IMPORTANT POINT
The main legal point established in the judgment is that the direction contained in the order of suspension could not have been enforced as it was declared ultra vires and struck down for being violative of Articles 14 and 19(1)(d) of the Constitution of India.

JUDGMENT :

Raja Basu Chowdhury, J:

1. The present writ petition has been filed, inter alia, challenging the order of suspension dated 17th February 2010, the charge sheet dated 16th February 2012, the findings of the enquiry dated 29th August 2012, the show cause notice dated 4th September 2012, the final order of punishment dated 23rd November 2012 and the order passed by the appellate authority dated 17th April 2013.

2. The petitioner, at the material point of time was an Assistant Sub-Inspector of Railway Protection Force (RPF) and was posted at RPF post, Howrah I, Eastern Railway. It is the petitioner’s case that by reasons of pendency of a criminal case and on account of judicial custody suffered by the petitioner on 19th September, 2009, he was served with an order of suspension dated 17th February, 2010, issued by the Senior Security Commissioner, RPF of the Eastern Railway whereby he was suspended with effect from 19th September, 2009. Subsequently, the petitioner was served with a charge sheet on 16th February 2012. On the basis of the said charge sheet, an enquiry was conducted which resulted in the final order of compulsory retirement dated 23rd November 2012. Although, an appeal was preferred, the same was rejected by a mechanical order.

3. Mr. Majumder, learned advocate appearing in support of the petition by drawing attention of this Court to the statement of articles of charges submits that despite the fact the petitioner had been suspended vide order dated 17th February 2010, he was charged with non-compliance of instructions issued to him as regards the daily attendance subsequent to his release from jail custody on bail. According to Mr. Majumder, once, an employee is placed under suspension, there is no authority vested in the disciplinary authority to restrict the free movement of the employee or to direct him to be present daily, for attendance to the authority nominated by the disciplinary authority.

4. By drawing attention of this Court to the provisions of Rule 143.2 of the Railway Protection Force Rules, 1987 (hereinafter referred to as the “said Rules”), it is submitted that a Coordinate Bench of this Court in the case of Suresh Chowdhury v. Union of India & Ors., reported in 2003(2) SLR 426 had declared the aforesaid provision to be violative of Articles 14 and 19(1)(d) of the Constitution of India and has also, thereby, held the same as ultra vires to the Constitution of India. It is further submitted that once, the aforesaid Rule had been declared ultra vires and had been struck down, it was beyond the competence of the disciplinary authority while issuing the order of suspension dated 17th February 2010 to call upon the petitioner to present himself to the RPF, Howrah for daily attendance and to stay at the headquarter post after his release from jail custody. He submits that according to the respondents since, the petitioner did not comply with the aforesaid direction, a memorandum of charge dated 16th February 2012 had been issued. Since, Rule 143.2 of the said Rules can no longer be enforced, the direction contained in the order of suspension dated 17th February 2010 could not have been enforced by the respondents and on account thereof, no charge sheet could have been issued.

5. Mr. Majumder, next, by drawing attention of this Court to the final order of punishment dated 23rd November 2012 submits that the disciplinary authority by taking note of the arrest and detention of the petitioner in jail custody and the factum of accidental death of the petitioner’s wife and the institution of criminal proceedings and non-disclosure of such criminal proceedings before the authorities had concluded that he is convinced that the petitioner is guilty of the charges leveled against him. It is further submitted that the disciplinary authority, had ultimately proceeded to impose penalty of compulsory retirement on the petitioner by taking note of the physical and mental condition of the petitioner without affordi