Anil Raibhanji Sarve vs Principal, Training Centre, ...
2021 Latest Caselaw 9909 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                NAGPUR BENCH : NAGPUR


                        WRIT PETITION NO.736 OF 2020


Anil Raibhanji Sarve,
aged 57 yars, Ex-Head Constable,
RPF, Central Railway,
r/o Sai Nagar, No.2, Hudkeshwar
Road, Nagpur - 440034.                                          ...     Petitioner

       - Versus -

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

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

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

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


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

                                      DATED :      JULY 28, 2021





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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, who was a Constable of the Railway Protection

Force, has been dismissed from service following disciplinary proceedings.

The order of dismissal has been affirmed in appeal and subsequently

confirmed by the revisional authority. All such orders are under challenge

in this writ petition.

3) Having heard Shri Lahiri and Shri Lambat, we are of the considered

opinion that this writ petition may be disposed of on a short point.

4) The Enquiry Officer, who was appointed to conduct enquiry into the

charges against the petitioner, found him 'not guilty'. The Deputy Chief

Security Commissioner-cum-Principal, RPF/ZTC/Nasik, being the

disciplinary authority, did not agree with the findings of the Enquiry

Officer. Such disagreement was noted in his order dated 26/6/2019.

However, contrary to the law laid down by the Supreme Court in Punjab

National Bank and others vs. Kunj Behari Misra {(1998) 7 SCC 84}, the

Deputy Chief Security Commissioner did not record tentative reasons for

disagreement. In the absence thereof, the opportunity granted to the

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petitioner to make a representation amounted to completing a mere ritual.

The petitioner could not have, by projecting his own imagination, know

what was the reason for which the disciplinary authority did not agree

with the Enquiry Officer and/or what weighed in the mind of the

disciplinary authority, for such disagreement, which he was required to

dispel. We do not consider that the procedure adopted by the disciplinary

authority was in accordance with the law laid down in the case of Kunj

Behari Misra (supra).

5) In terms of Rule 217 of the Railway Protection Force Rules, 1987,

the appellate authority was required to consider whether the procedure

prescribed in the Rules had been complied with and if not, whether such

non- compliance resulted in violation of any constitutional provision or in

miscarriage of justice. We have no hesitation to record that this particular

aspect escaped the notice of the appellate authority as well as the

revisional authority, rendering the proceedings vitiated.

6) We, accordingly, set aside the impugned revisional order, the

appellate order as well as the order of dismissal from service. The

petitioner shall be treated to be in service, from this day, for the limited

purpose of completing the enquiry in accordance with law, meaning

thereby that the disciplinary authority of the petitioner shall issue fresh

note of disagreement recording tentative reasons, within a fortnight from

date of receipt of a copy of this order. The petitioner shall have a

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fortnight's time to respond to such note of disagreement. Upon

consideration of the petitioner's response, the disciplinary authority shall

pass a fresh order strictly in accordance with law. In the event the

petitioner is ultimately reinstated in service by the disciplinary authority or

any other higher authority, he shall be entitled to all the service benefits

as if he had not been fastened with the order of dismissal, which has been

set aside by this Court. All contentions are left open.

7) The writ petition stands disposed of. Rule is made absolute in the

above terms. There shall be no order as to costs.

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




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