Calcutta High Court (Appellete Side)
Union Of India & Ors vs Umesh Prasad Singh on 13 April, 2021
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Arindam Sinha
And
The Hon'ble Justice Suvra Ghosh
MAT 1174 of 2012
Union of India & Ors.
Versus
Umesh Prasad Singh
For appellant/applicant : Mr. Rajdip Roy , Adv.
For respondent/writ petitioner : Mr. Achin Kumar Majumdar, Adv.
Mr. Pratik Majumdar
Heard on : 13th April, 2021.
Judgment on : 13th April, 2021.
Arindam Sinha, J. : This appeal is against order dated 18 th May, 2007
passed by the disciplinary authority awarding punishment of dismissal from
service with effect from 19th May, 2007. The award was in exercise of power
given to the disciplinary authority by clause (a) in rule 47 of Railway
Protection Force Rules, 1959. The clause in the rule is reproduced below:
"47, Special Officer in certain case. -
notwithstanding anything contained in Rules 44, 45
and 46, where a penalty is imposed on a member of
the Force
(a) on the ground of conduct which has led to
his conviction on a criminal charge,
(b) .........
the disciplinary authority may consider the
circumstances of the case and pass such orders
thereon as it deems fit."
Mr. Roy, learned advocate appears on behalf of appellants and
relies on judgment of Supreme Court in Divisional Personnel Officer vs. T.
R. Chellappan reported in (1976) 3 SCC 190, paragraph 9. We reproduce
below, relevant passage from the paragraph:
"...........It was for this reason that the founders
of the Constitution thought that where once a
delinquent employee has been convicted of a criminal
offence that should be treated as a sufficient proof of
his misconduct and the disciplinary authority may be
given the discretion to impose the penalties referred
to in Article 311(3), namely, dismissal, removal or
reduction in rank. It appears to us that proviso (a) to
Article 311(2) is merely an enabling provision and it
does not enjoin or confer a mandatory duty on the
disciplinary authority to pass an order of dismissal,
removal or reduction in rank the moment an
employee is convicted. This matter is left completely
to the discretion of the disciplinary authority and the
only reservation made is that departmental inquiry
cotemplated by this provision as also by the
Departmental Rules is dispensed with. In these
circumstances, therefore, we think that Rule 14(i) of
the Rules of 1968 only incorporates the principles
enshrined in proviso (a) to Article 311(2) of the
Constitution............"
He submits, impugned order should be set aside in appeal and the order of
the disciplinary authority restored, alongwith order passed by the appellate
authority rejecting respondent's appeal.
Mr. Majumdar, learned advocate appears on behalf of respondent
writ petitioner and relies on judgment of Supreme Court in Union of India vs.
Tulsiram Patel reported in AIR 1985 Supreme Court 1416, paragraph 127.
We reproduce below, relevant passage from the paragraph:
".........Once the disciplinary authority reaches
the conclusion that the government servant's conduct
was such as to require his dismissal or removal from
service or reduction in rank he must decide which of
these three penalties should be imposed on him.
This too it has to do by itself and without hearing the
concerned government servant by reason of the
exclusionary effect of the second proviso. The
disciplinary authority must, however, bear in mind
that a conviction on a criminal charge does not
automatically entail dismissal, removal or reduction
in rank of the concerned government servant.
Having decided which of these three penalties is
required to be imposed, he has to pass the requisite
order. A government servant who is aggrieved by the
penalty imposed can agitate in appeal, revision or
review, as the case may be, that the penalty was too
severe or excessive and not warranted by the facts
and circumstances of the case............"
He submits, there should be no interference with impugned order.
We have considered the authorities cited. We are clear in our mind
that separate proceeding is not required for the purpose of disciplinary
authority considering the circumstances and awarding punishment. We have
also seen that clause (i) in rule 14 of Railway Servants (Discipline and Appeal)
Rules, 1968 is similar to clause (a) in rule 47 of Railway Protection Force
Rules, 1959.
Supreme Court in Tulsiram Patel (supra) said, in addition to that
said by it in T. R. Chellappan (supra), the disciplinary authority must,
however, bear in mind that a conviction on a criminal charge does not
automatically entail dismissal, removal or reduction in rank. The disciplinary
authority has to pass the requisite order. A government servant, who is
aggrieved by the penalty imposed can agitate in appeal, revision or review as
the case may be, that the penalty was too severe or excessive and not
warranted by the facts and circumstances of the case.
We find there is no illumination regarding facts and circumstances
of the case as considered in order dated 18 th May, 2007 of the disciplinary
authority, impugned in the writ petition. There are recitals of the criminal
case and conviction, earlier award of punishment and challenge thereto but
the circumstances that led to the conviction do not find place in the order for
anyone to discern it to be a requisite order. It is simply confirmation of earlier
order dated 8th March, 1985, on the additional recital of respondent writ
petitioner having had been given opportunity of hearing. We looked at earlier
order dated 8th March, 1985, of the disciplinary authority. We reproduce it
below:
"S.E.Rly.
Office of the Sr. Security Officer RPF/KOP
Dismissal order
Whereas Sri U. P. Singh ASK A175 of P.D.P.K. (now at
SRCS post) of Shalimar Division has been convicted on a
Criminal Chage under R.P. (UP) Act.
And whereas it is considered that the conduct of the said
Sri U.P. Singh Sl. No. A278 which has been to his conviction, is
such as to render his further retention in this public service
undesirable.
Now, therefore, in exercises of the powers conferred by
Rule 47(A) of KPT Rules 59 the undersigned herby dismisses the
said Sri U.P. Singh RSK A275 from the service with effect from
8.3.83 March, 1985.
Sd/-
Disciplinary Authority
Station KOP
Dated 8th March, 1985"
Order dated 18th May, 2007 passed by the disciplinary authority
does not meet with the requirement of it being a requisite order as per law
declared in Tulsiram Patel (supra). The quashing of it is confirmed but
impugned order varied to the extent that the disciplinary authority will pass
requisite order, wherefrom it will appear that circumstances of the case, which
led to appellant's conviction, is the basis of attraction and award of
punishment, if awarded.
The fresh order must be passed within eight weeks from date.
The appeal is disposed of.
(Arindam Sinha, J.)
(Suvra Ghosh, J.)
