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2017 DIGILAW 167 (CAL)

Ram Nath Ram v. Union of India

2017-02-13

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty, J. The subject matter of challenge in the instant appeal is an order dated 23rd March, 2010 passed by the learned Single Judge in WP 1390 of 1999. 2. Shorn of unnecessary details, the facts are that while working in the post of a Head Constable under the Railway Protection Force (hereinafter referred to as RPF), the writ petitioner/appellant herein was issued a major penalty charge sheet on 29th November, 1996. On 21st December, 1996 the appellant was arrested by police for his direct involvement in murder of a Constable, namely, C.B. Singh and a case was registered against him being Case No. 203/96 dated 21st December, 1996 under Section 302/307/114 of Indian Penal Code and section 27 of the Arms Act. Thereafter the appellant was placed under suspension on 24th December, 1996 and was dismissed from his service in application of the provisions of Rule 161 of the Railway Protection Force Rules, 1987 (hereinafter referred to as the said Rules of 1987). Challenging the same a writ petition being WP 2096 of 1997 was preferred and pursuant to the direction of the Court the appellant was reinstated in service. After such reinstatement the authorities proceeded with the disciplinary proceeding pertaining to the charge sheet dated 29th November, 1996. The enquiry officer dispatched a number of letters to the appellant to attend the enquiry but the appellant chose not to contest the same. Upon conclusion of the enquiry, the enquiry report was also sent to the appellant. The appellant did not reply to the same and ultimately the disciplinary authority imposed a punishment of removal from service on 31st March, 1999. Challenging the said disciplinary proceeding and the final order passed in the same, the appellant preferred the writ petition being WP 1309 of 1999. The said writ petition was heard upon exchange of affidavits and dismissed by the order impugned in the instant appeal. 3. Ms. Bharati Ghosh, learned advocate appearing for the appellant submits that the appellant was not issued proper notices to contest the proceedings. The respondents also did not consider the representation dated 11th December, 1996 made by the appellant for change of the enquiry officer. The enquiry report was also not served upon the appellant and from such facts it is explicit that the proceedings were conducted in blatant violation of the principles of natural justice. 4. The respondents also did not consider the representation dated 11th December, 1996 made by the appellant for change of the enquiry officer. The enquiry report was also not served upon the appellant and from such facts it is explicit that the proceedings were conducted in blatant violation of the principles of natural justice. 4. She further submits that on the date of the incident pertaining to which the charge sheet dated 29th November, 1996 was issued, the appellant and one C.B. Singh were on duty but surprisingly the authorities did not take any steps against C.B. Singh whereas the appellant was imposed a major penalty. Such discrimination as practised by the respondents maligns the entire proceeding. Such arguments as advanced on behalf of the appellant were not taken into consideration and the learned Single Judge dismissed the appeal by a cryptic order. 5. She further submits that the punishment imposed upon the appellant is shockingly disproportionate and the authorities have proceeded with a preconceived notion and a mindset to the effect that the appellant is guilty of all the charges. 6. Mr. Swapan Banerjee, learned advocate appearing for the respondents submits that repeated notices were sent to the appellant requesting him to attend the enquiry but in vain. Upon fixing a date on 28th July, 1998, the enquiry officer sent a notice to the appellant at village Orwarey, P.O. Mugalsari through IPF/C&TE Coy/ASN, who in turn reported by a letter dated 28th July, 1998 that the appellant had refused to receive the same. The enquiry report was also attempted to be served upon the appellant at the same address but the same was also refused to be accepted as would be explicit from a letter dated 6th December, 1998 issued by the ASI/C&TE/ASN. In the said letter it was also reported that as the appellant refused service, the report was pasted on the door of his residence. The order of punishment dated 31st March, 1999 was first attempted to be served upon the appellant by registered post but the same returned back. Thereafter on 18th June, 1999 ASI/Surendra Pd. Singh of C&TE Coy/Asansol along with ASI/S.N. Prasad of Mugalsarai/DN Post went to the house of Sri R.N. Ram (Village Orwary, Harijan Basti, PO & Dist. Mugalsarai (UP) and met with the appellant and requested him to receive the punishment order but he refused to receive the same. Thereafter on 18th June, 1999 ASI/Surendra Pd. Singh of C&TE Coy/Asansol along with ASI/S.N. Prasad of Mugalsarai/DN Post went to the house of Sri R.N. Ram (Village Orwary, Harijan Basti, PO & Dist. Mugalsarai (UP) and met with the appellant and requested him to receive the punishment order but he refused to receive the same. They even tried to paste the punishment order on the door of the dwelling house of the appellant, which he did not allow. In support of such contention reliance has been placed upon the documents annexed at pages 167 to 172 of the paper book. 7. He further submits that the appellant was given ample opportunity to contest the disciplinary proceedings but he himself chose not to participate in the same and that as such the allegation of violation of the principles of natural justice is not sustainable in law. 8. Drawing the attention of this Court to the order of punishment dated 31st March, 1999, Mr. Banerjee submits that the enquiry officer made sincere attempt to ensure presence of the appellant in the enquiry. The enquiry officer recorded statements of five prosecution witnesses and marked four prosecution exhibits and conducted the proceedings in strict consonance with the statutory provisions. The disciplinary authority duly considered the enquiry report and upon independent application of mind passed a reasoned order imposing the punishment of removal from service. 9. He further argues that it is a well-settled proposition of law that the power of the Writ Court to interfere with the disciplinary action is limited and the Writ Court does not, in exercise of power of judicial review, re-appreciate the evidence and that the Writ Court cannot sit in appeal over the orders passed by the disciplinary authority. Upon application of such proposition of law to the facts of the case, the learned Single Judge has rightly refused to interfere with the disciplinary proceedings and the final order passed in the same. 10. Heard the learned advocates appearing for the respective parties and considered the materials on record. 11. It is well settled that a Court of appeal should not ordinarily interfere with the discretion exercised by the Court below and that the appellate power is exercised not when a possible view has been taken by the Court of first instance but when the order is clearly wrong. The difference is real though fine. 12. 11. It is well settled that a Court of appeal should not ordinarily interfere with the discretion exercised by the Court below and that the appellate power is exercised not when a possible view has been taken by the Court of first instance but when the order is clearly wrong. The difference is real though fine. 12. Record reveals that the appellant was given ample opportunity to contest the disciplinary proceedings and that there has been no violation of the principles of natural justice. If fairness is shown by the decision-makers to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of its situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. 13. It is well-settled that any interference with the order of punishment is permissible in very rare cases. In the instant case the punishment is not so disproportionate to the established charge, that it would appear unconscionable and actuated with malice. The punishment should not be merely disproportionate but should be strikingly disproportionate to warrant interference by the High Court under Article 226 of the Constitution of India and it is only in an extreme case, where on the face of it there is perversity or irrationality, the punishment will be amenable for interference under the limited scope of judicial review. 14. Measure, magnitude and degree of misconduct needs to be taken into consideration for weighing the proportion. The appellant's conduct was reproachable and his understanding of responsibility and adherence to discipline was questionable. Regard being had to the facts involved, the nature of post held by the appellant and the conduct expected of him, we are of the opinion that the doctrine of proportionality is not in-vocable in the instant case. 15. The learned Single Judge, upon dealing with all the factual issues arrived at specific findings and we do not find any error in the same. The impugned order does not suffer from manifest injustice warranting interference of this Court. 16. For the reasons as discussed above, no interference is called for and the appeal is, accordingly, dismissed. In the facts of the present case, there will be no order as to costs. The impugned order does not suffer from manifest injustice warranting interference of this Court. 16. For the reasons as discussed above, no interference is called for and the appeal is, accordingly, dismissed. 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.