Bd Shri Amit Kumar vs Union Of India & Ors
2022 Latest Caselaw 1685 Cal

                                    W.P.A. 21869 of 2019
159   31.03.2022
rkd   Ct.15
bd                                     Shri Amit Kumar
                                             -vs-
                                     Union of India & Ors.

                   Mr. Achin Kumar Majumder
                                                           ....for the petitioner.
                   Mr. Subhankar Chakraborty,
                   Mr. Saptorshi Bhasttacharjee,
                   Ms. Ruchira Manna
                                                         ....for the respondents.

In the present writ petition challenge has

been thrown to the suspension order dated 29th

August, 2019 and a charge sheet dated 24th

October, 2019 on the score that a preliminary

enquiry was conducted by the concerned authority

of South Eastern Railway against the petitioner

dehors Rule 248.1 of the Railway Protection Force

Rules, 1987(hereinafter referred to "Rules of 1987").

Mr. Achin Kumar Majumder, learned

advocate, appears on behalf of the petitioner and

has submitted that at the time of conducting the

preliminary enquiry as it appears from the

statement of allegations being part of the charge-

sheet dated 24th October, 2019 neither Controlling

Officer nor the officer of or above the rank of

Security Commissioner held enquiry and a report

has been furnished based on which such impugned

charge sheet was issued which is not permissible

under the said relevant Rule of 248.1. According to

Mr. Majumder, learned advocate, since it is a case

of public complaint based on which a proceeding

has been initiated against the petitioner such

preliminary enquiry needs to be conducted strictly

in terms of said Rule of 248.1.

In addition thereto, another limb of

submission of Mr. Majumder, is against the

suspension order dated 29th August, 2019 which

according to the petitioner has been passed not in

relation to disciplinary proceeding but such

suspension order is related to criminal proceeding.

It has further been contended that in view of Rule

135 of the Rules of 1987 there is a requirement of

issuing charge sheet within thirty days from the

date of suspension after which the member of the

force against whom suspension order has been

clamped shall be deemed to have been reinstated in

the absence of such charge-sheet.

The next part of the submission of the

petitioner is permissibility of continuity of

disciplinary proceeding during the pendency of the

criminal proceeding which has been initiated on the

basis of public complaint. According to

Mr.Majumder, the nature of charge in the criminal

proceedings and charge No. 1 in the charge sheet

dated 24th October, 2019 are identical, therefore,

the disclosure of evidence during pendency of the

criminal proceeding before the disciplinary

authority may prejudice the petitioner in defending

himself in such criminal proceeding. Therefore, by

making a comprehensive representation dated 30th

October, 2019 he has approached the Divisional

Security Commissioner for stalling the disciplinary

proceeding during the pendency of the criminal

proceeding. In support of such submission

Mr.Majumder, has placed reliance on an

unreported Judgment in an Intra Court Appeal

being FMA 3521 of 2014 (Balbir Singh Sindhu @

B.S.Sidhu - vs- Union of India & Ors.)

Per contra, Mr. Subhankar Chatterjee

learned advocate, appears on behalf of the South

Eastern Railway and on the point of challenge

being thrown to the suspension order he has drawn

attention of this Court to Rule 211 of the said Rules

of 1987. On placing reliance on such Rule of 211 it

has been submitted that there is an alternative

remedy which is available to the petitioner for

redressal of grievance against such order of

suspension. Rule 211 provides for preferring an

appeal against an order of suspension to the

authority to which the authority which made or is

deemed to have made the order is immediately

subordinated and accordingly it has been

contended that if the petitioner has any grievance

it is left open to him to prefer an appeal against

such order of suspension.

It has also been submitted on behalf of the

respondent authorities that under Rule 248.1 there

is no requirement to hold any preliminary enquiry

in the case of initiation of proceeding based on

public complaint and it has also been submitted

that since the charge sheet has been issued by the

Divisional Security Commissioner, RPF, South

Eastern Railway, Kharagpur there is no violation of

the provisions under said Rule 248.1. It is

contended that the enquiry, if Court directs and

permits the authority, to be conducted against the

petitioner strictly in terms of Rules of 1987 by the

controlling officer or any officer above the rank of

Security Commissioner.

This Court has heard the learned advocates

representing the petitioner and the authorities of

South Eastern Railway and has perused the

relevant documents available on record.

It appears from the case made out in this

writ petition that the petitioner is aggrieved by the

order of suspension dated 29th August, 2019 and

according to the petitioner the same is relating to

criminal proceeding and such order of suspension

was not issued in contemplation of disciplinary

proceeding. Be that as it may since there is a

provision under Rule 211 to prefer appeal against

the order of suspension the petitioner is granted

leave under such provision to take out an appeal

strictly in terms of said Rule before the appellate

authority. If such appeal is filed within a period of

thirty days from this date the appellate authority

shall proceed to dispose of such appeal within a

reasonable time thereafter without taking the point

of limitation.

Now question arises whether the charge

sheet issued by the Divisional Security

Commissioner on 24th October, 2019 shall qualify

the test in terms of Rule 248.1 or not. It does

appear on perusal the charge sheet dated 24th

October, 2019 that under the statement of

allegations an expression has been used by the

respondent authorities - "preliminary report".

On reading of the charge sheet, it appears

that based on such preliminary report the charges

have been framed against the petitioner. The

proceeding has been required to be initiated under

Rule 248.1 of the Rules of 1987. Since it is a case

relating to public complaint this Court does not

find any irregularity in issuing charge sheet dated

24th October, 2019 against the petitioner by the

Divisional Security Commissioner. For better

understanding of the provisions framed under Rule

248.1 the said rule is quoted below:

"248.1 Whenever a complaint against the misconduct of any member of the Force is received from the members of the public or where such complaint is received through a court wherein civil or criminal proceedings against a member of the Force have been instituted or otherwise, and controlling officer of such member of the Force is of the opinion that allegations are verifiable or otherwise an inquiry is called for, he may proceed to inquire himself into the complaint against a member of the Force specified in column (1) of the table below or depute any other officer as specified in the corresponding

entry in column (2) of the said table:

TABLE

Members of the Inquiry Officer.

Force against whom
complaints received
          (1)                              (2)
Constables/                    Of and above the rank
1[***]/Head                    of Inspector. Of and
Constables Sub-                above the rank of
Inspector/Assistant            Assistant
Sub-                           Commandant. Of and
Inspector/Assistant            above the rank of
Security                       Security Commissioner.
Commissioner                   2[Principal Chief Security

Security                       Commissioner]     or   the
Commissioner or                3[Chief            Security
above                          Commissioner]     or   the
                               Deputy     Chief   Security
                               Commissioner,      if   so
                               authorised by him.

It appears that in terms of Rule 248.1

either the controlling officer or any officer of and

above the rank of Security Commissioner in the

case of Inspectors/Assistant Security

Commissioner can hold an enquiry based on such

public complaint if the authority is of such opinion

that the charges are verifiable or otherwise an

enquiry is called for. It does not appear from such

Rule 248.1 that there is any requirement of

conducting preliminary enquiry before the initiation

of proceedings in terms of Rule 248.1.

In the present case, this Court further finds

that the charge sheet dated 24th October, 2019 has

been issued by the Divisional Security

Commissioner therefore there is no infirmity in

such charge sheet and the concerned authority

should be permitted to take necessary steps for

bringing the proceeding into logical conclusion in

terms of relevant provisions of Rules of 1987.

However, in the instant case petitioner has

specifically taken a point in the writ petition as well

as a comprehensive representation has been made

dated 30th October, 2019 addressed to the

Divisional Security Commissioner on permissibility

of initiating proceeding under the Rules of 1987

during the pendency of the criminal proceedings

and till date it has been submitted by the learned

advocate representing the writ petitioner that such

representation remains unanswered. Therefore,

this Court directs the Divisional Security

Commissioner, being the respondent no.3 to first

take decision on such representation of the

petitioner which is annexed to this writ petition

being P-7 before proceeding with the enquiry. Such

decision shall be taken by the respondent no.3

within a period of four weeks from this date and the

decision to be taken by the respondent no.3 shall

be communicated to the petitioner within one week

thereafter. If the respondent no.3 decides to

proceed with the charge sheet dated 24th October,

2019 after consideration of such representation he

is required to give reasons in support of the same

prior to proceeding with the enquiry in terms of

Rules of 1987.

With the above direction, the writ petition

stands disposed of.

However, there shall be no order as to

costs.

Urgent photostat certified copy of the order,

if applied for, be given to the parties, upon usual

undertakings.

(Saugata Bhattacharyya, J.)