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Shreekant Mishra v. Union Of India & Others - WRIT - A No. 14917 of 1999  RD-AH 10973 (2 July 2007)
Court no. 7
Civil Misc. Writ Petition No. 14917 of 1999
Sri Kant Mishra .... Petitioner
Union of India and others ... Respondents
Hon'ble Rakesh Tiwari, J
Heard counsel for the parties and perused the record.
By means of the present writ petition the petitioner has challenged the order dated 3.1.1997 passed by Senior Security Commissioner, Railway Protection Force, Allahabad whereby he was dismissed from service, the order dated 9.2.1998 passed by the Chief Security Commissioner, Railway Protection Force, Northern Railway, New Delhi and the order dated 12.10.1988 passed by the Director General,Railway Protection Force rejecting the revision filed by him.
The case of the petitioner is that he was employed as constable in Railway Protection Force at GMC, Kanpur. He was served with a chargesheet on 24.11.1995 levelling charges of misbehave with his Incharge and using unparliamentary language. Enquiry was conducted against the petitioner in which he was found guilty and was dismissed from service vide order dated 4.1.96.
Aggrieved by the aforesaid order dated 4.1.96 the petitioner filed an appeal before respondent no.3, the Deputy Chief Security Commissioner, Railway Protection Force which was allowed vide order dated 15.10.96 remanding the matter back to the authority concerned for de novo enquiry under Rule 153 of the Railway Protection Force Rules.
The petitioner was placed under suspension w.e.f. 15.10.96 and de novo enquiry was conducted in which also the petitioner was found guilty and was dismissed from service vide order dated 3.1.97.
Feeling aggrieved by the order dated 3.1.97 the petitioner again filed an appeal under Rule 212 of the Railway Protection Force Rules, 1987 before respondent no.2, the Chief Security Commissioner, Railway Protection Force, Northern Railway Baroda House, New Delhi. When the appeal of the petitioner was not decided for a long time, he filed Civil Misc. Writ Petition No. 41537 of 1997 before this Court. The writ petition was disposed of vide order dated 11.12.97 directing the Chief Secuirty Commissioner, Railway Protction Force, Baroda House, New Delhi to decide the appeal of the petitioner within a period of two months from the date of producton of a certified copy of the order. In compliance of the order of this Court, respondent no.2 decided the appeal of the petitioner vide order dated 9.2.98 rejecting the appeal of the petitioner. Then petitioner filed a revision against the order dated 9.2.98 as well as against the removal order dated 3.1.97 before the Director General, Railway Protection Force, Railway Board, Rail Bhavan, New Delhi which was also rejected vide order dated 12.10.98, hence this writ petition.
The counsel for the petitioner submits that by the appellate order dated 4.1.96 the matter was remanded back for conducting de novo enquiry but no de novo enquiry was conducted and instead the enquiry was concluded and the orders were passed against the petitioners on the basis of oral evidence recorded during the course of first enquiry which stood set aside by order dated 4.1.96; that the order dated 9.2.98 rejecting the appeal of the petitioner justifies the non-recording of fresh statements of the prosecution witnesses for de novo enquiry under Rule 153.18 of the Railway Protection Force Rules, 1987; that perusal of Rule 153.18 of the 1987 Rules would demonstrate that the said Rule has no applicability to the facts of the present case and it applies to a case where there is a change of the Enquiry Officer on account of transfer/retirement etc.
He further submits that the petitioner was not afforded sufficient opportunity for engaging defence counsel and none of the members of the force at the place of posting of the petitioner was agreeable to function as his defence counsel, hence he prayed for additional time for enganging a defence counsel from amongst the member of the Railway Protection Force posted at Allahabad or elsewhere; that the allegations levelled against the petitioner that he was not in sense and was in durken state and had misbehaved, threatended and abused the Assistant Sub Inspector Mohanji Dubey as also one N.K.Ram Singh are false and incorrect; that neither any FIR in this regard was lodged against the petitioner nor he subjected to any medical examination for ascertaining his physical/mental condition.
He also submits that the enquiry report is no enquiry report in the eye of law as an enquiry report submitted in quashi judicial proceedings is required to contain reasons in support of the findings recorded by the Enquiry Officer and the findings recorded in the enquiry are wholly perverse and do not even consider the version of the petitioner nor does it record to what has been stated by every witnesses whose testimony was recorded in the earlier proceedings for holding the petitioner to be guilty of the charged allegation.
He further submits that the statements of the prosecution witnesses were not recorded afresh and it is settled law that in de novo enquiry the statements recorded in the old and previous enquiry can not be taken into account. In the present case the Enquiry Officer violated the mandatory provisions of Rule 153 of R.P.F. Rules, 1987 by not recording the statement of prosecution witnesses and relied upon the statement recorded duirng old enquiry.
The counsel for the respondents submits that on 24.10.1995 the petitioner abused Sri Mohanji Dubey A.S.I. Incharge in filthy language and snatched the telephone from him when Sri Dubey went to give information to the Inspector G.M.C. ; that the charges levelled against the petitioner were found proved and were serious in nature, hence he was dismissed from service.
He further submits that de novo enquiry was conducted against the petitioner and he was given all the reasonable opportunity; that all the prosecution witnesses were summoned and were examined; that there is no illgality or infirmity in the impugned order, hence no interference is required by this Court under Article 226 of the Constitution. He has placed reliance upon a judgment of the Hon'ble Supreme Court in Hombe Gowda Educational Trust and another Vs. State of Karnataka and others, 2006 SCC ( L& S) 133. In that case, an employee-lecturer had assaulted his superior officer i.e. Principal of the Institution. In the circumstances the Hon'ble Apex Court has held that assaulting a senior at workplace amounts to an act of gross indiscipline, even on grave provocation a teacher is not expected to abuse the head of the institution in filthy language and assault him with a chappal. Punishment of dismissal therefore, cannot be said to be wholly disproportionate so as to shock one's conscience when the charges were clearly established.
This ruling is not applicable to the facts of the present case as the facts of that case are clearly distiguishable from the facts of the present case as the petitioner was also charged that he was in a drunken state but he was not medically examined nor there is any FIR lodged against the petitioner in this regard. This also belies the case of the respondents that the petitioner was in a durnken state.
In the instant case, the petitioner was charged that he misbehaved with his Incharge and used unparlimamentary language but no FIR was lodged against him and no opportunity of hearing was afforded to the petitioner. In the de novo enquiry the Enquiry Officer submitted his report without recording the statement of the prosecution witnesses afresh and has relied upon statement of the witnesses recorded in previosus enquiry which is illegal and arbitrary.
It is settled law that in de novo enquiry the statements of the witnesses recorded in the old and previous enquiry cannot be taken into account. Thus the Enquiry Officer has violated the mandatory provisions of Rule 153 of the R.P.F. Rules, 1987 by not recording the statements of the prosecution witnesses and has relied upon the statements recorded during the old enquiry.
For the reasons stated above, the writ petition is allowed and the impugned orders are quahsed.
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