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2014 DIGILAW 973 (CAL)

Sekhar Kumar Kanjilal v. Union of India

2014-10-29

TAPABRATA CHAKRABORTY

body2014
Judgment : Tapabrata Chakraborty, J. This writ application has been preferred challenging the memoranda dated 16th August, 2010 and 16th November, 2010 issued by the respondent no.5. The facts, in a nutshell, are that the petitioner was initially charge sheeted on 13th June, 2008, in terms of the provisions of Rule 153 of the Railway Protection Force Rules, 1987 (hereinafter referred to as the said Rules of 1987), when he was serving as an Inspector, Railway Protection Force (hereinafter referred to as RPF), South Eastern Railway, in terms of the provisions of Rule 153 of the Railway Protection Force Rules, 1987 (hereinafter referred to as the said Rules of 1987). Challenging the same the petitioner preferred a writ application being WP No.12941 (W) of 2008 which was dismissed by an order dated 27th August, 2009. Against the said order, the petitioner preferred an appeal being MAT No.1065 of 2009 and during pendency of the said appeal, the charge sheet dated 13th June, 2008 was withdrawn by an order dated 5th July, 2010 and subsequent thereto a fresh charge sheet dated 16thAugust, 2010 was issued reiterating the charges alleged in the earlier charge sheet dated 13th June, 2008. In exercise of the powers conferred under Rule 9 (9)(c) of the Railway Servants, (Discipline and Appeal) Rules, 1968 (hereinafter referred to as the said Rules of 1968), the respondent no.5 appointed a Presenting Officer by a memorandum dated 16th November, 2010. The charge sheet dated 16th August, 2010 and the memorandum dated 16thNovember, 2010 are under challenge in the instant writ application, which has been filed before this Court on 7th July, 2011. Upon contested hearing this Court passed an interim order on 15th July, 2011 granting liberty to the respondent authority to continue with the disciplinary proceeding with a direction to the effect that no final order shall be passed without the leave of the Court. During pendency of the instant writ application the petitioner has filed an application being CAN No.6171 of 2014 inter alia praying for an order upon the respondents to drop the disciplinary proceedings and to release the retirement benefits including gratuity as the petitioner has already retired on 13th August, 2013. During pendency of the instant writ application the petitioner has filed an application being CAN No.6171 of 2014 inter alia praying for an order upon the respondents to drop the disciplinary proceedings and to release the retirement benefits including gratuity as the petitioner has already retired on 13th August, 2013. In the said application it was further averred that the interim order dated 15th July, 2011 passed in the instant writ application was appealed against by the petitioner and in the said appeal being MAT No.1282 of 2011, the Hon’ble Appeal Court passed an order on 12thSeptember, 2011 requesting the learned Single Judge to decide the writ application on merits, upon exchange of affidavits, at an earlier date preferably within 30th November, 2011, with a direction restraining the respondent authorities from proceeding with the disciplinary proceedings any further. The parties have exchanged their affidavits in the writ application and the application being CAN No.6171 of 2014. Mr. Majumder, learned senior advocate appearing for the petitioner contends that having withdrawn the earlier major penalty charge sheet dated 13th June, 2008 by a memorandum dated 5thJuly, 2010, the respondents had no authority to issue the second charge sheet dated 16th August, 2010 reiterating the charges contended in the earlier charge sheet dated 13th June, 2008. In support of such contention that the respondents are estopped from initiating a disciplinary proceeding after withdrawal of the earlier charge sheet, Mr. Majumder has relied upon a circular dated 17th January, 1994. He further submits that no explanation has been furnished by the respondents as to why they did not take any steps pertaining to the first charge sheet for the period from 13th June, 2008 till its withdrawal on 5th July, 2010 and that the charges, pertaining to alleged acts of the years 2005 and 2006, have become stale and the proceedings suffer from the vice of unexplained delay. It has also been brought on record that challenging the attempt of the respondents to give ad hoc promotion to the juniors to the petitioner to the post of Assistant Security Commissioner/Assistant Commandant in Group-A junior scale, the petitioner preferred an earlier writ application being WP No.19213 (W) of 2008 and the same was disposed of by an order dated 27th August, 2009 directing the respondent no.3 therein to consider the case of the petitioner for promotion in accordance with law. Pursuant to the said order of this Court the petitioner’s claim for promotion was considered and he was promoted to the rank as Assistant Commandant (Ad hoc) on 4th December, 2009. According to Mr. Majumder such promotion wipes out all past alleged misconduct of the petitioner. It has also been contented by Mr. Majumder that upon attainment of the age of superannuation on 31st August, 2013, the employer/employee relationship between the petitioner and the respondents has ceased and that accordingly the disciplinary proceeding has become infractuous in the absence of any rule towards continuance of such proceeding subsequent to the retirement of the petitioner and accordingly the petitioner is entitled to all the terminal benefits, treating the petitioner to be in continuous service till the date of his superannuation on 31stAugust, 2013. In support of his arguments Mr. Majumder has relied upon the judgments delivered in the following matters :- a) WP No.8093 (W) of 2003 (Sri Jnanadhir Mohan Sen Sharma vs. Union of India & Ors.), in support of the proposition that the respondents cannot continue with the disciplinary proceeding after cessation of the employer employee relationship. b) Damodar Valley Corporation & Ors. vs. Smt. Ballari Sarkar, reported in 2010 CWN 769 (Paras 32 and 33), pertaining to the proposition to the effect that the promotion wipes out all alleged past misconduct. c) 1978 (1) SLR 748 (Para 5). d) WPCT 210 of 2008 (Alak De Ray vs. Union of India & Ors.), in support of the proposition to the effect that without indicating sufficient reasons, no fresh charge sheet can be issued after withdrawal of the original charge sheet. e) M.V. Bijlani vs. Union of India & Ors., reported in (2006) 5 SCC 88 (Para 16), in support of the proposition to the effect that the long pendency of the disciplinary proceeding constitutes prejudice to the charged employee. Mr. Partha Sarathi Basu, learned senior advocate appearing for the respondents submits that the withdrawal of the earlier charge sheet dated 13th June, 2008 by the memorandum dated 5thJuly, 2010 was not on merits but on account of promotion of the petitioner, resulting in application of the provisions of the said Rules of 1968 instead of the Rules of 1987. Such withdrawal of the earlier charge sheet, accordingly, did not prevent the respondents from issuing the subsequent charge sheet dated 16th August, 2010. Such withdrawal of the earlier charge sheet, accordingly, did not prevent the respondents from issuing the subsequent charge sheet dated 16th August, 2010. In reply to the petitioner’s contention to the effect that the proceedings are time barred, Mr. Basu submits that the proceedings could not be concluded due to operation of the order dated 12th September, 2011 by the Hon’ble Trial Court in MAT No.1281 of 2011. He further submits that no reliance can be placed on the unreported judgment dated 16th June, 2004 delivered in WP No.8093 (W) of 2013 since subsequent thereto, dealing with the said judgment, the Hon’ble Appeal Court by a judgment dated 25thAugust, 2011, in FMA 1337 of 2009 has inter alia observed : “That order of discontinuance of disciplinary proceeding by the learned Trial Judge is not sustainable in law.” He further points out that an appeal was preferred against the said judgment dated 25th August, 2011 and the Hon’ble Supreme Court has set aside the portion of the order that “any order passed by the Disciplinary Authority should not affect the pensionary benefits of the respondents.” In support of his arguments, Mr. Basu has relied upon the following judgments :- a) Union of India & Anr. vs. Kunisetty Satyanarayana, reported in (2006) 12 SCC 28 , as regards the scope and ambit of judicial review in disciplinary proceedings. b) B.C. Chaturvedi vs. Union of India and others, reported in AIR 1996 SC 484 , in support of the proposition to the effect that the Writ Court cannot substitute its own conclusion on penalty. c) The Secretary Forest Department & Others vs. Abdur Rasul Chowdhury, reported in (2009) 7 SCC 305 , in support of the proposition to the effect that delay is not always fatal to the inquiry. I have heard the submissions made by the learned advocates appearing for the respective parties and I have considered the materials on record. A perusal, of the records, reveals that the first charge sheet dated 13th June, 2008 was withdrawn after a period of 2 years by a memorandum dated 5th July, 2010 and the second charge sheet was issued on 16th August, 2010 reiterating the charges framed earlier supported by the imputations identical to the imputations to the earlier charges. A perusal, of the records, reveals that the first charge sheet dated 13th June, 2008 was withdrawn after a period of 2 years by a memorandum dated 5th July, 2010 and the second charge sheet was issued on 16th August, 2010 reiterating the charges framed earlier supported by the imputations identical to the imputations to the earlier charges. The order of withdrawal dated 5th July, 2010 was issued incorporating the following clause :- “Without prejudice to make necessary action against him by the competent authority under Railway Servants (Discipline and Appeal) Rules, 1968.” According to the petitioner the disciplinary authority pertaining to the second charge sheet could not have proceeded against the petitioner under Rule 9 of the said Rules of 1968 as the alleged misconduct took place when he was posted at Garden Reach, South Eastern Railway as an enrolled member of the Force and statutory rule 153 of R.P.F. Rules, 1987 was the only procedure to initiate disciplinary proceedings against him as the commission and omission which was alleged to have been done by him was as an Inspector R.P.F., S.E. Railway and he has not done any commission and omission as an Assistant Commandant, RPSF., 12 BN. Such contention of the petitioner as averred in Paragraph 31 of the writ application has been dealt with by the respondents through the averments made in Paragraph 15 of the affidavit-in-opposition, a perusal of which reveals that there is no specific and categoric denial of the contention of the petitioner. In course of arguments, Mr. Basu has sought to explain that the withdrawal of the earlier charge sheet was not on merits but on account of promotion of the petitioner, resulting in application of the provisions of the Rules of 1968 but there is no explanation whatsoever as to whether the disciplinary authority was determined with reference to the post held by the petitioner at the time of taking action. In the unreported judgment delivered in WPCT 210 of 2008, the Court has categorically held that it is a mandatory obligation on the part of the respondents to specify sufficient reasons in the charge memorandum itself for issuing the fresh charge memorandum. In the unreported judgment delivered in WPCT 210 of 2008, the Court has categorically held that it is a mandatory obligation on the part of the respondents to specify sufficient reasons in the charge memorandum itself for issuing the fresh charge memorandum. In the instant case there is in fact no reason whatsoever in the fresh charge memorandum issued on 16thAugust, 2010, in support of the action towards issuance of the second charge sheet containing the identical charges and imputations as incorporated in the earlier charge sheet dated 13thJune, 2008. Such lack of reasoning constitutes an error in the decision making process. It has been the stand of the respondents that there was no delay whatsoever on the part of the respondents towards conclusion of the disciplinary proceedings since the proceeding could not be concluded due to the order on 12th September, 2011 passed in MAT 1282 of 2011. In my opinion, such explanation as given by the respondents, is not sufficient and appropriate inasmuch as the sequence of facts would reveal that the first charge sheet was issued on 13th June, 2008 and the same was withdrawn after a period of more than 2 years, without any explanation as to why no steps were taken by the respondents to conclude the disciplinary proceedings. Furthermore, there is also no explanation as to why the respondents waited for a period of almost 7 months, subsequent to the ad hoc promotion of the petitioner on 4th December, 2009, for issuance of the memorandum dated 5th July, 2010. The delay towards completion of the proceeding is attributable to the respondents and in the facts and circumstances of the case, such unexplained delay is fatal. Allowing the respondents to proceed further with the disciplinary proceedings at this distant point of time will be very prejudicial to the petitioner, inasmuch as the same would pose unbearable mental agony and distress to the petitioner. The protracted disciplinary proceeding against a government employee should be avoided not only in the interest of the government employee but also in the interests of inspiring confidence in the minds of the government employees. Thus, at this stage, it is necessary to draw the curtains and to put an end to the enquiry. The judgment delivered in the case of The Secretary Forest Department & Ors. Thus, at this stage, it is necessary to draw the curtains and to put an end to the enquiry. The judgment delivered in the case of The Secretary Forest Department & Ors. (Supra) is distinguishable on facts inasmuch as in the instant case there is no charge of a pecuniary loss against the petitioner and the unexplained delay is attributable to the laches and negligence on the part of the respondents. The judgment delivered in the case of Union of India & Ors. (Supra) is not applicable in the facts of the instant case inasmuch as the issue involved in the said judgment was as to whether discretion under Article 226 can be exercised for interference at the show cause stage. The judgment delivered in the case of B.C. Chaturvedi is distinguishable on facts inasmuch as the matter was relating to a charge of possession of property disproportionate to the known source of income. There is no charge of pecuniary loss against the petitioner and that the petitioner was allowed to be superannuated from service with effect from 31st August, 2013 unconditionally and a perusal of the discharge certificate under Rule 274 of the said Rules of 1987 would reveal a clause to the effect that the conduct and character of the petitioner at the time of his leaving the Force was excellent. In the backdrop of the said facts, the disciplinary proceeding has suffered a natural death, with the cessation of the employee/employer relationship and that after superannuation, the disciplinary proceeding does not subsist. Rule 9 of the Railway Services (Pension Rules), 1993 (hereinafter referred to as the Pension Rules) has no manner of application in the instant case, since the disciplinary proceeding against the petitioner was not in terms of Rule 9 of the Pension Rules. There is no allegation of any pecuniary loss and no charge sheet has been issued against the petitioner for recovery of any pecuniary loss which might have been caused to the Railways by an act of misconduct or negligence of the petitioner. In support of such contention the petitioner has placed reliance upon the unreported judgment delivered in W.P. No.8093 (W) of 2003. In support of such contention the petitioner has placed reliance upon the unreported judgment delivered in W.P. No.8093 (W) of 2003. It has been the contention of the respondents that in view of the provisions of Rule 9 of the Pension Rules, the respondents have the power and authority to continue the disciplinary proceeding against the petitioner, after his superannuation, till it is not concluded. In support of such contention, Mr. Basu has placed reliance upon an unreported judgment delivered in FMA 1337 of 2009. A perusal of the said unreported judgment reveals that the same is distinguishable on facts inasmuch as in the said matter there was an allegation of gross neglect of duty and slack supervision in theft of 445 bags of sugar and the consequential pecuniary loss caused to the respondents. According to Mr. Basu, no reliance can be placed upon the judgment delivered in W.P. No.8093 (W) of 2003 since the same is not subsisting in view of the subsequent judgment delivered in the Hon’ble Appeal Court in FMA 1337 of 2009. In support of such contention, Mr. Basu draws the attention of this Court to the following paragraph at internal page 8 of the judgment delivered in FMA 1337 of 2009, which runs as follows :- “An unreported decision has been relied on by the learned trial Judge on this issue but this decision has not been placed before us. The learned trial Judge discussed the facts and ratio in detail. In this case we hold that order of discontinuance of disciplinary proceeding by the learned trial Judge is not sustainable under the law.” In my opinion, the argument of Mr. Basu is not acceptable since the judgment reveals that the judgment delivered in W.P. No.8093 (W) of 2003 was not even placed before the Hon’ble Appeal Court and that as such the Court had no opportunity to consider the said judgment and thus, it cannot be argued that the judgment delivered by the Hon’ble Appeal Court has the effect of overruling the judgment delivered in W.P. No.8093 (W) of 2003. Admittedly, there is no allegation of pecuniary loss against the petitioner and that the proceeding itself is not a disciplinary proceeding under Rule 9 of the said Pension Rules. Admittedly, there is no allegation of pecuniary loss against the petitioner and that the proceeding itself is not a disciplinary proceeding under Rule 9 of the said Pension Rules. Apart from the provisions of Rule 9 of the Pension Rules, no rule has been brought to the notice of this Court providing for continuation of disciplinary proceeding despite permitting the employee concerned to retire unconditionally. For the above reasons the writ application is allowed and the respondents are directed to drop the disciplinary proceedings, which had been initiated against the petitioner through the charge sheet dated 16th August, 2010 and to release all the terminal benefits to the petitioner, within a period of 6 weeks from the date of communication of this order. The writ application is, accordingly, disposed of. In the facts of the present case, there will be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.