JUDGMENT : Raja Basu Chowdhury, J. 1. Affidavit-in-reply filed in Court today is retained with the record. 2. The present writ application has been filed, inter alia, challenging the charge-sheet dated 8th May, 2008, the findings of the enquiry officer dated 16th October, 2008, the show cause notice dated 17th October, 2008, the order of punishment dated 31st October, 2008 and the order passed by the Appellate Authority dated 10th June, 2009. The petitioner is a constable of Railway Protection Force (in short RPF) of Eastern Railway and at the time of filing of the writ application, the petitioner was posted at RPF, Jamalpur (Yard) Post in Malda. The petitioner, while being posted at Jamalpur (Yard) Post was served with a charge-sheet dated 8th May, 2008, wherein it was alleged that while he was detailed for mess duty vide Diary Entry no. 1079 at 07.00 hours on 24th February, 2008, he had, in gross dereliction of his duties left the mess and was found present at Daulatpur Railway colony where he sustained bullet injury. Along with the charge-sheet, the petitioner was supplied with a list of prosecution witnesses and a list of documents which, inter alia, included findings of the Court of enquiry as submitted by the Assistant Security Commissioner, RPF, Jamalpur (Yard) Post. 3. Simultaneously, while issuing the said charge-sheet, the petitioner was also informed that an enquiry officer of the rank of Inspector had been appointed to enquire into the charges leveled against the petitioner. Immediately upon receipt of the charge-sheet, by two several undated communications in writing, the petitioner not only questioned the authority of the enquiry officer to inquire into the charges, since the fact finding enquiry had been conducted by an officer who was superior in rank to that of the enquiry officer, but also questioned the issuance of the charge-sheet and the appointment of the enquiry officer without affording the petitioner an opportunity of hearing. In support of his contention he had placed reliance on a judgment delivered by the Hon’ble Supreme Court in the case of State of Punjab v. V.K. Khanna & Ors., (2000) 5 SLR 734 , as is recorded in such communication. The petitioner, however, participated in the enquiry proceedings. After conducting the enquiry, the Disciplinary Authority had forwarded the petitioner with a copy of the enquiry report by cover of letter dated 17th October, 2008. The petitioner, however, participated in the enquiry proceedings. After conducting the enquiry, the Disciplinary Authority had forwarded the petitioner with a copy of the enquiry report by cover of letter dated 17th October, 2008. Subsequently, a final order was passed by the Disciplinary Authority on 31st October, 2010, awarding a punishment of reduction to a lower scale of pay of Rs. 5200/- for 3 years with cumulative effect. Although, the petitioner had preferred a statutory appeal, the Appellate Authority by an order dated 10th June, 2009, which was communicated to the petitioner vide a covering letter dated 17th June, 2009, was, inter alia, pleased to reject the said appeal. 4. Being aggrieved, the present writ application has been filed. 5. Mr. Majumder, learned advocate appearing for the petitioner, by referring to rule 153.3 of the Railway Protection Force Rules, 1987 (hereinafter referred to as the “said Rules”), submits that the Disciplinary Authority at the first instance upon receipt of the complaint or otherwise on going through the facts alleged or brought out has to consider whether it is the case of major or minor punishment. It is only, thereafter, charges ought to have been framed and an opportunity ought to have been afforded to the petitioner to respond to the show cause as to why enquiry shall not be held. It is only after receipt of reply to the show cause that an enquiry should be ordered, if the reply is not found to be satisfactory. 6. In the instant case, the Disciplinary Authority prior to framing the charge did not bother to issue any show cause notice inviting response from the petitioner. The Disciplinary Authority, however, while assuming the mantle of the enquiry officer, also fixed the date of enquiry. 7. It is submitted by Mr. Majumder that the Disciplinary Authority even before framing the charges had made up its mind to hold the enquiry against the petitioner. It is, for such reason no show cause was issued. This, itself, according to Mr. Majumder, shows bias and is sufficient to vitiate the enquiry proceedings. 7. It is submitted by Mr. Majumder that the Disciplinary Authority even before framing the charges had made up its mind to hold the enquiry against the petitioner. It is, for such reason no show cause was issued. This, itself, according to Mr. Majumder, shows bias and is sufficient to vitiate the enquiry proceedings. In support of his contention, he places reliance on a judgment delivered by this Court in the case of Sanjoy Kumar Singh v. Union of India & Ors., (2002) 2 SLR 266, and an unreported judgment delivered by this Court in the case of Ramendra Kumar Pandey v. Union of India & Ors., WPA 7899 of 2008. 8. By placing reliance on the final order passed by the Disciplinary Authority on 31st October, 2008, it is submitted that the Disciplinary Authority, while inflicting punishment on the petitioner, took into consideration the enquiry report as also the findings of the Court of enquiry conducted by the Assistant Security Commissioner, RPF, Jamalpur (Yard) Post. According to Mr. Majumder, the enquiry officer being subordinate to the rank of Assistant Security Commissioner could not have given his independent findings, contrary to the findings reached by the Assistant Security Commissioner, which was in fact relied on by the Disciplinary Authority in the charge-sheet itself. 9. Despite the fact that the petitioner had objected to continuance of enquiry by the person subordinate in rank, to the Assistant Security Commissioner for holding an enquiry, such objection was not taken into consideration either by the enquiry officer or by the Disciplinary Authority. This, according to Mr. Majumder, is also sufficient to vitiate the enquiry. In support of his contention, he places reliance on a judgment delivered by this Court in the case of Anandram Jiandrai Vaswani v. Union of India & Ors., 1983 (1) CLJ 8 as also a judgment delivered by the Hon’ble Supreme Court in the case of M.V. Bijlani v. Union of India & Ors., (2006) 5 SCC 88 . 10. It is submitted that the enquiry officer while considering the charge-sheet and the evidence on record, held the petitioner guilty by arriving at the conclusion that the petitioner had gone to Daulaltpur railway colony, for his personal gain or business. This, according to Mr. Majumder, is at variance with the charges. 10. It is submitted that the enquiry officer while considering the charge-sheet and the evidence on record, held the petitioner guilty by arriving at the conclusion that the petitioner had gone to Daulaltpur railway colony, for his personal gain or business. This, according to Mr. Majumder, is at variance with the charges. By once again referring to the final order dated 31st October, 2008, passed by the Disciplinary Authority as also to the order dated 10th June, 2009, passed by the Appellate Authority, he says, in both the cases, the consideration for punishing the petitioner was the alleged claim of the petitioner having gone to Daulatpur Railway colony for his personal gain or business. There was no charge of the petitioner going to Daulatpur Railway colony for his personal gain or business and as such, the petitioner did not get any opportunity to defend himself. This also had the effect of vitiating the enquiry proceedings. In support of the aforesaid contention, Mr. Majumder places reliance on a judgment delivered by the Hon’ble Supreme Court in the case of The State of Punjab v. Bakhtawar Singh & Ors., 1972 SLR 85 : (1972) 4 SCC 730 and the judgment delivered by this Court in the case of Allahabad Bank v. Sri Pronab Kumar Mukherjee & Ors., (1992) 7 SLR 51 (DB). 11. It is next submitted that a statutory right is conferred on the petitioner to prefer an appeal. By referring to Rule 217.3 of the said Rules, he says that the order passed by the Appellate Authority is a mechanical one. Despite the fact that the Appellate Authority was under an obligation to consider the appeal, in the light of the aforesaid provision, the same has not been done. The petitioner has been inflicted with a punishment without adhering to due procedure. Not only the enquiry proceedings but also the final order passed by the Disciplinary Authority as also the order passed by the Appellate Authority stands vitiated and the same should be set aside and quashed. 12. Per contra, Mr. Mondal, learned advocate appearing for the respondents, submits that the petitioner, while on duty on 24th February, 2008, and despite being entrusted with the mess duty at Jamalpur Railway Yard vide Diary Entry no. 1079 at 07.00 hours, had left the mess duty and was found at Daulatpur Railway colony, where he sustained bullet injury. 12. Per contra, Mr. Mondal, learned advocate appearing for the respondents, submits that the petitioner, while on duty on 24th February, 2008, and despite being entrusted with the mess duty at Jamalpur Railway Yard vide Diary Entry no. 1079 at 07.00 hours, had left the mess duty and was found at Daulatpur Railway colony, where he sustained bullet injury. Since, the same tantamounts to gross dereliction and neglect of duty, a Court of enquiry was conducted. The same was followed by a charge-sheet dated 8th May, 2008. The petitioner was given all reasonable opportunity to defend. Not only the list of witnesses but the document, which the Disciplinary Authority intended to rely on, was also made available to the petitioner. The petitioner responded to the charge-sheet, participated in the enquiry proceedings, examined, and cross-examined the witnesses. Subsequently, the petitioner was served with the findings of the enquiry and only thereafter, the final order was passed. 13. From the aforesaid, it would be apparent and clear that the principles of natural justice had been complied with. By referring to Rule 153.5 of the said Rules, he says that the said Rule does not make any provision for service of any show cause prior to issuance of the charge-sheet and as such, the Disciplinary Authority cannot be faulted for having issued the charge-sheet on the petitioner, without issuing any prior show cause. 14. By placing reliance on a judgment delivered by the Hon’ble Supreme Court in the case of State Bank of Patiala & Ors. v. S.K. Sharma, (1996) 3 SCC 364 , he says that there has been substantial compliance of the statutory provisions as also of the provisions of natural justice. The minor deviations do not tantamount to denial of any opportunity to the petitioner. The petitioner has also not been able to demonstrate how the petitioner has been prejudiced. Unless the petitioner is prejudiced by reasons of non-compliance of any of the statutory provisions or non-compliance of principles of natural justice, the enquiry cannot stand vitiated or cannot be set at naught. He says that the present writ application deserves to be dismissed with exemplary cost. 15. Heard the learned advocates appearing for the respective parties and considered the materials on record. 16. He says that the present writ application deserves to be dismissed with exemplary cost. 15. Heard the learned advocates appearing for the respective parties and considered the materials on record. 16. I find that in the instant case, the petitioner, while posted as a constable at Jamalpur Yard Post at Malda, was served with a charge-sheet dated 8th May, 2008. Articles of charge leveled against the petitioner is extracted herein below : “ARTICLES OF CHARGE:- Constable/3814 Hira Lal Singh of Jamalpur (Yard) is hereby charged for gross negligent in discharge of his duty as he detailed discreditable conduct with suspicious activity as he was detailed for mess duty vide DE No. 1079 at 07.00 hrs of 24.02.2008 but his presence at Daulatpur Railway colony where he sustained bullet injuries as declared by Dr. G.C. Keshri, Sr. DMO/JMP clearly indicates his presence at said area in the evening by leaving RPF Mess perhaps without any authority.” 17. I find that Mr. Mondal has strenuously argued by referring to Rule 153.5 of the said Rules to, inter alia, contend that since the statutory provision do not mandate service of prior notice, prior to issuance of charge-sheet, the Disciplinary Authority did not commit any irregularity in procedure in straight away issuing the charge-sheet, as also in appointing the enquiry officer and fixing a date for enquiry. I am, however, not in agreement with such view. In service jurisprudence, it is well settled that prior to issuance of a charge-sheet, an opportunity is required to be given to the delinquent employee to reply to the same. The right to respond to the show cause and explain as to why enquiry should not be conducted is a right which is as fundamental as a right to defend. It is only on the basis of the reply to the show cause that the Disciplinary Authority should take a final decision whether or not to hold an enquiry. 18. I find that this Court had the occasion to consider such an issue and in the case of Sanjoy Kumar Singh (supra), this Hon’ble Court by quoting a passage from the judgment delivered by the Hon’ble Supreme Court in the case of State of Punjab v. V.K. Khanna & Ors. (supra), was, inter alia, pleased to observe as follows : “19. (supra), was, inter alia, pleased to observe as follows : “19. Hon'ble Supreme Court in its decision reported in (3) (2001) 2 SCC 330 : AIR 2001 SC 343 , State of Punjab v. V.K. Khanna discussed about the test of existence of bias or mala fide in an administrative action and scope of judicial review in such an administrative action and observed:— “The case test is as to whether there is a mere apprehension of bias or there is a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom. In the event, however, a conclusion is otherwise that there is existing a real danger if bias administrative action cannot be sustained.” 20. The Hon'ble Supreme Court in this case further observed:— “It is well settled in service jurisprudence that the authority has to apply its mind upon receipt of reply to the charge-sheet or show cause as the case may be as to whether a further enquiry is called for. In the event upon deliberation and due consideration, it is in the affirmative—the enquiry follows but not otherwise. Thus, where even before reply was filed by the delinquent Chief Secretary to the charge-sheet issued against him, the Chief Minister made an announcement appointing an enquiry officer to go into the charges thus indicating its mind set that the enquiry shall proceed irrespective of the reply it cannot be said that the attitude of the authorities towards the delinquent is free and fair.” 21. In the instant case it appears also from the Memorandum itself that Articles of charges were furnished in which Memorandum the authority informed the petitioner that there will be an enquiry in the same Memorandum the authority declared the name of the inquiry officer and also fixed the venue and time of the enquiry. In the instant case it appears also from the Memorandum itself that Articles of charges were furnished in which Memorandum the authority informed the petitioner that there will be an enquiry in the same Memorandum the authority declared the name of the inquiry officer and also fixed the venue and time of the enquiry. Therefore, before receiving any reply to the allegations/charges levelled against the petitioner, the authority took a decision to conduct the enquiry and even the authority assumed the jurisdiction of the enquiry officer and fixed the venue and time of the enquiry, which clearly shows that the Memorandum containing Articles of charges has been issued by the authority with a biased mind and the same indicate its mind set that the enquiry shall proceed irrespective of reply and as quoted above in the case of V.K. Khanna (supra), the Hon'ble Supreme Court observed the attitude of the authority towards the delinquent in such circumstances is not free and fair.” 19. By relying on the aforesaid judgment, this Court has taken a similar view in the case of Ramendra Kumar Pandey (supra). In this case, not only did the Disciplinary Authority straight away issued the charge-sheet and appointed an enquiry officer but the Disciplinary Authority, while assuming the mantle of the enquiry officer fixed a date of enquiry. From the aforesaid, it would appear that the Disciplinary Authority in his zeal to conclude the enquiry at the earliest had proceeded to fix a date for enquiry. An element of bias, thus, cannot be ruled out. In the instant case, I still further find that notwithstanding the petitioner objecting to the continuance of the enquiry by an officer, subordinate in rank to that of the officer who held the Court of enquiry, the enquiry proceedings had continued. As pointed out by Mr. Majumder, learned advocate appearing for the petitioner, not only did the enquiry officer but also the Disciplinary Authority had relied on the findings rendered by the Court of enquiry, to inflict punishment on the petitioner. 20. In this context, Mr. As pointed out by Mr. Majumder, learned advocate appearing for the petitioner, not only did the enquiry officer but also the Disciplinary Authority had relied on the findings rendered by the Court of enquiry, to inflict punishment on the petitioner. 20. In this context, Mr. Majumder, by placing reliance on a judgment delivered by this court in the case of Anandram Jiandrai Vaswani (supra), has submitted that the enquiry conducted through an enquiry officer who is lower in rank to that of the person who had conducted the Court of enquiry which was relied on in the course of enquiry proceedings for establishing the charge, will be subject to bias and will not be able to hold independent proceedings and will not be in a position to impart fair justice with open mind, and that the enquiry would be a mere formality. I find that the Hon’ble Court in the aforesaid judgment, while considering the aforesaid issue has, inter alia, observed as follows:- “48. On going though the various letters, documents and evidence on record, it appears that the appellant in various applications pointed out that it was absolutely necessary to appoint an Enquiry Officer of the status and rank of an Additional Collector as the Additional Collector (Preventive) himself is the main witness and complainant in this case. It was further pointed out that the “appointment of an Enquiry Officer who was lower in rank than that of the Additional Collector and lower in position than that of the Superintendent (Preventive), is therefore, not virtually legal and correct, as the Enquiry Officer in such a position will be subject to bias and as such he will not be able to hold fair and independent proceedings and will not be in a position to impart fair justice with an open mind and the enquiry will be a mere formality.”. ” 21. Having regard to the aforesaid I am of the view, that the enquiry authority was in no position to independently apply his mind and decide the proceedings. Although Mr. Mondal by placing reliance on the judgment delivered by the Hon’ble Supreme Court in the case of State Bank of Patiala (supra), has claimed that there has been substantial compliance of the statutory provisions as also of the provisions of natural justice, and no prejudice was caused to the petitioner. I am not in agreement with the same. Although Mr. Mondal by placing reliance on the judgment delivered by the Hon’ble Supreme Court in the case of State Bank of Patiala (supra), has claimed that there has been substantial compliance of the statutory provisions as also of the provisions of natural justice, and no prejudice was caused to the petitioner. I am not in agreement with the same. There cannot be greater injustice or prejudice caused to the petitioner than having the departmental proceedings conducted by a person subordinate to the rank of the person who held the Court of enquiry, which forms the basis of the charge. On the aforesaid ground the enquiry stands vitiated. 22. It has also been the contention of Mr. Majumder that the enquiry officer, the Disciplinary Authority and the Appellate Authority while holding the petitioner guilty and inflicting punishment on the petitioner had taken into consideration the fact that the petitioner had gone to Daulatpur Railway colony for his personal gain and business. 23. I find that the charge-sheet does not reflect any such charge of the petitioner visiting Daulatpur Railway colony for his personal business or gain. It is, therefore, apparent and clear that the basis on which the Disciplinary Authority had inflicted punishment on the petitioner are at variance with the charges leveled against the petitioner. From a perusal of the order passed by the Disciplinary Authority, it would also be apparent that one of the consideration for inflicting punishment on the petitioner was the petitioner’s visit to the Daulatpur Railway colony for his personal gain or business. 24. I find that the Hon’ble Supreme Court in the case of State of Punjab v. Bakhtawar Singh & Ors. (supra) has been, inter alia, pleased to observe as follows:- “9. This order does not show that the Minister found him guilty of any of the charges levelled against him. On the other hand the order gives two reasons for removing Shri Bakhtawar Singh from office. They are (1) that he was taking part in politics and (2) that he did not discharge his duties impartially. 10. It may be noted that Shri Bakhtawar Singh was not charged with having not discharged his duties impartially. None of the charges levelled against him accused him of not discharging his duties impartially. They are (1) that he was taking part in politics and (2) that he did not discharge his duties impartially. 10. It may be noted that Shri Bakhtawar Singh was not charged with having not discharged his duties impartially. None of the charges levelled against him accused him of not discharging his duties impartially. Hence the Minister was not justified in taking into consideration a charge in respect of which the member was not given any opportunity to explain his position. Further the find of the Minister that Shri Bakhtawar Singh was taking part in politics is a vague finding. Politics is a word of wide import. By merely saying that he was taking part in politics nothing concrete is conveyed or established. In view of this conclusion of ours, it is not necessary to go into the other grounds urged on behalf of Shri Bakhtawar Singh.” 25. Similar view has been taken by the Hon’ble Supreme Court in the case of M.V. Bijlani (Supra) and this Court in the case of Allahabad Bank (supra). The aforesaid leaves no room for doubt that not only the enquiry stands vitiated but the final order of punishment also cannot be sustained. 26. It has next been contended by Mr. Majumder that the Appellate Authority, which is the creature of the statute, was bound to act in accordance with Rule 217.3 of the said Rules. 27. From a perusal of the order passed by the Appellate Authority, it would be apparent that the Appellate Authority has not recorded any of the findings as are required under Rule 217.3 of the said Rules. It appears that the Appellate Authority had mechanically disposed of the appeal by passing his order based on the findings rendered by the Disciplinary Authority without independently applying his mind. The aforesaid order passed by the Appellate Authority also does not stand the test as noted in the case of Sanjoy Kumar Singh (supra). The aforesaid order passed by the Appellate Authority cannot be sustained and stands vitiated on such ground. 28. The aforesaid order passed by the Appellate Authority also does not stand the test as noted in the case of Sanjoy Kumar Singh (supra). The aforesaid order passed by the Appellate Authority cannot be sustained and stands vitiated on such ground. 28. For reasons more fully discussed hereinabove, and taking into consideration the peculiarity of the circumstances regarding issuance of charge-sheet, and the sequence of events leading to the final order of punishment, I am of the view that the charge-sheet dated 8th May, 2008, the enquiry report dated 16th October, 2008, the final order of punishment dated 30th October, 2008, and the order passed by the Appellate Authority dated 10th June, 2009, cannot be sustained, and the same are liable to be and are accordingly, set aside and quashed. 29. The petitioner shall be entitled to all consequential benefits. 30. The writ petitioner being WPA 15501 of 2009 is thus disposed of. 31. Urgent photostat certified copy of this judgment, if applied for, be given to the parties on priority basis upon compliance of requisite formalities.