Ishwar Singh v. Union of India; Ram Kumar v. Union of India

1. The petitioner Ishwar Singh was removed from service vide order dated February 23, 1987, after he was charge-sheeted and evidence was led before Inquiry Officer; the report being submitted to him and his response considered.

2. The indictment was on the charge of being grossly negligent while on duty which resulted in theft ofrailway property.

3. In appeal, the penalty was reduced to one of compulsory retirement W.P.(C)Nos.2762/2013 & 3331/2013 2015:DHC:10933-DB from service, a fact denied by learned counsel for the petitioner, but affirmed by the respondent and made good with reference to the pleadings in the counter affidavit.

4. Thus, we shall be treating Ishwar Singh as having been compulsoiy retired from service.

5. For the same lapse, petitioner Ram Kumar was likewise visited with the penalty of removal from service which was converted to compulsory retirementby the AppellateAuthority.

6. The matter rested. The penalties imposed upon the two in the year 1987 were not questioned.

7. The two petitioners along with five other persons were committed to trial for having committed an offence punishable under Section 3 of the Railway Property (Unlawful Possession) Act, 1966. The same pertained to theft committedwhen the petitioners were on guard duty.

8. When the two petitioners were on duty at the Delhi Kishanganj Railway Station, a consignment of several bales of cloth which were not taken delivery of by the consignee, and after following the procedure of law were declared to be railway property, were required to be deposited at the godown at the railway station for ftirther action. The seals of the wagon were found tampered. Six bales were found missing. FIR was lodged. Two out of five persons sent up for trial had confessed to the commission of the crime. Recoveries were made from the said two. As regards the petitioner and the other three persons the only evidence was of the disclosure statements made by the two accused.

9. Vide decision dated June 02, 2010 passed by the learned Metropolitan Magistrate noting that one accused named Gumam Singh has expired and hence proceedings against him had abated, holding that recovery of the W.P.(C) Nos.2762/2013 &3331/2013 -1* stolen property was proved only againsttwo accusednamed Satyawan Singh and Phool Singh, they were convicted. Two appellants and the two other surviving co-accused were acquitted. The learned Trial Judgehas noted that as against the appellant the only evidence was of the two being on duty when the theft took place and thus has held that gross negligence on their part being established would not constitute an offence punishable under Section 3 ofthe Railway Property (Unlawful Possession) Act, 1966.

10. The guidelines fi-amed by the railway authorities create a right in favour of a railway employee, whose services had been terminated at a domestic inquiry if for the incident in question and the wrong alleged, the personis acquitted at a criminal trial.

11. After they were acquitted, the petitioners made representations which were rejected by the Competent Authority holding that the matter being old the record was weeded out.

12. Whereas the petitioners may be right that it is the duty of the department to retain the Record ofEnquiry and other relevant record if the department is aware that a railway servant is facing a criminal trial for the same wrong on which a departmental action was taken, but in the facts of the instant case nothing turned thereon.

13. We have before us the orders levying penalty clearly recording that the charge against the petitioners at the domestic inquiry was one of negligence. The order records that evidence establishes that the petitioners were on duty in the night when theft took place, a fact not disputed by the petitioners before us today. That the petitioners were charged at the criminal trial on the basis of confessional statements made by two persons from whom the stolen property was recovered of stealing railway property, was not the charge at which disciplinary action was taken at the domestic level. W.P.(C) Nos.2762/2013 &3331/2013 Page 3of[4]

14. While dismissing the two writ petitions, qua petitioner Ishwar Singh we would simply observe that his counsel has prayed to us that penalty upon Ishwar Singh and Ram Kumar cannot be different. Counsel insists that Ishwar Singh was removed from service.

15. We take on record the pleadings in the counter affidavit filed in the writ petition filed by Ishwar Singh to the effect that the appellate authority reduced the penalty to one of compulsory retirement. We would advise Ishwar Singh to straight away go to the Indian Railways and do the needful required in view of the fact that the penalty levied upon him is one of compulsory retirement.