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Vithal Mahadeo Kumbhar Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Petition No. 252 of 1962
Judge
Reported in1966MhLJ725
ActsRailway Protection Force Rules, 1959 - Rules 40, 41, 44 and 58; Constitution of India - Articles 226 and 311; Indian Penal Code (IPC), 1860 - Sections 114 and 381
AppellantVithal Mahadeo Kumbhar
RespondentUnion of India
Excerpt:
.....- rule 40 of railway protection force rules, 1959 - petitioner challenged validity of order of dismissal and order of suspension with effect from earlier order of dismissal - earlier order of dismissal was rendered void by subsequent decision of court - disciplinary authority decided to hold further inquiry against member concerned resulting in dismissal - member shall be deemed to have been placed under suspension from date of original order according to rule 40 (4) and shall continue to remain under suspension until further orders - held, impugned order of suspension with retrospective effect was not contrary to law. - - he was then served with a chargesheet which contained the charge that, while he was on duty, he had failed to detect and to prevent the theft of scrap..........set aside and he was acquitted in an appeal preferred by him in the high court. consequently, the security officer passed an order on 13 january, 1961, by which he cancelled the order of dismissal and directed that the petitioner be treated as being under suspension from 16 august, 1960, i.e., from the date of his dismissal under the cancelled order. he was then served with a chargesheet which contained the charge that, while he was on duty, he had failed to detect and to prevent the theft of scrap materials which were lying in his charge. a departmental inquiry against him was conducted by the assistant security officer. the latter examined several witnesses and submitted his report to the security officer in the course of which he held that the charge against the petitioner was duly.....
Judgment:

1. The petitioner, who was formerly a member of the Railway Protection Force, has filed this petition under Art. 226 of the Constitution to challenge the validity of an order passed on 21 December, 1961, dismissing him from the Force, and also of an earlier order dated 13 January, 1961, by which he was suspended from service with retrospective effect.

2. At the material time the petitioner was employed as a rakshak in the Central Railways. During the night between 19 and 20 August, 1959, there was a theft of some scrap materials valued at Rs. 415 and the petitioner was one of the persons arrested in connexion with that theft. He was placed under suspension by an order dated 20 August, 1959. He was tried and convicted by a Presidency Magistrate of an offence under S. 381 read with S. 114 of the Indian Penal Code. Following his conviction he was dismissed from service with effect from 16 August, 1960, by an order dated 9 August, 1960. Later, however, his conviction was set aside and he was acquitted in an appeal preferred by him in the High Court. Consequently, the security officer passed an order on 13 January, 1961, by which he cancelled the order of dismissal and directed that the petitioner be treated as being under suspension from 16 August, 1960, i.e., from the date of his dismissal under the cancelled order. He was then served with a chargesheet which contained the charge that, while he was on duty, he had failed to detect and to prevent the theft of scrap materials which were lying in his charge. A departmental inquiry against him was conducted by the assistant security officer. The latter examined several witnesses and submitted his report to the security officer in the course of which he held that the charge against the petitioner was duly established. The security officer called upon the petitioner to show cause why he should not be dismissed from service, and after receiving the petitioner's reply, passed an order dismissing the petitioner from service on 21 December, 1961. An appeal filed by the petitioner to the chief security officer was dismissed, and the order of dismissal was confirmed.

3. Most of the grounds taken in the petition against the order of dismissal relate to the appreciation of the evidence which was recorded by the assistant security officer. The merits of those grounds cannot be considered in this petition. Sri Gurusahani, who appeared for the petitioner, challenged the order of dismissal on a few grounds on which its validity could be questioned.

4. Sri Gurusahani tried to point out, in the first place, that the chargesheet, which was framed against the petitioner by the security officer, not only contained the charge of negligence of duty as mentioned above, but it also called upon the petitioner to show cause why the penalty of dismissal, or any of the other penalties enumerated in rule 41 of the Railway Protection Force Rules, 1959, should not be imposed upon him. According to Sri Gurusahani, the inclusion of such a show-cause notice in the charge-sheet on which a departmental inquiry took place was contrary to Art. 311 of the Constitution and vitiated the subsequent order of dismissal passed against the petitioner.

5. Sri Gurusahani sought to rely on the decision of a single Judge of the Madras High Court in Manickam v. Superintendent of Police, Nilgiris, and others : (1963)IILLJ62Mad . In the very short judgment which was given in that case, the learned Judge referred to the portion in the chargesheet which called upon the petitioner in that case to show cause why he

'should not be dismissed from the force or otherwise punished for the gross indisciplinary conduct,'

and went on to say at p. 63 :

'. . . At the stage of the charge, no question of punishment can arise. The fact that the proposed punishment is mentioned in the charge can only show that even before the charges were enquired into and a finding arrived at on the basis of the enquiry, the petitioner had been prejudged. On this short ground . . . the order of dismissal is quashed.'

6. Now, it has never been the case of the present petitioner that the aforesaid paragraph contained in the chargesheet framed against him showed that he had been prejudged, or that the security officer who had framed the charge-sheet, and the assistant security officer who had conducted the departmental inquiry, were prejudiced against him. No objection to the said paragraph in the charge-sheet was taken during the departmental inquiry or in the reply to the subsequent show-cause notice which was sent to him by the security officer after receiving the report of the inquiry from the assistant security officer, or in the memorandum of appeal which was submitted by the petitioner to the chief security officer against the order of his dismissal. In fact such an objection has not been taken even in the present petition. Whether the petitioner was prejudged and whether the assistant security officer or the security officer were prejudiced against him are questions of fact, and, in my view, they cannot be allowed to be agitated by the petitioner for the first time in the course of arguments. I, accordingly, disallowed the above contention which was sought to be advanced by Sri Gurusahani on the basis of the aforesaid Madras decision.

7. Even if I had allowed Sri Gurusahani to advance the above argument, I would not have found it possible to accept it. I cannot agree that an order of dismissal passed against a Government servant is necessarily vitiated, if the charge-sheet which was sent to him prior to the departmental inquiry contained a clause calling upon him to show cause why any one of the prescribed punishments should not be awarded to him. The aforesaid Madras case is perhaps distinguishable on the ground that the relevant clause in the chargesheet in that case had described the alleged conduct of the delinquent as 'gross indisciplinary conduct.' If the learned Judge who decided that case intended to lay down as a general proposition that a charge which incidentally called upon the delinquent to show cause why he should not be punished for the alleged delinquency was necessarily violative of Art. 311 of the Constitution, I must, with great respect, differ from that view.

8. It was next urged by Sri Gurusahani that the departmental inquiry conducted against the petitioner, and the subsequent proceedings resulting in his dismissal and the confirmation of his dismissal in appeal, were vitiated by breaches of certain provisions contained in the Railway Protection Force Rules, 1959. Clause (5) of rule 44 provides that the inquiring authority may permit a member against whom an inquiry is to be held to present his case with the assistance of any other member approved by the inquiring authority. In the present case the petitioner had expressed his desire that one Amarnath Sharma should be allowed to assist him in cross-examining witnesses. When the inquiry against the petitioner commenced, Amarnath Sharma was not present, and it is the grievance of the petitioner that he was not informed why Amarnath Sharma was absent, and was given no further time to appoint some other person as his defence counsel. An affidavit-in-reply to the petition has been filed by the assistant security officer who conducted the inquiry, and he has stated in the affidavit that Amarnath Sharma had been informed of the petitioner's request for assistance, that Amarnath Sharma replied a day prior to the date fixed for the inquiry that he was not interested in defending the petitioner, that the contents of this letter were explained to the petitioner at the commencement of the inquiry, and that the petitioner did not express any desire to appoint any other defence counsel, nor asked for any adjournment of the case, but that, on the contrary, the petitioner was ready to proceed with the inquiry, and in fact cross-examined the witnesses who were examined by the department. Some of these averments were denied by the petitioner in his affidavit-in-rejoinder. The statements of the assistant security officer appear to be supported by the record, and, in any case, I cannot accept the above contention of the petitioner as it involves contested questions of fact.

9. Sri Gurusahani then referred to Cls. (9) and (11) of rule 44 of the Railway Protection Force Rules, 1959. These clauses require that the disciplinary authority, if he is not the inquiring authority, shall consider the record of the inquiry, shall record his findings on each charge, and communicate them to the delinquent. In the present case the disciplinary authority was the security officer, whereas the inquiring authority was the assistant security officer. I have, however, no reason to hold that Cls. (9) and (11) of rule 44 were not complied with by the security officer. In the letter dated 28 September, 1961 (Ex. 1 to the petition), which the security officer had sent to the petitioner, the security officer's finding on the single charge which had been framed against the petitioner has been recorded and communicated to the petitioner.

10. Sri Gurusahani also referred to rule 58 which requires the appellate authority (the chief security officer in the present case) to consider whether the procedure prescribed by the rules was complied with, whether the findings were justified, and whether the penalty imposed was excessive, adequate or inadequate. I have no reason to suppose that the appellate authority in the present case did not comply with the requirements of this rule. Sri Gurusahani argued that the appellate authority ought to have given an oral hearing to the petitioner and should have given more exhaustive reasons than he has done in rejecting the petitioner's appeal. I do not think that it was incumbent on the chief security officer, as the appellate authority in the present case, to either give as oral hearing to the petitioner or to give more detailed reasons than he has done in rejecting the petitioner's appeal.

11. Besides the order of dismissal the petitioner has also challenged the order passed by the security officer on 13 January, 1961, that the petitioner be regarded as being under suspension with effect from 16 August, 1960. It will be recalled that, after the petitioner's conviction by the Presidency Magistrate, the petitioner was dismissed with effect from 16 August, 1960, and that, after his acquittal by the High Court, the above order dated 13 January, 1961, was passed by which the previous order of dismissal was set aside and it was directed that the petitioner be treated as being under suspension with effect from the date on which he was dismissed, i.e., from 16 August, 1960, his previous suspension merged in the order of dismissal, and that the security officer had no authority, when he made his order dated 13 January, 1961, setting aside the order of dismissal, to direct that the petitioner shall be treated as under suspension with retrospective effect as from 16 August, 1960. Sri Gurusahani relied on the decision of the Supreme Court in Om Prakash Gupta v. State of Uttar Pradesh : (1956)ILLJ1SC where it was held that there a Government servant is suspended pending an inquiry and later dismissed by way of penalty as a result of the inquiry, the order of suspension lapses, and a subsequent declaration by a Court that the order of dismissal was illegal does not revive the order of suspension. Sri Gurusahani argued that the suspension of the petitioner prior to 16 August, 1960, having lapsed when the order of dismissal was passed, the subsequent order setting aside the dismissal cannot revive the order of suspension.

12. I agree that that would have been the result in the absence of any rule to the contrary. However, Clause (4) of rule 40 of the Railway Protection Force Rules, 1959, specifically provides that where a penalty of dismissal is rendered void by a subsequent decision of a Court of law, and where the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against the member concerned, the member shall be deemed to have been placed under suspension 'from the date of the original order of dismissal' and shall continue to remain under suspension until further orders. Thus, the impugned order of the security officer of 13 January, 1961, was in effect a reproduction of the relevant portion of Clause (4) of rule 40, and was not contrary to law.

13. In the result, the petition fails and is dismissed with costs.


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