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Case Number

Civil Revn. Case No. 3136 of 1959

Attorney(S)

B. Bhattacharjee
Bhabesh Narayan Bose
for Opposite Parties Nos. 1 and 2

Judges

D.N Sinha, J.

Acts

costs.HD/K.S.B6. Rule

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The petitioner was employed as a clerk in the General Branch of the Eastern Railway at Lillooah in the office of the Deputy Chief Mechanical Engineer. A vigilance report and a preliminary "fact-finding enquiry" preceded formal disciplinary action. The allegation was that blank pass application forms had been secured, filled with bogus names, stamped with a false rubber stamp and a forged signature of a clerk in the D.C.O.S.'s office, and then passed to the petitioner in the Pass section; on that basis, numerous foreign-line passes were allegedly fraudulently issued and used.

On 26 June 1958 the petitioner and others were served with a charge-sheet alleging: (1) fraudulent issue of 367 foreign-line passes for 1,085½ adults during 1956–1957 involving specified monetary value, and (2) fraudulent disposal of those passes by entering them in a separate peon-book and delivering them to unauthorised persons for illicit gain. The petitioner gave explanations and objected that the charge-sheet was vague and lacked particulars, and requested inspection of relevant records and documents.

The departmental enquiry (noted as being held from 16 August 1958 to 10 September 1958) followed; some of the petitioner's witnesses were examined. The enquiring committee found the petitioner responsible for fraudulent issue of 365 foreign-line passes during 1956–1957 (the opinion records the committee's finding and accompanying "Remarks and reasons for the finding"). A second show-cause notice was issued on 15 January 1959, and on 13 February 1959 the Deputy Chief Mechanical Engineer dismissed the petitioner from service. The petitioner appealed to the Chief Mechanical Engineer, whose order dated 6 July 1959 dismissed the appeal on the ground that there were no extenuating circumstances to justify clemency. The petitioner then instituted the present application (writ petition).

Legal Issues Presented

Whether the charge-sheet, as framed, was sufficiently specific and free from vagueness and ambiguities to enable the petitioner to make a proper defence, particularly given allegations of fraud.
Whether documents and witnesses relied on at a prior "fact-finding enquiry" could be relied upon at the formal departmental enquiry without producing the witnesses and making documents available for inspection.
Whether the departmental enquiry was conducted in accordance with the established rules and principles that govern such proceedings (including the right to particulars and opportunity to defend).
Whether the appellate authority (Chief Mechanical Engineer) approached the appeal correctly—i.e., whether an appeal should be confined to consideration of extenuating circumstances or should involve an open-minded re-examination of the whole matter.

Arguments of the Parties

Petitioner's Arguments

The charge-sheet was couched in vague generalisations and failed to provide particulars required by disciplinary rules (no serial numbers, dates, names or addresses of persons in whose favour passes were issued, no identification of foreign lines covered, no specification of particulars of the faked applications, nor identification of "unauthorised persons").
The petitioner requested inspection of relevant records and cognate documents (including documents from 1955) which he regarded as necessary to show practice and his role; those documents were refused or said to have been destroyed without production of any order of destruction.
During enquiry the prosecution did not produce witnesses and instead shifted the burden to the petitioner; reliance was being placed on evidence given at the fact-finding stage so the petitioner did not get the opportunity to confront and cross-examine those witnesses at the formal enquiry.
Because of the vagueness and absence of particulars, the petitioner could not specifically refute the charges and could not mount a proper defence.

Respondents' Defense (as set out in the affidavit-in-opposition)

The respondents stated that prior to the formal charge-sheet there had been a preliminary or "fact-finding enquiry" in which various documents were shown to the petitioner and various witnesses were examined; on that basis it was asserted that further particulars, witnesses or documents were unnecessary for the formal enquiry.
With respect to certain older documents (1955), the respondents asserted those were destroyed in accordance with rules and therefore were irrelevant or unavailable for inspection.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analyzed the distinction between a preliminary "fact-finding enquiry" and the formal departmental enquiry that follows service of a charge-sheet:

The court emphasized that a fact-finding enquiry is preliminary, not formal, and may involve ex parte examinations or reports intended to enable authorities to decide whether to frame charges. Such preliminary proceedings do not observe formal rules of enquiry.
By contrast, the departmental enquiry begins from the charge-sheet; therefore the charge-sheet itself must be specific and free from ambiguity and must set out all necessary particulars so the accused can defend himself. It is not sufficient to rely on the fact-finding stage or to assume the delinquent knew particulars from earlier informal proceedings.
The court rejected the respondents' contention that because documents and witnesses were used in the fact-finding enquiry the prosecution need not call them again at the formal enquiry. The court held that respondents were not entitled to rely on evidence given at the fact-finding stage without producing those witnesses at the formal enquiry, because that practice would deny the petitioner the opportunity to cross-examine and would improperly shift the burden onto the petitioner.
Regarding the 1955 documents said to be destroyed, the court noted that those documents were not irrelevant: they could demonstrate the practice in keeping books and registers and the part played by the petitioner, and thus were material to the defence. The petitioner had asked to inspect the order of destruction, which was not produced; the court noted this omission.
The court stressed the elementary principle that when fraud is alleged, complete particulars must be provided; generic labels such as "fraudulent issue" and references to "unauthorised persons" without identification are insufficient.
On appeal, the court found fault with the Chief Mechanical Engineer's apparent approach of seeking only extenuating circumstances to justify clemency. The court indicated that an appellate authority must re-examine the whole matter with an open mind and not proceed on an assumption of guilt.
Drawing these strands together, the court concluded that on the admitted manner of conducting the enquiry and the deficiencies identified (vague charges, withheld or destroyed documents without proof, reliance on fact-finding evidence without producing witnesses), the departmental proceedings were conducted contrary to law and were defective.

Holding and Implications

Holding: The court made the Rule absolute and quashed and/or set aside the dismissal order of the Deputy Chief Mechanical Engineer dated 13th February 1959 and the appellate order of the Chief Mechanical Engineer dated 6th July 1959 (annexure "JI" to the petition). The court also issued a writ in the nature of mandamus directing the respondents not to give effect to those orders.

Implications and direct consequences:

The dismissal and the appellate confirmation are set aside and are not to be given effect.
The respondents are not prevented from issuing a fresh charge-sheet and/or from giving proper particulars of the charge-sheet dated 26th June 1958 and thereafter conducting departmental proceedings, if they choose to renew the matter, but any such renewed proceedings must be conducted in accordance with law (i.e., with specific charges, production of relevant documents and witnesses at the formal enquiry, and proper opportunity for the accused to defend and to cross-examine).
There will be no order as to costs.
The opinion does not purport to create any new legal precedent beyond applying established principles regarding the necessity for specificity of charges, the distinction between fact-finding and formal enquiry, the right to particulars when fraud is alleged, and the appellate authority's duty to re-examine the matter with an open mind.

Final note contained in the opinion: "Rule made absolute." (The court's order concluded by making the Rule absolute and setting aside the impugned orders, without costs.)

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Amulya Ratan Mukherjee v. Deputy Chief Mechanical Engineer, Eastern Rly. And Others Opposite Parties.

1. The facts in this case are shortly as follows: On the 26th June, 1959 the petitioner was employed as a clerk in the General Branch of the Eastern Railway at Lillooah, in the office of the Deputy Chief Mechanical Engineer, who was his appointing authority. It appears that shortly before that date, a report was received from the vigilance officer and there was a “fact finding enquiry”. The allegation was shortly as follows: Some persons had secured blank pass application forms for the issue of Railway Passes. These blank pass applications were filled up with a bogus name and a false rubber stamp was put thereon, together with a forged signature of a clerk in the D.C.O.S's office, and they were passed on to the petitioner, who was a clerk in the Pass section. On the strength of this, passes were issued, which were fraudulently utilised. It appears that there was a very exhaustive enquiry at which witnesses were examined. On 26-6-58 the Personal Assistant to the Deputy Chief Mechanical Engineer issued a charge-sheet upon the petitioner and several other persons. The charges were as follows:

“1. For fraudulent issue of 367 Nos. of foreign line passes (two II class and three hundred and sixty-five III class) for 1,085½ adults during the years 1956 and 1957 on faked pass applications alleged to have been forwarded from office of the District Controller of Stores Eastern Railway, Lillooah, involving a cost of Rs. 17,415.18 nP. thereof which were neither received nor date stamped by the Receiving Clerk of Pass Section.

2. For fraudulent disposal of all the above passes by entering them in a separate peon-book instead of sending them in the particular peon-book in which all passes issued on genuine pass applications are sent to office of the District Controller of Stores, Lillooah, and delivering to unauthorised persons against some fictitious acknowledgment other than those employed in the Pass Section of D.C.O.S's office with view for illicit gain.”

3. The petitioner gave his explanation and stated that the charge-sheet was couched in vague generalisations although the disciplinary action rules clearly prescribe that the charge should be free from ambiguities and should be clear. The petitioner, therefore, asked that the charges should be made clear and all the relevant records and cognate documents made available for inspection. On the 29th August, 1958 the defence counsel for the petitioner complained before the enquiring committee which had been constituted to make the enquiry, that although the enquiry had started. For a week, the prosecution had not produced any witnesses or documentary evidence to establish the charges. On the other hand, the onus was being shifted to the petitioner. On the 21st August, 1958 the defence counsel for the petitioner cited in writing the names of 11 witnesses. The petitioner also asked for the production of papers and documents of the year 1955. He was told that the documents of 1955 were not relevant and in any event they were destroyed. He asked for inspection of the order of destruction, but it was not given to him. The departmental enquiry appears to have been held from 16-8-58 to 10-9-58 and some of the petitioner's witnesses were examined. Thereafter, the enquiring committee held that the petitioner was responsible for fraudulent issue of 365 foreign line passes during the years 1956 and 1957 on faked pass applications, alleged to have been forwarded from the office of the District Controller of Stores, Lillooah. It was stated in the finding that the members of the enquiring committee had “carefully considered all the evidence”. The order was supported by “Remarks and reasons for the finding”. On the 15-1-1959 a second show cause notice was given.

4. The petitioner was asked to show cause why he-should not be dismissed from service. The petitioner wanted to see the records of the examination and cross-examination of different witnesses in connection with the proceedings against the other two accused, namely, D.N Sarkar, an office Superintendent, and H.K Mittra, a clerk, Pass Section. The petitioner was given the record of the examination and cross-examination of D.N Sarkar and H.K Mittra but nothing else. On the 13th February, 1959 the Deputy Chief Mechanical Engineer passed an order dismissing the petitioner. Thereafter, the petitioner preferred an appeal to the Chief Mechanical Engineer. The Chief Mechanical Engineer, by his order dated 6-7-1959 held that the petitioner had been suitably dealt with and as there was no other extenuating circumstances to justify clemency the appeal was dismissed. Thereafter, this application has been made. In the petition, 3 point has been specifically taken that the petitioner was charged with fraudulent issue of 367 Nos. of foreign line passes during 1956 and 1957 on faked application but no particulars have been given. These passes were not identified by serial Nos. or dates. The names and addresses of persons in whose favour they were issued have not been disclosed, nor the names of the foreign lines which were covered by the passes, specified. The charge-sheet did not specify the details of the faked applications which would (identify the same so that an answer was possible. The unauthorised persons mentioned in the charge-sheet were not named or identified to make an answer possible. It is therefore, stated that the petitioner could not specifically refute the charges and defend himself. It is stated in the petition that during the enquiry the prosecution did not produce any witnesses and threw the onus on the petitioner to establish his innocence. It is stated that witnesses asked by him to be produced were not produced. The answer to these allegations in the affidavit-in-opposition is rather surprising. It is stated that prior to the service of the charge sheet upon the petitioner, there was a preliminary enquiry, or as it is called a “fact-finding enquiry”, where-various documents were shown to the petitioner and various witnesses were examined. After that, the charge sheet was issued. It is, therefore, seriously suggested that at the enquiry no further witnesses were necessary to be called, and no further particulars were necessary to be given, and no document need have to be inspected. With regard to the inspection of documents, I am not quite certain from the materials whether inspection was given again to the petitioner during the enquiry proper. But certainly, the documents of 1955 were withheld on the plea that they were destroyed and were irrelevant. They were certainly not irrelevant. As the petitioner has pointed out, they were extremely necessary to show the practice in keeping the books and registers and the part that is taken in it by the petitioner. His case was, that regard being had to the procedure and practice followed, he could not be blamed if a fraud was committed by other persons. It is said that according to the rules, the 1955 books and documents had been destroyed. The petitioner however asked for the inspection of the order for destruction, but that has not been produced. It has not been produced before me either. But quite apart from the books and documents, the point made by the petitioner that the charge-sheet was entirely vague and wanting in particulars is perfectly correct and is a point of substance. It is no answer at all to say that the necessary books and’ documents had been shown to the petitioner during the “fact-finding enquiry”, and, therefore, he knew the particulars of the charges and, therefore, it was not necessary to disclose it again. The position with regard to a “fact-finding enquiry” is as follows: Before making a charge, the authorities are entitled to have a preliminary investigation or a “fact-finding enquiry”. This is not a formal enquiry at all, and in such an enquiry, if it can be called an enquiry at all, no rules are observed. There can be an ex parte examination or investigation and ex parte reports. All this is to enable the authorities to apprise themselves of the real facts and to decide whether an employee should be charge-sheeted. But the departmental enquiry starts from the charge-sheet the charge-sheet must be specific and must set out all the necessary particulars. It is no excuse to say that regard being had to the previous proceedings, the delinquent should be taken to have known all about the charges. Whether he knew it or not be must again be told of the charges to which he is called upon to show cause and these charges must be specific and all particulars must be stated, without which, a man cannot defend himself. It is obvious, therefore, that there was no duty cast upon the petitioner to connect the charge sheet with any previous proceedings. The charge-sheet speaks about the issue of 367 foreign line passes. There was no duty cast on the petitioner to connect this with any of the documents disclosed to him during the fact-finding enquiry. After all, the report of the fact-finding enquiry was not available to him. It was not possible for him to determine which of the numerous documents used during the “fact-finding enquiry” related to the formal charges. As regards the witnesses, the defence taken in the affidavit in opposition is the same. It is seriously argued that after all, during the fact-finding enquiry, witnesses were examined, mainly indicated by the petitioner himself. It is therefore claimed that no further witnesses need have to be called by the prosecution during the enquiry proper. Thus, the evidence given by the witnesses during the fact-finding enquiry has been liberally relied upon, without producing them at the enquiry proper, so that their evidence would be on record, and the petitioner would not (?) get an opportunity to cross-examine them. Briefly put, the respondents were not entitled to rely on evidence which had been given at the fact-finding stage, without producing those witnesses at the enquiry proper. In effect, the petitioner is justified in saying that the proceedings were conducted in manner as if at the enquiry proper, the onus was on the petitioner to establish his innocence. This is not the position in law, and the departmental enquiry has been conducted in a manner contrary to law. It is no good vising expressions like “fraud”, “fraudulent issue” or “fraudulent disposal,” without giving particulars of the fraud. It is an elementary principle that when fraud is alleged, complete particulars must be given. It is no good speaking about “unauthorised persons” without specifying who they are. Here, again, it is not of the slightest use to state that the petitioner knew or must have known all about it. At the earliest possible moment, the petitioner objected to the vagueness of the charge-sheet, and it was the duty of the respondents to have at once furnished him with all particulars. In my opinion, upon the admissions made in the affidavit-in-opposition, as to the manner in which the enquiry took place, this application must succeed, and the proceedings must be quashed. I am by no means unaware or lacking in appreciation of the seriousness of the charges. It is true that the state of affairs disclosed by the charges themselves, if true, is extremely serious and calls for drastic punishment. For that very reason however the delinquent must be given the fullest opportunity of defending himself. Whether it means duplicating the preliminary proceeding or not, departmental proceedings must be properly conducted and in accordance with the rules which have been, by now, firmly established. Coming now to the appeal, I find that the Chief Mechanical Engineer thought that he was called upon to find out the existence of extenuating circumstances justifying clemency. That is not at all the correct approach. In an appeal, the whole thing is open, and one must not proceed upon the assumption that the appellant is guilty. The whole thing should be examined with an open mind.

5. For these reasons, I am of the opinion that these proceedings, together with the orders made thereon are defective and must be set aside. The Rule must, therefore, be made absolute and there will be issued a writ in the nature of certiorari quashing and/or setting aside the order of the Deputy Chief Mechanical Engineer dated 13th February, 1959 dismissing the petitioner from service, and the appellate order thereon of the Chief Mechanical Engineer referred to in the letter dated 6th July, 1959 being annexure “JI” to the petition. There will be a writ in the nature of mandamus directing the respondents not to give effect to the same. This will, however, be without prejudice to the respondents issuing a fresh charge-sheet and/or giving proper particulars of the charge sheet dated 26th June, 1958 and thereafter conducting the departmental proceedings, if they are so minded to renew the same, in accordance with law. There will be no order as to costs.

HD/K.S.B

6. Rule made absolute.

Amulya Ratan Mukherjee v. Deputy Chief Mechani...