IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5840 of 2005 GANESH PRASAD SINGH Versus THE UNION OF INDIA & ORS For the petitioner : Mr. Rana Ishwar Chandra, Advocate. For the Respondent : Mr. Bhupendra Narain Yadav, Advocate. ----------- 9. 4.7.2008. Heard learned counsel for the petitioner and the counsel for the Union of India. 2. Petitioner at the relevant time was serving as Head Constable at Malda Railway Station. He has filed this writ application against the appellate orders dated 3/7.10.2002 contained in Annexures- 8 and 9, whereunder dismissal order dated 28.6.1994 contained in Annexure-5 has been modified to the extent that he has been compulsorily retired with effect from 28.6.1994, the date of his dismissal. The aforesaid two orders have been assailed in this writ petition on the ground that the disciplinary authority as also the appellate authority did not apply their mind to the facts of the case and the punishment of compulsory retirement is too severe to be imposed as the charges levelled against the petitioner were non est. 3. It is submitted on behalf of the petitioner that the allegation against him is that while on seal checking and guarding duty at Malda Railway Station from 18.00 hours of 19.4.1991 to 6.00 hours of 20.4.1991 goods train No. DC/159 was detained at Maldah Railway Station on line No. 3 from 21/47 hours to 22/35 hours of 19.4.1991 for crossing of passenger train he failed to prevent and detect theft of huge quantity of cement bags from the wagon attached - 2 - with said goods train during his duty period and in order to shield himself from the said allegation he manipulated the seal checking book maintained at the Malda Railway Station by tearing its one page between page numbers 40 to 41. 4. The Inquiry Officer having conducted the inquiry submitted his report holding the petitioner guilty whereafter second show cause notice was served on the petitioner. In response whereto he submitted that the Inquiry Officer without application of mind has held him guilty as petitioner while on duty at the relevant time has promptly checked the goods train and entry to that effect was also recorded in the seal checking book and the allegation that he tore the page between pages 40 to 41 is wholly incorrect as there cannot be any page between pages 40 to 41. 5. The disciplinary authority did not take into account the aforesaid submission of the petitioner and proceeded to dismiss him under order dated 28.6.1994, Annexure-5. Perusal of the said dismissal order also does not indicate that the submission of the petitioner that he never tore any page between pages 40 and 41 was ever considered by the disciplinary authority. Petitioner having received the dismissal order filed appeal asserting aforesaid non- application of mind by the disciplinary authority. In appeal further reliance was placed on the order dated 26.2.2002 whereunder the other members of the checking party, namely, Ram Naresh Singh was reinstated in service by the appellate authority with further request that he also be given the same treatment which was given to Ram Naresh - 3 - Singh. The appellate authority, however, disposed of the appeal of the petitioner under orders dated 3/7.10.2002, Annexures-8 and 9 observing that his case is different from Ram Naresh Singh as he is also charged to have manipulated the seal checking book maintained at the Malda Railway Station by tearing one page between page Nos. 40 and 41 and in the light of the said finding modified the punishment of dismissal to compulsory retirement with effect from 28.6.1994. 6. Counsel for the petitioner during the hearing of this writ application submitted that from the records i.e. charge sheet, the punishment order as also the appellate order passed in the case of Ram Naresh Singh it would appear that the only distinction between the case of the petitioner and Ram Naresh Singh as has been found by the authorities of the Railways is that petitioner is further charged to have manipulated the seal checking book by tearing one page between Pages 40 and 41 and except the charge of manipulating the seal checking book, the case of the petitioner and the said Ram Naresh Singh is similar and as Ram Naresh Singh has been reinstated with full wages, petitioner should also have been given the same treatment. 7. This Court in order to verify the submission that the case of the petitioner and Ram Naresh Singh is similar gave several opportunities to the counsel for the Railways to file counter affidavit and make out the distinction between the case of the petitioner and said Ram Naresh Singh as the charge that petitioner tore out a page between page Nos. 40 and 41 appears to be non est because there cannot be any page between pages 40 to 41 which could have been - 4 - torn by the petitioner but the Railway Authorities in spite of several indulgences as is evident from different orders including the order issuing notice to them have not responded to file counter affidavit, accordingly this Court has considered the averments made in the writ application without the benefit of the counter affidavit from the Railway Authorities. From the memo of charge and the order passed by the disciplinary as also the appellate authority it is evident that the case of the petitioner and said Ram Naresh Singh is almost similar except that petitioner is charged to have torn a page between page Nos. 40 and 41 from the seal checking book which does not appear to be correct as there cannot be any page between pages 40 and 41 in the seal checking book. 9. In the circumstances, the appellate order dated 3/7.10.2002, Annexures-8 and 9 as also the original dismissal order dated 28.6.1994, Annexure-5 are set aside and the matter is remitted back to the appellate authority to again confirm from the records which of the page of the seal checking book was actually torn by the petitioner in order to manipulate the same and if it is found that petitioner has not torn any such page then the petitioner be also allowed the same treatment which has been given to Ram Naresh Singh. Final order in the light of this order be passed by the appellate authority as early as possible, in any case, within a period of one month from the date of receipt/ production of a copy of this order. 11. This writ application is, accordingly disposed of. Rajesh/ (V.N.Sinha,J.) - 5 -