D N BANDOPADHYAYA Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal has been filed by plaintiff D.N. Bandopadhyaya challenging the correctness of the judgment of the District Judge, Kota dated 20th April, 1973 dismissing plaintiff's suit for malicious prosecution claiming damages from the respondent to the extent of Rs. 10,868/-.

(2.) The facts giving rise to this litigation may be summarised, in a nut-shell as follows: On 7th March, 1965 the plaintiff was posted as Permanent Way Inspector, Western Railway at Bayana. A wagon of the goods train No. 502 Up derailed between Dumariya and Bayana stations which fell within the jurisdiction of the plaintiff. The Divisional Superintendent Kota instituted an enquiry to find out the cause of the accident and appointed a committee for that purpose. The committee could not place the responsibility of this accident on any of the officers but the Divisional Superintendent Kota did not agree with the opinion of the enquiry committee and directed it to reassemble and find out by a process of elimination the primary cause of the accident and pin down the responsibility on the members of the staff responsible for maintaining the traffic. The defect in the track could not be traced out by the committee but it was of opinion that "the possibility of a low joint cannot be ruled out." It may be mentioned that the track was laid down under the supervision of the plaintiff and, therefore, a show cause notice was issued to him as to why disciplinary action may not be taken against him. After the disciplinary enquiry, the plaintiff was found guilty of neglect of duty and the disciplinary authority stopped one grade increment of the plaintiff. The punishment awarded by the disciplinary authority was upheld by the appellate authority. In a writ petition filed by the plaintiff before this Court, it was held, "in my view the punishment has been inflicted on a mere possibility of a low joint which in the opinion of the disciplinary authority could not be ruled out. In the absence of any definite finding by the Enquiry Committee and the Disciplinary Authority that there was a low rail joint at the point where the derailment of the wagon had taken place, it is difficult to sustain the impugned order on a mere possibility of a low rail joint which could be taken as one of the causes of the derailment". Applying the golden rule of criminal jurisprudence that if a man is to be held guilty on the basis of circumstantial evidence alone then the circumstances must be of such nature which may lead to no other inference except the guilt of the officer charged, this Court set aside the impugned order inflicting the aforesaid punishment. After the order was set aside, the plaintiff preferred a suit for malicious prosecution in the Court of the District Judge, Kota and claimed damages to the extent of Rs. 10,868/- alleging that the disciplinary authority instituted departmental enquiry without any reasonable and probable cause and it was out of malice that the plaintiff was punished by the disciplinary authority. In that suit the Union of India, the Chief Engineer, Western Railway, Churchgate, Bombay and the Dvisional Superintendent Eastern Railway, Kota were impleaded as defendants.

(3.) The suit was contested by the defendants mainly on the ground that no proceedings for malicious prosecution could be instituted against the defendants as the enquiry conducted by the disciplinary authority cannot come within the scope of the expression 'prosecution' and that the enquiry cannot be said to have been instituted without reasonable and probable cause. It was also averred that the element of malice was altogether absent in the institution of the enquiry.