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Judgment
Venkataswami, J.—The orders under challenge in this writ petition are the one passed by the 4th respondent on 13.12.1982, confirmed by
the 3rd respondent on 6.4.1983 and further confirmed by the 2nd respondent in his order dated ''Nil'' received by the petitioner on 2.5.1984.
The petitioner was working as Rakshak in the Railway Protection Force when he was suspended by an order dated 1.3.1982. The suspension
order was followed by a charge memo dated 10.3.1982 issued under Rule 44 of the Railway Protection Force Rules, 1959 (hereinafter called ''the
Rules''). The petitioner submitted his explanation on 22.4.1982. The disciplinary authority himself (Asst. Security Officer) functioned as Enquiry
Officer and after completing the enquiry, a provisional conclusion was reached by him and on the basis of that conclusion, a second show cause
notice was issued under Rule 44(10)(2) of the Rules proposing a punishment of reduction of petitioner''s pay by two stages for a period of one
year. The petitioner submitted his explanation on 5.6.1982. Not accepting the explanation, the Disciplinary Authority confirmed the penalty
proposed by order dated 14.6.1982. That order was received by the petitioner on 17.6.1982.
Aggrieved by the order of the Disciplinary Authority dated 14.6.1982, received by him on 17.6.1982, the petitioner claims to have preferred an
appeal on 15.7.1982 in accordance with Rule 52 read with Rule 53 of the Rules. However, the petitioner received the proceedings of the 4th
respondent dated 22.7.1982 purporting to be one passed under Rule 60 in and by which the 4th respondent while setting aside the order of the
Disciplinary Authority, directed a re-enquiry by appointing a different Assistant Security Officer with a direction to that Officer to submit a report
within 30 days. In accordance with the proceedings of the 4th respondent dated 22.7.1982, the New Enquiry Officer conducted a de novo
enquiry, examined witnesses and submitted his report to the 4th respondent. On the basis of the second enquiry, the 4th respondent issued a
second show cause notice proposing a punishment of removal from service without accepting the explanation of the petitioner dated 25.11.1982,
the 4th respondent by an order dated 13.12.1982, removed the petitioner from service.
Aggrieved by the order of removal, the petitioner preferred appeal as directed in the order of the 4th respondent and the 3rd respondent also
confirmed the order of removal in his order dated 6.4.1983. Further revision to the 2nd respondent also met with the same result, Hence the
present writ petition.
Mr. V. Suresham, learned Counsel appearing for the petitioner, submitted that the charge memo served on the petitioner will clearly show that
apart from the petitioner, two of his superior officers were also involved in the incident for which the petitioner alone was charged. Nevertheless,
the two superior officers were not proceeded against, but examined as witnesses against the petitioner. That according to the petitioners'' Counsel
amounts to discrimination, and on that ground the orders impugned are liable to be set aside. The second ground of attack was that when the
appeal filed by the petitioner was pending before the Appellate Authority, the invocation of Suo Motu revision by the very same authority under
Rule 60 without disposing of the appeal vitiates the impugned orders. The allegation of Mala Fides against the 4th respondent who initiated
proceedings under Rule 60 is proved from the manner in which that authority had acted in invoking Rule 60 Suo Motu power. The learned
Counsel submitted that the second enquiry ordered by the 4th respondent on the same charge offends Article 20 (2) of the Constitution. The last
contention was that the Rules contemplate one appeal against the punishment and a further revision, and in fact, Rule 52(2) expressly prohibits a
second appeal. But in this case, curiously, the 4th respondent, an appellate authority before whom the appeal filed by the petitioner was pending,
has directed the filing of an appeal against his order before the 3rd respondent. Therefore, in all, the petitioner had to file two appeals, face one
Suo Motu revision and thereafter file one revision. On this ground also, according to the learned Counsel for the petitioner, as the proceedings are
contrary to the Rules, the impugned orders are liable to be set aside. The learned Counsel cited a decision of the Supreme Court in Makeshwar
Nath Srivastava Vs. The State of Bihar and Others, in support of his submission that the SUO Motu power of revision should be exercised under
extraordinary circumstances to help a delinquent and not otherwise.
6, Mr. Venkateswara Rao, learned Counsel appearing for the respondents, contending contra, submitted that the allegation in support of the
charge framed against the petitioner will make it clear that the charge was levelled only against the petitioner and that the two other superior officers
were not involved in the offence for which the petitioner was chargesheeted, and that therefore the contention of the learned Counsel for the
petitioner that the petitioner was chosen for different treatment is not tenable. Learned Counsel would further submit that the invocation of the Suo
Motu power under Rule 60 by the 4th respondent is in accordance with the rules and the order passed by him 4th respondent) is also quite in
accordance with the Rules. Regarding the allegation of Mala Fides against the Officer who initiated SUO Motu revision, Mr. Venkateswara Rao
submitted that the Officer who passed the final order was different and, therefore, the allegations of Mala Fides against the officer who initiated the
proceedings will not help the petitioner to challenge the impugned order of the 4th respondent. The argument based on Article 20(2) of the
Constitution, according to the learned Counsel for the respondents, is misconceived as the petitioner was not punished twice inasmuch as the first
punishment was set aside and a De Novo enquiry was ordered. Placing reliance on Rule 43 and Explanation to Rule 44, learned Counsel
submitted that under certain circumstances, it is possible to file two appeals and a further revision and, therefore, the contention that the petitioner
was directed to face two appeals, one Suo Motu revision and another revision by himself is without force. The learned Counsel submitted that the
decision of the Supreme Court, relied on by the learned Counsel for the petitioner, has no application to the facts of the present case.
On a careful consideration of the rival contentions and averments in the affidavit, counter affidavit and reply affidavit, I am of the view that the
second contention of the learned Counsel for the petitioner has to be accepted and on that ground the impugned orders are liable to be set aside.
The specific case of the petitioner in the affidavit is that on receipt of the first order of punishment dated 14.6.1982, he filed an appeal within 30
days of the receipt of that order and, therefore, there was no scope for the 4th respondent to invoke Rule 60 of the Rules. Neither in the counter
affidavit nor in the argument of the learned Counsel for the respondent, a positive denial was made stating that no appeal was filed by the
petitioner. Only evasive replies are given in the counter affidavit. Let me extract the relevant portions of the replies from the counter affidavit.
... It is not correct to say that the appeal dated 15.7.1982 was ignored by the 4th respondent.
The allegations that Shri Anandamurthy, the then Security Officer, Tiruchirapallai had not taken action on the petitioner''s appeal dated 15.7.1982
and he was biased and bent upon removing the petitioner from service are not true and are denied. In fact, the review under Rule 60 was taken up
only after the appeal time was over by the then Security Officer, Tiruchirapallai on his own motion. The contention that the appeal was pending
with the fourth respondent when the enquiry proceedings were reviewed ""Suo Motu"" by him on 22.7.1982 is not correct and hence the question of
acting under Rule 58 does not arise.
It is open to the 4th respondent to exercise his powers under Rule 58 or to invoke his powers under Rule 60.
The last portion of the extract will clearly indicate that notwithstanding the pendency of the appeal, the 4th respondent has taken the view that it is
open to him to invoke Rule 60 of the Rules. In the absence of any clear denial of receipt of the appeal memo, in the light of the assertion in the
affidavit and the reply affidavit, I hold that the petitioner preferred an appeal within time and that was pending before the 4th respondent when he
invoked the provision of Rule 60.
Rules 58 and 60 of the Rules read as follows:
Consideration of Appeals... (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether, in the
light of the provision of Rule 40 and having regard to the circumstances of the case, the order of suspension is justified or not, and confirm of
revoke the order accordingly.
In the case of an appeal against an order imposing any of the penalties specified in Rule 41, 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 provisions of the Constitution or in failure of justice:
(b) Whether the findings are justified; and
(c) Whether the penalty imposed is excessive, adequate or inadequate, and pass orders:
(i) setting aside, reducing, confirming, or enhancing the penalty;
(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances
of the case:
Provided that:
(i) The appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed
against is competent in the case to impose;
(ii) No order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may
wish to make against such enhanced penalty; and,
(iii) If the enhanced penalty, which the appellate authority proposes to impose, is one of the penalties specified in Clauses (a) to (d) of Rule 41 and
an inquiry under Rule 44 has not already been held in the case, the appellate authority shall, subject to the provisions of Rule 47, itself hold such
inquiry of direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the appellant an
opportunity of making any representation which he may wish to make against such penalty pass such orders as it may deem fit.
Revision-(l) Any authority superior to the authority making the order may, on its own motion, or otherwise, revise the order (whether original
or appellate) passed by such lower authority:
Provided that no action under this sub-rule shall be initiated after the expiry of one year from the date of the order aforesaid.
The revising authority may remit, vary or enhance the punishment imposed, or may order a fresh enquiry or the taking of further evidence in the
case as it may consider necessary.
The provision of Rule 58 relating to appeals would apply so far as may be to such orders in revisions.
A reading of Rule 58 will show that even under Rule 58, the Appellate Authority could have set aside, reduced, confirmed enhanced the
penalty imposed by the first authority or could have remitted the case to the authority which imposed the penalty or to any other authority with such
direction as it may deem fit in the circumstances of the case. However, under Rule 58, the Appellate Authority after setting aside the punishment
imposed by the first authority, cannot direct a fresh enquiry to be held by an authority named by him and punish the delinquent as if he was the
disciplinary authority. I am also of the view that when an appeal is pending, without considering the same as contemplated under Rule 58, the
Appellate Authority cannot invoke the Suo Motu power of revision under Rule 60. Though this point was raised by the petitioner before the
respondents 3 and 2, they have not directly dealt with the same. On this ground alone, the order of the 4th respondent is liable to be set aside, and
the further orders of the respondents 3 and 2 confirming the order of the 4th respondent dated 13.12.1982 are also liable to be set aside. Even
otherwise, the proceedings taken under Rule 60 by the 4th respondent cannot be sustained. We have noticed that the first order imposing the
penalty on the petitioner was passed on 14.6.1982 and received by the petitioner on 17.6.1982. The appeal was filed by the petitioner on
15.7.1982. While so, the 4th respondent invoking Rule 60 passed an order on 22.7.1982, the concluding portion of which reads as follows:
Further the penalty of reduction in pay in the time scale for one year imposed by Ascr/Mdu is also inadequate and not commensurate with the
gravity of the offence. Hence I do not agree with the findings of the E.O. in this case. Under these circumstances with the powers vested with me
under Rules 56 and 60 of RPF Rules, 1959, (1) the punishment of reduction in pay in the time scale for one year with recurring effect is set aside
without prejudice to further re-enquiry and (2) ASCR/TPJ Sri. M. Rengaraj is nominated as E.O., to re-enquire the case as a whole and submit his
proceedings within 30 days.
This order was passed without giving any opportunity to the petitioner. Not only that, this order proceeds as if the 4th respondent was considering
the correctness of the findings of the Enquiry Officer and himself (4th respondent) was the punishing authority. This is evident from the portions
extracted below from that order:
I find from the perusal of the records, that the E.O., has not properly examined the material evidence in this case and also not collected proper
evidence and hastily arrived at a decision. Further I find that the punishment imposed was not commensurate to the gravity of the case. I do not
agree with the findings of the E.O., on the following grounds:
Hence I do not agree with the findings of the E.O., in this case.
... Sri M. Rengaraj is nominated as E.O., to re-enquire the case as a whole and
submit his proceeding within 30 days.
From the extracts above, it is clear that the 4th respondent completely forgot that a competent disciplinary authority had already gone into the
matter and the 4th respondent was the superior authority considering the correctness of the final order passed by the disciplinary authority. For this
additional reason also, the order of the 4th respondent, confirmed by the orders of respondents 3 and 2, is liable to be set aside.
In view of my above conclusion, I do not consider it necessary to deal with the other contentions.
In the result, the writ petition is allowed and the orders impugned in this writ petition are set aside. The 4th respondent, if considers it necessary
can proceed with the appeal filed by the petitioner and dispose of the same in accordance with law. The petitioner is entitled to costs. Counsel fee
Rs. 500.