DEVENDER KR. SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) By this petition, the petitioner has challenged order dated 31.5.1991 (Annexure 18) whereby he has been dismissed from service after holding of disciplinary enquiry under Railway Protection Force Rules, 1987 ("RPF Rules"), so also the order dated 5.11.1991 (Annexure 20), whereby appeal preferred by him was rejected.

(2.) Facts, in brief, are that the petitioner was appointed as Rakshak in Railway Protection Force in November, 1978. While he was posted at Phulera, vide movement order dated 01.10.1990 (Annexure 1) he was directed to proceed to Renwal Railway Station to keep watch on derailed wagons of Goods Train. Allegation against him was that he left Renwal without permission to Phulera and while boarding the train No. 9932 DN (Arawali Express) from Phulera to Renwal, the petitioner had some hot exchange with TTE, as he was in civil dress and boarded unauthorisedly in a reserved coach on 6.10.1990. For this incident, upon receipt of complaint by TTE, a case was registered against the petitioner under Sections 145 and 146 of Indian Railways Act read with Section 323 IPC. For alleged misconduct on his part for aforesaid incident of 6.10.1990, the petitioner was suspended vide order dated 10.10.1990 (Annexure 2). Preliminary enquiry was conducted against him, and on the basis of preliminary enquiry report, he was then served with charge sheet dated 23.11.1990 (Annexure 4) under Rule 153 of RPF Rules, to which he submitted his written explanation, denying all the charges but, without looking into submission made by him in his reply, enquiry officer was appointed. The enquiry officer recorded statement of witnesses. As per material on record, the evidence of department was closed on 21.3.1991 and the enquiry was fixed on 9.5.1991 for defence evidence. On that day he submitted list of his witnesses containing three names, along with an application, namely Madan Singh, Deviram and Tirath Singh, and witness Madan Singh was examined on 9.5.1991 and thereafter, enquiry was adjourned to 13.5.1991 for recording evidence of other witnesses. However, on 13.5.1991, the petitioner did not attend the enquiry as he was reported to be sick and vide communication dated 17.5.1991, enquiry was fixed for 22.5.1991 and on the said date, because of his illness, he could not appear before enquiry officer and reported on 27.5.1991 upon his recovery from illness and submitted his fitness certificate. However, on account of his absence, on 22.5.1991, enquiry officer proceeded ex pane against the petitioner and submitted his report to the disciplinary authority on 27.5.1991, holding him guilty for all the charges except part of charge No. 3 with regard to the allegation of stopping train by pulling claim, and charge No. 4. However, disciplinary authority vide its order dated 31.5.1991 accepted the finding recorded by enquiry officer and inflicted penalty of dismissal from service upon the petitioner, and along with order of punishment, a copy of enquiry report was supplied to him. The petitioner preferred an appeal under Rule 212 of RPF Rules to the appellate authority, before whom it was his first opportunity available for him to point out any procedural error, infirmity and perversity in the enquiry report, if there was any, so also the prejudice having been caused to him because of ex-pane enquiry proceedings against him, and so also other material, which was made to be the basis by disciplinary authority in holding him guilty, which was not made available to him before passing order of punishment, which has resulted in causing prejudice to him, and thus took all such pleas in the appeal, but that too was rejected on 5.11.1991 vide order (Annexure 20). Hence, this writ petition.

(3.) Shri Abhay Kumar Bhandari, Sr. Counsel for the petitioner has urged that while proceeding ex-parte against the petitioner despite the fact that he was ill on 22.5.1991 and list of witnesses, whom he wanted to examine in the course of enquiry, was already furnished by him on first date, i.e. 9.5.1991 after closure of departmental evidence, and one of the witnesses Madan Singh was examined on first available date, itself, it showed his intention to co-operate in the enquiry, rather there was no intention on his part to defer the enquiry for one or the other reasons, but because of illness on 22.5.1991, the enquiry officer proceeded ex-parte against him, submitted his report to the disciplinary authority immediately on 27.5.1991, holding him guilty, and submitted that the very premises, on which enquiry officer acted upon in taking decision in holding the petitioner guilty in his absence on account of his illness duly supported by certificate of railway doctors was in clear violation of rules of natural justice, and the respondent failed to afford an adequate and reasonable opportunity to him to submit his defence by calling witnesses. Shri Bhandari submitted that ex-parte enquiry initiated against him vitiates the finding of enquiry report so also the decision of the disciplinary/appellate authority in holding him guilty and inflicting penalty of dismissal from service.