Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 25 (CAL)

RAJU KUMAR MONDAL v. UNION OF INDIA

2007-01-17

ARUN KUMAR MITRA, BHASKAR BHATTACHARYA

body2007
( 1 ) THIS writ application under Article 226/227 of the Constitution of India is at the instance of an applicant under section 19 of the Administrative tribunals Act, 1985, and is directed against the order dated 8th November, 2005, passed by the Central Administrative Tribunal, Kolkata Bench, hereby dismissing the said application under section 19 of the Act. ( 2 ) IN the said application under section 19 of the Act, the writ petitioner challenged the order dated 20th November, 2001, passed by the Chairman, railway Recruitment Board, Calcutta, by which the Chairman not only disqualified the writ petitioner for the post of Apprentice Signal Interlocking maintainer/appr. Telecom Maintainer Grade- III/appr. Supervisor (P. Way)notified vide Employment Notice No. 1 of 2000 but also debarred him from all future RRB examination by all RRBs. ( 3 ) THE following facts are not in dispute. The writ petitioner applied for the post indicated above, and appeared at the written examination held by the railway authority and found place within the list of successful candidates; but there was an indication in the list of successful candidates that the name of the petitioner was under investigation. ( 4 ) SUBSEQUENTLY, by the order impugned by the writ petitioner before the tribunal, the railway authority informed the petitioner that he was found guilty, and that the railway authority decided not only to disqualify him for the examination but also to debar him from appearing in all future examination reserving the right to launch criminal prosecution against the writ petitioner. ( 5 ) THE aforesaid application filed by the writ petitioner was opposed by the railway authority and ultimately, by the order impugned herein, the tribunal had refused to interfere with the decision taken by the railway authority. ( 6 ) BEING dissatisfied, the writ petitioner has come before us with the present writ application. ( 7 ) AFTER hearing the learned Counsel for the parties, and after going through the materials on record, we find that the Tribunal has merely relied upon the opinion of the Deputy Government Examiner of Questioned documents with the following remarks: "1. The documents of this case have been carefully and thoroughly examined. 2. The person who wrote the blue enclosed writings and signatures stamped and marked S1 to S5 did not write the red enclosed writings similarly stamped and marked Q1 to Q6". The documents of this case have been carefully and thoroughly examined. 2. The person who wrote the blue enclosed writings and signatures stamped and marked S1 to S5 did not write the red enclosed writings similarly stamped and marked Q1 to Q6". ( 8 ) THE Tribunal simply came to the conclusion that in view of the opinion of the Deputy Government Examiner of Questioned Document, there was no scope of questioning the decision of the railway authority, and that the same should be found to be "absolutely correct", and that there was no scope of interference by the Court. ( 9 ) BEFORE this Court, when the matter come up for the first time, a Division bench of this Court directed Mrs. Banerjee, learned Advocate, appearing on behalf of the railway authority, to produce before the Court the detailed investigation report by virtue of which the railway authority passed the order impugned before the Tribunal. ( 10 ) TODAY Mrs. Banerjee placed before us a letter written by the Member secretary of the Railway Recruitment Board, Kolkata, stating that Smt. K. B. Jena, Assistant Government Examiner of Questioned Documents vide her letter dated DXC-184-2001/1958 dated 3rd January, 2007, sent the detail reason on the basis of which the said decision was formed and a copy of the said letter with reasons was placed before us. ( 11 ) IT appears that the said expert has given reasons for arriving at the conclusion expressed in the final report which consist of one page only. ( 12 ) THERE is no dispute that the aforesaid reason was not supplied to the writ petitioner nor was the writ petitioner given any opportunity of cross-examining the said expert. We have already pointed out that the Tribunal accepted the said report as if any report produced by an Assistant government Examiner of Questioned Document can in no case contain any mistake and that cannot be interfered with by any Court of Law. It is needless to mention that the order that has been passed by the Railway board prejudicially affects the right of the writ petitioner inasmuch as he has been found to have practised fraud in the examination, and at the same time, has been debarred from appearing in future examination though he came within the zone of successful candidates. It is needless to mention that the order that has been passed by the Railway board prejudicially affects the right of the writ petitioner inasmuch as he has been found to have practised fraud in the examination, and at the same time, has been debarred from appearing in future examination though he came within the zone of successful candidates. In this case there is no dispute that the admit card for that examination contains not only computerized photograph of the applicant but also his signature, and the invigilator's signature is also appearing on the answer script. It further appears from the record that the writ petitioner appeared not only once but twice in the examination, one for preliminary examination and the other one, for final one, and are two different Invigilators subscribed their signatures on the answer scripts. ( 13 ) IN such a situation, in our view, in order to take such a drastic action affecting future of a citizen, this type of decision cannot be taken in such a summary manner. Before taking such decision, the railway authority must hold detailed enquiry by giving opportunity of hearing to the person against whom it proposes to take such a decision, after communicating the charge in details, and if it wants to rely upon the opinion of an expert, the person going to be affected must be given opportunity to cross-examine such an expert. ( 14 ) MRS. Banerjee in this connection, placed strong reliance upon an unreported decision of a learned Single Judge of Jharkhand High Court, dated 22nd June, 2004, in WPS No. 2864 of 2004 where the learned Single judge simply in view of existence of a report given by Examiner of Questioned document did not interfere with this type of a decision taken by the railway authority. In the last paragraph of the said judgement, His Lordship was of the view that "since the order of cancellation was passed after getting it verified by the Government authority, this Court is not supposed to sit over the report on the basis of which the impugned order of cancellation was passed. I, therefore, do not find any reason to interfere with the order". I, therefore, do not find any reason to interfere with the order". ( 15 ) WE are afraid, we are unable to subscribe to the view taken by His lordship that simply because an opinion was verified by the Government authority, a Court in exercise of power under Article 226 of the Constitution of India cannot decide the legality of such opinion. We cannot lose sight of the fact that such report is merely an opinion of the expert and is not conclusive. ( 16 ) IN view of what have been stated above, we set aside the order passed by the Tribunal as well as the order dated 20th November, 2001, which is annexure R 8 to the present writ application. We direct the respondent authority to hold fresh enquiry, after giving an opportunity of controverting the allegation to the writ petitioner, and permitting the writ petitioner to cross-examine Smt. K. B. Jena, Assistant Government Examiner of questioned Document, whose report was blindly accepted by the respondent authority in taking the decision. After giving opportunity of hearing, the respondent authority will take fresh decision and will communicate its decision to the writ petitioner within four months from today. ( 17 ) WE make it clear that while taking fresh decision, the respondent authority will not be influenced by our observations. We have already pointed, out that as virtually no opportunity of hearing was given to the writ petitioner, we have been compelled to set aside the order passed by the railway authority. ( 18 ) IF the petitioner, in the meantime, appears before any examination conducted by Railway Board, and is selected, such selection will abide by the decision of the railway authority pursuant to this order. ( 19 ) THE letter along with the report of the expert filed by Mr. Banerjee be kept with the record. ( 20 ) THE writ application succeeds. ( 21 ) IN the facts and circumstances, there will, however, be no order as to costs. ( 22 ) URGENT xerox certified copy of this order, if applied for, be given to the parties within a week from date. Writ application succeeds. .