Sukhbir Singh vs Union Of India And Ors.
1995 Latest Caselaw 872 Del

JUDGMENT

Vijender Jain, J.

(1) This is a petition filed against the order of dismissal dated 6.3.1986 passed by the respondents as well as order passed on 28.5.1995 passed in appeal by the Deputy Inspector General of the Railway Protection Force. The petitioner was charged with running a diary consisting of 12 Buffalos and two cows without the prior approval of the Competent Authority of the Railways on the ground that such act was likely to embarrass him in the discharge of his official duties. The enquiry was conducted and the enquiry report dated 16.10.1985 framing the charge was placed before the appropriate authority. Pursuant to the enquiry report, the service of the petitioner was terminated.

(2) Mr. Anil Gupta, learned Counsel appearing for the petitioner, has urged that the charge framed of running a diary does not fall and come within the ambit of Rule-16 (2) of the Railway Service and Conduct Rules (hereinafter called as "Rules"). Sub-rule (2) of Rule-16 of the Rules is as follows - "No Government servant shall make, or permit any member of his family or any person acting on his behalf to make, any investment which is likely to embarrass or influence him in the discharge of his official duties."

(3) On the basis of aforesaid Rule, Mr. Gupta has argued that this Rule deals with investment, lending, borrowing and the investment, even if it is assumed that the dairy business was conducted by the wife of the petitioner it would not be an investment in terms of Rule-16. Mr. Gupta has argued that a specific provision has been incorporated under the Rules i.e. Rule-15, to deal with such kind of situation as is alleged by the petitioner. However, on merit he has denied that any investment has been made by the petitioner in the diary business. Rule-15 of the Rules is as follows:- "PRIVATE trade or employment :-[1] No Government servant shall, except with the previous sanction of the Government engage directly or indirectly in any trade or business or negotiate for or undertake any other employment. Provided that a Government servant, may without such sanction, (i) undertake honorary work of social or charitable nature; or (ii) undertake occasional work of a literary, artistic or scientific character; or (iii) participate in sports activities as amateur; subject to the condition that official duties do not thereby suffer. He shall not undertake or shall discontinue such work or activity if so directed by the Government."

On the other hand, Mr. Jagjit Singh, learned Counsel appearing for the respondents, has vehemently argued in support of the order of removal from service of the petitioner. Mr. Singh has argued that investment occurring in sub-rule (2) of Rule- 16 of the Rules would include investment made in a diary business. From the bare reading of Rule-16 of the Rules, it is manifestly clear that this Rule has been inserted to curb tendency of the Railway servant to speculate in stock, share or other investments and that is why explanation to Rule-16 of the Rules has been added, which reads as under:- "Explanation:-[i] Frequent purchase or sale or both, of shares, securities or other investments shall be deemed to be speculation within the meaning of this sub-rule. [ii] No Government servant shall make, or permit any member of his family or any person acting on his behalf to make, any investment which is likely to embarrass or influence him in the discharge of his official duties. [iii] If any question arises whether any transaction is of the nature referred to in Sub-rule (1) or Sub-rule (2), the decision of the Government thereon shall be final. [iv] (i) No Government servant shall, save in the ordinary course or business with a bank or a firm of standing duly authorised to conduct banking business, either himself or through any member of his family or any other person acting on his behalf:- (a) lend or borrow or deposit money, as principal or agent, to or from or with any person or firm or private limited co. with whom he is likely to have official dealings, or otherwise place himself under any pecuniary obligation to such person, or firm or private limited company; or (b) lend money to any person at interest or in a manner whereby return in money or in kind is charged or paid; or Provided that a Government servant may give to, or accept from, a relative or a personal friend, a purely temporary loan of a small amount free of interest, or operate a credit account with a bona fide tradesman or make an advance of a pay to his private employee; Provided further that nothing in this sub-rule shall apply in respect of any transaction entered into by a Government servant with the previous sanction of the Government. (ii) When a Government servant is appointed or transferred to a post of such nature as would involve him in the breach of any of the provisions of Sub-rule (2) or Sub-rule (4), he shall forthwith report the circumstances to the Competent Authority and shall thereafter act in accordance with such order as may be made by such authority."

(4) What is required by the aforesaid Rule is prohibition of frequent purchase or sale of share, security or other investments, which under the Railway Service and Conduct Rules shall be deemed as speculation if person is found indulging in. It is in this context that the investment occurring in Sub-rule (2) of Rule-16 has to be incorporated. The legislative intention becomes manifestly clear because as far as Rule-16 (1) of the Rules is concerned, it prohibits a Railway servant from speculating in any stock share or other investments whereas the same embargo has been put not only on the Railway servant alone but on any member of his family or any person acting on his behalf to make such kind of investments, which are speculative in nature so that the he may not be embarrassed or he may not be influenced on account of such activities in discharge of his official duties.

(5) I am fortified in my view by Rule-15 of the Rules, which has been specifically made to cover private trade, employment carried out by Railway servants. Under Rule-15, no Railway servant can engage himself directly in any trade or business without the prior sanction of the authorities. Sub-rule (3) of Rule-15 of the Rules further provides that in the event of Railway servant engaging himself or any of his family members, he has to inform to the Government. Once Rule-15 specifically deals with the kind of cases of which the petitioner was charged, the termination of the service of the petitioner under Rule-16 cannot be sustained. As Rule-16 is inapplicable to the charge made against the petitioner.

(6) The petitioner, while preparing an appeal against the order of termination to the Appellate Authority, had specifically taken the plea in paragraph-4 of the appeal dated 28.5.1986 that the charge framed against him was illegal as he could not be charged under Rule-16 and if the respondents wanted to initiate action against the petitioner, respondent ought to have taken recourse to Rule-15 of the Rules. The Appellate Authority did not consider the ground of challenge in appeal but went on to upheld the order of the respondent on the premises that the petitioner had invested a large sum of money for which there was no evidence on record.

(7) In view of the discussions above, I set aside the order of dismissal dated 6.3.1986 and order dated 28.5.1986 passed in appeal. The result is that enquiry pursuant to the said order is also quashed.

(8) In view of my setting aside the order of termination of the services of the petitioner, the petitioner is entitled to continue in service with all benefits and consequential promotions. However, as the petitioner has not filed any affidavit to the effect that he was unemployed, I do not award full back wages to the petitioner. The respondent shall pay the petitioner 50% of the back wages. The payment of back wages be made within a period of three months. The petition is disposed of in terms of the above order. Rule is made absolute. Rule made absolute.