IN THE HIGH COURT OF (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) W.P. (C) No.

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1 IN THE HIGH COURT OF (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) W.P. (C) No. 2131/2004 Shri Dwijendra Nath Deka S/o. Late Monmil Ch. Deka R/o. Madhgharia, Narengi, Guwahati-21, Dist. Kamrup Petitioner Versus 1) The Union of India Represented by the General Manager, N.F. Railway, Maligaon, Guwahati 2) The Chief Security Commissioner, Railway Protection Force, N.F. Railway, Maligaon, Guwahati 3) The Additional Chief Security Commissioner, R.P.F., N.F. Railway, Lumding 4) The Assistant Security Commissioner, RPF, N.F. Railway, Maligaon, Guwahati 5) The Divisional Security Commissioner, RPF, N.F. Railway, Lumding BEFORE Respondents. THE HON BLE MR. JUSTICE B.K. SHARMA For the petitioner : Mr. N.C. Das, Sr. Advocate Ms. M. Devi, Advocate For the respondents : Ms. B. Devi, SC Date of hearing & Judgment : W.P.(C) No. 2131/2004 Page 1 of 11

2 JUDGEMENT AND ORDER (ORAL) 1. Heard Ms. M. Devi, learned counsel led by Mr. N.C. Das, learned Sr. counsel for the petitioner as well as Ms. B. Devi, learned SC, Railway. 2. By means of this writ petition, the petitioner has challenged the order dated (Annexure-V) passed by the disciplinary authority pursuant to a departmental proceeding. By the said order, the petitioner, a Head Constable in the Railway Police Force (RPF) under N.F. Railway, has been imposed with the penalty of compulsory retirement from service. The statutory appeal preferred by the petitioner has also been dismissed by order dated (Annexure-VII) (I). Thereafter the petitioner filed the instant writ petition. 3. The petitioner while was serving as Head Constable at New Guwahati, was placed under suspension by order dated Thereafter he was served with memorandum of charge sheet dated The charge alongwith imputation levelled against the are as follows: CHARGE Neglect of duty in the part of Dwijendra Nath Deka, Hd. Constable NGC(P) is that he was detailed to perform yart campus duty at RPF/NGC Yard & Goods shed for Note down the remaks beared by the stabled wagons for immediate information to IPF & other officers of post to know the actual place & line of stabled wagons loaded with valuable goods. On UP/NGC/Sugar/Special arrived New Guwahati at hrs. with 40 loaded wagons of sugar & placed at line No. 1 with soal Nut belt intact condition. There after on the following night of police patrolling party of Chandmari PS recovered 8 bags of sugar from W.P.(C) No. 2131/2004 Page 2 of 11

3 the house of one Pachu Sah residing at New Guwahati BG/Goods/Shed area. The said recovery of sugar bags were suspected to be stolen from wagon No. SEB No. A & SRB No stabled at line No. 1 or BG unloading line. Accused Pachu Sah & his wife Smti Sarmila Devi in their statement disclosed the name of D.N. Deka before police & RPF/IFC Officers. So, there is sufficient reason to believe that D.N. Deka, Hd. Constable /NGC(P) had the connivance with criminal for which he is liable for punishment under Rule 153 of RPF rules IMPUTATIONS: STATEMENT OF ALLEGATIONS: On , 40 wagons of sugar arrived New Guwahati by UP/HGC/Sugar/Special at hrs. & placed on line No. 1of BG/Goods shed for unloading. All the 40 wagons bears seal nut bolt & body intact. On the following night of police patrolling party of Chandmari PS recovered 8 bags of sugar bearing stencils mark on the body of the bags as SULPHYTATION-TARHA GAR (TSS) INDIA NET WT- 100 kg from the house of one Pachu Sah residing near by New Guwahati/Goods shed area. While unloading the wagon No. SEBCNA & SRBCNA containing sugar seal intact stabled at line No. 1 or BG/Goods shed yielded 12 bags & 6 bags sugar short respectively. The shortage were confirmed by CCS/HGC & Sr. CC/MGC vide their message No. CC/NGC/BG/434, 2001 & BC/NGC/BG/435/2001 dated respectively. One enquiry it was revealed that the stencil mark bearing by the recovered sugar bags by police & the sugar bags unleaded from wagon No. SEBCNA & SRBOTA were tallyed with each other. RPF/Officers/TVG report submitted to CSC/NF Railway indicated that D.N. Deka, Hd. Constable /NGC(P) had managed to open the victimised wagons No. SEBCNA & SRBCNA-4449 at line No. 1 of BG/Goods shed on the morning of before arrival of on duty unloading goods clerk to omit the sealing condition of the wagons. Thus, D.N. Deka is liable for punishment under rule 153 of RPF Rules, W.P.(C) No. 2131/2004 Page 3 of 11

4 4. In response to the said charge sheet, the petitioner submitted his written statement of defence and being not satisfied with the explanation furnished by him, the disciplinary authority decided to hold the enquiry. On conclusion of the enquiry, the enquiry officer submitted his report holding the petitioner guilty of the failure in detecting the case of theft of sugar bags (8 bags) from the wagons in question and also to inform the Inspector of Protection Force, New Guwahati and other officers about the actual condition of the wagons loaded with sugar. 5. In response to the enquiry report, the petitioner submitted his representation and thereafter the disciplinary authority by its impugned order dated imposed the penalty of the compulsory retirement from service. The statutory appeal preferred by the petitioner also stood dismissed by order dated Challenging the said two orders, the petitioner filed the instant writ petition. 6. The writ petition was admitted for hearing on and it was dismissed for default on as none appeared to press the petition. However, the writ petition was restored to file by an order passed in Misc. case No. 4091/2007. Thereafter also the matter was taken up on , but there was no representation on behalf of the petitioner. Be that as it may, the writ petition was taken up on and thereafter again taken up today. 7. I have considered the submission made by the learned counsel for the parties and have also perused the relevant materials including the disciplinary proceeding file. The charge that was W.P.(C) No. 2131/2004 Page 4 of 11

5 levelled against the petitioner has been noted above. The enquiry officer did not find the petitioner guilty of the basic charge levelled against him. Discussing the oral testimony of the witnesses examined on behalf of the disciplinary authority, the enquiry officer found that the petitioner was not involved in the alleged theft of sugar in the wagons in question. Although the disciplinary authority has referred to one Shri Pachu Sah and his wife with the assertion that they had seen the petitioner staking sugar bags in the particular house, but in the oral testimony, the said two witnesses never named the petitioner. They only named the person by the title (Deka), but it is on record that there were as many as 7 RPF personnel with the title Deka. Upon discussion of the evidence on record, the enquiry officer formed the following opinion and findings. OPINION Party charge HC/Dwijen Deka perform regular census duty at NGC yard as stated by himself in the statement of IPF S.K. Basak. He was bound to attend his duty regularly at Hrs. on he attended his census duty at 8.25 Hrs. vide DE No. 19 of RPF/Post/NGC and off from duty at Hrs. vide De No. 57 and completed only 21 Nos. of loads detained at NGC yard for despatch. On he attended his census duty at 9.35 Hrs. vide DE No. 27 at RPF/Post/NGC. He was off from duty at Hrs. vide DE No. 49 and completed checking of only 10 stabled wagons. Unloading of wagon No. SEBCN and SRBCN continued from 8.00 Hrs. of on line No. 1 of Goods shed of which wagon No was subsequently detected sealing tap in tempered condition and without Nut bolt. Had he attended his duty in time at Hrs. On he could have detected the defective condition of the said wagon and to report the case to IPF(P) NGC for further action. In the event of the above party charge HC/Dwijen Deka miserably failed to detect the case and to report W.P.(C) No. 2131/2004 Page 5 of 11

6 the case to IPF(P) NGC and found him negligence on duty. FINDINGS: Charge of negligence on duty to detect the case of theft of 8 bags sugar from wagon, no mention above and failure to inform IPF(P) NGC and other officer of post to know the actual condition of stabled wagons loaded with sugar is proved. 8. From the above, what is seen is that the enquiry officer while not holding the petitioner guilty of the basic charge levelled against him, but held him guilty of negligence in attending the duty with observation that had the petitioner attended his duty on time, he could have detected the defective condition of the wagons in question and reported the same to the IPF(P) for further action. Such findings recorded by the disciplinary authority to hold the charge established against the petitioner is beyond the scope of the charge. 9. The charge against the petitioner was that of committing theft of 8 bags of sugar alongwith others. As disclosed in the charge, on wagons of sugar arrived at New Guwahati on hours and were placed at line No. 1. On the following day, i.e. on , RPF patrolling party recovered 8 bags of sugar from the house of one Shri Pachu Sah residing near New Guwahati good shed area. In the particular wagon there was shortage of sugar bags which was confirmed by the Chief Goods Supervisor. On enquiry, it was revealed that there was tempering of seal etc. and the sugar bags stolen from the wagon tallied with the identification made by the Chief Goods Supervisor. It was alleged that the petitioner had managed to open the wagon at line No. 1 in the morning before W.P.(C) No. 2131/2004 Page 6 of 11

7 arrival of the unloading clerks. Accordingly, the charge was levelled against the petitioner under rule 153 of RPF Rules, In the charge levelled against the petitioner it was never alleged that he was guilty of late arrival in duty, but for which he could have detected the theft and could have reported the matter to the higher authority. Even if we go by the above quoted finding recorded by the enquiry officer, same by itself cannot lead to the inference that the petitioner was guilty of the charge recorded in the said opinion and finding inasmuch as the same was not the charge levelled against the petitioner. Thus, the fact of the matter is that the basic charge levelled against the petitioner could not be established in the enquiry, but in the process he was held guilty of another charge which was never levelled against him. 11. As per the requirement of the Rules, a distinct and definite articles of charges are required to be levelled against the delinquent officer entitling him to deny the same by way of adducing the defence evidence and cross examining the witnesses examined on behalf of the disciplinary authority. In the instant case, the charge of negligence of duty to detect the case of theft and consequently failure to inform the higher authority about the incident was never levelled against the petitioner. The involvement of the petitioner in the theft of 8 bags of sugar could not be established on the basis of the evidence adduced by the witnesses examined on behalf of the disciplinary authority. 12. The petitioner could not have been held guilty of a charge that was never levelled against him. If there was any material attributing negligence on duty to the petitioner, strict and definite charge ought W.P.(C) No. 2131/2004 Page 7 of 11

8 to have levelled against him so as to enable him to defend the charge. However, the same was not done, but in the process, the petitioner was held guilty of the charge which never formed the charge and the statement of allegations. 13. The disciplinary authority in tune with the findings recorded by the enquiry officer recorded the following findings in the impugned order: The party charged can not be given the liberty for coming to the duty at his chosen time. The party charged on census duty was primarily responsible for checking the wagons stabled in the yard particularly when the wagons are not being unloaded and to make sure that he detects any variation in the seal condition of the wagon before being opened for unloading so that crime if any committed in the year is detected promptly. The party charged cannot be disown this duty in this case. 14. Similarly, brushing aside the actual testimony of Shri Pachu Sah and his wife Smt. Sarmila Sah, the disciplinary authority observed in the impugned order as to why they had named the petitioner in their statement made during the investigation. The fact of the matter is that in the departmental enquiry the said two witnesses never named the petitioner. It is also on record that there were 7 RPF personnel with the title Deka. It is on that count the enquiry officer found it difficult to hold the petitioner guilty of the charge of theft. Law is well settled that the disciplinary authority, if disagrees with the findings recorded by the enquiry officer, such disagreement notes/observations must be forwarded to the delinquent enabling him to make representation against the notes of W.P.(C) No. 2131/2004 Page 8 of 11

9 disagreement. In the instant case the said procedure was not followed and the disciplinary authority took into consideration the statement of the said two witnesses which were given during the investigation, but not in the enquiry proceeding in which the petitioner was upon exonerated the basic charge. 15. In the departmental appeal, the petitioner had highlighted all the above aspects of the matter. In paragraph-7 of the said appeal, the petitioner made categorical statement that in the enquiry the prosecution could not prove the involvement of the appellant either through their witnesses or documentary evidence. In the said paragraph, it was also stated that Shri Pachu Sah and his wife Smt. Sharmila Sah on whose statement the whole enquiry was conducted had been produced before the enquiry officer, but in their oral testimony they denied involvement of the petitioner. 16. The appellate authority without considering the grounds urged in the appeal passed a cryptic order dismissing the appeal. The appellate order is quoted below: THE APPELLATE S ORDERS IN CONNECTION WITH THE APPEAL MADE BY SHRI DWIJENDRA NATH DEKA, EX. HC/RPF/ NGC(P) COY OF LUMDING DIVISION I have gone through the appeal made by the appellant, the parawise comments by DSC/Lumding and other relevant records. The appellant contended that the enquiry is irregular and prejudice but on record I found no irregularity as per as the enquiry of the preceding is concerned. The enquiry officer and the Disciplinary Authority, i.e. ASC/Guwahati and DSC/Lumding found the charges hve been proved and beyond doubt. W.P.(C) No. 2131/2004 Page 9 of 11

10 Initially, the local police had registered the case against the outsiders in which the appellant Shri Dwijendra Nath Deak was named by the accused in committing crime. In fact, much leniency in my opinion, have been shown by the disciplinary authority in not removing and dismissing him that imposed compulsory retirement from service. This being the fact, I found no ground to interfere with the decisions of the Disciplinary Authority and hence the decision of the Disciplinary Authority is upheld. Inform accordingly. Addl. Chief Security Commissioner N.F. Railway: Maligaon 17. For all the aforesaid reasons, the impugned orders, i.e. order dated (Annexure-V) passed by the disciplinary authority and the order dated (Annexure-VII) passed by the appellate authority, are not sustainable in law and accordingly they are set aside and quashed. Consequently, the writ petitioner shall be entitled to reinstatement in service forthwith. 18. This now leads us to the question as to whether the petitioner should be entitled to back wages. The writ petition was pending for the last about 8 years. In between, the same was dismissed for default and then restored. That apart, as recorded in the impugned order of penalty, there was some amount of negligence on the part of the petitioner in not attending his duty on time. The impugned orders have been interfered with primarily on the ground that the said negligence part was not attributed to the petitioner while framing the charge. Considering all these aspects of the matter, I am of the considered opinion that the petitioner is not entitled to back wages. However, he will be entitled to notional fixation of pay with continuity in service and other consequential service benefits. W.P.(C) No. 2131/2004 Page 10 of 11

11 19. The writ petition is allowed to the extent indicated above. However, there shall be no order as to costs. Kborah JUDGE W.P.(C) No. 2131/2004 Page 11 of 11