HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 15.4.2015 Judgment delivered on 15.5.2015 Case :- WRIT - A No. - 19901 of 2002 Petitioner :- Doma Respondent :- Chief Security Commissioner R.P.F. & Ors. Counsel for Petitioner :- A.C. Tiwari,A.B. Sinha,Manoj Kumar Pandey Counsel for Respondent :- Govind Saran,S.C.,Tarun Verma Connected with Case :- WRIT - A No. - 59602 of 2007 Petitioner :- Doma Constable/Kahar Respondent :- Union Of India Thru' Its Secretary And Others Counsel for Petitioner :- A.C. Tiwari,Manoj Kumar Pandey Counsel for Respondent :- Govind Saran,S.C. Hon'ble Mahesh Chandra Tripathi,J.
1. Heard Shri A.C. Tiwari, learned counsel for the petitioner and Shri Tarun Verma, learned counsel for the respondents.
2. In Writ A No.19901 of 2002, the petitioner has prayed for quashing the impugned order dated 06.7.2000 passed by the Security Commissioner, Railway Protection Force, Head Quarter, Gorakhpur-respondent no.2, and has further prayed for direction to the respondents to affirm the order dated 23.3.1999 passed by the Disciplinary Authority and to drop subsequent departmental proceeding initiated in pursuant to impugned order dated 6.7.2000 ignoring the earlier order dated 23.3.1999 passed by the Disciplinary Authority and not to initiate any subsequent departmental proceeding against him in pursuant to impugned reviewing order dated 6.7.2000 passed by the respondents.
3. In connected Writ A No.59602 of 2007 the petitioner has prayed for quashing the impugned order dated 31.10.2007 passed by the Deputy Chief Security Commissioner, Railway Protection Force, North Eastern Railway, Gorakhpur-respondent No.3 (Annexure No.7 to the writ petition) and has further prayed for directions to the respondents not to give effect the order dated 31.10.2007 passed by respondent no.3 and continue to take work from him and pay monthly salary and and when it falls due.
4. Brief facts, giving rise to the writ petitions are that the petitioner was initially issued appointment letter dated 9.5.1991 on the post of Constable (Kahar) in Railway Protection Force, Gorakhpur by the Chief Security Commissioner, Railway Protection Force, North Eastern Railway, Gorakhpur. He joined his duties and completed seven months' training. After completion of the training, he was permitted to resume his duties along with other several other selected candidates on 14.5.1992. He was continuously working since the date of joining in June, 1991. For about seven years, there were no complaint either from public or from his superior officers. The petitioner is an employee of Railway Protection Force posted in Training Centre, Gorakhpur and as such, Railway Protection Force Rules, 1987 are applicable governing the services of the petitioner.
5. On 27.5.1997 a disciplinary proceeding was initiated against the petitioner on the ground that he submitted a false/forged school leaving certificate issued from the Principal, Janta Inter College, Marapah, Gorakhpur and along with the order dated 27.5.1997 the charge sheet was also served on him. Shri Sangam Lal Mishra, Head Manager of Railway Protection Force, Training Centre, Gorakhpur was appointed as enquiry officer. The enquiry officer recorded the statements of Shri Awadhesh Narain Sahi, Principal of Janta Inter College, Marapar, District Gorakhpur and the petitioner on 18.9.1997. He had also recorded the statement of Shri Om Prakash, Inspector, Railway Protection Force, Vigilance and Shri Ram Lagan, Khalasi in the office of Chief Vigilance Officer, North Eastern Railway, Gorakhpur on 29.9.1997 and after completing all the formalities and examining the certificate issued by the Principal of Janta Inter College, Gorakhpur, the enquiry officer came to the conclusion that no forgery was committed by the petitioner in obtaining the certificate of Class-VIII. The enquiry officer submitted the enquiry report on 15.1.1998 with findings to drop the disciplinary proceedings. After giving due consideration to the enquiry report and examining the matter the Disciplinary Authority vide order dated 23.3.1999 exonerated the petitioner from the charges levelled against him and the order dated 23.3.1999 was communicated to the petitioner.
6. Again the respondent nos. 4, 5 and 6 manipulated and persuaded the respondent nos. 2 and 3 to review the final order dated 23.3.1999 and to initiate disciplinary proceeding afresh on the ground that the order dated 23.3.1999 was passed without taking prior approval of C.V.C. By the impugned order dated 6.7.2000 the respondent nos. 2 and 3 reviewed the order dated 23.3.1999 passed by the Competent Authority and initiated disciplinary proceeding against the petitioner. Against the order dated 23.3.1999, the petitioner filed a representation dated 11.2.2000 before respondent no.1 for quashing/dropping the subsequent proceeding and to restrain the respondent nos. 4, 5 and 6 not to harass the petitioner. On 10.3.2002 the petitioner again represented before respondent nos. 5 and 6 requesting not to harass him.
7. Aggrieved with the order dated 6.7.2000 passed by the Security Commissioner, the petitioner filed the Writ Petition No.19901 of 2002. This Court, while entertaining the writ petition, passed an interim order on 15.5.2002 directing that any action taken during the pendency of this writ petition shall be subject to the result of this writ petition. The respondents initiated further disciplinary proceedings ignoring the order dated 23.3.1999 and the petitioner was issued a letter dated 31.7.2002 to participate in the enquiry and submit his explanation. The petitioner submitted his objections on 03.8.2002. The ex-parte enquiry report was submitted on 31.10.2007. By the impugned order dated 31.10.2007 the Deputy Chief Security Commissioner-respondent no.3 dismissed the petitioner from service. The petitioner has challenged the said dismissal order in second Writ A No.59602 of 2007.
8. Learned counsel for the petitioner submits that the powers of review are only vested in judicial officers to review the matter as a fresh and the respondents did not have any authority to review the order passed by the disciplinary authority. The impugned order dated 6.7.2000 is unjust, illegal and without jurisdiction. Since the petitioner had completed more than ten years of service, the disciplinary action on such flimsy ground is unjustified. The petitioner belongs to Scheduled Caste/Scheduled Tribe category and as such, the respondent nos. 4 and 5 are adamant to oust him from service. The impugned order dated 6.7.2000 was passed without giving any opportunity of hearing to him. At the relevant time, or appointment on the post of Constable (Kahar), there was no requirement of educational qualification and only the incumbent required to read and write. The grounds taken for reviewing the order dated 23.3.1999, that the disciplinary authority exonerated the petitioner without taking prior sanction/approval of vigilance, are also not sustainable.
9. Learned counsel for the petitioner submits that the petitioner has been exonerated by the appointing authority against the charges levelled against him. Against the order of disciplinary authority/appointing authority, there is provision for filing an appeal and revision in the Rules of 1987 as well as R.P.F. Rules, 1957. As per rules no any action shall be initiated after expiry of one year from the date of order. The impugned order dated 6.7.2000 was neither passed exercising power of revision nor an order of review but it is as a result and behest of annoyed authorities and while the order dated 6.7.2000 was subject matter in Writ A No.19901 of 2002, the impugned order dated 31.10.2007 is impermissible, arbitrary, unjust and illegal. In Writ A No.19901 of 2002 this Court passed the interim order on 15.5.2002 to the effect that any action taken during the pendency of this writ petition shall be subject to the result of this writ petition.
10. Learned counsel for the petitioner submits that once the petitioner has been exonerated from the same charges in the enquiry report dated 15.1.1998, and the final order was passed on 23.3.1999 exonerating the petitioner from the charges, and reinstating him in service. Thus in case any power is exercised under revisional jurisdiction by the superior authority to the disciplinary authority, the same requires to be passed within one year of limitation exercising revisional jurisdiction but in the present case, the order to initiate further enquiry dated 6.7.2000 speaks that the order dated 23.3.1999 reviewed and the disciplinary order set aside. The petitioner was not provided any opportunity to cross-examine the witnesses and to proceed with the matter and even his reply was not considered. As per order dated 6.7.2000 the disciplinary authority has to take decision afresh after the earlier order is set aside exercising powers under Section 219 (4) (a), hence it is clear that the authority, other than the disciplinary authority, has no power to pass dismissal order on own motion. The charges levelled against the petitioner are illegal, false, fake, baseless and while the petitioner simply holds the post of Constable (Kahar), which is a Class-IV post and he was posted at Training Centre, Northern Railway, Railway Protection Force, Gorakhpur since the year 1991 and he has rendered more than 16 years services. Since the petitioner specifically denied all the charges levelled against him and the educational authorities supported his case, and the disciplinary authority exonerated him, the impugned order dated 31.10.2007 is unwarranted, unjust and without jurisdiction.
11. Learned counsel for the petitioner submits that the administrative authority has no power to review its own order and superior authority may revise as provided under Rule 219, but within a period of one year limitation while in the present case, the petitioner was exonerated from such charges after complete enquiry on 23.3.1999. The authority, who passed the order dated 6.7.2000, was neither superior to appointing authority nor he has power to review the order under the rules.
12. Learned counsel for the petitioner has relied upon judgments of this Court in Rajendra Prasad Gupta and another vs. State of UP and another 1999 (3) ESC 2309 (All.) and Sushil Kumar vs. Engineer-in-Chief, Irrigation U.P. Sinchai Bhawan, Lucknow and others 2002 (4) ESC ESC 388. He has also relied upon a judgment of Hon'ble Supreme Court in Mathura Prasad vs. Union of India and others (2007) 1 SCC 437.
13. Learned counsel for the petitioner has also placed reliance on a judgment of this Court in Mahabir Prasad vs. District Magistrate, Kanpur and others decided on 1 March, 1955 AIR 1995 All 501. The relevant paragraphs no.6, 7, 8, 9, 10 and 11 of the judgment are reproduced hereinafter:-
"6. The power of an authority to modify its own order or the order of a co-ordinate or subordinate authority varies according to the nature of the order. Ordinarily finality attaches to a judicial or a quasi-judicial order. Such an order when passed is supposed to dispose of the dispute once for all. If the authority passing the order wishes to modify or rescind the said order, it has to act within the provisions of law conferring power of review. Similarly, if it is desired to modify or cancel judicial or quasi-judicial order passed by a subordinate authority or an authority exercising concurrent jurisdiction, the power must be expressly conferred by some provisions of law.
7. Greater latitude is permissible in the case of an administrative or executive order. Such an order may be modified or revoked by the authority passing it under Section 21, U. P. General Clauses Act (1 of 1904). This section provides that "Where, by any United Provinces Act, a power to issue notification, orders, rule or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary, or rescind any notifications, orders, rules or bye-laws so issued".
8. A subsidiary question will arise whether the power to modify or recall its own order can be exercised by an authority in exercise of its own discretion only or whether it can also be exercised in a case in which the said authority, if left to itself, would never interfere with it but is acting under the command of a superior authority. This point will be considered hereafter along with the other important question as to how far a superior authority can interfere with an executive or administrative order passed by an inferior authority in exercise of its statutory powers.
9. Before entering into this question it is necessary to ascertain whether an order of allotment is an administrative or executive order or an order of a judicial or quasi-judicial nature. An order of judicial or quasi-judicial nature does not mean that it should have been passed by a Court of law. The term "judicial or quasi-judicial" has been given a liberal interpretation so as to include orders by tribunals or authorities other than the regular Courts of justice. The Supreme Court had to interpret the term "judicial or quasi-judicial" order in the case of Province of Bombay v. Khushldas S. Advani AIR 1950 SC 222..
They had laid down that the writ of certiorari could issue in the case of judicial or quasi-judicial orders and this led them to consider as to what kinds of orders were judicial or quasi-judicial orders. Kania C. J. quoted with approval at pp. 224-225 a dictum of Scrutton L. T. in --King v. London County Council', (1931J 2 KB 215 (B) at p. 233 which runs as follows :
"It is not necessary that it should be a Court in the sense in which this Court is a Court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court; if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari."
Thereafter, Kania C. J. referred to the dictum of Slesser L. J. in the same case where it was held that in order to issue a writ of certiorari four things were necessary, viz., the tribunal whose order is sought to be quashed (1) having legal authority, (2) to determine questions effecting rights of subjects, (3) having the duty to act judicially, (4) has acted in excess of their legal authority,
10. Summing up his own views on p. 226 Kania C. J. observed that:
"It seems to me that true position is that when the law under which the authority is making a decision itself requires a judicial approach, the decision will be quasi-judicial."
Fazl Ali J. expressed himself on p. 228 as follows:
"It may be safely laid down that an order will be a judicial or quasi-judicial order if it is made by a Court or a Judge, or by some person or authority who. Is legally bound or authorised to act as if he was a Court or a Judge. To act as a Court or a Judge necessarily involves giving an opportunity to the party who is to be affected by an order to make a representation making some kind of inquiry, hearing and weighing evidence, if any, and considering all the facts and circum-stances bearing on the merits of a controversy, be-fore any decision affecting the rights of one or more parties is arrived at The procedure to be followed may not be a* elaborate as in a Court of law and it may be very summary, but it must contain the essential elements of judicial procedure as indicated by me,"
11.It will therefore follow that to constitute a quasi-judicial or a judicial order, the authority passing the order should be under an obligation to hear the parties, to make an enquiry, to weigh the evidence and to base its conclusion thereon. Its decision should be based on the re-suit of the enquiry and not on its own discretion."
14. Shri Tarun Verma, learned counsel for the respondents, on the other hand, submits that the petitioner was appointed on the post of Constable/Kahar on 14.5.1992 and thereafter he was working on the said post. An enquiry was conducted by Chief Vigilance Inspector on the basis of complaints received against him that he submitted a false and forged school leaving certificate to get the appointment in Railway Protection Force. In the vigilance preliminary enquiry the complaint was found correct. A charge sheet under Rule 153 of RPF Rules was issued on 27.5.1997 against him and Shri Sangam Lal Mishra, the then Inspector was appointed as enquiry officer. The enquiry officer completed the enquiry and submitted his report on 15.1.1998. The petitioner submitted his defence reply on 9.3.1998. After considering the enquiry report and defence reply submitted by him, the disciplinary authority passed the order on 23.3.1999 exonerating the petitioner from the charge levelled against him. The disciplinary authority committed an error in passing the order dated 23.3.1999 as the petitioner's case was CVC related case and before passing the final order, the consent of Zonal Vigilance was required. Due to this lapse and on the basis of letter of General Manager (Vigilance) dated 11.11.1999, the competent authority reviewed the final order in terms of Rule 219 of RPF Rules and set aside the order of the disciplinary authority. On the basis of aforesaid order, fresh enquiry was conducted against him by order dated 13.7.2001. Shri Hari Singh Rawat, Head Master/Inspector was nominated as enquiry officer. On transfer of Shri Hari Singh Rawat, Shri Narendra Kumar, Inspector was nominated as enquiry officer. The enquiry officer started the enquiry and fixed dates for enquiry. In the meantime, the petitioner filed Writ Petition No.19901 of 2002 against the order dated 6.7.2000 to stop the fresh enquiry proceeding and after hearing, this Court passed an interim order on 15.5.2002 that any action taken during the pendency of this writ petition shall be subject to the result of this writ petition. When the enquiry was started, the petitioner came with another school leaving certificate No.2485 mentioning another date of passing for his educational qualification. The enquiry officer fixed many dates for enquiry but the petitioner did not present himself on the date fixed for enquiry. As such the enquiry officer submitted his report ex-parte.
15. Shri Tarun Verma further submits that since the matter is pending in this Court, the legal opinion was sought from the Railway Advocate before passing the final order. The Advocate informed on 17.9.2004 that the department should wait for the decision in the writ petition before proceeding to take any action in pursuance to the enquiry. As the case is pending since long, an opinion was again asked from the Railway Advocate on 11.10.2007. The Railway Advocate opined on 19.10.2007 that the department can proceed in accordance with law and pass suitable order. On the basis of the legal opinion, the enquiry report and relevant records, the respondent no.3 passed the order on 31.10.2007 by which the petitioner has been dismissed from service.
16. Shri Tarun Verma, learned counsel for the respondents submits that the Security Commissioner, Railway Protection Force, Head Quarter is empowered under Rule 219.4 of the RPF Rules, 1987 to review the order of the authority making the original order. There was clear irregularity on the part of the disciplinary authority in issuing the original order and there is no malice on the part of the respondents. Rule 219.3 of RPF Rules was not applicable in this regard since there was no appeal preferred by the delinquent employee. It was lawful on the part of the Security Commissioner, RPF (HQ) to review and set aside the order of the disciplinary authority due to certain irregularity specially in view of the fact that procedure to follow Central Vigilance Commission cases was not adhered to. There was no intention to harass the delinquent nor the same was issued without a valid authority. This order was issued with intention to rectify mistakes and to ensure that justice is done. The allegation of the petitioner, that the disciplinary proceeding was initiated against the delinquent without any reason, is baseless as action was initiated against him on initiation of Central Vigilance Commission and the Railway Vigilance Department for the allegations that he had submitted false and forged school leaving certificate in order to get the job. The enquiry report along with order of the disciplinary authority was not sent for vigilance concurrence, which was mandatory in DAR cases based on recommendation of CVC/Railway vigilance. It was lawful on the part of the Security Commissioner, RPF (HQ) to review and set aside the order of the disciplinary authority due to certain irregularity specially in view of the fact that the procedure to be followed in CVC cases was not adhered to. The reviewing authority has reviewed the order of the disciplinary authority strictly as per rules. No discrimination was made on the basis of caste.
17. Just to appreciate the present controversy, it would be relevant to reproduce the provision of Section 219.4 of RPF Rules, 1987:-
"219. Revision 219.4 Any authority superior to the authority making the original order may, on its own motion, or otherwise, call for the records of any inquiry and revise any order made under these rules and may:-
(a) confirm, modify or set aside the order"
18. As per order dated 6.7.2000, the disciplinary authority has taken a decision afresh after the earlier order is set aside exercising powers under Rule 219 (4) (a) of the RPF Rules, 1987 whereas any authority superior to the authority making the original order may, on its own motion, or otherwise, call for the records of any enquiry and revise any order made under these Rules but the administrative authority without any jurisdiction had reviewed its own order. Even though the said power is only vested in the superior authority who may revise under the revisional authority the order passed by the competent authority. Even otherwise also, for appointment on the post of Constable/Kahar, there was no requirement of educational qualifications and the incumbent was only required to have knowledge of reading and writing. The alleged school leaving certificate of Class-VIII has no relevant in the present matter. The whole case has been set up by the respondents only on the ground that the school leaving certificate was fabricated and forged. In the first enquiry, nothing adverse was found against the petitioner and the petitioner was exonerated from the charges but the final order dated 23.3.1999 was reviewed as fresh only on the ground that the order dated 23.3.1999 was passed without taking prior approval of the CVC. The only ground taken for reviewing the order dated 23.3.1999 was that no prior sanction/approval of Vigilance had been taken in the matter, even though nothing has been brought on record to indicate that it is mandatory. It has also been averred in the writ petition that principle of natural justice has also been greatly violated. No opportunity had been afforded to the petitioner before passing the impugned order and straightaway the impugned order dated 6.7.2000 had been passed.
19. It has been vehemently submitted by learned counsel for the petitioner that the right of review is only vested in the judicial officer and quasi judicial proceedings, and the administrative authority does not have such a power and as such the earlier order dated 23.3.1999 attached finality and in the garb of Rule 219 (4) (a) of the RPF Rules the respondents had proceeded in the matter and reviewed the earlier order. This can only be done by the revisional authority.
20. In Indrani Bai (Smt.) v. Union of India & Ors., 1994 Supp (2) SCC 256, Hon'ble Supreme Court held in paragraph 6 as under:-
"6. Under these circumstances, it is a clear case that the delinquent had not been afforded a fair opportunity, much less a reasonable opportunity to defend himself. That has resulted in violation of the principles of natural justice and fair play offending Articles 41, 21 and 311(2) of the Constitution. The orders of dismissal as confirmed by the appellate authority are accordingly quashed. The respondents are directed to grant to the appellant the pensionary benefits according to rules and also to consider her case for suitable appointment on any 2 post to which she may be eligible for rehabilitation, on compassionate ground. The respondents are further directed to pay the full salary payable to the deceased delinquent to the appellant from the date on which he was kept under suspension till date on which he would have attained superannuation or February 28, 1985, the preceding date of his death whichever is earlier, with all consequential benefits after deducting the subsistence allowance already paid, right from the date of the suspension order till date of dismissal. The exercise should be done within three months from the date of the receipt of the order."
21. In the aforesaid facts and circumstances, the impugned orders cannot be sustained and are accordingly set aside.
22. Both the writ petition are allowed. A writ of mandamus is issued to the respondents to reinstate the petitioner in service and pay 50% back wages within a period of two months from the date of filing of a certified copy of this order.
Order Date :- 15.5.2015 RKP