Gujarat High Court
Attar Singh vs Union Of India & 5 on 10 November, 2017
Author: Anant S.Dave
Bench: Anant S. Dave, A.Y. Kogje
C/SCA/13467/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13467 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order
made thereunder ?
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ATTAR SINGH....Petitioner(s)
Versus
UNION OF INDIA & 5....Respondent(s)
=======================================================================
Appearance:
MR IH SYED, ADVOCATE with MR CHIRAG B UPADHYAY, ADVOCATE for the Petitioner(s)
No. 1
MR SIRAJ R GORI, ADVOCATE for the Respondent(s) No. 1 - 4
RULE NOT RECD BACK for the Respondent(s) No. 5 - 6
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 10/11/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner, a retired Page 1 of 15 HC-NIC Page 1 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT Assistant Security Commissioner, Railway Protection Force (RPF), Ahmedabad, has prayed as under:-
"B. This Hon'ble Court may be pleased to issue a Writ of Mandamus and/or any other appropriate Writ, Order or direction to quash and set aside the order directing institution of Departmental Proceedings against the petitioner pursuant to the charge sheet;
C. Pending final disposal of this Petition this Hon'ble Court may stay the Departmental Proceedings arising out of the Articles of Charges framed against the Petitioner."
2. Before proceeding with the main contentions raised in this petition, it is necessary to give brief facts about the case. That a complaint was lodged against one Shri S.K.Sharma, Inspector, RPF, Ahmedabad, Western Railways on 06.12.2008 levelling allegations under the Prevention of Corruption Act and the charge against the petitioner was under Sections 343, 348 and 120B of the Indian Penal Code in the charge sheet registered as Special Case No.51 of 2010 with Special Judge, CBI Court No.3, Ahmedabad. By an order dated 06.08.2012, Director, RPF, Railway Board communicated to Additional Chief Security Commissioner, RPF, Western Railways, Mumbai, informing him that in terms of Rule Page 2 of 15 HC-NIC Page 2 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT 9(1) of the Railway Service (Pension) Rules, 1993, on behalf of Hon'ble President of India, sanction was accorded for institution of departmental proceedings as per the Railway Servants (Discipline & Appeal) Rules, 1968 against the petitioner. Accordingly, Article of Charges came to be issued along with an order for conducting departmental proceedings on 11.09.2012. Upon receiving such an order, the petitioner made a representation to the respondent on 19.09.2012 to stay the departmental inquiry. However, departmental proceedings against the petitioner continued. Thereafter also, the petitioner received various communications, i.e. on 10.07.2013 and 14.07.2013 about preliminary hearing of the case pursuant to departmental proceedings and therefore, the petitioner is constrained to approach this Court so as to challenge initiation of departmental proceedings against the petitioner as illegal and contrary to the provisions of the Railway Service (Pension) Rules, 1993 on several main amongst other grounds.
3. Shri I.H.Syed, learned Counsel appearing for the petitioner would contend that the respondent authority lacks power to initiate departmental proceedings against the petitioner in view of no amendment carried out in the Railway Servants (Discipline Page 3 of 15 HC-NIC Page 3 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT & Appeal) Rules, 1968 and the Pension Rules, 1993. It is submitted that the Railway Protection Force Act, 1957 provides Section 2 containing definition. Section 2(1)
(a) defines "Force". Clause-(c) defines "Member of the Force" and Clause-(f) defines "Superior Officer". Section 3 is about "Constitution of the Force". Section 4 pertains to "Appointment and power of superior officers". The petitioner herein falls in the category of superior officer holding post of Assistant Security Commissioner at the time of retirement, which is equivalent to Assistant Commandant. Section 10 of the Act, 1957 is about Officers and Members of the Force deemed to be Railway Servants and every member of the force shall, for all purposes, be regarded as Railway servant within the meaning of the Indian Railway Act, 1890 other than Chapter-VIA and shall be entitled to exercise of powers conferred on Railway servant by or under that Act. Section 21 of the Act, 1957 confers powers to make Rules upon the Central Government by notification in the official gazette. Sub-section (1) of Section 21 reads as under:-
"(1) The Central Government may, by notification in the official gazette make rules for carrying out the purposes of this Act."
3.1 Chapter-XI under the head of "Discipline and Page 4 of 15 HC-NIC Page 4 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT Conduct" of the Railway Protection Force Rules, 1987 framed in exercise of Section 21 of the Railway Protection Force Act, 1957 contains Rule 132, i.e. Rules governing discipline. Rule 132.1 reads as under:-
"132.1 Save as otherwise provided in these rules, the Railway Servants (Discipline and Appeal) Rules, 1968 as amended from time to time shall, so far as may be, apply to superior officers subject to the modifications that-
(a) in sub-rule (1) of rule 3 of the said
rules, clause (b) shall be omitted;
(b) references to "General Manager", wherever
they occur in the said rules, shall be
substituted by references to "Director General, Railway Protection Force."
3.2 The Railway Servants (Discipline and Appeal) Rules, 1968 are framed in exercise of powers conferred by proviso to Article 309 of the Constitution of India and Rule 3 about application of the Rules, which reads as under:-
"Application - (1) These rules shall apply to every Railway servant but shall not apply to-
(a) any member of the All India Services;
(b) any member of the Railway Protection Force as defined in the Railway Protection Force Act, 1957 (23 of 1957);Page 5 of 15
HC-NIC Page 5 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT
(c) any person in casual employment; and
(d) any person for whom special provision is made, in respect of matters covered by these rules by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions.
(2) Notwithstanding anything contained in sub- rule (1), the President may, by order, exclude any class of Railway servants from the operation of all or any of these rules."
3.3 Under Railway Servants (Discipline and Appeal) Rules, 1968, Rule 2(1)(e) defines "Railway Servant" and Clause-(f) defines 'Service' means a service under the Ministry of Railways. Rule 2(1)(e) reads as under:-
"(e) 'Railway servant' means a Railway servant as defined in clause 43 of Rule 103 of Volume I of the Indian Railway Establishment Code (Fifth Edition-1985) and includes any such Railway servant on foreign service or whose services are temporarily placed at the disposal of any other department of the Central Government or a State Government or a local or other authority;"
3.4 Rule 9 of the Railway Services (Pension) Rules, 1993 as amended upto 2013 empowers the President to Page 6 of 15 HC-NIC Page 6 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT accord sanction to initiate departmental proceedings. Rule 9 reads as under:-
"9. Right of the President to withhold or withdraw pension (1) The President reserves to himself the right of withholding or withdrawing a pension or gratuity, or both, either in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any peculiar loss caused to the railway, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement;
Provided that the Union Public Service Commission shall be consulted before any final orders are passed.
Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of rupees three thousand five hundred per mensem."
3.5 One of the main contentions raised by Shri I.H.Syed, learned Counsel appearing for the petitioner is that Rule 132.1 no doubt provides applicability of the Railway Servants (Discipline and Appeal) Rules, 1968 to superior officer of Railway Protection Force, but subject Page 7 of 15 HC-NIC Page 7 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT to the modification of the Railway Servants (Discipline and Appeal) Rules, 1968, viz. deletion of Rule 3(1)(b) of the Rules, 1968. Though Rule 132.1, by which Rule 3(1)
(b) of the Railway Servants (Discipline and Appeal) Rules, 1968 is omitted, but applicability thereof is subject to corresponding amendment to be carried out in the Rules, 1968, particularly Rule 3(1)(b) of the Rules. RPF Rules are framed under Section 21 of the Act, 1957 while the Railway Servants (Discipline & Appeal) Rules, 1968 are framed under proviso to Article 309 of the Constitution of India.
4. As against this, Mr.Siraj Gori, learned Standing Counsel appearing for respondent authorities contended that purport and purpose of Rule 132.1, either on plain and simple reading or even by applying harmonious reading of provisions of both the Rules, viz. The Railway Protection Force Rules, 1987 and the Railway Servants (Discipline and Appeal) Rules, 1968 in juxtaposition to Section 10 of the Railway Protection Force Act, 1957 do not require any corresponding amendment, viz. Deletion of Rule 3(1)(b) of the Rules, 1968.
4.1. Mr.Gori, learned Standing Counsel has placed on record copies of Railway Protection Force Rules, 1959 and Railway Protection Force Regulations, 1966. That Rules Page 8 of 15 HC-NIC Page 8 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT of 1959 were framed in exercise of powers conferred by Section 21 of the RPF Act, 1957 and were notified on 10.09.1959 and were published in the Gazette of India Part-II also on 10.09.1959.
4.2 Rule 39 under the head of "Discipline" in Chapter-IX is about "Rules governing discipline". Sub- rule (1) of Rule 39 reads as under:-
"(1) Superior Officers shall be governed by the rules applicable to gazetted railway servants of corresponding rank in respect of disciplinary proceedings, punishments, appeals, revisions and representations."
Sub-rule (2) of Rule 39 reads as under:-
"(2) The members of the Force shall in such matters be governed by the rules in this chapter."
4.3 It is submitted that the applicability of the Discipline and Appeal Rules of railway servant was thus statutorily recognized since enactment of 1959 Rules and in the Rules of 1987, framed in exercise of powers under Section 21 of the Railway Protection Force Act, 1957, under Chapter-XI, a specific provision was made under Rule 132 with heading "Rules governing discipline", in which in clear terms in Clause-(a) of Rule 132.1, Clause-
(b) in sub-rule (1) of Rule 3 of the Railway Servants (Discipline and Appeal) Rules, 1968 came to be omitted Page 9 of 15 HC-NIC Page 9 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT and the word "shall" used therein mandated such omission. 4.4 Further, in consonance with requirement of sub- section (3) of Section 21 of the Railway Protection Force Act, 1957, the Railway Protection Force Rules, 1987 were laid on the table of both Houses of the Parliament and as per the correspondence 19.02.1991 addressed by Under Secretary, Lok Sabha Secretariat, it is stated that no motion for modification or annulment of the Railway Protection Force Rules, 1987 was adopted by the Lok Sabha. Likewise, another correspondence dated 14.02.1991 from Under Secretary, Rajya Sabha Secretariat reveals that the above Rules were laid on the table of the house (Rajya Sabha) for a period of 30 days while it was in session. However, the House has not so far passed any resolution concerning the aforesaid Rules. 4.5 According to Shri Gori, sub-section (3) of Section 21, after the Rules framed in exercise of powers under Section 21 of the Act, 1957 are tabled while each of the houses of the Parliament is in session for a total period of 30 days, irrespective of any resolution passed thereon, either with modification or otherwise, such Rules shall take effect once it is notified and so published in the Government gazette.
4.6 It is next contended that the Rules framed Page 10 of 15 HC-NIC Page 10 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT under Chapter-XI - Discipline and Conduct are uniformly applied and all the superior officers are governed by the Railway Servants (Discipline and Appeal) Rules, 1968.
5. As against above, Mr.I.H.Syed reinforces his submissions that procedure undertaken in exercise of powers under Section 21 of the Railway Protection Force Act and publishing the Rules of 1987 in the official Government gazette taking a route of Parliament approval, however required corresponding amendment /modification /deletion of Rule 3(1)(b) of the Railway Servants (Discipline and Appeal) Rules, 1968, framed under proviso to Article 309 of the Constitution of India 'Subject to' which is admittedly not undertaken.
6. In view of the rival submissions as above, certain undisputed facts emerge on record as under:-
I. The petitioner is charged for not
maintaining absolute integrity, devotion
to duty and acted in a manner unbecoming of a Railway Servant in contravention of Rule-3.I (i), (ii) and (iii) of the Railway Services (Conduct) Rules, 1966. II. In exercise of powers conferred upon Hon'ble the President of India under Rule- 9 of the Railway Services (Pension) Rules, Page 11 of 15 HC-NIC Page 11 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT 1993, sanction was accorded to institute departmental proceedings against the petitioner.
III. The above departmental proceeding shall be instituted by Additional Chief Security Commissioner, Railway Protection Force, Western Railways in accordance with the procedure laid down in Rule-9 of the Railway Services (Discipline & Appeal) Rules, 1968.
7. Therefore, so far as powers conferred upon Hon'ble the President of India under Rule 9 of the Railway Services (Pension) Rules, 1993 are concerned, at this stage, we are not inclined to deliberate on contentions raised, but the issue remains in a narrow compass so far as failure to carry out amendment in Rule- 3(1)(b) of the Railway Servants (Discipline and Appeal) Rules, 1968 framed in exercise of powers conferred under proviso to Article 309 of the Constitution of India.
8. On perusal of record of the case, viz. the Railway Protection Force Act, 1957, the Railway Protection Force Rules, 1987 framed thereunder in exercise of powers conferred under Section 21 of the Act, 1957, in juxtaposition to the Railway Servants Page 12 of 15 HC-NIC Page 12 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT (Discipline and Appeal) Rules, 1968, no doubt by Rule 132.1 of the the Railway Protection Force Rules, 1987 framed in exercise of powers under Section 21 the Railway Protection Force Act, 1957, sub-rule (8) of Rule 3 of the Railway Servants (Discipline and Appeal) Rules, 1968 is mandated to be deleted, but in view of language of Rule- 132.1, the above modification shall have to be carried out in the Rules, i.e. the Railway Servants (Discipline and Appeal) Rules, 1968 by following due procedure as envisaged. So far as other issues, viz. definition contained in the Railway Protection Force Act, 1957 of "force" as per Section 2(1)(a) and clause-(c) about "member of the Force", clause-(f) about "superior officer" and Section 4 about "Appointment and powers of superior officers", the petitioner, in the capacity as an Assistant Security Commissioner (retired), remains undisputed. The contention of Mr.Gori about placement of the Railway Protection Force Rules, 1987 before both the House of Parliament as per correspondence dated 14 and 19th February 1991, also remains undisputed, but it does not carry case of the respondents any further since no deletion of Rule-3(1)(b) of the Railway Servants (Discipline and Appeal) Rules, 1968 is made so far.
9. Therefore, on the above issue alone, we find that so long as the above deletion of sub-rule(1)(b) of Page 13 of 15 HC-NIC Page 13 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT Rule-3 of the Railway Servants (Discipline and Appeal) Rules, 1968 has not taken effect, viz. consequent to amendment of Rule 132.2 of RPF Rules, the petitioner could not have been subjected to disciplinary proceedings by following procedure under Rule-9 of the Railway Servants (Discipline and Appeal) Rules, 1968. Therefore, exercise of powers by respondents of initiating departmental proceedings by following procedure under Rule 9 of the Railway Servants (Discipline and Appeal) Rules, 1968 is without any basis in law and therefore, it is illegal and unsustainable and the impugned orders deserve to be interfered with in exercise of powers under Article 226 of the Constitution of India. Thus, we have no hesitation in allowing this writ petition under Article 226 of the Constitution of India by quashing and setting aside the orders impugned dated 06.08.2012 and 11.09.2012 passed by the respective respondents of directing institution of departmental proceedings against the petitioner and also the charge sheet.
10. The writ petition is allowed accordingly. Rule is made absolute. No order as to costs.
Sd/-
(ANANT S.DAVE, J.) Sd/-
Page 14 of 15 HC-NIC Page 14 of 15 Created On Fri Nov 10 23:01:01 IST 2017 C/SCA/13467/2013 CAV JUDGMENT (A.Y. KOGJE, J.) SHITOLE Page 15 of 15 HC-NIC Page 15 of 15 Created On Fri Nov 10 23:01:01 IST 2017