BALARAM DHAL Vs. UNION OF INDIA

JUDGEMENT

(1.) In W.P.(C) Nos. 3033 and 4005 of 2009 and in W.P.(C) Nos. 16706 and 16707 of 2008 petitioners have prayed to quash the departmental proceedings under Annexures-7, 11, 5 dated 22.5.2008 respectively and under Annexure-5 dated 17.7.2008.

(2.) It is contended in the writ petitions that F.I.R. was drawn up by one S.K.Biswal, Superintendent of Police, C.I.D., C.B., Orissa, Cuttack on 22.4.2008 basing upon the news published in a daily newspaper dated 14.4.2008 regarding death of a Judo coach at Bhubaneswar. The coach was shot dead on apprehension that he was about to disclose the name of the officials, who had nexus with pilferaging iron scraps from Mancheswar coach repairing shop. The said incident was investigated into as per the direction of D.G. Police. The Senior Divisional Security Commissioner-opposite party- No.3 also caused a joint fact finding enquiry through Sri S.N.Das, Inspector, Sri P.S.Biswas, Inspector Crime Reader and Sri S.K.Das, Inspector R.P.F., Mancheswar workshop, who went to Mancheswar workshop along with the custodian of the scrap iron of the workshop Sri B.Verkatiya, Asst. Chief Manager(I)/CRW/Mancheswar. After due verification, it was found that there was no disturbance in the stacks of the earmark location in the scrap dumping area of the workshop and accordingly they submitted a report on 14.4.2008 vide Annexure. It reveals from the said report that no stack was on distenbes State/condition in the earmarked locations in the suap dewfing area of the workshop. Basing upon the F.I.R., C.I.D., C.B. Case No. 20 of 2008 was registered under Sections 120-B/379/201/411 & 414 of the I.P.C. against the petitioners-Constable. The custodian of Mancheswar stock yard has not lodged any F.I.R. with regard to any pilferage of any iron scrap or involvement of any of the constables on dereliction of duty. The Deputy Chief Commissioner, East Coast Railway, Senior Security Commissioner, R.P.F. Khurda Road, CCB, Railway Board, New Delhi also enquired into the mater and they submitted a reported on 25.4.2008 vide Annexure-3. The matter was again enquired into by Sri A.K.Jena, OI/CIB Waltire, Sri P.S.Biswas, OC/RPF Waltire and Sri R.K.Narendra, OIC/RPF Bhubaneswar and they also submitted a report on 5.5.2008 vide Annexure-4. From those two reports it reveals that they could not find any incriminating materials in support of the paper publication and 'Y' form has not been issued and no report has been given by the OC/RPF/MCS to Senior DSC/RPF/Khurda in that regard. 'Y' form stands for lodging of theft report in the Railway by the custodian of the property.

(3.) Learned counsel for the petitioners submitted that in view of non-issuance of 'Y' form clearly reveals that there was no pilferage of any scrap iron from Mancheswar repairing workshop and the news was only based on wrong information. Neither any railway property has been seized by the Crime Branch nor the driver or the helper of the seized truck was arrested in pursuance of the lodging of the said F.I.R. The C.I.D., C.B. Case No. 20 of 2008 corresponding to G.R. Case No. 1722 of 2008 was pending before the learned S.D.J.M., Bhubaneswar and no case was made out against the petitioners under the Indian Penal Code and a communication has been made to the Railway Authority for registration of a case. Accordingly, the O.I.C. Mancheswar R.P.F. has reregistered a case under Section 3(a) RP(UP) Act and thereafter has moved an application before the court. The afore-stated fact reveals that C.I.D., C.B. failed to get any materials against the petitioners in any manner with regard to theft of any alleged iron scrap and accordingly, requested the Railway Authority to re-register a case under the R.P.F. Act, therefore, there is no material before the authority to proceed with the departmental proceeding. The departmental proceeding was initiated on the basis of statement recorded under Section 161 of Cr.P.C. in the C.I.D., C.B. case and a charge memo was submitted. Charge memo was based on the basis of 161 statement recorded. As the G.R. case is pending, the said 161 statement is only for the purpose of contradiction during the trial, therefore the departmental proceeding initiated against the petitioners along with the charge memo are liable to be quashed. The charge memo was submitted suspecting involvement of the petitioners with regard to theft of railway property but no F.I.R. was filed by the Railway Authority till date and therefore, on mere suspicion no departmental proceeding should be initiated which needs to be interfered with. In support of his contention he has cited the decisions G.M.Tank V. State of Gujarat, 2006 5 SCC 446, M.Paul Anthony V. Bharat Gold Mines Ltd., 1999 3 SCC 679 and P.S.Rajya V. State of Bihar, 1996 9 SCC 1.