Saugata Bhattacharyya, J.
In Re: CAN 6119 OF 2019
1. The application (CAN 6119 of 2019) for condonation of delay of 172 days is taken up for hearing when the learned advocate appearing for the appellants relies upon memo dated 23rd September, 2019 wherefrom it appears that pursuant to the previous order dated 17th September, 2019 the cost has been deposited with the State Legal Service Authority, West Bengal on 23rd September, 2019.
2. On hearing the learned advocates appearing for the parties and considering the explanations offered in support of delay caused in presenting the appeal we are satisfied that the appellants were prevented from presenting this appeal within the statutory period of limitation. Accordingly, the delay of 172 days in presenting this appeal is condoned. The application (CAN 6119 of 2019) for condonation of delay is allowed. Let the appeal be registered if it is otherwise inform.
In Re: C.A.N. 6121 Of 2019
3. The appeal (MAT 609 of 2019) and the stay application (C.A.N. 6121 of 2019) have been preferred against the judgment and order dated 27th September, 2018 passed by the learned Single Judge on writ petition being W.P. No. 5013 (w) of 2010 whereby the final order of punishment of removal from service dated 1st July, 2009 and the order of the appellate authority dated 25th February, 2010 confirming the order of punishment, were setaside with the direction that the writ petitioner should be notionally reinstated from service from the day of his removal from service and shall be deemed to have continued to work till he attained the age of superannuation. The appellants were further directed by the learned Single Judge to pay 50% of the salary and other allowances during the period had he been in service taking into account the monetary benefits which he would have been entitled to and also directed the appellants to calculate the retiral and other consequential benefits of the petitioner upon treating him to be in service till the date of retirement. All the financial benefits accrued from the order of the learned Single Judge which is under appeal was directed to be released in his favour within a particular period and arrears of pension was directed to be released in installments.
4. The writ petitioner/respondent namely Jiwit Prosad Arya during pendency of the present appeal died on 22nd May, 2019. On preferring an application for substitution of the heirs of the writ petitioner/respondent, the respondent Nos. 1 to 4 have been added in place of the writ petitioner/respondent vide order dated 2nd September, 2019 in place and stead of writ petitioner/respondent by allowing the application for substitution (CAN 7384 of 2019) by a co-ordinate Bench.
5. The writ petitioner/respondent joined the Railway Protection Force, Eastern Railway as a constable in March 1957. By an order dated 2nd September, 1987 he was suspended from service. A charge-sheet was issued on 8th January, 1991 based on which the disciplinary proceeding was initiated against him. The main allegation contained in the charge sheet was when the writ petitioner/respondent was on camping duty for the period from 18th August, 1987 to 22nd August 1987 at Rajgram railway station a train carrying urea bags was stationed at Rajgram station. Urea bags were stolen from the said goods train. Based on such incident the deceased writ petitioner was fastened with the charge of remissness and negligent of duty. The main thrust of the charge contained in the said charge-sheet dated 8th January, 1991 was the negligence of duty of the writ petitioner which led to theft of urea bags from the goods train stationed at Rajgram railway station during the period when the writ petitioner being the constable of Railway Protection Force was on camping duty.
6. The disciplinary proceeding was initiated in terms of provisions of rule 153 of the Railway Protection Force Rules, 1987 where petitioner participated and subsequently the enquiry officer appointed by the disciplinary authority submitted his report dated 7th February, 1992. It was found by the enquiry officer that the charge levelled against the petitioner was not proved. Vide order dated 6h April, 1992 the Assistant Security Commissioner forwarded a copy of the enquiry report to the writ petitioner whereby opportunity was given to him to make deliberation on the finding of the enquiry officer. Since the finding of the enquiry officer was not against the writ petitioner he did not make any representation in response to the said enquiry report. However, the disciplinary authority differed from the findings of the enquiry report thereby made final order dated 18th may, 1992 upon concluding the proceeding initiated against the writ petitioner by imposing punishment of removal from service. The said punishment order dated 18th May, 1992 triggered the first writ petitioner at the instance of the writ petitioner being C.O. No. 13279 (w) of 1992 (Jiwit Prosad Arya vs. Assistant Security Commissioner, Railway Protection Force, Eastern Railway, Howrah-II) questioning propriety of the procedure resorted to by the disciplinary authority in imposing punishment upon the writ petitioner. A learned Single Judge of this Court allowed the said writ petition upon finding the procedure followed by the disciplinary authority was devoid of principle of natural justice consequently quashed the first order of punishment dated 18th May, 1992 with a liberty to the disciplinary authority to proceed afresh against the stage of issuing letter dated 6th April, 1992 by which the Assistant Security Commissioner forwarded the report of the enquiry officer to the writ petitioner.
7. Meanwhile during pendency of the writ petition being C.O. No. 13279 (w) of 1992, the writ petitioner reached the age of superannuation in the year 1996.
8. The disciplinary authority in terms of the leave granted by the learned Single Judge in the order dated 2nd April, 2009 decided to conclude the disciplinary proceeding initiated in the year 1991 from the stage as indicated in the said order dated 2nd April, 2009 which resulted in issuance of the order of punishment of removal from service dated 1st July 2009. While appraising the second order of removal dated 1st July, 2009 issued by the Divisional Security Commissioner, R.P.F., Eastern Railway, Howrah-II, being the appellant no. 2 herein, we need to look into the charges framed against the writ petitioner simultaneously in the criminal proceeding being C.R. Case No. 421/87 as well as in the charge-sheet dated 8th January, 1991 issued by the disciplinary authority. The disciplinary authority in its chargesheet dated 8th January, 1991 alleged that due to remissness and negligence of the writ petitioner while on camping duty for the period from 18th August, 1987 to 22nd August, 1987 there was theft of urea bags from a goods train stationed at Rajgram railway station. On the contrary it appears from the order of acquittal dated 12th April, 2005 passed by the Judicial Magistrate, 2nd Court, Rampurhat, Birbhum that three persons namely Bhola Bhagat, Dilip. Kr. Bhagat and Ainul Sk were alleged to have been in possession of one urea bags which they had stolen with the connivance of the writ petitioner and another RPF constable namely Sriman Sukla when they were on duty from 18th August, 1987 to 22nd August, 1987. One of the points formulated by the Judicial Magistrate, Second Court, Rampurhat, Birbhum while deciding the said criminal case was whether those three persons found to be in possession of urea bags committed theft of railway property in connivance with the writ petitioner and said Sriman Sukla. While deciding the criminal case the Judicial Magistrate came to a finding upon considering the exhibits and depositions of witnesses on trial observed that it cannot be concluded that the urea bags recovered from the said three persons were part of consigned railway goods. Based on such observation and finding the criminal court vide order dated 12th April, 2005 acquitted all the six accused persons including the writ petitioner.
9. In view of the above discussion on the charges framed in connection with criminal case and disciplinary proceeding we are ad idem with the finding of the learned Single Judge that although charges in departmental proceeding as well as those framed in the criminal case arose out of same alleged incident but there are differences between the two. In the departmental proceeding the charge was remissness and negligence in duty on the part of the writ petitioner and in the criminal proceeding the main thrust so far the writ petitioner and Sriman Sukla are concerned, that three persons namely Bhola Bhagat, Dilip Kr. Bhagat and Ainul SK in connivance with the writ petitioner and Sriman Sukla committed theft of urea bags. In the criminal case these accused persons including the writ petitioner were acquitted vide order dated 12th April, 2005 since the learned Judicial Magistrate, Rampurhat, Birbhum concluded that it was not conclusive whether recovered urea bags from the said three persons were part of consigned railway goods. The learned advocates appearing for the appellant could not show that this order of acquittal dated 12th April, 2005 was setaside by the Appellate Court, therefore, there is no impediment in placing reliance upon the said order dated 12th April, 2005 while adjudicating the propriety of the second order of punishment dated 1st July, 2009 and the order of the appellate authority dated 25th February, 2010. If the charges in the criminal case of committing theft of urea bags by those three persons are not proved since it could not be established that the seized urea bags recovered from the said three persons were part of railway consigned goods the very charge of remissness and negligence in duty framed against the writ petitioner based on the incident of theft of urea bags, cannot stand independently.
10. We are aware of the trite law that the jurisdiction of court in judicial review is limited. Disciplinary proceeding, however, being quasi criminal in nature, there should be some evidence to prove the charge although the charge in a disciplinary proceeding is not required to be proved like a criminal trial i.e. beyond all reasonable doubt. We cannot lose sight of the fact that in the present case the disciplinary authority performed a quasi judicial function since the disciplinary authority differed from the finding of the enquiry officer, who upon analyzing the documents and considering the deliberation of the writ petitioner must arrive at a conclusion to the effect that there has been preponderance of probability of the charge of remissness and negligence in duty being proved. While doing so the disciplinary authority ought not to have relied upon the irrelevant fact. The disciplinary authority cannot refuse to consider the relevant facts. The disciplinary authority shall not shift the burden of proof. The disciplinary authority cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. The disciplinary authority cannot enquire into the allegations which the writ petitioner herein has not been charged with. In the present case the disciplinary authority attempted to shift the onus of poof of the charge to the defence and came to the conclusion based on certain evidence which were not relevant to establish the allegation of negligence in duty against the writ petitioner even by applying the taste of preponderance of probability.
11. On perusal of the letter dated 25th May, 2009 of the Assistant Security Commissioner, Railways Protection Force, Eastern Railway, Howrah II being the appellant No. 3 herein, addressed to the writ petitioner contains the reasons based on which the disciplinary authority differed with the finding of the enquiry officer. All the five points disclosed in the said letter dated 25th May, 2009 based on which the disciplinary authority did not concur with the findings of the enquiry officer points out that the disciplinary authority proceeded on the basis of theft of urea bags by treating the same as part of Railway consigned goods stolen from the goods train though the same was negated by the learned Judicial Magistrate, 2nd Court, Rampurhat, Birbhum in the judgment dated 12th April, 2005. Therefore, the reasons assigned by the disciplinary authority vide its order dated 25th May, 2009 for differing with the findings of the enquiry officer is untenable. If the nature of charges in the criminal proceeding and the disciplinary proceeding are same and identical then upon applying the test of preponderance of probability the disciplinary authority may come to a different finding since there is no such straitjacket formula. But in the present case the very basis of the charge of remissness and negligence in duty on the part of the writ petitioner rests on the allegation of theft of urea bags by Bhola Bhagat, Dilip Kumar Bhagat and Ainul Sk from the goods train stationed at Rajgram railway station. Since the charge of theft of urea bags by those three persons was not proved in the criminal case and the accused persons were not found guilty the charge of negligence in duty against the writ petitioner independently cannot survive.
12. On consideration of the representation of the writ petitioner dated 8th June, 2009 to the letter dated 25th May, 2009 of the appellant No. 2, the Divisional Security Commissioner, Railway Protection Force, Eastern Railway, Howrah-II passed the order of punishment upon concluding the proceeding initiated against the writ petitioner thereby removing the writ petitioner from service with effect from 25th May, 1992 with the direction that the suspension period from 2nd September, 1987 to 24th May, 1992 shall be treated as period spent under suspension. The impugned order of punishment dated 1st July, 2009 is based on the reasons assigned by the Assistant Security Commissioner, the appellant No. 3 herein in support of differing from the finding of the enquiry officer and we have already held above that the reasons assigned in support of making finding independently by the said appellant No. 3 by not accepting the enquiry report, is not tenable. Therefore, the order of punishment dated 1st July, 2009 consequently does not survive.
13. The Chief Security Commissioner, Railway Protection Force, Eastern Railway, Kolkata being the appellant No. 1, under the relevant provisions of the Railway Protection Force Rules, 1987 by passing a cryptic order dated 25th February, 2010 which was communicated vide letter dated 26th February, 2010 to the advocate of the writ petitioner, confirmed the order of punishment of the disciplinary authority. Mere reading of the said order of the appellate authority demonstrates complete indisposition of mind of the appellate authority. The appellate authority being the last fact finding authority ought to have disposed of the appeal preferred by the writ petitioner questioning the order of punishment of the disciplinary authority with necessary care and caution since the subject matter of appeal had the civil consequences. Unfortunately, the appellate authority upon showing cavalier attitude confirmed the order of punishment which was bereft of any reasons defeating well settled principle that the order of quasi judicial authority must assign reasons in arriving at a finding and conclusion which has civil consequences. In this regard reliance is placed on the judgment of the Apex Court reported in (B.A. Linga Reddy and Ors. Vs. Karnataka State Transport Authority and Ors., (2015) 4 SCC 515), paragraphs 17, 18, 19 and 20 and another judgment reported in (Canara Bank and Ors. Vs. Debasis Das and Ors., (2003) 4 SCC 557), paragraphs 16 and 19.
14. On behalf of the appellants reliance is placed on the judgment of the Apex Court reported in (M.V. Bijlani vs. Union of India and Ors., (2006) 5 SCC 88). It is well settled that a judgment is an authority on the issue what it decides and not the issues which are deducted there from. The case cited by the appellants was based on the facts where the disciplinary proceeding was initiated five years after charge was handed over by the appellant when admittedly he was not in possession of any document. Subsequently, the enquiry officer took seven years time to complete the enquiry and the appellate authority also took seven years in disposing the appeal and the appellate authority did not go into question as to whether the procedure laid down for holding the disciplinary proceeding had been followed or not. In this backdrop the Apex Court in paragraph 26 of the said judgment decided that the report of the enquiry officer was erroneous in view of the observations made by the Apex court in paragraph 25 where it has been succinctly indicated what should be the approach of the enquiry officer being a quasi judicial authority while conducting enquiry in a disciplinary proceeding. In the present case the disciplinary authority differed from the finding of the enquiry officer and independently conducted the proceeding against the writ petitioner upon disclosing the points on which disciplinary authority differed from finding of the enquiry officer. On appraisal of the points disclosed by the disciplinary authority in its letter dated 25th May, 2009 we have already come to the conclusion that the finding of the disciplinary authority are not tenable. Therefore, the judgment of the Apex Court in M.V. Bijlani (Supra) does not have any manner of application in the present case.
15. On the issue of remitting the matter back to the disciplinary authority for conducting proceeding de novo we find it apposite to rely on paragraph 21 of the three judge Bench decision of the Apex Court reported in (Punjab National Bank And Others vs. Kunj Behari Misra, (1998) 7 SCC 84). The same is quoted below:
"21. Both the respondents superannuated on 31-12-1983. During the pendency of these appeals, Misra died on 6-1-1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases should be remanded to the disciplinary author
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ity for the start of another innings. We, therefore, do not issue any such directions and while dismissing these appeals, we affirm the decisions of the High Court which had set aside the orders imposing penalty and had directed the appellants to release the retirement benefits to the respondents. There will, however, be no order as to costs." 16. In the present case the writ petitioner retired from service on superannuation in the year 1996. Previously vide order dated 2nd April, 2009 the learned Single Judge on disposing the writ petition being C.O. No. 13279 (w) of 1992 granted liberty to the appellants to initiate proceeding from the stage of supplying enquiry report to the writ petitioner. Subsequently availing such liberty given to the appellants proceeding was initiated which culminated into passing order of punishment dated 1st July, 2009 which stood confirmed by the order of appellate authority dated 25th February, 2010. In the meantime the writ petitioner died on 22nd May, 2019 during pendency of the present appeal and upon allowing the substitution application the heirs of the writ petitioner have been substituted as a result thereof there is no option left open to remand the matter back to the disciplinary authority for reconsideration in view of the death of the writ petitioner; when we have held above that the point disclosed by the disciplinary authority in support of differing with the finding of the enquiry officer have been found to be untenable. Applying the decision in paragraph 21 of Punjab National Bank (supra) we are not inclined to remand the matter back to the disciplinary authority. 17. Accordingly, we do not find any reason to interfere with the judgment and order of the learned Single Judge dated 27th September, 2018. The appeal and the stay application stand dismissed, however, there shall be no order as to costs. 18. Urgent certified copies of the judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.