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2014 DIGILAW 375 (CAL)

Faujdar Yadav v. Union of India

2014-04-23

TAPABRATA CHAKRABORTY

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JUDGMENT Tapabrata Chakraborty, J. 1. This writ application had been preferred challenging the charge sheet dated 7th February, 2006 issued by the respondent no.4, the enquiry report dated 17th April, 2006 issued by the respondent no.5, the order of punishment dated 25th May, 2006 issued by the respondent no.4 and the order dated 28th December, 2006 passed by the Appellate Authority being the respondent no.3. 2. The facts, in a nutshell, are that the petitioner was served a charge sheet dated 17th February, 2006 issued by the respondent no.4 alleging inter alia that he had failed to prevent and detect the theft of 47 numbers of steel crossing sleepers from the station limit at Kunuri railway station during his camping duty period and that he had failed to inform the matter to his Controlling Authorities. On the basis of the charge sheet, an enquiry was conducted and a report to that effect was filed by the respondent no.5 on 25th May, 2006 and that without considering the representation made by the petitioner against the enquiry report, the respondent no.4 passed an order of punishment on 25th May, 2006 imposing a punishment of reduction to the last stage in existing scale of pay for 3 years with cumulative effect. Aggrieved by the said order of punishment the petitioner filed a statutory appeal and the same was also dismissed by an order dated 28th December, 2006. 3. Mr. Majumder, learned advocate appearing for the petitioner submits that in the charge sheet itself the name of the Enquiry Officer was incorporated who directly proceeded with the enquiry and the petitioner was deprived of the opportunity to submit his reply to the said charge sheet and that such action constitutes blatant violation of the principles of natural justice. In support of such submission, Mr. Majumder had also placed reliance upon the railway board’s circular dated 31st January, 2003. 4. According to Mr. Majumder, the enquiry had been conducted in a slip shod manner and the report had been filed on 17th April, 2006 without considering the deposition of the witnesses and that the enquiry report was absolutely perverse. 5. Mr. Majumder had also placed reliance upon the railway board’s circular dated 31st January, 2003. 4. According to Mr. Majumder, the enquiry had been conducted in a slip shod manner and the report had been filed on 17th April, 2006 without considering the deposition of the witnesses and that the enquiry report was absolutely perverse. 5. Mr. Majumder further submits that a perusal of the order of punishment issued by the respondent no.4 would reveal that the petitioner had been penalized alleging connivance though a perusal of the charge sheet would reveal that there was no such charge of connivance against the petitioner and that as such the Disciplinary Authority had proceeded on the basis of a preconceived notion to the effect that without the petitioner’s connivance, the theft could not have been possible. 6. According to Mr. Majumder, the contents of the statutory appeal petition had not been considered by the Appellate Authority and that a perusal of the appellate order dated 28th December, 2006 would reveal that the appeal had been rejected in a mechanical manner without any independent application of mind. 7. According to Mr. Majumder, the provisions of Rule 217.3 had not been followed by the Appellate Authority while considering the statutory appeal inasmuch as there had been no consideration as to whether the procedure prescribed under the rules had been followed and as to whether the findings are warranted and based on evidence on record and such error in the decision making process renders the order of the Appellate Authority to be unsustainable in law. 8. In support of his contention, Mr. Majumder had relied upon the following judgements:- a) Anil Kumar Versus Presiding Officer and Others, reported in AIR 1985 SC 1121 . b) State of Punjab Versus Bakhtawar Singh and Others, reported in (1972) 4 SCC 730 . c) M.V. Bijlani Versus Union of India & Ors., reported in (2006) 5 SCC 88 . d) Kuldeep Singh Versus The Commissioner of Police & Ors., reported in (1999) 2 SCC 10 . 9. b) State of Punjab Versus Bakhtawar Singh and Others, reported in (1972) 4 SCC 730 . c) M.V. Bijlani Versus Union of India & Ors., reported in (2006) 5 SCC 88 . d) Kuldeep Singh Versus The Commissioner of Police & Ors., reported in (1999) 2 SCC 10 . 9. The respondents had entered appearance and had filed an affidavit-in-opposition controverting the allegations made in the writ application and contending inter alia that there is no provision under the Railway Protection Force Rules, 1987 (hereinafter referred to as the said Rules), providing for any reply to the charge sheet prior to appointment of an Enquiry Officer and that pertaining to the incident of 5th January, 2006, a Railway Property (Unlawful Possession Act) Case No.1 of 2006 dated 8th January, 2006 was registered against four accused persons and that ample opportunity was given to the petitioner to contest the disciplinary proceeding, in consonance with the provisions of Railway Protection Force Act, 1957 (hereinafter referred to as the said Act of 1957). 10. The first submission of Mr. Ganguly, learned advocate appearing for the respondents was that in spite of availability of an alternative remedy in the form of a revision under Rule 219 against the appellate order, the petitioner had preferred the instant writ application and that as such the same is not maintainable. 11. According to Mr. Ganguly, the petitioner was granted the fullest of opportunity to contest the Disciplinary Proceeding and that the proceeding had been conducted in a fair manner and that there is no perversity in the findings arrived at by the Disciplinary Authority and in the backdrop of such circumstances question of re-appreciation of evidence does not occasion. 12. Mr. Ganguly further submits that the punishment imposed is proportionate to the charges as levelled against the petitioner. In support of his contention, Mr. Ganguly had relied upon the following judgments:- a) South Bengal State Transport Corporation Versus Ashok Kumar Ghosh & Ors. reported in (2010) 11 SCC 71 . b) B.C. Chaturvedi Versus Union of India and Others reported in (1995) 6 SCC 749 . c) U.P. State Road Transport Corporation Versus Subhash Chandra Sharma & Ors. reported in (2000) 3 SCC 324 . 13. I have heard the submissions of the learned advocates appearing on behalf of the respective parties and I have considered the materials on record. 14. c) U.P. State Road Transport Corporation Versus Subhash Chandra Sharma & Ors. reported in (2000) 3 SCC 324 . 13. I have heard the submissions of the learned advocates appearing on behalf of the respective parties and I have considered the materials on record. 14. It would be necessary to first deal with the objection of availability of an alternative remedy to the petitioner. It is settled law that mere existence of an alternative remedy does not oust the jurisdiction of the Writ Court. In view of the decision of the Hon’ble Supreme Court reported in (1998) 8 SCC 1 (Whirlpool Corporation Versus Registrar of Trade Marks, Mumbai), at least in four situations a Court of Writ would be justified in entertaining a writ petitioner despite availability of an alternative remedy. One of such situations is when the action impugned in the writ petition is violative of the principles of natural justice. The rule of exhaustion of alternative remedy, being a rule of discretion rather than a rule of compulsion, in an appropriate case the court would be justified in exercising its discretion. Having regard to the facts and circumstances of the present case, in my view, since the issue of violation of the principles of natural justice is involved in the instant lis, the petitioner can certainly approach the Hon’ble Writ Court notwithstanding the availability of an alternative remedy. I therefore do not propose to relegate the petitioners to the alternative remedy. Mr. Majumder placed reliance upon an unreported judgment delivered by this Hon’ble Court in W.P. No.3375 (W) of 2013 wherein it had, inter alia, been observed that the power exercised under Article 226 being much wider in nature, revision under the rules cannot be considered to be an efficacious remedy. 15. A perusal of the record reveals that at the juncture of issuance of the charge sheet to the petitioner, the authority decided to hold the enquiry and named the Enquiry Officer on the body of the charge sheet and fixed the date of enquiry with the stipulation that the enquiry will be conducted ex-parte, if the petitioner fails to attend the enquiry proceedings. Such action is ex-facie derogatory to the Railway Board’s Circular dated 31.01.2003 as quoted in paragraph 9 of the writ application but such averment had not been controverted by the respondents as would be explicit from the contents of paragraph 5 (e) of the affidavit-in-opposition. From these facts it appears that the concerned authority acted in a biased manner and with a closed mind – not that the charges are baseless but the mind of the authority was somewhat predetermined. 16. A perusal of the statements made by the witnesses before the Enquiry Officer reveals inter alia that there existed a dispute as to whether the theft at all took place during the camping duty period of the petitioner and as to whether the steel crossing sleepers recovered were a part of the consignment. The PW1 admitted that he had no basic knowledge about making joint note and that the same was prepared by A. K. Singh in his own handwriting and that he had only put his signature. The PW2 in course of his examination had stated that the 17 steel sleepers which were recovered were of different size and such statement does not establish the contention to the effect that the said recovered steel sleepers were a part of the consignment. From the deposition of PW3 (A. K. Singh) it appears that according to him theft took place on 2/1/2006 but according to PW1 the theft was not current of 5th January, 2006, it might have occurred 2/3 days ago and as per version of the keyman the sleepers were intact up to the evening of 4th January, 2006 and such contradictory statements do not establish that the theft took place during the camping duty period of the petitioner. 17. In the enquiry report it further stands recorded that “in reply to Q. No.20, PW3 stated that as per statement of arrested accused persons and the theft report it is presumed that the recovered materials are the part consignment of Kunuri.” 18. The contradictions as discussed above had not been taken into consideration and it appears that the Enquiry Officer had proceeded on the basis of a presumption that the recovered materials were a part of the consignment. The finding to the effect that the theft had occasioned during the camping duty of the petitioner does not stand supported through the evidence on record. The finding to the effect that the theft had occasioned during the camping duty of the petitioner does not stand supported through the evidence on record. The contradictions in the evidence were pointed out in the defence statement but the same had not been dealt with in the enquiry report and the Enquiry Officer had abruptly concluded the enquiry report stating that upon summing up of the evidence on record, the charges stands proved against the petitioner. 19. From the enquiry report it is explicit that the concerned officer had merely recorded his ipse dixit that the charges were proved without assigning any reason why the evidence produced by the management appeal to him in preference to the evidence produced by the petitioner. The expression “sufficiency of evidence” postulates existence of some evidence which links the charged officer with the misconduct alleged against him. In the instant case no such nexus stands established and the Enquiry Officer appears to have found the charges proved against the petitioner “by summing up of the evidences on record”. Such infirmities and procedural impropriety renders the impugned enquiry report to be unsustainable in law and the same is accordingly set aside and quashed. 20. A perusal of the order of punishment dated 25th May, 2006 reveals that the Disciplinary Authority had imposed the punishment on the basis of a surmise to the effect that the theft of the steel crossing sleepers would not have been possible without the petitioner’s connivance. 21. It is well-settled that suspicion, however high may be, can under no circumstances be held to be a substitute for legal proof. 22. The Disciplinary Authority, had penalized the petitioner on the basis of an alleged fault on the part of the petitioner to prevent theft coupled with connivance on the part of the petitioner. The allegation of connivance does not feature in the charge sheet and a perusal of the enquiry report also reveals that no evidence was led to establish any allegation of connivance against the petitioner. 23. The enquiry report nowhere refers to any evidence which links the charged officer with any offence of connivance and that as such the findings of the Disciplinary Authority to the effect that there had been a connivance on the part of the petitioner is absolutely perverse. 24. 23. The enquiry report nowhere refers to any evidence which links the charged officer with any offence of connivance and that as such the findings of the Disciplinary Authority to the effect that there had been a connivance on the part of the petitioner is absolutely perverse. 24. As the Disciplinary Authority was of the opinion that the theft would not have occasioned without the connivance of the petitioner, he could have remitted the case to the Enquiry Officer for further enquiry and report in terms of the provisions of the said Rules of 1987. 25. The accusation of connivance had been a factor towards determining the punishment though the petitioner was not given any opportunity of hearing to deal with the said accusation and such error in the decision making process maligns the impugned order of punishment and the same is, accordingly, set aside and quashed. 26. A perusal of the Appellate Authority order dated 28th December, 2006 reveals that the petitioner’s contention in the appeal petition had not been considered and the order of punishment had been simply affirmed. The said order reveals no independent application of mind on the part of the Appellate Authority. The said order is also not supported with any reason. Rule 217.3 categorically provides that the Appellate Authority should consider as to whether the procedure prescribed in the said Rules of 1987 had been complied with and if not whether such noncompliance had resulted in violation of any constitutional provisions or in miscarriage of justice and as to whether the findings are warranted and based on evidence on record. But the order of the Appellate Authority does not reveal that the said provisions of the Rule 217.3 had been complied with. Such infirmity in the decision making process renders the impugned order of the Appellate Authority to be unsustainable in law and the same is, accordingly, set aside and quashed. 27. But the order of the Appellate Authority does not reveal that the said provisions of the Rule 217.3 had been complied with. Such infirmity in the decision making process renders the impugned order of the Appellate Authority to be unsustainable in law and the same is, accordingly, set aside and quashed. 27. It is further a trite law that an authority empowered to pass an administrative order which causes a civil or evil consequence against another, must pose unto himself the correct question so as to enable himself to be acquainted with the relevant facts, failing which such action must be held to be a misdirection in law and in the instant case the imposition of punishment, without following the statutory provisions and by travelling beyond the charge itself, constitutes a blatant infirmity in the decision making process. 28. For the foregoing reasons, the impugned enquiry report dated 17th April, 2006 issued by the respondent no.5, the impugned order of punishment dated 25th May, 2006 issued by the respondent no.4 and the order dated 28th December, 2006 passed by the Appellate Authority being the respondent no.3 are hereby quashed and set aside and the respondents are directed to grant the admissible service benefits which have been denied to the petitioner pursuant to the order of punishment, within a period of eight weeks from the date of communication of this order. 29. However, since the charges remain, the disposal of the writ application will not prevent the respondent authorities from proceeding against the petitioner on the basis of the same afresh, in accordance with law. 30. The writ application is accordingly disposed of. 31. In the facts of the present case, there will be no order as to costs.