(1.)THE petitioner J. N. Roy, Assistant Booking Clerk, Asansol, has challenged the legality of the report of the enquiring officer in the disciplinary proceedings started against him and also the second show cause notice dated December 21, 1971, issued to him by the punishing authority, namely, the Divisional Commercial Superintendent, Eastern Railway, Asansol.
(2.)A charge-sheet was served upon the petitioner by the respondent no. 1, the divisional Superintendent, and the petitioner was asked to show cause against the charge levelled against him. The charge against the petitioner is that on 21/22. 2. 68 he failed to maintain the absolute integrity and devotion to duty inasmuch as he was found possessing on his person an excess amount of Rs. 5. 40 over and above the amount declared by him at the time of resuming the duties and, as such, he contravened Rule 3 of the Railway Services Conduct Rules, 1966. The petitioner by his letter dated August 26, 1968, requested the respondent no. 1 to allow him to inspect the documents relying on which the allegations have been made against him. Further, he communicated his desire to be assisted by one C. D. Seal, a Railway employee. Subsequently, the petitioner also asked for copies of the F. I. R. and the statements recorded during investigation and the documents relied on against him. The copy of the F. I. R. was refused by the respondent no. 1 on the ground that F. I. R. is a classified document, copy of which could not be supplied to the petitioner in public interest. The copies of the documents; were also refused on the same ground. The said C. D. Seal whom the petitioner nominated as a defence helper was not available. The petitioner by his letter to the respondent no. 1 dated march 22, 1969, nominated one H. S. Chatterjee, A. S. M. , Ondal, and enclosed therein the consent in writing of the said h. S. Chatterjee. The respondent no. however, asked the petitioner to obtain a fresh declaration from the said h. S. Chatterjee and forward the same to his office with the details of cases in which he was engaged. That was required by the respondent no. 1, presumably in view of Note 2 to Rule 9 (9) of the Railway Servants (Discipline and appeal) Rules 1968 (hereinafter referred to as the Rules ). Note 2 provides that nomination of an assisting Railway servant or a Railway Trade Union official shall not be accepted if at the time of nomination the assisting Railway servant or the Railway Trade union official has more than two pending disciplinary cases in which he has to assist. The petitioner could net supply the number of cases in which h. S. Chatterjee was engaged at the time of his nomination. But the respondents insisted in the petitioner to supply the same. Ultimately, the C. T. I. (1), Assansol, by his letter dated january 20, 1970, informed the petitioner that H. S. Chatterjee was acting as the defence helper in three other cases and so, he could not act as the defence helper in the petitioner's case. Therefore, the petitioner was not allowed to be defended by the said H. S. Chatterjee. The petitioner protested against the same and although he was present in the enquiry, he did not take part in the same on the ground that without a defence helper he was unable to defend himself. The report of the enquiring officer went against, the petitioner and he was found guilty of the charge levelled against him. The respondent no. 1 accepted the findings of the enquiring officer and by the impugned notice he called upon the petitioner to show cause why the penalty of removal from service should not be imposed on him.
(3.)THE first question that arises for consideration in this Rule is whether the respondents were justified in not allowing the petitioner to be defended by the said H. S. Chatterjee. I have already referred to Note 2 to Rule 9 (9) of the Rules. It is contended by mr. Roy Choudhury, learned Advocate appearing on behalf of the respondents, that it is the duty of the Railway servant to satisfy the authority concerned that the defence helper has not been engaged in more than two pending disciplinary cases at the time of his nomination by the Railway servant. On the other hand, Mr. Gupta, learned advocate appearing on behalf of the petitioner, submits that the onus is on the Railway to establish that at the time of nomination of the defence helper he was engaged in more that two pending disciplinary cases. Note 2 does not provide as to who will supply the particulars of cases in which the nominated defence helper is engaged at the time of nomination. The Rule permits the authorities concerned not to accept the nomination if the assisting Railway servant or the Railway trade Union official has more than two pending disciplinary cases in which he has to assist. It is only on that ground alone the authority can refuse to accept the nomination. It is, therefore, obvious that the authority has to establish that he has not accepted the nomination of the defence helper as he was engaged in more than two pending disciplinary cases at the time of nomination. It is not for the Railway servant concerned to establish that the defence helper whom he nominates is not engaged in more than two pending disciplinary cases. It is argued by Mr. Roy Choudhury that it is not possible for the authorities to ascertain whether a particular assisting Railway servant is engaged in more than two pending disciplinary cases or not. I am not concerned with the difficulty to which the Railway would be put to. But, as the language of the Rule goes, I have no hesitation in holding that before refusing to accept the nomination of a railway servant, the authority concerned must have materials before him justifying the refusal to accept the nomination. The nomination of a Railway servant cannot be rejected or refused to be accepted on the ground that the Railway servant has not produced the particulars of the cases in which the nominated defence helper has been engaged, on the date the nomination is made. It may be stated here, that the nomination was made by the petitioner by his letter dated March 22, 1969. The C. T. I. (1), Assansol, by his letter dated January 20, 1970, referred to above, informed the petitioner that the said H. S. Chatterjee whom the petitioner nominated as his defence helper was acting as defence helper in three other cases. The crucial date is the date of nomination. Since the date of nomination, that is, March 22, 1969, several months had passed when the c. T. I, wrote the said letter dated January 20, 1970. It is not stated in the letter that H. S. Chatterjee was engaged in more than two cases on the date of his nomination by the petitioner. The letter is, in my opinion, quite vague. Mr. Roy Choudhury has produced the records before me, but I do not find any material to show that H. S. Chatterjee was engaged in more than two pending disciplinary cases on march 22, 1969. It might be that he was engaged in more than two cases subsequently, but that would be no ground in refusing his services to the petitioner. It is beyond doubt that the crucial date is the date of nomination and as there is no evidence before me that H. S. Chatterjee was engaged in more than two cases on the date of the nomination, it must be held that the respondents were not justified in refusing to the petitioner the services of the said H. S. Chatterjee as the defence helper. The respondents, therefore, proceeded to enquire against the petitioner in clear violation of Note 2 to Rule 9 (9) of the Rules.