Bombay High Court
Gautam Atmaram Birhade vs The Assistant Security ... on 5 August, 2016
Bench: S.S. Shinde
1 WP NO.1644 OF 2014
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1644 OF 2014
Gautam s/o Atmaram Birhade,
Age 36 years, Occ: Nil,
r/o Gayatri Nagar, Tambepura,
Amalner, Taluka Amalner,
District Jalgaon.
...PETITIONER
VERSUS
1.
The Assistant Security Commissioner,
Railway Protection Force, Western Railway,
Mumbai Central, Mumbai.
2. Assistant Security Commissioner,
Railway Protection Force, Western Railway,
Surat, State of Gujrat.
3. Senior Divisional Security Commissioner,
Railway Protection Force, Western Railway,
Mumbai Central, Mumbai.
4. Chief Security Commissioner,
Western Railway Head Office,
Churchgate, Mumbai.
5. Director General,
Railway Protection Force,
Ministry of Railways,
Railway Board, New Delhi.
...RESPONDENTS
...
Mr. Swapnil S.Patil, Advocate for petitioner.
Mr. A.D.Soman, Advocate, h/f Mr. D.V.Soman,
Advocate, for respondent nos. 2 and 3.
Respondent nos. 1, 4 and 5 served.
...
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CORAM: S.S.SHINDE
AND
P.R.BORA, JJ.
***
Date of reserving the judgment: 6/5/2016
Date of pronouncing judgment: 5/8/2016
***
JUDGMENT: (Per P.R.Bora, J.)
1. Heard. Rule. With the consent of learned Counsel
for the parties, Rule is made returnable and heard forthwith.
2. The petitioner has challenged the order dated 23rd
December, 2008, passed by the Senior Divisional Security
Commissioner, Railway Protection Force, Western Railway,
Mumbai ( respondent no.3), whereby the petitioner has been
compulsorily retired from the services of the Railway Protection
Force. The aforesaid order was challenged by the petitioner
before the Chief Security Commissioner, Western Railway
( respondent No.4) by filing an appeal. Respondent no.4,
vide order passed on 21st of August, 2909, dismissed the said
appeal. The petitioner, then preferred a revision against the
said order before the Director General of the Railway Protection
Force, Ministry of Railways ( respondent no.5). Respondent
3 WP NO.1644 OF 2014
no.5 rejected the revision petition so filed by the petitioner by
his order dated 15.10.2010.
3. As stated in the petition, departmental action was
initiated against the petitioner on the basis of one criminal case
registered against him. After his acquittal from the said
Regular Criminal Case No.287/2008, the petitioner again filed a
Review application before respondent no.5, however, the same
also came to be rejected vide order passed by respondent no.5
on 11.12.2013. Along with the original order of compulsory
retirement dated 23rd December, 2008, the petitioner has also
taken exception to the orders dated 21.8.2009, 15.10.2010,
and 11.12.2013, passed by the respective officers as mentioned
here-in-above and has prayed for quashment of all such orders.
Consequently, the petitioner has prayed for his reinstatement in
the service with all consequential benefits from the date of his
suspension.
4. The petitioner had entered into the services of the
Railway Protection Force on 9th of March, 1998, as a Constable.
In the year 2008, the petitioner was working as a Constable at
Nandurbar. On 24th April, 2008, the petitioner was permitted
to avail weekly rest on 25th April, 2008. It is the case of the
4 WP NO.1644 OF 2014
petitioner that since his father was suffering from paralysis, the
petitioner boarded Tapti Ganga Express ( Train No.2945) and
was proceeding towards his native place. It is the further
contention of the petitioner that when he reached at Dondaicha
Station, one Mr. Pagare, who was working as T.C., sought his
help in apprehending passengers who were travelling without
tickets and denying to pay the admissible penalty under the
Rules. It is the further contention of the petitioner that he
advised the said passengers to abide by the instructions of the
T.C. and proceeded further towards his native place from
Dondaicha. It is the further contention of the petitioner that,
subsequently he was informed that FIR was lodged against him
for the offenses punishable under Section 392 read with Section
34 of IPC and was arrested in Crime No.10/2008 registered on
the basis of the said FIR. Since the petitioner was arrested in
the aforesaid offense registered against him, respondent no.1
i.e. the Assistant Security Commissioner, Railway Protection
Force, Mumbai Central, Mumbai, suspended him vide order
passed on 25th April, 2008. It is the further contention of the
petitioner that, thereafter, departmental proceedings were
initiated against him and he was held guilty of the charges
levelled against him in the said departmental proceedings. It
is the further contention of the petitioner that on the basis of
5 WP NO.1644 OF 2014
the report of the enquiry held against him, the disciplinary
authority passed an order dated 23.12.2008, thereby
compulsorily retiring the petitioner from the services of the
Railway Protection Force. It is the further contention of the
petitioner that he assailed the aforesaid order before the
appellate authority and eventually before the Director General
of Railway Protection Force by way of revision, however, could
not get any relief and both the officers did not cause any
interference in the order of compulsory retirement passed on
23.12.2008. It is the further contention of the petitioner that
after he was acquitted from the criminal case registered against
him arising out of the same instance, though he again
preferred revision / review application before respondent no.5
praying to review the earlier orders in the light of the acquittal
recorded by the Criminal Court, Respondent no.5 did not
accept the request so made by the petitioner and rejected the
revision / review application vide his order dated 11.12.2013.
The petitioner has, thereafter, invoked the jurisdiction of this
court seeking quashment of all aforesaid orders and seeking his
reinstatement with all consequential benefits.
5. Shri Anand Vijay Jha, working as a Senior Divisional
Security Commissioner, Railway Protection Force, Mumbai
6 WP NO.1644 OF 2014
Central ( respondent No.5), has filed affidavit in reply for
himself and on behalf of respondent nos. 2 and 3. It is
contended in the said affidavit in reply that the charges levelled
against the petitioner were duly proved in the disciplinary
enquiry conducted against the petitioner and having regard to
the nature of the misconduct committed by the petitioner, the
punishment awarded to the petitioner of compulsory retirement
is proper and does not require any interference. It is further
contended that
ig merely because the petitioner has been
acquitted in the criminal case registered against him, the
petitioner cannot be exonerated from the charges levelled
against him in the departmental enquiry, which are held to
have been proved against him, in view of the settled law that
the the standard of proof required for holding a person guilty by
a criminal Court, and in an enquiry conducted by way of
disciplinary proceedings, is entirely different.
6. Mr. Swapnil Patil, learned Counsel appearing for the
petitioner, submitted that without there being any independent
evidence brought on record in the departmental proceedings,
the order of compulsory retirement came to be passed merely
on the basis of the fact that a criminal case was registered
against the petitioner for the offence punishable under Sections
7 WP NO.1644 OF 2014
392 read with Section 34 of IPC. Learned Counsel further
submitted that the departmental enquiry was conducted against
the petitioner in utter disregard of the principles of natural
justice. Learned Counsel further submitted that the witness
examined in the departmental enquiry, namely, Shri I.N.Tiwari
has merely reproduced the contents of the FIR registered
against the petitioner and he did not have any personal
knowledge as regards to the averments made in the FIR and as
such, no importance can be attached to such evidence.
Relying upon the judgment of the Honourable Apex Court in the
case of Roop Singh Negi v. Punjab National Bank and Ors
(cited supra), and more particularly paragraph nos. 10 and 17
of the said judgment, the learned Counsel submitted that the
evidence collected by the Investigating Officer in the criminal
case by itself cannot be treated as evidence in the disciplinary
proceedings and more particularly, the FIR cannot be treated as
the evidence unless the allegations made in the said FIR are
substantiated by the independent witnesses examined in that
regard.
Learned Counsel further submitted that though
there are circulars issued by the Railway Board to the effect
that if any employee is exonerated and / or acquitted in the
criminal case registered against him, and if on the same
8 WP NO.1644 OF 2014
charges and on the the basis of the same instance, if the
employee concerned would have been subjected to
departmental enquiry, the employee concerned has to be
reinstated in the services of the Railway Protection Force.
Learned Counsel submitted that in the case of the petitioner,
the said practice has not been followed though he has been
acquitted from the criminal case.
7.
Learned Counsel further submitted that, no action
has been taken against Shri Pagare, who was co-accused along
with the petitioner in the aforesaid criminal case, and he was
taken back in the services immediately in the year 2008 itself.
Learned Counsel further submitted that the petitioner has been
thus discriminated in the matter of awarding punishment.
Relying on the judgment of the Division Bench of this Court in
the case of P.M.Ratnakar Vs. UCO Bank, Mumbai and
others ( 2009 5) Mh.L.J.587), the learned Counsel submitted
that disciplinary authority is required to act in a fair manner in
the matter of awarding punishment.
8. Learned Counsel submitted that since beginning
and even in the departmental proceedings, it was contention of
the petitioner that he has been falsely implicated in the crime
9 WP NO.1644 OF 2014
concerned, however, the contention so raised by the petitioner
was not considered by the respondents. Learned counsel,
therefore, prayed for quashing the order of compulsory
retirement and the further orders passed by the appellate and
revisional authorities, confirming the said order.
9. Opposing the submissions made on behalf of the
petitioner, Shri ig Soman, learned Counsel appearing for
respondent nos. 2 and 3, referring to and relying upon the
judgment of the Honourable Apex Court in the case of Deputy
Inspector General of Police and another vs.
S.Samuthiram ( (2013) 1 SCC 598), submitted that the
acquittal of an employee by Criminal Court has no impact on
the disciplinary proceedings initiated by the Department.
Learned Counsel submitted that the petitioner has not been
honourably acquitted by the Criminal Court but only due to the
fact that most of the witnesses turned hostile and some
important prosecution witnesses were not examined that the
petitioner has been acquitted of the criminal case.
Learned Counsel submitted that in the case of Southern
Railway Officers Association and another vs. Union of
India and others ( (2009) 9 SCC 24), which was the matter
10 WP NO.1644 OF 2014
relating to the employees of Railway, the Honourable Apex
Court has held that the imposition of punishment in the
departmental enquiry is permissible despite acquittal in criminal
case.
Relying upon another judgment of the Honourable Apex
Court in the case of Avinash Sadashiv Bhosale (D) Thr.
L.Rs. v. Union of India and others ( 2012 AIR SCW 5835),
the learned Counsel for the respondents submitted that the
criminal proceedings and the departmental proceedings are
entirely different; they operate in different fields and have
different objectives; the object of the criminal trial is to inflict
appropriate punishment on the offender; whereas, the purpose
of the departmental enquiry is to deal with the delinquent in
accordance with the Service Rules. The degree of proof which
is necessary to order conviction is different from the degree of
proof necessary to record commission of delinquency. In
Criminal Law, the burden of proof is on the prosecution and
unless the prosecution is able to prove guilt of the accused
beyond reasonable doubt, he cannot be convicted by the Court
according to law, whereas in the departmental enquiry, penalty
can be imposed on the delinquent officer on the basis of
findings recorded on preponderance of the probabilities.
11 WP NO.1644 OF 2014
10. Learned Counsel submitted that though the
petitioner has been acquitted of the criminal case for want of
evidence, from the available material, the enquiry officer has,
however, held him guilty.
11. We have carefully perused the documents
pertaining to the departmental enquiry conducted against the
petitioner. Following two charges were levelled against the
petitioner:
" Shri Gautam Birade, Constable/NDB, E/23817 is
hereby charged for leaving Coy. HQ without permission
and action in a manner which brought discredit to the
reputation of Force in that:
He was permitted on 24/4/2008 AN to avail weekly
rest on 25/4/2008,but he left Coy. HQ NDB by train
No.2945 Dn. TO An without permission and intimation.
He was arrested by GRP/NDB vide CR 10/08 u/s.392, 34
IPC DTd. 25/4/2008, which brought discredit to the
reputation of Force.
Thus, he violated rule 146.4 of RPF Rules 1987. "
12. We also find it appropriate to reproduce here-in-
below the statement of allegation contained in the chargesheet
served upon the petitioner in the departmental enquiry, which
reads thus:
" As per report of IPF NDB, Constable Gautam
Birade of NDB post with escorting part arrived at
NDB by train No.2945 Dn on 24/4/2008. On his
12 WP NO.1644 OF 2014
request, he was permitted on 24/4/2008 AN to
avail weekly rest on 25/4/2008, but he left Coy.
HQ/NDB by train No.2945 Dn to AN, without
intimation and permission of competent authority.
On 24/4/2008 he was brought from AX to
DB by ASI/GRP-AN as ordered by PI/GRP NDB and
on 25/4/2008 he was arrested by GRP/NDB vide
CR No.10/08 u.s. 392, 34 of IPC dtd. 25/4/2008.
He was taken on remand by GRP/NDB and
recovery of loot amount Rs.2800/- was affected
from his residence. He was released on Bail by
Hon'ble JMFC/NDB on 28/4/2008 on the bail of
cash surety of Rs.15,000/-. The aforesaid
conduct of Constable Gautam Birade brought
discredit to the reputation of the Force.
Thus, he violated rule 146.4 of RPF Rules,
1987. "
13. The petitioner had submitted his reply to the
chargesheet served upon him wherein he has admitted the first
charge levelled against him that he left the Headquarters
without obtaining prior permission. The petitioner has,
however, provided certain explanation to which we have
referred here-in-above.
In so far as the second charge is concerned, it is the
contention of the petitioner that a total false FIR was registered
against him and he was noway concerned with the allegations
made in the said FIR. He has further stated that in March,
2008, he had some quarrel with one PSI of GRP, namely, Shri
Bhavsar and said Shri Bhavsar had threatened him that he will
13 WP NO.1644 OF 2014
teach a lesson to the petitioner and will certainly take revenge
on him as and when occasion arises. According to the
petitioner, the alleged FIR came to be registered at the instance
of said Shri Bhavsar. In the departmental enquiry conducted
against the petitioner only one witness was examined on behalf
of the department, namely, Mr. I.N.Tiwari, IPF/NDV. In the
report of the enquiry, the enquiry officer has referred to the
evidence of said witness. On perusal of the evidence of said
Shri Tiwari, it is revealed that the said witness has simply
reproduced the averments in the FIR and stated the further fact
that the petitioner was arrested, was produced before the
concerned Magistrate and was eventually released on bail.
14. The petitioner, admittedly, did not examine any
defense witness. The Enquiry Officer had framed following
points for determination:
" (a) Whether D/Constable Gautam Birade left the
HQ/NDB on 24/4/2008 w/o permission of competent
authority ?
(b) Whether D/Constable Gautam Birade was arrested
by GRP/NDB vide CR. No.10/08/ U/s 392, 34 IPC
Dtd.25/4/2008 and aforesaid conduct of D/Constable
Gautam Birade brought discredit to the reputation of the
force ?"
The Enquiry Officer has recorded his conclusion in following
words:
14 WP NO.1644 OF 2014
" In the light of evidence on record like statement of
prosecution witnesses and documents, I have come to
this conclusion that the charge levelled against
D/Constable Gautam Birade of NDB are "PROVED".
15. The question arises, can the evidence brought in
the departmental enquiry proceedings was sufficient to hold the
petitioner guilty of the charges levelled against him in the said
enquiry. As we have noted earlier, Shri Tiwari was not having
any personal knowledge of the alleged incident.
ig Whatever
was stated by him before the enquiry officer was mere
reproduction of the contents of the FIR registered against the
petitioner vide Crime No.10/2008 for the offenses punishable
under Section 392 read with Section 34 of IPC.
16. Though in the report of enquiry there is a reference
that the statements of Head Constables Rajdhar Baisane and
Kripashankar Sing were recorded, what was stated by these
witnesses is not even briefly mentioned in the report of enquiry.
Though it is settled law that the strict burden of proof required
to establish guilt in a Criminal Court is not required in a
disciplinary proceedings and preponderance of probability is
sufficient, it noway means that without there being any reliable,
independent evidence, the enquiry officer shall hold the
delinquent before him guilty merely on the basis of the FIR
15 WP NO.1644 OF 2014
registered against the said delinquent and the statements
recorded of the witnesses during the course of investigation of
the said crime.
17. As held by the Honourable Apex Court in the case of
Roop Singh Negi v. Punjab National Bank and Ors (cited supra),
the purported evidence collected during the investigation by the
investigating officer in a crime registered against the delinquent
by itself could not be treated to be the evidence in the
disciplinary proceedings. We find it appropriate to reproduce
hereinbelow paragraph nos. 10 and 17 of the aforesaid
judgment, which are specifically relied on by the learned
Counsel for the petitioner:
"10. Indisputably, a departmental proceeding
is a quasi judicial proceeding. The Enquiry Officer
performs a quasi judicial function. The charges
leveled against the delinquent officer must be found
to have been proved. The enquiry officer has a duty
to arrive at a finding upon taking into consideration
the materials brought on record by the parties. The
purported evidence collected during investigation by
the Investigating Officer against all the accused by
itself could not be treated to be evidence in the
disciplinary proceeding. No witness was examined to
prove the said documents. The management
witnesses merely tendered the documents and did
not prove the contents thereof. Reliance, inter alia,
was placed by the Enquiry Officer on the FIR which
could not have been treated as evidence. We have
noticed hereinbefore that the only basic evidence
whereupon reliance has been placed by the Enquiry
Officer was the purported confession made by the
appellant before the police. According to the
16 WP NO.1644 OF 2014
appellant, he was forced to sign on the said
confession, as he was tortured in the police station.
Appellant being an employee of the bank, the said
confession should have been proved. Some evidence
should have been brought on record to show that he
had indulged in stealing the bank draft book.
Admittedly, there was no direct evidence. Even there
was no indirect evidence. The tenor of the report
demonstrates that the Enquiry Officer had made up
his mind to find him guilty as otherwise he would not
have proceeded on the basis that the offence was
committed in such a manner that no evidence was
left.
17. Furthermore, the order of the disciplinary
authority as also the appellate authority are not
supported by any reason. As the orders passed by them
have severe civil consequences, appropriate reasons
should have been assigned. If the enquiry officer had
relied upon the confession made by the appellant, there
was no reason as to why the order of discharge passed by
the Criminal Court on the basis of self-same evidence
should not have been taken into consideration. The
materials brought on record pointing out the guilt are
required to be proved. A decision must be arrived at on
some evidence, which is legally admissible. The provisions
of the Evidence Act may not be applicable in a
departmental proceeding but the principles of natural
justice are. As the report of the Enquiry Officer was based
on merely ipse dixit as also surmises and conjectures, the
same could not have been sustained. The inferences
drawn by the Enquiry Officer apparently were not
supported by any evidence. Suspicion, as is well known,
however high may be, can under no circumstances be
held to be a substitute for legal proof.
18. In the enquiry conducted against the petitioner,
admittedly, no witness has been examined to prove the
contents of the FIR or the other documents having part of the
criminal proceedings in the concerned criminal case registered
17 WP NO.1644 OF 2014
against the petitioner. Shri Tiwari, on whose evidence the
enquiry officer has relied upon for holding the petitioner guilty,
had only tendered the copy of the FIR and the related
documents, however, did not prove the contents of the said
documents. In fact, the FIR or the other related documents
could not have been treated as the evidence. It is noticed by
us that merely relying on the unproved contents of the FIR and
the further undisputed fact that the petitioner was arrested in
the said crime and was released on bail by the concerned
Magistrate, the enquiry officer has recorded a conclusion that
the petitioner brought C.R.P.F. in disrepute. It was sought to
be canvassed by the learned Counsel appearing for the
respondents, referring to the averments in the impugned orders
that since the Central Railway Protection Force is an institute
cast with the duty to take care of person, property and safety
of the citizens, the employees working in the said institution
must be above board and even a slight suspicion about their
conduct can damage the reputation and the faith reposed by
the public at large in the said institution. This contention is no
doubt absolutely sound. However, as has been held by the
Honourable Supreme Court, way back in the matter of Union
of India Vs. H.S.Goyal ( 1964 (4) SCR Page 918), even in
such cases, the test which can be legitimately applied is: `Is
18 WP NO.1644 OF 2014
there any evidence on which a finding can be made against the
delinquent holding that the charge levelled against him is
proved against him'.
19. After having carefully considered the record of the
enquiry conducted against the petitioner, even if the evidence
laid in the enquiry is accepted as true, it does not appear to us
that on the basis of such evidence, a finding could have been
recorded, holding the petitioner guilty of the charges levelled
against him.
20. We reiterate that filing on record the copy of the
FIR was not enough to hold the petitioner guilty. On the basis
of the unproved contents of the FIR in a criminal case, the
petitioner could not have been held guilty in the departmental
proceedings unless there is some evidence to indicate the
possibility of commission of any such offense by the delinquent
as alleged in the FIR. In absence of any such evidence, even
the principle of preponderance of probability also cannot be
applied. Admittedly, no witness was examined to prove the
contents of the FIR. At least some evidence should have been
brought on record to show that the petitioner had indulged in
robbing the passengers, who were allegedly travelling without
tickets, and were apprehended by Shri Sunil Pagare, the T.C.,
19 WP NO.1644 OF 2014
Admittedly, there was no direct evidence; even, there was no
indirect evidence. We have already noted here-in-above that
the only evidence which has been relied upon by the Enquiry
Officer was the copy of the FIR tendered by witness Tiwari in
the enquiry proceedings.
21. In the matter of Roop Singh Negi v. Punjab
National Bank and Ors (cited supra), the appellant therein
was held guilty in the departmental proceedings on his
purported confession made by him before the Police. It was
the contention of the said appellant that he was forced to sign
on the said confession as he was tortured in the Police Station.
The Honourable Apex Court, while allowing the said appeal,
held that the said appellant being employee of the Bank, the
said confession should have been proved, some evidence
should have been brought on record to show that he had
indulged in stealing the Bank Draft Book. The Honourable
Apex Court has observed that the management witnesses
merely tendered the document, that of confession of the
appellant therein recorded by the Police but, did not prove the
contents thereof. In the premise of the facts aforesaid, the
Honourable Apex Court set aside the decision of the enquiry
officer whereby he had held the said appellant guilty of the
charges levelled against him.
20 WP NO.1644 OF 2014
22. In the instant case also, it is the contention of the
petitioner that he has been falsely implicated in the alleged
crime at the instance of one PSI Bhavsar with whom he had
some quarrel in the past. In such circumstances, as noted by
us earlier, the petitioner could not have been held guilty by the
enquiry officer merely on the basis of the FIR registered against
the petitioner. According to us, there was no evidence at all
before the enquiry officer to hold the petitioner guilty. As has
been observed by the Honourable Apex Court in the case of
Roop Singh Negi v. Punjab National Bank and Ors (cited
supra), the enquiry officer must arrive at the decision on the
basis of some evidence which is legally admissible. The
provisions of the Evidence Act may not be applicable in a
departmental proceedings but the principles of natural justice
are. Since the report of the enquiry officer is based on merely
ipse dixit, as also surmises and conjectures, the same cannot
be sustained. The inferences drawn by the enquiry officer,
apparently, are not supported by any legally admissible
evidence. Suspicion, as is well known, however high it may be,
can, under no circumstances, be held to be a substitute for
legal proof.
23. The petitioner cannot be held to have brought
C.R.P.F. in disrepute only on the basis of registration of an
21 WP NO.1644 OF 2014
offense against him. Possibility of filing a false case against
any person cannot be ruled out. Unless there is some more
evidence, on the basis of which a prudent man can form an
opinion, as about involvement of the person concerned in the
crime registered against him, he cannot be held guilty for the
offenses alleged against him in the crime concerned. We have
discussed here-in-before that no such evidence was brought on
record in the proceedings of enquiry. Arrest of the petitioner
in the crime registered against him also cannot be given much
importance and the petitioner cannot be said to have caused
damage to the image of C.R.P.F. for the reason that once a
crime is registered against a person for the cognizable and non
bailable offense, he is bound to be arrested by the Police. As
such, the conclusion recorded by the enquiry officer that
registration of a crime against the petitioner and his arrest in
the said crime did bring the C.R.P.F. in disrepute cannot be
subscribed.
24. We have referred to the conclusion recorded by the
enquiry officer here-in-before. The enquiry officer has recorded
that, "In the light of evidence on record like statement of
prosecution witnesses and documents, I have come to this
conclusion that the charge levelled against D/Constable Gautam
Birade of NDB are "PROVED". Admittedly, the evidence
22 WP NO.1644 OF 2014
adduced by the prosecution witnesses was `hearsay'. The
document which was produced on record by the prosecution
witness was the copy of the FIR. The prosecution witness was
not having having any personal knowledge of the alleged
incident. None of the other witnesses whose names were
revealing from the Police record were examined in the
departmental proceedings. In the circumstances, it is quite
clear that the enquiry officer has accepted the contents of the
FIR to be gospel truth and on that basis held the petitioner
guilty. In no case such finding can be supported.
25. Further, the disciplinary authority has also failed in
appreciating that merely on the basis of a crime registered
against the petitioner for an offense under Section 392
registered against him, the petitioner could not have been held
guilty unless such trial of the said criminal case is culminated
into conviction of the delinquent or such independent
dependable evidence is brought on record in the enquiry
proceedings indicating the possibility of the involvement of the
accused in commission of the offenses alleged against him in
the crime concerned. Though the disciplinary authority has
recorded that, "I find from the relevant records that he was
found indulging in corrupt practices of looting of the passengers
as a result of which he was arrested by GRP/NDB vide CR 10/08
23 WP NO.1644 OF 2014
U/s. 392, 34 IPC" , from the material on record it is undisputed
that the record brought in the enquiry proceedings was the
copy of the FIR and other connected Police papers which were
part of Crime No.10/2008 registered against the petitioner,
contents of which were admittedly not proved.
26. We, thus, find that without proper application
of mind, the disciplinary authority blindly accepted the report of
the enquiry officer and awarded the punishment of compulsory
retirement to the petitioner. Even in an appeal preferred by
the petitioner with the appellate authority and eventually the
revision application preferred by him before the Director
Genera, RPF, Ministry of Railways, appears to have been passed
mechanically, thereby confirming the order passed by the
disciplinary authority.
27. It is a matter of record that after being acquitted
from the concerned criminal case, the petitioner again
approached the Director General, RPF, Ministry of Railways,
with a prayer to review the earlier decision of compulsorily
retiring him from the services of Cr.P.F., however, the said
revision was also turned down relying upon one letter of
Railway Board No.E (D & A) 95-RG.6-4, dated 7.6.1995. The
said Board's letter provides that if the facts, circumstances and
24 WP NO.1644 OF 2014
the charges in the departmental proceedings are exactly
identical to those in the criminal case and the employee is
exonerated / acquitted in the criminal case on merits ( without
benefit of doubt, or on technical grounds), then the Department
case may be reviewed if the employee concerned makes a
representation in this regard. In the affidavit in reply filed by
the respondents, the same stand is taken by them.
The stand so taken in the aforesaid letter / circular dated
7.6.1995 appears to be contrary to the earlier communication
dated 18th of June, 1985, issued by the Railway Board on the
said issue, paragraph no.3 of which reads as under:
"3. The department of personel has been
consulted and it is clarified that while a distinction can be
made between cases in which a court sets aside an order
passed by an authority on technical grounds like failure to
follow the prescribed procedure and a case in which a
person is acquitted by a Court in cases of acquittal
themselves, no further distinction is possible as "Hon'ble
acquittal" or otherwise. An acquittal by a court is,
acquittal from the charges framed against the accused
and it has to be treated as such. In the circumstances,
cases of acquittal by a court of law should be viewed as
such and they should be distinguished from cases in
which courts set aside orders of Government on technical
grounds like failure to follow the prescribed procedure,
failure to fulfill the requirements of article 311 of the
Constitution etc. "
Otherwise also, we do not find the reasoning given by the
reviewing authority to be legally sound.
25 WP NO.1644 OF 2014
28. For the afore mentioned reasons, the order dated
23rd December, 1998, whereby the petitioner has been
compulsorily retired, cannot be sustained and deserves to be
set aside. It is accordingly set aside. Needless to state that,
once the original order of compulsory retirement is set aside,
the orders dated 21.8.2009, 15.10.2010 and 11.12.2013,
passed by the respective officers in appeal / revision shall be
deemed to have been set aside. In the result, though we are
directing the respondents to reinstate the petitioner with
continuity of service, we are not inclined to grant the relief of
backwages or other monetary benefits of the intervening period
to the petitioner for the reason that the petitioner has
approached this Court belatedly. Further, the petitioner has
failed in making out any case and bringing on record any
substantive evidence proving his entitlement for the relief of
backwages. More importantly, during the course of hearing of
this petition the learned Counsel for the petitioner, on
instructions, had made a submission that in the event of his
reinstatement, the petitioner would not claim the backwages or
other monetary benefits of the intervening period and would be
satisfied with the relief of reinstatement with continuity of
service. In the circumstances, we direct the respondents to
26 WP NO.1644 OF 2014
reinstate the petitioner with continuity of service.
Rule made absolute in above terms. No order as to costs.
(P.R.BORA) (S.S.SHINDE)
JUDGE JUDGE
...
AGP/1644-14wp
