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2024 DIGILAW 420 (CAL)

Jitendra Kumar Yadav v. Union of India

2024-02-26

RAI CHATTOPADHYAY

body2024
JUDGMENT : Rai Chattopadhyay, J. 1. An order of the appellate authority, i.e, Deputy Inspector General of Police cum Chief Security Commissioner, Metro Railways Kolkata/respondent no. 4, dated 17.08.2022, is under challenge in this writ petition. 2. By dint of the said impugned order dated 17.08.2022, the appellate authority has upheld the finding of guilt of the present writ petitioner of the charges leveled against him and also the punishment awarded to him of ‘removal from service’ vide order dated 18.04.2022. 3. The writ petitioner is aggrieved with the said order of the appellate authority and has moved the instant writ petition on the grounds inter alia that the appellate authority could not apply judicious mind to the facts emerged during disciplinary enquiry, that the appellate authority did not consider that the charges leveled against the writ petitioner were not proved in the disciplinary enquiry, that the appellate authority erroneously applied the provisions of the R.P.F Rules, 1987, as well as Railways Services (Conduct) Rules, 1966, in case of the writ petitioner and thus its finding in the impugned order to uphold the punishment of ‘removal from service’ of the writ petitioner is neither justified nor legal. The writ petitioner is aggrieved that the appellate authority has not applied its judicious mind to the legality and propriety of the disciplinary proceeding undertaken against the writ petitioner, which he says, is neither legal nor in accordance with the principles of natural justice. Thus, writ petitioner has pleaded the ground that the appellate authority’s order dated 17.08.2022 is bereft of sound reasons, arbitrary and is only the replica of what the disciplinary authority has found upon certain erroneous considerations, against the present writ petitioner. The writ petitioner has pleaded the grounds that the appellate authority has not applied its independent mind to the facts of the case as well as the applicable laws and has come to an illegal finding thereof. The writ petitioner has sought for setting aside of the impugned order of the appellate authority/respondent no. 4 dated 17.08.2022. 4. The factual background of this case is necessary for disposal of the case which may be narrated in a nut-shell in the manner as follows:- 5. The writ petitioner joined at Metro Railways, Kolkata, in the year 2014, in the post of a ‘Constable’ of Railway Protection Force of Metro Railways, Kolkata. 4 dated 17.08.2022. 4. The factual background of this case is necessary for disposal of the case which may be narrated in a nut-shell in the manner as follows:- 5. The writ petitioner joined at Metro Railways, Kolkata, in the year 2014, in the post of a ‘Constable’ of Railway Protection Force of Metro Railways, Kolkata. Complaints dated 14.10.2020 and 10.11.2020 were filed with the Railway Authorities by one Smt. Poosha Devi, who claimed to be the wife of the writ petitioner. The crux of allegations against the writ petitioner was that the writ petitioner during subsistence of his marriage with Smt. Poosha Devi/complainant, solemnized the second marriage with one Archana Jadav of village and post office-Chillar, Dist-Gazipur, U.P at 25.06.2020. Since contracting a second marriage by an employee during subsistence of the first marriage is a misconduct under the Rules, under which the service of the writ petitioner was governed, i.e, R.P.F Rules, 1987 and Railway Services (Conduct) Rules, 1966, a departmental enquiry was initiated against the writ petitioner. One Mr. J. P. Singh IPF/SCNL/M.Rly/Kolkata, was appointed as the Enquiry Officer. The writ petitioner submitted his written reply to the show cause issued to him by the said Enquiry Officer on 25.11.2020. The preliminary enquiry was conducted and report was submitted thereof on 18.01.2021 before the Senior Security Commissioner/R.P.F/Metro Railways/Kolkata/respondent no. 4. The Enquiry Officer submitted the said report regarding finding of guilt of the present petitioner of solemnization of second marriage with Archana Yadav, during subsistence of his first marriage with Smt. Poosha Devi. The writ petitioner was again invited to submit his reply as against the said preliminary enquiry report dated 05.03.2021, to which he replied vide his letter dated 30.04.2021. Later on, on 30.04.2021 a charge sheet was issued to him under Rule 153 of the R.P.F Rules, 1987, against the writ petitioner. The Inquiry Officer submitted his report dated 28.01.2022 before the disciplinary authority. The Enquiry Officer concluded in finding guilt of the writ petitioner of the charges leveled against him and recommended major punishment for him. Conceding the same the disciplinary authority imposed punishment of ‘removal of service’ of the writ petitioner. Leaving no stone unturned, the writ petitioner approached the statutory appellate authority which is respondent no.4. However, the respondent no. The Enquiry Officer concluded in finding guilt of the writ petitioner of the charges leveled against him and recommended major punishment for him. Conceding the same the disciplinary authority imposed punishment of ‘removal of service’ of the writ petitioner. Leaving no stone unturned, the writ petitioner approached the statutory appellate authority which is respondent no.4. However, the respondent no. 4 has consequently come to the decision vide the impugned order dated 17.08.2022, to upheld the decision of the disciplinary authority, of removal of service of the writ petitioner. Hence, this writ petition. 6. Ms. Sarkar, representing the writ petitioner has categorically submitted that the entire disciplinary enquiry proceeding against his client has been conducted without complying with the principles of natural justice. She has stated that fairness in the process to arrive at the conclusion would have been the due process to be under taken, by the authorities, in order to maintain the entire process in the eye of law. She says that the respondent authority has miserably failed to achieve this standard of sanctity as regards following the due process is concerned. 7. Ms. Sarkar, has further referred to the fact that the Enquiry Officer has not considered the evidence of the writ petitioner and has not applied his mind to the same. She says that the decision of the Inquiry Officer as against the writ petitioner is based on surmises and conjecture only and alleged misconduct by the writ petitioner could not be proved by the complainant in the disciplinary proceeding. 8. By elaborately referring to the evidence in the case, Ms. Sarkar has submitted that even the alleged marriage certificate of the writ petitioner with the Archana Yadav being claimed to be in existence, the complainant has failed to bring the same on record during enquiry, in spite of claiming that the same has been obtained in reply to an application under the Right to Information Act, 2005. As such, according to Ms. Sarkar, the inference should have been drawn against the said complainant. She says that the Enquiry Officer, the disciplinary authority as well as the appellate authority have all committed error in assessing the said fact in its proper perspective. 9. She has further pointed out that the alleged second wife Archana Yadav has not been indentified during the enquiry proceeding by the complainant. She says that the Enquiry Officer, the disciplinary authority as well as the appellate authority have all committed error in assessing the said fact in its proper perspective. 9. She has further pointed out that the alleged second wife Archana Yadav has not been indentified during the enquiry proceeding by the complainant. According to her this fact would ipso facto show about the baselessness of the complainant’s story regarding the second marriage of the writ petitioner and the said fact, as emerged in the enquiry, has also not been duly considered by the said authority. 10. Thus, according to Ms. Sarkar the enquiry should be vitiated being devoid of due application of mind and due compliance with the applicable law. At the same time she says that since this flaw has not been appreciated by the appellate authority by dint of its order dated 17.08.2022, the same should also be set aside. 11. The writ petitioner’s contentions and prayers are vehemently opposed, on behalf of the respondent nos. 2 to 6. 12. The first and foremost ground for objection is that the writ petition would be barred by constructive res judicata and thus would not be maintainable. 13. Mr. Chakrabory appearing for the said respondents has pointed out from the affidavit-in-opposition submitted by his client as above, to a copy of order of the Allahabad High Court in Writ Petition No. 2573 of 2022 dated 21.04.2022. He says that the present writ petitioner has earlier tried his luck before the said Court but failed. He submits further that by dint of a well reasoned judgment as above the Hon’ble Single Bench of Allahabad High Court has dismissed writ petitioner’s challenge to the enquiry proceeding. Mr. Chakrabory has submitted that the self-same cause of action has been espoused by the writ petitioner in the present case which is untenable as the same is barred by constructive res judicata. He has not failed to indicate to this Court regarding the provision of res judicata as envisaged in the Civil Procedure Code and has submitted that the self-same cause of action between the same parties, which is the issue involved in the lis, once having been espoused and decided, should not be validly reopened or else the same would amount to gross illegality. 14. Mr. 14. Mr. Chakraborty has further submitted that so far as the enquiry proceeding is concerned, the same is done by the authorities in due compliance with the principles of natural justice, leaving no scope for the writ petitioner to allege about any illegality or unfairness or prejudice. The writ petitioner has been allowed to submit reply to show cause. He has been again allowed to submit reply to charge sheet, he has been allowed to examine himself as well as cross-examine the other witnesses. Thereafter, upon due consideration of the entire evidence on record the Enquiry Officer has come to a finding. He has further pointed out that the law would not allow the Court to interfere into such a proceeding or order of the Enquiry Officer or appellate authority unless and until any gross perversity or palpable illegality could be shown as regards the procedure adopted by the Enquiry Officer/disciplinary authority. According to him in this case there is no such palpable or gross illegality which surfaces. Under such circumstance, according to Mr. Chakraborty the prayer of the writ petitioner is not tenable and the writ petition may be dismissed. 15. The scope of judicial review as regards the decision of the disciplinary authority/appellate authority has time and again been discussed and held by the Apex Court. Few of such decisions may be mentioned, as below:- (i) Deputy General Manager vs. Ajai Kumar Srivastava reported in (2021) 2 SCC 612 ; the Hon’ble Apex Court has held that:- “It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.” “The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.” (ii) UOI vs. Ex Constable Ram Karan reported in 2021 SCC OnLine SC 1041; the Hon’ble Apex Court has held that:- “The well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the courts to assume and usurp the function of the disciplinary authority.” “Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the court to substitute its decision by prescribing the quantum of punishment. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons.” (iii) Ex-Constable/Dvr Mukesh Kumar Raigar vs. UOI reported in 2023 SCC OnLine SC 27. The Hon’ble Apex Court has held that:- “Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on the charges of misconduct by a public servant, the Court or Tribunal would be concerned only to the extent of determining whether the inquiry was held by a competent officer or whether the rules of natural justice and statutory rules were complied with.” 16. Therefore, it can be seen that the law is well settled that the scope of judicial review as regards the decision of the disciplinary authority is not very wide. It has been decided for fairly enough time that the writ Court would not interfere into the decision of the disciplinary authority expecting in a case of mala fide or perversity or bias. It has been held that if a finding is of the nature that no man acting reasonably and with objectivity could have arrived of those finding, the Court would not normally interfere, assess, or reconsider the question of finding of guilt or imposition of penalty by the disciplinary authority. Proportionality of the penalty imposed in comparison to the alleged charges is also a material factor which can be weighed by a writ Court. Excepting those, the writ Court would not interfere into the decision of the disciplinary authority, under each and every case and normal circumstances. 17. In the present writ petition the genesis of the disciplinary enquiry against the present writ petitioner are complaint dated 14.10.2020 and 10.11.2020, by Smt. Poosha Devi. Excepting those, the writ Court would not interfere into the decision of the disciplinary authority, under each and every case and normal circumstances. 17. In the present writ petition the genesis of the disciplinary enquiry against the present writ petitioner are complaint dated 14.10.2020 and 10.11.2020, by Smt. Poosha Devi. She says in her complaint that, she being the legally wedded wife of the writ petitioner and the mother of a daughter from the said wedlock, is aggrieved with the fact of the writ petitioner having contracted a second marriage with one Archana Jadav, during subsistence of the writ petitioner’s previous marriage with the complainant. She has mentioned the date of alleged second marriage of the writ petitioner to be on 25.06.2020. 18. The writ petitioner has conceded to the fact that he has been married to the complainant. 19. The preliminary enquiry was conducted after receipt of the complaint as above and writ petitioner’s statement dated 25.11.2020 was obtained. In his statement the writ petitioner has categorically denied the allegation of contracting any second marriage. 20. The report of the preliminary enquiry is dated 18.01.2021, the Enquiry Officer Sri. J. P. Singh, has recorded his finding as follows:- 1. Constable Jitendra Kumar Yadav had marriage with complainant Pusha Devi after having love affair before joining RPF and after demise of his parents. 2. There is marital discord between the complainant Pusha devi and Kitendra Kumar Yadav since last two or three years. 3. Constable Jitendra Kumar Yadav does not visit his native place very often and as disclosed by his uncle namely Maniram yadav he has not visited his native village since last one year. 4. As disclosed by his uncle Maniram Yadav that Jitendra Kumar Yadav does not take any advice of any one and that he takes decision independently without taking his advice. 5. Constable/Jitendra Kumar Yadav has three more younger brothers but they do not reside at native place but stay at Allahabad as disclosed by Jitendra Kumar Yadav as well as his uncle Maniram Yadav. 6. The document provided by complainant on verification at Sidhpath Sri Mounibaba Matt, Subapur, Chochakpur, Gazipur is found true and correct, that Jitendra Kumar Yadav S/O Late Mangla Yadav, Vill-Amavansi, Po-Jalalpur, Dist-Gazipur solemnized marriage with Kumari Archana Yadav, D/O Sri Premnayan Yadav of Vill+PO – Chillar, Dist-Gazipur (UP) on dated 25.06.2020. 7. 6. The document provided by complainant on verification at Sidhpath Sri Mounibaba Matt, Subapur, Chochakpur, Gazipur is found true and correct, that Jitendra Kumar Yadav S/O Late Mangla Yadav, Vill-Amavansi, Po-Jalalpur, Dist-Gazipur solemnized marriage with Kumari Archana Yadav, D/O Sri Premnayan Yadav of Vill+PO – Chillar, Dist-Gazipur (UP) on dated 25.06.2020. 7. Constable/Jitendra Kumar Yadav was spared for leave 01 day rest with 15 days LAP from 04.06.2020 to 19.06.2020 then he overstayed from 20.06.2020 to 16.07.2020. 8. Enquired at the village of Archana yadav with whom Constable Jitendra Kumar yadav is said to have under gone second marriage. It was found that no one was willing to disclose anything about marriage or their family matter. It was observed that the neighbor of Premnarayan Yadav well tutored not to speak about the matter of marriage to anyone. The matter appeared to be very closely guarded secret. 9. However the village priest namely Harshvardhan Dueby on being asked after taking him into be confidence disclosed that Archana Yadav had recently got married into the month of June with some police personnel who is posted in Kolkata. He also disclosed that he had seen Archana Yadav with vermillion on her forehead, which indicate that she is married. On being shown the photograph he identified Archana yadav but he flatly refused to give anything in writing or get identified as it will create problem for him in the village. 10. Premnarayan Yaddav F/O-Archand Yadav on being asked stated that he have four daughter his third daughter name is Archana Yadav who stays at Allahabad for purpose of study and he is not having any knowledge about her undergoing any marriage. He also pretended not to indentify his own daughter in photograph shown on the pretext of bad eye sight. He and his family member were visibly shaken on knowing about the enquiry. He appeared to be tutored not to disclosed anything to any person about marriage. Finding/Conclusion:- On enquiry it is found that Constable Jitendra Yadav has indeed solemnized second marriage with Archana Yadav D/O Premnarayan yadav of Vill+PO-Chillar, Dist-Gazipur (UP) on dated 25.06.2020 at Sidhpith Sri Mounibaba Matt, Subapur, Chochakpur, Gazipur. He appeared to be tutored not to disclosed anything to any person about marriage. Finding/Conclusion:- On enquiry it is found that Constable Jitendra Yadav has indeed solemnized second marriage with Archana Yadav D/O Premnarayan yadav of Vill+PO-Chillar, Dist-Gazipur (UP) on dated 25.06.2020 at Sidhpith Sri Mounibaba Matt, Subapur, Chochakpur, Gazipur. Constable Jitendra Kumar Yadav has under gone second marriage without divorcing or settling the matter with complainant Smt. Pusha devi his wife Constable Jitendra Kumar Yadav being well aware of consequence of undergoing second marriage without divorcing first wife has tried his level best to keep his second marriage secret.” 21.This report of the preliminary enquiry dated 18.01.2021 has resulted into issuance of a show cause notice to the writ petitioner dated 05.03.2021, directing him to explain as to why not any disciplinary proceeding under Rule 153 of the R.P.F Rules, 1987, will be initiated against him for violation of Rules 146.1 read with 146.4 of the R.P.F Rules, 1987 and Rules 3 (1) (i), (iii), (vi) and (xviii) and 21 (2) of the Railway Services (Conduct) Rules, 1966. Allegedly, the writ petitioner did not reply to such show cause notice. Charge sheet was issued against him vide memo dated 30.04.2021. The relevant portion of the charge sheet may be extracted herein below:- “CHARGES UNDER RULE 153 OF RPF RULES, 1987 AGAINST JITENDRA KUMAR YADAV, CONSTABLE/ER-1408736 OF RPF POST/BELGACHIA/METRO RAILWAY/KOLKATA ******************** From the aforesaid enquiry report, it reveals that Jitendra Kumar Yadav, Constable/ER1408736 of RPF Post/Belgachia/Metro Railway/Kolkata has solemnized second marriage with Archana Yadav, D/O: Premnarayan Yadav of Vill+PO:-Chillar, Dist: Gazipur (UP) ON 25.06.2020 AT Sidhpith Sri Mounibaba Matt, Subapur, Chochakpur, Gazipur without divorcing or settling the matter as per statutory provision with Smt. Poosha Devi who is his 1st wife. ***************************** From the above act(s) on the part of Jitendra Kumar Yadav, Constable/ER1408736 of RPF Post/Belgachia/Metro Railway/Kolkata is/are tantamount to discreditable conduct and dishonesty on his part being a public servant and member of the force. Thus, he has violated the provision of rules – 146.1 r/w 146.4 of the RPF Rules, 1987 and rules 3 (1) (i), (iii), (vi) & (xviii) and 21 (2) of Railway Services (Conduct) Rules, 1966. Hence, the charges under rule 153 of RPF Rules, 1987” In the charge sheet dated 30.04.2021, Sri K.P. Pal, Inspector/R.P.F post was nominated as the Enquiry Officer. Hence, the charges under rule 153 of RPF Rules, 1987” In the charge sheet dated 30.04.2021, Sri K.P. Pal, Inspector/R.P.F post was nominated as the Enquiry Officer. The date and time of the first sitting of the enquiry was also stipulated in the said charge sheet. The Enquiry Officer has submitted his report dated 28.01.2022, with the following findings :- “FINDINGS:- After completion of enquiry, scrutinizing the statement of PWs and collected exhibits it is found that Constable/ER-1408736 of RPF Post Belgachia, Metro Rly, Kolkata has indeed solemnized 2nd marriage with Archana Yadav D/o-Preamnarayan Yadav of Vill+P.O-Chillar, Dist-Gazipur, (UP) on dated 25.06.2020 at Siddhpith Sri Mauni Baba Math, Suvapur, Chochakpur, Gazipur, (UP). During enquiry it is also found that Ct. Jitendra Kumar Yadav has undergone 2nd marriage without divorcing or setting the matter with complainant Smt. Poosha Devi his wife, Ct. Jitendra Kumar Yadav being well aware of consequence of undergoing 2nd marriage without divorcing 1st wife has tried his level best to keep his 2nd marriage secret. As such, all the charges i.e rules -146.1 read with 146.4 of the RPF Rules, 1987 and rules 3 (1) (i) (iii), (vi) & (xviii) and 21 (2) of Railway Services (Conduct) Rules, 1966 are being proved and it concluded that the charged levelled against Sri Jitendra Kumar Yadav, Constable/ER-1408736 of RPF Post Belgachia, Metro Rly, Kolkata, (now at RPF/CEN/Post) is proved.” Finally, the disciplinary authority, i.e, Senior Security Commissioner R.P.F/Metro Railways Kolkata, vide order dated 18.04.2022 has imposed the punishment of ‘removal from service’ to the writ petitioner.” 22. The said order of the disciplinary authority dated 18.04.2022 was challenged in a statutory appeal, by the writ petitioner. The order of the appellate authority is under challenge in this writ petition, i.e, the order dated 17.08.2022. The appellate authority has upheld the punishment awarded to the writ petitioner of ‘removal from service’ upon finding the writ petitioner guilty of the misconduct and unbecoming behavior in terms of the applicable rules and as it was held by the disciplinary authority. Let this Court first see the provision of R.P.F Rules, 1987 and the Railway Services (Conduct) Rule, 1966, for violation of which rules he has been proceeded with in a disciplinary proceeding. The Rules provide as under:- “The Railway Protection Force Rules, 1987 146. Code of behaviour for members of the Force : 146.1. Let this Court first see the provision of R.P.F Rules, 1987 and the Railway Services (Conduct) Rule, 1966, for violation of which rules he has been proceeded with in a disciplinary proceeding. The Rules provide as under:- “The Railway Protection Force Rules, 1987 146. Code of behaviour for members of the Force : 146.1. All members of the Force, irrespective of their ranks, shall submit themselves to the requirement of the following code of behaviour, both on and off duty. It shall be incumbent upon all members of the Force to respect the code of behaviour and maintain an attitude of complete discipline and obedience to it. Any breach of these provisions on the part of any member of the Force shall constitute misconduct and shall be punishable under the Railway Servants (Discipline and Appeal) Rules, 1968 as applied to superior officers or, as the case may be, under section 9 or section 17. **************** 146.4 Discreditable conduct : No member of the Force shall act in any manner prejudicial to discipline or conduct himself in such a manner which is reasonably likely to bring discredit to the reputation of the Force. The Railway Services (Conduct) Rules, 1966 3. General-(1) Every railway servant shall at all times- (i) Maintain absolute integrity; *********** (iii) Do nothing which is unbecoming of a railway servant. ******** (vi) maintain high ethical standards and honesty; *********** (xviii) refrain from doing anything which is or may be contrary to any law, rules, regulations and established practices; 21. Restrictions Regarding Marriage ************* (2) No railway servant, having a spouse living shall enter into, or contract a marriage with any person.” 23. Mr. Chakraborty, ld. advocate for the respondent has also relied on Rule 13 of the Railway Services (Conduct) Rules, 1966, the relevant provision, in order to proceed against the writ petitioner. Rule 13 is extracted as herein below:- Rule (13) of the Railway Services (Conduct) Rules, 1966, stipulates as under:- (1) No Railway Servant who has a wife living shall contract another marriage without first obtaining the permission of the Govt. notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him.” 24. On behalf of the respondent, the preliminary point of objection has been raised as to the very maintainability of this writ petition. notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him.” 24. On behalf of the respondent, the preliminary point of objection has been raised as to the very maintainability of this writ petition. It has been argued that the present writ petition is barred by constructive res judicata. It has been argued further that the writ petitioner has earlier tried his luck before the Hon’ble Delhi High Court, with the self-same issue of alleged illegality of the disciplinary proceeding but the luck did not favour him at that time. By referring to the judgment of the Hon’ble Delhi High Court dated 21.04.2022, Mr. Chakraborty says that substantive issue involved in this case, has already been dealt with and decided earlier by the Hon’ble Delhi High Court vide the said judgment. Therefore, according to Mr. Chakraborty, there is no further scope for the writ petitioner to urge the same issue for a decision afresh by the other Court, vide the present writ petition. He says that this would frustrate the rules against the perpetuity and the writ petitioner’s endevour to seek the relief from this Court in this case shall not be maintainable being barred by constructive res judicata. 25. To deal with the preliminary objection as above, it is found proper to see through the reliefs claimed by the writ petitioner in the present case. The writ petitioner has sought for setting aside of the order of the appellate authority dated 17.08.2022. Though he has also stated about the setting aside of the order of the disciplinary authority dated 18.04.2022, however, the said order of the disciplinary authority should be considered to have been merged with the appellate authority’s order dated 17.08.2022, as impugned in this case. Admittedly, the order of the appellate authority has been passed after the judgment of the Hon’ble Delhi High Court delivered on 21.04.2022. It is worth noticing that the issue involved in the present writ petition and that before the Hon’ble Delhi High Court is regarding legality and propriety of the order of the appellate authority dated 17.08.2022 and the order of the disciplinary authority dated 18.04.2022, respectively. The effect of the respective orders as above is evidently different, i.e, the disciplinary authority has awarded punishment of ‘removal from service’ whereas, the appellate authority has only tested the propriety of the order of the disciplinary authority. The effect of the respective orders as above is evidently different, i.e, the disciplinary authority has awarded punishment of ‘removal from service’ whereas, the appellate authority has only tested the propriety of the order of the disciplinary authority. At the cost of reiteration it is further stated that the appellate authority’s order had not seen the light of the day on the date of passing judgment by the Hon’ble Delhi High Court. As such, this Court is unable to accept the submission of the respondent regarding maintainability of the present writ petition and categorically finds that the issues involved in the case before the Hon’ble Delhi High Court would not be the same issues, as pending for adjudication vide the present writ petition before this Court. Hence, there would not be any occasion or scope for application of principles of constructive res judicata in the present case. The preliminary point raised as to the maintainability of the writ petition is thus negated. This court finds the present writ petition challenging the order dated 17.08.2022 of the appellate authority to be maintainable. 26. So far as the merits of this case are concerned, it is worth mentioning about the preliminary enquiry conducted as regards the allegations against the writ petitioner and its result. The allegation of the petitioner having contracted the second marriage was scrutinized through the said preliminary enquiry, the finding thereof has already been extracted herein before. No doubt, any reasonable man would very naturally conceive on perusal of the said preliminary enquiry report dated 18.11.2021, that in the same the alleged guilt of the writ petitioner has already been stated to have been established. One cannot but help but noticing that even if the Enquiry Officer has come to the finding that the writ petitioner ‘has indeed solemnized second marriage’, but the documents which the Enquiry Officer has stated to have relied on, have not been produced with the said enquiry report. One cannot but conclude about pre-determination and pre-conception of the guilt of the accused person to be recorded, even before issuance of charge sheet against him. One cannot but conclude about pre-determination and pre-conception of the guilt of the accused person to be recorded, even before issuance of charge sheet against him. It is also important to note that excepting seeking a written reply from the writ petitioner, i.e, dated 25.11.2020 as against the written complaint of Smt. Poosha Devi dated 16.11.2020, the writ petitioner has not been given any opportunity to take part in the process of the preliminary enquiry as mentioned above. Therefore a decision of finding of guilt of the writ petitioner in the preliminary enquiry itself without affording him any opportunity of being represented in any way is an act of mala fide and biasness which would render the preliminary enquiry as well as of the subsequent action of the respondent authority as perverse and nugatory. 27. This Court cannot but help noticing in the charge sheet dated 30.04.2021, mention of the preliminary enquiry and its report to have revealed that the writ petitioner has solemnized the second marriage without divorcing the complainant. This would amount to the disciplinary authority having come to the decision before even starting the enquiry procedure for proving the alleged charges against the writ petitioner. The benchmarks of fairness and a proper procedure, is thus jeopardized. Instead, this Court is compelled to find that arbitrariness, biasness and mala fide has smeared the due process of fair disciplinary enquiry proceeding, against the writ petitioner. 28. To dive deep into the evidence produced in the proceeding, one can be left with no sufficient material so as to support charge against the writ petitioner. On careful scrutiny of the evidence it would transpire that neither the complainant nor the authorities could have brought on record any material in support of the alleged marriage. The alleged bride was not identified. No certificate or other documents in support of the alleged second marriage of the writ petitioner could be produced in the enquiry. Therefore this Court finds that there has not been any cogent evidence to come to definite finding of marriage of the writ petitioner with the person namely Archana Yadav. 29. So far as the impugned order dated 17.08.2022 of the appellate authority is concerned, the same appears to have not dealt with the facts and evidence of the case. Therefore this Court finds that there has not been any cogent evidence to come to definite finding of marriage of the writ petitioner with the person namely Archana Yadav. 29. So far as the impugned order dated 17.08.2022 of the appellate authority is concerned, the same appears to have not dealt with the facts and evidence of the case. It is a mere mirror image of the order of disciplinary authority and echo of the punishment imposed upon the writ petitioner. The impugned order dated 17.08.2022 of the appellate authority suffers from the disadvantage and flaw of being unreasoned. Reasons being the heart and soul of an order, the impugned order dated 17.08.2022 of the appellate authority is much less from being a cogent one, based on proper appreciation of the facts of the case and proper assessment as regards the propriety of the disciplinary authority’s order. 30. The relevant punitive provisions as quoted above would require proof of the fact that Code of behavior and discipline of the force has been violated by the alleged delinquent or that he has not maintained integrity, high ethical standards and honesty, has violated law or done unbecoming of a railway servant. Rule 21 of the 1966 Rules would require proof of the fact, that the writ petitioner, having a spouse living, has contracted marriage, with the other person. 31. As discussed earlier, firstly, the entire disciplinary proceeding suffers from arbitrariness, unfairness and biasness and the alleged guilt of the writ petitioner has also not been proved by way of producing sufficient evidence. This would render the impugned order of the appellate authority dated 17.08.2022, as well as the entire disciplinary proceeding to be vitiated. 32. On the premises as above the impugned order dated 17.08.2022 passed by the appellate authority as well as the entire disciplinary proceeding is hereby set aside. The writ petitioner shall immediately be reinstated in service and given notional service benefits, for the period of his absence. 33. The writ petition being WPA 22065 of 2022 is allowed and disposed of. 34. Urgent Photostat certified copy of this judgment, if applied for, be given to its parties on usual undertaking.