Chattisgarh High Court

Raasbihari Pandey vs Union Of India And Ors on 8 September, 2021

                                  1

                                                                 AFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
               Writ Petition (S) No.466 of 2012
    Raasbihari Pandey, son of Late Gupteshwar Pandey, aged
    about 44 years, resident of Type1 Quarter, WRS
    Colony, Raipur
                                                   Petitioner
                             Versus
  1. Union of India through the Secretary,            Ministry   of
     Railways, (Railway Board), New Delhi
  2. The Director General/RPF Railway Board, New Delhi
  3. The Inspector GeneralcumCSC/RPF, South East Central
     Railway, Bilaspur
  4. The Senior Divisional Security Commissioner, Railway
     Protection Force, Raipur (CG)
                                                   Respondents

For Petitioner : Mr.B.P.Sharma and Ms Trishna Das, Advocates For Res.No.2 to 4 : Mr.R.K.Gupta, Standing Counsel

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 8/9/2021

1. The petitioner herein calls in question legality

validity and correctness of the order dated 29.8.2011

(Annexure P1) passed by respondent No.2/Revisional

Authority affirming the appellate order dated 9.8.2010

(Annexure P7) by which the appellate authority has

converted the punishment of removal from service to

compulsory retirement and thereby partly affirmed the

order of the disciplinary authority dated 31.3.2010 by

which the disciplinary authority has imposed

punishment of removal from service.

2. The petitioner was subjected to departmental

proceedings by serving chargesheet that he was found

intoxicated on 30.7.2009 on being called by the

Assistant Safety Commissioner in connection with some

incident on 28.7.2009 and at that time, the petitioner

was found intoxicated in medical test conducted

subsequently, which is in violation of Rule 146.2(i),

146.4 and 147(ix) of the Railway Protection Force

Rules, 1987 (hereinafter called as 'Rules of 1987')

and thereafter, on fullfledged enquiry conducted on

alleged misconduct. On 31.3.2010 (Annexure P5), order

of removal from service was passed by the disciplinary

authority finding that charge against him is found

proved and established. On appeal being preferred by

the petitioner, the appellate authority partly allowed

the appeal and converted the order of removal from

service to compulsory retirement. The revision

preferred against the order of the appellate authority

came to be dismissed by the revisional authority by

the impugned order, as such, the petitioner has filed

this writ petition against the order of the revisional

authority affirming the order of the appellate

authority partly modifying the order of the

disciplinary authority as on date the petitioner

stands punished by inflicting penalty of compulsory

retirement.

3. Return has been filed by the respondents opposing the

averments made in the writ petition stating interalia

that looking to the misconduct committed by the

petitioner, he has rightly been imposed punishment of

compulsory retirement.

4. Mr.B.P.Sharma and Ms Trishna Das, learned counsel

appearing for the petitioner, would submit that there

is no allegation that during the duty he was found

intoxicated as he was all of sudden called by the

Assistant Safety Commissioner, to which he promptly

attended as he was taking rest after taking some

medicine for his illness which he was suffering at

that time and as such, he was not found in a state of

intoxication while on duty or after having been

alerted for duty, which does not attract Rule 147(ix)

of the Rules of 1987. Similarly, Section 146.2(i) of

the Rules 1987 which requires neglect of duty and

Section 146.4 which requires discreditable conduct is

also not attracted and even punishment imposed in fact

is highly disproportionate to the act committed by the

petitioner, as such, the orders passed by three

authorities deserve to be setaside.

5. Mr.R.K.Gupta, learned Standing Counsel for the

respondents, would submit that by virtue of Section 15

of the Railway Protection Force Act, 1957 (hereinafter

called as 'Act of 1957') officers and members of the

force to be considered always on duty and liable to be

employed in any part of the Railways, though he was

not on duty on 30.7.2009 when he was called by the

Assistant Safety Commissioner, yet by virtue of

Section 15 of the Act of 1957, he was rightly

considered to be on duty and therefore, he was having

found intoxicated, he has rightly been punished for

removal from service, which has partly been modified

by the appellate authority to compulsory retirement

and as such, no interference is called for to the

punishment awarded by two authorities.

6. I have heard learned counsel appearing for the

parties, considered their rival submissions made

hereinabove and also went through the records with

utmost circumspection.

7. The petitioner has been subjected to departmental

proceeding by serving chargesheet on 12/14.10.2009

(Annexure P2). Following charge has been framed

against the petitioner:

vkjksi dk fooj.k (Article of the charge) vkj{kd&522 vkj0ch0ik.Ms; tks js0lq0cy jk;iqj esa dk;Zjr gS ij ;g vkjksi gS fd fnukad&[email protected]@2009 dks bUgsa lgk;d lqj{kk vk;[email protected] lqj{kk [email protected];iqj ds }kjk fnukad&[email protected]@2009 dks Mhty yksdks 'ksM LVkWQ ds lkFk js0lq0cy Fkkuk&jk;iqj essa gksus okyh ?kVuk ds laca/k esa iqN&rkN gsrq

psEcj esa cqyk;k x;k FkkA mijksDr vkj{kd vkns'kkuqlkj lgk;d lqj{kk vk;[email protected] lqj{kk [email protected];iqj ds psaEcj esa viuh gktjh nhA iqN&rkN ds nkSjku ;g ik;k x;k fd mijksDr vkj{kd tokc nsus dh fLFkfr esa ugh Fkk moa og u'ks esa /kqr (intoxicated) ik;k x;kA lgk;d lqj{kk vk;[email protected] lqj{kk [email protected];iqj ds }kjk rqjUr mls nks cy lnL;ksa ds lkFk eseksa nsdj Medical check up gsrq ¼ Jh ,u0,l0jko][email protected] ,oa vkj{kd ,0ds0nqcs RTC½ jsYos vLirky MCY;q0vkj0,l0jk;iqj Hkstk x;k tgka ij mldh [kwu dh tkWp dh xbZ rF;A Sr.DMO(Admn.)Raipur ds Ik= dzekad CMS/R/Med/09/273, Dated: 24.08.2009 lkFk esa Original blood sample report tks Assistant Chemical Analyser, Regional Forensic Science Laboratory, State of Maharashtra, Nagpur ds }kjk tkjh fd;k x;k bl dk;kZy; dks izkIr gqvk ftlesa ;g lkfcr gqvk gS fd vkj{kd&522 vkj0ch0ik.Ms; u'ks dh gkyr es FkkA ,d cy lnL; gksus ds ukrs mijksDr vkj{kd ds }kjk fd;k x;k dk;Z jsYos lqj{kk cy fu;e 1987 ds fu;e 146-2¼i½] 146-4 & 147 ¼ix½ dk mYya?ku djuk n'kkZrk gSa [email protected]& [email protected]@09 lgk;d lqj{kk vk;[email protected]] nf{k.k iwoZ e/; jsYos] jk;iqj Ultimately, charge framed against the petitioner has

been found proved by the disciplinary authority and

penalty of removal from service has been inflicted and

that has been partly approved by the appellate

authority converting into compulsory retirement and

that has been accepted by the revisional authority.

8. The petitioner has been found guilty of violation of

Rule 146.2(i), 146.4 and 147(ix) of the Rules of 1987.

Rule 146.2(i), 146.4 and 147(ix) of the Rules of 1987

states as under:

"146.2 Neglect of duty:

No member of the Force without good and sufficient cause shall

(i) neglect or omit to attend to or fail to carry out with due promptitude and diligence

anything which is his duty as a member of the Force to attend to or carry out; or

(ii) to (ix) xxx xxx"

146.4 Discreditable conduct:

No member of the Force shall act in any manner prejudicial to discipline or conduct himself in such a manner which is reasonably likely to bring discredit to the reputation of the Force.

147. Offences relatable to duties of enrolled members:

Commission of any of the following act or acts by an enrolled member of the Force

(i) to (viii) xxx xxx xxx

(ix) being in a state of intoxication while on duty or after having been alerted for any duty;"

Rule 146 of the Rules of 1987 provides the cases in

which removal, dismissal etc. can be imposed.

9. At this stage, it would be appropriate to notice

Section 15 of the Act of 1957 which states as under:

"15. Officers and members of the Force to be considered always on duty and liable to be employed in any part of the Railways.(1) Every member of the Force shall, for the purposes of this Act, be considered to be always on duty, and shall, at any time, be liable to be employed at any place within India.

(2) No member of the Force shall engage himself in any employment or office other than his duties under this Act."

10. A careful perusal of the aforesaid provision

would show that every member of the force shall, for

the purposes of this Act, be considered to be always

on duty, and shall, at any time, be liable to be

employed at any place within India, though Rule

146.2(i) of the Rules of 1987 states about neglect of

duty by a member of force. No member of the force

without good and sufficient cause shall neglect or

omit to attend to or fail to carry out with due

promptitude and diligence anything which is his duty

as a member of the force to attend to or carry out,

but charge so framed as indicated in the order passed

by the disciplinary authority, only charge framed

against him is that on 30.7.2009 when he was called by

Assistant Safety Commissioner in his chamber, he

promptly appeared, but he was found intoxicated in

medical checkup conducted by the Department by

collecting blood sample, as such, there is no charge

sheet served to the petitioner that being a member of

the force without sufficient reason he neglected to

perform his duty.

11. Similarly, Rule 146.4 of the Rules of 1987

provides that no member of the force shall act in any

manner prejudicial to discipline or conduct himself in

such a manner which is reasonably likely to bring

discredit to the reputation of the force. No charge

has been framed and served to the petitioner based on

Rule 146.4 of the Rules of 1987 that his conduct is

discreditable or he acted in any manner prejudicial to

discipline or conducted himself in such a manner which

is reasonably likely to bring discredit to the

reputation of the force except saying that he was

found intoxicated, as such, there is no charge based

on Rule 146.4 of the Rules of 1987.

12. Similarly, Rule 147(ix) of the Rules of 1987

provides that being a member of the force in a state

of intoxication while on duty or after having been

alerted for duty shall render himself for punishment

under Section 9 or Section 17 of the Act of 1957.

Section 9 of the Act of 1957 speaks about dismissal,

removal etc. of members of the Force and Section 17 of

the Act of 1957 speaks about penalties for neglect of

duty.

13. A careful perusal of the chargesheet served to

the petitioner would show that no charge has ever been

framed and served that the petitioner being a member

of force in a state of intoxication while on duty or

after having been alerted for duty, he was found

intoxicated though the petitioner has been found

guilty in violation of Rule 146.2(i), 146.4 and

147(ix) of the Rules of 1987, as there is no

allegation that without sufficient cause, he neglected

to perform his duty or being a member of the force or

he acted in a manner prejudicial to discipline or

conducted himself in such a manner which is reasonably

likely to bring discredit to the reputation of the

force or he being a member of the force found in a

state of intoxication while on duty or after having

been altered for any duty and rendered himself liable

for punishment under Section 9 or Section 17 of the

Act of 1957. Merely because he was found intoxicated,

in absence of charge for violation of Rule 146.2(i),

146.4 and 147(ix) of the Rules 1987, the petitioner

cannot be inflicted with penalty of removal from

service. Since the petitioner was subjected to

departmental enquiry, he must have been subjected to

actual charges for which he has been punished. If no

chargesheet has been served for abovestated

misconduct, it cannot be assumed on the basis of

alleged intoxication that he has violated Rule

146.2(i), 146.4 and 147(ix) of the Rules of 1987.

Appropriate charges have to be framed and served to

the delinquent in order to punish him in a

departmental enquiry. Though the petitioner has not

been served chargesheet for violation of Rule

146.2(i), 146.4 and 147(ix) of the Rules of 1987, yet

on the basis of alleged intoxication, he has been

inflicted with major penalty for violation of Rule

146.2(i), 146.4 and 147(ix) of the Rules of 1987.

14. It is well settled law that a chargesheet should

disclose with adequate clarity and precision the

charges levelled against the employee and requirement

is of essential adjuncts of concept of reasonable and

adequate opportunity for defending oneself.

15. The Supreme Court in the matter of State of Assam

v. Mohan Chandra Kalita & another1 has clearly held

that finding in excess of charge or in absence of any

evidence cannot be sustained and observed as under:

"6. As we said earlier, there was no charge against the respondent that he had not paid the full amounts to those entitled to compensation or that he had authorised anyone to collect any fee. This enquiry into extraneous allegations with which the respondent was not charged must have certainly prejudiced the enquiry officer against the respondent. Even if we were to ignore this aspect, there is no evidence to connect the respondent with the allegation that he had authorised the collection of Garibhara much less can it be said, as averred in the charge, that he realised from those persons to whom compensation was being paid, certain percentage of compensation money due to them for payment of hire charges of the vehicle in which he had visited the office of the Mauzadar from Dhekiajuli."

16. In the matter of Surath Chanda Chakrabarty v.

State of West Bengal2 their Lordships of the Supreme

Court have clearly highlighted the object of

furnishing the statement of allegations by observing

as under:

1 AIR 1972 SC 2535 2 1970(3) SCC 548

"5....The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.

6......The whole object of furnishing the statement of allegations is to give all the necessary particulars and details which would satisfy the requirement of giving a reasonable opportunity to put up defence. The appellant repeatedly and at every stage brought it to the notice of the authorities concerned that he had not been supplied the statement of allegations and that the charges were extremely vague and indefinite...."

17. In the matter of Sawai Singh v. State of

Rajasthan3 the Supreme Court has clearly held that

charges involving consequences of termination of

service must be specific by holding as under:

"16. It has been observed by this Court in Suresh Candra Chakrabarty v. State of W.B that charges involving consequences of termination of service must be specific, though a departmental enquiry is not like a criminal trial as was noted by this Court in the case of State of A.P. v. S. Sree Rama Rao4 and as such there is no such rule that an offence is not established unless it is proved beyond doubt. But a departmental enquiry entailing consequences like loss of job which nowadays 3 (1986) 3 SCC 454 4 AIR 1963 SC 1723

means loss of livelihood, there must be fair play in action; in respect of an order involving adverse or penal consequences against an employee, there must be investigations to the charges consistent with the requirement of the situation in accordance with the principles of natural justice insofar as these are applicable in a particular situation.

17. The application of those principles of natural justice must always be in conformity with the scheme of the Act and the subject matter of the case. It is not possible to lay down any rigid rules as to which principle of natural justice is to be applied. There is no such thing as technical natural justice. The requirements of natural justice depend upon the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subjectmatter to be dealt with and so on. Concept of fair play in action which is the basis of natural justice must depend upon the particular lis between the parties. (See K.L. Tripathi v. State Bank of India5.) Rules and practices are constantly developing to ensure fairness in the making of decisions which affect people in their daily lives and livelihood. Without such fairness democratic governments cannot exist. Beyond all rules and procedures that is the sine qua non."

18. In the matter of Anant R. Kulkarni v.

Y.P.Education Society and others6 the Supreme Court

has emphasized the need for specific, definite and

clear charges and further held that charges should be

specific and definite giving details so that he may

give effective defence. It was observed as under:

"16. Where the chargesheet is accompanied by the statement of facts and the allegations are not specific in the chargesheet, but are crystal clear from the statement of facts, in such a situation, as both constitute the same document, it cannot be held that as the charges

5 (1984) 1 SCC 43 6 (2013) 6 SCC 515

were not specific, definite and clear, the enquiry stood vitiated. Thus, nowhere should a delinquent be served a chargesheet, without providing to him, a clear, specific and definite description of the charge against him. When statement of allegations are not served with the chargesheet, the enquiry stands vitiated, as having been conducted in violation of the principles of natural justice. Evidence adduced should not be perfunctory; even if the delinquent does not take the defence of, or make a protest with against that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair play in action, particularly in respect of an order involving adverse or penal consequences. What is required to be examined is whether the delinquent knew the nature of accusation. The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges. (Vide: State of A.P & Ors. v. S. Sree Rama Rao; Sawai Singh v. State of Rajasthan; U.P.SRTC v. Ram Chandra Yadav7, Union of India v. Gyan Chand Chattar8, and Anil Gilurker v. Bilaspur Raipur Kshetria Gramin Bank9.)

11. The purpose of holding an enquiry against any person is not only with a view to establish the charges levelled against him or to impose a penalty, but is also conducted with the object of such an enquiry recording the truth of the matter, and in that sense, the outcome of an enquiry may either result in establishing or vindicating his stand, and hence result in his exoneration. Therefore, fair action on the part of the authority concerned is a paramount necessity."

19. Reverting to the facts of the present case in

light of principle of law laid down by their Lordships

of the Supreme Court in abovestated judgments

(supra), it is quite vivid that the disciplinary

7 (2000) 9 SCC 327 8 (2009) 12 SCC 78 9 (2011) 14 SCC 379

authority has failed to perform his duty while framing

and serving chargesheet to the petitioner. In absence

of specific charges for violation of abovestated

Rules, the petitioner has failed to make effective

reply and failed to defend himself, as such,

departmental enquiry was conducted in violation of

principle of natural justice as the petitioner was not