Calcutta High Court (Appellete Side)
Manoj Kumar Singh vs Union Of India & Ors on 25 August, 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side
F.M.A. 839 of 2021
With
I.A. No. CAN 1 of 2021
Manoj Kumar Singh
Vs.
Union of India & Ors.
With
FMA 840 of 2021
With
CAN 1 of 2021
Sachin Kumar Mondal
Vs.
Union of India & Ors.
With
FMA 841 of 2021
With
IA No. CAN 1 of 2021
Shobhakant Kumar
Vs.
Union of India & Ors.
FMA 842 of 2021
With
IA No. CAN 1 of 2021
Rajnarayan Kumar
Vs.
Union of India & Ors.
FMA 843 of 2021
With
2
IA No. CAN 1 of 2021
Ashim Kumar Chaudhury
Vs.
Union of India & Ors.
FMA 844 of 2021
With
IA No. CAN 1 of 2021
Sri Gurudev
Vs.
Union of India & Ors.
With
FMA 845 of 2021
With
IA No. CAN 1 of 2021
Sri Hemant Kumar
Vs.
Union of India & Ors.
FMA 846 of 2021
With
IA No. CAN 1 of 2021
Rajanish Kumar Ranjan
Vs.
Union of India & Ors.
The Hon'ble Justice Subrata Talukdar
&
The Hon'ble Justice Lapita Banerji
For the Appellant in all the : Mr. Achin Kumar Majumder
Appeal Mr. Pratik Majumder
3
For the Respondents : Mr. Partha Ghosh
/Union of India Mr. Dilip Kumar Chatterjee
Hearing concluded on : 18.07.2022
Judgment on : 25.08.2022
Lapita Banerji, J.:-This writ appeal and application arises out of an
Order dated February 22, 2021, whereby, the Hon‟ble Single Judge
refused to pass an interim order staying the enquiry proceedings against
the appellant/writ petitioner initiated on the basis of the Memorandum
of Charges dated December 16, 2020.
2. The writ petitioner/appellant was a Constable in the Railway Protection
Force (RPF), Eastern Railway. While he was on duty, Railway materials of
approximately Rs.27 lakh were found to be stolen on June 18, 2019.
3. A criminal case was instituted against the writ petitioner in the Court of
Learned Chief Judicial Magistrate, Howrah being Case No. 3 of 2019
dated June 19, 2019 under Section 3(a) of the Railway Property
(Unlawful Possession) Act, 1966. The Enquiry Officer arrested the writ
petitioner on August 3, 2020 and referred the case to the Chief Judicial
Magistrate, Howrah. Subsequently, on August 8, 2020, the writ
petitioner was released on bail.
4. A separate disciplinary proceeding was initiated under the Railway
Protection Force Act, 1957 by issuance of a Charge Sheet dated
December 16, 2020 vide Memo No.RPF/CS/153(GD)/14/2020.Prior to
that, a preliminary enquiry was held by the Senior Divisional Security
Commissioner, RPF, Eastern Railway, Kolkata. A report was submitted
by him on June 25, 2019 to the I.G. cum Principal Chief Security
Commissioner holding the writ petitioner along with some other
officers/custodians as well as RPF personnel/constables guilty. A
detailed preliminary report was submitted by the Senior Divisional
Security Commissioner confirming theft.
5. After the preliminary enquiry report, the Assistant Security
Commissioner (ASC)/respondent No.4 conducted the enquiry
proceedings and issued the Charge Sheet dated December 16, 2020. The
document "impugned" in the writ petition is the "charge sheet".
6. A detailed representation/defence was submitted by the writ
petitioner/appellant on December 26, 2020 before the disciplinary
authority. Challenging the said Charge Sheet and, inter alia, praying for
cancellation/withdrawal of the same, the writ petitioner filed the present
Writ Petition being W.P.A. No. 3051 of 2021.
7. By the Impugned Order dated February 22, 2021 the Hon‟ble Single
Judge rejected the prayer for interim order on the following grounds:
(i) The Assistant Security Commissioner/respondent No.4 had the
power/authority to issue the Charge Sheet under Schedule - III
of the RPF Rules, 1987. Hence, no jurisdictional error could be
found vitiating the issuance of the Charge Sheet.
(ii) Since the proceedings with regard to enquiry had only
commenced, the question whether the allegations/issues in the
Charge Sheet were pre-judged, could not be ascertained at that
stage. It could only be ascertained after the enquiry was
concluded.
(iii) There is no bar to the departmental proceedings and the
criminal proceedings being held simultaneously.
8. The Hon‟ble Single Bench passed directions for affidavits on the
grounds aforesaid and did not stay the enquiry proceedings as initiated
by the Impugned Charge Sheet dated December 16, 2020. Hence, the
appeal.
9. Eight (8) Writ Petitions were filed by 8 Constables challenging their
involvement in the common incident of crime dated June 18, 2019
leading to issuance of the common Charge Sheet dated December 16,
2020 before the Hon‟ble Single Bench. All the eight (8) Writ
Petitions/Appeals are based on a common set of facts. Eight
Analogous Appeals were filed challenging the Common Order of the
Hon‟ble Single Bench passed on February 22, 2021 in separate Writ
Petitions filed by each of the appellants. Accordingly, 8 appeals being
analogous in nature are being dealt with by this common judgment.
10. When the present Appeal being FMA 839 of 2021 came up for hearing,
the Hon‟ble Division Bench by an Order dated November 8, 2021
directed as an Interim Measure that in the event of a final order being
passed in the departmental proceedings, the same "shall not be given
effect to without the leave of court".
11. The said Interim Order dated November 8, 2021 was modified by an
Order dated November 17, 2021, since it was brought to the notice of
the Court that the final order in the disciplinary proceedings (DP) was
already issued and communicated on November 8, 2021. Hence, the
Interim Order was modified to the extent that "the status quo as on date
shall continue until further orders".
12. Pursuant to the leave given by this Bench, a Supplementary Affidavit
annexing the Final Order of Removal dated November 8, 2021 passed by
the Security Commissioner/respondent No.3 and the detailed
defence/representation to the findings of the D&AR enquiry were
brought on record.
13. The findings of the enquiry officer was dated September 30, 2021.A
detailed representation/defence of almost 100 pages was submitted
before the Hearing Committee against the findings of the Enquiry
Officer, on October 11, 2021.
14. After considering the representation/defence of the appellant/writ
petitioner, the respondent No.3/Security Commissioner (SC) vide Memo
No. RPF/CS/153/M.K.S.-11/2020 dated November 8, 2021 passed a
speaking order as to why the charges against the writ
petitioner/appellant were proved under Rules 146.1, 146.2(i), 146(4),
147(i) & (ii) of RPF Rules, 1986 and 3.1(iii) of the Railway Service
Conduct Rules, 1968. The appellant/writ petitioner was found not guilty
of the charges under Rule 146.7(iii) of RPF Rules, 1987.
15. The respondent No.3/SC held that the "charges were very serious
in nature as it showed acts of gross indiscipline and serious misconduct
by a disciplined member of the Force".
Hence, by an Order dated November 8, 2021, major penalty of "removal
from service" was awarded by the respondent No.3/SC.
16. Mr. Majumder, Learned Counsel appearing for the appellant/writ
petitioner argued that the initial Charge Sheet has been issued against
the writ petitioner/appellant by the ASC/Respondent No.4, on December
16, 2020. The respondent No.4 is not the appointing authority of the
writ petitioner and, therefore, he could not have issued the Charge Sheet.
Hence, the same is vitiated in law.
17. He argued that the Charge Sheet dated December 16, 2020 clearly
indicated the mindset of the Disciplinary Authority. He prejudged the
issues at the time of framing of the charges. Since the preliminary
enquiry has been conducted by the Senior Divisional Security Officer, the
respondent No.4 being a subordinate authority could not act as the
disciplinary authority as there would not be any fair and impartial
enquiry.
18. Mr. Majumder further submitted that since the criminal
proceedings and the disciplinary proceedings (DP) were based on
identical set of facts and the witnesses before both the proceedings were
same, the DP should have been kept in abeyance by the Hon‟ble Single
Bench during the pendency of the criminal proceedings.
19. He contended that, the provisions of the Article 311(1) of the
Constitution of India have not been complied with. There has been
violation of the principles of natural justice and procedural
illegalities/irregularities were committed during the D.P. Also, Rule 153
of the RPF Rules, 1987 was violated. He urged that the Enquiry Officer
asked leading questions in cross-examination to the prosecution
witnesses as well as the defence witnesses which was not permitted in
law.
20. He argued that the main/prime allegations in the Charge Sheet
were not proved and the writ petitioner was held guilty for tarnishing the
image of the Force as he was arrested under Railway Property (Unlawful
Possession) Act, 1966/RP(UP) Act. The same was purportedly reported
in "Sangbad Pratidin" on August 5, 2020, but, despite repeated requests,
the writ petitioner was not given a copy of the said newspaper which
caused prejudice to his defence. Mr. Majumder invited this Court to
evaluate the evidence with regard to the questions put in cross-
examination and the documents relating to the call records of the writ
petitioner etc. He urged that the punishment awarded to the writ
petitioner/appellant was disproportionate to the gravity of the purported
crime committed by him.
21. In support of his contention, Mr. Majumder relied on the cases of:
(a) Union of India &Ors. vs. B.V.Gopinath, reported in AIR
2014 SC 88 at Paragraphs 39, 40, 46 and 49, and
(b) State of Tamil Nadu represented by Secretary to
Government (Home) Vs. Promod Kumar IPS and another
reported in AIR 2018 SC 4060 at paragraphs 18 and 19 for
the proposition that the Charge Sheet could be only issued
by the appointing authority or with the approval of the
appointing authority. Article 311(1) of the constitution of
India ensures that no person who is member of a Civil
service of the Union or all India service can be dismissed or
removed by an authority subordinate to that by which he
was appointed. Article 311(2) ensures that no Civil Servant is
dismissed or reduced in rank except after an enquiry, held in
accordance with the Rules of Natural Justice.
22. Satish son of Ram Prasad Agnihotri vs. Union of India decided
on May 1, 2020, "Special Civil Application" No. 466 of 2019 of Gujarat
High Court was cited for the proposition that the initiation of the
disciplinary proceedings by an officer not competent under the RPF
Rules, 1987 deserve to be vitiated.
23. Next reliance has been placed on Kumaon Mondal Vikas Nigam
Ltd. Vs. Girija Shankar Pant reported in 2000(8) SLR 769 for the
proposition that the language of the purported charge-sheet indicated the
closed mind set of the disciplinary authority. The disciplinary authority
confirmed the conclusion of guilt at the time of issuing the charge-sheet
and the same was tainted with bias.
24. In the case of ORYX Fisheries Private Limited vs. Union of India
and others was reported in (2010) 13 SCC 427, it was held that a quasi-
Judicial authority, while acting in the exercise of statutory power must
act fairly, with an open mind while initiating show cause proceedings.
While issuing the charge-sheet without telling the delinquent the charges
the authority could not draw a definite conclusion of his alleged guilt. It
was also held that the show cause notices could not be read hyper-
technically. The order of cancellation of the registration certificate only
quoted from the show cause notices and was a non-speaking order and
so was held to be non-est in the eye of law.
25. Mr. Majumder cited the decision in Balbir Singh Sidhu Vs. Union
of India and others passed by a Co-ordinate Bench of this Hon‟ble High
court in FMA No. 3521 of 2014 dated August 31, 2017 for proposition
that the disciplinary proceedings were required to be stayed and kept in
abeyance till the disposal of the enquiry proceedings.
26. Reliance is placed on G. ValliKumari vs. Andhra Education
Society& Ors. reported in (2010)2 SCC 497 for the proposition that the
punishment of removal was disproportionate to the appellant since he
was not found guilty of any serious misconduct. There was a complete
violation of natural justice in the manner in which the disciplinary
proceedings were conducted.
27. In Jai Bhagwan vs. Commissioner of Police reported in (2013) 11
SCC 187, it was held that a reduction of the rank of the appellant to the
grade of the constable would have been the appropriate punishment
instead of dismissal from service so the punishment was
disproportionate to the misconduct. It was held that in ordinary course
the matter should have been remitted back to the disciplinary authority
for passing a fresh order of punishment. The said course was avoided
because the order of dismissal was passed at a distant point in time. The
order of dismissal was passed in 2001 and the appeal was decided in
2013.
28. In Collector Singh vs. L.M.L. Limited, Kanpur reported in (2015)
2 SCC 410 it was held that the punishment of dismissal from service was
disproportionate to the misconduct of using abusive language against the
superior officer. No straightjacket formal could be evolved and each case
had to be considered on its own fact.
29. In State Bank of India and others vs. D.C. Aggarwal and
another reported in 1992(5) Service Law reported of 598, it was held that
taking action against a employee on confidential documents which is the
foundation of the order exhibits complete misappreciation about the
procedure that is required to be followed by the disciplinary authority.
Reliance on a central vigilance report as the basis of proving the charges
and not handing it to the delinquent employee led to the quashing of the
order.
30. Mr. Ghosh, appearing for the respondents, argued that the
disciplinary proceedings have already been concluded. The same has
culminated in the Order of Removal dated November 8, 2021, passed by
the respondent No.3/SC. The said Order is appealable under Rule 212
of the RPF Rules, 1987. The Order of the Appellate Authority can also be
reviewed under Rule 219 of 1987 Rules.
31. He submitted that under Schedule - III of the 1987 Rules, the
Assistant Security Commissioner (ASC) was entitled to issue a charge
sheet in respect of major punishments. The relevant provision was Rule
153 of the 1987 Rules. Besides suspension, ASC could also impose
following major punishments:
Sl. No.5 - Reduction in rank or grade;
Sl. No.6 - Reduction to a lower stage in the existing scale
of pay.
Therefore, no procedural breach has been committed by the
respondent No.4 in issuing the Charge Sheet or conducting the
enquiry proceedings.
32. Schedule - III of the RPF Rules, empowers the Divisional Security
Commissioner/Security Commissioner/Commanding Officer/Senior
Security Commissioner to pass an order of dismissal or removal of a
Constable. In the instant case, the preliminary enquiry was conducted
by the Divisional Security Commissioner, disciplinary proceedings
conducted by ASC/Respondent No.4 and the "Order of Removal" was
passed by the Security Commissioner (SC)/Respondent No.3 who is the
competent authority. Therefore, no breach of statutory procedure or rule
was committed.
33. Considering the gravity of the offence, the ASC/respondent No.4
forwarded the file to the SC/respondent No.3. The respondent No.3/SC
after applying his mind independently to the findings of the Enquiry
Officer and upon consideration of the representation/defence passed the
"Order of Removal". Also, the writ petitioner/appellant failed to explain
as to how he was prejudiced by the Charge Sheet being issued by the
respondent No.4/ASC.
34. Under Section 9 of the RPF Act, 1987, any superior officer may
impose punishment including suspension, removal and dismissal upon
any "Enrolled Member," subject to Article 311 of the Constitution of
India. The writ petitioner is an "Enrolled Member" of the RPF i.e. a
Constable.
35. As per Rule 151.1 the disciplinary authority in respect of any
"Enrolled Member" of the Force shall be the authority specified in
Schedule - III of the Rules. As per Schedule - III, the respondent
No.4/ASC is the disciplinary authority and had been conferred with the
power of suspension as well as the power to award a major punishment
e.g. reduction rank or pay in the existing grade. Therefore, the issuance
of Charge Sheet and initiation of disciplinary proceedings are within the
jurisdiction and authority of Respondent No.4/ASC.
36. Rule 152.2 clearly provides that a disciplinary authority competent
to impose minor punishment may also initiate DP for imposition of any
major punishment notwithstanding the fact that the disciplinary
authority cannot impose such major punishment. Under Rule 154.2 if a
disciplinary authority is of the opinion that the punishment warranted is
not within its competence, then, the records of the enquiry shall be
forwarded to the appropriate disciplinary authority.
37. He submits that no violation of Rule 153 relating to the procedure
to be followed for imposition of major punishments have been made. In
other words, in the present case all the procedures laid down under Rule
153 were followed. After a preliminary enquiry was made by a fact-
finding authority in June 2019, investigations were made. The Charge
Sheet was issued on December 16, 2020.. The confidential
report/preliminary findings of the Senior Divisional Security Officer
dated June 25, 2019 was handed over to the appellant/writ petitioner.
Based on the preliminary report the Charge Sheet was issued on
December 16, 2020. A detailed defence/representation was made
against the allegations made in the Charge Sheet by the appellant.
The appellant attended all the dates of enquiry proceedings, got the
opportunity to cross-examine all the witnesses presented against him,
inspected the records/documents produced during the enquiry and got
copies of the evidences/statements of the prosecution witnesses.
Thereafter, at the second stage upon the findings of the Enquiry Officer,
the appellant/writ petitioner, also got a chance to make a second
defence/detailed representation. The witnesses were examined and
cross-examined prior to submission of his second defence/written
statement. 11 witnesses were produced by the appellant during the
enquiry. He also produced various defence documents.
38. Mr. Ghosh contended that the appellant could not establish that
all the witnesses in DP and criminal case are exactly same and identical
or that the charges in both the cases are same and identical. There are
as many as 33 witnesses in the criminal case out of which only 4 were
common ones. Though the criminal case was initiated on June 19,
2019, not much progress has been made in it. The criminal case under
Section 3(a) of the RP(UP) Act, 1966 was for the purpose of punishing the
accused persons for theft of railway property, in case the crime was
established. Whereas, the DP was initiated for serious lapses and
negligence in the performance duties by the writ petitioner/appellant and
also for tarnishing the image of the Force.
39. Having considered the rival submissions of the parties and the
material placed on record, this Court is of the view that:
(i) There was no jurisdictional error in the respondent No.3/Assistant
Security Commissioner (ASC) in issuing the Charge Sheet dated
December 16, 2020 and also in conducting the disciplinary
proceedings as the Enquiry Officer.
(ii) Schedule - III of the RPF Rules clearly stipulates that the Assistant
Security Commissioner is a disciplinary authority and can award
major punishments like reduction of rank/scale of pay in the same
rank to an enrolled member/Constable. Upon assessing the gravity
of the misconduct, reduction of scale of pay/rank was not
considered to be sufficient punishment by the ASC/ Respondent
No.4 and he transmitted the file to the SC/Respondent No.3 for
awarding the appropriate punishment of "Removal". The major
punishment of "Removal" has been awarded by the respondent
No.3/Security Commissioner (SC) as per Schedule III of the RPF
Rules, 1987.No violation of the statutory provisions/rules can be
urged in that respect.
(iii) Furthermore, there are several decisions including that of the Apex
Court which clarify the position:
(a) In P.V. Srinivasa Sastry and others vs. Comptroller and
Auditor General and others reported in(1993)1 SCC 419,
paragraph 4, it was held:
"Article 311(1) does not say that the departmental proceeding
must be initiated only by the appointing authority. However,
it is open to Union of India or a State Government to make any
rule prescribing that the proceeding against any delinquent
officer shall be initiated by an officer not subordinate to the
appointing authority. Any such rule shall not be inconsistent
with Article 311 of the Constitution because it will amount to
providing an additional safeguard or protection to the holder
of a civil post. But in absence of any such rule, this right or
guarantee does not flow from Article 311 since initiation of a
departmental proceeding per se does not visit the officer
concerned with any evil consequences. At the same time this
will not give right to authorities having the same rank as that
of the officer against whom proceeding is to be initiated to
take a decision whether any such proceeding should be
initiated. In absence of a rule, any superior authority who can
be held to be the controlling authority, can initiate such
proceeding. In the present case it has not been shown that
any rule prescribes that the Accountant General, who was the
appointing authority of the appellant - Auditors, alone could
have initiated a departmental proceeding."
(b) In Director General, ESI and another Vs. T. Abdul Razak
reported in(1996)4 SCC 708 at paragraph 13, it was held:
"It is not necessary that the authority competent to impose
the penalty must initiate the disciplinary proceedings and
that the proceedings can be initiated by any superior
authority who can be held to be the controlling authority
who may be an officer subordinate to the appointing
authority. The Regional Director, being the officer-in-
charge of the region, was the controlling authority in
respect of the respondents. He could initiate the
disciplinary proceedings against the respondents even in
the absence of specific conferment of a power in that
regard."
(c) In P. Man Vs. The Chief Engineer Tamil Nadu
Electricity Board Coimbatore & another reported in 1995
LAB I.C. 2401 (MAD) the same view of the Apex Court has
been reiterated. Para 4 read thus:-
"............. There must clear indication that the punishment
alone has to be imposed by the named punishing authority
and the disciplinary proceedings can be initiated by some
other authority. Therefore, it is not possible to find fault with
the initiation of disciplinary proceedings. In fact, the Supreme
Court has now taken the view that so long as the service
Rules do not contain a Rule that the departmental proceedings
should be initiated only by the punishing authority, the same
cannot be nullified under Article 311(1) of the Constitution of
India. Reference may be usefully made in P.V. Srinivasa
Sastry v. Comptroller and Auditor General, (AIR 1993 S.C.
1321) and Register of Co-operative Societies, Madras, v. F.X.
Fernando (1994) 2 S.C.C. 746. Therefore, I reject the first
contention of the learned counsel for the petitioner."
(iv) The aforesaid decisions clearly hold that unless there are contrary
service rules regulating the terms of service, the appointing
authority need not always be the disciplinary authority.
(v) There is a clear indication that the punishment alone has to be
imposed by the named punishing authority and the disciplinary
proceedings can be initiated by some other authority. Therefore, it
is not possible to find fault with the initiation of disciplinary
proceedings. In fact, the Supreme Court has now taken the view
that so long as the service Rules do not contain a Rule that the
departmental proceedings should be initiated only by the
punishing authority, the same cannot be nullified under Article
311(1) of the Constitution of India.
(vi) The cases of B.V. Gopinath (Supra) and Promod Kumar IPS
(Supra) do not come to the aid of the appellant since the
ASC/respondent No. 4 can also issue the charge sheet as a
superior authority of the appellant and also under Schedule III of
the RPF rules as the authority in the instant case. In both the
cases the mandatory requirement of Rule 14 of Central Civil
Service (Qualification Control and Appeal) Rules, 1965 which is
Pari Maleria with Rule 8(4) of the All India Service (Discipline and
Appeal) Rules, 1969 mandating the disciplinary authority to "draw
and/or cause to be drawn up" the charge memo was violated.
Paragraph 46 of B.V. Gopinath (Supra) has relied upon the
judgment of Shrinivasa Sastry(Supra) on the issue that Article
311(1) does not stipulate that departmental proceeding must be
initiated only by the appointing authority.
(vii) The said judgment of Satish Agnihotri(Supra)can be distinguished
as Rules 152.2 and 152.4 of RPF Rules were not considered. It
was also not relied upon by another Division Bench judgment
passed by the High court of Judicature at Bombay in Civil
appellate jurisdiction Writ Petition No. 310 of 2019 (Sanjay
Nhobat Singh vs. Union of India. This Court agrees with the
reasonings of the Hon‟ble Bombay High Court in Sanjay Nhobat
Singh having regard to the principles laid down in the judgments
of Hon‟ble Supreme Court cited above.
(viii) The Hon‟ble Single Judge held by the Impugned Order dated
February 22, 2021 that in the case of Cap. M. Paul Anthony vs.
Bharat Gold Mines Limited & Anr. reported in (1999) 3 SCC 679
at paragraph 22, it was decided that there was no bar to
departmental proceedings and criminal proceedings being
conducted simultaneously. The Court on facts found that the
charges and the witnesses could not be said to be identical,
whereby, the disciplinary proceedings should be kept in abeyance
till the disposal of criminal proceedings.
(ix) Factually the instant appeal is far removed from Balbir Singh
Sidhu's case(Supra). The Criminal proceedings in the instance
case has 33 witness whereas only four prosecution witness (2,3,4
and 5) were argued to be common witness. The Criminal case was
for theft, whereas, the DP was for negligence/dereliction of duty
leading to tarnishing of the image of the Force. As noted by the
Hon‟ble Single Judge it is now a well settled principle of law after
the Apex Court‟s Judgment in the case of Cap. M. Paul Anthony
(Supra) at paragraph 22 that there is no bar to departmental
proceedings and criminal proceedings being conducted
simultaneously.
(x) The question whether the Enquiry Officer could put leading
questions to the prosecution witness in examination-in-chief to
prove the prosecution case and whether the appellant/"delinquent"
employee was given a chance to cross the witness after the enquiry
authority put questions to the prosecution witness to arrive at the
truth/"to obtain clarification" are questions where the evidence
needs to be evaluated by the appellate authority. The writ court is
limited in its jurisdiction to sift the evidence and re-appreciate the
same. Evaluation of the evidence is within the scope of the
jurisdiction of Appellate Authority.
(xi) On the question of breach of principles of Natural Justice, this
Court is of the view that given the fact that detailed
representations were considered at the time of conducting of the
enquiry as well as after the findings of the Enquiry Officer and
upon production of several witnesses along with 11 defence
witnesses and cross-examination of prosecution witnesses, the
Enquiry Officer came to his findings. Every opportunity of hearing
was given to the writ petitioner/appellant to present his case.
(xii) The appellant was present in each and every hearing and
admittedly inspected the documents barring the „News Paper‟
which was in any event a document that has been circulated in
public. It was not a document that was within the
possession/custody of his employers. Therefore, there is no
violation of the principles of Natural Justice in the present case.
(xiii) Further, the charge of tarnishing the image of the Railway
Protection Force was not only proved on the basis of the newspaper
"Sangbad Pratidin", but, also on the basis of other evidences
oral/documentary. Therefore, the enquiry cannot be vitiated on the
ground of "non-production" of the Newspaper "Sangbad Pratidin".
(xiv) In GirijaSankar Pant (Supra) the Managing Director of the
company withdrew the duties of the General Manager (GM) on 27
September 1993.On 28 September, 1993 all financial and
administrative powers of the GM were withdrawn with immediate
effect. On 1st October, 1993 a show cause cum charge-sheet with
13 allegations were issued by the enquiry officer was under the
direct supervision of the Managing Director (MD).The General
Manager‟s request for supply of documents necessary for his
defence went unheeded. There was no Presenting Officer. No
opportunity of hearing was given. Defence witnesses were not
allowed. No opportunity was given to cross-examine the
prosecution witnesses despite specific request. No hearing was
held on the scheduled date of hearing i.e. November 25, 1993
because the MD was not available. The GM had to present himself
before the MD at 4 pm on November 26, 1993. An order consisting
of 18 pages was delivered at the residence of the GM (writ
petitioner) by about 7:30 p.m., on the same date i.e. November 26,
1993. In such a case, it was held that there was a positive and
cogent evidence of bias and the letter of termination was held to be
unsustainable.
(xv) In the present case a detailed representation was made against the
memorandum of charges as well as against the findings of the
Enquiry Officer. Several witnesses were examined and cross
examined. Upon consideration of the oral and documentary
evidence, the disciplinary authority found only some of the charges
to be proved. Several charges were held not to be proved due to the
lack of documentary evidences. Therefore, the argument that with
a closed mindset and bias, the DP was conducted is
unsustainable. The case of Girija Shankar Pant (Supra )and
ORYX Fisheries (Supra) are factually different from the present
case and does not aid the appellant.
(xvi) The misconduct in ValliKumari(Supra)related to the appellant
reporting to duty 3 days after the expiry of leave period without
prior permission. The same cannot be equated with negligence in
performance of duty that led to theft of approximately 27 lakhs of
Railway materials which led to tarnishing of the Force‟s image.
Similarly in the case of Jai Bhagwan(Supra) the punishment was
reduced by the Court instead of the Disciplinary Authority because
it was ordered in a distant point in time. Such is not the situation
in the present case. The appropriate authority to decide whether or
not the punishment was disproportionate to the misconduct
proved, is the Appellate Authority, given the facts of the present
appeal.
(xvii) The observation in Collector Singh(Supra) does not come to the
aid of because the facts are distinguishable.
(xviii) The case of State Bank of India(Supra) does not come to the aid of
the appellant since no report on confidential document was
obtained from any third party behind the appellant‟s back, based
on which the order of the disciplinary authority was passed. A fair
opportunity was granted to the appellant to show cause why the
charges framed against him, should not be proceeded with. Also
after the findings were made by the Enquiry Officer, second
representation/defence made by the appellant was considered. The
"newspaper report" that was allegedly not produced, was one of the
evidences relied on by the Enquiry Officer and not the
primary/sole document. In any event, a newspaper report cannot
be held to be a confidential document in sole custody and
possession of the employer.
(xix) The issues with regard to the evidence not being evaluated properly
by the disciplinary authority or the punishment being
disproportionate to the gravity of the offence should be agitated
before the appellate authority as per the statutory rules as the said
issues do not go to the root question of jurisdictional error.
(xx) It is well settled that a writ court is not a court of appeal in cases
of departmental proceedings.
40. In the light of the discussions above, this court holds that there is
no reason to interfere with the order dated February 22, 2021 passed by
the Hon‟ble Single Bench. There is no jurisdictional error in the Charge
Sheet being issued by the Assistant Security Commissioner/Respondent
No.4 or the disciplinary proceedings being conducted by him. The major
punishment of Removal has been passed by the respondent No.
3/Security Commissioner who is the appropriate authority. There is no
reason to set aside the impugned Charge Sheet dated December 16,
2020which culminated into the final order of Removal dated November
8, 2021in the disciplinary proceedings. In case the appellant is aggrieved
by the evaluation of the evidence or by the quantum of punishment as
opposed to the gravity of the misconduct, the appellant may approach
the Appellate Authority in accordance with the statutory rules. In case
the appellant approaches the Appellate Authority he shall be entitled to
seek condonation of delay in preferring the appeal. The appeal being
FMA No. 839 of 2021 along with the application for stay being CAN 1 of
2021 are dismissed.
With analogues appeals FMA No. 840 of 2021 along with CAN 1 of
2021 with FMA No. 841 of 2021 along with CAN 1 of 2021 with FMA
No. 842 of 2021 along with CAN 1 of 2021 with FMA No. 843 of 2021
along with CAN 1 of 2021 with FMA No. 844 of 2021 along with CAN
1 of 2021 with FMA No. 845 of 2021 along with CAN 1 of 2021 with
FMA No. 846 of 2021 along with CAN 1 of 2021 stand accordingly
dismissed.
41. However, there will be no order as to costs.
42. Parties shall be entitled to act on the basis of a server copy of the order
placed on the official website of the Court.
43. Urgent Xerox certified photocopies of this judgment, if applied for, be
given to the parties upon compliance of the requisite formalities.
I agree.
(Subrata Talukdar, J.) (Lapita Banerji, J.)
