DUKHISHYAM MALLICK Vs. UNION OF INDIA (UOI)

JUDGEMENT

(1.) HEARD Mr. A.K. Mohanty, learned Counsel for the Petitioner and Mr. B. Pal, learned Senior counsel for the O.Ps.

(2.) THE brief f as delineated in this writ application tends to reveal as follows: The Petitioner was appointed as a Rakshaka in the Railway Protection Force under the South Eastern Railway in 1967 and in the year 1980 he was posted at Bhadrak. On 10.8.1980 he was directed to guard the wagons at Kenduapada Railway Station yard from 18.00 hrs to 6.00 hrs. On the allegation that 93 bags of 'Urea were stolen from one of the Wagons at about 22.30 hrs. in the night of 17/18th August, 1980, during which the Petitioner was on duty at Kenduapada Railway Station, the Petitioner along with nine outsiders was roped in a criminal case, registered as 2(c) C.C. Case No. 82 of 1980, for the offence under Section 3A of the Railway Property (Unlawful Possession) Act. On 26.8.1980 the Petitioner was placed under suspension from service and charge -sheet was issued against him under Section 9(1)(i) of the R.P.F. Act, 1957 read with Rule 44 of the R.P.F. Rules, 1959 for the charges of serious misconduct and gross negligence in duty which resulted in theft of the Urea bags from the wagon in connivance with the outsiders. Ultimately the Petitioner filed his reply and during the pendency of the disciplinary proceeding, the Petitioner was acquitted of the charges by the learned S.D.J.M., Bhadrak in the aforesaid criminal case. Admittedly no appeal having been filed against the order of acquittal passed by the Magistrate, the same had become final. The Enquiry Officer after enquiry submitted the report dated 23.11.1984 to the Disciplinary Authority vide Annexure -2, the relevant portions of which are extracted hereunder:

(3.) THE Disciplinary Authority on going through the enquiry report agreed with the findings of the Enquiry Officer and held the Petitioner guilty of the charge of negligence and issued the notice to the Petitioner to show cause against the proposed penalty of removal from service. The Petitioner submitted his show cause reply. The Disciplinary Authority ultimately passed the order dated 11.2.1985 (Annexure -5) removing the Petitioner from service with effect from the date of receipt of the removal notice. The Petitioner preferred an appeal against the aforesaid penalty. The appellate authority by order passed in Annexure -8 dismissed the appeal thereby confirming the order passed by the disciplinary authority removing him from service. Against the appellate order, the Petitioner filed a writ application in the Calcutta High Court and the same was dismissed with an observation that the Petitioner may take appropriate steps in the appropriate forum. Against the aforesaid order, the Petitioner filed an appeal but the same was also dismissed by a Division Bench. The Petitioner then filed a writ petition being O.J.C. No. 2375 of 1989 in this Court. This Court did not entertain the same as the Petitioner had not exhausted the remedy available to him under the service Rules. Thereafter the Petitioner filed a revision before the revisional authority, i.e., the Chief Security Commissioner, R.P.F., South Eastern Railway, Calcutta (O.P. No. 4), who rejected the revision vide order dated 17.9.1995, Annexure -10 and confirmed the order passed by the appellate authority. Thereafter this writ application has been filed challenging the findings of the appellate authority as indicated above. It is submitted that the Disciplinary Authority was not justified to award a major punishment like removal from service because the allegation and charge against the Petitioner relating to his connivance with others for commission of offence of theft of Urea bags was not proved. According to the Petitioner at best negligence of duty of the Petitioner could be found in the disciplinary proceeding. According to the learned Counsel for the Petitioner, the penalty of removal from service awarded to the Petitioner being an extreme penalty, that too grossly disproportionate to the charges levelled against him, is liable to be quashed.