Holding

A second enquiry on the merits is permissible after a technical quashing of the earlier order, and the same officers may continue the enquiry even after promotion, provided the record, not personal impressions, guides the disciplinary authority.

Summary

The Supreme Court heard appeals by special leave against Orissa High Court judgments that had quashed the removal of several railway employees following disciplinary enquiries. The issues were whether a second enquiry on the merits could be held after an earlier order of reversion was set aside on a technical ground, and whether officers who had been promoted and no longer held the posts they occupied at the time of the original enquiry could continue the supplementary enquiry. The Court held that the quashing of the earlier order did not bar a fresh enquiry on the merits and that the same officers could continue the enquiry even after promotion, as the record, not the personal impressions of individual members, governs the disciplinary authority’s decision. However, the Court agreed that a fresh enquiry would be inequitable given the long lapse of time, and therefore dismissed the appeals, allowing the respondents to retain their reinstated service and awarding them modest compensation.

Issues considered

Whether a second disciplinary enquiry on the merits is permissible after an earlier order of reversion is quashed on a technical ground.
Whether enquiry officers who have been promoted and no longer hold the original posts can continue a supplementary enquiry.
Whether the continuation of the enquiry by such officers violates principles of natural justice.
Whether a fresh enquiry is warranted given the long lapse of time since the alleged offence.

Subjects

disciplinary enquiryservice lawreversion ordernatural justicepromotion of officerssupplementary enquiryrailway serviceappeal by special leave

Judgment

817

UNION OF INDIA & ORS. A
v.
M. B. PATNAIK & ORS.
•
February 11, 1981
(S. MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ.]
B
Disciplinary Proceedings in a service matter-Order of reversion quashed
by the High Court on a technical ground-Propriety of the second enquiry on
merits-Whether it is necessary that the enquiry which had been held in part
by more than one enquiry offecers should be continued by the satne enquiry
officers until the end-Original enquiry officers ceased to hold their 1'e~pec1ivc
offices by rcasori of their promotion to higher posts-Whether t11e second enquiry
done by them while holding the higher promotional posts are bad and without C
authority of law.
Allowing the appeals by special leave, the Court,
HELD: (1) When an earlier order of reversion was quashed on a techni~
cal ground, a second enquiry on merits could be held and it is open to the dis-
ciplinary authority to continue the proceedings in accordance with Jaw. The
order of reinstatement pursuant thereto is not a bar to the second enquiry. D
[820 F-GJ
Superintendent (Tech. I), Central Excise I.D.D. Jahalpur and Ors. v. Pratap
Rai, [1978] 3 S.C.R. 729; Anand Narain Shukla v. State of Madhya Pradesh,
A.LR. 1979 S.C. 1923, followed.
(2) It is not at all necessary that the enquiry which had been held in part
by more than one enquiry officers should be continued by the same enquiry
E
officers until the end. The post which the members of the Inquiry Committee
held originally might have been ceased to exist at a later stage, or one or more
of the members of the Inquiry Committee may no longer be awilable either
on account of retirement or due to any other cause. For that reason, it could
not be held that the enquiry could not be continued at all. Therefore, there
could be no valid objection to the supplementary enquiry being continued by
the very two individuals, in the instant case even after they had coosed to hold
F
their respective offices which they held at the time of the original enquiry.
[823 G-H, 824 A·B]
General Manager, Eastern Railway and another v. Jwala Prasad Singh,
[1970] 1 sec 103, applied.
[Having regard to the long lapse of time, the offence having been alleged
to have been committed in or about 1955, the Court held that the fresh enquiry
G
need not be held, and accepted the equitable offer of the Union Railways and
directed payment of Rs. 12,000/· to each of the respondent employees.]
,
' CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2119-2121
of 1979.
.. Appeals by special leave from the Judgment and Order dated H
I 10-1-1979 of thoe Orissa High Court in O.J.C. Nos. 1261/76, 833/77
and 834/77.
5-214 SCI/81
818 SUPREME COURT REPORTS l1981] 2 s.c.R.

A AND
Civil Appeal No. 389 of 1981.
Appeal by Special Leave from the Judgment and Order dated
10-1-1979 of the Orissa High Court in O.J.C. No. 832/77.
M. M. Abdul Khadar, P.A. Francis, Gurumurthy and R. N. Pvddar
B for the Appellants.
Amlan Ghosh for the Respondent•.
The Judgment of the Court was delivered by
VARADARAJAN, J.-These appeals by special leave have been filed
c against two judgments of a Division Bench of the Onssa High Court
(C. A. No. 389 of 1981) arising out of the judgment in Original Juris-
diction Case No. 832 of 1977 and C. As. Nos. 2119-2121 of 1979
arising out of Original Jurisdiction Cases Nos. 1261 of 1976 and 833
and 834 of 1977 respectively. P. N. L. Das, the respondent in C.A.
No. 389 of 1981 was appointed as a Booking Clerk in the South Eastern
D Railway in 1955 and had been duly confirmed at that post. M. B.
Patnaik, the respondent in C. A. No. 2119 of 1979, was working as a
confumed Commercial Clerk at Khurda Road in the South Eastern
Railway, having been appointed in January-February 1964. D. Sahu
and S. C. Mitra, the respondents in C.As. Nos. 2120 and 2121 of 1979
respectively were working as confirmed Booking Clerks in the South
E Eastern Railway at about the same time. A departmental enquiry
was initiated against these four respondents and three others, namely,
Ch. N. Murty, B. S. N, Rao and B. Papa Rao in 1964 on the basis of
a report of the Travelling Insipector of Accounts, and two charges were
framed against them. The second charge was not pressed, ,md we
are, therefore, concerned only with the disciplinary proceeding relating
to the first charge, which led to the removal of all the seven persons
from service. The first charge framed against these six persons was
this:-
"On 20th May, 1959, 47 third-class express tickets had
been issued from Khurda Road to Howrah for a total fare of
G Rs. 497.73 and these were accounted short on the plea of
over-issue of these tickets on 12-5-59. The record at Howrah
Station indicated that the tickets were actually sold on 20-5-59
and not on 12-5-59. The result was the fare amounting to ' I
Rs. 497.73 had been misappropriated on 20th December,
1959 by tampering with the figure relating to 12-5·-59 in the
H cash book. The record foils of foreign eXiPress fare tickets
issued on 12-5-59 were fraudulently cancelled and the sum of
Rs. 493.53 already accounted in the cash book 11gainst those
UNION v. M. B. PATNA!K (Varadarajan, J.) 819

two foreign express tickets was erased, and to balance the A
sum a fictitious sale of 47 tickets had been entered in the cash
book."

Several points had been raised in the Writ Petition (Original Juris-
diction Case) No. 832 of 1977. But when that case was taken up the
learned counsel for the petitioner P. N. L. Das confined his arguments B
only to two points, namely ( 1) that though the Evidence Act does
not strictly apply, suspicion and conjecture cannot form the basis of
any conclusion in any departmental enquiry and (2) reasonable oppor-
tunity of defending himself had not been given to the petitioner P. N. L.
Das. The disciplinary authority and punishing authorit), namely, the
General Manager, constituted an Enquiry Comm;uee consisting of the c
Assistant Commercial Superintendent, Khurda Road and the Assistant
Accounts Officer, Garden Reach, namely, Shri K. Julhe and Shri B. B.
Chatterjee. In the midst of the enquiry Shri K. Julhe was transferred
and thereafter his successor in office Shri B. K. Patnaik and Shri B. B.
Chatterjee, the Assistant Accounts Officers, bGarden Reach continued
D
the enquiry. The Enquiry Officers found the appellants in these
appeals guilty of the charge. The punishing authority, the General
Manager, on the representation of the respondents in C. As. Nos. 2119-
2121 of 1979, directed a supplementary enquiry to be held. Notice of
the supplementary enquiry was given in April 1967. At that time Shri
B. K. Patnaik, who succeeded Shri K. Julhe as the Assistant Commer- E
cial Superintendent, Khurda Road as stated above, had been promoted
as a Divisional Commercial Superintendent and was posted at Kharagpur
while Shri B. B. Chatterjee, who was Assistant Accounts Officer, Garden
Reach, had been promoted as the Divisional Accounts Officer and had
been posted at Adra. These very persons issued the notice for continu-
ing the enquiry after the General Manager directed the supplementary F
enquiry. It is at this stage that P. N. L. Das, the appellant in C. A.
,- No. 389 of 1981 challenged in 0. J.C. No. 579 of 1971 the jurisdic-
tion of the Enquiry Board. In that Writ Petition, Misra and Panda,
JJ. of the Orissa High Court while negativing several other contentions
raised on behalf of P. N. L. Das, directed that the supplementary en-
quiry pending against P. N. L. Das shall be continued by the officers G
holding the post of Assistant Commercial Superintendent, Khurda \{oad
and the Assistant Accounts Officer, Garden Reach and not by Shri
B. K. Patnaik who had been promoted as the Divisional Commercial
Superintendent and was posted at Kharagpur and ceased to be Assis-
tant Commercial Superintendent, Khurda Road and by Shri B. B.. Chat-
• terjee who had been promoted as the Divisional Accounts Officer and H
posted at Adra and ceased to be the Assistant Accounts Officer, Garden
Reach.
820 SUPREME COURT REPORTS [1981] 2 S.C.R.

A In W. Ps. (O.J.C.) Nos. 1261/76 and 833 and 834/77 Misra and
Mohanty, JJ of the Orissa High Court found that by the time tl:\e deci-
sion in the said 0. J. C. No. 579 of 1971 was rendered by Misra and
Panda, JJ on 20-9-72, the enquiry against the respondents in C.As. Nos.
2119-2121 of 1979 had been disposed of and the disciplinary authority
had taken into account the material collected in the supplementary
8 enquiry and found the respondents in these three appeals guilty, in
consequence of which these respondents were removed from service by
the punishing authority. Writ Petitions (O.J.C.) Nos. 1271/76 a\ld
833 'lllld 834/77 were filed for challenging the removal of the respon-
dents in C. As. Nos. 2119-2121 of 1979 from service. Misra and
JJ held in these three Writ Petitions in their judgment dated
c Mohanty,
10-1-79 that in view of what has been stated in the decision in Writ
Petition (O.J.C.) No. 579 of 1971 (P. N. L. Das v. Union of India &
Ors.( 1) the supplementary enquiry made by Shri B. K. Patnaik who
had ceased to be the Assisl'ant Co=ercial Superintendent, Khnrda
Road and Shri B. B. Chatterjee who had ceased to be the Assistant
0 Accounts Officer, Garden Reach, must be held !o be without authority
of law, and having regard to the fact that the case of the railway admi-
nistration was not that the material gathered in the supplementary
enquiry had not been used by the enquiry officers and the disciplinary
authority, the finding of gnilt 'lllld the imposition of punishment on the
basis of that finding could not be sustained. Accordingly, the learned
E judges allowed these Writ Petitions (0.J.C.) Nos. 1261/76 and 833
and 834/77 and quashed the order made in the disciplinary proceedings
and directed that each of the three petitioners before them, namely, the
respondents in C. As. Nos. 2119-2121 of 1979 shall be deemed to be
continuing in service and would be entitled to appropriate service
benefits on that footing.
F
Mr. Pal, who appeared fqr the Railway Administration before Misra
and Mohanty, JJ in these three Writ Petitions requested the learned
judges to indicate that it is opebn to the disciplinary authority to continue
the proceeding in accordance with law. We are of the opinion that the
learned cour.sel was perfectly justified in doing so. This Court has
G
held in Anand Narain Shukla v. State of Madhya Pradesh(') that when
the earlier order of reversion was quashed on a technical ground, a
second enquiry on merits could be held and that the order of reinsl'ate-
ment pursuant to the quashing of the earlier order on a technical ground
,
is not a bar, and this Court negatived the contention that after t11e
earlier order of reversion was quashed by the High Court and the govern-
H •
1) (1972) Vol. 38 Cuttack Law Times. •
(2) AIR 1979 S.C. 1923.
UNION v. M. B. PATNA!K (Varadarajan, J.) 821

ment servant was reinstated, no second enquiry on the very same charge A
could be held and no second order of reversion could be legally and
validly made. A similar view has been taken by this Court in Superin-
tendent (Tech. I), Central Excise l.D.D. Jabalpur and Ors. v. Partap
Rai(') in which it has been held that where an order passed in appeal
vacates the order of the First Tribunal on purely technical grounds and
B
expressly states that it was being passed without prejudice, which me11ns
that it was not an order on merits of the case, such an order does not
debar fresh adjudicatory proceedings which ~my be justified under the
law and that when an order is struck down as invalid being in violation
of the principles of natural justice, there is no final decision of the case
and all !hat is done is that the inherent defect is removed but the c
proceedings are not terminated. But Misra and Mohanty, JJ declined
to consider favourably the request of the learned counsel for the Rail-
way Administration before them namely, that they should indicate that
it is open to the disciplinary authority to continue the proceeding in
accordance with law on the ground that 15 years had elapsed since the
charges were framed and the petitioners before them namely, the respon- D
dents in C. As. Nos. 2119-2121 of 1979, had been suffering on ac-
count of being subjected to disciplinary proceedings for such a long
time and that it would be a mockery of justice if aft~r the lapse of so
• many years the enquiry should commence again on the same charges.

When the supplementary enquiry, mentioned above, commenced E
and P. N. L. Das, the respondent in C. A. No. 389 of 1981 was
examined, he insisted upon production of certain documents and wit-
nesses but they were not made available here on the plea that the
documents were not available and the witnesses whq appeared to he
ticket collectors, could not be co-related. However, as already stated,
he was adjudged guilty of the charge on the footing that he had mis- F
appropriated the sale proceeds of express fare tickets. Misra and
Mohanty, JJ observed in their judgment in W.P. (O.J.C.) No. 832/
77 that there is no positive material worth the name to support the
charge and lead to the conclusion that tickets had actually been ul!Iiz-
ed, that the relevant documents appeared not to have been preserved
on account of negligence on the part of the administration and that on G
the ground that the evidence is not available prejudice cannot be allow-
ed to be caused to the petitioner before them by relying upon suspi-
cion and conjecture as evidence. The learned judges further observ-
ed that as things stood it is indeed difficult for them to hold tliat there
is any evidence on record to support the charge. In that view they
• H
allowed the Writ Petition and quashed the punishment imposed on
•
(1) [1978/ 3!S.C'.R. 729.
822 SUPREME COURT REPORTS (1981] 2 S.C.R.

A P. N. L. Das and held that he continnes to be in ser•1ice and is entitled
1.o all the service benefits admissible to him. These Civil Appeuls by
special leave have been filed against these judgments of the Orissa
High Court.

In the course of hearing of these appeals it was represented to us
R that C. N. Murthy, B. S. N. Rao and B. Papa Rao have since retired
and that all payments have been made to them in fu!J. It was also
represented that even P. N. L. Das had been reinstated and all arrears
etc. due to him have been [paid. Mr. M. M. Abdul Khader, learned
counsel appearing for the appellants in all these cases, submitted that
the view expressed in P. N. L. Das v. Union of India & Ors. (supra)
c that the supplementary enquiry directed to be held by the disciplinary
authority should be held only by officers holding the post of Assistant
Commercial Superintendent, Khurda; Road and Assistant Accounts
Officer, Garden Reach and not by the officers who had held those
posts at the time of the original enquiry and ceased to hold posts
subsequently, is incorrect. The learned counsel submitted that this
D
position would appear from the decision of this Court in General
Manager, Eastern Railway and another v. Jwala Prasad Singh(') re-
ferred to in the Judgment of the learned judges of the Orissa High
Court itself. The learned judges of the Orissa High Court have ex-
tracted the following passage from the judgment of this Court in
E General Manager, Eastern Railway and another v. Jwala Prasad Singh
(supra) in ~heir judgment : -
"In our opinion the above procedure does not leave
any scope for the guidance of a member of an Inquiry Com-
mittee consisting of more than one person by the impression
formed by him about the truthfulness or otherwise of a
F
particular witness examined during the inquiry. From the
stage antecedent to the framing of the charges everything
is recorded in writing. The allegations on which the
charges are based are made known to the railway sernmt
and he is called upon to file his written statement after look-
ing into all the relevant records. The oral evidence of all
G
the witnesses tendered during the enquiry is recorded in
writing. Whereas here the oral evidence is recorded in the
presence of three persons constituting the Inquiry Commit-
tee, any impression created by the demeunour of a particu-
lar witness on the mind of any one member cannot affect
H the conclusion afterwards arrived at jointly by them. It can-
not be suggested that all the three persons would record
•
•
(l) [1970] 1 s.c.c. 103.
UNION v. M. B. PATNAJK (Varadarajan, !.) 823

their impressions separately about the demeoanour of a wit- A
ness and it is quite possible that a particular witness may
appear to one member of the committee to be nntruthful
without his being considered so by the others. The members
of the Inquiry Committee cannot record their findings sepa-
rately, but it is their duty to record findings on each of the
charges together with the reoasons therefor. It is to be
• noted that the duty of the Inquiry Committee ends with
the making of the report. The Disciplinary Authority has
to consider the record of the inquiry and arrive at its own
conclusion on each charge. Whatever may be the impres-
sion created by a particular witness on the mind of one c
member of the Committee, the same is never translated into
writing and the Disciplinary Committee merely goes by the
written record after giving a personal hearing to the railway
servant if he asks for it. Even if the Inquiry Committee
makes a report absolving the railway servant of the charges
against him, the Disciplinary Authority may, on considering D
the entire record come to a different conclusion and impose
a penalty. This is amply borne out by a judgment of this
Court in Union of India v. H. C. Goel (A.I.R. 1964 S.C.
364) where it was said that neither the findings nor the
recommendations of the Inquiry Committee are binding on
the Government. E
In such a state of affairs a change in the personnel of
the Inquiry Committee after the proceedings are begun and
some evidence recorded cannot make any difference to the
case of the railway servant. The record will speak for
itself and it is the record consisting of the documents and
the oral evidence as recorded which must form the basis
.. ,- ..
of the report of the Inquiry Committee. The Committee is
not the punishing authority and the personal impression of
a member of the Committee cannot possibly affect the de-
cision of the Disciplinary Authority. In a state of affairs
like this, we cannot see any reason for holding that any G
kn.own principle of natural justice is violated when one
member of the Committee is substituted by another."
' It would appear from the above extract that it is not at all
necessary that the enquiry which bad been held in part by more
• than one enquiry officers sl1ould be continued by the same enquiry H
officers until the end. The post which the members of the Inquiry
Committee held originally might have been ceased to exist at a later
824 SUPREME COURT REPORTS [1981] 2 S.C.R.

A stage, or one or more of the members of the Inquiry Committee
may no longer be available either on account of retirement or due
to any other cause. For that reason, it could not be held that the
enquiry could not be continued at all. Therefore, there could be
no valid objection to the supplementary enquiry being continued by
the very two individuals, even after they had ceased to hold their
B respective offices which they held at the time of the original enquiry.
The plea of malafides raised against the two Enquiry Officers on behalf
of P. N. L. Das, the respondent in C.A. No. 389 of 1981 before Misra
and Panda JJ, when Writ Petition (0.J.C.) No. 579/71 was heard
was rejected by the learned Judges who have observed in their
judgment that after hearing the counsel they were satisfied that no
c good fpundation has been laid for the plea of malafides, bias or
prejudice by the enquiry officers and it was also conceded by the
learned counsel who appeared for P. N. L. Das in that Writ Petitfon
that on the material on records it may be difficult for him to persuade
them to hold in favour of the petitioner before them in regard to the
0 plea of mala fides. Therefore, we are clearly of the opinion there
could be no bar to B. K. Patnaik and B. B. Chatterjee who were
originally the Assistant Commercial Superintendent, Khurda Road
and Assistant Accounts Officer, Garden Reach respectively, holding
the supplementary enquiry even after they ceased to hold their res-
pective offices by reason of their promotion as Divisional Commercial
E Superintendent, Kharagpur and Divisional Accounts Officer, Adra
sometime before the commencement of the supplementary enquiry.
However, we agree with Misra and Mohanty JJ of the Orissa High
Court that it would be inequitable for a fresh enquiry being made
into the charge framed against the respondents in S. As. Nos. 2119-
2121/79 or to go into tho merits of the case against P. N. L. Das the
respondent in C.A. No. 389 of 1981, having regard to the long lapse
of time, the offences having been stated to have been committed in
about 1955. Mr. M. M. Abdul Khader, learned counsel for the
appellants in these appeals represented before us that no recovery
will be made from S/Shri Ch. R. Murty, B. S. N. Rao and B. Papa
Rao who have retired from service and also from P. N. L. Das the
G respondent in C.A. No. 389 of 1981 who has been reinstated subse-
quent to the decision of the Orissa High Court in Writ Petition
(0.J.C.) No. 832 of 1977. We, accordingly, dismiss these appeals
and direct the parties to bear their respective costs. Advocates fee ,
Rs. 1,000/-, one set.
H It was also represented before us by Mr. M. M. Abdul Khader
that Rs. 22,400/-, Rs. 19,250/- and Rs. 19,250/- would be payable '
to the respondents in C.A. Nos. 2119-2121/79 respectively if these
UNION v. M. B. PATNAIK (Varadarajan, J.) 825

appeals had been disposed of against the Railway Administration on A
merits and that the Administration would, however, pay Rs. 12,000/-
to each of these person, namely, M. B. Patnaik, D. Sahu and S. C.
Misra. We accept this offer as being beneficial to these three res-
pondents in C.As. Nos. 2119-2121 of 1979 who will be entitled to
recover from the Railway Administration a sum of Rs. 12,000/-
each up to 22-1-81 on account of arrears of salary etc. payable to
them from the date of their suspension.

V.D.K . Appeals allowed.

•

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