JUDGMENT [ENTITY], J.
1. Heard Sri [ENTITY], Senior Advocate assisted by Sri [ENTITY] for petitioner and Sri [ENTITY], learned Counsel for the respondents.
2. The petitioner was serving as Constable in Railway Protection Special Force (RPSF). In [CASE NUMBER], he has sought directions to quash the orders dated 2.11.1991 passed by Commanding Officer 2nd Bn/RPSF/Gorakhpur, by which he was removed from service after a departmental enquiry, and the orders dated 22.5.1992 and 15.3.1993 by which his appeal and revision have been dismissed by Chief Security Commissioner/RPSF, and Director General, Railway Protection Force respectively.
3. In [CASE NUMBER] the petitioner has prayed 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.
4. Brief facts giving rise to these writ petitions, are that while posted at Bird Sanctuary, Nawabganj the petitioner was charge sheeted on 30.11.1990 by the Assistant Commandant-I, 2nd Bn/RPSF/GKP, after a preliminary enquiry under , for imposing major punishment. The two charges are quoted as follows :
"1. Serious misconduct and remissness in that Const. 8258 [ENTITY] of 'B' Coy. 2nd Bn/RPSF was detailed at Paksai Bihar, Nawabganj/Azgain for law and order duties under State police on 4.11.1990 being under influence of liquor, from where, he was brought by CHM [ENTITY] of B Coy on ground floor of the cafataria. He was directed by [ENTITY] for medical examination through HC [ENTITY] and [ENTITY] but he refused and used unparliamentary languages to [ENTITY] full of abuses.
2. Constable/8253 [ENTITY] of B. Coy also made a false allegations against CC [ENTITY] of B Coy that he was assaulted and abused by him (CC)."
5. Sri [ENTITY] (Coy Commander) was appointed as enquiry officer. The petitioner alleged mala fides and bias against him and requested for change of enquiry officer. The request was accepted and Sri [ENTITY], C.C. 'D' Coy was appointed as enquiry officer. In [CASE NUMBER] this Court by its order dated 17.5.1991 which issuing notices directed that an enquiry officer be appointed to conduct an enquiry against the petitioner, who should be higher in rank than the Coy Commander. Consequently, Sri [ENTITY], Assistant Commandant (Adjt) was appointed as enquiry officer. He proceeded from the stage where the enquiry were left by Sri [ENTITY]. The statement of prosecution witnesses in DAR enquiry indicted the petitioner. He was permitted to cross-examine them.
6. The enquiry officer submitted his report on 26.10.1991 with the findings that the petitioner was guilty of both the charges. It is not denied in para 26 of the counter-affidavit and is rather admitted that the enquiry report was not supplied to the petitioner before the punishment order was issued. 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.
7. The petitioner preferred an appeal under [SECTION] of [ACT] which was dismissed by Chief Security Commissioner, with the finding that the order of disciplinary authority deals with all the points relating to the case and that there was no good 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.
8. Sri [ENTITY], learned Counsel for the petitioner submits that the punishment to remove a member of the force may be given, subject to [SECTION] of [ACT]. [SECTION] provides for penalties for negligence of duty, which is to be treated as an offence punishable and to be tried under the [ACT] by a Magistrate of 1st class. According to him, [SECTION] of the [ACT] provides in detail the offences relatable to duties of enrolled members which render him liable for punishment under [SECTION] and [SECTION] or both. He submits that the charge on its own did not fall within the definition of offences which are punishable under [SECTION] inasmuch as the petitioner was mounted on duty on 3.11.1990 at 7.30 p.m. and dismounted on 4.11.1990 at 8.30 a.m. The alleged incident took place on 4.11.1990 at about 1.00 p.m. when the petitioner was not on duty. [SECTION] of [ACT] lays emphasis of the offence being in a state of intoxication, while on duty, and after having been alerted for any duty. The relevant, rule is quoted as below :
"147, Offences relatable to duties of enrolled members :
Commission of any of the following act or acts by an enrolled member of the force
(ix) being in a state of intoxication while on duty or after having been alerted for any duty ; and shall render him liable for punishment under [SECTION] and [SECTION] or both."
The enquiry officer did not advert to the question whether the petitioner was on duty, at the time of incident. Consuming liquor, according to Sri [ENTITY], 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. Sri [ENTITY] submits that when the High Court directed that the enquiry officer to be appointed, should be higher in rank than the Coy Commander, enquiry officer, so appointed, was required to begin de novo, instead the enquiry was started from the point, it was left by Sri [ENTITY]. He has relied upon [PRECEDENT], to submit that it amounted to violation of the principles of natural justice.
9. Sri [ENTITY] further 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, Sri [ENTITY] 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 [ENTITY]'s case (decided on 20.11.1990) and that in view of [PRECEDENT], it was necessary to supply the copy of enquiry report, even if there is no provision in the [ACT] 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.
10. Sri [ENTITY], on the other hand, submits that the charges are serious and were established against the petitioner. 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 de novo. The statement of prosecution witnesses were recorded during DAR enquiry in presence of the petitioner. There is no requirement in [ACT] to provide a copy of the enquiry report to the delinquent employee and that directions in this regard, after [ENTITY]'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. Sri [ENTITY] 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. The scope of enquiry and judicial review in such a matter are very limited [vide [PRECEDENT]], in which it was held that where integrity or good faith or devotion to duty is found missing a major penalty is an appropriate punishment. He has also relied upon in [PRECEDENT], in which a Constable Gunman roaming in the market with service revolver in a drunken state was found to have committed gravest misconduct warranting dismissal from service, and in [PRECEDENT], where the test of prejudice was applied in cases where enquiry report was not supplied. Sri [ENTITY] submits that in the present case no such prejudice has been caused as the enquiry was conducted strictly in accordance with Rules and that the establishment of charges, and its review both by appellate and revisional authorities do not warrant any interference from the Court.
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 [ENTITY] in reply to question No. 25 stated that the petitioner was dragged to Bus for medical examination. H/C [ENTITY] stated in reply to question No. 11 that there was a hot altercation between [ENTITY] 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 [ENTITY], 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 [ENTITY], the enquiry officer observed that no doubt the delinquent has brought out some allegations against [ENTITY], 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 [ENTITY] 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 [ENTITY], 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 [PRECEDENT] (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 [SECTION] of the [ACT]. The judgment in [ENTITY]'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 [ENTITY]'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 [ENTITY]'s case and Managing Director [PRECEDENT], (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 [PRECEDENT] (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 [PRECEDENT], the Division Bench of this Court in a judgment given by Hon'ble [ENTITY], 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 [CASE NUMBER] 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 [ACT] and the Rules. The petitioner shall be entitled to costs of these proceedings.
The [CASE NUMBER] is also disposed of accordingly.