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2019 DIGILAW 199 (CAL)

Debobrata Mukherjee v. Union of India

2019-02-07

ABHIJIT GANGOPADHYAY

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JUDGMENT ; Abhijit Gangopadhyay, J. In this writ application the petitioner has prayed inter alia, for a Mandamus directing the respondents to quash/set aside the final order of compulsory retirement dated 25.05.2009 and the appellate order dated 13.09.2013, dismissing the appeal. 2. The petitioner was a Constable in Railway Protection Force (RPF in short) working under South Eastern Railway, upon whom punishment of 'compulsory retirement' has been imposed as a culmination of a disciplinary proceeding against him. 3. The punishment of compulsory retirement more specifically the order imposing punishment dated 22.05.2009 upon the petitioner was initially challenged by him by filling one writ application being W.P No 10484 (W) of 2009 wherein by judgment and order dated January 22, 2013 the Hon'ble court granted him leave to prefer an appeal within a period of 4 weeks from the date of the said judgment and order with a direction upon the appellate authority namely the Chief Security Commissioner to consider the said appeal uninfluenced by any observation made in the order passed in the said writ application. 4. Said order of the writ Court dated January 22, 2013 was challenged by the petitioner by preferring an appeal before the Division Bench being MAT 299 of 2013 with CAN 3522 of 2013. The appellate Court dismissed the appeal and the application on 15.05.2013 only extending the time for filling the appeal by 4 weeks from the date of the appeal Court's order. 5. Pursuant to the said order of the appellate Court the petitioner herein preferred an appeal before the DIG-cum-Addl. Chief Security Commissioner/RPF, South Eastern Railway, on 24.06.2013. The appellate authority by its order dated 13.09.2013 dismissed the said appeal and communicated the same to the petitioner by letter dated 17.09.2013. 6. The final order and also the appellate order dated 13.09.2013 have been challenged by the petitioner in the present writ application. 7. On a reading of the pleadings and the documents annexed thereto the following facts are found. 8. On 06.11.2007 the respondent Railways (hereinafter referred to as the respondent) called for explanation from the petitioner on the proposed charges in respect of charge sheet No. RPF/DA/R-153/11-07/DM-362/11347 dated 06.11.2007. The petitioner as a Constable of RPF was charged with neglect of duty and with disobedience of order. 9. 8. On 06.11.2007 the respondent Railways (hereinafter referred to as the respondent) called for explanation from the petitioner on the proposed charges in respect of charge sheet No. RPF/DA/R-153/11-07/DM-362/11347 dated 06.11.2007. The petitioner as a Constable of RPF was charged with neglect of duty and with disobedience of order. 9. He was charged with neglect of duty as he remained absent from duty for the period from 03.10.2006 to 02.04.2007 on the ground of his own sickness and for his wife's sickness. He never approached the Railway hospitals for treatment. In support of his illness he had disclosed same certificates from some private Medical practitioners only. And as he did not assume his duty despite receiving the call back notice from employer in the above period, he was charged with disobedience of order. 10. In the above period of absence (i.e. from 03.10.2016 to 02.04.2007) from duty, on seven occasions for different periods, he was absent for self-sickness and once for wife's sickness. 11. He was charged for violation of Rule 146.2 (i), (iii) and 146.3(i) of RPF Rules 1987. 12. As per RPF Rules 1987 Enquiry Officer (E.O., in short, hereafter) was appointed and the disciplinary proceeding (DP, in short, hereafter) was conducted in accordance with RPF Rules, 1987 following the principles of natural justice. Initially, it is found from the findings of DP, the petitioner did not appear to face the proceeding despite receiving notice. Subsequently he participated in the proceeding. 13. In DP, three prosecution witnesses were examined and thirty two documents were exhibited from the prosecution side. 14. The petitioner in writing declined to cross examine the witnesses on the ground that defence friend was not engaged. On the same ground he did not give any defence evidence and did not produce any defence witness. 15. From the appellate order dated 13.09.2013 it is found that the petitioner was issued charge sheet for 15 times in his service period and he was given chances to amend himself and lenient punishment like censure, stop of increment, regularising the leave by treating it as extraordinary leave (EOL) were imposed upon him but the petitioner's behaviour did not change. 16. From the pleadings, documents annexed to the writ application including the findings of DP and the order dated 13.09.2013 passed in appeal by the DIG-cumAddl. 16. From the pleadings, documents annexed to the writ application including the findings of DP and the order dated 13.09.2013 passed in appeal by the DIG-cumAddl. Chief Security Commissioner/RPF, S.E. Railway, I have not found any irregularity in conducting the DP. Principles of natural justice was followed fully by granting opportunity to the petitioner to present his case and to defend himself. 17. But the petitioner has failed to cross examine the witnesses; failed to produce any document or witness from which it can be shown that his absence from service was bona-fide or had any justification ; failed to demonstrate any irregularity in the procedure of the DP; failed to show that principles of natural justice, were violated. 18. I have found from the pleading of the petitioner an allegation in several places in the writ application that he was not given the 'defence friend' for which cross examination of the prosecution witnesses was not possible by him and by not engaging a 'defence friend' grave injustice was caused to him for which the prosecution was responsible. 19. Such allegations of the petitioners are fully baseless as the petitioner himself failed to engage a 'defence friend'. At one stage of DP he supplied the name of a person as his 'defence fiend' who did not appear; the petitioner was granted further opportunity by the E.O. to engage any other 'defence friend' which the petitioner could not do; Engagement of 'defence friend' was to be done by the charged employee. No legal provision or authority has been placed before me to show that engaging 'defence friend' is the duty of the prosecution or the E.O. The petitioner has failed to take note of Rule 153.8 of the above Rules which categorically states that such "friend" however, would not be allowed to address the E.O. nor would be allowed to cross examine the witness. 20. Therefore, the allegation of the petitioner of causing grave injustice to him for want of 'defence friend' is wholly baseless. Even if he could engage a 'defence friend', the 'defence friend' could not have cross examined the witnesses. The allegation of the petitioner that cross examination could not be done for want of 'defence friend' does not have any merit, and such contention is rejected. Even if he could engage a 'defence friend', the 'defence friend' could not have cross examined the witnesses. The allegation of the petitioner that cross examination could not be done for want of 'defence friend' does not have any merit, and such contention is rejected. There is also no reason disclosed by the petitioner as to why for want of a 'defence friend' he could not produce documents for marking those as exhibits in support of his defence. 21. The petitioner has alleged that by using the term "habitual absentee" against him by the prosecution the respondent has caused a serious mistake; but from the affidavit-in-opposition used by the respondents in this matter (affirmed on 6th December 2013) it is found from paragraph 4 thereof that during his 22 years' working period the petitioner took leave for 72 times ranging from one day to 387 days. Such allegation of the petitioner is also baseless. 22. It is well settled in such matters i.e. when a final order or order of appeal therefrom in a DP is challenged by an employee, by way of a writ application, the first thing which the writ Court must keep in mind is that it must not approach the case as an appeal against the order of the disciplinary authority. 23. The settled legal position, in respect of dealing with such departmental proceeding, by a writ court, is that if there is some legal evidence on which the findings of the disciplinary authority can be based then adequacy or even reliability of such evidence is not a matter for canvassing before the High Court in a writ application filed under Article 226 of the Constitution of India. 24. When in a disciplinary proceeding the evidences are accepted and conclusion receives support there from, disciplinary authority is entitled to hold that the delinquent employee is guilty of the charge. The Court cannot re-appreciate the evidence and arrive at its own independent findings on the evidence. 25. Further as judicial review being a review of the manner in which the decision is made, it is to be seen by a Court in writ application, whether the individual has received fair treatment and whether the findings or conclusions are based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. 26. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. 26. Keeping in mind the above principles I say that there is no merit in the writ application for which this court will interfere in the matter. Interference with the decision of disciplinary authority can be permitted in the following situations: (a) When the disciplinary authority has held the proceedings in violation of the principles of natural justice ; or (b) When it has been held in violation of statutory regulations prescribing the mode of such enquiry; or (c) If the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case; or (d) If the conclusion made by the disciplinary authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion; or (e) Grounds very similar to the above. 27. The petitioner in the present writ application has failed to show any of the above situations warranting interference by writ court. On the contrary the petitioner has invited this Court to some factual aspects as if the writ Court is sitting over appeal against the order of the disciplinary authority and has invited this court to some baseless allegations relating to 'defence friend'. The petitioner has failed to show anything in his elaborately drafted writ application, that his case comes within any of the above situations or situations 'very similar' to the above. 28. On the contrary there is sufficient legal evidence on which the findings of the authority is based. There is no violation of statutory regulation or principles of natural justice. The conclusion reached is not arbitrary or capricious. 29. The disciplinary authority is the sole judge of fact and here in this DP has made no mistake in reaching to the conclusion after giving adequate opportunity to the petitioner to defend his case. 30. For the reasons as aforesaid I do not find any merit in the writ application and any merit in the allegations made in respect of enquiry proceeding. The writ application is dismissed.