Karnataka High Court
Sri.S. Rajkumar S/O Sriramaiah M.C vs Divisinoal Section Commissioner/Rpf on 8 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC-D:9390
WP No. 101939 of 2021
C/W WP No. 101960 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 8TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.101939 OF 2021(S-DIS)
C/W
WRIT PETITION NO.101960 OF 2021
IN WP.NO.101939/2021:
BETWEEN:
SRI S. RAJKUMAR S/O. SRIRAMAIAH M.C.,
AGE ABOUT 54 YEARS, OCC: NIL,
R/O: MARAGONODANAHALALI, SULIKERE POST,
KENGERI HOBLI, BENGALURU - 560 060.
...PETITIONER
(BY SRI SAURABH A. SONDUR & S.S. FADNIS, ADVOCATES)
AND:
Digitally signed
by V N BADIGER
1. DIVISINOAL SECTION COMMISSIONER/RPF,
Location: High SOUTH WESTERN RAILWAY, HUBBALLI,
Court of
Karnataka DIST: DHARWAD - 580 020.
2. THE DEPUTY CHIEF SECURITY
COMMISSIONER RPF & APPELLATE AUTHORITY,
HEAD QUARTERS OFFICE,
NEW ZONAL OFFICE BUILDING,
SOUTH WESTERN RAILWAY,
GADAG ROAD, TQ: HUBBALLI,
DIST: DHARWAD - 580 020.
3. THE IG CUM PRINCIPAL CHIEF SECURITY
& REVISION AUTHORITY, COMMISSIONER, RPF,
HEAD QUARTERS OFFICE,
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NC: 2024:KHC-D:9390
WP No. 101939 of 2021
C/W WP No. 101960 of 2021
NEW ZONAL OFFICE BUILDING,
SOUTH WESTERN RAILWAY,
GADAG ROAD, TQ: HUBBALLI,
DIST: DHARWAD - 580 020.
4. THE UNION OF INDIA,
REPRESENTED BY PRL. CHIEF SECURITY
COMMISSIONER, RAILWAY PATROL FORCE,
SOUTH WESTERN RAILWAY, RAIL SOUDHA,
GADAG ROAD, HUBBALLI - 580 020.
...RESPONDENTS
(BY SRI VENKATESH M. KHARVI, CGSC)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI, QUASHING THE ORDER
BEARING NO.H/XP.227/153/SR/ 06/19 DATED 30/11/2019
PASSED BY RESPONDENT NO.1 VIDE ANNEXURE-E
AND ETC.,
IN WP.NO.101960/2021:
BETWEEN:
SRI G. MANJUNATHA S/O. LATE GOVINDARAJU,
AGE ABOUT 53 YEARS, OCC: NIL,
R/O: NO. 32, 8TH CROSS, 8TH MAIN,
SHARADAMBA NAGAR, JALAHALLI,
BENGALURU - 560 013.
...PETITIONER
(BY SRI SAURABH A. SONDUR & S.S. FADNIS, ADVOCATES)
AND:
1. DIVISIONAL SECTION COMMISSIONER/RPF,
SOUTH WESTERN RAILWAY, HUBBALLI,
DIST: DHARWAD - 580 020.
2. THE DEPUTY CHIEF SECUITY
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NC: 2024:KHC-D:9390
WP No. 101939 of 2021
C/W WP No. 101960 of 2021
COMMISSIONER RPF & APPELLATE AUTHORITY,
HEAD QUARTERS OFFICE,
NEW ZONAL OFFICE BUILDING,
SOUTH WESTERN RAILWAY, GADAG ROAD,
TQ: HUBBALLI, DIST: DHARWAD - 580 020.
3. THE IG CUM PRINCIPAL CHIEF
SECURITY COMMISSIONER,
RPF & REVISION AUTHORITY,
HEAD QUARTERS OFFICE,
NEW ZONAL OFFICE BUILDING,
SOUTH WESTERN RAILWAY,
GADAG ROAD, TQ: HUBBALLI,
DIST: DHARWAD - 580 020.
4. THE UNION OF INDIA, REPRESENTED BY PRL. C
HIEF SECURITY COMMISIONER,
RAILWAY PATROL FORCE,
SOUTH WESTERN RAILWAY,
RAIL SOUDHA, GADAG ROAD,
HUBBALI - 580 020.
...RESPONDENTS
(BY SRI VENKATESH M. KHARVI, CGSC)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT IN THE NATURE OF CERTIORARI, TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI, QUASHING THE ORDER BEARING
NO.H/XP.227153/GM/ 05/19 DATED.30.11.2019 PASSED BY
RESPONDENT NO.1 VIDE ANNEXURE-E AND ETC.,
THESE WRIT PETITIONS, COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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WP No. 101939 of 2021
C/W WP No. 101960 of 2021
ORDER
1. The petitioners in both these petitions were employed as Constable at Railway Protection Force and by transfer order dated 26.03.2019, they were transferred from their existing post at Bengaluru to Hubballi Division of South Western Railways. The petitioners aggrieved by the said order had apparently filed W.P. No.15044/2019 before the Principal Bench and the said writ petition was dismissed. Thereafter, petitioners preferred an appeal before respondent No.2 - the Appellate Authority, who by its order dated 14.12.2020, produced at Annexure-H dismissed the said appeal declining to accept the grounds urged by the petitioners. Thereafter, petitioner preferred revision petition and the said revision petition was also dismissed, by order dated 09.04.2021. Against which, the petitioners are before this Court, in these writ petitions.
2. Learned counsel appearing for the petitioner taking through the charge sheet, notices dated 10.05.2019, 14.06.2019 & 17.07.2019 submits that, the said notices were -5- NC: 2024:KHC-D:9390 WP No. 101939 of 2021 C/W WP No. 101960 of 2021 issued by the respondent-authority to the petitioner through Registered Post Acknowledgment Due to the address shown in the cause title, which has been duly received by the petitioner. The petitioners have even issued the reply to the said notices. Further, referring to the document at Annexure- R6, produced along with the statement of objections in both these cases he submits that, the petitioners had received the aforesaid three notices issued through Registered Post Acknowledgement Due, as such nothing prevented the respondent-authority to issue the articles of charges though Registered Post instead of allegedly serving the same by affixture. He submits that, non serving of the said articles of charges in the manner known to law, has deprived the petitioner of an opportunity of giving their reply / response vitiating the entire process. Learned counsel for the petitioners submits that imposition of punishment of dismissal is disproportionate to the misconduct alleged.
3. Learned counsel appearing for the petitioner further refers to Rule 156(b) of the Railway Protection Force -6- NC: 2024:KHC-D:9390 WP No. 101939 of 2021 C/W WP No. 101960 of 2021 Rules, 1987 (for short "the Rules, 1987") and submits that, even on merits, the punishment of dismissal imposed upon on the petitioners by the respondent-authority is unsustainable, as there is no such provision under Rule 156(a)(i) & (vi) of the Rules, 1987. He submits that, it is only removal which is provided for the misconduct of remaining absence from duty without proper intimation. Thus, he submits that, even on merits, the petitioner could not have been dismissed from the service. Therefore, he submits that, the petitioners are entitled for modification of the said punishment.
4. In response, learned counsel appearing for the respondents - Railways submits that, the orders passed by the Appellate Authority and the Revisional Authority cannot be found fault with, inasmuch as the petitioners were given sufficient opportunity to give their response and since, they deliberately kept away without obeying the orders of transfer, the order of dismissal was passed. Not complying with the lawful orders amounts to offence falling under the -7- NC: 2024:KHC-D:9390 WP No. 101939 of 2021 C/W WP No. 101960 of 2021 provisions of sub-Rule (i) & (iii) of Rule 147 of the Rules, 1987 and the punishment for the same is contemplated under Rule 9 & 17, which prescribes dismissal from service. Thus, he submits that no fault can be found with the orders passed.
5. Heard. Perused the records.
6. Admittedly, the petitioners were served with the order of transfer, dated 29.03.2019 directing the petitioners to report to the duty at the transferred place on 05.04.2019. The petitioners have not reported to the duty till 03.08.2019. The transfer is an incident of employment. It is settled law that if the employee aggrieved by the order of transfer is required at first o comply with the order of transfer and then is at liberty to challenge the same in the manner known to law. In the instant case, after the order of transfer, the petitioners have not reported to the duty, though they have mounted a challenge to the said transfer by filing the writ petition.
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7. The reasons assigned by the petitioners not to report to the place of transfer are their ill-health and lack of opportunity to participate in the disciplinary proceedings. Not being satisfied with the reasons assigned, three notices were issued by the respondents - authorities and thereafter articles of charges were issued. The petitioners' contention is that three notices dated 10.05.2019, 14.06.2019 & 07.07.2019 that were issued through Registered Post Acknowledgement Due have been duly replied by the petitioners. Such being the case, articles of charges dated 03.08.2019 could also have been sent through Registered Post Acknowledgement Due. Thus, the articles of charges have not been duly served on the petitioners depriving them of the opportunity of defending their case. As rightly taken note of by the Appellate Authority in the orders impugned at Annexure-H in Page No.7 under the Heading "remark of plea of appellant" which can be inferred that the petitioners were very well aware of the consequences of they not complying with the orders of transfers and further they having been already issued three notices, could not be expected to say -9- NC: 2024:KHC-D:9390 WP No. 101939 of 2021 C/W WP No. 101960 of 2021 that they being deprived of opportunity merely because the articles of charges were not sent through Registered Post acknowledgement due. Therefore, the plea of lack of opportunity also cannot be countenanced. However, there is a considerable force in the submission being made by the learned counsel for the petitioners that imposition of punishment being disproportionate and not as contemplated under Rule 156(b) of the Rules, 1987. It is necessary to extract the Rule 156 of the Rules, 1987:
"156. Imposing of punishment of dismissal, etc.:
Before coming to any lower punishment, the disciplinary authority with a view to ensuring the maintenance of integrity in the Force shall consider the award of punishment of dismissal or removal from service to any member of the Force in the following cases, namely :-
(a) Dismissal :
(i) conviction by a criminal court;
(ii) serious misconduct or indulging in
committing or attempting or abetting an offence against railway property;
(iii) discreditable conduct affecting the image and reputation of the Force;
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(iv) neglect of duty resulting in or likely to result in loss to the 82 railway or danger to the lives of persons using the railways;
(v) insolvency or habitual indebtedness; and
(vi) obtaining employment by concealment of his antecedents which would ordinarily have debarred him from such employment.
(b) Removal from service :
(i) any of the misconduct for which he may be dismissed under clause (a) above;
(ii) repeated minor misconducts;
(iii) absence from duty without proper intimation or overstay beyond sanctioned leave without sufficient cause."
8. The case of the respondents initially was of the unauthorized absence of the petitioners, which is covered under Section 156(b)(ii) and (iii) of the Rules, 1987 consequence of which is their removal from the service. As regards dismissal from service as noted above, unauthorized absence is no ground for dismissal.
9. Though, learned counsel appearing for the respondents referring to the provisions of Rule 147(i) & (iii) and submits that the conduct of the petitioners in not
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NC: 2024:KHC-D:9390 WP No. 101939 of 2021 C/W WP No. 101960 of 2021 reporting to the place of transfer amounts to violation of duty and disobeying the lawful orders of the superiors, it is not clear as to the punishment that can be handed over for the said offences. As the said Rule refers to the punishment under Sections 9 & 17 or both of the Railway Protection Force Act, 1957 (for short "the Act, 1957").
10. Section 9 of the Act, 1957, reads as under:
"9. Dismissal, removal, etc., of members of the force.-- (1) Subject to the provisions of article 311 of the Constitution and to such rules as the Central Government may make under this Act, any superior officer may--
(i) dismiss, suspend or reduce in rank any [enrolled member] of the Force whom he shall think remiss or negligent in the discharge of his duty, or unfit for the same; or
(ii) award any one or more of the following punishments to any 2 [enrolled member] of the Force who discharges his duty in a careless or negligent manner, or who by any act of his own renders himself unfit for the discharge thereof, namely:--
(a) fine to any amount not exceeding seven days' pay or reduction in pay scale;
(b) confinement to quarters for a period not exceeding fourteen days with or
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(c) removal from any office of distinction or deprivation of any special emolument.
[(2) Any enrolled member of the force aggrieved by an order made under sub-section (1) may, within thirty days from the date on which the order is communicated to him prefer an appeal against the order to such authority as may be prescribed:
Provided that the prescribed authority may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(3) In disposing of the appeal, the prescribed authority shall follow such procedure as may be prescribed:
Provided that no order imposing an enhanced penalty under sub-section (2) shall be made unless a reasonable opportunity of being heard has been given to the person affected by such order.]"
11. Section 17 of the Act, 1957 refers to the penalty for neglect of duty etc., which reads as under:
"17. Penalties for neglect of duty, etc.--
(1) Without prejudice to the provisions contained in section 9, every enrolled member of the Force who shall be guilty of any violation of duty or wilful breach or neglect of any rule or lawful order made by a superior officer, or who shall withdraw from duties of
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NC: 2024:KHC-D:9390 WP No. 101939 of 2021 C/W WP No. 101960 of 2021 his office without permission, or who, being absent on leave, fails, without reasonable cause, to report himself for duty on the expiration of the leave, or who engages himself without authority for any employment other than his duty as an enrolled member of the Force, or who shall be guilty of cowardice may be taken into Force custody and shall, on conviction, be punished with imprisonment which may extend to one year.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1973), an offence punishable under this section shall be cognizable and non-bailable.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1973), the Central Government may invest Assistant Inspector- General, Senior Commandant or Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by an enrolled member of the Force and punishable under this Act, or any offence committed by an enrolled member of the Force against the person or property of another member of the Force:
Provided that--
(i) when the offender is on leave or absent from duty; or
(ii) when the offence is not connected with the offender's duties as an enrolled member of the Force; or
(iii) when it is a petty offence even if connected with the offender's duties as an enrolled member of the Force; or
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(iv) (iv) when, for reasons to be recorded in writing, it is not practicable for the Commandant invested with the powers of a Magistrate to inquire into or try the offence, the offence may, if the prescribed authority within the limits of whose jurisdiction the offence has been committed so requires, be inquired into or tried by an ordinary criminal court having jurisdiction in the matter.
(4) Nothing contained in this section shall be construed to prevent any enrolled member of the Force from being prosecuted under any other law for any offence made punishable by that law, or for being liable under any such law to any other or higher penalty or punishment than is provided for such offence by this section:
Provided that no person shall be punished twice for the same offence.]"
12. In that view of the matter, though the charge memo refers to both unauthorized absence as well as failing to carry out the lawful order issued by the competent authority, this Court inclines to accept the submission of the learned counsel for the petitioner, inasmuch as, Rules 156(b) of the Rules, 1987 specifically provides for penalty of punishment of 'removal' for unauthorized absence.
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13. Under the peculiar fact situation of the matter, wherein the petitioners though have not reported to the duty and are charged with misconduct of remaining unauthoisedly absent, which cannot be strictly construed simplicitor that they had failed to carry out the lawful orders by the competent authority. Considering the nature of allegations, this Court finds that the punishment of dismissal is too harsh and instead the petitioner be handed over the punishment of removal from service.
14. Accordingly, the petition is partly allowed modifying the order of punishment from 'dismissal' to 'removal' as contemplated under Rule 156(b) of the Rules, 1987.
SD/-
JUDGE VNP*/CT-ASC List No.: 1 Sl No.: 20