Shri Birender Singh & Ors. vs Dir. General, Rly. Protection ...
2010 Latest Caselaw 732 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                 Judgment reserved on: 18.01.2010
%                Judgment delivered on: 09.02.2010

+                           W.P.C. No.1902/1993

       SHRI BIRENDER SINGH & ORS.                ..... Petitioners
                       Through: Mr. R.K. Kapoor & Mr. Romil Pathak,
                                Advocates

                       versus


       DIR. GENERAL, RLY. PROTECTION
       SPL.FORCE                           ..... Respondent
                       Through:  Mr. Chandan Kumar, Advocate


CORAM:

HON'BLE MR. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                :     No

2.     To be referred to Reporter or not?             :     Yes

3.     Whether the judgment should be reported
       in the Digest?                                 :     Yes


                                JUDGMENT

VIPIN SANGHI, J.

1. This writ petition under Article 226 of the Constitution of India

has been filed by four petitioners, namely, Sh. Birender Singh, Sh. Rai

Singh, Sh. Dharambir Singh and Sh. Rajbir Singh, to challenge the

common order of dismissal dated 5th September, 1990 passed against

all of them by their Disciplinary Authority, namely Commandant of the

4th Battalion, Railway Protection Special Force; the appellate orders

passed by the Appellate Authority, namely, Chief Security

Commissioner/RPSF dismissing departmental appeals of the

petitioners, and; the common order dated 21st December, 1992 passed

by the Revisional Authority, i.e. the Director General, Railway

Protection Force dismissing the revisions preferred by all the

petitioners. The petitioners have also sought a direction to the

respondents to reinstate them in service with all consequential

benefits.

2. It may be noted that though the prayer clause in the writ petition

refers to two appellate orders: dated 27.07.1991 stated to have been

passed in the case of Rajbir Singh and Rai Singh, and the appellate

order dated 9th September, 1991 stated to have been passed in the

case of Birender Singh, the petitioners have placed on record only one

undated appellate order passed in respect of the appeal preferred by

the petitioner no.2 Sh. Rai Singh. The appellate orders stated to have

been passed in the appeals preferred by the petitioner nos.1, 3 and 4

do not form part of our record.

3. The petitioners were all serving as constables in the Railway

Protection Special Force. They were charge sheeted under Rule 153 of

the Railway Protection Force Rules, 1987 on the allegation that on 15th

May, 1989, Sh. Birender Singh and Sh. Rai Singh, i.e. petitioner nos.1

and 2 had jointly assaulted Sh. N.C. Sarkar, Coy Commandant by giving

him blows in the office room of the Coy Commandant "B" Coy causing

injury on his person. It was also alleged that Sh. Rajbir Singh and Sh.

Dharambir Singh, i.e. petitioner nos.4 and 3 respectively acted in

connivance with petitioner nos.1 and 2 and were also involved in the

assault on the person of Sh. N.C. Sarkar Coy Commandant. As per the

charge sheet, it was further alleged that the petitioners shouted at and

threatened Sh. N.C. Sarkar, the Coy Commandant and created an ugly

scene by forcibly trying to enter the coach, where he had taken refuge

after escaping from the office room after the assault. It was further

alleged that while Sh. Sarkar was on his way to the bus stand,

constable Dharambir Singh and Rai Singh, i.e. petitioner nos.3 and 2

respectively followed him in anger and produced a piece of paper on

which it was written in Hindi that he (N.C. Sarkar) had no complaint

against anyone in the Company. The same was signed by Sh. N.C.

Sarkar to avoid an ugly situation likely to be created on the road in

case of refusal.

4. Prior to the issuance of the aforesaid chargesheet on 30th of May

1989, the respondents conducted a preliminary inquiry resulting in a

preliminary inquiry report dated 20th of May, 1989. In pursuance of the

aforesaid chargesheet dated 30th May, 1989, Shri D. Kholi, Assistant

Commandant was appointed as an inquiry officer, who submitted his

report on 16th February, 1990. However, this report was cancelled as

the inquiry was found to contain procedural flaws and it was directed

that departmental proceedings be started afresh by the order of the

Commandant. It was directed that fresh inquiry be held by providing

natural and fair justice to the delinquent. Thereafter, the inquiry was

held afresh culminating in the inquiry report submitted on 31st of

August, 1990 by Sh. C.L. Kuril, Inquiry Officer. The Inquiry Officer

returned the finding that all four charges levelled against the

petitioners stood proved beyond doubt and they were all found guilty

of the charges levelled against them.

5. As aforesaid, the Disciplinary Authority, namely, the

Commandant 4th Battalion, RPSF accepted the findings contained in the

inquiry report and passed the order dated the 5th of September, 1991

dismissing all the petitioners from service. The appeals preferred by

the four petitioners were also dismissed by the Appellate Authority by

the orders dated 9th September, 1991 and 27th September, 1991. One

such order passed in the appeal preferred by Constable Rai Singh

which is dated 27th of September, 1991 has been placed on record as

Annexure P-II. The revisions preferred by the four petitioners against

the appellate order were disposed off by a common order dated 21st of

December, 1992 upholding the orders passed by the Disciplinary

Authority and the Appellate Authority.

6. Mr. Kapoor, learned counsel for the petitioners, has firstly

submitted that it was not open to the respondents to cancel the

departmental inquiry earlier held as also the inquiry report submitted

on 16th of February, 1990 and to re-start the departmental proceedings

afresh. He submits that there is no provision in the Railway Protection

Force Rules, which empowers the Disciplinary Authority to take such a

step.

7. We may deal with the aforesaid submission at this stage itself.

It is not the petitioners‟ case that the first inquiry report gave them a

clean chit. It is evident from the order passed by the Commandant

(stated to be of 05.03.1990), that the earlier inquiry proceedings and

the report dated 16th February, 1990 submitted by Sh. D. Kholi,

Assistant Commandant-I, was cancelled due to procedural flaws. It is

not the petitioners‟ case that the reason given by the Commandant for

cancellation of the said inquiry proceedings and the report dated 16 th

February, 1990 were not true. We find that at no earlier stage the

petitioner questioned the cancellation of the first inquiry and the

inquiry report dated 16th of February, 1990. Even in the present writ

petition the petitioners have raised no such grievance and no such

ground has been taken by the petitioners. The petitioners not having

taken the said ground in their petition, the respondents have had no

occasion to deal with the same.

8. To us it appears reasonable that if the Disciplinary Authority

finds that the inquiry proceedings have not been conducted in

accordance with the law or have been conducted in breach of

principles of natural justice and the prescribed procedure, the

Disciplinary Authority would be entitled to quash/cancel the same and

to restart the inquiry. Since the Disciplinary Authority himself realized

the procedural flaws in the inquiry report prepared by Sh. D. Kholi,

Assistant Commandant-I, not only was he entitled to, but was also

obliged to take corrective steps on his own rather than to pursue with

an enquiry report, which could not be sustained in the eyes of law. In

South Bengal State Transport Corpn. v. Sapan Kumar Mitra

(2006) 2 SCC 584, the Supreme Court held that when a court, on

judicial review, finds fatal infirmities in an inquiry report, it quashes the

same and remands the matter back for undertaking proceedings from

the very stage at which the illegality is found to have crept into the

disciplinary proceedings. No legal prohibition to the action of the

disciplinary authority has been pointed out. We are, therefore, of the

view that there is no merit in the aforesaid submission of Mr. Kapoor

and we reject the same.

9. The next submission of Mr. Kapoor is that the respondents did

not provide a copy of the inquiry report to the petitioners and

consequently deprived the petitioners the opportunity to represent

against the inquiry report before the passing of the impugned order

dated 5th September, 1990 by the Disciplinary Authority. He submits

that since the Inquiry Officer was different from the Disciplinary

Authority, it was essential for the Disciplinary Authority to have

provided an opportunity to the petitioners to represent against the

inquiry report by first furnishing a copy of the inquiry report to the

petitioners. He submits that the inquiry report was provided to the

petitioners for the first time along with the impugned order dated 5 th

September, 1990 passed by the Disciplinary Authority.

10. We find no merit in this submission of Mr. Kapoor. Article 311(1)

states that no person who is a member of a civil service of the Union or

all India service or a civil service of a State or holds a civil post under

the Union or a State shall be dismissed or removed by an authority

subordinate to that by which he was appointed. By the 15 th

Amendment to the Constitution effective from 06.10.1963, sub-Article

(2) of Article 311 was added which reads as follows:

"311.(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry."

11. After the aforesaid amendment, the Supreme Court in various

decisions held that failure to furnish a copy of the inquiry report to the

delinquent would result in violation of the guarantee of reasonable

opportunity. Therefore, Article 311, as it then stood, was interpreted in

Union of India v. H.C. Goel, (1964) 4 SCR 718 as providing for two

opportunities to the delinquent to defend himself. It was held that the

delinquent must have a clear notice of the charge which he is called

upon to meet before the departmental inquiry commences, and after

he gets such notice and is given the opportunity to offer his

explanation, the inquiry must be conducted according to the rules and

consistently with the requirement of natural justice. It was held that at

the end of the inquiry, upon appreciation of evidence, the Inquiry

Officer should record his conclusions and submit his report. It was also

held that after the report is received by the Government, the

Government, if it agrees in full or partially with the conclusion drawn in

the report, which implicates the delinquent, the delinquent should be

given an opportunity to show cause against the penalty that the

Government proposes to impose upon the delinquent.

12. Article 311 (2) was amended by the 42nd Amendment of the

Constitution on 3rd January, 1997. Sub-Article (2) of Article 311 after

the 42nd Amendment reads as follows:

"311.(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:"

13. As a result of the aforesaid amendment, the interpretation

sought to be given was that the delinquent was not obliged to be

provided with a copy of the inquiry report. The impugned order passed

by the Disciplinary Authority on 5th September, 1990 was also passed

during the era when, as a consequence of the 42nd Amendment of the

Constitution, it was understood that it was not imperative for the

Disciplinary Authority to provide a copy of the inquiry report to the

delinquent before passing the order imposing penalty.

14. The Supreme Court interpreted Article 311 as amended by the

42nd Amendment in Union of India v. Mohd. Ramzan Khan, (1991)

1 SCC 588. In paragraph 15 of the aforesaid decision, the Supreme

Court held as follows:

"15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry

report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position."

15. In paragraph 17 of the judgment the Supreme Court expressly

stated that the view taken by it, as extracted above, would have

prospective application and no punishment imposed shall be open to

the challenge on this ground. As the impugned order passed by the

Disciplinary Authority in the present case is dated 5th of September,

1990, i.e. prior to the pronouncement of the Supreme Court in Mohd.

Ramzan Khan (supra) which came to be decided only on 20th of

November, 1990, the ground that the inquiry report was not furnished

to the petitioners before the passing of the impugned order dated 5th of

September, 1990 by the Disciplinary Authority to enable the

petitioners to represent against the inquiry report is not open for the

petitioners to take.

16. Pertinently, even in the memo of appeal preferred by Sh.

Birender Singh, there is no grievance made by him with regard to non

supply of the enquiry report prior to the passing of the order of

dismissal from service dated 5th of September, 1990. The petitioners

have not disclosed either at the appellate or the revisional stage, or

even before us, the prejudice, let alone real prejudice, suffered by any

of them on account of the non supply of the enquiry report prior to

passing of the order of dismissal. We also find support for the view

which we have taken from the decision of the Supreme Court in Union

of India & Ors. vs. Bishambar Das Dogra, JT 2009 (9) SC 175. For

this reason as well, we find no merit in the submission of the

petitioners and reject the same.

17. The next submission of Mr. Kapoor is that the Disciplinary

Authority while passing the impugned order dated 5th September, 1990

did not apply his own mind to the charges and did not return his own

findings. He submits that the Disciplinary Authority did not discuss the

evidence recorded by the inquiry officer. The submission of Mr.

Kapoor is that Rule 154.6 of the Railway Protection Force Rules (`RPF

Rules‟ hereafter) prescribes that the Disciplinary Authority should

arrive at "its findings" on the articles of charge and that the findings of

the Disciplinary Authority should be independent of the findings given

by the inquiry officer in his report. Rules 154.6 and 154.7 of the RPF

Rules, 1987 read as follows:

"154.6 If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the minor punishments should be imposed on the party charged, it shall, notwithstanding anything contained in Rule 158, make an order imposing such punishment.

154.7 If the disciplinary authority, having regard to its findings on all or any of the articles of charge and on the basis of evidence on record, is of the opinion that any of the major punishments should be imposed on the party charged, it shall make an order imposing such punishment and it shall not be necessary to give to the party charged any

opportunity of making representation on the punishment proposed to be imposed."

18. At this stage, it would be appropriate to set out the specific

charges framed against the petitioners. The charges framed against

the petitioners read as follows:

"(1) On 15.5.89 between 1100 hrs to 1200 hrs Const/Birender Singh, Const/Rai Singh assaulted Shri N.C. Sarkar Coy Commander „B‟ Coy by blows in the office room of Coy Commander „B‟ Coy causing injury on the person of Shri N.C. Sarkar. Constable/Rajbir Singh and Const/Dharambir Singh being in full connivance with Const/Birender Singh and Const/Rai Singh were also involved in the assult on the person of above named Coy Commander.

              (2)    All the above named Constables shouted
              and     threatened    Shri/N.C. Sarkar,   Coy
              Commander „B‟ Coy and created an ugly seen

by forcibly trying to enter the coach where Shri/ Sarkar had come after escaping from the office room after assault.

              (3)    While Shri/Sarkar was on way to Bus
              stand     Constable/Dharambir    Singh     and

Const/Rai Singh followed him out of anger and produced a piece of paper written in Hindi that he (N.C. Sarkar) had no complaint against any one in the Coy which was signed by Shri/N.C. Sarkar to avoid the ugly situation likely to happen on the road on refusal. This action on the part of the above named Constables prove their ulterior motive.

All the above charges tantamount to gross acts of indiscipline & misconduct on the part of the above Constables."

19. The statement of charges contained in the chargesheet against

the petitioners read as follows:

"On 15.5.89 between 1100 hrs to 1200 hrs Shri/N.C. Sarkar Coy Commander while working in his office at Jorai, Const/Birender Singh, Const/Rai Singh, Const/ Dharambir Singh and Const/Rajbir Singh entered the office and assaulted by blows to Shri/N.C. Sarkar causing injuries on his person. Shri/N.C. Sarkar any how with the help of other staff managed to come out of the office to the Rly coach where he was staying and the above named four constables tried to enter the coach forcibly, shouting and threatening to Shri/N.C. Sarkar. However, Shri/N.C. Sarkar saved himself by locking the door of the coach from inside.

While Shri/N.C. Sarkar out of fear left the place of his stay and proceeding to Bus stand to come to NJP., Const/Dharambir Singh and Cost/Rai Singh followed him and produced a piece of paper written in Hindi that he (N.C. Sarkar) had no complaint against any one in the Coy which was signed by Shri/N.C. Sarkar to avoid the ugly situation likely to happen on road on refusal. The above named Constables were with angry mood and obtained the signature of the Coy Commander with some ulterior motive."

20. There can be no doubt that the Disciplinary Authority is

obliged to apply his mind upon the receipt of the inquiry report, so as

to satisfy himself that the findings returned by the inquiry officer are

founded upon cogent and germane evidence and the evidence led

before the inquiry officer has been rationally considered. However, in

our view, it is not expected of the Disciplinary Authority to again

undertake a detailed and rigorous marshalling of the evidence,

particularly when the Disciplinary Authority agrees with the findings

recorded by the inquiry officer. Pertinently, neither under Rule 154.6

nor under Rule 154.7 of the Railway Protection Force Rules, 1987 is

there any requirement that the Disciplinary Authority should record his

own independent reasons even when he agrees with the findings of the

inquiry officer.

21. The Supreme Court has considered the aforesaid issue in

State Bank of Bikaner and Jaipur & Ors. vs. Prabhu Dayal

Grover (1995) 6 SCC 279. We may extract paragraphs 12 & 13 from

the said decision, which read as follows:

"12. Now that we found that the departmental proceeding cannot be faulted for purported breach of Regulation 68(2)(iii), we have next to ascertain whether the findings of the learned courts below regarding the orders of the disciplinary authority and the appellate authority can be sustained or not. Before considering them in the light of their factual contents, it will be apposite to look into the law laid down by this Court regarding furnishing of reasons by administrative authorities for its decisions. As earlier noticed, the learned counsel for the parties referred to a number of decisions of this Court on the subject, but to avoid prolixity we would only refer to that in S.N. Mukherjee V. Union of India (1990) 4 SCC 594, as it was rendered by a Constitution Bench of five Judges. In that case, the following two questions fell for determination: (SCC p.

                    602, para 9)
                   "(i) Is there any general principle of law
                   which      requires  an    administrative
                   authority to record the reasons for its
                   decision; and

(ii) If so, does the said principle apply to an order confirming the findings and sentence of a court-martial and post- confirmation proceedings under the Act?"

After referring to the earlier decisions of this Court and the relevant law prevalent in other countries, this Court answered the first question -- with which we are only concerned

in these appeals -- as under: (SCC p. 614, para

40) "For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision."

13. In view of the answer so given, it has to be now seen whether under the Regulations, the authorities concerned are required to give reasons for their decisions. Regulation 68(3) lays down the procedure the disciplinary authority is required to follow after it receives the proceedings of the enquiry including the report of the Inquiry Officer. On careful perusal thereof we find that only in those cases where the disciplinary authority considers it necessary to direct fresh or further enquiry or disagrees with the findings of the Inquiry Officer, it has to record the reasons for its such directions, but there is no such obligation if it agrees with the findings of the Inquiry Officer. It can, therefore, be legitimately inferred that when express provisions have been made in the Regulations for recording reasons in only the first two of the three fact situations -- and not the other -- there is no implied obligation also to record the reasons in case of concurrence with the findings of the Inquiry Officer.

Even if we proceed on the basis that such an obligation is implicit, still the order of the disciplinary authority cannot be held to be bad as, on perusal thereof, we find that before concurring with the findings of the Inquiry Officer it has gone through the entire proceeding and applied its mind thereto. In our considered opinion, when the disciplinary authority agrees with the findings of the Inquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to reappraise the evidence to arrive at the same findings. We are, therefore, unable to accept the contention of Mr Dutta that the order of punishment was liable to be struck down as it was a non-speaking order and did not contain any reason." (emphasis supplied)

The said position has been reiterated in National Fertilizers

Limited & Anr. v. P.K. Khanna AIR 2005 SC 3742 and Ram Kumar

v. State of Haryana 1988 SCC (L&S) 246.

22. During the course of inquiry 11 prosecution witnesses were

examined. Ample opportunity was granted to the petitioners to cross-

examine the said witnesses. In the inquiry report the inquiry officer

has discussed the statements made by these prosecution witnesses.

He has appreciated the evidence led by the witnesses, including

independent eye witnesses to the incident, such as PW-3 H.C. Rajendra

Prasad Singh and PW-4 Phuleshwar Jha. The inquiry officer has believed

the allegations leveled by the prosecution that Sh. N.C. Sarkar was

badly assaulted by the delinquents, namely, Constable Birender Singh

(Petitioner no.1) and Constable Rai Singh (petitioner no.2 with the

connivance of Constable Rajbir Singh (petitioner no.4) and Constable

Dharambir Singh. (petitioner no.3).

23. With regard to the charge that two of the delinquents viz.

Constable Dharambir Singh (Petitioner no.3 and Constable Rai Singh

(Petitioner no.2) had followed the Coy Commander N.C. Sarkar while he

was on his way to the bus stand, the inquiry officer held that the said

charge was established by PW-5 H.C. Talisaba Ao and PW-7 Naik K.V.

Sridharan. He also discusses the evidence led by PW-11 Sh. A.K. Das,

who had seen the pitiable condition of Sh. Sarkar, and had taken him

to the hospital. Sh. A.K. Das stated that he had seen the injuries on

the body of Sh. Sarkar. PW-9 N. Dhar the D.M.O had certified the

injuries on the body of Sh. Sarkar and stated that Sh. Sarkar was

admitted as an indoor patient in N.F. Railway Hospital, New Jaipalguri.

Consequently, the inquiry officer concluded as follows:-

"From the evidence it is clear that IPF Shri Sarkar did not spare the Constables on leave on Administrative ground as such most of the Constables and Class IV staff of the Coy joined hands with each other and coocked-up [sic cooked] conspiracy against IPF Sarkar. As a result of the same all the four delinquents jointly assaulted mercylessly [sic mercilessly] to IPF N.C. Sarkar causing injuries on his body which was uncalled for in the Armed Force. Due to fear created by the four delinquents in the Coy none could dare to come forward to state the truth in the Preliminary Enquiry. However sufficient evidence has come on the record in the Enquiry. Due to long gap between incidence and enquiry there are some contradiction in the statements of the P.Ws. which are bound to come on record."

Accordingly, all the four charges were held to be proved as

laid against the petitioners.

24. While passing the impugned order dated 5th September,

1990, the Disciplinary Authority sets out the charges against the

petitioners; records the fact that there was earlier a preliminary inquiry

conducted; the fact that the earlier inquiry conducted by Sh. D. Kholi

suffered from procedural lacuna as the reporting officer had become

the PW and, therefore, he could not act as the disciplinary authority or

the inquiry officer; that adjutant C.L. Kuril was consequently appointed

as the inquiry officer, who submitted his report on 31st August, 1990

proving all the charges leveled against the petitioners. The

Disciplinary Authority then proceeds to analyze the evidence led

before the inquiry officer.

25. Since the submission of the petitioners is that the disciplinary

authority has not applied his mind to the inquiry report and has not

arrived at his findings by application of mind, we consider it

appropriate to set out the following extract from the impugned order

dated 5th September, 1990:

"4. I have perused all the papers including findings of Enquiry Officer very carefully. On the evidences that on 15.5.89 Commander B Coy N.C. Sarkar conducted a meeting at about 1000 hrs in his Coy office in which Const/ Birender Singh and others approached him for leave expressing the importance of the marriages. Inspector N.C. Sarkar could not spare them immediately on administrative grounds as 10% staff already to leave. The staff could not produce the sufficient evidence in support of the urgency for going on leave. All the 4 delinquents conspired and assaulted Inspector N.C. Sarkar in his office between 1100 to 1200 hrs which was witnessed by PWs namely; HC/ Rajender Prasad Singh, HC Phuleswar Jha, Const/ Rattan Gangopadhyay. Further Inspector Sarkar was protected and came into the Ist Class Bogie and took shelter. The delinquents tried to enter forcibly with a view to assault him but they could not succeed as the bogie was bolted from inside.

5. Inspector Sarkar took his brief case and with ASI Parmeswar Singh and Const/ Manjeet Bansfore, went towards the Bus stand for proceeding to New Jalpaiguri to report the matter to HQs. In the way Const/ Dharambir Singh and Const/ Rai Singh obtained his signature on a hindi written paper for no complaints against the Coy staff. This has been witnessed by PWs HC / Talisaba Ao and

NK/K.V. Sreedharan as per evidences in the Enquiries.

6. Inspector Sarkar came to NJP and IPF/HQs A.K. Das took him to Rly Hospital where he was admitted for medical treatment. During the period of treatment, DMO/N. Dhar had examined him and issued certificate certifying the injuries. DMO/N. Dhar and A.K. Das have certified the injuries in the enquiry. DMO N. Dhar has stated in the Enquiry that the injuries were caused to N.C. Sarkar by assault. A message was given by Const/ Dharambir Singh in Hindi to IPF M.N. Prasad of Alipurduar Division which has been accepted the enquiry by Const/ Dharambir Singh as has it was signed by him. Signature on the message has been certified/ proved by IPF/ A.K. Das also in the enquiry. All the delinquents assaulted their Coy Commander while on duty and created an ugly scene.

7. This serious indisciplined act of all the 4 Constables namely Const/ Birender Singh, Const/ Dharambir Singh, Const/ Rai Singh and Const/ Rajbir Singh is against the discipline and the retention of such personnel in the department is undesirable as such I hereby order that all the delinquents are dismissed from service immediately from the date of service of the order."

26. The aforesaid clearly demonstrates due application of mind

by the Disciplinary Authority to the findings returned by the inquiry

officer after conducting the inquiry. It cannot be said that the

Disciplinary Authority has not discussed the evidence led in the inquiry

proceedings and has not applied his mind to the same.

27. A perusal of Rules 154.6 and 154.7 does not disclose any

specific obligation cast on the Disciplinary Authority to record his own

independent reasons or to re-appreciate the evidence to arrive at his

own findings. We may hasten to add that in the present case, in our

opinion, the Disciplinary Authority has, in fact, considered the

evidence, given its reasons and arrived at its findings while passing the

impugned order dated 5th September, 1990.

28. Mr. Kapoor submits that the Disciplinary Authority has

concluded that all the four petitioners had assaulted Sh. Sarkar, which

is even contrary to the charge sheet. He submits that Charge-I in the

chargesheet names only Constable Birender Singh and Rai Singh in so

far as the charge of assaulting Sh. N.C. Sarkar is concerned, and does

not name Constable Rajbir Singh and Dharmbir Singh.

29. We do not find merit in this submission of Mr. Kapoor. A

perusal of the charge sheet shows that while Constable Birender Singh

and Rai Singh have been charged with assault on Sh. N.C. Sarkar, the

other two constables have also been charged with full connivance with

the former two. Charge-I also states "Constable Birender Singh and

Constable Rai Singh were also involved in the assault on the person of

the above named Coy Commander". Charge II also names all the four

petitioners and accuses them of shouting and threatening Sh. N.C.

Sarkar and creating an ugly scene by forcibly trying to enter the coach

where Sh. Sarkar had come after escaping from the office room after

the assault. Therefore, it cannot be said that only two of the petitioner

constables had been charged with assault of Sh. N.C. Sarkar, while the

other two were not so charged.

30. We also find no merit in the submission of Mr. Kapoor that

there is lack of discussion in the impugned order dated 5th September,

1990 with regard to the major penalty to which the petitioners should

be subjected, as the law provides for various major penalties (such as

compulsory retirement, removal and dismissal from service), and the

same vitiates the impugned order. The Disciplinary Authority has

given reasons for inflicting the penalty of dismissal from service by

observing that the serious indisciplined act of the petitioner constables

is against the discipline and the retention of such persons in the

department is undesirable. Having concluded that the petitioners‟

conduct constituted serious indiscipline and their retention in the force

was undesirable, in our view, the impugned order demonstrates

sufficient application of mind by the Disciplinary Authority to the

aspect of the appropriate punishment to be awarded to the petitioners.

The same is in accordance with Rule 156 of the RPF Rules, 1987.

31. Mr. Kapoor further submits that the Appellate Authority did

not grant a personal hearing to the petitioners before deciding the

appeal. A perusal of Rule 217 of the RPF Rules, 1987 shows that the

Appellate Authority is obliged to grant personal hearing to the

aggrieved and enrolled members of the force "on request", "in case it

considers it in the interest of its administration and justice". It is not

the petitioners‟ case that any of them desired to be personally heard

by the Appellate Authority. The petitioners have placed on record the

appeal preferred by Birender Singh. A perusal of the same shows that

the said petitioner did not even make a request to say that he would

like to be personally heard by the Appellate Authority. The petitioners

have not placed on record any of the other appeals in support of their

submission that they have not been heard by the Appellate Authority.

The petitioners have not even taken a specific ground in this respect in

the present writ petition. Consequently, we find no merit in this

submission of the petitioners.

32. The contention of Mr. Kapoor in support of the challenge to

the appellate and revisional orders primarily is that the Appellate and

Revisional Authorities have not given their reasons while passing the

respective impugned orders dismissing the appeals and the revisions

preferred by the petitioners. The law with regard to furnishing of

reasons by the Appellate or Revisional Authority while disposing off a

departmental appeal or revision has been stated by the

Supreme Court in S.N.Mukherjee V. Union of India, (1990) 4 SCC

594 in the following words:

"36. ... ... ... In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed

at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellant or revisional authority agrees with the reasons contained in the order under challenge."

33. As we have noted above, only one appellate order in the

appeal preferred by Constable Rai Singh has been placed on record. A

perusal of the same would show that the Appellate Authority has

considered the record of the enquiry officer as well as the Disciplinary

Authority. The Appellate Authority has extracted the charges against

the petitioners. He has taken into account the facts relating to the

preparation of the enquiry report and the order passed by the

Disciplinary Authority. Thereafter, he has proceeded to deal with the

points raised by the appellant constable Rai Singh in his appeal.

34. The Appellate Authority not only noticed the contentions of

the appellant Constable Rai Singh, but also dealt with the same by

making reference to the evidence brought on record. A perusal of the

appellate order shows that the same is very well reasoned. Learned

counsel for the petitioner has not been able to point out as to which of

the submissions of the petitioners in their appeal have not been

considered and dealt with by the Appellate Authority.

35. Mr. Kapoor has placed reliance on Ram Chander v. Union

of India, AIR 1986 SC 1173. In this judgment, the Supreme Court

examined its earlier decisions and held that there is no duty cast on an

Appellate Authority to give reasons where the order is one of

affirmance. While dealing with Rule 22(2) of the Railway Servant

Rules, the Supreme Court held:

"The word „consider‟ has different shades of meaning and must in R.22(2), in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind, which implies the giving of reasons for its decision".

We may note that the Appellate Order impugned in the said

case merely recorded as under:

"(1) In terms of Rule 22(2) of the Railway Servants (Discipline and Appeal) Rules, 1968, the Railway Board have carefully considered your appeal against the orders of the General Manager, Northern Railway, New Delhi imposing on you the penalty of removal from service and have observed as under:

(a) by the evidence on record, the findings of the disciplinary authority are warranted; and

(b) the penalty of removal from service imposed on you is merited.

(2) The Railway Board have therefore rejected the appeal preferred by you."

It was in these circumstances that the Supreme Court came

to the conclusion that the appellate order did not contain reasons

which the Appellate Authority was obliged to give by virtue of Rule

22(2) of Railway Servant (Disciplinary and Appeal) Rules, 1968.

36. In our view, this decision has no bearing in the facts of the

present case, inasmuch as, in the present case the Appellate Authority

has passed a detailed and reasoned order and has even referred to the

evidence brought on record.

37. So far as the order of revision is concerned, the Director

General, RPF, who acted as revisional authority, has stated the grounds

on which the revision is maintainable under Rule 219 of the RPF Rules,

1987, and has stated that on a perusal of the evidence recorded during

the departmental proceedings, he is convinced that the petitioners

were held guilty of the charges correctly. He has further held that he

did not find any circumstance in the holding of the enquiry which can

lead to the conclusion that there has been miscarriage of justice, and

no material has been disclosed which was not available at the time of

passing of the impugned orders. Mr. Kapoor has failed to bring to our

notice any circumstance to suggest that the revisional order suffers

from any illegality.

38. We find merit in the submission of the learned counsel for the

respondent that the endeavour of the petitioners is to treat the present

writ proceedings as a further appeal from the order of dismissal passed

by the Disciplinary Authority, which is not legally permissible.

39. Our attention has been drawn to the pronouncement of the

Supreme Court reported as State of Andhra Pradesh vs. S. Sree

Rama Rao, (1963) 3 SCR 25. In this decision, the Supreme Court

has held that in a proceeding under Article 226 of the Constitution, the

High Court is not constituted as a court of appeal over the decision of

the authorities holding a departmental enquiry against a public

servant. It is concerned with the determination that the enquiry is held

by a competent authority in that behalf and according to the procedure

prescribed in that behalf, and that the rules of natural justice are not

violated. Where there is some evidence, which the authority entrusted

with the duty to hold the enquiry has accepted and which evidence

may reasonably support the conclusion that the delinquent officer is

guilty of the charge, it is not the function of the High Court in a petition

for issuance of a writ under Article 226, to review the evidence and to

arrive at an independent finding on the evidence. The Supreme Court

further held that the departmental authorities are, if the enquiry is

otherwise properly held, the sole judges of facts and if there be some

legal evidence on which their findings can be based, the adequacy or

reliability of that evidence is not a matter which can be permitted to be

canvassed before the High Court in a proceeding under Article 226 of

the Constitution.

40. As noticed above, the orders of the authorities - disciplinary,

appellate and revisional have considered the evidence brought on

record and recorded reasons for their decisions. The present case is

not a case of no evidence and in view of the afore-noticed binding

principles, it is not open to this court to reappraise the evidence led

during the enquiry.

41. In view of the above discussion, the reliance placed on the

decisions in Vasudeo Vishwanath Saraf vs. New Education

Institute & Ors. AIR 1986 SC 2105 and The Siemens Engineering

& Manufacturing Co. of India Ltd. vs. The Union of India & Anr.

(1976) 2 SCC 981, is of no relevance.

42. For all the aforesaid reasons, we find no merit in this petition

and dismiss the same, leaving the parties to bear their respective

costs.

(VIPIN SANGHI) JUDGE

(GITA MITTAL) JUDGE

FEBRUARY 09, 2010 rsk