* IN THE HIGH COURT OF DELHI AT NEW DELHI + Reserved on: 29th November 2018 Pronounced on: 7th December, 2018 W.P.(C) 580/2016 GURCHARAN SINGH SODHI Petitioner Through: Ms. [ENTITY], Md. Fareed Siddiqui, Mr. [ENTITY] and Mr. [ENTITY], Advocates versus RAILWAY BOARD, MINISTRY OF RAILWAYS & ANR Respondents Through: Mr. [ENTITY], Advocate. CORAM: JUSTICE [ENTITY] JUSTICE [ENTITY] JUDGMENT
[ENTITY], J
1. The Petitioner has filed the present petition under [SECTION] of the [ACT] challenging the legality of the order dated 26th December 2014 passed by Director, Railway Protection Force (hereinafter referred to as RPF'), Railway Board, Ministry of Railways, Government of India.
2. By the impugned order, Director, RPF has imposed a penalty of withholding 30 percent monthly pension of the Petitioner for a period of five years under [SECTION] of [ACT] (hereinafter referred to as [ACT]').
Factual Background
3. The order impugned in the present petition arises out of an inquiry conducted by the Respondents under [SECTION] of the [ACT] (hereinafter referred to as [ACT]').
4. The genesis of the inquiry against the Petitioner was a complaint from one Shri [ENTITY], alleging that the Petitioner has caused harassment to him on 9th September 2008 at Aligarh. The complainant stated that he was running his firm by the name of [ENTITY] Agriculture Industries, dealing with iron plates, for last thirteen years. He alleged that on 9th September 2008, he was called by one Shri [ENTITY] with the message that some Railway Officer was asking for him. When he reached the office of Shri [ENTITY], he found one [ENTITY]', who introduced himself as [ENTITY], Assistant Security Commissioner, RPF, Tundla. Shri [ENTITY] (the Petitioner herein), put his hand around the complainant and took him in a corner and demanded money from him and promised that in return he would extend benefits which would profit the complainant. When Shri [ENTITY] (the complainant) declined to accept such an offer, the Petitioner threatened him with dire consequences by implicating him in false criminal cases. The complainant, shocked by the behaviour of the Petitioner called office bearers of Local [ENTITY] and also persons from the media. Alarmed with the arrival of persons from the media and business communities, the Petitioner left the premises of Shri [ENTITY] and went to a nearby godown of one Shri [ENTITY]. The complainant reached the said godown along with the media personnel, including persons who were recording the incident on a video camera. Sensing trouble, the Petitioner embraced the complainant and said, Let us end this matter here itself. Soon thereafter he left the godown in a vehicle bearing No. UP-80-U-8881 with a blue beacon light driven by a private person.
5. Shri [ENTITY] also made a complaint to the police on similar lines alleging that the Petitioner had demanded Rs. 10,000/- per month from him. He also stated that Petitioner had threatened to implicate him in false criminal cases in case the demand was not met.
6. A preliminary inquiry was conducted by Senior DSC, RPF, Secundrabad. Despite several opportunities given to the Petitioner, he failed to attend the said inquiry. The complainant, corroborated by Shri [ENTITY] and Shri [ENTITY] re-affirmed his deposition before the Inquiry Officer. On the conclusion of the preliminary inquiry, strict disciplinary action was recommended against the Petitioner.
7. On 22nd October 2012, inquiry was initiated under the [ACT]. A memorandum of charges was issued to the Petitioner for having failed to maintain absolute integrity, exhibiting lack of devotion to duty and for having acted in a manner unbecoming of a railway servant as per Rule 3.1
(i), (ii), (iii) of the [ACT] (hereinafter referred to as the 'Conduct Rules'). The competent authority appointed Shri [ENTITY], the then Senior DSC as the Inquiry Officer.
8. The Petitioner yet again elected to stay away from the inquiry, despite several opportunities given to him.
9. On 30th December 2013, the inquiry was concluded against the Petitioner ex-parte. The Inquiry Officer in his report recommended the imposition of penalty under [SECTION] of the Pension rules, which rule provides for withholding and withdrawal of pension. The case was submitted to Minister of Railways, who on behalf of the Hon'ble President, after consideration of the matter in totality, approved to refer the case to Union Public Service Commission (UPSC) for seeking their advice on the matter. On 22nd October 2014, UPSC after examining the gravity of charges and the Inquiry Report, observed that the charges against the Petitioner constituted grave misconduct on his part and advised penalty of withholding 30 percent of his monthly pension for a period of five years.
10. The Disciplinary Authority accepted the advice of UPSC and imposed the penalty as such. The gratuity amount admissible to the Petitioner was released. The Petitioner made a representation to the Railway Minister, New Delhi stating that he was not given proper opportunity to defend his case and requested for a lenient view to be taken in the matter. The said representation was found meritless and the same was accordingly rejected.
11. The Petitioner has impugned the order imposing the penalty of reduction of his pension in the present petition. Besides this, Petitioner has also challenged the inquiry report and disciplinary proceedings initiated against him.
Submissions of Parties
12. Learned counsel for the Petitioner has assailed the impugned order on several grounds. The first ground of challenge is that the [ACT] are not applicable to the Petitioner. She argued that Petitioner is a member of the RPF and is governed by the [ACT] (hereinafter referred to as the '[ACT]') and Rules framed there under. Learned counsel relied upon [SECTION] of [ACT] (hereinafter referred to as the '[ACT]') which reads as under:
"80. Provident fund, gratuity, pension, medical facilities, passes etc :
80.1 In matters relating to-
(i) Provident fund,
(ii) Gratuity,
(iii) Pension,
(iv) Medical facilities,
(v) Pass and Privilege Ticket Orders.
(vi) Educational assistance
(vii) Traveling and transfer allowance, and
(viii) Other financial matters, Superior officers and enrolled members of the Force shall be governed by the provisions of these rules or where no specific provisions has been made in these rules then by the extant Railway Rules in the same manner as officers holding the corresponding ranks or grades in the railway are governed by the Railway Rules;
Provided that the extant Railway Rules relating to the aforesaid matters may be modified by the Central Government from time to time in their application to the members of the Force.
13. The term "extant Railway Rules" is defined under [SECTION] of the Rules which reads as under:
(k) "extant Railway Rules means the rules contained in the [ACT], [ACT], [ACT], [ACT], [ACT], [ACT] and includes any rules made under the [ACT] for railway servants;
14. Referring to the above provisions, her submission is two-fold. Firstly, RPF has its own set of rules governing its members. Secondly, where the [ACT] are silent, then the "extant Railway Rules" govern members of RPF. To buttress the above contention, she argued that the [ACT] do not fall within the ambit of the term extant Railway Rules as defined under [SECTION] of [ACT]. She submits that since the [ACT] are not included in the definition of extant Railway Rules, the said rules are not applicable to the officers of RPF, including the Petitioner. She would then argue that since the rules are not applicable, the impugned order imposing penalty under [SECTION] of the [ACT] is without jurisdiction.
15. The learned counsel further referred to [SECTION] of the [ACT], which reads as under:
(3) Notwithstanding anything contained in any other law for the time being in force, any legal proceeding, whether civil or criminal, which may lawfully be brought against any member of the Force for anything done or intended to be done under the powers conferred by, or in pursuance of, any provisions of this Act or the rules thereunder shall be commenced within three months after the act complained of shall have been committed and not otherwise; and notice in writing of such proceeding and of the cause thereof shall be given to the person concerned and his superior officer at least one month before the commencement of such proceeding.
16. Relying on the aforesaid section of the Act, the submission of the learned counsel is that the departmental proceedings were not initiated within a period of three months of the occurrence of the act complained of and hence, in view of the bar under [SECTION] of the Act, the proceedings were not maintainable. Additionally, she submitted that the proceedings initiated in 2012 after a period of four years from the date of the incident were belated and delayed.
17. Further, she submitted that the Petitioner retired on 31st July, 2013 while the inquiry proceedings were pending against him. She claimed that the proceedings could not have been continued after superannuation of the Petitioner.
18. The learned counsel also submitted that the principles of natural justice had been violated in the inquiry, as the Petitioner was not afforded sufficient opportunity to present himself before the Disciplinary Authority and submit his defence. She would submit that opportunity was not afforded to the Petitioner as contemplated by [SECTION] of the [ACT].
19. The learned counsel for the Petitioner lastly submitted that the entire basis for initiating the inquiry proceedings is the complaint of Mr. [ENTITY]. The said complaint according to her has been closed. She referred to a report of the SHO, Police Station, Aligarh, dated 16th September, 2008, which records that on investigation, the allegations levelled by Shri [ENTITY] in his complaint are found to be baseless. The counsel submitted that in view of the aforesaid closure of the police complaint, the disciplinary proceedings are liable to be quashed.
20. Learned counsel for the Respondents strongly refuted all the submissions of the Petitioner and urged that before initiation of the disciplinary proceedings, a preliminary inquiry was conducted. In the said inquiry, the complainant Shri [ENTITY] and [ENTITY], cameraman working with Aaj Tak news channel, resolutely deposed against the Petitioner. The allegations made in the complaint were reaffirmed by Shri [ENTITY] as well as [ENTITY] and [ENTITY] (the correspondent and cameraman respectively) working with Aaj Tak news channel. The learned counsel submitted that the charges levelled against the Petitioner were serious and exhibited serious misconduct on his part. The Officer acted in a manner unbecoming of a railway servant. He further argued that there was sufficient evidence before the Inquiry Officer in the nature of testimonies of the witnesses that prove the charge of misconduct. The said evidence was not challenged or questioned by the Petitioner. Looking into the gravity of the charges and the evidence before the Inquiry Officer, the order imposing withholding of 30 percent monthly pension for a period of five years was completely justified. He further submitted that the Petitioner being a superior officer was governed by the [ACT]. The learned counsel produced the original records of the inquiry proceedings. Referring to the aforementioned record, learned counsel submitted that the Petitioner had been given sufficient notices in terms of [SECTION] of [ACT] by the Inquiry Officer. The Memorandum of Charges and the date fixed by the Inquiry Officer were intimated to the Petitioner through special messenger. Petitioner was given several opportunities to defend the case, yet he did not care to appear before the Inquiry Officer. This is evident from the following details of the Inquiry record:
S.No. Date Place Remark 1 31.05.2013 Ferozepur Not Attended 2 27.06.2013 Ferozepur Not Attended 3 06 & 07.08.2013 Ferozepur Not Attended 4 12 & 13.09.2013 Aligarh Not Attended 5 21.10.2013 Aligarh Not Attended 6 29.11.2013 Ferozepur Not Attended 7 19.12.2013 Ferozepur Not Attended
21. On the question of delay in initiation of the proceedings, the learned counsel for the Respondents submitted that the Petitioner's submission was completely misplaced as the record indicates that Senior Divisional Security Officer was appointed as Inquiry Officer on 22nd September 2008, immediately after the incident of 9th September 2008. The submission of the Petitioner that the initiation of proceedings was on 22nd October 2012 was erroneous and there was no delay on the part of the Respondents.
Analysis
22. The Petitioner was a member of the Railway Protection Force. [SECTION] of the [ACT] reads as under:
10. Officers and members of the force to be deemed to be railway servants. [Director-General and every member of the Force] shall for all purposes be regarded as railway servants within the meaning of the [ACT] other than [SECTION] thereof, and shall be entitled to exercise the powers conferred on railway servants by or under that Act.
23. The aforesaid definition states that a 'member' of RPF is regarded as railway servant within the meaning of the term defined under the [ACT]. The [ACT] was repealed by the [ACT] and the said Act defines "railway servant" under [SECTION] as under:
(34) railway servant means any person employed by the Central Government or by a railway administration in connection with the service of a railway; [including member of the Railway Protection Force appointed under clause (c) of sub-section (1) of section 2 of the [ACT];]
24. In view of the aforesaid definitions, there cannot be any doubt that the definition of "railway servant" includes members of the Railway Protection Force appointed under the [ACT].
25. [SECTION] of the [ACT] provides as under:
"2. Application- Save as otherwise expressly provided in these rules, these rules shall apply to the following railway servants, namely:-
(1) any Group D' railway servant whose service was pensionable before the introduction of Pension System for Railway Servants on the 16th day of November, 1957;
(2) any non-pensionable railway servants who was in service on the 16th day of November, 1957 and who elected to be governed by these rules;
(3) any non-pensionable railway servant who was in service on the 1st day of January, 1986 and did not opt to be governed by the [ACT]; and (4) any person entering a railway service on or after the 16th November, 1957, except a person who is appointed on contract or re-employed after super-annuation or whose terms of appointment specifically provide to the contrary.
Provided that nothing contained in these rules shall apply to railway servants appointed on or after the Ist day of January, 2004."
26. The aforesaid provision makes it amply clear that the [ACT] are applicable to the railway servants. The term Railway servants includes members of RPF. Thus the Petitioner being a member of RPF is governed by the [ACT].
27. There is another reason why the submission of the Petitioner with respect to the non-applicability of the Pension rules is without merit. The [ACT] have the following Preface:
[ACT] as applicable to Railway Servants are presently contained in the [ACT] and [ACT]. While the [ACT] was up-dated in the year 1987, the Chapters therein on [ACT], Commutation of [ACT] and Extraordinary [ACT] were not taken up for revision as it was intended to bring out a separate self contained volume on Railway [ACT] incorporating the vast changes in the rules and a large number of executive instructions on the subject issued ever since the [ACT] was last brought out in 1971. Similarly, the [ACT], which actually is meant for the guidance of staff dealing with pension work, was last reprinted in the year 1969 incorporating corrections up to 1st September, 1969.
The present volume is thus, a self-contained compilation codifying all the [ACT] applicable to Railway Servants in the form of statutory rules, on the pattern of [ACT] applicable on the civil side.
Titled broadly as "[ACT], the compilation actually embodies the existing rules in three parts namely (i) Railway Services (Pension) Rules
(ii) [ACT], and (iii) [ACT] so that the three separate sets of rules are available in one volume to the advantage of particularly the Railway Personnel dealing with pension cases and settlement of Railway Staff over the vast stretch of [ACT]
28. It is clearly discernible from the reading of the Preface that the Pension rules are applicable to railway servants as contained in [ACT] and [ACT]. The Pension rules in the [ACT] and the [ACT] have been revised and compiled in the [ACT].
29. The definition in [SECTION] of the [ACT] includes the rules contained in the "[ACT]". Thus, the harmonious reading of the aforesaid provisions leads to the conclusion that [ACT] are applicable to members of RPF. In view of the above, the objection of the Petitioner regarding the non-applicability of [ACT], merits rejection.
30. The interpretation being given by the Petitioner to [SECTION] of the [ACT] is also completely misplaced. The said sub-section has to be understood in the context of the preceding sub-sections (1) and (2). The aforesaid provisions deal with the protection given to the members of the Force for any act done by them in discharge of their duties. [SECTION] provides that in case of any suit or proceedings against any member of the Force for an act done by him in the discharge of his duties, such a Member will have the protection as prescribed under [SECTION]. It would be lawful for him to plead that the act was done under the orders of the Competent Authority. [SECTION] provides that the aforesaid plea may be proved by the production of the order directing such an act. In this context, [SECTION] provides that the civil or criminal proceedings that may be brought against a member of the Force for an act done or intended to be done by such a member under the provisions of the Act is to be commenced within three months from the act complained to have been committed by such a member. The intention of the aforesaid provision is to give protection to a member of the Force against third party action. [SECTION] of the Act will not be applicable with respect to the departmental proceedings initiated on account of misconduct by a Member of the Force. Reference in this regard may be made to the decision of the Supreme Court in [PRECEDENT], wherein, while dealing with the meaning of the term "legal proceedings" as appearing under a similar provision ([SECTION] of [ACT]) for protection of army personnel against legal proceedings instituted against them, observed:
"'Legal proceedings' means proceedings regulated or prescribed by law in which a judicial decision may be given; it means proceedings in a court of justice by which a party pursues a remedy which a law provides, but does not include administrative and departmental proceedings"
31. Therefore, the Petitioner's submission that [SECTION] of the Act bars the disciplinary proceedings is without merit. Moreover, learned counsel for the Respondents has pointed out that the Inquiry Officer was appointed immediately after the incident and therefore, there is no delay on the part of the Respondent in initiation of the proceedings.
32. The Petitioner has also averred that the disciplinary proceedings could not have continued, as the Petitioner has superannuated prior to the conclusion of the disciplinary proceedings. With respect to this plea, the Petitioner relied upon the judgments of the Supreme Court in the case of [PRECEDENT] and also [PRECEDENT]. The judgment of the Supreme Court in [PRECEDENT] (supra) refers to the decision of [PRECEDENT] (supra) and holds as under:
"9. Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits.
10. The question has also been raised in the appeal with regard to arrears of salary and allowances payable to the appellant during the period of his dismissal and up to the date of reinstatement. Inasmuch as the inquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him."
33. On this issue, the Respondent has relied upon the judgment of the Supreme Court in the case of [PRECEDENT].
34. The law with respect to the continuation of disciplinary proceedings against a person who has superannuated is well settled. The Supreme Court has held that departmental proceedings against an employee could proceed further after the employee's retirement as long as there is a statutory rule which permits continuation of such proceedings. In the case of [PRECEDENT] (supra), the Supreme Court considered the relevant rules which provided for continuation of the departmental proceedings and held that the departmental proceedings could continue even after the date of superannuation.
35. A similar view has been expressed by the Supreme Court in the cases of [PRECEDENT] and State of UP v.
RC Misra (2007) 9 SCC 698.
36. In the present case, the [ACT] under [SECTION] provide as under:
(2) The departmental proceedings referred to in sub-rule (1) -
(a) if instituted while the railway servant was in service whether before his retirement or during his re-
employment, shall after the final retirement of the railway servant, be deemed to be proceeding under this rule and shall be continued and concluded by the authority by which they commenced in the same manner as if the railway servant had continued in service.
Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to the President;
(b) if not instituted while the railway servant was in service, whether before his retirement or during his re- employment-
(i) shall not be instituted save with the sanction of the President;
(ii) shall not be in respect of any event which took place more than four years before such institution; and
(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which and order in relation to the railway servant during his service.
37. It is therefore clear that in the present case there is a statutory rule for continuation of proceedings after superannuation. The continuation of the departmental proceedings after the Petitioner's superannuation is thus not invalid.
38. The Petitioner's plea of not being provided sufficient opportunities to defend his case does not appear to be a genuine one. In order to satisfy ourselves on this aspect, we have carefully examined the original records of the inquiry proceedings produced by the Respondents. The said record shows several letters sent by the Chief Security Commissioner dated 30th July, 2013, 26th July, 2013, 24th July, 2013, 22nd March, 2013, 8th January, 2013, 31st December, 2012, from which it can be seen that opportunities were given to the Petitioner to defend the case. Notices were also sent by special messenger. Petitioner has refused to accept several notices issued to him. Notices were also pasted at the last known address as well as the notice board of the last working place of the Petitioner. The Petitioner however, chose not to attend the proceedings, for reasons that are not justifiable. Therefore, at this stage, the Petitioner cannot make any grievance about the denial of opportunity to defend the enquiry.
39. We have also had the occasion to examine the evidence produced before the Inquiry Officer. The Inquiry Officer has elaborately and meticulously considered the evidence produced by the Respondent, that is in the nature of the statements of several witnesses. Shri [ENTITY], the complainant, has in very categorical terms, reiterated what was stated in the original complaint. Besides, Shri [ENTITY], correspondent of TV news channel and Shri [ENTITY], the cameraman, have also in very clear terms deposed that when they reached the godown of [ENTITY], pursuant to the phone call of Shri [ENTITY], they found a [ENTITY]' sitting who was trying to evade the camera and who escaped in a private car on seeing the incident being recorded. The said testimonies have gone unrebutted, as the inquiry proceedings were conducted ex-parte since Respondent elected to stay away from the same. The Inquiry Officer taking note of the evidence before him, has elaborately discussed the credit-worthiness of such statements and has rightly come to the conclusion that Respondent was guilty of the imputations of misconduct/misbehaviour. The Articles of Charges thus stood proved beyond any doubt.
40. Though we have taken note that the criminal proceedings recorded in DD entry, pursuant to the complaint of Shri [ENTITY] were closed by the SHO, Police Station, Aligarh, but in our view, the same would not have any impact on the departmental proceedings. It is well established in service jurisprudence that criminal proceedings and departmental proceedings operate in two different fields, as elaborated by the Supreme Court in the cases of [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT]. The Supreme Court, in the above cases has held that acquittal of an employee by a Criminal Court would not automatically and conclusively impact departmental proceedings for various reasons including, the disparate degrees of proof in the two, viz. beyond reasonable doubt in criminal prosecution contrasted by preponderant proof in civil or departmental enquiries; the lack of control of the department over the criminal proceedings leading to acquittal being attributable to shoddy investigation or slovenly assimilation of evidence or lackadaisical conduct of the Trial; the probability of preclusion of a contrary conclusion in a departmental enquiry, in the acquittal in criminal prosecution, if the latter is a positive decision in contradistinction to a passive verdict which may be predicated on technical infirmities.
41. Shri [ENTITY] perhaps did not pursue the criminal complaint, leading to its closure. However before the Inquiry Officer, he and several other witnesses appeared and deposed against the Petitioner. The closure of the criminal proceedings in the present case cannot vitiate the departmental proceedings. In the aforesaid back drop, it can be concluded that sufficient material was brought on record before the Inquiry Officer that established that the charges levelled against the Respondent stood proved. We find no infirmity in the report of the Inquiry Officer. We find no ground to interfere with the disciplinary proceedings or with the quantum of penalty.
42. In view of the above, there is no merit in the present writ petition and the same is dismissed. There would however, be no order as to costs.
[ENTITY], J [ENTITY], J December 07, 2018 nk