JUDGMENT Sunil Ambwani, J.
1. Petitioner has prayed for quashing the orders dated 5.12.1985 passed by the Commandant/Railway Protection Force. Northern Railway, Lucknow, by which he was removed from service ; order dated 8.4.1987 rejecting the appeal by Deputy Inspector General/ Railway Protection Force, Northern Railway, Baroda House, New Delhi and order dated 5.7.1989 dismissing the revision of the petitioner by Director General/ Railway Protection Force, Railway Board, New Delhi.
2. I have heard Ms. Suman Sirohi, learned counsel for the petitioner and Sri Lalji Sinha, learned counsel appearing on behalf of the respondents.
3. Petitioner was a member of the Railway Protection Force. Northern Railway and was posted as Rakshak at Varanasi. On 26.9.1983/ 5.10.1983, the petitioner was served with charge-sheet No. E/DC/5/BSB-64 (44), in an enquiry contemplated under Rule 44 of the Railway Protection Force Rules, 1959, after holding preliminary inquiry pertaining to the theft of twenty one bags of wheat from wagon No. SR 12700 Ex. Hardoi to Canning stabled in Zafrabad siding on 29.9.1982. The charge read as follows :
"Head Rakshak Ram Sagar Singh and Rakshaks Kamla Prasad Verma, Lalta Prasad, Kashi Nath Misra and Jia Lal Pandey of 36 Coy. Faizabad are charged with serious misconduct, gross remissness and unfit for the force in that while posted at Zafrabad Railway Station during September. 1982, they committed theft of 21 bags wheat valued Rs. 2,625 approx, from wagon No. SR-12700 Ex. Hardoi to Canning stabled at Zafrabad siding on 29.9.1982 during duty hrs. of R.Ks. Lalta Prasad and Kamla Prasad Verma from 00 to 0.8.00 hrs. shift and during duty hrs. of Rakshak Kashi Nath Misra from 16.00 hrs. to 24.00 hrs. shift the same day and manipulated the seals of the Wagon."
4. Show cause notice was issued in response to which replies have been submitted by constables Lalta Prasad, Kamla Prasad Verma, Kashi Nath Misra, Jiya Lal Pandey and Hd. Const. Ram Sagar Singh. Constables Lalta Prasad, Kamla Prasad Verma and Kashi Nath Misra requested to take lenient view in the matter as the punishment proposed was too severe. Petitioner constable Jiya Lal Pandey did not plead guilty. He denied the charge, and submitted a reply.
5. Statements of Ram Pher Porter, Zafrabad Railway Station ; Sri S.N. Misra, A.S.M./BOY and Sri Pancham Ram S.M./BOY, were recorded in the enquiry. Sri B.L. Pal, Enquiry Officer, reported that constables Jiya Lal Pandey and Ram Sagar were provided sufficient time for giving their defence as well as for recording their statements but they did not avail the opportunity. He found that H.RK. Ram Sagar Singh and RK. Jiya Lal Pandey, RK. Lalta Pd. and RK. Kamla Prasad Verma are guilty of the charge but the said charge against RK. Kashi Nath Misra was not proved as he had handed over the charge to his successor on duty and had recorded the details of the charge given in the daily register and had not gone to Zafrabad along with A.S.I. P. R. Misra as he was sick and was in the sick list of A.D.M.O./J.N.U. He had performed his duty for only one day in the Zafrabad Yard on 29.9.1982 and during his duty hours, the seal of the wagon was not broken nor the wagon was resealed. With regard to other constables, including petitioner Jiya Lal Pandey, the enquiry officer found that he connived with the constables on duty to get the seal of wagon open and selling the stolen wheat to some Bihari women. He found that the theft was committed with the connivance of R.P.F. staff. Sri Pancham Ram, S.M./BOY, in his statement stated that on 16.9.1982, he received information from constable Kripa Shanker Singh to the effect that a theft was committed in wagon No. SR-12700 with the connivance of petitioner, and that the wheat had been sold for Rs. 1,200 to Bihari women sitting at the station. He reached Zafrabad Railway Station and found some women sitting in waiting room with wheat in bags and on enquiry being made from them, he found the fact to be correct. On enquiries from R.P.F. staff of Zafrabad, some bad elements assembled on the spot. Constable Jiya Lal'Pandey threatened the Bihari women and allowed them to run away with the wheat with the help of the assembled anti social elements. On enquiries, it was found that twenty one bags of wheat were stolen from the wagon.
6. On issuance of notice for proposed punishment, the petitioner again denied the charge and took a stand that the prosecution has failed to substantiate the charges against him. He submitted that there was no evidence that he had committed or was involved in stealing the aforesaid twenty one bags of wheat. He challenged the findings of the enquiry officer to be based on extraneous considerations, and inadmissible evidence and pleaded that some times the wagons due to defective loadings at the booking station, carried goods which did not tally with the packing slip.
7. The disciplinary authority considered his reply and concluded that if adequate opportunity was not given, nothing prevented constables Jiya Lal Pandey and Ram Sagar Singh to have represented to the higher authorities. In this case, the defence witnesses were not examined by the enquiry officer. No material was relied without giving any opportunity to the delinquent employees. He found that the standard of proof in a departmental enquiry is not to prove the guilt beyond reasonable doubt, but by the preponderance of probability and thus the finding cannot be characterised as perverse or unsupported by any relevant material. On the gravity of the charge, the disciplinary authority held that the petitioner, along with others, being protectors of railway property, have themselves committed theft of the same, and as such no lenient view of the matter could be taken. A review application against the appellate order dated 8-4.1987 was rejected by the Director General/R.P.F, under Rule 60 of the R.P.F. Rules. 1959 on the ground that it was filed beyond a period of one year and was as such time barred.
8. Sri Lalji Sinha, learned counsel for the respondents, has raised a preliminary objection relying upon Ranjeet Mal v. General Manager, Northern Railway, New Delhi and Anr., AIR 1977 SC 1701, to the effect that a writ petition against the order of dismissal is not maintainable unless Union of India is impleaded as necessary party. Learned counsel for the petitioner submitted that it is a technical defect and that the writ petition be not dismissed on this ground after the exchange of counter and rejoinder-affidavits in the writ petition. A short adjournment was sought and was granted. An application was moved on behalf of the petitioner to implead the Union of India.
The said application was allowed and the petitioner was permitted to implead the Union of India as a party-respondent.
9. Ms. Suman Sirohi, learned counsel for the petitioner submitted that the finding of the enquiry officer do not substantiate the charge against the petitioner. Petitioner Jiya Lal Pandey was not on duty at the time when the theft is alleged to have been committed. He was not given sufficient opportunity to lead evidence in defence violating principles of natural justice. There was no evidence to connect him with theft. Sri Kashi Nath Misra, who was also charged with committing the theft along with the petitioner, had preferred a revision petition which was allowed by the Chief Security Commissioner/ R.P.F. on 31.5.1995. She further submits that in the criminal case, a final report was submitted on 15.11.1982, which was accepted by the Chief Judicial Magistrate, Jaunpur, on 14.8.1983 and that the petitioner has been wrongly punished. In any case, she submitted that the punishment was grossly disappropriate to the charges alleged to have been established against the petitioner.
10. In reply, Sri Lalji Sinha, learned counsel for the respondents has submitted that petitioner was punished seven times in past by superior officers, for various offences before the removal from service w.e.f. 11.12.1985. He was allowed time to file written statement and was also given time to adduce defence evidence but he did not avail the opportunity. He submits that the effect of submission of final report in criminal case was also considered in the disciplinary proceedings, and that the final report does not create a bar to the disciplinary proceedings. Even assuming that the petitioner was not on duty, he was found to have connived with other constables in committing theft and as such misconduct was committed by him. The enquiry was fair. The petitioner was afforded full opportunity and that in the enquiry it was found that the petitioner was guilty of charges.
11. I have examined the record of the enquiry proceedings as annexed to the writ petition and the counter-affidavit. The petitioner was charged with serious misconduct, gross remissness and being unfit for the force in that while posted at Zafrabad Railway Station during September, 1982, the petitioner and other constables had committed theft of twenty one bags of wheat valued Rs. 2,625 approximately from wagon No. SR-12700 Ex. Hardoi to Canning stabled at Zafrabad Siding on 29.9.1982 during duty hours of R.K. Kashi Nath Misra from 16.00 to 24.00 hours shift on the same day by manipulating the seals of the wagon. There is a specific charge against the petitioner that he, along with H.RK. Ram Sagar Singh, RKs. Kamla Prasad Verma, Lalta Prasad and with help of local miscreants stole away 14 bags of wheat from wagon No. SR-12700 Ex. Hardoi to Canning stabled in Zafrabad siding on 16.9.1982 during the duty hours of RKs. Kamla Prasad Verma and Lalta Prasad. They again victimised the wagon the same day and committed theft of seven bags of wheat during the duty hours of RK. Kashi Nath Misra with active connivance of Rakshak Kashi Nath Misra of Jaunpur who was casually detailed to work at Zafrabad. The examination of witnesses revealed that the seal of the wagon was broken and that twenty one bags wheat were found stolen. There is no evidence or material against the petitioner which may connect him with the stealing of the wheat bags. The wagon was found to be thieved on 29.9.1982 during the duty hours of Rakshak Kashi Nath Misra from 16.00 hours to 24 hours shift on the same day. Ram Pher Porter of Zafrabad Railway Station proved the sealing and resealing of the wagon on the instruction of the Assistant Station Master, Zafrabad. Sri S.N. Misra, A.S.M./BOY, stated that on 30.9.1982, he had given memo to reseal the wagon and that the wagon was actually checked and resealed by Ram Pher Porter who had given the resealing report of the wagon. Sri Pancham Ram, S.M./BOY deposed that he was posted as Station Master Zafrabad from August, 1982 to June, 1983. Wagon No. SR-12700 was sided as its wheel was found to be excessively heated. He had given joint checking memo on 2.10.1982 and 7.10.1982, he had got the goods in the wagon recheckcd in presence of A.S.I. P.R. Misra by taking them out from the wagon in which 42 bags wheat were found damaged on account of humidity. The wagon was said to have actually contained 242 bags while actually 221 bags were found. This shortage was reported by him to the concerned authorities on 7.10.1982. In response to a question put by petitioner Jiya Lal Pandey, he stated that the work and conduct of the R.P.F. staff had no concern with the departmental enquiry. The only witness, who deposed against petitioner Jiya Lal Pandey, is Sri P.R. Misra, who was at that time posted as A.S.I. He verified the contents of his report dated 7.10.1982 in which he stated that on 30.9.1982 on information received by Ex. Constable Kamla Prasad Verma about the selling of wheat by R.P.F. staff to Bihari women for Rs. 1,200, he reached the station and found some women sitting in the waiting room with bags of the wheat and on enquiry, he found the incident to be correct. When he started making enquiry at Zafrabad station, some anti-social elements assembled and that the petitioner Jiya Lal Pandey allowed the women to run away by threatening and beating them up and that he also threatened the A.S.I. The wagon was thereafter checked along with A.S.M. In which twenty one bags were found to be short. In reply to the question put by Jiya Lal Pandey in cross-examination, he stated that on getting the information about the incident of theft, he took RK. Kashi Nath Misra, inspite of his being sick and reached Zafrabad for enquiry. There was no question of taking force from J.N.U. for his security and recovery of the goods whereas the entire force was also available at Zafrabad. The releaving of Kashi Nath Misra, was not noted in the diary nor any permission was taken from A.D.M.O./J.N.U. He deposed that the obstruction caused by Jiya Lal Pandey in the enquiry, by itself, proved his responsibility towards theft. The enquiry officer has concluded in his report that the time of theft from wagon cannot be ascertained, but the incident of theft was established which is proved by the statement of the station master.
12. There was no evidence, either oral or documentary, connecting the petitioner with the theft. None of the witnesses of the department deposed about actual theft or place of theft. The only evidence against the petitioner was that he made Bihari women to run away from the waiting room and thus obstructed in the enquiry. This fact, by itself, could not have allowed the enquiry officer to believe or to conclude that the petitioner was involved in the actual theft of twenty one bags wheat from the wagon. There was no charge that the theft took place during the duty hours of the petitioner. In the circumstances, before holding the petitioner guilty, it was incumbent upon the enquiry officer to have found whether the petitioner was connected with the charge of stealing and selling wheat from the wagon. The petitioner has taken this defence in reply to the enquiry officer's report and specifically pleaded that there was no evidence whatsoever connecting him with the theft. The disciplinary authority in the order of punishment has not adverted to his reply. The legal proposition in the order to the effect that in departmental enquiry, the guilt may not be proved beyond doubt, but only by preponderance of probability, cannot be doubted but even if the probabilities have to be taken into account, there was no material on record to suggest that the petitioner was involved in the theft. The charge against the petitioner was for conniving with other constables in stealing wheat from the wagon. From the entire evidence, considered by the enquiry officer, this fact was not proved at all either by strict standard or even by preponderance of probabilities. In appeal also, the appellate authority only considered that the enquiry was completed in accordance with Rules and the gravity of the charge. He did not consider the specific ground taken in appeal that there was no evidence to connect the petitioner with the charge of theft. The revision was dismissed as barred by time.
13. The submission of Sri Lalji Sinha, learned counsel for the respondents, that the petitioner was earlier punished seven times by the superior officer is a circumstance to be considered in awarding punishment, but cannot be a ground in support of proof of charge against the petitioner in the instant case. In this case, the charge against the petitioner was not substantially proved by any evidence or material on record. In the circumstances, the order of punishment suffers from gross errors of law.
14. The same charge was also the subject-matter in case Crime No. 558 of 1983, under Section 379, I.P.C. The police investigated the case and submitted a final report which was accepted by Chief Judicial Magistrate, Jaunpur, on 14.8.1983. Further constable Kashi Nath Misra filed revision which was allowed by the Chief Security Commissioner/R.P.F. on 31.5.1983. The learned counsel for the respondents has pointed out that in the revision of Kashi Nath Misra, the case is different inasmuch as inspite of the fact that he was exonerated by the enquiry officer, he was punished by the disciplinary authority. The revisional authority in Kashi Nath Misra's case concluded that though there is strong suspicion that the petitioner was in the know of the theft of wheat bags and possibly, it was done with his connivance and his conduct in the whole episode does not appear to be clean. Considering the charge-sheet, the statement of allegations and the finding of the enquiry officer, it cannot be said that the charges have been proved against him beyond a shadow of doubt. It was found that in so far as he is concerned, there has not been a thorough application of mind while framing specific charges against him with self contained statement of imputations of misconduct, list of witnesses, who deposed against him and list of documents relied upon. The same conclusion can also be drawn in the case of the petitioner and it can be justifiably said that whereas the case of Kashi Nath Misra was examined by the revisional authority by considering the evidence against him, in the case of the petitioner, none of the authorities considered the evidence against him or the fact whether such evidence or other material was sufficient to prove the charge against him.
15. The high standard of proof, required in a criminal case for proving the charges beyond reasonable doubt, does not apply to. the departmental proceedings. The standard of proof required is not of preponderance of probability and not proof of reasonable doubt. Evidence is not to be examined as a criminal trial and the proof of misconduct may, by Itself, be sufficient ground to award punishment. The strict rules of evidence under the Indian Evidence Act do not apply. The material, which is logically probative for a prudent mind is permissible and even the hear-say evidence could be examined provided it has reasonable nexus and credibility with a caution by the departmental authorities that they must carefully evaluate such material. The learned counsel for the petitioner has rightly relied upon State of Haryana v. Ratan Singh, (1977) 2 SCC 491 and J, D. Jain v. Management, State Bank of India, (1982) 1 SCC 143. In this case there was no evidence at all and there was total lack of any material evidence in support of the finding. Thus, the petitioner has made out case for interference in the matter.
16. The delay in revision cannot be a ground to deny the relief to the petitioner. It was open to the revisional authority to consider the facts and circumstances of the case and inspite of the fact, the revision was dismissed as barred by time. He could have exercised suo motu powers in revising the order. The revision petition should not have been dismissed only on the ground of barred by time.
17. In the aforesaid facts and circumstances, I find that there was no evidence against the petitioner which could associate petitioner with the charge of theft from the wagon, which took place at the time on which the petitioner was not on duty. The writ petition, therefore, deserves to be allowed.
18. The writ petition is accordingly allowed. The impugned order dated 5.12.1985 passed by the Commandant/Railway Protection Force, Northern Railway, Lucknow, by which he was removed from service ; order dated 8.4.1987, rejecting the appeal by Deputy Inspector General/Railway Protection Force, Northern Railway, Baroda House, New Delhi ; and order dated 5.7.1989, dismissing the revision by Director General/Railway Protection Force, Railway Board, New Delhi, are quashed. The petitioner shall be entitled for reinstatement in service. Since the petitioner has not worked during the period for which he was out of service, he shall be entitled only to half of back wages with all other consequential benefits of service, treating the break to have been spent on duty.
19. There will be not order as to costs.