MAHESH SINGH Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) This writ application has been preferred challenging the entire disciplinary proceeding including the order of suspension dated 6th January, 1991, the charge-sheet dated 20th February, 1991, the enquiry report dated 6th June, 1991, the order of punishment dated 22nd August, 1991 and the order of the appellate authority dated 27th November, 1991.

(2.) Shorn of unnecessary details, the facts are that the petitioner was appointed to the post of Constable on permanent basis in the year 1978 in Railway Protection Force (hereinafter referred to as RPF) and while he was working in the loco shed at Malda an order of suspension was issued against him on 6th January, 1991 and pertaining to an incident of 5th January, 1991, the petitioner was charge-sheeted by a memorandum dated 22nd August, 1991 issued by the respondent no.3 to which the petitioner submitted a reply and participated in the enquiry and in the enquiry report dated 6th June, 1991 the petitioner was found guilty of charge nos. IV and V amongst the five charges levelled against him through the charge sheet. The petitioner duly replied to the said enquiry report and the respondent no.3 imposed a punishment of removal from service upon the petitioner by an order dated 22nd August, 1991. Aggrieved by the same, the petitioner preferred a statutory appeal on 12th September, 1991 and the appellate authority dismissed the petitioner's appeal by an order dated 27th November, 1991. Aggrieved thereby the petitioner approached this Court through an application being C.O. No.1011 (W) of 1993 under Article 226 of the Constitution of India but as the same was dismissed for default, a restoration application was filed and in the same an order was passed on 13th November, 2006 observing inter alia that in the event the petitioner's right under the Constitution is a subsisting, it will be open for him to take out a fresh writ application and subsequent thereto, the instant writ application has been preferred by the petitioner.

(3.) Mr. Majumder, learned senior advocate appearing for the petitioner submits that the findings of the enquiry officer pertaining to the charge nos. IV and V are not sustainable inasmuch as the Medical Examination Report would reveal that the petitioner was not intoxicated and that there was also no evidence on record to establish that the petitioner failed to deposit 25 rounds of live ammunition and such fact stands fortified through the statement made by the IPF, Malda, namely Sri J. M. Sen Sharma on 5th January, 1991 to the effect that he personally examined the empty cartoon as per seizure list and he found that there was no smell of barrel. Furthermore, in course of cross-examination J.B. Singh himself stated that he was not present when the petitioner deposited the arms and ammunition and that no diary as regards shortage of ammunition was lodged.