Dukhishyam Mallick vs Union of India (UOI)

Heard Mr. A.K. Mohanty, learned Counsel for the Petitioner and Mr. B. Pal, learned Senior counsel for the O.Ps.

The brief fact as delineated in this writ application tends to reveal as follows:

The Petitioner was appointed as a Rakshaka in the Railway Protection Force under the South Eastern Railway in 1967 and in the year 1980 he was posted at Bhadrak. On 10.8.1980 he was directed to guard the wagons at Kenduapada Railway Station yard from 18.00 hrs to 6.00 hrs. On the allegation that 93 bags of ''Urea were stolen from one of the Wagons at about 22.30 hrs. in the night of 17/18th August, 1980, during which the Petitioner was on duty at Kenduapada Railway Station, the Petitioner along with nine outsiders was roped in a criminal case, registered as 2(c) C.C. Case No. 82 of 1980, for the offence u/s 3A of the Railway Property (Unlawful Possession) Act. On 26.8.1980 the Petitioner was placed under suspension from service and charge-sheet was issued against him u/s 9(1)(i) of the R.P.F. Act, 1957 read with Rule 44 of the R.P.F. Rules, 1959 for the charges of serious misconduct and gross negligence in duty which resulted in theft of the Urea bags from the wagon in connivance with the outsiders. Ultimately the Petitioner filed his reply and during the pendency of the disciplinary proceeding, the Petitioner was acquitted of the charges by the learned S.D.J.M., Bhadrak in the aforesaid criminal case. Admittedly no appeal having been filed against the order of acquittal passed by the Magistrate, the same had become final. The Enquiry Officer after enquiry submitted the report dated 23.11.1984 to the Disciplinary Authority vide Annexure-2, the relevant portions of which are extracted hereunder:

xxx xxx xxx

The wagon in question was also examined by P.W.4 and P.W.1 when the tarpaulin was found torn and some ropes of tarpaulin found in loose condition besides some urea grain fallen on the ground and the same also is proved by Ext. P.II).

The subject wagon was subsequently checked jointly by P.W.4 and others at BHC C/shed on 30.8.80 when 93 bags urea found short (Ext. P.IX). The P.W.4 admitted the possibility of earlier criminal interference also in the wagon prior to its arrival at Kenduapada as there was heavy shortage in the wagon.

It is further seen that there were two RKs deputed at Kenduapada for guarding the said wagon including this delinquent RK who was on duty during night from 18/00 hrs to 6/00 hrs and the other R.K. During day time from 6/ 00 hrs to 18/00 hrs which has been proved by P.W.3 and P.W.4 and also admitted by the delinquent RK.

From the above facts it is reasonably proved that there was some theft of urea bags from the said wagon at Kenduapada Rly. yard and the delinquent RK failed to prevent the same and neglected in his duty.

As regards the other charge of the connivance of the delinquent RK in the theft of urea bags from the subject wagon it is seen that all the P.Ws. Nos. 2, 4, 5 and 6 have denied the connivance of the delinquent RK. in this case or his indulgence in the said theft. Only P.W.1 raised this point on the basis of the alleged version of P.W.5 named Rabi Das but during the enquiry this P.W. denied the allegation and rather alleged that P.W.1 had suitably written the same under threat forcibly.

In view of the above facts and also in view of the facts that ASM on duty/KED and P.W.4 checked the wagon during the night but found no criminal interference and rather the delinquent was found alert on duty and the connivance or direct knowledge of the delinquent RK in this theft is not proved.

FINDINGS

As discussed above, the negligence of the delinquent RK in partial theft of urea bags from the subject wagon at Kenduapada Rly. yard is proved under the circumstantial evidences.

The other charge of his direct knowledge or connivance in the theft is not proved by the P.Ws. stated above.

The Disciplinary Authority on going through the enquiry report agreed with the findings of the Enquiry Officer and held the Petitioner guilty of the charge of negligence and issued the notice to the Petitioner to show cause against the proposed penalty of removal from service. The Petitioner submitted his show cause reply. The Disciplinary Authority ultimately passed the order dated 11.2.1985 (Annexure-5) removing the Petitioner from service with effect from the date of receipt of the removal notice. The Petitioner preferred an appeal against the aforesaid penalty. The appellate authority by order passed in Annexure-8 dismissed the appeal thereby confirming the order passed by the disciplinary authority removing him from service. Against the appellate order, the Petitioner filed a writ application in the Calcutta High Court and the same was dismissed with an observation that the Petitioner may take appropriate steps in the appropriate forum. Against the aforesaid order, the Petitioner filed an appeal but the same was also dismissed by a Division Bench. The Petitioner then filed a writ petition being O.J.C. No. 2375 of 1989 in this Court. This Court did not entertain the same as the Petitioner had not exhausted the remedy available to him under the service Rules. Thereafter the Petitioner filed a revision before the revisional authority, i.e., the Chief Security Commissioner, R.P.F., South Eastern Railway, Calcutta (O.P. No. 4), who rejected the revision vide order dated 17.9.1995, Annexure-10 and confirmed the order passed by the appellate authority. Thereafter this writ application has been filed challenging the findings of the appellate authority as indicated above. It is submitted that the Disciplinary Authority was not justified to award a major punishment like removal from service because the allegation and charge against the Petitioner relating to his connivance with others for commission of offence of theft of Urea bags was not proved. According to the Petitioner at best negligence of duty of the Petitioner could be found in the disciplinary proceeding. According to the learned Counsel for the Petitioner, the penalty of removal from service awarded to the Petitioner being an extreme penalty, that too grossly disproportionate to the charges levelled against him, is liable to be quashed.

A counter affidavit has been filed by O.Ps. 1 and 2 taking a stand that the allegations made in the writ application are not correct being not borne out on records. Further, the writ application being one Tor issuance of Writ of Certiorari, no fresh allegation or contentions can be raised before this Court for the first time. It has further been stated that there being no infirmity or illegality in the disciplinary proceeding, this Court may not interfere with the penalty imposed on the Petitioner.

Mr. Pal submits that it was a case of gross negligence of duty on the part of the Petitioner for which the order of removal from service was appropriate. In this regard, he draws our attention to a decision of the apex Court rendered in the case of Hombe Gowda Edn. Trust and Another Vs. State of Karnataka and Others, , wherein it was held:

A person, when dismissed from service, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matters, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important.

In the aforesaid case, the head of an institution was assaulted by a teacher and assaulting a superior at his work place considered to an act of gross indiscipline and the punishment of dismissal was awarded.

Here is a case where the findings of the Enquiry Officer are very clear and cogent. Save and except the charge of negligence, the other charge has not been proved against the Petitioner. Learned Counsel for the Petitioner draws our attention to a decision of the apex Court in the case for B.C. Chaturvedi Vs. Union of India and others, , in particular, paragraph 18 of the judgment which runs as follows:

A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while examining the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.

Looking at the judgment of the apex Court and the facts and circumstances of this case, we are of the considered opinion that there is no infirmity in the disciplinary proceeding. However, looking at the delinquency of the Petitioner, we are of the considered opinion that the penalty awarded is disproportionately higher for which we quash the penalty of removal of the Petitioner from service and direct the Disciplinary Authority to impose any other suitable penalty except the penalty of removal, discharge or dismissal from service. This exercise shall be completed within a period of three months from the date of communication of this order.

The writ application is accordingly disposed of.