High Court · 2012

The respondent-writ petitioner was employed as a Constable in the year 1 2. 961 with the Railway Protection Force. In due course, he was promoted as Head Co nstable. A case was registered against him under Section 380 IPC on 16.6.2002 on account of which he was placed under suspension which was followed by an enquir y as per provisions of the Railway Protection Force Act, 1957 and rules framed t hereunder. The charge against the appellant was that while on guard duty he fail ed to prevent theft of sugar from a railway wagon. The Enquiry Officer vide repo rt dated 11.11.2002 held the charge to be proved. In view of the said report, pu nishment of removal from service was passed against him vide order dated 23.12.2 002. Appeal against the said order was dismissed. In the criminal case register ed against him, the Court vide judgment dated 30.12.2004 acquitted him. The peti tioner approached this Court by way of a writ petition under Article 226 of the Constitution. The grievance put forward in the writ petition is that the departm ental enquiry was not held according to the principles of natural justice and th e punishment was excessive having regard to the fact that the writ petitioner ha d already rendered more than 40 years of service and was due to retire within 7 days after the impugned order.

3. Learned Single Judge, after due consideration, held that the finding of the Enquiry Officer was without any material. PW 3 Mr. Bhuban Chandra Goswami, G uard of the Train had not found any irregularity on checking the seals of wagons . PW 4 Amulya Chandra Mandal, the Assistant Station Master also did not support the charge of theft by the writ petitioner. Accordingly, the writ petition was a llowed and the writ petitioner was held entitled to pensionary benefits.

4. We have heard learned counsel for the parties.

5. Learned counsel for the appellant submits that it was not open to the Wr it Court to re-appreciate the evidence and substitute its opinion for that of th e Enquiry Officer. The Court could interfere with the order of punishment only as a secondary reviewing authority. Normally, it was required to remit the matte r to the disciplinary authority for fresh decision on the quantum of punishment, if the punishment was found to be excessive. Reliance has been placed on the ju dgment in Government of India and Ano. Vs. George Philip, AIR 2007 SC 705, where in earlier judgments, inter alia, in B.C. Chaturvedi v. Union of India ( 1995) 6 SCC 749 and Om Kumar v. Union of India (2001) 2 SCC 386 have been reiterated. Learned counsel for the appellant states that there was evidence before the Enqu iry Officer in the form of statement of Rajkumar PW 1, to the effect that he had been told by Prafulla Borah about the fact that three persons had been apprehen ded and three persons had fled away and about recovery of two gunny bags of suga r. On the other hand, learned counsel for the writ petitioner supports the 6. view taken by the learned Single Judge to the effect that there was no material on the basis of which charge was held to be proved as follows: (cid:28)13. The original records have been produced by Mr. Nair, learned Standing Couns el, Railway appearing for the respondents. I have perused the same. On perusal o f the records, I do not find anything to show that the petitioner, who was servi ng as Head Constable, was made aware of his various rights and procedure followe d in the departmental proceeding by the Enquiry Officer. So far the submission o f the learned counsel for the petitioner that except PW 1, Mr. Rajkumar, SI, RPF , who conducted the preliminary enquiry in the initial stage and PW 2, Mr. P.K.B orah, Officer-in-Charge of Khetri Police Station, none of the witnesses supporte d the case of the prosecution, which is evident from the fact that PW 3, Mr. Bhu ban Ch. Goswami, Guard of the Train, who was on duty on the day of the incident, clearly stated that he did not find any irregularity on checking the seals of w agons. He also could not confirm that the sugar which shown to have been stolen belongs to Railway or not. According to him, no theft could take place from the wagons of the train and trespassers may keep the sugar bags by the side of the R ailway track. PW 4, Mr. Amulya Ch. Mandal, who was serving as Assistant Station Master also had not stated anything during the deposition regarding the theft of sugar from the wagon of the train. Therefore, submitted Mr. Mazumdar that there was no material available on records and/or evidence before the Enquiry Officer to prove the guilt of the petitioner in the instant case.

14. Mr. Mazumdar in support of his submission has placed reliance on a decis ion in Mani Shankar vs. Union of India and another reported in (2008) 3 SCC 484 wherein the Apex Court held that the Courts while exercising power of judicial r eview are entitled to consider as to whether while inferring commission of misco nduct on the part of the delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Rele vant para 17 of Mani Shankar (supra) is quoted hereinbelow: (cid:28)17. The departmental proceeding is a quasi judicial one. Although the provision s of the Evidence Act are not applicable in the said proceeding, principles of n atural justice are required to be complied with. The Court exercising power of j udicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence ha s been taken into consideration and irrelevant facts have been excluded therefro m. Inference on facts must be based on evidence which meet the requirements of l egal principles. The Tribunal was, thus, entitled to arrive at its own conclusio n on the premise that the evidence adduced by the department, even if it is take n on its face value to be correct in its entirety, meet the requirements of burd en of proof, namely - preponderance of probability. If on such evidences, the te st of the doctrine of proportionality has not been satisfied, the Tribunal was w ithin its domain to interfere. We must place on record that the doctrine of unre asonableness is giving way to the doctrine of proportionality. (cid:29)

16. This Court while exercising power of judicial review, perused the record of the case including the statements of various witnesses, particularly, the st atements of PWs - 3 and 4 as already mentioned above. On perusal of the records it is found that the Enquiry Officer as well as the Disciplinary Authority did n ot take into consideration the evidence of PW -3, Guard of the train. PW -3 stat ed in his deposition that he did not find any irregularities on checking the sea ls of the wagon of the train, inasmuch as, he also could not confirm that the su gar which shown to have been stolen belongs to Railway or not. According to him, no theft could take place from the wagon of the train and the trespassers might have kept the sugar by the side of the train. Similarly, PW 4, Mr. Amulya Ch. M andal, Assistant Station Master also did not state anything in his deposition re garding the theft of sugar from the train. Accordingly, this Court is of the opi nion that while recording the findings, the Enquiry Officer has not taken into c onsideration the relevant pieces of evidence which is the main basis for arrivin g at a conclusion for imposition of penalty in a departmental proceeding as held by the Apex Court in Mani Shankar (supra). (cid:29)

7. We have considered the rival submissions and perused the record. In our view, no interference is called for with the order passed by learned Single Judg e.

8. While it is true that the Writ Court cannot re-appreciate the evidence a nd interfere with the findings of the Enquiry Officer, at the same time, if find ing recorded by the Enquiry Officer is without any evidence and perverse, the sa me can certainly be interfered with. Reference may be made to law laid down in S tate of Madras vs A.R. Srinivasan, AIR 1966 SC 1827 and Bareilly Electricity Sup ply Company Ltd. Vs. The Workman & ors. (1971) 2 SCC 617. Shockingly disproporti onate punishment can also be set aside (Jitendra Kumar & Ors. vs. State of Harya na & Ano. (2008) 2 SCC 161). In the present case, the charge was not of theft but of being unable to 9. prevent theft. Alleged misconduct was not of commission but omission. There is n othing to show as to what step which the petitioner should have taken was not ta ken. It is not the case that the petitioner was not on duty. Theft itself has no t been established as the persons apprehended are not shown to be involved. Thou gh there is no cogent material in support of charge against the petitioner we pr oceed on the basis that there was negligence on the part of the petitioner, as a lleged and he had failed to prevent theft. In absence of mens rea, long unblemis hed service of more than 40 years could not be ignored so as to deny pension to the petitioner. Admittedly, it was not a case of dishonesty or any other overt a ct or causing of any serious loss. In these circumstances, learned Single Judge cannot be held to have committed any illegality in quashing the order of removal as being harsh punishment which was illegal. Judgments relied upon are, thus, d istinguishable.

10. The writ appeal is dismissed.