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IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

Present :-

The Hon’ble The Chief Justice SUJOY PAUL

&

The Hon’bleJusticePARTHA SARATHI SEN

WP.CT 75 OF 2010

ASIM KUMAR PAUL

-Vs-

UNION OF INDIA & ORS.

For the Petitioners: Mr. Debottam Das, Adv.,

Mr. Tirupati Mukherjee, Adv.

For the Union of India: Ms. Amrita Pandey, Adv.,

Mr. Ghanshyam Pandey, Adv.

Hearing concluded on: 13.05.2026

Judgment on: 19 .05.2026

PARTHA SARATHI SEN, J. : –

1. In this writ petition as filed under Article 226/227 of the Constitution of India

the order dated 24.07.2009 passed in OA no. 763 of 2004 by the Central

Administrative Tribunal, Kolkata Bench (Tribunal in short) is assailed. While

passing the impugned order the said Tribunal upheld the enhanced

punishment of the original applicant as imposed by the appellate authority that

is “removal from service” which has been affirmed by the revisional authority.

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2. For effective adjudication of the instant writ petition, the facts leading to

filing of the said OA are required to be dealt in a nutshell. In the year 1994 the

writ petitioner was posted as Senior TNC/NH and on 06.06.1994 he was served

with a memorandum containing article of charge for alleged contravention of

Rule 3(1)(i), (ii) and (iii) of Railway Service Conduct Rules, 1966 (‘Rules’ in

short) together with a statement of imputation of charge containing alleged

fraudulent act with an intention to defraud the railway administration.

3. On the basis of the aforementioned charge and statement of imputation of

charge, an in-house enquiry was held wherein the enquiry officer found that

the charge as framed against the writ petitioner/ original applicant has been

duly proved. The disciplinary authority after considering such enquiry report

vis-à-vis the representation of the delinquent imposed a punishment of 01(one)

grade below in the time scale for 02(two) years with cumulative effect which

would operate to postpone future increments on the expiry of the punishment

upon the writ petitioner.

4. Feeling aggrieved, the writ petitioner preferred an appeal before the appellate

authority. Upon presentation of the said appeal the appellate authority found

that the punishment as imposed by the disciplinary authority is inadequate

and thus, under cover of a memo dated 15.07.2003 the appellate authority

asked the delinquent that is the writ petitioner/ original applicant to show

cause as to why the punishment would not be enhanced to “removal from

service”. The writ petitioner/ original applicant replied to such show cause. The

appellate authority was not satisfied with the cause shown by the writ

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petitioner under cover of his reply dated 06.08.2003 and accordingly, the

punishment of the writ petitioner/ original applicant was enhanced to “removal

from service”. The writ petitioner/ original applicant unsuccessfully challenged

the order of the appellate authority before the revisional authority as well as

before the said Tribunal.

5. In course of argument Mr. Das, learned Advocate appearing on behalf of

the writ petitioner/ original applicant at the very outset took us to the charge

as framed against the delinquent as well as the statement of imputation of

charge. It is submitted that on careful perusal of the article of charge together

with statement of imputation of charge it would reveal that the respondent

authorities in the said enquiry proceeding as initiated against the writ

petitioner/ original applicant proceeded on the basis that on account of alleged

mala fide and fraudulent act of the writ petitioner/ original applicant in

discharging his duty, fraudulent delivery of the consignment at Siwan to a

person took place who is not the consignee of the said consignment causing

huge loss to the railway administration. At this juncture, learned Advocate

appearing for the writ petitioner/ original applicant draws our attention to the

supplementary affidavit as affirmed on 20.08.2024. It is submitted that from

Annexure-‘A’ of the said supplementary affidavit being a copy of the judgment

dated 25.06.2019 as passed in Criminal Appeal No. 108 of 2007 by the learned

Additional Sessions Judge- V, Saran at Chapra, it would reveal that while

acquitting the writ petitioner/ original applicant from the charges under

Section 420/408/468/471/120B IPC the said appellate Court came to a

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finding upon appreciation of evidence of the PWs and DWs that the charges as

framed against the writ petitioner/ original applicant in the criminal trial were

not proved.

6. It is further submitted by the learned Advocate for the writ petitioner/

original applicant that on careful perusal of the charges as framed against the

writ petitioner/ original applicant in the criminal trial it would reveal that the

charges as framed against the writ petitioner were of cheating, criminal breach

of trust, forgery etc. together with the charge of criminal conspiracy on account

of alleged fraudulent act of the delinquent. Placing reliance upon the judgment

of the Hon’ble Supreme Court in the case of MaharanaPratap Singh vs.

State of Bihar reported in 2025 INSC 554:2025 SCC OnLine SC 890 it is

submitted that since the charges, evidences, witnesses and circumstances in

the departmental enquiry and the criminal proceedings are identical or

substantially similar, the findings of the enquiry authority, disciplinary

authority, the revisional authority and the impugned judgment of the Tribunal

on account of acquittal of the writ petitioner/ original applicant in the criminal

trial may be set asideand thus, appropriate relief/ reliefs may be granted to the

writ petitioner as prayed for in this writ petition.

7. Per contra, Ms. Pandey, learned Advocate appearing on behalf of the

respondent/ Union of India and its instrumentalities submits before this Court

that there cannot be any occasion to disturb the finding of the appellate

authority as well as the revisional authority vis-à-vis the impugned order of the

Tribunal in view of the fact that the writ petitioner was acquitted from the

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criminal trial. It is further submitted that the two proceedings that is; the

criminal trial and domestic enquiry are distinct from each other and the degree

of proof in a domestic proceeding is different from that of a criminal trial since

in the former, the enquiry officer weighs the evidence based on preponderance

of probabilities while in criminal trial the same is beyond reasonable doubt. It

is further submitted that in course of the said domestic enquiry as well as

before the appellate authority and the revisional authority principle of natural

justice has been duly followed. It is further submitted that in absence of any

material irregularity in such proceedings and/or for consideration of any

extraneous materials which are relevant there cannot be any justification to

allow the instant writ petition by granting reliefs to the writ petitioner. In

support of her contention, Ms. Pandey placed her reliance upon the judgment

as passed in Airports Authority of India vs. Pradip Kumar Banerjee

reported in (2025) 4 SCC 111.

8. We have meticulously perused the entire materials as placed before us. We

have given our due consideration over the submissions of the learned

Advocates for the contending parties. In order to reach at a logical conclusion

of the lis, we at the very outset propose to look to Rule 3 of Railway Services

(Conduct) Rules, 1966 (“Rules” in short) and the same is reproduced

hereinbelow in verbatim:

“3. General. -- (1) Every railway servant shall at all times-

(i) maintain absolute integrity;

(ii) maintain devotion to duty;

(iii) do nothing which is unbecoming of a railway

servant;

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(iv)…………

(v)…………..

(vi)………….

(vii)…………

(viii)………..

(ix)………….

(x)……………

(xi)…………..

(xii)………….

(xiii)…………

(xiv)…………

(xv)………….

(xvi)…………

(xvii)………..

(xviii)……….

(xix)…………

(xx)………….

(xxi)…………”

9. Since the writ petitioner was charged for violation of Rule 3(1) (i), (ii) and (iii) of

the said Rules, we also propose to look to the charge and statement of

imputation of charge as framed against the writ petitioner/ original applicant

as available at page no. 64 of the instant writ petition and those are also

reproduced hereinbelow in verbatim:

“Annexure- I

Article of charges for framed against Sri A.K. Paul, Sr.

TNC/NH.

Sri A.K. Paul, Sr. TNC/NH while on duty on 09.2.91

misdespatched and diverted Wagon No. WR/BKC-72124

loaded with 18 bdls. CR sheet by false recording false entry

……. illegible…… the O/A E/L handbook “B” as Ex. Nh to

SIWAN on line No. 11/OR against its original booked

destination Ex. NH to GRP with mala fide and fraudulent

intention which left Railway Admn. To face a fraudulent

delivery on forged RR.

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The above activities of Sri A.K. Paul, Sr. TNC/Nh exposes

his malicious policy and fraudulent intention to defraud the

administration which tantamounts to gross negligence to

duty and as such Sri Paul acted in a manner of unbecoming

a Railway servant which contravened Rule 3/1 (i), (ii) & (iii)

of Railway Service (Conduct) Rules, 1966.

Annexure-II

Statement of imputation of charges framed against Sri A.K.

Paul Sr. TNC/Nh.

Wagon No. WR/BKC- 72124 loaded with 18 Bdls. CR

sheets booked under Inv. No. 7/RR 737470 dt. 17.1.91

Ex.NH to GKP despatched from NH/Goods on 05.2.91 by

Dn CP/PJ at 19/30 hrs. under correct entry NH to GKP

which arrived at NH/Yard on 06.2.91 at 0.25 hrs. This has

been correctly recorded in Rail Inward “B” handbook

maintained by Sri A.B. Harijan TNC on L/No. 6/NR.

On 09.2.91 the said loaded Wagon No. ERBKC 72124 was

misdespatched/ diverted by E3403/NA under or false

recorded entry in O/W handbook “B” cum guidance

prepared by Sri A.K. Paul, Sr. TNC/Nh on Line No. 11/OR

as Ex.Nh to SIWAN resulting to allow fraudulent delivery on

forged RR at SIWAN. A misdespatched Wire No. TI/7/91 dt.

11.2.91 after two days of the wagon passed.”

10. On careful perusal of the aforementioned charge vis-à-vis the statement

of imputation of charge as framed against the writ petitioner/ original

applicant, it would reveal that it is the specific case of the respondents

authorities that the delinquent while on duty on 09.02.1991 with mala fide and

fraudulent intention, misdirected and diverted the wagon no. WR/BKC 72124

Ex.Naihati to Siwan by changing its original destination Ex.Naihati to

Gorakhpur (GRP). It further appears from the said charge and the statement of

imputation of charge that it is also the case of the respondents authorities that

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the delinquent with the fraudulent intention to defraud the respondents

authorities falsely recorded entry in OW handbook thereby allowed fraudulent

delivery on forged RR at Siwan.According to the respondents authorities, such

malicious and fraudulent act on the part of the delinquent tantamount to gross

negligence to duty and thus, violation of Rule 3(1) (i), (ii) and (iii) has/have been

caused resulting initiation of the enquiry proceeding.

11. At this juncture, if we look to the judgment as passed in Criminal Appeal

No. 108 of 2007 as has been annexed with the supplementary affidavit as filed

by the writ petitioner and as has been affirmed on 20.08.2024, it would reveal

that in the criminal appeal arising out of Siwan Railways P.S. Case no. 16 of

1991 dated 19.04.1991 under Section 419/420/471/467/468 IPC, the said

appellate Court while setting aside the conviction of the appellant (writ

petitioner/ original applicant herein) from the charges under Section

420/408/468/471/120B, IPC noticed that in the criminal trial the allegation

against the writ petitioner/ original applicant was that in outgoing register he

made entry ‘Siwan’ in place of ‘Gorakhpur’ and thus diverted the wagon no.

72124 carrying the relevant consignment to Siwan to facilitate the delivery of

the consignment in question to the co-accused persons. While appreciating the

evidence as recorded by the trial Court, the said appellate Court in the said

criminal appeal however noticed that the prosecution has miserably failed to

prove the charge of criminal conspiracy as punishable under Section 120B,

IPC. The said appellate Court also found that the accused Asim Kumar Paul is

not guilty of the offence under Section 420/468/471/408 IPC since while

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appreciating the evidence of the PWs and the DWs as recorded in the criminal

trial, it was found by the said appellate Court that outgoing and incoming

entries in the relevant register was made on the basis of card label fixed in the

pocket of the wagon. The said appellate Court also found in the evidence of

prosecution that as to who had changed the label and/or when such label was

changed could not be detected and thus, the said appellate Court came to a

finding that the accused Asim Kumar Paul cannot be made scapegoat only

because he made entry in the outgoing register. This Court in the foregoing

paragraphs of the judgment has already recorded that Section 420 IPC is the

penal provision of the offence of cheating within the meaning of Section 417

IPC. Section 468 IPC deals with the penal provision for forgery for the purpose

of cheating while Section 471 IPC deals with the penal provision of using as

genuine a forged document and Section 408 deals with criminal breach of trust

by clerk or servant and in all such sections elements of fraud are there. We

have also noticed that the charges under the aforementioned Sections were

framed in the said criminal trial on account of alleged fraudulent acts of the

accused/writ petitioner/ original applicant who according to the respondents

authorities misdirected the relevant wagon containing the relevant

consignment to Siwan instead of Gorakhpur.

12. It thus appears to us that the charges, the evidence, the witnesses and

the circumstances in both the departmental enquiry and the criminal

proceeding are identical or substantially similar. At his juncture, the moot

question arises for our consideration is as to whether on account of such

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similarity, the finding of the enquiry authority, appellate authority, revisional

authority as well as of the Tribunal in the impugned judgment can be allowed

to be sustained following the acquittal of the writ petitioner/ original applicant

in criminal appeal. At this juncture, if we look to the reported decision of

MaharanaPratap Singh (Supra) , we find that the Hon’ble Supreme Court

while deciding the said Civil Appeal framed four numbers of issues as reveals

from paragraph no. 25 of the said reported decision. For better understanding

we propose to quote paragraph 25 of the reported decision of

MaharanaPratap Singh (Supra) in verbatim and the same is reproduced

hereinbelow:

“25. The issues for determination that emerge for decision

are:

(i) Whether due process was followed in dismissing

theappellant from service and whether his dismissal from

serviceis justified, on facts and in the circumstances, that

haveunfolded before us?

(ii) Whether, in light of the facts, evidence, witnesses,

andcircumstances of the case, the charges in the

criminalproceedings are substantially identical to those in

thedepartmental proceedings, such that an acquittal in

thecriminal case would render the findings in the

disciplinaryproceedings vulnerable?

(iii) Whether the impugned judgment, which allowed

the appealof the respondents and dismissed the writ

petition of theappellant, deserves to be upheld?

(iv) Whether the appellant is entitled to any relief,

should theaforesaid questions be answered in his favour?”

13. While deciding the issue no. (ii) the Hon’ble Supreme Court in

MaharanaPratap Singh (Supra) expressed the following view:

“46. The aforesaid discussion on the first issue seals the

fate of therespondents. However, since arguments were

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advanced in respect of thisissue too, we propose to briefly

answer the same.

47. While an acquittal in a criminal case does not

automatically entitle theaccused to have an order of setting

aside of his dismissal from publicservice following

disciplinary proceedings, it is well-established that when

the charges, evidence, witnesses, and circumstances in

both the departmental inquiry and the criminal proceedings

are identical or substantially similar, the situation assumes

a different context. In such cases, upholding the findings in

the disciplinary proceedings would be unjust, unfair, and

oppressive. This is a position settled by the decisionin G. M.

Tank (supra)[AIR 2006 SC 2129], since reinforced by a

decision of recent origin inRam Lal v. State of Rajasthan

[(2024) 1 SCC 175].

48. To assess the degree of similarity between the

charges, evidence,witnesses, and circumstances in the

disciplinary and criminalproceedings, it is indeed crucial to

review the materials placed before the Court where such an

issue arises. However, we regret, absence ofthe

departmental file has disabled us from looking into the

same.

49. Notwithstanding the above, a plain reading of the

materials available onrecord only reveals that charge no.1

in the disciplinary closely resembledthe allegations in the

criminal proceedings. In fact, the disciplinaryproceedings

were initiated based on the written complaint of

theinformant.

50. The judgment acquitting the appellant reveals that

the prosecution"miserably failed to prove its case beyond

reasonable doubt" as both theinformant and PW-2 refused

to identify the appellant in court. Thisdiscussion confirms

that the appellant's acquittal was based not on

meretechnicalities. In Ram Lal (supra), this Court held that

terms like"benefit of doubt" or "honourably acquitted" should

not be treated asformalities. The Court's duty is to focus on

the substance of thejudgment, rather than the terminology

used.

51. That apart, it is noteworthy that in course of the

inquiry PW-2 had alsodeclined to identify the appellant

during cross-examination, and theinformant was not called

as a witness in the disciplinary proceedings.This sort of

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creates a parallel between the circumstances in both

thecriminal and disciplinary proceedings.

52. Besides, the appellant's case is strengthened by the

principle of adverseinference. It can be reasonably inferred

that the respondentsdeliberately withheld the scanned copy

of the departmental file, whichwas essential for us to

assess whether the charges, witnesses, evidence, and

circumstances in both the criminal and departmental

proceedingswere substantially similar or identical, likely

due to concerns over thepotential adverse consequences.

53. In light of the preceding discussion and the adverse

presumption that isavailable to be drawn, we hold that the

finding of the appellant beingguilty of charge no.1 cannot be

sustained following his acquittal in thecriminal proceedings,

which seem to have involved substantially similaror

identical charges, evidence, witnesses, and circumstances.”

[Emphasis supplied]

14. Keeping in mind the proposition of law as decided in the case of

MaharanaPratap Singh (Supra) , if we look to the factual aspects as involved

in the instant writ petition, it appears to us that the charges as framed against

the delinquent in the enquiry proceeding are almost similar to the charges as

framed in the criminal proceeding and the evidence and the witnesses and the

circumstances of both the enquiry proceeding and criminal proceeding are

either identical or substantially similar. We have also noticed that apart from

the charge of mala fide and fraudulent act of the delinquent thereby attracting

contravention of the Rule 3(1) (i), (ii) and (iii) of the said Rule, no other

independent charge was framed in the said disciplinary proceeding alleging

culpable negligence on the part of the writ petitioner in discharging his duty. It

thus appears to us that on account of passing of the judgment of acquittal in

the aforementioned criminal appeal the findings of the enquiry authority,

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appellate authority as well as the revisional authority cannot be allowed to

stand.

15. We have also noticed that the impugned judgment of the Tribunal was

passed on 24.07.2009 while the learned Additional Sessions Judge- V Sarat at

Chapra allowed the Criminal Appeal no. 108 of 2007 as filed by the writ

petitioner/ original applicant by its judgment dated 25.06.2019 and thus, there

was no scope on the part of the said Tribunal to assess the impact of passing of

the judgment of acquittal in Criminal Appeal no. 108 of 2007 in favour of the

writ petitioner/ original applicantbefore it.

16. It is pertinent to mention herein that the reported decision of Airports

Authority of India (Supra) is distinguishable from the facts and

circumstances of the instant writ petition inasmuch as in the said reported

decision there was no occasion on the part of the Hon’ble Supreme Court to

consider the impact of passing of a judgment of acquittal in a criminal trial

where charges, witnesses, evidence and circumstances are substantially

similar.

17. In view of the discussion made hereinabove, we thus find sufficient merit

in the instant writ petition. Consequently the punishment dated 20.08.2002 as

has been imposed by the disciplinary authority, the finding of the appellate

authority dated 15.07.2003 and the punishment dated 30.09.2003 awarded by

it, the finding of the revisional authority dated 19.03.2004 and the impugned

order dated 24.07.2009 as passed by the said Tribunal are hereby quashed

and set aside.

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18. Admittedly, the writ petitioner has crossed his age of superannuation in

the year of 2014. At this juncture, it is required to be determined as to what

benefits the writ petitioner is entitled to on account of allowing of this writ

petition. Admittedly, after passing of the order of removal from service on

30.09.2003 by the appellate authority the writ petitioner was out of service. In

that event, a question arises as to whether on account of allowing the instant

writ petition, the writ petitioner is at all entitled to the back wages that is on

and from 30.09.2003 till the date of his actual retirement in the year 2014.

19. On careful perusal of the copy of the application as filed before the

Tribunal as well as in the instant writ petition, we found that no prayer has

been made by the writ petitioner for grant of back wages. In course of his

argument learned Advocate appearing on behalf of the writ petitioner did not

make any such submission. The law relating to grant of back wages where

termination is found to be illegal has been dealt with by the Hon’ble Supreme

Court time and again.In doing so it has been held that in absence of any

evidence to prove that the appellant was unemployed during the period in

question, back wages cannot be granted to him since he had not worked for

that period. In the case of Mulin Sharma vs. State of Assam reported in

(2016) 14 SCC 208the Hon’ble Supreme Court while dealing with the principle

of grant of back wages expressed the following view:

“14. We are fully satisfied that in the facts and

circumstances of the case, back wages should not have

been awarded to the appellant herein. In several cases,

this Court has held that payment of back wages is a

discretionary power which has to be exercised by a court

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keeping in view the facts in their entirety and neither

straitjacket formula can be evolved nor a rule of universal

application can be laid down in such cases. Thus,

reinstatement does not necessarily result in payment of

back wages which would be independent of reinstatement.

While dealing with the prayer of back wages, factual

scenario and the principles of justice, equity and good

conscience have to be kept in view by an appropriate court.

15. In C.N. Malla v. State of J&K [C.N.

Malla v. State of J&K, (2009) 9 SCC 597 : (2009) 2 SCC

(L&S) 715] , this Court has held as under: (SCC p. 600,

para 11)

“11. The legal position is fairly settled by a catena of

decisions that direction to pay back wages in its entirety is

not automatic consequent upon declaration of dismissal

order bad in law. The concept of discretion is inbuilt in

such exercise. The court is required to exercise discretion

reasonably and judiciously keeping in view the facts and

circumstances of the case. Each case, of course, would

depend on its own facts.”

16. In view of the foregoing discussion, we are of the

considered opinion that the concurrent finding of the courts

below that the appellant herein is not entitled to back

wages in the absence of any material on record that he

remained unemployed during the entire period from 23-5-

1998 to 16-8-1999 is correct. Even the learned counsel for

the appellant herein has admitted before this Court that he

was not allowed to perform his duties after obtaining his

signature on 22-5-1998.”

20. Similar view was taken by the Hon’ble Supreme Court in the case of

DeepaliGunduSurwase vs. Kranti Junior AdhyapakMahavidyalaya (D.Ed.)

& Ors.reported in (2013) 10 SCC 324 wherein following has been held:

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“38.1. In cases of wrongful termination of service,

reinstatement with continuity of service and back wages is

the normal rule.

38.2. The aforesaid rule is subject to the rider that

while deciding the issue of back wages, the adjudicating

authority or the court may take into consideration the

length of service of the employee/workman, the nature of

misconduct, if any, found proved against the

employee/workman, the financial condition of the

employer and similar other factors.

38.3. Ordinarily, an employee or workman whose

services are terminated and who is desirous of getting

back wages is required to either plead or at least make a

statement before the adjudicating authority or the court of

first instance that he/she was not gainfully employed or

was employed on lesser wages. If the employer wants to

avoid payment of full back wages, then it has to plead and

also lead cogent evidence to prove that the

employee/workman was gainfully employed and was

getting wages equal to the wages he/she was drawing

prior to the termination of service. This is so because it is

settled law that the burden of proof of the existence of a

particular fact lies on the person who makes a positive

averment about its existence. It is always easier to prove a

positive fact than to prove a negative fact. Therefore, once

the employee shows that he was not employed, the onus

lies on the employer to specifically plead and prove that

the employee was gainfully employed and was getting the

same or substantially similar emoluments.”

[Emphasis Supplied]

21. Similar such view was taken by a Division Bench of the High Court of

Telengana at Hyderabad in its judgment dated 10.09.2024 in WP no. 7517 of

2018 [P.V. Suryanarayana vs. The High Court of Judicature for the State

of Telengana&Ors.] presided over by one of us (Sujoy Paul, J.).

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22. In view of the discussion made hereinabove, we thus findno reason to

pass an order for payment of back wages to the writ petitioner in absence of

any pleading to the effect he was not gainfully employed after removal and in

absence of any proof that during the period from 30.09.2003 till the date of his

actual retirement in the year 2014 he remained unemployed. However, on

account of allowing the instant writ petition we direct the respondents

authorities to disburse all retiraldues to the writ petitioner on notional basis as

if he retired on his actual day of superannuation and such disbursement shall

have to be made positively within sixty working days from the date of

communication of the server copy of this judgement.

23. Before parting with the matter, we record our appreciation for the able

assistance provided by both the sides in general and by Mr. Debottam Das,

learned counsel of legal aid in particular.

24. With the aforementioned observation the instant writ petition is allowed

to the extent indicated hereinabove.

25. Urgent photostat certified copy of this judgement, if applied for, be given

to the parties on completion of usual formalities.

I agree.

(SUJOY PAUL, C.J.)

(PARTHA SARATHI SEN, J.)