at Gorakhpur.

4. Shri Sham Lal, Company Commander made a false complaint against the petitioner alleging that he was found in drunken state under the influence of intoxication at about 01:30 PM on 04.11.1990. Thereafter petitioner was served with a charge sheet dated 30.11.1990 alleging that he was found under the influence of liquor on the ground floor of Cafeteria of Birds Sanctuary and he made a false complaint against the Company Commander. It has been averred in the writ petition that the charges levelled against the petitioner were wholly false and frivolous inasmuch as the petitioner was never found in drunken state. He was mounted on duty on 03.11.1990 at about 07:25 PM and was dismounted from duty on 4.11.1990 at 08.30 AM and as such, at 01.30 PM on 04.11.1990 he was not on duty and, therefore, even assuming for the sake of arguments, without admitting, then also in terms of Rule 147 (ix) of the Railway Protection Force Rules, it is not a misconduct. However, the petitioner made a representation to the Disciplinary Authority, denying all the allegations levelled against him in the charge sheet dated 30.11.1990. Sri S.R. Upadhyay, Company Commander was appointed as enquiry officer. The petitioner alleged malafides and bias against him and requested for change of enquiry officer. The request was accepted and Sri P.C. Padaria, Company Commander, 'D' Company was appointed as enquiry officer.

5. Earlier the petitioner filed a Writ Petition No. 4823 of 1991 for quashing the orders dated 7.11.1990 and 3.1.1991 and to issue writ of mandamus directing the respondents to appoint a Gazetted Officer (Assistant Commandant) to conduct the D.A.R. Enquiry against the petitioner. This Court by its order dated 17.5.1991, while issuing notices, directed that an enquiry officer be appointed to conduct an enquiry against the petitioner, who should be higher in rank than the Company Commander. Consequently, Sri S.G. Roy, Assistant Commandant (Adjutant) was appointed as enquiry officer. He proceeded from the stage where the enquiry proceedings were left by Sri P.C. Padaria. The enquiry officer submitted his report on 26.10.1991 with the findings that the petitioner was guilty of both the charges levelled against him.

6. By the order dated 02.11.1991 the Commanding Officer, 2nd Battalion, Railway Protection Special Force, Gorakhpur-respondent no.3 removed the petitioner from service. Against the said order the petitioner's appeal and revision were rejected on 22.5.1992 and 15.3.1993 respectively. Aggrieved with the aforesaid orders, the petitioner filed another Writ Petition No.18638 of 1993. Both the aforesaid writ petitions were connected and decided by a common judgment and order dated 4.3.2005. The Writ Petition No.18638 of 2003 was allowed and the orders dated 2.11.1991, 22.5.1992 and 15.3.1993 were quashed. The petitioner was directed to be reinstated in service with liberty to the respondent authorities to proceed with the enquiry denovo with option to place the petitioner under suspension and to conduct the enquiry from the stage of examination of prosecution witnesses. The relevant paragraph nos. 11 to 17 of the judgment dated 4.3.2005 is reproduced hereinafter:-

"11. A perusal of the statement of witness, the enquiry report and the order of the Commanding Officer/ disciplinary authority awarding punishment to the petitioner does not establish that the petitioner was on duty at the time when he was alleged to be found in the state of intoxication. The enquiry officer did not examine this question at all. None of the witnesses, who were examined during the enquiry deposed that the petitioner was on duty or had been alerted for duty at the time or before when the alleged incident had taken place. The refusal to subject himself for medical examination, use of unparliamentary language full of abuses and assault was not wholly supported by the witnesses. The enquiry officer did not discuss the entire cross-examination and has only relied upon those answers which were given against the petitioner. Regarding the state of intoxication, opinion of the witnesses were based upon their visual observations. Sri Jiwat Ram in reply to question No. 25 stated that the petitioner was dragged to Bus for medical examination. H/C R.V. Pandey stated in reply to question No. 11 that there was a hot altercation between Shyam Lal and the petitioner and that the petitioner fell down on a 'gumlow' (flower pot) and was later dragged to be taken to the Bus. The defence witnesses also commented upon C.C. Shyam Lal, who had become angry and had assaulted and abused the petitioner. The motive behind the use of force against the petitioner and assault was not established. After finding that the petitioner was in a drunken state and refused to go for medical check up and that he was arrogant in his behaviour and used filthy language towards Shyam Lal, the enquiry officer observed that no doubt the delinquent has brought out some allegations against Shyam Lal, but these came into light after the incident was reported against the petitioner. He did not rely upon the incident cited as motive to implicate the petitioner as the petitioner had not reported against Sri Shyam Lal for his alleged illegal action of demanding money and orders to provide him with good quality food stuff.

12.It is admitted fact that in this enquiry report the statements recorded in the preliminary enquiry were used against the petitioner and that the evidence in cross-examination was not discussed, and that the background in which the incident had taken place was disbelieved only on the ground that the petitioner had not reported the allegations against Sri Shyam Lal, earlier to the incident. The enquiry report was not supplied to the petitioner. It was given to him along with punishment order. The petitioner did not have any occasion to see the report, and to give any effective to the findings reply before he was punished.

13.In Managing Director, ECIL, Hyderabad v. Karunakaran (supra) it was held that irrespective of any requirement in the Rules the non-supply of the enquiry report, on which the finding in the punishment order is based violate the principles of natural justice and that these requirements are embedded in Article 311 of the Constitution of India. The judgment in Mohd. Ramjan Khan's case dated 20.11.1990 laying down this law was held to be prospective. In the present case the enquiry report dated 26.10.1991, order of removal from service dated 2.11.1991 was made after Mohd. Ramjan Khan's case. The fact that the Railway Board took notice of these decisions and issued a circular to supply enquiry report vide its Railway Board Order dated 2.11.1991 will not take away petitioner's right flowing from the principles of natural justice and recognised in Mohd. Ramjan Khan's case and Managing Director ECIL, (supra).

14.I find that looking into the nature of charges, the change of enquiry officer and the fact that the prosecution witnesses were not examined during the enquiry proceeding by the enquiry officer in presence of the petitioner; the continuation of enquiry proceedings by a superior officer from the stage it was left by the previous enquiry officer, the selective references by the enquiry officer to the cross-examination in which only the incriminating material was used against the petitioner, the fact that there was no evidence or discussion by the enquiry officer as to whether the petitioner was on duty at the time of incident, and the non-supply of enquiry report caused serious prejudice to the petitioner and vitiated the conclusions, drawn against the petitioner.

15.In State of Punjab v. Ram Singh (supra) the Supreme Court was considering the conduct of Constable gunman roaming in the market with service revolver in drunken state while he was on duty (para 8). In State of U.P. V. C.S. Sharma, AIR 1963 All 94, the Division Bench of this Court in a judgment given by Hon'ble B. Mukherji, J. considered the effect of non-examination of the prosecution witnesses before the charged officer. In para 17 it was held that where the statement was not recorded before the charged enquiry officer, there is no guarantee that the statements which witnesses made before the first preliminary enquiry, were the same which were read out to the witnesses. There is a danger in having statements recorded earlier, to be read in the enquiry as the witness many have deposed earlier by cajolery, coercive or any of the undesirable method and reading out to the witness of any statement and asking then to answer to only one question whether such statement, is not a correct procedure.

16.In the facts and circumstances of the present case, it was absolutely necessary that after the change of enquiry officer the enquiry should have began de novo. The statements of the witnesses recorded earlier should not have been relied upon and that the effect of entire statement and answer to the questions for cross-examination should have been considered by the enquiry officer. The nature of the charges required this procedure to be followed failing which the petitioner who is alleged to have assaulted a superior officer, under whom the other witnesses were working, made these requirements of principles of natural justice more essential. I find that the non-supply of the enquiry report also seriously prejudiced petitioner's right to defend himself. The punishment authority appears to have been swayed only by the consideration that the petitioner had assaulted a superior officer. The disciplinary authorities were more concerned about the discipline rather than finding out the truth.

17.The Writ Petition No. 18638 of 2003 is consequently allowed. The impugned orders dated 2.11.1991, 22.5.1992 and 15.3.1993, are set aside. The petitioner shall be reinstated in service with liberty to the authorities to proceed with the enquiry de novo, with the option to place the petitioner under suspension and to conduct the enquiry from the stage of examination of the prosecution witnesses. The question whether the petitioner will be entitled to the back wages and other benefits from the date of dismissal to the date of reinstatement is left to be decided by the authorities in accordance with provisions of the RPF Act and the Rules. The petitioner shall be entitled to costs of these proceedings."

7. In compliance with the judgment and order dated 4.3.2005, the petitioner was reinstated in service on 14.6.2005 but again he was placed under suspension and was directed to participate in the enquiry. Since in the earlier enquiry, the petitioner was not supplied with all the relied upon documents, therefore, he requested the enquiry officer for providing the relied upon documents. The respondents did not comply with the directions of this Court dated 4.3.2005, inasmuch as they did not pay any salary to him. The petitioner was placed under suspension on 14.6.2005 but even the suspension allowance from the date of removal of service i.e. 2.11.1991 till 14.6.2005 has not been paid to him. After 14.6.2005 the petitioner was being paid suspension allowance payable to him at the time of issuance of charge sheet on the basis of 4th Pay Commission and the suspension allowance on the basis of salary according to 5th Pay Commission has not been paid to him. The respondents have deliberately withheld the salary, suspension allowance and cost of the petition merely to harass him. The petitioner made a representation on 24.12.2005 before the respondents against the arbitrary action of the respondents in withholding the salary, suspension allowance but the respondents did not pay any heed to the same.

8. On 25.2.2006 the Competent Authority had decided not to pay any salary to him. The order dated 25.2.2006 is non-speaking and arbitrary inasmuch as no reasons have been given by respondent no.3 for rejecting the claim of the petitioner for back wages. In any case, the petitioner is entitled for suspension allowance from 2.11.1991 to 14.6.2005 and the same cannot be withheld. However, an enquiry was proceeded against the petitioner by Shri J.P.L. Srivastava, Assistant Commandment and before the enquiry officer, the statements of all the prosecution witnesses and the petitioner were recorded afresh and after the conclusion of enquiry, the petitioner submitted a brief note on 03.1.2006. After conclusion of the enquiry, the enquiry officer submitted the enquiry report before the respondent no.3. Although copy of the enquiry report prepared by Shri J.P.L. Srivastava, Assistant Commandant was not supplied to him. When the respondents realized that the petitioner had been exonerated in the enquiry report, they arbitrarily and illegally changed the enquiry officer and appointed one Shri R.B. Sharma as enquiry officer vide order dated 4.5.2006 with a direction to conduct de-novo enquiry on the ground that earlier enquiry officer Shri J.P.L. Srivastava did not compare the statements of M.K. Dixit, R.B. Pandey and Jitu Ram from their earlier statements recorded by the earlier enquiry officer nor he gave any reason for difference in their statements. There was no justification for the enquiry officer to compare the statements of prosecution witnesses with their earlier statements as the same was in violation of principles of natural justice. Moreover, the enquiry officer submitted his report on the basis of statements whatsoever were made before him and there was no reason for the enquiry officer to compare their statements with their earlier statements, which were recorded in absence of petitioner. It has been stated that under Rule 154.4 of the Rules, there is no such provision, which empowers the Disciplinary Authority to direct for denovo enquiry afresh and the Disciplinary Authority at the most can direct for further enquiry by the same enquiry officer but in any case he cannot change the enquiry officer.

9. It has been averred in the writ petition that the reasons assigned for conducting denovo enquiry are wholly erroneous and untenable inasmuch as if it had been the reason, then the enquiry should have been conducted from the stage it was concluded by Shri J.P.L. Srivastava. The petitioner appeared before the newly appointed enquiry officer Shri R.B. Sharma and clarified that in the earlier enquiry proceedings also the petitioner had merely received the charge sheet and pointed out that other documents, which are very relevant for proving his innocence, had not been supplied to him and since those documents are relevant for him, the same may also be supplied but the enquiry officer did not pay any heed on the request of the petitioner and proceeded with the enquiry.

10. During the course of enquiry, the enquiry officer recorded the statement of Shri Sham Lal, Company Commander, who in his cross-examination, failed to prove that the petitioner abused him in any manner on 4.11.1990 as alleged. Shri Sham Lal refused to give any direct reply to the question with regard to the alleged incident. The enquiry officer also recorded the statement of Shri Veer Bahadur Singh, Head Constable, Prosecution Witness-2, who in his cross-examination, clearly admitted that he did not see the petitioner consuming liquor. In reply to question no.14 on cross examination, he admitted that the petitioner did not abuse Shri Sham Lal. Shri R.B. Pandey, Prosecution Witness No.3 also admitted that the petitioner did not misbehave with Shri Sham Lal nor he ever abused and rather he was sleeping at that time. Likewise Shri Jiut Ram, Prosecution Witness also in his cross-examination stated that the petitioner did not consumed liquor and he did not abuse Shri Sham Lal, Company Commander rather he assaulted the petitioner due to which the petitioner suffered injuries. After completion of the enquiry, the petitioner submitted his written statement of defence under Rule 153.15 of RPF Rules, 1985 stating therein that from the statement of Prosecution Witnesses, it is clear that the petitioner did not consume liquor nor he was on duty at the time of alleged incident took place nor had misbehaved with the Company Commander and the allegations levelled against him are erroneous, therefore, the charge sheet is liable to be cancelled. He was not supplied with all the relied upon documents, which were required to prove the petitioner's innocence. The enquiry officer submitted his report before respondent no.3 on 15.11.2006 holding the petitioner guilty of the charges levelled against him.

11. It is stated that the enquiry officer did not consider the relevant question as to whether the petitioner was on duty at the time when the alleged incident took place or not. It is stated that the petitioner was mounted on duty on 03.11.1990 at about 07.25 PM and was dismounted from duty on 4.11.1990 at about 08.30 AM, whereas the alleged incident took place at about 01.30 PM on 04.11.1990 and as such assuming for the sake of argument, without admitting that the petitioner consumed liquor at about 01.30 PM, then also in terms of Rule 149 (9) of RPF Rule 1987, it is not a misconduct. The enquiry officer did not consider any material on record nor did he appreciate the testimony of prosecution witnesses as well as defence witnesses which would show that the petitioner did not misbehave with the Company Commander in any manner nor he abused him as alleged in the charge sheet rather the enquiry officer submitted a very cryptic and mechanical inquiry report wherein in just 4 lines, he discussed the entire evidence and gave his conclusion holding the petitioner guilty of charges levelled against him. However, against the inquiry report dated 15.11.2006, the petitioner submitted a representation pointing out that statements made by prosecution witnesses clearly indicate that the petitioner was not guilty of the charges but the same has been overlooked and ignored by the enquiry officer. The enquiry officer did not appreciate the statements of prosecution witnesses and defence witnesses and as such, the same cannot be relied upon.

12. By the impugned order dated 23.2.2007 the respondent no.3 terminated the services of the petitioner. He did not consider any of the grounds raised by the petitioner in his representation dated 19.12.2006, nor did he consider the irregularities committed by the enquiry officer while furnishing the inquiry report dated 15.11.2006. In the order dated 23.2.2007 the respondent no.3 further did not consider that the inquiry report did not contain any reasons nor did it disclose any of the evidence or statement of witnesses and as such in any case the petitioner cannot be held guilty of the charges levelled against him. The respondent no.3 did not consider that as to whether the petitioner was on duty at the time when the alleged incident took place or not and in the absence of the same the order dated 23.2.2007 is wholly erroneous and is liable to be quashed.

13. Against the order dated 23.2.2007 the petitioner preferred an appeal under Rule 212 of RPF Rules before the Chief Security Commissioner-respondent no.2 on 8.3.2007 stating that the use of unparliamentary language or abuse as alleged in the charge sheet were not supported by prosecution witnesses in the inquiry. He further stated that the inquiry officer did not disclose the entire evidence of cross-examination and only took those answers, which he found to be incriminating and as such, it is in violation of Rule 154.5 of RPF Rules, 1987. The appeal was rejected on 14.8.2007 with the finding that the order of Disciplinary Authority deals with all the points relating to the case and that there was no good ground to interfere. The revision was dismissed by Director General, RPF with the findings that the petitioner was afforded with opportunities to defend himself. There was no procedural infirmity or grave miscarriage of justice.

14. On 04.7.2012, the Court passed following order:-

"Under the orders of this Court, the petitioner was allowed to take recourse with the statutory remedy of filing a revision under the Act.

The petitioner did file a revision. The revision has been disposed of by an order dated 11th of January, 2011. The order passed by the revisional authority is short and cryptic. It reaches the conclusion that the revision is worth being dismissed. It only states that the contentions put forwarded in the revision are malicious and misleading. But no basis has been given for reaching that conclusion.

The revisional authority further states that he has gone through the parawise comments of the IG/RPSF on the revision. It seems that the revisional authority has been swayed by the comments of the respondents. The other thing, which is reflected, is that the petitioner has not been heard. Since such lengthy proceedings have continued for so many years, it would be appropriate that the petitioner be heard.

The matter is, therefore, remanded to the revisional authority for a proper hearing. The petitioner may be given an opportunity of hearing in person.

The matter on remand may be decided by the authority concerned within a period of three months from the date of presentation of a copy of this order. A copy of this order may be presented before the authority concerned within a period of 10 days.

This writ petition is kept pending.

List this matter after four months."

15. Learned Counsel for the petitioner submits that the punishment to remove a member of the force may be given, subject to Article 311 of Constitution of India. Section 17 provides for penalties for negligence of duty, which is to be treated as an offence punishable and to be tried under the Code of Criminal Procedure by a Magistrate of 1st Class. According to him, Rule 147 of the RPF Rules 1987 provides in detail the offences relatable to duties of enrolled members which render him liable for punishment under Section 9 and Section 17 or both. He submits that the charge on its own did not fall within the definition of offences, which are punishable under Section 9 inasmuch as the petitioner was mounted on duty on 3.11.1990 at 07.30 PM and dismounted on 04.11.1990 at 08.30 AM. The alleged incident took place on 04.11.1990 at about 01.00 PM, when the petitioner was not on duty. Rule 147(ix) of RPF Rules 1987 lays emphasis of the offence being in a state of intoxication, while on duty, and after having been alerted for any duty.

16. A perusal of the order dated 14.8.2007 would show that it is wholly cryptic and has been passed without any application of mind and the appellate authority did not consider any of the grounds raised by the petitioner in the appeal. The respondent no.2, while passing the order dated 14.8.2007, further did not consider that the petitioner was not on duty inasmuch as he was dismounted from duty at about 08.30 AM on 4.11.1990 and as such in terms of Rule 149 (ix) of RPF Rules, 1987 the petitioner cannot be held guilty of the misconduct levelled against him. The respondent no.2 further failed to appreciate that the very action of respondent no.3 in appointing another inquiry officer after transfer of Shri J.P.L. Srivastava with the direction to conduct denovo inquiry is wholly arbitrary, illegal and without justification inasmuch as even after transfer of inquiry officer, the enquiry was liable to proceed from the stage, it was concluded by the earlier enquiry officer and thus the entire exercise done by Shri R.B. Sharma in conducting the denovo inquiry was wholly illegal and the enquiry report is liable to be rejected.

17. The respondent no.2 further failed to consider that the petitioner, who is a Class-III employee, is out of service since the year 1990 and he has no source of livelihood. He did not provide any opportunity of personal hearing to the petitioner before passing the order dated 14.8.2007 and the order passed by respondent no.2 is liable to be quashed on this ground alone. The punishment imposed upon the petitioner is too excessive and does not commensurate to the charges levelled against him and as such, the order of termination dated 23.2.2006 and the order dated 14.8.2007 are liable to be quashed. The petitioner is entitled for his reinstatement with all consequential benefits including salary etc.

18. The enquiry officer did not advert to the question whether the petitioner was on duty, at the time of incident. Consuming liquor, according to learned counsel for the petitioner, or to be in a state of intoxication is not an offence under the Rules. It is only when a member of the force is in a state of intoxication while on duty, or after he is alerted for duty, that the offence is made out. He submits that when the High Court directed that the enquiry officer to be appointed, should be higher in rank than the Company Commander, enquiry officer, so appointed, was required to begin denovo, instead the enquiry was started from the point, it was left by Sri P.C. Padaria.

19. Learned counsel for the petitioner submits that the prosecution witnesses were not examined before the petitioner and that such evidence could not have been relied upon against him. The petitioner could not see their demeanour and it was very much possible that the statements were recorded under duress, which the witnesses could not hold during the course of such examination. There were charges of assault against superior officer, which prejudiced the enquiry officer and the disciplinary authority. Lastly, he submits that the enquiry report was not supplied to the petitioner causing serious prejudice to him as he could not submit an effective reply. The punishment in this case was awarded after the Supreme Court ruled in Mohd. Ramjan Khan's case (decided on 20.11.1990) and that in view of Managing Director, E.C.I.L. Hyderabad v. B. Karunakaran, JT 1993 (6) SC 1, it was necessary to supply the copy of enquiry report, even if there is no provision in the R.P.F. Rules 1987 to supply a copy of the enquiry report which serve principles of natural justice. He also submits that punishment is grossly disproportionate to the charges.

20. Learned counsel for the petitioner has also submitted that the said Roznamcha was also filed alongwith earlier writ petition and the same was admitted by the respondents as the matter of record and if it so once the Roznamcha was available till 1993, and removal order dated 2.11.1991 was subjudiced before this Court, then as such without any proper leave from Competent Authority the respondents could not weed out the evidence.

21. Learned counsel for the petitioner has relied upon judgments of Hon'ble Supreme Court in Glaxo Laboratories (I) Ltd vs. Presiding Officer, Labour Court, Meerut & ors (1984) 1 SCC 1 (paras 19, 23 & 25); A.L. Kalra vs. Project and Equipment Corporation of India Ltd (1984) 3 SCC 316 and Union of India vs. K.D. Pandey and another (2002) 10 SCC 471. Relevant paragraph nos. 19, 23 and 25 of the judgment in Glaxo Laboratories (I) Ltd (supra) are reproduced hereinafter:-

"19. Reference was also made to Tata Oil Mills Co. Ltd v. Its Workmen. This case should not detain us for a moment because the standing order with which the court was concerned with in that case in terms provided 'that without prejudice to the general meaning of the term 'misconduct', it shall be deemed to mean and include, inter alia, drunkenness, fighting, riotous or disorderly or indecent behaviour within or without the factory.' Mr. Shanti Bhushan, however, urged that the judgment does not proceed on the construction of the expression 'without' in the relevant standing order but the ratio of the decision is that purely private and individual dispute unconnected with employment between the workmen cannot be the subject matter of enquiry under the standing order but in order that the relevant standing order may be attracted it must be shown that the disorderly or riotous behaviour had some rational connection with the employment of the assailant and the victim. Approaching the matter from this angle, it was urged that in the present case the 245 chargesheet under clauses 2(c) to 2(h) clearly and unmistakably alleged that the 'loyal workmen' were threatened with dire consequences with a view to frightening them away from responding to the duty and this provides the necessary link between the disorderly behaviour and the employment both of the assailant and victim. Even where a disorderly or riotous behaviour without the premises of the factory constitutes misconduct, every such behaviour unconnected with employment would not constitute misconduct within the relevant standing order. Therefore, even where the standing order is couched in a language which seeks to extend its operation far beyond the establishment, it would none the less be necessary to establish causal connection between the misconduct and the employment. And that is the ratio of the decision, and not that wherever the misconduct is committed ignoring the language of the standing order if it has some impact on the employment, it would be covered by the relevant standing order. In order to avoid any ambiguity being raised in future and a controversial interpretation question being raised, who must make it abundantly clear and incontrovertible that the causal connection in order to provide linkage been the alleged act of misconduct and employment must be real and substantial, immediate and proximate and not remote or tenuous. An illustration would succinctly bring out the difference. One workman severely belaboured another for duty on the next day. Would this absence permit the employer to charge the assailant for misconduct as it had on the working in the industry. The answer is in the negative. The employer cannot take advantage to weed out workmen for incidents that occurred far away from his establishment.

23. Having examined the matter both on principle and precedent, it would clearly emerge that clause 10 of S. O. 22 which collects various heads of misconduct must be strictly construed being a penal provision in the sense that on the proof a misconduct therein enumerated, penalty upto and inclusive of dismissal from service can be imposed. We see no reason for departing from the well-established canon of construction that penal provisions must receive strict construction, and not extended beyond their normal requirement. The framer's intention in using the expression 'committed within the premises of the establishment or in the vicinity thereof' are the words of limitation and they must receive due attention at the hands of the interpreter and the clause should not receive such broad construction as to render the last clause redundant.

25. That leaves for our consideration clauses 16 and 30. They from an integral part of a code and the setting and purpose underlying these two clauses 16 and 30 must receive the same construction which clauses 10 received. Therefore, for the reasons herein indicated, the heads of charges 2(c) to 2(h) would not be comprehended in clause 10, 16 and 30 of the S.O. 22 applicable to the appellant-Company. We broadly agree except for one aspect specifically mentioned with the conclusion of the High Court. Accordingly, no case is made out for interfering with the interpretation put by the Labour Court and confirmed by the High Court on relevant standing order. The appeal therefore, fails and is dismissed with costs quantified at Rs. 5,000."

22. Learned counsel for the petitioner has also placed reliance on a Division Bench judgment of this Court in Kishori Lal vs. Chairman Board of Directors, Aligarh Gramin Bank, Aligarh 2011 (4) ADJ 401 in which this Court held in paragraph Nos. 47, 57 & 58 as follows:-

"47. If something is not within the realm of the Regulations and cannot be said to be a breach of Conduct Regulations applicable in a particular service, employee cannot be held guilty of misconduct for punishment under Regulations.

57. However, since this writ petition can be allowed in view of various other serious infirmities and illegalities in inquiry proceedings, it is not necessary to embark upon this aspect any further. The writ petition deserves to be allowed for the reasons that the petitioner has suffered on account of procedural and otherwise illegality committed by respondents resulting in denial of adequate opportunity of defence.

58. Now coming to another important aspect about relief. It is not the case of respondents that petitioner was gainfully employed elsewhere during the period he was out of job. On the contrary, as a result of illegal order of dismissal, petitioner and his entire family must have suffered a social stigma as also financial hardships. It is quite conceivable that this ignominy is faced by the entire family of petitioner. No amount of money can compensate this social humiliation, illegal torture an outclassed attribute of neighbour and other difficulties. It must have been faced by petitioner and his entire family throughout. An attempt to provide consequential benefits to petitioner by this Court is only a meager compensation for huge loss, which basically cannot be compensated in terms of money. The departmental authorities, in fact must be much more careful and vigilant when they initiate disciplinary proceedings against an employee concerned on certain charges so that effective procedural requirement is observed in words and spirit. They must also ensure that a person should not be unnecessarily harassed as that affects not only individual bread earner but the entire family. This Court can take judicial cognizance of the fact that higher rank officials and employees, if face a small delay in payment of salary, become restless and even resort to observe strike etc. That being so, the severest punishment of dismissal compel the employee and his entire family to stand in a situation of starvation and also denuded the other facilities like health, education, clothing etc, which virtually, if not a death in terms of medical precision, something near to it. Normally the employers, to wriggle out such circumstances, try to invoke principle of ''No work No Pay' ignoring the fact that work has not been performed by employee concerned not on account of himself but for the circumstances created by employer. Such a principle in a case like this, if applied would amount to confer a premium upon employer of a fault of his own. This would amount to allowing him(employer) to take advantage of his own wrong, which is not permissible in law particularly in a court of equity and justice. It is against all canons of justice. It is always open to employer concerned to cover up loss, which it may sustain towards making of payment to such an employee by recovering such amount from those officials who defied statutory requirement as also the procedure and pass illegal order. Instead of penalizing a poor employee, who has no option but not to render service to employer pursuant to illegal order passed by employer the accountability should be shouldered by the responsible officer/authority."

23. Shri Praveen Kumar Srivastava, learned counsel for the respondents, on the other hand, submits that the petitioner was issued with major penalty charge sheet by the Assistant Commandant on 30.11.1990 for serious misconduct and making a false complaint against Company Commander Sham Lal. Shri S.R. Upadhyay, Company Commander 'C' Company was appointed as an enquiry officer to enquire into the case. But in the meantime the petitioner represented for changing the enquiry officer. Accordingly, Shri P.C. Padalia was re-nominated in place of Shri S.R. Upadhyay vide order dated 9.3.1991 to enquire into the case. Shri P.C. Padalia fixed the date for DAR enquiry from time to time with intimation to the petitioner to attend in the enquiry but he did not attend the enquiry on any date on some pretext or the other and the enquiry officer had to proceed with the enquiry and examined all the witnesses in absence of the delinquent employee as per provisions of RPF Rules, 1987 and as such the records i.e. the statement of prosecution witnesses etc. were sent to the charged employee from time to time which all had been acknowledged by him.

24. Shri Praveen Kumar Srivastava further submits that in pursuance to the order of this Hon'ble Court for nominating an officer as enquiry officer, who should be in rank above the present enquiry officer, Shri S.G. Rai, Assistant Commandant was nominated as enquiry officer of the case in place of Shri P.C. Padalia on 25.6.1991. After completion of the enquiry, the enquiry officer submitted his report holding that the delinquent Constable guilty of the charges as framed in the charge sheet. The Disciplinary Authority had gone through the findings of the enquiry officer and forwarded the case to the Commanding Officer in light of Rule 154 of RPF Rules, 1987 as the punishment warranted in the case was beyond the competence of the Disciplinary Authority. After going through the case the Commanding Officer, 2nd Battalion passed the final order of petitioner's removal from service on 2.11.1991. The petitioner had preferred an appeal to the Chief Security Commissioner, Railway Protection Special Force, Railway Board, New Delhi, who had rejected the appeal on 22.5.1992. The petitioner preferred a revision to the Director General, Railway Protection Force, Railway Board, New Delhi. The revision was rejected on 15.3.1993. Thereafter the petitioner filed Writ Petition No.18638 of 1993, which was decided on 04.3.2005 and in compliance with the judgment of this Hon'ble Court the instant DAR proceeding has been started and the petitioner has been reinstated in service on 15.6.2005. He was placed under suspension on the same day i.e. on 15.6.2005 vide order dated 14.6.2005. The petitioner resumed his duty on 15.6.2005 and started the de-novo enquiry duly appointing the enquiry officer Shri J.P.L. Srivastava, Assistant Commandant of 2nd Battalion to enquire the charges. Shri J.P.L. Srivastava completed the enquiry and put up the same before the Disciplinary Authority. The Commanding Officer, 2nd Battalion had gone through the whole enquiry and noticed that the enquiry was not made as per the procedure laid down under Rule 153 of RPF Rules, 1987. The whole enquiry had been done in violation of Rule 153 of RPF Rules, 1987. Hence the Disciplinary Authority cancelled the enquiry submitted by the enquiry officer Shri J.P.L. Srivastava and re-nominated Shri R.B. Sharma, Assistant Commandant for de-novo enquiry. The petitioner filed another Writ Petition No.28400 of 2006 against the order dated 4.5.2006. Shri R.B. Sharma, Assistant Commandant conducted the denovo enquiry as fresh after giving all reasonable facilities to the petitioner. All prosecution witnesses and defence witnesses were enquired in presence of petitioner and cross-examination was done by the petitioner. The enquiry officer concluded the enquiry and submitted the report to Disciplinary Authority with the decision that the petitioner was found guilty of charges framed against him. On going through the enquiry the Disciplinary Authority issued orders of petitioner's removal from service on 23.2.2007. The petitioner preferred an appeal against the order of removal from service on 8.3.2007. The Appellate Authority had carefully gone through the case and examined all the records on the file and as no new facts/grounds have been brought into notice by the petitioner, the appeal was rejected on 14.8.2007. The order was communicated to the petitioner vide office letter dated 22.8.2007. The petitioner filed a revision on 1.10.2010, which was dismissed as devoid of merits by the Director General, Railway Protection Force, Railway Board, New Delhi on 11.1.2011.

25. Shri Praveen Kumar Srivastava further submits that the charges are serious and were established against the petitioner. The commanding officer accepted the report of the enquiry officer. He perused the records, discussed the evidence and concurred with the enquiry officer that the charges were proved, and that any sympathy will be detrimental to the discipline and high morale of the force. The enquiry officers were changed as and when objected to by the petitioner and lastly in pursuance of the orders of the High Court. The petitioner did not request for initiating the enquiry denovo. The statement of prosecution witnesses were recorded during DAR enquiry in presence of the petitioner. There is no requirement in R.P.F. Rules of 1987 to provide a copy of the enquiry report to the delinquent employee and that directions in this regard, after Mohd. Ramjan's case were given by Railway Board, Ministry of Railways, Government of India only on 29.4.1992, much after the punishment order was passed. He submits that for a member of disciplined force to be in a state of intoxication or assaulting a superior officer, are serious charges, which called for a major penalty. He has relied upon judgments of Hon'ble Supreme Court in Union of India and another vs. B.C. Chaturvedi (1995) 6 SCC 750 and State Bank of India vs. Boa Penji 2014 LawSuit (SC) 987 in support of his submission.

26. Shri Praveen Kumar Srivastava has also placed his reliance on Section 15 of the Railway Protection Force Act, 1957, which provides that every member of the force shall, for the purposes of this Act, be considered to be always on duty, and shall, at any time, be liable to be employed at any place within India.

27. In Union of India vs. K.D. Pandey and ors 2002 (10) SCC 471 Hon'ble Apex Court, while considering the enquiry report specially findings given in favour of charged employee reversed in the subsequent report submitted after conducting further enquiry in the same matter, held in paragraph Nos. 4 and 5 as follows:-

4.On remit the inquiry officer made a report finding Respondent 1 guilty of four charges. Based on that report, the Railway Board dismissed Respondent 1, which was challenged in the dispute raised by him. The Tribunal as well as the High Court are of the view that on the same material a fresh opinion has been furnished and it was not a case of further inquiry. Indeed, it was not noticed by the disciplinary authority that the inquiry held earlier was bad or that the management or the establishment did not have the proper opportunity to lead evidence or the findings were perverse. In the absence of the same, it was held that there was no justification on the part of the disciplinary authority to commence fresh inquiry on the same set of charges.

5. Learned counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. In fact from the order made by the Railway Board as well as from that part of the file where the inquiry report made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter and, if that is so, we fail to understand as to how there could have been a remit to the inquiry authority for further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly.

28. In Shreekant Mishra vs. Union of India and ors 2007 (5) 306 ESC (All) Hon'ble High Court, while considering the denovo enquiry, has observed that the statement of the prosecution witnesses were not recorded afresh and it is settled law that in denovo enquiry the statements recorded in the old and previous enquiry cannot be taken into account. The relevant paragraph nos. 10, 12, 13, 14, 15, & 16 are reproduced hereinafter:-

"10. He further submits that the statements of the prosecution witnesses were not recorded afresh and it is settled law that in de novo enquiry the statements recorded in  the old and previous enquiry can not be taken into account. In the present case the Enquiry Officer violated the mandatory provisions of Rule 153 of R.P.F. Rules, 1987 by not recording the statement of prosecution witnesses and  relied upon the statement recorded during old enquiry.

12.He further submits that de novo enquiry was conducted against the petitioner and he was given all the reasonable opportunity; that all the prosecution witnesses were summoned and were examined; that there is no illgality or infirmity in the impugned order, hence no interference is required by this Court under Article 226 of the Constitution. He has placed reliance upon a judgment of the Hon'ble Supreme Court in Hombe Gowda Educational Trust and another Vs. State of Karnataka and others, 2006 SCC ( L& S) 133. In that case, an employee-lecturer had assaulted his superior officer i.e. Principal of the Institution. In the circumstances the Hon'ble Apex Court has held that assaulting a senior at workplace amounts to an act of gross indiscipline, even on grave provocation a teacher is not expected to abuse the head of the institution in filthy language and assault him with a chappal. Punishment of dismissal therefore, cannot be said to be wholly disproportionate so as to shock one's conscience when the charges were clearly established.

13. This ruling is not applicable to the facts of the present case as the facts of that case are clearly distiguishable from the facts of the present case as the petitioner was also charged that he was in a drunken state but he was not medically examined nor there is any FIR lodged against the petitioner in this regard. This also belies the case of the respondents that the petitioner was in a durnken state.

14. In the instant case, the petitioner was charged that he misbehaved with his Incharge and used unparliamentary language but no  FIR was lodged against him and no opportunity of hearing was afforded to the petitioner. In the de novo enquiry the Enquiry Officer submitted his report without recording the statement of the prosecution witnesses afresh and has relied upon statement of the witnesses recorded in previous enquiry which is illegal and arbitrary.

15. It is settled law that in de novo enquiry the statements of the witnesses recorded in the old and previous enquiry cannot be taken into account. Thus the Enquiry Officer has violated the mandatory provisions of Rule 153 of the R.P.F. Rules, 1987 by not recording the statements of the prosecution witnesses and has relied upon the statements recorded during the old enquiry.

16.For the reasons stated above, the writ petition is allowed and the impugned orders are quashed."

29. It is relevant to state here that the petitioner had earlier filed Writ Petition No.18638 of 1993 and this Court, while remanding the case to the Disciplinary Authority for denovo enquiry, categorically directed the enquiry officer to give its finding as to whether the petitioner was on duty or not. The Court is surprised to note here that once the matter was remanded back with a categorical direction, then there was no occasion for the respondents to weed out the records specially Roznamcha dated 3.11.1990 and 4.11.1990. Even this plea was taken by the respondents that no such record was available but however, the petitioner through supplementary rejoinder affidavit had brought on record the Roznamcha dated 3.11.1990 and 4.11.1990, which clearly indicated that on 03.11.1990 vide entry no.14 the petitioner was mounted on duty at 19.25 hours (i.e. 07.25 PM) and his name appears at serial no.16 and further on 4.11.1990 vide entry no.8 recorded at 08.35 PM, the Constable (the petitioner) was mounted alongwith S. Pandey, ASI.

30. In the present matter, the most decisive factor was whether at the time of alleged incident the petitioner was on duty or not but as observed the respondents have taken a plea that the relevant Roznamcha was weeded out. Once the petitioner had brought on record the Roznamcha in the earlier round of litigation, and there was a categorical direction by the court concerned, then the respondents had no right to weed out the most potential evidence in the matter. The reliance has also been placed on the judgment of Union of India vs. Manager, Sudarshan Gupta 2009 (6) SCC 298 by which an adverse inference should always be drawn against the respondents for their inability to produce the relevant records.

31. A perusal of the statement of witness, the enquiry report and the order of the Commanding Officer/ Disciplinary Authority awarding punishment to the petitioner does not establish that the petitioner was on duty at the time when he was alleged to be found in the state of intoxication. The enquiry officer did not examine this question at all. None of the witnesses, who were examined during the enquiry, deposed that the petitioner was on duty or had been alerted for duty at the time or before when the alleged incident had taken place. The refusal to subject himself for medical examination, use of unparliamentary language full of abuses and assault was not wholly supported by the witnesses. The enquiry officer did not discuss the entire cross-examination and has only relied upon those answers, which were given against the petitioner. Regarding the state of intoxication, opinion of the witnesses were based upon their visual observations. Sri Jiwat Ram in reply to question No. 25 stated that the petitioner was dragged to Bus for medical examination. H/C R.V. Pandey stated in reply to question No. 11 that there was a hot altercation between Shyam Lal and the petitioner and that the petitioner fell down on a 'gumlow' (flower pot) and was later dragged to be taken to the Bus. The defence witnesses also commented upon Coy Commander Shyam Lal, who had become angry and had assaulted and abused the petitioner. The motive behind the use of force against the petitioner and assault was not established. After finding that the petitioner was in a drunken state and refused to go for medical check up and that he was arrogant in his behaviour, and used filthy language towards Shyam Lal, the enquiry officer observed that no doubt the delinquent has brought out some allegations against Shyam Lal, but these came into light after the incident was reported against the petitioner. He did not rely upon the incident cited as motive to implicate the petitioner as the petitioner had not reported against Sri Shyam Lal for his alleged illegal action of demanding money and orders to provide him with good quality food stuff.

32. It is admitted fact that in this enquiry report the statements recorded in the preliminary enquiry were used against the petitioner and that the evidence in cross-examination was not discussed, and that the background, in which the incident had taken place, was disbelieved only on the ground that the petitioner had not reported the allegations against Sri Shyam Lal, earlier to the incident. The enquiry report was not supplied to the petitioner. It was given to him along with punishment order. The petitioner did not have any occasion to see the report, and to give any effective to the findings reply before he was punished.

33. In the present matter, admittedly this Court had directed the denovo enquiry vide judgment and order dated 04.3.2005 passed in Writ Petition No.18638 of 2003 and in pursuance thereof, Shri J.P.L. Srivastava was appointed as enquiry officer and before the enquiry officer, the statements of all the prosecution witnesses and the petitioner were recorded afresh and after conclusion of the enquiry, the enquiry officer submitted the enquiry report before respondent no.3 exonerating the petitioner but subsequently the respondents arbitrarily changed the enquiry officer and appointed Shri R.B. Sharma as enquiry officer on the ground that Shri J.P.L. Srivastava did not compare the statements of Shri M.K. Dixit, R.B. Pandey and Jitu Ram from their earlier statements recorded by the earlier enquiry officer nor he had given any reason for difference in their statements.

34. It is also not alleged in the present case that at any time, the petitioner was reluctant not to proceed on duty. Therefore, as such the provision of Section 15 of the Act of 1957 would not be applicable in the facts and circumstance of the present case.

35. For the reasons stated as above, the writ petition is allowed and the impugned orders dated 14.8.2007, 23.2.2007, 11.1.2011 and 12.9.2012 are quashed.

Order Date :- 29.4.2015

RKP