S.J.MOKHOPADHAYA,J. - (1.) THE petitioners, who were Senior Rakshaks (Senior Constables)/Rakshaks (Constables), having been found involved in theft were removed w.e.f. 1st December, 1981 vide order dated 27th November, 1981, issued by Assistant Security Officer, Railway Protection Force, Eastern Railway, Dhanbad (for short RPF) under the Rule 47 of RPF Rules, 1956. They challenged the orders of removal, all dated 27th November, 1981 before the Calcutta High Court in Civil Order No. 15157 (W) of 1981, which wad dismissed by the, learned Single Judge vide judgment dated 27th May, 1982. The appeals being F.M.A.T. Nos. 1570 and 1574 of 1982 preferred by petitioners were also dismissed by a Division Bench of the Calcutta High Court on 20th June 1984. The Supreme Court also upheld the Judgment in SLP (Civil) Nos. 8224 -9020 of 1984 vide its order dated 6th December, 1985 with the following observation : 'The question involved in these petitions are covered by decision of this Court reported in Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416.The Special Leave Petitions are therefore dismissed. If so advised, it will be open to the petitioners to prefer departmental appeal and apply for condonation of delay, if any and the authorities concerned will consider it and dispose it of in accordance with law.' After the order of the Supreme Court, the appeals preferred by petitioners were rejected by the appellate authority vide similar orders all dated 31st January, 1986 ]30th June 1986 in CWJC'No. 10281/93 (P) and CWJC No. 10408/93 (P)].
(2.) THE petitioner, Shiva Shankar Singh of CWJC No. 11253/2000 (P), in fact, sat tight over the matter after the judgment of the Supreme Court and did not choose to prefer any appeal. After the appellate order dated 31st January, 1986, the petitioner, Brahmdeo Ojha of CWJC No. 9797/93 (P) and petitioner, Madhusudan Singh of CWJC No. 11956/93 (P) did not choose to move before the revisional authority. Pettioners, Kashi Nath Pandey of CWJC No. 11143/93 (P), Ram Prasad Ram, EX - R.K. of CWJC No. 11145/93 (P) filed mercy petitions which were rejected on 24th August, 1989. The revision application preferred by petitioner, Kashi Nath Sah of CWJC No. 10281/93 (P), Girija Nandan Sharma of CWJC No. 10408/93 (P), Kashi Nath Pandey of CWJC No. 11143/93(P), Ram Prasad Ram. Ex -R.K. of CWJC No. 11145/93 (P) were rejected by similar order dated 2nd September, 1993. In the present petitions, the petitioners have again challenged their orders of removal dated 27th November, 1981 which were upheld by Calcutta High Court and Supreme Court, while they challenged the respective appellate orders dated 31st January, 1986 and revisional orders dated 2nd September, 1993. The question that arises for determination is as to whether the order and Judgment dated 27th May, 1982 passed by the Calcutta High Court in Civil Order No. 15157 (W) of 1981 upholding the dismissal orders of petitioners dated 27th November, 1981, as was also confirmed by a Division Bench of the Calcutta High Court and the Supreme Court operates as res judicata in the present cases or not.
(3.) BEFORE deciding, the issue, it is desirable to notice certain facts as highlighted by petitioners in these writ petitions. One Birendra Prasad Yadav, Rakshak (Constable), who also removed along with the petitioners vide order dated 27th November, 1981 under Rule 47 of RPF Rules, for the same allegation, also challenged the order of removal before the Calcutta High Court along with petitioners in Civil Order No. 15157 (W) of 1981, which was dismissed on 27th may, 1982. He (Sri Birendra Prasad Yadav) also joined hands with these petitioners and some others to prefer appeals before the Division Bench of the Calcutta High Court being FMAT Nos. 1510/1574 of 1982, which were dismissed on 20th June, 1984. He (Sri Birendra Prasad Yadav) also moved before the Supreme Court along with these petitioners and some others in SLP (Civil) No. 8224 -9020 of 1984 which was dismissed on 6th December, 1985 with liberty to prefer appeal, as quoted above. Therefore, the petitioners, claim to be similarly placed like Sri Birendra Prasad Yadav, Rakshak (Constable). In spite of the fact that the order of removal dated 27th November, 1981 was upheld upto Supreme Court, after rejection of his appeal arid revision application, Sri Birendra Prasad Yadav filed a fresh writ petition before the Patna High Court, CWJC No. 4617 of 1991. In the said case, a Division Bench of Patna High Court vide order dated 27th July, 1992, while observing that the facts invoked in the case of Birendra Prasad Yadav was almost similar to the facts as noticed by the Supreme Court in Chief Security Officer v. Singasan Rabi Das, AIR 1991 SC 1043, remitted the matter to the revisionalauthority for a fresh decision, in accordance with law with the following observations : 'Heard counsel for the petitioner, Union of India and the respondent -Railway. The petitioner has been dismissed from service without enquiry in terms of Clause (b) of second proviso to Article 311(2) of the Constitution of India which empowers the authority to dismiss or remove a person or to reduce in rank if it is satisfied that for some reason to be recorded in writing, it is not reasonably practicable to hold enquiry. The reasons given by the disciplinary authority for dispensing with the enquiry have been set out in the revisional order passed by the Additional Chief Security Commissioner/RPF/Eastern Railway, true copy whereof has been marked Annexure -8 to the supplementary affidavit filed by the petitioner. It runs as follows : 'During my personal enquiry through different sources, it could be established that the abovenamed RPF staff are by nature the hardcore criminals, affluent enough to install all sorts of pressure, threats and influences on witnesses through different sources for tempering the evidences and gain them over by any hook or crook, so that none can dare to come forward either to depose or divulge their exact misdeeds and character.' Counsel for the petitioner submitted that this case is covered by the decision of the Supreme Court in Chief Security Officer v. Singasan Rabi Das, AIR 1991 SC 1043. In that case, the enquiry was dispensed with on the ground : 'Because of the facts that it is not considered forcible or desirable to procure the witnesses of the security/ other railway employees since this will expose them and make them ineffective for future. These witnesses if asked to appear at a confronted enquiry are likely to suffer personal humiliation and insults thereafter or even they and their family members may become targets of acts of violence.' The Apex Court held that the reasons given for dispensing with the enquiry are beyond the scope of Clause (b) of second proviso to Article 311(2). In view of the similarity of the facts involved in the instant case, we are left with no option but to remit the matter to the Revisional Authority for passing a fresh order in accordance with law. While considering the matter, the Authority will take into account the aforesaid judgments of the Supreme Court and pass necessary orders within three months from the date of receipt/ production of a copy of this order. It will be open to the petitioner to file a supplementary memorandum enclosing a copy of the instant order, This application is, accordingly, disposed of in terms of the aforesaid observation.' Thereafter it appears that the revisional authority got the matter enquired in respect of Birendra Prasad Yadav and having found him 'not guilty' for the charges framed against him, reinstated him in March, 1993. In the aforesaid background, all the writ petitions, except one have been preferred by petitioners in 1993 with one of the grounds that the petitioners should be treated equally like Birendra Prasad Yadav and should be granted same relief in view of the similarity of the allegation and facts involved in their case. Plea has been taken to remit the case to the revisional authority as was remitted by the Patna High Court in the case of Birendra Prasad Yadav, CWJC No. 4617 of 1991 vide its order dated 27th July, 1992. ;