Subrata Talukdar, J. - (1.) Both the writ petitions have come up for analogous hearing. The first writ petition being WP 1208(W) of 2009 (hereinafter referred to for short as WP-I) challenges three charge sheets issued against the writ petitioner, two of them dated 31st of July, 2007 and, one 14th of August, 2007. The three charge sheets respectively allege that the petitioner has violated the conduct rules of the Railway Protection Force (RPF) thereby necessitating departmental proceedings under Rule 153 of the RPF Rules, 1987 (for short the RPF Rules).
(2.) The second writ petition, being WP 15925(W) of 2016 (hereinafter referred to for short as WP-II), seeks withdrawal of a communication dated 20th April, 2016 issued by the Security Commissioner, RPF, Kolkata (for short SC only) on behalf of the Chief Security Commissioner, RPF, Kolkata (for short CSC) indicating the stand of the RPF for non-payment of gratuity, arrear salaries and other service benefits in favour of the writ petitioner. The reason given by the SC is that three Disciplinary Proceedings (for short DPs) are pending against the petitioner as instituted in the year 2007 . In view of the pending DPs the petitioner is only entitled to Provisional Pension. Mr. Achin Majumdar, Ld. Counsel arguing for the writ petitioner in both WP-I and WP-II submits as follows:- a) That the petitioner was also served with a purported charge sheet on the 9th of December, 2011 by the Divisional Security Commissioner (DSC), RPF for remaining unauthorisedly absent from duty. Thereafter, by way of compliance with the order of an Hon'ble Single Bench of this Court dated 29th July, 2011 the petitioner was instructed to join his place of posting at Jamalpur, Malda Division from the Kanchrapara Training Centre of the RPF. b) The DP instituted by way of the purported chargesheet dated 9th of December, 2011 culminated in a finding of guilt against the petitioner by the Enquiring Officer (EO). Vide the EO's order dated 7th May, 2012 the petitioner was removed from service by order dated 1st of June, 2012 issued by the CSC. c) Against the order of removal from service the petitioner preferred an appeal before the Appellate Authority (for short AA) being the Director General, RPF. The AA was pleased to modify the order of punishment of removal by converting it into an order of compulsory retirement. d) Mr. Majumdar argues that after the order of the AA dated 24th May, 2013 the petitioner has been running from pillar to post for his retirement benefits. In this connection Mr. Majumdar relies upon several representations filed by the petitioner to his higher authorities at RPF dated 13th July, 2013, 3rd September, 2013, 12th December, 2013, 22nd December, 2013 and, lastly on 15th of September, 2014. The petitioner was informed during the above noted period spanning his representations that he is required to furnish several documents along with a declaration before the DSC. The petitioner is understood to have complied with the above mentioned requirements till he was issued the letter impugned dated 20th April, 2016. e) Mr. Majumdar points out that both commuted pension and gratuity are statutory benefits respectively due to the writ petitioner. Accordingly, the writ petitioner is entitled to interest on delayed payment of gratuity and commuted pension. The petitioner is also entitled to his arrear salaries between March, 2010 to 24th May, 2013, the latter being the date on which he was compulsorily retired. f) On the factual aspects, Mr. Majumdar submits that since the order of the DA was modified by the AA from Removal to Compulsory Retirement the entire period of his service up to 24th May, 2013 requires to be treated as regularised. Therefore, there can be no bona fide reason on the part of RPF to withhold arrear salaries from March, 2010 to 24th May, 2013. The petitioner is also entitled to interest on the arrear salaries. g) Referring to the appeal filed by the writ petitioner to the AA, Mr. Majumdar submits that the petitioner was illegally treated as having been unauthorisedly absent from duties. Ld. Counsel for the petitioner points out that while working at Kanchrapara w.e.f. May, 2007, the petitioner was transferred prior to completing his normal tenure of 5 years. The transfer to Jamalpur, Malda Division put the petitioner into acute family distress since his wife, after a brain operation in the year 2006, had lost her eye sight. Since there was none to look after his wife, the petitioner was required to attend to her medical condition. h) Ld. Counsel argues that the stress created by the transfer order and the loss of eye sight of his wife on the petitioner rendered him seriously ill which required hospitalisation at SSKM Hospital. During his treatment the petitioner could not attend to the enquiry proceedings and, the wife of the petitioner made several representations to the DSC to keep the DP pending till her husband recovers. However, proceeding with a mala fide motive the DSC/DA concluded the proceeding recommending Removal. However, such removal was converted to an order of Compulsory Retirement. i) Mr. Majumdar argues on legal points by first pointing out that the DSC/DA appointed an EO connected to the DP who was not competent to act as EO. Furthermore, by not granting the petitioner leave to contest the DP during the period of his treatment at the hospital, the principles of natural justice have been violated. j) The DP has been instituted under Rule 153 of the RPF Rules and, not under Rule 9 of the Railway Service Pension Rules, 1993 (for short the Pension Rules). Mr. Majumdar points out that Rule 9 of the Pension Rules confers upon the President to withhold or withdraw pension or gratuity only in the event the Railways have suffered a pecuniary loss or, the retiree is found guilty of gross misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement. k) Mr. Majumdar submits that in the present case no proceeding has been instituted under Rule 9 of the Pension Rules . The DP against the petitioner has been instituted only under Rule 153 of the RPF Rules and, in view of the admitted fact that the petitioner retired w.e.f. 20th May, 2013 there does not exist any employer-employee relationship between the Railways and the writ petitioner. Accordingly, no DP can be maintained against the petitioner after the date of his Compulsory Retirement since none of the provisions of Rule 9 of the Pension Rules can be pressed into service for enquiry. l) In support of his above noted arguments, Mr. Majumdar relies upon the following authorities:- In the matter of Chandra Singh & Ors. vs. State of Rajasthan & Anr., 2003 6 SCC 545; In the matter of State of Jharkhand & Ors. vs. Jitnedra Kumar Srivastava & Anr., 2013 AIR(SC) 3383; In the matter of Jaswant Singh Gill vs. Bharat Coking Coal Ltd. & Anr., 2007 1 SCC 663; In the matter of D. V. Kapoor vs. Union of India & Ors., 1990 3 SLR 5; In the matter of Bhagirathi Jena vs. Board of Directors, O. S. F. C. & Anr., 1999 AIR(SC) 1841; In the matter of Kamal Kumar Majumdar vs. Union of India & Ors., 2008 1 CalHN 951; and In the matter of Dhairyasheel A. Jadhav vs. Maharashtra Agro Industrial Development Corporation Ltd., Mumbai, 2010 8 SLR 295. m) In connection with WP-I, Mr. Majumdar takes the stand that the charge sheets complained of were the result of a deep seated bias against the writ petitioner by his superior officers. Therefore, by a solemn order dated 4th March, 2010 after a contested hearing, an Hon'ble Single Bench of this Court was pleased to protect the petitioner by way of an interim order from facing the DPs.
(3.) However, with the Compulsory Retirement of the writ petitioner the three DPs complained of in WP-I have become infructuous and, the petitioner is now entitled to all of his retirement benefits.;