WP(C) 2131/2004 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA 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 03.01.2001 (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 pe nalty of compulsory retirement from service. The statutory appeal preferred by t he petitioner has also been dismissed by order dated 26.12.2003 (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 17.10.2001. Thereafter he was served with memorandum of charge sheet dated 10.02.2003. The charge alongwith imputation le velled 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 No te 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 load ed with valuable goods. On 23.07.2001 UP/NGC/Sugar/Special arrived New Guwahati at 23.20 hrs. with 40 loaded wagons of sugar & placed at line No. 1 with soal Nu t belt intact condition. There after on the following night of 24.07.2001 police patrolling party of Chandmari PS recovered 8 bags of sugar from the house of o ne Pachu Sah residing at New Guwahati BG/Goods/Shed area. The said recovery of s ugar bags were suspected to be stolen from wagon No. SEB No. A-37170 & SRB No. 4 420 stabled at line No. 1 or BG unloading line. Accused Pachu Sah & his wife Sm ti 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, H d. Constable /NGC(P) had the connivance with criminal for which he is liable for punishment under Rule 153 of RPF rules 1987. IMPUTATIONS: STATEMENT OF ALLEGATIONS: On 23.07.2001, 40 wagons of sugar arrived New Guwahati by UP/HGC/Sugar/Special at 23.20 hrs. & placed on line No. 1of BG/Goods shed fo r unloading. All the 40 wagons bears seal nut bolt & body intact. On the followi ng night of 24.07.2001 police patrolling party of Chandmari PS recovered 8 bags of sugar bearing stencils mark on the body of the bags as SULPHYTATION-TARHA GA R (TSS) INDIA NET WT- 100 kg. 1999-2000 from the house of one Pachu Sah residing near by New Guwahati/Goods shed area. While unloading the wagon No. SEBCNA -371 70 & SRBCNA-44249 containing sugar seal intact stabled at line No. 1 or BG/Goods shed yielded 12 bags & 6 bags sugar short respectively. The shortage were confi rmed by CCS/HGC & Sr. CC/MGC vide their message No. CC/NGC/BG/434, 2001 & BC/NGC /BG/435/2001 dated 24.07.2001 respectively. One enquiry it was revealed that the stencil mark bearing by the re-covered sugar bags by police & the sugar bags un leaded from wagon No. SEBCNA-37170 & SRBOTA-44249 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. S EBCNA-37170 & SRBCNA-4449 at line No. 1 of BG/Goods shed on the morning of 24.07 .2001 before arrival of on duty unloading goods clerk to omit the sealing condit ion of the wagons. Thus, D.N. Deka is liable for punishment under rule 153 of RP F Rules, 1987. 4. In response to the said charge sheet, the petitioner submitted his writt en statement of defence and being not satisfied with the explanation furnished b y him, the disciplinary authority decided to hold the enquiry. On conclusion of the enquiry, the enquiry officer submitted his report holding the petitioner gui lty of the failure in detecting the case of theft of sugar bags (8 bags) from t he 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 represen tation and thereafter the disciplinary authority by its impugned order dated 03. 01.2003 imposed the penalty of the compulsory retirement from service. The statu tory appeal preferred by the petitioner also stood dismissed by order dated 26.1 2.2003. Challenging the said two orders, the petitioner filed the instant writ p etition. 6. The writ petition was admitted for hearing on 25.03.2004 and it was dism issed for default on 10.10.2007 as none appeared to press the petition. However, the writ petition was restored to file by an order passed in Misc. case No. 409 1/2007. Thereafter also the matter was taken up on 19.12.2011, but there was no representation on behalf of the petitioner. Be that as it may, the writ petition was taken up on 30.05.2012 and thereafter again taken up today. 7. I have considered the submission made by the learned counsel for the par ties and have also perused the relevant materials including the disciplinary pro ceeding file. The charge that was levelled against the petitioner has been noted above. The enquiry officer did not find the petitioner guilty of the basic char ge levelled against him. Discussing the oral testimony of the witnesses examined on behalf of the disciplinary authority, the enquiry officer found that the pet itioner 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 n amed 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 d iscussion of the evidence on record, the enquiry officer formed the following op inion 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 reg ularly at 06.00 Hrs. on 23.07.2001 he attended his census duty at 8.25 Hrs. vide DE No. 19 of RPF/Post/NGC and off from duty at 19.42 Hrs. vide De No. 57 and co mpleted only 21 Nos. of loads detained at NGC yard for despatch. On 24.07.2001 h e attended his census duty at 9.35 Hrs. vide DE No. 27 at RPF/Post/NGC. He was o ff from duty at 20.10 Hrs. vide DE No. 49 and completed checking of only 10 stab led wagons. Unloading of wagon No. SEBCN-37017 and SRBCN-44249 continued from 8.00 Hrs. of 2 4.07.2001 on line No. 1 of Goods shed of which wagon No. 37017 was subsequently detected sealing tap in tempered condition and without Nut bolt. Had he attended his duty in time at 06.00 Hrs. On 24.07.2001 he could have detected the defecti ve 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 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 pro ved. 8. From the above, what is seen is that the enquiry officer while not holdi ng 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 petitio ner 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 establis hed 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 23.07.2001 40 wagons of sugar arrived at New Guwahati on 23.20 hours and were placed at line No. 1. O n the following day, i.e. on 24.07.2001, RPF patrolling party recovered 8 bags o f sugar from the house of one Shri Pachu Sah residing near New Guwahati good she d area. In the particular wagon there was shortage of sugar bags which was confi rmed by the Chief Goods Supervisor. On enquiry, it was revealed that there was t empering 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 pet itioner had managed to open the wagon at line No. 1 in the morning before arriva l of the unloading clerks. Accordingly, the charge was levelled against the peti tioner under rule 153 of RPF Rules, 1987. 10. 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 can not 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 l evelled against the petitioner could not be established in the enquiry, but in t he 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 hi m to deny the same by way of adducing the defence evidence and cross examining t he witnesses examined on behalf of the disciplinary authority. In the instant ca se, the charge of negligence of duty to detect the case of theft and consequentl y failure to inform the higher authority about the incident was never levelled a gainst 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 wi tnesses examined on behalf of the disciplinary authority. 12. The petitioner could not have been held guilty of a charge that was neve r levelled against him. If there was any material attributing negligence on duty to the petitioner, strict and definite charge ought to have levelled against hi m 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 enq uiry 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 ch osen time. The party charged on census duty was primarily responsible for checki ng the wagons stabled in the yard particularly when the wagons are not being unl oaded and to make sure that he detects any variation in the seal condition of th e 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 hi s wife Smt. Sarmila Sah, the disciplinary authority observed in the impugned ord er as to why they had named the petitioner in their statement made during the in vestigation. 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 f ound it difficult to hold the petitioner guilty of the charge of theft. Law is w ell settled that the disciplinary authority, if disagrees with the findings reco rded by the enquiry officer, such disagreement notes/observations must be forwar ded to the delinquent enabling him to make representation against the notes of d isagreement. In the instant case the said procedure was not followed and the dis ciplinary authority took into consideration the statement of the said two witnes ses 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 c ategorical statement that in the enquiry the prosecution could not prove the inv olvement 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 produ ced before the enquiry officer, but in their oral testimony they denied involvem ent of the petitioner. 16. The appellate authority without considering the grounds urged in the app eal 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 D SC/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 e nquiry of the preceding is concerned. The enquiry officer and the Disciplinary A uthority, i.e. ASC/Guwahati and DSC/Lumding found the charges hve been proved an d beyond doubt. Initially, the local police had registered the case against the outsiders in which the appellant Shri Dwijendra Nath Deak was named by the accus ed 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 comp ulsory retirement from service. This being the fact, I found no ground to interf ere with the decisions of the Disciplinary Authority and hence the decision of t he 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 03 .01.2003 (Annexure-V) passed by the disciplinary authority and the order dated 2 6.12.2003 (Annexure-VII) passed by the appellate authority, are not sustainable in law and accordingly they are set aside and quashed. Consequently, the writ pe titioner 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 year s. 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 negligen ce 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 negligen ce part was not attributed to the petitioner while framing the charge. Consideri ng all these aspects of the matter, I am of the considered opinion that the peti tioner is not entitled to back wages. However, he will be entitled to notional f ixation of pay with continuity in service and other consequential service benefi ts. 19. The writ petition is allowed to the extent indicated above. However, the re shall be no order as to costs.