WP(C) 5171/2004 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. B. Goswami, learned counsel appearing for the petitioner. Al so heard Ms. B. Devi, learned Standing Counsel representing the respondent railw ays. 2. The petitioner who served as a Sub-Inspector in the Railway Prot ection Force (RPF) challenges the penalty order dated 30.11.2002 passed by the D ivisional Security Commissioner of the RPF, NF Railway, Lumding, whereby the pun ishment of reduction in rank from Sub-Inspector (S.I) to Assistant Sub Inspector (ASI) has been ordered and his pay has been lowered to Rs.5500/- from Rs.6200/- . However the Appellate Authority by its order dated 9.4.2003 has reduced the pa y reduction to Rs.5800/- instead of Rs.5500/-, as was earlier ordered by the Dis ciplinary Authority. The petitioner also challenges the inquiry finding dated 18 .8.2002 whereby the inquiry officer found him guilty of the charges. 3.1 A Disciplinary Proceeding was drawn up against the petitioner wi th a Charge Memo dated 14.6.2002 containing the following article of Charge : Gross neglect of duty on the part of Shri G.N. Baishya, SI/RPF/HBN in t hat he failed to prevent the theft and take necessary follow up action on detect ion of Seal defect of wagon No. WRBCN A-973671 C/Sugar Ex-STR to HBN causing the ft of 32 bags Sugar valued at Rs.16,000/- 3.2 No opportunity was afforded to the delinquent to reply to the ch arge and by the Charge Memo of 14.6.2002 itself, one Ashok Chakraborty was nomin ated as an enquiry officer and the enquiry was scheduled on 25.6.2002. 3.3 In the enquiry finding given on 18.8.2002, charge was found to b e established and on the basis of the said finding, the Disciplinary Authority i nflicted the impugned penalty on the delinquent. 4.1 Arguing for the petitioner, Mr. B. Goswami contends that the dis ciplinary proceeding stands vitiated in as much as no opportunity was afforded t o the delinquent to respond to the Charge Memo dated 14.6.2002 and an enquiry wa s straightway ordered in to the charges. 4.2 The learned counsel also submits that the Divisional Security Co mmissioner directed the mode and manner of conducting the investigation as well as the disciplinary proceeding and accordingly the investigation of the crime of theft and the disciplinary proceeding were conducted on the basis of extraneous pressure and not on the basis of objective consideration. 4.3 It is further contended that the delinquent as the Sub-Inspector of RPF was not the Post Commandant and accordingly under Rule 221.1 of the Rail way Protection Force Rules, 1987 (hereinafter referred to as the Rules ), it wa s not his responsibility to register a crime and the said task is required to be discharged by the higher officer i.e., the Post Commandant. 4.4 Mr. Goswami points out that immediately after the theft of sugar from the wagon was detected, the petitioner had informed his superior and on th at basis a crime was registered in the unlocalized Crime Register and therefor e it cannot be said that the delinquent was negligent in performance of his duti es as the S.I. of the RPF posted at Haibargaon station. 4.5 The counsel submits that when the wagon arrived at the Haibargao n railway station, the seal on the wagon was suspected to be R.N.I. and in suc h circumstances, the possibility of the theft of sugar taking place at an earlie r transit station before the train arrived at Haibargaon station cannot be ruled out. The petitioner contends that since the theft might have occurred at New Ja lpaiguri (transit station), the direction of the Divisional Security Commissione r to register a crime in the localized Crime Register at Haibargaon station wh ere the delinquent was posted, was an undue interference because of which, the p roceeding is vitiated. 5.1 Ms. B. Devi, learned counsel appearing for the Railway authoriti es submits that as there was possibility of the theft having occurred at Haibarg aon station and since the delinquent was responsible for security as the Sub-Ins pector of RPF in that station, he has been rightly found guilty of the charge of failure to prevent theft and to take necessary action to investigation the crim e. 5.2 Referring to statement of the unloading staff at Haibargaon stat ion at the time of the arrival of the goods train, Ms. Devi contends that the se al in the concerned wagon was intact and therefore the delinquent was rightly he ld responsible for being negligent in duty. 6. From the materials on records, it is seen that at the New Jalpai guri Station, the goods train was detained for over 26 hours and there is eviden ce on record to show that proper sealing of the wagons could not be established at the New Jalpaiguri Station. In fact when the wagon arrived at Haibargaon stat ion on 27.6.2001 the seal checker detected the wagon as L/side E/door R/Seal su spected to be RNI and RI W/D SRI & F/D, R/Side B/DSRI. This shows that when the wagon arrived, its seal was already tempered with. Therefore there is distinct possibility of the theft of the sugar having taken place even before the wagon r eached the Haibargaon station. Under such circumstances to hold the delinquent g uilty of deficiency in preventing theft, when the theft may not have taken place at Haibargaon station, can hardly be logical. 7. That apart, if the contention of the railway counsel is accepted that wagon seal was intact at Haibargaon station, the theft could not in that e vent, have taken place at Haibargaon station where the delinquent was posted. Th us even on this count, the sugar theft can’t be attributed to any lapses on the part of the delinquent who was posted as an ASI of the RPF at the Haibargaon sta tion. 8. Logically if the theft was only detected at Haibargaon, and the place of occurrence was some other station, the case should have been registered in the unlocalized crime register which in the present case was done as per t he Rules. But subsequently at the instance of the Divisional Security Commission er, a 2nd case was registered in the localized crime register . This shows the undue interference of the higher officer in the case of investigation. The mater ials which points towards the theft having occurred at any of the earlier statio n(s) before the wagon reached Haibargaon station was deliberately ignored and in such circumstances to hold the petitioner to be negligent, indicate the biased approach of the Disciplinary Authorities. 9. In his report of 25.5.2002, the Post Commandant had indicated N ew Jalpaiguri as the place of occurrence of theft while the wagon was detained t here 26 hours. But the officer (S.I.) of the RPF was forced to take a different stand on the direction given by the Divisional Security Commissioner on 5.6.2002 , who directed that crime be registered under the localized head and due compl iance was made by the Post Commandant by registering a local crime, instead of t he earlier entry in the Unlocalized crime register. Thus the investigation of the case was shifted towards Haibargaon where the delinquent was posted through undue intervention of the Divisional Security Commissioner. 10. Further the delinquent was found to have been deficient in not r egistering a crime by ignoring the fact that a crime was actually registered und er the unlocalized crime register , even before undue interference was made by the Divisional Security Commissioner on 5.6.2002. 11. Having regard to the mode and manner of conducting the inquiry a nd also the undue intereventioin of the Divisional Security Commissioner, I am o f the considered opinion that the disciplinary proceeding stood vitiated in this case since the enquiries were pushed in a particular direction through interfer ence of the Divisional Security Commissioner as if to protect the real culprits and officials at another station. 12. Additionally the delinquent was not given any opportunity to res pond to the charge(s) and the inquiry was straightway ordered into charges. This shows undue haste and non application of mind by the disciplinary authorities. 13. The delinquent was only S.I. and was not functioning as Post Com mandant. Therefore he cannot be said to be guilty of the charge of either neglig ence of duty in failing to register a case (as it was not his responsibility und er the Rules), nor he can held guilty of negligence in investigation. Accordingl y I am of the considered opinion that the charge against the delinquent was wron gly attributed and no punishment could have been inflicted against the delinquen t, on the basis of the purported guilt finding, based on such charges. 14. Having concluded thus, I find that the delinquent has made out a strong case for interference by the Court. Accordingly the impugned penalty ord er dated 14.6.2002 of the disciplinary proceeding and the order of Appellate Au thority recorded on 9.4.2003, are set aside and quashed. 15. On the question of relief, since the petitioner has already reti red from service on 31.1.2003, the respondents are directed to give all conseque ntial financial benefits to the petitioner by treating him to have retired from the post of S.I. of the RPF at the time of reaching the age of superannuation. 16. The writ petition stands allowed accordingly. No cost.