Pratap Singh vs Northern Railway
2011 Latest Caselaw 4517 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+            WRIT PETITION (CIVIL) NO.5653/2007

                                Reserved on : 21st April, 2011


                         Date of Decision: September 15, 2011


      PRATAP SINGH                                     ..... Petitioner

                         Through      Mr. A.P. Nagrath and
                                      Mr. Mukesh Kumar, Advs.


                         versus


      NORTHERN RAILWAY                                   ..... Respondent

                         Through       Mr. Kumar Rajesh Singh, Adv.


      CORAM:
      HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


1.    Whether Reporters of local papers may be allowed to see the
      judgment? Yes
2.    To be referred to the Reporter or not? Yes
3.    Whether the judgment should be reported in the Digest? Yes



SUDERSHAN KUMAR MISRA, J.

1. The petitioner Pratap Singh, has invoked the writ jurisdiction of

this Court under Articles 226 & 227 of the Constitution of India impugning

the Award dated 24th August, 2006, whereby the action of the

respondent, Northern Railway, terminating the petitioner‟s service was

upheld.

2. The petitioner had been working as a clerk under Signal

Inspector (D) Laskar of Moradabad division of the respondent since 25th

December, 1986. One Ram Prakash, who was working as Khalasi in the

said division, wanted to take a loan. He therefore gave a loan form to

the petitioner for filing it up, and for verifying the service particulars.

The petitioner allegedly demanded a bribe of Rs. 50 from Ram Prakash

for filling up and forwarding that loan form. Ram Prakash reported the

matter to the CBI, following which the CBI laid a trap on 3 rd October,

1988. On that day, Ram Prakash gave the bribe money to the petitioner

and then gave a signal to the CBI party. The CBI party then raided and

recovered the bribe money from the possession of the petitioner. The

petitioner was, thereafter, served with a charge sheet dated 3rd March,

1989, wherein it was alleged that he had demanded and accepted a

bribe of Rs. 50/- from Ram Prakash. A Departmental Inquiry was

conducted against the petitioner under Rule 9 of the Railway Servants

(Discipline and Appeal) Rules, 1968 and the Enquiry Officer held that

the charges against the petitioner had been proved. Ultimately, the

Disciplinary Authority imposed a penalty of removal from service vide

order dated 17th June, 1992. The petitioner appealed against the said

order, but his appeal was rejected by order dated 16th November, 1994.

3. Before the Labour Court, the petitioner‟s case, inter alia,

was that the Enquiry Officer had conducted his proceedings in breach of

the principles of natural justice by not recording the reasons for his

findings. It was also his case that it was not his duty to fill in the loan

application form of the said Ram Prakash because he was only a clerk;

and that he did not have the power to sanction the alleged loan.

Significantly, he also contended that the order punishing him, which

was passed on 17th June, 1992, is based on extraneous matters,

because his past record was also taken into account while imposing

punishment. According to him, if the Disciplinary Authority intended to

also consider his previous service record while deciding the question of

punishment, it ought to have afforded him adequate opportunity to

defend himself on that aspect of the matter also. Since this was not

done, the punishment awarded was bad in law. He also contended that

the circumstances of the case did not warrant the extreme punishment

of removal from service.

4. The respondent contended that the Enquiry Officer had

given full opportunity to the workman to explain the evidence and the

charges levelled against him. That the charges framed were fully

proved; "..and it was for the Disciplinary Authority to keep in mind the

past record of the workman while deciding on the punishment to be

imposed...". On examining his past record, the Disciplinary Authority

found that the petitioner misconducted himself on a number of

occasions in the past also. According to the respondent, the punishment

of removal from service was therefore, "in continuation and keeping in

view of past record of unsatisfactory service and dismissal earlier in

November, 1985, which necessitate harsh punishment viz. removal

from service." It was also contended that the penalty of removal from

service was a lesser penalty than that of dismissal from service.

5. The Tribunal has held that the petitioner was given ample

opportunity to cross examine the witness of the respondent

management and had also been asked to produce his own defence,

therefore, the enquiry was proper and the petitioner was not entitled to

any relief.

6. Before this Court, counsel for the petitioner contends that

the report of the Enquiry Officer is vitiated as the Enquiry Officer had

rejected the statement of all the defence witnesses, who said that the

raid was a sham and the raiding party itself stuffed the money in the

petitioner‟s pocket, by concluding that they were, „cooked‟, and an

afterthought, as none of them had raised an alarm or reported the

matter to GRP/RPF. He impugns this finding of the Enquiry Officer on

the ground that the said witnesses were not duty bound to raise any

alarm or to lodge reports. I do not agree, it is within the purview of the

Enquiry Officer to take into consideration the normal reaction of persons

when confronted with certain situations. If the witnesses depose to the

happening of certain events which are shocking and alarming, it is, but

natural that those who are witnessing such an event would raise an

alarm. For instance, if a grave offence were to be committed in the

presence or within the knowledge of somebody, in the normal course,

that person could be expected to either raise an alarm or to report the

matter, even though he is not duty bound to do either of these two

things. Therefore, such a conclusion arrived at by the Enquiry Officer is

merely with a view to test the credibility and veracity of the witnesses

and nothing more, and, to my mind, this conclusion was within the

scope of his jurisdiction.

7. Counsel also impugns the reasoning adopted by the Enquiry

Officer to reject the plea of the petitioner that the raiding party pushed

the money into his pocket. According to the Enquiry Officer, since the

money had been coated with powder, anybody handling that money

would have had some residue on their fingers which becomes

discernable on the hands when washed in water. He, therefore, took the

view that it was always open to the petitioner to have asked the raiding

party to wash their fingers in water. Counsel for the petitioner contends

that this approach adopted by the Enquiry Officer is strange and should

not be accepted, especially since there is no other corroborating

evidence before the Enquiry Officer.

8. I am afraid there is no law which says that if there is no

other witness then it must be presumed that nothing had been

recovered by the raiding party. The fact remains that if the raiding

party was guilty of such a high handed and improbable conduct, it

would have been apparent even to other witnesses who were present

there since this incident, admittedly, took place in a canteen and there

could have been no dearth of independent witnesses to prove it. It is

clear that the currency notes made their way into the pocket of the

petitioner, and, admittedly, the notes were recovered from his pocket.

There is substance in the conclusion of the Enquiry Officer that if the

petitioner had not handled the money, which was allegedly thrust into

his pocket by the raiding party, he should have asked them to wash

their fingers in water. Admittedly, he did not file any report or complaint

in this behalf contemporaneously. Under the circumstances, to my

mind, the highest case of the petitioner can be that the recovery by the

raiding party should have been treated with caution in the absence of

any independent witness to testify about the recovery, but it cannot be

rejected altogether.

9. Another ground on which the petitioner challenges his

termination is that the charge sheet issued to him was based entirely on

the information provided by the CBI, even though, before the Special

CBI Court at Dehradun, the CBI had submitted the same report stating

that there is no evidence against the petitioner for making out a prima

facie case that would oblige the petitioner to face trial. The petitioner,

therefore, submits that under such circumstances, the department

should not have initiated the enquiry.

10. It is settled law that it is always open to the department to

initiate proceedings during the pendency of criminal proceedings with

regard to the same subject matter, it is also settled law that the

standard of proof which is required for a prosecution to succeed in a

criminal trial, which would result in penal consequences, is quite

different from the standard by which departmental enquiry is to be

conducted. It is important to understand the reasons why the CBI

decided not to proceed in the matter.

11. An examination of the final report submitted by the CBI under

Section 173 Cr.P.C. filed before the Court of the Special Judge, CBI,

Dehradun on 4th June,2008, as well as the overall circumstances, shows

that the CBI had submitted that it would not be possible to substantiate

the allegation „beyond reasonable doubt‟. Towards this conclusion, a

number of reasons were given. One of them, inter alia, was that the

seal which was placed on the exhibits, such as hand washes etc., was

broken during the departmental proceedings. Consequently, these

exhibits would lose their authenticity and reliability. Admittedly, the

seals came to be broken not because of any malafide or undue

interference, but in a manner and for a purpose that can be explained

during departmental proceedings. This would, nevertheless, cast „a

shadow of doubt‟ on the case of the prosecuting agency. Furthermore,

a fresh investigation was ordered by the Court of Special Judge, CBI on

16th October, 1999 because the case diaries in that case had been

damaged by white ants. Moreover, the independent witnesses, during

their re-examination, had stated that almost 20 years had passed since

the incident happened and hence they were not in a position to recollect

the facts accurately. It was largely because of these reasons that the

CBI decided not to pursue the case and sought closure.

12. Another factor pointed out by counsel for the petitioner

was that although the complainant, Ram Prakash, had stated that the

petitioner had demanded bribe from him on 18th September, 1988, he

lodged a complaint before the CBI only on 2nd October, 1988. According

to the counsel, this delay was unreasonable and was not explained by

the complainant. Ex facie, I do not consider this to be an unreasonable

delay.

13. Counsel further states that the loan application form which

was seized during the trap proceedings was not completely filled and it

only had the signatures of the complainant. He contends that although

the form was recovered from the petitioner during the trap proceedings,

there is no record to specify that the form was received by the

petitioner from the complainant himself, and, it could not be ruled out

that this form had reached the petitioner through „proper office

channel‟.

14. Although these are also the reasons which prompted the

CBI to close the case, however, as far as the latter are concerned, I do

not see how this weakens the case of the CBI. Considering the

circumstances of the complainant, who is a mere khalasi, to have

mustered the courage to go to the CBI and lodge a complaint is not a

simple and easy thing. The filing of the case by the complainant before

the CBI after two weeks of demand for a bribe cannot be taken up as an

unreasonably long period. The allegation is that the accused was

demanding a bribe from the complainant, „for filling up and forwarding

the form for loan‟, which the complainant wanted. The pertinent fact,

therefore, is that the petitioner had control over the relevant form. It is

not inconceivable that the incomplete form had been signed in advance

by the complainant and given to the petitioner to be completed by him

with a view to ensuring that the same is in order. It was always open

to the petitioner, being the officer concerned, to fill in all the particular

details after discussing the same with the complainant. This is all the

more so when the allegation is that the petitioner had assured the

complainant that if he paid him Rs.50, the petitioner would ensure that

his form was properly filled and forwarded. In this connection, it is also

relevant that the petitioner admittedly had possession of that form, and

if the form was not properly filled, why was he still holding that form.

The only reason for holding that form could be that he was waiting for

some further developments.

15. However, there may be some substance in the other

reasons given by the CBI for not continuing with the prosecution, which

have also been noted above, such as the fact that the seals were

broken, the witnesses were not inclined to depose after 20 years, etc.

This is, therefore, not a case where prosecution was not taken forward

because there was no evidence whatsoever and that the accused was

completely innocent, rather, the only reason why it was not taken

forward was that the prosecuting agency was not sanguine about

securing a conviction keeping in mind the standard of proof that is

required in criminal trials. To my mind, such an action would certainly

not debar an administrative enquiry and departmental proceedings.

16. Counsel for the petitioner relies on the judgment of the

Supreme Court in G.M. Tank v. State of Gujarat & Anr., AIR 2006

SC 2129, for the proposition that if the departmental enquiry and the

criminal proceedings are based on identical and similar set of facts and

evidence, same witnesses are examined in criminal case and the

criminal court "honourably" acquitted the employee; finding to the

contrary recorded during the departmental enquiry would be unfair and

oppressive and any dismissal order issued under such circumstances

could not have been sustained.

17. In this case, however, there was no trial and hence there

can be no question of the criminal court, "honourably", acquitting the

accused. Counsel, however, insists that a case where the CBI decides

not to proceed with the matter stands on a much better footing than a

case where the delinquent officer has, in fact, been tried by the criminal

court and honourably acquitted, and consequently, benefit of the ratio

of this judgment should be given to the petitioner also. I do not agree.

There is a vast difference between a case where a man suffers a full

criminal trial and is then acquitted, "honourably", and a case where the

prosecuting agency files a report in the court seeking to close the case,

not because, in its opinion, the accused is an innocent man against

whom there is not an iota of evidence, but because it is not confident of

securing a conviction. To my mind, the two situations cannot be

equated.

18. Another ground of challenge adopted by the counsel for the

petitioner is that the Tribunal had passed the impugned order without

any application of mind. In this regard, he states that the Tribunal had

merely reproduced the averments of the petitioner made in the

statement of claim verbatim, and had, thereafter, proceeded to

reproduce the stand of the management verbatim, which was followed

by its decision without any reasons. Counsel further submits that non-

application of mind by the Tribunal becomes clear on reading the

Award, wherein it was stated that, "it was a case of bribe of Rs. 50/-, so

the CBI did not lodge FIR." He contends that the CBI had not only

lodged an FIR, but had also filed a case in the Court of Special Judge,

Anti Corruption, CBI under section 161, IPC, where the Judge had

closed the case on filing of closure report by the CBI.

19. Counsel for the petitioner also submits that the Tribunal had

failed to examine, inter alia, the allegation of the petitioner that the

management had taken into consideration his past record whilst

deciding his case. It has been the case of the petitioner throughout that

the order of punishment, dated 17th June, 1992, is based on extraneous

matter. This is demonstrated by the following portion of that order;

".....it has also been seen from the records that Shri Pratap Singh was dismissed earlier also for misconduct in November,1985"

According to the petitioner, he did not get an opportunity to

meet this new and extra charge. Counsel further points out that it is

the management‟s own case that the punishment meted out to the

petitioner, "was in view of his past working record....", and, therefore,

indisputably, in relation to the current allegation, his previous record

was also considered by the management before deciding his

punishment. The management, in the written statement as well as in

their evidence by way of affidavit submitted before the Tribunal, and

again in its counter affidavit, had categorically accepted that the past

record of service of the petitioner was taken into consideration while

passing orders of removal from service. According to counsel, this

could not have been done without framing an appropriate charge

incorporating this aspect and affording the petitioner adequate

opportunity to meet it. He further submits that as a matter of fact,

the previous dismissal of November, 1985, was set aside, and the

petitioner was taken back on duty and since then he had been serving

satisfactorily for 7 years.

20. Therefore, the only thing that must be examined in this

matter is the scope of jurisdiction of the Disciplinary Authority when

the question of awarding punishment arises, i.e. the scope of its

power when it has to decide the quantum of punishment.

Admittedly, there is a range of punishments that can be imposed

once the delinquent official is found guilty. While deciding the

quantum of punishment, several factors like the gravity of the

offence, the circumstances in which the offence was committed, etc.

are to be considered. Now, the question for consideration is whether

the Disciplinary Authority, at the same time, can also examine his

past record for the purpose of determining the quantum of

punishment.

21. The case of the petitioner, therefore, is that his past record

was taken into consideration whilst awarding the punishment of

removal from service and since he was not put on notice regarding

this fact, that order cannot be sustained. Counsel for the petitioner

relies on the decision of a Constitution Bench of the Supreme Court

in, The State of Mysore Vs. K.Manche Gowda, AIR 1964

Supreme Court 506, for the proposition that if the proposed

punishment is mainly based on the previous record, then, the notice

to the employee must disclose this. However, the case of The State

of Mysore(supra) can be distinguished from the instant case

because here, there was no recommendation with regard to the

punishment that ought to be imposed on the petitioner. The report

was confined only to the charges that had been framed. It was only

thereafter that the competent authority, whilst making up its mind

with regard to the punishment to be awarded, has taken into account

the past record of the petitioner. So, this is not a case where the

Disciplinary Authority proposed to impose a harsher punishment than

what had been recommended, as was the case in The State of

Mysore (supra).

22. Counsel further submits that the Supreme Court, in the

case of The State of Mysore (supra), also referred to the case of

Khem Chand v. Union of India AIR 1958 SC 300, wherein the

importance of giving a reasonable opportunity to the government

servant to show that he does not merit the punishment proposed to

be meted out to him was emphasized. Further, in the case of

Gopalrao v. State AIR 1954 Nagpur 90, at pages 91 and 92, the

fact that the previous record of the government servant was taken

into consideration in awarding punishment, without bringing this fact

to his notice, and without giving him a reasonable opportunity in that

regard, was held sufficient to vitiate the order.

23. Further, the Supreme Court, in para 7 of The State of

Mysore (supra) also held that "if the proposed punishment is also

based on his previous punishments or his previous bad record, this

should be included in the second notice so that he may be able to

give an explanation."

Again, in para 8 thereof, the Supreme Court held as follows:

".........nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same."

24. A perusal of the same shows that while it is open to the

Disciplinary Authority to take into consideration the past conduct of

the delinquent officer, what is necessary is that a reasonable

opportunity should be given to the concerned officer so that he may

be in a position to meet the same if he so desires. Counsel for the

petitioner, however, contends that this opportunity was not given.

25. The basic protection to an employee under Article 311 of

the Constitution of India, or any other relevant statute with regard to

a government servant, is that before any order punishing him is

passed, he must be given a proper opportunity of meeting all the

allegations against him. Naturally, therefore, if a punishment is

sought to be imposed taking into consideration not only the finding of

the inquiry officer on the charge framed qua the complaint in

question, but also his past conduct; then, the fact that the employer

intends to keep in mind his past conduct must also be brought home

to the employee, either as a separate article constituting one of the

charges on the basis of which the inquiry is instituted, or even later

on, but before a final decision is taken by the Disciplinary Authority

before whom the recommendations of the inquiry officer are placed.

Admittedly, in the impugned award, the learned Labour Court failed

to deal with this aspect of the matter. The Labour Court did not go

into the question whether, under the circumstances, the

management was justified in considering the past conduct of the

petitioner while deciding the quantum of punishment.

26. In the present case, admittedly, the past conduct of the

petitioner did not form part of the charge-sheet. The petitioner was

also not informed that in arriving at its decision, the Disciplinary

Authority is also likely to take into account his past conduct.

Thereafter, the findings of the inquiry committee went up to the

Disciplinary Authority; and the Disciplinary Authority was obliged to

apply its mind to them, even at that juncture, it was open to the

Disciplinary Authority to inform the petitioner that it also intended to

examine his past conduct and to give him an opportunity to have his

say before arriving at a conclusion. The Disciplinary Authority,

however, did not do any such thing.

27. In his appeal against the decision of the Disciplinary

Authority, the petitioner had raised the ground that he had no notice

of the fact that his past conduct would also be taken into

consideration against him and that, therefore, that ought not to have

been taken into account at all. In the alternative, it was also

contended that on facts, his past conduct was explainable, and the so

called earlier dismissal from service was, in fact, set aside and he

was reinstated in service. However, the Appellate Authority also

failed to consider this aspect of the matter.

28. Before the Labour Court also, the petitioner pointed out

that the alleged punishment, which was stated to have been imposed

on him earlier, and which had influenced the mind of the Disciplinary

Authority, had, in fact, been set aside and the petitioner was taken

back on duty. And that he had served satisfactorily for seven years

thereafter. Counsel contends that the Labour Court had not dealt

with this issue at all.

29. Counsel for the petitioner has also referred to a decision

of the Supreme Court in Indu Bhushan Dwivedi vs. State of

Jharkhand & Anr. in Civil Appeal No. 4888/2010 decided on 5th

July, 2010, in particular, paragraph 11, 12, 13, 17 & 18 thereof. In

para 18 of this judgement, the Supreme Court observed as follows:

"When it comes to taking of disciplinary action against a delinquent employee, the

employer is not only required to make the employee aware of the specific imputations of misconduct but also disclose the material sought to be used against him and give him a reasonable opportunity of explaining his position or defending himself. If the employer uses some material adverse to the employee about which the latter is not given notice, the final decision gets vitiated on the ground of the violation of the rule of audi alteram partem. Even if there are no statutory rules which regulate holding of disciplinary enquiry against a delinquent employee, the employer is duty bound to act in consonance with the rules of natural justice "

30. The question of consideration of past conduct was, inter

alia, also considered by the Supreme Court in Mohd. Yunus Khan

Vs. State of Uttar Pradesh (2010) 10 SCC 539 where it was stated

as follows:-

"34. .......If the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show cause notice, before imposing the punishment."

It was also concluded therein that,

"37......past conduct of an employee should not generally be taken into account to substantiate the quantum of punishment without bringing it to the notice of the delinquent employee."

31. I also note that in the case of Mohd. Yunus Khan

(supra), whilst concluding that the order of punishment is null and

void and therefore, cannot be given effect to; keeping in mind the

fact that the appellant had already reached the age of

superannuation and in order to meet the ends of justice, the Court

was of the view that it would suffice if the appellant is paid 50% of

the wages from the date of removal from service till the date of

reaching the age of superannuation. It was also directed that retiral

benefits in accordance with law be made available to the appellant.

32. Under the circumstances and in view of the fact that the

Disciplinary Authority had clearly taken into consideration past

conduct of the petitioner whilst deciding the quantum of punishment

without bringing this aspect to the notice of the petitioner, the

petition deserves to be allowed. Consequently, the impugned order

of the Tribunal, as well as the orders of the Disciplinary Authority

dated 17th June, 1992 and the Appellate Authority dated 16th

November, 1994 are all quashed and set aside. Since the petitioner

has already reached the age of superannuation; and in the light of

the approach adopted by the Supreme Court in Mohd. Yunus Khan

(supra), the petitioner shall be paid 50% of the wages from the date

of his removal from service till the date when he would have reached

the age of superannuation. The retiral benefits, in accordance with

law, from the date he would have retired in the normal course if the

impugned orders had not been issued, which have remained unpaid,

and which may become due and payable as a consequence of this

judgment, shall also be computed by the respondent in terms of the

relevant rules and paid to him by the respondent within three months

from today.

33. The petition is disposed off in the above terms.

CM Appln.No.2059/2010 in WP(C) No.5653/2007

34. In view of the judgment passed in Writ Petition (C)

No.5653/2007, this application does not survive and the same is

disposed off as such.

SUDERSHAN KUMAR MISRA, J.

SEPTEMBER 15, 2011