1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2419/04 Pappu Khan vs. Union of India & Anr. Date of order : 16th September, 2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sanjeev Prakash Sharma for the petitioner. Miss Sonal Singh for the respondents. ****** The petitioner who was working as Constable in Railway Protection force has filed the present writ petition challenging the order of his removal dated 24.9.2003 and the further order dated 23.3.2004 whereby his appeal filed against that order was dismissed. The petitioner has also challenged the validity of the enquiry report dated 16.7.2003. Petitioner was appointed as Constable in Railway Protection Force on 12.4.2001 and was posted at Ajmer where the disciplinary enquiry in question was held against him. Petitioner has contended that the respondents by order dated 22.8.02 directed the petitioner to report to CBI/ACB, Gandhinagar, Ahmedabad regarding certain investigation and accordingly when he reported, the CBI wrongfully arrested him relating to some case of leakage of examination papers at Ahmedabad on 17/18.8.02. It was alleged that in all nine persons were involved in the leakage of papers. The petitioner had 2 allegedly sent the papers by fax from Ahmedabad to Baroda on 17.8.02, whereas the fact was that the petitioner on that day was on duty at Ajmer. During investigation, it transpired that some other person by the same name of the petitioner i.e. Pappu Khan was involved in the paper scam. The petitioner however had to remain in judicial custody for 13 days and was ultimately granted bail on the condition that he would mark his presence with the Investigating Officer of the case or before some other officer of CBI at Gandhinagar every monday between 12.00 noon and 4.00 PM from 16.9.02 till 14.10.2002 and thereafter shall mark his presence on every 1st and 15th day of the month till further orders. He was further directed not to leave the State of Gujarat without prior permission of the Court. It is contended that when the petitioner with the permission of the Court was coming back to report on his duty, he unfortunately met with an accident at Pali and was seriously injured with a head injury which was fracture of his right parietal bone, surgical neck of humerus and right maxilla. He was admitted in Government Hospital Pali-Marwar and from there he was referred to Jaipur where he remained hospitalised at Marudhar Hospital under 3 treatment of specialist from 11.6.03 to 17.7.03 and then he was transferred to Railway Hospital, Ajmer and was finally advised complete bed rest upto 15.10.2003. Copies of the documents relating to his treatment have been placed on record. It is contended that in the meantime without any information and knowledge of the petitioner the respondents initiated departmental proceedings against him on the ground of unauthorised absence and issued charge sheet on 22.4.2003 under Rule 153 of the Railway Protection Rules, 1987 (for short-Rules of 1987) on the charge that he did not rejoin his duties after he was released on bail and did not mark his attendance at Jaipur. Even though the charge sheet was shown to be issued on 22.4.2003, but it was never served upon the petitioner till he was hospitalised in Railway Hospital at Jaipur. It was there only that he was served with only a copy of the ex- parte enquiry report dated 16.7.2003 which was conducted against him with a letter dated 18.7.03. Petitioner immediately submitted an application to the respondents on 2.8.03 pointing out that he was seriously unwell and was not in a condition to submit his reply and therefore time may be granted to him. The respondents by their letter dated 29.8.03 4 further informed the petitioner that he should submit his reply to the notice within one week. The petitioner then again submitted a representation on 5.9.03 that he was not willfully absent and was throughout present at Ahmedabad which could be verified from CBI office where they retained all his belongings including his I-Card. It was contended that since the petitioner was under suspension and 50% subsistence allowance was being paid to him at Ahmedabad, the fact that the petitioner was present at Ahmedabad was fully known to the respondents. There was therefore no question of ex-parte proceedings against the petitioner and not serving charge sheet on him. The reply was not accepted and ultimately the disciplinary authority on the basis of enquiry report passed an order on 24.9.03 holding the petitioner guilty of all the charges and removed him from service with immediate effect. The appeal of the petitioner was also dismissed by the appellate authority by order dated 23.3.2004. Shri Sanjeev Prakash Sharma, learned counsel for the petitioner has argued that the disciplinary proceedings held against the petitioner in violation of and contrary to the Rules of 1987 and Railway Service (Conduct) Rules, 1966. There was in fact no misconduct 5 because the petitioner was required by the disciplinary authority to go and report to CBI at Ahmedabad and when he reported at Ahmedabad, he came to know that he was required in connection with investigation of a criminal case with regard to leakage of examination papers. He was granted bail in that case by the said Court at Ahmedabad. There were however certain conditions attached with that order that the petitioner would report the CBI every week and would not leave Ahmedabad without permission of the Court. This fact can be verified from CBI office at Ahmedabad. Charge sheet was not served upon the petitioner. It was not sent to his home address and the disciplinary authority and the Enquiry Officer have relied on the provisions of Section 62, 64, 65 and 69 of Cr.P.C. for treating the service of charge sheet on him. The railway quarter where the charge sheet was allegedly shown to have been served upon the petitioner was in fact never allotted in his name. This clearly substantiates the biased attitude of the respondents. Entire proceedings of the enquiry were vitiated for failure of the respondents to adhere to the principles of natural justice and fair play. The petitioner was not given any opportunity to defend his 6 case. Neither the disciplinary authoirty, nor the enquiry officer exercised the diligence of getting the information about the proceedings against the petitioner in CBI Court at Ahmedabad. The enquiry was conducted in a slip- shod manner with the presumption that the petitioner is not willing to join the duties whereas the fact is that all this time, the petitioner was bedridden having met with an accident and sustained fatal fractures of head. The disciplinary authority also failed to appreciate all these aspects and has blindly accepted the enquiry report. Petitioner when he was served with the copy of the enquiry report, requested for time because he was hospitalised, but the reasonable time was not allowed to him. The disciplinary authority in his order has stated that the petitioner did not make any representation in response to notice, whereas the petitioner did submit the representation. Out of nine persons, who were charge sheeted by CBI, all except the petitioner have been reinstated in service. Even otherwise, a government servant under suspension need not everyday report on duty. Learned counsel for the petitioner in support of this contention relied on the judgement of Jagdamba Prasad Shukla-(2000) 7 SCC 90. 7 Per contra, Miss Sonal Singh appearing for the respondent opposed the writ petition and argued that the direction to the petitioner to report to CBI authorities every monday was confined to the period from 16.9.02 to 14.10.02 and thereafter the petitioner was to report to the CBI authorities on 1st and 15th of every month. The fact that charge sheet was served upon the petitioner, is evident from the statement of witnesses such as Sub-Inspector Hari Narain Meena, Head Constable Ghosh Mohammad, Head Constable Ghood Mal and railway employee Babu Lal and Laxmi Narain Meena who have stated that when they offered charge sheet to the petitioner at his residence at Ajmer on 30.4.07, he refused to accept the same and it was thereafter that the charge sheet was pasted outside his residence in the presence of the witnesses. It was argued that full opportunity was given to the petitioner to defend himself, but he continued to remain absent. Communication about the enquiry was sent to the petitioner by registered post but it was returned back unserved. The enquiry proceedings were completed strictly as per the rules. Learned counsel in support of her arguments relied on the judgements of the Supreme Court in NRC Ltd. vs. NRC Employees' Union-2002 (2) 8 SLR 521, Delhi Transport Corporation vs. Sardar Singh-(2004) 7 SCC 574, North-Eastern Karnataka Corporation vs. Ashappa-(2006) 5 SCC 137, State of Rajasthan & Anr. vs. Mohd. Ayub Naz-(2006) 1 SCC 589, Avtar Singh Constable vs. State of Punjab & Ors.-2004 (1) SLR 694, D.C.M. Ltd. & Anr. vs. Labour Court, Kota & Ors.-RLR 1990 (1) 611, Syndicate Bank vs. General Secretary, Syndicate Bank Staff Association & Anr.-(2000) 5 SCC 65. I have given my thoughtful consideration to the rival submissions and perused the material on record. A perusal of the enquiry report dated 16.7.03 shows that the first charge against the petitioner was that even though he was released on bail by Special Judge at Ahmedabad on 9.9.2002, he did not report back to his duties. Second charge was that in spite of notice dated 27.8.02, which was served on him on 1.12.02, he has not reported on duty. He was also required by registered notice dated 17.3.03 to attend the duties but he did not at all respond. Third charge against the petitioner was that when in the presence of Sub-Inspector Hari Narain Meena, Head Constable Ghosh Mohammad, Head Constable Ghood Mal and railway employee Babu Lal and Laxmi Narain Meena, the petitioner was 9 offered an administrative order, he refused. Fourth charge is to the effect that by his aforesaid conduct, petitioner has violated the provisons of Rule 3(i), (ii) and (iii) of the Railway Service (Conduct) Rules, 1966. It is alleged that the Assistant Commissioner, CBI issued an order on 1.3.03 requiring the petitioner to report on duty, which was offered to him by Sub-Inspector Hari Narain Meena in the presence of Head Constable Ghosh Mohammad, but the petitioner declined to accept such notice violated Rule 146 and 147 of the Rules of 1987. Even after service of the order on 1.12.2002, the petitioner did not attend the duties, which amounted to misconduct on his part in terms of Rule 3 of the Railway Service (Conduct) Rules. The Enquiry Officer after recording the aforesaid charges found all the four charges proved against the petitioner. When the petitioner was offered the enquiry report in the hospital, where he was bedridden, he by his letter dated 18.7.2003 requested for time on the ground that because of his health, he was not in a position to defend himself. Ultimately when the petitioner was required to submit reply, he submitted the reply on 5.9.2003 expressing therein that after he was enlarged 10 on bail, there was the condition of marking his attendance by the CBI office and he could not come to report on duty at Ajmer. He further stated that the railway quarter at which notice was shown to have been affixed was neither allotted to him, nor the petitioner was residing there. The departmental witnesses however made false statement and therefore he should be given liberty to cross examine them. He also stated that he was not willfully absent because he was officially required to go and report at Ahmedabad. A perusal of the penalty order though indicates that the disciplinary authority has concurred with the enquiry report but it is not shown whether any of the points raised by the petitioner was considered. On the contrary, the disciplinary authority has recorded that in spite of notice, the delinquent has not submitted any written representation in his defence, though he was required to submit his written representation within 15 days. It obviously indicates that the application of the petitioner dated 2.8.2003 for extension of time to submit written defence and the written defence though, submitted by the petitioner on 5.9.2003, have completely gone unnoticed by the disciplinary authority. Statements of the above referred to 11 departmental witnesses indicates that ASI Ganga Ram has stated that he along with Sub-Inspector Hari Narain Meena, Ghosh Mohammad and Sukhraj visited the residence of the petitioner i.e. Quarter No. 1987/B on 30.4.2003 and the petitioner was found there. However, when charge sheet was offered for service to him, he refused and in the presence of motbir witnesses, it was affixed at his residence. Head Constable Ghosh Mohammad and Sukhraj have also made a similar statement. Petitioner in his reply to the notice served along with enquiry report clearly asserted that neither he was present in the house in question, nor the house was allotted to him. The disciplinary authority in the order of penalty has completely ignored that argument and observed that the service of the charge sheet was got affected on the delinquent by recourse to Sections 62, 64, 65 and 69 Cr.P.C. No proof of the fact that the house in question was allotted to the petitioner or that the same was otherwise occupied by him, was brought on record. Neither the enquiry officer nor the disciplinary authority has dealt with the argument that the petitioner was initially directed by the respondents themselves to go to Ahmedabad and there he was arrested and when he 12 was granted bail, it was a conditional bail that the petitioner was required to report at Ahmedabad initially on every monday from 16.9.02 to 14.10.02 and thereafter every fortnight on 1st and 15th of the month. Nothing has been discussed about the assertion made by the petitioner that he could not leave State of Gujarat without the permission of the Court. Moreover, the period during which the petitioner remained hospitalised also has been completely lost sight of by the enquiry officer and the disciplinary authority. They were also required to examine whether a delinquent, who was under suspension was required to continuously remain present to report on duty everyday and if so, what are the relevant rules or instructions on that aspect, which has not been done. Departmental witnesses who have been examined to say that charge sheet was served upon the petitioner do not inspire confidence because on the one hand, the respondents contend that these witnesses had gone to the residence of the delinquent on 13.4.2003 for service of charge sheet, on the other, these very witnesses are cited in support of charge no.3, where it is alleged that the petitioner refused to accept the copy of the order dated 1.3.03 when it was offered to him in their 13 presence on 30.4.03. Though the Enquiry Officer has taken support from the statement of these witnesses in so far as the service of charge sheet is concerned, but he has found the charge no.3 proved against the petitioner on the basis of statements of witnesses which are on record, in which they merely stated about the efforts made by them to serve copy of the charge sheet upon the petitioner. The respondents do not appear to have made any serious efforts to serve the charge sheet upon the petitioner. Enquiry, even otherwise, appears to have been held in a slip-shod manner without adhering to the principles of natural justice and fair play. The petitioner was not afforded a reasonable opportunity to defend himself. Factors which the petitioner has disclosed entitles him to at least the relief of participation in such an enquiry if at all he is proceeded against on the alleged charge. Since the entire enquiry proceeding against the petitioner were conducted ex-parte, he obviously therefore was neither supplied with copies of any of the documents, nor copies of the statements relied on by the Enquiry Officer against him. The petitioner has been able to prima facie show that he was prejudiced by the manner in which the enquiry was held against 14 him. Various judgements which have been relied on by the learned counsel for the respondent are though arise out of the cases in which the delinquents were proceeded against on the charge of willful absence and the scope of interference by the High Court on proportionately of the punishment was considered therein. But in cases where it is shown that the enquiry itself was vitiated by failure of the authorities to observe the principles of natural justice, which are incorporated in the relevant rules also, the question of proportionately would not be of that significance. In view of the above discussion, the petition deserves to be allowed and is accordingly allowed and the order of penalty dated 24.9.03 as also the order dismissing the appeal by the appellate court dated 23.3.04 are both quashed and set aside. The petitioner is held entitled to reinstatement in service with all consequential benefits. The respondents would however be at liberty to proceed against the petitioner afresh in accordance with law. RS/ (MOHAMMAD RAFIQ), J. 15 S.B. CIVIL WRIT PETITION NO.2419/04 Pappu Khan vs. Union of India & Anr. Date of order : 16th September, 2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sanjeev Prakash Sharma for the petitioner. Miss Sonal Singh for the respondents. Order pronounced in Court today. The petition is allowed (See separate order). By order COURT MASTER 16 S.B. CIVIL WRIT PETITION NO.1686/02 Date of order : 22nd July, 2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sanjeev Prakash Sharma for the petitioner. Shri V.D. Sharma, Dy. Govt. Counsel for the respondents. Order pronounced in Court today. The petition is allowed (See separate order). By order COURT MASTER