Dinesh Kumar vs Union Of India & Ors.
1999 Latest Caselaw 940 Del

ORDER

Usha Mehra, J.

1. Petitioner had filed an Original Application (in short OA) bearing No.1658/92 before the Central Administrative Tribunal (hereinafter called the Tribunal). According to him removal of his service was against the law as reasonable opportunity was not afforded to him. The enquiry held was in violation of the principle of natural justice. That the Disciplinary Authority flouted the law.

2. Briefly stated the facts are that petitioner was engaged as Hot Weather Waterman in May, 1978. He performed that job with broken periods. In June, 1988 he was substituted as Loco Cleaner and posted under Loco Foreman, Northern Railway, Moradabad. It was at Moradabad that a charge-sheet for major penalty was issued against him. Enquiry Officer submitted his report on 22nd August, 1991. The Disciplinary Authority acting on that report removed him from service vide order dated 6th September, 1991. Aggrieved by that order of removal, the OA was filed which has been dismissed by the Tribunal by the impugned order dated 18th September, 1997. Review application filed has also been dismissed vide order dated 13th November, 1997. Being not satisfied he has approached this Court by way of this writ petition.

3. The short point for consideration is whether the order of removal from service could be straight away passed relying on the report of Enquiry Officer without first forming tentative opinion and giving the delinquent officer an opportunity to represent against the said report. Admittedly the Disciplinary Authority after receipt of the Enquiry Officer's report removed him from service vide letter dated 6th September, 1991. With this letter "Report" was endorsed. The said letter imposing penalty of removal reads as under:-

"I have carefully considered your representation dated 14.5.91 in reply to the Memorandum. I do not find your representation to be satisfactory due to the following reasons:- Committed misconduct as much as you secured employment by furnishing the fake casual labour working certificate of ISM/ATKS.

I, therefore, hold you guilty of the charge(s) viz. charges mentioned in SF-5 dated 12.4.91 levelled against you and have decided to impose upon you the penalty or removal from service. You are, therefore, removed from service with immediate effect.

2. Under Rule-18 of the Railway Servants (Discipline and appeal) Rules, 1968 an appeal against these orders lies to DME, provided:-

(i) the appeal is submitted within 45 days from the date you receive the orders; and

(ii) the appeal does not contain improper or disrespectful language.

3. Please acknowledge receipt of this letter.

Sd/-

AME/M.B.

Copy of Enquiry                    Disciplinary Authority
report is enclosed."
(Underlining is ours.).

 

4. Along with the letter of removal as already mentioned above copy of enquiry report was enclosed. Mr. Jagjit Singh appearing for Northern Railway contends that before imposing the penalty it was not necessary to form a tentative opinion nor a requirement of the rule to furnish copy of Enquiry Officer's report or call for his comments. He placed reliance on Rule 10 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter called the Rules) which according to him nowhere requires the authority to supply copy of the enquiry report prior to forming a final decision. Sub rule (5) of Rule 10 which is reproduced as under, provides that when the disciplinary authority forms an opinion that a major penalty has to be imposed, it shall pass an order imposing such penalty. Rule specifically bar affording any opportunity of making representation on the penalty proposed to be imposed.

Sub Rule(5) If the disciplinary authority, having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Rule 6 should be imposed on the railway servant, it shall make an order imposing such penalty and it shall not be necessary to give the railway servant any opportunity of making representation on the penalty proposed to be imposed.

5. Relying on the provision of sub-rule (5) Mr. Jagjit Singh contends that Rule being statutory, it was not obligatory for the Authority to afford opportunity to the petitioner before forming a final decision.

6. This argument of Mr. Jagjit Singh and reliance on Sub-rule (5), to our mind, is contrary to the dictate of the Apex Court in the case of Punjab National Bank & Ors. Vs. Kunj Behari Mishra, where it has been held that principle of natural justice demand that the authority which proposes to decide against the delinquent officer any punishment, must give him a hearing. When the enquiry officer holds the charges to be proved then that report has to be supplied to the delinquent officer in order to enable him to make a representation before the disciplinary authority could take further action which may be prejudicial to the delinquent officer. As a matter of fact mere submission of findings or the report of the enquiry officer to the Disciplinary Authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings comes to an end only when the Disciplinary Authority takes a final decision on the basis of that enquiry report and decides to inflict punishment upon the delinquent officer. Therefore, in a departmental proceedings what is of ultimate importance is the finding of the Disciplinary Authority. It will be most unfair to deprive the delinquent officer of the right to know what has been held against him by the enquiry officer on the basis of which the Disciplinary Authority wants to take final decision. That is the reason law requires that the Disciplinary Authority before passing of final order should record a finding of guilt and intention i.e. tentative decision to impose punishment on the delinquent officer. Tentative decision may after hearing the delinquent officer convert into final decision. Delinquent employee has a right of hearing, not only during the enquiry proceedings but also at the stage at which those findings are being considered by the Disciplinary Authority. On the enquiry report being submitted to the Authority, the Authority will then form opinion only tentatively and not a final decision. It is at this stage that the employee must be given an opportunity of hearing. He must be informed of the reasons on the basis of which the Disciplinary Authority proposes to impose the major penalty. This in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed except after an enquiry and right of hearing before final decision is taken. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or Service Rule including Rules made under Article 309 of the Constitution. Therefore, reliance by Mr. Jagjit Singh on Sub-Rule (5) of Rule 10 is of no consequences in view of the settled principle of law.

7. Since the enquiry report was not furnished to the petitioner nor he was heard before the final decision was taken by the Disciplinary Authority hence the order of removal was violative of principle of natural justice.

8. The Tribunal unfortunately misdirected itself by concluding that there was a dispute with regard to the supply or non supply of copy of the enquiry report. A perusal of the endorsement on the letter dated 6th September, 1991 leaves no manner of doubt that copy of the enquiry report was supplied to the petitioner only along with final order of removal. Therefore, the observation of the Tribunal in this regard are contrary to the record. For the reasons stated above the impugned order cannot be sustained. The same is accordingly set aside.

9. Since we have set aside the order of removal on technical ground because opportunity of hearing was not afforded to the petitioner, the respondent will be at liberty to proceed with the disciplinary proceedings against the petitioner from the stage of enquiry in accordance with law.

10. With these observations the petition stands disposed.