Calcutta High Court (Appellete Side)
Ct 24. Item 5 Sukumar Pal vs Union Of India & Ors on 20 August, 2019
Author: Amrita Sinha
Bench: Amrita Sinha
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W.P. No. 26 (W) of 2019
20.08.2019
Ct 24. Item 5 Sukumar Pal vs Union of India & Ors.
Mr. Achin Kumar Majumder,
Mr. Pratik Majumder. ....For the petitioner.
Mrs. Soma Roy Chowdhury ....For the respondents.
The petitioner is an employee of the Railway Protection Force. When the petitioner was serving as an Inspector posted at the Asansol Division, a charge sheet dated 24th January, 2013 was issued against him under Section 9(1)(i) of the Railway Protection Force Act, 1957 read with Rule 153 of the Railway Protection Force Rules, 1987. The petitioner was directed to submit his statement of defense within 15 days. The petitioner by a communication dated 7th April, 2013 replied to the said charges. The charge sheet was thereafter not proceeded with and no enquiry was initiated by the authorities.
By an office order dated 8th July, 2014 the petitioner was promoted to the rank of Security Commissioner, Railway Protection Force.
Being a superior officer the petitioner was governed by the Railway Servant (Disciplinary & Appeal) Rules 1968 (DAR). No enquiry could have been proceeded against him in terms of the said charge sheet dated 24th January, 2013 issued under Rule 153 of the RPF Rules, 1987. The petitioner brought the aforesaid fact to the notice of the respondents by a letter written by him on 24th January, 2017.
2By an office order dated 21st June, 2018 the Principal Chief Security Commissioner dropped the charge memorandum dated 24th January, 2013 with the view to issue fresh charge sheet under Rule 9 of the Railway Servant (Disciplinary & Appeal) Rules 1968 on the same cause of action.
The petitioner objected to the issuance of fresh charge sheet by a representation dated 30th July, 2018. In response to the representation made by the petitioner the Principle Chief Security Commissioner by a communication dated 9th October, 2018 intimated the Director General, Railway Protection Force that since the initial process to issue charge sheet under Rule 153 of RPF Rules 1987 had been started by the then Chief Security Commissioner/Eastern Railway (now Principle Chief Security Commissioner), hence at this state withdrawal of proposal to issue fresh charge sheet under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 by the self-same officer will not be proper. The Principle Chief Security Commissioner recommended that the proposal for issuance of fresh major penalty charge sheet under Rule 9 may be dropped at this stage.
By a communication dated 4th December, 2018 the petitioner was intimated regarding issuance of fresh charge sheet against him. A fresh memorandum of charge dated 6th December, 2018 was issued against the petitioner on the self-same identical charges by the 3 Principle Chief Security Commissioner, Railway Protection Force under Rule 9 of the Railway Servants (Discipline & Appeal) Rules 1968.
The issuance of fresh charge sheet dated 5th December, 2018 is impugned in the instant writ petition.
The petitioner relies upon the circular dated 3rd December, 2018 and 6th December, 2018 issued by the Railway Board, Ministry of Railways to all the Principle Chief Security Commissioners, the General Managers of all Indian Railways relating to disposal of long pending disciplinary and appeal Rules (DAR) cases. The Railway Board desired that the Executives are expected to process the disciplinary cases seriously and adhere to a reasonable time line for taking such cases to a logical conclusion. In order to liquidate the major penalty proceeding pending for more than six months as one-time measure the head of the units was required to review all major penalty proceedings and the same was to be finalized by 15th December, 2018 by the respective disciplinary authority. The disciplinary authority was required to record the reasons for the delay in conclusion of the major penalty cases which are more than six months old. If the delay was attributable to the charged official the disciplinary authority was entitled to take ex parte decision following the notice procedure as per DAR of 1968 and if the delay was not on account of the charged official the disciplinary authority should process for closure of the case.
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The petitioner submits that the charges that have been levelled against the petitioner related to the period 2003 and initiation of the disciplinary proceeding in the year 2018 on the basis of the said stale charges cannot be sustained in the eye of law.
The learned advocate appearing for the respondents submits that the instant writ petition is not maintainable as the respondents have merely acted in accordance with the provisions of Rule 8 and 9 of the 1968 Rules. It has further been submitted that the charge memorandum issued on 5th December, 2018 does not violate the guidelines of the Ministry of Railways circulated by the Railway Board's letter dated 3rd December, 2018. The charge memorandum issued under Rule 153 of RPF Rule 1987 had to be dropped as the proceeding became faulty on the promotion of the petitioner.
The issue that falls for consideration in the present writ petition is whether after a lapse of five years a second charge sheet can be issued against a delinquent after withdrawal of the first charge sheet in respect of the self-same charges?
From the facts narrated hereinabove it appears that the charge against the petitioner dates back to an incident of the year 2011 when the petitioner allegedly submitted incomplete, misleading, false and evasive property return suppressing relevant information. The petitioner furnished his annual property return declaring 5 purchase of a property in the year 2003 at the cost of Rs. 3,00,000/- and thereafter constructed a multi-storied building thereon. The purchase and the construction were made without taking any prior permission/sanction of the competent authority. The source of finance was also not disclosed. The act on the part of the petitioner amounts to serious misconduct, disobedience of lawful orders of superiors, falsehood and breach of the RPF Rules, 1987 as well as the Railway Services (Conduct) Rules, 1966.
The petitioner then serving as the IPF/Asansol was issued a charge memorandum dated 24th January, 2013. The petitioner was transferred on promotion on 11th July, 2014 as the ASC/Howrah. The DAR case file of the petitioner was sent to his higher authority for taking further course of action. Being promoted in the rank of ASC the petitioner was guided by the Railway Servants (Discipline and Appeal) Rule, 1968. The petitioner though submitted his reply to the memorandum of charge on 7th April, 2013 the competent authority did not take any step to proceed with the said case for a considerable period of time.
On 24th January, 2017 the petitioner made a prayer before the Director General/RPF for dropping the memorandum of charge drawn up against him.
The petitioner was thereafter transferred from Northern Railway to the Eastern Railway on 15th May, 2017. The office of the Principle Chief Security 6 Commissioner/RPF, Eastern Railway Kolkata requested the Railway Board to take a decision with regard to the prayer submitted by the petitioner for dropping the charges against him by a letter dated 8th March, 2018. The Railway Board by a communication dated 1st June, 2018 intimated that the major penalty charge sheet against the petitioner cannot be dropped and requested to take further course of action as per the extant rules.
For the purpose of taking further action in the matter the original charge sheet issued against the petitioner under Rule 153 of the RPF Rules, 1987 was dropped to issue a fresh charge sheet under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 vide office order dated 21st June, 2018.
The petitioner submitted further representation on 30th July, 2018 requesting for withdrawal of the proposal to issue fresh charge sheet. The Railway Board forwarded the prayer of the petitioner to the Principle Chief Security Commissioner, Eastern Railway to analyse the prayer made by the petitioner and to take a decision whether to issue fresh charge sheet against him.
The Principle Chief Security Commissioner/RPF opined that the DAR proceeding was delayed due to administrative reasons. It was opined that issuance of fresh charge sheet upon dropping the earlier charge sheet after more than five years may lead to legal complications. It was recommended that the proposal for issuance of 7 fresh major penalty charge sheet may be dropped. On perusal of the recommendation of the Principle Chief Security Commissioner the Director General/RPF ordered that fresh charge sheet may be issued as a fresh case. The said order was communicated to the petitioner vide a letter dated 4th December, 2018.
The Railway Board adopted a policy decision on 3rd December, 2018 relating to disposal of the long pending DAR cases. The Board took a decision that in order to liquidate the large number of long pending DAR cases following course of action may be taken as one time measure. i) the GMs/DGs/DRMs/CWMs/Independent Heads of Unit shall review all major penalty proceeding that are more than six months and minor penalty cases that are more than three months old; ii) all cases should be finalized/taken to logical conclusion by 15th December, 2018 by the respective disciplinary authority. iii) GMs/DGs/DRMs/CWMs/Independent Heads of Unit shall review all such cases that could not be finalized by 15th December, 2018 by the disciplinary authority.
After careful review of all such cases that could not be finalized by 15th December, 2018 the unit head may take the decision to proceed for closure of the case in respect of major penalty cases more than six months old and if the delay is not attributable to the charged official.
The Principle Chief Security Commissioner has reviewed the case of the petitioner and opined that the 8 DAR proceeding may be dropped as the same has been delayed for a considerable period of time and the petitioner was not responsible for the said delay. The delay was absolutely because of administrative reasons.
Service condition of an employee is guided by the service rules of the organization/body where the employee is working. The said rules are applicable both for the employer and the employee. The rules are meant to be followed for upholding the discipline and decorum of the organization/body. The rules are required to be adhered to for maintaining a healthy working atmosphere. The employer and the employee both become aware of their respective functions, rights, duties and obligations.
The service rules have a provision to rectify/punish an erring employee. Once a proceeding is initiated the same cannot be left to be continued for an indefinite period. Initiation of a disciplinary proceeding itself is an indication that the employee must have been involved in some illegal activity. The same carries a stigma with it. Though it is true, that one cannot be held to be guilty, unless the charges brought against him are proved but the reality speaks of something else. The employee is always under constant pressure and anxiety with regard to the fate of his proceeding. Employees facing major penalty charges remain under the threat of losing their job. Law does not permit the employer to prolong a disciplinary proceeding for eternity for no plausible reason. 9
In the instant case charge sheet was issued against the petitioner in the year 2013, the same was not proceeded with. In fact, apart from issuing the show cause notice the proceeding did not proceed a step further. The petitioner was made to believe that the department was satisfied with his reply and did not intend to act in furtherance with the said charge sheet.
It was dropped in the year 2018 for issuing a fresh charge sheet on the self-same charges. Had the authority been really interested to prosecute the petitioner then it ought to have proceeded with the proceeding and ought not to have left the same unheeded for more than five years. Furnishing incomplete, evasive, false property returns, not disclosing the source of finance for purchase and construction of multistoried building is a serious allegation and accordingly a major penalty charge sheet was issued against the petitioner, but as long as the said charges are not proved no steps can be taken against the employee. No reason has been put forward for sitting over the said proceeding for so many years. Unexplained inordinate delay vitiates the proceeding.
Promotion was granted to the petitioner in the year 2014, though under order of Court, but there was no order restraining the competent authority to proceed with the disciplinary proceeding which was initiated during the pendency of the case relating to promotion. Promoting an employee implies that he had successfully performed in his 10 earlier post and accordingly he has been promoted.
Not proceeding any further with a disciplinary proceeding after receiving the reply in response to the show cause notice implies that the employer is satisfied with the reasons shown for the alleged act in respect of which charge sheet had been issued. Raking up the issue all over again after five years, that too, after the petitioner served a letter praying for dropping the charges, is not permissible. Had the petitioner not issued the letter, then it could have been that the authority would still have remained in their deep slumber. The law is not meant to come to the aid of an indolent litigant.
Had the authority been vigilant enough the proceeding against the employee would have been concluded long ago. Many errant employees are left scot- free for such lackadaisical, irresponsible and indifferent attitude of the employer. Times without number, there are varied oblique reasons for not proceeding with the disciplinary proceeding.
When the employer is a Government concern, then the persons responsible for the delay and laches to conclude a proceeding should be made accountable for the same. It will not be possible for the employer to keep the erring employee in the right track if the mechanism to deal such a situation does not function properly. Similarly, an arrogant officer may misuse his power and act illegally against a junior officer or staff taking advantage of non- 11
implementation of the service rules. The service rules should be followed strictly for proper administration of an organization otherwise the ultimate sufferer will be the public at large.
The circulars of the Railway Board dated December 2018 speaks of conclusion of the disciplinary proceeding within a fixed time span. The circular speaks of closure of the proceeding if the same is not concluded within the specified time. The proceeding initiated in 2013 cannot be dropped, to be reopened, all over again, in 2018. The proceeding dies a natural death if the same is not proceeded with diligently and concluded within a reasonable time. The reasonable time may vary from case to case, but there should be an attempt to draw a logical conclusion, in accordance with law and by following the principles of natural justice.
In view of the discussions made herein above the impugned charge sheet is set aside.
W.P No. 26 (W) of 2019 is allowed.
No order as to costs.
Urgent Photostat certified copy of this order be given to the parties, if applied for, on compliance of necessary formalities.
(Amrita Sinha, J. ) ``