SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Vijoy Kumar Shukla vs Union Of India & Ors on 6 September, 2019

IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side

Present :- Hon’ble Mr. Justice Md. Nizamuddin

W.P. No.9934 (W) of 2011

Vijoy Kumar Shukla
Vs.
Union of India Ors.

For the Petitioner :- Mr. Achin Kumar Majumder, Adv.

For the Respondents/Railways :- Mr. Shankar Ranjan Sen, Adv.

Judgement On :- 06.09.2019

MD. NIZAMUDDIN, J.

Heard learned Advocates for the Parties.

This Writ Petition has been filed challenging the impugned order of

suspension dated 21.12.2010 and charge-sheet dated 23.3.2011 passed by the

respondents/railway authorities.

Relevant facts in brief in this case are hereunder.

According to the petitioner, his case is that during his posting at RPF

Post, Panagarh under Asansol Division as a Head Constable of Railway

Protection Force of Eastern Railway, he was placed under suspension by an

order dated 21.12.2010 on the ground of contemplating Departmental

Proceedings.

Petitioner contends that he was served with a charge-sheet dated 10th

January, 2011 along with memorandum of charges and was asked to reply

within 10 days against the said charge-sheet dated 10th January, 2011 as

1
appears from Annexure ‘P-2’ to the Writ Petition, contents of the said charge-

sheet is as follows;

“HC/4923 Vijoy Kumar Shukla of RPF

Post/PAN is charged for discreditable

conduct, falsehood and serious dereliction of

duty in that-

(1) Case No. 81/2008 dated 26.2.2008

U/S 453, 3223, 504, 506 IPC was

registered at Meza Police Station,

District – Allahabad (UP) against

HC/4923 Vijoy Kumar Shukla by his

uncle and his family members for

land dispute and its ownership

which is to be allotted in the name

of his relative. But he suppressed

the fact and keeping the

administration in darkness. Though

he was asked to submit written

declaration in respect of pendency

of any Police/Criminal case but on

27.9.2010 he has given declaration

mentioning therein no

Police/Criminal case is pending

against him.

(2) On another case vide No. 286/2010

dated 4.10.2010 U/S 147/506 IPC

has been registered at Meza Police

Station, District – Allahabad (UP)

against him, but he did not bother

to inform the matter to the

2
administration and concealed the

fact.

Thus by above omission and commission, he

violated the code of behaviour from member

of the Force as laid down in Rule 146.3,

146.4 and 146.6 of RPF Rules, 1987.

Hence the charge under Rule 153.”

On perusal of the said charge-sheet it appears that it is based on a

declaration made by the petitioner on 27.9.2010 that no criminal cases are

pending against him and that he has suppressed the fact of pendency of the

aforesaid criminal cases against him and according to the respondent

authorities he has violated the Rule 146.3, 146.4 and 146.6 of RPF Rules,

1987.

Petitioner has vehemently objected to the aforesaid charges mainly on

the ground that the alleged offences under Section 452, 323, 504, 506 etc. of

the Indian Penal Code pending before Meza Police Station, District – Allahabad

(UP) is not relating to or connected with his duties and responsibilities while

discharging his duty and the alleged offences are absolutely related to personal

affairs and domestic problem of the petitioner and he has been falsely

implicated in the said criminal proceeding and he has not been held guilty in

those charges and he has also strongly objected to the initiation of the

aforesaid Disciplinary Proceedings on the ground that the very basis and

foundation of the alleged charges is alleged declaration which he has never

made and signature on the alleged declaration is forged and he has disowned

those declarations which is handwritten in English by someone else while at

the bottom of the said declaration the alleged signature of the petitioner in

Hindi is not of him. Petitioner had filed reply to the said charge-sheet on 4th

March, 2011. Petitioner contended that without considering and disposing the

said reply of the petitioner and intimating the outcome of his reply/objection,

3
respondent authority has issued second charge-sheet on 23rd March, 2011

which is exactly similar and identical to the charge as contained in the earlier

charge-sheet dated 10th January, 2011.

Petitioner contends that such action on the part of the respondents

authorities of not considering and disposing the objection/reply of the

petitioner dated 4th March, 2011 and without intimating the outcome/decision

of the said objection/reply, issuance of the second charge-sheet dated 23rd

March, 2011 is illegal and in gross violation of principles of natural justice.

The petitioner contends that the respondent authorities cannot

investigate or initiate any Departmental Proceedings on the basis of those

alleged pending criminal cases which have nothing to do with his duty and

based on a fake and forged declaration and in support of his contention he has

relied upon the decision of a Division Bench of this Court in the case of Amit

Biswas -vs- State of West Bengal reported in 2007 (2) CHN, paragraph 19 of the

said judgment is as follows:

“…… (19) It is now settled law that

parallel proceedings, both in criminal Court

and by employer, are permissible only in

cases where offence alleged is against the

person or property of employer, co-

employee, in course of employment, at the

place of employment or in connection with

the employment of the employee. In the

aforesaid situation, even if an employee is

acquitted in a criminal proceeding before

the Court of Law, an employer can

nevertheless proceed with the departmental

enquiry. For instance, if on an allegation of

defalcation of employer’s money, in the

criminal proceedings due to faulty police

4
investigation the employee is acquitted, an

employer can reasonably contend that he is

not satisfied with the police investigation

and he having suffered, he has the right to

start parallel departmental enquiry against

the employee. Similar is the cases where it

relates to any offence against the property

or person of the co-employees or if the

incident occurred in the places of

employment; but , in a situation like the

present one, we cannot conceive of

initiation of departmental enquiry which

has nothing to do with the employment of

the employee. If we accept the reason

assigned by the Tribunal, then even in a

murder case or a case of rape, after an

employee is acquitted, the employer will get

jurisdiction to probe those incidents which

is specifically barred under Section 4 of the

Code of Criminal Procedure.”………

Petitioner has also relied on another decision of the Division Bench of

this Court on the similar proposition of law in the case of Swapan Kumar Maity

-vs- South Eastern Railways Ors. reported in 2007 (4) CHN page 616 on the

following paragraphs of the said judgment:

“……. (29) If any duly-appointed

railway employee of a sanctioned post is

involved in an offence under Section

498A read with Section 306 of the Indian

Penal Code which has nothing to do with his

official duty as an employee of the railway,

5
the Railway Administration cannot

terminate the service of such an employee so

long the Criminal Court does not hold him

guilty of such offence. Even in such a case,

so long he will be detained under police

custody or jail custody pending investigation

or trial, he will be deemed to be under

suspension and after he is released on bail,

it is for the Railway Authority to decide

whether he should be still kept under

suspension till the disposal of the trial.

Such decision depends upon the nature and

the gravity of the offence alleged.

(30) Even in such circumstances, there

is no scope of starting any parallel

departmental enquiry against the indicted

employee during investigation or trial as the

offence is not alleged to have been

committed either in course of employment or

against the property or the person of the

employer or any co-employee in course of or

in connection with performance of the

official duty. In this connection, it will be

profitable to refer to the following

observations of the Apex Court in the case

of Tata Oil Mill Ltd. v. Workmen :

“The first point which calls for our

decision in this appeal is whether the

Tribunal was right in holding that the facts

proved against Raghavan did not attract the

6
provisions of Standing Order 22(vii) of the

Certified Standing orders of the appellant.

The said standing order provides that

without prejudice to the general meaning of

the term “misconduct”, it shall be deemed to

mean and including, inter alia,

drunkenness, fighting, riotous or disorderly

or indecent behaviour within or without the

factory. It is common ground that the

alleged assault took place outside the

factory, and, in fact, at a considerable

distance from it. The Tribunal has held that

the assault in question can be treated as a

purely private matter between Reghavan and

Augustine with which the appellant was not

concerned and as a result of which Standing

Order 22(viii) cannot be invoked against

Raghavan. Mr. Menon who has appeared for

the respondent before us, has contended

that in construing standing order of this

character, we must take care, to see that

disputes of a purely private or individual

type are not brought within their scope. He

argues that on many occasions, individual

employees may have to deal with private

disputes, and sometimes, as a result of these

private disputes, assault may be committed.

Such an assault may attract the relevant

provisions of the Indian Penal Code, but it

does not fall under Standing Order 22(viii).

In our opinion, this contention is well-

7

founded. It would, we think, be

unreasonable to include within Standing

Order 22(viii) any riotous behaviour without

the factory which was the result of purely

private and individual dispute and in course

of which tempers of both the contestants

became hot. In order that Standing Order

22(viii) may be attracted, the appellant

should be able to show that his disorderly or

riotous behaviour had some rational

connection with the employment of the

assailant and the victim.”

(31) According to Article 311 (2) of the

Constitution of India, if a Criminal Court

passes an order of conviction, that itself is a

ground for termination of his service and

there is no necessity of initiating any

departmental proceedings against a regular

employee.

(32) From the aforesaid position of law

it is clear that at the most, a regular

employee, in a situation like the present

one, can be kept under suspension till the

disposal of the criminal proceedings even if

he is released on bail in the event the

offence alleged has nothing to do with his

duty in the capacity as an employee of the

railway and not committed in course of or in

connection with the employment but he

cannot be at any rate dismissed from service

8
before he is found to be guilty by a

competent Court.”………..

Respondent authorities have filed their affidavit-in-opposition to the Writ

Petition defending the impugned action of suspension and issuance of charge-

sheet by the respondent authorities. On perusal of the said affidavit-in-

opposition from nowhere it appears that the respondent authorities have

disposed of the aforesaid objection/reply of the petitioner dated 4th March,

2011 and has communicated their decision on the said objection/reply before

issuing second charge-sheet dated 23rd March, 2011 which is exactly copy of

the first charge-sheet dated 10th January, 2011 and at least they should have

annexed the same to their affidavit-in-opposition if at all they have considered

and disposed of the petitioner’s said objection. Learned Advocate for the

respondent authorities contends that the allegation of the petitioner that the

charge-sheet issued on 23rd March, 2011, is not the second charge-sheet and

the allegation of the petitioner that on 10th January, 2011, the first charge-

sheet issued was not a charge-sheet rather it was a show-cause notice. Even

assuming that earlier one was not a charge-sheet and it was a show-cause

notice even then nowhere in the affidavit-in-opposition respondents have stated

that reply/objection of the petitioner to the said show-cause notice was

considered and disposed of by the respondent authorities by giving opportunity

of hearing to the petitioner and their decision on the said objection/reply was

communicated to the petitioner before issuing the charge-sheet dated 23rd

March, 2011 at least this much formality of observing principles of natural

justice should have been observed by the statutory authority. In my view

inviting the petitioner to submit the written statement to memorandum of

charge/show-cause dated 10.01.2011 issued by the respondent authorities

could not be an empty formality and without disposing the reply/objection to

the said show-cause notice, issuing further memorandum of charge and

charge-sheet having the same contents is bad in law and in violation of

principles of natural justice.

9

Respondent authorities have not annexed to their affidavit-in-opposition

any document particularly the alleged disputed declaration which is the sole

basis of initiation of the disciplinary proceeding against the petitioner,

genuineness and authenticity of which has been seriously disputed by the

petitioner, and it should have been put on record of the Court by the

respondents at least by annexing the same to their affidavit-in-opposition.

Learned Advocate for the respondent authorities has relied on a decision

enclosed to their written notes of arguments, in the case of Kendriya Vidyalaya

Sangathan Ors. -vs- Ram Ratan Yadav reported in (2003) 3 SCC 437.

Before proceeding in this matter one important fact which is required to

be considered is that during the pendency of the Writ Petition the aforesaid

impugned suspension order has been withdrawn by the respondent

authorities. So, the issue of suspension and relief against the said order of

suspension does not require any consideration in this case.

Considering the submission of the parties, perusal of record and

decisions cited by the parties, according to me following issues arise for

adjudication in the instant writ petition;

Firstly, whether issuance of the second charge-sheet/charge-sheet

dated 23rd March, 2011 by the respondent authorities against the

petitioner without considering and disposing the objection/reply dated

4th March, 2011 to the show-cause/first charge-sheet dated 10th

January, 2011 which the respondent authorities themselves have asked

the petitioner to submit and proceeding with Disciplinary Proceedings is

justified in the facts and circumstances of the case?

Secondly, whether on the facts and in the circumstances of the

case respondent authorities were justified in proceeding with the

disciplinary proceedings under Section 153 of the R.P.F. Rules, 1987 on

the basis of the alleged false declaration dated 27th September, 2010

10
made by the petitioner about pendency of the criminal case in question

against him not related to his duty which is the sole basis of issuance of

show-cause/charge-sheet without establishing the genuineness and

authenticity of the said declaration?

In my view action of the respondent authorities in issuing charge-sheet

and proceeding with the disciplinary proceeding without considering and

disposing the objection/reply of the petitioner to the aforesaid show-cause

notice issued by them and without communicating the petitioner their decision

on the said reply to the show-cause notice is in violation of principles of natural

justice and is bad in law.

So far as the second issue of issuance of the second charge-

sheet/charge-sheet dated 23rd March, 2011 is concerned, foundation or basis

of which is on the alleged offence of making false declaration contents of which

is in hand written by someone else in English on a plain paper and not in any

printed form and signature on it which is in Hindi is not his signature and is

forged according to the petitioner and genuineness and authenticity of which is

highly disputed by the petitioner, considering such facts and circumstances,

according to me it goes to the root of the matter and since petitioner has

seriously disputed his signature which is in Hindi and alleged it as forged and

he is also disowning the contents of the alleged declaration which is not in a

specified printed pro-forma and which has not been annexed by the respondent

authorities in their affidavit-in-opposition and now Xerox copy of the same has

been placed before me for the first time at the time of hearing which is not in a

printed form and is in a plain sheet and is undated and it has been admitted

by the respondent authorities that the contents of that declaration which is in

English was written by some other officer on the request of the petitioner but

signature on the same in Hindi is of the petitioner.

According to me in view of such facts and circumstances of the case

without establishment of the genuineness and authenticity of the said

11
document/declaration by examining it by an independent handwriting expert

and without disposing the aforesaid objection of the petitioner to the show-

cause, by the respondent authorities by passing a reasoned and speaking order

after giving opportunity of hearing to the petitioner it was not proper on the

part of the respondent authorities to issue the charge-sheet dated 23rd March,

2011. Apart from the fact that the offence under the criminal provisions

referred by the respondent authorities in the said declaration are not related to

the duty of the petitioner and more so when the said criminal cases are

pending before the appropriate criminal forum and has not been finally

adjudicated and petitioner has not been held guilty in those offences, merit of

those criminal cases cannot be adjudicated by the respondent authorities

separately. In this case limited scope of initiating disciplinary proceeding

against the petitioner can be only on the basis of the alleged false declaration

after the authenticity and genuineness of the same is established on

examination by an independent hand writing expert and after it is found that

the contents of the said declaration and signature therein is genuine and after

the aforesaid objection/written submission of the petitioner is disposed of by

passing a reasoned and speaking order and only then any further action of

disciplinary proceeding can be justified or any further appropriate action in

accordance with law can be taken by the respondents against the petitioner.

The judgment relied upon by the respondents in the case of Kendriya

Vidyalaya Sangathan (supra) is distinguishable and is not applicable to the

facts of the present case since in that case employee was not a permanent

employee and he was on probation and genuineness of the contents and

signature of the employee on the declaration was not disputed by the employee

and the issue of non consideration of objection/reply of employee, by the

employee was not involved in the said case.

Considering the discussion made above I pass the order directing the

respondent authorities concerned to consider and dispose the written

statement/objection of the petitioner dated 4th March, 2011 being Annexure ‘P-

12
3′ to the Writ Petition to the charge-sheet/show-cause dated 10th January,

2011 issued by the respondent authority concerned by passing a reasoned and

speaking order in accordance with law after giving an opportunity of hearing to

the petitioner and also to get the alleged false declaration dated 27th December,

2010 by the petitioner examined by an independent handwriting expert within

three months from the date of communication of this order and after the

authenticity and genuineness of the said declaration is established, respondent

authorities will be free to proceed with the disciplinary proceeding against the

petitioner in accordance with law.

The Writ Petition W.P No. 9934 (W) of 2011 is accordingly disposed of.

There will be no order as to costs.

Urgent certified photocopy of this judgment, if applied for, supplied to the

parties upon compliance with all requisite formalities.

(MD. NIZAMUDDIN, J.)

13

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation