1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION FIRST APPEAL NO.1272 OF 1988 1 The Union of India 2 The Chief Security Officer , Central Railway ...Appellants. v. 1 Shri Krishna Gangaram Since deceased thru L.R.S a Dilip Krishna Deshtwar, Son R/o. House No.80, Behind Rly. Quarter No.RB II/124, Matunga, Mumbai-19. b. Smt. Kalpana Gajanan Ennamwar, Daughter, R/o. Shukla Nagar, Post Parvati Nagar, Nagpur- 440 027 c Smt. Nirmala Prakash Kodmalwar Daugher, R/o. Dhanvanti Nagar, Umred Road, Motha Tej Baag, Nagpur 440 026. d Smt. Shashikala W/o. Ashok Deshtwar Daughter in law R/o. House No.80, behind Rly. Quarter No.RB-II/124, Matunga, Mumbai-19 2 Shri Keshav Hiraji Gavand ...Respondents. Mr.T.J.Pandian, adv. For the Appellants. Mr.D.G.Gangal , adv. For the Respondents. CORAM : J.H. BHATIA, J. DATED : 29th August , 2009 ORAL JUDGMENT: 1 This appeal is directed against the judgment passed by the learned Judge, City Civil Court in Short Cause Suit No.1917 of 1981 setting aside the removal of plaintiff/respondent no.1 from service. 2 2 Admitted facts are that the plaintiff was initially appointed on 14th October, 1948 as a watchman in the Watch and Ward Department of the G.I.P. Railway. Later on, Watch and Ward Department came to be converted in Railway Protection Force and the designation of the plaintiff was changed from that of watchman to Sainik. Subsequently, Railway Protection Force Act, 1957 came into force with effect from 10th September, 1959 and the plaintiff was re-designated as Rakshak under the said Act and the rules framed thereunder. Plaintiff was promoted from the post of Rakshak to Senior Rakshak and then as head Rakshak. On 7th April, 1972 chargesheet was issued against the plaintiff levying charges about negligence and performance of the duties and about missing of ammunition provided to him. He replied to the same. After the enquiry the Security Officer issued a notice dated 19th April, 1973 to the plaintiff to show cause why he should not be removed from the service. Reply was duly filed. Security Officer by his order dated 5th July, 1973 removed the plaintiff from the service with effect from 12th July, 1973. Plaintiff challenged his removal from the service by an appeal before the Chief Security Officer. However, that appeal came to be dismissed. His mercy appeal before the Railway Protection Force was also dismissed. Finally, he filed suit for declaration that his removal 3 from the service was illegal particularly because it is in violation of provisions of article 311 of the Constitution of India as he was removed from the service by the Authority, who is lower in rank than his appointing authority. According to the plaintiff, he was initially appointed by the General Manager of the G.I.P. Railways and he could not be removed from the service by any officer lower in rank than that of General Manager. 3 Suit was contested on behalf of the defendants/appellants. Besides taking some technical objections to the tenability of the suit, it was mainly contended that plaintiff was not appointed to the post of watchman by the General Manager. It was contended that Superintendent of the Watch and Ward Department was the head of the department and he was appointing authority. It was contended that security officer, who had removed him, was competent because he is also the appointing authority for the post of Senior Rakshak and Head Rakshak. Plaintiff was appointed as Rakshak and Senior Rakshak by the Assistant Security Officer and head Rakshak by the Security officer. Therefore, he could also be removed from the service by Security Officer. 4 The trial Court held that the order of removal was passed by an authority lower in rank than his appointing authority and, therefore, 4 order of removal is illegal, null and void and inoperative and accordingly, the order of removal came to be set aside. 5 Heard the learned counsel for the Parties and perused the impugned judgment and record and proceedings. The learned counsel for the defendants/appellants vehemently contended that the trial Court had wrongly came to conclusion that as per the Rules framed under Railway Protection Force Rules, Chief Security Officer is the Appointing Authority and he alone could pass the order of removal. He contended that Security Officer is the Appointing Authority for he posts below the rank of Sub-inspector and that Schedule II, which is part of the Rules has been ignored by the trial Court. Disciplinary Authority and their powers are prescribed in the said Schedule II. On the basis of that he pointed out that Rakshak and Senior Rakshak may be removed by the Assistant Security Officer while all members of the force except inspectors and sub-inspectors may be removed by the Security Officer. Head Rakshak being, an officer below the rank of Sub-inspector, can be removed from the service by the Security Officer. He relied upon certain authorities in support of his contention. The learned counsel for the respondent/plaintiff on the other hand vehemently contended that the plaintiff was appointed initially in service by General Manager and even 5 after re-constitution of the service , he could not be removed from service by any officer lower in rank than General Manager. He contends that Chief Security Officer, being the head of the department, could be equivalent to the General Manager and, therefore, if at all he could be removed, it was only by Chief Security Officer and not by Security Officer. Of court he also tried to contend that in view of the Rules, he could be moved from the service only by the Central Government and not by any other officer. 6 Before appreciating arguments advanced by the learned counsel for the parties, it will be necessary to go to the facts leading to this litigation. Plaintiff in his evidence deposed that he was initially appointed as watchman in Watch and Ward Department by the General Manager. However, in the cross-examination, he could not stand to the same and he admitted that the designation of the appointing officer was like Superintendent. In the service book entries were signed by the superintendent. On the basis of this, it is contended by the learned counsel for the appellant that the Superintendent was the appointing authority. However, as rightly observed by the trial Court that merely because the Superintendent had signed the entries in the service book, it could not be held that he was also Appointing Authority. The 6 appointment order of the plaintiff was never produced before the Court. The learned trial Court observed that Indian Railway Establishment Code, Volume-I, vide rule 135, sub-clause (d) shows that first appointment to non-gazetted post in the State managed railways would be by the General Manager or the lower authority to whom he may delegate the power. Admittedly, the plaintiff was recruited to the post of watchman, which was non-gazetted post in the Watch and Ward Department. Therefore, under Rule, 135, General Manager was the Appointing Authority. However, the General Manager was empowered to delegate his powers to any other authority lower to him. However, no material was placed before the trial Court by the Railways to show that General Manager had delegated his powers to any other authority and that the plaintiff was infact appointed by some authority lower in rank than the General Manager. When there was no such material to show the delegation of powers or the appointment by lower authority, the trial Court presumed that appointment must have been made by the General Manager as per the Rules 135. It is difficult, rather impossible, to find any fault with this observation. 7 After the re-constitution of the service, Watch and Ward Department was re-designated as Railway Protection Force and post of 7 watchman was re-designated as Sainik and after the Railway Protection Force Act and Rules came into force, post was again re-designated as Rakshak. There is no dispute that the plaintiff was promoted to the rank of Senior Rakshak and Head Rakshak in due course of time. There is also no dispute that when the chargesheet was served on him and finally when he was removed from the service, he was holding the post of Head Rakshak. The trial Court relied upon the judgment of Allahabad High Court in The Union of India and Others vs. Narbahaddur reported in 1972 Labour and Industrial Cases 945 wherein it was held that statutory rules framed under the Act cannot override or run counter to any specific and mandatory provision of the statute itself. In view of this the trial Court held that the powers of appointment rests with the Chief Security Officer and, therefore, the provisions made in the Rules challenging the powers of dismissal or removal to some lower officers like Security Officer, Assistant Security Officer, could not be override the provisions of Section 6 and, therefore, Rakshak, who was supposed to be appointed by Chief Security Officer could not have been removed from the service by Assistant Security Officer unless the Chief Security Officer had delegated his powers under Section 6. The learned counsel for the appellant contended that on this point, the Supreme Court has 8 taken a different view in Union of India and Others vs. Rajendra Singh AIR 1993 SC 205. 8 Section 6 reads as follows: “Section 6: Appointment of members of the Force – The appointment of members of the Force shall rest with the Chief security Officers who shall exercise that power in accordance with rules made under this Act. Provided that the power of appointment under this section may also be exercised by such other superior officer as the Chief Security Officer concerned may by order specify in this behalf.” From language of the Section, it appears that overall powers of appointment are with the Chief Security Officer but those powers can also be exercised by such other superior officers as the Chief Security Officer concerned may by order specify in this behalf. It is also material to note that under the same Act, Rules have been framed and under Rule 20, powers of superior officer to appoint members of force shall be as specified in Schedule I. Schedule I shows that Chief Security Officer has powers to make appointment of all the members of force. Security Officer can make appointment to the post of Sub-Inspectors, Assistant Sub-Inspectors, Head Rakshaks, Senior Rakshaks and Rakshaks while 9 the Assistant Security Officer can make appointment to the post of Senior Rakshaks and Rakshaks. Rule 43 provides that Disciplinary Authority shall be the authority specified in this behalf in Schedule II. Section II prescribes different powers for the different authorities. It shows that the Assistant Security Officer will be the Disciplinary Authority for the purpose of removal from service for the Senior Rakshaks and Rakshaks while the Security Officer would be the Disciplinary Authority for all members of force except inspectors and sub inspectors. Head Rakshak is the post below the Sub-inspector, therefore, Security Officer is the Disciplinary Authority for Rakshak, Senior Rakshak, as well as the Head Rakshak. In view of this Head Rakshak may be appointed and may also remove from the service by Security Officer. 9 The Supreme Court in the case of Rajendra Singh observed as follows in paragraph nos.12 and 13: “12 A bare reading of the Act, particularly Action 6, will show that the Act contemplates that the “Appointment of members of the Force shall rest with the Chief Security Officer” who is supposed to exercise powers in accordance with the Rules made under the Act. The proviso the Rules Section 6 contemplates other authorities being authorised for making the appointment as may be delegated to such officers by the Chief Security Officer. 10 Therefore, there can be no doubt that the Act contemplates appointment of members of the Force not only by the Chief Security Officer but also by others. The question, therefore, arises is, what is the meaning of the expression “appointment of members of the Force shall rest with the Chief Security Officer”? The expression “rest” in this Section conveys the idea of overall control of appointment resting with the Chief Security Officer subject to the provisions of the Rules. As we have stated earlier section 6 of the Act contemplates appointment of the members of the Force by such authorities as may be authorised. The proviso to section 6 contemplates specifically written order of delegation by the Chief Security Officer but this does not derogate from the power of the rule making authority to confer the said power. The Section and the proviso in our opinion do not rest the power of appointment merely with the Chief Security Officer. What is contemplated is that the Chief Security Officer will have overall control in the matter of appointment and that control be exercised in accordance with the Rules. If the Rules provide for appointment by other superior officers, it cannot be said to be in derogation of the Act or the purposes of the Act. 13 A bare reading of Section 9 of the Act also shows that it is only subject to the provisions of Art.311 of the Constitution and to such rules as the Central Government may make under the Act, that any superior officer could exercise the powers mentioned in Section 9(1)(i) of the Act. If only the Chief Security officer, who is one of the superior officers, alone have the powers of dismissal on the hypothesis that he alone was competent to appoint members of the Force 11 then Section 9 of the Act would not have been worded in the manner it has been so enacted.” From this it is clear that even though all the powers of appointment of members of force shall rest to the Chief Security Officer , these powers can be exercised by the other officers also either on the basis of delegation of powers or on the basis of Rules framed under the said Act. In the case of Rajendra Singh, said Rajendra Singh was appointed by the Assistant Security Officer subsequent to the enactment of RPF Act and Rules and, therefore, he could also be removed by the Assistant Security Officer. 10 In view of this, it may be stated that if the appointing authority of the plaintiff would be the Security Officer, then he could also be removed from the service by Security Officer. However, the facts of the present case are slightly different as pointed out earlier. Plaintiff was initially appointed in service as watchman with Watch and Ward Department by the then General Manager as noted by the trial Court. I have already pointed out that there is no material on record to show that he was appointed by Superintendent or by any officer below the rank of General Manager as attempt was made to show on behalf of the Railways. The learned counsel rightly pointed out that if he was appointed by General Manager of the Railways, even after the re- 12 constitution of the services, he could not be removed from the service by any officer subordinate or lower in the rank or grade than that of the General Manager. He is supported by several authorities. ln Krishan Murari Lal Sehgal vs. State of Punjab AIR 1977 SC 1233, the appellant was initially appointed as clerk in the State of Patiala and then he was confirmed as Assistant under the Pepsu Civil Service Rules. His initial appointment was made by Raj Pramukh. Later on, Pepsu became state of Punjab after re-organisation. The appellant was dismissed from the service by the Financial Commissioner (Revenue). The Supreme Court held that as his initial appointment was by Rajpramukh of Pepsu, he could not be removed from the service by any authority subordinate to the Governor who was equivalent to Rajpramukh. Their Lordships observed as follows in paragraph 10 of the said judgment: “10 As noted earlier, factually, the appellant was confirmed and necessarily appointed by the Rajpramukh. Under the Pepsu Rules the Rajpramukh alone was the appointing authority. The appellant, therefore, cannot be removed from service by any authority subordinate to the Governor in Punjab. The coordinate authority in Punjab is the State Government. The Governor of Pubjab alone, therefore, was competent to pass the order of dismissal of the appellant. The Financial Commissioner (Revenue) is an authority subordinate to the Governor. He was, therefore, not competent to pass the order of dismissal. 13 The order of dismissal is violative of Article 311(1) of the Constitution and is, therefore, invalid and is liable to be struck down.” 11 In Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg and another AIR 1977 SC 747, the respondent was appointed as bus conductor by the Superintendent of the Traffic Department of the erstwhile state of Hyderabad, who was the head of the Road Transport Department of that State. After the Re-organisation of States Act 1956 came into force, the respondent became an employee of Mysore State Road Transport Corporation. He was dismissed from the service by Divisional Controller of the Mysore Government Road Transport Corporation. The Supreme Court held that only the General Manager of Mysore State Road Transport Corporation was equivalent in rank and authority with the Superintendent of the Traffic Department of the erstwhile State of Hyderabad and, therefore, respondent could be dismissed from the service only by General Manager and not by Divisional Controller. Their Lordships observed as follows in paragraph 13: 1. “13 In the instant cases, the first respondents were undeniably appointed by the Superintendent of the Traffic Department of 14 the erstwhile State of Hyderabad who was the head of the Road Transport Department of that State. On the coming into force of the States Reorganisation Act, 1956 on November 1, 1956, they were to be deemed by virtue of sub-section (1) of Sec. 116 of the States Reorganisation Act to have been appointed with effect from that date to the posts held by them on that date by the appropriate authority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or co-ordinate in rank with the aforesaid authority in the erstwhile State of Hyderabad. The authority equivalent to or co-ordinate in rank with the aforesaid authority on the relevant date being the General Manager of the Mysore Government Road Transport Department according to the appellant’s own admission as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the ‘competent authority’ in terms of sub-section (2) of Section 116 of the States Reorganisation Act, 1956. The fact that there was no post of Superintendent of the Traffic in the Mysore Government Road Transport Department in the State of Mysore is of no consequence. Such being the position, the first respondents could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee enshrined in Article 311 of the Constitution read with Section 115(7) of the States Reorganisation Act, 1956.” 12 The learned counsel for the appellant contended that the 15 responsibility lies on the employee to show that he was removed by the authority subordinate to the Appointing Authority and for this he placed reliance on Raghunath Singh vs. State of Madhya Bharat AIR 1959 Madhya Pradesh 43. In that case, the petitioner was initially appointed by I.G. of the police of erstwhile Gwalior State. That post had ceased to exist. He was removed from the service by the D.I.G. Police Northern range (M.B.). Madhya Pradesh High Court held that merely because of the designation of the post, it could not be stated that the D.I.G. Northern Range was a lower or subordinate post to that of I.G. of Gwalior State. Madhya Pradesh High Court observed as follows in paragraph 14: “(14) In the present case it is clear that the appointing authority namely the I.G. of Police of the erstwhile Gwalior States has ceased to exist. Certainly it does not follow that a person appointed by that defunct authority cannot at all be removed. But when he is removed, and he questions the removal as repugnant to Art.311 (1) it would be for him to show that the authority actually removing him is subordinate in rank to the authority appointing. This is a well-nigh impossible task when that authority has ceased to exist, and the corresponding authority has not been mentioned in any Statute or Covenant or Order. This is exactly the position that arose in Mangal Singh’s case. Saying that the authority that dismissed him has a name and description not so high-sounding as the authority which appointed him cannot take him very far. This is because in most of the States 16 that existed before 1948, high sounding names were given to authorities whose powers, jurisdiction, and general status were comparatively low. “ 13 The learned counsel for the appellant also placed reliance upon the Dulal Ranjan Adetya v. R.K.Bose and others AIR 1958 Calcutta 356. The Calcutta High Court infact held that the question of removing authority being of the same rank or grade has to be tested in the light of facts of the particular case. About this, there can be no dispute. In paragraph 11, Calcutta High Court referred to following observations of the Supreme Court in AIR 1955 SC 70. Mahesh Prasad v. State of Uttar Pradesh. In the case of Rajendra Singh, said Rajendra Singh was appointed by the Assistant Security Officer subsequent to the enactment of RPF Act and Rules and, therefore, he could also be removed by the Assistant Security Officer. From these observations, it is clear that it is not necessary that very authority, which had appointed or any authority superior to that authority should pass the order of removal or dismissal. There may be cases where the original Appointing Authority is not in existence and, therefore, authority equivalent to that or superior in rank may be competent to remove or dismiss a person from the service. It is well settled position of law that under Article 311 of the 17 Constitution , the authority competent to dismiss or remove from the service should be of same rank or grade as the authority, who was of the Appointing Authority and not less than that. 14 Coming to the facts of the present case, admittedly, General Manager under the G.I.P. Railway was the head of the Watch and Ward Department and Appointing Authority under Rule 135. Other officers like Superintendent of Watch and Ward Department were subordinate to him. Equivalent to General Manager after re-constitution of the service could be the Chief Security Officer, who is the officer having all the powers of appointment of all the staff members of the force just like General Manager. He can also delegate his powers to his subordinates to make certain appointment. In the present case, the appellant failed to establish that respondent/plaintiff was appointed by any officer lower in rank than that of General Manager. In such circumstances, he could be removed from the service only by an officer , who would be equal in rank or grade to that of General Manager. There is no dispute that only Chief Security Officer can be equal to the General Manager and not Security Officer or Assistant Security Officer. In the present case, Security Officer had removed the plaintiff/respondent from the service. It is true that plaintiff was given certain appointments and promotions 18 under the Rules framed under the R.P.F. Act but as he was initially appointed by General Manager, that protection could not be taken away from him even after re-constitution of services and, therefore, it must be held that he could not be removed by any officer below the rank of Chief Security Officer, who can be equivalent to General Manager. 15 The learned counsel for the plaintiff/respondent contended that under the Rule