Gujarat High Court
Union Of India Thro' General Manager vs Havasingh Suratsingh Rana on 1 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 7 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
Yes
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UNION OF INDIA THRO' GENERAL MANAGER & ANR.
Versus
HAVASINGH SURATSINGH RANA
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Appearance:
MR RAMNANDAN SINGH(1126) for the Appellant(s) No. 1,2
MR UM SHASTRI(830) for the Appellant(s) No. 1,2
MR ANAND B GOGIA(5849) for the Respondent(s) No. 1
MR BB GOGIA(5851) for the Respondent(s) No. 1
MR RB GOGIA(5850) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/09/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100
of the Code of Civil Procedure, 1908 ('CPC', for short) being
aggrieved by the judgment and decree passed by the Assistant Judge,
Rajkot on 30.09.2002 in Regular Civil Appeal No.39 of 1999
dismissing the said appeal and confirming the judgment and decree
dated 24.09.1998 passed by the Court of Civil Judge, Senior
Division, Rajkot in Regular Civil Suit No.744 of 2019.
2. For the sake of convenience, the parties are referred to as their
original status referred in the suit.
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FACTS :
3.1 The plaintiff had filed the suit for declaration on the ground
that plaintiff was serving as Constable in Railway Protection Force
on 06.05.1985 and was ordered to be dismissed from services in
terms of order being Divisional Order No.33/1989 dated 14.06.1989,
passed by the Divisional Security Commissioner vide Office Order
No.RJE.40/ 03/01/03/1989 and it is the case of the plaintiff that the
plaintiff has been dismissed from service without holding any
inquiry and without issuing charge-sheet and without following
inquiry procedure as required under the Rules and the plaintiff
sought for following reliefs.
"(a) It may be declared that the impugned order No:33/1989
hearing No.RJE/40/3/1/3/89 dtd.14-6-1989 issued by
Divisional Security Commissioner, Rajkot is illegal,
ineffective null and void and be set a side with further
declaration that plaintiff continues to be in active service with
all the consequential benefits including full pay, allowances
etc. as if no such impugned order exist.
(b) Defendants be directed by suitable injunction to reinstate
him on his original post and release all the consequential
benefits of full pay, salary etc. in terms of above referred
declaration.
(c) Any other better relief or reliefs also may please be
granted as deemed Just and proper in the circumstances of the
case.
(d) Cost of this suit may please be awarded to the plaintiff
from the Defendants."
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3.2 The trial Court framed issues vide Exh.14 which read as
under:
"(1) Whether the plaintiff proves that the order dt.14-6-1989
issued by Divisional Security Commissioner, Rajkot is
illegal, ineffective, null and void and deserves to be set-
aside ?
(2) Whether the plaintiff is entitled to sought injunction or
any relief as prayed ?
(3) What order and decree ?"
3.3 Neither parties have led any oral evidence in support of their
respective case. Both parties have relied on following documents:
Sr Particulars of document
No.
1 Exh.17 is the original letter from D.C.S. Rajkot addressed to the
plaintiff dt.12-1-89.
2 Exh.18 is the original letter from plaintiff addressed to defendant
dated 16-11-1989
3 Exh.19 is the original letter from D.S.C. Rajkot addressed to the
plaintiff's brother dt.5-12-89
4 Exh.20 is the copy of letter from plaintiff's advocate addressed to
D.S.C. Rajkot dt.9-1-90
5 Exh.21 is the copy of letter from D.S.C., Rajkot dt.5-3-90
6 Exh.22 is the original letter from D.S.C, Rajkot addressed to plaintiff
alongwith 10 enclosures dt.31-3-90.
7 Exh.23 is the copy of notice u/s.80 of C.P.C. dt.2-4-90
8 Exh.24 is the original postal receipt No.1954-1955 (two) dt.2-4-90
9 Exh.25 is the original acknowledgment dt.4-4-90
10 Exh.28 is the true copy of a Judgment of Cr.Case No.158/90
delivered by the Chief Judicial Magistrate.
11 Exh.31 is the xerox copy of of Divisional Order No.33 of 1989 dt.14-6-
12 Exh.32 is the Report of P.S.I., P.Nagar Police Station, Rajkot dt.13-6-
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13 Exh.33 is the xerox copy of Company Commandent's letter to DSC /
RJT dt.14-6-89
14 Exh.34 is the panchnama dt.14-6-89.
15 Exh.35 is the copy of Post Diary dt.14-6-89.
16 Exh.36 is the report of Post Commander RPF / RJT dt.15-6-89.
17 Exh.37 is the FIR lodged in P.Nagar Police Station
18 Exh.38 is the Inspector RPF/ RJT's letter to DSC / RJT. dt.13-6-89
19 Exh.39 is the Postal A.D.Slip dt.19-6-89
3.4 After considering the documentary evidence and giving
findings on all the issues, trial Court allowed the said suit and Order
No.33/1989 dated 14.06.1989 was declared illegal, null and void and
was set aside and it was declared that plaintiff continues to be in
service of the defendant and defendant should put the plaintiff on his
post from which he was dismissed within three months from the date
of judgment. However, it was held that plaintiff will not be entitled
to claim any back-wages from the order of his dismissal upto the
order of reinstatement and the intervening period be treated as
continuous for the purpose of his service. The said order was
challenged by defendant by filing Regular Civil Appeal No.39 of
1999 and after re-appreciating the evidence, the first appellate Court
has dismissed the said appeal. Hence, the present Second Appeal.
3.2 This Court, while admitting the present appeal vide order
dated 18.10.2003, framed the following substantial question of law.
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"Whether the appellant - employer has right to dispense with
inquiry with respect to a misconduct alleged against delinquent
- employee in the interest of administration / public ?"
SUBMISSIONS OF THE DEFENDANT - EMPLOYER:-
4.1 Learned advocate for the defendant has mainly argued that
trial Court has erred in exercising the jurisdiction which is not vested
in it by law in interfering with the order of punishment imposed by
the disciplinary authority in accordance with law laid down. It has
also been argued that trial Court could not have passed the order
interfering with the inquiry under section 161 of Railway Protection
Force Act. Moreover, it has also been argued that law of governing
conduct and discipline of the body i.e. Railway Protection Force as
laid down in the Railway Protection Force Act in cases of
misconduct proved, the punishment should be for removal from the
service. It has also been argued that before passing the order dated
14.06.1989, the authority was compelled to pass the order and the
said order is made as per provisions made in the constitution and the
rules as provided in the Railway Protection Force Rules.
4.2 It has also been argued that the plaintiff was involved in the
moral turpitude offence. Moreover, full opportunity was given to the
plaintiff to submit his defense and later on after hearing the parties,
defendant has passed the order and there were sufficient evidence
against the plaintiff insofar as offences like moral turpitude is
concerned and that the order that was passed dismissing the plaintiff
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was in accordance with law and the same could not have been
interfered with by the trial Court.
4.3 Moreover, it has also been argued by learned advocate for the
defendant that during the service tenure of plaintiff, he was found
guilty so far as the complaint lodged by one Savitaben, wife of Head
Constable Balavantbhai, the plaintiff tried to outrage the modesty of
Savitaben,-wife of Head Constable and at the time of occurrence of
offence, plaintiff was on duty and during service, plaintiff tried to
outrage the modesty of said Savitaben. It has also been argued that
after giving notice of departmental inquiry initiated against plaintiff,
all opportunity had been given to plaintiff for putting his defense and
after completion of inquiry, the authority found that there is
sufficient evidence against plaintiff to hold him guilty and, therefore,
defendant has passed the order which is under challenge.
4.4 Moreover, it has been argued that employer has right to
dispense with the inquiry with respect to alleged misconduct against
delinquent in the case of administration / public.
SUBMISSIONS OF THE PLAINTIFF - EMPLOYEE :
5.1 Learned advocate for the plaintiff has mainly argued that as
per Section 161 (11) of Railway Police Force Rules before imposing
punishment, an inquiry has to be held by the defendant and only if
the defendant is satisfied for the reasons recorded in writing that it is
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not reasonable and practicable to hold an inquiry in the manner
provided in these rules, the defendant can impose the penalty.
Therefore, if the order of dismissal from service is perused, the
following reasons have been stated for not holding inquiry and the
said reasons are as follow:
"As regards dispensing with the enquiry, I take into
consideration the following facts :
1) the victim is a lady;
2) there is a preponderance of probability that a lady
belonging to Hindu religion will not come forward to
tarnish herself due to fear of self respect, humdrum
domestic life and also the status in the society.
3) The victim is a lady and is married and having children.
She is not as such expected to come in open and depose
the incident which occurred and the said lady in question
has also declined to come in open and narrate the facts
which has constituted this proceeding.
4) The lady in question is also afraid that the assailant
Hawa Singh is a ferocious person and many harm her,
her children and here husband if she comes out and
depose against him in an enquiry because she has stated
that while departing from the scene of occurrence, the
delinquent constable has threatened her not to disclose to
any one of his such abhorrent behaviour of attempt of
outraging modesty."
5.2 The main reason that has been stated of dispensing with the
inquiry is that complainant Savitaben is lady and being a lady it will
not be possible for her to come forward to tarnish her image due to
fear of rupturing her domestic life and stays in the society. Other
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reason that has also been given is that complainant is married and
having children and she is not as such expected to come in open and
depose the incident which occurred and the said complainant
Savitaben has also declined to come in open and narrate the facts.
Moreover, the reason that has been given is that Savitaben was also
afraid of plaintiff and plaintiff was furious person may harm her, her
children and her husband if she comes out and depose against him in
inquiry and, therefore, said reasons were stated to be the reasons for
dispensing with the inquiry.
5.3 Learned advocate for the plaintiff has argued that very same
complainant lady viz. Savitaben, had filed FIR before the concerned
police station and then had filed Criminal Case No.158 of 1990,
before Chief Judicial Magistrate, Rajkot wherein she had deposed
before the Court vide Exh.12 and the said evidence was recorded by
the Chief Judicial Magistrate, Rajkot in open Court and, therefore, if
said Savitaben was able to depose about the said incident in presence
of public, it is unable to understand as to why she could not come
and give statement before the Inquiry Officer and, therefore, trial
Court and the appellate Court have rightly held that impugned order
dated 14.06.1989, is illegal and cannot be sustained and, therefore,
substantial questions of law, which have been framed by this Court
while admitting the appeal vide order dated 18.10.2003, the
employer did not have right to dispense with the inquiry with respect
to a misconduct alleged against delinquent - employee in the interest
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of administration / public. Moreover fact remains that even after
complainant deposed before the Criminal Court, the Criminal Court
vide order dated 01.07.1992 has acquitted the plaintiff from offences
under sections 380 and 451 of the Indian Penal Code and, therefore,
it has been argued that present Second Appeal is required to be
dismissed.
ANALYSIS :
6.1 Having heard learned advocate for the parties and having
considered the judgment and decree that has been passed by the trial
Court as confirmed by the first appellate Court, this Court shall deal
with the substantial question of law which has arisen for
consideration of this Court at the time of admission of present
appeal, which reads as under:
"Whether the appellant - employer has right to dispense with
inquiry with respect to a misconduct alleged against delinquent
- employee in the interest of administration / public ?
6.2 The entire case of the defendant is based on the alleged
incident took place on 06.06.1985 wherein it is alleged that the
plaintiff had tried to outrage and molest complainant Savitaben, the
wife of Head Constable Balavantbhai and pursuant to the said
complaint, after taking statements of concerned persons, the order of
dismissal of the plaintiff from the service has been passed on
14.06.1989, wherein also it has been observed that the statements of
the staff members and also statement of complainant lady Savitaben
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had been recorded and pursuant to the same, there was conclusion
that there is sufficient evidence produced which suggest that the
charges against the plaintiff are proved.
6.3 The fact remains that if the entire record and evidence
produced in the suit are perused, the statements having been
recorded, they are not exhibited though the same were produced.
Therefore, if the said statement on which defendant wants to rely,
are not exhibited, the same cannot be perused. Moreover, the fact
remains that if Rule 161 (11) of RPF Rules are perused, it clearly
states that reasons have to be recorded in writing that it is not
reasonably practicable to hold an inquiry in the manner provided in
these Rules. There is no dispute that the said Rules will apply in the
present case but the fact remains that whether appropriate reasons
have been given not to hold the inquiry, in the present case, if the
same have been stated by the defendant or not.
6.4 The fact also remains that the only ground that has been stated
by the defendant of not holding inquiry and dispensing with inquiry
are that Savitaben was afraid of plaintiff and as plaintiff was furious
person who may harm her, her children and her husband if she
comes out and depose against him in inquiry but at the same time it
is also relevant to see that said lady viz. Savitaben had gone to
Police Station for registering FIR and had also filed criminal case
wherein also she and her husband had given depositions. Therefore,
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the fact that Savitaben would be put in embarrassing situation by
giving her statement in public cannot be a ground to dispense with
inquiry. Reasons given to dispense with inquiry are vague and the
Disciplinary Authority is not expected to dispense with the
disciplinary inquiry out of ulterior motive merely in order to avoid
holding of inquiry. There is nothing on record to show that it was not
reasonably practicable to follow the procedure, there is no reason to
show that such satisfaction is arrived at in the present case except
recording that the complainant being lady could not come forward to
depose in the inquiry, there is nothing that has been recorded either
in order or has been placed on record of the Court to substantiate that
the reasons were recorded by arriving at satisfaction on objective
facts. Therefore, said observation of dispensing with the inquiry is
nothing but empty formality.
6.5 In the present case, in view of the fact that Savitaben had
deposed in the open Court in criminal proceedings and the only
reasons to dispense with the inquiry was that complainant being a
lady could not come forward and to depose regarding occurrence of
incident cannot be a ground to dispense with the inquiry.
6.6 The judgments on which learned advocate for the defendant
has relied on (1996) 9 SCC 322 in the case of State of Punjab and
others vs. Dr. Harbhajan Singh Greasy will not be applicable to the
facts of the present case for the reason that in that case there were
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alleged admission of guilty by delinquent, the question of remitting
inquiry for fresh inquiry from stage of fault would not arise. In view
of the fact that original plaintiff expired in the year 2014 (more
particularly on 26.03.2014) [delay] and the incident is of the year
1989 and in view of the said facts, this judgment will not be
applicable to the facts of the present case.
6.6 In the decision reported in (2003) 9 SCC 75 in the case of
Sahadeo Singh and Others vs. Union of India and others, the Apex
Court has held that dispensing of the inquiry on the ground that no
independent evidence was expected against delinquent in view of
fear amongst the witnesses, the same will not be applicable in the
present case in view of the fact that in the present the witness, who is
the husband of the complainant, had deposed before the criminal
court in Criminal Case No.158 of 1990 before Chief Judicial
Magistrate, Rajkot.
7. In view of the above facts, substantial questions of law
which has been framed by an order dated 18.10.2003 is answered in
negative holding that the appellant / employer did not have any right
to dispense with the inquiry regarding misconduct alleged against
the delinquent - employee in the case of misconduct alleged against
delinquent - employee in the interest of administration / public.
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8. For the reasons recorded above and for the above discussion,
Second Appeal is devoid of any substantial question of law. Both the
learned Trial Court and first appellate Court have rightly decided the
issue between the parties in the right perspective. The appellant has
failed to prove its case before the learned trial Court as well as
before the first appellate Court. This Court does not find any
substance in the present Second Appeal as the same is devoid of any
merit both on facts and law and, therefore, it is required to be
dismissed and it is dismissed accordingly.
(SANJEEV J.THAKER,J)
9. After pronouncement of judgment, learned advocate
Mr.Ramnandan Singh for the appellant seeks stay of implementation
and operation of the present judgment. Request is accepted. The
implementation and operation of the present judgment is stayed for a
period of four weeks from today.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
