JUDGMENT :

Raja Basu Chowdhury, J.

1. Affidavit-in-reply filed in Court today is retained with the record.

2. The present writ application has been filed, inter alia, challenging the charge-sheet dated 8th May, 2008, the findings of the enquiry officer dated 16th October, 2008, the show cause notice dated 17th October, 2008, the order of punishment dated 31st October, 2008 and the order passed by the Appellate Authority dated 10th June, 2009. The petitioner is a constable of Railway Protection Force (in short RPF) of Eastern Railway and at the time of filing of the writ application, the petitioner was posted at RPF, Jamalpur (Yard) Post in Malda. The petitioner, while being posted at Jamalpur (Yard) Post was served with a charge-sheet dated 8th May, 2008, wherein it was alleged that while he was detailed for mess duty vide Diary Entry no. 1079 at 07.00 hours on 24th February, 2008, he had, in gross dereliction of his duties left the mess and was found present at Daulatpur Railway colony where he sustained bullet injury. Along with the charge-sheet, the petitioner was supplied with a list of prosecution witnesses and a list of documents which, inter alia, included findings of the Court of enquiry as submitted by the Assistant Security Commissioner, RPF, Jamalpur (Yard) Post.

3. Simultaneously, while issuing the said charge-sheet, the petitioner was also informed that an enquiry officer of the rank of Inspector had been appointed to enquire into the charges leveled against the petitioner. Immediately upon receipt of the charge-sheet, by two several undated communications in writing, the petitioner not only questioned the authority of the enquiry officer to inquire into the charges, since the fact finding enquiry had been conducted by an officer who was superior in rank to that of the enquiry officer, but also questioned the issuance of the charge-sheet and the appointment of the enquiry officer without affording the petitioner an opportunity of hearing. In support of his contention he had placed reliance on a judgment delivered by the Hon’ble Supreme Court in the case of State of Punjab v. V.K. Khanna & Ors., (2000) 5 SLR 734, as is recorded in such communication. The petitioner, however, participated in the enquiry proceedings. After conducting the enquiry, the Disciplinary Authority had forwarded the petitioner with a copy of the enquiry report by cover of letter dated 17th October, 2008. Subsequently, a final order was passed by the Disciplinary Authority on 31st October, 2010, awarding a punishment of reduction to a lower scale of pay of Rs. 5200/- for 3 years with cumulative effect. Although, the petitioner had preferred a statutory appeal, the Appellate Authority by an order dated 10th June, 2009, which was communicated to the petitioner vide a covering letter dated 17th June, 2009, was, inter alia, pleased to reject the said appeal.

4. Being aggrieved, the present writ application has been filed.

5. Mr. Majumder, learned advocate appearing for the petitioner, by referring to rule 153.3 of the Railway Protection Force Rules, 1987 (hereinafter referred to as the “said Rules”), submits that the Disciplinary Authority at the first instance upon receipt of the complaint or otherwise on going through the facts alleged or brought out has to consider whether it is the case of major or minor punishment. It is only, thereafter, charges ought to have been framed and an opportunity ought to have been afforded to the petitioner to respond to the show cause as to why enquiry shall not be held. It is only after receipt of reply to the show cause that an enquiry should be ordered, if the reply is not found to be satisfactory.

6. In the instant case, the Disciplinary Authority prior to framing the charge did not bother to issue any show cause notice inviting response from the petitioner. The Disciplinary Authority, however, while assuming the mantle of the enquiry officer, also fixed the date of enquiry.

7. It is submitted by Mr. Majumder that th