- (1.) A cook employed in the Railway Protection Force (hereafter the Force) and posted at Dankuni, is the petitioner before this Court. He has been facing disciplinary proceedings drawn up under Rule 153 of the Railway Protection Force Rules (hereafter the Rules) on the charge of abstaining from duty during two separate periods in 2012 without authority or intimation to his controlling authority. The challenge in this writ petition is to the charge sheet dated January 22, 2013 (Annexure P-1) and the order dated April 22, 2013 (Annexure P-6) conveying to the petitioner the decision of his disciplinary authority in disposing of a representation dated March 14, 2013. By such representation, the petitioner had prayed for permission to be assisted in the enquiry by a member of the Force not posted in the same division or the battalion where the proceeding is pending because none from his division or battalion agreed to assist him in the enquiry as his 'friend'. Citing Rule 153.8 of the Rules, the disciplinary authority rejected the petitioner's request.
(2.) Insofar as the charge-sheet is concerned, the challenge is based on the ground that the disciplinary authority decided to proceed with the enquiry without waiting for the petitioner's response to the charge. According to Mr. Majumdar, learned advocate for the petitioner, the disciplinary authority was required to apply his mind on perusal of the response of the petitioner before deciding on the issue as to whether an enquiry is necessary or not. No opportunity having been given to the petitioner to respond and the disciplinary authority having made up his mind to hold an enquiry into the petitioner's conduct irrespective of the merits of his response, Mr. Majumdar has contended that this is a serious flaw in the proceeding for which interference at this stage is necessary. 4. While I was in seisin of W.P. No. 3065 (W) of 2009 (Purushottam Dubey v. Union of India), a similar contention concerning a member of the Force had been raised by Mr. Majumdar relying on three decisions of an Hon'ble Division Bench of this Court (i) dated November 10, 2008 on M.A.T. No. 580 of 2008 (Union of India v. Sri Dilip Kumar Palit), (ii) dated November 10, 2008 on M.A.T. No. 429 of 2008 (Union of India v. Ram Parwesh Dubey & Anr.) and (ill) dated November 17, 2008 on M.A.T. No. 530 of 2008 (Union of India v. Champa Das & Anr.). The decision of the Supreme Court in State of Punjab v. V.K. Khanna, 2001 AIR(SC) 343 was relied on by the Hon'ble Division Benches comprising of the same learned judges to hold that appointment of an enquiry officer simultaneously with issuance of charge sheet and asking the delinquent member of the Force to submit his reply to the charge sheet to the enquiry officer, without waiting for his reply in respect of the accusations levelled, is demonstrative of a pre-judged mind. In my judgment dated April 7, 2009, I had recorded reasons in support of my opinion that the decisions of the Hon'ble Division Bench did not lay down correct law. In paragraph 53, I had the occasion to observe as follows: 53. Considering the RPF Act and the RPF Rules, I am of the firm opinion that attempt to apply the law laid down in V.K. Khanna requiring the disciplinary authority to consider the reply to the charges before it appoints an inquiring authority/Enquiry Officer ought to be made in consonance with the mandate of the statute applicable in a particular case and not in ignorance thereof. Whether or not a decision to hold enquiry should be taken only after receipt of a reply to the charge sheet would really be dependent on the rules governing the procedure for holding enquiry and the Court, by a judicial fiat, may not introduce a procedure not ordained by the relevant rules to be followed by the disciplinary authority. Rewriting of rules by Court, it is again well settled, is not permissible. In such a case, and as has happened in the present case, the respondents though having acted perfectly in accordance with statutory rules find their action invalidated on the ground of acting in a manner contrary to principles of law decided by the Court.
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