DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCE AND ORS. versus RAJENDRA KUMAR DUBEY
[2020] 13 S.C.R. 1191, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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DIRECTOR GENERAL OF POLICE,
RAILWAY PROTECTION FORCE AND ORS.
v.
RAJENDRA KUMAR DUBEY
(Civil Appeal No. 3820 of 2020)
NOVEMBER 25, 2020
[DR. DHANANJAYA Y. CHANDRACHUD,
INDU MALHOTRA AND K. M. JOSEPH, JJ.]
Service Law:
Compulsory Retirement – Punishment of – Imposed by
departmental authority – Writ Petition – High Court reduced the
punishment of compulsory retirement to reversion in rank for a period
of 6 months – Directed reinstatement with 50% backwages – Appeal
to Supreme Court – Held: High Court was not justified in setting
aside the order of compulsory retirement.
Constitution of India:
Arts. 226 and 227 – Scope under – To interfere with
disciplinary proceedings – Held: High court, in exercise of power
u/Arts. 226 and 227 should not venture into appreciation of evidence
– While exercising jurisdiction u/Art. 226, High Court is not a Court
of appeal – Interference of High Court is limited to cases where
proceedings are inconsistant with principles of natural justice, or
where findings are based on no evidence or in violation of statutory
rules or where authorities were actuated by some extraneous
consideration or where the conclusion on the face of it was arbitrary
and capricious.
Allowing the appeal, the Court
HELD: 1.1 The High Court under Article 226 of the
Constitution is not a court of appeal over the decision of the
authorities holding a departmental enquiry against a public
servant. It is not the function of the High Court under its writ
jurisdiction to review the evidence, and arrive at an independent
finding on the evidence. The High Court may, however interfere
where the departmental authority which has held the proceedings
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against the delinquent officer are inconsistent with the principles
of natural justice, where the findings are based on no evidence,
which may reasonably support the conclusion that the delinquent
officer is guilty of the charge, or in violation of the statutory rules
prescribing the mode of enquiry, or the authorities were actuated
by some extraneous considerations and failed to reach a fair
decision, or allowed themselves to be influenced by irrelevant
considerations, or where the conclusion on the very face of it is
so wholly arbitrary and capricious that no reasonable person could
ever have arrived at that conclusion. If, however, the enquiry is
properly held, the departmental authority is the sole judge of
facts, and if there is some legal evidence on which the findings
can be based, the adequacy or reliability of that evidence is not a
matter which can be permitted to be canvassed before the High
Court in a writ petition. The High Court in exercise of its power
under Articles 226 and 227 of the Constitution of India shall not
venture into re-appreciation of the evidence. [Para 12.1][1199-
G-H; 1200-A-C; 1202-D]
State of Andhra Pradesh v. S. Sree Rama Rao AIR 1963 SC
1723 : [1964] 3 SCR 25; State of Andhra Pradesh v. Chitra
Venkata Rao (1975) 2 SCC 557 : [ 1976] 1 SCR  521; Union
of India v. G. Ganayutham (1997) 7 SCC 463 : [ 1997] 3
Suppl. SCR 549; Director General RPF v. Ch. Sai Babu
(2003) 4 SCC 331 : [
2003] 1 SCR 729; Chennai
Metropolitan Water Supply and Sewerage Board v. T.T. Murali
(2014) 4 SCC 108 : [2014] 1 SCR 987; Union of India v.
Manab Kumar Guha (2011) 11 SCC 535 : [2011] 3 SCR 272;
State of Rajasthan & Ors. v. Heem Singh  2020 AIR 5455;
Union of India v. P. Gunasekaran (2015) 2 SCC 610 : [2014]
13 SCR 1312; B.C. Chaturvedi v. Union of India (1995) 6
SCC 749 : [1995] 4 Suppl. SCR 644; Union of India v. G.
Ganayutham (1997) 7 SCC 463 : [1997] 3 Suppl.  SCR 549;
Om Kumar v. Union of India (2001) 2 SCC 386 : [2000]
4 Suppl. SCR 693; Coimbatore District Central Co-op Bank
v. Employees Association (2007) 4 SCC 669 : [2007] 5
 SCR 430; Coal India Ltd. v. Mukul Kumar Choudhuri (2009)
15 SCC 620 : [2009] 13 SCR 487; Chennai Metropolitan
Water Supply and Sewerage Board v. T.T. Murali Babu (2014)
4 SCC 108 : [2014] 1 SCR 987 – relied on.
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1.2 In the present case, there is no allegation of malafides
against the disciplinary authority or lack of competence of the
disciplinary authority in passing the order of compulsory
retirement, or of a breach of the principles of natural justice, or
that the findings were based on no evidence. [Para 12.2][1203-
D-E]
1.3 The various allegations made against the respondent
arise out of gross neglect of duty with respect to theft of railway
property. The findings of gross neglect of duty under charges
1(b) and (c) have been concurrently upheld. The findings of the
Enquiry Officer and the Disciplinary Authority are based on
materials on record. The High Court was not justified in re-
appraising the entire evidence threadbare as a court of first
appeal, and substituting the order of punishment, by a lesser
punishment, without justifiable reason. [Para 12.5][1205-D-E]
2. Section 11 of the Railway Protection Force Act, 1957
provides that it shall be the duty of every superior officer and
member of the force to protect and safeguard railway property
and passengers. A police officer in the Railway Protection Force
is required to maintain a high standard of integrity in the discharge
of his official functions. In the present case, the charges proved
against the respondent “were of neglect of duty” which resulted
in pecuniary loss to the Railways. The Respondent was a Sub-
Inspector in the Railway Police discharging an office of trust and
confidence which required
absolute integrity. The High Court
was therefore not justified in setting aside the order of compulsory
retirement, and directing re-instatement with consequential
benefits, and payment of backwages to the extent of 50%. [Para
12.6][1205-F-H; 1206-A]
Case Law Reference
[1964] 3 SCR 25
relied on
Para 12.1
[1976] 1 SCR 521
relied on
Para 12.1
[1997] 3 Suppl. SCR 549 
relied on
Para 12.1
[2003] 1 SCR 729 
relied on
Para 12.1
DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCE
AND ORS. v. RAJENDRA KUMAR DUBEY
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[2014] 1 SCR 987
relied on
Para 12.1
[2011] 3 SCR 272
relied on
Para 12.1
2020 AIR 5455
relied on
Para 12.1
[2014] 13 SCR 1312 
relied on
Para 12.1
[1995] 4 Suppl. SCR 644
relied on
Para 12.1
[1997] 3 Suppl. SCR 549
relied on
Para 12.1
[2000] 4 Suppl. SCR  693 
relied on
Para 12.1
[2007] 5 SCR 430  
relied on
Para 12.1
[2009] 13 SCR 487
relied on
Para 12.1
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3820
of 2020.
From the Judgment and Order dated 03.07.2017 of the High Court
of Judicature at Bombay, Nagpur Bench, Nagpur in W.P. No. 941 of
2009.
A.K. Srivastava, Sr. Adv., Ms. Rashmi Malhotra, Antariksh Singh,
Raj Bahadur Yadav, Mrs. Anil Katiyar, Vikas Upadhyay, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
INDU MALHOTRA, J.
Leave granted.
1. The issue which has arisen for our consideration is the validity
of the Judgment passed by the High Court in exercise of its writ
jurisdiction to set aside the order of compulsory retirement passed by
the statutory authorities against the respondent, and substituting it by an
order of re-instatement with all consequential benefits, and 50%
backwages.
2. The Respondent was appointed in 1984 as a Constable with
the Railway Protection Force (R.P.F) in Jhansi. On 28.02.2006, he was
posted as SIPF (Adhoc) Sub-Inspector at the Pulgaon Railway Station,
Maharashtra (Outpost).
3. On 11.12.2006, the Respondent was placed under suspension
with immediate
effect pending enquiry. On 04.01.2007, a charge sheet
was issued for major penalty under Rule 153 of the Railway Protection
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Force Rules, 1987 by the Sr. Divisional Security Commissioner R.P.F.
The charges framed were:
“(1) GROSS NEGLECT OF DUTY in that you failed to prevent
and detect with due promptitude and diligence: -
(a) The theft of 02 Nos. of Primary injections Kit Valued Rs.
28,000/- approx. from traction Sub-Station located at Km, No.
664/20-24 near Badnera Railway Station reported on 04.04.2006.
(b) The theft of 19 CST-9 Plates kept at Km. No. 678/13-15
between Railway Station Makhed-Timtala reported on 21.11.2006
and to submit the FIR and case diary related to the said case to
office of Sr. DSC/RPF/Nagpur.
(c) The theft of one Coach Trolley of Lot No. 14-04-06-02-2281
kept at Km. No.672/32 between Railway Stations Timtala-
Malkhed reported on 05.12.2006
(2) “ABUSE OF AUTHORITY” in that you used unnecessary
Violence toward a passenger named Shaikh Ibrahim at the waiting
room of Pulgaon Railway Station on 31.10.2006.”
4. The Enquiry Officer (E.O) vide his Report dated 22.06.2007
exonerated the Respondent of charge 1(a) as the same was not proved,
Charges 1(b), (c) and 2 were found to be proved.
5. On 12.07.2007, the Disciplinary Authority i.e. the Senior
Divisional Security Commissioner, R.P.F. Nagpur, accepted the findings
of the E.O. In view of the gravity of the charges of gross neglect of duty
and abuse of authority, the Disciplinary Authority imposed the punishment
of removal from service with immediate effect.
6. The Respondent preferred an Appeal before the
DIG-cum-
Additional Chief Security Commissioner, R.P.F Mumbai.
The Appellate Authority partially allowed the Appeal, upholding
the findings with respect to charges 1(b) and 1(c). Charge 1(b) pertained
to the theft of 19 CST-9 plates; on verification, it was found that the
shortage was of 6 pairs of CST-9 plates. Charge 1(c) was a special
report case pertaining to the theft of 1 coach trolley valued at Rs. 28,000
and was found to have been proved. However, the appellate authority
held that these charges did not warrant the extreme punishment of
removal from service as there was no imputation of connivance or corrupt
practice against the Respondent.
DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCE
AND ORS. v. RAJENDRA KUMAR DUBEY [INDU MALHOTRA, J.]
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With respect to charge No. 2, it was held that the said charge was
not proved, since no witness in support of this charge had been examined.
The E.O had relied upon the complaint registered by a passenger-Shaikh
Ibrahim in the complaint book of the Pulgaon Railway Station, which
was found to have been proved by the E.O., without holding a preliminary
enquiry, or examining the complainant. The other evidence in support of
this charge was a report submitted by the Inspector, R.P.F Wardha about
the complaint lodged at the Pulgaon Railway Station of the incident. As
per confidential information received, it was informed that the Respondent
was beating people and collecting money at the Pulgaon Railway Station,
which led to discontentment amongst the people, and led to a dharna
and agitation for transfer of the Respondent from the Pulgaon Railway
Station. The Appellate Authority held that the said report had no
evidentiary value in support of the charge. Consequently, charge 2 was
held not to be proved.
The Appellate Authority vide Order dated 05.09.2007 reduced
the punishment of removal from service to that of reversion in rank for
a period of 6 months without future effect.
7. Review of DAR proceedings was sought by the Senior Divisional
Security Commissioner/NGP vide letter dated 10.09.2007 addressed to
the Chief Security Commissioner under Rule 219.4, since certain lacunae
were pointed out in the order of the
Appellate Authority. It was submitted
that the image of R.P.F would deteriorate if the service of the Respondent
was continued. It had also come to light that the delinquent employee
while under suspension, had been arrested by the C.B.I, Nagpur in an
Anti-Corruption case.
8. The Chief Security Commissioner/CR issued a show cause
notice to the Respondent dated 23.10.2007 under Rule 219.4 of the
Railway Protection Force Rules, 1987 proposing to impose the penalty
of compulsory retirement from service.
After considering his reply, the Authority vide Order dated
05.12.2007 held that the charges levelled against the employee were
very serious in nature and had been proved beyond doubt, which were
damaging to the reputation of the force. In view of the gravity of charges,
gross neglect of duty and abuse of authority, a major penalty was directed
to be imposed. It was further noted that the delinquent employee had
been arrested by the CBI, Nagpur in a trap case, under Section 7 and 13
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(1)(d) of the Prevention of Corruption Act, 1988 for a major penalty of
demanding illegal gratification. This had occurred while the respondent
had been placed under suspension. Accordingly, the punishment of
compulsory retirement from service with immediate effect was imposed.
It was concluded that the E.O. had conducted the Departmental
Enquiry as per extant DAR Rules, after giving a reasonable opportunity
to the delinquent employee to defend himself. There were no lapses or
irregularities in the enquiry proceedings.
9. The Respondent filed an appeal before the Director-General,
R.P.F Railway Board.
The Director General, R.P.F Railway Board vide Order dated
19/21.05.2008 rejected the appeal since no fresh material had been
brought on record which would merit interference. The enquiry was
found to be conducted in accordance with the procedure prescribed by
the rules, wherein an adequate and reasonable opportunity had been
granted to the employee to defend himself. The Director General affirmed
the view of the appellate authority to enhance the punishment in
accordance with the R.P.F Rules. The punishment was held to be
commensurate with the gravity of the misconduct committed by the
Respondent.
10. The Respondent filed Writ Petition No. 941 of 2009 before
the High Court Judicature at Bombay, Nagpur Bench to quash and set
aside the Orders dated 12.07.2007 and 05.12.2007of compulsory
retirement from service.
The High Court vide the impugned Judgment and
Order dated
03.07.2017 partly allowed the Writ Petition. The High Court observed
that the findings with respect to charge 1 (b) pertained to the theft of 19
CST-9 Plates between Malkhed and Timtala Railway Stations. The theft
was reported to the writ petitioner on 21.11.2006, who was in-charge of
the R.P.F Chowki, Pulgaon. The delinquent employee attended the spot
on 25.11.2006, and drew a Panchnama with a site map, recording that 9
bars of CST-9 plates costing Rs. 20,520 were found to be short. The
F.I.R was prepared in the prescribed format. The allegation against the
writ petitioner was that he failed to sign the F.I.R., and proceeded on
leave without sanction from 03.12.2006 to 14.12.2006.
The High Court noted that the charge against the writ petitioner
was that he did not submit the F.I.R. and the case diary to the office of
DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCE
AND ORS. v. RAJENDRA KUMAR DUBEY [INDU MALHOTRA, J.]
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the Senior Divisional Security Commissioner, Nagpur. The F.I.R. and
the case diary were obtained by the Senior Divisional Commissioner,
Nagpur/R.P.F in the absence of the writ petitioner.
A second panchnama was thereafter prepared by Nirmal Toppo,
who was Incharge of the R.P.F Thana, Wardha who visited the spot on
26.11.2006.
The High Court held that the writ petitioner could not be held
guilty for not having detected the theft occurred on 21.11.2006, since the
theft was detected by Nirmal Toppo on 26.11.2006. In the view of the
High Court, the writ petitioner could not be held duty bound to report the
theft to the Head Office at Nagpur, since he was incharge of Police
Chowki, Pulgaon under R.P.F Thana, Wardha.
The High Court held that the order of the Senior Divisional Security
Commissioner dated 05.09.2007 wherein it had been observed that such
thefts are found to be common, and in the absence of any pecuniary loss
being caused, would not warrant the extreme punishment of removal
from service was the correct view, particularly since there was no
imputation of connivance or corrupt practice. This according to the High
Court had not been considered by the Chief Security Commissioner and
the Director General of the Railway Protection Force.
The High Court observed that the arrest of the writ petitioner by
the C.B.I., Nagpur in a major Charge Sheet, was an irrelevant
consideration since it was a separate case, and no
charge had been
framed on this issue in the present case.
With respect to charge No.1(c) regarding the theft of 1 coach
trolley valued at Rs.28,000 kept at Km 672/32 between Railway Station
Timtala and Malkhed, the High Court held that the theft of the trolley
was detected by another officer, hence the allegation of delay by the
Respondent herein of not reporting the case loses its significance. In
paragraph 25 of the Judgment, it was held that the finding recorded by
the Senior Divisional Security Commissioner could not have been disturbed.
With respect to charge 2, the High Court held that the material
witness was the passenger Shaikh Ibrahim, who had not been examined.
Reliance was placed only on the complaint registered by the passenger,
and the morcha carried out by the auto-ricksha walas. Hence, the said
charge was unproved.
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The High Court quashed the Order dated 12.07.2007 passed by
the Senior Divisional Security Commissioner, as also the Order dated
18.02.2007 passed by the Chief Security Commissioner, ordering
compulsory retirement, and the Order dated 19/21.05.2008 passed by
the Director General Railway Protection Force confirming the said Order.
The High Court restored the Order of the first appellate authority dated
05.09.2007 by the Senior Divisional Security Commissioner, Railway
Protection Force. It was directed that the writ petitioner be re-instated
in service, and would be entitled to all consequential benefits, including
backwages to the extent of 50% on the remitted post, without future
effect.
11. The Department has filed the present Civil Appeal to challenge
the judgment of the High Court setting aside the Order of compulsory
retirement, and directing the Railways Department to re-instate the
Respondent with consequential benefits, and payment of 50% backwages.
This Court vide Order dated 17.11.2017 issued notice, and directed
stay of the operation of the Judgment passed by the High Court.
12. Discussion and Analysis
We have heard learned Counsel for the parties, and perused the
record, and written submissions filed on their behalf.
12.1 We will first discuss the scope of interference by the High
Court in exercise of its writ jurisdiction with respect to disciplinary
proceedings. It is well settled that the High Court must not act as an
appellate authority,
and re-appreciate the evidence led before the enquiry
officer.
We will advert to some of the decisions of this Court with respect
to interference by the High Courts with findings in a departmental enquiry
against a public servant.
In State of Andhra Pradesh v S.Sree Rama Rao,1 a three judge
bench ofthis Court held that the High Court under Article 226 of the
Constitution is not a court of appeal over the decision of the authorities
holding a departmental enquiry against a public servant. It is not the
function of the High Court under its writ jurisdiction to review the
evidence, and arrive at an independent finding on the evidence. The
High Court may, however interfere where the departmental authority
1 AIR 1963 SC 1723.
DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCE
AND ORS. v. RAJENDRA KUMAR DUBEY [INDU MALHOTRA, J.]
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which has held the proceedings against the delinquent officer are
inconsistent with the principles of natural justice, where the findings are
based on no evidence, which may reasonably support the conclusion
that the delinquent officer is guilty of the charge, or in violation of the
statutory rules prescribing the mode of enquiry, or the authorities were
actuated by some extraneous considerations and failed to reach a fair
decision, or allowed themselves to be influenced by irrelevant
considerations, or where the conclusion on the very face of it is so wholly
arbitrary and capricious that no reasonable person could ever have arrived
at that conclusion. If however the enquiry is properly held, the
departmental authority is the sole judge of facts, and if there is some
legal evidence on which the findings can be based, the adequacy or
reliability of that evidence is not a matter which can be permitted to be
canvassed before the High Court in a writ petition.
These principles were further reiterated in the State of Andhra
Pradesh v Chitra Venkata Rao.2 The jurisdiction to issue a writ of
certiorari under Article 226 is a supervisory jurisdiction. The court
exercises the power not as an appellate court. The findings of fact reached
by an inferior court or tribunal on the appreciation of evidence, are not
re-opened or questioned in writ proceedings. An error of law which is
apparent on the face of the record can be
corrected by a writ court, but
not an error of fact, however grave it may be. A writ can be issued if it
is shown that in recording the finding of fact, the tribunal has erroneously
refused to admit admissible and material evidence, or had erroneously
admitted inadmissible evidence. A finding of fact recorded by the tribunal
cannot be challenged on the ground that the material evidence adduced
before the tribunal is insufficient or inadequate to sustain a finding. The
adequacy or sufficiency of evidence led on a point, and the inference of
fact to be drawn from the said finding are within the exclusive jurisdiction
of the tribunal.
In subsequent decisions of this Court, including Union of India
v. G. Ganayutham3, Director General RPF v. Ch. Sai Babu4, Chennai
Metropolitan Water Supply and Sewerage Board v T.T. Murali,5
Union of India v. Manab Kumar Guha,6 these principles have been
consistently followed.
2 (1975) 2 SCC 557.
3 (1997) 7 SCC 463
4 (2003) 4 SCC 331
5 (2014) 4 SCC 108
6 (2011) 11 SCC 535
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In a recent judgment delivered by this Court in the State of
Rajasthan & Ors. v. Heem Singh7 this Court has summed up the law
in following words :
“33.In exercising judicial review in disciplinary matters, there
are two ends of the spectrum. The first embodies a rule of
restraint. The second defines when interference is permissible.
The rule of restraint constricts the ambit of judicial review.
This is for a valid reason. The determination of whether a
misconduct has been committed lies primarily within the
domain of the disciplinary authority. The judge does not
assume the mantle of the disciplinary authority. Nor does the
judge wear the hat of an employer. Deference to a finding of
fact by the disciplinary authority is a recognition of the idea
that it is the employer who is responsible for the efficient
conduct of their service. Disciplinary enquiries have to abide
by the rules of natural justice. But they are not governed by
strict rules of evidence which apply to judicial proceedings.
The standard of proof is hence not the strict standard which
governs a criminal trial, of proof beyond reasonable doubt,
but a civil standard governed by a preponderance of
probabilities. Within the rule of preponderance, there are
varying approaches based on context and subject. The first
end of the spectrum is founded on deference and autonomy –
deference to the position of the disciplinary authority as a
fact finding authority and autonomy of the employer in
maintaining discipline and efficiency of the service. At the
other end of the spectrum is the principle that the court has
the jurisdiction to interfere when the findings in the enquiry
are based on no evidence or when they suffer from perversity.
A failure to consider vital evidence is an incident of what the
law regards as a perverse determination of fact.
Proportionality is an entrenched feature of our jurisprudence.
Service jurisprudence has recognized it for long years in
allowing for the authority of the court to interfere when the
finding or the penalty are disproportionate to the weight of
the evidence or misconduct. Judicial craft lies in maintaining
7 Judgment dated 29.10.2020 passed in C.A. No. 3340 of 2020 by a bench comprising
of Justice D.Y Chandrachud and Justice Indira Banarjee.
DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCE
AND ORS. v. RAJENDRA KUMAR DUBEY [INDU MALHOTRA, J.]
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a steady sail between the banks of these two shores which
have been termed as the two ends of the spectrum. Judges do
not rest with a mere recitation of the hands-off mantra when
they exercise judicial review. To determine whether the finding
in a disciplinary enquiry is based on some evidence an initial
or threshold level of scrutiny is undertaken. That is to satisfy
the conscience of the court that there is some evidence to
support the charge of misconduct and to guard against
perversity. But this does not allow the court to re-appreciate
evidentiary findings in a disciplinary enquiry or to substitute
a view which appears to the judge to be more appropriate. To
do so would offend the first principle which has been outlined
above. The ultimate guide is the exercise of robust common
sense without which the judges’ craft is in vain.”
In Union of India v. P. Gunasekaran,8 this Court held that the
High Court in exercise of its power under Articles 226 and 227 of the
Constitution of India shall not venture into re-appreciation of the evidence.
The High Court would determine whether : (a) the enquiry is held by the
competent authority; (b) the enquiry is held according to the procedure
prescribed in that behalf; (c) there is violation of the principles of natural
justice in conducting the proceedings; (d) the authorities have disabled
themselves from reaching a fair conclusion by some considerations which
are extraneous
to the evidence and merits of the case; (e) the authorities
have allowed themselves to be influenced by irrelevant or extraneous
considerations; (f) the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person could ever have arrived
at such conclusion; (g) the disciplinary authority had erroneously failed
to admit the admissible and material evidence; (h) the disciplinary
authority had erroneously admitted inadmissible evidence which
influenced the finding; (i) the finding of fact is based on no evidence.
In paragraph 13 of the judgment, the Court held that :
8 (2015) 2 SCC 610.
B.C.Chaturvedi v Union of India, (1995) 6 SCC 749; Union of India  v G.Ganayutham,
(1997) 7 SCC 463; Om Kumar v Union of India (2001) 2 SCC 386;
Coimbatore District Central Co-op Bank  v Employees Association, (2007) 4 SCC 669;
Coal India Ltd. v Mukul Kumar Choudhuri, (2009) 15 SCC 620;
Chennai Metropolitan Water Supply and Sewerage Board v T.T. Murali Babu, (2014) 4
SCC 108.
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“13.Under Articles 226 / 227 of the Constitution of India, the
High Court shall not :
(i)
re-appreciate the evidence;
(ii)
interfere with the conclusions in the enquiry, in the case
the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v)
interfere, if there be some legal evidence on which
findings can be based;
(vi) correct the error of fact however grave it may appear to
be;
(vii) go into the proportionality of punishment unless it shocks
its conscience.”
12.2 In the present case, there is no allegation of malafides against
the disciplinary authority i.e. Chief Security Commissioner, or lack of
competence of the disciplinary authority in passing the order of compulsory
retirement, or of a breach of the principles of natural justice, or that the
findings were based on no evidence.
12.3 We find from the record of this case that the Charges under
1 (b) and 1 (c) have been concurrently found to have been proved by the
Disciplinary Authority, Appellate Authority - the Chief Security
Commissioner, R.P.F. and the Director General of the R.P.F. Railway
Board.
The issue under charge 1(b) was the non-registration of an F.I.R
pertaining to a theft case of CST-9 plates of the Railways. The finding
was that even though the Respondent had prepared the F.I.R. after
conducting investigation, he did not sign the F.I.R., and thereafter
proceeded on leave without sanction. As a
consequence, the F.I.R. was
not registered, and the investigation got thwarted right at the threshold.
After some delay, a second panchnama was prepared by Nirmal Toppo,
who was the in-charge of R.P.F Thana, who visited the spot, and then
registered the F.I.R.
It is relevant to note that the High Court has not disturbed the
finding with respect to charge 1(b).
DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCE
AND ORS. v. RAJENDRA KUMAR DUBEY [INDU MALHOTRA, J.]
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12.4 With respect to charge 1(c), this charge was a case of a
Special Report, which are covered by Rule 229 of the Railway Protection
Rules which reads as under:
“229. Special Reports. - In cases of theft at the post involving
loss of booked consignment or railway material exceeding
the value fixed by the Director General from time to time, the
Divisional Security Commissioner shall submit special report
to the Director General with copy to the Chief Security
Commissioner and to the concerned officer as may be specified
through the Directives.”
Charge 1 (c) pertained to the theft of one coach trolley of the
Railways which was to be sold as scrap and had been valued at Rs.28,000.
The allegation was that the Respondent had taken sick leave, so as to
avoid being present at the time of handing over the trolley on 04.12.2006.
This charge was found to have been proved by the Disciplinary
Authority, the Appellate Authority, and the Director General of Police-
R.P.F. Railway Board.
With respect to this charge, the High Court has given a
contradictory finding. In para 24 of the Judgment, the Court held that the
theft of the trolley was detected by another officer prior to the writ
petitioner proceeding on leave. Hence, the question of delay in reporting
the theft by the writ petitioner was held to have lost its significance. In
para 25, the High Court however took a contrary view by holding that it
concurred with the view
taken by the Senior Divisional Security
Commissioner in the Order dated 05.09.2007, wherein the charge was
held to be proved. The High Court concluded by holding that the charge
was not so serious so as to warrant the extreme punishment of removal
from service, as there was no imputation of connivance or corrupt
practices.
In our view, the aforesaid findings are erroneous, since the
Respondent has not been awarded the punishment of removal from
service, but compulsory retirement from service vide Order dated
05.12.2007.
12.5 It is further relevant to note that charges 1(b) and 1(c) fall
under Rule 146.2 of the Railway Protection Force Rules, 1987 which
provide:
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“146.2 Neglect of duty:
No member of the Force without good and sufficient cause
shall -
i) neglect or omit to attend to or fail to carry out with due
promptitude and diligence anything which is his duty as a
member of the Force to attend to or carry out; or
ii) fail to work  his beat in accordance with orders or leave
the place of duty to which he has been ordered or having left
his place of duty for a bonafide purpose fail to return thereto
without undue delay: or
iii) be absent without leave or be late for any duty: or
iv) fail properly to account for, or to make a prompt and true
return of any money or property received by him in the course
of his duty.”
The various allegations made against the Respondent arise out of
gross neglect of duty with respect to theft of railway property. The findings
of gross neglect of duty under charges 1(b) and (c) have been concurrently
upheld. The findings of the E.O. and the Disciplinary Authority are based
on materials on record. The High Court was not justified in re-appraising
the entire evidence threadbare as a court of first appeal, and substituting
the Order of punishment, by a lesser punishment, without justifiable
reason.
12.6 Section 11 of the Railway Protection Force Act, 1957
provides that it shall be the duty of every superior officer and member of
the force to protect and safeguard railway property and passengers.
The primary object of constituting the Railway Protection Force is to
secure better
“protection and security of the railway property.” The
restricted power of arrest and search conferred on members of this
Force is incidental to the efficient discharge of their primary duty to
protect and safeguard railway property, and to uphold the law.
A police officer in the Railway Protection Force is required to
maintain a high standard of integrity in the discharge of his official
functions. In this case, the charges proved against the Respondent “were
of neglect of duty” which resulted in pecuniary loss to the Railways.
The Respondent was a Sub-Inspector in the Railway Police discharging
an office of trust and confidence which required absolute integrity. The
DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCE
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High Court was therefore not justified in setting aside the order of
compulsory retirement, and directing re-instatement with consequential
benefits, and payment of backwages to the extent of 50%.
12.7 With respect to the registration of a criminal case by the
C.B.I Nagpur, the High Court held that it was an irrelevant consideration
taken note of by the Senior Divisional Security Commissioner.
On this issue, we were informed during the course of hearing that
the Respondent had been convicted by the Special Judge, Wardha vide
Judgment and Order dated 02.08.2017 for offences punishable under
Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption
Act, 1988 and sentenced to undergo R.I for one year with Fine.
The Counsel for the Respondent informed the Court, that an Appeal
has been filed against the said judgment, which is pending consideration.
We have therefore considered it appropriate not to advert to the
findings in the C.B.I case, lest it prejudices the case of the Respondent
which is pending in Appeal against the order of conviction.
We have decided the issue of the validity of the order of
compulsory retirement on the basis of the material in the enquiry
proceedings, and the orders passed by the statutory authorities in this
regard.
12.8 The Respondent was compulsorily retired pursuant to the
Order dated 05.12.2007 passed by the Chief Security Commissioner.
The order of compulsory retirement
took effect on 05.12.2007. The
Respondent is being paid pension after he has been compulsorily retired.
The direction of the High Court for payment of backwages was
consequent upon the re-instatement of the Respondent-employee. Since
we are upholding the order of compulsory retirement dated 05.12.2007
passed by the Chief Security Commissioner, there is no question of granting
backwages. In any case the Respondent is being paid pension after his
compulsory retirement.
13. We order and direct that:
(a) The appeal is allowed, and the Judgment of the High Court is
set aside for the reasons mentioned hereinabove, and the Order of
compulsory retirement passed on 05.12.2007 by the Chief Security
Commissioner, as affirmed by the Director General, R.P.F. vide Order
dated 19/21.05.2008 is restored.
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(b) The Respondent has stated in his written submissions that the
Gratuity which was payable to him, has not been released by the
Department so far.
We direct the Appellant-Department to release Gratuity, if due
and payable to the Respondent from 05.12.2007, within a period of six
weeks from today, alongwith interest as provided by Section 7(3A) of
the Payment of Gratuity Act, 1972 read with the applicable Office
Memorandum / Notification issued by the Government of India.
The Appeal is accordingly allowed in the above terms, with no
order as to costs.
Pending applications, if any are disposed of accordingly.
Kalpana K. Tripathy
Appeal allowed.
DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCE
AND ORS. v. RAJENDRA KUMAR DUBEY [INDU MALHOTRA, J.]