PARAMHANS PANDEY Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) This appeal is directed against the decision passed by the learned trial in Civil Order No. 1098(W) of 1986. By the aforesaid order dated 29th Jan., 1986, the learned trial Judge dismissed the writ petition moved by the appellant Inter alia, challenging the second show cause notice issued to him for showing cause as to why his service should not be terminated in connection with the disciplinary proceeding initiated against him on the basis of the charge sheet issued in connection with the recovery of 106pcs. of G. C. Sheets from the left side of Railway Track of down loop line in between Jonai Road Railway Station and Majherhat Railway Station on 22nd Dec., 1983. The charge levelled against the appellant was to the effect that he was grossly negligent of duty in that while he was on camping duty at JOX on 21. 12. 83 and 22. 12. 83 he miserably failed to prevent and detect theft of 106 pcs of G C. Sheets from Wagon No. NR 23627 Ex SCOB siding on 12. 12. 83 at 19.50 hrs. at Jonai Railway Station. The short facts relating to the said disciplinary proceeding may be stated hereunder:- The appellant Shri Paramhans Pandey who was a ' Constable in the Railway Protection Force, was on duty at Jonai Road Railway Station yard on 21st Dec., 1983 along with other Constables. His duty hours was from 8 hrs. in the morning up to the 20 hrs. at night. The goods train carrying the G. C. Sheets arrived at Jonai Road Railway Station at about 19.50 hrs and the said goods train left at 22.42 hrs, on 21st Dec., 1983 Sometime on 22nd Dec., 1983, 106 pcs. of G. C Sheets were discovered by the side of Railway track in between the Jonai Road Railway Station and Majherhat Railway Station and it was also found that the seal of the wagon in which the said G. C. Sheets had been booked were tampered with and the seals on the left side of the wagon could not be found when the train reached the next station. It appears that as Shri Pandey Mil on duty at Jonai Railway Station when the goods train had reached as it was the duty to check up the seals of the wagons and to prevent any pilferage from the wagons, a disciplinary proceeding was initiated against him for the alleged theft of 106 G. C. Sheets. Shri Pandey in answer to his second show cause notice had submitted that his duty along with others came to end only 10 minutes after the arrival of the train, I. e at 20 hours and the pilferage might had taken place when it was not on duty and as such the disciplinary proceeding should not have been initiated against him. Shri Pandey also complained that such pilferage was also likely to have taken place in between Jonai Road Railway Station and Majherhat Railway Station but no proper enquiry had been made to that effect. It maybe noted here that along with Shri Pandey. his other companion Constables were also proceeded with departmental for the said pilferage. Similarly, the other constables who relieved Shri Pandey at Jonai Road Railway Station after his duty came to an end at 20 hrs. were also proceeded with for the said loss of 106 G.C. Sheets. The learned trial Judge dismissed the writ petition, Inter alia, on the view that as the findings made in the disciplinary proceedings were not perverse, interference, by the writ was not called for and it was not necessary for the respondents to file and affidavit-in-opposition and to bring necessary papers on records.

(2.) Mr Das, learned Counsel for the appellant has contended at the hearing of the appeal that the duty of Shri Pandey at the Jonai Road Railway Station was only for 10 minutes after the arrival of the train on 21st Dec., 1983.

(3.) It is nobody's case that the pilferage had taken place when Sbri Pandey was on duty. Admittedly, the goods train remained in station for about three hours and left the station at 22/42 hours when some other constables of the Railway Protection Force were on duty. Moreover, the G. C. Sheets in question had been found lying by the side of the railway tracks in between the two railway stations and it'S not quite unlikely that the pilferage had taken place while the train moved. Unless there it a specific evidence from which a reasonable inference can be made about the complicity of Shri Pandey for the said pilferage of 106 sheets of G. C. Sheets, on more surmises and conjectures no disciplinary proceeding should have been initiated and in any event on the basis of the materials on record there was no occasion to issue the second show cause notice for inflicting punishment on Shri Pandey. Mr. Das has submitted, that in the disciplinary proceeding, tho evidence Act is not applicable but the basic principles of fair-play and natural justice are to be followed in the disciplinary proceeding and the requirement of proof cannot be substituted by surmises and conjectures. Mr. Das has further submitted that the law is well-settled that until and unless there is an evidence from which a reasonable inference of fact may be made, no punishment can be inflicted on surmises and conjectures. In the instant case the railway administration has proceeded on surmises and conjectures from the very beginning and precisely for the said reasons, not only Shri Pandey or his companions but even the other constables who relieved Shri Pandey and his companions after their duty hours were over had also been proceeded with. Such action clearly demonstrates that the railway administration was not sure about the complicity either of Shri Pandey and his companions or their relievers. In the instant case the train had stayed for about three hours at Jonai Road Station and within ten minutes after the arrival of the train, the duty of Shri Pandey came to an end No evidence has been laid to the effect that while Shri Pandey was on duty the wagon was interfered with and the seals were detected in defective position and Shri Pandey failed to discharge his duties in not detecting such tampering with the seals of the wagon. In such circumstance, simply because some G. C. Sheets had been found lying by the side of the railway tracks in between the two stations when the train had left, Shri Pandey cannot be proceeded with and on the face of the evidences adduced in the disciplinary proceeding there was no reason to issue the second show cause notice. Mr. Das has submitted that normally against the second show cause notice interference by the writ court is not called for but if on the face of the material, it can be amply demonstrated that such proceeding cannot but fail, the agony of a delinquent, should not be prolonged by allowing the abortive disciplinary proceeding to continue because by such process the delinquent employee cannot but suffer serious prejudice by the adjudication to be made in such abortive proceeding. He has submitted that in the instant case an unsatisfactory state of affairs has been revealed and on the basis of the materials disclosed in the disciplinary proceeding, there was no occasion to proceed any further against Shri Pandey and the issuance of the second show cause notice was wholly unjustified and was therefore required to be quashed.