W.P.(C)No.13351/2005 Page 1 of 19 56 *IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C)No.13351/2005 Date of Decision : 10th November, 2010 % CONST. SETH PAL SINGH ..... Petitioner Through : Mr. Rajesh K. Khanna, Sr.Adv. with Mr. Virender Singh, Ms. Neha Garg and Ms. Seema Rao, Advs. versus UOI & ORS. ..... Respondents Through: Mr. S.P. Sharma, Adv. with Dr.Ashwani Bhardwaj, Adv. CORAM :- HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may YES be allowed to see the Judgment? 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be YES reported in the Digest? GITA MITTAL, J. (Oral) 1. The writ petitioner has assailed the order dated 15th January, 2001 passed by the respondent No.5 awarding the major punishment of removal from the service; the order dated 17th May, 2001 passed by the Additional Chief Security Commissioner, Railway Protection Force sustaining the said order as well as the order dated 24th May, 2002 whereby the respondent No.3, while upholding the findings of guilt against the petitioner, has converted the punishment of removal from service into compulsory retirement. W.P.(C)No.13351/2005 Page 2 of 19 2. So far as the charges on which the inquiry was proposed, the same were informed to the petitioner by the memo dated 1st June, 1999. The same deserve to be usefully extracted and read as follows:- “CHARGE SHEET Under Section (1) i. of the RPF Act, 1957 read with 153 of RPF Rules, 1987 NORTHERN RAILWAY – RAILWAY PROTECTION FORCE MEMORANDUM Shri Seth Pal Singh s/o Sh. Sahib Singh, Const./Railway Protection Force/Delhi (name and designation of the member of the Force) is hereby informed that it is proposed to hold an enquiry against under Rule 153 of Railway Protection Force Rules, 1987. The allegations on which the enquiry is proposed to be held are set out in the enclosed statement of allegations and the charges framed on the said allegations and the charges are specified in the enclosed statement of charges. A list of documents by which and a list of witnesses by whom the articles of charges are proposed to be sustained are enclosed. Shri V.K. Chaturvedi, IPF/SCNL is nominates as inquiry officer for conducting De-navo enquiry. The enquiry is fixed on 7.6.99 at SCNL/P.K. Road at 10.00 hours. You should attend the enquiry, failing which the enquiry will be conducted ex-parte. Shri Seth Pal Singh, Const/Railway Protection Force Delhi (M) while presenting himself before the enquiry officer may; (a) Furnish names and addressed of witnesses, if any whom he wishes to call in support of his defence. (b) Furnish the list of documents, if any, which he wishes to produce in support of his defence. (c) Shri Seth Pal Singh, Const/Railway Protection Force, Delhi (M), is further informed for the purpose of preparing his defence he wishes to inspect and take extracts from any official records, he should W.P.(C)No.13351/2005 Page 3 of 19 furnish a list of such records to the enquiry officer not lake to _____ (indicate allowing at-least clear one week) so that arrangements may be made to vide facilities for the purpose. He should, however, note that if in the opinion of the enquiry officer records are not relevant for the purpose, or it is against the public interest allow him access to such records, he will not be permitted to inspect or take extracts from such records. 5. The attention of Shri Seth Pal Singh Const. Delhi, in invited to Rule 113 and 145 of RPF Rules, 1987 under which members of the Force are forbidden from bringing or attempting to bring any political or other outside influence to bear upon any superior authority to further his interest in respect of matter pertaining to his service under the Government. If any representation is received on his behalf from any other person in respect of any matter dealt with in these proceedings, it will be presumed that Shri Seth Pal Singh, Const. Delhi (M) is aware of such a representation and that it has been made at his instance and action will be taken against him for violation of the said Rules. 6. Shri. Seth Pal Singh, Const. Delhi (M) should acknowledge receipt of this charge sheet on the date, it is presented to him by giving his signatures thumb impression on the acknowledgement form.” 3. The petitioner was serving as a Constable with the Railway Protection Force since 1987. On 1st June, 1999, the Railway Protection Force had issued a memorandum to the petitioner alleging that he had demanded and accepted the illegal gratification of `200/- from a decoy sent by its vigilance team on 28th February, 1998. The petitioner was also informed that a disciplinary inquiry was proposed to be held against him with regard to the said allegations. 4. It is undisputed that one Sh. M.S. Farooqi was appointed as an inquiry officer. In the course of this inquiry, evidence was W.P.(C)No.13351/2005 Page 4 of 19 recorded by the inquiry officer, who after consideration of the matter submitted a report absolving the petitioner of the charges and holding him not guilty thereof. This inquiry report was placed before Senior Security Commissioner of the Railway Protection Force who was the competent disciplinary authority of the petitioner. This authority was of the view that inquiry officer had failed to examine certain witnesses and had not brought copy of the complaint from the vigilance team on record. By an order dated 31st May, 1999, it was held that the inquiry was not properly conducted by the inquiry officer. For this reason, the disciplinary authority directed a de novo inquiry into the instant case and nominated Sh. V.K. Chaturvedi as the Inquiry Officer. 5. Sh. V.K. Chaturvedi had conducted a second inquiry and submitted a report dated 3rd May, 2000 absolving the petitioner of the first charge noted above but found that the petitioner had not co-operated with the vigilance team and, therefore, found him guilty of charge No.2. This report was placed for consideration for the disciplinary authority who, on a consideration of the inquiry report, passed an order dated 30th May, 2000 making several observations on the material brought on record during the inquiry and drawing the following conclusions:- “My above doubts establish the fact that independent witness Sh. Babu Ram s/o Sh. Gulab Singh has been won over by the party-charged and his statement has been got changed. The illegal money as reported by Vigilence Inspectors was demanded and accepted by Constable Sathpal Singh. W.P.(C)No.13351/2005 Page 5 of 19 Under the circumstances, I hold the party- charged guilty for both the charges levelled against him. Before any punishment for the above charges is awarded to the party-charges, I give an opportunity to the party-charged to submit any defence on the above points within 15 days from the date of receipt of this notice. A copy of the findings submitted Shri V.K. Charturvedi, IPF/SCNL is also enclosed herewith.” 6. A notice dated 31st May, 2000 was thereafter issued to the petitioner by the disciplinary authority enclosing a copy of the findings of the inquiry officer. The petitioner was thereby informed that the disciplinary authority would take a suitable decision after considering the report and in case the petitioner wishes to make any representation or submission, he could do so in writing to the disciplinary authority within a period of 15 days from the receipt of the letter. 7. The petitioner had submitted a detailed representation challenging the legality and validity of the second inquiry and also observing that the petitioner had been absolved of all charges by the first inquiry. It was also urged that the findings on the second charge of the inquiry officer were passed on assumption and was without any evidence. 8. The disciplinary authority thereafter proceeded to inform the petitioner by a communication dated 15th January, 2001 that the penalty of removal from service with immediate effect had been awarded to him. 9. As noted above, the petitioner’s appeal assailing the actions and orders of the disciplinary authority was rejected by W.P.(C)No.13351/2005 Page 6 of 19 the order dated 17th May, 2001. The petitioner’s revision petition assailing the two prior orders was considered by the Additional Chief Security Commissioner of the Railway Protection Force who thereupon modified the punishment which had been imposed to that of the compulsory retirement in place of removal from service. 10. Before this court, the petitioner has primarily assailed the action of the respondents in directing the second inquiry on grounds of legal competence and jurisdiction to do so. In this regard, reliance has been placed on a pronouncement of the Apex Court reported as (2007) 11 SCC 517 titled as Kanailal Bera vs. Union of India and Others (para 6 & 7). It is undisputed before us that in the first inquiry, the petitioner had been exonerated of both the charges on which the inquiry had been conducted against him. So far as the reasons for directing the de novo inquiry are concerned, in the order dated 31st May, 1999, the disciplinary authority had been of the opinion that the complete evidence, oral and documentary, had not been placed before the inquiry officer. 11. It is not disputed before us that the second inquiry was directed on the very charges for which a full-fledged inquiry had been conducted against the petitioner and he had been absolved of the charges. The respondents are unable to place before us any rules and regulations which prescribe such a procedure of directing the second inquiry on identical charges by the concerned authority. In this context the principles laid W.P.(C)No.13351/2005 Page 7 of 19 down by the Apex Court in Kanailal Bera (supra) would certainly have a bearing and would clearly apply to this case and deserve to be considered in extenso. The same read as follows:- “6. xxxx Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry.” 12. So far as the manner in which the disciplinary authority would proceed in case it was of the view that the complete material has not been placed before the inquiry officer is concerned, reference can usefully be made to the earlier pronouncement of the Supreme Court reported at (1971) 2 SCC 102, K.R. Deb vs. CCE wherein the Supreme Court had construed the provisions of Rule 15 (1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 and held as follows:- “12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. W.P.(C)No.13351/2005 Page 8 of 19 13. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant.” 13. The disciplinary authority has therefore failed to follow a procedure permitted and prescribed by law. It was open to the disciplinary authority in the instant case to record further evidence or call the material which had been ignored by the inquiry officer to be produced after giving full opportunity to the petitioner or the inquiry officer could have been asked to record further evidence. The same was not done. There is therefore substance in the challenge by the petitioner to the direction to conduct a second inquiry on the same charges as the first. This is more so for the reason that the first inquiry had exonerated the petitioner of all charges. It has to be held that the same was unwarranted and illegal. 14. Having arrived at this conclusion, this matter should not have detained us any further. However, the petitioner has raised a second ground of challenge to the finding of guilt and the punishments, which had been imposed upon him. So far as the second inquiry report is concerned, the inquiry officer had found the petitioner guilty of only the second charge and had also exonerated the petitioner of any culpability so far as the first charge is concerned. As noted hereinabove, so far as the first charge is concerned, the disciplinary authority had disagreed with the recommendations of the inquiry officer and W.P.(C)No.13351/2005 Page 9 of 19 in the order recorded on 30th May 2000 had arrived at a conclusion that the independent witness had been won over by the petitioner and his statement was as a result changed. Thereafter, the disciplinary authority arrived at a conclusion that the petitioner was guilty of both the charges. The notice to the petitioner was issued on 31st May 2000 after arriving at such conclusion calling upon the petitioner to submit a representation. To say a least, this notice was meaningless in as much as the disciplinary authority had arrived at clear conclusions as has been recorded in the order dated 30th May, 2000 noted hereinabove. 15. It needs no elaboration that when disciplinary proceedings are envisaged against any employee, the disciplinary authority has the jurisdiction either to proceed in the matter and conduct the inquiry himself or to delegate the same to an appropriate inquiry officer. In the instant case, the disciplinary authority assigned the task of undertaking the inquiry to his subordinate. The disciplinary authority was not in agreement in entirety with the report which he received in the second inquiry as well. Faced with such disagreement, the question which arises is the manner in which the disciplinary authority shall proceed in the event of disagreement with the findings and recommendations of an enquiry officer. This issue is no more res integra and stands settled by the Supreme Court in the plethora of judgments which have been relied upon by the learned Senior Counsel for the petitioner before us. W.P.(C)No.13351/2005 Page 10 of 19 16. All doubts on this issue were authoritatively settled by the Supreme Court in the pronouncement reported at (1998) 7 SCC 84, Punjab National Bank v. Kunj Behari Misra, wherein the Court stated as follows: “18. xxxx When the inquiry is conducted by the inquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar's case (supra). 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the inquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” (Emphasis supplied) W.P.(C)No.13351/2005 Page 11 of 19 17. On the same question in AIR 1999 SC 3734, Yoginath D. Bagde vs. State of Maharashtra, it was held as follows:- “28. In view of the provisions contained in the statutory Rule extracted above, it is open to the Disciplinary Authority either to agree with the findings recorded by the Inquiring Authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also, if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the Rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established, "an opportunity of hearing" may have to be read into the Rule by which the procedure for dealing with the enquiring authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be “not guilty” by the enquiring authority, is found “guilty” without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded.” (Emphasis supplied) “31. In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges leveled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry W.P.(C)No.13351/2005 Page 12 of 19 officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. xxxx So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. xxxx 52. In the instant case, we have scrutinised the reasons of the Disciplinary Committee and have found that it had taken its final decision without giving an opportunity of hearing to the appellant at the stage at which it proposed to differ with the findings of the Enquiry Officer. We have also found that the complainant's story with regard to the place at which the demand was allegedly made by the appellant was inconsistent. We have also noticed that the trap laid by the A.C.B., Nagpur against the appellant had failed and was held by the enquiry officer to be a farce and not having been laid with the permission of the Chief Justice. We have also noticed that there was absolute non-consideration of the statements of defence witnesses, namely, Dr. Naranje and Mr. Bapat, advocate, by the Disciplinary Committee. This factor in itself was sufficient to vitiate the findings recorded by that Committee contrary to the findings of the enquiry officer.” 18. Our attention is also drawn to the pronouncement of the Supreme Court in 2007 (5) SLR, Lav Nigam vs. Chairman, W.P.(C)No.13351/2005 Page 13 of 19 MD, ITI Ltd. & Anr. wherein these principles were reiterated by the apex court. In this case, no notice was given to the delinquent before the disciplinary authority recorded its final conclusion differing with the findings of the enquiry officer. A show cause notice was given merely for the proposed punishment of removal from service. The Supreme Court held as follows: “10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed. xxxx 13. We have already quoted the extracts from the show-cause notice issued by the disciplinary authority. It is clear that no notice at all was given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was merely a show-cause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside.” 19. In (2003) 2 SCC 449, State Bank of