Rajasthan High Court - Jaipur
Subhash Chand Yadav vs U O I on 4 April, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B.Civil Writ Petition No. 5382 / 1999
Subhash Chand Yadav S/o Shri Ramnarain, aged 44 years, R/o
Village Ghatta Sher, Post Chillro, Dist. Mahendragarh, Haryana.
----Petitioner
Versus
1. The Union of India through the Secretary, Ministry of
Railways, New Delhi.
2. Dy Chief Security Commissioner, Railway Protection Force,
Western Railway, Head Office, Churchgate, Mumbai.
3. Divisional Security Commissioner, Railway Protection Force,
Western Railway, Jaipur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Ajeet Bhandari
For Respondent(s) : Mr. Shailesh Prakash Sharma
_____________________________________________________
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
CAV JUDGMENT
04/04/2017
Reportable
1. By way of this writ petition, the petitioner has prayed to set
aside the order dt.19/11/1998 by which he has been removed
from service as well as the order dt.19/02/1999 passed in appeal
whereby his appeal has been rejected.
2. Brief facts for consideration of this Court are that the
petitioner was appointed as a Constable on 18 th April, 1978 and
was promoted as Head Constable in January, 1998. While he was
working as Head Constable, an incident occurred at Police Station,
Phulera where the petitioner was Incharge of 'Kot' (a place where
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ammunition are kept/stored). It is alleged that ammunition
including 9 mm pistol with magazine and 20 bullets had been
found to be stolen. The allegations levelled against the petitioner
vide memorandum dt.28/08/1998 were that he was on duty from
08.00 to 16.00 hours in the capacity of general supervision and
'Kot' Incharge and during his duty hours he had lost one 9 mm
pistol with 20 bullets and one spare magazine. In the statement of
allegations, it was mentioned that at 7.45 am, he had taken under
his charge eight .303 Rifles with 160 bullets, one 9 mm pistol with
20 bullets, one spare magazine, one leaning rod, two hand-cubs,
eight safety chains and two keys, one of ammunition box and the
other of 'Kot' Lock from the other Duty Incharge Gurudayal and at
around 14.30 hours, when he handed over ammunition to the
Scouting Duty Staff of Vehicle No.214, it was found that one 9 mm
pistol with 20 bullets and one spare magazine were not available
in the 'Kot' and informed Inspector Parsuram of possibility of the
same having been stolen. As the incident had happened during his
duty hours, allegations of negligence and causing loss to
reputation of police were levelled against him.
3. Enquiry was conducted with regard to the same. On
23/09/1998, the enquiry report was submitted. Copy of enquiry
report was served upon the petitioner and he was asked to give
his representation. The enquiry officer held him guilty of the
charges. The petitioner submitted that one of his colleague
Constable had been involved in the theft and the petitioner could
not be held guilty of negligence as he was assigned various jobs
which included the job of giving ammunition to the Constables
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who were going on duty. It was also submitted that the theft was
a misfortune while the petitioner was a rewarded personnel.
4. Taking into consideration the reply and enquiry report, an
order was passed on 19/11/1998 holding the petitioner guilty of
the charges and he was served with punishment of removal from
service against which departmental appeal was preferred which
was rejected vide order dt. 19/02/1999.
5. It is asserted that regarding the said incident, disciplinary
proceedings were also undertaken against Constable Anil Kumar;
Sub-Inspector Parsuram and Inspector Ram Singh. While the
petitioner was removed from service, all the three persons were
punished with much lesser punishment and while Constable Anil
Kumar was punished with stoppage of one grade increment with
cumulative effect, Sub-Inspector Parsuram was punished with
stoppage of three grade increments with cumulative effect and
Inspector Ram Singh was punished with stoppage of three grade
increments with cumulative effect. It has been also pointed out
that Constable Prahlad Singh, against whom there was an
allegation of having committed theft, was not punished and even
charge of committing theft was not alleged against him and the
only charge of unauthorized presence at the place of incident was
levelled and he was punished with down-gradation to minimum of
pay-scale for a period of five years. It has come out during the
course of arguments that Constable Prahlad Singh was later on
removed from service on 31/12/1999 on account of unauthorized
absence.
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6. The case set up by the petitioner in the petition is that the
charge levelled against the petitioner was lesser than that of Anil
Kumar against whom the charge-sheet was with regard to
handing over the key of the store and of the Malkhana where the
'Kot' was also placed to Prahlad and when Prahlad entered
Malkhara, he found the pistol lying with 20 bullets and spare
magazine which remained on table while taking out other arms
and ammunition from the 'Kot' by mistake and had the keys not
been given to the said Constable Prahlad by Anil Kumar, the theft
would not have occurred. It is also submitted that a court of
enquiry was also conducted wherein it was found that on account
of negligence of Anil Kumar, the theft had occurred and certain
advisory was also issued for future care.
7. Learned counsel for the petitioner submits that the
punishment, which has been awarded to the petitioner on the
basis of the allegation of being negligent during the course of his
duties due to which the theft has occurred, is harsh and while
other persons, who were also similarly situated, have been left out
with minor punishments, removal order has been passed with
regard to the petitioner. It is also not the case that the petitioner
was anywhere involved in the theft. It is submitted that the
previous service of the petitioner had been outstanding and there
have been awards given to the petitioner for his distinguished
service and for such an incident, punishment is too severe and
does not commensurate with the allegations. He has also relied
upon the judgment passed by the Apex Court in the case of A.K.
Saxena Vs. State Bank of Patiala & ors.: 2016(11) SCC 289; Man
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Singh Vs. State of Haryana and others: (2008) 12 SCC 331 and
Rajendra Yadav Vs. State of M.P. and others: 2013(3) SCC 73 with
regard to the discrimination in relation to the punishment in
departmental enquiries amongst co-delinquents.
8. Per-contra, learned counsel for the respondents submits that
each individual has been punished according to the level of
delinquency found to have been committed. He relied upon the
judgments passed in the case of Union of India and others Vs. P.
Gunasekaran : 2015(2) SCC 610; State of Meghalaya & ors. Vs.
Mecken Singh N. Marak: 2008(7) SCC 580; H.B. Gandhi, Excise
And Taxation Officer-cum-Assessing Authority, Karnal and others
Vs. M/s Gopi Nath & Sons and others: 1992(sup2) SCC 312; State
of U.P. & Anr. Vs. Man Mohan Nath Sinha & Anr.: 2009(8) SCC 310
and in the case of Union of India & ors. Vs. Diler Singh: 2016(13)
SCC 71.
9. It is further submitted by learned counsel for the
respondent that the enquiry was conducted in fair and proper
manner and in accordance with rules. The petitioner was Incharge
of 'Kot' where the arms and ammunition were kept and it was his
duty to see that that they all intact before locking the 'Kot'. Th
negligence of leaving 9 mm pistol with magazine and 20 bullets
while handing over the ammunition to the scouting party staff
cannot be treated as a minor mistake as such arms and
ammunition in hands of others can be utilized for wrongful deeds
and cause havoc in society and accountability has to be therefore
assigned of the individual was was instrumentality in the loss/theft
of the arms and ammunition and a Constable in Police Force has
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to be placed at a higher pedestal with regard to the attentiveness
other than individuals. He is expected to be more attentive and it
is submitted that punishment cannot be said to be harsh.
10. Heard learned counsel for the parties and gone through the
material available on record as well as the case law cited at bar.
11. It has come on record that while the petitioner has been
punished with the punishment of dismissal from service, the other
Constable Anil Kumar, who was involved in the incident, has been
punished with the punishment of stoppage of one grade
increments for one year only; Sub-Inspector Parsuram has been
punished with stoppage of three grade increments with cumulative
effect and Inspector Ram Singh has been punished with stoppage
of three grade increments with cumulative effect which was later
on reduced to one grade increment with cumulative effect. Prahlad
Singh, who is stated to have stolen the ammunition, was not
charge-sheeted for the said fault but was charge-sheeted for
unauthorized presence at the place of incident and was punished
with the punishment of downgrading the pay to the minimum of
pay-scale for a period of five years. Thus, the punishment
awarded to the petitioner vis-a-vis others is on severe side.
12. In the case of Union of India and others Vs. P. Gunasekaran
(supra), the scope of judicial review with regard to the
departmental enquiry was reiterated and it was observed in Para
13 as under:-
"13. Despite the well-settled position, it is painfully
disturbing to note that the High Court has acted as an
appellate authority in the disciplinary proceedings, re-
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appreciating even the evidence before the enquiry
officer. The finding on Charge no. I was accepted by
the disciplinary authority and was also endorsed by the
Central Administrative Tribunal. In disciplinary
proceedings, the High Court is not and cannot act as a
second court of first appeal. The High Court, in
exercise of its powers under Article 226/227 of the
Constitution of India, shall not venture into re-
appreciation of the evidence. The High Court can only
see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure
prescribed in thatbehalf;
c. there is violation of the principles of natural justice
in conducting the proceedings;
d. the authorities have disabled themselves from
reaching a fair conclusion by some considerations
extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be
influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person
could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to
admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India, the
High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in
case the same has been conducted in accordance with
law;
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(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which
findings can be based.
(vi). correct the error of fact however grave it may
appear to be;
(vii). go into the proportionality of punishment unless
it shocks its conscience."
13. In the case of State of Meghalaya & ors. Vs. Mecken Singh N.
Marak (supra), the issue relating to quantum of punishment was
discussed and the scope of interference under Article 226 of the
Constitution was considered and it was held in as under:-
"A court or a tribunal while dealing with the quantum
of punishment has to record reasons as to why it is
felt that the punishment is not commensurate with
the proved charges. In the matter of imposition of
sentence, the scope for interference is very limited
and restricted to exceptional cases. The jurisdiction of
High Court, to interfere with the quantum of
punishment is limited and cannot be exercised without
sufficient reasons. The High Court, although has
jurisdiction in appropriate case, to consider the
question in regard to the quantum of punishment, but
it has a limited role to play. It is now well settled that
the High Courts, in exercise of powers under Article
226, do not interfere with the quantum of punishment
unless there exist sufficient reasons therefor. The
punishment imposed by the disciplinary authority or
the Appellate Authority unless shocking to the
conscience of the court, cannot be subjected to
judicial review. In the impugned order of the High
Court no reasons whatsoever have been indicated as
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to why the punishment was considered
disproportionate. Failure to give reasons amounts to
denial of justice. The mere statement that it is
disproportionate would not suffice. While considering
the question of proportionality of sentence imposed
on a delinquent at the conclusion of departmental
inquiry, the court should also take into consideration,
the mental set up of the delinquent, the type of duty
to be performed by him and similar relevant
circumstances which go into the decision making
process. If the charged employee holds the position of
trust where honesty and integrity are inbuilt
requirements of functioning, it would not be proper to
deal with the matter leniently. Misconduct, in such
cases has to be dealt with iron hands. The respondent
belonged to a disciplined force. He was supposed to
carry out instructions given to him by his superior. Not
only he flouted the instructions but conducted himself
in such a manner that he caused loss of part of pay to
be deposited with the exchequer and loss of service
revolver with ammunition which could be misused.
When a statute gives discretion to the administrator
to take a decision, the scope of judicial review would
remain limited. The proved charges clearly established
that the respondent, who was a police officer failed to
discharge his duties with utmost integrity, honesty,
devotion and diligence and his acts were prejudicial to
the exchequer and society. Even in cases where the
punishment imposed by the disciplinary authority is
found to be shocking to the conscience of the court,
normally the disciplinary authority or the Appellate
Authority should be directed to reconsider the
question of imposition of penalty. The High Court in
this case, has not only interfered with the punishment
imposed by the disciplinary authority in a routine
manner but overstepped its jurisdiction by directing
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the Appellate Authority to impose any other
punishment short of removal. By fettering the
discretion of the Appellate Authority to impose
appropriate punishment for serious misconducts
committed by the respondent, the High Court totally
misdirected itself while exercising jurisdiction under
Article 226. Judged in this background, the conclusion
of the Division Bench of the High Court cannot be
regarded as proper at all. The High Court has
interfered with the punishment imposed by the
competent authority in a casual manner and,
therefore, the appeal will have to be accepted."
14. In the case of H.B. Gandhi, Excise and Taxation Officer-cum-
Assessing Authority, Karna and others Vs. M/s Gopi Nath & Sons
and other (supra), it has been held in Para 8 as under:-
"But here what was assailed was the correctness of
findings as if before an appellate forum. Judicial
review, it is trite, is not directed against the decision
but is confined to the decision making process.
Judicial review cannot extend to the examination of
the correctness or reasonableness of a decision as a
matter of fact. The purpose of judicial review is to
ensure that the individual receives fair treatment and
not to ensure that the authority after according fair
treatment reaches, on the matter which it is
authorised by law to decide, a conclusion which is
correct in the eyes of the Court. Judicial review is not
an appeal from a decision but a review of the manner
in which the decision is made. It will be erroneous to
think that the Court sits in judgment not only on the
correctness of the decision making process but also
on the correctness of the decision itself."
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15. In the case of State of U.P. & Anr. Vs. Man Mohan Nath Sinha
& Anr. (supra), it has been held in Para 12 as under:-
"12. The legal position is well settled that the power of
judicial review is not directed against the decision but
is confined to the decision making process. The Court
does not sit in judgment onmerits of the decision. It is
not open to the High Court to re- appreciate and
reappraise the evidence led before the Inquiry Officer
and examine the findings recorded by the Inquiry
Officer as a court of appeal and reach its own
conclusions. In the instant case, the High Court fell
into grave error in scanning the evidence as if it was a
court of appeal. The approach of the High Court in
consideration of the matter suffers from manifest error
and, in our thoughtful consideration, the matter
requires fresh consideration by the High Court in
accordance with law. On this short ground, we send
the matter back to the High Court. "
16. In the case of Union of India & Ors. Vs. Diler Singh (supra),
it has been held in Para 23 as under:-
"23. We are inclined to think so as a member of the
disciplined force, the respondent was expected to
follow the rules, have control over his mind and
passion, guard his instincts and feelings and not allow
his feelings to fly in fancy. It is not a mild deviation
which human nature would grant some kind of
lenience. It is a conduct in public which has compelled
the authority to think and, rightly so, that the
behaviour is totally indisciplined. The respondent, if we
allow ourselves to say so, has given indecent burial to
self-control, diligence and strength of will-power. A
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disciplined man is expected, to quote a few lines from
Mathew Arnold:- "We cannot kindle when we will The
fire which in the heart resides, The spirit bloweth and
is still, In mystery our soul abides:
But tasks in hours of insight wild Can be through hours
of gloom fulfilled.
Though the context is slightly different, yet we
have felt, it is worth reproducing."
17. In the case of AK Saxena Vs. State Bank of Patiala & ors.
(supra), it has been held in Paras no.2, 3, 5, 6 & 7 as under:-
"2. The learned counsel for the appellant
points out that even according to the bank there
were four people involved in the alleged fraud and
the bank proceeded only against the appellant.
The complainant Mr. Yadav initiated criminal
proceedings against the other three persons but
not against the appellant. He further submitted
that t he Labour Court having regard to the
evidence available before it, has taken a
plausible view that it is not possible to
establish the charges levelled against the
appellant and, therefore, the High Court was
not justified in reversing the plausible view
taken by the Labour Court.
3. The learned counsel appearing for the
Bank however, submitted that the appellant was
Head Cashier and at his instance only the
other three employees were roped in as a
part of the fraud, without knowing that it was
a fraud. He further submits that the Bank had also
initiated Disciplinary Proceedings against those three
employees. However, the High Court in the
impugned judgment has ordered that those
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three employees must not be given any
further increment or promotion.
5. In the above factual matrix, we put query to the
learned counsel for the Bank as to how the
appellant alone is discriminated and dismissed
from service. The learned counsel has invited our
attention extensively to the evidence 2 that appellant
was the kingpin of the whole transaction,
being a Head Cashier other three have only obeyed his
request for consequential steps. We find it
difficult to appreciate the submission in view of
the factual position as noted above.
6 In the above circumstances, we are of
the view that the interest of justice would be
advanced in case the punishment imposed on the
appellant is suitably altered.
7. The appellant has attained the age of
superannuation and that he has received hefty
amounts from the Bank while remaining out of
service after 1993. Hence, it is ordered that
the appellant shall be treated to have been retired
from service on completion of 15 years of service and
accordingly, his retiral benefits shall be settled
for the purpose of future pension from the
month of February, 2016. Since he has
already received wages in between, there shall
be no arrears of pension."
18. In the case of Man Singh Vs. State of Haryana and others
(supra), it has been held in Para 20 as under:-
"20. We may reiterate the settled position of law for
the benefit of the administrative authorities that any
act of the repository of power whether legislative or
administrative or quasi-judicial is open to challenge if
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it is so arbitrary or unreasonable that no fair minded
authority could ever have made it. The concept of
equality as enshrined in Article 14 of the Constitution
of India embraces the entire realm of State action. It
would extend to an individual as well not only when
he is discriminated against in the matter of exercise of
right, but also in the matter of imposing liability upon
him. Equal is to be treated equally even in the matter
of executive or administrative action. As a matter of
fact, the doctrine of equality is now turned as a
synonym of fairness in the concept of justice and
stands as the most accepted methodology of a
governmental action. The administrative action is to
be just on the test of 'fair play' and reasonableness. "
19. In the case of Rajendra Yadav Vs. State of M.P. and others
(supra), it has been held in Paras 12, 13 and 14 as under:-
"12. The Doctrine of Equality applies to all who are
equally placed; even among persons who are found
guilty. The persons who have been found guilty can
also claim equality of treatment, if they can establish
discrimination while imposing punishment when all of
them are involved in the same incident. Parity among
co-delinquents has also to be maintained when
punishment is being imposed. Punishment should not
be disproportionate while comparing the involvement
of co-delinquents who are parties to the same
transaction or incident. The Disciplinary Authority
cannot impose punishment which is disproportionate,
i.e., lesser punishment for serious offences and
stringent punishment for lesser offences.
13. The principle stated above is seen applied in few
judgments of this Court. The earliest one is Director
General of Police and Others v. G. Dasayan (1998) 2
SCC 407, wherein one Dasayan, a Police Constable,
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along with two other constables and one Head
Constable were charged for the same acts of
misconduct. The Disciplinary Authority exonerated
two other constables, but imposed the punishment of
dismissal from service on Dasayan and that of
compulsory retirement on Head Constable. This
Court, in order to meet the ends of justice,
substituted the order of compulsory retirement in
place of the order of dismissal from service on
Dasayan, applying the principle of parity in
punishment among co-delinquents. This Court held
that it may, otherwise, violate Article 14 of the
Constitution of India. In Shaileshkumar Harshadbhai
Shah case (supra), the workman was dismissed from
service for proved misconduct. However, few other
workmen, against whom there were identical
allegations, were allowed to avail of the benefit of
voluntary retirement scheme. In such circumstances,
this Court directed that the workman also be treated
on the same footing and be given the benefit of
voluntary retirement from service from the month on
which the others were given the benefit.
14. We are of the view the principle laid down in the
above mentioned judgments also would apply to the
facts of the present case. We have already indicated
that the action of the Disciplinary Authority imposing
a comparatively lighter punishment to the co-
delinquent Arjun Pathak and at the same time,
harsher punishment to the appellant cannot be
permitted in law, since they were all involved in the
same incident. Consequently, we are inclined to allow
the appeal by setting aside the punishment of
dismissal from service imposed on the appellant and
order that he be reinstated in service forthwith.
Appellant is, therefore, to be re- instated from the
date on which Arjun Pathak was re-instated and be
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given all consequent benefits as was given to Arjun
Pathak. Ordered accordingly. However, there will be
no order as to costs."
20. Thus, keeping in view the law laid down by the Apex Court,
this Court finds that the limited jurisdiction of judicial review
available to this Court is only with reference to the decision
making process and if the said decision making process is found to
be vitiated and contrary to the settled proposition of law, the
action would stand vitiated and has to be set aside. As observed
above, in the facts of this case, a joint enquiry was required to be
conducted.
21. The Railway Protection Force Rules, 1987 provides a
procedure for imposition of major punishment under Rule 153 of
the Rules of 1987 which is quoted as under:-
"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 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 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 misconduct or misbehaviour
against an enrolled member of the Force, it may itself
inquire into or appoint an Inquiry Officer higher in rank
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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 divert 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 msbehaviour 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. 153.6 Where the enrolled
member charged has absconded or where it is not
possible to serve the documents on him in person or
where he deliberately evades service, the procedure
laid down in sections 62, 64, and 69 of the Code of
Criminal Procedure, 1973 shall be adopted by the
Inquiry Officer for service of such documents and the
same shall be deemed to be a conclusive proof of
service.
153.7 For securing the presence of private
prosecution witness, the Inquiry Officer may allow
free travel passes according to their status in
accordance with extant Railway Rules.
15.8 The enrolled member charged shall to be in a
legal practitioner at the proceedings but he may be
allowed to take the assistance of any other member of
the Force(hereinafter referred to as :friend). Where in
the opinion of the Inquiry Officer nay, at the request
of the party charged, put his defence properly. Such
"friend" must be a serving member of the Force of or
below the rank or Sub-Inspector for the time being
posted in the same division or the battalion where the
proceeding are pending and not acting as a "friend" in
any other proceedings pending any where. Such
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"friend" shall, how ever, not be allowed to address the
Inquiry Officer nor to cross-examine the witness.
153.9. If the enrolled member charged fails to turn up
on the day fixed for the start of inquiry and no
reasonable excuse is offered for not being present on
the fixed time and day, the Inquiry Officer may
commence the inquiry ex parte.
153.10 At the commencement of the Inquiry, the
party charged shall be asked to enter a plea of
"guilty" or "mot guilty" after which evidence necessary
to establish the charge shall be let in. The evidence
shall be material to the charge and may either be oral
or documentary. If oral-
(a) it shall be direct;
(b) it shall be recorded by the Inquiry Officer in the
presence of the party charged; and the party charged
shall be allowed to cross-examine the witness.
153.11 If the witnesses are government officers of a
rank superior to the party charged, the Inquiry Officer
may, at the request of the party charged, put the
questions to such officer.
153.12 If the evidence shall be recorded, in the
presence of the party charged, by the Inquiry Officer
himself or on his dictation by a scribe. Cross-
examination by the party charged or the fact of his
declining to cross-examine the witness, as the case
may be, shall also be recorded. The statement of each
witness shall be read over to him and explained, if
necessary, in the language of the witness, whose
signature shall be obtained as a token of his having
understood the contents. Statement shall also be
signed by the Inquiry officer and the party charged.
Copy of each statement shall given to the party
charged who shall acknowledge receipt on the
statement of witness itself. The Inquiry Officer shall
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recorded a certificate of having read over the
statement to the witness in the presence of the party
charged.
153.13 Documentary exhibits, if any, are to be
numbered while being presented by the concerned
witness and reference of the number shall be noted in
the statement of the witness. Such documents may
be admitted in evidence as exhibits without being
formally proved unless the party charged does not
admit the genuineness of such a document and
wishes to cross-examine the witness who is purported
to have signed it. Copies of the exhibits may be given
to the party charged on deemed except in the case of
voluminous documents, where the party charged may
be allowed to inspect the same in the presence of
Inquiry Officer and take notes.
153.14 Unless specifically mentioned in these rules,
the provisions of the Code of Criminal Procedure,,
1973 and the Indian Evidence Act, 1872 shall not
apply to the departmental Proceedings under these
rules.
153.15 The party charged shall then be examined and
his statement recorded by the Inquiry Officer. If the
party charged has pleaded guilty and does not
challenge the evidence on record, the proceedings
shall be closed for orders. If the pleads "nor guilty" he
shall be required to file within 10 days a written
statement together with a list of such witness as he
may wish to produce in his defence and giving therein
a gist of evidence that each witness is expected to
give. If he declines to file a written statement, he
shall again be examined by the Inquiry Officer on the
expiry of the period allowed and his statement, if any,
recorded.
(21 of 24)
[CW-5382/1999]
153.16 If the party charged refuses to produce any
witnesses of produce any evidence in his defence, the
proceedings shall be closed for orders, if he produces
any evidence, the Inquiry officer shall produced to
record the evidence. If the Inquiry Officer considers
that the evidence of any witness or any document
which the party charged wants to produce in his
evidence is not material to the issue involved in the
case, he may refuse to call such witness or to allow
such document to be produced in evidence, but in all
such cases he must briefly record his reasons for
considering the evidence inadmissible. When all
relevant evidence has been brought on record, the
proceedings shall be closed for orders after recording
the statement, if any, of the party charged and
obtaining any clarification, if necessary, from him.
153.17 Under no circumstances additional prosecution
witness shall be examined after the defence has been
let in unless supplementary defence witness have
been allowed on that ground. How ever of at any
stage during the inquiry, it appears to the Inquiry
Officer that examination of any witness who ahs not
been produced by either party so far or recall of any
witness who has already been examined is essential in
the interest of justice or to clear any doubt, he may
summon him for the purpose and examine him as a
witness of the Inquiry Officer after recording his
reasons for doing so. Such a witness may also cross-
examined by the party charge, if desired.
153.18 Whenever any Inquiry Officer after having
heard and recorded the whole or any part of the
evidence in an inquiry, cases to exercise jurisdiction
threin and is succeeded by another Inquiry Officer
who has and exercises such jurisdiction, the Inquiry
Officer so succeeding may act on the evidence so
recorded by his predecessor, or partly recorded by his
(22 of 24)
[CW-5382/1999]
predecessor and partly recorded by him or himself
record it fresh as he deems expedient.
153.19 At the conclusion of the inquiry, the Inquiry
Officer shall prepare a report or the inquiry recording
his findings on each of the charges with reasons
therefore. The findings must be of "guilty" or "not
guilty" and no room shall be allowed for "benefit or
doubt" or personal surmises. A charge shall be
deemed to heve been proved if after considering the
evidence before him, the Inquiry Officer believes the
ingredients constituting the charge to exist or
considers their existence so probable that a prudent
man ought, under the circumstances of the particular
case, to act upon the supposition that they exist.
153.20 If in the opinion of the Inquiry Officer, the
proceedings of the Inquiry establish charges different
from those originally framed, he may record his
findings on such charges: Provided that findings on
such charges shall not be recorded unless the party
charged has admitted the facts constituting them and
has had an opportunity of defending himself against
them."
22. However, where there are more than one enrolled members
involved, then the procedure has to be followed as per Rule 163
which is quoted as under:-
"163. procedure when two or more enrolled members
are involved: Where two or more enrolled member of
the Force including those on deputation to the Force
are involved in any case, the disciplinary action
against two or all of them may be taken in a common
proceeding. "
(23 of 24)
[CW-5382/1999]
23. The argument taken by learned counsel for the petitioner
regarding the departmental enquiry having been held separately for co-delinquent and thus contrary to the concept of the rules, deserves to be accepted.
24. The word 'may' in Rule 163 has to be considered as mandatory and not directory in nature because where more than one person are being charged relating to the same incident, it would be in the fitness of things that both are faced with the similar evidence which has brought on record by the prosecution and they may have their defence accordingly. Where separate enquiries are conducted relating to the same incident against two different persons, it would go against the principles of natural justice if in one case the same set of evidence may depose as against 'A' while in the other departmental proceedings, the same set of evidence may depose against 'B' and the disciplinary authority would hold both of them guilty for the same charge without asserting as to what is the individual role in committing of the alleged delinquency or there may be contradictory statements to hold one of them. In these circumstances, this would also result into passing of different punishment orders as can be noted in the present case.
25. In view of the departmental action taken separately, the resultant position which is seen is that the different punishments have been awarded in different separate proceedings which has resulted in dismissal of the petitioner while others have been allowed to continue. Even the person, who is alleged to have committed the theft of arms and ammunition, has been dealt with (24 of 24) [CW-5382/1999] leniently by stopping his five increments although it has come on record later on that on account of willful absence from duty, the said Prahlad Singh was later on removed from service. It has come on record during the course of enquiry that the 'Kot' itself was situated in a room and the room was locked and its keys were kept with another Constable Anil Kumar who had handed over the keys to Prahlad Singh. Thus, Anil Kumar and Prahlad Singh are also similarly situated as the petitioner but different yardsticks have been adopted for the purpose of imposition of punishment. In view of the observations made by the Apex Court herein above, this Court finds that the order of dismissal from service, therefore, cannot be allowed to sustain.
26. Consequently, the writ petition is partly allowed. The orders impugned dt.19/11/1998 and 19/02/1999 are hereby quashed & set aside following the judgment passed by the Apex Court in the case of A.K. Saxena Vs. State Bank of Patiala & ors. (supra). The appellant has attained the age of superannuation. Hence, it is ordered that the appellant shall be treated to have retired from service on attaining the age of superannuation and accordingly his retiral benefits and pension shall be calculated/computed making notional fixation of pay and paid by the respondents within a period of three months from the date the certified copy of this order is communicated in their office. However, the petitioner shall not be entitled for any actual wages in between the period from dismissal till the date of superannuation. No costs.
(SANJEEV PRAKASH SHARMA)J. Raghu`