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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: M. B. PATNAIK & ORS.

DATE OF JUDGMENT11/02/1981

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA

CITATION:  1981 AIR  858            1981 SCR  (2) 817  1981 SCC  (2) 159        1981 SCALE  (1)297

ACT:      Disciplinary Proceedings  in a  service matter-Order of reversion quashed  by the  High Court on a technical ground- Propriety of  the second  enquiry on  merits-Whether  it  is necessary that  the enquiry  which had  been held in part by more than  one enquiry  officers should  be continued by the same  enquiry   officers  until   the  end-Original  enquiry officers ceased  to hold  their respective offices by reason of  their  promotion  to  higher  posts-Whether  the  second enquiry done  by them  while holding  the higher promotional posts are bad and without authority of law.

HEADNOTE:      Allowing the appeals by special leave, the Court, ^      HELD: (1)  When  an  earlier  order  of  reversion  was quashed on  a technical  ground, a  second enquiry on merits could be  held and  it is open to the disciplinary authority to continue  the proceedings  in accordance  with  law.  The order of  reinstatement pursuant thereto is not a bar to the second enquiry.                                                    [820 F-G]      Superintendent  (Tech.   I),  Central   Excise   I.D.D. Jabalpur and  Ors. v. Pratap Rai, [1978] 3 S.C.R. 729; Anand Narain Shukla  v. State  of Madhya Pradesh, A.I.R. 1979 S.C. 1923, followed.      (2) It  is not  at all necessary that the enquiry which had been  held in  part by  more than  one enquiry  officers should be  continued by  the same enquiry officers until the end. The  post which  the members  of the  Inquiry Committee held originally  might have  been ceased to exist at a later stage, or  one  or  more  of  the  members  of  the  Inquiry Committee may  no longer  be available  either on account of retirement or  due to  any other  cause. For that reason, it could not be held that the enquiry could not be continued at all. Therefore,  there could  be no  valid objection  to the supplementary  enquiry  being  continued  by  the  very  two individuals, in  the instant case even after they had ceased to hold their respective offices which they held at the time of the original enquiry.                                           [823 G-H, 824 A-B]      General Manager,  Eastern Railway  and another v. Jwala

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Prasad Singh, [1970] 1 SCC 103, applied.      [Having regard  to the  long lapse of time, the offence having been alleged to have been committed in or about 1955, the Court  held that the fresh enquiry need not be held, and accepted the  equitable offer  of  the  Union  Railways  and directed payment  of Rs.  12,000/- to each of the respondent employees.]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal Nos. 2119- 2121 of 1979.      Appeals by  special leave  from the  Judgment and Order dated 10-1-1979  of the  Orissa High  Court in  O.J.C.  Nos. 1261/76, 833/77 and 834/77. 818                             AND                Civil Appeal No. 389 of 1981.      Appeal by  Special Leave  from the  Judgment and  Order dated 10-1-1979  of the  Orissa High  Court  in  O.J.C.  No. 832/77.      M. M. Abdul Khadar, P. A. Francis, Gurumurthy and R. N. Poddar for the Appellants.      Amlan Ghosh for the Respondents.      The Judgment of the Court was delivered by      VARADARAJAN, J.-These  appeals by  special  leave  have been filed  against two judgments of a Division Bench of the Orissa High Court (C. A. No. 389 of 1981) arising out of the judgment in  Original Jurisdiction  Case No. 832 of 1977 and C. As.  Nos. 2119-2121  of  1979  arising  out  of  Original Jurisdiction Cases Nos. 1261 of 1976 and 833 and 834 of 1977 respectively. P.  N. L.  Das, the respondent in C.A. No. 389 of 1981  was appointed  as a  Booking  Clerk  in  the  South Eastern Railway  in 1955 and had been duly confirmed at that post. M.  B. Patnaik,  the respondent  in C.  A. No. 2119 of 1979, was  working as a confirmed Commercial Clerk at Khurda Road in  the South Eastern Railway, having been appointed in January-February  1964.   D.  Sahu  and  S.  C.  Mitra,  the respondents in C.As. Nos. 2120 and 2121 of 1979 respectively were working  as  confirmed  Booking  Clerks  in  the  South Eastern Railway  at about  the  same  time.  A  departmental enquiry was  initiated against  these four  respondents  and three others, namely, Ch. N. Murty, B. S. N. Rao and B. Papa Rao in  1964 on  the basis  of a  report of  the  Travelling Inspector of  Accounts, and  two charges were framed against them. The  second  charge  was  not  pressed,  and  we  are, therefore, concerned  only with  the disciplinary proceeding relating to  the first  charge, which  led to the removal of all the  seven persons from service. The first charge framed against these six persons was this :-           "On 20th May, 1959, 47 third-class express tickets      had been  issued from Khurda Road to Howrah for a total      fare of  Rs. 497.73  and these  were accounted short on      the plea of over-issue of these tickets on 12-5-59. The      record at  Howrah Station  indicated that  the  tickets      were actually  sold on  20-5-59 and not on 12-5-59. The      result was  the fare  amounting to  Rs. 497.73 had been      misappropriated on  20th December,  1959  by  tampering      with the  figure relating  to 12-5-59 in the cash book.      The record foils of foreign express fare tickets issued      on 12-5-59  were fraudulently  cancelled and the sum of      Rs. 493.53  already accounted  in the cash book against      those 819

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    two foreign  express tickets was erased, and to balance      the sum  a fictitious  sale  of  47  tickets  had  been      entered in the cash book."      Several points  had been  raised in  the Writ  Petition (Original Jurisdiction  Case) No. 832 of 1977. But when that case was  taken up the learned counsel for the petitioner P. N. L.  Das confined his arguments only to two points, namely that though  the  Evidence  Act  does  not  strictly  apply, suspicion and  conjecture  cannot  form  the  basis  of  any conclusion in  any departmental  enquiry and  (2) reasonable opportunity of  defending himself  had not been given to the petitioner P.  N. L.  Das. The  disciplinary  authority  and punishing   authority,    namely,   the   General   Manager, constituted an Enquiry Committee consisting of the Assistant Commercial Superintendent,  Khurda Road  and  the  Assistant Accounts Officer,  Garden Reach,  namely, Shri  K. Julhe and Shri B.  B. Chatterjee.  In the midst of the enquiry Shri K. Julhe was transferred and thereafter his successor in office Shri B.  K. Patnaik and Shri B. B. Chatterjee, the Assistant Accounts Officers,  Garden Reach  continued the enquiry. The Enquiry Officers  found  the  appellants  in  these  appeals guilty of  the charge.  The punishing authority, the General Manager, on  the representation of the respondents in C. As. Nos. 2119-2121  of 1979, directed a supplementary enquiry to be held.  Notice of  the supplementary  enquiry was given in April 1967.  At that  time Shri B. K. Patnaik, who succeeded Shri K.  Julhe as  the Assistant  Commercial Superintendent, Khurda  Road  as  stated  above,  had  been  promoted  as  a Divisional  Commercial  Superintendent  and  was  posted  at Kharagpur while  Shri B.  B. Chatterjee,  who was  Assistant Accounts Officer,  Garden Reach,  had been  promoted as  the Divisional Accounts  Officer and  had been  posted at  Adra. These very  persons issued  the notice  for  continuing  the enquiry after the General Manager directed the supplementary enquiry. It  is at  this  stage  that  P.  N.  L.  Das,  the appellant in  C. A.  No. 389  of 1981 challenged in O. J. C. No. 579  of 1971  the jurisdiction  of the Enquiry Board. In that Writ  Petition, Misra and Panda, JJ. of the Orissa High Court while  negativing several  other contentions raised on behalf of  P. N.  L. Das,  directed that  the  supplementary enquiry pending  against P.  N. L. Das shall be continued by the  officers  holding  the  post  of  Assistant  Commercial Superintendent,  Khurda  Road  and  the  Assistant  Accounts Officer, Garden  Reach and not by Shri B. K. Patnaik who had been promoted  as the  Divisional Commercial  Superintendent and was  posted at  Kharagpur and  ceased  to  be  Assistant Commercial Superintendent,  Khurda Road  and by  Shri B.  B. Chatterjee who  had been promoted as the Divisional Accounts Officer and  posted at  Adra and  ceased to be the Assistant Accounts Officer, Garden Reach. 820      In W.  Ps. (O.J.C.)  Nos. 1261/76  and 833  and  834/77 Misra and Mohanty, JJ of the Orissa High Court found that by the time  the decision  in the said O. J. C. No. 579 of 1971 was rendered  by Misra and Panda, JJ on 20-9-72, the enquiry against the  respondents in C.As. Nos. 2119-2121 of 1979 had been disposed  of and  the disciplinary  authority had taken into account  the material  collected in  the  supplementary enquiry and  found the  respondents in  these three  appeals guilty, in  consequence  of  which  these  respondents  were removed  from  service  by  the  punishing  authority.  Writ Petitions (O.J.C.)  Nos. 1271/76  and 833  and  834/77  were filed for  challenging the  removal of the respondents in C. As. Nos.  2119-2121 of 1979 from service. Misra and Mohanty, JJ held  in these  three Writ  Petitions in  their  judgment

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dated 10-1-79  that in  view of  what has been stated in the decision in Writ Petition (O.J.C.) No. 579 of 1971 (P. N. L. Das v.  Union of India & Ors. the supplementary enquiry made by Shri  B. K.  Patnaik who  had ceased  to be the Assistant Commercial  Superintendent,  Khurda  Road  and  Shri  B.  B. Chatterjee who  had ceased  to  be  the  Assistant  Accounts Officer, Garden  Reach, must be held to be without authority of law,  and having  regard to the fact that the case of the railway administration was not that the material gathered in the supplementary  enquiry had  not been used by the enquiry officers and  the disciplinary  authority,  the  finding  of guilt and  the imposition of punishment on the basis of that finding could  not be  sustained. Accordingly,  the  learned judges allowed  these Writ  Petitions (O.J.C.)  Nos. 1261/76 and 833  and 834/77  and  quashed  the  order  made  in  the disciplinary proceedings and directed that each of the three petitioners before  them, namely,  the respondents in C. As. Nos. 2119-2121  of 1979  shall be deemed to be continuing in service  and   would  be  entitled  to  appropriate  service benefits on that footing.      Mr. Pal,  who appeared  for the  Railway Administration before Misra  and Mohanty,  JJ in these three Writ Petitions requested the  learned judges to indicate that it is open to the disciplinary  authority to  continue the  proceeding  in accordance with  law. We are of the opinion that the learned course was  perfectly justified  in doing so. This Court has held in  Anand Narain Shukla v. State of Madhya Pradesh that when the  earlier  order  of  reversion  was  quashed  on  a technical ground,  a second  enquiry on merits could be held and that the order of reinstatement pursuant to the quashing of the earlier order on a technical ground is not a bar, and this Court  negatived the  contention that after the earlier order of  reversion was  quashed by  the High  Court and the govern- 821 ment servant  was reinstated,  no second enquiry on the very same charge  could be  held and no second order of reversion could be  legally and  validly made. A similar view has been taken by  this Court  in Superintendent  (Tech. 1),  Central Excise I.D.D.  Jabalpur and  Ors. v.  Partap Rai in which it has been  held that  where an order passed in appeal vacates the order  of the First Tribunal on purely technical grounds and expressly  states  that  it  was  being  passed  without prejudice, which means that it was not an order on merits of the case,  such an  order does  not debar fresh adjudicatory proceedings which  may be  justified under  the law and that when an  order is  struck down as invalid being in violation of the  principles of  natural justice,  there is  no  final decision of  the case  and all  that is  done  is  that  the inherent defect  is removed  out  the  proceedings  are  not terminated. But  Misra and  Mohanty, JJ declined to consider favourably the  request  of  the  learned  counsel  for  the Railway Administration  before them namely, that they should indicate that  it is  open to  the disciplinary authority to continue the proceeding in accordance with law on the ground that 15  years had elapsed since the charges were framed and the petitioners before the namely, the respondents in C. As. Nos. 2119-2121  of 1979,  had been  suffering on  account of being subjected  to disciplinary proceedings for such a long time and  that it would be a mockery of justice if after the lapse of  so many years the enquiry should commence again on the same charges.      When  the   supplementary  enquiry,   mentioned  above, commenced and P.N.L. Das, the respondent in C. A. No. 389 of 1981 was  examined, he  insisted upon  production of certain

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documents and  witnesses but  they were  not made  available here on  the plea  that the documents were not available and the witnesses  who appeared  to be  ticket collectors, could not be  co-related.  However,  as  already  stated,  he  was adjudged guilty  of the  charge on  the footing  that he had misappropriated the  sale proceeds  of express fare tickets. Misra and  Mohanty, JJ  observed in  their judgment  in W.P. (O.J.C.) No. 832/77 that there is no positive material worth the name  to support  the charge  and lead to the conclusion that tickets  had actually  been utilized, that the relevant documents appeared  not to  have been reserved on account of negligence on the part of the administration and that on the ground that  the evidence  is not available prejudice cannot be allowed  to be  caused to  the petitioner  before them by relying upon  suspicion  and  conjecture  as  evidence.  The learned judges  further observed  that as things stood it is indeed difficult for them to hold that there is any evidence on record  to support  the charge. In that view they allowed the Writ Petition and quashed the punishment imposed on 822 P.N.L. Das  and held  that he continues to be in service and is entitled  to all  the service benefits admissible to him. These Civil Appeals by special leave have been filed against these judgments of the Orissa High Court.      In the  course of  hearing  of  these  appeals  it  was represented to  us that  C.N. Murthy, B.S.N. Rao and B. Papa Rao have  since retired and that all payments have been made to them  in full.  It was  also represented that even P.N.L. Das had been reinstated and all arrears etc. due to him have been paid.  Mr. M.M. Abdul Khader, learned counsel appearing for the  appellants in  all these  cases, submitted that the view expressed  in P.N.L.  Das v.  Union  of  India  &  Ors. (supra) that  the supplementary  enquiry directed to be held by  the  disciplinary  authority  should  be  held  only  by officers  holding   the   post   of   Assistant   Commercial Superintendent, Khurda  Road and Assistant Accounts Officer, Garden Reach  and not  by the  officers who  had held  those posts at the time of the original enquiry and ceased to hold posts  subsequently,   is  incorrect.  The  learned  counsel submitted that  this position would appear from the decision of this  Court  in  General  Manager,  Eastern  Railway  and another v. Jwala Prasad Singh referred to in the Judgment of the learned  judges of  the Orissa  High Court  itself.  The learned judges  of the  Orissa High Court have extracted the following passage from the judgment of this Court in General Manager, Eastern  Railway and  another v. Jwala Prasad Singh (supra) in their judgment:-           "In our opinion the above procedure does not leave      any scope  for the  guidance of  a member of an Inquiry      Committee consisting  of more  than one  person by  the      impression formed  by him  about  the  truthfulness  or      otherwise of  a particular  witness examined during the      inquiry. From  the stage  antecedent to  the framing of      the charges  everything is  recorded  in  writing.  The      allegations on  which the  charges are  based are  made      known to  the railway  servant and he is called upon to      file his  written statement  after looking into all the      relevant  records.   The  oral   evidence  of  all  the      witnesses tendered  during the  enquiry is  recorded in      writing. Whereas  here the oral evidence is recorded in      the presence  of three persons constituting the Inquiry      Committee, any impression created by the demeanour of a      particular witness on the mind of any one member cannot      affect the  conclusion afterwards arrived at jointly by      them. It  can not  be  suggested  that  all  the  three

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    persons would record 823      their impressions  separately about  the demeanour of a      witness and  it is  quite possible  that  a  particular      witness may appear to one member of the committee to be      untruthful without  his  being  considered  so  by  the      others. The  members of  the Inquiry  Committee  cannot      record their  findings separately, but it is their duty      to record findings on each of the charges together with      the reasons  therefor. It  is to be noted that the duty      of the  Inquiry Committee  ends with  the making of the      report. The  Disciplinary Authority has to consider the      record of  the inquiry and arrive at its own conclusion      on each  charge. Whatever may be the impression created      by a  particular witness  on the  mind of one member of      the  Committee,  the  same  is  never  translated  into      writing and  the Disciplinary  Committee merely goes by      the written  record after  giving a personal hearing to      the railway  servant if  he asks  for it.  Even if  the      Inquiry Committee  makes a report absolving the railway      servant of  the charges  against him,  the Disciplinary      Authority may, on considering the entire record come to      a different  conclusion and  impose a  penalty. This is      amply borne out by a judgment of this Court in Union of      India v.  H.C. Goel (A.I.R. 1964 S.C. 364) where it was      said that  neither the findings nor the recommendations      of the Inquiry Committee are binding on the Government.           In such  a  state  of  affairs  a  change  in  the      personnel  of   the   Inquiry   Committee   after   the      proceedings are begun and some evidence recorded cannot      make any difference to the case of the railway servant.      The record  will speak  for itself and it is the record      consisting of  the documents  and the  oral evidence as      recorded which must form the basis of the report of the      Inquiry Committee.  The Committee  is not the punishing      authority and  the personal  impression of  a member of      the Committee  cannot possibly  affect the  decision of      the Disciplinary  Authority. In a state of affairs like      this, we  cannot see  any reason  for holding  that any      known principle of natural justice is violated when one      member of the Committee is substituted by another."      It would  appear from  the above extract that it is not at all  necessary that  the enquiry  which had  been held in part by  more than  one enquiry officers should be continued by the  same enquiry  officers until the end. The post which the members  of the  Inquiry Committee held originally might have been ceased to exist at a later 824 stage, or  one  or  more  of  the  members  of  the  Inquiry Committee may  no longer  be available  either on account of retirement or  due to  any other  cause. For that reason, it could not be held that the enquiry could not be continued at all. Therefore,  there could  be no  valid objection  to the supplementary  enquiry  being  continued  by  the  very  two individuals, even  after  they  had  ceased  to  hold  their respective offices  which they  held  at  the  time  of  the original enquiry.  The plea  of malafides raised against the two Inquiry Officers on behalf of P.N.L. Das, the respondent in C.A. No. 389 of 1981 before Misra and Panda JJ, when Writ Petition (O.J.C.)  No. 579/71  was heard was rejected by the learned Judges  who have  observed in  their  judgment  that after hearing  the counsel  they were satisfied that no good foundation has  been laid for the plea of malafides, bias or prejudice by  the enquiry  officers and it was also conceded by the  learned counsel  who appeared for P.N.L. Das in that

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Writ Petition  that on  the material  on records  it may  be difficult for  him to persuade them to hold in favour of the petitioner before  them in regard to the plea of mala fides. Therefore, we  are clearly of the opinion there could be. no bar to  B.K. Patnaik and B.B. Chatterjee who were originally the Assistant  Commercial Superintendent,  Khurda  Road  and Assistant  Accounts   Officer,  Garden  Reach  respectively, holding the  supplementary enquiry even after they ceased to hold their  respective offices  by reason of their promotion as  Divisional   Commercial  Superintendent,  Kharagpur  and Divisional  Accounts   Officer,  Adra  sometime  before  the commencement of the supplementary enquiry. However, we agree with Misra  and Mohanty  JJ of the Orissa High Court that it would be inequitable for a fresh enquiry being made into the charge framed  against the  respondents in S. As. Nos. 2119- 2121/79 or  to go into the merits of the case against P.N.L. Das the respondent in C.A. No. 389 of 1981, having regard to the long  lapse of  time, the offences having been stated to have been  committed in  about 1955.  Mr. M.M. Abdul Khader, learned  counsel   for  the   appellants  in  these  appeals represented before  us that  no recovery  will be  made from S/Shri Ch.  R. Murty,  B.S.N. Rao  and B.  Papa Rao who have retired from  service  and  also  from  P.N.L.  Das  the  in respondent in  C.A. No.  389 of 1981 who has been reinstated subsequent to  the decision of the Orissa High Court in Writ Petition (O.J.C.)  No. 832 of 1977. We, accordingly, dismiss these  appeals   and  direct   the  parties  to  bear  their respective costs. Advocates fee Rs. 1,000/-, one set.      It was  also represented  before us  by Mr. M. M. Abdul Khader that  Rs. 22,400/-,  Rs. 19,250/-  and  Rs.  19,250/- would be  payable to  the respondents  in  C.A.  Nos.  2119- 2121/79 respectively if these 825 appeals  had   been  disposed   of   against   the   Railway Administration on  merits and that the Administration would, however, pay  Rs. 12,000/-  to each of these person, namely, M.B. Patnaik,  D. Sahu  and S.C. Misra. We accept this offer as being beneficial to these three respondents in C.As. Nos. 2119-2121 of  1979 who  will be entitled to recover from the Railway Administration  a sum  of Rs.  12,000/- each  up  to 22-1-81 on account of arrears of salary etc. payable to them from the date of their suspension. V.D.K.    Appeals allowed. 826