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2017 DIGILAW 889 (CAL)

Kalika Pathak v. Union of India

2017-11-17

DEBASISH KAR GUPTA, SHEKHAR B.SARAF

body2017
JUDGMENT : Re : CAN 10491 of 2017 1. This application arises out of an appeal preferred against the impugned judgment dated October 25, 2017 passed in W.P. No. 25712 (W) of 2017. This application is taken up for hearing dispensing with formality of exchanging affidavits with the consent of the parties. 2. It is submitted by Mr. Achin Kumar Majumder, learned Advocate appearing for the petitioner/appellant that the subject matter of challenge in the writ application was a second show cause notice dated September 21, 2017 issued by the respondent No. 2 asking the appellant to show cause as to why major punishment as laid down in Rule 148.2(a) to 148.2(c) of Railway Protection Force Rules, 1987 (hereinafter referred to as the said Rules) should not be awarded to the appellant. Drawing our attention towards a communication dated May 10/11, 2016 of the respondent No. 2 addressed to the respondent No. 3, it is submitted by Mr. Majumder, that while considering the matter relating to a disciplinary proceeding initiated against the appellant, the respondent No. 2 sent the entire matter back to the respondent No. 3 with a view to afford him an opportunity to have a fresh look at the case and to take appropriate remedial measures in accordance with the said Rules in the greater interest of fair play and justice. The above communication was issued after receiving the report of the of the enquiry officer. According to Mr. Majumder, seven points were raised by the respondent No. 2 to arrive at his above conclusion which are as follows: "(i) The list of witnesses by whom the article of charge against Sri Kalika Pathak, IPF/RPF/BLS were proposed to be sustained has been enclosed as Annexure IV. In this annexure, name of the party charged Sri Kalika Pathak has been mentioned as a prosecution witness at Sr. No. 15. (ii) The name of Sri K.M. Psathak, SIPF/OP/Baripada, has been mentioned at the places i.e. at Sl. No. 14 & 22 of this annexure. (iii) Neither Sri Ajay Kumar Chechi, Manager, RR Roadways Pvt.; Ltd., the complainant in the CBI Case nor the two drivers namely, Ram Vilas Chaudhury and A.K. Md. Sayed who were alleged detained along with their vehicles and confined by RPF for illegal money, were made prosecution witness. No. 14 & 22 of this annexure. (iii) Neither Sri Ajay Kumar Chechi, Manager, RR Roadways Pvt.; Ltd., the complainant in the CBI Case nor the two drivers namely, Ram Vilas Chaudhury and A.K. Md. Sayed who were alleged detained along with their vehicles and confined by RPF for illegal money, were made prosecution witness. The I.O. also did not call them as I.O.'s witness during the D&AR proceedings for examination and cross-examination by the party charged. These persons would have been very crucial in deciding the culpability of the party charged and in bringing out the truth in the D&AR proceedings. (iv) Sir Ajay Kumar Chechi, Manager, RR Roadways Pvt. Ltd. lodged an FIR with CBI/Bhubaneshwar on 23.11.2013 against IPF/BLS for demanding bribe. In this FIR he has mentioned that his two vehicles were detained on 20.11.2013 along with their drivers. When he contacted Sri Pathak, IPF/BLS on phone on 21.11.2013, he demanded Rs. 1.50 Lacs for releasing the above mentioned vehicle. However, in the charge sheet, the date of detention of vehicles' drivers have been shown on 22.11.2013. It has not been clarified during the enquiry. (v) ASC/RPF/OL/KGP recorded the statement of Sri Ram Vilas Chaudhury, one of the drivers on 23.11.2013 itself which has been mentioned in the preliminary report of Sri S.N. Banerjee, ASC/WS/KGP submitted to Sr. DSC/KGP. During the identification parade conducted under the supervision of SP/CBI/BBS on 23.11.2013, another driver by name A.K. Md. Sayeed was also present but his statement was not recorded. The statement of Sri Ram Vilas Chaudhury was taken as relied upon document and it was exhibited during DAR enquiry, but even after the objection raised by the party charged, he was not called for cross-examination. (vi) NO CBI official was made PW in the D&AR enquiry to corroborate trap story involving Shri K. Pathak, the then IPF/BLS. They could have been called during the enquiry to provide adequate opportunity of cross-examination to the party charged in the larger interest of fair play and natural justice. Efforts made the I.O. in this regard could not be noticed in the file. They could have been called during the enquiry to provide adequate opportunity of cross-examination to the party charged in the larger interest of fair play and natural justice. Efforts made the I.O. in this regard could not be noticed in the file. (vii) Tough the allegation of corruption, discreditable conduct, disobedience of order, arrest by Officers and staff of CBI/Bhubaneswar for demanding and accepting illegal gratification from Sri Ajay Kumar Kishan Deb Chechi, have been mentioned in the statement of charge, not much evidence has been collected for arriving at the findings." 3. According to Mr. Majumder, thereafter the second show cause notice dated September 21, 2017, mentioned hereinabove, was issued to the appellant. According to him, no further opportunity of hearing was given to him in the disciplinary proceeding on the basis of the observations made by the respondent No. 2 and as a result, the decision making process of the disciplinary authority in issuing the second show cause notice has been vitiated due to the procedural irregularity. It is also his submission that a Court, in course of judicial review, can interfere with the show cause notice even before imposing the punishment when the disciplinary authority has formed an opinion for imposing major punishments upon the appellant on the basis of the disciplinary proceeding initiated against him under Rules 148.2(a) to 148.2(c) of the said Rules, which deals with major punishments like dismissal, removal and compulsory retirement of the delinquent employee. 4. Reliance is placed by Mr. Majumder on the decisions of the Hon'ble Supreme Court in the matter of State of Punjab v. V.K. Khanna & Ors. reported in AIR 2001 SC 343 and Siemens Ltd. v. State of Maharashtra & Ors. reported in (2006)12 SCC 33 in support of his submissions. 5. On the other hand, it is submitted by the learned Advocate appearing for the respondents that from the second show cause notice it appears that before arriving at a conclusion for imposing major punishment upon the appellant it had been found by the respondent No. 2 that the departmental enquiry was quite in order. Therefore, the second show cause notice was issued by him after due application of mind so far as the objections raised in his earlier communication dated May 10/11, 2016 were concerned. 6. Therefore, the second show cause notice was issued by him after due application of mind so far as the objections raised in his earlier communication dated May 10/11, 2016 were concerned. 6. Having heard the learned Counsel appearing for the respective parties as also after considering the facts and circumstances of this case, we find that the learned Single Judge after taking into consideration the aforesaid facts and circumstances arrived at a conclusion that a Court in course of judicial review should be slow to interfere in the matter of a disciplinary proceeding before imposing a punishment upon him. It is not in dispute that an opinion has already been formed by the respondent No. 2 in this case for imposing major punishment upon the appellant in connection with his services under the respondent authority. 7. It is the settled principle of law that ordinarily a Court in course of judicial review should not interfere in the matter of a disciplinary proceeding at the stage of issuing second show cause notice by the disciplinary authority or in other words, until any punishment is imposed upon the delinquent employee. But it is equally age-old settled principles of law that in a case where the decision making process of issuing a show cause notice is under challenge and a strong arguable case is made out with regard to the formation of an opinion to take adverse steps against the delinquent employee in connection with the disciplinary proceeding then the Court need not wait till the punishment is imposed upon the delinquent employee. Reference may be made to the decision of State of Punjab v. V.K. Khanna & Ors. (supra) and the relevant portion of the above decision is quoted below: "33. While it is true that justifiability of the charges at this stage of initiating a disciplinary proceeding cannot possibly be delved into by any Court pending inquiry but it is equally will settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a charge-sheet or the concerned authority is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law Courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious. It is the due process of law which should permeate in the society and in the event of there being any affection of such process of law that law Courts ought to rise up to the occasion and the High Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings." 8. We find that in that case the charge sheet which had been issued against the delinquent employee was set aside even before conclusion of the disciplinary proceeding against the delinquent employee. 9. While adjudicating the issue involved in this appeal, we find that admittedly the final order of punishment is yet to be passed. It is not in dispute that an opinion has already been formed by the disciplinary authority to impose a major punishment like dismissal or removal or compulsory retirement. 10. In the instant case, we further find that after receiving the reply to the report of the enquiry office the same was forwarded to the appellant for his representation. Thereafter the entire matter was forwarded by the respondent No. 3 to the respondent No. 2, who was the competent authority to impose major punishment upon the appellant in connection with the disciplinary proceeding under the provisions of Rules 148.2(a) to 148.2(c) of the said Rules. On perusal of the communication dated May 10/11, 2016, we find that the respondent No. 2 raised seven points with regard to the procedural irregularity of the disciplinary proceeding, most of which relates to the enquiry proceeding, amongst other observations. On perusal of the second show cause notice dated September 21, 2017 issued by the same authority, i.e. the respondent No. 2, we find that though the objections, which had been raised by him earlier, were taken into consideration in the second show cause notice, no reason was assigned to ignore the aforesaid earlier objections raised by him. We only find that, according to the observations made in the second show cause notice, "departmental enquiry was quite in order". That observation was not based on any reason. We only find that, according to the observations made in the second show cause notice, "departmental enquiry was quite in order". That observation was not based on any reason. Therefore, this was a fit case for the learned Single Judge to interfere with at this stage, i.e. before imposing the punishment upon the delinquent employee as proposed in the second show cause notice after considering his reply thereto. The satisfaction of the respondent No. 2 to issue the second show cause notice dated September 21, 2017 without explaining the reasons to ignore the objections which had been raised by him earlier should have been looked into by the learned Single Judge even before imposing the punishment upon the appellant by the disciplinary authority. 11. In view of the discussions and observations made hereinabove, we are of the opinion that no useful purpose will be served in keeping this appeal pending and consequent thereupon this appeal and application for passing further order filed in connection within this appeal are taken up treating this appeal as on day's list. 12. The impugned judgment is quashed and set aside. The matter is remanded back to the learned Single Judge for hearing of the writ application on the basis of the observations made hereinabove. 13. Since a considerable period of time has passed, we direct the respondents to file affidavit-in-opposition within three weeks and reply thereto, if any, be filed within one week thereafter. Parties to the writ application will be at liberty to mention the matter before the appropriate Bench for expeditious hearing. In the event such mentioning is made, the learned Single Judge is requested to dispose of the writ application at an early date. 14. The respondent authority is restrained from proceeding further on the basis of the second show cause notice dated September 21, 2017 till disposal of the writ application. 15. Accordingly, this appeal together with application are disposed off. 16. There will be, however, no order as to costs. 17. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.