Munni Lal vs Chief Security Commissioner, Railway Protection Force and Others

Paritosh K. Mukherjee, J.—Sri Munni Lal, the Petitioner, through the instant writ petition, challenged the purported show cause notice dated 28.6.1990, passed by the Chief Security Commissioner, R.P.F., Baroda House, New Delhi for enhancing the punishment of the Petitioner from reduction in the time scale of pay by three stages for a period of two years with cumulative effect, which was earlier modified by the Addl. Chief Security Commissioner, vide his order dated 2.3.1990, by which the punishment awarded to the Petitioner on 30.3.1989, to the extent of dismissal of the services of the Petitioner, under Rule 219 (4) of the R.P.F. Rules, 1987, holding the Petitioner guilty of lack of integrity and devotion of duty.

The writ petition was initially moved before Hon''ble M.P. Singh, J., on 16.7.1990. However, at the time of moving of the writ petition, Hon''ble M.P. Singh, J., did not grant any Interim order, but directed the Petitioner to file his explanation in pursuance of the show cause notice dated 28.6.1990, within a period of two weeks from the said date.

Pursuant to the aforesaid dlrccllun. reply was submitted by the Petitioner on 25.7.1990 (Annexure 16 to the amended writ petition), during the pendency of the writ petition.

Thereafter, during the pendency of the writ petition final order in revision filed by the Petitioner was passed by Chief Security Commissioner, R.P.F., Baroda House, New Delhi on 30.9.1991, dismissing the Petitioner from service.

After the final order in revision, filed by the Petitioner was passed, the writ petition together with the relevant prayer was amended and filed before this Court. The said impugned order of dismissal passed in revision, which was alleged to have been passed during the pendency of the writ petition, because of not granting any interim order at the time of moving of the original writ petition was annexed with the amended writ petition as Annexure 17. As such, the original writ petition as well as amended writ petition are taken for hearing.

Without entering into the chequerred history of the case, it is relevant to go through the interpretation of exercise of revisional power under the provisions of Section 219 of the Railway Protection Force Rules, 1987 (hereinafter referred to as the Rules). Rule 219 of the Rules is being extracted herein below:

(1) An enrolled member of the Force whose appeal has been rejected by a competent authority may prefer an application for revision to the next superior authority. The powers of revision may be exercised only when,--

(a) in consequence of some material irregularity, there has been injustice or miscarriage of Justice; or

(b) fresh evidence is disclosed which could not be produced or was not available at the time of passing of the impugned order.

(2) The procedure prescribed for consideration of appeals under Rule 217 shall, so far as may be, apply to application for revision.

(3) The superior authority while passing orders on the application for revision may at its discretion enhance punishments:

Provided that before enhancing the punishment, the aggrieved member shall be given an opportunity to show cause why his punishment should not be enhanced:

Provided further that subject to the provisions of Sub-rule (2) of Rule 212, an order enhancing the punishment shall be treated as an original order for the purpose of appeal, except when such an order has been passed by the Central Government in which case no further appeal shall lie. Where such order has been passed by the Chief Security Commissioner, appeal shall lie to the Director General and in the case of such order by the Director General, the appeal shall lie to the Central Government.

(4) Any authority superior to the authority making the original order may, on its own motion, or otherwise, call for the records of any inquiry and revise any order made under these rules and may--

(a) confirm, modify or set aside the order; or

(b) confirm, enhance, reduce or set aside the punishment imposed by the order, or impose any punishment where no punishment has been imposed; or

(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper In the circumstances of the case; or

(d) pass such other orders as it may deem fit:

Provided that no action under this Sub-rule shall be initiated after the expiry of one year from the date of the order aforesaid ;

Provided further that no proceeding for revision shall be commenced until after--

(i) the expiry of the period for making an appeal specified In Sub-section (2) of Section 9 ; or

(ii) the disposal of the appeal, where any such appeal has been preferred:

Provided Further that In a case In which It is proposed to enhance punishment further, the aggrieved member shall be given an opportunity to show cause either orally or in writing as to why his punishment should not be enhanced.

It appears from the aforesaid rule that the purported show cause notice has been issued by the authority concerned on 28.6.1990, in exercise of powers under Sub-rule (4) of Rule 219 of the Rules.

It appears from Rule 219(4)(d) of the Rules that no action shall be initiated after expiry of one year from the date of passing of the original order on 30.3.1989, as has been done in the facts of the present case.

It may be mentioned here that the original order was passed by the disciplinary authority on 30.3.1989, and, thereafter, the show cause notice has been issued on 28.6.1990, which is beyond the period of one year, against the provision of the aforesaid rule.

At this stage it is necessary to go through the charges levelled against the Petitioner, which are as follows:

(1) failed to have effective supervision in Loco Workshops, Lucknow resulting into huge theft of Railway materials by means of surreptitious removal of the same consisting of Railway Iron brass and copper materials from Charbagh Loco Workshops/Lucknow approximately 100 quintals as per Police Seizure Report which was concealed underneath the rubbish in a Truck No. UPJ 1927 of Contractor Sri Shiv Ji Ojha S/o Prem Shanker Ojha with the help of his labourers at about 11.05 hrs. of 25.3.87 passed out of Lorry Gate which they failed to prevent or detect.

12) failed to implement standing Instructions regarding physical gate check of the vehicles carrying material authorised to pass through Workshop Lorry Gate as per Regulations resulting into surreptitious removal of huge quantity of railway material as aforesaid, despite the fact that a similar case of brass engine-part valued at Rs. 9,567, approximately had occurred earlier which had been registered by him vide Crime No. 1/87 of 20.1.87 in the said shops where, on getting scent of the vigil kept by CIB Staff/LKO, the miscreants managed to keep away to remove the hidden material and thus left the matter to chances.

(3) thereby exhibited a conduct which was quite unbecoming of a member of the Force and failed to maintain absolute integrity and devotion to duty in violation of Rule 3 (1), (ii) and (iii) of the Railway Service Conduct Rules, 1966.

Although the Enquiring Officer exonerated the Petitioner from the aforesaid three charges but he took the view that some minor punishment should be awarded against the Petitioner. As such, vide his order dated 30.3.1989, he awarded punishment of reduction in the time scale of pay by three stages for a period of five years with cumulative effect.

Against the aforesaid order, an appeal was preferred and the appellate authority by his order dated 2.3.1990 reduced the punishment In respect of Munni Lal (the Petitioner herein) by reduction of time scale of pay by three stages for a period of two years with cumulative effect, from the period of five years with cumulative effect.

Thus, the appellate authority has reduced the sentence and the writ Petitioner was satisfied with that order.

All of sudden, the revisional authority, Addl. Chief Security Commissioner, R.P.F. Issued the purported show cause notice in exercise of his powers under Rule 219(4), as referred to above.

Sri L.P. Nathani, learned Counsel for the Petitioner and Sri Lalji Sinha, learned Counsel for the Respondents appeared before the court and arguments were advanced by them.

Sri Nathani, learned senior counsel placed following legal points In assailing the revisional order, which are as follows:

(i) By the original order, the disciplinary authority did not agree with the finding of the enquiring officer who has practically exonerated the Petitioner from the charges vide his report dated 7.2.1989.

(ii) Petitioner''s appeal having been allowed in part by reduction of minor punishment, there was no material before the revisional authority to exercise suo motu powers under the garb of Sub-rule (4) of Rule 219 of the Rules as has been exercised in the facts of the present case.

(iii) No gist of the proposed enhancement order of dismissal was served upon the Petitioner, as such, the order of dismissal was unwarranted, uncalled for and cannot be supported by principle of natural justice. In this connection learned Counsel drew the attention of this Court that in case of exercise of revisional power for enhancement of sentence, either provisions of service jurisprudence, or any other similar law should have been followed, and the gist of the proposed order should have been Intimated earlier, otherwise there will be violation of principle of natural Justice, as It has been committed In the facts of the present case.

(iv) Lastly, he contended that admittedly the order in revision was passed beyond the period of one year from the date of passing of the original order dated 30.3.1989.

On the other hand Sri Lalji Sinha, learned Counsel appearing for the Respondents tried to Justify the validity of the revisional order, as according to him, there is no infirmity in passing the suo motu revisional order as per the provision of Sub-rule (4) of Rule 219 of the Rules which empowers the disciplinary authority to exercise the suo motu powers.

Having heard the respective arguments of learned Counsel for the parties, this Court has to scrutinise the validity, or, otherwise, of the exercise of revisional powers, which is admittedly passed beyond the period of one year from the date of passing of the original order of punishment, dated 30.3.1989. Further, this Court is also entitled to scrutinise the extreme punishment of dismissal, which was awarded to the Petitioner in purported exercise of revisional power, although the enquiring officer admittedly exonerated the Petitioner with two other persons.

As such, this Court is of the view that by appellate order dated 30.3.1989, the appeal filed by the Petitioner having been partly allowed, there was no material before the revisional authority to exercise suo motu powers, as it was done in the facts of the present case.

In the next place, even assuming that the revisional order was passed within a period of one year, from the date of passing of the appellate order, but as to no opportunity was given to the Petitioner by serving the gist of the proposed revistonal order. Including the order of dismissal, the principle of natural Justice has been flouted in the facts of the present case.

This Court is further of the view that there was no sole responsibility imposed upon the Petitioner in the charge-sheet as there were two other persons, namely Hart Vishnu Dayal Sharma, Head Constable and D.P. Singh, Sub-Inspector. Therefore, the punishment met to the Petitioner in purported exercise of ''revislonal power'' is too ''harsh'' and cannot be sustained in law, in view of catena of decisions of Apex Court in cases of Bhagat Ram Vs. State of Himachal Pradesh and Others, and Ranjit Thakur Vs. Union of India (UOI) and Others, , which actually followed the dictum laid down in the case of House of Lord''s Council Service Union v. Minister for State 1984 (3) Weekly Law Report 4144 HLS, wherein it has been laid down that anything disproportionate should be discarded.

In my view, the punishment of dismissal of the services of the Petitioners, vide order dated 30.9.1991, passed by the Chief Security Commissioner, Railway Protection Force, Baroda House, New Delhi, being Respondent No. 1 is undoubtedly too harsh, and as such, it cannot be sustained in law, In view of the aforesaid decisions.

Accordingly, the impugned revisional order dated 30.9.1991, passed by the Respondent No. 1 In purported exercise of suo motu Jurisdiction, set out as Annexure 17 (of the amended writ petition) Is accordingly set aside.

The appellate order passed by the Additional Chief Security Commissioner, R.P.F., dated 2.3.1990 shall be given effect to as by the said order the original order passed by the disciplinary authority dated 30.3.1989 has been modified to the extent of punishment of reduction In the time scale of pay by three stages for a period of two years with cumulative effect.

Since the Petitioner has retired from services with effect from 31.7.1995 on attaining age of 58 years, the Respondents are directed to finalise retiral benefits, as quickly as possible, treating as no dismissal order has been passed, preferably within a period of six months from the date of production of a certified copy of this order.

Writ petition is allowed to the extent indicated above.

There shall be no order as to costs.