- (1.) This application arises out of an appeal preferred against the impugned judgment dated October 25, 2017 passed in W.P. No.25712 (W) of 2017. This application is taken up for hearing dispensing with formality of exchanging affidavits with the consent of the parties.
(2.) It is submitted by Mr. Achin Kumar Majumder, learned Advocate appearing for the petitioner/appellant that the subject matter of challenge in the writ application was a second show cause notice dated September 21, 2017 issued by the respondent No.2 asking the appellant to show cause as to why major punishment as laid down in Rule 148.2(a) to 148.2(c) of Railway Protection Force Rules, 1987 (hereinafter referred to as the said Rules) should not be awarded to the appellant. Drawing our attention towards a communication dated May 10/11, 2016 of the respondent No.2 addressed to the respondent No.3, it is submitted by Mr. Majumder, that while considering the matter relating to a disciplinary proceeding initiated against the appellant, the respondent No.2 sent the entire matter back to the respondent No.3 with a view to afford him an opportunity to have a fresh look at the case and to take appropriate remedial measures in accordance with the said Rules in the greater interest of fair play and justice. The above communication was issued after receiving the report of the of the enquiry officer. According to Mr. Majumder, seven points were raised by the respondent No.2 to arrive at his above conclusion which are as follows: "(i) The list of witnesses by whom the article of charge against Sri Kalika Pathak, IPF/RPF/BLS were proposed to be sustained has been enclosed as Annexure IV. In this annexure, name of the party charged Sri Kalika Pathak has been mentioned as a prosecution witness at Sr. No.15. (ii) The name of Sri K.M. Psathak, SIPF/OP/Baripada, has been mentioned at the places i.e. at Sl. No.14 & 22 of this annexure. (iii) Neither Sri Ajay Kumar Chechi, Manager, RR Roadways Pvt; Ltd., the complainant in the CBI Case nor the two drivers namely, Ram Vilas Chaudhury and A.K. Md. Sayed who were alleged detained along with their vehicles and confined by RPF for illegal money, were made prosecution witness. The I.O. also did not call them as I.O.'s witness during the D&AR proceedings for examination and cross-examination by the party charged. These persons would have been very crucial in deciding the culpability of the party charged and in bringing out the truth in the D&AR proceedings. (iv) Sir Ajay Kumar Chechi, Manager, RR Roadways Pvt. Ltd. lodged an FIR with CBI/Bhubaneshwar on 23.11.2013 against IPF/BLS for demanding bribe. In this FIR he has mentioned that his two vehicles were detained on 20.11.2013 along with their drivers. When he contacted Sri Pathak, IPF/BLS on phone on 21.11.2013, he demanded Rs.1.50 Lacs for releasing the above mentioned vehicle. However, in the charge sheet, the date of detention of vehicles' drivers have been shown on 22.11.2013. It has not been clarified during the enquiry. (v) ASC/RPF/OL/KGP recorded the statement of Sri Ram Vilas Chaudhury, one of the drivers on 23.11.2013 itself which has been mentioned in the preliminary report of Sri S.N. Banerjee, ASC/WS/KGP submitted to Sr. DSC/KGP. During the identification parade conducted under the supervision of SP/CBI/BBS on 23.11.2013, another driver by name A.K.Md. Sayeed was also present but his statement was not recorded. The statement of Sri Ram Vilas Chaudhury was taken as relied upon document and it was exhibited during DAR enquiry, but even after the objection raised by the party charged, he was not called for cross-examination. (vi) NO CBI official was made PW in the D&AR enquiry to corroborate trap story involving Shri K. Pathak, the then IPF/BLS. They could have been called during the enquiry to provide adequate opportunity of cross-examination to the party charged in the larger interest of fair play and natural justice. Efforts made the I.O. in this regard could not be noticed in the file. (vii) Tough the allegation of corruption, discreditable conduct, disobedience of order, arrest by Officers and staff of CBI/Bhubaneswar for demanding and accepting illegal gratification from Sri Ajay Kumar Kishan Deb Chechi, have been mentioned in the statement of charge, not much evidence has been collected for arriving at the findings."
(3.) According to Mr. Majumder, thereafter the second show cause notice dated September 21, 2017, mentioned hereinabove, was issued to the appellant. According to him, no further opportunity of hearing was given to him in the disciplinary proceeding on the basis of the observations made by the respondent No.2 and as a result, the decision making process of the disciplinary authority in issuing the second show cause notice has been vitiated due to the procedural irregularity. It is also his submission that a Court, in course of judicial review, can interfere with the show cause notice even before imposing the punishment when the disciplinary authority has formed an opinion for imposing major punishments upon the appellant on the basis of the disciplinary proceeding initiated against him under Rules 148.2(a) to 148.2(c) of the said Rules, which deals with major punishments like dismissal, removal and compulsory retirement of the delinquent employee.;