28.07.2025 Item No.11 gd/ssd FMA/3290/2015 ALOK KUMAR YADAV VS UNION OF INDIA & ORS. Mr. Achin Majumder, Ms. Ananya Adhikary ..for the Appellant. Mr. Ajay Chobey, Mr. Sukanta Ghosh ..for the Respondents. 1. With the consent finally heard. 2. The learned counsel for the appellant submits that the appellant was an employee of Railway Protection Special Force. The appellant was served with a charge-sheet on 5th December, 2011. The same was followed by a defective departmental enquiry and an unwarranted punishment of removal from service. After availing the departmental remedy, the appellant filed WP 21054(W) of 2014 which came to be dismissed in limine. The writ petition was pregnant with various arguable questions and should not have been dismissed in admission stage itself. 3. To bolster one such point, learned counsel for the appellant placed reliance on the memorandum of charge-sheet (annexure P-1) dated 5th December, 2011. In the charge-sheet itself, the disciplinary authority decided to appoint an enquiry officer and even fixed the 2 date of hearing of departmental enquiry as 1.1.2012 at 10 hours. 4. Criticising the said action, learned counsel for the appellant submits that the principles of natural justice were grossly violated where the enquiry officer is appointed before even filing of reply by the appellant. 5. This shows “biased and closed mind” on the part of the disciplinary authority. 6. In all fairness, the reply of the appellant should have been obtained and after having satisfied that there is a case to proceed against the appellant and appellant’s reply is prima facie not trustworthy, enquiry officer could have been appointed. Appointment of enquiry officer in the charge-sheet is bad in law and this point is no more res integra. The reliance is placed on AIR 2001 SC 343. Para 34 on which heavy reliance is placed reads thus: “34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias – What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindse viz.: the inquiry shall proceed irrespective of the reply – is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge sheet or show-cause as the same may be, as to whether a further inquiry is called for. In the event upon deliberations and due 3 considerations it is in the affirmative – the inquiry follows but not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam and on that score, strongly criticized the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record.” 7. It is submitted that this judgment again came up for consideration before a Division Bench of this Court and this Court opined as under: “Despite bringing a charge so late in the day, the disciplinary authority did not deem it fit to seek an initial response from the writ petitioner before appointing an enquiry officer and putting the enquiry proceedings in place. The learned Judge relied on paragraph 34 of the V.K. Khanna judgment on the ground that before the enquiry procedure was set up it was incumbent upon the disciplinary authority to make a preliminary assessment of the matter. The law on the aspect is recognized at paragraph 34 of the V.K. Khanna judgment: “34. The High Court while delving into the issue went into the factum of announcement of the Chief Minister in regard to appointment of an Inquiry Officer to substantiate the frame of mind of the authorities and thus depicting bias – What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindse viz.: the inquiry shall proceed irrespective of the reply – is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative – the inquiry follows but not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam 4 and on that score, strongly criticized the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record.” (E.S.) 8. Another Single Bench of this court in Sanjoy Kumar Singh again considered the aforesaid legal position and came to hold as under: “14. In the instant case it appears also from the Memorandum itself that Articles of charges were furnished in which Memorandum the authority informed the petitioner that there will be an enquiry in the same Memorandum the authority declared the name of the inquiry officer and also fixed the venue and time of the enquiry. Therefore, before receiving any reply to the allegations/charges levelled against the petitioner, the authority took a decision to conduct the enquiry and even the authority assumed the jurisdiction of the enquiry officer and fixed the venue and time of the enquiry, which clearly shows that the Memorandum containing Articles of charges has been issued by the authority with a biased mind and the same indicate its mind set that the enquiry shall proceed irrespective of reply and as quoted above in the case of V.K. Khanna & Ors. (supra) the Hon’ble Supreme Court observed the attitude of the authority towards the delinquent in such circumstances is not free and fair.” (E.S.) 9. In this view of the matter, learned counsel for the appellant submits that the writ petition should not have been dismissed in limine. Instead, since it contains arguable questions it should have been admitted so that the other party may file response and after perusing the record of departmental enquiry, the court could have decided the matter on merits. 5 10. The learned counsel for the respondents supported the impugned order and submitted that learned Single Judge has not committed any error in declining the admission of the matter. More so, when the appellant has committed serious misconduct. No other point is raised by learned counsel for the parties. 11. It could not be disputed before us that while issuing the charge-sheet itself, the disciplinary authority appointed enquiry officer, Sri K.K. Tiwari and fixed a date of departmental enquiry. 12. Thus, in the light of judgment of Hon’ble Supreme Court in V.K. Khanna and judgments of this court in Union of India v. Dilip Kumar Palit (MAT 580 of 2008) and Sanjoy Kumar Singh v. Union of India & Ors. (C.R. 19182(W) of 1993), we find substance in the argument of learned counsel for the appellant that writ petition was certainly having an arguable question and could not have been dismissed in limine. We make it clear that we have given above finding only to show that writ petition was entertainable and deserved to be admitted. The judgment mentioned hereinabove are applicable or not is to be considered by the writ court. This is also trite in view of M.C. Mehta v. Union of India & Ors. reported in 2007 (7) SCC 206 that a plea abandoned before the writ court can be taken in writ appeal. 6 13. In this view of the matter, we deem it proper to set aside the order of learned Single Judge dated 8th June, 2015. 14. We order accordingly and restore WP 21054(W) of 2014 to its original number. 15. The writ court shall treat that writ petition as admitted. 16. The respondents herein shall file their affidavit-in-opposition within three weeks from today and reply thereto (if any) be filed two weeks thereafter and shall also produce the original record of departmental enquiry before learned Single Judge for perusal. 17. In view of setting aside the impugned order dated 8th June, 2015, we are inclined to request the writ court to decide the matter at the earliest because the appellant/petitioner is out of employment. 18. With the aforesaid, the writ appeal is disposed of without expressing any opinion on the merits of the case. (SUJOY PAUL, J) (SMITA DAS DE, J.)