IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9211 of 2011 1. Girish Chandra Dubey S/O Late Maheshwar Dubey R/O Mohalla- Mishratola, P.O +P.S-Darbhanga, Distt.- Darbhanga --- Petitioner Versus 1. The Union Of India Through Director General, RPF, Railway Board, Rail Bhawan New Delhi 2. Director General, RPF, Railway Board, Railway Bhawan New Delhi 3. Chief Security Commissioner, RPF, East Central Railway, Hazipur 4. Divisional Security Commissioner, RPF, East Central Railway Samastipur. 5. Deputy Security Commissioner, RPF, East Central Railways, Samastipur. ---Respondents. O R D E R ---------- 08. 25.10.2011 Heard Mr. Ashok Kumar Singh, learned counsel for the petitioner and Mr. Anil Kumar Sinha, learned counsel for the respondent- Union of India. By filing the present application under Article 226 of the Constitution of India petitioner seeks issuance of appropriate writ(s)/ order(s) to quash and set aside the order dated 15.02.2011 (Annexure-1) issued by the Divisional Security Commissioner of the Railways Protection Force, East Central Railway, Samastipur whereby he has been placed under suspension with immediate effect in contemplation of departmental proceeding. The order reads as under:- “Whereas an enquiry into charge against Sri G.C. Dubey/ Sub-Inspector/RPF/Samastipur is contemplated. 1. Now, therefore, the undersigned the appointing authority or any authority to which it is subordinate or any other authority mentioned in Schedule-III of the RPF Rules, 1987 in exercise of the power conferred by Section 9 (i) of the modified RPF Act 1985 read with Rule 134(a) of the RPF Rule 1987 hereby, Sri G.C. Dubey/ Sub-Inspector/ RPF/Samastipur is placed under suspension with immediate effect i.e. 15.02.2011. 2 He will draw subsistence allowance and other allowance in accordance with the extent Railway/RPF Rules. He will give attendance in daily twice at 08.00 hrs. and 18.00 hrs. at DSC/Reserve/ Samastipur.” Background facts are as under:- Petitioner is serving the Railway Protection Force (for short „RPF‟). He was promoted as Inspector in the RPF in the year 1993. A departmental proceeding was taken up against him in which a final order of punishment dated 31.12.2008 was passed whereby he was reverted to the post of Sub-Inspector. The petitioner preferred writ petition thereagainst which was disposed of by order dated 07.05.10 (Annexure-3) whereby he was directed to represent the matter before the respondent Director General, RPF and the said authority was, in turn, directed to consider the said representation. The representation of the petitioner was subsequently rejected. Dissatisfied by the said order of the Director General of RPF, the petitioner preferred a writ petition being CWJC no. 18312 of 2010, which is said to be pending. In the meanwhile, the respondents came out with impugned order dated 15.02.2011(Annexure-1), whereby he has been suspended invoking jurisdiction conferred under Section 9(i) of the Modified RPF Act, 1985 read with Rule 134 (a) of the RPF Rule 1987. The petitioner made representation thereagainst before the Divisional Security Commissioner RPF on 16.02.2011 (Annexure-4), raising a grievance that the order was passed in malafide manner. It appears, the aforesaid order contained in Annexure-1 was followed by issuance of memo of charge on 09.03.2011 which contained 10 (ten) different charges which chiefly pertained to gross disobedience of the orders of the higher 3 authority including the Chief Security Commissioner, Deputy Chief Security Commissioner and Divisional Security Commissioner of RPF. In the meantime, this Court vide order dated 04.04.2011 (Annexure-6), set aside the order dated 31.08.2010 passed by the respondent Director General, RPF and remanded the matter to the said authority to consider and dispose of the objection raised by the petitioner by a reasoned order. The matter is resting there. Be it noted, at the outset, that parties have made submissions relying on the provisions contained in Railways Protection Force Rules 1987 (for short „Rules‟) and the present status of the petitioner as Sub Inspector in R.P.F. Learned counsel for the petitioner, while assailing the order, submitted that the petitioner is not enrolled member of the RPF, and as such, the author of Anneure-1, was not competent to take disciplinary action against him. In his submissions, the petitioner would be treated as subordinate officer in terms of categorization made in Schedule- I appended to the Rules wherein Sub-Inspector figures under the head „Subordinate Officers‟. Under Rule 152.1 the appointing authority or any authority otherwise empowered only can institute departmental/disciplinary proceeding against him. According to petitioner, the Divisional Security Commissioner (author of Annexure- 1), is not empowered by the general or special order to take disciplinary measures against him. Learned counsel highlights that this Court, at the initial stage of the departmental proceeding, can interfere with the order only if it is shown that the authority who passed the order had no jurisdiction in the matter. Referring to Schedule II it is contended that Divisional Security Commissioner ( author of Annexure-1) is not the 4 appointing authority of the post of Sub Inspector. Reliance in this regard has been placed on a judgment of the Hon‟ble Supreme Court in the case of Union of India vs. Kunisetty Satyanarayana 2006(12) SCC 28 ( para 14). It is further argued, relying on Rule 134 of the Rules, that any superior officer or an enrolled member of the Force may be placed under suspension where a disciplinary proceeding against him is contemplated or is pending or a preliminary inquiry into allegation made as revealed a prima facie case justifying criminal or departmental proceeding which are likely to lead his conviction/dismissal, removal or compulsory retirement from service. It is submitted that since there has not been any preliminary enquiry into the allegation revealing a prima facie case the authorities are stopped from initiating disciplinary proceeding against him. The respondents have filed counter affidavit and supported the impugned action. It is submitted that as per Rule 25 read with Rule 133 of the Rules and Schedule III appended to the Rules the disciplinary action has been taken by the authority who is empowered to take disciplinary action against the petitioner who is not in the category of superior officers. Learned counsel for the respondent has taken a stand that on perusal of Rule 4 and other provisions of the Rule including those contained in various sub paras of Rule 25 and those contained in Chapter XI ( dealing with Discipline and Conduct), it would appear that the Rule contemplates only two categories of employees, namely, the superior officers and the enrolled members of the Force. Petitioner not being the superior officers as set out in Schedule - 1 of 5 the Rules would be treated as enrolled members of the R.P.F. Relying on provision contained in Schedule- III ( disciplinary authority and their powers) framed under Rules 25 and 133, it has been contended that the power of suspension has been conferred on the Divisional Security Commissioner ( author of Annexure-1) to suspend in respect of all enrolled members of the R.P.F. Relying on averments made in the counter affidavit allegations of malafide have been categorically denied. In the submissions of learned counsel for the respondent, the appropriate provision conferring jurisdiction on the authority who passed the impugned order can be seen from Schedule-III and not from Schedule-II. I have considered the rival submissions and perused the materials on record. The Divisional Security Commissioner ( respondent no.4) has passed the order as contained in Annexure-1, whereby petitioner has been placed under suspension in contemplation of departmental proceeding followed by memo of charges ( part of Annexure-2). Petitioner claims himself not to be an enrolled members of the Force but the subordinate officer. In this connection, he has relied on Schedule –I of the Rules which contains list of office and their designations. On perusal, it appears that aforesaid Schedule contains 05 heads as Superior Officers, Subordinate Officers, Under Officers, Other members of the Force and Ancillary Staff ( enrolled members). Rule 4 of the Rules reads as under:- “4. Office and designation of superior officers and enrolled members of the Force: The superior officers and enrolled members of the Force holding office as specified in 6 column 2 of Schedule I shall also be known by designations as specified in column 3 of that Schedule.” Rule 2 of the Rules contains definition. Rule 2(s) defines “superior officer” as officer appointed to the Force under Section 41. On going through the entire Rules, particularly, those contained in various sub Rules of Rule 132, 151, 152 and 153, it would appear that only two categories of officers/staffs have been conceived under the Rules. One being the superior officers and the other being enrolled members of the Force which may consist of different categories. Rule 25 contains general power and responsibilities of the superior officers which reads as under:- “25. General powers and responsibilities of superior officers: The superior officers of the Force shall exercise such administrative and disciplinary powers over the members of the Force placed under their command as are specified in Schedules II to IV and such other powers as are conferred on railway servants of equivalent rank by any rules relating to such servants and discharge such responsibilities as are specified in these rules or may be specified in any directions issued by the Central Government or the Director-General in this behalf.” Rule 133 appearing in Chapter XI ( Discipline and Conduct) deals with the suspension and reads as under:- “133. Suspension: The enrolled members of the Force who may be placed under suspension and the authorities by whom they may be so placed, shall be as specified in Schedule III: Provided that in exceptional circumstances, as Assistant Security Commissioner may place a Sub- Inspector under suspension and an Inspector may place any member of and below the rank of under officer under suspension: Provided further that where any action is taken under the foregoing proviso, the authority suspending an enrolled member of the Force shall 7 forthwith report to the authority competent to place such enrolled member under suspension, the circumstances under which the order was made and obtain his approval and where approval is not granted, the suspension order shall become void and in-operative ab initio.” Schedule III sets out the disciplinary authorities and their powers. Serial 1 of the said Schedule deals with suspension. Divisional Security Commissioner has been authorized/ empowered to pass such order in respect of all enrolled members of the Force. The case of the petitioner that he is not enrolled members cannot be upheld since a fair perusal of diverse provisions of the Rules including the Schedule appended thereto it would appear that the Rules contemplate only two categories of employees, namely, the superior officer and the enrolled members of the Force. Schedule- 1 on which reliance has been placed by learned counsel for the petitioner to show that he is not enrolled members but subordinate officer, in my view, seems to be misplaced in view of the conspectus of the Rules. Be it further noted that enrolled member of the R.P.F. is defined in Section 2 (ba) which includes subordinate officer of the R.P.F. as claimed by the petitioner. Learned counsel for the petitioner argued that any superior officer or an enrolled members of the Force cannot be placed under suspension if on preliminary enquiry into allegation made has revealed the prima facie case justifying criminal or departmental proceeding which are likely to lead his conviction/dismissal, removal or compulsory retirement from service. In my view, such submission merits notice only to be rejected. On perusal of provision contained in 8 134 of the Rules, it would appear that several circumstances have been contemplated therein wherein such action can be taken. I am afraid in view of the provisions contained therein said stand can be countenanced. Bare perusal of memo/article of charge, it appears, the petitioner has been proceeded against for inflicting major penalties. From discussions made hereinabove, it would appear that the authority, who passed the impugned order (Annexure-1), was conferred with the jurisdiction by specific provision contained in the Rules itself to take such disciplinary action against the petitioner. For the reasons noted above, the application is held devoid of merit and it is accordingly dismissed. Sym ( Kishore K. Mandal, J.)