Gujarat High Court
Jayantibhai Bhikhabhai Rathod vs Inspector General And Chief Security ... on 6 January, 2020
Equivalent citations: AIRONLINE 2020 GUJ 149
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A. P. Thaker
C/SCA/10811/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10811 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10813 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 11763 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 11764 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 11765 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13530 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER
=============================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
=============================================
JAYANTIBHAI BHIKHABHAI RATHOD
Versus
INSPECTOR GENERAL AND CHIEF SECURITY COMMISSIONER
=============================================
Appearance:
MR I.H.SYED, SENIOR ADVOCATE WITH MR PRITHU
PARIMAL(9025) for the Petitioner No. 1
MS ARCHANA U AMIN(2462) for the Respondent Nos. 1, 2
=============================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER
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C/SCA/10811/2019 JUDGMENT
Date : 06/01/2020
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Rule. Learned counsel Ms. Archana U.Amin waives service of notice of Rule on behalf of respondent nos.1 and 2. By consent Rule is fixed forthwith.
2. Heard learned counsels appearing for the parties. As the controversy in this group of petitions was revolving around the common question of law based upon almost common facts, at the request of counsels for the parties all these matter were heard together and are being disposed of by this common judgment and order.
3. The petitioners in these petitions have approached this Court by way of these petitions under Article 226 of the Constitution of India with following prayers:
Prayer of Special Civil Application No.10811 of 2019 A. This Hon'ble Court be pleased to admit and allow the present Petition.
B. This Hon'ble Court be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ/order/direction quashing and setting aside the impugned communication dated Page 2 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT 09.04.2019 bearing no. A.D.I. 40/153/05/2019 by which the departmental inquiry was initiated against the present Petitioner.
C. Pending admission and final disposal of the present Petition, this Hon'ble Court be pleased to stay the further steps to be taken pursuant to impugned communication dated 09.04.2019, bearing no.A.D.I. 40/153/05/2019.
D. This Hon'ble Court be pleased to pass any other further and consequential order as may be required in the interest of justice considering the facts and circumstances of the present case.
Prayer of Special Civil Application No.10813 of 2019 A. This Hon'ble Court be pleased to admit and allow the present Petition.
B. This Hon'ble Court be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ/order/direction quashing and setting aside the impugned communication dated 09.04.2019 bearing no. A.D.I. 40/153/04/2019 by which the departmental inquiry was initiated against the present Petitioner.
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C. Pending admission and final disposal of
the present Petition, this Hon'ble Court be pleased to stay the further steps to be taken pursuant to impugned communication dated 09.04.2019, bearing no.A.D.I. 40/153/04/2019.
D. This Hon'ble Court be pleased to pass any other further and consequential order as maybe required in the interest of justice considering the facts and circumstances of the present case.
Prayer of Special Civil Application No.11763 of 2019 A. This Hon'ble Court be pleased to admit and allow the present Petition.
B. This Hon'ble Court be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ/order/direction quashing and setting aside the impugned communication dated 22.04.2019 bearing no. BCT/DAR/MAJ/02/2019 by which the departmental inquiry was initiated against the present Petitioner.
C. Pending admission and final disposal of the present Petition, this Hon'ble Court be pleased to stay the further steps to be taken pursuant to impugned communication dated Page 4 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT 22.04.2019, bearing no.BCT/DAR/MAJ/02/2019.
D. This Hon'ble Court be pleased to pass any other further and consequential order as maybe required in the interest of justice considering the facts and circumstances of the present case.
Prayer of Special Civil Application No.11764 of 2019 A. This Hon'ble Court be pleased to admit and allow the present Petition.
B. This Hon'ble Court be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ/order/direction quashing and setting aside the impugned communication dated 15.04.2019 bearing no. D.A.R.153/02/2019 by which the departmental inquiry was initiated against the present Petitioner.
C. Pending admission and final disposal of the present Petition, this Hon'ble Court be pleased to stay the further steps to be taken pursuant to impugned communication dated 15.04.2019, bearing no.D.A.R.153/02/2019.
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D. This Hon'ble Court be pleased to pass
any other further and consequential order as maybe required in the interest of justice considering the facts and circumstances of the present case.
Prayer of Special Civil Application No.11765 of 2019 A. This Hon'ble Court be pleased to admit and allow the present Petition.
B. This Hon'ble Court be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ/order/direction quashing and setting aside the impugned communication dated 02.05.2019 bearing no. R.F.E.40/153/06/2019 by which the departmental inquiry was initiated against the present Petitioner.
C. Pending admission and final disposal of the present Petition, this Hon'ble Court be pleased to stay the further steps to be taken pursuant to impugned communication dated 02.05.2019, bearing no.R.F.E.40/153/06/2019.
D. This Hon'ble Court be pleased to pass any other further and consequential order as maybe required in the interest of justice considering the facts and circumstances of the Page 6 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT present case.
Prayer of Special Civil Application No.13530 of 2019 A. This Hon'ble Court be pleased to admit and allow the present Petition.
B. This Hon'ble Court be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ/order/direction quashing and setting aside the impugned communication dated 03.07.2019 bearing no. R.J.E.40/3/153/06/2019 by which the departmental inquiry was initiated against the present Petitioner.
C. Pending admission and final disposal of the present Petition, this Hon'ble Court be pleased to stay the further steps to be taken pursuant to impugned communication dated 03.07.2019, bearing no.R.J.E.403/153/06/2019.
D. This Hon'ble Court be pleased to pass any other further and consequential order as maybe required in the interest of justice considering the facts and circumstances of the present case.
Thus, what is essentially under challenge in this group of petitions is the issuance of charge-sheet to the Page 7 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT petitioners in respect of incident alleged to have occurred on 01.07.2011, which had resulted into lodging of complaint on 01.07.2011 and arrest of the petitioners on different dates, as mentioned in the memo of the petitions and referred to hereinafter. The suspension ensued. The petitioners were released on bail and thereafter reinstated on 02.03.2012. The petitioners were serving at different stations, came to be visited with the charge memos in respect of the said incident on different dates, which charge memos have been subject matter of challenge in these petitions, as stated hereinabove under Article 226 of the Constitution of India.
4. The facts without unnecessary details, and required for the purpose of examining the challenge to the charge-sheets, as could be gathered from the memo of the petitions, deserve to be set out hereinbelow:
4.1 All the petitioners were working as constables and head constables in Railway Protection Force, when incident of theft of railway property said to have occurred on 01.07.2011.
This theft was also an offence under the Railway Property (Unlawful Possession) Act, 1966 and accordingly the complaint thereunder came to be lodged on 01.07.2011 itself and they were all shown as accused in the complaint which resulted into initiation of Criminal Case No.1980 of 2012 pending before the Judicial Magistrate, First Class, Railway Court, Godhra. The petitioners came to be arrested on different dates, as mentioned against their respective names and as it is stated hereinabove. The arrest also resulted into suspension of petitioners from the services. All the petitioners were released on bail on different dates but in the year 2011 Page 8 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT itself in the month of August and September and thereafter on 02.03.2012 the petitioner were suspended by the competent authority.
4.2 The said Criminal Case No.1980 of 2012 is still pending and awaiting its final disposal. The petitioners were infact constrained to approach this Court by way of Special Criminal Application No.6267 of 2019 for seeking expeditious disposal of the trial pursuant to the Criminal Case No.1980 of 2012. The Special Criminal Application No.6267 of 2019 was disposed by this Court vide order dated 26.06,2019, which read as under:
1. By way of this petition under Article 227 of the Constitution of India, the petitioners have prayed for the following relief in terms of para 10(B).
"This Hon'ble Court be pleased to issue an appropriate writ/order/direction for expediting trial of Criminal Case No.1980 of 2012, pending before the Ld. Judicial Magistrate first Class, Railway Court, Godhra within a specified period of time."
2. A grievance has been ventilated by the petitioners accused that they are facing trial of Criminal Case No.1980 of 2012 before the learned JMFC, Railway Court, Godhra. It is the case of the petitioners that though deposition of the witness Mr. Raj Singh is Page 9 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT commenced on 4.3.2015 and despite the passage of more than four years, the examination-in-chief has yet not been completed. This Court vide order dated 14.6.2019 called for the explanation of learned JMFC, Railway Court, Godhra. Pursuant to Court's order, the learned JMFC, Railway Court, Godhra has furnished his explanation as per communication dated 21.6.2019, wherein he has pointed out various reasons for the delay and he has further stated that it has jurisdiction of five districts of Gujarat, namely Vadodara, Anand, Nadiad, Panchmahal and Godhra.
3. While appreciating the explanation furnished by the learned JMFC, Railway Court, Godhra, he is bound to expedite recording of evidence of the complainant and it cannot be allowed to be delayed beyond reasonable period on any grounds including the explanation furnished in aforementioned communication.
4. Under the circumstances, the learned JMFC, Railway Court, Godhra is directed to conclude the examination-in-chief of the complainant as expeditiously as possible and secure his presence, if any attempt is made to delay the trial, by issuing appropriate warrant in case of need. The learned JMFC, Railway Court, Godhra shall not adjourn the matter Page 10 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT mere asking for and shall see to it that examination-in-chief of the complainant is recorded as expeditiously as possible and for which, he shall fix the time schedule after considering his own schedule and the conveniency of the parties to the proceedings.
5. With these observations and directions, present petition stands disposed of.
4.3 The facts of lodgment of the complaint, arrest, suspension, date of release of the petitioners on bail and their written statement and the charge memos could be depicted in a tabular form, as under:
Special Special Special Special Special Special Civil Civil Civil Civil Civil Civil Applicat Applicati Applicati Applicati Applicati Applicati ion No. on No. on No. on No. on No. on No. 10811 10813 of 11763 of 11764 of 11765 of 13530 of of 2019 2019 2019 2019 2019 2019 Date of 01/07/11 01/07/11 01/07/11 01/07/11 01/07/11 01/07/11 alleged incident Date of 01/07/11 01/07/11 01/07/11 01/07/11 01/07/11 01/07/11 Complaint under RP (UP) Act Date of 25.08.20 28.08.201 16.07.201 11/07/11 02/07/11 25.08.201 Arrest 11 1 1 1 Date of Immediat Immediat Immediat Immediat Immediat Immediat Suspensio ely after ely after ely after ely after ely after ely after n arrest. arrest. arrest. arrest. arrest. arrest.
Date of 03/09/11 03/09/11 11/08/11 16/08/11 09/08/11 03/09/11 release on Bail Date of 02/03/12 02/03/12 02/03/12 02/03/12 02/03/12 02/03/12 Reinstate ment Date of 09/04/19 09/04/19 22/04/19 15/04/19 02/05/19 03/07/19 issuance of Charge Memo Page 11 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT 4.4 The petitioners were thus, visited with the similar charge memo on the dates mentioned in the table produced hereinabove. All the charge memos issued under provision of Rule 153 of the Railway Protection Force Rules, 1987 and the charge memos refer to the incident of an offence for which a complaint is filed on 01.07.2011 involving all these petitioners, which has given rise to the Criminal Case No.1980 of 2012. As a result whereof, the petitioners were arrested, suspended and released on bail and thereafter reinstated. The charge memos are almost identical. They indicate that the petitioners tarnished the image of Railway Protection Force and committed a misconduct under Rule 146.2(i), 146.4 and sub-Rule 3.1 (i), (ii), (iii) of the Railway Services (Conduct) Rules, 1966. It is not disputed that all the charge memos are triggered off on account of the alleged incident of offence, the criminal case, arrest and the involvement of the petitioners thereunder. The petitioners were released on bail and therefore the suspension came to be revoked and they were reinstated. Petitioners were discharging the duties and all of a sudden in the year 2019 on different dates, as mentioned in the table hereinabove, visited with the charge memos for imposing major punishment under the Railway Protection Force Rules, 1987.
4.5 Being aggrieved and dissatisfied with the said charge memos, the petitioners have approached this Court by way of these petitions under Articles 226 of the Constitution of India on the basis of the grounds mentioned thereunder.
5. Learned senior counsel appearing for the petitioners submitted that the charge memos are untenable in Page 12 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT law on two counts namely: the charge memos are issued after long delay without any explanation for the same and they in fact could not have been issued based upon the given facts of the case. The counsel made elaborate submissions and with the permission of the Court placed on record the gist of the submissions by way of written submissions, which are reproduced hereinunder:
"1. The petitioner in Special Civil application no.10811 of 2019 begs to summarize the events leading to the filing of the said Special Civil application as follows :-
Name of Petitioner Jayantbhai B. Rathod Date Particulars 01.07.2011 Date of alleged incident. 01.07.2011 Criminal Case No.02 of 2011 was registered under The Railway Property (Unlawful Possession) Act, 1966. The same has been converted into Criminal Case No.1980 of 2012 and is presently pending before the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra. The petitioner in the said Special Civil Application has been arraigned as an accused.
25.08.2011 The Petitioner was arrested.
--- Immediately upon arrest, the petitioner was put under suspension by the Respondent authorities.
02.03.2012 The petitioner was reinstated into
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C/SCA/10811/2019 JUDGMENT
service by way of an order passed by the Office of the IG cum Chief Security Commissioner, Railway Protection Force, Churchgate, Mumbai.
09.04.2019 That after a delay of close to 9 years, the petitioner in the said Special Civil Application was issued the impugned departmental charge memo bearing no.A.D.I. 40/153/05/2019. In the impugned charge memo the only charge framed is that Criminal Case No.02 of 2011 was registered under the Railway Property (Unlawful Possession) Act, 1966 and that the petitioner was arrested therein, sent to judicial custody and subsequently enlarged on bail, thereby tarnishing the image of the Railway Protection Force.
26.06.2019 It is submitted that Criminal Case No.1980 of 2012 pending before the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra was not being proceeded with owing to the absence of the inquiry officer. It is the case of the Petitioners that on one hand the inquiry officer is not remaining present before the Ld. Trial Court and on the other hand for reasons best known to the Respondent authorities they are adamant on proceeding with the departmental inquiry against all the present petitioners, that too after a delay of close to 9 years. All the Page 14 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT present Petitioners preferred Special Criminal Application No. 6267 of 2019 praying that trial of Criminal Case No.1980 of 2012 be expedited. Vide order dated 26.06.2019, this Hon'ble Court was pleased to direct the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra to conclude the examination in chief of the complainant as expeditiously as possible and secure his presence, if any attempt is made to delay the trial by issuing appropriate warrant in case of need. However, despite such direction, the trial is not being proceeded with.
2. The petitioner in Special Civil Application no.10813 of 2019 begs to summarize the events leading to the filing of the said Special Civil Application as follows :-
Name of Petitioner Manojkumar P. Patel Date Particulars 01.07.2011 Date of alleged incident. 01.07.2011 Criminal Case No.02 of 2011 was registered under The Railway Property (Unlawful Possession) Act, 1966. The same has been converted into Criminal Case No.1980 of 2012 and is presently pending before the Ld. Chief Judicial Magistrate First Class, Railway Court, Page 15 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT Godhra. The petitioner has been arraigned as an accused.
28.08.2011 The Petitioner was arrested.
--- Immediately upon arrest, the petitioner was put under suspension by the Respondent authorities. 02.03.2012 The petitioner was reinstated into service by way of order passed by the Office of the IG cum Chief Security Commissioner, Railway Protection Force, Churchgate, Mumbai.
09.04.2019 That after a delay of close to 9 years, the petitioner in the said Special Civil Application was issued the impugned departmental charge memo bearing no.A.D.I. 40/153/04/2019. In the impugned charge memo the only charge framed is that Criminal Case No.02 of 2011 was registered under the Railway Property (Unlawful Possession) Act, 1966 and that the petitioner was arrested therein, sent to judicial custody and subsequently enlarged on bail, thereby tarnishing the image of the Railway Protection Force.
26.06.2019 It is submitted that Criminal Case No.1980 of 2012 pending before the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra was not being proceeded with owing to the absence of the inquiry officer. It is the case of the Petitioners that on one Page 16 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT hand the inquiry officer is not remaining present before the Ld. Trial Court and on the other hand for reasons best known to the Respondent authorities they are adamant on proceeding with the departmental inquiry against all the present petitioners, that too after a delay of close to 9 years. All the present Petitioners preferred Special Criminal Application No. 6267 of 2019 praying that trial of Criminal Case No.1980 of 2012 be expedited. Vide order dated 26.06.2019, this Hon'ble Court was pleased to direct the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra to conclude the examination in chief of the complainant as expeditiously as possible and secure his presence, if any attempt is made to delay the trial by issuing appropriate warrant in case of need. However, despite such direction, the trial is not being proceeded with.
3. The petitioner in Special Civil Application no.11763 of 2019 begs to summarize the events leading to the filing of the said Special Civil Application as follows :-
Name of Petitioner Jay Singh Page 17 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT Date Particulars
01.07.2011 Date of alleged incident. 01.07.2011 Criminal Case No.02 of 2011 was registered under The Railway Property (Unlawful Possession) Act, 1966. The same has been converted into Criminal Case No.1980 of 2012 and is presently pending before the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra. The petitioner has been arraigned as an accused.
16.07.2011 The Petitioner was arrested.
--- Immediately upon arrest, the petitioner was put under suspension by the Respondent authorities.
02.03.2012 The petitioner was reinstated into service by way of order passed by the Office of the IG cum Chief Security Commissioner, Railway Protection Force, Churchgate, Mumbai.
22.04.2019 That after a delay of close to 9 years, the petitioner in the said Special Civil Application was issued the impugned departmental charge memo bearing no.BTC/DAR/MAJ/02/2019. In the impugned charge memo the only charge framed is that Criminal Case No.02 of 2011 was registered under the Railway Property (Unlawful Possession) Act, 1966 and that the petitioner was arrested therein, sent to judicial custody and subsequently Page 18 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT enlarged on bail, thereby tarnishing the image of the Railway Protection Force.
26.06.2019 It is submitted that Criminal Case No.1980 of 2012 pending before the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra was not being proceeded with owing to the absence of the inquiry officer. It is the case of the Petitioners that on one hand the inquiry officer is not remaining present before the Ld. Trial Court and on the other hand for reasons best known to the Respondent authorities they are adamant on proceeding with the departmental inquiry against all the present petitioners, that too after a delay of close to 9 years. All the present Petitioners preferred Special Criminal Application No. 6267 of 2019 praying that trial of Criminal Case No.1980 of 2012 be expedited.
Vide order dated 26.06.2019, this Hon'ble Court was pleased to direct the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra to conclude the examination in chief of the complainant as expeditiously as possible and secure his presence, if any attempt is made to delay the trial by issuing appropriate warrant in case of need. However, despite such Page 19 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT direction, the trial is not being proceeded with.
4. The petitioner in Special Civil Application no.11764 of 2019 begs to summarize the events leading to the filing of the said Special Civil Application as follows :-
Name of Petitioner Imran A. Vohra
Date Particulars
01.07.2011 Date of alleged incident. 01.07.2011 Criminal Case No.02 of 2011 was registered under The Railway Property (Unlawful Possession) Act, 1966. The same has been converted into Criminal Case No.1980 of 2012 and is presently pending before the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra. The petitioner has been arraigned as an accused.
11.07.2011 The Petitioner was arrested.
--- Immediately upon arrest, the petitioner was put under suspension by the Respondent authorities.
02.03.2012 The petitioner was reinstated into service by way of order passed by the Office of the IG cum Chief Security Commissioner, Railway Protection Force, Churchgate, Mumbai.
15.04.2019 That after a delay of close to 9 years, the petitioner in the said Special Civil Page 20 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT Application was issued the impugned departmental charge memo bearing no.D.A.R.153/02/2019. In the impugned charge memo the only charge framed is that Criminal Case No.02 of 2011 was registered under the Railway Property (Unlawful Possession) Act, 1966 and that the petitioner was arrested therein, sent to judicial custody and subsequently enlarged on bail, thereby tarnishing the image of the Railway Protection Force.
26.06.2019 It is submitted that Criminal Case No.1980 of 2012 pending before the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra was not being proceeded with owing to the absence of the inquiry officer. It is the case of the Petitioners that on one hand the inquiry officer is not remaining present before the Ld. Trial Court and on the other hand for reasons best known to the Respondent authorities they are adamant on proceeding with the departmental inquiry against all the present petitioners, that too after a delay of close to 9 years. All the present Petitioners preferred Special Criminal Application No. 6267 of 2019 praying that trial of Criminal Case No.1980 of 2012 be expedited. Vide order dated Page 21 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT 26.06.2019, this Hon'ble Court was pleased to direct the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra to conclude the examination in chief of the complainant as expeditiously as possible and secure his presence, if any attempt is made to delay the trial by issuing appropriate warrant in case of need. However, despite such direction, the trial is not being proceeded with.
5. The petitioner in Special Civil Application no.11765 of 2019 begs to summarize the events leading to the filing of the said Special Civil Application as follows :-
Name of Petitioner Tejal R. Singh
Date Particulars
01.07.2011 Date of alleged incident. 01.07.2011 Criminal Case No.02 of 2011 was registered under The Railway Property (Unlawful Possession) Act, 1966. The same has been converted into Criminal Case No.1980 of 2012 and is presently pending before the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra. The petitioner has been arraigned as an accused.
Page 22 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020C/SCA/10811/2019 JUDGMENT 02.07.2011 The Petitioner in the said Special Civil application was arrested.
--- Immediately upon arrest, the
petitioner was put under
suspension by the Respondent
authorities.
02.03.2012 The petitioner was reinstated into service by way of order passed by the Office of the IG cum Chief Security Commissioner, Railway Protection Force, Churchgate, Mumbai.
02.05.2019 That after a delay of close to 9 years, the petitioner in the said Special Civil Application was issued the impugned departmental charge memo bearing no.R.F.E.40/153/06/2019.
In the impugned charge memo the only charge framed is that Criminal Case No.02 of 2011 was registered under the Railway Property (Unlawful Possession) Act, 1966 and that the petitioner was arrested therein, sent to judicial custody and subsequently enlarged on bail, thereby tarnishing the image of the Railway Protection Force.
26.06.2019 It is submitted that Criminal Case No.1980 of 2012 pending before the Ld. Chief Judicial Magistrate First Class, Railway Court, Page 23 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT Godhra was not being proceeded with owing to the absence of the inquiry officer. It is the case of the Petitioners that on one hand the inquiry officer is not remaining present before the Ld. Trial Court and on the other hand for reasons best known to the Respondent authorities they are adamant on proceeding with the departmental inquiry against all the present petitioners, that too after a delay of close to 9 years.
All the present Petitioners preferred Special Criminal Application No. 6267 of 2019 praying that trial of Criminal Case No.1980 of 2012 be expedited. Vide order dated 26.06.2019, this Hon'ble Court was pleased to direct the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra to conclude the examination in chief of the complainant as expeditiously as possible and secure his presence, if any attempt is made to delay the trial by issuing appropriate warrant in case of need. However, despite such direction, the trial is not being proceeded with.
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6. The petitioner in Special Civil
Application no.13530 of 2019 begs to
summarize the events leading to the filing of the said Special Civil Application as follows :-
Name of Petitioner Vinod Solanki
Date Particulars
01.07.2011 Date of alleged incident. 01.07.2011 Criminal Case No.02 of 2011 was registered under The Railway Property (Unlawful Possession) Act, 1966. The same has been converted into Criminal Case No.1980 of 2012 and is presently pending before the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra. The petitioner has been arraigned as an accused.
25.08.2011 The Petitioner was arrested.
--- Immediately upon arrest, the
petitioner was put under
suspension by the Respondent
authorities.
02.03.2012 The petitioner was reinstated into service by way of order passed by the Office of the IG cum Chief Security Commissioner, Railway Protection Force, Churchgate, Mumbai.
03.07.2019 That after a delay of close to 9 Page 25 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT years, the petitioner in the said Special Civil Application was issued the impugned departmental charge memo bearing no.R.J.E. 40/3/153/06/2019. In the impugned charge memo the only charge framed is that Criminal Case No.02 of 2011 was registered under the Railway Property (Unlawful Possession) Act, 1966 and that the petitioner was arrested therein, sent to judicial custody and subsequently enlarged on bail, thereby tarnishing the image of the Railway Protection Force.
26.06.2019 It is submitted that Criminal Case No.1980 of 2012 pending before the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra was not being proceeded with owing to the absence of the inquiry officer. It is the case of the Petitioners that on one hand the inquiry officer is not remaining present before the Ld. Trial Court and on the other hand for reasons best known to the Respondent authorities they are adamant on proceeding with the departmental inquiry against all the present petitioners, that too Page 26 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT after a delay of close to 9 years.
All the present Petitioners preferred Special Criminal Application No. 6267 of 2019 praying that trial of Criminal Case No.1980 of 2012 be expedited. Vide order dated 26.06.2019, this Hon'ble Court was pleased to direct the Ld. Chief Judicial Magistrate First Class, Railway Court, Godhra to conclude the examination in chief of the complainant as expeditiously as possible and secure his presence, if any attempt is made to delay the trial by issuing appropriate warrant in case of need. However, despite such direction, the trial is not being proceeded with.
ARGUMENTS
7. Because, there is an unexplained delay of close to 9 years in initiation of departmental proceedings against present Petitioners. It is submitted that the said delay has not been explained even during the course of hearing of the captioned Special Civil Applications.
8. Because, the Article of charge framed by the Respondent authorities in itself does not Page 27 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT constitute any misconduct under the Railway Protection Force Rules, 1987. It is submitted that mere filing of the complaint and subsequent arrest does not amount to conduct which brings discredit of any nature to the reputation of the force.
9. Because, the nature of the charge memo framed in the impugned charge memo is such that the same would result in automatic dismissal of the petitioners herein since it is an admitted fact that a criminal complaint was filed against the present petitioners and that they were arrested pursuant thereto and subsequently enlarged on bail. It is submitted that even if for the sake of argument the said charge is taken to be a charge framed in accordance with law, the same would not leave any scope for inquiry. Therefore, the impugned charge memo does not constitute any misconduct and therefore it is submitted that the same is based on an incorrect interpretation of the law.
10. Because, in Special Civil Application no.823 of 2015 a Division Bench of this Hon'ble Court (Coram: Hon'ble Mr.Justice Akil Kureshi and Hon'ble Ms.Justice Sonia Gokani) has held that mere filing of a criminal case cannot take shape of a concluded charge against an accused and that the same would not amount to misconduct under Rule 146 of the Railway Protection Force Rules, 1987.
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11. Because, on one hand the inquiry officer is remaining absent before the Ld. Trial Court and on the other hand the respondent authorities are adamant upon proceeding departmental inquiry against the petitioners for reasons best known to them. Therefore, the delay of the criminal trial is not attributed to the petitioners herein.
12. Because, the respondent authorities are blowing hot and cold at the same time, since on one hand on 02.03.2012 the respondent authorities have reinstated all the petitioners into service and by revoking their suspension, and on the other hand have decided to proceed in the departmental inquiry against them after a delay of close to 9 years. It is pertinent to note here that both the actions have arisen out of the same incident and contradict each other.
13. Because, even if a charge memo is served upon the petitioners w.r.t. misconduct arising out of the same alleged incident as the criminal case pending before the Ld. Trial Court, the said trial and departmental proceeding involve common and complicated questions of fact and law. It is submitted that if the departmental inquiry is proceeded with prior to completion of the criminal trial, the same would amount to the petitioners herein having disclosed their probable defence in the Page 29 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT criminal trial and therefore also, the impugned charge memorandums are required to be quashed and set-aside in the interest of justice. In the case of M/s. Stanzer Toyotetsu India Pvt. Ltd., Versus Girish V. & Ors., in Special Leave Petition (Civil) No.30371 - 30376 of 2012 the Hon'ble Supreme Court has observed that the department can go simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. Lastly, it has been held therein that there is no straitjacket formula and that each case has to be seen in its own facts and circumstances and accordingly discretion of the Court is to be exercised.
14. In view of what is stated and submitted hereinabove, the petitioners herein most humbly and respectfully pray that this Hon'ble Court be pleased to allow the captioned Special Civil Applications."
6. Learned counsel appearing for the respondents invited Court's attention to the affidavit-in-reply and submitted that the charge memos could not have been challenged in the proceedings of Article 226 of the Constitution of India when the petitioner have not denied that as a result of their involvement in a criminal offence, they were accused and facing criminal trial in form of Criminal Case No.1980 of 2012 and therefore, when the petitioner Page 30 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT conducted themselves in such a manner as to be an unbecoming of the railway servants, the charge memos revolving around such kind of misconduct, cannot be said to be untenable in eye of law and hence this Court may not grant any relief to the petitioners.
7. Learned counsel for the respondents invited Court's attention to the conduct Rules and the Rules of Railway Protection Force invoked in the charge memos namely Rule 153, Rule 146 and Rule 3 of the Railway Services (Conduct) Rules, 1966 to support her contention that the misconduct alleged in the charge memos can be said to be a misconduct warranting initiation of inquiry under Rule 153 of the Railway Protection Force Rules and therefore this Court may not grant any relief to the petitioners.
8. Learned counsel appearing for the respondents further submitted that the misconduct as alleged in the memos cannot be said to be wiped off only on account of lapse of time from the date of the arrest till the issuance of charge memos. There is no absolute proposition of law which can support the contention of the petitioner that the delay occurred in issuance of charge memos itself is sufficient to defeat the charge memos.
9. Learned counsel for the respondents further submitted that charge memos are issued when the criminal trial is pending and when the petitioners have not earned any acquittal from the criminal court there was no case for the petitioners to submit that they have not been found involved in the misconduct and offence alleged, therefore, the charge Page 31 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT memos could not have been challenged by the petitioners in the present petitions.
10. Learned counsel for the respondents in alternative and without prejudice to the aforesaid submissions, urged the Court that in case, if the Court is of the view that the charge memos need to be couched appropriately, then the same liberty be reserved, as the ground of delay would not in any manner be available to the petitioners and the respondents would be well within their right to proceed against the petitioners - delinquent in accordance with law.
11. The Court has heard learned counsels appearing for the parties and perused the documents. The following indisputable aspects emerging therefrom deserve to be set out as under in order to appreciate the controversy between the parties namely:
(i) The offence under Railway Property (Unlawful Possession) Act, 1966 is said to have been occurred on 01.07.2011 and the allegations were made against all the petitioners. This fact has not been denied by anyone.
(ii) The incident of 01.07.2011 resulted into lodging of complaint under the Railway Property (Unlawful Possession) Act, 1966 on the very date itself i.e. 01.07.2011. The petitioners came to be arrested on different dates pursuant to the said complaint which have been mentioned in the memo of the petition and in the table hereinabove for the sake of convenience.
Page 32 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020C/SCA/10811/2019 JUDGMENT (iii) The suspension of the petitioners ensued
immediately. This fact has also not been disputed by anyone.
(iv) The petitioners were granted bail by the competent Court on different dates in the Month of August and September, as the petitioners were enlarged on bail the respondents appears to have revoked the suspension and reinstated petitioners on 02.03.2012, as mentioned in the memo of the petitions. These facts have also not been denied by anyone.
(v) The petitioners after the reinstatement were serving at different stations under the difference Senior Divisional Security Commissioner, who issued the charge memos on different dates in the Month of April, May and July, 2019 and this charge memos have been assailed in these petitions on the aforesaid grounds.
(vi) The charge memos have been issued almost on identical grounds and facts which have been mentioned hereinabove. The incident where around the charge memos revolved, as the incident of involvement of the petitioners in an offence registered under the Railway Property (Unlawful Possession) Act, 1966.
(viii) The Rule 153 of the Railway Protection Force Rules, 1987 permits the concerned authority to initiate disciplinary proceedings for imposing major punishment. The charge memos have been issued under Rule 153 of the Railway Protection Force Rules, 1987 and therefore, it can well be said that the major penalty is under contemplation on Page 33 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT the charge memos being proved against the petitioners.
(ix) The part of Rule 146 invoked by the authority issuing the charge memos deserves to be set out as under:
"Rule 146. Code of behaviour for members of the Force:
146.1 All members of the Force, irrespective of their ranks, shall submit themselves to the requirement of the following code of behaviour, both on and off duty. It shall be incumbent upon all members of the Force to respect the code of behaviour and of an attitude of complete discipline and maintain to it. Any breach of these provisions on the part of any member of the Force shall constitute misconduct and shall be punishable under the Railway Servants (Discipline and Appeal) Rules, 1968 as applied to superior officers or, as the case may be, under section 9 or section
17. 146.2 Neglect of duty:-
No member of the Force without good and sufficient cause shall-
(i) neglect or omit to attend to or fail to carry out with due promptitude and diligence anything which is his duty as a member of the Force to attend to or carry out; or Page 34 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT
(ii) fail to work his beat in accordance with orders or leave the place of duty to which he has been ordered or having left his place of duty for a bona fide purpose fail to return thereto without undue delay; or
(iii) be absent without leave or be late for any duty; or
(iv) fail properly to account for, or to make a prompt and true return of any money or property received by him in the course of his duty.
146.3 xxx 146.4 Discreditable conduct:
No member of the Force shall act in any manner prejudical to discipline or conduct himself in such a manner which is reasonably likely to bring discredit to the reputation of the Force."
Rule 3 of the Railway Services (Conduct) Rules, 1966:
Rule 3. General (1) Every railway servant shall at all times-
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Page 35 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT railway or Government servant."
(x) This Court was moved under Article 226 of the Constitution of India with the petitions, wherein on 25.06.2019, the Court while issuing notice permitted the petitioners to seek adjournment in the inquiry.
12. This Court is called upon to decide the challenge to the charge memos against factual backdrop mentioned hereinabove. Ordinarily, the Court would be reluctant to embarking upon examining the challenge to the charge-sheets and the charge memos pending disciplinary proceedings, as it would be amounting to preempting the inquiry proceedings at early stage where the delinquent have full-fledged opportunity for proving his innocence. However, in a given case, when the charge-sheets and charge memos are challenged on the ground of lack of jurisdiction, competence or charge being perverse so as to be clearly in violation of the Conduct Rules, then the Court would be under obligation to examine the challenge to the charge memos under Article 226 of the Constitution of India, as, such a charge memo if permitted to brought to its logical conclusion would amount to permitting an arbitrary and unlawful exercise violating Article 14 of the Constitution of India itself.
13. The charge memos and challenge to them by the petitioners, therefore, will have to be examined in light of the aforesaid proposition of law. The factual aspects mentioned hereinabove, which has remained in disputed all along, would clearly go to show that the petitioners cannot deny that they were named as accused in the complaint filed by the Page 36 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT department. It is also the fact that the petitioners were infact arrested on account of the complaint and were subsequently released on bail by the competent Court. The arrest of the petitioners resulted into their suspensions and their release on bail prompted the respondents for revoking the suspensions and reinstating the petitioners. A question arises as to whether the charge memos, as placed on record, would constituted offence or misconduct as mentioned in the Rules so as to justify the proceedings against the petitioners under Rule 153 of the Rules.
14. The Rule 146 prescribes the code of behaviour for the members of the Force and Rule 146.1 prescribes that the members of the Force have to respect the code of behaviour and show complete discipline and maintain the same, breach thereof is said to have been sufficient to constitute the conduct warranting appropriate punishment under the Railway Servants (Discipline and Conduct) Rules 1968, as applied to the Railway Protection Force under Section 9 or section 17. The Rule 146.2 indicates that the member of the Force shall not be negligent and four incidences have been mentioned thereunder. Rule 146.4 prescribes discreditable conduct indicating that no member of the Force shall act in any manner prejudicial to discipline or conduct himself in such a manner which is reasonably likely to bring discredit reputation of the Force. The charge memos revolves around this misconduct on the basis of the fact that the petitioners are said to have been involved in a criminal case, trial whereof is going on. The plain and simple reading of Rule 146 would require the existence of misconduct alleged thereunder and not merely an allegation of misconduct. In the instance case, Page 37 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT the allegation of petitioners' involvement in a criminal offence is infact awaiting its adjudication before the competent forum and that forum alone is entitled to pronounce upon the offence or otherwise of the petitioners. The charge memos, as it is reiterated at the cost of repetition, revolves around the involvement of the petitioners in a criminal offence of which the trial is yet to be completed and therefore as on date it can be said that the petitioners are merely an accused in the criminal case under the Railway Property (Unlawful Possession) Act, 1966. This involvement itself is attempted to be viewed as sufficient misconduct so as to invoke Rule 153 for initiating disciplinary proceedings for imposing major penalty. In a given case, a criminal matter and a disciplinary proceeding can be permitted to go on simultaneously provided there is no overlapping or inter-splicing of the charge in disciplinary proceedings with that of criminal mater and the conduct, which is subjected to disciplinary proceedings, is also constituting a misconduct in its own stead as defined under the Rules. Moreover, the reliance placed on the Circular of Ministry of Railway, Railway Board, dated 31.10.2018, would also clearly indicate that in case, if the delinquent is likely to be compelled to disclose his defense which is to take up in the criminal proceeding, then the disciplinary proceedings may not be permissible. In the instant case, therefore, the charge memos when is solely based upon merely involvement and nothing further, then in our view Rule 146(i) could not have been attracted at all, else it would amount to say that mere allegation of an offence, even if it is under Railway Property (Unlawful Possession) Act, 1966, would be a sufficient misconduct for which the major punishment can be imposed, but mere allegation, when it is Page 38 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT yet to be proved, cannot take place on characteristic of prove misconduct so as to subject the employee to the disciplinary proceedings in which there is nothing to be proved, as the filing of case is also proved and is established. Therefore, in such a situation, merely filing of criminal case alone may not be said to be sufficient for invoking Rule 146.1, else it would, as it is stated hereinabove, amount to permitting the department to proceed and impose punishment on the delinquent without there being any proved case against him by the competent Court. It would have been a different scenario, in case, if the charge was in respect of the conduct which was capable of being alleged and established against the delinquent, then the same could have been permitted to be proceeded with.
15. The Court is of the view that had the charge memos containing material which could have been viewed as constituting misconduct as prescribed under Rule 146.1, then also perhaps the charge memos could have been held to be sustainable, but in the instant case, mere involvement of the delinquent in a criminal case is said to be a misconduct for visiting him with the charge-sheet and contemplating imposition of major penalty, which in our view, would leave no room for the employee to put up his defense, as no one can dispute the fact that there was an involvement and arrest of the employee for which the criminal case is pending.
16. This brings the Court to consider the invocation of Rule 146.2 and 146.4. The charge of misconduct under these two heads, if levelled on the basis of prevalent facts, then perhaps irrespective of pendency of criminal case, the same Page 39 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT could have been above the challenge of sustainability, but unfortunately in the instant case, the imputation of charge and the charge memo do not disclose any other fact than the involvement in a criminal case, which are required to be proved in the criminal Court for invoking charge of neglect of duty or discreditable conduct, else it would amount to penalizing the delinquents before they are declared to be involved by the competent Court on their conviction. In other words, when there is no other material pressed into service to prove the negligence of duty and discreditable conduct except their involvement in the criminal case. The two charges under those two heads also cannot stand the scrutiny under Article 14 and therefore, the same also would not be sustainable. The Court hasten to add here that if the neglect of duty and discreditable conduct the charges were based upon the material or narration of the incidences, which would be constituting an offence irrespective of the criminal case and allegations in the criminal case perhaps those charges would not have been frowned upon in any manner and the same would have been sustained.
17. Therefore, our this observation is essentially proceeding on the basis that the charge memos do not disclose any incident or material indicating that the delinquents were negligent in duty or their conduct was discreditable. The charge of neglect of duty was required to be supported with appropriate imputation disclosing the material on which the delinquent could be called upon to indicate as to how and why he should not be held liable to be punished for neglect of duty. Similarly, mere involvement in a criminal case, result whereof is yet to be decided, cannot be Page 40 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT said to be a ground or a material for imputing discreditable conduct upon the employee.
18. Now, this brings the Court to consider the 3rd provision, unbecoming of railway servant, which may not detain this Court elaborately on this aspect, as suffice it to say that mere involvement in a criminal case in itself cannot be viewed as unbecoming of railway servants, else any involvement of the railway servant in a criminal case, would be capable of invoking this provision and therefore this being a too large a proposition cannot be permitted without there being sufficient material on record.
19. The Court is also of the view that learned counsel for the petitioners is not incorrect in contending that the belated issuance of charge-sheet without there being any explanation would also not be sustainable, as mere delay would not defeat the jurisdiction to conduct the inquiry in a given case, but the facts of the case on hand, would clearly indicate that the petitioners were reinstated on 02.03.2012 and without there being any material on record to indicate that the issuance of charge memos was warranted the same could not have been issued. The Court hasten to add here that had there been a development in the criminal case in the form of conviction of the delinquents, perhaps nothing would have prevented the respondents from issuing appropriate charge- sheet or otherwise invoking the appropriate provision for dispensing with the services of the petitioners based thereupon. But in the instant case, the criminal Court i.e. competent Court is in seisin of the charges against the petitioners and therefore the same ought to have been Page 41 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020 C/SCA/10811/2019 JUDGMENT permitted to be brought to its logical conclusion before initiating any precipitative action based upon the very same incident against the petitioners.
20. Therefore, in view thereof, the charge memos in the present form do not seem to be sustainable and hence they are required to be quashed and set aside and accordingly quashed and set aside. However, it is clearly observed that these observations of the Court made hereinabove may not affect the criminal proceedings in any manner, nor would affect the respondents' liberty, if any, under the law to reframe the charges based upon the appropriate material without prejudice to the petitioners' rights to challenge the same. The petitions are, therefore, allowed to the aforesaid extent. Rule made absolute to the above extent.
(S.R.BRAHMBHATT, J.) (A. P. THAKER, J.) Pankaj Page 42 of 42 Downloaded on : Sun Feb 16 08:00:24 IST 2020