In disciplinary proceedings findings recorded by Enquiry Officer based on evidence.

ORDER: Pursuant to the disciplinary action initiated against the petitioner, who was working as a Head Constable in the third respondent/Factory, charging that:

(i) he failed to maintain absolute integrity and devotion to duty at Time Office Gate (Counter No.5) on 8.9.1994 when he failed to prevent stealthy removal of 7 Nos. of hand shut off valves (brass) with marks “KIM”, and allowed an employee of the Railway by name S.Ramalingam, without proper check to go out from the furnishing factory through counter No.5 of the Time Office Gate; and (ii) that he indulged in corrupt and improper practice by placing himself under pecuniary obligations to another person in a manner as to effect the proper discharge of his lawful and prime duties and failed to maintain absolute integrity and devotion to duty, violating Rule 146.7 of the Railway Protection Force Rules, 1987 and Rules 3(1)(i), (ii) and (iii) of the Railway Services (Conduct) Rules, 1966.

The petitioner was placed under suspension with effect from 8.9.1994. An Enquiry Officer was appointed, opportunity was given, and the Enquiry Officer found the charges established. The third respondent, based on the findings of the enquiry officer, passed an order of dismissal dated 8.1.1996 and the same was, on appeal, confirmed by the order of the second respondent, which was communicated to the petitioner on 27.9.1996. A further revision to the first respondent also got dismissed by order dated 20.2.1998. Hence, the petitioner has preferred this writ petition for issue of a writ of certiorarified mandamus to call for the records in respect of the impugned order of the first respondent dated 20.2.1998 and quash the orders contained therein and as a consequence, direct the respondents to restore and reinstate the services of the petitioner herein with all benefits accruing from the date of suspension, i.e., 8.9.1994.

2. Mr.Shafiur Rahman, learned counsel for the petitioner assails the impugned order of dismissal dated 20.2.1998 as under:

(i) placing reliance on the decision of this Court in Baliah David, A. v. R.M., Central Bank of India, (2002)1 L.L.J. 270, it is contended that:

(a) the impugned disciplinary proceedings vitiates due to the appointment of the Enquiry Officer while framing the charge memo itself, as the same amounts to denial of an opportunity to the petitioner to explain his charges preliminarily;

(b) when the petitioner was initially permitted to engage one S.A.Rasheed, as a friend to assist him in the enquiry under Rule 153(8) of the Railways Rules, 1987 from 25.10.1994, the respondents ought to have permitted the petitioner to avail the assistance of S.A.Rasheed during the entire enquiry and the denial of such an opportunity to avail the assistance of a friend during the enquiry by transferring S.A.Rasheed from Integral Coach Factory to Madras Division amounts to violation of principles of natural justice; and

(c) the denial of granting adjournment to cross-examine the department witnesses again amounts to violation of principles of natural justice;

(ii) the finding of the enquiry officer holding both the charges proved is erroneous as there is absolutely no evidence for the same, inasmuch as the enquiry officer purely relied upon the alleged confession statement of one S.Ramalingam, the accused, who was not at all examined before the enquiry officer, and as a result, the petitioner was deprived of an opportunity to cross-examine S.Ramalingam to disprove the alleged confession statement. In this regard, reliance was placed on the decision of the Apex Court in Bhagat Ram v. State of H.P., A.I.R. 1983 S.C. 454 and contended that as the conclusion of the enquiry officer is based on ‘no evidence’, the consequential order of dismissal is also liable to be quashed. Furthermore, it is contended that the failure on the part of the disciplinary authority, the appellate authority and the revisional authority to consider that the findings of the enquiry officer are based on ‘no evidence’

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