Peter Coleghan Alexander Garvin vs Principal, Training Centre, ...
2021 Latest Caselaw 9858 Bom

                                              1                           wp732.20.odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                NAGPUR BENCH : NAGPUR


                        WRIT PETITION NO.732 OF 2020



Peter Colleghan Alexander Garvin,
aged 59 years, Ex-Inspector, RPF,
r/o Anant Apartment, Flat No.5/3,
Plot No.68, Khare Town, Dharampeth,
Nagpur - 440010.                                                ...     Petitioner

       - Versus -

1)   Principal, Training Centre, Nasik,
     Central Railway, Samangao Road,
     Nasik-422101.

2)   Divisional Security Commissioner,
     DRM Office, Central Railway,
     Solapur-413001.

3)   Principal Chief Security Commissioner,
     Central Railway, 3rd Floor, Parcel
     Office Building, RPF Headquarter,
     Mumbai CSTM-400001.

4)   Director General, Railway Protection
     Force, Rail Mantralaya, Railway
     Board, Rail Bhawan, New Delhi-110001.                      ...     Respondents

              -----------------
Shri B. Lahiri, Advocate for petitioner.
Shri N. Lambat, Advocate for respondents.
                                           ----------------

                                      CORAM :      DIPANKAR DATTA, C.J. AND
                                                   A.S. CHANDURKAR, J.

                                      DATED :      JULY 28, 2021





                                        2                        wp732.20.odt

ORAL JUDGMENT (PER DIPANKAR DATTA, C.J.) :


1)     Rule, returnable forthwith.      Heard finally, by consent of

Shri Lahiri, learned advocate for the petitioner and Shri Lambat,

learned advocate for the respondents.

2) The petitioner, while serving the Railway Protection Force as

an Inspector, has been dismissed from service following disciplinary

proceedings. The order of dismissal dated 23/7/2019 has been

passed by the Principal Chief Security Commissioner, Railway

Protection Force, Central Railway. Such order was carried in an

appeal by the petitioner. The appeal has since been dismissed by an

order dated 24/10/2019 of the appellate Authority, i.e., the Director

General, Railway Protection Force. The appellate order as well as

the order of dismissal which has merged in such appellate order, is

the subject matter of challenge in this writ petition.

3) Shri Lahiri has raised several points to attack the appellate

order as well as the order of dismissal passed by the Disciplinary

Authority.

4) It is contended that the disciplinary proceedings against the

petitioner were not instituted in accordance with Rule 152 of the

3 wp732.20.odt

Railway Protection Force Rules, 1987 (for short, "the Rules").

Charge-sheet dated 26/3/2018 was issued by the Principal, Railway

Protection Force Academy, who is neither the Appointing Authority

of the petitioner nor the Disciplinary Authority. Since the Principal,

Railway Protection Force Academy lacked jurisdiction to institute

proceedings against the petitioner, all proceedings following drawal

of charges stand vitiated, with the consequence that the final order

of dismissal also stands vitiated.

5) Next, it is contended that the Enquiry Officer, appointed to

conduct enquiry into the charges against the petitioner, submitted a

report of enquiry, dated 19/6/2019, holding that the petitioner was

'not guilty' of the charges levelled against him. The Divisional

Security Commissioner, Railway Protection Force, Solapur by an

order dated 26/6/2019 forwarded a copy of the report of the

Enquiry Officer to the petitioner. In such order, the Divisional

Security Commissioner recorded that he did not agree with the

findings of the Enquiry Officer and that the reasons for such

disagreement with the findings of the Enquiry Officer have been put

on record; thus, appropriate disciplinary action is being

contemplated and, in this regard, if the petitioner wishes to make

any representation, the same would be considered. Our attention

4 wp732.20.odt

has been drawn by Shri Lahiri to a letter dated 24/6/2019 of the

Divisional Security Commissioner, Railway Protection Force, Solapur

addressed to the Enquiry Officer. Such letter records the reasons

why the Divisional Security Commissioner could not be ad idem with

the findings returned by the Enquiry Officer. According to the

Divisional Security Commissioner, the conclusion recorded by the

Enquiry Officer in exonerating the petitioner was not valid.

Accordingly, the Enquiry Officer was called upon to submit

explanation by addressing the points raised therein why the

disciplinary proceedings against the petitioner shall not be taken to

its logical conclusion. Shri Lahiri has invited our attention to the

reply of the petitioner dated 6/7/2019 wherein it is contended that

the findings of the Enquiry Officer should be accepted. Following

consideration of the reply so submitted by the petitioner, the final

order of dismissal was passed by the Principal Chief Security

Commissioner on 23/7/2019, as noted above. According to

Shri Lahiri, the procedure followed by the Divisional Security

Commissioner is wholly contrary to the provisions of the Rules as

well as the dictum of the Supreme Court in its decision in Punjab

National Bank and others vs. Kunj Behari Misra {(1988) 7 SC 84)}.

It is vehemently contended that the Divisional Security

Commissioner not being the petitioner's Disciplinary Authority in

5 wp732.20.odt

terms of provisions of Rule 151 of the Rules read with Schedule III

thereof, he could not have recorded the note of disagreement; even

assuming that he had the authority to record the note of

disagreement, he was required to record tentative reasons for such

disagreement and not his final conclusion. The very opportunity

sought to be extended to the petitioner stood defeated by reason of

concluded finding of guilt against the petitioner even at the stage of

extending opportunity to him to represent against the note of

agreement. It is contended by Shri Lahiri that the note of

disagreement, if any, recording tentative reasons for disagreement

should have been forwarded to the petitioner and his response

elicited in that regard. The procedure followed by the Divisional

Security Commissioner in seeking a reply from the Enquiry Officer

and forwarding such letter to the petitioner to elicit his response

could not have been a proper substitute for the procedure to be

followed, in terms of the statement of law in Kunj Behari Misra

(supra).

6) Finally, Shri Lahiri has referred to a Bench decision of the

Gujarat High Court in Satish vs. Union of India (R/Special Civil

Application No.7466/2019 decided on 1/5/2020) to contend that in

similar circumstances, the Bench presided over by the Hon'ble Chief

6 wp732.20.odt

Justice had declared the proceedings to have been vitiated beyond

repair and accordingly, had not only set aside the final order of

punishment imposed upon the petitioner therein, but also imposed

costs of Rupees Five lakhs against the respondents. Not only that,

such decision when challenged before the Supreme Court by way of

special leave petition, the same was dismissed by the Bench presided

over by the Hon'ble Chief Justice of India on the ground that the

judgment and order under challenge did not merit any interference.

According to Shri Lahiri, since the facts are similar, we ought to

follow the same course of action and set aside the disciplinary

proceedings together with the final order of dismissal as well as the

appellate order and reinstate the petitioner in service.

7) Shri Lambat, however, has drawn our attention to Rule 219 of

the Rules. According to him, Rule 219 provides a remedy of revision

to the petitioner, which he did not avail of prior to presenting this

writ petition. Shri Lambat has also drawn our attention to the appeal

petition of the petitioner to contend that none of the points raised by

Shri Lahiri in course of hearing before us were raised in such

petition. It is, accordingly, his submission that the appellate authority

did not have the occasion to deal with the points now being raised

by Shri Lahiri. He also submits that if the petitioner approaches the

7 wp732.20.odt

revisional authority with a proper application raising all such points,

which have been raised before us, the revisional authority will

proceed to consider such points on merits and decide the same in

accordance with law.

8) Having heard learned advocates for the parties, we are of the

considered opinion that a very fair stand has been taken by

Shri Lambat. Indeed, none of the points raised by Shri Lahiri, which

we have recorded above, find place in the appeal petition of the

petitioner. In the absence of such points being raised in the appeal

petition, the appellate authority did not have the occasion to

consider the same. Once Rule 219 of the Rules provides that a

revision would lie, if in consequence of some material irregularity

there has been injustice or miscarriage of justice, there is no reason

why the petitioner ought not to approach the revisional authority, as

submitted by Shri Lambat.

9) We, therefore, dispose of this writ petition granting liberty to

the petitioner to approach the revisional authority within a fortnight

from today. If the petitioner applies for revision before the

appropriate revisional authority within the aforesaid time, such

revisional application shall be considered on merits and limitation

8 wp732.20.odt

would not stand in the way of such consideration. Since Rule 219

itself provides the time limit within which a revision ought to be

disposed of, we hope and trust that the revisional authority shall

proceed to dispose of the revision, if filed by the petitioner, within

three months from the date of receipt thereof. We make it clear that

the petitioner shall be entitled to raise points other than those which

have been recorded above, if available to him in law, in such revision

and the revisional authority shall be obliged to consider such points

too.

10) Rule is made absolute in the aforesaid terms. No order as to

costs.

  (A.S. CHANDURKAR, J.)                             (CHIEF JUSTICE)




khj