S. BANERJEA, J

(1).-BOTH the appeals having arisen out of the same judgment and order passed in Civil Rule No. 4822 (W)/77, the same have been, heard analogously and will be governed by the same judgment. Both the appeals having arisen out of the same judgment and order passed in Civil Rule No. 4822 (W)/77, the same have been, heard analogously and will be governed by the same judgment.

(2) THE writ petitioner, who is the appellant in F. M. A. T. No. 2318/94 moved a writ application challenging the entire disciplinary proceeding initiated against him, including the finding of the Enquiry Officer, the second show cause notice, the final order passed thereunder as also the appellate order dismissing the writ petitioner from service.

(3) THE disciplinary proceeding was initiated against the petitioner, who was a head Rakshak of the Railway Protection Force at Adra, South Eastern Railway on the following charges :-

"ex. Md. Rj. 2689 R. P. Singh was chargesheeted under the Rule 44 of KPF Rules by ASO/adra. The charges and statement of allegation read as follows :-charge Serious neglect of duty slack supervision and misconduct in that Hd. R. K. 2689 R. P. Singh while on party NCO duty from 08/08 hrs. at Burnpur Yard on 14. 4. 75. 3 (three) bags of wheat were recovered by Sri K. S. S. Dutta, SI/rpf/burnpur from Burnpur Yard at about 03/00 hrs. in between line No. 5 and 6. 3 (three) open box wagons containing wheat covered with tarpoline Nos. SE 68343, SE 59580 and SE 8573 all Ex. HOM to Samastipur contg. 700 kgs. wheat each were standing in line No. 3 just adjacent to these recovered bags which were evidently stolen from the above wagons. The Md. Rk. failed to prevent or detect the offence. He was found standing suspiciously along with beat duty Rk. 6694 P. B. Verma and RK. 1727 R. K. Singh and seal checking duty 6317 N. C. Banerjee at the time of recovery by the S. I. at a distance 20/25 of yards away from the recovered bags. Statement of allegation : md. Rk. 2689 R. P. Singh while on party NCO duty at Burnpur yard on 14. 4. 75 there bags of wheat were recovered by Sri K. S. S. Dutta, SL/rpf/burnpur from Burnpur Yard at about 03/00 hrs. in between line No. 5 and 6. Three open box wagons contg. wheat covered with tarpoline Nos. SE 68343, SE 59580 all Ex. HOM To Samastipur contg. 700 bags wheat each were standing in line No. 3 just adjacent to these recovered bags. Thus it was evident that recovered bags were stolen from the above wagons which he failed to prevent or detect. Rather he was found standing suspiciously along with beat duty RK. 6694 R. B. Verma and Rk. 1727 R. N. Singh and seal checking duty Rk. 6694 R. B. Verma and R. K. 1727 R. N. Singh and seal cheaking duty R. K. 6317 N. C. Banerjee at the time of recovery 20/25 yards away from the recovered bags. This amounts to serious neglect of duty, slack supervision and misconduct on his part and hence the charge. "

(4) BY the impugned judgment and order dated 9th March, 1994, Ajit Kumar Sengupta, J. was pleased to allow the writ application making the Rule absolute and quashing all the impugned orders. The petitioner was also directed to be reinstated in service and it was further directed that he will be entitled to arrear salaries calculated at the rate of 25% of the total emoluments which he would have been entitled to, had he been in service from the date of dismissal till the date of reinstatement.

(5) THE writ petitioner has preferred the appeal being FMAT No. 2318 of 1994 only against the aforesaid portion of the order by which His Lordship after directing his reinstatement in service further directed that the petitioner will be entitled only to 25% of arrear salaries.

(6) THE main contention of the appellant/petitioner is that entire disciplinary proceeding including the final order and the appellate order rightly having been quashed there is no reason why the petitioner would not be paid the entire arrear salaries and other benefits.

(7) THE other appeal being FMAT No. 2443 of 1994 has been filed by the Chief Security Officer, South Eastern Railway, the Security Officer, S. E. Railway, Adra and the Union of India against the aforesaid judgment and order of the trial Court being aggrieved by the entire judgment.

(8) IT may be recorded in this connection that the two appeals were taken up for hearing on 25. 9. 2000 but none appeared on behalf of the appellants in FMAT No. 2443 of 1994 and on behalf of the respondents in FMAT No. 2318 of 1994. Accordingly, after hearing the submissions of the learned Advocate for the appellant in FMAT No. 2318 of 1994 and the respondents in FMAT No. 2443 of 1994, the matters were directed to appear as "for order" on the next date and the learned advocate for the appellant was directed to give notice to the learned advocate for the Railway authorities informing him that he will be at liberty to make submission on the next date, but in the event he does not appear, the Court may dispose of the matter in his absence.

(9) NOTWITHSTANDING service of such notice upon the learned advocate appearing for the Railway authority, yesterday when the matter was taken up for hearing the learned advocate for the Railway authority did not appear nor any prayer for adjournment was made on his behalf. Accordingly, after hearing the learned advocate appearing for the writ petitioner/appellant hearing was concluded and the matter was placed "for Judgment" today.

(10) IT may further be recorded that today when we were about to deliver our judgment the learned advocate for the Railway authority appeared and submitted that he will submit written notes of argument by today and the judgment may be delivered after the puja vacation.

(11) WE did not find any reason to accede to such prayer of the learned advocate appearing for the respondents. It is not disputed that day before yesterday he was served with a notice clearly indicating therein that unless he appears on the next date the matter might be disposed of in his absence. No explanation has also been offered by the learned advocate for the Railways why he did not appear earlier and even after service of such notice.

(12) AFTER considering the submissions of the learned advocate for the writ petitioner/appellant and the materials on record we do not find any reason to interfere with the finding of the learned judge of the trial Court that the entire disciplinary proceedings including the enquiry report, final report as also the appellate order stand vitiated and are liable to be quashed.

(13) ALL the aforesaid orders including the disciplinary proceedings were quashed by the learned judge, on more than one ground.

(14) ONE of the grounds on which the same have been quashed is that principles of natural justice have been violated as admittedly the list of document of witnesses to be relied upon by the enquiry authority at the enquiry proceeding was not supplied alongwith the charge-sheet.

(15) WE are however, not very much convinced that under the facts and circumstances of this particular case for non-supply of list of documents and witnesses the entire enquiry proceeding will stand vitiated. It appears to us that in the instant case although such list for documents and witnesses were not supplied timely the same were ultimately supplied at the time of enquiry. It, therefore, cannot be said that non-supply of such list of documents and witnesses is an infirmity which will vitiate the enquiry proceedings.

(16) WE are of the view since ultimately the inspection of such documents was given and the list of documents was also furnished it cannot be said that any prejudice was caused to the writ petitioner/appellant for non-supply of such list with the charge-sheet.

(17) THE learned judge, however, has rightly found that the finding of Enquiry Officer is perverse, inasmuch as, it is not really based on evidence but on surmises and conjectures.

(18) WE agree with the trial Courts finding that there was no evidence the writ petitioner/appellant was responsible for the said failure or he was slack of supervision on duty. Admittedly from the deposition of PW-1 it appears that he did not notice any irregularities on the train and he did not find any stable load on line Nos. 4, 5 and 6 and that there was no witness at all to prove that three bags of wheat were unloaded from the wagon of the said stable train. P. W.-1 also admitted that he did not find any droppage of grain of wheat at the time of recovery of three bags of wheat. It also appears to us that P. W.-2 clearly admitted that he did not notice any criminal or their interference, that there was no private or railway mark on the seized bags and he did not at all seize the lying grains of wheat and no mark of criminal interference was found. The preliminary enquiry report submitted by P. W.-2 also reveals that the nature of duty of the petitioner/appellant is quite different from that of the other Rakshak, R. B. Verma, R. N. Singh and Rakshak H. C. Banerjee, who were specially entrusted with the duty of the said beat.

(19) WE therefore agree with the trial Court that the findings of the enquiry officer are based on surmises and conjectures and not on evidence and therefore perverse and cannot be sustained. It has also rightly been held by the trial Court relying on the decision of Nanda Kishore Prasad v. State of Bihar and Others, reported in AIR 1978 SC 1277 [LQ/SC/1978/139] , that although Court cannot reapraise the evidence in a disciplinary enquiry can look into the same to find out whether the finding of the enquiry is based on evidence or perverse.

(20) WE also agree with the findings of the trial Court that the impugned second show cause notice, as it will appear from the said second show cause notice itself, that the finding of the disciplinary authority is not a tentative but a final one.

(21) THE decision in the case of Nripendra Nath Tarafdar v. Union of India and Others, reported in 1981 (1) Service Law Reports, page 533 and in the case of Bishnu Prasad v. Union of India and Others, reported in 1991 (1) CLJ, page 343 may be referred to in this connection.

(22) THE impugned second show cause notice is also therefore vitiated.

(23) IT also appears to us that the trial Court rightly held that non-supply of the adverse findings of the Assistant Security Officer, Adra to the delinquent was in violation of the principle of natural justice and vitiated the enquiry proceeding.

(24) IT appears that the respondent No. 4, the Assistant Security Officer made a recommendation, himself not being empowered to pass the final order for removal of the petitioner and admittedly the disciplinary authority empowered to pass the final order, took the same into consideration when passing the final order. Admittedly such report of the Assistant Security Officer was never supplied to the petitioner/appellant who had no opportunity to deal with the same. Non-supply of such a document was in clear violation of the principles of natural justice. The decision of the Supreme Court in the case of State of Gujarat v. R. G. Taredesai and Others, reported in 1969 Service Law Reporter (Vol. 3) page 519 may be referred to in this connection. Similar views was expressed by the Supreme Court in the case of State Bank of India and Others v. D. C. Agarwal and Another reported in 1993 Supreme Court Cases (L and S) 109 = (1993)1 SCC Page 13.

(25) IT has also been rightly held by the trial Court that the findings of the Security Officer cannot be sustained in law as the same shows total non-application of mind and the same do not conform to Rule 44 (9) of the Railway Protection Force Rules, 1959.

(26) SUB-RULE (9) of Rule 44 of the Railway Protection Force Rules provides that the disciplinary authority shall, if it is not the enquiry authority consider the records of the enquiry and record its findings on each charge; but it will appear from the impugned final order that the disciplinary authority had miserably failed to record its findings in respect of each of the charges separately.

(27) THE final order passed by the Security Officer is quoted hereunder.

"final Orders passed by SO/ada on proceeding case No. RPF/da/48/75/44 dated 26. 4. 75 drawn against HRK. 2689 R. P. Singh of Burnpur. Perused the reply of the Show Case Notice dated 29. 1. 76 submitted by the HRK. 2689 R. P. Singh. He has not given any satisfactory grounds to prove his contention. Giving the consideration to the facts and circumstances of the case as well as the reply of the show Cause Notice submitted by the delinquent, I find no grounds for altering the provisional decision. I, therefore, confirm the provisional decision and order the removal from service of HRK. 2689 R. P. Singh of Burnpur with immediate effect.

Security officer-Adra. "

(28) WE have also no hesitation to hold agreeing with the trial Court that there has been non-application of mind of the disciplinary authority while passing the final order and the final order is not even a speaking order and the same is liable to be quashed.

(29) LASTLY, we also agree with the trial Court that the appellate order also cannot be sustained in law.

(30) IT will appear from the Appellate authoritys order that there has been no independent exercise of mind of the appellate authority to the evidence and materials on record nor there was proper consideration of the grounds raised by the writ petitioner/appellant against the final order.

(31) THE Appellate authority has stated in the appellate order that he holds the delinquent guilty agreeing with the findings of the Enquiring Officer.

(32) RULE 58 (2) of the Railway Protection Force Rules, 1959 provides that the appellate authority shall consider at the hearing of the appeal whether the procedure prescribed in the rules has been complied with and if not, whether such non-compliance has resulted in any violation of the provisions of the Constitution or any failure of justice and whether the findings are justified and whether the penalty imposed is excessive, adequate or inadequate.

(33) IT will thus appear from the aforesaid Rules, the Appellate authority while considering the appeal of a delinquent is required to consider the entire materials on records including the evidence for the purpose of finding out whether the finding has been correctly arrived at by following the procedures, whether the findings are justified on the evidence on record and whether the penalty is excessive or not.

(34) UNFORTUNATELY, the impugned appellate order does not disclose at all whether such consideration was at all made by the Appellate authority in terms of the aforesaid rules although it was incumbent upto him to do so. In this connection, the decision of the Supreme Court in the case of R. P. Bhatt v. Union of India, reported in AIR 1986 SC 1040 [LQ/SC/1986/523] may be referred to.

(35) IN the aforesaid case the Supreme Court was considering Rule 27 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The said Rule 27 (2) is pari materia with the present Rule 58 (9) of the RPF Rules. It was held by the Supreme Court in Paragraphs 4 and 5 of the judgment, thus :-

"4. The word consider in Rule 27 (2) implies due application of mind. It is clear upon the terms of Rule 27 (2) that the Appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the the evidence on record and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27 (2) casts a duty on the Appellate authority to consider the relevant factors set forth in Cls. (a), (b) and (c) thereof. 5. There is no indication in the impugned order that the Director-General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director-General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of Cl. (c) of Rule 27 (2), viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27 (2) of the Rules, the impugned order passed by the Director-General is liable to be set aside.

(36) IT also appears to us that the Appellate authority has found the writ petitioner guilty on some materials which are extraneous to the charges. The same, therefore, amounted to violation of principles of natural justice as the petitioner had no opportunity to deal with such allegations. It will appear from the order of the appellate authority that he also relied upon the allegations that the petitioner was standing in a suspicious manner at a distance of 20/25 yards from the spot wherefrom wheat bags recovered along with other duty Rakshaks which in fact was not proved at the enquiry proceedings and was also not relied upon by the disciplinary authority.

(37) FOR the reasons stated above, therefore, we fully agree with the learned trial Court that the entire disciplinary proceedings including the findings of the enquiring officer, the second show cause notice, the final order and the appellate order are liable to be quashed.

(38) WE, therefore, find substance in the submissions of the learned counsel appearing on behalf of the petitioner/appellant that when the Court has quashed the entire disciplinary proceeding including the aforesaid orders and also directed the reinstatement in service of the writ petitioner, there was no reason why the petitioner should not be entitled to the entire arrear salaries and benefits from the date of dismissal till reinstatement as if he continued in service.

(39) IT may be recorded however, in this connection that when the two appeals were filed by the respective parties and the application for stay in connection whereof was heard, the Division Bench while hearing the said stay application disposed of the same by directing that the respondents in FMAT 2318/94 shall pay the amount equivalent to the salary of the appellant from the date of passing of the order of the trial Court till the superannuation of the petitioner within three weeks from the date of the communication of the said order. It was further directed that in the event the appeal filed by the Union of India fails, the appellant in FMAT 2318/94 shall be entitled to arrears with the interest @ 9% per annum so far as the back wages are concerned.

(40) IN view of such order of the appeal Court as aforesaid, the petitioner/appellant in FMAT 2318/94 is entitled to the entire arrear wages from the date of his removal till the reinstatement in service with interest calculated @ 9% per annum.

(41) IN the result, the appeal filed by the Security Officer and other Railway Authorities being FMAT 2443/91 fails and the same is hereby dismissed without any order as to costs.

(42) OTHER appeal being preferred by the writ petitioner being FMAT 2318/94 succeeds and the same is hereby allowed.

(43) THE respondents are directed to pay to the petitioner the entire arrear salaries to which the petitioner would have been entitled had he continued in service, from the date of removal from the service till reinstatement in service with the interest calculated per annum subject to adjustment of any amount that might have been paid to the petitioner in the meantime within three months from the communication of the order. There will be no order as to costs. Appeal dismissed