UNION OF INDIA Vs. SANTOSH KUMAR DUBEY

JUDGEMENT

(1.) This Intra Court Appeal under Clause 10 of the Letters Patent, preferred by the Union of India and others (respondents in writ petition being W.P.(S) No. 5039 of 2023), is directed against the judgment dtd. 6/8/2024 passed by the learned Single Judge in W.P.(S) No. 5039 of 2023, whereby the learned Single Judge has allowed the writ petition by quashing the chargesheet dtd. 31/1/2023 and the order of pre-mature retirement dtd. 5/12/2023, of the writ petitioner. Further, a direction was given in the impugned order to restore the services of the writ petitioner with all consequential benefits including continuity in service. The learned Single Judge directed that the intervening period be regularized as leave due. SUBMISSIONS OF THE APPELLANT-UNION OF INDIA

(2.) Learned A.S.G.I. appearing on behalf of the appellants-Union of India submitted that the learned Single Judge has committed an error in allowing the writ petition. The writ petitioner (respondent in this Letters Patent Appeal) is involved in a case instituted under the Prevention of Corruption Act being RC 13(A) of 2017 registered for offences under Ss. 13(2) read with Sec. 13(1)(e) of the Prevention of Corruption Act, 1988 for amassing disproportionate assets during the check period from 1998 to 2013. Central Vigilance Commission recommended sanction for prosecution and also for initiating a major penalty proceeding. The President of India, in terms of Sec. 19 of the Prevention of Corruption Act, granted sanction for prosecution against the petitioner and chargesheet was submitted against him. Special Judge, C.B.I. had taken cognizance of the offence on 22/7/2022. A Departmental Proceeding was also initiated and an Enquiry Officer was appointed. Inspite of extension of time, the writ petitioner did not file his written statement in defence. The writ petitioner, on 14/1/2022 filed a representation, but as the written submission was not filed, an Enquiry Officer to conduct the Departmental Proceeding was appointed. As per the learned A.S.G.I., learned Single Judge committed illegality while quashing the Departmental Proceeding and the Departmental Chargesheet observing that the representation dtd. 14/1/2022 was not considered and appointment of Enquiry Officer amounts to non-application of mind. As per him, the Departmental Proceeding could not have been quashed. The finding of the learned Single Judge to the effect that illegality committed by the writ petitioner in amassing disproportionate assets is subject matter of criminal proceeding and can only be adjudged by a Court, as such Departmental Proceeding cannot be initiated, is without a proper backing of law. There is no element of bias in this case. There is no legal obligation on the part of the Railway Board to dispose of the representation of the writ petitioner, which was filed on 14/1/2022. This fact has been lost sight of by the learned Single Judge. Further, the learned Single Judge failed to take into consideration that representation dtd. 14/1/2022 has got no relation with the allegation made in the Departmental Proceeding. The Departmental Proceeding was initiated on the ground of not giving intimation of acquisition of properties, which is in violation of Rule 9(15) of the Railway Conduct Rule, whereas the criminal proceeding was initiated for amassing Disproportionate Assets under Sec. 13(1)(e) of the Prevention of Corruption Act. Since both the proceedings operate in different fields, the Departmental Proceeding could not have been quashed. The finding that there is a delay in initiating the Departmental Proceeding does not warrant quashing of the charge. Further, it was argued that the premature retirement is not a punishment. The writ petitioner along with several others were considered in terms of Rule 1802(a) of the Indian Railway Establishment Code and thereafter a decision was taken to give compulsory retirement to the writ petitioner on the basis of materials available on record. Learned Single Judge could not have sat as an Appellate Authority on the order of compulsory retirement passed by the appellants herein. Further, since the said order is not a punitive order, interference was unwarranted. On these grounds, he submitted that the impugned order of the learned Single Judge is bad in law and needs to be quashed. SUBMISSIONS OF THE WRIT PETITIONER-RESPONDENT

(3.) Learned counsel appearing on behalf of the writ petitioner- respondent submitted that a Departmental Proceeding was initiated against the writ petitioner and departmental chargesheet was submitted under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968. The writ petitioner was directed to submit written submission of defence within 10 (ten) days, which was extended up to 31/3/2023. The writ petitioner made representation on 24/2/2023, stating that his earlier representation dtd. 14/1/2022 was pending for disposal. Disposal order is essential for his reply, thus, requested for time, but the appellants-Union of India, in most arbitrary manner, rejected his representation for time and appointed an Enquiry Officer. This caused prejudice and reflects bias on the part of the appellants-Union of India. Thus, learned Single Judge has correctly quashed the Departmental Proceeding. Learned counsel argued that without applying mind, the representation of the petitioner for extension of time was rejected. Further, it was argued that on a stale allegation, which is more than 15 years old and mostly related to his father and mother, who also expired 14 years back, appellant-Union of India had proceeded against the writ petitioner- respondent, which is absolutely bad. The delay, thus, caused is fatal. Further, when a Departmental Proceeding was initiated, during pendency thereof the impugned order of compulsory retirement under Rule 1802(a) of the Indian Railway Establishment Code was issued, which clearly shows biasness against the writ petitioner-respondent and also reflects the malafide intention of the Appellant. He argued that the procedure adopted by the appellant is unknown in law, thus, learned Single Judge had quashed the proceeding. He further submitted that charge in the criminal proceeding is grave in nature and involves complicated question of facts, thus, without conclusion of the Criminal Proceeding, Departmental Proceeding could not have been initiated nor could the writ petitioner have been punished. It was contended that charge is similar and identical, which also prohibits the appellant to proceed against the writ petitioner departmentally. He lastly submitted that the impugned order passed by the learned Single Judge needs no interference as the same is in accordance with law. FACTS OF THE CASE