BISWAMITRA PANDEY Vs. CHIEF SECURITY

JUDGEMENT

(1.) BOTH the appeals have been preferred from the common judgment and order dated 20th February, 2004 passed by the learned Single Judge while deciding the two writ petitions bearing W. P. No. 2433 (W) of 1998 and W. P. No. 2434 (W) of 1998. Scrutinising the said judgment and order under appeal we find that the learned Single Judge specifically mentioned the numbers of both the writ petitions at the heading of the judgment but actually proceeded only with the writ petition filed by Rakshak Biswamitra pandey. Relevant portions from the said judgment and order under appeal are quoted hereunder: "20. 02. 04. W. P. No. 2433 (W) of 1998 + w. P. No. 2434 (W)/1998 mr. Tapas Saha. . . . . . . . . . . . . . . . . . for the petitioner; mr. Uttam Kumar Majumdar. . . . . . . . . . for the respondent. The petitioner it appears was dismissed from service by an order dated 10. 08. 1982. It would be profitable to notice the order in its entirety: 'rakshak Biswasmitra Pandey of RPF Post Gaya has been adopting indulging skillfully in organizing crime on Railway and adopting skilful method to evade detection of offence localization of seat of crime and identification of criminals while on duty in beat No. 7/8 of Up/marshalling gaya from 16 hours to 24 hours on 31. 3. 1982 as revealed during the enquiry of a theft of 61 completed cartons of No. 10 cigarettes from wagon no. ER 5467 EXGYA (P) to Sasaram (P ). Whereas the works and effectiveness of RK Biswamitra Pandey are found totally averse to the responsibilities and reliance reposed in him as a member of the Railway Protection Force and the same is considered to be absolutely detrimental to the interest of Railway administration in particular and the nation is general. Whereas the undersigned is satisfied that the conduct and the activities of RK Biswamitra Pandey are against public interest and the administration and instead of any use to the administration has proved reliability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The petitioner did not prefer any appeal against the aforesaid order within the time provided therefor or even a reasonable time thereafter. . . After hearing the learned Advocates this Court is of the view that this petition is wholly devoid of any merit for the following reasons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . For the aforesaid reasons this application is dismissed. There will be no order as to costs. " (Emphasis supplied)

(2.) IN any event, since both the aforesaid writ petitions were finally disposed of in the aforesaid manner by the common judgment and order dated 20th february, 2004, the respective writ petitioners preferred two separate appeals challenging the said common judgment and order dated 20th February, 2004 on identical grounds. As both the aforesaid appeals have been preferred on identical grounds, the same are heard analogously and disposed of as hereunder: both the appellants were permanent RPF constables and were posted at gaya in the State of Bihar at the material point of time. It has been alleged that while on duty in beat No. 7/8 of Up-marshalling Yard, Gaya from 16:00 hrs. to 24:00 hrs. on 31st March, 1982, alleged theft of 61 cartons of No. 10 cigarettes took place from Wagon No. ER/5467, Gaya (P) to Sasaram (P ). Both the appellants were removed from service on the charge of the aforesaid alleged theft without any trial or drawing up any proceeding or departmental enquiry. At the relevant point of time, the service conditions of both the appellants were governed by the Railway Protection Force Rules, 1959 and both the appellants were removed from service in exercise of powers under Rule 47 of the aforesaid rpf Rules, 1959. The said Rule 47 is quoted hereunder: "47. Special procedure in certain cases.-Notwithstanding anything contained in Rules 44,45 and 46 where a penalty is imposed on a member of the force, (a) on the ground of conduct which had led to his conviction on a criminal charge, or (b) where the disciplinary authority is satisfied, for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules, the disciplinary authority may consider the circumstances of the cases and pass such orders thereon as it deems fit. "

(3.) BEING aggrieved by the said order of removal from service both the appellants preferred appeals therefrom before the concerned appellate authority. The appellants herein were also named as accused persons in the criminal case, which was started on account of the aforesaid alleged theft. The learned railway Magistrate, however, by the judgment and order dated 15th February, 1996 finally disposed of the aforesaid criminal case wherein both the appellants were held not guilty and acquitted of the charge by the said learned Railway magistrate, although in the meantime, the appellants were removed from service on the aforesaid charge of alleged theft.