UNION OF INDIA & ORS. versus GYAN CHAND CHATTAR

16. So far as charge no.6 i.e. asking for 1% commission for making the payment of pay allowances is concerned, the -I .. 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 H that the respondent employee had asked any person to pay 1 % UNION OF INDIA & ORS. v. GYAN CHAND CHATIAR 137 [DR. B.S. CHAUHAN, J.] 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 shadow of doubt and to the hilt. It cannot be proved on mere probabilities. Witnesses were examined before the Enquiry Officer that they c 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 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 [2009J 10 S.C.R. 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 c 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, enqui:ry was not 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 F 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 considernd the issue in correct perspective.

22. Charge No. 4 & 5 have partly been found proved by UNION OF INDIA & ORS. v. GYAN CHAND CHATIAR 139 [DR. B.S. CHAUHAN, J.] the learned Single Judge to the extent that he refused to accept _, the '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 c be awarded.

24. In Municipal Committee, Bahadurgarh v. Krishnan 4. 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; /:J.P. State Road Transport Corporation v. Basudeo -lo._ Chaudhary & Anr., (1997) 11 SCC 370; Janatha Bazar South Kanara Central Cooperative Wholesale Stores Ltd. & Ors. v. Secreatry, Sahakari Noukarar Sangha & Ors. (2000) 7 SCC 517; Karnataka State Road Transporl 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 'I' 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 A keeping in mind that it has both civil and criminal ,_ consequences. 2$. In Surath Chandra Chakravarty v. The State of West Bengal, AIR 1971 SC 752, this Court held that it is not B permissible to hold an enquirv 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 : c "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 a/legations 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 F 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 G 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 H violation of the principles of natural justice. UNION OF INDIA & ORS. v. GYAN CHAND CHATTAR 141 [DR. B.S. CHAUHAN, J.] 28. In Sawai Singh v. State of Rajasthan, AIR 1986 SC -,j 995, this Court held that even in a domestic enquiry, the charge must be 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 c 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 oe a misconduct The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct. 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 (2009] 10 S.C.R. A 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 8 employee failed to prove to be a tactful person or possessing a high standard 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 c 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 D 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 E 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. 35. Therefore, we dispose of the appeal directing the F 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. G 8.8.8. Appeal disposed of.