Allahabad High Court
Laxman Singh vs Director General, Railway Protection ... on 1 September, 2004
Equivalent citations: (2005)1UPLBEC48
Author: R.B. Misra
Bench: R.B. Misra
JUDGMENT R.B. Misra, J.
1. Heard Sri A.B. Singh, learned Counsel for the petitioner, and Sri Tarun Verma, learned Counsel for the respondents.
2. In this petition prayer has been made for quashing the impugned order dated 31.10.1995 passed by the Divisional Security Commissioner, Railway Protection Force, Varanasi terminating the service of the petitioner on the allegations of absence from duty without proper intimation and also for overstaying without sanctioned leave without sufficient cause.
3. It appears that the petitioner was appointed in the Railway Protection Special Force (hereinafter in short called as 'RPSF') on 1.5.1967 and he was transferred to Railway Protection Force (hereinafter in short called as 'R.P.F') on 5.9.1981. As per his service record, during tenure of his service in R.P.S.F. and R.P.F. the petitioner was punished on nine occasions. The petitioner was given weekly rest on 16.11.1994 and he was to present on duty on 17.11.1994, however, he absented himself from duty without any authority. The petitioner was informed by ordinary letter followed by registered letter at his residential address indicating him to join the duty, but no reply was received from his side, therefore, after lapse of nine months the Assistant Security Commissioner, R.P.F., Varanasi proceeded against the petitioner under Rule 153 of the Railway Protection Force Rules, 1987. For this purpose, a charge-sheet was issued against the petitioner on 8.8.1995 on the following charges :
"He was spared to avail one day Rest on 16,11.94 thereafter he was required to pick up duty on 17.11.94 from 16/- hrs. But he failed to report for duty and is over-stayed with effect from 17.11.94 without any proper authority."
4. Sri J.P. Mishra, Inspector R.P.F., North Eastern Railway, Allahabad City was appointed as Inquiry Officer. The petitioner was alleged to have absented himself from duty from 17.11.1994 to 30.8.1995 and the petitioner said to have absented for treatment from Assistant Divisional Medical Officer, Deoria Sadar and from the certificate issued by the Assistant Divisional Medical Officer, Ceoria it appears that the petitioner was on the sick list from 16.11.1994 to 22.11.1994, but thereafter he did not turn up for further treatment, however, he was discharged from the hospital on 23.11.1994. The medical certificate of Private Doctor submitted by the petitioner was not accepted, as there was a hospital in Manduwadih, Varanasi Cantt., however, the petitioner did not get any treatment there instead of he proceeded for Deoria. The petitioner also did not inform about his illness during 48 hours as required under Indian Railway Medical Manual. The Inquiry Officer fixed the date of inquiry on 20.8.1995, however, due to absence of the petitioner the inquiry could not be conducted, therefore, the same was commenced from 2.9.1995 and after affording opportunity of hearing and after scrutiny of documents, the Inquiry Officer submitted this finding on 25.9.1995 holding the charges against the petitioner as proved. The competent/disciplinary authority after realizing the entire records has observed as under :
"(i) The Party Charged was spared to avail one day rest on 16.11.94 and was to resume duty on 17.11.94 from 16/- hrs. But he over stayed from 17.11.94 to 30.8.95.
(ii) He reported back on 31.8.95 Forenoon alongwith RMC for the period from 16.11.94 to 22.11.94 PMC from 23.11.94 to 20.8.95 and again RMC from 21.8.95 to 30. 8.95. He was discahrged from Sick list with effect from 23.11.94 for non-attendance and apparently thereafter, he reported sick with Private Doctor.,
(iii) He states that he had been sending intimations about his sick-ness regularly but as per statements of the prosecution witnesses no such intimations appeared to have been received in this office.
(iv) Mere sending of intimation does not serve the purpose unless he received an Express intimation of grant of extension. In the extent case, he made presume favourable to him that the extension might have been granted to him. It was not incoumbent upon the administration to send his any effort of intimation and in case intimation was received by him, he should have presumed otherwise that his request was not considered.
(v) In accordance with the provisions of Indian Railway Medical Memo, a Railway servant reporting sick must send certificate within 48/- hours of reporting sick but in the extant case, no sick certification was submitted by the Party charged to his superiors. Since he failed to comply with the provisions of Medical Manual, he is also not entitled to the privileges granted in accordance with the Railway Rules.
(vi) He has not explained the circumstances under which he was discharged from the sick list of the Railway Doctor and why he preferred to report sick with the Private Doctor."
5. In view of the above observations, the competent authority affirmed the findings of the Inquiry Officer and keeping in view totality of the facts and circumstances the removal order in view of Rule 156(3) of Railway Protection Force Rules. 1987 (hereinafter in short called as the 'Rules') was passed and the period from 17.11.1994 to 30.8.1995 was treated as leave without pay.
6. In the counter affidavit endeavourance has been to strengthen the stand in consonance to the findings of the Disciplinary Authority and Inquiry Officer.
7. Futile endeavourance has been made on behalf of petitioner through the rejoinder affidavit to controvert the contents of the counter affidavit and to reiterate the stand taken in the writ petition.
8. It has been argued on behalf of petitioner that in view of the judgments in 2002 (3) E.S.C. 256 Alld., 2002 (3) AWC 2339, Mirza Barkat Ali v. Inspector General of Police, Allahabad and others, (2003) 2 UPLBEC 1496, Sant Kumar Upadhyay v. State of U.P. and others; (1994) 3 UPLBEC 1597. R.N Mall v. Union of India ami another; JT 1999 (1) SC 319, Syed Zaheer Hnssain v. Union of India and other; 2001 (4) AWC 2976, LNK Mnsafir Yadav v. Commandant, 47 Bn., C.R.P.F. Gandhinagar (Gujarat) and another; 2003(1) E.S.C. 421 (Cal.), Jadurouth v. State of West Bengal and others; 2002(1) E.S.C. (All.) 327, Sukhbir Singh, Constable No. 2306 Civil Police v. S.S.P., Agra and others; 2002 (1) E.S.C. 361 (All.) :2002 (1) AWC 801 , Jiya Lal Pandey v. Commandant Railway Protection Force, Northern Railway, Lucknow and others; 2004 (1) AWC 384, Raj Kishore Yadav v. U.P. Public Service Tribunal, Indra Bhawan, Lucknow and others; (2004) 2 AWC 1947, 2004 (2) AWC 1647, Academy of Business Management, Cyan Sthali, Hapur Road, Modi Nagar, Ghaziabad and Anr. v. State of U.P. and others, and also in view of two unreported judgments dated 29.7.1997 passed by this Court in Civil Misc. Writ Petition No. 11850 of 1994; Satyendra Singh v. Union of India through Chief -: Security Commissioner, Railway Protection Force, Cuard and another, and 7.5.1997 passed by this Court in Writ Petition No. 26779 of 1994, Jai Kishan v. Deputy Inspector General of Police, Meerut Range, Meerut and others, the punishment awarded by the disciplinary authority is disproportionate to the charges levelled against the petitioner.
9. In order to analyse the real position, it is necessary to refer the Rules 155, 156 and 157 of the 'Rules' as under :
"155. Determination of punishment.-In determining the punishment, the character, previous bad record and punishment of party charged shall not be taken into consideration unless in a case where they are made subject matter of a specific charge in the proceeding itself. Offences connoting moral turpitude shall be carefully distinguished from smaller lapses of conduct. It is essential that the punishment shall be inflicted keeping in view the nature of duties expected from the member of the Force and the misconduct by him.
156. imposing of punishment of dismissal, etc.-Before coming to any lower punishment, the disciplinary authority with a view to ensuring the maintenance of integrity in the Force shall consider the award of punishment of dismissal or removal from service to any member of the Force in the following cases, namely :-
(a) Dismissal :-
(i) conviction by a Criminal Court;
(ii) serious misconduct or indulging in committing or attempting or abetting an offence against railway property;
(iii) discreditable conduct affecting the image and reputation of the Force;
(iv) neglect of duty resulting in or likely to result in loss to the railway of danger to the lives of persons using the railway;
(v) insolvencey or habitual indebtedness; and
(vi) obtaining employment by concealment of his antecedents which would ordinarily have debarred him from such employment.
(b) Removal from service:
(i) any of the misconduct for which he may be dismissed under clause (a) above;
(ii) repeated minor misconducts;
(iii) absence from duty without proper intimation or overstay beyond sanctioned leave without sufficient cause.
157. Reduction in the rank, grade or in the scale of pay.-(1) No enrolled member of the Force shall be reduced to a rank lower than to which he was first appointed to the service nor shall he be reduced permanently in the sense that he shall never be eligible for repromotion however meritorious his subsequent service may be.
(2) When reduction to a lower rank, grade or a lower stage in the scale of pay is ordered, the order shall also specify-
(i) the date from which it will take effect and the period (in terms of years and months) for which the punishment shall be operative;
(ii) the stage in the scale of pay (in terms of rupees) to which the enrolled member of the Force is reduced; and
(iii) the extent (in terms of years and months), if any, to which the punishment referred to at (i) above shall be with or without cumulative effect:
Provided that when the punishment or reduction to a lower stage in the scale of pay is imposed during the currency of reduction in rank, the disciplinary authority shall clearly indicate in the punishment order whether the two punishments shall run concurrently or the subsequent punishment shall be implemented after the expiry of the first punishment."
(3) Withholding of increment.-In the case of withholding of increment as punishment, the order shall State the period for which the increment is to be withheld and whether it shall have the effect of postponing further increments."
10. It has been submitted on behalf of the respondents that in AIR 1996 SC 736, State of U. P. and Ors. v. Ashok Kumar Singh and another, the delinquent police constable was charge-sheeted for absenting himself from duty without leave on several occasions, the decision and concurrence of the High Court to the findings of Tribunal on the issue of modifying punishment of removal from service of writ petitioner on the ground that it was not commensurate to the gravity of offence was held to be not justified by the Supreme Court and the punishment of removing the writ petitioner was acknowledged to be legally correct.
11. I have heard learned Counsels for the parties. Undisputedly, there is neither any procedural fault nor any mistake in the fact finding arrived at by the Inquiry Officer, where the guilt against the petitioner was proved, which has rightly been affirmed by the competent authority/disciplinary authority. In the facts and circumstances, the competent/disciplinary authority has rightly passed the order of removal of the petitioner from service. This Court is unable to make analysis or to draw any inference in respect of mitigating the quantum of punishment on the ground of dispurportionality, as there is nothing, which shocks the conscience of the Court, therefore, this Court is not inclined to invoke its extraordinary discretionary jurisdiction under Article 226 of the Constitution to make any interference in the fact finding arrived at by the disciplinary authority.
12. In view of the above observations, the writ petition is dismissed.