Gujarat High Court
Satish S/O Ramprasad Agnihotri vs Union Of India on 1 May, 2020
Author: Vikram Nath
Bench: Vikram Nath, Ashutosh J. Shastri
C/SCA/7466/2019 CAVJUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/SPECIALCIVILAPPLICATIONNO. 7466of 2019
FORAPPROVALANDSIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy No of the judgment ?
4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== SATISHS/O RAMPRASADAGNIHOTRI Versus UNIONOF INDIA ========================================================== Appearance:
MR KK SHAH(767)for the Petitioner(s)No. 1
MR RAVI KARNAVAT(1650)for the Respondent(s)No. 1,2,3,4 MR GAURAV K LAKHWANI(9520)for the Respondent(s)No. 5 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH and HONOURABLE MR.JUSTICE ASHUTOSH J. SHASTRI Date: 01/05/2020 C.A.V. JUDGMENT (PER: HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH)
1. The Court is well aware and conscious of the basic cardinal tenets regarding its scope of jurisdiction under Article 226 of the Constitution of India, which Page 1 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT have been reiterated in a plethora of judgments of the Supreme Apex Court. However, the case at hand, before the Court is such, that has pricked the conscience of the court and has left the Court terribly perturbed and the factual matrix is such that warrants interference of the Court in order to prevent a gross miscarriage of justice.
2. The present petition deserves to be allowed on any of the four major grounds raised, viz, (i) initiation of the disciplinary proceedings by an officer not competent under the Railway Protection Force Rules, 1987, (ii) the proceedings being malafide, (iii) the proceedings being vitiated on account of non-appointment of a Presenting Officer and (iv) the orders of all the Authorities suffer from the vice of being not in consonance with the requirements laid down in the 1987 Rules.
3. However, a deeper understanding of the facts and evidence, has led the Court to draw a conclusion regarding the abominable conduct of the proceedings and the shocking and perverse orders passed by the Page 2 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT Disciplinary Authority, the Appellate Authority and the Revisional Authority.
4. The crux of the entire matter rests upon the shaky foundations laid by a feeble and lame complaint, whereby it was alleged that after snatching Rs. 2,200/-
from the Complainant, Rs. 2,000/- were returned to him and for the remaining Rs. 200/, a receipt for fine under the Tobacco Act was issued. From the sequence of events, as they transpired, it is quite evident that there was neither any loss to complainant nor any loss to the Railway Protection Force. As a matter of fact, two officers, i.e. One Inspector and one Assistant Security Commissioner conducted preliminary inquiries against the petitioner and have given their reports to drop the proceedings against the petitioner and rather to take appropriate action against Respondent No. 5, i.e. Constable Satyavir Krishniya, who had identified himself as a previous acquaintee of the Complainant.
5. A bare appreciation of the facts of the present case would reveal that the officers of the Railway Page 3 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT Protection Force were sent on a wild-goose chase across the country for the tracing the complainant (from different districts in Uttar Pradesh to Gujarat) by Respondent No. 5, i.e. Satyavir Krishniya and further getting disciplinary proceedings initiated against the petitioner, for settling his own scores of personal vendetta against the Petitioner. It is quite interesting to see that the officers of the Railway Protection Force, quite readily and credulously played in the hands of the scheme hatched by Respondent No. 5, i.e. Satyavir Krishniya.
6. The Respondent No. 5 appears to be the architect behind the entire charade and it is further the Court's conclusion, that the said Respondent was not even interested in the inquiries nor was he pursuing them. It is appalling to see the amount of time and money spent in conducting repeated inquiries, departmental and preliminary, where the complainant had been taking contradictory stands time and again and that too, for an incident, the facts of which were suitably refashioned by the Respondent No. 5 to suit his own vested interests. Page 4 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020
C/SCA/7466/2019 CAVJUDGMENT We have dealt with in detail, in the subsequent paragraphs, from the stage of the incident till the completion of the inquiry, passing of the punishment order, the subsequent dismissal of the statutory appeal and the revision. The present facts reflect such disconcerting circumstances, that the Court would be abdicating and relegating its judicial duty if it did not observe that the petitioner is the real victim and the complaint was nothing but a design based on personal vengeance concocted by the Respondent no. 5.
7. The present writ petition has been filed under Article 226 of the Constitution of India praying for the following reliefs:
"(A)To admit and allow this petition;
(B) To direct the respondent to quash and set aside the Charge Sheet dt 09/09/2016 Annexure-B, The order passed by the Disciplinary Authority dt.31/7/2017 Annexure-F, Dismissing the petitioner from service, Appellate Authority order dated 25/7/2018 Annexure-I and Revisional Authority order dated 14.12.2018 Annexure-K, by holding the same as bias, unilateral, against the principles of natural justice and also in violation of Section 6 of the RPF Act and also Article 14, 16 and 21 of the Constitution of India. The Charge sheet required to be held against the rules and in violation Page 5 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT of Principles of Natural Justice, with close mind and predetermine the action and orders of penalty are malafide at the instance of respondent no.5. The penalty imposed by the Disciplinary Authority is illegal, null and void and as a consequence the orders passed by the Appellate Authority and Revisional Authority are also to be quashed and set aside. The respondents be directed to give all consequential benefits, continuity of service including seniority and promotion if any, as if the penalty order is not imposed, arrears of back wages of salary with interest may kindly be passed. The rule 153(5) may kindly be held ultravires and unconstitutional.
(C) Pending the admission hearing and final disposal of this petition, be pleased to direct the respondents not to execute and implementation of order of Dismissal from Service, considering the facts that the orders are without authority and power resulting and effecting the lively hood and higher education of the children of the petitioner and therefore, the petitioner be reinstated forthwith to save from the further socio economic death.
(D) As an Ad interim prayer in terms of prayer (C) above may kindly be granted.
(E) Call for the records and file of the Disciplinary case and investigation done in the interest of justice.
(F) To pass any other and further reliefs that may be deemed fit just and proper and in the interest of justice".
8. By means of the impugned orders, the petitioner has been dismissed from service as Sub-Inspector, Protection Force in the Railway Protection Force (RPF). Page 6 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020
C/SCA/7466/2019 CAVJUDGMENT 9. The petitioner was originally appointed as Constable in the Railway Protection Force on
28.07.1990. He was thereafter promoted as a Head Constable by order dated 05.05.1999 and further promoted as Assistant Sub-Inspector Protection Force (ASPF) on 24.06.2005 and again promoted as Sub- Inspector Protection Force (SIPF) in 2016.
10. It is also stated in paragraph-7 of the petition that the petitioner during his service period received many cash prizes and appreciation letters, which are detailed as follows :
(i) He was awarded cash prize of Rs.27,000/- by the Deputy Director, Security Railway Board, on 19.06.2009 for recovering a girl kidnapped one year back.
(ii) He was awarded cash prize of Rs.150/- for executing 16 warrants in two and a half months on 11.10.2010.
(iii) In 2012, the petitioner had caught two dacoits in Rajkot Express and had seized cash money Page 7 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT and other stolen articles, including Silver, for which he was given appreciation letter.
(iv) In 2013, the petitioner was awarded cash award of Rs.160/- for good work.
(v) In the year 2013, the petitioner was awarded Rs.500/- cash award for good work and detention of passengers for offences.
11. On the relevant day, i.e. 2nd November, 2015, the petitioner was on escort duty attending to Avadh Express Train No.19037 Dn. between Godhra and Ratlam Railway Stations along with other staff of the Railway Protection Force. The petitioner was leading the Escort Party of five members which included Head Constable, Prem Prakash Sharma, Head Constable Kailashi Lal, Head Constable Jagadish Chandra and Constable Satyavir Krishaniya. The petitioner had formed three teams to cover up the entire train, i.e. all its coaches including pantry. Two teams of two members each were deputed for the front and rear part of the train whereas the petitioner alone undertook to check Air Conditioned coaches of the train.
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12. While passing through a reserved Sleeper Coach, (S-1), the petitioner noticed two young boys aged 17 to 20 years sitting in the corridor near the washrooms smoking cigarette. He inquired from them about their details and reprimanded them for smoking inside the train compartment. Their names were revealed as Virendra Kumar Yadav (referred to as "Virendra Yadav" hereinafter) and Rajat Sahu. As per the provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (referred to as "Tobacco Act" for short), the petitioner fined them Rs.200/- each and issued receipts bearing Nos.27708 and 27709 which were given to them. It was also revealed that these two passengers did not carry a valid ticket for travelling in a reserved coach and as such, as they were unauthorised passengers in the reserved coach, they were further reprimanded for the same by the petitioner.
13. After completing his escort duty, the petitioner got down at Ratlam Station, went to the office at the Station and deposited Rs.400/- in the treasury therein Page 9 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT for which he was issued the relevant receipts. The petitioner also made the necessary entries in the Roznamcha at the office of Railway Protection Force at Ratlam Station.
14. In the evening, on the same day, the petitioner received a phone call from Shri Pradip Kumar Jadon, Inspector Reserved Company RPF posted at Ratlam Station informing him that Constable Satyavir Krishaniya had made some complaint against the petitioner of snatching/extorting Rs.2,200/- from a passenger Virendra Yadav while on escort duty on Avadh Express in the morning. The petitioner explained the whole episode to Inspector Jadon and also informed him that he had fined the two passengers of Rs.200/- each, which was also deposited in the Treasury at the RPF Office at Ratlam Station, immediately after alighting from the train in the morning before noon. Shri Jadon required the petitioner to submit the entire episode in writing which the petitioner did. He never came to know of any further development from Shri Jadon but was informed that Shri Jadon had forwarded his report dated 7.11.2015 Page 10 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT (Annexure-P to the petition) to his Superior Officer.
15. On 10.11.2015, Senior Divisional Security Commissioner, RPF, Ratlam, not satisfied with the report of Inspector Shri Pradip Kumar Jadon ordered, Shri Ashok Kumar Jani then posted as Assistant Security Commissioner, RPF, Ratlam to inquire into the matter. Shri Jani is said to have made exhaustive inquiry afresh from all the concerned and submitted a detailed report dated 4.2.2016 (Annexure-R to the petition).
16. Still, not satisfied with the two preliminary fact finding reports dated 7.11.2015 and 4.2.2016 referred to above, Shri Shambu Saran Singh, Assistant Security Commissioner, RPF Ratlam, was entrusted to make preliminary inquiry, that would be the third preliminary inquiry. Shri Shambu Saran Singh, Assistant Security Commissioner again made inquiries and recorded statements of all the concerned who had earlier also been examined in the two inquiries referred to above. He submitted his report dated 3.8.2016 (part of Annexure-B to the petition). In the said report, he recorded his Page 11 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT conclusion as follows:-
(i) The petitioner with an ill-intention had snatched Rs.2,200/- from the complainant Virendra Yadav.
However, on the intervention of Constable Satyavir Krishaniya, he returned Rs.2,000/- to the complainant and further issued a receipt of Rs.200/- under the Tobacco Act; that the petitioner had forged signatures of the complainant on the receipt and further had also made interpolations in the Roznamcha entry.
(ii) Constable Satyavir Krishaniya deliberately and for ulterior motives did not disclose about the complaint immediately in the morning after alighting from the train but only disclosed of the same in the evening to Inspector Shri Jadon and further to mislead the administration retained the original complaint with him and further, without due permission of Senior Officers, disclosed the said incident to the Press and Media.
(iii) Inspector Niraj Singh Parihar and Head Constable Prem Prakash Sharma, RPF who were assigned Page 12 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT the job of recording the statement of the complainant by travelling to his native place in Uttar Pradesh, had submitted incorrect statement of the complainant by forging his signatures.
17. Based on the above report dated 3.8.2016 of Shri Shambu Sharan Singh, Assistant Security Commissioner, three separate inquiries were set up, one against the petitioner, second against Constable Satyavir Krishaniya and third against Inspector Niraj Singh Parihar.
18. The petitioner was given a Memorandum dated 9.9.2016 along with charge sheet duly signed by the Senior Divisional Security Commissioner, RPF, Western Railway, Vadodara stated to be the Disciplinary Authority (Annexure-B to the petition). By the same Memorandum, Shri Sanjay Pise, Assistant Security Commissioner, Vadodara was appointed as Inquiry Officer. It would be relevant to note that no Presenting Officer was appointed. It would further be relevant to note that along with the charge sheet a copy of the report Page 13 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT dated 03.08.2016 submitted by Shri Shambhu Sharan Singh was enclosed.
19. The charge sheet is also signed by the same Officer. The charges although described as one but in effect it contained following three separate charges:-
i) Snatching of Rs.2,200/- from the complainant Virendra Yadav;
ii) Preparing false receipt of Rs.200/- as fine under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act; and
iii) Making interpolation in the Roznamcha.
20. The Inquiry Officer, Shri Sanjay Pise, after completing the inquiry as per the provisions contained in the Railway Protection Force Rules, 1987 came to the following conclusions vide his report dated 31.1.2017 (Part of Annexure-D to the petition) :-
He found the first charge of snatching of Rs.2,200/-
to be proved. The second and third charges regarding preparation of a false receipt with forged Page 14 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT signatures of the complainant and the interpolation in the Roznamcha were not found to be proved.
21. Office of the Senior Divisional Security Commissioner, Vadodara, vide covering letter dated 1.2.2017 (Annexure-D to the petition) called for representation/explanation from the petitioner on the inquiry report dated 31.1.2017, a copy of which was enclosed, within 15 days. The petitioner submitted his reply dated 9.2.2017 (Annexure-E to the petition).
22. The Deputy Inspector General and Additional Chief Security Commissioner, RPF, Churchgate, who is now said to be the Disciplinary Authority, passed a punishment order of dismissal dated 31.7.2017 (Annexure-F to the petition).
23. Aggrieved by the punishment order, the petitioner preferred an appeal under Rule 212 of the 1987 Rules dated 28.8.2017 (Annexure-G to the petition). Further, on 17.11.2017, the petitioner submitted additional evidence (Annexure-H to the petition) along with which, Page 15 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT he annexed a copy of the statement of the complainant Virendra Yadav given by him in the inquiry against Inspector Niraj Singh Parihar dated 6.11.2017, wherein he had denied the incident of snatching of Rs.2,200/-, admitted his fault of smoking in the train and being fined for the same by the petitioner.
24. The Inspector General and Principal Chief Security Commissioner, Railway Protection Force, Western Railway, Churchgate, the Appellate Authority vide order dated 25.7.2018 dismissed the appeal (Annexure-I to the petition).
25. Aggrieved by the above order passed by the Appellate Authority, the petitioner preferred revision under Rule 219 of the 1987 Rules before the Director General, RPF, dated 16.8.2018 (Annexure-J to the petition). The Director General, RPF, vide order dated 14.12.2018 dismissed the revision (Annexure-K to the petition).
26. Aggrieved by the above three orders, the present petition has been preferred.
27. Affidavit-in-reply and an additional affidavit in Page 16 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT reply were filed by respondent Nos.1 to 4 being Union of India through Director General and Other Officers of the Railway Protection Force. No affidavit-in-reply was filed by the respondent No.5. Petitioner filed two affidavits in response to the affidavits filed by respondents 1 to 4.
28. We have heard Shri K.K. Shah, learned counsel for the petitioner, Shri Ravi Karnavat, learned counsel for respondent Nos. 1 to 4 and Shri G.K. Lakhwani, learned counsel representing respondent No.5 and have perused the pleadings on record as also the written briefs.
29. Shri K.K.Shah, learned counsel for the petitioner has raised the following arguments. We are recording the arguments in brief and would elaborate the same on the basis of the pleadings and the material on record at a later stage while discussing the same:-
(i) Repeated orders for preliminary inquiry are not contemplated under law and it smacks of malice and is apparently for extra legal considerations.
(ii) The conduct of the Officers of RPF in dealing with Page 17 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT the entire matter is unwarranted in law and was only with the motive to somehow or the other punish the petitioner, that is to say that the petitioner was being victimised.
(iii) The report of the Inquiry Officers, the orders passed by the Disciplinary Authority, the Appellate Authority and the Revisional Authority are vitiated in law as relevant material has been ignored whereas reliance has been placed on irrelevant material. The orders passed by the above authorities are also vitiated being non-speaking and cryptic.
(iv) The penalty imposed by the Deputy Chief Security Commissioner is by an Officer below the rank of the Disciplinary Authority and, therefore, the punishment order is without the authority of law.
(v) The Inquiry Officer has been appointed without waiting for reply to the charge sheet and as such, the charge sheet is vitiated.
(vi) The Inquiry Officer and the Presenting Officer were Page 18 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT one and the same and as such, the entire inquiry is vitiated, being quasi-judicial proceedings in which the prosecution and the Judge are the same.
(vii) The impugned proceedings are in violation of the principles of natural justice and fair play, arbitrary and discriminatory and as such, violate the fundamental rights guaranteed under Articles 14, 16, 21 and 311 of the Constitution of India.
(viii) The first two preliminary inquiry reports were not made part of the proceedings.
(ix) The entire proceedings were carried on, right from the stage of first preliminary inquiry, on the basis of a xerox copy of the complaint as the original was submitted before the Inquiry Officer only at the stage when Constable Satyavir Krishaniya was examined. Thus also, the proceedings are vitiated.
(x) The entire proceedings are the result of mala fide and influence brought about by Constable Satyavair Krishaniya, who had an axe to grind against the petitioner for having filed a complaint against him Page 19 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT and his friend Constable Darshan Singh.
(xi) The respondents have not come out with clean hands even in the counter affidavit and have tried to misguide and mislead the Court.
30. Shri Ravi Karnavat, learned counsel for the respondent - Railway Protection Force in response to the arguments raised by learned counsel for the petitioner has submitted that none of the arguments advanced from the side of the petitioner have any substance and are liable to be rejected. According to Shri Karnavat, it is incorrect to say that three preliminary inquiries were conducted. According to him, as the first report dated 07.11.2015 forwarded by Inspector Shri Pradip Kumar Jadon did not contain the version of the complainant, the Senior Divisional Security Commissioner vide order dated 10.11.2015 had directed the Assistant Security Commissioner - Shri Ashok Kumar Jani to conduct the preliminary inquiry. Further, according to Shri Karnavat and as also stated in the affidavit-in-reply of respondent Nos.1 to 4, Shri Ashok Kumar Jani, the second officer who conducted the preliminary inquiry, before Page 20 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT completing the same and before he could submit the report, was transferred and therefore the same inquiry was entrusted to the Assistant Security Commissioner - Shri Shambhu Sharan Singh who submitted the report on 03.08.2016, prima facie holding the petitioner of having committed serious misconduct.
31. Shri Karnavat further submitted that the issue raised regarding punishment being awarded by an officer below the rank of competent authority/disciplinary authority is also misconceived, as according to him, it was the Deputy Inspector General-cum-Additional Chief Security Commissioner, RPF, Church Gate, Mumbai who had awarded the punishment vide order of dismissal dated 31.07.2017 as he was the disciplinary authority under the Rules.
32. Further, it is submitted by learned counsel for the respondents that the argument relating to malice is also misconceived and there is no basis or foundation for raising this argument. Shri Karnavat further submitted Page 21 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT that the inquiry was conducted strictly in accordance to the provisions contained in the 1987 Rules and full opportunity was given to the petitioner to participate in the inquiry, to cross-examine the witnesses of the department and also to lead evidence which the petitioner did and therefore, the petitioner could have no grievance regarding the inquiry being in violation of principles of natural justice and fair play. Shri Karnavat further added that the petitioner had given in writing that he was fully satisfied with the inquiry proceedings conducted by Shri Sanjay Pise - the Inquiry Officer.
33. Shri Karnavat further submitted that there is no provision under the Rules to seek reply to the charge- sheet, however, after the completion of the inquiry, the rules require an opportunity being given, which was adequately provided. He also submitted that the rules do not provide for appointment of Presenting Officer and therefore even if the Presenting Officer was not appointed, it would not vitiate the proceedings in any manner as they were conducted in accordance to law. Page 22 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020
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34. Shri Karnavat also submitted that the absence of the original complaint was duly taken note of by the authorities for which separate inquiry was set up against Constable Satyavir Krishaniya, who had retained the original complaint and for such misconduct he was awarded punishment in the inquiry and therefore, this argument also has no substance. It was lastly submitted by Shri Karnavat that the facts stated in the affidavit-in- reply are based on record and there is no attempt by the authorities to mislead the Court.
35. Shri Gaurav Lakhwani, learned counsel for respondent No.5 i.e. Constable Satyavir Krishaniya, submitted that the allegations of malafide against respondent No.5 are ill-founded and baseless. He further submitted that for retaining the original complaint, respondent No.5 has been duly punished. It is also submitted by Shri Lakhwani that respondent No.5 had accompanied the Assistant Security Commissioner - Shri Shambhu Sharan Singh, the officer who submitted the preliminary inquiry report dated 03.08.2016 to Surat for recording the statement of the complainant was not at all Page 23 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT illegal or unauthorized and it was in the interest of department that respondent No.5 had accompanied him.
36. Learned counsel for the petitioner has placed reliance upon a number of judgments in support of his submissions which we shall duly consider at the appropriate stage while dealing with respective arguments.
37. In order to appreciate the entire gamut, we proceed chronologically with the events as they took place and accordingly deal with the arguments raised by the respective counsels.
38. The acquaintance of the complainant Virendra Yadav with respondent No.5 Constable Satyavir Krishaniya from before the incident is admitted not only in the statement of Virendra Yadav - the complainant, in the inquiry, but also in the affidavit-in-reply filed by respondent Nos.1 to 4. The annoyance of respondent No.5 Satyavir Krishaniya with the petitioner has been alleged by the petitioner right from the beginning and during the cross-examination in the inquiry, the Page 24 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT petitioner had specifically suggested to Constable Satyavir Krishaniya that as he was annoyed on account of a previous complaint having been made by the petitioner with respect to respondent No.5 as also his friend Constable Darshan Singh, he had an axe to grind against the petitioner. Constable Satyavir Krishaniya did not deny the suggestion but only stated that he did not remember. He very conveniently avoided to answer the suggestion.
39. There are two versions of the incident which took place in Avadh Express on 02.11.2015 between Godhara and Ratlam relating to the complainant - Virendra Yadav. According to the petitioner, on account of unauthorized travelling in a reserved coach and for smoking cigarettes in the compartment, the petitioner had reprimanded two boys, Virendra Yadav and his friend Rajat Sahu and had also fined them Rs.200/- each, for which due receipt was issued and the amount of fine deposited in the Treasury of the RPF office at Ratlam Station on the same day.
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40. The Escort Team comprising of five members led by the petitioner returned back and made due entries in the Roznamcha at the office of RPF at Railway Station, Ratlam at 9:45 a.m. on 02.11.2015. At that time, Constable Satyavir Krishaniya did not make any complaint nor submitted the alleged complaint given by the complainant Virendra Yadav. The Inspector, Reserve Company (RPF) posted at Ratlam Station Shri Pradip Kumar Jadon was informed by Constable Satyavir Krishaniya at 5:30 p.m. in his office that he had received a written complaint from a passenger travelling on Avadh Express (Coach-S1) and a photocopy of the same was handed over, according to which the complainant had initially been robbed of Rs.2,200/- after being assaulted by the petitioner but later on Rs.2,000/- was returned to the complainant. The Inspector Shri Jadon called the complainant on his two mobile numbers mentioned in the said complaint which was a piece of paper from a diary of 2011, however, the efforts of Shri Jadon to communicate with the complainant could not fructify as he never picked up his phone on either of the numbers Page 26 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT nor returned the call. Inspector Shri Jadon recorded the statement of Constable Satyavir Krishaniya who repeated the contents of the complaint and further stated that on his intervention the petitioner returned Rs.2,000/- to the passenger and prepared a receipt of Rs.200/- as fine for smoking cigarette under the provisions of the Tobacco Act. The statements of all the other three Head Constables, who were members of the same Escort Party, namely, Prem Prakash Sharma, Kailash Lal and Jagdish Chandra were also recorded. All the three Head Constables stated that they had not heard or seen anything regarding the said incident. Shri Jadon also recorded the statement of the petitioner who reiterated his version of checking the two boys travelling unauthorizedly in a reserved coach and smoking cigarettes for which they were reprimanded and fined Rs.200/- each. He also stated that under a conspiracy he is being victimized and that he had not committed any misconduct but had always acted in the interest of the Force.
41. Inspector Jadon submitted his report dated Page 27 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT 07.11.2015 to the Senior Divisional Security Commissioner, Ratlam, that his prima facie finding is that he smelled some conspiracy in the manner in which the complaint was produced after such a long delay and only providing the photostat copy of the original complaint and also causing damage to the image of RPF while leaking the alleged incident to the Press and Media without approval of the competent authority. Shri Jadon was also of the view that the complaint is an afterthought and is malafide. The report of Shri Jadon dated 07.11.2015 is Annexure-P to the petition. The complete papers including the statements of the members of the Escort Team are part of Annexure-P.
42. We may record here that it has been incorrectly stated by respondent Nos.1 to 4 in the affidavit-in-reply that the second officer appointed for conducting the preliminary inquiry, namely, the Assistant Security Commissioner, Shri Ashok Kumar Jani never submitted any report as he could not complete the same on account of his transfer. This fact is incorrect. Shri Ashok Kumar Jani conducted a thorough preliminary inquiry Page 28 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT and submitted a detailed report dated 04.02.2016. The same is filed as Annexure-R to the petition. Shri Jani recorded the statements of all concerned and also put questions to each of the witnesses in order to elicit the truth. From a perusal of the report, it appears that Constable Satyavir Krishaniya avoided to answer the questions which were unfavourable and continued to add spice to the alleged complaint of Virendra Yadav by further alleging that the petitioner had prepared a false receipt of fine which did not contain the signatures of the complainant and further that the petitioner had made interpolation in the Roznamcha in order to protect himself. Shri Jani further recorded the statements of all the members of the Escort Party, also examined the original record of Roznamcha, also verified the deposit of Rs.400/- by the petitioner at the Treasury of the RPF office at Ratlam Station, immediately after alighting from the train and also questioned the petitioner about the alleged cutting which the petitioner duly explained. Shri Jani further recorded the statements of the staff at the office of RPF at Ratlam Station regarding the entries Page 29 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT made by the petitioner and the deposit of Rs.400/- collected as fine. Despite several opportunities the complainant did not come forward to record his statement. The conclusion drawn by Shri Ashok Kumar Jani was that Constable Satyavir Krishaniya had deliberately, with an ulterior motive and in consultation with others had obtained the complaint from Virendra Yadav, who was apparently known to him from before, much after about 7 to 8 hours alighting from the train informed the Inspector on duty in the evening and provided him only a photostat copy of the complaint while retaining the original with him, informed the members of the Press and Media without due permission. He further concluded that the cutting in the Roznamcha was on account of bonafide mistake.
43. Thus, what is noticed and which is also apparent from the record that the main complainant was not Virendra Yadav but it was actually Constable Satyavir Krishaniya. Despite the above two reports, one of the Inspector and other of the Assistant Security Commissioner, the respondents by camouflaging that the Page 30 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT Assistant Security Commissioner - Shri Ashok Kumar Jani had never submitted any report, got another officer appointed to conduct the preliminary inquiry.
44. If one reads the report dated 04.02.2016 (Annexure-R) submitted by Shri Ashok Kumar Jani which records the statements of all concerned and also clearly mentions that the complainant Virendra Yadav despite being given several opportunities did not come up to record his statement nor send it by any mode, there is no other option left for him but to proceed with the same on the basis of the material available. No prudent person would have ordered third inquiry unless influenced by extraneous force. Apparently, the effort was to somehow or the other search for some evidence and submit a report unfavourable to the petitioner so that a regular disciplinary inquiry could be instituted.
45. In the meantime, Inspector Niraj Singh Parihar and Constable Prem Prakash Sharma were deputed to visit the native place of the complainant in Utter Pradesh. Both travelled to Uttar Pradesh and recorded Page 31 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT the statement of complainant Virendra Yadav on 04.06.2016 in the presence of his father Shri Harish Chandra Yadav and the Pradhan / Sarpanch of the village Shri Manoj Kumar. All three signed on the statement. Inspector Shri Parihar submitted the same along with covering letter dated 07.06.2016, to the Senior Divisional Security Commissioner, Ratlam (Annexure-M to the petition). There could have been no reason to doubt the same. Still the Senior Divisional Security Commissioner, Ratlam doubted its veracity for whatever reason best known to him and directed Shri Shambhu Sharan Singh to travel to Surat and get fresh statement recorded of the complainant.
46. Shri Shambhu Sharan Singh, Assistant Security Commissioner, the officer conducting the third inquiry, travelled to Surat on 11.07.2016 surprisingly accompanied by Constable Satyavir Krishaniya, who actually prepared the written statement of complainant Virendra Yadav in his own handwriting with only the signatures of the complainant on it further lends credence to the contention of the petitioner that the Page 32 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT Constable Satyavir Krishaniya was the whole sole architect of the entire proceedings.
47. Constable Satyavir Krishaniya had travelled to Surat without any authority as no authorization letter has been placed on record of any superior officer permitting Constable Satyavir Krishaniya to accompany Shri Shambhu Sharan Singh to Surat. On the statement prepared by Constable Satyavir Krishaniya the complainant had put his signatures. It is recorded therein that complainant and his friend were robbed of their monies. It also adds that initially Rs.60,000/- was demanded by the petitioner but later on whatever was in their pockets was snatched. More spice added. It also records that all excess money was returned and only Rs.200/- each was retained by the petitioner.
48. The third inquiry report dated 03.08.2016 which is part of Annexure-B to the petition more or less records the statements of the same witnesses who had been earlier examined and their statements were still the Page 33 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT same. It was mainly on the statement of Virendra Yadav
- the complainant and Constable Satyavir Krishaniya that prima facie finding of misconduct was recorded by Shri Shambhu Sharan Singh, Assistant Security Commissioner. Apart from Virendra Yadav - the complainant and Constable Satyavir Krishaniya, there was no other evidence to support the allegation of snatching Rs.2,200/- and then returning Rs.2,000/-. Surprisingly no statement of the other passenger Rajat Sahu was recorded by Shri Shambhu Sharan Singh.
49. It would further be relevant to note from the evidence led in the inquiry that complainant Virendra Yadav has admitted in his cross-examination that he knew Constable Satyavir Krishaniya from before and that Constable Satyavir Krishaniya had requested him to depose about the complaint otherwise his own service was in danger. Thus, apparently, Virendra Yadav - the complainant deposed and supported the complaint on the request and under influence of Constable Satyavir Krishaniya. Complainant Virendra Yadav has also stated in his cross-examination during the inquiry that he was Page 34 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT occasionally talking to Constable Satyavir Krishaniya and also following his instructions.
50. Prima facie from the above, it appears that holding of third preliminary inquiry was a result of extraneous considerations, may be at the behest of Constable Satyavir Krishaniya who could be finding favours with some officers in the Force. It is also evident that the officers of the Force were not acting in a reasonable and prudent manner but with bias.
51. Based on the inquiry report dated 03.08.2016, the Memorandum dated 09.09.2016 was issued along with charge-sheet under the signatures of the Senior Divisional Security Commissioner, RPF, Western Railway, Vadodara. By the same Memorandum, Shri Sanjay Pise, Assistant Security Commissioner was appointed to conduct the disciplinary inquiry. Interestingly, although it had come in the statement of the petitioner that there were two boys smoking cigarettes, travelling in an unauthorized coach and both had been fined Rs.200/- each under the Tobacco Act, Page 35 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT but the charge-sheet refers only to one complainant Virendra Yadav having been robbed of Rs.2,200/- and of returning Rs.2,000/- to the complainant and preparing a false receipt of Rs.200/- as fine under the Tobacco Act.
52. The complainant Virendra Yadav appeared in the inquiry to support his complaint. His statement is basically to the same effect that he along with his friend Rajat Sahu was travelling in a coach not authorized under the ticket which they were carrying, that they were smoking cigarettes in the coach and further that the petitioner had robbed Rs.1,000/- from Rajat Sahu and Rs.1,200/- from the complainant and later on had returned Rs.1,000/- each to both of them and had also issued the receipt which bore his signatures, which he admitted. Rajat Sahu also appeared and reiterated the same story and took the same stand as was taken by Virendra Yadav.
53. In the inquiry, the petitioner had led report of the Handwriting Expert and had also filed the affidavit given by complainant Virendra Yadav in which he had denied the incident of being robbed but had rather admitted his Page 36 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT fault.
54. The inquiry report submitted by Shri Sanjay Pise runs into 83 pages of which the discussion is only of 10 pages, 3 pages dedicated to the first charge and remaining 7 pages to charge Nos.2 and 3. The first charge has been found to be proved whereas charge Nos.2 and 3 have not been found to be proved. The petitioner had been alleging bias, malice and malafide right from the very beginning but the Inquiry Officer does not deal with this aspect of the matter at all. During discussion, the Inquiry Officer does not even deal with the other material evidence led by the petitioner. He discarded the statement of Inspector Jadon who was also examined as witness from the department side. The credibility of the inquiry report thus appears to be doubtful and appears to be a result of bias.
55. A Show Cause Notice is given to the petitioner requiring him to furnish his comments on inquiry report, on 01.02.2017, to which the petitioner replied on 09.02.2017. The Show Cause Notice is from the office of Page 37 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT the Senior Divisional Security Commissioner, RPF, Vadodara, the same officer who had issued the Memorandum and the charge-sheet. However, surprisingly the punishment order dated 31.07.2017 is from the office of Inspector General-cum-Chief Security Commissioner and duly signed by Deputy Inspector General-cum-Additional Chief Security Commissioner, RPF, Church Gate, Mumbai. In the affidavit-in-reply of respondent Nos.1 to 4, it is specifically stated in paragraph-3 (viii) that award of punishment owing to the gravity of the act of the petitioner was not within the competence/jurisdiction of the Senior Divisional Security Commissioner, RPF, Vadodara. In paragraph-3 (ix), it is stated that the DAR file was thus forwarded to the next appropriate authority i.e. the Deputy Inspector General- cum-Chief Security Commissioner, RPF, Church Gate, Mumbai, as per Rule-154.2 of the 1987 Rules (wrongly mentioned as 154.2 whereas it should be 154.3). In paragraph-3 (x) of the affidavit-in-reply, it is stated that the Deputy Inspector General-cum-Chief Security Commissioner, RPF, Church Gate, Mumbai, after Page 38 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT perusing the relevant documents along with the inquiry report and the defence of the petitioner, found the misconduct of snatching Rs.2,200/- as proved and it was just and proper to dismiss the petitioner and accordingly the dismissal order dated 31.07.2017 was passed.
56. The above development on the part of the respondents raises a pertinent question regarding the propriety, authority and jurisdiction of the Senior Divisional Security Commissioner, RPF, Vadodara, to initiate disciplinary proceedings and issue the Memorandum and the charge-sheet. Before we deal with this aspect, relevant provisions under the 1987 Rules need to be considered.
57. Chapter-XII of the 1987 Rules deals with disciplinary and penal punishments. Rule 148.2 enlists the major punishments. The first major punishment mentioned is dismissal from service in Clause (a) thereof. Rule 151 describes the disciplinary authority. Rule 151.1 states that the disciplinary authority in respect of any Page 39 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT enrolled member would be as specified in this behalf in Schedule-III of the Rules. Further, Rule 152 speaks of authority empowered to institute proceedings. According to it, the appointing authority or any authority otherwise empowered by general or special order may institute disciplinary proceedings against any enrolled member or direct a disciplinary authority to institute disciplinary proceedings against any enrolled member of the force. This clearly means that any authority otherwise empowered by general or special order would be superior to disciplinary authority or even the appointing authority would be superior to disciplinary authority.
58. Rule-153 deals with procedure for imposing major punishment and under the relevant sub-rules of Rule-153, the word used everywhere is disciplinary authority. As such it would be essential to examine as to who is the disciplinary authority. For the said purpose, it would be relevant to refer to Schedule-III. In Schedule- III, relevant for the present matter would be the reference to the authorities mentioned for awarding punishment of dismissal at serial No.2. The Divisional Security Page 40 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT Commissioner/Security Commissioner/Commanding Officer/Senior Security Commissioner are authorized to award punishment of dismissal to all enrolled members of the force below the rank of Sub-Inspector. The petitioner was promoted as Sub-Inspector prior to the issuance of the Memorandum dated 09.09.2016 i.e. the initiation of the disciplinary proceedings. Further, according to Schedule-III Additional/Deputy Chief Security Commissioner/Principal, RPF Academy would be the disciplinary authority for awarding punishment of dismissal to all enrolled members of the force below the rank of Inspector. It is this authority under which the petitioner would fall being a Sub-Inspector. The Memorandum dated 09.09.2016 refers to the petitioner as Sub-Inspector, Protection Force and therefore, the disciplinary authority on the relevant date of initiation of disciplinary proceedings would be Deputy/Additional Chief Security Commissioner and not Senior Divisional Security Commissioner. Therefore, the very initiation of proceedings would be in jeopardy having been initiated by an officer below the rank of disciplinary authority. Page 41 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020
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59. For the benefit of the above, we hereby reproduce Rules-151, 152 and 153, sub-rules 153.1 upto 153.5 and relevant extract of Schedule-III of the 1987 Rules:
"151. Disciplinary Authority:
151.1 The disciplinary authority in respect of any enrolled member of the Force for the purpose of imposing any particular punishment o r the passing of any disciplinary order shall be the authority specified in this behalf in Schedule III in whose administrative control the member is serving and sh all include any superior to such authority.
151.2 The disciplinary authority, in the case of an enrolled member of the Force officiating in a higher rank, shall be determined with reference to the officiating post held by him at the time of taking action.
152. Authority to institute proceedings: 152.1 The appointing authority or any authority otherwise empowered by general of special order, may -
(a) institute disciplinary proceedings against any enrolled member; or
(b) direct a disciplinary authority to institute disciplinary proceedings against any enrolled member of the Force on whom the disciplinary authority is competent to impose, under these rules, any of the punishment s specified in rules 148 and 149.
152.2 A disciplinary authority competent under these rules to impose any of the minor punishments may institute disciplinary proceedings for the imposition of any of the major punishments notwithstanding that such disciplinary authority is not competent, under these rules, to impose any of the latter punishments.
153. Procedure for imposing major punishments: 153.1 Without prejudice to the provisions of the Public Servants Inquires act, 1850, no order of dismissal, removal, compulsory retirement or reduction in ranks shall be passed Page 42 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT on any enrolled member of the Force (save as mentioned in rule 161 ) without holding an inquiry, as far as may be in the manner provided hereinafter, in which he has been informed in writing of the grounds on which h it is proposed to take action, and has been afforded a reasonable opportunity of defending himself.
153.2.1. Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of m is conduct or misbehaviour against an enrolled member of the Force, it may itself inquire into or appoint an Inquiry Officer higher in rank to the enrolled member charged but not below the rank of Inspector, or institute a Court of Inquiry to inquire in to the truth thereof. 153.2.2. Where the disciplinary authority itself holds the inquiry, any reference to the Inquiry Officer in these rules shall be construed as reference to the disciplinary authority. 153.3. On receipt of complaint or otherwise, the disciplinary authority on going through the facts alleged or brought out shall decide whether it is a case for major punishment. No attempt shall be made to convert cases punishable under section 16 A or section 17 into disciplinary cases nor dive rt cases in respect of which major punishments are imposable to the category of cases where minor or petty punishments are imposable.
153.4 Where it is proposed to hold an inquiry against an enrolled member of the Force under this rule, the disciplinary authority may order that the enrolled member shall not e transferred to any other place nor given leave without its written permission till the conclusion of the disciplinary proceedings, and the disciplinary authority shall draw up or cause to be drawn up -
(a) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(b) a statement of the imputations of misconduct or misbehaviour in support or each article or charge which shall contain,-
(i) a statement of all relevant facts including any admission or confession made by the enrolled member of the Force;
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(ii) a list of document by which and a list of witness by whom the articles of charge are proposed to be sustained. 153.5 The disciplinary authority shall to be delivered to the delinquent member, at least seventy-two hours before the commencement of the inquiry, a copy of the articles of charge, the statement of imputations of misconduct or misbehaviour and a list of documents and witness by which each article of charge is proposed to be sustained and fix a date when the inquiry is to commence; subsequent dates being fixed by the Inquiry Officer.
SCHEDULE-III DISCIPLINARY AUTHORITIES AND THEIR POWERS (See rules 25 & 133) Sr. Nature of Director- Chief Security Additional/ Dy. Divisional Deputy/ No. powers General Commissioner Chief Security Security Assistant Commissioner/ Commissioner Security Principal, RPF / Security Commissioner Academy Commissioner / Assistant Commanding Commandant Officer/ Senior of RPSF/ Security Adjutant Commissioner 1 Suspension All All enrolled All enrolled All enrolled All under enrolled members of members of members of officers and members the Force the Force the Force below of the Force 2 Dismissal -do- -do- All enrolled All enrolled No powers members of members of the Force the Force below the rank below the rank of Inspector. of Sub-
Inspector 3 Removal -do- -do- -do- -do- -do-
4. *** *** *** *** *** ***
60. From the above, it is more than apparent that the rules mandated for the proceedings are that the disciplinary inquiries are to be initiated by the disciplinary authority only. Consistently, the word used in the above Rules is disciplinary authority. Even Rule- Page 44 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020
C/SCA/7466/2019 CAVJUDGMENT 152 which talks of appointing authority or any other authority authorized or empowered in that behalf, to be an authority superior to the disciplinary authority. Once the relevant rules and Schedule-III of the 1987 Rules provides for Deputy/ Additional Chief Security Commissioner to be the disciplinary authority for the petitioner who was a Sub-Inspector initiation of the proceedings and issuance of the charge-sheet, would itself be by a lower authority not empowered or competent to do so and therefore the entire inquiry would stand vitiated being without jurisdiction.
61. Now coming to the next question with regard to the correctness of the inquiry report, the orders passed by the Disciplinary Authority, Appellate Authority and the Revisional Authority. Insofar as the inquiry report is concerned, it has already been observed that the 83 pages inquiry report contains discussion of the 3 charges only in 10 pages. The rest of the 73 pages are the recording of the inquiry proceedings of the witnesses produced by the complainant as also the petitioner. Out of the 3 pages discussion, in only 3 pages the discussion Page 45 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT on the first charge has been made and a finding of guilt has been recorded. The other 7 pages of the discussion part deals with the charge Nos.2 and 3 in which the petitioner has been found to be not guilty. This makes the inquiry extremely cryptic. Non-consideration of the evidence led during the inquiry in particular the cross- examination of the witnesses by the petitioner as also the statement of the petitioner recorded in the inquiry.
62. The disciplinary authority although records the order in 9 pages but it after recording the facts narrated by the petitioner in his representation does not deal with each aspects of the matter. The order thus appears to be vitiated on account of non-consideration of the various objections and grounds taken by the petitioner.
63. Before the Appellate Authority, after submitting the appeal, the petitioner had submitted a representation attaching along with it a copy of the statement of the complainant Virendra Yadav dated 06.11.2017 before the Inquiry Officer in the inquiry instituted against Inspector Niraj Singh Parihar. The Appellate Authority also does Page 46 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT not deal with the various arguments advanced by the petitioner in his appeal. It even fails to take into consideration the additional evidence led by the petitioner.
64. Even the Revisional Authority passed a cryptic order of one and a half pages without dealing with all aspects raised in the grounds of revision. It although refers to the statement of complainant dated 06.11.2017, but proceeded to ignore the same on the ground that it was an afterthought.
65. Under the 1987 Rules, Chapter-13 provides for appeals and revisions. Rule-217 thereof describes the manner in which the appeals are to be heard and decided. Rule-217.3 in terms provides that the Appellate Authority shall consider and decide an appeal imposing punishment specified in Rules-148 and 149 which includes major punishment by taking into consideration the various aspects elaborated in sub-clauses (a), (b) and
(c). Rule-217 of the 1987 Rules is reproduced below :
"217. Consideration of appeals:
217.1 While considering the appeal, the appellate Page 47 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT authority may, on request, grant personal hearing to the aggrieved enrolled member of the Force in case it considers it in the interest of administration and justice. 217.2 In the case of an appeal against an order of suspension, the appellate authority shall consider whether, in the light of the provisions of rules 134 and 135 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.
217.3 In the case of an appeal against an order imposing any of the punishments specified in rules 148 and 149 or enhancing any penalty imposed under the said rules the appellate authority shall consider:-
(a) Whether the procedure prescribed in these rules has been complied with, and if not whether such non-
compliance has resulted in violation of any constitutional provisions or in miscarriage of Justice;
(b) Whether the findings are warranted and based on evidence on record; and
(c) Whether the punishment or the enhanced punishment imposed is adequate or inadequate or severe and pass speaking orders for-
(i) setting aside, confirming, reducing or enhancing the punishment, or
(ii) remitting the case to the authority which imposed or enhanced the punishment or to any other authority with such directions as it may deem fit in the circumstances of the case:
Provided that -
(h) no order imposing an enhanced punishment shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced punishment; and
(iii) if the enhanced punishment, which the appellate authority purpose, is one of the punishments specified in clause(a) to (d) of rule 148.2 and an inquiry under rule 153 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 153 itself hold such inquiry or direct that such inquiry be held and thereafter on a consideration of the proceedings of such inquiry pass such orders as it may deem fit."Page 48 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020
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66. Further, filing of revision is provided in Rule-219 under the 1987 Rules. Rule-219.2 lays down that the procedure prescribed for consideration of appeal under Rule 217 would be applicable to application for revision.
67. From a perusal of the above provisions, what is to be noticed is that the Appellate Authority and Revisional Authority are under a mandate to deal with all aspects of the matter. If the statutory provisions laid down in Rule-
217 are not strictly adhered to, the order passed by the Appellate and Revisional Authority would stand vitiated. Law on this point has been elaborately dealt with by the Supreme Court in the case of R.P.Bhatt vs. Union of India, reported in AIR 1986 SC 1040. The judgment in the case of R.P.Bhatt (supra) had relied upon a Constitution Bench judgment in the case of State of Madras vs. A.R.Srinivasan, reported in AIR 1966 SC
187. It would be gainful to reproduce the extract on the above point from the judgment of A.R.Srinivasan (supra):
"Mr. Setalvad for the respondent attempted to argue that Page 49 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT the impugned order gives no reasons why the appellant accepted the findings of the Tribunal. Disciplinary proceedings taken against the respondent, says Mr. Setalvad, are in the nature of quasi-judicial proceedings and when the appellant passed the impugned order against the respondent, it was acting in a quasi- judicial character. That being so, the appellant should have indicated some reasons as to why it accepted the findings of the Tribunal; and since no reasons are given, the order should be struck down on that ground alone."
We are not prepared to accept this argument. In dealing with the question as to whether it is obligatory on the State Government to give reasons in support of the order imposing a penalty on the delinquent officer, we cannot overlook the fact that the disciplinary proceedings against such a delinquent officer begin with an enquiry conducted by an officer appointed in that behalf. That enquiry is followed by a report and the Public Service Commission is consulted where necessary. Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us somewhat unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal. It is conceivable that if the State Government does not accept the findings of the Tribunal which may be in favour of the delinquent officer, and propose to imposes a penalty on the delinquent officer, it should give reasons why it differs from the conclusions of the Tribunal, though even in such a case, it is not necessary that the reasons should be detailed or elaborate. But where the State Government agrees with the findings of the Tribunal which are against the delinquent officer, we do not think as a matter of law, it could be said that the State Government cannot impose the penalty against the delinquent officer in accordance with the findings of the Tribunal unless it gives reasons to show why the said findings were accepted by it. The proceedings are, no doubt, quasi-judicial; but having regard to the manner in which these enquiries are conducted, we do not think an obligation can be imposed on the State Government to Page 50 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT record reasons in every case."
68. The judgment of R.P.Bhatt (supra) further relied upon another Constitution Bench judgment of the Supreme Court in the case of Som Datta vs. Union of India and others, reported in AIR 1969 SC 414 and also another decision of the Supreme Court in the case of Tara Chand Khatri vs. Municipal Corporation of Delhi and others, reported in AIR 1977 SC 567. In the case of R.P.Bhatt (supra), the Supreme Court had set aside the orders passed by the Director General, Boarder Roads Organization on the ground that the various points raised by the appellant before the appellate authority had not been adverted to by the authority. Thus, in view of the law laid down by the Supreme Court and the statutory provisions, the orders passed by the Disciplinary Authority, Appellate Authority and the Revisional Authority are liable to be set aside.
69. Now coming to the next aspect i.e. the Inquiry Officer performing a dual role, that of the Presenting Officer and of the Inquiry Officer, whether such dual role Page 51 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT would vitiate the inquiry. In the judgment of the Supreme Court in the case of Union of India and Ors. vs. Ram Lakhan Sharma, reported in (2018) 7 SCC 670, a similar provision in the CRPF Rules, 1955 was dealt with where there was no provision for appointing a Presenting Officer and it was the Inquiry Officer alone who was acting in dual capacity. After discussing the law on the point, it was held in paragraph 35 of the judgment that the question as to whether Inquiry Officer, who is supposed to act independently in an inquiry has acted as prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case. Paragraph 33 to 35 of the judgment are reproduced below :-
"33. We fully endorse the principles as enumerated above, however, the principles have to be carefully applied in facts situation of a particular case. There is no requirement of appointment of Presenting Officer in each and every case, whether statutory rules enable the authorities to make an appointment or are silent. When the statutory rules are silent with regard to the applicability of any facet of principles of natural justice the applicability of principles of natural justice which are Page 52 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT not specifically excluded in the statutory scheme are not prohibited. When there is no express exclusion of particular principle of natural justice, the said principle shall be applicable in a given case to advance the cause of justice. In this context reference is made of a case of this Court in Punjab National Bank and others vs. Kunj Behari Misra, 1998 (7) SCC 84. In the above case, this Court had occasion to consider the provisions of Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977. Regulation 7 provides for action on the enquiry report. Regulation 7 as extracted in paragraph 10 of the judgment is as follows:
"7. Action on the enquiry report.--(1) The disciplinary authority, if it is not itself the enquiring authority, may, for reasons to be recorded by it in writing, remit the case to the enquiring authority for fresh or further enquiry and report and the enquiring authority shall thereupon proceed to hold the further enquiry according to the provisions of Regulation 6 as far as may be.
(2) The disciplinary authority shall, if it disagrees with the findings of the enquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.
(3) If the disciplinary authority, having regard to its Page 53 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Regulation 4 should be imposed on the officer employee, it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty.
(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned."
34. The question which was debated before this Court was that since Regulation 7(2) does not contain any provision for giving an opportunity to the delinquent officer to represent before disciplinary authority who reverses the findings which were in favour of the delinquent employee, the rules of natural justice are not applicable. This Court held that principle of natural justice has to be read in Regulation 7(2) even though rule does not specifically require hearing of delinquent officer. In paragraph 19 following was held:
"19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement Page 54 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
35. Thus, the question as to whether Inquiry Officer who is supposed to act independently in an inquiry has acted as prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case. In the present case we have noticed that the High Court had summoned the entire inquiry proceedings and after perusing the proceedings the High Court came to the conclusion that Inquiry Officer himself led the examination in chief of the prosecution witness by putting questions. The High Court further held that the Inquiry Officer acted himself as prosecutor and Judge in the said disciplinary enquiry. The above conclusion of the High Court has already been noticed from paragraphs 9 and 10 of the judgment of the High court giving rise to Page 55 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020 C/SCA/7466/2019 CAVJUDGMENT Civil Appeal No.2608 of 2012. "
70. For all the reasons recorded above, the petition deserves to succeed. The entire proceedings including the impugned orders passed by the respective authorities are accordingly quashed. The petitioner shall be reinstated in service with all consequential benefits.
71. In view of the findings recorded above, this is a fit case where costs should be imposed which we quantify at Rs.5,00,000/- (Rupees Five Lacs only) to be paid by the respondent - Railway Protection Force to the petitioner.
72. The petition stands allowed as above.
(VIKRAM NATH, CJ) (ASHUTOSH J. SHASTRI, J) A.M. PIRZADA/ GAURAVTHAKER Page 56 of 56 Downloaded on : Fri May 01 21:58:35 IST 2020