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2019 DIGILAW 340 (CAL)

Jyotish Chandra Karmakar v. Union of India

2019-03-11

ABHIJIT GANGOPADHYAY

body2019
JUDGMENT : 1. The petitioner was a Head Constable of Railway Protection Force, (RPF in short) and now working as Assistant Sub- Inspector, RPF in Malda Division. 2. In the year 2010 when the petitioner was a Constable under RPF, he was placed under suspension and was directed by the suspension order dated 25.08.2010 to present himself daily for attendance during the suspension period. On 11.09.2010 an explanation was called for from the petitioner directing him to submit his explanation within five days from the date of receipt of letter for explanation. 3. The charge against the petitioner was of collecting money while on duty from the persons carrying un-booked luggage inside the train compartment on 24.08.2010 in train No. 611 UP (MLDT-NJP Passenger) which was detained at Malda in platform No. 5. It was also alleged that on that day some of the passengers were assaulted by on duty RPF staff. 4. On 16.09.2010 the petitioner submitted his explanation denying the allegation against him. On 01.10.2012 he prayed for revocation of the suspension order. Considering his prayer order of suspension was revoked on 18.10.2010. But the disciplinary proceeding continued. 5. All the above actions were taken by the RPF authority following RPF Act 1957 and RPF Rules 1987. 6. On 18.09.2010 charge sheet was issued against the petitioner. From the affidavit-in-opposition used by the respondent it is found that preliminary enquiry was conducted by Inspector/ RPF, Malda and the report was submitted wherein the involevement of the petitioner in respect of the allegations against him was not ruled out. 7. The petitioner participated in the disciplinary proceeding and filed his written defence on 16.12.2010 which has been annexed to the writ application as Annexure P-5. 8. In his written defence as well as in the writ application in paragraphs 13,14,15,16,17,18,19,20,21 and 22 the petitioner has stated that no charges against him of collecting money etc. was proved by any of the witnesses. 9. The Enquiry Officer after holding enquiry, wherein the petitioner participated, held that the petitioner was guilty of the charges brought against him. 10. The report of the Enquiry Officer was submitted on 17.12.2010. 11. The charge sheet that was issued to the petitioner was a major penalty charge sheet (No. MLD/CS/153/09/2010 dated 18.09.2010) where under the Enquiry Officer was engaged. 12. 10. The report of the Enquiry Officer was submitted on 17.12.2010. 11. The charge sheet that was issued to the petitioner was a major penalty charge sheet (No. MLD/CS/153/09/2010 dated 18.09.2010) where under the Enquiry Officer was engaged. 12. After receiving the report of the Enquiry Officer the disciplinary authority decided to impose upon the petitioner the penalty of "REMOVAL FROM SERVICE" and with the above decision, the findings of the Enquiry Officer, copies of the proceeding were supplied to the petitioner intimating him that if he wanted to file another representation/ submission that was to be done in writing within ten days. 13. It is found from the writ application and the documents annexed to the writ application that at that stage of this proceeding, the petitioner filed this writ application praying for mandamus commanding the respondent authority to forbear from giving effect or further effect on proceeding of the departmental enquiry indicated by the suspension order dated 25.08.2010, memorandum of charge sheet dated 18.06.2010, show-cause notice dated 07.02.2011 and the findings of the Enquiry Officer and prayed for other writs with connected prayers like not proceeding with the disciplinary proceeding etc. Which is found from the prayers made in the writ application. 14. On 21.02.2011 when the matter was moved before this Court an interim order to the effect that "all actions taken shall be subject to the final result of the writ petition and if any final order is passed in the mean time, it will not be given effect to without obtaining leave of the Court", was passed. 15. Being protected by this interim order the petitioner has been working as a RPF Personnel; it has been intimated to this Court that the petitioner is presently working as Assistant Sub-Inspector of RPF working in Malda Division. 16. In the affidavit-in-opposition filed by the respondents beside denying and disputing different allegations made by the petitioner the respondents have taken an objection that after participating in the disciplinary proceeding, the petitioner could not challenge the show-cause notice and he has not assailed disciplinary proceeding in nascent stage and he has filed the writ application just before imposition of punishment. In the affidavit-in-opposition filed by the respondents beside denying and disputing different allegations made by the petitioner the respondents have taken an objection that after participating in the disciplinary proceeding, the petitioner could not challenge the show-cause notice and he has not assailed disciplinary proceeding in nascent stage and he has filed the writ application just before imposition of punishment. The other objection taken by the respondent is that there is existence of alternative remedy of appeal and revision as per statuory rule and without availing the alternative remedy the petitioner has approached the writ Court and therefore, the writ application is not maintainable in view of existence of alternative remedy. 17. It is true that the petitioner in his prayers have prayed for mandamus commanding the respondent to forbear form giving effect or further effect or proceeding with the departmental enquiry etc. as has been referred above without availing the alternative remedy. But this Court entertained the writ application, even passed an order on 21.12.2011 giving interim protection to the petitioner. Such order of this Court was not appealed against. At this stage and eight years from the date of the first order passed in this matter (on 21.02.2011) I am not inclined to dismiss the writ application on the ground of availability of alternative remedy. 18. However, I have found that the case of the petitioner as has been made out is premature and it has been filed challenging the show-cause notice and the charge sheet and the whole proceeding initiated thereby, which in my view is premature. In this regard the respondent has relied upon the judgment reported in (Union of India & Anr. -versus- Kunisetty Satyanarayana, (2007) AIR SC 906) wherein the Supreme Court has held that mere charge sheet or show-cause notice does not give rise to any cause of action because it does not amount to adverse order which affects the rights of any party, unless the same has been issued by a person having no jurisdiction to do so. 19. Nowhere, it has been alleged by the writ petitioner that the show-cause notice or the charge sheet has been issued by a person who does not have jurisdiction to do so. 20. Therefore, I hold that the writ application is premature. 19. Nowhere, it has been alleged by the writ petitioner that the show-cause notice or the charge sheet has been issued by a person who does not have jurisdiction to do so. 20. Therefore, I hold that the writ application is premature. It does not have any cause of action and the allegations made by the petitioner regarding illegality of the proceeding does not have any merit as the enquiry has been fairly and properly conducted and findings are based on evidence; and the question of adequacy of the evidence or the reliable nature of the evidence cannot be grounds for interfering with the findings of fact recorded in departmental enquiry except where such findings are based on no evidence or where they are clearly perverse. It is to be kept in mind that the disciplinary authority is the sole Judge of facts and neither the technical Rules of Evidence Act nor of proof of fact or evidence as defined therein apply to disciplinary proceeding. In respect of the above view the respondents have placed reliance on two decisions reported in (State Bank of Bikaner and Jaipur -versus- Nemai Chand Nalwaya, (2011) 4 SCC 584 ) and (B.C.Chaturvedi -versus- Union of India and Others, (1995) 6 SCC 749 ). 21. There is no allegation of the petitioner of violation of principles of natural justice. 22. In the facts and circumstances, I dismiss the writ application and I make it clear that the interim order by which the petitioner was protected from 21.02.2011 is naturally vacated and all actions taken in the mean time by the respondent authority can be given effect to and if any final order is to be passed now in this mater, it can be given effect to without obtaining leave of the Court as the interim order dated 21.02.2011 is vacated. No Costs.