Shailendra Kumar vs Union Of India & Ors
2021 Latest Caselaw 734 Cal

                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE

BEFORE:
The Hon'ble Mr. Justice Ravi Krishan Kapur

                           W.P.A. NO.19950 of 2009
                               Shailendra Kumar
                                      -vs-
                              Union of India & Ors.



For the Petitioner              : Mr. Achin Kumar Majumder

For the Respondents             : Mrs. Aparna Banerjee

Heard on                        : 20.01.2021

Judgment on                     : 29.01.2021



Ravi Krishan Kapur, J.

1. The grievance of the petitioner is directed against a disciplinary

proceeding which was initiated by the respondent authorities. In

particular, the petitioner assails a charge sheet dated 3 January 2008

issued by the Railway Protection Force. The petitioner also challenges

an order of the Disciplinary Authority dated 17 December, 2008 and a

consequential order of the Appellate Authority dated 18 September,

2009 respectively.

2. The brief facts of the case are that the petitioner was appointed as an

Inspector of the Railway Protection Force, Eastern Railways and was

posted as an Inspector at the Train Escort Coy at Asansol. The crux of

the allegations against the petitioner was that while serving as an

Inspector Railway Protection Force, Crime Intelligence Bureau at

Malda, he failed to collect information about stolen cables from Wagon

No. SR BCXC-32999 which was detained at the Malda Yard, West

Bengal, and it is alleged that at the relevant point of time the

petitioner failed to inform the Divisional Security Commissioner,

Railway Protection Force, Malda of an incident of theft.

3. In that background, pursuant to the Rules and Regulations an

enquiry officer was appointed by the Disciplinary Authority and

proceedings were initiated against the petitioner. Subsequently, a

Joint Enquiry Committee comprising of prominent officers of the

Railway Protection Force conducted an enquiry and submitted a

report dated 8 August 2007 before the Chief Security Commissioner,

Railway Protection Force, Malda and the Divisional Security

Commissioner Railway Protection Force Malda Town wherein a case of

short loading was made out.

4. The petitioner however alleges that the said report by the respondent

authorities was never considered. Similarly, the petitioner highlights

several documents which formed part of the exhibits of the enquiry

procedure but were never considered although according to the

petitioner those were his best defence to prove his innocence.

5. Thereafter, the petitioner received a second show cause notice dated

22 September 2008. The petitioner duly replied to the same by a

detailed representation dated 9 October 2008.

6. The petitioner assails the order of the Disciplinary Authority dated 17

December, 2008 primarily on the ground that the same does not

contain any reasons whatsoever. It is further submitted on behalf of

the petitioner that the Disciplinary Authority whilst passing the order

dated 17 December, 2008 did not consider the relevant evidence and

displayed total non-application of mind. The petitioner also alleges

bias and submits that the Disciplinary Authority had acted in a

premeditated manner.

7. Thereafter, the petitioner preferred an appeal against the order dated

17 December, 2008 which was also rejected by the Appellate Authority

on 18 September, 2009. The petitioner assails the order of the

Appellate Authority and submits that the same has been passed in

violation of Rule 217(3) of the Railway Protection Force Rules, 1987.

8. It is further submitted on behalf of the petitioner that the entire

proceedings conducted by the Enquiry officer, the Disciplinary

Authority and the Appellate authority were in violation of the principles

of natural justice. It is also submitted on behalf of the petitioner that

none of the written representations dated 5 September, 2008 and 18

September 2008 submitted by the petitioner were considered by the

respondent authorities in the impugned orders. The petitioner also

submits that the entire report of the Enquiry officer affirmed by the

Disciplinary Authority and the Appellate Authority was based on

assumptions and conjectures, without any cogent evidence against the

petitioner.

9. The petitioner also relied on a supplementary affidavit filed by him

alleging that the Divisional Security Commissioner, Railway Protection

Force, Malda was also charge sheeted for the said incident for major

penalty for failing to prevent theft and register a case as yard theft and

affix responsibility. During the investigation, the Divisional Security

Commissioner, Malda in his written submission had mentioned that it

was not a case of theft at the Malda Yard but a case of short loading.

The Director General, Railway Protection Force upon hearing the

Divisional Security Commissioner in person came to the conclusion

that there was no evidence for fixing responsibility as the place of

occurrence was not conclusively established to be Malda Division.

Thus, the charges levelled against the Divisional Security

Commissioner, Eastern Railway were dropped as it was admitted in the

Government Railway Police investigation that the crime scene could not

be localised. Accordingly, it is argued on behalf of the petitioner that

there has been discrimination and the impugned actions of the

respondent are in violation of Article 14 of the Constitution.

10. I have considered the pleadings filed on behalf of the parties. I am of

the view that there are no grounds whatsoever to justify any

interference with any of the impugned orders. The petitioner was given

ample opportunity and appropriate enquiries were conducted before

issuance of the charge sheet. Moreover, a special report of the case

enquiry was conducted by the Competent Authority which revealed that

the petitioner had failed to collect intelligence about the theft of 3079

meter railway cables which was valued at approximately at Rs.

60,30,903/-. The petitioner was afforded full and adequate opportunity

before passing of the impugned orders. The order of the Disciplinary

Committee was based on evidence which had been lawfully collected

and appreciated. The Appellate Authority in affirming the order of the

Disciplinary Authority had gone into the merits of the case and had

considered the submissions made by the petitioner.

11. I am also of the view that although the Disciplinary Authority in its

order dated 17 December 2008 had alleged that the Enquiry Officer

failed to communicate or justify his findings conclusively, the enquiry

report records all the evidence necessary to justify its findings and the

report takes note of all the charges levelled against the petitioner

alongwith the depositions of the witnesses. It is clear from the report

that the enquiry officer reached conclusive findings based on the

evidence gathered and the depositions of the witnesses.

12. It is well settled that the concept of fair play in action is also the basis

of the conducting an enquiry. It is evident from records that the

petitioner was a given a fair chance to put forward its defence before

the Enquiry Officer as well as the Appellate Authorities. The Enquiry

Officer thereafter recorded his findings to clearly substantiate his

conclusions arrived at by him in respect of all the charges levelled

against the petitioner.

13. I also find that the Disciplinary Authority affirmed the findings of the

Enquiry Officer by its order dated 17 December 2008. I find no anomaly

in the passing of the said order nor is the order perverse for any

reasons whatsoever. The order of the Disciplinary Authority is a

reasoned order and therefore I find no reason whatsoever to interfere

with the same. Moreover, the Appellate Authority also considered the

enquiry report and the order of the Disciplinary Authority and

reaffirmed the same.

14. Insofar as the contents of the supplementary affidavit are concerned, I

am of the view that ordinarily, a Writ Court does not enter into a

factual enquiry and then adjudicate upon the correctness or otherwise

of the fact. Reappraisal of evidence is not permissible. This principle

has been repeatedly reiterated in several decisions of the Hon'ble

Supreme Court as well as the different High Courts [See-Management

Madurantakam Co-operative Sugar Mills vs. S. Viswanathan (2005) 3

SCC 193 paragraph 12, Dr. N. Balakrishnan vs. Nehru Memorial

Museum and Library Society & Others (2010 SCC OnLineDelhi 3717

paragraph 21), Principal Secretary, Govt. of A.P & Anr Vs M.Adinarayana

(2004) 12 SCC 579]. I find no exceptional circumstances warranting

interference with the impugned orders.

15. I also find that both the Disciplinary and the Appellate Authority in

passing the impugned orders have complied with the provisions of Rule

153 of the Railway Protection Force Rules, 1987. The order of the

Disciplinary Authority also specifies the period for which the

petitioner's increment is to be withheld following section 157(3) of The

Railway Protection Force Rules, 1987. It is well settled that judicial

review lies if there exists an error of law apparent on the face of the

records and it is only if the statutory body uses its powers in a manner

not provided in the statute or passes an order without application of

mind may a Writ Court interfere. [Mathura Prasad Vs Union of India

and Ors. (2007) 1 SCC 437]. However, there is no case made out for

interfere at all.

16. I also do not find any ground to interfere with the punishment imposed

against the petitioner. A punishment should be proportionate to the

misconduct found in the case and the authority is to arrive at a

conclusion of proportionate punishment upon its conscious application

of mind. Since I find that the Appellate Authority has complied with all

Rules and Procedures laid down under the Railway Protection Force

Rules, 1987, I find no reason to interfere with the quantum of

punishment awarded to the petitioner.

17. For the foregoing reasons, I find no reason to interfere with the

impugned orders. WPA No 19950 of 2009 is dismissed. However, there

shall be no orders as to costs.

18. A certified copy of this judgment, if applied for, be given to the parties

upon compliance with all necessary formalities.

(Ravi Krishan Kapur, J.)