IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.20642 of 2010 BRIJ KISHORE SINGH, son of Baynath Singh, resident of village-Itwan, P.S. Sahpur, District- Bhojpur………… Petitioner Versus 1. THE UNION OF INDIA through Secretary, Ministry of Railways, Govt. of India, New Delhi. 2. The Director General, Railway Protection Force, Rail Bhawan, Railway Board, New Delhi. 3. The Chief Security Commissioner, Railway Protection Force, Eastern Railway, Kolkata. 4. The Chief Security Commissioner, Railway Protection Foce, East Central Railway, Hajipur. 5. The Senior Divisional Security Commissioner, Railway Protection Force, East Central Railway, Mughalsarai. ………………… Respondents. ----------- For the petitioner: Mr.Rajendra Pd. Singh, Senior Advocate Mr. Alok Kumar Singh, Advocate For Railways: Mr. D.K. Sinha, Senior Advocate Mr. Bijoy Kumar Sinha, Advocate --------------- 4. 11.5.2011 Heard learned counsel for the petitioner and learned counsel for the respondent Railway. The petitioner seeks quashing of the order dated 31.5.2010 passed by the Senior Divisional Security Commissioner, Railway Protection Force, East Central Railway, Mughalsarai (respondent No.5) dismissing the petitioner from service as Chief Constable, R.P.F., Dehri- on-Sone with immediate effect on the ground of his conviction in Session Trial No.396 of 1996/ 532 of 1999 under Section 302/34 of the Indian Penal Code on 14.2.2000 and further for quashing the order dated 2 15.11.2010 issued by the Director General Railway Protection Force, by which the appeal filed by the petitioner has been rejected. The uncontroverted facts of this case are that the petitioner was put on trial in Session Trial No.396 of 1996/532 of 1999 under Section 302/34 of the Indian Penal Code and by judgment dated 14.2.2002, he was convicted. The petitioner filed Criminal Appeal No.78/2000 before the High Court and by order dated 1.3.2000, while admitting the appeal, bail was granted to the petitioner. By order dated 10.3.2000, the petitioner was placed under suspension with effect from 9.2.2000. The petitioner submitted representation, as a result of which, the suspension was revoked by order dated 26.7.2001, upon which the petitioner resumed his duty. Suddenly after almost nine years, the impugned order dated 31.5.2010 was passed, by which the petitioner was dismissed from service. The appeal against the same was also rejected by the impugned order dated 15.11.2010. Learned counsel for the petitioner makes several submissions in support of his case but in view of the nature of the order that I propose to pass, it is not necessary to 3 refer to all of them. It is the contention of learned counsel for the petitioner that Rule 162 of the Railway Protection Force Rules, 1987 lays down the procedure to be followed in case of conviction by a criminal court. Rules 162.1 and 162.4 prescribe the form of charge in such cases in the following manner:- “162.1 The Divisional Security Commissioner or the Commanding officer shall go through the record of every case brought against an enrolled member of the Force in the court, and shall take departmental cognizance of every Criminal case in which an enrolled member of the Force is convicted or acquitted or discharged (except when the case is false) and record an appropriate order. 162.4.1: The charge in proceedings under sub-rules (2) and (3) shall be that the accused has been convicted, imprisoned or fined, as the case may be, for the offence concerned.” 4 It is urged by learned counsel for the petitioner that no charge was ever served or communicated to the petitioner before the order of dismissal was passed. It is contended by learned counsel that under Rule 161 also the disciplinary authority is required to consider the circumstances of the case and make such order in case of conviction on a criminal charge of the members of the Force and the said rule read with Rule 162.4 leads to the conclusion that a formal charge has to be framed in such cases and the proceedee is entitled to explain the circumstances before an order of dismissal is passed under the said Rules. Learned counsel for the respondent Railway, on the other hand, submits that where punishment of conviction is imposed on an enrolled member of the Force on a criminal charge, under Rule 161 of the Railway Protection Force Rules, 1987, the detailed procedure of departmental proceedings is not required. For the said reasons, according to learned counsel, the impugned order must be upheld as in accordance with law. This Court on a consideration of the submissions 5 of learned counsels for the parties, is inclined to accept the submissions of learned counsel for the petitioner. In similar terms as the proviso to Article 311 of the Constitution, Rule 161 of the Railway Protection Force Rules, 1987 provides that a member of the Force, who has been convicted on a criminal charge may be imposed punishment without complying with the requirement of a departmental proceeding for proving the misconduct but the said provisions have to be read along with Rule 162 of the Rules, which lays down the procedure to be followed in the case of conviction by a criminal court by providing for framing of charge on the limited point and the said charge has to be proved by bringing on record the necessary evidence for the same and it is open to the proceedee at that stage to show that he was not at all convicted or further that the circumstances of the case do not justify the extreme punishment of termination of service or call for a lesser punishment. That being the requirement of statutory rules, it is not open to the authorities of the Railway Protection Force to have ignored the same and straightaway passed an order of dismissal. For the aforesaid reasons, the writ application must 6 succeed and it is, accordingly, allowed and the impugned order dated 31.5.2010 and consequently the appellate order dated 15.11.2010 are both set aside. It would, however, be open to the respondent authorities to proceed afresh in the matter in accordance with the statutory rules. The petitioner shall stand reinstated in service. However, it would be open to the authorities to place the petitioner under suspension from the date of the original order, i.e., 31.5.2010 while proceeding afresh in the matter, and the question of payment of salary, etc. for the period from 315.2010 to the date of the fresh order shall abide by the result of the fresh proceedings and orders passed therein with respect to the same. VPS ( Ramesh Kumar Datta, J. )