Allahabad High Court
Virendra Prasad Dubey Son Of Raj Narayan ... vs The Senior Divisional Security ... on 18 July, 2005
Author: V.C. Misra
Bench: V.C. Misra
JUDGMENT V.C. Misra, J.
1. Heard Sri P.N. Saxena, Senior Advocate assisted by Sri R.K. Tiwari, learned counsel for the petitioner and Sri Govind Saran, Advocate learned; standing counsel on behalf of the respondents Nos. 1, 2 and 3.
2. The facts of the case in brief are that the petitioner was appointed as a constable in Railway Protection Force by posting at Allahabad on 18.5.1984. In July 1989, the petitioner was transferred to the outpost Mughal Sarai (MGS) under the Incharge Protection Force (IPF), Chunar.On 19.8.1992, the petitioner proceeded on medical leave by taking sick memo and remained as outdoor patient in the Railway Hospital, Mughal Sarai till 4.1.1993. On 5.1.1993, the petitioner was discharged from sick list by the Divisional Medical Officer-I, Eastern Railway (DMO-I, E.R.),Mughal Sarai in the midst of the treatment without mentioning the fact that the petitioner was fit for duty. The petitioner had to under-go treatment by a private doctor Dr. A.K. Mehta at Ballia with effect from 6.1.1993 and remained under his treatment till 20th August 1994. During this period, thepetitioner sent several notices and informations to the concerned authority through registered post with proper medical certificate (PMC) before the Incharge Protection Force, Chunar. The petitioner was referred by Dr. A.K. Mehta to Dr. D. Rai, at District Hospital, Ballia for further treatment where he remained under treatment from 20.8.1994 to 30.10.1994. Meanwhile, the disciplinary proceedings were initiated against the petitioner by the Railway authorities and in the proceedings, 2 charges-were framed against him, which are as under :-
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3. The enquiry officer Sri D.L. Shah vide its report dated 8.9.1994 submitted before the respondent No. l recommended that the proceedings be initiated against the petitioner under Rule 153 of the Railway Protection Force Rules, 1987 (hereinafter referred to as 'the Rules, 1987') and held that both the charges 1 and 2 mentioned hereinabove were proved. The disciplinary authority-respondent No. l vide its order dated 6.10.1994 compulsorily retired the petitioner prematurely at the age of 35 years by imposing the major penalty, under the provisions of Rules 148 and 153 of the Rules, though he had only completed 10 years of service.
4. The relevant portions of Rules 148 and 153 of the Rules, 1987 are reproduced as under: -
"148. Description of Punishments:
148.1. Any of the following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed on an enrolled member of the Force.
148.2 Major punishments:
(a) Dismissal from service (which shall ordinarily be a disqualification for future employment under the Government.)
(b) Removal from service (which shall not be a disqualification for future employment under the Government.)
(c) Compulsory retirement from service.
(d) Reduction in rank or grade.
148.3 Minor punishments:
(a) Reduction to a lower stage in the existing, scale of pay.
(b) Withholding of next increment with or without corresponding postponement of subsequent increments
(c) Withholding of promotion for a specified period.
(d) Removal from any office of distinction or deprivation of any special emoluments
(e) Censure.
148.4: Petty punishments:
(a) Fine to any amount not exceeding seven days' pay.
(b) Confinement to quarter-guard for a period not exceeding fourteen days with or without punishment drill, extra guard duty, fatigue duty or any other punitive duty.
(c) Reprimand.
148.5: Explanation: ....
"153 Procedure for imposing major punishments.
(1) Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction in rank shall be passed on any enrolled member of the Force (save as mentioned in Rule 61) 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 opportunity of defending himself.
(5) The disciplinary authority shall deliver or cause to be delivered to the delinquent member, at lease 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 witnesses 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.
(10) At the commencement of the inquiry the party charged shall be asked to enter a plea of 'guilty' or 'not 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 witnesses.
(12) All 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 be given to the party charged who shall acknowledge receipt on the statement of witness itself, The Inquiry Officer shall record a certificate of having read over the statement to the witness in the presence of the party charged.
(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 demand except in the case of voluminous documents, where the party charged may be allowed to inspect the presence of Inquiry Officer and take notes.
(14) Unless specifically mentioned in these rules, the provisions by the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 shall apply to the departmental proceedings under these rules."
4. While passing the order of compulsory retirement against the petitioner, the respondent No. l held that only one charge regarding unauthorized absence stood proved whereas the other charge, i.e., absence from duty without intimation was not proved in view of the required information and notice sent by the petitioner to the concerned authority from time to time.
5. After the passing of this order, the petitioner being still ill was treated in the nearest railway hospital, Ballia/N.E.R. with effect from 1.11.1994 to 10.11.1994 and a certificate was issued by the concerned Medical Officer that he was henceforth fit for duty. On 11.11.1994, the petitioner approached the Senior Divisional Medical Officer/ER Hospital, Mughal Sarai for necessary attestation and at the back of the fitness certificate it was endorsed that the petitioner was fit for duty. The petitioner approached the concerned authority with the written application to permit him to join his duty but he was not allowed on the ground that he had already been compulsorily retired with effect from 6.10.1994.
6. The petitioner being aggrieved preferred an appeal under the Rules before the respondent No. 2, which was dismissed' vide order-dated 31.7.1995. The said order was intimated to the petitioner by respondent No. l annexed with its order-dated 2.8.1995. Being aggrieved by the order dated 31.7.1995 the petitioner preferred a revision on 7.12.1994 before the respondent No. 3, which too was dismissed on 22.7.1996 the information of which was served on the petitioner through letter dated 26.7.1996.
7. This writ petition has been filed by the petitioner challenging the impugned orders dated 6.10.1994, 31.7.1995 and 22.7.1996 passed by respondents No. 1,2and 3 respectively, on the ground that disciplinary proceedings under Rule 153 of the Rules were initiated against the petitioner without serving any charge sheet on him nor he was provided any reasonable opportunity or facility to defend his case, even the witnesses were not examined in accordance with procedure and law during the disciplinary proceedings. Learned counsel for the petitioner has also submitted that compulsory retirement of an employee can be made only after he has either attained the age of 50 years or 55 years, as the case may be, in terms of F.R. 56 (j) of the Fundamental Rules and Supplementary Rules Chapter IX (hereinafter referred to as 'the Fundamental Rules'), which deals with retirement and not otherwise, and thus the petitioner had been wrongly and illegally retired compulsorily prematurely at the age of about 35 years only. He has further contended that there being no dispute that the petitioner had been ill and had been submitting proper medical certificates regularly, the award of punishment of removal from service by way of compulsory retirement was wholly unreasonable and disproportionate to the alleged charge of misconduct and also that no punishment could be awarded on the basis of the charge No. 2 which was only consequential to charge No 1, which admittedly had not been proved and dropped by the disciplinary authority. It has been specifically stressed by the learned counsel for the petitioner that the impugned order of punishment of removal from service by way of compulsory retirement passed by the disciplinary authority, which was affirmed in appeal and revision, by quasi-judicial orders also demonstrates complete non- application of mind. Relevant portions of Rule 56 (j) of the Fundamental Rules reads as under:
"56 (j) Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice:.
(i) if he is, in Group 'A' or Group 'B' service or post in a substantive, quasi-permanent or temporary capacity and hd entered Government service before attaining the age of 35 years, after he has attained the age of 50;
(ii)in any other case after he has attained the age of fifty- five years;
Provided that nothing in this clause shall apply to a Government servant referred to in clause (e), who entered Government service on or before the 23rd July, 1966."
Learned counsel for the petitioner in support of his arguments has placed, reliance upon the decisions rendered in Marari Mohan Deb v. Secretary to the Government of India and Ors. and in Bhagwan Lal Arya v. Commissioner of Police, Delhi and Ors. (2004) 2 UPLBEC1294).
8. The case of the respondents, as referred to in paras-4 and 5 of the counter affidavit is that the petitioner had absented himself from duty without any authority and did not report thereafter till his services were dispensed with by virtue of his compulsory retirement under the provisions of Rule 153 of the Rules. Since the charges were of very serious nature, the petitioner deserved the punishment awarded to him. Learned counsel appearing for the respondents placed reliance on a decision of Punjab and Haryana High Court given on May 22, 1998 in the case of Raj Kumar v. Union of India and Ors. (Writ Petition No. 9129 of 1997).
9. I have looked into the record of the case and heard learned counsel for the parties at length and on the above pleadings, the following questions of law arise for consideration;
1. Whether the impugned order of major punishment by way of compulsory retirement prematurely awarded to the petitioner who had only attained the age of 35 years and had completed only 10 years of service is in breach of the Rule 56 (j) of the Fundamental Rules?
2.Whether the major penalty inflicted on the petitioner is grossly disproportionate to the misconduct alleged against him and, therefore, is totally unjust, unfair and inequitable as contended?
10. From perusal of the pleadings of the parties and after hearing learned counsel for the parties, I find that it is admitted by the respondents that out of two charges framed against the petitioner, one charge regarding absence from duty without intimation was not made out since required informations and notices regarding ill-health and treatment sent by the petitioner was duly received by the concerned authorities from time to time, whereas on the charge of unauthorized absence from duty he has been removed from service imposing major punishment of compulsory retirement prematurely. As per law the petitioner could be retired compulsorily prematurely only in strict compliance of the Rule 56 (j) of the Fundamental Rules and not otherwise. The learned counsel for the respondents has been unable to show any other provisions of law applicable to the case of the petitioner under which compulsory premature retirement order could be passed. Thus when no such compulsory premature retirement order could normally be passed in the case of the petitioner then the same could not be imposed by way of major punishment either.
11. The relevant. Rule 56 (j) of the Fundamental Rules provides that the appropriate authority if is of the opinion that it is in the public interest to compulsorily retire prematurely a Government servant, he has the absolute right to retire the Government servant provided the Government servant had attained the age of 50 years as per sub-clause (i) or in any other case after he has attained the age of fifty five years as per sub clause (ii) of this Rule. In my view by no stretch of imagination the alleged misconduct against the petitioner can be considered to be an act of grave misconduct or continued misconduct indicating incorrigibility and complete unfitness for service of the petitioner. It is not the case of the respondents that the petitioner was habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health. It is settled law that the order of dismissal/ removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct preventing incorrigibility or complete unfitness for police service. Merely one incident of absence and that too because of bad health and being on valid and justified grounds/ reasons cannot become basis to award such punishment. It is an admitted fact that the respondents had received the application for leave alongwith medical certificates. In such circumstances it can never be termed as willful absence without any information to the competent authority and also can never be termed as grave misconduct. Under the above said facts and circumstances and the pleadings of the instant case, in my view no case to award such major punishment to the petitioner is made out and the decision of the disciplinary authority inflicting a penalty of removal from service by the impugned order dated 6,10,1994 (Annexure No. 1 to the writ petition) is ultra vires of Rule 56 (j) of the Fundamental Rules and is liable to be set aside. The major punishment of removal from service by way of compulsory premature retirement is thus also excessive and disproportionate. Also looking into the circumstances of the case as the petitioner may not get any other job at his present age and also because of the stigma attached to him on account of the impugned punishment as a result of which not only he but also his entire family, which is totally dependant on him, will be forced to starve. Such mitigating circumstances warrant that the impugned order of punishment passed by the disciplinary authority by way of compulsorily retiring the petitioner prematurely should be quashed. The above said questions formulated for considerations are decided accordingly.
13. In the result, the impugned orders dated 6.10.1994 (Annexure No. 1 to the writ petition) passed by respondent No. 1- Senior Divisional Security Commissioner/. R.P.F., Northern Railway, Allahabad, order dated 31.7.1995 (Annexure No. 2 to the writ petition) passed by respondent No. 2- the Additional Chief Security Commissioner/ Railway Protection Force, Northern Railway, Baroda House, New Delhi and the order dated 22.7.1996 (Annexure No. 3 to the writ petition) passed by respondent No. 3- the Chief Security Commissioner/ Railway Protection Force, Baroda House, New Delhi are hereby quashed and the matter is sent back to the disciplinary authority for considering and passing a reasoned and speaking order afresh in the light of the above observations and in accordance with law and procedure after affording full opportunity to the petitioner within a period of three months from the date a certified copy of this order is placed before the disciplinary authority concerned by the petitioner.
The. writ petition is allowed to the extent indicated above. No order as to costs.