- (1.) THIS writ application is filed by the petitioner assailing the order of suspension as communicated under D.O. No.65/92 dated February 6, 1992, charge-sheet issued under memo no.50/PRO/153/03/92 dated March 3, 1992, inquiry report dated September 1, 1992, show-cause notice dated September 15, 1992, order of punishment issued under memo no. R.O.161/03 dated March 4, 2003 and the order passed by the statutory appellate authority issued under memo no.S.C.30/123/03(APS) dates September 9, 2003.
(2.) THE petitioner was working for gain in the post of constable of Railway Protection Force, Eastern Railway and he was posted at Railway Protection Force, West Coast Asansol at the material point of time. By an order passed under memo no.D.O.65/92 dated February 6, 1992(hereinafter referred as the said order of suspension), the petitioner was placed under suspension, amongst other constables. A charge-sheet was issued under memo No.SO/PRO/153/03/92 dated March 3, 1992(hereinafter referred to the said charge-sheet) proposing to hold an enquiry against him under Rule 153 of the Railway Protection Force Rules, 1987. THE name of the respondent no.4 was disclosed in the said chargesheet fixing the first date of enquiry on March 9, 1992. THE petitioner submitted a representation dated April 28, 1992 to the respondent no.4 requesting him to supply 17 documents to enable him to submit reply to the said charge-sheet. On receipt of the above representation, the respondent no.4 decided to make the documents mentioned in the above representation available to the petitioner in due course. THE petitioner further submitted a statement of defence dated June 12, 1992 to the respondent no.4 refuting all the charges levelled against him. After conducting an enquiry in connection with the said charge-sheet, the respondent no.4 submitted his enquiry report dated September 1, 1992 (hereinafter referred to as the said enquiry report) to the disciplinary authority. THE Divisional Security Commissioner, Asansol, Eastern Railway served copy of the said enquiry report to the petitioner under his memo No. SO/PRO/153/03/92 dated September 15, 1992 to enable him to submit a representation to the same before the disciplinary authority. THE respondent no.3 in his capacity of disciplinary authority passed the impugned order of punishment under RO/161/03 dated March 4, 2003 (hereinafter referred to the as the said order of punishment) removing the petitioner from the service of constable Railway Protection Force, Eastern Railway. The petitioner preferred an appeal dated September 9, 2003. The respondent no.3 sat tight over the matter. The petitioner filed an application under article 226 of the constitution of India in the matter of Shri Ambrish Prasad Singh Vs. Union of India bearing W.P. no.11997(W) of 2003 challenging the aforesaid inaction on the part of the respondent no.3. During the hearing of the above writ application the respondent authorities produced an order passed by the respondent no.2 under memo No.SC.30/213/Appeal/03(ASP) dated September 9, 2003 (hereinafter referred to as the said order passed by the appellate authority) before the court and the writ application was disposed of on December 4, 2006 giving liberty to the petitioner to take steps in accordance with law against the said order passed by the appellate authority. Necessary to point out that by virtue of the said order passed by the appellate authority the said order of punishment was set aside and the petitioner was awarded punishment of compulsory retirement from the date he had been removed from the service. It is submitted by Mr. A. K. Majumder, learned Advocate appearing on behalf of the petitioner, that the said charge-sheet was issued by the petitioner with closed mind. According to him, the above charge-sheet was issued initiating a disciplinary proceeding against the petitioner disclosing the name of the enquiry officer in the said charge-sheet without giving him an opportunity to give reply to the said charge sheet. It is further submitted by Mr. Majumder that from the language of the charge-sheet it appears that the respondent authority had drawn a positive conclusion against the petitioner and thereafter started the disciplinary proceeding in question against him. It is also submitted by Mr. Majumder that the respondent no.4 conducted the enquiry proceeding against the petitioner violating the principles of natural justice. According to him, the necessary documents were not supplied by the respondent no.4 to the petitioner to deprive him from defending the case properly in the enquiry proceeding. According to him, the respondent no.4 collected evidence behind the back of the petitioner allowing some witnesses to adduce evidences without disclosing their names in the charge-sheet. It also submitted by Mr. Majumder that the enquiry officer relied upon some documents in preparing his report without those documents bring corroborated by proper witnesses.
(3.) IT is further submitted by Mr. Majumder that the disciplinary authority passed the order of punishment without considering the representation of the petitioner to the enquiry report properly. IT is also submitted by Mr. Majumder that the respondent no.2 passed the order dated September 9, 2003 in violation of the provisions of Rule 217.3 of the Railway protection Force Rules, 1987 and without applying his mind to the grounds taken by the petitioner in his statutory appeal. I have heard the learned counsel appearing for the petitioner at length and I have given my anxious consideration to the facts and circumstances of this case. On a bare reading of the said charge-sheet it is evident that the name of the respondent no.4 was mentioned as enquiry officer in the said charge-sheet and the first date of enquiry was also fixed in the said charge-sheet. It is settled proposition of law that the disciplinary authority has to apply its mind upon receipt of reply to the charge-sheet as to whether a further enquiry in the matter is called for. In the event upon deliberations and due considerations it is in the affirmative, the enquiry follows but not otherwise. Reference may be made to the decision of State of Punjab Vs. B. K. Khanna, reported in(2001) 2 SCC 330 and the relevant portions of the above decision are quoted below: 34. The High Court while delving into the issue went into the fctum of announcement of the Chief Minister in regard to appointment of an enquiry officer to substantiate the frame of mind of the authorities and thus depicting bias- what bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply is it an indication of a free and fair attitude towards the officer concerned The answer cannot possibly be in the affirmative. It is well settled in service jurisprudence that the authority concerned 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 inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative the inquiry follows but not otherwise and it is this part of service jurisprudence on which reliance was placed by Mr. Subramanium and on that score, strongly criticised the conduct of the respondents (sic appellants) herein and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record.;