UNION OF INDIA Vs GYAN CHAND CHATTAR
Case number: C.A. No.-004174-004174 / 2003
Diary number: 17020 / 2002
Advocates: Vs
BHARGAVA V. DESAI
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Reportable IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4174 OF 2003
Union of India & Ors. …. Appellants
Versus
Gyan Chand Chattar …. Respondent
J U D G M E N T
Dr. B.S. Chauhan, J.
1. This appeal has been preferred against the judgment and
order of the Division Bench of Gujarat High Court at Ahmedabad
passed in Letters Patent Appeal No.25 of 1983 by which while
affirming the judgment and order of the learned Single Judge dated
27.12.1982 passed in Special Civil Application No.101 of 1982
allowed the cross objections filed by the respondent-employee and
set aside the order giving liberty to the disciplinary authority to
pass a fresh order of minor punishment on two charges.
2. The facts and circumstances giving rise to this case are that
the respondent-employee Gyan Chand Chattar was appointed in the
Western Railway as Shroff in the Department of Pay and Cash in
the scale of Rs.260-400 w.e.f. 8.2.1971 vide official letter dated
8.2.1971. He was thereafter posted as Cashier in the year 1977 in
the pay-scale of Rs.330-480. He was served a charge sheet dated
8.4.1980 containing 6 charges that he traveled in the train in First
Class on 24.11.1979 though he was not entitled to travel in that
class; refused to arrange payment of certain amount to the
employees against bills dated 12.11.1979; 16.11.1979 and
21.11.1979; while on duty on 24.11.1979 travelling in 1st Class
compartment of the Train, played cards with RPF Rakshaks; that on
24.11.1979 the train in which he was traveling was detained by the
agitators, railway staff who demanded payment of their pay
allowance, he acted extremely irresponsibly and made no attempt to
convince them about his difficulties; refused to receive “Control
Message”/”Memo” from the superior officer and wanted
commission of 1% for payment of pay allowance to the employees.
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3. During the course of enquiry both parties led evidence, oral as
well as documentary. The Enquiry Officer completed the
enquiry and submitted its report dated 22.4.1981 to the
disciplinary authority holding all six charges proved
against the said respondent-employee. The disciplinary authority
agreeing with the findings recorded by the Enquiry Officer and
considering the reply to the enquiry report submitted by the
delinquent employee, passed the order of punishment dated
2.5.1981 removing the respondent from service. His appeal against
the said order was allowed partly by the statutory appellate
authority – Financial adviser and Chief Accounts Officer, Western
Railway, Churchgate, Bombay vide order dated 10.11.1981
reducing the punishment of removal from service to reversion of the
respondent to the lower post of clerk, Grade-II in the scale of
Rs.260-400(R) until he was found fit by the competent authority for
being considered for the cashier post in the scale of Rs.330-560 (R).
4. Being aggrieved the respondent-employee challenged the order
of punishment by filing Special Civil Application No.101 of 1982 in
the High Court of Gujarat at Ahmedabad and the same was allowed
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vide judgment and order dated 27.12.1982 wherein the learned
Single Judge after appreciating the entire evidence came to the
conclusion that only charge which could be found proved against
the respondent-employee was not receiving the memo of superiors
as alleged in charge numbers 4 & 5 against him. All other charges
were found unproved. Learned Single Judge issued a direction to
the disciplinary authority to pass a fresh order imposing minor
punishment on the said proved charge nos.4 & 5 for not accepting
the “memo” sent by the superiors.
5. Being aggrieved the Union of India filed the Letters Patent
Appeal No.25 of 1983 challenging the judgment and order of the
learned Single Judge which has been dismissed vide judgment and
order dated 1.5.2002. However, the Division Bench allowed the
counter objections filed by the respondent to the extent that the
direction given by the learned Single Judge to impose minor penalty
on charge numbers 4 & 5 was also set aside. However, considering
the facts and circumstances of the case, the Division Bench
directed that respondent would be entitled to get 50% of the back-
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wages with all consequential benefits including retrial benefits.
Hence, this appeal.
6. Mr. SWA Qadri, learned counsel appearing for the appellants
submitted that there was no scope of interference by the High Court
in exercise of its limited powers of judicial review against the finding
of facts recorded by the enquiry officer, approved by the disciplinary
authority and confirmed by the Appellate Authority. It was a case
of gross indiscipline and of corruption. Six charges against the said
employee including the demand of 1% commission for making the
payment of pay allowances stood proved. Punishment order passed
by the appellate authority did not warrant any interference. More
so there could be no justification for the Division Bench allowing
the counter objections filed by the respondent employee, quashing
the direction given by the learned Single Judge to the disciplinary
authority to pass an order of minor punishment on charge nos. 4 &
5. Therefore, appeal deserves to be allowed.
7. On the contrary, Shri Bhargava V. Desai, learned counsel
appearing for the respondent-employee submitted that the High
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Court after appreciating the entire evidence reached the conclusion
that there was no occasion for the disciplinary authority to initiate
the disciplinary proceedings and there was no evidence on the basis
of which any of the charges leveled against him could be held to
have been proved. The High Court rightly quashed the order of
punishment passed by the statutory authorities. Division Bench of
the High Court set aside the direction to the disciplinary authority
to pass a fresh order of minor punishment, as a period of twenty
years had elapsed and delinquent had suffered from mental agony
and harassment Therefore, the appeal is liable to be dismissed.
8. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
9. The disciplinary authority framed the following charges
against the respondent-employee.
“1. You have traveled in First Class on 24.11.1979 by 47 DN. When you are not entitled to this case.
2. You refused to arrange payment of the following amounts to the following employees against bill bearing No.C06 No.EBS/186 dated 12.11.1979, C06 No.EBS/40 dated 16.11.1979, PMR No.2145 dated 21.11.1979, when the staff approached you for the said payment:
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a) Vana Anop. P. Man Rs.476.65
b) Mohan Jetha -do- Rs.211.05
c) Kesha Bhika -do- Rs.298.00
d) Raiji Mansukh T/S Rs.256.90
e) Bechav Mansing. -do- Rs.175.00
f) Manoo M. -do- Rs.265.75
g) Soma Salu P. Man Rs. 92.75
3. While you were on duty on 24.11.1979, in 1st Class compartment train No. 47 DN. you played cards with RPF Rakshaks on duty. This was contrary to rules 3(i) (ii) and 3(i) (iii) of Railway Service Conduct Rules, 1966 – in that you have shown absolutely lack of devotion to duty and your conduct was unbecoming of a Railway Servant.
4. On 24.11.1979 at about 11.00 hrs. the train No. 47 DN. was detained by agitators, Railway staff who demanded payment of their pay allowance covered under PMR No.2145 dated 20.11.1979. Even after knowing about this detention as a Railway men you acted extremely irresponsibly and made no attempt to convince them about your difficulties. On the other hand you refused to receive “Control Message”/Memo” from DOS leading to greater detention of the train.
5. In the back ground of detention of train brought out under charge No.4 Sr. DAO/BRC was contacted by control and he wanted you to speak to him in control. When you were told about this and were handed over control message/ memo to this effect – you refused to accept the said memo thereby sowing a great sense of irresponsibility, lack of duty and a willful disobedience of orders of your superiors.
6. It is also alleged by the staff of Chandodia station that you refused to make payment to the concerned staff on 24.11.1979 because you wanted a commission of 1% on the arrears which the staff were unwilling to pay. Your refusal to make the payment on the said day and the consequent agitations and detention of train arose from your alleged
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malafide intention of receiving commission on the arrears payment.”
10. Enquiry Officer found all the six charges proved against the
delinquent. The disciplinary authority agreed with those findings
and imposed the punishment of removal from service which was
modified by the appellate authority imposing the punishment of
reversion to lower rank.. The learned Single Judge dealt with all the
issues elaborately. The judgment runs to 140 pages.
11. In order to appreciate the facts in correct perspective, it may
be necessary to make reference to the findings recorded by the
learned Single Judge and the grounds on which the opinion had
been formed. So far as Issue No.1 is concerned, after appreciating
the evidence, the learned Single Judge came to the conclusion that
the respondent had been asked by the higher authorities to travel
by 47 DN. known as Viramgam passenger for disbursing the cash
as the regular disbursing cashier was ill. Thus, the respondent
employee had traveled in first class compartment. However, the
said charge could not have been held proved unless a finding of fact
was recorded by the Enquiry Officer or the disciplinary authority
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that he was not entitled to travel in first class compartment.
Certain circulars had been referred to and relied upon by the
respondent-employee that for a person performing such a duty,
there has to be reservation in second class compartment by the
railway department itself; otherwise he would be entitled to travel in
first class compartment. As the second component of the issue, i.e.
as to whether the respondent was entitled to travel in first class
compartment or not had not been dealt with at all, the first charge
could not be held to have been proved. The learned Single Judge
held that as per the submissions made by the respondent employee
before the department in the enquiry and in the memo of appeal
that he was entitled to travel by first class compartment to facilitate
safety of the cash and its transaction and nothing contrary having
been proved, it was not a charge in which it could be held that the
railway employee committed a misconduct warranting major
punishment of removal from service or reduction in rank in such
facts and circumstances. The learned Single Judge reached the
following conclusion:
“it must be held that so far as charge No.1 is concerned, it is not established on the record of this case in the light of the evidence led before the inquiry officer and even on the basis of the findings
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arrived at by him on that charge. … ….. …. … the findings arrived at by the inquiry officer on charge No.1 do not show that all the basic requirements and ingredients of charge No.1 have been brought home to the petitioner and on the contrary, the ultimate finding on charge No.1 as arrived at by the inquiry officer is not supported by evidence on record and is totally perverse. Consequently, it must be held that charge No.1 is not legally proved against the petitioner.”
12. So far as the Charge No. 2 is concerned, learned Single Judge
referred to the departmental circulars particularly office circular
No.23 of 1969 which provided that the disbursement of amount of
more than Rs.500/- could not be made without securing the
presence of a Gazetted Officer to witness the payment. During the
transaction, the respondent employee made his stand clear that as
no Gazetted Officer was available at Chandlodia, the disbursement
was not permissible and the learned Single Judge came to the
conclusion that mere error of judgment or lack of tact on the part of
the employee could not make him liable to face disciplinary
proceeding in such circumstances. Therefore, the charge No.2 was
not found to be proved.
13. The charge No.3 has been dealt with elaborately by the learned
Single Judge and came to the conclusion that the findings recorded
by the Enquiry Officer that respondent was playing cards with RPF
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Raksaks while making disbursement of the amount was totally
baseless as the evidence at the most could be that in the course of
journey towards his destination the respondent to while-away time
played cards with RPF Raksaks. That could not be a conduct of
unbecoming of a railway employee on duty as Rule 3(i) (ii) and (iii)
of Railway Services Conduct Rules, 1966 provided that every
railway employee shall (i) maintain absolute integrity ; (ii) maintain
devotion to duty; and (iii) do nothing which is unbecoming of a
railway or Government servant. Thus, the conclusion was that
there was no evidence to support the charge against him as the
respondent did nothing which may fell within the mischief of either
of the above clauses of Rule 3 of the Rules 1966.
14. The charge no.4 had been that the respondent-employee had
shown extreme irresponsibility and made no attempt to convince
the agitators, Railway staff who demanded payment of their pay
allowance and did not receive the control message. The learned
Single Judge came to the conclusion that so far as the first part of
the allegation is concerned he may be failing in being tactful but it
cannot be a case of misconduct and on his count, no disciplinary
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proceeding could be initiated against him. However, he was found
guilty of not receiving the “control message”.
15. Charge No.5 was also found to be proved as the employee
refused to receive the “message”/ “memo” of his superiors.
16. So far as charge no.6 i.e. asking for 1% commission for
making the payment of pay allowances is concerned, the learned
Single Judge has appreciated the evidence of all the witnesses
examined in this regard and came to the conclusion that not a
single person had deposed before the Enquiry Officer that the
respondent employee had asked any person to pay 1% commission
for making payment of their allowances. It was based on hearsay
statements. All the witnesses stated that this could be the
motive/reason for not making the payment. Such a serious charge
of corruption requires to be proved to the hilt as it brings civil and
criminal consequences upon the concerned employee. He would be
liable to be prosecuted and would also be liable to suffer severest
penalty awardable in such cases. Therefore, such a grave charge of
quasi criminal nature was required to be proved beyond any
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shadow of doubt and to the hilt. It cannot be proved on mere
probabilities. Witnesses were examined before the Enquiry Officer
that they have heard that the said respondent was asking but none
of them was able to point out who was that person who had been
asked to pay 1% commission. One of such witnesses deposed that
some unknown person had told him. Learned Single Judge came to
the conclusion that the knowledge of the witnesses in this regard
was based on “hearsay statement of some unknown persons whom
they did not know”. This was certainly not legal evidence to sustain
such a serious charge of corruption against an employee.
17. Thus, the writ petition was disposed of directing the
disciplinary authority to impose a minor penalty on the charges of
not receiving the control message/memo.
18. The Division Bench after considering the facts involved herein,
came to the conclusion that the findings of fact recorded by the
learned Single Judge did not warrant any interference being based
on evidence available on record. As a long time of about two
decades had elapsed and the respondent employee was not granted
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any benefit of the judgment and order of the learned single Judge
and it was a case of no evidence except on charge nos.4 & 5 and the
said employee had already suffered a lot, the matter should come to
an end. The court issued the following directions.
“it would be just and reasonable to direct the appellants authorities to pay 50% of the back wages and all the consequential benefits including the retiral benefits without further imposing any minor penalty as directed by the learned Single Judge.”
19. We have considered the aforesaid findings recorded by the
Courts below in the light of the evidence on record. Admittedly, all
the charges except Charge No. 2 are in respect of various incidents
occurred on the same date i.e. on 24.11.1979. Charge No. 2 related
to the incidents dated 12.11.1979, 16.11.1979 and 21.11.1979
which had been in close proximity of subsequent incidents occurred
on 24.11.1979. The Enquiry Officer while dealing with Charge No.
1 held that respondent employee did not travel in second class
compartment as admittedly there was no reservation for him in that
class. The Enquiry Officer failed to examine the issue further as to
whether in such a fact situation, the respondent was entitled to
travel in first class. Thus, on Charge No. 1, enquiry was not
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complete. Thus, no finding could be recorded holding the
respondent guilty of misconduct on this count.
20. On 2nd Charge, explanation furnished by the respondent that
it was not possible for him to disburse the pay and allowances in
the absence of a Gazetted Officer as it was more than Rs.500/-,
was worth acceptance in the light of circulars issued by the Railway
itself. Therefore, refusal to disburse the pay allowances by the
delinquent could not be termed as misconduct.
21. Charge No. 3 was in respect of playing cards with RPF
Raksaks during disbursement of pay and allowances. The
delinquent was found playing cards during the course of journey
but there had been no actual disbursement of any pay and
allowances to anyone at the relevant time. Therefore, the Enquiry
Officer has not considered the issue in correct perspective.
22. Charge No. 4 & 5 have partly been found proved by the
learned Single Judge to the extent that he refused to accept the
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‘control message’/’memo’. But for that also, major punishment
could not be imposed.
23. Charge No. 6 was basically based on hearsay statement and it
is difficult to assume as to whether enquiry could be held on such a
vague charge. The Charge No. 6 does not reveal as who was the
person who had been asked by the respondent to pay 1%
commission for payment of pay allowances. It is an admitted
position that if a charge of corruption is proved, no punishment
other that dismissal can be awarded.
24. In Municipal Committee, Bahadurgarh v. Krishnan Bihari &
Ors., AIR 1996 SC 1249, this Court held as under:
“In a case of such nature – indeed, in cases involving corruption – there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant.”
25. Similar view has been reiterated by this Court in Ruston &
Hornsby (I) Ltd. v. T.B. Kadam, AIR 1975 SC 2025; U.P. State
Road Transport Corporation v. Basudeo Chaudhary & Anr.,
(1997) 11 SCC 370; Janatha Bazar South Kanara Central
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Cooperative Wholesale Stores Ltd. & Ors. v. Secreatry, Sahakari
Noukarar Sangha & Ors. (2000) 7 SCC 517; Karnataka State
Road Transport Corporation v. B.S. Hullikatty, AIR 2001 SC 930;
Regional Manager, R.S.R.T.C. v. Ghanshyam Sharma, (2002) 10
SCC 330; Divisional Controller N.E.K.R.T.C. v. H. Amaresh, AIR
2006 SC 2730; and U.P.S.R.T.C. v. Vinod Kumar, (2008) 1 SCC
115 wherein it has been held that the punishment should always be
proportionate to gravity of the misconduct. However, in a case of
corruption, the only punishment is dismissal from service
Therefore, the charge of corruption must always be dealt with
keeping in mind that it has both civil and criminal consequences.
26. In Surath Chandra Chakravarty v. The State of West
Bengal, AIR 1971 SC 752, this Court held that it is not permissible
to hold an enquiry on a vague charge as the same does not give a
clear picture to the delinquent to make an effective defence because
he may not be aware as what is the allegation against him and what
kind of defence he can put in rebuttal thereof. This Court observed
as under :
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“The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has to be stated. This rule embodies a principle which is one of the specific contents of a reasonable or and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.” (Emphasis added)
27. In a case where the charge-sheet is accompanied with the
statement of facts and the allegation may not be specific in charge-
sheet but may be crystal clear from the statement of charges, in
such a situation as both constitute the same document, it may not
be held that as the charge was not specific, definite and clear, the
enquiry stood vitiated. (Vide State of Andhra Pradesh & Ors. vs. S.
Sree Rama Rao, AIR 1963 SC 1723). Thus, where a delinquent is
served a charge-sheet without giving specific and definite charge
and no statement of allegation is served along with the charge-
sheet, the enquiry stands vitiated as having been conducted in
violation of the principles of natural justice.
28. In Sawai Singh v. State of Rajasthan, AIR 1986 SC 995, this
Court held that even in a domestic enquiry, the charge must be
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clear, definite and specific as it would be difficult for any delinquent
to meet the vague charges. Evidence adduced should not be
perfunctory even if the delinquent does not take the defence or
make a protest against that the charges are vague, that does not
save the enquiry from being vitiated for the reason that there must
be fair-play in action, particularly, in respect of an order involving
adverse or penal consequences.
29. In view of the above, law can be summarized that an enquiry
is to be conducted against any person giving strict adherence to the
statutory provisions and principles of natural justice. The charges
should be specific, definite and giving details of the incident which
formed the basis of charges. No enquiry can be sustained on vague
charges. Enquiry has to be conducted fairly, objectively and not
subjectively. Finding should not be perverse or unreasonable, nor
the same should be based on conjunctures and surmises. There is
a distinction in proof and suspicion. Every act or omission on the
part of the delinquent cannot be a misconduct The authority
must record reasons for arriving at the finding of fact in the context
of the statute defining the misconduct.
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30. In fact, initiation of the enquiry against the respondent
appears to be the outcome of anguish of superior officers as there
had been agitation by the Railway staff demanding the payment of
pay and allowances and they detained the train illegally and there
has been too much hue and cry for several hours on the Railway
Station. The Enquiry Officer has taken into consideration the non-
existing material and failed to consider the relevant material and
finding of all facts recorded by him cannot be sustained in the eyes
of law.
31. There could be no case of substantial misdemeanour against
the respondent on either of the aforesaid charges except Charge No.
6 on which major penalty could be imposed. Charge No. 6 is
totally vague and no enquiry could be conducted against the
respondent on such a charge. It was basically a case of no evidence
on any charge except Charge Nos. 4 & 5.
32. In fact, it was a simple case where the respondent employee
failed to prove to be a tactful person or possessing a high standard
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administrative capability or firmness or a man of possessing quality
of leadership. It might be a case of his indecisiveness or lack of
presence of mind. It cannot be held that any of the aforesaid
charges except Charge No. 6, may warrant imposition of major
punishment of removal. Thus, no interference is required in the
matter.
33. The Division Bench, after considering the fact that already 20
years has lapsed and judgment of the learned Single Judge has not
be complied with, considered it better to close the chapter awarding
him 50% of the back wages and granted all consequential benefits
including the retiral benefits.
34. Today, the situation has become worst. About three decades
have elapsed; the respondent has not been paid his pay since the
date of his suspension i.e. 29.11.1980, facing the disciplinary
proceedings and litigation, he reached the age of superannuation
long back. Thus, it is in the interest of justice that his mental
agony and harassment should come to an end.
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35. Therefore, we dispose of the appeal directing the present
appellant to pay 50% of the pay and allowances without interest till
the respondent reached the age of superannuation and arrears of
retiral benefits with 9% interest to the respondent-employee within
a period of three months from today.
…………………………………….J. (Dr. Mukundakam Sharma)
…………………………………….J. (Dr. B.S. Chauhan)
New Delhi; 28th May, 2009.
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Digital Proforma
1. Case No. : Civil Appeal No. 4174 of 2003
2. Date of decision : 28.5.2009
3. Cause Title : Union of India & Ors. vs.
Gyan Chand Chattar
4. Coram : Hon’ble Dr. Justice Mukundakam Sharma Hon’ble Dr. Justice B.S. Chauhan
5. Date of C.A.V. : 21.5.2009
6. Judgment delivered : Hon’ble Dr. Justice B.S. Chauhan by
7. Nature of Judgment : Reportable whether reportable
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