R.S.Maurya vs Director Ganeral R.P.S.F. And ...
2013 Latest Caselaw 6376 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									      AFR
 
									  Reserved		Civil Misc. Writ Petition No. 30346 of 1993.
 
Ram Samujh Maurya.		....		....	...   Petitioner.
 
					Versus
 
Director General, R.P.S.F., New Delhi and others. 	...  Respondents.
 
					-------
 
Hon'ble Pradeep Kumar Singh Baghel, J.

The petitioner, a Naik in Railway Protection (Special) Force, has preferred this writ petition seeking issuance of writ of certiorari quashing the order of his dismissal dated 26th March, 1990, as well as orders dated 04th February, 1991 and 12th June, 1991, whereby his appeal and revision also came to be rejected.

The essential facts are that the petitioner was initially appointed on 11th May, 1969 as a Constable in Railway Protection (Special) Force. From the records it appears that before imposition of major punishment of dismissal from service in the year 1990, there was nothing adverse against the petitioner in his service record of more than 20 years.

On 29th September, 1989 the petitioner, who at that time was posted as Naik, along with four Constables, two other Naiks and one Head Constable was posted at Butare Railway Station, where the petitioner was on Sentry duty. On the said date, petitioner's duty was between 19.00 hours to 20.00 hours at Butare Camp and 20.00 hours to 22.00 hours at the East and West side of the Platform. At the platform of Butare Railway Station, food-grains were being loaded on a special goods train, for which large number of labourers were engaged. At about 8.30 P.M. about 5-6 persons, who were in the disguise of labourers, came at the platform and they were followed by another 7-8 persons, who were also in the similar dress. It is admitted case that at that point of time loading of food-grain on the special train was in progress. It is stated that all of a sudden, 5-6 persons, who were dressed as labourers but were terrorists, attacked the petitioner and after overpowering him snatched his rifle at the gun point. All the terrorists were armed with AK-47 Rifles and revolvers, which they had concealed under their dress. Another 7-8 terrorists entered the guardroom and took away the weapons therefrom. It is pertinent to note that at the guardroom, there were two other Constables, who were present, namely, Constable Shyam Prakash Thakur and Ex. Naik Bhagirath.

The petitioner was suspended and a charge-sheet was served on him on 19th October, 1989. The petitioner was charge-sheeted on two grounds: firstly, while he was on Sentry duty, he miserably failed to discharge his duty as a Sentry which resulted in snatching/looting of the arms and ammunitions by the terrorists and thus, he failed to exercise right of private defence; and, secondly, on account of his cowardice the terrorists were allowed easy access to the guardroom and they succeeded in looting/snatching arms/ ammunitions of the detachment including petitioner's weapons i.e. loaded rifle and ammunitions. One Sri Yatindra Kumar Singh, Assistant Commandant-I, No. 2 Bn/RPSF/GKP was appointed as Enquiry Officer in the case who conducted joint enquiry in respect of all the eights persons, who were on duty along with the petitioner on the date of incident.

In the enquiry, three persons, namely, Sri Sadhu Singh, Sri P.G. Narain and Sri Kuljinder Singh were examined. All the aforesaid three witnesses were employees of the railway department as Sri Sadhu Singh was Station Superintendent and rest two persons were watermen. Enquiry Officer found the petitioner and all other seven persons guilty of both the charges. The disciplinary authority agreed with the report of the Enquiry Officer and passed the order of dismissal from service against all the eight charge-sheeted employees including the petitioner.

Feeling aggrieved by the order of the disciplinary authority, the petitioner and other persons filed appeals before the respondent no. 2, who rejected the appeal of the petitioner. However, the appeals of Naik Bhagirathi, Naik Nikolas Aind and Constable Shyam Prakash Thakur were allowed and they were reinstated in service. The departmental appeals preferred by Constable Mohan Singh and Constable Mahatam Rai were partly allowed and the punishment of dismissal from service was reduced to stoppage of two years' increments, whereas the appeals of the petitioner, Head Constable Chandreshwar Prasad and Constable Lal Chanda were dismissed.

Aggrieved by the aforesaid orders, the petitioner preferred revision, which also came to be rejected by the impugned order dated 12th June, 1991. The revision of two other constables, namely, Sri Mohan Singh and Sri Mahatam Rai, whose punishment was modified by the appellate authority, were allowed by the respondent no. 1. Feeling aggrieved by the aforesaid orders passed against the petitioner, he has preferred this writ petition.

The petitioner has filed two supplementary affidavits to bring on record the orders of the appellate authority and the revisional authority in respect of other employees, whose appeals and revisions have been allowed, to establish the fact that the petitioner has been discriminated as the other co-delinquents, who were similarly placed, have been reinstated in service.

A counter affidavit has been filed on behalf of the respondents. The stand taken in the counter affidavit is that all the persons responsible for the aforesaid incident have been charge-sheeted separately for the lapse on their part and every one has been given opportunity to defend his case and also to cross-examine the witnesses as per the provisions of the relevant Rules. Petitioner's duty was as a Sentry and he failed to discharge his duty with the result that arms and ammunitions of the detachment were snatched/looted by the terrorists. Being a trained and experienced Naik, it was personal and legitimate responsibility/duty of the petitioner to foresee and take all measures for safety and security of the camp, railway property, arms and ammunitions, but he utterly failed in his duty.

In the rejoinder affidavit the petitioner has denied the statements made in the counter affidavit. It has been pointed out in the rejoinder affidavit that on the fateful day there was lack of light on the platform at the place where the petitioner was doing his Sentry duty and where loading of grains in the late hours of night was going on. It has also not been denied in the counter affidavit that the persons were moving freely from the platform. It has been reiterated that the persons, who were similarly situated, have been treated differently as they have been reinstated and their appeals and revisions have been allowed, whereas those of the petitioner have been dismissed. Moreover, the grounds taken by the petitioner in his appeal and revision have not been adverted to by the authorities concerned.

I have heard Sri S.V. Goswami, learned Counsel for the petitioner, and Sri A.K. Gaur, learned Counsel for the respondents.

Sri S.V. Goswami, learned Counsel for the petitioner, submits that on 29th September, 1989 where the petitioner was on duty, it was an open platform, through which persons and passengers including the labourer class engaged in loading of food-grains in the railway wagons even at the time of occurrence were passing throughout the day. It was neither prohibited nor restricted area. The other members of the staff including two Naiks/Constables were taking rest along with their weapons when the terrorists made entry in the guardroom, wherefrom they took away the weapons without any resistance. Sri Goswami further submits that the persons, who were present in the guardroom, were in a better position to use their weapons against the terrorists after having heard the commotion outside the room.

Sri Goswami contends that all the eight members of the staff were put under suspension. Similar and identical charges of negligence and cowardice were framed against all the members. However, the enquiry was not conducted properly, inasmuch as a joint enquiry was held which is against the notification of the Railway Board. Sri Goswami has referred the Railway Board's communication dated 19th October, 1971, by which joint enquiry was not permitted. Out of all the eight persons, who were subjected to disciplinary proceeding, each of them has been witness against the other. This fact has not been denied in the counter affidavit. Sri Goswami further submits that the Commanding Officer/disciplinary authority has found undesirability and unfitness of the petitioner which was not a charge against him. Thus, he had taken a new ground.

He urges that the findings recorded by all the three respondents were against the provisions of the Railway Protection Force Act, 1957 (for short, the "Act") and the Rules framed thereunder being the Railway Protection Force Rules, 1987 (for short, the "Rules"). He invited the attention of the Court to Section 11 of the Act, which enumerates duties of members of Force. He also drew the attention of the Court to Rule 153.3 of the Rules, which puts a ban and provides not to convert cases punishable under Section 16A or Section 17 into disciplinary cases nor divert the cases in respect of which a major punishments are imposable to the category of cases where minor or petty punishments are imposable. Section 17 of the Act provides penalties for neglect of duty and cowardice, with punishment of imprisonment extending to one year. In the instant case, according to Sri Goswami, the charges were regarding negligence and cowardice and, therefore, in view of the aforesaid specific Rule and provisions of the Act, the charges were wholly illegal and without jurisdiction.

Sri Goswami submits that Rule 156 of the Rules provides the circumstances in which the order of dismissal or removal can be passed. The dismissal order can be passed only in the cases where: there is conviction by a Criminal Court; or, serious misconduct or indulgence against the railway property; or, discreditable conduct affecting the image and reputation of the Force; or, neglect of duty resulting in or likely to result in loss to the railway; or, insolvency or habitual indebtedness; and/or, obtaining employment by concealment of his antecedents which would ordinarily have debarred him from such employment. He further urges that "discreditable conduct" is defined under Rule 146.4 of the Rules but such ground is not attracted in the present facts and circumstances of the case. According to him, the authorities concerned have not examined the aforesaid mandatory rules. He also submits that the weapons issued to the personnel are personal weapon of the individual staff and this fact has been accepted by the appellate authority in his order and, as such, loss of weapon of the petitioner was not a loss of railway as it was not property of the railway.

Lastly, Sri Goswami submits that the petitioner has been discriminated as weapons of all the eight persons, who were posted at Butare Railway Station, were taken away by the terrorists, and charges of negligence of duty and cowardice were framed against all of them. Enquiry Officer had found all of them guilty of both the charges. However, the appellate authority allowed the appeal of three persons and reinstated them in service, while appeal of two employees were partly allowed but the revisions filed by them against the said order were totally allowed. He invited the attention of the Court to paragraph-13 of the counter affidavit wherein the aforesaid fact has been admitted.

Sri A.K. Gaur, learned Counsel for the respondents, submits that although joint enquiry was held but all the charge-sheeted employees were given opportunity to cross-examine the witnesses and the petitioner was given full opportunity. He submits that the petitioner was guilty of serious misconduct as he was found negligent in his duty. He further submits that there was no discrimination as the charges against the petitioner and other employees were substantially different. He has placed reliance on a judgement of this Court dated 19th May, 2005 rendered in the case of Chandeswar Prasad v. Union of India and others, Writ Petition No. 28551 of 1991. The petitioner in the said case was a Head Constable, who was subjected to disciplinary proceeding along with the petitioner and was dismissed from service. His appeal and revision were also rejected by the authorities concerned. Therefore, against his dismissal as well as orders of the appellate authority and revisional authority, he had preferred the above-referred writ petition, which was dismissed by this Court on 19th May, 2005. Sri Gaur has taken the Court to various statements made in the supplementary counter affidavit, wherein the allegations of negligence and cowardice have been made against the petitioner.

I have considered the rival submissions advanced by the learned Counsel for the parties and perused the record.

The petitioner was a Constable in Railway Protection (Special) Force. With the object of better protection and security of the railway property and the passengers, the Railway Protection Force Act, 1957 (Act No. 23 of 1957) has been enacted. The petitioner was an 'Under Officer' in terms of Section 2(fa) of the Act. Section 9 of the Act provides that subject to the provisions of Article 311 of the Constitution and to such rules as the Central Government may make under this Act, the superior officer may dismiss, suspend or reduce in rank any member of the Force whom he shall think remiss or negligent in discharge of his duty or unfit for the same. Section 11 of the Act enumerates various duties of members of Force. Section 17 of the Act lays down various penalties for neglect of duty. It also provides that if a person, who is found to be guilty of cowardice, may be taken into Force custody and shall, on conviction, be punished with imprisonment which may extend to one year. Section 21 of the Act empowers the Central Government to make rules for carrying out the purposes of the Act. In exercise of the powers conferred by Section 21 of the Act, the Central Government has made the Railway Protection Force Rules, 1987. Chapter-XII of the Rules deals with disciplinary and penal punishments. Rule 153 lays down the detailed procedure for imposing major punishments.

The submission of Sri Goswami that there was no misconduct proved against the petitioner as the petitioner did not violate any provision of Section 11 of the Act, is misconceived. Admittedly, the weapons were taken away by the terrorists. Rule 146.2 deals with neglect of duty. It provides that no member of the Force without good and sufficient cause shall omit to attend to or fail to carry out with due promptitude and diligence anything which is his duty as a member of the Force. Sri Goswami submits that weapon provided to the petitioner was his personal property and, as such, there was no loss to the railway property. I am unable to accept the submission. The weapons cannot be treated as personal property of member of the Force as the Rule 127.1 of the Rules provides that the members of the Force to whom arms are issued or given shall be personally responsible for their safe custody while in their charge or possession. Rule 127.3 of the Rules further provides that members of the Force shall not be permitted to take arms while going on leave. The Rules 127.1 and 127.3 of the Rules read as under:

"127.1 The members of the Force to whom arms and accoutrements are issued or given or who are required to keep them under their charge shall be personally responsible for their safe custody and up-keep while in their charge and possession.

127.2 *** ***

127.3 Enrolled members of the Force shall not be permitted to take arms while going on leave. Accoutrements shall be deposited while proceeding on leave, other than casual leave, for more than thirty days."

Sri Goswami could not point out any provision under the Act or the Rules which provides that the weapons are personal property of the member of the Force.

As regards the submission of Sri Goswami that in case of neglect of duty a member of the Force can be convicted under Section 17 of the Act is concerned, I find that said section provides the penalties for neglect of duty, according to which every enrolled member of the Force, if he is found guilty of any violation of duty or wilful breach or neglect or who shall be guilty of cowardice, may be taken into Force custody and shall, on conviction, be punished with imprisonment which may extend to one year. Chapter XI of the Rules deals with discipline and conduct. Rule 146.2 of the Rules clarifies the neglect of duty. Rule 147 of the Rules provides the offences relatable to duties of enrolled members. Rule 147 (viii) enumerates cowardice as one of the offences relatable to the duties of enrolled members. Chapter XII of the Rules provides the disciplinary and penal punishment. Rule 153 of the Rules lays down the procedure for imposing major punishments. From a combined reading of the Rules 143, 146 and 153 of the Rules it is evident that for the neglect of duty and cowardice a major punishment can be imposed by following the disciplinary procedure laid down under Chapter-XII of the Rules. Therefore, in my view, the submission of Sri Goswami that for the neglect of duty under Section 11, the only punishment of imprisonment provided under Section 17 of the Act can be awarded, is difficult to accept. Section 17 of the Act has been inserted by Act 60 of 1985. It is an additional procedure provided for punishment with imprisonment. The Central Government has power to invest any of the officer mentioned in the section with powers of a Magistrate for the purpose of inquiring into any offence committed by an enrolled member if he is found guilty of violation of duty or wilful breach or neglect of any rule. The relevant part of Section 17 of the Act reads as under:

"17. Penalties for neglect of duty, etc.--(1) Without prejudice to the provisions contained in section 9, every enrolled member of the Force who shall be guilty of any violation of duty or wilful breach or neglect of any rule or lawful order made by a superior officer, or who shall withdraw from duties of his office without permission, or who, being absent on leave, fails, without reasonable cause, to report himself for duty on the expiration of the leave, or who engages himself without authority for any employment other than his duty as an enrolled member of the Force, or who shall be guilty of cowardice may be taken into Force custody and shall, on conviction, be punished with imprisonment which may extend to one year."

As regards the submission of Sri Goswami that the petitioner has been discriminated in respect of punishment awarded to him, I am of the view that in this regard some facts need to be considered.

In the present case, the petitioner was posted at Sentry Duty on 29th September, 1989. Indisputably, loading of food-grain on a goods train was going on and large number of labourers were involved in loading. It is also on the record that at the place of petitioner's posting there was no arrangement of light. One of the witnesses, namely, Sri Sadhu Singh has admitted this fact in his statement that there was darkness at the place where the petitioner was posted. The relevant portion of cross-examination by Const. Lal Chand Yadav, 2 RPSF at ASR dt. 10.01.1990, is quoted as under:

"iz'u 3& D;k vki crk ldrs gSa fd ekspksZa ds Åij tks cRrh yxh gqbZ Fkh ml fnu ty jgh Fkh ;k ugha?

mRrj& ml fnu ugha ty jgh FkhA"

The charge against the petitioner was that on account of his negligence, snatching and looting of the arms and ammunitions took place and his own weapon was also snatched. However, the disciplinary authority has recorded a finding that the petitioner himself vacated his beat at his own accord and parted with his arms, which eased the terrorists' operation as to looting and snatching of their arms and ammunitions. The disciplinary authority has held that the petitioner would certainly have not tolerated the state of affairs prevailing at the beat post. The relevant part of the findings recorded by the disciplinary authority in the order dated 26th March, 1990 is as under:

"....Had there been sense of responsibility with the party charged NK 5385 Ram Samujh Mouriya, he would certainly not have tolerated the state of affairs prevailing at the beat post just on eye of the occurrence i.e. (a) the Hav. incharge sitting out side bare handed (b) on duty staff diverted for arranging meals without provision of relief (c) Careless and doubtful movement of some of his colleagues outside the camp. He refrained from oath he took initially."

From a perusal of the aforesaid findings, it would be clear that it was not an allegation against the petitioner in the charge-sheet. Similarly, the finding recorded by the disciplinary authority that the petitioner himself vacated his beat, is a perverse finding as it was not a charge against him nor there is any evidence on the record that the petitioner himself surrendered his arms and ammunitions. On the contrary, evidence on the record was that it was a sudden attack by the terrorists and the weapons were snatched.

It is pertinent to mention that while setting aside the order of dismissal in respect of other Constables, the appellate authority has recorded a finding that they were not in a position to give any resistance to the terrorists and to save the arms and ammunitions as the terrorists had suddenly attacked and there was element of surprise and they overpowered them within seconds and stormed into the guardroom wherefrom they looted the arms and ammunitions. The finding to the said effect recorded by the appellate authority in the order passed in the appeal of Naik Bhagirath is under:

"...Under the circumstances, when the on duty santries with arms and ammunition miserably failed to discharge their duties one can reasonably visualise that there would have hardly being any opportunity on the part of the staff who were taking the rest inside the guard room to give any such resistance specially when the camp was attacked by the terrorists all of a sudden."

The appellate authority while deciding the appeal of Ex. Naik Bhagirath, Ex. Naik Nikolas Aind and Ex. Constable Shyam Prakash Thakur has found that attack by the terrorists was sudden and there was hardly any occasion to put any resistance. The appellate authority had also disbelieved the statement of Station Superintendent, who was the only eye witness. Other witnesses, who were also employees of the railway, were admittedly not present at the platform. Thus, their evidences were not relevant. On one hand, the appellate authority has disbelieved the statement of the Station Superintendent and, on the other hand, on the basis of same statement he has held the petitioner guilty. Therefore, the finding recorded by the appellate authority as well as the revisional authority in respect of the petitioner is illegal and cannot be sustained. The appellate authority has failed to appreciate that above-mentioned three persons, whose appeals have been allowed and who have been reinstated in service, were in a better position to put resistance against the terrorists as all the three were present in the guardroom along with their weapons and they ought to have become alert when there was a commotion at the platform when the terrorists overpowered the petitioner. This aspect has been totally ignored by the appellate authority and the revisional authority. The appellate authority has taken a lenient view against the aforesaid three persons on the ground that they were taking rest in the guardroom. A member of Force, who is armed with weapons also, is not supposed to take rest in the guardroom irrespective of the fact whether he is on duty or taking rest. The aforesaid facts clearly establish that the petitioner was discriminated. The Supreme Court in the case of Tata Engineering & Locomotive Co. Ltd. v. Jitendra Pd. Singh and another, (2001) 10 SCC 530, has taken a view that when there was a misconduct attributed to the employees and on almost identical charges they were found guilty of misconduct in connection with the same incident but different punishment is imposed on them, it would be denial of justice to the person who alone is singled out for punishment by way of dismissal from service. In Jitendra Pd. Singh (supra) the Court has relied upon the judgement in the case of Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court Meerut, (1984) 1 SCC 1, and held as under:

"Since as many as three workmen on almost identical charges were found guilty of misconduct in connection with the same incident, though in separate proceedings, and one was punished with only one month's suspension, and the other was ultimately reinstated in view of the findings recorded by the Labour Court and affirmed by the High Court and the Supreme Court, it would be denial of justice to the appellant if he alone is singled out for punishment by way of dismissal from service."

In the case of Director General of Police and others v. G. Dasayan, (1998) 2 SCC 407, the Supreme Court has taken the same view and observed as under:

"8. ... The third ground that the co-delinquents except the Head Constable were let off though the charges were identical, it is stated by the learned counsel for the appellants that the Disciplinary Authority did not agree with the findings of the Enquiry Officer so far as those two delinquents were concerned. However, the Head Constable, who was also charged along with the respondent, was compulsorily retired by the Disciplinary Authority.

9. Mr. Murlidhar, learned counsel appearing for the respondents, while agreeing with the contentions of the learned counsel for the appellants on the first two grounds, submitted that the order of dismissal at any rate cannot be sustained and if at all an order of compulsory retirement as was made in the case of the Head Constable, who was tried along with the respondent, has to be imposed."

Similar view has also been taken by the Supreme Court in the case of State of Uttar Pradesh and others v. Raj Pal Singh, (2010) 5 SCC 783. The relevant part of the judgement being paragraph-6 reads as under:

"6. It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring out interference under Article 136 of the Constitution."

The aforesaid finding of the appellate authority shows that in respect of the same fact two different yardsticks have been adopted by the respondents. The Constables, who were armed with weapons and posted in the guardroom, were in a better position to make resistance to the terrorists' attack but they have been let off by the appellate authority on the ground that the attack of the terrorist was all of a sudden while in the case of the petitioner this fact has not been considered in the proper perspective. The appellate authority was also of the view that those persons were off the duty and were taking rest in guardroom with their weapons. The view taken by the appellate authority does not seem to be correct. The guardroom, where weapons are kept, is not a place for taking rest. Moreover, all these members of the Force were armed with their weapons, therefore, they were expected to save the weapons of guardroom from the intruders. When there was commotion at the platform and terrorists overpowered the petitioner, they ought to have been alert.

After careful consideration of the facts and circumstances of the case and submissions advanced by the learned Counsel for the parties, I am of the view that for the reasons stated above, the impugned appellate order dated 04th February, 1991 is liable to be quashed. It is accordingly quashed. The matter is remitted to the appellate authority to consider the matter afresh expeditiously preferably within four months from the date of communication of this order.

Accordingly, the writ petition is disposed of.

No order as to costs.

Order Date :- 09th October, 2013.

SKT/-

Hon. Pradeep Kumar Singh Baghel, J.

The writ petition is disposed of.

For orders, see my order of the date passed on the separate sheets (fourteen pages).

Dt./- 09.10.2013.

SKT/-