DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCE AND ORS. versus RAJENDRA KUMAR DUBEY on 25 November 2020

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 bydepartmental authority – Writ Petition – High Court reduced thepunishment of compulsory retirement to reversion in rank for a periodof 6 months – Directed reinstatement with 50% backwages – Appealto Supreme Court – Held: High Court was not justified in settingaside the order of compulsory retirement.

Constitution of India:

Arts. 226 and 227 – Scope under – To interfere withdisciplinary proceedings – Held: High court, in exercise of poweru/Arts. 226 and 227 should not venture into appreciation of evidence– While exercising jurisdiction u/Art. 226, High Court is not a Courtof appeal – Interference of High Court is limited to cases whereproceedings are inconsistant with principles of natural justice, orwhere findings are based on no evidence or in violation of statutoryrules or where authorities were actuated by some extraneousconsideration or where the conclusion on the face of it was arbitraryand capricious.

Allowing the appeal, the Court

HELD: 1.1 The High Court under Article 226 of theConstitution is not a court of appeal over the decision of theauthorities holding a departmental enquiry against a publicservant. It is not the function of the High Court under its writjurisdiction to review the evidence, and arrive at an independentfinding on the evidence. The High Court may, however interferewhere the departmental authority which has held the proceedings

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Aagainst the delinquent officer are inconsistent with the principlesof natural justice, where the findings are based on no evidence,which may reasonably support the conclusion that the delinquentofficer is guilty of the charge, or in violation of the statutory rulesprescribing the mode of enquiry, or the authorities were actuatedby some extraneous considerations and failed to reach a fairBdecision, or allowed themselves to be influenced by irrelevantconsiderations, or where the conclusion on the very face of it isso wholly arbitrary and capricious that no reasonable person couldever have arrived at that conclusion. If, however, the enquiry isproperly held, the departmental authority is the sole judge ofCfacts, and if there is some legal evidence on which the findingscan be based, the adequacy or reliability of that evidence is not amatter which can be permitted to be canvassed before the HighCourt in a writ petition. The High Court in exercise of its powerunder Articles 226 and 227 of the Constitution of India shall notventure into re-appreciation of the evidence. [Para 12.1][1199-DG-H; 1200-A-C; 1202-D]

State of Andhra Pradesh v. S. Sree Rama Rao AIR 1963 SC1723 : [1964] 3 SCR 25; State of Andhra Pradesh v. ChitraVenkata Rao (1975) 2 SCC 557 : [ 1976] 1 SCR 521; Unionof India v. G. Ganayutham (1997) 7 SCC 463 : [ 1997] 3ESuppl. SCR 549; Director General RPF v. Ch. Sai Babu(2003) 4 SCC 331 : [ 2003] 1 SCR 729; ChennaiMetropolitan 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;FState 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) 6SCC 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]G4 Suppl. SCR 693; Coimbatore District Central Co-op Bankv. 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 MetropolitanWater Supply and Sewerage Board v. T.T. Murali Babu (2014)H4 SCC 108 : [2014] 1 SCR 987 – relied on.

DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCEAND ORS. v. RAJENDRA KUMAR DUBEY

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1.2 In the present case, there is no allegation of malafidesagainst the disciplinary authority or lack of competence of thedisciplinary authority in passing the order of compulsoryretirement, or of a breach of the principles of natural justice, orthat the findings were based on no evidence. [Para 12.2][1203-D-E]

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1.3 The various allegations made against the respondentarise out of gross neglect of duty with respect to theft of railwayproperty. The findings of gross neglect of duty under charges1(b) and (c) have been concurrently upheld. The findings of theEnquiry Officer and the Disciplinary Authority are based onmaterials on record. The High Court was not justified in re-appraising the entire evidence threadbare as a court of firstappeal, and substituting the order of punishment, by a lesserpunishment, without justifiable reason. [Para 12.5][1205-D-E]

2. Section 11 of the Railway Protection Force Act, 1957provides that it shall be the duty of every superior officer andmember of the force to protect and safeguard railway propertyand passengers. A police officer in the Railway Protection Forceis required to maintain a high standard of integrity in the dischargeof his official functions. In the present case, the charges provedagainst the respondent “were of neglect of duty” which resultedin pecuniary loss to the Railways. The Respondent was a Sub-Inspector in the Railway Police discharging an office of trust andconfidence which required absolute integrity. The High Courtwas therefore not justified in setting aside the order of compulsoryretirement, and directing re-instatement with consequentialbenefits, and payment of backwages to the extent of 50%. [Para12.6][1205-F-H; 1206-A]

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Case Law Reference

[1964] 3 SCR 25[1976] 1 SCR 521[1997] 3 Suppl. SCR 549 [2003] 1 SCR 729

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From the Judgment and Order dated 03.07.2017 of the High CourtDof Judicature at Bombay, Nagpur Bench, Nagpur in W.P. No. 941 of2009.

A.K. Srivastava, Sr. Adv., Ms. Rashmi Malhotra, Antariksh Singh,Raj Bahadur Yadav, Mrs. Anil Katiyar, Vikas Upadhyay, Advs. for theappearing parties.EThe Judgment of the Court was delivered by INDU MALHOTRA, J.

Leave granted.

1. The issue which has arisen for our consideration is the validityFof the Judgment passed by the High Court in exercise of its writjurisdiction to set aside the order of compulsory retirement passed bythe statutory authorities against the respondent, and substituting it by anorder of re-instatement with all consequential benefits, and 50%backwages.

G2. The Respondent was appointed in 1984 as a Constable withthe Railway Protection Force (R.P.F) in Jhansi. On 28.02.2006, he wasposted as SIPF (Adhoc) Sub-Inspector at the Pulgaon Railway Station,Maharashtra (Outpost).

3. On 11.12.2006, the Respondent was placed under suspensionHwith immediate effect pending enquiry. On 04.01.2007, a charge sheetwas issued for major penalty under Rule 153 of the Railway Protection

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 preventand 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. 678/13-15between Railway Station Makhed-Timtala reported on 21.11.2006and to submit the FIR and case diary related to the said case tooffice of Sr. DSC/RPF/Nagpur.

(c) The theft of one Coach Trolley of Lot No. 14-04-06-02-2281kept at Km. No.672/32 between Railway Stations Timtala-Malkhed reported on 05.12.2006

(2) “ABUSE OF AUTHORITY” in that you used unnecessaryViolence toward a passenger named Shaikh Ibrahim at the waitingroom of Pulgaon Railway Station on 31.10.2006.”

4. The Enquiry Officer (E.O) vide his Report dated 22.06.2007exonerated 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 SeniorDivisional Security Commissioner, R.P.F. Nagpur, accepted the findingsof the E.O. In view of the gravity of the charges of gross neglect of dutyand abuse of authority, the Disciplinary Authority imposed the punishmentof 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, upholdingthe findings with respect to charges 1(b) and 1(c). Charge 1(b) pertainedto the theft of 19 CST-9 plates; on verification, it was found that theshortage was of 6 pairs of CST-9 plates. Charge 1(c) was a specialreport case pertaining to the theft of 1 coach trolley valued at Rs. 28,000and was found to have been proved. However, the appellate authorityheld that these charges did not warrant the extreme punishment ofremoval from service as there was no imputation of connivance or corruptpractice against the Respondent.

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AWith respect to charge No. 2, it was held that the said charge wasnot proved, since no witness in support of this charge had been examined.The E.O had relied upon the complaint registered by a passenger-ShaikhIbrahim in the complaint book of the Pulgaon Railway Station, whichwas found to have been proved by the E.O., without holding a preliminaryenquiry, or examining the complainant. The other evidence in support ofBthis charge was a report submitted by the Inspector, R.P.F Wardha aboutthe complaint lodged at the Pulgaon Railway Station of the incident. Asper confidential information received, it was informed that the Respondentwas beating people and collecting money at the Pulgaon Railway Station,which led to discontentment amongst the people, and led to a dharnaCand agitation for transfer of the Respondent from the Pulgaon RailwayStation. The Appellate Authority held that the said report had noevidentiary value in support of the charge. Consequently, charge 2 washeld not to be proved.

The Appellate Authority vide Order dated 05.09.2007 reducedDthe punishment of removal from service to that of reversion in rank fora period of 6 months without future effect.

7. Review of DAR proceedings was sought by the Senior DivisionalSecurity Commissioner/NGP vide letter dated 10.09.2007 addressed tothe Chief Security Commissioner under Rule 219.4, since certain lacunaeEwere pointed out in the order of the Appellate Authority. It was submittedthat the image of R.P.F would deteriorate if the service of the Respondentwas continued. It had also come to light that the delinquent employeewhile under suspension, had been arrested by the C.B.I, Nagpur in anAnti-Corruption case.F8. The Chief Security Commissioner/CR issued a show causenotice to the Respondent dated 23.10.2007 under Rule 219.4 of theRailway Protection Force Rules, 1987 proposing to impose the penaltyof compulsory retirement from service.

After considering his reply, the Authority vide Order datedG05.12.2007 held that the charges levelled against the employee werevery serious in nature and had been proved beyond doubt, which weredamaging 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 directedto be imposed. It was further noted that the delinquent employee hadbeen arrested by the CBI, Nagpur in a trap case, under Section 7 and 13H

(1) (d) of the Prevention of Corruption Act, 1988 for a major penalty ofdemanding illegal gratification. This had occurred while the respondenthad been placed under suspension. Accordingly, the punishment ofcompulsory retirement from service with immediate effect was imposed.

It was concluded that the E.O. had conducted the DepartmentalEnquiry as per extant DAR Rules, after giving a reasonable opportunityto the delinquent employee to defend himself. There were no lapses orirregularities 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 dated19/21.05.2008 rejected the appeal since no fresh material had beenbrought on record which would merit interference. The enquiry wasfound to be conducted in accordance with the procedure prescribed bythe rules, wherein an adequate and reasonable opportunity had beengranted to the employee to defend himself. The Director General affirmedthe view of the appellate authority to enhance the punishment inaccordance with the R.P.F Rules. The punishment was held to becommensurate with the gravity of the misconduct committed by theRespondent.

10. The Respondent filed Writ Petition No. 941 of 2009 beforethe High Court Judicature at Bombay, Nagpur Bench to quash and setaside the Orders dated 12.07.2007 and 05.12.2007of compulsoryretirement from service.

The High Court vide the impugned Judgment and Order dated03.07.2017 partly allowed the Writ Petition. The High Court observedthat the findings with respect to charge 1 (b) pertained to the theft of 19CST-9 Plates between Malkhed and Timtala Railway Stations. The theftwas reported to the writ petitioner on 21.11.2006, who was in-charge ofthe R.P.F Chowki, Pulgaon. The delinquent employee attended the spoton 25.11.2006, and drew a Panchnama with a site map, recording that 9bars of CST-9 plates costing Rs. 20,520 were found to be short. TheF.I.R was prepared in the prescribed format. The allegation against thewrit petitioner was that he failed to sign the F.I.R., and proceeded onleave without sanction from 03.12.2006 to 14.12.2006.

The High Court noted that the charge against the writ petitionerwas that he did not submit the F.I.R. and the case diary to the office of

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Athe Senior Divisional Security Commissioner, Nagpur. The F.I.R. andthe 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 onB26.11.2006.

The High Court held that the writ petitioner could not be heldguilty for not having detected the theft occurred on 21.11.2006, since thetheft was detected by Nirmal Toppo on 26.11.2006. In the view of theHigh Court, the writ petitioner could not be held duty bound to report theCtheft to the Head Office at Nagpur, since he was incharge of PoliceChowki, Pulgaon under R.P.F Thana, Wardha.

The High Court held that the order of the Senior Divisional SecurityCommissioner dated 05.09.2007 wherein it had been observed that suchthefts are found to be common, and in the absence of any pecuniary lossDbeing caused, would not warrant the extreme punishment of removalfrom service was the correct view, particularly since there was noimputation of connivance or corrupt practice. This according to the HighCourt had not been considered by the Chief Security Commissioner andthe Director General of the Railway Protection Force.

EThe High Court observed that the arrest of the writ petitioner bythe C.B.I., Nagpur in a major Charge Sheet, was an irrelevantconsideration since it was a separate case, and no charge had beenframed on this issue in the present case.

With respect to charge No.1(c) regarding the theft of 1 coachFtrolley valued at Rs.28,000 kept at Km 672/32 between Railway StationTimtala and Malkhed, the High Court held that the theft of the trolleywas detected by another officer, hence the allegation of delay by theRespondent herein of not reporting the case loses its significance. Inparagraph 25 of the Judgment, it was held that the finding recorded bythe Senior Divisional Security Commissioner could not have been disturbed.G

With respect to charge 2, the High Court held that the materialwitness 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 saidcharge was unproved.H

The High Court quashed the Order dated 12.07.2007 passed bythe Senior Divisional Security Commissioner, as also the Order dated18.02.2007 passed by the Chief Security Commissioner, orderingcompulsory retirement, and the Order dated 19/21.05.2008 passed bythe Director General Railway Protection Force confirming the said Order.The High Court restored the Order of the first appellate authority dated05.09.2007 by the Senior Divisional Security Commissioner, RailwayProtection Force. It was directed that the writ petitioner be re-instatedin service, and would be entitled to all consequential benefits, includingbackwages to the extent of 50% on the remitted post, without futureeffect.

11. The Department has filed the present Civil Appeal to challengethe judgment of the High Court setting aside the Order of compulsoryretirement, and directing the Railways Department to re-instate theRespondent with consequential benefits, and payment of 50% backwages.

This Court vide Order dated 17.11.2017 issued notice, and directedstay 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 therecord, and written submissions filed on their behalf.

12.1 We will first discuss the scope of interference by the HighCourt in exercise of its writ jurisdiction with respect to disciplinaryproceedings. It is well settled that the High Court must not act as anappellate authority, and re-appreciate the evidence led before the enquiryofficer.

We will advert to some of the decisions of this Court with respectto interference by the High Courts with findings in a departmental enquiryagainst a public servant.

In State of Andhra Pradesh v S.Sree Rama Rao,[1] a three judgebench ofthis Court held that the High Court under Article 226 of theConstitution is not a court of appeal over the decision of the authoritiesholding a departmental enquiry against a public servant. It is not thefunction of the High Court under its writ jurisdiction to review theevidence, and arrive at an independent finding on the evidence. TheHigh Court may, however interfere where the departmental authority A

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Awhich has held the proceedings against the delinquent officer areinconsistent with the principles of natural justice, where the findings arebased on no evidence, which may reasonably support the conclusionthat the delinquent officer is guilty of the charge, or in violation of thestatutory rules prescribing the mode of enquiry, or the authorities wereactuated by some extraneous considerations and failed to reach a fairBdecision, or allowed themselves to be influenced by irrelevantconsiderations, or where the conclusion on the very face of it is so whollyarbitrary and capricious that no reasonable person could ever have arrivedat that conclusion. If however the enquiry is properly held, thedepartmental authority is the sole judge of facts, and if there is someClegal evidence on which the findings can be based, the adequacy orreliability of that evidence is not a matter which can be permitted to becanvassed before the High Court in a writ petition.

These principles were further reiterated in the State of AndhraPradesh v Chitra Venkata Rao.[2]The jurisdiction to issue a writ ofDcertiorari under Article 226 is a supervisory jurisdiction. The courtexercises the power not as an appellate court. The findings of fact reachedby an inferior court or tribunal on the appreciation of evidence, are notre-opened or questioned in writ proceedings. An error of law which isapparent 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 itEis shown that in recording the finding of fact, the tribunal has erroneouslyrefused to admit admissible and material evidence, or had erroneouslyadmitted inadmissible evidence. A finding of fact recorded by the tribunalcannot be challenged on the ground that the material evidence adducedbefore the tribunal is insufficient or inadequate to sustain a finding. TheFadequacy or sufficiency of evidence led on a point, and the inference offact to be drawn from the said finding are within the exclusive jurisdictionof the tribunal.

In subsequent decisions of this Court, including Union of Indiav. G. Ganayutham[3], Director General RPF v. Ch. Sai Babu[4], Chennai Metropolitan Water Supply and Sewerage Board v T.T. Murali,[5]GUnion of India v. Manab Kumar Guha,[6]these principles have beenconsistently followed.

2 (1975) 2 SCC 557.3 (1997) 7 SCC 4634 (2003) 4 SCC 331H5 6 (2014) 4 SCC 108(2011) 11 SCC 535

In a recent judgment delivered by this Court in the State ofRajasthan & Ors. v. Heem Singh[7] this Court has summed up the lawin following words :

“33.In exercising judicial review in disciplinary matters, thereare two ends of the spectrum. The first embodies a rule ofrestraint. 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 amisconduct has been committed lies primarily within thedomain of the disciplinary authority. The judge does notassume the mantle of the disciplinary authority. Nor does thejudge wear the hat of an employer. Deference to a finding offact by the disciplinary authority is a recognition of the ideathat it is the employer who is responsible for the efficientconduct of their service. Disciplinary enquiries have to abideby the rules of natural justice. But they are not governed bystrict rules of evidence which apply to judicial proceedings.The standard of proof is hence not the strict standard whichgoverns a criminal trial, of proof beyond reasonable doubt,but a civil standard governed by a preponderance ofprobabilities. Within the rule of preponderance, there arevarying approaches based on context and subject. The firstend of the spectrum is founded on deference and autonomy –deference to the position of the disciplinary authority as afact finding authority and autonomy of the employer inmaintaining discipline and efficiency of the service. At theother end of the spectrum is the principle that the court hasthe jurisdiction to interfere when the findings in the enquiryare based on no evidence or when they suffer from perversity.A failure to consider vital evidence is an incident of what thelaw regards as a perverse determination of fact.Proportionality is an entrenched feature of our jurisprudence.Service jurisprudence has recognized it for long years inallowing for the authority of the court to interfere when thefinding or the penalty are disproportionate to the weight ofthe 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 comprisingof Justice D.Y Chandrachud and Justice Indira Banarjee.

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Aa steady sail between the banks of these two shores whichhave been termed as the two ends of the spectrum. Judges donot rest with a mere recitation of the hands-off mantra whenthey exercise judicial review. To determine whether the findingin a disciplinary enquiry is based on some evidence an initialor threshold level of scrutiny is undertaken. That is to satisfyBthe conscience of the court that there is some evidence tosupport the charge of misconduct and to guard againstperversity. But this does not allow the court to re-appreciateevidentiary findings in a disciplinary enquiry or to substitutea view which appears to the judge to be more appropriate. ToCdo so would offend the first principle which has been outlinedabove. The ultimate guide is the exercise of robust commonsense without which the judges’ craft is in vain.”

In Union of India v. P. Gunasekaran,[8]this Court held that theHigh Court in exercise of its power under Articles 226 and 227 of theDConstitution of India shall not venture into re-appreciation of the evidence.The High Court would determine whether : (a) the enquiry is held by thecompetent authority; (b) the enquiry is held according to the procedureprescribed in that behalf; (c) there is violation of the principles of naturaljustice in conducting the proceedings; (d) the authorities have disabledthemselves from reaching a fair conclusion by some considerations whichEare extraneous to the evidence and merits of the case; (e) the authoritieshave allowed themselves to be influenced by irrelevant or extraneousconsiderations; (f) the conclusion, on the very face of it, is so whollyarbitrary and capricious that no reasonable person could ever have arrivedat such conclusion; (g) the disciplinary authority had erroneously failed Fto admit the admissible and material evidence; (h) the disciplinaryauthority had erroneously admitted inadmissible evidence whichinfluenced the finding; (i) the finding of fact is based on no evidence.

In paragraph 13 of the judgment, the Court held that :

G8 (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) 4SCC 108.H

DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCE1203AND ORS. v. RAJENDRA KUMAR DUBEY [INDU MALHOTRA, J.]“13.Under Articles 226 / 227 of the Constitution of India, theAHigh 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; B

(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 whichfindings can be based; C

(vi) correct the error of fact however grave it may appear tobe;

(vii) go into the proportionality of punishment unless it shocksits conscience.”

12.2 In the present case, there is no allegation of malafides againstthe disciplinary authority i.e. Chief Security Commissioner, or lack ofcompetence of the disciplinary authority in passing the order of compulsoryretirement, or of a breach of the principles of natural justice, or that thefindings were based on no evidence.

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12.3 We find from the record of this case that the Charges under1 (b) and 1 (c) have been concurrently found to have been proved by theDisciplinary Authority, Appellate Authority - the Chief SecurityCommissioner, R.P.F. and the Director General of the R.P.F. RailwayBoard.

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The issue under charge 1(b) was the non-registration of an F.I.Rpertaining to a theft case of CST-9 plates of the Railways. The findingwas that even though the Respondent had prepared the F.I.R. afterconducting investigation, he did not sign the F.I.R., and thereafterproceeded on leave without sanction. As a consequence, the F.I.R. wasnot 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 thenregistered the F.I.R.

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It is relevant to note that the High Court has not disturbed thefinding with respect to charge 1(b).

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A12.4 With respect to charge 1(c), this charge was a case of aSpecial Report, which are covered by Rule 229 of the Railway ProtectionRules which reads as under:

“229. Special Reports. - In cases of theft at the post involvingloss of booked consignment or railway material exceedingBthe value fixed by the Director General from time to time, theDivisional Security Commissioner shall submit special reportto the Director General with copy to the Chief SecurityCommissioner and to the concerned officer as may be specifiedthrough the Directives.”

CCharge 1 (c) pertained to the theft of one coach trolley of theRailways 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 toavoid being present at the time of handing over the trolley on 04.12.2006.

This charge was found to have been proved by the DisciplinaryDAuthority, the Appellate Authority, and the Director General of Police-R.P.F. Railway Board.

With respect to this charge, the High Court has given acontradictory finding. In para 24 of the Judgment, the Court held that thetheft of the trolley was detected by another officer prior to the writEpetitioner proceeding on leave. Hence, the question of delay in reportingthe theft by the writ petitioner was held to have lost its significance. Inpara 25, the High Court however took a contrary view by holding that itconcurred with the view taken by the Senior Divisional SecurityCommissioner in the Order dated 05.09.2007, wherein the charge washeld to be proved. The High Court concluded by holding that the chargeFwas not so serious so as to warrant the extreme punishment of removalfrom service, as there was no imputation of connivance or corruptpractices.

In our view, the aforesaid findings are erroneous, since theRespondent has not been awarded the punishment of removal fromGservice, but compulsory retirement from service vide Order dated05.12.2007.

12.5 It is further relevant to note that charges 1(b) and 1(c) fallunder Rule 146.2 of the Railway Protection Force Rules, 1987 whichprovide:

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“146.2 Neglect of duty:

No member of the Force without good and sufficient causeshall -

i) neglect or omit to attend to or fail to carry out with due promptitude and diligence anything which is his duty as amember of the Force to attend to or carry out;or

ii) fail to work his beat in accordance with orders or leavethe place of duty to which he has been ordered or having lefthis place of duty for a bonafide purpose fail to return theretowithout 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 truereturn of any money or property received by him in the courseof his duty.”

The various allegations made against the Respondent arise out ofgross neglect of duty with respect to theft of railway property. The findingsof gross neglect of duty under charges 1(b) and (c) have been concurrentlyupheld. The findings of the E.O. and the Disciplinary Authority are basedon materials on record. The High Court was not justified in re-appraisingthe entire evidence threadbare as a court of first appeal, and substitutingthe Order of punishment, by a lesser punishment, without justifiablereason.

12.6 Section 11 of the Railway Protection Force Act, 1957provides that it shall be the duty of every superior officer and member ofthe force to protect and safeguard railway property and passengers.The primary object of constituting the Railway Protection Force is tosecure better “protection and security of the railway property.” Therestricted power of arrest and search conferred on members of thisForce is incidental to the efficient discharge of their primary duty toprotect and safeguard railway property, and to uphold the law.

A police officer in the Railway Protection Force is required tomaintain a high standard of integrity in the discharge of his officialfunctions. In this case, the charges proved against the Respondent “wereof neglect of duty” which resulted in pecuniary loss to the Railways.The Respondent was a Sub-Inspector in the Railway Police dischargingan office of trust and confidence which required absolute integrity. The

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AHigh Court was therefore not justified in setting aside the order ofcompulsory retirement, and directing re-instatement with consequentialbenefits, and payment of backwages to the extent of 50%.

12.7 With respect to the registration of a criminal case by theC.B.I Nagpur, the High Court held that it was an irrelevant considerationBtaken note of by the Senior Divisional Security Commissioner.

On this issue, we were informed during the course of hearing thatthe Respondent had been convicted by the Special Judge, Wardha videJudgment and Order dated 02.08.2017 for offences punishable underSections 7 and 13(2) read with 13(1)(d) of the Prevention of CorruptionCAct, 1988 and sentenced to undergo R.I for one year with Fine.

The Counsel for the Respondent informed the Court, that an Appealhas been filed against the said judgment, which is pending consideration.

We have therefore considered it appropriate not to advert to thefindings in the C.B.I case, lest it prejudices the case of the RespondentDwhich is pending in Appeal against the order of conviction.

We have decided the issue of the validity of the order ofcompulsory retirement on the basis of the material in the enquiryproceedings, and the orders passed by the statutory authorities in thisregard.

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12.8 The Respondent was compulsorily retired pursuant to theOrder dated 05.12.2007 passed by the Chief Security Commissioner.The order of compulsory retirement took effect on 05.12.2007. TheRespondent is being paid pension after he has been compulsorily retired.

The direction of the High Court for payment of backwages wasFconsequent upon the re-instatement of the Respondent-employee. Sincewe are upholding the order of compulsory retirement dated 05.12.2007passed by the Chief Security Commissioner, there is no question of grantingbackwages. In any case the Respondent is being paid pension after hiscompulsory retirement.G

13. We order and direct that:

(a) The appeal is allowed, and the Judgment of the High Court isset aside for the reasons mentioned hereinabove, and the Order ofcompulsory retirement passed on 05.12.2007 by the Chief SecurityCommissioner, as affirmed by the Director General, R.P.F. vide OrderHdated 19/21.05.2008 is restored.

DIRECTOR GENERAL OF POLICE, RAILWAY PROTECTION FORCE1207AND ORS. v. RAJENDRA KUMAR DUBEY [INDU MALHOTRA, J.]

(b) The Respondent has stated in his written submissions that theGratuity which was payable to him, has not been released by theDepartment so far.

A

We direct the Appellant-Department to release Gratuity, if dueand payable to the Respondent from 05.12.2007, within a period of sixweeks from today, alongwith interest as provided by Section 7(3A) ofBthe Payment of Gratuity Act, 1972 read with the applicable OfficeMemorandum / Notification issued by the Government of India.

The Appeal is accordingly allowed in the above terms, with noorder as to costs.

C

Pending applications, if any are disposed of accordingly.

Kalpana K. Tripathy

Appeal allowed.

D

E

F

G

H