IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON’BLE JUSTICE BISWANATH SOMADDER
THE HON’BLE JUSTICE TIRTHANKAR GHOSH
MAT 349 of 2019
with
CAN 2689 of 2019
UNION OF INDIA ORS.
VS.
PINTU KUMAR
For the Appellants / : Mr. Ashok Kumar Chakraborty, Sr. Advocate,
Applicants Mr. Partha Ghosh,
Ms. Sabita Roy…….Advocates
For the Respondent : Mr. Moloy Bose …… Sr. Advocate
Mr. Achin Kumar Majumdar…Advocate
Heard on : 07/08/2019, 08/08/2019, 13/08/2019
14/08/2019
Judgment on : 26/09/2019
Tirthankar Ghosh, J. :-
This appeal has been preferred against the order dated 12.12.2018 passed
in WP 25140(W) of 2016 wherein the learned Single Judge was pleased to allow
the writ petition by setting aside the order dated 21st September,2012, and the
orders of the appellate authority dated 1st March, 2016 and reviewing authority
dated 22nd July, 2016.
The brief facts of the case are that, the respondent/ writ petitioner was
employed as a constable with the Railway Protection Special Force. On
September 4, 2012 the respondent was posted at New Delhi Railway Station. An
FIR was registered against him on September 5, 2012 for commission of offences
punishable under Sectionsections 376 and Section506 read with Sectionsection 34 of the Indian Penal
Code. The incident as alleged occurred on September 4, 2012 when the
respondent was on duty at New Delhi Railway Station. In course of investigation,
the respondent/writ petitioner was arrested after the registration of the FIR and
pursuant to submission of charge-sheet and framing of charges, custodial trial
commenced against him before the learned Additional Sessions Judge, Special
Fast Track Court – 2 (Central), Tis Hazari Courts, Delhi. During the pendency of
criminal trial the Commandant Officer, No.8BN / RPSF / Chittaranjan by an
order dated September 21, 2012 by exercising his powers under Rule 161 (ii) and
(iii) of the Railway Protection Force Rules, 1987 (hereinafter referred to as “RPF
Rules”) dismissed the respondent/ writ petitioner from service. The respondent/
writ petitioner thereafter approached the Appellate Authority, who by an order
dated 1st March, 2016 was pleased to dismiss the appeal. Being aggrieved, the
respondent / writ petitioner also approached the Reviewing Authority and the
Authority by an order dated 22nd July, 2016 was pleased to dismiss the
application.
Mr. Chakraborty, learned Senior Counsel appearing for the appellants drew
the attention of the Court to the order dated 21stSeptember, 2012 passed by the
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Commanding Officer and submitted that after a fact finding enquiry and its
recommendation, the authority had to take a decision. In fact, he has drawn the
attention of the Court to the nine witnesses who were examined by the enquiry
officer and also the statement of the accused which was recorded after taking due
permission from the Court, as at the relevant point of time the accused was in
custody. Mr. Chakraborty submitted that the respondent / writ petitioner being a
member of a disciplined force had to face the consequences. According to the
settled principles, the invocation of Rules 161 (ii) and (iii) of the RPF Rules were
substantiated by reasons and the learned Single Judge ignored the same while
arriving at his conclusion. He further submits that number of reasons have been
cited for not conducting the disciplinary proceedings.
He added, that the fact finding enquiry pursuant to the arrest of the writ
petitioner incorporated the examination of nine witnesses and collection of series
of documents and on conclusion it was found that there were grounds for taking
action under Rule 161 (ii) and (iii) of the RPF Rules, 1987, such provision is a
special procedure within the statute and the disciplinary authority had exercised
such power. There were reasons for not conducting a formal departmental
enquiry as the same was not possible in view of the writ petitioner suffering
custodial trial for about three years and the materials collected in course of the
enquiry reflected that the writ petitioner was thickly connected with the offence
(of rape) while in discharge of his official duty, which is a serious misconduct
within the scope and ambit of Rule 161 (ii) and (iii) of the RPF Rules. He also
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added that from the materials so collected, it revealed that the writ petitioner
arranged Room no.201 illegally, kept the bags of the victim lady in the cloak
room, spoke with the victim several times over phone on 04.09.2012 while on
duty, and the written information of the complainant (treated as FIR) and medical
report established the offence palpably which is sufficient to tarnish the image of
the disciplined force. So far as the order of the learned Single Judge is concerned,
he submitted that on one hand it has been held that reasons are required for
invoking Rule 161 (ii) and (iii) of the RPF Rules, and on the other hand the
learned Court directed for holding a departmental enquiry, which is self-
contradictory and suffers from illegality. The learned Senior Counsel in order to
substantiate his case relied upon the following judgments:-
Workmen of Hindustan Steel Ltd. and another Vs. Hindustan Steel
Ltd. and others reported in AIR 1985 SC 251; Senior Supdt. of Post Offices,
Pathananthitta and others Vs. A. Gopalan reported in AIR 1999 SC 1514;
Southern Railway Officers Assn. and another Vs. Union of India and others;
Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another reported in
(1999) 3 SCC 679; Shashi Bhusan Prasad Vs. Inspector General Central
Industrial Security Force reported in 2019 SCC OnLine SC 952.
Mr. Bose, learned Senior Counsel appearing for the respondent/writ
petitioner supported the order of the learned Single Judge and challenged the
manner in which the writ petitioner has been dismissed from service. He
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submitted that if the preliminary enquiry has been conducted, there is no reason
for conducting the disciplinary proceeding, furthermore no enquiry report was
handed over to the writ petitioner. The reasons assigned for invoking the special
procedure under Rule 161(ii) and (iii) of the RPF Rules, 1987 are presumptuous.
The dispensation of disciplinary proceedings, by not conducting the regular
proceeding, has seriously prejudiced the writ petitioner and he has been
dismissed without following the basic principles of natural justice. There was
gross illegality in the manner in which the writ petitioner was dismissed from his
service and the learned Single Judge rightly interfered with the impugned order
passed by the disciplinary authority and set aside the same. As such, there is no
scope for this Court to interfere with the order passed by the learned Single
Judge. In support of the contention advanced by him the learned Counsel for the
respondent / writ petitioner, relied upon the following judgments:-
Tarsem Singh Vs. State of Punjab and Ors. reported in (2006) 13 SCC
581; Jaswant Singh Vs. State of Punjab Ors. reported in (1991) 1 SCC 362.
So far as the precedents relied upon by the learned Senior Counsel
appearing for the appellants are concerned, the applicability of the same in the
background of the facts of the present case may be assessed. In the case of
Workmen of Hindustan Steel Ltd. and another Vs. Hindustan Steel Ltd. and
others reported in AIR 1985 SC 251, the learned Counsel relied upon a part of
paragraph 4 which reads as follows :
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“One can appreciate that in a given situation, an enquiry into
misconduct may be counterproductive. Constitution itself
contemplates such a situation when it enumerates situations in
which a punishment of dismissal, removal or reduction in rank
can be imposed without holding a disciplinary enquiry.”
However, in the said case, the Hon’ble Apex Court was not satisfied with
the application of the said standing order and directed the respondents
Hindustan Steel Ltd. and others to recall and cancel the standing order.
In the case of Senior Supdt. of Post Offices, Pathananthitta and others
Vs. A. Gopalan reported in AIR 1999 SC 1514, the Hon’ble Apex Court in
paragraph 6 was pleased to hold as follows :
“6. We have heard Shri V. C. Mahajan, the learned senior counsel
appearing for the appellants and Shri KMK Nair, the learned
counsel appearing for the respondent. Shri Nair has submitted
that since the respondent has been acquitted of by the criminal
Court on the charge of withdrawal of Rs.8,000/- the Tribunal was
right in holding that the finding regarding the first charge could
not be sustained. Shri Nair has placed reliance on the decision of
this Court in SectionNelson Motis v. Union of India (1992) 5 JT (SC) 511 :
(1992 AIR SCW 2304). The said decision does not lend support to
the said submission of Shri Nair. In that case the Court has
rejected the contention that disciplinary proceedings could not be
continued in the face of the acquittal in the criminal case and has
held that the nature and scope of the criminal case are very
different from those of a departmental disciplinary proceedings
and an order of acquittal, therefore, cannot conclude the
departmental proceedings. This is so because in a criminal case
the charge has to be proved by the standard of proof beyond
reasonable doubt while in departmental proceedings the standard
of proof for proving the charge is preponderance of probabilities.
The Tribunal was, therefore, in error in holding that in view of the
acquittal of the respondent by the criminal Court on the charge
relating to withdrawal of Rs.8,000/- the finding on the first
charge in the departmental proceedings cannot be upheld and
must be set aside.”
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The ratio in this case extends support to the contention of the Appellant
that acquittal in a criminal trial cannot automatically be a ground for setting
aside the finding / conclusion arrived at a departmental proceeding.
In Southern Railway Officers Assn. and another Vs. Union of India and
others relied upon by the learned Counsel for the appellants, circumstances
demonstrating invoking of the special jurisdiction of the disciplinary authorities
were substantiated and the learned Counsel by relying upon the same tried to
emphasize that the circumstances of the instant case were such that, no option
was available with the authorities to proceed with a regular enquiry, and it was
only after adopting abundant precaution, that the special procedures under Rule
161 (ii) and (iii) of the RPF Rules, 1987 were invoked, as the writ petitioner /
respondent was a member of a disciplined force.
On behalf of the appellants, learned Counsel distinguished the judgment of
Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another reported in
(1999) 3 SCC 679 in the manner in which the learned Single Judge has relied
upon the same and came to the conclusion that, “The Proceedings both criminal
as well as departmental can be continued parallely. However, the issue as to
whether the departmental proceeding can continue during the pendency of the
criminal proceeding is not germane to the facts of the instant case. It is, however,
curious to note that the order impugned was passed even before the writ-
petitioner was acquitted in the criminal proceedings albeit on a benefit of doubt.”
Finally, the learned Counsel relied upon a recent judgment of the Hon’ble
Apex Court rendered in the case of Shashi Bhusan Prasad Vs. Inspector
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General Central Industrial Security Force reported in 2019 SCC OnLine SC
952 wherein under similar circumstances the Hon’ble Apex Court was pleased to
affirm the order of dismissal of service passed by the departmental authorities in
the following manner:-
“19. We are in full agreement with the exposition of law laid down
by this Court and it is fairly well settled that two proceedings
criminal and departmental are entirely different. They operate in
different fields and have different objectives. Whereas the object
of criminal trial is to inflict appropriate punishment on an
offender, the purpose of enquiry proceedings is to deal with the
delinquent departmentally and to impose penalty in accordance
with the service rules. The degree of proof which is necessary to
order a conviction is different from the degree of proof necessary
to record the commission of delinquency. Even the rule relating to
appreciation of evidence in the two proceedings is also not
similar. In criminal law, burden of proof is on the prosecution and
unless the prosecution is able to prove the guilt of the accused
beyond reasonable doubt, he cannot be convicted by a Court of
law whereas in the departmental enquiry, penalty can be
imposed on the delinquent on a finding recorded on the basis of
”preponderance of probability”. Acquittal by the Court of
competent jurisdiction in a judicial proceeding does not ipso facto
absolve the delinquent from the liability under the disciplinary
jurisdiction of the authority. This what has been considered by
the High Court in the impugned judgment in detail and needs no
interference by this Court”.
The case of Tarsem Singh (supra) relied upon by the learned Senior
Counsel of the respondent / writ petitioner is clearly distinguishable from the
fact situation of the present case. In paragraph 10 of the said judgment it has
been categorically observed that:
“The learned counsel appearing on behalf of the appellant has
taken us through certain documents for the purpose of showing
that ultimately the police on investigation did not find any case
against the appellant in respect of the purported FIR lodged
against him under Section 377 IPC.”
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In this case, the FIR so registered culminated in a charge-sheet and full
fledged trial had taken place. During the pendency of the criminal trial, the fact
finding enquiry was conducted and the disciplinary authority after recording
reasons proceeded to arrive at their finding.
In Jaswant Singh’s case (supra) relied upon by the learned Senior Counsel
of the respondent / writ petitioner it is reflected in Paragraph 5 that the two
reasons cited for not holding the departmental enquiry were as follows:
“These are (i) the appellant has thrown threats that he with the
help of other police employees will not allow holding of any
departmental enquiry against him and (ii) he and his associates
will not hesitate to cause physical injury to the witnesses as well
as the enquiry officer.”
In the later part of said paragraph 5 it has been held:
“This allegation is based on his alleged activities at Jullundur on
April 3, 1981 reported by SHO/GRP, Jullundur. That report is not
forthcoming. It is no one’s contention that the said SHO was
threatened. Respondent 3’s counter also does not reveal if he had
verified the correctness of the information.”
The factual situation in the aforesaid decision so cited is clearly
distinguishable as the respondent / writ petitioner availed the provisions of
appeal and review.
We have considered the submissions relied upon by both the parties and
the relevant part of the order of the learned Single Judge which has aggrieved the
appellants are in respect of the following observations :-
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“The reasons recorded in the impugned order for dispensing with
the enquiry, to say the least, are baffling. The Commanding
Officer has referred to Newspaper Reports, “agony and
humiliation suffered by the alleged victim of rape” and “tarnishing
of the image of the force”. It was also held that holding the
enquiry would “harm the basic tenets and ethos of the society
where we put honour of woman at high esteem”.
Further observation of the learned Single Judge, which according to the
learned Counsel for the appellants seriously prejudiced them are as follows:-
“It is, however, curious to note that the order impugned was
passed even before the writ-petitioner was acquitted in the
criminal proceedings albeit on a benefit of doubt.”
Relevant portion of the order dated 21.09.2012, for invoking the provisions
of Rule 161(ii) and (iii) are set out as follows: –
“On perusal it is found that the FIR full of the agony mentioned
which shows what humiliation the lady must have gone because
of this constable and have tarnished the image of the Force and
at this juncture, I found it not practicable to hold enquiry as per
prescribed procedure in relevant rules of RPF Rules, 1987.
Secondly, I don’t think conducting a DAR proceeding is
practicable because inclusion of many witness will drag the
enquiry. This dragging of enquiry will harm the basic tenets and
ethos of our society where we put honour of woman at high
esteem. Departmental proceedings are based on preponderance of
probability and technicalities of criminal law should not be
evoked. I find sufficient material on record/enquiry report that
proves involvement of Constable Pintu Kumar in the rape of victim
(name omitted).
Thirdly, the duties of RPSF personnel deployed for Station
bandobust duty are responsible for the security of the passengers
and their belongings, instead of providing security to passengers
resorted to rape of a lady which is not only an act unbecoming of
a uniformed personnel of the RPSF but also a criminal act. This
conduct of Const Pintu Kumar is very reprehensible and it has10
brought down the reputation of RPSF particularly apart from
bringing bad name to the Railway department. A security
personnel is expected to inspire confidence and the sense of
security amongst the public/passengers. However, in this case
Const/08SF1036269 Pintu Kumar himself becomes a threat to
the department/Railway Passengers which is objectionable
condemnable it is a case where holding an enquiry will
demoralize the aggrieved and encourage the wrongdoer. To
maintain the integrity in the Force, it is not expedient to hold any
enquiry.
Reasonable opportunity was provided to the Constable and his
statement was recorded wherein he has admitted that he had
arranged to keep the bags of the victim in cloak room, he had
talked with the victim over mobile phone for 5/6 times on
04.09.2012 and he had managed the room No.201 in New Delhi
Rly Station illegally.
In light of the above and careful perusal of available records, I
arrive at the conclusion that Constable Pintu Kumar,
Const/08SF1036269 had indeed involved himself in rape of
victim (name omitted) against the ethos of his duty and against
the purpose for which he was appointed. His act has tarnished
the image of the Force. Therefore, I found him contravening RPF
Rules, 146 (i) and 146.4Therefore, by exercising power under Rules 161(ii) (iii) of RPF
Rules, 1987, Constable/08SF1036269 Pintu Kumar S/o Upender
Yadav is hereby ‘dismissed form service’ with immediate
effect.”
The writ petitioner’s appeal by an order dated 01.03.2016 was dismissed as
the same was barred by limitation, wherein the appellate authority held:
“He acknowledged the punishment order on 27.09.2012. He
ought to have submitted the appeal within statuary period of 30
days in terms of Section 9 of RPF Act, 1985, that is his appeal
should have been submitted by 27.10.2012.
Shri Pintu Kumar, EX-CT preferred an unsigned appeal dated
26.05.2015 to the DIG/RPSF which was returned to him
mentioning therein the reasons.
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Now, Shri Pintu Kumar, EX-CT again preferred an appeal dated
14.06.2015 to the DIG/RPSF, against punishment of Dismissal
from Service, mentioning therein that conditions laid down in Rule
161(ii) (iii) are not applicable upon him and since he has been
acquitted from Court, requested to be reinstated.
It is observed that Shri Pintu Kumar, has preferred the instant
appeal after the lapse of considerable period i.e. more than three
years. Appeal dated 14.06.2015 submitted by Shri Pintu Kumar,
EX-CT, being time barred in terms of Section 9 of RPF Act, 1985,
cannot be considered.”
The writ petitioner further preferred a revision in respect of the order
passed by the appellate authority which was disposed of by an order dated
11.07.2016. The relevant part of the said order is set out as follows:
“In the instant revision petition the revisionist did not bring any
new facts or grounds for not submitting any appeal within the
prescribed limit or any valid grounds for failing to do so. On going
through the DAR case file and revision petition it is apparently
clear that the revisionist was under no restriction to submit an
appeal against his dismissal order passed by the competent
authority. On the other hand it is well established that the
statements of the revisionist was recorded during his being in
judicial custody on the direction of the court and the relevant
orders of his dismissal etc. were properly served on him with due
acknowledgement. As such he had sufficient time and facilities to
submit his appeal within stipulated time.
I have also carefully gone through the Judgment dated
01.05.2015 of Additional Sessions Judge FTC-2 (Central) Tis
Hazari Court Delhi, submitted by the revisionist acquitting the
accused persons including the revisionist. The Judgment which is
covered in 59 pages is purely on technical grounds and that too
giving benefit of doubts as the inquiry officer had let off another
accused (third) in the case though the complainant and
complained of sexual harassment with her by 03 persons
including the revisionist. Further to this the victim had clearly
identified the revisionist in the court also for commissions of the
offence. Not only this vide para 48 of the above judgment the DNA12
of accused revisionist was found tallying with the DNA found on
the under wear of the victim, her vaginal swabs, one of the bed-
sheets, pillow cover and one handkerchief recovered from scene
of crime in Room No.201 of New Delhi Railway station. Further to
this revisionist could not submit any grounds for the alleged
demand of Rs.5 Lacs from his by the victim as the cause of filing
FIR against him. As such, on the face of so strong the evidence
against him it is highly unbecoming of him as a member of an
Armed Force of Union.
Moreover, the appeal has also been filed by the State in Hon’ble
High Court, Delhi vide Criminal L.P. No.755/2015 S/V-
HawanPratap Singh @ Pappi and others in the Hon’ble High Court
of Delhi against the order dated 01.05.2015 of Hon’ble Additional
Session Judge, Tis Hazari Court, Delhi.
Considering all the aspects of the case I do not find any
reasonable grounds at this stage to interfere with the orders of
dismissal of revisionist passed by the Disciplinary Authority and
orders of the Appellate Authority rejecting the Appeal of the
revisionist. The revision petition as such is hereby rejected.”
We have taken into consideration the orders passed by the Commanding
Officer, No.8BN / RPSF / Chittaranjan dated 21st September, 2012, by the DIG /
RPSF, Railway Board dated 1st March, 2016 and by the IG / RPSF, Railway
Board dated 11th July, 2016. In the order dated 21st September, 2012, it has
been observed that the contents of the FIR reflected humiliation of a lady at the
hands of the writ petitioner / respondent which was sufficient to tarnish the
image of the force and so it was not possible for the authorities to hold enquiry as
per regular procedure in accordance with the relevant rules of the RPF Rules,
1987. Additionally, it was held that the duties of RPSF personnel deployed at a
station are responsible for the security of the passengers and their belongings,
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instead of providing securities to passengers, the writ petitioner / respondent
exposed himself to certain act / conduct which is not only unbecoming of a
uniformed personnel of the RPSF but also a criminal act, the security personnel
who is expected to inspire confidence and a sense of security amongst the public
/ passengers has become a threat to the department / railway passengers which
is objectionable and condemnable and, as such, there was no necessity in
carrying out a regular enquiry. The materials collected during the enquiry
reflected that the writ petitioner / respondent had kept the bags of the victim in
cloak room, spoke with the victim over mobile phone for 5 / 6 times on
04.09.2012 and had managed room no.201 in New Delhi Railway Station
illegally.
The aforesaid grounds are significant and create a meaningful
circumstance for the department to invoke the provisions of Rule 161 (ii) and (iii)
of the RPF Rules, 1987, particularly, the ground so assigned which emphasise
the aspect of security, the confidence reposed upon a disciplined force and the
manner in which the writ petitioner has violated the same.
The writ petitioner also approached the Appellate Authority and the
Appellate Authority was pleased to dismiss the same as no substantial grounds
were shown for condoning the delay according to the Rules.
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The writ petitioner being aggrieved, by way of revision against the order of
appeal approached the IG / RPSF who was pleased to observe that the judgment
of the learned Additional Sessions Judge was based on technical grounds and it
revealed from the records that DNA of the accused / writ petitioner tallied with
the DNA found on the underwear of the victim, her vaginal swabs, and one bed-
sheet, pillow cover and one handkerchief which were recovered from the scene of
crime in Room No.201 of New Delhi Railway Station.
The respondent / writ petitioner has exhausted the provisions as contained
under the RPF Rules and the learned Single Judge ignored the subsequent
orders passed by the DIG and IG of RPSF, Railway Board and only concentrated
on the order dated 21st September, 2012 passed by the Commanding Officer,
No.8BN / RPSF / Chittaranjan. As the order dated 21st September, 2012 was
passed much before the Criminal Court arrived at its conclusion and the writ
petitioner did not challenge the application of the special procedures provided
under the Rule 161 (ii) and (iii) of the RPF Rules, 1987 before the Appellate
Authority or the authority exercising powers of revision, it was not appropriate at
such a belated stage to set aside the order passed by the disciplinary authority.
We, therefore, hold that the reasons so assigned by the Commanding Officer in
the order dated 21st September, 2012, being passed on scrutiny and assessment
of nine witnesses and twelve documents were sufficient for arriving at a
conclusion for invoking the special procedures and the learned Single Judge
ignored the same and arrived at his finding.
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The ratio of the Hon’ble Supreme Court passed in Shashi Bhusan
Prasad’s case (supra) is squarely applicable to the facts of the present case of
the appellants and, as such, the order dated 12.12.2018 passed by the learned
Single Judge in WP 25140(W) of 2016 is hereby set aside.
The appeal is allowed accordingly.
Consequently the writ petition is dismissed.
Urgent photostat certified copy of this judgment and order, if applied for,
be supplied to the parties on a priority basis.
(Tirthankar Ghosh, J.) (Biswanath Somadder, J.)
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