M.N. Roy, J. - (1.) The petitioner, a Railway Servant, was placed under suspension with immediate effect by the Divisional Mechanical Engineer (P), Howrah, Respondent No. 2 in contemplation of a disciplinary enquiry on the basis of a charge sheet issued under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as the said Rules). The said rule 9 lays down the necessary procedure-for-imposing penalties.
(2.) On a reference to the concerned charge sheet it would appear that the charge against the petitioners was substantively to the effect that while working as Driver in K I Up (Katwa Local) he disregarded the Up outer and Up Home Signal at Folagarh Station as a result whereof the Bogie, the particulars whereof are mentioned in the charge sheet, got derailed at about 19-45 hrs and as such it was claimed that the instruction as laid down in G.R. 76(a) and G R. 78 were violated by him, those G.R. would hereinafter be referred to as the said instruction. The petitioner by his reply of 7th May 1975 which is in Annexure 'C' to the petition, denied the validity of the charges as levelled and claimed that he was not at all liable and responsible for the offences charged.
(3.) It appeared that there was a fact finding enquiry, which according to the petitioner was nothing but a sham one, and the said enquiry submitted the findings on 11th April. 3975. This body was composed of the Divisional Safety Officer, the Senior Divisional Machanical Engineer (C&W), Howrah, Divisional Mechanical Engineer (P), Howrah Divisional Engineer (P) Howrah,. Divisional Signal and Telecom Engineer, Howrah. It was the allegations of the petitioner that such fact finding enquiry conducted themselves totally disregarding the note given under Chapter IX of the Accident Manual which are to the following effect:- "The enquiry should not, however, confine themselves in ascertaining the immediate cause of the accident. The scope of the enquiry should embrace an wider field and efforts should be made to determine whether there was a general laxity in working on negligence of supervision to which the accident, may be attributed. The intention should hot be to make a scape goat of individuals, but to eradicate the root cause of the accident. The members of the Committee must, therefore, observe strict impartiality and avoid any partisan feeling. The object should be to record facts and not to screen faults, and as such was a nullity. It was alleged further by the petitioner that disciplinary enquiry was also purported to be held by the Enquiry Officer, who submitted his report on 21st July 1975 and such report concluded that the petitioner violated the said instruction. It was contended by the petitioner that the findings of the said enquiry were based on pure surmises, conjectures and speculation and were not based on a legal evidence. That apart, the petitioner has alleged that the report does not discuss the evidence at all and as such was also violative of the mandatory provisions of rule 9(19) of the said Rules and as such, has been claimed to be arbitrary, irregular and bad in law. The said sub-Rule 19 of Rule 9 lays down:- 19(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain- (a) the articles of charge and the statement of the imputations of misconduct or misbehaviour, (b) the defence of the Railway servant in respect of each article of charge, (c) an assessment of the evidence in respect of each article of charge, and (d) the findings on each article of charge and the reasons therefor: Provided that the findings on such article of charge shall, not be recorded unless the Railway Servant has, either admitted the facts on which such article of charge, is based, or has had a responsible opportunity of defending himself against such article of charge; (ii) The inquiring authority, where it is not itself the disciplinary authority shall forward to the disciplinary authority the records of inquiry, which shall include. (a) the report prepared by it under charge (i); (b) the written statement of defence, if any, submitted by the Railway Servant, (c) the oral and documentary evidence produced in the course of the enquiry, (d) written briefs, if any, filed by the Presenting Officer, if any, or the Railway servant or both during the course of the inquiry; and, (e) the orders, if any made by the disciplinary authority and the inquiring authority in regard to the enquiry.;