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UNION OF INDIA versus KALLOO SINGH

High Court of Judicature at Allahabad

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Union Of India v. Kalloo Singh - SECOND APPEAL No. 310 of 1991 [2007] RD-AH 10223 (25 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Judgment Reserved: on 18.4.2007

Judgment Delivered on 25.5.2007

Second Appeal No. 310 of 1991

Union of India Vs. Kallu Singh

~~~~~

Hon'ble Dilip Gupta, J.

The defendant has filed this Second Appeal for setting aside the judgment and decree passed by the learned XIIIth Additional Judge, Moradabad whereby the Civil Appeal that had been filed for setting aside the judgment and decree passed by the learned Munsif, Amroha dismissing the suit was allowed and the plaintiff was reinstated in service with all the benefits from the date of removal from service.

The Original Suit had been filed for a declaration that the punishment order dated 8.1.1973, by which he had been removed from service, was illegal and inoperative and the plaintiff was entitled to be reinstated with all the benefits. It was alleged in the Plaint that the plaintiff was appointed as a Rakshak in the Railway Protection Force, Northern Railway on 25.8.1965; that a charge-sheet dated 4.1.1972 was issued against the plaintiff that he was grossly negligent in discharging his duty on 11.1.1971 as during this period a theft was committed in the Wagons during his duty hours; that a departmental enquiry was held on the basis of which a detailed enquiry report was submitted and thereafter a show-cause notice dated 27.11.1972 was issued to him proposing to inflict the punishment of removal from service; that thereafter the plaintiff submitted a reply but he was removed from service by the order dated 8.1.1973 issued by the Assistant Security Officer and that the Appeals preferred by the plaintiff against the said order to the Security Officer and then to the Chief Security Officer were rejected. The plaintiff challenged the said order of removal mainly on the ground that it was illegal and against the principles of natural justice and that it was without jurisdiction.

The Union of India contested the Suit and in the written-statement, it was asserted that adequate opportunity had been given to the plaintiff during the enquiry; that rules of natural justice had been duly complied with and that the Disciplinary Authority,  after considering the report and finding of the Enquiry Officer as well as the evidence on record and the reply filed by the plaintiff to the show-cause notice, awarded the punishment of removal.

The Trial Court dismissed the Suit holding that the order dated 8.1.1973 was valid. The Lower Appellate Court framed the following points for determination:-

"(1) Whether the impugned termination order dated 8.1.1973 is without jurisdiction and illegal? If so, its effect?

(2) Whether the Suit of the plaintiff is time barred?"

The Lower Appellate Court,  while deciding the first point came to the conclusion that it was the Chief Security Officer, who was the Appointing Authority of the plaintiff and,  therefore,  he could not have been removed from service by the Assistant Security Officer. It accordingly held that the order dated 8.1.1973 was without jurisdiction. The second question was answered in favour of the plaintiff as the learned counsel for the defendant conceded that the Suit was within time. The Appeal was,  accordingly,  allowed, and the judgment and decree passed by the learned Munsif was set aside and the Original Suit was decreed with costs and the plaintiff was reinstated with all the benefits from the date of removal from service.

At the time of the admission of this Second Appeal, the following substantial questions of law were framed:-

"(i) Whether the Court below could hold removal of the plaintiff-respondent illegally on a ground which was never pleaded in the Plaint?

(ii) Whether the burden lay upon the plaintiff or upon the defendant to establish as to who was the Appointing Authority of the plaintiff-respondent?

(iii) Whether the non-compliance of Sections-6 and 9 of the Railway Protection Force Act will not make the appointment itself invalid dis-entitling the plaintiff  to the benefit of Article 311 of the Constitution?

(iv) Whether the removal of the plaintiff could be held to be invalid on the ground that he was appointed by the Chief Security Officer, when the only ground on which the suit was filed, was that the enquiry was not properly held?

(v) Whether the Court could set aside the order of removal dated 8.1.1973 even after that order was merged in the appellate orders dated 16.3.1973 and 20.8.1973,  when no relief was claimed regarding the appellate orders?

(vi) Whether the Court below has not acted illegally in allowing the appeal without deciding the points taken in the written statement that the suit was barred on account of non service of legal and valid notice under Section 80 C.P.C. Or that the suit was barred by limitation and by the provisions of Section 20(3) of the Railway Protection Force Act.?

I have heard Sri Sushil Kumar Srivastava, learned counsel for the appellant and Sri S.K. Johri, learned counsel for the respondent.

Learned counsel for the appellant submitted that the finding recorded by the Lower Appellate Court that the plaintiff could not have been removed from service by the Assistant Security Officer is illegal and perverse as the plaintiff had not even pleaded that the Chief Security Officer was his Appointing Authority and the burden lay on the plaintiff to establish that he had been removed from service by an officer lower in rank than the officer who had appointed him. He further submitted that the plaintiff had been appointed by the Assistant Security Officer who is also the Appointing Authority under the relevant Rules as has also been held by the Supreme Court in Union of India and others Vs. Rajendra Singh, AIR 1993 SC 205. He further submitted that the orders of the Appellate Court dated 16.3.1973 and 20.8.1973 rejecting the Appeal had not even been challenged in the Suit and,  therefore,  the Court could not have set aside the order of removal as it merged with the Appellate order and that the Suit itself was barred by limitation under the provisions of Section 20(3) of the Railway Protection Force Act, 1957 (hereinafter referred to as the 'Act').

Learned counsel for the respondent,  however, defended the order passed by the Lower Appellate Court and has contended that the Chief Security Officer was the Appointing Authority of the plaintiff and,  therefore, he could not have been removed from service by the Assistant Security Officer and in support of his contention, he has placed reliance upon the decision of this Court in Mazhar Alam Khan Vs. Union of India and others (2003) 1 UPLBEC 340, Union of India and others Vs. Nar Bahadur, 1972 ALJ, 641 and Ram Sukh Misra Vs. Deputy Chief Security Officer, Northern Railway and others, All India Services Law Journal, 501.He further submitted that the doctrine of merger does not apply in departmental proceedings and that the suit was not barred by limitation.

The Lower Appellate Court has allowed the Civil Appeal filed by the plaintiff solely on the ground that the Assistant Security Officer was not the Competent Officer to impose the punishment of removal upon the plaintiff. The provisions of Sections 6,9 and 21 of the Act and Rule 20 of the Railway Protection Force Rules, 1959 (hereinafter referred to as the 'Rules') are the relevant provisions that have to be examined for determining this issue.  Sections 6, 9 and 21 of the Act provide as under:-

"Section 6: Appointment of members of the Force- The appointment of members of the Force shall rest with the Chief Security Officers, who shall exercise that power in accordance with rules made under this Act.

Provided that the power of appointment under this section may also be exercised by such other superior officer as the Chief Security Officer concerned may by order specify in this behalf.

Section 9: Dismissal, removal, etc. of members of the Force- (1) Subject to the provisions of Article 311 of the Constitution and to such rules as the Central Government may make under this Act, any superior officer may-

(i) dismiss, suspend or reduce in rank any member of the Force whom he shall think remiss or negligent in the discharge of his duty, or unfit for the same; or

(ii) ......................................................................

(2).......................................................................

Section 21: Power to make rules- (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for-

(a)...............................................................

(b) regulating the powers and duties of superior officers and members of the Force authorised to exercise any functions by or under this Act;

(c) .............................................................

(d) .............................................................

(e) .............................................................

(3) All rules made under this section shall be laid for not less than thirty days before both Houses of Parliament as soon as possible after they are made and shall be subject to such modifications as Parliament may make during the session in which they are so laid or the sessions immediately following."

Rule 20 of the Rules provides as follows:-

"Rule 20: Powers of appointment- The powers  of superior officers to appoint members of the Force shall be as specified in Schedule I." Schedule I to the Rules provides thus:

SCHEDULE I

(Rule 20)

POWERS OF SUPERIOR OFFICERS TO MAKE APPOINTMENTS TO THE FORCE

Chief Security Officer

Security Officer

Assistant Security Officer

All Members of the Force

Sub-Inspectors, Assistant Sub-Inspectors, Head Rakshaks, Senior Rakshaks,  Rakshaks

Senior Rakshaks, Rakshaks

A perusal of the aforesaid provisions of the Act and the Rules clearly shows that the Act contemplates appointments of members of the Force not only by the Chief Security Officer but also by others and the word "rest" occurring in Section 6 of the Act merely conveys the idea of overall control of appointment resting with the Chief Security Officer subject to the provisions of the Rules. In such circumstances,  the Rules would have to be examined and as seen above, Schedule I to the Rules clearly provides that the appointment of Senior Rakshaks and Rakshaks has to be made by the Assistant Security Officer.

This is what was observed by the Supreme Court in Rajendra Singh (supra) wherein an almost identical issue had come up for consideration. The respondent, who had been appointed as a Rakshak in the Railway Protection Force, had challenged the order of dismissal from service on the ground that the Assistant Security Officer was not the Competent Authority to impose the punishment as the Chief Security Officer was the Appointing Authority under Section 6 of the Act. In this context, after examining the provisions of Sections 6, 9 and 21 of the Act and Rule 20 of the Rules, the Supreme Court observed:-

" So far as Chandra Pal Pandey is concerned, his averment in the suit was that he was appointed by the Assistant Security Officer whereas in respect of Rajendra Singh we have seen the original records  which show that he too was appointed by the Assistant Security Officer. Thus the orders of appointment of both the respondents were made by the Assistant Security Officer and so were the orders of removal. If the initial order of appointment itself could not be made by the Assistant Security Officer, the whole appointment would become bad from the very beginning. However,  the High Court has taken the view that in view of Section 6 of the Act only the Chief Security Officer has the power of appointment and no one else.

A bare reading of the Act, particularly Section 6, will show that the Act contemplates that the "Appointment of members of the Force shall rest with the Chief Security Officer" who is supposed to exercise powers in accordance with the Rules made under the Act. The proviso to Section 6 (sic) contemplates other authorities being authorised for making the appointment as may be delegated to such officers by the Chief Security Officer. Therefore, there can be no doubt that the Act contemplates appointment of members of the Force not only by the Chief Security Officer but also by others. The question,  therefore,  arises is,  what is the meaning of the expression "appointment of members of the Force shall rest with the Chief Security Officer"? The expression "rest" in this Section conveys the idea of overall control of appointment resting with the Chief Security Officer subject to the provisions of the Rules. As we have stated earlier section 6 of the Act contemplates appointment of the members of the Force by such authorities as may be authorised. The proviso to Section 6 contemplates specifically written order of delegation by the Chief Security Officer but this does not derogate from the power of the rule making authority to confer the said power. The Section and the proviso in our opinion do not rest the power of appointment merely with the Chief Security Officer. What is contemplated is that the Chief Security Officer will have overall control in the matter of appointment and that control be exercised in accordance with the Rules. If the Rules provide for appointment by other superior officers, it cannot be said to be in derogation of the Act or the purposes of the Act.

A bare reading of Section 9 of the Act also shows that it is only subject to the provisions of Article 311 of the Constitution and to such rules as the Central Government may make under the Act, that any superior officer could exercise the powers mentioned in Section 9(1) (i) of the Act. If only the Chief Security Officer, who is one of the superior officers, alone have the powers of dismissal on the hypothesis that he alone was competent to appoint members of the Force then Section 9 of the Act would not have been worded in the manner it has been so enacted.

It is clear from Section 21 of the Act that the power of the Central Government for making the Rules is for carrying out the purposes of the Act. One of the purposes of the Act surely is recruitment of members of the Force and, therefore,the Rules could provide for the appointing authority so long as it is not in derogation of the express provisions of the Act. Section 6 does not contemplate that the order of appointment cannot be made by any other person other than the Chief Security Officer.

Apart from Section 21(1) of the Act,  sub-clause (b) of Section 21(2) of the Act also authorises the Central Government to make Rules in this behalf.

We thus hold that Rule 20 is not ultra vires Section 6 of the Act.

In this view of the matter we are of the view that since both the contesting respondents in the aforesaid two cases were appointed by the Assistant Security Officer who could also remove them and,  therefore,  their dismissals have not been in violation of Article 311 of the Constitution of India or the Act." (emphasis supplied)

In view of the aforesaid decision of the Supreme Court in Rajendra Singh (supra), the contention of the learned counsel for the appellant deserves to be accepted.

Learned counsel for the respondent, however, contended that in view of the provisions of Section 6 of the Act, it must be taken that the Chief Security Officer was the Appointing Authority unless in terms of the proviso to Section 6 of the Act an order was passed by the Chief Security Officer specifying any other superior officer as the officer vested with the power of appointment. His contention is that it was for the defendant to have brought on record such order passed by the Chief Security Officer specifying the officer who could also exercise the power of appointment but in the absence of any such order having been brought on record by the defendant, it must be taken that it was the Chief Security Officer who was the Appointing Authority.  This contention of the learned counsel for the respondent cannot be accepted. The Supreme Court in Rajendra Singh (supra) examined this position and observed that proviso to Section 6 of the Act does contemplate of a written order of delegation by the Chief Security Officer but this does not derogate the power of the rule making authority to confer the said power on any other superior officer and if the Rules provide for appointment by other superior officers, it cannot be said to be in derogation of the Act or for the purposes of the Act. Rule 20 of the Rules provides that the powers of Superior Officers to appoint members of the Force shall be as specified in Schedule I and the said Schedule stipulates that the appointing authority of the Rakshak is Assistant Security Officer. The contention of the learned counsel for the respondent that in the absence of any order in writing by the Chief Security Officer having been brought on record by the defendant it must be presumed that the Chief Security Officer was the appointing authority cannot, therefore, be accepted.

Learned counsel for the respondent then contended that the decision of the Supreme Court in Rajendra Singh (supra) was not applicable in the present case as before the Supreme Court it was an admitted case that the Rakshaks had been appointed by the Assistant Security Officer and the only contention was with regard to the Rule 20 being ultra vires Section 6 of the Act, but in the present case the defendant has not brought on record the appointment order which could indicate that the plaintiff had been appointed by the Assistant Security Officer.

The submission of the learned counsel for the respondent cannot be accepted. In the first instance, as pointed out above, it was for the plaintiff to have pleaded and proved that his services had been terminated by an authority lower in rank than the Appointing Authority and for that purpose it was incumbent upon him to have pleaded and proved that he had been appointed by the Chief Security Officer but the order of removal from service had been passed by the Assistant Security Officer who was lower in rank than the Appointing Authority. The plaintiff did not even plead that he had been appointed by the Chief Security Officer.

Paragraph 1 of the Plaint,  which talks about the appointment of the plaintiff is as follows:-

" (1) That the plaintiff was appointed as Rakshak in Railway Protection Force, Northern Railway, on 25.8.1965. Later on he was transferred to Bareilly Junction Station within the defendant's control."

It was only by an amendment in the Plaint that it was added that the impugned order was without jurisdiction. However, it was only a bald statement without specifying why it was without jurisdiction. It, therefore,  remains that there was no specific pleading in the Plaint that the plaintiff had been appointed by the Chief Security Officer but his services had been terminated by the Assistant Security Officer who was lower in rank than the Appointing Authority. The submission of the learned counsel for the respondent that it must be presumed that he had been appointed by the Chief Security Officer in view of the provisions of Section 6 of the Act has been rejected earlier.

Learned counsel for the respondent also submitted that the order dated 22/23-10.1964 issued by the Assistant Security Officer,  cannot be treated as the appointment letter as it merely requires the plaintiff to appear before the Assistant Security Officer for appointment as Rakshak and onward despatch for Training Centre, Lucknow failing which the offer would be cancelled. In support of this contention he has placed reliance upon the judgment of the Delhi High Court in Ramphal Solanki Vs. Water & Power Commission etc.,  1978 All India Services Law Journal, 559. Elaborating his submission, learned counsel for the respondent submitted that there was nothing on the record to indicate that the plaintiff had been appointed by the Assistant Security Officer and, therefore, in terms of Section 6 of the Act it has to be taken that the plaintiff had been appointed by the Chief Security Officer.

The order dated 22/23-10-1964 which had been issued by the Assistant Security Officer and relates to temporary appointment clearly mentions that since the plaintiff had been declared medically fit in Class B-1, he was required to appear before the Assistant Security Officer for appointment as Rakshak in the scale of Rs. 70-1-80 and for onward despatch to Railway Protection Force Training Centre, Lucknow. It was also stated that his appointment was subject to his character and antecedents being verified by the District Magistrate and passing the initial training course successfully. This order was filed by the defendant before the Trial Court but the contention of the learned counsel for the respondent is that this is not an appointment letter and,  therefore, it cannot be taken that the plaintiff had been appointed by the Assistant Security Officer. As pointed out earlier, it was for the plaintiff to have pleaded and proved that he was appointed not by the Assistant Security Officer but by some superior officer but he did not do so. In any case, the order dated 22/23-10-1964 does indicate that the plaintiff was required to appear before the Assistant Security Officer for appointment and onwards despatch for training. This clearly shows that it was the Assistant Security Officer who was the Appointing Authority and, indeed, Rule 20 of the Rules also clearly provides that it is the Assistant Security Officer who is the Appointing Authority of the Rakshaks.

It also needs to be mentioned that in the reply to the show cause notice served upon the plaintiff by the Assistant Security Officer, it was not stated by the plaintiff that the Assistant Security Officer was not the Competent Authority to impose the punishment. This plea was also not taken by the plaintiff in the Appeal filed by him either before the Security Officer or before the Chief Security Officer. This pleas was raised before the Lower Appellate Court for the first time,  as even before the Trial Court, no issue to this effect was framed. Thus the decision of the Delhi High Court in Ramphal Solanki (supra) does not help the respondent.

The decision of this Court in the case of Ram Sukh Misra (supra) does not help the respondent as the Court did not take into consideration Rule 20 of the Rules which clearly indicates that the Assistant Security Officer is the Competent Officer to appoint the Rakshaks in the Railway Protection Force. It has been observed in the aforesaid decision that as no document had been produced before the Court to show that on the date the petitioner had been appointed the Chief Security Officer had empowered any superior officer to exercise the power of appointment the Appointing Authority of the petitioner was the Chief Security Officer. This decision is contrary to the decision of the Supreme Court in Rajendra Singh (supra). Likewise, the decision in the case of Nar Bahadur (supra) does not help the respondent as even though Rule 20 of the Rules was considered by the Court but it observed that it is inconsistent with Section 6 of the Act as it provides that the Assistant Security Officer is the Appointing Authority of the Rakshak. This decision again is contrary to the decision of the Supreme Court in Rajendra Singh (supra). For the same reason,  the decision in the case of Mazhar Alam Khan (supra) does not help the case of the respondent.

On the other hand, a learned Judge of this Court in Second Appeal No. 519 of 1986 (Union of India Vs. Tejapl Singh) decided on 3.2.2004 after placing reliance upon the decision of the Supreme Court in Rajendra Singh (supra) clearly observed:-

"In view of the aforesaid decision, the removal of the plaintiff cannot be said to be bad in the eye of law. It is true that the Railway Protection Force Act and Rules had come into existence in the year 1959 but the same are to be held applicable to the present case of the plaintiff since he was removed in the year 1977. The plaintiff was required to file appointment letter but the same was not filed. He could not take the benefit out of his own lapses nor it could be inferred from this circumstance that the plaintiff should be deemed to have been appointed by the General Manager. The observation made by the first appellate court in this respect is not acceptable. Moreover, initial appointment does not make any difference in the case in hand in view of Railway Protection Force Act, 1957 and the Railway Protection Force Rules, 1959. The plaintiff, who was removed from service in the year 1977,  is fully governed by the aforesaid Act and Rules and that being so he cannot be held to have been removed by a incompetent authority. The Rakshaks are appointed by Assistant Security Officer and hence they are removable by the same officer as provided under Rule 20 and this provision is not ultra vires to  Section 6 of the Act".

Learned counsel for the respondent also urged that the Lower Appellate Court has recorded a categorical finding of fact that the plaintiff had been removed from service by an officer below the rank of an officer who had appointed him, and,  therefore,  this Court should not interfere with the findings of fact and in support of his contention he has placed reliance upon the decision of the Supreme Court in Gurdev Kaur and others Vs. Kaki and others AIR 2006 SC 1975. This decision does not help the respondent inasmuch as in the present case the Lower Appellate Court has recorded the finding without any evidence merely on the basis of presumption that in the absence of any specific

order in writing by the Chief Security Officer delegating his authority of appointment to any other superior officer, it must be taken that the plaintiff had been appointed by the Chief Security Officer. This presumption is contrary to the decision of the Supreme Court in the case of Rajendra Singh (supra) and contrary to the provisions of Rule 20 of the Rules. It cannot, therefore,  be contended that this Court should not set aside this finding in the Second Appeal.

In view of the aforesaid finding that the Assistant Security Officer was competent to inflict the punishment order upon the plaintiff-respondent, it is not necessary to examine the other contentions raised on behalf of the appellant that the Lower Appellate Court could not have set aside the punishment order dated 8.1.1973 as it merged with the appellate orders which had not been challenged or that the Suit was barred by limitation.

Learned counsel for the respondent also submitted that the order dated 8.1.1973, by which he had been removed from service, deserves to be set aside as it had been passed in the breach of provisions of Rule 44 of the Rules. He submitted that issue No. 1 had been framed by the Trial Court which had been decided against the plaintiff. The Lower Appellate Court did not consider it necessary to examine it as the appeal was allowed on the ground that the Assistant Security Officer was not the Competent Officer to pass the order of removal from service. He, therefore, submitted that in view of the provisions of Section 103 of the Code of Civil Procedure this Court may determine this issue as there was sufficient evidence on the record. Learned counsel appearing for the appellant has also made his submission on this issue.

It has, therefore, become necessary to determine this issue in this Second Appeal particularly in view of the fact that the order of removal from service was passed about more than 34 years back.

Rule 44 of the Rules on which reliance has been placed by the learned counsel for the parties is as follows:-

"Procedure for imposing major penalties.-(1) Without prejudice to the provisions of the Public Servants (Inquiry) Act, 1850, no order imposing on a member of the Force any of the penalties specified in clauses (a) to (d) of Rule 41 shall be passed except after an enquiry held as far as may be in the manner hereinafter provided.

(2) The disciplinary authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to the member of the Force and he shall be required to submit, within such time as may be specified by the disciplinary authority, a written statement of his defence and also to state whether he desires to be heard in person.

Explanation.- In this sub-rule and in sub-rule (3), the expression "the disciplinary authority" shall include the authority competent under these rules to impose upon the member of the Force any of the penalties specified in clauses (e) to (h) of Rule 41.

(3) The member of the Force shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the disciplinary authority, such records are not relevant for the purpose or it is against the public interest to allow him access thereto.

(4) On receipt of the written statement of defence, or if no such statement is received within the time specified, the disciplinary authority may itself inquire into such of the charges as are not admitted or, if it considers it necessary so to do, appoint a superior officer or an officer not lower in rank than an Inspector or a Board of Inquiry as the inquiring authority to conduct the inquiry.

(5) The member so charged may be permitted by the inquiring authority to present his case with the assistance of any other member of the Force of the Zonal Railways serving in the same division in which the member so charged is working:

Provided that the member of the Force whose assistance is sought under this sub-rule has not been at that time, assisting more than one member of the Force.

(6) The inquiring authority shall, in the course of the inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The member of the Force shall be entitled to cross-examine witnesses examined in support of the charges, to give evidence in person and to produce defence witnesses. If the inquiring authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record its reasons in writing.

(7) At the conclusion of the inquiry, the inquiring authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefor. If, in the opinion of such authority, the proceedings of the inquiry establish charges different from those originally famed, it may record its findings on such charges, provided that findings on such charges shall not be recorded unless the member so charged has admitted the facts constituting them or has had an opportunity of defending himself against them.

(8) The record of the inquiry shall include-

(i) the charges framed against the member of the Force and the statement of allegations furnished to him under sub- rule(2);

(ii) his written statement of defence, if any;

(iii) the oral evidence taken in the course of the inquiry;

(iv) the documentary evidence considered in the course of the inquiry;

(v) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry; and  

(vi) a report setting out the findings on each charge and the reasons therefor.

(9) The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge.

(10) (1) If the Disciplinary Authority, having regard to its findings on the charges, is of the opinion that any of the penalties specified in clauses (e) to (h) of Rule 41 should be imposed, it shall pass appropriate orders in the case.

     (2) If it is of opinion that any of the penalties specified in clauses (a) to (d) of Rule 41 should be imposed, it shall-

(a) furnish the member so charged with a copy of the report of the Inquiring Authority and, where the Disciplinary Authority, is not the Inquiring Authority, a statement of its finding together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority.

(b) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit with a specified time such representation as he may wish to make against the proposed action; and

(c) consider the representation, if any, made by the member so charged in response to the notice under clause (b) and determine what penalty, if any, should be imposed on the member so charged, and pass appropriate orders on the case.

(11) Orders passed by the Disciplinary Authority shall be communicated to the members of the Force who shall also be supplied with a copy of the report of the Inquiring Authority, and, where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, along with the findings of the Inquiring Authority, unless they have already been supplied to him."

The evidence on record indicates that the charge-sheet dated 4.1.1972 was served upon the plaintiff under Rule 44 of the Rules. The plaintiff was informed that it was proposed to hold an inquiry against him and the allegations on which the inquiry was proposed to be held were set out in the statement enclosed with the charge-sheet and the charges that had been framed on the basis of the said allegations were also enclosed. The statement of allegations are as follows:-

Statement of allegations.

1. You RK/Kalloo Singh No. 618 was deputed to guard standing wagon No. VPU 2056 Ex. SBS to SPNO at Dock siding/Bareilly yard on 11.1.71 from 4 p.m. To 12 p.m.

2. During your duty hours theft took place in the above noted wagon and the culprits took away three bales of Woolen cloth from it.

3. Had you been alert in your above noted duty and discharged the same with sense of responsibility. There was no reason why this theft from a standing wagon in the yard would not have been avoided.

Charge Sheet

U/S 9(i) (1) of the RPF Act. 1957 read with rules 44 of the RPF Rules 1959 against RK/Kalloo Singh No. 618 RPF post/Bareilly.

You RK/Kalloo Singh No. 618 was deputed on duty to guard standing wagon No. VPU 2056 Ex. SBL to SPNO at Dock Siding/Bareilly yard on 11.1.71 from 4 p.m. To 12 p.m. You were so grossly negligent in discharging your duty during this period that some culprits committed theft in this wagon during your duty hours and took away three bales of Woolen cloth from the said wagon, hence I charge sheet you U/R 44 of the RPF Rules 1959."

The plaintiff submitted his defence to the charge-sheet. He did not nominate any representative to assist him as is clear from the letter dated 31.6.1972 and agreed to plead his case. Five witnesses were examined on behalf of the employer and the plaintiff was given full opportunity to cross-examine these witnesses. Copies of statement of these witnesses and the documents were also supplied to the plaintiff. The Inquiry Officer examined the materials on record and found that the plaintiff was responsible for the charges levelled against him and the charges were fully established beyond any shadow of doubt. The Disciplinary Authority agreed with the inquiry report and ordered that a show-cause notice be issued to the plaintiff to show-cause why he should not be removed from service. Accordingly, under Rule 44 (10) (2) of the Rules a show-cause notice was issued to the plaintiff enclosing a copy of the inquiry report and the plaintiff was asked to submit his representation within a period of fourteen days as to why the proposed action of removal from service may not be taken against him. The plaintiff submitted a reply to the show-cause notice and thereafter the Disciplinary Authority passed the order dated 8.1.1973 mentioning therein that as no new facts had been stated by the plaintiff in reply to the show-cause notice the plaintiff should be removed from service with immediate effect. Feeling aggrieved by this order, the plaintiff filed an appeal to the Security Officer which was rejected on 21.3.1973. He filed a further appeal before the Chief Security Officer which was also rejected by the order dated 27.8.1973.

The contention of Sri S.K. Johri learned counsel for the respondent is that the principles of natural justice had not been duly complied with while holding the disciplinary inquiry against the plaintiff; that Rule 44 (9) had not been complied with as the Disciplinary Authority has not recorded findings on each charge after considering the record of the inquiry and that there was no evidence on the basis of which it could be held that the plaintiff was guilty of the charges levelled against him.

Learned counsel for the appellant, however, submitted that Rule 44 of the Rules had been duly complied with; that there was no violation of principles of natural justice and it was not permissible for the Courts to re-appreciate the evidence and that the scope of inquiry in disciplinary proceedings is different from that of criminal trial in which the charges are required to be proved beyond doubt.  

Rule 44(2) provides that the Disciplinary Authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held and such charges together with the statement and the allegations on which they are based, shall be communicated in writing to the member of the Force and he shall be required to submit a written statement of his defence. This has been duly complied inasmuch as the charge-sheet dated 4.1.1972 was duly served upon the plaintiff enclosing therein the definite charges and the statement of the allegations on which they were based. The plaintiff was given adequate opportunity by the inquiring authority to present his case. He was also given adequate opportunity to cross-examine the witnesses examined on behalf of the employer. The inquiring authority submit a detailed report under Rule 44 (7) of the Rules. The main submission of the learned counsel for the respondent is that the Disciplinary Authority after considering the record of the inquiry did not record the finding on each charges. A perusal of the order dated 27.1.1973 passed by the Disciplinary Authority shows that the Disciplinary Authority, after going through the inquiry report in which the charges framed against the plaintiff had been fully proved, agreed with the inquiry report.  

The Supreme Court in State Bank of Patiala & Ors. Vs. S.K. Sharma JT 1996 (3) SC 722 examined the scope of principles of natural justice in the context of disciplinary proceedings and observed as follows:-

"We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and others of punishment imposed by an employer upon the employee):

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

(2) A substantive provision has normally to be complied with as explained herein before and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under ''no notice', ''no opportunity' and ''no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(4) (a) In the case of a procedural provision which is not of a mandatory character,  the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could not be waived by him, then the Court or the Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.

(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice-or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/ "no hearing" and "no fair hearing" (a) in the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query.(It is made clear that this principle (No. 5) does not apply in the case of rule against bias,  the test in which behalf are laid down elsewhere.)

(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision." (emphasis supplied)

The decisions of the Supreme Court also clearly hold that the principles of natural justice have to be applied taking into consideration the relevant facts and circumstances of the case as they cannot be cast in a rigid mould and nor they can be put in a legal straight jacket. The application of the principles of natural justice must always be in conformity with the scheme of the Act/Rules and there must be some flexibility. In the case of State Bank of Patiala (supra) it has been emphasized that some real prejudice to the complainant must be caused and there is no such thing as mere technical infringement of natural justice. However, substantive provisions of the Rules/Regulations have to be normally complied with and the theory of the substantial compliance or test of prejudice would not be applicable in such a case but in the case of violation of a procedural provision, it cannot be said that they would automatically vitiate the enquiry. Where the procedural provision is not of a mandatory character, the complaint of violation has to be examined from the stand point of substantial compliance and the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. However, in case of violation of a procedural provision which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. In the former case, it has to be seen whether the delinquent officer has waived the requirement, because in such a case the order of punishment cannot be set aside on the ground of such violation. It has also been emphasized that while applying the principles of natural justice, the Courts must keep in mind that the ultimate and overriding objective of the rule is to ensure a fair hearing and to see that there is no failure of justice.

It is in the light of the aforesaid principles that the complaint made by the plaintiff regarding non examination of any witness has to be examined.  

A perusal of Rule 44(9) of the Rules does not indicate that it is mandatory on the part of the Disciplinary Authority to record its findings on each charge. The order passed by the Inquiry Officer is a detailed order and takes into consideration the charges framed against the member of the Force, his written statement of defence, the oral evidence taken in the course of inquiry, the documentary evidence considered in the course of inquiry and thereafter the reasons and the findings on the charges. The Disciplinary Authority instead of passing a detailed order merely mentioned that it had gone through the inquiry report in which the charges framed against the plaintiff were fully proved and that it agreed with the inquiry report.

In my opinion, this is a procedural provision and its violation will not automatically vitiate the inquiry. It has to be examined from the stand point of substantial compliance and the order passed in violation of such provisions can be set aside only where such violation has caused prejudice to the delinquent employee. There has been a substantial compliance of Rule 44(9) of the Rules and the plaintiff did not also point out what prejudice, if any, had been caused to him on this account and, therefore, the Court would not be justified in setting aside the order merely on this ground. It needs to be mentioned that the plaintiff had not made any averment in the plaint that prejudice had been caused to him as the Disciplinary Authority did not record its findings on each charge under Rule 44 (9) of the Rules and nor did he make such a statement in the witness box. Even in the reply to the show-cause notice dated 27.11.1972 or in the two appeals filed by him before the Security Officer and the Chief Security Officer he did not complain of any prejudice that may have been caused to him on this account. It is, therefore, not possible to accept this contention of the learned counsel for the respondent.

The next contention of the learned counsel for the respondent is that the plaintiff was not at all guilty of the charges levelled against him and his defence has not been considered by the Inquiry Officer or the Disciplinary Authority. Learned counsel for the appellant, however, submitted that the Inquiry Officer has, on a careful perusal of the evidence on record clearly recorded a categorical finding that the charges stood fully proved and in such circumstances this Court should not upset the findings recorded by the Inquiry Officer.

Learned counsel for the plaintiff, in effect, wanted the Court to re-appraise the evidence and record a different finding. It must not be forgotten that the Supreme Court in the case of High Court of Judicature at Bombay through its Registrar Vs. Shri Udaysingh s/o Ganpatrao Naik Nimbalkar & Ors. JT 1997 (5) SC 298 held that disciplinary proceedings are not a criminal trial and, therefore, the scope of enquiry is entirely different from that of a criminal trial in which the charge is required to be proved beyond doubt. In the case of disciplinary enquiry, the technical rules of evidence have no application and preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion. The same view was reiterated by the Supreme Court in the case of Depot Manager, A.P. State Road Transport Corporation and Mohd. Yousuf Miya 1997 (77) F.L.R. and in the case of Lalit Popli Vs. Canera Bank & Ors. (2003) 3 SCC 583. It was held that strict standard of proof or applicability of the Evidence Act stands excluded and the standard of proof in the departmental proceedings is not the same as of the criminal trial. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him.

Regarding re-appreciation of evidence by the High Court, the Supreme Court in the case of High Court of Judicature at Bombay through its Registrar Vs. Shri Udaysingh s/o Ganpatrao Naik Nimbalkar & Ors., JT 1997 (5) SC 298 clearly held as follows:-

"..... In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is the consistent view of this Court vide B.C. Chaturvedi vs. Union of India (1995) 6 SCC 749, State of Tamil Nadu vs. T.V. Venugopalan JT 1994 (5) SC 337=(1994) 6 SCC 302 (SCC para 7), Union of India vs. Upendra Singh JT 1994 (1) SC 658 = (1994) 3 SCC 357 (SCC para 6), Government of Tamil Nadu vs. A. Rajapandian JT 1994 (7) SC 492 = (1995) 1 SCC 216 (SCC para 4) and B.C. Chaturvedi vs. Union of India (at pp. 759-60)".

In R.S. Saini Vs. State of Punjab (1999) 8 SCC 90, the Supreme Court observed as follows:-

"Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.

A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority."

The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court. In the present case the conclusion arrived at by the enquiring authority cannot be termed as either being perverse or not based on any material and nor is it a case where there has been any non-application of mind by the Enquiry Officer. He has carefully examined the documents and the oral evidence and has also considered the defence set up by the plaintiff. Such being the position, in view of the principles enunciated by the Supreme Court in the aforesaid decisions, it is not possible to accept the submissions of the learned counsel for the respondent that this Court should re-appraise the evidence and record a different finding.  

Thus, for all the reasons stated above, the Second Appeal deserves to be allowed and is allowed. The judgment and decree passed by the XIIIth Additional District Judge dated 1.5.1989 is set aside and the Original Suit filed by the plaintiff is dismissed. The parties shall bear their own costs.

Dt/-25.5.2007

Sharma/NSC


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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