The Judgment of the Court was as follows:—

1. This application is against the judgment and order of the learned Tribunal dated 22nd March, 2005, whereby and whereunder the application of the respondent employee has been allowed, setting aside the order of dismissal from services.

2. The facts leading to filing of this case is as follows: On or about 21st August, 1986, the respondent employee, then Assistant Goods Clerk had been in the employment of Eastern Railway, then posted at Farakka N.T.P.C siding, was charge-sheeted on various imputation of misconduct. We find as many as four different imputation of misconduct which include permanent and temporary mis-appropriation of fund and further not properly accounting for the demurrage charges and not showing in the balance sheet accrual of such demurrage charges and manipulation etc.

3. The delinquent employee replied to the said charges. Thereafter, enquiry followed by appointing enquiry officer. There is no dispute that the employee concerned was given notice and chance of hearing. From the records it appears that on several occasions, the delinquent remained absent himself from the enquiry proceedings. After taking evidence of both the sides, the enquiry officer found him guilty of all the charges. The disciplinary authority having accepted the report of enquiry and after issuing a second show-cause notice imposed extreme punishment, i.e dismissal from services. The delinquent's appeal against the order of punishment was also unsuccessful as the appellate authority also accepted and affirmed the order of punishment and also recording of fact findings of the enquiry officer. Challenging the aforesaid order of dismissal, charge-sheet and the report of the enquiry, an application was made before the learned Tribunal.

4. While allowing the application of the applicant employee and granting relief, the learned Tribunal found three basic infirmities—(1) the enquiry officer did not follow the procedure laid down under the relevant rules by not asking the disciplinary authority to adduce evidence to prove the charges first; rather he followed the reverse course of action by asking the delinquent to adduce his evidence first and to put it in other way, to disprove the charges and thereafter he recorded the evidence of the disciplinary authority, (2) another employee who was also found responsible for alleged mis-appropriation of fund and loss of revenue in the preliminary enquiry, was spared and no action was taken against him and this action on the part of the Railway authority sparing the co-employee is a suggestive of the vindictive and mala fide attitude, (3) the charge-sheet was issued even before the completion of the preliminary enquiry, thereby the authority concerned pre-judged the issue.

5. Mr. Banerjee learned Counsel appearing for the Railway authority submits that the learned Tribunal has its limited jurisdiction to interfere with the fact findings of the enquiry officer and the order of punishment, as well. Rule of Evidence is not applicable in this case. Moreover, the procedural irregularities, if at all, should not have been a factor to upset the entire thing as under the peculiar facts and circumstances, the enquiry officer was compelled to take evidence of the delinquent first, as he was avoiding the enquiry proceeding despite opportunity being granted. The delinquent without any objection has allowed this procedure to be adopted by the enquiry officer and thereby he has waived his objection by participating in the proceedings in the way it was conducted by the enquiry officer. For the first time before the learned Tribunal, this procedural irregularities or lapses were raised. Under such circumstances, this technical flaw and/or lapse cannot stand in the way.

6. His next contention is that there are evidences galore and the learned Tribunal cannot scrutinise the sufficiency and insufficiency of the same and in fact, the learned Tribunal did not proceed in that direction. He further contends that it is for the Railway authority to decide, who should be spared and who should be proceeded with. After examining the entire records, it was thought fit that the respondent employee was the mastermind of this act of mis-appropriation of fund and loss of revenue, so he was proceeded with. Therefore, the question of bias or mala fide does not and cannot arise.

7. Mr. Banerjee submits that mere issuance of charge-sheet before completion of the preliminary enquiry, does not render the disciplinary proceeding ipso facto invalid and illegal. Even the charge-sheet can be issued and the disciplinary proceedings can be conducted in the absence of the preliminary enquiry report and this does not vitiate the proceeding. The learned Tribunal has led emphasis on those avoidable lapses and irregularities which does not affect anything else. In any event, if there be any procedural defect, the learned Tribunal should have remanded the matter for fresh enquiry by the enquiry officer.

8. Mr. Dasan, appearing for the respondent employee submits that admittedly there is a procedural lapse and the enquiry officer has no jurisdiction to deviate from the established procedural rules. The enquiry officer has no authority or discretion to lay down his own procedure, contrary to the established procedure. It is not a mere question of procedure but a question of observance of the principles of natural justice also. The delinquent cannot be compelled to prove his case first. If it is done so, then he is compelled to disprove the case, where the case is yet to be proved.

9. Mr. Dasan further submits that another employee was found to be equally responsible, but he was not proceeded with. Therefore, it suggests that there is no case of alleged mis-appropriation or loss of revenue. The charge-sheet was issued even before completion of the preliminary enquiry. If all those facts are taken together, then it will appear that the enquiry was not held in a fair manner and the question of remanding the matter was also considered by the learned Tribunal. Since it is an old case and the respondent employee by this time has reached an advanced stage, it is not possible to conduct further enquiry.

10. We have carefully considered the respective contentions of the learned Counsels for the parties and we have gone through the judgment and order of the learned Tribunal. We are in absolute agreement with the findings reached by the learned Tribunal. The Rules relating to conducting disciplinary proceedings has been laid down in the Disciplinary and Appeal Rules and Rule 9 of the said rules deals with a case of misconduct, involving major penalties, which is set out below:—

“9. Procedure for imposing major penalties.

(1) xxxxxxxxxxxx

(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a railway servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1950, as the case may be, [a Board of Inquiry or other authority] to inquire into the truth thereof.

(3) To (16) xxxxxxxxxxxx

(17) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved, shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer, if any, and may be cross-examined by or on behalf of the Railway Servant. The Presenting Officer, if any, shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.

(18) xxxxxxxxxxxx

(19) When the case for the disciplinary authority is closed, the Railway servant shall be required to state his defence orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Railway servant shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any.

(20) The evidence on behalf of the Railway servant shall then be produced. The Railway servant may examine himself in his own behalf, if he so prefers. The witnesses produced by the Railway servant shall then be examined by or on behalf of him and shall be cross-examined by or on behalf of the Presenting Officer, if any. The Railway servant shall be entitled to re-examine the witnesses on any point on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.”

11. It is, thus, clear that established rule or procedure has demanded first the disciplinary authority is to prove its own case, meaning thereby charge-sheet issuing authority is to stand on its own footing and not to take advantage of the lapses of the defence. Even in an ex parte hearing of domestic enquiry and if the charges are denied then under the aforesaid Rule, the imputation of misconduct has to be brought to book with preponderance of probability, either by producing witnesses or by producing documents first. It may so happen that after reading the charges and reading the evidence adduced by the disciplinary authority, the delinquent may not lead any evidence whatsoever if it is found that nothing has been proved. The aforesaid rule, without any doubt, is framed in strict compliance of principle of natural justice and also constitutional mandate. No one can be proceeded against, either in relation to life or livelihood, without due procedure of law, as guaranteed under Article 21 of the Constitution of India. The said Article 21 is set out hereunder:—

“Article 21: Protection of life and personal liberty—

No person shall be deprived of his life or personal liberty except according to procedure established by law.”

12. It would be naive to say as on today that livelihood is not a part of right to life. By this time, by a large number of decisions, it has been held by the Hon'ble Supreme Court as well as High Courts in this country that livelihood is an integral facet of right to life. In this connection, a decision of the Hon'ble Supreme Court rendered in the case of State of Himachal Pradesh v. Raja Mahendra, reported in (1999) 4 SCC 43 : AIR 1999 SC 1786 may be remembered.

13. Dismissal from services undoubtedly is taking away the livelihood of a person at an advanced stage because at that stage, it is impossible for a person to get any employment elsewhere as the order of dismissal will be treated as a disqualification. Loosing a job in an establishment amounts to a civil death, as the concerned person will not be in a position to earn livelihood at the advanced stage, when all his energies and endeavours have almost come to a diminishing stage.

14. According to us, in this case order of dismissal really tantamounts to deprivation of livelihood of the employee concerned. The established procedure in law include a rule, framed by the statutory body, which is conferred with the power to lay down such rules. The said Rules, in our view, can be termed to be procedure established by law. The enquiry officer thus, while deviating the procedure laid down, has really reached a finding violating the constitutional mandate. It is not a mere procedural right, it partakes the character of fundamental right. The learned Tribunal has recorded the decisions rendered in the light of the provisions of General Law. Those principles, in our view, have not been made part of Article 21 of the Constitution of India. According to us, the learned Tribunal has reached the correct legal proposition though on a different premises. However, we hasten to say, we approve the same, with addition what we found.

15. Mr. Banerjee, in support of his contention that deviation from the established procedure does not vitiate the proceeding, has relied on a decision of the Hon'ble Supreme Court reported in (1995) 6 SCC 7500. We are of the opinion that the proposition laid down by the said decision is not applicable in this case as the said decision does not suggest that any procedure established by law is to be ignored.

16. We are in agreement with the argument of Mr. Banerjee that it cannot be proposition of law that just because another employee was spared, the respondent employee could not be proceeded with. It is settled law if it is found that there are two co-delinquents, then one may be spared and another can be proceeded with for administrative reason. Just for the reason that one has been spared, another cannot be proceeded with in all cases, cannot be the Administrative Law. If anyone has committed any misconduct, he has to exonerate himself by his own defence of innocence, not taking resort to the plea of sparing another. This plea of Mr. Dasan is not accepted by this Court and the findings on this aspect of the learned Tribunal are not accepted by us also.

17. We do not find any infirmity and illegality in the issuance of the charge-sheet before completion of the preliminary enquiry. According to us, preliminary enquiry report has some evidentiary value, but the charge-sheet can be issued even before the preliminary investigation report is prepared. We find some substance in the argument of Mr. Banerjee, in this regard.

18. Besides that, one point has escaped the notice of the learned Tribunal that fact finding of the enquiry officer is not a product of reasonable analysis of evidence. The contents of the report, appears to be more or less re-production of the statement of imputation of misconduct, as mentioned in the charge-sheet. The enquiry officer, while coming to the conclusion must record specifically the evidence in support of his conclusion. He cannot just merely say that having considered the documents this is proved or this is disproved. He must indicate which of the documents and whose evidence has swayed his mind to conclude on a certain issue. He has to hit the right material and to pick it up in order to arrive at his own conclusion. Sadly enough, the enquiry officer has reached to his finding in a perfunctory manner, which cannot be supported by any Court of Law. Unfortunately, disciplinary authority and appellate authority have mechanically accepted such report without looking into the same and they should have examined the report applying their own mind. Had they been careful then fresh enquiry could be asked to be conducted so that truth could be brought out in this matter.

19. Unfortunately, despite having our intention so also that of the learned Tribunal, this matter cannot be remanded as it has become a very old one and we do not find that any useful purpose will be served, as has been found by the learned Tribunal, at this distant time. An incident of 1984-1985 should not be exhumed at the age of an employee of 72-73 years. It is also doubtful whether all the witnesses are available either in this world or at a place from where they can be summoned. An impossible thing cannot be asked to be carried out by the Court of Law.

20. We, therefore, do not think it fit to interfere with the judgment and order of the learned Tribunal, however, with the following modifications. Backwages of the respondent employee concerned shall not be paid in full. We are told, pursuant to the interim order passed by this Court 50% of the backwages has been paid and nothing more shall be paid on this account. The Railway authority is directed to determine the respondent employee's pensionary and other retirement benefits, as if he were in service and such payment shall be made after adjusting the payment, if any made already.

21. Thus, this application is disposed of. There will be no order as to costs.

22. Urgent xerox certified copy of this order, if applied for, be supplied to the applicants.

23. S.K.G