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2007 DIGILAW 721 (CAL)

Biswamitra Pandey v. Chief Security

2007-09-18

KALIDAS MUKHERJEE, PRANAB KUMAR CHATTOPADHYAY

body2007
Judgment :- (1.) BOTH the appeals have been preferred from the common judgment and order dated 20th February, 2004 passed by the learned Single Judge while deciding the two writ petitions bearing W. P. No. 2433 (W) of 1998 and W. P. No. 2434 (W) of 1998. Scrutinising the said judgment and order under appeal we find that the learned Single Judge specifically mentioned the numbers of both the writ petitions at the heading of the judgment but actually proceeded only with the writ petition filed by Rakshak Biswamitra pandey. Relevant portions from the said judgment and order under appeal are quoted hereunder: "20. 02. 04. W. P. No. 2433 (W) of 1998 + w. P. No. 2434 (W)/1998 mr. Tapas Saha. . . . . . . . . . . . . . . . . . for the petitioner; mr. Uttam Kumar Majumdar. . . . . . . . . . for the respondent. The petitioner it appears was dismissed from service by an order dated 10. 08. 1982. It would be profitable to notice the order in its entirety: rakshak Biswasmitra Pandey of RPF Post Gaya has been adopting indulging skillfully in organizing crime on Railway and adopting skilful method to evade detection of offence localization of seat of crime and identification of criminals while on duty in beat No. 7/8 of Up/marshalling gaya from 16 hours to 24 hours on 31. 3. 1982 as revealed during the enquiry of a theft of 61 completed cartons of No. 10 cigarettes from wagon no. ER 5467 EXGYA (P) to Sasaram (P). Whereas the works and effectiveness of RK Biswamitra Pandey are found totally averse to the responsibilities and reliance reposed in him as a member of the Railway Protection Force and the same is considered to be absolutely detrimental to the interest of Railway administration in particular and the nation is general. Whereas the undersigned is satisfied that the conduct and the activities of RK Biswamitra Pandey are against public interest and the administration and instead of any use to the administration has proved reliability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The petitioner did not prefer any appeal against the aforesaid order within the time provided therefore or even a reasonable time thereafter. . . After hearing the learned Advocates this Court is of the view that this petition is wholly devoid of any merit for the following reasons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . For the aforesaid reasons this application is dismissed. There will be no order as to costs. " (Emphasis supplied) (2.) IN any event, since both the aforesaid writ petitions were finally disposed of in the aforesaid manner by the common judgment and order dated 20th february, 2004, the respective writ petitioners preferred two separate appeals challenging the said common judgment and order dated 20th February, 2004 on identical grounds. As both the aforesaid appeals have been preferred on identical grounds, the same are heard analogously and disposed of as hereunder: both the appellants were permanent RPF constables and were posted at gaya in the State of Bihar at the material point of time. It has been alleged that while on duty in beat No. 7/8 of Up-marshalling Yard, Gaya from 16:00 hrs. to 24:00 hrs. on 31st March, 1982, alleged theft of 61 cartons of No. 10 cigarettes took place from Wagon No. ER/5467, Gaya (P) to Sasaram (P). Both the appellants were removed from service on the charge of the aforesaid alleged theft without any trial or drawing up any proceeding or departmental enquiry. to 24:00 hrs. on 31st March, 1982, alleged theft of 61 cartons of No. 10 cigarettes took place from Wagon No. ER/5467, Gaya (P) to Sasaram (P). Both the appellants were removed from service on the charge of the aforesaid alleged theft without any trial or drawing up any proceeding or departmental enquiry. At the relevant point of time, the service conditions of both the appellants were governed by the Railway Protection Force Rules, 1959 and both the appellants were removed from service in exercise of powers under Rule 47 of the aforesaid rpf Rules, 1959. The said Rule 47 is quoted hereunder: "47. Special procedure in certain cases.-Notwithstanding anything contained in Rules 44,45 and 46 where a penalty is imposed on a member of the force, (a) on the ground of conduct which had led to his conviction on a criminal charge, or (b) where the disciplinary authority is satisfied, for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules, the disciplinary authority may consider the circumstances of the cases and pass such orders thereon as it deems fit. " (3.) BEING aggrieved by the said order of removal from service both the appellants preferred appeals therefrom before the concerned appellate authority. The appellants herein were also named as accused persons in the criminal case, which was started on account of the aforesaid alleged theft. The learned railway Magistrate, however, by the judgment and order dated 15th February, 1996 finally disposed of the aforesaid criminal case wherein both the appellants were held not guilty and acquitted of the charge by the said learned Railway magistrate, although in the meantime, the appellants were removed from service on the aforesaid charge of alleged theft. (4.) THE appellants thereafter communicated the aforesaid order of acquittal passed by the learned Railway Magistrate to the concerned appellate authority and prayed for issuance of appropriate order including reinstatement in service. It may also be noted that no appeal was preferred from the said order of acquittal passed by the learned Railway Magistrate and, therefore, the said order passed by the said learned Railway Magistrate was final. (5.) THE learned Senior Counsel representing both the appellants herein submitted that the aforesaid order of acquittal passed by the learned Railway magistrate was communicated to the appellate authority before final disposal of the appeals. (5.) THE learned Senior Counsel representing both the appellants herein submitted that the aforesaid order of acquittal passed by the learned Railway magistrate was communicated to the appellate authority before final disposal of the appeals. Since no favourable order was passed by the appellate authority even after receiving the order of acquittal passed by the learned Magistrate of the Criminal Court, two writ petitions were filed on identical grounds on behalf of the respective appellants, which were finally disposed of by the order dated october 15, 1996 passed by Honble Justice Altamas Kabir (as His Lordship then was) whereby and whereunder the appellate authority was directed to dispose of the pending appeals preferred on behalf of the writ petitioners, if not already disposed of, within a period of two months from the date of communication of the said order. (6.) PURSUANT to the aforesaid order, concerned appellate authority disposed of the appeals preferred on behalf of the respective appellants by the identical order passed on June 9, 1997 and the operative portion of the said is set out hereunder: "in this appeal he has not come up with any fresh ground to merit a reversal of the order of his disciplinary authority, I also do not find any infirmity in this case as per Rule 47 of RPF Rules, 1959. Hence, there is no reason to interfere with the appellate order passed by DSC/mgs. The appeal petition is therefore dismissed. " (7.) CHALLENGING the said order of the appellate authority, two separate writ petitions were filed, which were finally disposed of by the learned Single Judge by the common judgment and order under appeal dated 20th February, 2004. It cannot be disputed that the learned Single Judge while proceeding with the writ petition filed by Rakshak Biswamitra Pandey bearing W. P. No. 2433 (W)of 1998 also disposed of the other writ petition filed by the other Rakshak Ram bali Singh bearing W. P. No. 2434 (W) of 1998 by merely mentioning the number of the aforesaid writ petition only at the heading of the judgment although, thereafter all through the said learned Single Judge referred to the writ petitioner Rakshak Biswamitra Pandey and the writ petition filed by the said biswamitra Pandey bearing W. P. No. 2433 (W) of 1998. (8.) SCRUTINISING the available records we find that both the writ petitioners have been removed from service by resorting to extraordinary power under rule 47 of the Railway Protection Force Rules, 1959. It has been submitted on behalf of the appellants that the respondent authorities proceeded under Rule 47 of the 1959 Rules without strictly adhering to the requirements of the said rules. (9.) MR. Kashi Kanta Moitra, learned Senior Counsel representing the appellants submits that the disciplinary authority resorted to the procedure prescribed under Rule 47 of the RPF Rules, 1959 without recording the reasons in writing regarding satisfaction of the said authority for coming to the conclusion that it was not reasonably practicable to follow the prescribed procedure in the rules. Mr. Moitra further submits that in respect of the appellants herein disciplinary authority did not record any reason as to why it felt that holding of a departmental enquiry was not reasonably practicable and thus, the said disciplinary authority acted in violation of the specific condition prescribed under the aforesaid Rule 47. (10.) IN any event, both the appellants admittedly, preferred the appeals before the concerned appellate authority challenging the validity and/or legality of the order of removal from service dated 10th August, 1982 immediately after issuance of the said order in the year 1982. Before disposal of the said appeal by the concerned appellate authority, learned Railway Magistrate, Gaya, by the judgment and order dated 15th February, 1996 finally decided the criminal case pending against the appellants herein along with the other accused persons wherein the appellants herein were held not guilty by the said learned magistrate. In view of the aforesaid order of acquittal passed by the learned magistrate, the appellants herein sent reminders to the appellate authority to take note of the aforesaid judgment passed by the learned Magistrate and reinstate them in service. (11.) THE appellant Biswamltra Pandey forwarded the copy of the judgment passed by the learned Magistrate to the appellate authority on 27th May, 1996 with a request to reinstate him in service immediately. The other appellant ram Bali Singh also submitted a separate representation on the same day i. e. 27th May, 1996 claiming reinstatement in service upon forwarding a copy of the said judgment passed by the learned Railway Magistrate. The other appellant ram Bali Singh also submitted a separate representation on the same day i. e. 27th May, 1996 claiming reinstatement in service upon forwarding a copy of the said judgment passed by the learned Railway Magistrate. Unfortunately, the appellate authority treated the aforesaid reminders submitted on behalf of the appellants herein after disposal of the criminal case by the learned Magistrate, gaya, as the original appeals preferred on behalf of the concerned employees and thus, committed a serious mistake upon holding that the said appeal was preferred after about 14 years from the date of issuance of the order regarding removal from service. (12.) FROM the records we find that the appellate authority passed identical appellate orders on 24th July, 1996 in respect of both the appeals and dismissed the respective appeals preferred on behalf of the appellants herein on the ground that the same was time-barred. The concluding portion of the said appellate order passed on 24th July, 1996 is quoted hereunder: "i have gone through the appeal. The appeal has been made after about 14 years without giving reasons for such delay. The order was appealable in the year 1982 also and the time limit for filing the appeal has long been over. Since, the appeal is time-barred, it is dismissed. " (13.) MR. Moitra, however, submitted that the concerned employees namely, the appellants herein did not receive the aforesaid appellate orders dated 24th july, 1996. Scrutinising the records we find that both the appellants acknowledged the receipt of the said appellate orders upon putting their signatures in Hindi. (14.) WHETHER the appellants really acknowledged the receipts of the said appellate orders written in English upon proper understanding the contents of the same or the same were actually handed over to them are not required to be investigated or examined at this stage. (14.) WHETHER the appellants really acknowledged the receipts of the said appellate orders written in English upon proper understanding the contents of the same or the same were actually handed over to them are not required to be investigated or examined at this stage. (15.) HOWEVER, scrutinising the said appellate orders we are satisfied that the appellate authority clearly proceeded on wrong factual basis while holding that the appeals were preferred by the concerned employees after a lapse of 14 years ignoring the fact that both the appellants filed the appeals challenging the order of removal immediately after issuance of the same on 10th August, 1982 and the copy of the appeal preferred by the concerned employee has also been annexed with the writ petition filed on their behalf as Annexure b. (16.) THE appellants herein during the pendency of the criminal case did not effectively pursue the appeals preferred by them perhaps upon realising that no effective purpose would be served unless they are declared not guilty in the criminal case. After acquittal from the criminal case both the appellants sent reminders to the appellate authority in the year 1996, which were, however, erroneously treated as the original appeals by the concerned appellate authority. (17.) FOR the aforementioned reasons, the appellate order dated 24th July, 1996 cannot be sustained in the eye of law and the same are, therefore, quashed. (18.) BOTH the appellants herein filed two separate writ petitions on identical grounds praying for disposal of their appeals by the appellate authority after taking note of the order of acquittal passed by the learned Magistrate, Gaya. The aforesaid writ petitions were finally disposed of by Altamas Kabir, J. (as his Lordship then was) by two separate identical orders passed on 15th October, 1996. The said order is set out hereunder: "having regard to the facts of the case and since the learned Advocate for the respondents has appeared, no useful purpose will be served in keeping this matter pending. According to the petitioner the departmental appeal preferred by him against the final order passed in the disciplinary proceeding in 1982, has not yet been disposed of. According to the petitioner the departmental appeal preferred by him against the final order passed in the disciplinary proceeding in 1982, has not yet been disposed of. Having regard to the above, I dispose of this application with a direction upon the Chief Security Commissioner, RPF, Eastern Railway, the appellate authority, to dispose of the petitioners pending appeal, if not already disposed of, within 2 months from the date of communication of this order. There will be no order as to costs. " (19.) IN compliance with the aforesaid order passed by Altamas Kabir, J. (as his Lordship then was) on 15th October, 1996, the appellate authority ultimately disposed of both the appeals preferred on behalf of the appellants herein by two separate orders passed on exactly identical terms in an identical manner of June 9, 1997 upon specifically holding that the appellants did not came up with any fresh ground to reverse the order passed by the concerned disciplinary authority. The appellate authority, most unfortunately, ignored the fact that the order of acquittal in respect of the appellants was passed by the learned magistrate, Gaya after the order of the concerned disciplinary authority. Therefore, the appellate authority while disposing of the appeals preferred on behalf of the appellants herein by the appellate orders both dated 9th June, 1997 should not have held that the appellants did not raise any fresh ground for reversing the orders passed by the respective disciplinary authority. (20.) MR. Uttam Kr. Mazumdar, learned Counsel representing the respondents specifically urged before this Court that the subsequent appellate orders both dated 9th June, 1997 passed by the concerned appellate authority are wholly invalid and non est in view of existence of the earlier appellate orders passed by the concerned appellate authority. We are unable to accept the aforesaid contentions made on behalf of the respondent authorities as the said respondents themselves abandoned the earlier appellate orders allegedly passed by the appellate authority on July 24, 1996 and passed fresh appellate orders both dated 9th June, 1997 whereby and whereunder the appeals preferred by the appellants were dismissed on completely different grounds. We are unable to accept the aforesaid contentions made on behalf of the respondent authorities as the said respondents themselves abandoned the earlier appellate orders allegedly passed by the appellate authority on July 24, 1996 and passed fresh appellate orders both dated 9th June, 1997 whereby and whereunder the appeals preferred by the appellants were dismissed on completely different grounds. (21.) BOTH the appellants herein in the earlier writ petitions moved before altamas Kabir, J. (as His Lordship then was) specifically prayed for disposal of the appeals preferred before the appellate authority and the learned Counsel representing the respondent authorities herein did not disclose even before justice Kabir at the time of disposal of the aforesaid writ petitions filed on behalf of the appellants herein on October 15, 1996 that the appeals preferred by the said appellants had already been disposed of by the appellate authority by the orders both dated July 24, 1996. Thus, the respondent authorities themselves abandoned its earlier appellate orders passed on 24th July, 1996. In any event, we have already held that the said appellate order dated 24th July, 1996 cannot be sustained in the eye of law and the same were, therefore, quashed. (22.) THE subsequent appellate orders passed in respect of the appellants herein also cannot be sustained in view of the facts that the appellate authority failed to take note of the order of acquittal passed by the competent Criminal court in respect of the appellants herein after the orders passed by the disciplinary authority on 10th August, 1982. In the said appellate orders, the appellate authority also erroneously treated the reminder application of the appellants dated 27th May, 1996 as the appeal of the appellants against the order of removal passed by the disciplinary authority. (23.) IN the judgment and order under appeal, the learned Single Judge, however, did not consider the aforesaid illegalities and/or irregularities in the orders passed by the appellate authority on 24th July, 1996 and 9th June, 1997. (23.) IN the judgment and order under appeal, the learned Single Judge, however, did not consider the aforesaid illegalities and/or irregularities in the orders passed by the appellate authority on 24th July, 1996 and 9th June, 1997. The learned Single Judge also failed to appreciate that the condition precedent for exercising power under Rule 47 of the RPF Rules, 1959 was not fulfilled as no document was produced by the respondents before this Court in order to show that the disciplinary authority recorded the reasons in writing about the satisfaction for coming to the conclusion that it was not reasonably possible to follow the procedure prescribed in the said rules. (24.) THUS, a very important and crucial question was not examined and/or considered by the learned Single Judge while deciding the writ petitions filed on behalf of the appellants herein. The said learned Single Judge also erroneously held that the appellants herein did not rise finger against the order of removal dated 10th August, 1982 for a period of 14 years ignoring the fact that both the appellants filed appeals challenging the order of removal dated 10th August, 1982 in the year 1982 and copy of the said appeal was also annexed with the respective writ petitions as Annexure b. (25.) LIKE the appellate authority, the learned Single Judge also committed same mistake and erroneously treated the reminder petitions submitted on behalf of the appellants herein both dated 27th May, 1996 as the appeals submitted on behalf of the said appellants. The learned Single Judge not only overlooked the illegalities committed by the appellate authority but also failed to examine all other relevant issues raised in the writ petition including non-fulfillment of the condition precedent for exercising the power under Rule 47 of the RPF Rules, 1959 by the disciplinary authority. Furthermore, the learned single Judge in the judgment and order under appeal did neither refer to anything about the appellant/writ petitioner, Ram Bali Singh nor even specifically decide the fate of the writ petition filed by the said appellant Ram bali Singh. The learned Single Judge only mentioned the number of the writ petition filed by the appellant Ram Bali Singh at the top of the judgment and thus decided the fate of the said writ petition even without considering anything mentioned therein. The learned Single Judge only mentioned the number of the writ petition filed by the appellant Ram Bali Singh at the top of the judgment and thus decided the fate of the said writ petition even without considering anything mentioned therein. (26.) IN view of the acquittal order passed by the learned Magistrate in the criminal case, the order of removal passed by the disciplinary authority cannot be sustained and the appellate authority should have passed appropriate order upon taking note of the said order of acquittal passed by the said learned magistrate while deciding appeals filed by the appellants herein. (27.) FOR the reasons discussed hereinabove, the order of removal passed in respect of each of the appellants herein by the concerned disciplinary authority and the subsequent orders passed by the appellate authority either on 24th july, 1996 or on 9th June, 1997 and the judgment and order under appeal passed by the learned Single Judge cannot be sustained in the eye of law. Accordingly, the order of removal passed by the disciplinary authority in respect of each of the appellants herein and the subsequent appellate orders passed by the appellate authority either on 24th July, 1996 or on 9th June, 1997 stand quashed and the judgment and order under appeal passed by the learned Single Judge while deciding both the writ petitions filed by the appellants herein dated 20th february, 2004 is set aside. (28.) THE appellants herein, therefore, should be deemed to be in service all along as if the order of removal was never served upon anyone of the appellants herein. (29.) THE respondent authorities herein are directed to allow Biswamitra pandey, appellant in F. M. A. No. 674 of 2005, to resume his duties forthwith. Since the other appellant in F. M. A. 708 of 2005, namely, Ram Bali Singh has already attained the age of super-annuation, the respondent authorities should treat the said appellant in service upto the date of superannuation and thereafter treat him retired from service. The respondent authorities, therefore, should pay admissible salaries and allowances to said Ram Bali Singh till the date of superannuation and thereafter grant all admissible retiral benefits. Both the appellants herein will be entitled to receive all other consequential service benefits. The respondent authorities, therefore, should pay admissible salaries and allowances to said Ram Bali Singh till the date of superannuation and thereafter grant all admissible retiral benefits. Both the appellants herein will be entitled to receive all other consequential service benefits. (30.) THE respondent authorities will also calculate the arrear dues in respect of the appellants herein in terms of this order within a period of there weeks from the date of communication of this order and disburse the same within a period of two weeks thereafter. (31.) BOTH the appeals thus stand allowed. (32.) THERE will, however, be no order as to costs. Appeals allowed.