Bhisham Singh vs Union Of India And Ors.
2001 Latest Caselaw 1814 Del

JUDGMENT

D.K. Jain, J.

1. The order passed by the Director General. Railway Protection Force(hereinafter referred to as 'the appellate authority') on 8 December 1999, setting aside the order of compulsory retirement passed by the Chief Security Commissioner, Northern Railway (hereinafter referred to as 'the disciplinary authority') and directing the re-instatement of the petitioner in service is impugned in this petition under Article 226 of the Constitution of India to the extent that the option given to the disciplinary authority to order a fresh enquiry and take further action as deemed appropriate is beyond the jurisdiction of the Appellate Authority. consequently the order passed by the disciplinary authority on 14 December 1999, directing fresh enquiry by the Senior Security Commissioner, Railway Protection Force, Delhi is also called into question.

2. Shorn of unnecessary details, the material facts relevant for the present petition are that the petitioner is an Inspector in the Railway Protection Force. A private complaint was lodged against him by one Ms. Santosh Bhushan, levelling certain allegations. Taking cognizance of the complaint, the disciplinary authority endorsed the complaint for enquiry to Assistant Security Commissioner (Crime). The Enquiry Officer submitted the report against the petitioner. Accepting the report of the Enquiry Officer, the disciplinary authority held that the charges against the petitioner were of serious nature, which had tarnished the image of the Force and, therefore, it warranted deterrent disciplinary action. He, therefore, directed compulsory retirement of the petitioner from service with immediate effect.

3. The petitioner filed a statutory appeal against the said order. one of the Grounds urged in the appeal was with regard to the competency of the Enquiry Officer to conduct the preliminary enquiry. Allowing the appeal of the petitioner on the said technical objection raised by him, the Appellate Authority passed the following order:

"The main contention of the appellant is that Asstt. Security Commissioner/Crime, Shri Nasir Zulficar was not competent to conduct any enquiry into the public complaint against the appellant within the premises of Rule 248.1 of RPF Rules, 1987.

Rules 248.1 of the RPF Rules, 1987 is clear and in the present case the enquiry should have been done by an officer of the rank of Security Commissioner. The entire Proceedings are, therefore, vitiated and are set aside. Consequently, the order passed by CSC/N.Rly awarding the appellant the punishment of compulsory retirement is also set aside.

In view of the above, the case is not being examined on merits. It is left open to CSC/N.Rly to order a fresh preliminary enquiry by an officer competent under rules and take further action as deemed appropriate.

The appellant is ordered to be reinstated in service and will report to CSC/N.Rly for his posting order."

4. Pursuant to the said order, while re-instating the petitioner, vide order dated 14 December 1999, the disciplinary authority ordered that a fresh enquiry be conducted by the Senior Security Commissioner, RPF, Delhi. As noted above, the said tow orders are under challenge in this petition.

5. The petition is resisted by the respondents by filing an affidavit in opposition. I have heard learned counsel for the parties.

6. It is submitted by Ms. Madhu Tewatia, learned counsel for the petitioner that the order passed by the Appellate Authority is illegal because: (1) after coming to the conclusion that entire disciplinary proceedings were vitiated because the preliminary enquiry was not conducted by a competent authority, the Appellate Authority did not have the jurisdiction to order a de novo enquiry in terms of Rule 153.2.1 of the Railway Protection Force Rules, 1987 (in short ' the Rules'), (ii) there is no provision in the Rules for holding a second preliminary enquiry, (iii) the order violates Rule 154.4 inasmuch as it confers power on the disciplinary authority to order a fresh enquiry without recording any reasons for so doing, which otherwise is a pre-requisite for ordering further enquiry, (iv) the order of the appellate authority is arbitrary inasmuch as in another case on identical facts, the appellate authority has simply set aside the order of punishment without directing fresh enquiry. It is also pointed out by the learned counsel that despite the appellate order, arrears for the period from June 1999 to December 1999 have still not been paid to the petitioner.

7. Ms. Anjana Gosain, learned counsel for the respondents, on the other hand, has submitted that in the light of provisions contained in Rule 217.3 the argument of the petitioner that the appellate authority does not have the power to remit the case back to the disciplinary authority for fresh adjudication is devoid of any force.

8. To appreciate the rival contentions, it would be necessary to refer to some of the relevant provisions contained in the Rules. Rule 248 provides for the procedure for dealing with the public complaints against the misconduct of members of the Force. Rule 248.1, relevant for our purpose, reads as follows:

"248.1 - Whenever a complaint against the misconduct of any member of the Force is received from the members of the public or where such complaint is received through a court wherein civil or criminal proceedings against a member of the Force have been instituted or otherwise, and controlling officer of such member of the Force is of the opinion that allegations are verifiable or otherwise an inquiry is called for, he may proceed to inquire himself into the complaint against a member of the Force specified in column (1) of the table below or depute any other officer as specified in the corresponding entry in column (2) of the said table:

TABLE

--------------------------------------------------------------------------------------

Member of the Force against Inquiry Officer Whom complaints received

--------------------------------------------------------------------------------------

          (1)                         (2) 
--------------------------------------------------------------------------------------

Constables/Naiks/Head     of and above the rank 
Constables     of Inspector.

Sub-inspector/Assistant   of and above the rank
Sub-Inspector     of Assistant Commandant

Inspector/Assistant    of and above the rank 
Security Commissioner    of Security Commissioner.

Security Commissioner or   Chief Security Commis-
above       sioner or the 
     Additional or the 
     Deputy Chief Security
     Commissioner, if so
     authorised by him.
--------------------------------------------------------------------------------------  
 

9. Rule 183 prescribes the procedure for imposing major punishment. Rule 153.2.1 to which reference has been made by learned counsel for the petitioner, which in substance is in pari materia to Rule 248.1, reads as follows:

"153.2.1 - Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against an enrolled member of the Force, it may itself inquire into or appoint an Inquiry Officer higher in rank to the enrolled member charged but now below the rank of Inspector, or institute a Court of Inquiry to inquire into the truth thereof."

10. Both the Rules provide that on receipt of a complaint of misconduct against a member of the Force from public or otherwise, if the controlling officer/disciplinary authority is of the opinion that the allegation in the complaint are verifiable or otherwise an enquiry is called for, he may proceed to enquire into the complaint himself or he may have the enquiry conducted through an Enquiry Officer. It may be noted that insofar as Rule 248.1 is concerned, Enquiry Officer competent to hold enquiry against a particular member of the force has been specified, whereas Rule 153.2.1 only provides that the Enquiry Officer cannot be below the rank of Inspector. It is because of the applicability of Rule 248.1 that the enquiry conducted by Assistant Security Commissioner has been held to be bad, the petitioner being of the rank of an Inspector. Therefore, reliance on Rule 153.2.1 by learned counsel for the petitioner is misplaced.

11. Rule 217 deals with the appeals. Since the main argument of learned counsel for the petitioner hinges around the interpretation of Rule 217.3, it would be appropriate to re-produce the same:

"217.3 - In the case of an appeal against an order imposing any of the punishments specified in rules 148 and 149 or enhancing any penalty imposed under the said rules the appellate authority shall consider:

(a) whether the procedure prescribed in these rules has been complied with, and if not, whether such non-compliance has resulted in violation of any constitutional provisions or in miscarriage of justice;

(b) whether the findings are warranted and based on evidence on record; and

(c) whether the punishment or the enhanced punishment imposed is adequate or inadequate or server and pass speaking orders for -

(i) setting aside, confirming, reducing or enhancing the punishment, or

(ii) remitting the case to the authority which imposed or enhanced the punishment or to any other authority with such directions as it may deem fit in the circumstances of the case:

Provided that-

(i) no order imposing an enhanced punishment shall be passed unless the appellant is given an opportunity of making any representation which he may with to make against such enhanced punishment; and

(ii) if the enhanced punishment, which the appellate authority proposes to impose, is one of the punishments specified in clauses (a) to (d) of rule 148.2 and an inquiry under rule 153 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 153 itself hold such inquiry or direct that such inquiry be held and thereafter on a consideration of the proceedings of such inquiry pass such orders as it may deem fit."

12. The contention of learned counsel for the petitioner is that clauses (i) and (ii), providing for setting aside, remission of the case etc; apply only to Sub-rule (c), particularly in view of the two provisos to Rule 217.3. The stand of the learned counsel, therefore, is that the power to remit the case to the authority, which imposed or enhanced the punishment or to any other authority with such directions as it deems fit is available to the appellate authority only if it goes into the merits of the evidence and the punishment and not otherwise. In the other words, the submissions is that if the appellate authority merely finds that there has been non-compliance with the prescribed procedure which has resulted in violation of any constitutional provisions or in miscarriage of justice, the appellate authority has no option but to set aside the order. It has no jurisdiction to proceed further and give any direction to the disciplinary authority.

13. I do not find any force in the submissions of learned counsel for the petitioner. A bare reading of the said provisions makes it clear that clauses (a), (b) and (c) have to be read in conjunction. The existence of word "and" after Sub-rule (b) makes the position abundantly clear in that behalf. Rule 217.3 is couched in very wide terms and there can be no doubt that when the appellate authority comes to the conclusion that the order imposing punishment has resulted in miscarriage of justice or the punishment imposed is adequate or inadequate or severe it has the power to remit the case back to the authority concerned with such directions as it may deem fit in the circumstances of the case. I am of the view that if the appellate authority comes to the conclusion that there has been some procedural irregularity which has resulted in violation of any constitutional provisions, like in the instant case, where the enquiry was held by an officer who did not have the jurisdiction to do so it may not even be fair to the delinquent officer if the appellate authority comments on the evidence recorded by such enquiry officer or on the punishment awarded on the basis of such report. In my view the appellate authority would be competent to direct fresh enquiry even from the stage when the irregularity intervened. The interpretation, as canvassed by learned counsel for the petitioner would lead to absurdity, which according to rules of interpretation has to be avoided.

14. Learned counsel for the petitioner has vehemently submitted that before ordering fresh enquiry the disciplinary authority was required to apply his independent mind to come to the conclusion that an enquiry was in fact required to be conducted in the complaint, which he has failed to do. The argument is misconceived. Though there is no quarrel with the proposition that under Rule 248 the controlling officer/disciplinary authority, on receipt of the complaint, is required to form an opinion that the allegations are verifiable or otherwise an enquiry is called for, but in the instant case, in view of the order passed by the disciplinary authority on 20 March 1998 in the first instance, forming the opinion that a preliminary enquiry was required to be conducted, it was justified in referring the matter to the Enquiry Officer for enquiry in terms of the said Rule.

15. As regards the allegation of learned counsel for the petitioner that in another case the appellate authority, having found that there was violation of provisions of the Rules, has only set aside the order of punishment with no further directions, for the view I have taken on the interpretation of Rule 217.3 it is difficult to hold that there has been any arbitrariness on the part of the appellate authority.

16. In so far as the question of payment of arrears to the petitioner for the period from June 1999 to December 1999 is concerned, it is submitted by learned counsel for the respondents that these wee not paid because of subsequent clarification given by the appellate authority, vide his order dated 3 August 2000, wherein it was advised that payment may await the final decision pursuant to fresh enquiry. However, learned counsel has now fairly stated, on instructions, that the said arrears shall be paid to the petitioner expeditiously.

17. I do not find any illegality in the impugned orders warranting interference by this Court. The petition is devoid of any merit and is accordingly dismissed with a direction that the arrears for the afore-noted period shall be paid to the petitioner within four weeks from today.