Rajendra Kumar Dubey vs The Director General Of Police ...
2017 Latest Caselaw 3889 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH, NAGPUR

                   WRIT PETITION NO.941 OF 2009


Rajendra Kumar Dubey,
S/o Shri Murlidhar Dubey,
Aged 43 years,
Occupation - Nil,
R/o House No.1860,
Ward No.15, Galli No.4,
Khajurwali Gali, Nishad Pura Road,
New Block Kaichi Chola,
Bhopal (MP).                                            ... Petitioner


       Versus


1.     The Director General of Police,
       Railway Protection Force,
       Rail Bhawan,
       New Delhi.

2.     Inspector General cum Chief
       Security Commissioner,
       Railway Protection Force,
       Parcel Building,
       3rd Floor, Chhatrapati Shivaji
       Termines, Mumbai.

3.     Senior Divisional Security
       Commissioner, Railway Protection
       Force, Kingsway, Nagpur.                         ... Respondents




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Shri P.P. Kotwal, Advocate for Petitioner.
Shri Nitin Lambat, Advocate for Respondents.



    CORAM : R.K. DESHPANDE & MRS. SWAPNA JOSHI, JJ.

    DATE OF RESERVING THE JUDGMENT       : 28th June, 2017 

    DATE OF PRONOUNCING THE JUDGMENT : 3rd July, 2017


    JUDGMENT (Per R.K. DESHPANDE, J.) :

1. The petitioner was removed from service from the post of

Ad hoc Sub-Inspector, Pulgaon Station (Outpost) by an order

dated 12-7-2007 issued by the Senior Divisional Security

Commissioner, Railway Protection Force, Nagpur, on the basis of

the enquiry report holding the petitioner guilty of certain charges of

misconduct. This order was converted into one of imposing the

punishment of compulsory retirement from service, by an order

dated 18-12-2007 passed in appeal by the Chief Security

Commissioner, Railway Protection Force, Mumbai CST . Both these

orders are, therefore, subject-matter of challenge in this petition.

2. The petitioner was initially appointed as Constable in

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Railway Protection Force at Jhansi on 20-9-1984. He was

promoted as Ad hoc Sub-Inspector, Pulgaon Station (Outpost) on

28-2-2006. The petitioner proceeded on sick leave from 3-12-2006

to 14-12-2006, and on 11-12-2006, he was placed under

suspension with immediate effect pending enquiry in respect of the

charges proposed to be levelled against him of failing to detect the

crime cases.

3. On 4-1-2007, the petitioner was served with the

chargesheet containing the charges (1)(A) to (1)(C) and (2). The

petitioner denied the charges and made a request for appointment

of next friend to defend. He also demanded the chargesheet in

Hindi along with other documents on which the charges were

based. This was denied to him. One D.K. Pilley, Inspector,

Divisional Store, Nagpur, was appointed as Enquiry Officer. The

petitioner submitted his final statement of defence to the Enquiry

Officer on 23-4-2007, which was forwarded to the petitioner along

with the show cause notice on 23-6-2007.

4. On 12-7-2007, the order of punishment of removal from

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service was issued to the petitioner by the Senior Divisional

Security Commissioner, Railway Protection Force, Nagpur. The

petitioner preferred an appeal before the DIG-cum-Additional Chief

Security Commissioner, Railway Protection Force, CST, Mumbai.

On 26-7-2007, the punishment of removal from service was

reduced to reversion in rank for a period of six months without

future effect, by an order dated 5-9-2007.

5. The petitioner was issued a show cause notice by the Chief

Security Commissioner, Railway Protection Force, Mumbai, on

23-10-2007 calling upon his explanation as to why the punishment

should be enhanced. The petitioner submitted his explanation on

6-11-2007, and ultimately the Chief Security Commissioner

imposed the punishment of compulsory retirement from service on

18-12-2007 with immediate effect. The Director General of

Railway Protection Force, Railway Board, on appeal preferred by

the petitioner, maintained the said order on 29-5-2008.

6. The charges levelled against the petitioner are reproduced

below :

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"(1) "GROSS NEGLECT OF DUTY" In that you failed to prevent and detect with due Promptitude and diligence:-

(A) The theft of 02 Nos. of primary injections Kit Valued Rs.28000/- approx, from traction Sub-Station located at Km.No.664/20-24 near Badnera Railway Station reported on 04.04.2006.

                (B)    The   theft   of   19   CST-9   Plates   kept   at  
                Km.No.678/13-15             between         Railway            Station  

Malkhed-Timtala Reported on 21/11/2006 and to submit the FIR and case diary related to the said case to the office of Sr. DSC/RPF/Nagpur.

(C) The theft of one Coach trolley of Lot No.14-04-06-02-2281 kept at Km. No.672/32 between Railway Stations Timtala-Malkhed reported on 05/12/2006.

(2) "ABUSE OF AUTHORITY" In that you used unnecessary Violence toward a passenger named Shaikh Ibrahim at the waiting room of Pulgaon Railway Station on 31/10/2006."

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7. The petitioner is exonerated in respect of Charge No. (1)

(A), and the Enquiry Officer held that it is not proved. Hence it is

not necessary to discuss the same. So far as Charge No.(1)(B) is

concerned, it is alleged against the petitioner that he did not submit

the FIR and case diary related to the said case of theft of 19 CST-9

Plates kept between the Railway Stations Malkhed and Timtala

reported on 21-11-2006 to the office of Senior Divisional Security

Commissioner, Railway Protection Force, Nagpur, and hence the

petitioner has violated the provision contained in Rule 146.2(i) of

the Railway Protection Force Rules, 1987.

8. In respect of Charge No.(1)(C), it is alleged that the

petitioner was Incharge of RPF Chowki, Pulgaon, under whose

jurisdiction two condemned coach trolleys of Lot

No.14/04/06/02/2281 were to be handed over by him to the

trader, who purchased the same, but only one coach trolley was

found at the place between Railway Stations Timtala - Malkhed at

Km. No.672/32. This was found on 4-12-2006, and the petitioner

proceeded on sick leave on earlier date, i.e. 3-12-2006, without

informing the Officer Incharge, Police Station Wardha. This has

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violated the provision of Rule 146.2(i) of the Railway Protection

Force Rules.

9. In respect of Charge No.(2), it is alleged against the

petitioner that on 31-10-2006, while working as Incharge of RPF

Chowki, Pulgaon, he had beaten one passenger, named Shaikh

Ibrahim, resident of Dagripura, Chandur Railway, with a lathi while

he was resting in the waiting room of Pulgaon Railway Station and

he was driven out of the Station premises, and his luggage was

stolen. The complaint was recorded in the complaint book of

Pulgaon Railway Station on 31-10-2006. A morcha was taken out

in connection with harassment to the public by him in front of

Pulgaon Railway Station. The petitioner was charged for violating

the provision contained in Rule 146.8(b) of the Railway Protection

Force Rules.

10. We have heard the learned counsels appearing for the

parties and have gone through the entire record, including the

evidence led in support of the charges which are proved.

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11. Charge No.(1)(B) relates to theft of 19 CST-9 Plates from

Malkhed Yard within the jurisdiction of the petitioner. The

Inspector Incharge of Wardha Police Station, Nirmal Toppo, was

examined as PW 1, and he stated that he attended the spot on

26-11-2006 and found that all these CST-9 Plates along with tie

bars were intact, except six tie bars were found without CST-9

Plates, i.e. twelve CST-9 Plates, valued at Rs.4,800/- approximately,

were stolen. He stated to have prepared the spot panchanama at

Exhibit 15, which was signed by all railway officials, including the

petitioner. On the basis of this evidence, it is held by the Enquiry

Officer that there was a theft, which was not detected by the

petitioner. It is further held on the basis of his evidence that FIR in

connection with Crime No.7/06 under Section 3(a) of the Railway

Property (Unlawful Possession) Act, 1966 was not signed by the

petitioner, which is marked as Exhibit 13. The petitioner is held to

have violated Rule 146.2(i) of Railway Protection Rules.

12. In respect of Charge No.(1)(C) regarding theft of one

coach trolley kept at Km. No.672/32 between Railway Stations

Timtala-Malkhed reported on 5-12-2006, the evidence of PW 1

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Nirmal Toppo was relied on by the Enquiry Officer, who stated to

have attended the spot on 28-11-2006 along with Senior Section

Engineer, and found one trolly missing and search was conducted,

but the trolley was not traced, hence the panchanama at Exhibit 11

was prepared along with the theft memo dated 30-11-2006 at

Exhibit 12, which has proved the theft. It is further held that

actually the handing over of coach trolley was marked to the

petitioner on 2-11-2006 and on knowing that one trolley was

missing and to avoid further complications, the petitioner reported

sick on 3-11-2006 without obtaining sick memo from RPF Thana,

Wardha.

13. PW 2 M.P. Mishra, Assistant Sub-Inspector, RPF Thana,

Wardha, was also examined in support of Charge No.(1)(C) as

witness, who stated that as per the instructions from Officer

Incharge, RPF Thana, Wardha, he attended the spot on 4-12-2006

for having over of two condemned trolleys along with Senior

Divisional Security Commissioner, Nagpur, Sanjay Singh, and he

found that the trolley was missing and also found dragging marks

of the wheel on dry land of 4 to 5 meters ahead, and hence two

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independent witnesses were summoned and the panchanama at

Exhibit 2 was prepared, duly signed by all the witnesses, and it is

accordingly proved to be missing, and one trolley was handed over

to the purchaser on 4-12-2006. The petitioner was accordingly

held guilty of violating the provision contained in Rule 146.2(i) of

the Railway Protection Force Rules.

14. In respect of Charge No.(2), the complaint at Exhibit 23

dated 31-12-2007 was relied on and it was held that the petitioner

used unnecessary violence toward a passenger, named Shaikh

Ibrahim, at the waiting room of Pulgaon Railway Station on

31-10-2006. and this charge is proved against the petitioner of

violating Rule 146.8(b) of the Railway Protection Force Rules.

15. The Senior Divisional Security Commissioner, Railway

Protection Force, Central Railway, Nagpur, who heard and decided

the appeal preferred by the petitioner against the order of removal

from service, records his finding in respect of Charges No.(1)(B),

(1)(C) and (2) in his order dated 5-9-2007 as under :

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" The charge 1(B) relates to theft of 19 CST-9 plates in a section in his jurisdiction but on further verification, the shortage was only of 6 Pairs of CST-9 plates valued Rs.4800/-. This was not a Special Report case and such theft are not uncommon. The charge 1(C) relates to the theft of one coach trolley valued Rs.28,000/- in a lot of scrap which was auctioned. This was a Special Report case and it came to notice at the time of delivery of the scrap. These two charges proved during the enquiry are not so serious so as to warrant the extreme punishment of removal from service as there was no imputation of connivance or corrupt practices against him but he was only charged for gross neglect of duty.

As far as charge 2 is concerned, I do not agree with the findings that the charge is proved without reasonable doubt on the basis of evidence on record. There is no witness in support of this charge and the only relied upon the document is a complaint registered against the appellant in the complaint book of Pulgaon railway station by one Shaikh Ibrahim. It is surprising that the charge has been proved only on the basis of this evidence without holding any preliminary enquiry and without even examining the complainant. According to the appellant, the complainant was sleeping in Waiting Room without valid reasons as he had already completed his journey whereas according to

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complainant he was waiting for a train and taking rest in Waiting Room. Thus it was necessary to examine the complainant and to afford opportunity to the appellant to cross examine the complainant by making him prosecution witness. But none of this was done. The only other evidence in support of this charge is a report of Inspector RPF Wardha mentioning a complaint lodged at the Pulgaon Police Station about the incident. But as per his letter, there is no complaint registered but only an entry made in the Roznamacha that as per a confidential information, the appellant was beating people and collecting money at Pulgaon Railway Station, that there was discontentment amongst people and the local Shiv Sena District Chief held a meeting where it was proposed to hold dharana, demonstration and agitation for transfer of the appellant from Pulgaon Railway Station. This is not a complaint lodged and therefore has no evidentiary value in support of this charge.

There is another discrepancy pointed out by the appellant that the charge sheet was issued to him as Sub-Inspector but the punishment was awarded to him as ASI. The Disciplinary Authority is not competent to remove from service an official of the rank of Sub-Inspector. Even if he was adhoc Sub-Inspector in fact should have been clarified in this order imposing punishment but this was not

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done.

On the basis of reasons mentioned above and considering the fact that according to me, the charge No.2 is not proved. I reduce the punishment of removal from service to that of reversion in rank for a period of six months without future effect."

16. The matter was moved before the Chief Security

Commissioner, Railway Protection Force, Mumbai, and it was urged

that the petitioner was arrested by CBI, Nagpur, while under

suspension and a major chargesheet for the same is pending, his

further continuance in service will deteriorate the image of the

Railway Protection Force, and hence claimed review of the matter

passed by the Additional Chief Security Commissioner. A show

cause notice dated 23-10-2007 was issued, invoking the provision

of Rule 219.4 of the Railway Protection Force Rules to the

petitioner for compulsory retirement from service. The petitioner

submitted his reply on 6-11-2007. After reproducing the stand

taken by the parties, the order dated 5-12-2007 passed by the Chief

Security Commissioner deals with it as under :

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" ... The charges levelled against the party charged are very serious in the nature and damaging reputation of the force and have been proved beyond doubt. In view of the gravity of the charges, gross neglect of duty and abuse of authority by the party charged, deserve the punishment of stiff major penalty of higher order and accordingly I impose the punishment of compulsory retirement from service with immediate effect. ..."

17. The petitioner preferred an appeal to the Director General

of Railway Protection Force, Railway Board, who passed an order

on 19/21-5-2008, maintaining the order passed in appeal. The

relevant consideration in the order is reproduced below :

" ... I have carefully considered the appeal filed by the petitioner along with all the relevant documents available on record and found that the charges are well proved. Nothing fresh has been brought on record other than what has already been analyzed and evaluated to merit any intervention in the matter. It appears that the procedure prescribed in the rules for the inquiry was followed and the party charged was given adequate and reasonable

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opportunity to defend himself. The appellant authority, while entertaining his appeal, has rightly enhanced the punishment in accordance with the RPF Rules.

The punishment is commensurate with the gravity of misconduct committed by the appellant. Hence, the appeal, which is devoid of any merit, is rejected."

18. We would like to deal with Charge No.(1)(B). It is in

relation to theft of 19 CST-9 Plates between Malkhed and Timtala

Railway Stations reported on 21-11-2006. It is not in dispute that

the theft was detected and the offence was registered vide Crime

No.7/06 in the City Police Station at Chandur on 21-11-2006 itself.

The accused persons were apprehended and the material was

recovered from them and it is admitted by Nirmal Toppo, who was

examined as witness. The theft was brought to the notice of the

petitioner, who was Incharge of RPF Chowki, Pulgaon, on

23-11-2006 by one Gautam, working as permanent Railway

Inspector under the Senior Divisional Engineer - an employee of

the Railways. The stand of the petitioner was that he was

witnessing the delivery of scrap at Timtala on 23-11-2006, and on

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24-11-2006, he insisted Gautam to attend the spot along with him.

However, Gautam expressed that he will attend the spot on

25-11-2006. Accordingly, the petitioner attended the spot on

25-11-2006 and drew a panchanama with site map recording a fact

that 9 bars of CST-9 Plates costing Rs.20,520/- were short. Nirmal

Toppo accepts in response to question No.11 that such panchanama

was prepared on 25-11-2006 by the petitioner. The FIR Book is

maintained at Police Station Wardha. The only finding is that

though the petitioner prepared the FIR in the prescribed format, he

did not put his signature.

19. Nirmal Toppo, a witness, who was Incharge of RPF Thana,

Wardha, again visited the spot on 26-11-2006 and the second

panchanama was prepared showing theft of only 6 bars of CST-9

Plates costing Rs.4,800/-. It has come on record that the intimation

was forwarded from RPF Thana, Wardha and it was received by the

office of Senior Divisional Security Commissioner, Railway

Protection Force, Nagpur on 18-12-2006. The petitioner was on

leave from 4-12-2006 up to 14-12-2006. The petitioner gave an

explanation that he was Incharge of RPF Chowki, Pulgaon under

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RPF, Police Station Wardha, and the area under his control was of

100 kms. consisting of Pulgaon, Dhamangaon, Chandur, Malkhed,

Timtala and Badnera Outer. He was suffering from shortage of

staff and there was no intention to neglect and detect with due

promptitude and diligence. It was also the stand taken that the

signature on FIR was an inadvertent mistake and Nirmal Toppo

could have asked the petitioner to sign FIR, before conducting

second panchanama on 26-11-2006.

20. We fail to understand as to how the petitioner can be held

guilty of not detecting the theft which occurred on 21-11-2006. If

the finding of the Enquiry Officer is that the theft was detected by

Nirmal Toppo for the first time on 26-11-2006, then it is contrary to

the aforesaid factual position on record. We also fail to understand

as to how the petitioner was duty bound to report this theft to the

Head Office at Nagpur. The petitioner was Incharge of Police

Chowky, Pulgaon under RPF Thana, Wardha. He reported the

matter to RPF Thana, Wardha to his superior Nirmal Toppo.

21. We find that this aspect was dealt with by the Senior

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Divisional Security Commissioner in his order dated 5-9-2007

holding that such thefts are common and in the absence of any

pecuniary loss being caused, the act was not so serious so as to

warrant the extreme punishment of removal from service. He took

into consideration that there was no imputation of connivance or

corrupt practices against the petitioner. The Chief Security

Commissioner and the Director General of Railway Protection Force

did not consider the stand taken by the petitioner and the finding

recorded by the Senior Divisional Security Commissioner. The

finding by these two authorities that the charge was of serious in

nature and that the petitioner was arrested by CBI, Nagpur, and

against him, a major chargesheet was pending and his continuance

in service was deteriorating the image of the Railway Protection

Force, is without framing any such charge, allegation or even

material on record. This was an irrelevant consideration to judge

the findings recorded by the Senior Divisional Security

Commissioner. At any rate, the only charge was that the petitioner

did not submit the FIR and case diary to the office of

Sr. DSC/RPF/Nagpur and it is not the finding that the petitioner

before proceeding on leave with effect from 3-12-2006 did not

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submit FIR and case diary to RPF Thana at Wardha. The fact

remains that on 18-12-2006, FIR and case diary were received by

Sr. DSC/RPF/Nagpur in the absence of the petitioner. We,

therefore, find that the order dated 5-9-2007 passed by the Senior

Divisional Security Commissioner could not have been interfered

with by both the superior/appellate authorities.

22. In respect of Charge No.(1)(C) regarding theft of one

coach trolley kept at Km.672/32 between Railway Stations Timtala

and Malkhed, it is alleged that the petitioner failed to prevent and

detect with due promptitude and diligence such theft which was

detected on 5-12-2006 when the petitioner was on leave. Though

the charge and the allegations are not so clear, we presume the

case that the petitioner was knowing the theft of this trolley earlier

and knowing this well he proceeded on leave on 3-12-2006 without

informing to the Officer Incharge, Police Station Wardha. The

Enquiry Officer has placed reliance upon the evidence of one

M.P. Mishra, Assistant Sub-Inspector, RPF Thana, Wardha.

23. The petitioner was Incharge of Pulgaon Police Chowki,

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under whose jurisdiction the theft of trolley had occurred. There is

no evidence on record to show that the coach trolleys were to be

handed over by the petitioner to the trader on 2-11-2006, as

alleged in the statement of imputation. After reading the charge,

an impression is created that the theft was actually detected on

24-11-2006, but it was reported to RPF Thana, Wardha for the first

time on 5-12-2006. It is the finding of the Enquiry Officer that the

delivery of two coach trolleys was fixed on 24-11-2006 and

M.P. Mishra, Assistant Sub-Inspector, RPF Thana, Wardha reached

the spot on the said date when he found that there was a theft of

one coach trolley. The trolleys could not be delivered to the

purchaser on that date, but '28-11-2006' was the date fixed for

delivery. Due to postponement application furnished by the trader,

the delivery was fixed on 4-12-2006.

24. The Officer Incharge, RPF Thana, Wardha, Nirmal Toppo,

attended the spot on 28-11-2006 and found only one trolley on the

spot. He got the panchanama prepared and directed the petitioner

to attend and witness the delivery fixed for 4-12-2006. The

petitioner proceeded on leave on 3-12-2006. In answer to question

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No.1, Mishra stated that because of scarcity of time, he could not

go on the spot on 24-11-2006, i.e. the date on which the trolleys

were to be delivered. But the report dated 8-12-2006 addressed to

Sr. DSC-Nagpur (Exhibit 9) states that Mishra attended the spot on

24-11-2006 and found one trolley missing. The fact remains that if

the theft of trolley was detected not by the petitioner but by Mishra

or Nirmal Toppo prior to the petitioner proceeding on leave on

3-12-2006, the question of delay in reporting such theft by the

petitioner till 5-12-2006, loses its significance.

25. The Senior Divisional Security Commissioner in his order

dated 5-9-2007 records the finding that Charge No.(1)(C) relates to

theft of one coach trolley, valued at Rs.28,000/-, in a lot of scrap,

which was auctioned. This was a special report case and it came to

notice at the time of delivery of scrap. The order holds that the

charge was not of so serious in nature so as to warrant extreme

punishment of removal from service, as there was no imputation of

connivance or corrupt practices. This aspect has not been touched

in the orders dated 5-12-2007 and 19/21-5-2008 passed by the

appellate authorities. The stand of the petitioner that the area

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under his control was of 100 kms., consisting of Pulgaon,

Dhamangaon, Chanda, Malkhed, Timtala and Badnera Outer, and

he was suffering from shortage of staff, has not been considered.

In the absence of any such specific charge and the statement of

allegations for preventing theft of one trolley, the finding recorded

by the Senior Divisional Security Commissioner could not have

been disturbed.

26. In respect of Charge No.2, we find that the material

witness was the passenger Shaikh Ibrahim to whom it is alleged

that the petitioner had beaten. This witness was not examined.

The reliance was only on the basis of the complaint registered. The

stand of the petitioner was that Shaikh Ibrahim travelled

Ex Chandur to Pulgaon and was the resident of Chandur and,

therefore, upon completing his journey, he had no right to stay in

the waiting room without obtaining permission from ASM on duty.

He was sleeping in the waiting room, and when he was driven out,

he went to autorickshawalas and made a complaint. The

autorickshawalas, who were already annoyed with the petitioner,

instigated Shaikh Ibrahim to lodge a complaint. The

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autorickshawalas gathered and took out the morcha.

27. The complainant Shaikh Ibrahim was not examined as

witness. In such a situation, the stand of the petitioner was

required to be considered that he was not afforded an opportunity

to cross-examine Shaikh Ibrahim, the complainant. The stand of

the petitioner was accepted by Sr. DSO, who considered this aspect

of the matter in detail, but the appellate authority has failed to

apply its mind to these aspects of the matter.

28. At any rate, we concur with the view taken by the Senior

Divisional Security Commissioner, Railway Protection Force, in his

order dated 5-9-2007 holding that the punishment of removal from

service was totally disproportionate to the acts of misconduct

alleged and proved against the petitioner. The appellate authority

has, therefore, committed an error in holding that the charges

levelled and proved against the petitioner were of serious in nature,

that they were damaging the image of the Railway Protection

Force, and that the punishment was commensurate with the gravity

of misconduct committed by the petitioner. The petitioner could

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not have been removed from service and is required to be

reinstated in service with the order dated 5-9-2007 passed by the

Senior Divisional Security Commissioner, Railway Protection Force,

Nagpur, which we maintain. The petitioner would, therefore, be

entitled to all consequential benefits, including the back wages to

the extent of 50% on the reverted post.

29. In the result, the petition is partly allowed.

The order dated 12-7-2007 passed by the Senior Divisional

Security Commissioner, Railway Protection Force, Nagpur,

removing the petitioner from service, is hereby quashed and set

aside along with the order dated 18-12-2007 passed by the Chief

Security Commissioner, Railway Protection Force, Mumbai CST,

retiring the petitioner compulsorily at the age of 44 years, the order

dated 5-12-2007 passed by the Chief Security Commissioner and

the order dated 19/21-5-2008 passed by the Director General,

Railway Protection Force, confirming it.

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The order passed by the Senior Divisional Security

Commissioner on 5-9-2007 is restored.

The petitioner is directed to be reinstated in service, and after

completing the period of reversion in the earliest post for a period

of six months, he should be deemed to have been reinstated on the

post from which he was terminated.

The petitioner would be entitled to all consequential benefits,

including the back wages to the extent of 50% in the post which he

substantively held before termination after expiry of six months

from the date of termination till the date of his reinstatement in

service, which should be effected within a period of one month

from today.

All monetary benefits be made available to the petitioner

within a period of six months from the date of his retirement in

service.

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30. Rule is made absolute in above terms. No order as to

costs.

               JUDGE.                                      JUDGE.

   Lanjewar