M.P. Thakkar, C.J.
1. A departmental proceeding was initiated against the appellant, original petitioner, in connection with a charge levelled against him to the effect that he had remained absent from duty for about a month without obtaining leave. The charge-sheet was served on him on May 28, 1977. By an order dated February 3, 1978 the disciplinary authority exonerated him from the charge. On June 29, 1978, that is to say about sixteen months after he was exonerated, the Security Officer exercised suo motu revisional powers under Rule 60 of the Railway Protection Force Rules, 1959 and issued a show cause notice calling upon the original petitioner to show cause as to why the order exonerating him should not be set aside and an order imposing penalty of dismissal from service should not be passed against him. The original petitioner rendered his explanation in response to the show cause notice. After taking into account the explanation so offered by him, the Security Officer passed an order on September 19, 1978 reducing him by two stages in the pay-scale. After about nine months thereafter, on June 29, 1979 another show cause notice under Rule 60 was issued. This time it was issued by the Deputy Chief Security Officer. By this notice the original petitioner was called upon to show cause as to why the punishment imposed on him (reduction by two stages in the pay-scale as per the order passed in exercise of revisional powers by the Security Officer on September 19, 1978) should not be varied and why he should not be dismissed from service. On August 12, 1979 the original petitioner submitted his explanation in response to the show cause notice. Thereafter on September 22, 1979, the Deputy Chief Security Officer of the Western Railway passed the impugned order removing him from service with immediate effect. Thereupon the petitioner instituted a civil suit. As the Civil Court vacated the interim order, the original petitioner perferred an appeal to the District Court. The District Court confirmed the order passed by the trial Court vacating the interim order. Thereupon the appellant approached this Court by way of Special Civil Application No. 3694 of 1981 which has given rise to the present appeal under Clause 15 of the Letters Patent.
2. In the petition instituted by the appellant, Special Civil Application No. 3694 of 1481. the petitioner challenged the order passed by the trial Court as confirmed by the Appellate Court vacating the interim stay, invoking powers of the High Court under Article 227. He also challenged the order passed by the Security Officer imposing the penalty of reduction by two stages in the pay-scale and also prayed for the relief that the order which had been passed by the Deputy Chief Security Officer in exercise of revisional powers on November 22,1979 was without jurisdiction and it should not be given effect to. Thereby the appellant invoked the jurisdiction of the Court under Articles 226 of the Constitution of India. Thus, it was a petition under Articles 226 and 227 of the Constitution of India. Under Article 226 he challenged the legality and validity of the order of penalty imposed by the Security Officer in exercise of revisional powers by reducing him by two stages. He also challenged the validity of the impugned order passed by the Deputy Chief Security Officer on November 22, 1979, in the course of the exercise of revisional powers for the second time by the said Official whereby he was removed from service. It may be stated that according to the petitioner, though the order had been passed it had not been served upon him and he, therefore, also claimed a relief directing the Officer concerned not to serve the order on him and/or not to give effect to the said order. Thus, he invoked powers under Article 226 of the Constitution of India.
3. The learned single Judge before whom the petition came up for hearing on March 3, 1981 at the admission stage rejected it summarily by a speaking order. The learned single Judge was of the opinion that there was no occasion for exercise of powers under Article 227 against the order passed by the Civil Court vacating the interim order as confirmed by the Appellate Court. In regard to the petition to the extent that it was rooted in Article 226 of the Constitution of India in so far as a challenge was made to the order of removal from service passed in exercise of revisional powers for the second time on November 22, 1979 as per the order passed by the Deputy Chief Security Officer, the learned Judge refused to interfere in exercise of powers under Article 226 having regard to the fact that the petitioner had already availed of an alternative remedy by filing a civil suit. Whilst refusing to exercise jurisdiction under Article 226 on the ground that alternative remedy had been already availed of, in paragraph 3 of the order the learned single Judge made observations to the effect that it was possible to take the view that revisional powers could be exercised for the second time even against an order passed by the revisional authority on an earlier occasion, though the learned single Judge made it clear that he was not expressing any final opinion on the question. It is against this order summarily dismissing the petition of the appellant at the admission stage that the present appeal is directed.
4. In regard to the challenge under Article 227, a Letters Patent Appeal is not competent. We need not, therefore, examine the contentions urged by Counsel for petitioner in the context of the order passed by the trial Court as confirmed by the Appellate Court.
5. With regard to the challenge to the order passed by the Deputy Chief Security Officer on November 22, 1979 removing him from service on the ground that the authority concerned had no jurisdiction to invoke revisional powers for the second time, revisional powers having been already exercised on the earlier occasion by the Security Officer who imposed the penalty of reduction by two stages in the pay-scale, a Letters Patent Appeal is competent and that is why we have admitted the appeal only to this limited extent. Be it remembered that the learned single Judge refused to exercise powers under Article 226 though the appellant had invoked these powers on the ground that the appellant had already instituted a civil suit in regard to the same subject-matter. We are told by learned Counsel for the appellant that he had stated before the learned single Judge that he had instructions to withdraw the suit and that the mere fact that alternative remedy was sought to be availed of would not preclude the jurisdiction of this Court under Article 226. Mere fact that alternative remedy can be or has been availed of does not denude the constitutional jurisdiction of course, the Court may not exercise the discretionary jurisdiction as a matter of self-imposed discipline. In the present case there are special circumstances for not refusing to exercise the jurisdiction. Learned Counsel for the appellant has stated that since the suit has already been withdrawn meanwhile the hurdle in the way of the appellant has already disappeared now. Having regard to the chequered history of the matter we do not think that we should refuse to exercise our powers under Article 226 merely because the petitioner had instituted a civil suit in order to seek the same relief in regard to the same subject-matter. What is more, when the suit was instituted the order of the revisional authority had not been served on him, whereas it has already been served upon him during the pendency of these proceedings and the order of removal has also been challenged by amending the petition giving rise to the present appeal by incorporating a specific plea in this behalf. In order to avoid multiplicity of proceedings we think that we can treat this to be a fit case for exercise of our jurisdiction under Article 226 notwithstanding the fact that the appellant had instituted a suit earlier and has already withdrawn it in order to approach this Court. We do not see any good reason why the appellant should again be driven to further proceedings before the Civil Court or to institute a fresh petition since the point which has been urged raises a neat question of law which is capable of being disposed of in the course of the present matter itself. We are inclined to do so because we do not think that the appellant is misusing the process of law. When he instituted the petition he had made it clear that though he had instituted a suit, be was prepared to withdraw the suit. We do not think that under the circumstances, we should drive him again to the Civil Court and oblige him to make recourse to the procedure of appeal and further appeal as the matter has already been argued on merits and we find that the impugned order is altogether without jurisdiction for the reasons which we shall presently indicate. More so because the petitioner has already withdrawn the suit instituted by him in the Court of the Civil Judge, Senior Division at Mahesana, being Regular Civil Suit No. 42 of 1980, on December 17, 1982 and has produced a certified copy of the order permitting him to withdraw the suit. Since the suit has been withdrawn, there is no impediment in the way of the petitioner in proceeding with the present petition on merits.
6. The following facts are not in dispute.
(1) On May 28, 1977 petitioner was served with a charge-sheet on the ground that he had remained absent without leave in an unauthorised manner:
(2) On February 3, 1978 the disciplinary authority at the conclusion of the departmental inquiry exonerated the petitioner;
(3) On June 29, 1978, i.e. after about sixteen months the Security Officer invoked revisional jurisdiction conferred on him by the Railway Protection Force Rules of 1959 and issued a show cause notice calling upon the petitioner to show cause in regard to the proposal to enhance the punishment. The Security Officer, Western Railway, Ajmer was not satisfied with the explanation offered by the petitioner and set aside the finding of exoneration recorded by the disciplinary authority, In the wake of finding of guilt recorded by him, the Security Officer imposed the penalty of reducing the petitioner by two stages in the time-scale.
The matter rested there because as per the rules, after the exercise of revisional powers there was no authority to enhance the penalty any further. Even so, the Deputy Chief Security Officer, Western Railway, issued another show cause notice on June 29, 1979 calling upon the petitioner to show cause why he should not be dismissed from service. On August 12, 1979 the petitioner filed his reply to the show cause notice. On November 22, 1979 the Deputy Chief Security Officer passed the impugned order as per Annexure 'XX' removing him from service.
7. The fate of the matter turns on the interpretation of Rule 60. It has been argued on behalf of the petitioner that power under Rule 60 can be exercised only once by an authority superior to the authority making the order of imposition of penalty either at the stage of disciplinary proceedings before the authority concerned or at the appellate stage. Once revisional powers are exercised, there is no competence to further enhance the punishment imposed by the revisional authority.
8. In order to appreciate the contention, it is necessary to refer to the rules pertaining to appeals, revisions and petitions contained in Chapter X of the Railway Protection. Force Rules. Rules 51, 52, and 60 require to be quoted in this connection:
51. Appeals against orders of suspension:
A member of the Force may appeal against an order of suspension of the authority to which the authority which has made or is deemed to have made the order is immediately subordinate.52. Appeal against order imposing penalties:
(1) A member may appeal against an order imposing upon him any of the penalties in Rule 41 to the authority immediately superior to the authority imposing the penalty.
Note: Appeals against the order of a Chief Security Officer or the Deputy Inspector General, Railway Protection Special Force shall he to the Inspector-General and against his orders to the Central Government.
(2) There shall be no second appeal. But when the appellate authority imposes a penalty higher than the one appealed against, the appeal shall lie to the authority next superior to the appellate authority only if the penalty imposed by the appellate authority is higher than what was within the competence of the authority which imposed the original penalty.
xxx xxx xxx xxx60. Revision:
(1) Any authority superior to the authority making the order may, on its own motion, or otherwise, revise, the order (whether original or appellate) passed by such lower authority:
Provided that no section under this sub-rule shall be initiated after the expiry of one year from the date of the order aforesaid.(2) The revising authority may remit, vary or enhance the punishment imposed, or may order a fresh inquiry or the taking of further evidence in the case as it may consider necessary.
(3) The provisions of Rule 58 relating to appeals would apply so far as may be to such orders in revision.
It will be seen that Rule 52 provides for an appeal by a member of the Protection Force against an order of penalty imposed on him under Rule 41. In the present case, it will be realised that the disciplinary authority had exonerated the petitioner. There was, therefore, no question of his filing any appeal. Rule 52 does not provide for an appeal on the part of the department against an order passed by the disciplinary authority exonerating a member of the Force in the course of disciplinary proceedings. The only provision under which an order passed by the disciplinary authority exonerating a member of the Force against whom a departmental proceeding has been initiated is Rule 60 which provides for exercise of revisional jurisdiction. In the present case Rule 60 was invoked by the Security Officer on June 13, 1979. He called upon the petitioner to show cause why the finding recorded by the disciplinary authority that the charge was not proved should not be set aside and appropriate penalty should not be imposed on him. After affording the opportunity to the petitioner to show cause the revisional authority set aside the order passed by the disciplinary authority whereby a finding of not-guilty was recorded in favour of the petitioner. The revisional authority on his part recorded a finding guilt against the petitioner. Thereafter he proceeded to impose penalty of reduction by two stages in the time-scale. Thus, the revisional authority has already exercised revisional powers and the revisional powers are exhausted. There was no question of once again invoking the revisional powers. On a true reading of Rule 60, revisional jurisdiction can be invoked and exercised only provided -
(1) The power is being exercised against an order of a subordinate authority:
(2) The order passed by the subordinate authority which is sought to be subjected to revision is passed in exercise of powers other than revisional powers.
In other words, a revisional under Rule 60 is competent only against an order passed by a subordinate authority acting under a rule other than Rule 60. There is no provision for exercising revisional powers under Rule 60 against an order passed (in exercise of the very same revisional powers) under Rule 60 itself. Whoever exercises revisional powers, the exercise can be against in order passed by a lower authority otherwise than in exercise of revisional powers. Therefore, revisional jurisdiction cannot be exercised against an order passed in exercise of the revisional jurisdiction itself. In point of fact, adopting of such a course would virtually amount to a review of the order passed by the revisional authority by another officer exercising the same powers. If revisional powers are once exercised by a revisional authority even his superior cannot exercise the powers against the decision of the revisional authority. In other words, there is no revision against revision. Once exercised the revisional powers are exhausted. A second exercise is not contemplated by Rule 60. There is no provision in the rule which authorises any officer to review the orders passed earlier by a competent official in exercise of revisional powers. Under the circumstances the Deputy Chief Security Officer had no jurisdiction to invoke revisional powers against the decision rendered by Security Officer in exercise of revisional powers under Rule 60. Therefore, the impugned order of removal from service passed by the Deputy Chief Security Officer as per Annexure 'XX' is altogether without jurisdiction and a nullity. It must, therefore, be quashed and set aside. The result would be that the order passed by the Security Officer in exercise of revisional jurisdiction reducing the petitioner by two stages will be revived and will remain in operation.
9. The petition is, therefore, allowed. The impugned order passed by the Deputy Chief Security Officer is quashed and set aside. It is declared that the order passed by the Security Officer in exercise of revisional jurisdiction which has become final in accordance with the relevant rules holds the field and the punishment imposed on the petitioner of reducing him by two stages in the time-scale will also hold the field.
10. During the pendency of the petition before the learned single Judge and during the pendency of the L.P.A., the petitioner was allowed to work on his post for some time. He was, however, not allowed to work for a short time during the pendency of those proceedings. In respect of the period for which he was not allowed to work he will be entitled to be treated as having continued in service and will be entitled to be paid salary and other allowances and benefits as would have been payable if he had been actually working on that post. These benefits will have to be computed within three months and will have to be paid to the original petitioner within two months thereafter.
The appeal is allowed. The order passed by the learned single Judge is set aside. Main petition allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. There will be no order regarding costs through out.