Calcutta High Court (Appellete Side)
Kanwaldeep Singh Sidhu vs Union Of India & Ors on 8 May, 2014
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
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26 08.05.2014
W.P. 13175 (W) of 2014
gd
Kanwaldeep Singh Sidhu
Vs.
Union of India & Ors.
Mr. Achin Kumar Majumder
Mr. Pratik Majumder
..for the Petitioner
Mr. Krishna Das Poddar
..for Union of India
No affidavit is called for since the order of the
disciplinary authority and the order of the
appellate authority cannot be amplified or
embellished by way of any affidavit.
The petitioner, an Inspector with the Railway
Protection Force, is alleged to have been caught
red- handed with three bags full of arms and
ammunition apparently obtained from anti-social
and subversive elements in the North-East for
disposal in West Bengal. The petitioner appears to
have been intercepted at the Guwahati Railway
Station whereupon it is alleged that the petitioner
pounced on the police party and trained a loaded
firearm at the RPF officer and threatened to kill
him. The petitioner was apparently over-powered
and disarmed by the staff at the Guwahati Station.
A criminal complaint under the Arms Act and the
Penal Code was lodged against the petitioner, he
was placed under suspension and was even
arrested before being enlarged on bail. The
criminal case is pending.
The Inspector General-cum-Chief Security
Commissioner of RPF, as the disciplinary authority
or the authority competent to impose a
punishment on the petitioner, took up the
proceedings and, without reference to the
petitioner or seeking the petitioner's oral or written
representation, conducted summary proceedings
whereat the petitioner was dismissed by an order
of December 15, 2011. An appeal preferred by the
petitioner has been rejected, though one of the
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paragraphs in the appeal requires close scrutiny:
"It is clear from the record that the incriminating
arms/ammunitions were found in the bag which was in
physical and conscious possession of the appellant.
Moreover, the appellant never brought this plea, now taken
at a belated stage, to the notice of any senior officer either
by mobile phone or any other means of communication.
Therefore, his plea cannot be accepted."
The plea of the petitioner that is referred to in the appeal is
reflected at paragraphs 12, 13 and 14 of his appeal or
supplemental petition filed in the appeal :
"12. My submission in the case is that there was another
person who was sitting by my side on the bench on
platform no 1 at Guwahati Rly station. He was
carrying one bag of black colour and the Arms and
ammo in question were recovered from that bag.
"13. I don't have any knowledge of who he was and from
where he came but he appeared to be a Bengali as
he was talking to someone on mobile in Bengali. He
was short in build. Black in colour. And some
cloths were also recovered from that bag, which are
not of my size.
"14. I emphasised on this point but IPF Guwahati was hell
bent on making a case. This is where the fumbling
took place in between him and me."
The petitioner contends that even though
Rule 161 of the Railway Protection Force Rules,
1987 permits dispensation with the regular
procedure of inquiry and provides for summary
departmental proceedings to be conducted, the
rule cannot be read to imply that action would be
taken thereunder against a person without
reference to such person or without inviting any
representation from him. It is necessary that the
relevant rule be seen :
"161. Special procedure in certain cases :
Notwithstanding anything contained
anywhere in these rules -
(i) ...
(ii) where the authority competent to impose the
punishment is satisfied for reasons to be recorded
by it in writing that it is not reasonably practicable
to hold an inquiry in the manner provided in these
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rules;
(iii) ...
the authority competent to impose the punishment may
consider the circumstances of the case and make such
orders thereon as it deems fit."
There are several ingredients of the provision.
It is first to be recognised that summary procedure
is an exception to the general rule of protracted
disciplinary proceedings initiated by a charge-sheet
and an inquiry. It is evident that summary
procedure can be conducted only by the authority
competent to impose the punishment on the
delinquent and that, prior to taking up the merits
of the allegations of misconduct, such authority is
not only required to be satisfied that it would not
be reasonably practicable to hold an inquiry into
the allegations in the manner provided by the
rules, but also record the reasons therefor in
writing. The punishment that may be imposed by
the authority is after consideration of the
circumstances of the case.
The rule, therefore, implies a two-stage
procedure. First, the competent authority has to
be satisfied that the regular procedure may be
dispensed with and a summary procedure
conducted upon recording reasons as to why it
would not be reasonably practicable to hold an
inquiry in the manner prescribed in the rules. It is
only upon the completion of this stage that the
consideration of the allegations or charges against
the perceived delinquent may be taken up. If the
initial condition is not met, the authority to
adjudicate upon the allegations or charges of
perceived misconduct is absent.
In the present case, there is no dispute that
the relevant Inspector General was the competent
person to take up the disciplinary proceedings.
However, such official has not recorded the
reasons for it not being reasonably practicable in
the case to conduct an inquiry in accordance with
the rules. In the opening lines of the relevant order
of December 15, 2012, the incident is narrated.
The second paragraph of the order details the
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firearms that were allegedly found in the
possession of the petitioner. In the third
paragraph of the order an admission is attributed
to the petitioner to the effect that he disclosed that
he purchased "the above arms and ammunition
and other objectionable items from anti-social &
subversive elements active in the North East for
further disposal in West Bengal."
Over the page on the second leaf of the order,
the opening paragraph describes the scuffle or
incident which took place at the Guwahati Station
upon the firearms being allegedly discovered from
the possession of the petitioner. The second
paragraph refers to a senior official of RPF visiting
Guwahati and sending a report of the inquiry
conducted by him. The third paragraph on the
second page goes into the merits of the allegations
against the petitioner and contains several sub-
paragraphs. The top sub-paragraph on the third
page of the order is the continuation of the
discussion on merits.
It is the following paragraph on the third
page which is of significance in the context of Rule
161 (ii) of the said Rules of 1987:
"Thus after due consideration of the facts and
circumstances as brought out by the different documents, I
am of the considered opinion that it is not reasonably
practical to hold a full-fledged enquiry under Rule 153 of
the RPF Rules, 1987. Therefore, under those compelling
circumstances there is no alternative course of action left
except to proceed under Rule 161 (ii) of the said Rules of
1987."
The two remaining paragraphs of the order
deal with the merits of the allegations against the
petitioner and the sentence.
What is evident from the relevant paragraph,
which reflects the formation of the opinion that it
was necessary to dispense with the regular
procedure as prescribed in the rules, is that the
authority was satisfied that it was reasonably
impracticable to conduct an inquiry in the matter
in accordance with the rules. What is conspicuous
in its absence, however, is any reason in support of
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the opinion which is the essence of Rule 161 (ii) of
the said Rules.
Indeed, it would be evident that the
competent authority placed the cart before the
horse, in a manner of speaking. The relevant
provision in the rules, on its appropriate
interpretation, requires first a satisfaction as to the
existence of circumstances that would warrant the
dispensation with the regular procedure and the
recording of reasons indicating the application of
the mind to the matter to arrive at the satisfaction.
The disciplinary authority in this case decided on
the merits of the charges or allegations against the
petitioner before deciding that it was reasonably
impracticable to conduct an inquiry into the
matter.
It is submitted on behalf of the railways that
the order has to be seen as a whole and it is to be
discerned therefrom whether any reasons exist to
justify the satisfaction as recorded therein of the
impracticability of conducing an inquiry in
accordance with the said rules. In such regard,
the recording in the order, of the petitioner being in
jail at the relevant point of time, is placed.
It does not appear, however, that the fact
that the petitioner was in jail weighed with the
disciplinary authority in arriving at a subjective
satisfaction that circumstances existed that
warranted the dispensation of the regular
procedure in this case. It is evident that the
gravity of the charges levelled against the petitioner
far outweighed the considerations which were
relevant in arriving at a conclusion whether it was
reasonably impracticable to conduct an inquiry
into the allegations or charges brought against the
petitioner. It was also lost on the official that the
subjective satisfaction had to be based on some
objective criteria.
The petitioner has relied on a Supreme Court
judgment reported at AIR 1991 SC 1042 and a
Division Bench judgment reported at 1992 (1) CHN
458 for the proposition that if conducting an
inquiry is the rule and the summary procedure is
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an exception, it is incumbent on the competent
authority to indicate objective reasons for
perceiving the conduct of inquiry in accordance
with the rules to be reasonably impracticable.
Even though the petitioner is liable to
succeed only on the ground that no reasons have
been recorded in the order of the disciplinary
authority indicating why it was necessary to not
conduct an inquiry and hold summary disciplinary
proceedings in the petitioner's case, there is the
other aspect of the matter which cannot be lost
sight of. Rule 161 (ii) requires the competent
authority to consider the circumstances of a case
and make an order thereon. The consideration of
the circumstances of a case does not imply the
appreciation of one side without reference to the
other side.
While it is possible that the petitioner here
may be taking advantage of the rules to dislodge
an order that may have been justly passed on
facts, the rule of law to which our system is
wedded has more regard for the principle than the
immediate consequence. It is imperative that
when a statement attributed to a perceived
delinquent is to be used against him, he must be
given an opportunity to deal with the same. In the
present case, the first opportunity that the
petitioner had of placing his version of things was
after the order of the disciplinary authority had
already been made. Thus, the petitioner could not
indicate the matters referred to in paragraphs 12
to 14 of his appeal petition before the disciplinary
authority; whether or not such were relevant
matters or ought to have been taken into
consideration or could be regarded as credible.
The principle is that a person has to be afforded
reasonable opportunity of defending himself before
he is condemned. Though the principles of natural
justice have now undergone a substantial
modification and have lost their indispensability in
certain circumstances, the principle that a person
cannot be condemned unheard still holds good.
The acts complained of may be gross, but the
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delinquent has to be linked with the acts before he
can be punished therefor; however condemnable
may his conduct be, he must be given a chance to
defend himself. That the proceedings may be
summary would not denude him of the right of
defence.
Rule 161 (ii) would fall foul of the
constitutional ethos if there is no check or balance
to it. It is a draconian power given to an official,
but subject to the check that he would record the
reasons for invoking such provision and which
reasons can thereafter be subjected to judicial
scrutiny. Similarly, the extraordinary provision
that summary proceedings can be conducted to
impose a punishment on a public servant has to be
tempered with the right of representation being
read into the last limb of Rule 161 of the said
Rules; for, due consideration within the meaning of
the last two lines of the provision would not be
achieved if it is without reference to the concerned
employee. What the rule permits is that there
would not be any protracted hearing or
representation or adjudication but the rule does
not permit that a person's fate would be decided
unilaterally without such person being afforded a
chance to defend himself.
On the twin grounds as indicated above, the
order of the disciplinary authority is found to be
without jurisdiction as it is contrary to the rule
which it invokes. The appellate authority had due
opportunity to correct the order, particularly since
it specifically noticed the plea that was taken by
the petitioner before it, but refused to apply its
mind to the matter.
For the reasons as aforesaid, the order dated
December 15, 2011 passed by the disciplinary
authority and the order dated October 9, 2013
passed by the appellate authority are set aside and
the respondent authorities are left free to begin the
proceedings afresh, whether upon conducting a regular inquiry or under Rule 161(ii) of the said Rules as they may be advised. The petitioner will continue to remain in suspension for a period of 8 eight weeks from date with the petitioner being entitled to the subsistence allowance in accordance with law. If, within the period of eight weeks from date, no notice is issued to the petitioner by the respondent authorities as to whether the proceedings against the petitioner would be initiated afresh, the respondent authorities will remain permanently restrained from reviving the proceedings.
W.P. 13175 (W) of 2014 is allowed as above but without any order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Sanjib Banerjee, J.) 9