UNION OF INDIA & ORS. versus RAM BAHADUR YADAV on 26 November 2021

[2021] 11 S.C.R. 275

UNION OF INDIA & ORS.

v.

RAM BAHADUR YADAV

(Civil Appeal No. 9334 of 2010)

NOVEMBER 26, 2021

[R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]

Service law:

Railway Protection Force Rules, 1987: r. 161 – SpecialProcedure in certain cases – Mandate of the Rule to record reasons– On facts, allegation that the head constable had conspired withthe main accused for commission of theft of Non-Judicial StampPapers nearly worth of Rs.1 Crore – Disciplinary enquiry dispensedwith – Dismissal order was passed without indicating any reasonsfor dispensing with the inquiry except stating the allegation againstthe Constable – High Court set aside the dismissal order – On appeal,held: To pass an order as disciplinary measure, by adopting specialprocedure in certain cases, r. 161 itself mandates recording ofreasons – Dismissal of a regular member of Force, is a drasticmeasure – r. 161 which prescribes dispensing with an inquiry andto pass order against a member of Force, cannot be invoked in aroutine and mechanical manner, unless there are compelling andvalid reasons – By merely repeating the language of the Rule in theorder of dismissal, will not make the order valid one, unless validand sufficient reasons are recorded to dispense with the inquiry –When the Rule mandates recording of reasons, the very order shoulddisclose the reasons for dispensing with the inquiry – Words ‘notreasonably practicable’ as used in the Rule, are to be understood ina manner that in a given situation, ordinary and prudent man shouldcome to conclusion that in such circumstances, it is not practicable– In the instant case, there appears no valid reason to dispensewith inquiry and to invoke r. 161 – As regards grant of back wages,grant of 50% of back-wages is just and fair in the facts andcircumstances of the case – Thus, the order passed by the HighCourt upheld.

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ADismissing the appeal, the CourtHELD: 1.1 From a reading of r. 161 of the RailwayProtection Force Rules, 1987, it is clear that to pass an order asdisciplinary measure, by adopting special procedure in certaincases, Rule 161 itself mandates recording of reasons. The normalBrule for conducting an inquiry is governed by Rules 132, 148 and153 of the RPF Rules. If the Authorities invoke special procedure,unless they record reasons, as contemplated in the Rule itself,no order could have been passed by invoking Rule 161. At nopoint of time, appellants have produced file to show that anyreasons are recorded in such file also. It is a settled legal positionCthat when Rules contemplate method and manner to adopt specialprocedure, it is mandatory on the part of the authorities to exercisesuch power by adhering to the Rule strictly. Dismissal of a regularmember of Force, is a drastic measure. Rule 161, which prescribesdispensing with an inquiry and to pass order against a member ofDForce, cannot be invoked in a routine and mechanical manner,unless there are compelling and valid reasons. The dismissalorder does not indicate any reason for dispensing with inquiryexcept stating that the respondent had colluded with the otherHead Constable for theft of Non Judicial Stamp Papers. By merelyrepeating the language of the Rule in the order of dismissal, willEnot make the order valid one, unless valid and sufficient reasonsare recorded to dispense with the inquiry. When the Rulemandates recording of reasons, the very order should disclosethe reasons for dispensing with the inquiry. The submission thatif file contains reasons, same is sufficient to maintain the order, Fcannot be accepted. When inquiry is not conducted, member ofthe Force is entitled to know the reasons for dispensing withinquiry before passing any order as a disciplinary measure. Therespondent was only a Head Constable during the relevant pointof time and he was not in powerful position, so as to say that he

would have influenced or threatened the witnesses, had the inquiryGwas conducted. The very fact that they have conducted confidentialinquiry, falsifies the stand of the appellants that it was notreasonably practicable to hold an inquiry. The words ‘notreasonably practicable’ as used in the Rule, are to be understoodin a manner that in a given situation, ordinary and prudent manH

should come to conclusion that in such circumstances, it is notpracticable. In the instant case, there appears no valid reason todispense with inquiry and to invoke Rule 161 of the Rules. Theview taken by the High Court is accepted. [Para 9][281-C-H;282-A-C]

1.2 With regard to grant of back wages, by the time, theorder came to be passed by the Single Judge, the respondenthad retired from service on attaining the age of superannuation.In normal course, it would have been permitted to hold inquiry,but keeping in mind that the respondent had retired from serviceeven before the judgment was rendered by the Single Judge,this Court is not inclined to do so at this stage. Though, it isalleged that the respondent had conspired with the main accusedfor commission of theft of Non-Judicial Stamp Papers nearly worthof Rs.1 Crore, but not even a police complaint was filed forreasons best known to the appellants. Grant of back wagesdepends on facts and circumstances of each case. In the instantcase, the respondent was not given any opportunity to defend hiscase at all. It is clearly well settled that any amount of suspicioncannot be equated to proof. The grant of 50% of back-wages isjust and fair in the facts and circumstances of the case. The HighCourt has correctly granted 50% of the back wages to therespondent. There is no ground to interfere with the impugnedorder passed by the High Court [Para 11, 13][282-E, F-H; 283-A-B, C, D-E]

Deepali Gundu Surwase v. Kranti Junior AdhyapakMahavidyalaya (D.Ed.) & Others (2013) 10 SCC 324: [2013] 9 SCR 1 – relied on.

Sahadeo Singh & Others v. Union Of India & Others(2003) 9 SCC 75; Tarsem Singh v. State of Punjab &Others (2006) 13 SCC 581; Commissioner of Police,Delhi & Others v. Jai Bhagwan (2011) 6 SCC 376 :[2011] 7 SCR 558; Jaswant Singh v. State of Punjab &Others (1991) 1 SCC 362 : [1990] 3 Suppl. SCR 354;M/s. Hindustan Tin Works Pvt. Limited v. The Employeesof M/s. Hindustan Tin Works Private Limited & Others(1979) 2 SCC 80 : [1979] 1 SCR 563 – referred to.

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ACase Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9334Cof 2010.

From the Judgment and Order dated 07.04.2009 of the High Courtof Judicature at Allahabad, Lucknow Bench, Lucknow in Special AppealNo.230 of 2009.

Ms. Kiran Suri, Sr. Adv., Piyush Beriwal, Ms. Nidhi Khanna,DMs. Reena Pandey, Amrish Kumar, Advs. for the Appellants.

S. R. Singh, Sr. Adv., Prateek Yadav, Ankur Yadav, Krishna KumarYadav, Mitr Rao, Advs. for the Respondent.

The Judgment of the Court was delivered by ER. SUBHASH REDDY, J.

1. This Civil Appeal is filed aggrieved by the judgment and orderdated 07.04.2009, passed by the High Court of Judicature at Allahabadin Special Appeal No.230 of 2009. By the aforesaid order, the intra–Court Appeal filed by the Appellants is dismissed confirming the orderFof the learned Single Judge allowing the writ petition filed by therespondent.

2. The respondent herein was working as Head Constable in theRailway Protection Force. In the disciplinary inquiry initiated againsthim, he was charged for collusion with main accused in the incidentGinvolving theft of more than Rs.1 Crore of Non-Judicial Stamp Papers.The competent Authority, stating that it was not reasonably practicableto hold an inquiry, has passed order dated 22.10.1998, dismissing therespondent from service. The appeal and revision filed by him, ended indismissal. When the said orders were questioned, the learned SingleJudge allowed the writ petition by judgment and order dated 17.02.2009,H

by setting aside the dismissal order with a direction for payment of allpensionary benefits and 50% of back wages. The said order was passedas the respondent–employee has attained the age of superannuation.When the said order was challenged by way of intra–Court Appeal, thesame ended in dismissal. Hence, this Civil Appeal.

3. We have heard Ms. Kiran Suri, learned Senior Counselappearing for the appellants and Sri S.R. Singh, learned Senior Counselappearing for the respondent.

4. It is contended by learned Senior Counsel for the appellantsthat Rule 161 of the Railway Protection Force Rules, 1987 (hereinafter,referred to as ‘RPF Rules’) empower the authorities to dispense withinquiry, where the competent Authority is of the view that it is notreasonably practicable to hold an inquiry. It is contended that havingregard to nature of allegations, as the delinquent employee has threatenedthe witnesses who were not willing to participate in the inquiry, theAuthorities have invoked Rule 161 and passed orders. It is furthersubmitted that even if the order of dismissal does not contain reasons, itis sufficient if the file discloses recording of reasons before passing theorder. Against the order allowing the writ petition, though the SpecialAppeal was filed before the Division Bench, the High Court has notconsidered various grounds raised by the appellants and erroneouslyconfirmed the order of the learned Single Judge. Lastly, it is contendedthat in any event, the High Court has committed error in ordering paymentof 50% of back-wages.

5. In support of the order of dismissal, learned Senior Counsel hasplaced reliance on the judgment of this Court in the Case of SahadeoSingh & Others v. Union Of India & Others[1]. Against grant of backwages, learned Senior Counsel appearing for the appellants has reliedon the judgment of this Court in the case of Tarsem Singh v. State OfPunjab & Others[2]. It is submitted that as the allegations made againstthe respondent, are serious, no back wages were to be granted in hisfavour. Reliance is placed on the judgment of this Court in the case ofDeepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya(D.Ed.) & Others[3]and also in the case of Commissioner of Police,Delhi & Others v. Jai Bhagwan[4]in support of her argument.1 2003 (9) SCC 752 2006 (13) SCC 5813 2013 (10) SCC 3244 2011 (6) SCC 376

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A6. On the other hand, Sri S.R. Singh, learned Senior Counselappearing for the respondent has drawn our attention to Rule 161 of theRPF Rules and submitted that no reasons are recorded for passing suchorder by invoking the said rule. It is submitted that the very rule requiresrecording of reasons, order passed without recording any reason cannotstand to legal scrutiny. Further, it is contended that the allegation againstBthe respondent that he conspired with the other Head Constable incommission of theft of Non-Judicial Stamp Papers, is vague and is noground at all, to dispense with the inquiry. It is submitted that conduct ofinquiry before any punishment, is a normal rule and Rule 161 of the RPFRules can be invoked only in exceptional cases, but not in a routineCmanner. It is submitted that when the Rule itself mandates recording ofreasons, the argument of the other side that it is sufficient if file containsreasons, is no ground to sustain the order. Learned Senior Counselappearing for the respondent has placed reliance on the judgment of thisCourt in the case of Jaswant Singh v. State of Punjab & Others[5]tosupport the view taken by the High Court.D7. We have heard learned Senior Counsel for the parties andperused the material on record.

8. The disciplinary proceeding against the respondent is governedby the RPF Rules, 1987. The regular inquiry against a member of Force,Eis governed by Rules 132, 148 and 153 of the RPF Rules. The respondentwas only a Head Constable at the relevant point of time. Allegationagainst him is that he conspired and colluded with another Head Constableby name Mr. Jai Veer Singh in commission of theft of Non-Judicial StampPapers. The alleged incident was on 17[th]/18[th] September 1998, and orderof dismissal was passed against the respondent on 22[nd] October, 1998Fby dispensing with inquiry by invoking Rule 161 of the RPF Rules. Rule161 of the RPF Rules itself indicates special procedure in certain cases.The relevant portion of Rule 161 of RPF Rules, reads as under:

“161. Special Procedure in certain cases:

GNotwithstanding anything contained anywhere in these rules-(i) where any punishment is imposed on an enrolled memberof the Force on the ground of conduct which has led to hisconviction on a criminal charge; or

(ii) where the authority competent to impose the punishmentis satisfied for reasons to be recorded by it in writing that it isnot reasonably practicable to hold an inquiry in the mannerprovided in these rules;

(iii) where the President is satisfied that in the interest ofsecurity of State and the maintenance of integrity in the Force,it is not expedient to hold any inquiry in the manner providedin these rules; the authority competent to impose the punishment may considerthe circumstances of the case and make such orders thereonas it deems fit.”

9. From a reading of the above said Rule, it is clear that to pass anorder as disciplinary measure, by adopting special procedure in certaincases, Rule 161 itself mandates recording of reasons. The normal rulefor conducting an inquiry is governed by Rules 132, 148 and 153 of theRPF Rules. If the Authorities invoke special procedure, unless they recordreasons, as contemplated in the Rule itself, no order could have beenpassed by invoking Rule 161. At no point of time, appellants have producedfile to show that any reasons are recorded in such file also. It is a settledlegal position that when Rules contemplate method and manner to adoptspecial procedure, it is mandatory on the part of the authorities to exercisesuch power by adhering to the Rule strictly. Dismissal of a regularmember of Force, is a drastic measure. Rule 161, which prescribesdispensing with an inquiry and to pass order against a member of Force,cannot be invoked in a routine and mechanical manner, unless there arecompelling and valid reasons. The dismissal order dated 22.10.1998 doesnot indicate any reason for dispensing with inquiry except stating thatthe respondent had colluded with the other Head Constable for theft ofNon Judicial Stamp Papers. By merely repeating the language of theRule in the order of dismissal, will not make the order valid one, unlessvalid and sufficient reasons are recorded to dispense with the inquiry.When the Rule mandates recording of reasons, the very order shoulddisclose the reasons for dispensing with the inquiry. The argument oflearned Senior Counsel for the appellants that if file contains reasons,same is sufficient to maintain the order, deserves rejection. When inquiryis not conducted, member of the Force is entitled to know the reasonsfor dispensing with inquiry before passing any order as a disciplinarymeasure. The respondent was only a Head Constable during the relevant A

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Apoint of time and he was not in powerful position, so as to say that hewould have influenced or threatened the witnesses, had the inquiry wasconducted. The very fact that they have conducted confidential inquiry,falsifies the stand of the appellants that it was not reasonably practicableto hold an inquiry. The words ‘not reasonably practicable’ as used in theRule, are to be understood in a manner that in a given situation, ordinaryBand prudent man should come to conclusion that in such circumstances,it is not practicable. In the present case, there appears no valid reason todispense with inquiry and to invoke Rule 161 of the Rules. We are inagreement with the view taken by the High Court. In the case of SahadeoSingh & Others v. Union of India & Others[1], this Court has held thatCin the facts and circumstances of the said case, it was not reasonablypracticable to hold a fair inquiry, as such, it was held to be justifiable onthe facts of the case. Whether it is practicable or not to hold an inquiry,is a matter to be considered with reference to the facts of each case andnature of charge, etc.D10. In the judgment in the case of Tarsem Singh v. State of Punjab& Others[2], this Court has categorically held that when the Authority isof the opinion that it is not reasonably practicable to hold inquiry, suchfinding shall be recorded on the subjective satisfaction by the authority,and same must be based on the objective criteria. In the aforesaid case,it is further held that reasons for dispensing with the inquiry must beEsupported by material.

11. With regard to plea of the appellants for grant of back wages,in the case of Tarsem Singh[2], this Court has held that payment ofback-wages would depend on result of the inquiry. In the present caseon hand, by the time, the order came to be passed by the learned SingleFJudge, the respondent had retired from service on attaining the age ofsuperannuation. In normal course, we would have permitted to holdinquiry, but keeping in mind that the respondent had retired from serviceeven before the judgment was rendered by the learned Single Judge, weare not inclined to do so at this stage. Though, it is alleged that theGrespondent had conspired with the main accused for commission of theftof Non-Judicial Stamp Papers nearly worth of Rs.1 Crore, but not evena police complaint was filed for reasons best known to the appellants.Opposing the award of back wages, learned Senior Counsel for theappellants has placed reliance on the judgment of this Court in the caseof Deepali Gundu Surwase[3]. [Grant of back wages depends on facts]H

and circumstances of each case. In the aforesaid case, while dealingwith grant of back-wages, this Court has held that in the case of wrongfultermination of service, reinstatement with continuity of service and back-wages is normal rule and the adjudicating authority to take intoconsideration the length of service of the employee, nature of misconduct,financial condition of the employer and similar other factors. Coming tothe case on hand, the respondent was not given any opportunity to defendhis case at all. It is clearly well settled that any amount of suspicioncannot be equated to proof. Keeping in mind ratio in the judgment of thisCourt in the case of Deepali Gundu Surwase[3], we are of the consideredopinion that grant of 50% of back-wages is just and fair in the facts andcircumstances of the case. The judgment relied on by the learned SeniorCounsel for the appellants would not, in any way, support their case.

12. On the other hand, in the case of M/s. Hindustan Tin WorksPvt. Limited v. The Employees of M/s. Hindustan Tin Works PrivateLimited & others[6], this Court has held that reinstatement with back-wages, fully or partially, is a matter of discretion of the Tribunal.

13. In the facts of the present case, we are of the view that theHigh Court has correctly granted 50% of the back wages to therespondent.

14. For the aforesaid reasons, we do not find any good ground tointerfere with the impugned order passed by the High Court. Accordingly,this Civil Appeal is dismissed, with no order as to costs.

Nidhi Jain

Appeal dismissed.

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