Jaykant Ravjibhai Tandel vs Director General
2021 Latest Caselaw 7402 Guj

     C/SCA/20627/2019                              ORDER DATED: 01/07/2021




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO.20627 of 2019

=========================================
                        JAYKANT RAVJIBHAI TANDEL
                                  Versus
                            DIRECTOR GENERAL
=========================================
Appearance :
MR RK MISHRA for the Petitioner.
MS ARCHANA U AMIN for the Respondents.
=========================================

 CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
       and
       HONOURABLE DR. JUSTICE A. P. THAKER

                      Date : 01/07/2021
                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A. J. DESAI)

1. Rule. Ms. Archana Amin, learned advocate waives service of Rule on behalf of the respondents.

2. With the consent of the learned advocates appearing for the respective parties, this petition is taken up for final hearing today.

3. By way of the present petition under Articles 14, 16, 21 and 226 of the Constitution of India, the petitioner as ex-constable with respondent- Railway Protection Force, has challenged an order dated 12/07/2019 passed by respondent No.3, by which, the authority has exercised his power under Rule 161(ii) of Railway Protection Force Rules, 1987 (hereinafter referred to as "the RPF Rules") and dismissed the petitioner from his services as Constable as well as the order dated 30/01/2020 passed by the appellant authority, by which, the appeal filed by the petitioner challenging the aforesaid order is confirmed as well as an order dated

C/SCA/20627/2019 ORDER DATED: 01/07/2021

21/07/2020 passed by the revisional authority upholding the orders passed by the disciplinary authority as well as appellate authority.

4. In response to the Notice issued by this Court, the respondents have appeared through learned counsel Ms. Archana Amin and has filed affidavit-in-reply dated 26/02/2021 opposing to grant any reliefs, as prayed for, by the petitioner.

5. Short facts, arise from the records, are as under :

5.1 That the petitioner was appointed on the post of Constable in Railway Protection Force (hereinafter referred to as "RPF") on 12/07/2007 on completion of his training. The petitioner, who was on duty at Surat railway station between 11/07/2019 and 12/07/2019, was called upon by the respondent No.3, having found a video recording on Twitter as well as WhatsApp group, posted by one Rajesh Modi and forwarded to the concerned person of Police Force, in which, it was found that he was allegedly, collecting money from some women. He was called on 12/07/2019 and was asked certain questions and authority sought explanation.

5.2 On 12/07/2019 itself, respondent No.3 came to the conclusion that since the person, who recorded the video, cannot be identified and verified and the ladies, from whom the present petitioner was allegedly collecting money cannot be identified and since the petitioner has admitted about collecting money, he exercised his power under Rule 161(ii) of the RPF Rules, which empowers him to avoid inquiry proceedings as contemplated under Rule 153 of the said Rules and dismissed the petitioner from the services.

       C/SCA/20627/2019                          ORDER DATED: 01/07/2021




5.3             The petitioner has challenged the said decision and

raised a contention that in absence of any other materials and only on his admission of collecting money, which was recorded under durace, the authority should not have exercised his power under Rule 161(ii) of the RPF Rules and dismissed the petitioner from his services. This aspect has not been taken into consideration by the appellate authority as well as revisional authority and upheld the decision of the disciplinary authority. Hence, this petition.

6. Mr. R. K. Mishra, learned advocate appearing for the petitioner would submit that the alleged incident which had taken in past, he was called by the inquiry officer and was asked certain questions and on the same day i.e. on 12/07/2019, an order was passed. He would submit that the authority could have tried to get information about the video posted on Twitter as well as circulated on Whatsapp group at the instance of one Rajesh Modi as well as ought to have tried to get information about the women, from whom, allegedly the petitioner was collecting money, however, the authority without making any efforts to collect the information about correctness and genuineness of the video, should not have been passed the order and that too, imposed major penalty of dismissing the petitioner from the services. He would further submit that when the authority has relied upon electronic gazettes that is in the nature of video recording and is circulated in Whatsapp group, at least the authority is expected to get correct information through the concerned information and technology department, who controls such exchange of videos, messages, etc. He would submit that there is no material or evidence which would even suggest about the period or date of so-called collection of the amount.

       C/SCA/20627/2019                                   ORDER DATED: 01/07/2021




6.1             By taking us through the order dated 12/07/2019, he

would submit that only by recording that the person, who recorded the video cannot be identified and verified, is not sufficient since the authority has failed to establish that some efforts were made on their part to get information and have failed in it. He would further submit that even the disciplinary authority has not tried to get information about those ladies, which were found in the video recorded and came to the conclusion that they could not be identified and therefore, their statements cannot be recorded. He would further submit that without even making efforts for getting the information about genuineness and correctness of the video, the authority found him guilty only on his so called admission before the authority on the same day i.e. on 12/07/2019 when he was called and order had been passed. He would submit that there is no evidence about the date of so called collection of money from different women and therefore, there is a huge doubt about credibility of the video.

6.2 Apart from this aspect, he would submit that under Rule 153 of RPF Rules, main provision is that when an employee is to be punished for major penalty like dismissal, removal, compulsory retirement or reduction in rank, an inquiry is required to be held, which is lacking in the present case. He would submit that under Rule 161 of the RPF Rules, specific procedure is prescribed. Under Rule 161 of the RPF Rules, the authority is competent to impose the punishment under the said Rules, if he satisfied for reasons to be recorded by it in writing that it is not reasonable and practicable to hold an inquiry in the manner provided in these rules. However, in the present case, the reasons assigned while imposing major penalty of dismissal from his services, cannot be accepted since the authority has not even care

C/SCA/20627/2019 ORDER DATED: 01/07/2021

to take any measures to collect material, which would lead to the conclusion that it is not reasonable and practicable to hold an inquiry. He therefore would submit that the impugned orders are required to be quashed and set aside on this ground also.

6.3 In support of his aforesaid submissions, he has relied upon the oral judgement dated 14/10/2019 passed by Division Bench of this Court in the case of Kuldeep Ghanshyam Joshi v. Director General in Special Civil Application No.13339 of 2019 and would submit that the petition may be allowed.

7. On the other hand, Ms. Archana Amin, learned counsel appearing for the respondents has opposed this petition and submitted that this court while exercising power under Article 226 of the Constitution of India may not examine the decision rendered by the disciplinary authority and confirmed by the appellate authority as well as revisional authority. She would submit that under Rule 153 itself, the clause was referred about Rule 161, which empowers the authority to pass appropriate punishment provided under the RPF Rules.

7.1 By taking us through both the provisions i.e. Rule 153 and Rule 161, she would submit that disciplinary authority was satisfied about the contents of the video and admission made by the petitioner about the fact that he had accepted the money illegally and therefore, there is no need to interfere with the findings, which were upheld by the Appellate authority as well as Revisional authority. She would further submit that the scope of this Court while exercising power under Article 226 of the Constitution of India, while dealing with service matters and the decision arrived at by the authority, would be narrow and would not sit in appeal

C/SCA/20627/2019 ORDER DATED: 01/07/2021

over the decision and would not disturb the findings recorded by the authority.

7.2 In support of her submissions, she has relied upon the decision rendered by Hon'ble Supreme Court in the case of Director General of Police, Railway Protection Force & Ors. V/s. Rajendra Kumar Dubey, reported in 2020 SCC Online SC

954. By taking us through paragraph nos.31, 33, 36, 37 and 38 of the aforesaid judgment, she would submit that it has been specifically held that while exercising power under Article 226 of the Constitution of India, the high court shall not re-appreciate the evidence, interfere with the conclusion of the inquiry, go into the adequacy of evidence, go into the reliability of the evidence, etc. in case the same has been conducted in accordance with law and therefore, she would submit that the petition may be dismissed.

8. We have heard learned advocates appearing for the respective parties. It is an undisputed fact that emerges from the orders themselves that the petitioner was called by the inquiry officer on 12/07/2019 and was shown a video posted on Twitter and circulated on Whatsapp group at the instance of one Rajesh Modi and was asked certain questions. It is true that the petitioner has admitted his mistake however he has stated that for what purpose he exchanged money he does not recollect since video might have been prepared in the month of February or March. We have gone through the statement of the petitioner as well as the order dated 12/07/2019. However, before the appellate and revisional authorities, he has categorically raised the issue that he made confessional statements under duress. Now dealing with the factual aspects, we would like to reproduce Rules 153 of the RPF Rules, which reads as under:

     C/SCA/20627/2019                               ORDER DATED: 01/07/2021




              "153.  Procedure             for   imposing          major
              punishments :

153.1 Without prejudice to the provisions of the Public Servants Inquires act, 1850, no order of dismissal, removal, compulsory retirement or reduction in ranks shall be passed on any enrolled member of the Force (save as mentioned in rule

161) without holding an inquiry, as far as may be in the manner provided hereinafter, in which he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded a reasonable opportunity of defending himself.

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 misbehaviour 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 not below the rank of Inspector, or institute a Court of Inquiry to inquire in to the truth thereof.

153.2.2. Where the disciplinary authority itself holds the inquiry, any reference to the Inquiry Officer in these rules shall be construed as reference to the disciplinary authority.

153.3. On receipt of complaint or otherwise, the disciplinary authority on going through the facts alleged or brought out shall decide whether it is a case for major punishment. No attempt shall be made to convert cases punishable under section 16 A or section 17 into disciplinary cases nor divert cases in respect of which major punishments are imposable to the category of cases where minor or petty punishments are imposable.

Rule 153.1 provides that a person cannot be removed without proper inquiry however officer is empowered as mentioned in Rule 161 of the RPF Rules. Here, authority has recorded why he has used his power under Rule 161(ii) of the RPF Rules. Rule 161 of the RPF Rules, read as under:

C/SCA/20627/2019 ORDER DATED: 01/07/2021

"161. Special procedure in certain cases:

Notwithstanding anything contained anywhere in these rules-

(i) where any punishment is imposed on an enrolled member of the Force on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) where the authority competent to impose the punishment is satisfied for reasons to be recorded by it in writing that it is not reasonable practicable to hold an Inquiry in the manner provided in these rules;

(iii)where the President is satisfied that in the interest of Security of State and the maintenance of integrity in the Force, it is not expedient to hold any inquiry in the manner provided in these rules; the authority competent to impose the punishment may consider the circumstances of the case and make such orders thereon as it deems fit."

These findings have been upheld by the appellate authority as well as revisional authority.

9. It is an undisputed fact that the video was posted on Twitter on 12/07/2019 and was circulated on WhatsApp group on the same day. The petitioner was called by the inquiry officer on the same day and an order was also passed on the same day i.e. on 12/07/2019, by which, his services has been terminated. In our opinion, the authority has presumed everything like the person, who has recorded the video, is not identified though the papers suggest that one Rajesh Modi has twitted this video. No efforts have been made on the part of the inquiry officer to collect some material and evidence at all. Without trying further to get the lady identified, he came to the conclusion that such ladies could not be identified and their statements cannot be recorded. The authority has miserably failed to produce anything on record that they have tried to get the evidence but have failed. In our opinion, when

C/SCA/20627/2019 ORDER DATED: 01/07/2021

social medias like Twitter and WhatsApp are used by the citizens, it is easy to get the inception / creation of such video or message from the Information and Technology Department, who controls such social media. However, efforts are required to be made by the concerned person to get the same, which is lacking in the present case. The order is passed on the same day when the statement of the petitioner was recorded therefore, it cannot be said that it was not reasonable or practicable for the inquiry officer to hold any inquiry as provided under Rule 153 of the said Rules. It is case of no evidence against the petitioner in absence of any type of material collected before passing the order.

10. In case of Kuldeep Ghanshyam Joshi (Supra), Division Bench of this Court has held requirement of holding inquiry, however, in the said case the employee was initially suspended and thereafter without inquiry, he was dismissed.

11. As far as the decision relied upon by Ms.Amin in case of Rajendra Kumar Dubey (supra) is concerned, Hon'ble Apex Court has relied upon several decisions of the Hon'ble Supreme Court itself and held that high court cannot sit in appeal and examine the reasons assigned by the authority and confirmed by the appellate as well as revisional authority. Where there is a case of no evidence at all and the authority dismisses any person and imposing major punishment of dismissal, removal, compulsory retirement, etc., there is no question of reappreciating of a evidence or interference with the conclusion of any inquiry (here in the present case, no inquiry held at all), in our consider opinion, the Court can exercise power under Article 226 of the Constitution of India on the said ground and quash such illegal orders.

C/SCA/20627/2019 ORDER DATED: 01/07/2021

As stated herein above, in absence of any evidence, there is no question of reappreciating the evidence and therefore, in our opinion, the petition requires consideration. Hence, this petition is allowed. The impugned order dated 12/07/2019 passed by respondent No.3; order dated 30/01/2020 passed by the appellant authority as well as order dated 21/07/2020 passed by the revisional authority are hereby quashed and set aside. It is needless to say that the respondent may start a denovo inquiry as contemplated under Rule 153 of the said Rules. Rule is made absolute to the aforesaid extent. Direct service is permitted.

12. At this stage, Ms.Archana Amin, learned advocate appearing for the respondents requests for stay of this order for eight weeks. However, the aforesaid request is hereby refused.

Sd/-

(A. J. DESAI, J)

Sd/-

(DR. A. P. THAKER, J)

DIPTI PATEL