Sukhdev Singh vs Union of India (UOI)

Indira Banerjee, J.—In this writ petition the Petitioner has inter alia challenged an Order No. MLDT/CS/153/14/94 dated August 4, 2000 passed by the Divisional Security Commissioner, Railway Protection Force, Eastern Railway, being the Disciplinary Authority, disagreeing with the findings of the Enquiry Officer and imposing on the Petitioner the penalty of dismissal and also an Order No. SC/30/2/3/Appeal/2K (S.S.) dated Calcutta the November 13, 2000 passed by the Additional Chief Security Commissioner, Railway Protection Force, Eastern Railway, being the Appellate Authority rejecting the Petitioner''s appeal from the said order of dismissal passed by the Disciplinary Authority.

The Petitioner, a constable of the Railway Protection Force, Eastern Railway posted at the Malda Division, was served with a charge-sheet dated August 5, 1994 informing him that it was proposed to hold an enquiry against him under Rule 153 of the Railway Protection Force Rules 1987 in respect of the allegations set out in the statement enclosed therewith.

The Petitioner was alleged to have conspired with one Inder Singh (Constable No. 9758) and instigated the said Inder Singh to remove a service revolver with live cartridges

The contents of Annex. 1 to the said charge-sheet being the statement of charges is extracted herein below for convenience:

Charge Against Shri Sukdeo Singh, Constable/9792 of Sahibganj R.P.F. post.

For discreditable conduct in that while placed under suspension at Malda in connection with an alleged firing in the night of 27/28.06.94, he made conspiracy with Constable/9758 Inder Singh of Malda Town R.P.F. Post and instigated him to remove service revolvers with live cartridges from Kote of R.P.F. Post, MLDT when Constable/9758 Inder Singh was detailed for fatigue duty to clean rifles on 11.07.94 from 08/00 hrs. to 16/00 hrs. At the time of recovery of revolvers and cartridges from the possession of Constable/9758 Inder Singh by I.P.F. /MLDT., he was found with Constable/9758 Inder Singh. But he suppressed the fact and managed to decamp from the spot. Subsequently, he was arrested on the same date in connection with English Bazar P.S.''s case No. 273/94 dated 11.07.94 u/s 379/411 Indian Penal Code and 25(1)(a) and 27 Arms Act and forwarded to jail custody.

Hence charged.

Annexure 2 to the said charge-sheet is extracted herein below:

Shri Sukdeo Singh, Constable/9792 of R.P.F. Post, Sahibganj was placed under suspension by DSC/R.P.F. /MLDT on 10.07.94 in connection with an alleged firing in the night of 27/28.06.94 at Jamalpur. Being aggrieved he made conspiracy with Constable/9758 Inder Singh of MLDT Post and instigated him to remove revolvers with cartridges from the Kote of R.P.F. Post, MLDT when Constable/9758 Inder Singh was detailed for fatigue duty to clean rifles in the Kote on 11.07.94 form 08/00 hrs. to 16/00 hrs. to take revenge against DSC/R.P.F. /MLDT. Constable/9758 Inter Singh succeeded to remove two revolvers with twelve round live cartridges from the possession of Constable/9758 Inder Singh just behind the R.P.F. barrack, Constable/9792 Sukdeo Singh was also found with him. But he suppressed the fact to I.P.F. /MLDT and managed to decamp from the spot. He was apprehended from DRM building area and brought to R.P.F. Post, MLDT. On the basic of written complaint submitted by I.P.F. / MLDT, OC/English Bazar P.S. registered a case No. 273/94 dated 11.7.94 u/s 379/411 Indian Penal Code and 25(1)(a) and 27 Arms Act. Constable/9792 Sukdeo Singh was taken into custody and forwarded in the Court of Chief Judicial Magistrate, Malda.

For this act, Shri Sukdeo Singh, Constable/9792 of R.P.F. Post, SBG is charged for discreditable conduct in accordance with the provisions as provided in Rules 146.4 and 153 of R.P.F. Rules, 1987 to be read with Section 9 of the R.P.F. Act, 1957 (As modified by Act No. 60 of 1985).

The Petitioner appears to have replied to the said charge-sheet by an undated letter a copy of which has been annexed to the writ petition.

An enquiry was duly held against the Petitioner to enquire into the charges levelled against the Petitioner in the said charge-sheet. The Petitioner contends that the enquiry proceedings against the Petitioner were vitiated in law, the same being under Sub-rule 8 of Rule 153 of the Railway Protection Force Rules, 1987 which had been declared ultra vires by this Court by a judgment dated December 4, 1991 in C.O. No. 6694 (W) of 1991.

Be that as it may, the Enquiry Officer after considering all the materials on record, including the written statement of the Petitioner and the evidence adduced, held the Petitioner not guilty of the charges levelled against him. A copy of the Enquiry Report which is dated November 23, 1996 is annexed to the petition as Annex. F.

The Enquiry Officer has, in his report, duly summarized the statements made by all the six witnesses produced on behalf of the prosecution.

All the six witnesses appear to have given evidence to the effect that the missing arms and ammunition had been recovered from the possession of Constable Inder Singh who had concealed the same under his wearing apparel.

From the evidence of the six witness as analyzed by the Enquiry Officer it appears that two of the witnesses did not even refer to the Petitioner and one categorically denied knowledge of any conspiracy on the part of the Petitioner.

Of the remaining three witnesses, two witnesses merely deposed that the Petitioner was found sitting next to Constable Inder Singh at a tea stall located behind the mess shortly after the incident of removal of the arms and ammunition.

The only witness who appears to have given some evidence suggesting conspiracy on the part of the Petitioner, is one K.K. Jha, who filed the First Information Report against the Petitioner. The said K.K. Jha appears to have presumed conspiracy on the part of the Petitioner from the fact that at the time of recovery of the arms and ammunition from the said Inder Singh, the Petitioner was there in the tea stall, talking to Inder Singh in Punjabi, which the said K.K. Jha did not understand.

On analyzing the evidence the Enquiry Officer arrived at the finding as aforesaid that the Petitioner was not guilty of the charges leveled against him.

It appears that no action was against the Petitioner for over three years from the date of submission of the Enquiry Report. The Petitioner contends that no action having been taken against the Petitioner or over 3 years since the date of the Enquiry Report, holding the Petitioner not guilty of the charges leveled against him, the report of the Enquiry Officer may be deemed to have been accepted and the charges against the Petitioner dropped. According to the Petitioner, the Respondents could not have reopened the issue after expiry of 3 years and more so when the Petitioner had in the enquiry been cleared of the charges leveled against him.

According to the Petitioner, after expiry of over 3 years after the Enquiry Officer submitted his report, the Petitioner was served with a Show Cause Notice dated February 11, 2000 directing the Petitioner to submit his representation against the finding of the Enquiry Officer holding him not guilty of the charges.

The contents of the said Show Cause Notice dated February 11, 2000 are set out herein below:

Whereas Major Penalty Charge-sheet No. MLD/CS/153/14/94 dated 5.8.94 was issued to you and Shri H.D. Chakraborty was appointed E.O. in this case.

- And -

Whereas, the Enquiry Officer, Shri H.D. Chakraborty, submitted his post of disciplinary proceedings holding you not guilty of the charge.

So, the copy of the enquiry report submitted by the E.O. is enclosed. The Disciplinary Authority will take decision after considering the report. If you wish to make any representation of substance, you do so in writing to the Disciplinary Authority within 25 days of receipt of this letter.

Receipt of this letter should be acknowledged.

The Petitioner submits that the Enquiry Report being in favour of the Petitioner, the Petitioner could not have had any grievance against the same and as such it was not necessary for the Petitioner to submit any representation on the findings of the Enquiry Officer.

By an order dated August 4, 2000 the Respondent Divisional Security Commissioner, Railway Protection Force, Eastern Railway, Howrah-(II) being the Disciplinary Authority differed with the findings of the Enquiry Officer, held the Petitioner guilty of the charges held against him and imposed on him the punishment of dismissal from service.

The Petitioner contends that the Disciplinary Authority ought to have given the Petitioner an opportunity of hearing before differing with the Enquiry Report. The order of dismissal dated August 4, 2000 is, according to the Petitioner, vitiated in law, no opportunity having been given to the Petitioner to make his submissions on the tentative reasons for the disagreement of the Disciplinary Authority with the Enquiry Report.

Reliance has been placed on the decision of the Hon''ble Supreme Court in Punjab National Bank v. Kunj Behari Misra 1998(5) S.L.R. 715 the relevant paragraphs whereof are set out herein below:

When the inquiry is conducted by the Inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer''s report and, while recording a finding of guilt imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to be present before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry explained in Karunakar''s case (supra).

The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to be present before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.

The Petitioner has also relied on the case of Yoginath D. Bagde Vs. State of Maharashtra and Another, where the Hon''ble Supreme Court held as follows:

In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges leveled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is a this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311(2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charged against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the ''right to be heard'' would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution.

In the aforesaid case, the Hon''ble Supreme Court held that principles of natural justice as laid down in Kunj Behari Misra''s Supra case had been violated since the charge sheeted officer had not been given the opportunity to make a representation in respect of the tentative reasons on which the Disciplinary Authority proposed to Officer, which were in favour of the Petitioner.

In any event, the Disciplinary Authority was, according to the Petitioner, bound to record reasons for disagreeing with the findings of the Enquiry Officer and to record his own findings in respect of each of the charges.

In this context, the Petitioner has relied on Rule 154.5 of the Railway Protection Force Rules, 1987 which is extracted herein below:

154.5. The disciplinary authority shall, if it disagrees with the findings of the Inquiry Officer on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

According to the Petitioner, the findings of the Disciplinary Authority do not disclose the reasons for disagreement of the Disciplinary Authority with the findings of the Enquiry Officer on the charges leveled against the Petitioner.

The Petitioner further contends that the Disciplinary Authority was under a duty to give the Petitioner the opportunity to further show cause against the findings of the Disciplinary Authority before awarding punishment of dismissal from service which has been done in the instant case.

The competence of the Disciplinary Authority has also been questioned on the ground that he did not hold the post of Divisional Security Commissioner, Railway Protection Force, Eastern Railway, Malda but only discharged the duties pertaining to the said post on temporary basis, in addition to his duties as Divisional Security Commissioner, Railway Protection Force, Eastern Railway, Howrah-II. According to the Petitioner, the Disciplinary Authority had not been authorized by the competent authority to act as such.

The Petitioner preferred an appeal against the order of dismissal passed by the Disciplinary Authority.

The salient grounds of appeal as taken by the Petitioner were inter alia (i) failure of the Disciplinary Authority to give the Petitioner opportunity of hearing on the tentative reasons why the Disciplinary Authority proposed to differ with the Enquiry Officer (ii) alleged failure of the Disciplinary Authority to record the reasons for disagreement with the enquiry officer and also failure to give the Petitioner opportunity of hearing with regard to the findings of the Disciplinary Authority (iii) vitiation of the proceedings by reason of inordinate and unexplained delay in completion thereof (iv) the alleged lack of power and/or authority and/or jurisdiction of Division Security Commissioner, R.P.F., Howrah-II who according to the Petitioner had merely been discharging the duties of Divisional Security Commissioner, R.P.F., Malda on temporary basis in addition to his duties, to act as Disciplinary Authority in the absence of express authorization of the Competent Authority (v) alleged vagueness of the charges (vi) alleged improper application of mind of the Disciplinary Authority including non-consideration of relevant facts and/or materials and consideration of extraneous factors (vii) the alleged error, illegality and impropriety of the impugned order of the Disciplinary Authority on merits.

The paid appeal was rejected by the Appellate Authority by an order dated November 14, 2000 which is also under challenge in the instant writ application. The said impugned appellate order is extracted herein below for convenience:

I have gone through the appeal of the Appellant, the parawise comments of the D.A. and the evidences on record. On minute perusal of the case, I find that the Appellant was given all evidences into consideration and the facts and circumstances have given clinching proof of the guilt of the Appellant. I totally agree with the D.A. and find no reasonable ground to interfere into the order of the disciplinary authority.

It is submitted on behalf of the Petitioner that the Appellate Authority did not apply his mind to the grounds taken by the Petitioner in appeal. Rule 217(3) of the Railway Protection Force Rules in relation to appeals is in pari material with Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which has been considered by the Hon''ble Supreme Court in the case of R.P. Bhatt Vs. Union of India and Ors (UOI) ., The Hon''ble Supreme Court held as follows:

The word ''consider'' in Rule 27(2) implies ''due application of mind''. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) Whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in Clauses (a), (b) and (c) thereof.

The Appellate Authority has in the instant case passed a cryptic order holding that there were no reasonable grounds for interfering with the order of the Disciplinary Authority.

The reasons for arriving at the aforesaid conclusion that there were no grounds for interference with the order of the Disciplinary Authority are not forthcoming.

In the case of Ram Chander Vs. Union of India (UOI) and Others, on which reliance has been placed by Mr. Mazumdar, the Hon''ble Supreme Court considering a similar Appellate Order passed by the Railway Servants (Discipline and Appeal) Rules, 1968, which is in pari materia with Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and, therefore, in pari materia with Rule 217(3) of the Railway Protection Force Rules held as follows:

To say the least, this is just a mechanical reproduction of the phraseology of Rule 22(2)of the Railway Servants Rules without any attempt on the part of the Railway Board either to marshall the evidence on record with a view to decide whether the findings arrived at by the disciplinary authority could be sustained or not.

In the aforesaid case, the Hon''ble Supreme Court held that the order of the Appellate Authority, which merely reproduced the phraseology of Rule 22(2) was liable to be set aside.

In spite of directions for affidavits given by this Court on April 23, 2001, the Respondents chose not to file any affidavit-in-opposition. The averments in the petition, therefore, stand uncontroverted. Furthermore, no one appeared on behalf of the Respondents when the writ application was taken up for hearing.

From the statements annexed to the charge-sheet issued to the Petitioner, the Petitioner appears to have been charged with conspiracy to remove arms and ammunition. The allegation against the Petitioner, in a nutshell, is that being aggrieved with an order of suspension passed against the Petitioner in July 1994, the Petitioner conspired with one Inder Singh and instigated him to remove revolver five days after the said order of suspension was issued.

It is alleged that when the revolver was recovered from the said Inder Singh behind the R.P.F. Barrack, the Petitioner was found with the said Inder Singh. As per the statement of allegations the Petitioner ''suppressed the fact to I.P.S., MLDT and managed to decamp from the spot. He was apprehended from the DRM Building area and brought to R.P.F. post, MLDT.

The motive attributed to the Petitioner for conspiring with lnder Singh and instigating him to remove service revolvers does not stand to reason, even assuming that the Petitioner was aggrieved by the order of suspension, which he could very well have been. The Petitioner could not possibly have achieved anything by procuring the removal of service revolvers. It is nobody''s case that the Petitioner tried to procure the revolvers with intent to use the same.

The mere fact that a suspended constable was found at a tea stall in the vicinity of the barracks talking to a colleague cannot possibly lead to the inference that the constable was in conspiracy with that colleague. The allegation against the Petitioner is ex facie, far fetched.

It is alleged that the Petitioner was found behind the R.P.F. barrack with lnder Singh but he decamped from the spot. It is nobody''s case that the Petitioner was debarred from entering the area after his suspension. The Petitioner who had been suspended but not removed from service could very well have come to the vicinity of the R.P.F. barrack and the mere fact that he was found with his colleague lnder Singh cannot lead to the assumption that he was in conspiracy with Inder Singh. The statements of allegations do not indicate what is the fact which the Petitioner suppressed.

The learned Enquiry Officer appears to have considered the evidence on record at length and summarized the same. From the Enquiry Report, it appears that the prosecution produced six witnesses, namely, Sri Tapan, Kr. Das, Sri Palas Kr. Halder, Sri P.K. Paul, Sri Paresh Ch. Mondal, Sri K.K. Jha and Sri C.P. Sinha.

Of the six witnesses, the first witness Sri Tapan Kr. Das and the third witness Sri P.K. Paul have deposed that the Petitioner was found sitting in a tea stall located behind the R.P.F. /MLDT along with Inder Singh who is alleged to have removed the arms and ammunition.

The evidence of the second witness Sri Palas Kr. Halder does not even refer to the Petitioner. The fourth witness Sri Paresh Ch. Mondal, has categorically denied knowledge of any conspiracy on the part of the Petitioner.

There was nothing in the evidence of the fifth witness, Sri C.P. Sinha to suggest the involvement of the Petitioner in any conspiracy.

The sixth witness Sri K.K. Jha appears to be the only witness to have made some statement suggesting the to involvement Enquiry Officer found that Sri Jha presumed conspiracy on the part of the Petitioner since the Petitioner and Inder Singh who had allegedly removed the service revolvers had been speaking in the Punjabi language which Sri Jha obviously could not understand.

On the basis of the evidence on record, the learned Enquiry Officer came to the conclusion and in my view rightly that there was no evidence of involvement of the Petitioner in the removal of the revolvers. The Enquiry Officer accordingly held the Petitioner not guilty.

The Enquiry Officer, however, held Inder Singh guilty. In these proceedings this Court is not concerned with the findings of the Enquiry Officer with regard to the guilt of the said Inder Singh.

The Disciplinary Authority has also analysed the evidence given by each of the Prosecution Witnesses. From the analysis of the evidence as made by the Disciplinary Authority it appears that the P.W. No. 1 Sri T.K. Das did not make any statement from which conspiracy on the part of the Petitioner may be deduced. The evidence of the said witness merely indicates that the Petitioner was present at the tea stall when the missing arms and ammunition were recovered from Inder Singh.

The name of the Petitioner does not even figure in the testimony of P.W. No. 2 Sri P.K. Halder, as analysed by the Disciplinary Authority.

The P.W. No. 3 Sri P.K. Paul deposed that the Petitioner was found sitting near the tea stall with Inder Singh. The evidence of the P.W. No. 4 Sri Paresh Ch. Mondal, as recorded by the Disciplinary Authority, does not even refer to the Petitioner.

From the evidence of the witnesses as summarized by the Disciplinary Authority it appears that P.W. No. 6 Sri C.P. Sinha deposed that information had been received that two service revolvers were missing and Inder Singh was suspected to have removed the same. The said service revolvers along with ammunition were later produced by constables T.K. Das and P.K. Paul who stated that they recovered the same from Inder Singh. The matter was reported to D.S.C., Malda who ordered the arrest of Constable Inder Singh and the Petitioner. Both the Petitioner and Inder Singh were detained in the R.P.F. post Malda. The I.P.F. Malda thereafter lodged a F.I.R. in the local police station in that regard.

However, as noted above, there is nothing in the evidence of either P.K. Paul or T.K. Das to show the involvement of the Petitioner in any conspiracy to remove revolvers. The said two witnesses have merely deposed that the Petitioner was present at the tea stall.

The portion of the order of the Disciplinary Authority pertaining to the evidence of P.W. No. 5 Sri K.K. Jha on the basis of which the Disciplinary Authority presumed the Petitioner guilty of the charges against him is ex-tracted herein below:

P.W. V: Shri K.K. Jha, I.P.F. has deposed that on 11.7.94 he received information at about 09.20 hrs. that constable/9758 Inder Singh has escaped away with two numbers of Govt. Service revolvers bearing No. 162-06951 with twelve numbers of live 38 ammunitions from Kote while he was given fatigue duty at R.P.F. Post, Malda from 08/00 hrs. to 16/00 hrs, with other R.P.F. Staff. He along with SIOF/C.P. Sinha rushed to R.P.F. barrack side from Malda Yard and found that Constable/9758 Inder Singh was detained by Constable/5633 P.K. Paul and Constable/9708 T.K. Das. He took both the revolvers which were kept by Constabe/9758 Inder Singh inside his trousers and waist and unloaded both the revolvers. Constable/9758 Inder Singh Constable/9792 Sukhdeo Singh (party charged) fled away. Subsequently, the party charged was detailed and detained and taken into custody near D.R.M. Building, Malda. He lodged a complaint to QC/English Bazar P.S. as Exhibit-II. He prepares the seizure list of both the revolvers in presence of witnesses, Exhibit-III. OC/English Bazar P.S. took party charged and Constable/9758 Inder Singh in custody and registered a Case No. 273/94 dated 11.7.94 u/s 379/411 Indian Penal Code arid 25(1)(a) and 27 Arms Act. He submitted detailed report by Exhibit-lV.

In the F.I.R. the inspector has mentioned that on interrogation Const/Inder Singh Confessed his guilt of stealing the revolvers and expressed his motive of commission of offence of theft due to instigation by the party charged, Const/Sukhdeo Singh. The party charged instigated him (Inder Singh) to steal the revolvers from Kote with a view to take action against Commandant/R.P.F., Shri S.K. Parhi who suspended party charged on 10.7.94. P.W. V, Inspector/Shri K.K. Jha has given detailed in his report to DSC/MLDT vide Exhibit-IV elaborating the facts given in F.I.R. (Exhibit-II). The party charged was suspended on 10.7.94 in a Firing case of Jamalpur. The Inspector has clarified that Const/Inder Singh and Const/Sukhdeo Singh (Party Charged) refused to give their statements in writing so their statements could, not be recorded.

It appears that the Disciplinary Authority proceeded on the presumption that the Enquiry Officer had arrived at his finding that the party charged was not guilty of the charges against him on the sole ground that I.P.F. Sri K.K. Jha had failed to prove any document to support the conspiracy. Unfortunately, the Disciplinary Authority has emphasized one line from the Enquiry Report ignoring the fact that the Enquiry Officer had considered the entire evidence on record in details, analysed the statements made by each of the six witnesses and arrived at the conclusion that Sri Jha had presumed conspiracy from the fact that Sukdeo Singh had been talking to Inder Singh in the Punjabi language at the tea stall at the time of recovery of the ammunition from Inder Singh. This aspect of the finding of the Enquiry Officer appears to have been overlooked by the Petitioner.

The Disciplinary Authority has not disagreed with the findings of the Enquiry Authority that K.K. Jha presumed conspiracy between the Petitioner and Inder Singh from the fact the two were speaking in the Punjabi language at the tea stall behind the barracks.

The Disciplinary Authority has held the Petitioner guilty on the basis of the F.I.R. lodged by Sri K.K. Jha. Since Sri K.K. Jha was not known to have any enmity with the Petitioner prior to the incident of the alleged theft of revolvers, it was presumed that the statement made by him in the F.l.R. was correct. The Disciplinary Authority proceeded on the basis that there was no reason for Sri Jha to implicate the Petitioner in a false charge.

The Disciplinary Authority in arriving at his finding lost track of the fact that the F.I.R. was lodged on the basis of an uncorroborated statement of Inder Singh who has since been held guilty of removal of the revolvers in question.

The Disciplinary Authority has not considered the possibility of lnder Singh trying to shift blame on others with a view to justify his own action. The alleged statement of Inder Singh was, in any event, neither signed nor admitted by Inder Singh. Inder Singh was not produced as a witness and hence could not be cross-examined by the Petitioner.

The conclusion of guilt of the Petitioner arrived at by the Disciplinary Authority is patently conjectural. The reasoning of the Disciplinary Authority is extracted herein below:

The Enquiry Officer has found that the party charged is not guilty of the charges because I.P.F. /K.K. Jha failed to prove any documents in support to any conspiracy angle. I do not agree with this. The fact is written report of the Inspector is relevant in evidence. It cannot be a chance that Constable/9758 Inder Singh stolen the revolvers loaded it and was found sitting on the bench on the same day behind the barrack with the party charged Constable/9792 Sukdeo Singh. The party charged has failed to explain the immediate meeting just after commission of the theft. The guilty mind of the Constable/9758 Inder Singh was found during interrogation by I.P.F. /K.K. Jha just after his detention with arms and ammunitions. The party charged has not shown any enmity with Shri Jha before this incident to merit the consideration of the fact of implication with motive against the party charged by I.P.F. /Jha. I.P.F. /Jha has not got details in a very natural way on interrogating Constable/9758 Inder Singh as to why he committed the theft of revolvers and ammunitions. As per his information he (Constable 9758 Inder Singh) committed theft of arms and ammunitions to hand over to the party charged, Constable/9792 Sukdeo Singh to take revenge against suspension by commandant in a police case. The plea of the party charged that he was not affected by the suspension order one day before of the theft of revolvers and ammunitions because suspension is not a punishment, is not acceptable. The party charged has definitely felt hurt on getting suspended on 10.7.94 in a police firing case in which according to the party charged, he was not guilty or accused. The fact remains that the party charged has instigated Constable/9758 lnder Singh to steal the arms and ammunitions so that he can take revenge from the Commandant due to suspension order, served to the party charged one day before of the incident. I do not find any other reason for commission of theft of arms and ammunitions by Constable/9758 Inder Singh and do not understand why the party charged should defend Constable/9758 Inder Singh on the charge of commission of theft. The party charged has tried to prove the point that no theft of arms and ammunitions took place which is no his business as he was not charged for theft of arms and ammunitions. He should have defended himself for not being part of the conspiracy case of theft. Again he raised the point of conspiracy because he was a Punjabi. This is a lame excuse and the fact is baseless and false. In vies of the above discussion, I find the charge against the party charged, Constable/9752, Sukdeo Singh is very much proved and is guilty of the charge.

Since the party charged is involved in a extremely serious offence as he instigated his colleague, Member of the Force for committing theft of Arms and Ammunitions to take revenge against the Commandant who passed his suspension order in an alleged serious injury to the Bihar Police Constable, any punishment other than dismissal from the service will not meet the end of justice. It is against the discipline of the Force to keep such Member of the Force in service.

The finding of the Displinary Authority that the fact that the Petitioner was found in the tea stall with Inder Singh could not be a mere co-incidence is not only patently conjectural but does not stand to reason. There is no reason to presume that the presence of a suspended constable at a tea stall near the barrack could not be a co-incidence.

On the other hand it is highly improbable that the Petitioner should have chosen to meet Inder Singh in the vicinity of the barracks where he was likely to be noticed, if he was involved in any conspiracy with the said Inder Singh.

In any event, the mere presence of a suspended constable at a tea stall behind the barracks cannot possibly lead to the conclusion that he was in conspiracy with another constable who had decamped with revolvers and was also found at the same tea stall. It is nobody''s case that the Petitioner had been restrained from entering the area in which the tea stall was located.

The motive attributed to the Petitioner for his alleged acts hardly stands to reason. It is difficult to appreciate how the Petitioner could have averaged an order of suspension by instigating a colleague to steal revolvers. There is no whisper in the impugned order of the Disciplinary Authority as to what the Petitioner could have achieved by procuring the theft of revolvers.

The Railway Protection Force Rules, 1997, make it obligatory for the Disciplinary Authority to disclose reasons in the event the Disciplinary Authority choses to disagree with the findings of the Enquiry Officer on any article of charge. This in itself shows that the findings of the Enquiry Officer cannot be lightly interfered with, in the absence of cogent reasons.

In the instant case, the Disciplinary Authority has neither explained the points of difference with the Enquiry Officer with reference to the specific evidence on record nor explained the reasons for his disagreement with the Enquiry Officer.

The Disciplinary Authority as observed above has proceeded on the erroneous basis that the Enquiry Officer came to his finding on the sole ground that K.K. Jha had not been able to produce documentary evidence to show the involvement of the Petitioner in the alleged conspiracy ignoring the fact that the Enquiry Officer had considered the statements of each of the Prosecution Witnesses at length and arrived at his finding that there was nothing to prove the involvement of the Petitioner in the alleged conspiracy.

The Disciplinary Authority appears to have been swayed by the fact that the charges of conspiracy with a colleague to remove ammunition is a serious charge. There can be no doubt that the charge leveled against the Petitioner is a very serious charge. The question is whether the charge is justified, having regard to the materials on record. Conspiracy cannot be presumed from the fact that a suspended constable was found in a tea stall near the barracks talking to another constable of his own community in his own language even if that other constable had removed revolvers and hidden them under his wearing appeal.

When constables T.K. Das and P.K. Paul found Inder Singh, the revolvers were hidden under his wearing apparel. It is not that Inder Singh was caught handing over or even showing the revolvers to the Petitioner. Inder Singh does not appear to have taken the weapons out from underneath his wearing apparel.

In my view, a constable cannot be held guilty of a serious charge of removal of weapons and deprived of his job and livelihood on conjectures and surmises coupled with the flimsy evidence by way of an uncorroborated statement of a constable guilty at least of dereliction of duty if not theft and more so when the constable alleged to have made the statement admittedly did not sign the statement, was not produced as a witness to corroborate his statement and not available for cross-examination by the Petitioner. The impugned order of the Disciplinary Authority is misconceived perverse, there being no evidence at all on the basis of which conclusion of conspiring with a colleague and instigating the colleague to remove weapons can be arrived at and cannot, therefore, be sustained.

The impugned order of the Disciplinary Authority is vitiated by non-compliance of the Railway Protection Force Rules and in particular Rule 154.5 thereof, the exact points of difference with the findings of the Enquiry Officer as also the reasons for the difference with the reasoning of the Enquiry Officer not having been recorded and is liable to be set aside inter alia on that ground alone.

In any event, the impugned order of the Disciplinary Authority is violative of the principles of natural difference, no opportunity having been given to the Petitioner to make a representation on the tentative reasons for the difference of the Disciplinary Authority with the Enquiry Officer. In view of the decisions of the Hon''ble Supreme Court in the cases of Kunj Behar Misra Supra and Yoginath D. Bagde Supra I cannot but hold that the impugned order of the Disciplinary Authority is violative of the principles of Natural Justice.

The rules in the instant case required the Appellate Authority to consider the appeal. As held by the Hon''ble Supreme Court in R.P. Bhatt Vs. Union of India and Ors (UOI) ., case the word consider implies due application of mind.

The Appellate Authority has, however, rejected the appeal of the Petitioner by a cryptic order which mechanically reproduces the phraseology of the appeal provision contained in the Railway Protection Force Rules.

The impugned order of the Appellate Authority does not indicate that the Appellate Authority actually and/or properly applied its mind to the crucial question of whether the findings of the disciplinary authority were warranted by the evidence on record.

It is well-settled that an Appellate Authority in a disciplinary proceedings acts in a quasi-judicial capacity and thus obliged to pass a reasoned order showing application of mind to the questions raised by the Appellant. Where serious and arguable points are raised in appeal the Appellate Authority is bound to apply its mind to all such points.

Even though an order of affirmance of an order of the Disciplinary Authority need not contain detailed reasons, there must be something to show that the Appellate Authority considered the real ground urged.

In Ram Chandra''s Supra case, the Hon''ble Supreme Court distinguishing judgments laying down that an order of affirmance of the Appellate Authority need not give reasons, held as follows:

These authorities proceed upon the principle that in the absence of a requirement in the statute or the rules, there is no duty case on an appellate authority to give reasons where the order is one of affirmance. Here, Rule 22(2) of the Railway Servants Rules in express terms requires the Railway Board to record its findings on the three aspects stated therein. Similar are the requirements under Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Ru1es, 1 965. Rule 22(2) provides that in the case of an appeal against an order imposing any of the penalties specified in Rule 6 of enhancing any penalty imposed under the said rule, the appellate authority shall ''consider'' as to the matters indicated therein. The word ''consider'' has different shades of meaning and must in Rule 22(2), in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision.

The relevant appeal provision in the instant case being almost identical to Rule 22(2) of the Railway Servants Rules and Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the Appellate Authority was obliged to give reasons for its decision to reject the Petitioner''s appeal and more so since the enquiry report was in favour of the Petitioner.

The failure of the Appellate Authority to give reasons for his decision vitiates the Appellate Order. Moreover, the Appellate Authority has patently not addressed himself to important and arguable questions raised in Appeal including the question of the jurisdiction and/or authority of the Disciplinary Authority to act as such.

The impugned order of the Appellate Authority rejecting the appeal which ex facie appears to have been passed mechanically without due and proper application of mind cannot be sustained.

The writ application is, therefore, allowed. The impugned order dated of the Disciplinary Authority and the impugned order dated of the Appellate Authority being Annexes. ''H'' and ''J'' to the petition cannot be sustained. The said impugned orders are set aside. The Respondents are directed to reinstate the Petitioner in service forthwith along with arrears of salary and allowances.

If a Xerox certified copy of this order is applied for the same be supplied expeditiously subject of course to compliance with the requisite formalities.