Narayan Saroj vs Union Of India & Ors
2017 Latest Caselaw 8065 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 ORDINARY ORIGINAL CIVIL JURISDICTION

                          WRIT PETITION NO.1204 OF 1997


1(a) Smt. Raj Kali wd/o Shri Narayan Saroj

2(b) Shri Ashok s/o Shri Narayan Saroj,
          residing at Room No.301, 3rd floor,
          Padmashali Co-op. Hsg. Society Ltd.,
          I-Wing, Rajendra Prasad Nagar,
          Matunga Labour Camp, Mumbai - 400 019
          and presently residing at village Bishun
          Sahai Nagar, Post Katra Gulab Singh,
          Dist. Pratapgarh (U.P.)                                           ... Petitioners

                           vs.

1         Union of India
          through the General Manager,
          Western Railway, Churchgate,
          Mumbai - 400 020.


2         Director General,
          Railway Protection Force,
          Rail Bhavan, New Delhi 110 001.


3         Chief Security Commissioner,
          Railway Protection Force,
          Western Railway Head Quarters,
          Churchgate, Mumbai - 400 020.




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4         Dy. Chief Security Commissioner,
          Railway Protection Force,
          Western Railway, Churchgate,
          Mumbai - 400 020.

5         Divisional Security Commissioner,
          Bombay Division, Railway Protection Force,
          Bombay Central, Mumbai - 400 088.                           ... Respondents

Mr. G.K. Masand for the Petitioners.
Mr. Suresh Kumar for the Respondents.

                                   Coram          :   A.A. Sayed &
                                                      M.S. Karnik, JJ.

                           Reserved on            :   14 June 2017
                           Pronounced on          :   12 October 2017

JUDGMENT: (per A.A. Sayed, J.)


1         This Petition is filed by the original Petitioner Shri Narayan Saroj

(since deceased) under Article 226 of the Constitution impugning the

order dated 23 January 1995 passed by the Disciplinary Authority,

Respondent No.5 - Divisional Security Commissioner whereby he was

compulsory retired from service by way of punishment. The original

Petitioner has also impugned order dated 8 May 1995 passed by the

Appellate Authority i.e. Respondent No.4 - Deputy Chief Security

Commissioner rejecting his Appeal and the order dated 31 October

1995 passed by the Respondent No.3- Chief Security Commissioner

rejecting his Revision Petition. The original Petitioner died during the

pendency of the Petition and his heirs have been brought on record.

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2. The case of the original Petitioner was as follows:

i) He joined the Railway Protection Force (RPF) on 1 March 1968

on the post of Rakshak. In 1976 he was promoted as Senior Rakshak.

In 1984 he was promoted as Head Rakshak. In December 1998 he

was promoted as Assistant Sub Inspector. Sometime in November

1993, he was in General Supervision duty at Mahalaxmi Stores Depot,

wherein Railway property was stored. On 23 November 1993, a theft

was detected in the Non Ferrous Godown of Mahalaxmi Stores. The

said theft of copper scrap is stated to have occurred between

2 November 1993 to 23 November 1993 and that the theft had taken

place by tampering the seals of the godown. Respondent No.5 -

Divisional Security Commissioner had addressed a letter dated 1

December 1993 (Special Report No.13 of 1993) to Shri V.N. Dubey

who was working as Inspector Protection Force/Carriage Repair Shop,

Mahalaxmi and Shri C.L. Nagar, Sub Inspector of Protection Force,

Mahalaxmi Stores. In the said letter it was stated that a serious case of

theft of copper scrap from Non Ferrous Godown had been reported

and registered which occurred between 2 November 1993 to 23

November 1993 and the said theft had taken place by tampering seals

of the godown. In the said letter it was stated that this N.F. Godown

remained under the direct charge of Railway Protection Force during

night and that both the addressees i.e. Shri V.N. Dubey and Shri C.T.

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Nagar who were at the relevant time his superiors had not been able to

detect the theft and it was a clear case of theft by negligence and slack

supervision and they were called upon to show cause why disciplinary

action should not be taken against them for their failure. In the said

letter it was further stated that explanations from him (original

Petitioner) as well as one Shri Waman Damre, also working as

Assistant Sub Inspector should also be submitted.

(ii) He was placed under suspension in exercise of the powers

conferred by section 9(1)(i) of the Railway Protection Force Act, 1987

read with rule 153 of the Railway Protection Force Rules, 1987 by the

Respondent No.5 - Divisional Security Commissioner, by an order

dated 2 December 1993. Prior to being placed under suspension he

was examined by the Inspector of Protection Force, In charge of

Mahalaxmi Carriage Repair Shop, Shri V.N. Dube on 25 November

1993 with regard to the theft and in response to the said examination,

he had stated that during the period the alleged theft had taken place,

he was under general supervision duty in the shift commencing at 22

hours and ending at 6 hours on the following day at Mahalaxmi Depot.

During this supervision he has to conduct supervision over the staff

checking seals/locks provided in Mahalaxmi Depot and Scrap Depot.

So far as the alleged theft of 9,570 kgs of copper scrap valued at

Rs.5,43,400/- was concerned, this theft had not taken place during his

duty hours and he had no idea or knowledge about it. So far as his

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movement inside the Mahalaxmi Stores Depot was concerned, he

stated that he used to move inside the Depot conducting checking of

seals, locks of each godown but he was never mentioning this fact in

the Roznama as it was not found necessary. He had visited N.F.

Godown, Clothing Factory and other places inside the Store Depot

during his rounds and though he had entered these facts in the

Roznama, he had not noticed any incriminating activities in the Depot.

iii) He was served with the Memorandum of Charge dated 20

December 1993 by which he was charged as under:

I) Gross slackness and negligence in that he was on general

supervision, failed to exercise supervision effectively which

resulted in theft of 9570 kgs copper scrap from N.F. Godown to

Mahalaxmi Stores between 2 November 1993 to 23 November

1993.

II) He failed to note the theft and defect with the seals of N.F.

Godown and key box during the course of his supervision.

III) He failed to prevent and detect the theft which occurred

from N.F. Godown between 2 November 1993 to 23 November

1993.

iv) Statement of imputation in support of the Articles of charge were

made in identical terms and four documents were relied upon viz. (a)

Report of the inspector Protection Force as well as Special Report

Case No.1 of 1993, dated 1 December 1993 and 3 December 1993, (b)

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Statement of Shri C.L. Nagar, Inspector of Protection Force, (c)

Statement of the original Petitioner, and (d) Copy of the Roznama entry

dated 13 November 1993 and 14 November 1993.

v) An Enquiry Officer was appointed. On conclusion of the enquiry,

he submitted his written defence to the Enquiry Officer under cover of

his letter dated 15 July 1994. By letter dated 3 August 1994, the

Disciplinary Authority viz. Respondent No.5 Divisional Security

Commissioner furnished to him a copy of the Enquiry Report and called

upon him to make representation. He submitted his representation

dated 17 August 1994 on the report of the Enquiry Officer. In the

representation he stated that at the enquiry only witness examined was

Inspector V.N. Dubey who himself had not seen the condition of the

seals from 2 November 1993 to 23 November 1993 viz. the date of

sealing till the date of removal of seals and even though he had himself

earlier stated that he had not found anything wrong with the seals,

however, subsequently, he stated that he had found that the seal was

tampered with. The seal ought to have been examined through seal

man Khalasi More and followed up with forensic report to prove

authenticity of the seal. All other witnesses had stated that seals and

locks of the N.F. Godown from 2 November 1993 to 23 November 1993

till the opening of the Godown and key box were intact. With regard to

the duty on 13 and 14 November 1993, he stated that he was alert on

duty and having two Head Constables, two Naiks and one Constable

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posted in different Beats covering Mahalaxmi, Printing Press Kachra

siding and Mahalaxmi outside patrolling duties and outside East Wall.

He was himself present after taking rounds. Mere not signing of Beat

book by him may not be accounted that his whole work was unjust or

he was slack on duty, and he was being sacrificed by superiors. He

was imposed punishment of compulsory retirement from services by

the Disciplinary Authority Respondent No.5 Divisional Security

Commissioner vide order dated 23 January 1995. He filed an Appeal

dated 18 February 1995 before the Respondent No.4 - the Deputy

Chief Security Commissioner which was rejected by an order dated 8

May 1995. He thereafter filed Revision Petition on 31 May 1995. The

said Revision Petition was rejected by an order dated 31 October 1995

by the Respondent No.3 Chief Security Commissioner. Hence, the

present Petition.

3 Affidavit-in-Reply is filed on behalf of the Respondents. The case

of the Respondents in their Reply is as follows:

i) The Railway Protection Force is mainly established to guard and

protect the property of the Railways. The original Petitioner was on

general supervision duty at Mahalaxmi Stores in the night shift with

effect from 1/2 November 1993 to 5/6 November 1993 and 13/14

November 1993 to 19/20 November 1993. The duty of the original

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Petitioner was to supervise and oversee subordinate staff guarding the

Railway property at Mahalaxmi Stores. Mahalaxmi Stores was sealed

on 2 November 1993 and when it was opened on 23 November 1993,

the theft was noticed as occurred by tampering the seal of the godown

and opening of the godown. The theft of one ton (9,570 kgs.) of copper

scrap was noticed which was valued at Rs.5,43,400/-. The theft was

reported to C.I.D. Police and on their investigation it was found that the

theft had taken place at the night of 13/14 November 1993. The C.I.D.

Police have also recovered the stolen materials and two tempo

vehicles from the accused persons. The RPF personnel Shri Santosh

Gurjar, Head Constable and Shri Krishnamurari, Constable of RPF

were arrested by the C.I.D. in connection with the said theft case. The

C.I.D. have charged the above two RPF personnel alongwith other

outside personnel and a chargesheet was filed in the 19th Court of

Chief Metropolitan Magistrate, Mumbai under C.R. No.309 of 1992

under sections 454, 457, 380 and 114 of the Indian Penal Code and

DCB/C.R. No.203 of 1993 under sections 454, 457, 380 and 114 of the

Indian Penal Code. The incident was of a grave nature as the RPF

personnel whose duty is to guard and protect the property of the

Railways had failed to carry out their duties effectively and prevent theft

of property of the Railways. The Authority under the RPF Act, 1987

initiated departmental proceedings under rule 153 of the RPF Rules,

1987 against the following four RPF staff including the original

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Petitioner herein - i) Shri C.L. Nagar, ex SIPF/CR-MX, ii) Shri S.N.

Saroj, ex ASPF MX(S) (the original Petitioner), iii) Shri Santosh P.

Gurjar - ex Head Constable and iv) Shri Krishna Murari, ex Constable.

Head Constable Shri Santosh Gurjar and Constable Shri Krishna

Murari who charged with gross negligence and remiss of the duties and

to prevent the detect the theft and the punishment of dismissal were

awarded in their cases. Whereas Shri C.L. Nagar, Sub Inspector and

Shri S.N. Saroj, Assistant Sub Inspector (the original Petitioner) who

were on duty carrying out supervision over the subordinates at

Mahalaxmi Godown were compulsory retired for the dereliction of their

duties. These supervising staff were charged for gross negligence and

slackness in supervisory functions.

ii) The original Petitioner was carrying out supervision duty over the

subordinate RPF staff and was directly responsible for proper guarding

of the Railway property and he was issued a charge-sheet under the

RPF Rules. The original Petitioner was in general supervision duty and

he was charged for gross negligence and slackness and failed to

exercise supervision effectively which resulted in theft of Rs.9,570 kgs.

copper scrap from N.F. Godown. The original Petitioner failed to note

the theft and failed to prevent or detect the theft which occurred from

N.F. Godown. The original Petitioner was accordingly chargesheeted

for major penalty under Rule 153 of the RPF Rules, 1987.

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iii)      The inquiry was conducted in fair and proper manner and the

original Petitioner was given full opportunity to defend his case. The

original Petitioner has filed his Reply to the charge-sheet and made

submissions in his defence and also submitted 12 names of defence

witnesses. The Management had examined one witness and the

original Petitioner had also examined his defence witnesses. The

original Petitioner was represented in the domestic enquiry by his

representative and he was given an opportunity to examine the

witnesses. The Enquiry Officer has recorded his findings with

reasoning in his report. The Enquiry Report was served on the original

Petitioner and he was given an opportunity to make representation.

The original Petitioner had submitted his representation in the enquiry

by his letter dated 17 April 1994. Though the charges levelled against

the original Petitioner were grave nature, which called for dismissal of

services, considering the tenure of his service, he was awarded lessor

punishment of compulsory retirement whereby the original Petitioner

does not lose other financial benefits. The enquiry was concluded after

following principles of natural justice and the findings are based on the

material on record.

4 Learned Counsel on behalf of the Petitioner submitted as

follows - that the original Petitioner was given severe punishment for no

fault of his and there was no evidence against him. It was only in utter

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state of indecision, he filed Mercy Petition against punishment of

compulsory retirement dated 8 January 1996 to the Respondent No.2

Director General. From the Enquiry Officer to the Chief Security

Commissioner what was completely ignored was the fact that no one

could ever have known the seals of the godowns had been tampered

with, which is evident from the fact that on 23 November 1993 when

the seals of N.F Godown were removed by the Deputy Store Keeper

Unnikrishnan and the locks were opened, nobody suspected about the

tampering of the seals. However, it was only when the shortage was

noticed inside the Depot the matter was reported to the RPF staff and

during the course of enquiry it was presumed that the seals were

tampered with. From the statement of RPF and Stores Staff it was

revealed that nobody could detect the defects in the seals. Between

the period 2 November 1993 to 23 November 1993 when the theft is

stated to have occurred, apart from the original Petitioner who was

working as Assistant Sub Inspector Protection Force, there were two

other superior officials namely, Shri C.L. Nagar, Sub Inspector of

Protection Force and V.N. Dubey, Inspector of Protection Force. These

two officers were initially suspected and therefore it was stated in the

said letter that it was clear case of theft due to negligence and slack

supervision of these two officials. The original Petitioner was made a

scapegoat by the higher officials in order to protect themselves.

Inspector of Protection Force Mr. Dubey had prepared a report alleging

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the original Petitioner of negligence and slackness with the intention of

putting the blame on the original Petitioner. Inspector Shri Dubey had

falsely reported that the theft had taken place during the night of 13/14

November 1993 when the original Petitioner was on night duty while

Inspector Shri Dubey himself was out of station. Inspector Shri Dubey

had no personal knowledge about the theft since he was on leave from

11 November 1993. However, only to involve the original Petitioner

false report was submitted by him. There was no other documentary

evidence to show that the theft had taken place during that night. Even

the police authorities who had lodged FIR on 23 November 1993 had

not recorded any findings that theft had taken place during the night of

13/14 November 1993. A plain reading of the report of the Enquiry

Officer would show that except mere conjectures and surmises there

was no evidence whatsoever to show that either the theft had taken

place between 13/14 November 1993 of that the original Petitioner was

in any way negligent or slacking in his duty when the alleged theft had

taken place. The original Petitioner brought out these aspects in the

proceedings before the Disciplinary Authority, in Appeal and in the

Revision, however this aspect is not being considered and the original

Petitioner has been given the drastic punishment of compulsory

retirement without any evidence against him. Since the original

Petitioner had expired on 11 October 1999, the legal heirs of the

original Petitioner would be entitled to monetary benefits arising from

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the date of the original Petitioner's reinstatement in service till his death

and other consequential and reitral benefits, if the Petition is allowed.

5 Learned Counsel for the Respondents supported the impugned

orders. He submitted that there was sufficient evidence on record to

establish the charges against the original Petitioner and the said

charges have been held to be proved and this Court in exercise of writ

jurisdiction ought not to re-appreciate the evidence on record. He

submitted that the original Petitioner was let off lightly. He placed

reliance on the judgment of the 5-Judge Constitution Bench of the

Supreme Court in State of Madras vs. G. Sundaram, AIR 1965 SC

1103, and in particular paragraphs 9 and 10 which read thus:

"9. It is therefore clear that the High Court was not competent to consider the question whether the evidence before the Tribunal and the Government was insufficient or unreliable to establish the charge against the respondent. It could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the Constitution. This view was reiterated in Union of India v. H.C., Goel, AIR 1964 SC 364.

10. It is therefore clear that the High Court was in error in reappreciating the evidence before the Tribunal and

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recording the conclusion that that evidence did not establish the charges against the respondent. ... ... ..."

The learned Counsel for the Respondents also placed reliance upon

the judgment in State of Andhra Pradesh and others vs. S. Sree

Rama Rao, (1964) 3 SCR 25 wherein the 3-Judge Bench of the

Supreme Court in paragraph 7 held as follows:

"7. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner

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inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

6 We have considered the submissions of the learned Counsel

for the parties and perused the material on record.

7 In the Enquiry, Inspector Shri Dubey was examined as witness

on behalf of the Respondent whereas the original Petitioner examined

as many as 13 witnesses from RPF. The Enquiry Officer concluded as

follows:

"10 R E A S O N S:

From the reports of IPF V.N. Dubey and statements during DAR enquiry of IPF/CR.MX Shri. V.N. Dubey, has been proved beyond doubt that D/ASPF has remained gross stack and negligent in that he was on general supervision between 2.11.93 to 23.11.93, failed to exercise supervision effectively which resulted in theft of 9570 kgs. copper scrap from NF

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Godown between 2.11.93. This ASPF has also failed to note the theft and defect with the seals of NF godown and Key box during the course of his supervision during the night shift bet. 2.11.1993 to 23.11.1993. D/ASPF has also failed to prevent and detect the theft which occurred from NF godown between 2.11.1993 to 23.11.1993.

11. CONCLUSION:

From the statement of prosecution witness and records, I have come to conclusion that charges levelled against D/ASPF S.N. Saroj of MX(S), are proved."

8 The Disciplinary Authority Respondent No.5, in paragraphs 5 to 9

of the impugned order dated 23 January 1995 has observed as follows:

"5. Godown in question was sealed on 2.11.93 and thereafter till 21.11.93 no work was carried out in the said godown as such the seals which were put on 2.11.93 continued on the lock then these were removed on 23.11.93 for some work. When the DSK (III) went to open the Godown, he removed the seals from the lock opened lock with key and after entering into Godown found various types of materials which were also lying in different heaps, missing. IPF post was summoned and it was found that the seals were removed from the lock even though broken, still signified to be tampered with.

6. No doubt all the witnesses and defence witnesses who appeared during the DAR case has stated that the lock and seal of the Godown was found in tact. It will be quite safe to assume that no one while handing/taking over had minutely examined the seals of this particular Godown. This casual taking/handing continued till the seals were minutely examined after the removal from the lock and found it to be tampered.

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7. He was an officer of this post and it was during his term that his theft took place in collusion with RPF staff. Had he been alert and vigilant, he could have noticed the defects in the seal.

8. It is a matter of great shame that even RPF staff were on duty on all the exit points and also inside the depot, still the theft of about one ton copper scrap valued Rs.9.5 lakhs took place from the Godown by tampering the seals. He being one of the officers of the post, cannot escape the responsibility for his slack supervision in that he failed to prevent and detect this theft. Other points raised are frivolous and in any way absolve him from his guilt.

9. In fact, it is a clear out case of dismissal or atleast removal from service. However, keeping in view his comparatively good record of service, I take a lenient view and award him the punishment of compulsory retirement from service. I, therefore, order that Shri S.N. Saroj, ASPF should be compulsorily retired from service with immediate effect."

9 It is not in dispute that the original Petitioner was on night duty on

majority of the nights between 2 November 1993 to 23 November

1993. The fact that the theft had taken place between 2 November

1993 to 23 November 1993 is also not in dispute. It is averred by the

Respondents in the Affidavit in Reply that the CID police upon

investigation found that the theft had taken place in the night of 13/14

November 1993. After investigation by the CID police, the stolen

material was ultimately recovered. The argument that the seal of the

lock appeared to be intact and one could have ever have known that

the seals of the godown had been tampered with inasmuch as on 23

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November 1993 when the seals of the N.F. Godown were removed and

the locks were opened nobody suspected about the tampering of the

seals, can hardly be countenanced. The fact however remains that

there was a theft committed and the police not only arrested RPF

personal Santosh Gurjar, Head Constable of RPF and Krishna Murari

Constable of RPF and other accused persons in connection with theft,

but the stolen material was recovered. The incident was a serious in

nature and theft of about one ton (9,570 kgs).of copper scrap valued at

Rs.5,43,400/- was stolen from the godown where Railway property was

stored. The original Petitioner was admittedly in charge of the general

supervision duty at the Mahalaxmi Stores Depot between 2 November

to 23 November 1993 and it was the duty of the original Petitioner to

supervise and oversee the subordinate staff guarding the property of

Railways at Mahalaxmi Stores Depot. The Inquiry Officer has rightly

observed that the original Petitioner had failed to note the theft and

defect with the seals of N.F. Godown and Key box during the course of

his supervision during the night shift between 2 November 1993 to 23

November 1993 and he had failed to prevent and detect the theft which

occurred between 2 November 1993 to 23 November 1993. It is not

disputed that two other RPF personnel were arrested and

chargesheeted in the criminal proceedings and in the Departmental

proceedings they came to be dismissed from service. Another

personnel C.L. Nagar who was also carrying out supervision duties like

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the original Petitioner was also proceeded against Departmental

Inquiry and compulsorily retired. It is pertinent to note that the charge

against the original Petitioner was not of theft of the property but that

he was negligent in performing his duties. The Disciplinary Authority

has rightly observed that had the original Petitioner been alert and

vigilant, he would have noticed the defects in the seal and it is a matter

of great shame that even the Railway Protection Force staff were on

duty on all the exit points and also inside the Depot, but still the theft

had taken place by tampering the seals and that the original Petitioner

was shown leniency and instead of removal of service he was

punished with compulsory retirement by taking lenient view of the

matter. The Appellate Authority has also rightly observed that it was the

duty of the Petitioner to check the correctness of seals and locks of the

Depot and Godowns when he went on supervising rounds. The original

Petitioner was represented in the Domestic inquiry and rules of natural

justice were followed and the original Petitioner was granted full

opportunity to defend his case. There was adequate evidence on

record to conclude that the original Petitioner was negligent in his

duties of general supervision in guarding and protecting Railway

property. As held by the Supreme Court in the cases referred to in

paragraph 5 hereinabove, this Court in the exercise of writ jurisdiction

is not expected to re-appreciate the evidence on record and disturb the

findings of facts arrived at by the Authorities.

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         10      In light of the above discussion, no interference is warranted with

the impugned orders of the Respondents. The Petition shall

accordingly stand dismissed. There shall be no order as to costs.

                 (M.S. Karnik, J.)                                         (A.A.Sayed, J.)
katkam