Jharkhand High Court
Dhurub Deo Singh vs Union Of India (Uoi) And Ors. on 26 March, 2003
Equivalent citations: [2003(4)JCR103(JHR)]
Author: Tapen Sen
Bench: Tapen Sen
JUDGMENT Tapen Sen, J.
1. Heard the parties.
2. The Petitioner, Dhurub Deo Singh prays for quashing the departmental proceeding initiated on the basis of a charge-sheet dated 26/28.11.1995 (Annexure-2). He also prays for quashing the said chargesheet as also the order of suspension passed on 28.11.1995 by Annexure-3 retrospectively putting the Petitioner under suspension w.e.f. 27.11.1995, i.e., from a date four days earlier to the date of his superannuation on the ground of a contemplated departmental proceeding. The Petitioner further prays that he be paid all his legal dues including Post Retiral Benefits to which he would have been entitled in normal course had he not been issued with the chargesheet and put under suspension in the manner stated above. The Petitioner also makes a prayer for payment of salary for the period 01.02.1993 to 04.01.1994, which, according to the petitioner, has been illegally withheld by the Respondents. The Petitioner has also made a prayer that he should not be forced to vacate the quarter until all his dues are settled and paid.
3. The Railway Protection Force, Act, 1957 is an Act to provide for the constitution and regulation of an armed force of the Union. Under Section 10 of the said Act, officers and members of the Railway Protection Force are deemed to be Railway Servants within the meaning of Indian Railway Act, 1890. Section 2 of the Administrative Tribunals Act, 1985 provides that the provisions of that Act shall not apply to any member of the naval, military or AIR Forces or of any other Armed Forces of the Union. Thus the Petitioner being a member of the Armed Force of the Union, the Administrative Tribunals Act, 1985 will not apply and High Court can exercise its writ jurisdiction. In that view of the matter, the preliminary objection to the effect that the Writ Application is not maintainable is rejected and reference in this context is made to the case of Chandra Kamal Bhagawati v. Union of India and Ors., reported in 1998 Lab IC 1076.
4. The short facts which are necessary to be taken note of are that some time in the year 1959, the Petitioner was appointed as a 'Rakshak' in the pay scale of Rs. 70-1-80-E.V.-1-85. The Petitioner has stated at paragraph 4 that immediately after appointment, he filled up an Attestation Form (Annexure-1). In the said Attestation Form, the Petitioner was required to give certain details and the last column thereof is in the nature of a questionnaire which reads as "are you member of Scheduled Caste/Scheduled Tribe? Answer Yes or No and if the answer is 'Yes', state the name thereof."
5. The Petitioner categorically filled up the aforesaid column by stating 'NO'. In other words his answer was in the negative, which means that he gave a clear declaration to the effect that he was not a member of either the Scheduled Caste Community or the Scheduled Tribe.
6. Subsequently, the Petitioner was transferred to different places and finally he was posted at the South Eastern Railway. Division Adra under the Respondent No. 6 as a Head Constable. It appears that subsequently, in the year, 1984 and 1987, the Petitioner's case for promotion was considered and in the 1984, he was promoted to the rank of a 'Senior Rakshak' and in the year 1987 to the post of a 'Head Constable'. The Petitioner was about to retire on reaching the age of superannuation, i.e., with effect from 30.11.1995, when all of a sudden about 4 (four) days prior to the date of retirement, a chargesheet dated 26/28.11.1995 was drawn up and served upon the Petitioner containing charges, indicating that the Petitioner has committed grave misconduct and failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a railway servant contravening Rules 3(1)(i), (ii) and (iii) of the Railway Service (Conduct) Rules, 1966 thereby rendering himself liable for disciplinary action under Rule 153 of the Railway Protection Force Rules, 1987. On the next day a letter dated 28.11.1995 (Annexure-3) was issued which shows the same to have been dispatched on 28/29.11.1995 whereby and whereunder the Petitioner was sought to be put under suspension retrospectively with effect from 27.11.1995 in contemplation of a departmental proceeding.
7. On 29.11.1995, however, an order was issued under the signature of the Divisional Security Commissioner (RPF), Adra informing inter alia to all concerned including the Petitioner as also the Chief Security Officer (RPF)/South Eastern Railway/GRC that the Petitioner who was now under suspension from 27.11.1995 vide Office Order dated 28.11.1995 "stands retired" from railway service with effect from 30.11.1995 (AN) on attaining the age of 58 years, i.e., the age of superannuation.
8. Noticing the aforesaid sequence of events, two things are apparent, firstly that the Petitioner was allowed to superannuate on and from the date he reached the age of superannuation, i.e., from the afternoon of 30.11.1995; the second fact which is evident is that 4 (four) days prior thereto the Petitioner was served with a chargesheet and put under suspension retrospectively.
9. It is also evident upon reading paragraph 4 of the Writ Application along with Annexure-1 that the Petitioner while filling up the Attestation Form had emphatically asserted that he was not a member of either the Scheduled Caste or Scheduled Tribe. Paragraph 4 of the Writ Application has not been denied by the Respondents. On the contrary paragraph 8 of the Counter Affidavit merely says that the statements made in paragraphs 3 to 5 are matters of record.
10. In the backdrop of what has been narrated above and especially with regard to the role played by the Petitioner while filling up the Attestation Form, this Court cannot help but express only praises for the Petitioner for having been honest to his department by emphatically stating that he was not a member of either the Scheduled Caste Community or Scheduled Tribe Community. Consequently, when this Court perused the chargesheet served upon the Petitioner, it was veritably amazed and in order to express the amazement of the Court, it is necessary to quote in verbatim the language of the allegation imputed against the Petitioner. The allegations are recorded at running page 27 of the Writ Application and it reads thus :--
"Allegation.--That Shri Dhurup Deo Singh Kharwar was appointed as Sainik on 22.2.59 in RPF/S.E.Rly. and since then he has been continuing in service. At the early stage of his service period the Rly. Attestation form was duly filled in with the necessary particulars of Shri D.D. Singh Kharwar which indicates his declaration that he is not a member of SC/ST. In his statement dated 12.9.94 given to the DSC/RPF/Adra Shri D.D. Singh stated that he belongs to "Kinor Rajpur" community which does not come under the SC/ST community. Subsequently he gave another clarificatory statement dated 10.11.95 in which he has again stated that he belongs to Rajput (Kinore) community which does not come under SC/ST community. Thus he was fully aware that he was not a member of the SC/ST and any official benefit to be given only to the reserved community of SC/ST must not be derived for himself and enjoyed by himself.
Thus in term of directive contained in CSO/S.E.Rly/GRC's letter No. RPF/GA-II/UPC/OS-1/9543, date 24.5.84, the selection Board consisting of S/Shri D.N. Biswas, ASC(R)/LTDR/ KGP B. Mukherjee, ASC (R)/Abik-shep/KGP and D.N. Biswas, ASC(R)/ LTDR/KGP conducted a selection of the candidates at GRC from 18.6.84 to 20.6.84 for promotion to the rank of SRK/HC also to 170 upgraded posts on restructuring and prepared a final list dated 20.6.84 of 170 Rakshak declared fit for promotion which indicated that Shri D.D. Singh (his name appearing at Sl. No. 97) was selected for promotion under ST quota. Accordingly he was promoted to the rank of SRK W.E.F. 1.4.83 as per entry dated 28.8.84 made by the ASC/ADA at page 4 of the service record of Shri D.D. Singh Kharwar.
That subsequently another selection test for promotion to the rank of Head constable from SRK(Naik) was held on 14.1.87 and 10.3.87 by a duly constituted selection Board consisting of S/Shri S. Mishra, AC/ADA, D.N. Biswas, AC/CKP and A.N. Sarkar/AC/CKP who drew the necessary proceeding dated 10.3.87 of the selection test. The said proceeding contains the names of the 25 candidates who were declared passed and the name of Shri D.D. Singh was shown as one of the passed candidates under ST Quota. Accordingly he was promoted to the rank of Head Constable w.e.f. 6.9.87 as per entry date 6.9.87 made by the DSC/RPF/S.E. RLY. Adra at page-7 of the service record of Shri D.D. Singh Kharwar.
That the above mentioned two promotion given to Shri D.D. Singh Kharwar were accepted by him irregularly, knowing fully well that the said 2 promotions were given to him against reserve quota for ST and he was not entitled to/eligible for such promotion as he was not a member of ST, Sri D.D. Singh Kharwar has also been en-Joying resultant undue promotional benefits in pay etc. payable on such promotions till now.
Thus by the above act of omission and commission Shri D.D. Singh Kharwar committed grave misconduct and failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Rly. Servant contravening Rule 3(1)(i), (ii) and (iii) of the Rly. Services (Conduct) Rules, 1966 and thereby rendered himself liable for disciplinary action under Rule 153 of RPF Rules, 1987.
Hence the charge.
Sd/-
Asstt. Security Commissioner/RPF/ S.E. Railway, Adra."
11. The aforementioned few paragraphs of the chargesheet speak volumes not only about the case at hand but also speaks out loud and clear and points to the innocence of the Petitioner. The first part of the paragraph giving the narration of the allegations clearly admits that the Railway Attestation Form was duly filled in with the necessary particulars of the Petitioner which indicates his declaration that he is not a member of SC/ST. In other words, the Attestation Form was well within the knowledge of the Respondent and they were fully aware of the fact that the Petitioner had given an emphatic declaration that he was not a member of either the Scheduled Tribe Community or the Scheduled Caste Community.
12. In the same paragraph the Officer issuing the chargesheet further admits that in his statement made on 12.09.1994 given to the DSC/RPF/Adra, the Petitioner had stated that he belonged to "Kinore Rajput" Community which does not come under the Scheduled Cast/Scheduled Tribe Community. In the same paragraph again the same officer refers that subsequently the Petitioner gave yet another clarificatory statement on 10.11.1995 in which he again stated that he belonged to the Rajput (Kinore) Community which does not come under the Scheduled Caste/Scheduled Tribe Community. This paragraph, therefore is a pointer to the fact that the Petitioner made at least three repeated statements to the effect that he did not belong to the Scheduled Caste/Scheduled Tribe Community and these three stages were at the time of filling up of the Attestation Form which appears to have been made some time in the year 1958, i.e., prior to the appointment of the Petitioner and the second stages are on 12.9.94 and 10.11.95. This Court, therefore, does not understand as to why in the face of such categorical statements, instead of recording appreciation for the Petitioner, the table is virtually turned against him because immediately in the next line the issuing authority admits that the words "that he was fully aware that he was not a member of the Scheduled Caste/Scheduled Tribe Community and any official benefit to be given only to the reserved community must not be derived for himself and enjoyed by himself. The aforementioned accusation, in the opinion of this Court, makes no dent at all to the shield of honesty and integrity of this Petitioner which he has carried right from the beginning. In the very next paragraph it appears that a Selection Board was constituted consisting of various persons including one D.N. Biswas, B. Mukherjee and another D.N. Biswas who conducted a selection of the candidates from 18.6.1984 to 20.6.1984 for promotion to the post of 'Senior Rakshak'. From this paragraph again it appears that the Petitioner was selected for promotion but why his name was placed in the Scheduled Tribe Quota is not understandable to this Court. If the Petitioner had all along emphatically stated and recorded that he did not belong to the Scheduled Caste/Scheduled Tribe Community, then placing of his name in the Scheduled Caste/Scheduled Tribe Quota is not a lapse on the part of the Petitioner, and it is not the Petitioner who should be blamed but it is the Respondents who are responsible for such a lapse.
13. At this juncture, Mr. P.P.N. Roy, learned counsel for the Petitioner produced for perusal of this Court, the order of promotion of the Petitioner to the rank of 'Senior Rakshak'. This appears to have been marked as Exhibit P/4 before the Enquiry Officer and it does not show that he was promoted as against either Scheduled Caste/Schedulec: Tribe Category. All that, it shows is that he was promoted to the rank of 'SRK' (Senior Rakshak) with effect from 01.04.1983 in accordance with the office D.O. No. 797/84 dated 16.8.1994. Let it be recorded that the aforementioned promotion to the post of a 'Senior Rakshak' was made after selection and it was made during the period 18.6.1984 to 20.6.1984. In other words this selection was made much, much after the filling up of the Attestation Form which the Petitioner had done at the time of his appointment and therefore the Respondents were fully aware about the Petitioner not belonging to the two communities referred to above. In the 3rd paragraph of the allegations, reference is made to yet another selection test which was conducted on 10.03.1987 where the candidates who were considered including the Petitioner after having been found passed were promoted to the post of 'Head Constable'. The name of D.N. Biswas once again figures in this paragraph and therefore, at least on two occasions, the Selection Committee consisted of at least one member who was present in both the Selections and the Respondents cannot be said to be ignorant that the Petitioner had himself given this declaration that too, when at the time of filling up the Attestation Form he had stated that he did not belong to that Community.
14. In that view of the matter, this Court is of the opinion that firstly, the Petitioner had not acted in such a manner that it should be said to be a grave misconduct making himself liable to be proceeded against under Rule 153 of the 1987 Rules. Rule 153 of the 1987 Rules relates to procedures to be followed for minor, major punishments and Rule 153(1) refers to dismissal, removal, compulsory retirement or reduction in rank.
15. From what has been stated above and upon reading the chargesheet it is clear that the selection of the Petitioner was made after he had fully qualified himself and therefore he should have be placed by the Respondents themselves in the appropriate category and if the Respondents placed him in the Scheduled Tribe/ Scheduled paste Category, they are themselves to be blamed for it.
16. However, the other aspect which nonetheless requires to be taken not of is that even if the argument of Mr. Mahesh Tiwary, learned counsel for the Respondent is accepted to the effect that after receiving the orders of promotion, the Petitioner should have pointed this out to the Respondent about the same, this Court is of the-definite opinion that for such an irregularity the Respondents should not have straightaway adopted the procedure to be followed under Rule 153 of the Rules of 1987. The Respondents could very well have proceeded to cancel the irregular promotion after giving adquate opportunity and after following the procedure of law but certainly not a chargesheet for purposes of resorting to action to be taken as contemplated in Rule 153 and 153(1) of the Railway Protection Force Rules, 1987. That apart it cannot be overlooked that even after placing the Petitioner under suspension and even after issuing the chargesheet, the Respondents themselves allowed the Petitioner to retire on and from 30.11.1995.
17. Taking the case therefore, in its entirety, this Court holds that the Respondents have not acted in a bona fide manner in so far as Petitioner is concerned and taking into consideration the fact that there is no deliberate misconduct on the part of the Petitioner, the action contemplated or taken against him is wholly unwarranted. Consequently, the Writ Petition must succeed and it is accordingly allowed to do so. The impugned chargesheet as also the impugned departmental proceeding as also the order, of suspension are hereby set aside and quashed. Upon setting aside of all the impugned actions and the orders referred to therein, it goes without saying that the Petitioner would now be entitled to all consequential benefits including Post Retiral Dues to which he would have otherwise been entitled to had the Respondent not dealt with him in the manner that they have done by issuance of these documents.
17-A. During the course of argument, Mr. P.P.N. Roy, learned counsel for the Petitioner has pointed out that the Respondents have paid certain amounts against certain heads but some amounts are still due. He has also stated that pursuant to the interim order dated 19.04.1996 read with order dated 22.05.1996 as also the order dated 16.07.1996 passed by this Court, the Petitioner has not vacated the Quarter and he is continuing to occupy the same. In that view of the matter, the Respondents are now directed to immediately and forthwith calculate all that amount of money together with compensatory interest at the rate of 6% simple interest and pay the same to the Petitioner within a period of two moths from the date of receipt of a copy of this Order. Upon receipt of the entire amount, the Petitioner must thereafter and not later than a period of two months from the date of receipt of the said amounts, vacate the quarter which he is presently occupying. Let it be recorded that after receiving the money it will not be open for the Petitioner to capitalize on the interpretation of the Words "entire amount" and he shall not be allowed to state that he has not been paid the whole amount. Upon receipt of the calculated amount as per this order indicated above, the Petitioner must vacate the quarter. If the Petitioner feels that he is entitled to a higher amount, it will be open for him to claim the same but that will not be treated as pretext to retain the quarter any further.
18. With the aforementioned observations and directions, this Writ Application is allowed. However, there shall be no order as to costs.