Calcutta High Court (Appellete Side)
Snandy vs (Disposed Of) on 12 December, 2018
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
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12.12.2018 WP 25140 (W) of 2016
Court No. 14
Item No. SL - 20 Pintu Kumar
snandy
Vs.
(DISPOSED OF)
Union of India & Ors.
Mr. Achin Kumar Majumdar, Advocate
......for the Petitioner
Mr. Krishna Das Poddar, Advocate
......for the Railway Authority
An order dated September 21, 2012 passed by the
Commandant Officer, 8th BN, RPSF, Chittaranjan is
under challenge in this application under Article 226 of
the Constitution of India.
The writ-petitioner was employed as a constable
with the Railway Protection Special Force. On
September 4, 2012, the petitioner was posted at New
Delhi Railway Station. A FIR came to be lodged on
September 5, 2012 against the petitioner for offences
punishable under Sections 376/506/34 of the Indian
Penal Code. The incident is stated to have occurred on
September 4, 2012, when the petitioner was, in fact, on
duty at New Delhi Railway Station. The petitioner came
to be arrested immediately after lodging of the FIR and a
custodial trial had commenced against him before the
learned Additional Sessions Judge, Special Fast Track
Court - II, Tishazari, Delhi.
During the pendency of the trial the impugned
order came to be passed. By reason of the impugned
order the Commanding Officer, dismissed the writ-
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petitioner from service by exercising power under Section
161 (ii) and (ii) of the RPF Rules, 1987. The relevant
portion of the order dated September 21, 2012 is set out
hereunder:-
I have gone through the fact finding enquiry report of
Adjutant, 8BN/RPSF/CRJ vide letter No. 8BN/F-
Finding/Enq/2012-3992 dated 17-09-2012, statements of
CT/08SF1036269 Pintu Kumar and other whiteness, copy of
FIR by victim lady, Press clip of Newspaper 'Dainik Jagaran'
dated 06-09-2012. On perusal it is found that the FIR full of the
agony, mentioned which shows what humiliation the lady must
have gone because of this constable and have tarnished the
image of the Force and at this juncture, I found it not
practicable to hold enquiry as per prescribed procedure in
relevant Rules of RPF Rules, 1987.
Secondly, I don't think conducting a DAR proceeding is
practicable because inclusion of many witness will drag
enquiry. This dragging of enquiry will harm the basic tenets
and ethos of our society where we put honour of woman at high
esteem. Departmental proceedings are based on
preponderance of probabilities and technicalities of criminal law
should not be evoked. I find sufficient material on
record/enquiry report that proves involvement of Constable
Pintu Kumar in the rape of Anjana Ahuja.
Thirdly, the duties of RPSF personnel deployed for Station
bandobust duty are responsible for the security of the
passengers and their belongings, instead of providing security
to passengers resorted to rape a lady which is not only an act
unbecoming of a uniformed personnel of the RPSF but also a
criminal act. This conduct of Cont. Pintu Kumar is very
reprehensible and it has brought down the reputation of RPSF,
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particularly, apart from bringing bad name to the Railway
Department. A security personnel is expected to inspire
confidence and the sense of security amongst the
public/passengers. However, in this case
Const./08/SF1036269 Pintu Kumar himself becomes a threat to
the department/Railway passengers, which is objectionable
and condemnable. It is a case where holding an enquriy will
demoralize the aggrieved and encourage the wrongdoer. To
maintain the integrity in the Force, it is not expedient to hold
any enquiry.
Reasonable opportunity was provided to the Constable and
his statement was recorded wherein he has admitted that he
had arranged to keep the bags of the victim in cloak room, he
had talked with the victim over mobile phone for 5/6 times on
04-09-12 and he had managed the room No. 201 in New Delhi
Rly Station illegally.
In light of the above and careful perusal of available records,
I arrive at the conclusion that Constable Pintu Kumar,
Const./08/SF1036269 had indeed involved himself in rape of
Anjana Ahuja against the ethos of his duties and against the
purpose for which he was appointed. His act has tarnished the
image of the Force. Therefore, I found him contravening RPF
Rules, 146 (i) and 146.4.
Therefore, by exercising power under Rule 161 (ii) and (iii)
of RPF Rules, 1987, Constable/08/SF1036269 Pintu Kumar,
S/o Upendra Yadav, is hereby 'dismissed from service' with
immediate effect.
It is also necessary for the purpose of the writ-
petition to give a fair and due consideration to Section
161 (ii) & (iii) of the RPF Rules, 1987, which is stated
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hereinbelow:-
161. Special procedure in certain cases:
Notwithstanding anything contained anywhere in these rules:-
i) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx; or
i) where the authority competent to impose the
punishment is satisfied for reasons to be recorded by it
in writing that it is not reasonable practicable to hold an
Inquiry in the manner provided in these rules;
i) where the President is satisfied that in the interest of
Security of State and the maintenance of integrity in the
Force, it is not expedient to hold any inquiry in the
manner provided in these rules;
the authority competent to impose the punishment may
consider the circumstances of the case and make such
orders thereon as it deems fit.
A plain reading of the aforesaid Sections reveals
that sufficient reasons are to be recorded in writing as
regards the impracticability of holding of a formal
departmental enquiry for proceeding against and for the
purpose of imposing any penalty stipulated under the
said Rules of 1987. The requirement of giving reasons is
now well settled. Absence of any reason can be fatal to
an order. Absence of proper and suitable reasons can
be equally fatal.
The reasons recorded in the impugned order for
dispensing with the enquiry, to say the least, are baffling.
The Commanding Officer has referred to Newspaper
Reports, "agony and humiliation suffered by a an alleged
victim of rape" and "tarnishing of the image of the force".
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It was also held that the holding the enquiry would "harm
the basic tenets and ethos of the society where we put
honour of woman at high esteem".
The aforesaid reasons are in the assessment of
this court no reasons at all as are required to be given for
invoking the aforesaid Section 161 of the 1987 Rules for
the purpose of dispensing with an enquiry. The said
considerations are, apart from being totally irrelevant to
the Section, more an emotional outburst than to
constitute any reason for dispensing with an enquiry and
impose a major punishment that has serious civil
consequences if not a civil death for a delinquent
employee.
The expression that "departmental proceedings
are based on preponderance of probability and
technicalities of criminal law should not be evoked",
appears to be more of a self-serving statement and
wholly irrelevant to Sec. 161. The application of the
principle of preponderance of probabilities can only be
invoked after holding a lawful enquiry after giving every
opportunity to the delinquent concerned or for that matter
after dispensing with the enquiry with due reasons. The
Commanding Officer has put the 'cart before the horse'.
The purported reasons given for dispensing with a
formal enquiry U/s 161 of 1986 Rules not being
satisfactory, the impugned order must fail on that score.
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The Commanding Officer has committed further
error by naming the alleged victim in the order, which
ought not to have been done.
The learned Counsel for the railway authorities
relied upon a judgment of the Hon'ble Supreme Court in
the case of Southern Railway Officers' Association &
Anr. Vs. Union of India reported in 2009 (3) SCC 930.
The facts of the said case are that a few employees were
charged with indiscipline and violence on a superior
officer. The violence is stated to have continued even
after the issuance of a notice of a proposed enquiry. It is
in those circumstances, the railway authorities dispensed
with holding of a formal departmental enquiry after
coming to a finding that the threat and assault and further
harm to both the enquiring authority as also the
disciplinary authority could not be ruled out. The Hon'ble
Supreme Court had accepted the contention of the
railways authorities in those circumstances.
It is, therefore, abundantly clear that the facts of
the said case are quite different from the facts of the
instant case.
Counsel for the Railways further submitted that the
writ-petitioner might have been acquitted in the criminal
proceedings by the learned Additional Sessions Judge of
the Fast Track Court at New Delhi but that decision
cannot prevent the authorities from charging the writ-
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petitioner of violation of the 1986 Rules.
The proposition is undisputed and has been settled
by the Hon'ble Supreme Court in cases that followed
after decision of Capt. M. Paul Anthony vs. Bharat
Gold Mines Ltd. & Anr. reported in (1999) 3 SCC 679.
The Proceedings both criminal as well as
departmental can be continued parallely. However, the
issue as to whether the departmental proceeding can
continue during the pendency of the criminal proceeding
is not germane to the facts of the instant case.
It is, however, curious to note that the order
impugned was passed even before the writ-petitioner
was acquitted in the criminal proceedings albeit on a
benefit of doubt.
The learned Counsel for the railway authorities has
also submitted that an enquiry was not possible since the
writ-petitioner was undergoing custodial trial. The said
argument, apart from being unacceptable in law, is not
reflected from the order as a ground for dispensing the
enquiry.
The writ petitioner had filed an appeal before the
Railway Board which was rejected by the Railway Board
vide order dated 1st March, 2016.
An application for review was also made by the
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petitioner which was rejected on 22nd July, 2016. Neither
the appellate or the reviewing authorities noticed the
above and serious infirmities in the order of the
Commandant Officer.
For the reasons above, the writ-petition must
succeed. The impugned order dated 21st September,
2012 and the orders of the Appellate Authority dated 1st
March, 2016 and the reviewing authority dated 22nd July,
2016 shall stand set aside.
The respondent-railway authorities shall, however,
be entitled to enquire into the conduct of the writ- petitioner after issuance of a formal chargesheet and complying with all the requirements and stipulations of the RPF Rules, 1987 against the petitioner.
In view of the wrongful dismissal and setting aside of the impugned order, the writ-petitioner shall be entitled to get 40% of the salary and wages that he would have been normally entitled to, had he been in service and subject to the Rules of payment thereof for RPF personnel.
The writ-petitioner shall not be entitled to any increment from the date of his arrest till date. It is made clear that the writ-petitioner shall also not be entitled to any interest for the time being. Any payment or claim in this regard to the writ-petitioner may be made subject to 9 the final outcome of the departmental proceeding that may be conducted against the writ-petitioner.
The payment of the 40% salary, as indicated above, shall be disbursed to the petitioner within 45 days from the date of communication of a copy of this order.
The learned counsel for the railway authority submits that an appeal against the order of acquittal passed by the Additional Sessions Judge, FTC, New Delhi is since pending before the Delhi High Court.
With the aforesaid observations, the writ-petition being WP 25140 (W) of 2016 is disposed of. No order as to costs.
(Rajasekhar Mantha, J.) 10