Mukesh Kumar vs Union Of India, Thr. The Director ...
2023 Latest Caselaw 11597 Bom

2023:BHC-NAG:16476-DB

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


                WRIT PETITION NO. 2348 OF 2023


                Mukesh Kumar,
                UIN No. SCR0900162, Aged 43 years,
                Occupation - Inspector with Railway
                Police Force, Police Station, Akola,
                Permanent resident of H.No.122,
                Arvind Nagar, CBI Colony, Jagatpura,
                Jaipur,
                Presently residing at RB IV, Goods Shed,
                Railway Colony, Akola.                        ....   PETITIONER


                           VERSUS


                1) Union of India,
                   through the Director General,
                   Railway Police Force, New Delhi.

                2) Inspector General cum Principal
                   Chief Security Commissioner
                   (IG & PCSC), Railway Protection
                   Force, South Central Railways,
                   Security Department, Rail Nilayam,
                   Secunderabad.

                3) Senior Divisional Security Commissioner,
                   Railway Protection Force, Nanded -
                   431605.                                    ....   RESPONDENTS

                ______________________________________________________________

                           Mr. S.V. Bhutada, Counsel for the petitioner,
                          Mr. V.A. Bramhe, Counsel for the respondents.
                 ____________________________________________________________
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                  CORAM : A.S. CHANDURKAR
                          & ABHAY J. MANTRI, JJ.

DATED : 09th NOVEMBER, 2023

ORAL JUDGMENT : (PER : ABHAY J. MANTRI, J.)

Heard. Rule. Rule made returnable forthwith.

2. The petitioner being aggrieved by the order of dismissal

from service dated 14-3-2023 passed by respondent No.2 has

preferred this petition.

3. The petitioner joined the services on 24-4-2009 as Sub-

Inspector. He was employed on the post of Inspector with the

Railway Protection Force. However, on 10-3-2023 First

Information Report (for short "FIR") was registered against the

petitioner at CBI, ACB, Nagpur alleging that he has demanded an

amount of Rs.3,00,000/- (Rupees Three Lac) from Shri Muzammil

Ahmad in respect of releasing his father from the case registered

against him in RPF Police Station, Akola and, therefore, FIR was

registered against him under Section 120-B of the Indian Penal

Code and read with Section 7 of the Prevention of Corruption Act.

In pursuance of the said report, he was arrested on 11-3-2023 and

remanded to police custody till 14-3-2023. On arrest, he was 3 wp2348.23.odt

suspended and departmental enquiry was initiated against him

and by order dated 14-3-2023 he was dismissed from the service.

4. It is contended by the petitioner that no charge-sheet has

been served on him, nor opportunity was given to him prior to

passing the dismissal order and, therefore, the passing of the said

order is illegal and violative of the principles of natural justice,

hence the same is not sustainable in the eyes of law. The

petitioner has also averred that in the year 2018-19 he was

awarded for commendable services and has also secured multiple

achievements.

Being aggrieved by the order of dismissal from service dated

14-3-2023, the petitioner has preferred this petition.

5. By filing the affidavit-in-reply, the respondents oppose the

petition on the preliminary ground that the petition is not tenable

as alternate remedy of appeal is provided under Rules 212 to 214

of the Railway Protection Force Rules, 1987 (for short the "Rules

of 1987") and, therefore, on that ground alone the petition is

liable to be dismissed.

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6. Alternatively it is averred that the petitioner was caught red

handed while demanding and accepting the bribe of Rs.1,00,000/-

(Rupees One Lac) from the complainant Muzammil Ahmad in

presence of the witnesses. Accordingly, he was arrested and was

in police custody till 14-3-2023 and, therefore, he was suspended

and thereafter dismissed from the service. It is also averred that it

is not appropriate to keep the petitioner in Railway Protection

Department from the point of view of National Security. It is also

averred that the petitioner was found fully guilty of discreditable

conduct, indiscipline and wilful concealment of facts in the official

record from the documentary evidence and hence passing of the

impugned order is just, legal and proper and no interference is

required in it. The said order is in consonance with the provisions

of the Rules. Lastly, it is averred that there was a need to send a

strong message to not to allow such tendencies to flourish in

future and, therefore, the action under Rule 161 of the Rules of

1987 was taken which is well within the law and hence it is

prayed that the order passed is correct and legal and no

interference is required and has prayed for dismissal of the

petition.

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7. Mr. V.A. Bramhe, learned Counsel for the respondents has

raised the preliminary objection that alternate remedy of appeal is

provided under Rules 212 to 214 of the Rules of 1987 and,

therefore, the petition cannot be entertained in writ jurisdiction

and same is liable to be dismissed. Per contra, Mr. S.V. Bhutada,

learned Counsel for the petitioner vehemently argued that if the

principle of natural justice is violated, in that case, Court can

exercise its writ jurisdiction. In support of his submission, he has

relied on the following authorities.

(1) State of Tripura v. Manoranjan Chakraborty and others, (2001) 10 SCC 740;

(2) Schin Kumar v. Union of India through the Ministry of Railways and others, 2023 SCC OnLine Bom 507;

(3) Harbanslal Sahnia and another v. Indian Oil Corpn.

Ltd. and others, (2003) 2 SCC 107.

8. Perused the judgment in the case of State of Tripura (supra).

The Hon'ble Apex Court has observed that if gross injustice is

done and it can be shown that for good reason the court should

interfere, then notwithstanding the alternative remedy which may

be available by way of appeal under Section 20 or revision under

Section 21, a writ court can in an appropriate case exercise its 6 wp2348.23.odt

jurisdiction to do substantive justice. In the case of Sachin Kumar

(supra) as well as in the case of Harbanslal Sahnia (supra), the

Hon'ble Apex Court has held that in an appropriate case, inspite of

availability of the alternative remedy, the High Court may still

exercise its writ jurisdiction in at least three contingencies, (i)

where the writ petition seeks enforcement of any of the

fundamental rights; (ii) where there is a failure of principles of

natural justice; or (iii) where are the orders or proceedings are

wholly without jurisdiction or the vires of an Act is challenged. In

view of the ratio laid down by the Hon'ble Apex Court, it would

be appropriate to consider the facts of the case at hand.

9. On perusal of the record, it clearly appears that after arrest

of the petitioner on 10-3-2023, he was suspended and without

serving the charge-sheet on him and giving any opportunity on

14-3-2023 he was dismissed from the service. The said fact itself

shows that the respondent has not given the opportunity to the

petitioner to put up his defence and thereby invalided the

principles of natural justice. In the enquiry report and the

impugned order, it is observed that the petitioner was in custody

till 14-3-2023 and, therefore, he was not accessible to RPF under 7 wp2348.23.odt

Rule 153 of the Rules of 1987 and major penalty was imposed

without giving opportunity of defend the allegations made against

him. Therefore, in the facts of the case, it is practically not

possible in any way to hold departmental enquiry under Rule 153

of the Rules of 1987 against the suspended petitioner. The

procedures adopted by the respondents during enquiry could not

be verified since both the case files and general diary for the

concerning period have been seized by the CBI Officer on

10-3-2023, thus terminating the scope of further enquiry. Hence,

it is not reasonably practicable to hold an enquiry under DAR

proceedings prescribed in Rules of 1987 and the case may only be

dealt under special procedures given under Rule 161 of the Rules

of 1987 and he was terminated. The said observation itself shows

that without following the principles of natural justice the

petitioner was held guilty under the enquiry and dismissed from

the service. Thus, in our opinion, the dictum laid down in the

aforesaid judgments is squarely applicable and thus we are of the

opinion that though alternate remedy by way of appeal is

available, this Court can exercise its jurisdiction to the ends of

justice.

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10.
\     Moreover, it appears from the record that in the year 2018

and 2019 the petitioner was awarded by the respondents and

issued certificate of merits to him. Besides the petitioner in

paragraph No.11 has categorically made the averment that

dismissing him without conducting any enquiry is passed by

respondent Nos. 2 and 3 with the concurrence and approval of

respondent No.1. Therefore, though an appeal against the

impugned order lies before respondent No.1, it is not an

efficacious or an effective remedy in law at all. The said

averments were neither denied nor disputed by the respondents in

reply. Likewise we do not find any substance in the observation

made by respondent No.1 in the order that the act of the

petitioner is directly related to the national security and therefore

they have dismissed him.

11. Having considered the aforesaid discussion, it seems that the

impugned order of dismissal of the petitioner from service was

passed hastily without giving any opportunity to him. There is no

material on record to indicate that subjective satisfaction was

recorded based on objective criteria. The ratio of the decision in

Sachin Kumar (supra) is clearly applicable to the facts of the 9 wp2348.23.odt

present case. The said act of the respondents seems to be

arbitrary, passing blatantly violation of principles of natural justice

and violative of Article 14 of the Constitution of India and,

therefore, interference is required in the impugned order.

12. For the aforesaid reason, we allow the petition by setting

aside the impugned order dated 14-3-2023. The respondents are

directed to reinstate the petitioner with continuity of service. The

intervening period from 14-3-2023 till reinstatement shall be

treated as period spent under deemed suspension and the

petitioner would be entitled for payment of subsistence allowance

as per the rules. The respondents are at liberty to hold an enquiry

against the petitioner for the incidents leading to passing of the

order dated 14-3-2023. It is made clear that depending on the

outcome of such departmental enquiry, the respondents shall take

further decision in accordance with law.

13. Rule made absolute in the aforesaid terms with no order as

to costs.

                                      (ABHAY J. MANTRI, J.)             (A.S. CHANDURKAR, J.)

                  adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 10/11/2023 18:57:06