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 chargesthat 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 1

st

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 1

st

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

8

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

9

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

11

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

13

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

14

complete. Thus, no finding could be recorded holding the

respondent guilty of misconduct on this count.

20.On 2

nd

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

15

‘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

16

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

18

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

20

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;

28

th

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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