Chhotey Lal Verma vs Union Of India & Others
2012 Latest Caselaw 5430 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Case :- WRIT - A No. - 4911 of 2000
 

 
Petitioner :- Chhotey Lal Verma
 
Respondent :- Union Of India & Others
 
Petitioner Counsel :- Namawar Singh,M.L.Rai,S. Singh,Sanjeev Singh
 
Respondent Counsel :- Anand Kumar,S.C.,S.K. Srivastava,
 
                                     Sandeep Saxena
 

 
					______
 

 

 
Hon'ble Rajes Kumar,J.

Heard Sri M.L. Rai, learned counsel for the petitioner and Sri S.K. Srivastava, appearing on behalf of the respondents.

The petitioner was a Constable in the Railway Protection Force (hereinafter referred to as the 'RPF') in the year 1985. While he was posted at Railway Junction Naini, Allahabad, a First Information Report was lodged on 5th May, 1985, under Section 3/7, Essential Commodities Act, which was registered as Case Crime No. 187 of 1985 at Police Station Naini, Allahabad. In pursuance thereof, the petitioner was arrested on 5th/6th May, 1985 and was sent to Jail and remained in Jail for a period of 26 days.

After the release on Bail, the petitioner reported for joining of his duties on 11th June, 1985. He was placed under suspension on the ground that he was detained in custody for a period of 26 days.

The petitioner was arrested while sitting in a Truck No. UPD-105, loaded with 300 bags of cement. The cement was also seized by the Police. It appears that one Lalji Singh claimed himself to be the owner of the cement and an application was moved by him before the Additional Collector, Allahabad for release of the cement. The said 300 bags of cement was released in favour of Lalji Singh by the Additional Collector, Allahabad by the order dated 31st July, 1985 on furnishing of two securities of Rs.15,000/- and further on the condition that he will deposit value of the cement in case if any claim is being made in this regard.

It appears that the said suspension order has been revoked by the Divisional Security Commissioner vide his order dated 31st January, 1991. However, an enquiry proceeding was initiated against him and on 24th April, 1991, a chargesheet was given to the petitioner. The petitioner filed the reply to the chargesheet and denied the charges levelled against him. It appears that the disciplinary authority was not satisfied with the reply of the petitioner and therefore ordered for the disciplinary enquiry and appointed one Sri L.P. Yadav as the enquiry officer. The enquiry officer submitted the report on 21st May, 1992. He found that the charges levelled against the petitioner in the chargesheet were false and frivolous and not proved against the petitioner. The enquiry report was submitted before the Disciplinary authority. The Disciplinary authority did not agree with the enquiry report and after putting a dissenting note referred the matter to the Divisional Security Commissioner, Northern Railway, Allahabad on 30th May, 1992. On the receipt of the report from the disciplinary authority, the Divisional Security Commissioner issued a show cause notice to the petitioner, which has been replied by the representation dated 16th June, 1992. The Divisional Security Commissioner, vide order dated 15th July, 1992, held the petitioner guilty of serious misconduct and recommended for removal of the petitioner from service with immediate effect. In pursuance thereof, the Divisional Security Commissioner issued a letter dated 15th July, 1992 removing the petitioner from service with immediate effect. Being aggrieved by the order of the Divisional Security Commissioner, the petitioner filed the appeal, which has been dismissed vide order dated 29th December, 1992 against which the petitioner filed a revision, which too has been rejected vide order dated 8th December, 1999, which is being challenged in the present writ petition alongwith the order of the Divisional Security Commissioner dated 15th July, 1992 and the appellate order dated 29th December, 1992.

Learned counsel for the petitioner submitted that three hundred bags of set cement were thrown by the Railways as they were damaged in rain. The Railway has not lodged any report of theft. Three hundred bags of cement belong to one Lalji Singh on whose claim the Additional Collector, Allahabad has released three hundred bags of cement in his favour on furnishing of the security. During the course of the enquiry, the statements of Sri G. C. Rai, Police Constable, RPF, Mirzapur, Sri R.B. Ram, CJS, Allahabad, Sri G.P. Yadav, Sub Inspector, Civil Police, Police Station Sumerpur, Hamirpur, Sri Ram Sundar Ram, Cash/Platoon TDL, N/R Sant Prasad Pandey, 47 Coy, Bharwari and the statement of the petitioner were examined and the Daily Diary extract of Duty Check Post NYN and Police Macrons, Record Copy, Police Station Naini, Allahabad, dated 3.2.1992, Register of S.P. Office were perused and on the consideration of the entire evidence on record, Sri L.P. Yadav, the Enquiry Officer, found that the charges levelled in the chargesheet no. 153-RPF/DAR-1/TDL/91 dated 22nd April, 1991, that is, theft of three hundred bags of set cement from the Goods Shed NYN carrying on Truck No. UTD/105 on 5th May, 1985 by the Constable C.L. Verma is not proved. The detention of the petitioner by the Civil Police on 5th May, 1985 is proved, though it was due to misconception of facts of police. The dissenting note put by the disciplinary authority disagreeing with the enquiry report of Sri L.P. Yadav is based on no evidence and further all the impugned orders are wholly unjustified without making out any case of involvement of the petitioner in a theft or in any kind of misconduct. Therefore, the impugned orders are liable to be set aside.

Sri S.K. Srivastava, learned counsel for the respondents, submitted that the petitioner was caught red handed sitting in the Truck No. UTD 105 loaded with three hundred bags of cement on 5th May, 1985 at about 15:55 Hours, driven by one Jauhar Ali, the truck driver. There was no occasion for the petitioner to sit on such truck while he was on duty in the yard. It is established that he tried to remove three hundred bags of cement from the yard or from outside the yard, which did not belong to him without the permission of the higher authorities and it amounts to serious misconduct. Thus, the petitioner has been rightly held guilty of misconduct and has been rightly removed from service.

I have considered rival submissions and perused the materials on record.

Relevant provisions of Railway Protection Force Act, 1957 reads as follows:-

153.1 Without prejudice to the provisions of the Public Servants Inquires act, 1850, no order of dismissal, removal, compulsory retirement or reduction in ranks shall be passed on any enrolled member of the Force (save as mentioned in rule 161 ) without holding an inquiry, as far as may be in the manner provided hereinafter, in which he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded a reasonable opportunity of defending himself.

153.2.1. Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an enrolled member of the Force, it may itself inquire into or appoint an Inquiry Officer higher in rank to the enrolled member charged but not below the rank of Inspector, or institute a Court of Inquiry to inquire in to the truth thereof.

153.2.2. Where the disciplinary authority itself holds the inquiry, any reference to the Inquiry Officer in these rules shall be construed as reference to the disciplinary authority.

154.1 If the disciplinary authority, having regard of its own findings where it is itself the Inquiry Officer or having regard to its decision on all or any of the Inquiry Officer, if of the opinion that the punishment warranted is such as 1s within its competence, that authority may act on the evidence on record. However, in a case where it is of the opinion that further examination of any witness is necessary in the interest of justice, it may recall the witness, examine him and allow the party charged to cross-examine him. After that, it may impose on the party charged such punishment as is within its competence according to these rules.

154.2 While communicating the order imposing the punishment, a copy of the findings of the Inquiry Officer shall also be given to the party charged.

154.3 Where such disciplinary authority is of the opinion that punishment warranted is such, as is not within its competence, that authority shall forward the records of the inquiry to the appropriate disciplinary authority who shall act in the manner as hereinafter provided.

154.4 The disciplinary authority, if it is not itself the Inquiry Officer may, for reasons to be recorded, remit the case to the Inquiry Officer for further Inquiry and report. The Inquiry Officer shall thereupon proceed to hold further inquiry according to the provisions of rule 153 and submit to the disciplinary authority the complete records of such inquiry along with his report.

154.5 The disciplinary authority shall, if it disagrees with the findings of the Inquiry Officer on any articles of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

154.6 If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the opinion that any of the major punishments should be imposed on the party charged, it shall, notwithstanding anything contained in rule 158, make an order imposing such punishment.

154.7 If the authority, having regard to its findings on all or any of the articles of charge and on the basis of evidence on record, is of the opinion that any of the major punishments should be imposed on the party charged, it shall make an order imposing such punishment and it shall not be necessary to give to the party charged any opportunity of making representation on the punishment proposed to be imposed.

In the present case, on the receipt of the enquiry from the Enquiry Officer, the Disciplinary Authority has disagreeing with the findings of the Enquiry Officer and has recorded a dissenting opinion and referred the matter to the appropriate Disciplinary Authority and the appropriate Disciplinary Authority, after giving the show cause notice, though not contemplated under Section 154.7, passed the punishment order, dismissing the petitioner from services. I am of the view that while passing the punishment order, the proper procedure, as contemplated under the Act, referred hereinabove, has been followed.

I have also perused the copy of the report which has been registered at Police Chowki Naini. The said report is Annexure-1 to the writ petition. Said report reveals that while Sub Indspector G.P. Yadav was on patrolling on 5th May, 1985, alongwith Ram Raj Singh, C-235, Kameshwar Dubey, C-7 and Om Prakash Varshney at about 3:00 A.M. while reaching at Malhara Gate an information has been received from the informer that one Truck No. UTD-105 is being loaded with the cement from the Railways Stock Yard. On receipt of the information, the Sub Inspector alongwith his team went near the gate in-front of the Station Road and kept waiting behind the Pulia. At about 3:45 A.M. in the morning, the said vehicle came out of the gate of the goods shed and proceeded towards the Korhikhana where the said truck has been intercepted at Railway Road in which alongwith the driver, one other person was also sitting. On checking, three hundred bags of cement (set) was found loaded on the truck. When enquiry was made about the cement, no document was produced relating to the cement. Hence, alongwith three hundred bags of cement, both the persons have been taken into custody. On enquiry, the name of the driver of the truck was disclosed as Jauhar Ali, Son of Shaukat Ali and the name of the other person was disclosed as Chote Lal Verma, Son of Kamta Prasad Verma, RP-75/1B, Cheoki, Allahabad. Both the persons refused to sign the paper. However, the same has been signed by the S.I., G.P. Yadav, Constables Ram Raj Singh, Kameshwar Dubey, Om Prakash Varshney and Jagdish.

The petitioner remained in Jail for 26 days and thereafter released on bail granted by the High Court. The petitioner was suspended, however, the suspension order has lateron been revoked and the enquiry was proceeded and one Sri L.P. Yadav, Inspector, R.P.F., Northern Railway, Tundla was appointed as the Enquiry Officer. He recorded the statements of Sri G. C. Rai, Police Constable, RPF, Mirzapur, Sri R.B. Ram, CJS, Allahabad, Sri G.P. Yadav, Sub Inspector, Civil Police, Police Station Sumerpur, Hamirpur, Sri Ram Sundar Ram, Cash/Platoon TDL, N/R Sant Prasad Pandey, 47 Coy, Bharwari and the statement of the petitioner and on the consideration of the entire evidence on record, Sri L.P. Yadav, the Enquiry Officer, found that the charges levelled in the chargesheet no. 153-RPF/DAR-1/TDL/91 dated 22nd April, 1991, that is, theft of three hundred bags of set cement from the Goods Shed NYN carrying on Truck No. UTD/105 on 5th May, 1985 by the Constable C.L. Verma is not proved on the basis of the facts and materials examined during the course of the eqnuiry.

It appears that the Disciplinary Authority, that is, Additional Security Commissioner, RPF, Tundla, did not agree with the finding recorded by the Enquiry Officer and submitted a dissenting note, stating that the charges against the delinquent Constable were found proved and remitted the file to the Divisional Security Commissioner. The Divisional Security Commissioner, on the receipt of the file in order to provide one more opportunity to the delinquent, issued a show cause notice to which the petitioner filed the reply/representation dated 16.6.1992. On the consideration of the entire material on the record and the reply of the petitioner, he found the petitioner guilty of serious misconduct and, accordingly, terminated his service. It is further observed that the petitioner left his headquarter without the permission of his superiors and was arrested near the Leprosy Mission Hospital which too is a matter of serious misconduct, although no definite charge has been levelled against him, but the charge is wide enough to cover this aspect of the misconduct. The appeal filed against the said order has been dismissed by the Additional Chief Security Commissioner. The revision filed against the appellate order has also been rejected by the Chief Security Commissioner.

It is not in dispute that the petitioner was found sitting in the Truck No. UTD-105, loaded with three hundred bags of cement. At the time of inspection, no documents relating to the cement was produced. In his statement, recorded by Sri L.P. Yadav, Enquiry Officer, the petitioner could not explain that why he was sitting in the said Truck. In the application for release of the seized cement, Sri Lalji Singh has not stated that he has purchased the set cement from one M/s. Agrahari Cement Agency, Matiyara Road, Allahpur, Allahabad, vide cashmemo dated 2nd May, 1985 for Rs.9,000/=. It is also not believable that though the cashmemo is of 2nd May, 1985, but the said cement was being transported on 5th May, 1985 that too in the night. It was also not the case that he has purchased set cement from M/s. Agrahari Cement Agency, which was seized. In view of above, the whole story appears to be an afterthought.

It appears that the Railways has not reported the theft because 5167 bags of cement were destroyed/damaged due to rain and on 3rd of May, 1985 those bags of cement were declared waste and it appears that out of those 5167 bags of cement, which had been declared waste/damaged and thrown by the Railways, three hundred bags of cement were being carried in the said Truck by the petitioner. Therefore, the question of reporting of theft of three hundred bags of cement by the Railways did not arise.

I have also perused the enquiry report of Sri L.P. Yadav.

It has been mentioned in the report that the vehicle was inspected, goods were seized and the petitioner was arrested by Sri G.P. Yadav, Sub Inspector in the night of 5.5.1985. In his statement recorded in the year 1992, Sri G.P. Yadav, Sub Inspector, stated that since the matter is quite old, he can say anything only after perusing the First Information Report. If it was so, then, why the copy of the First Information Report has not been given to him and his statement has not been recorded. The report dated 5th May, 1985, which is Annexure-1 to the writ petition, reveals that there are signatures of Ram Raj Singh, Om Prakash, Kameshwar Dubey and Jagdish. They were eye witnesses. Why the statement of such persons has not been record for no valid reason whereas the statements of R. B. Ram, Ram Sundar Ram and Sant Prasad Pandey were recorded, who were not on duty. Therefore, the enquiry report of Sri L.P. Yadav was not proper and has rightly not been accepted.

In view of the above, I do not see any error in the impugned order, which requires review by this Court. In the result, the writ petition fails and is dismissed.

No order as to cost.

Order Date :- 2nd November, 2912

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