The Allahabad High Court terming it illegal and holding him entitled to all service related benefits, has cancelled the termination order of a Senior Rakshak in the Railway Protection Force.
A Single Bench of Justice Abdul Moin passed this order while hearing a petition filed by Panchu Gopal Ghosh.
The petition has been filed praying for the following reliefs:-
(i) To issue a writ, order or direction in the nature of Certiorari quashing the orders dated 11.07.2012 and 03.09.2012 passed by the Respondent No 3 and Respondent no 2 respectively.
(ii) To issue a writ, order or direction in the nature of Mandamus commanding the Respondents not to give effect to the impugned orders dated 11.07.2012 and 03.09.2012 passed by the Respondent No 3 and Respondent No 2 respectively.
(iii) To issue a writ, order or direction in the nature of Mandamus commanding the Respondents to treat the petitioner in service till his age of superannuation/retirement and to pay him all service benefits including regular salary.”
The case set forth by the counsel for the petitioner is that the petitioner while working on the post of Senior Rakshak was removed from service by order dated 05.08.1976 under Rule 47 of the Railway Protection Force Rules, 1959 replaced by Rule 161 of the Railway Protection Force Rules, 1987.
The said rule provides for imposition of penalty on the delinquent employee without holding any inquiry provided reasons are accorded for the same.
After the petitioner had been removed from service, he challenged the said order by filing the Petition.
The writ Court by order dated 22.09.1998, dismissed the petition. Being aggrieved, the petitioner filed a Special Appeal. The Division Bench of the Court by order dated 22.03.2010, was of the view that Rule 47 of the Rules, 1959 replaced by Rule 161 of the Rules, 1987 as well as exceptional clause under Article 311 (2) (b) of the Constitution of India are required to be seen and thus, was of the view that the removal order (dated 05.08.1976) be kept in abeyance subject to result of the inquiry.
It was also provided that the disciplinary authority will take a fresh decision in this regard but if the disciplinary authority finds that the report of the inquiry officer is on the basis of the materials and outcome of the same then in such circumstances the authority concerned shall implement the order which has been passed earlier.
In pursuance thereof, the inquiry proceedings were initiated against the petitioner. Five charges were levelled against the petitioner. The inquiry report dated 04.05.2012 was submitted, in which all the five charges were not proved against the petitioner.
The disciplinary authority disagreeing with the said inquiry report issued a dissent note dated 05.06.2012, intending to disagree with the inquiry report on the following grounds namely (a) although the inquiry officer has indicated that the matter is extremely old about 35 years and no sufficient evidence is available to prove the charges yet he has failed to indicate any evidence to indicate as to how the charges have not been found to be proved and (b) in such circumstances where either to prove or disprove the charges, no evidence is available then the earlier removal order dated 05.08.1976 can be accepted as evidence which order has been affirmed with the dismissal of the appeal filed by the delinquent employee.
The petitioner claims to have submitted his reply on 26.06.2012. The disciplinary authority by order dated 11.07.2012, not finding the explanation of the petitioner to be satisfactory has removed the petitioner from service. Being aggrieved, the petitioner filed an appeal which has been rejected by order dated 03.09.2012 and hence the petition.
The Court observed that,
From a perusal of records it emerges that initially the petitioner who was working on the post of Rakshak in the Railway Protection Force was removed from service without holding any inquiry under Rule 47 of the Rules, 1959, now Rule 161 of the Rules, 1989 on the ground that holding of an inquiry is not feasible. The appeal filed against the said order was also rejected. The petitioner being aggrieved, filed a writ petition before the Court which was also dismissed by order dated 22.09.1998. Being aggrieved, the petitioner filed a special appeal and the Division Bench of the Court vide order dated 22.03.2010 disposed of the said appeal with the direction to the respondents to hold an inquiry against the petitioner and it was further provided that if the disciplinary authority finds that the report of the inquiry officer is on the basis of the materials and outcome of the same then in such circumstances the authority concerned shall implement the order which has been passed earlier.
In pursuance thereof, the inquiry was held against the petitioner with respect to five charges. Admittedly, all the five charges were not proved by the inquiry officer while submitting his inquiry report dated 04.05.2012. The disciplinary authority did not agree with the findings of the inquiry officer and hence issued a dissent note dated 05.06.2012 proceeding to dissent on two reasons namely (a) although the inquiry officer has indicated that the matter is extremely old about 35 years and no sufficient evidence is available to prove the charges yet he has failed to indicate any evidence to indicate as to how the charges have not been found to be proved and (b) in such circumstances where either to prove or disprove the charges, no evidence is available then the earlier removal order dated 05.08.1976 can be accepted as evidence which order has been affirmed with the dismissal of the appeal filed by the delinquent employee. The petitioner submitted his reply which did not find favour with the disciplinary authority who by means of order dated 11.07.2012 removed the petitioner from service. The said order has been affirmed with the dismissal of the appeal filed by the petitioner vide order dated 03.09.2012.
Perusal of the order dated 11.07.2012 passed by the disciplinary authority would indicate that the disciplinary authority has proceeded on the basis of assumption and presumption inasmuch as in the order impugned, he has indicated that at the time of earlier removal of the petitioner dated 05.08.1976 certain documents must have been in existence on the basis of which the said order was passed and even if the documents were not available with the inquiry officer consequently, the removal order dated 05.08.1976 can be read as evidence.
“The aforesaid reasoning of the disciplinary authority is patently misconceived and fallacious inasmuch as once the Division Bench of this Court required a fresh inquiry to be held against the petitioner and the inquiry officer found all the five charges against the petitioner to be not proved and dissent note was issued in this regard on grounds (a) & (b) as already indicated above but ultimately the disciplinary authority was of the view that even if the documents were not available after a long lapse of time it was duty of the inquiry officer to have indicated the reasons as to why the said documents were not available and that earlier removal order dated 05.08.1976 can be read in evidence and reasons must be there on the basis of which the removal order dated 05.08.1976 was passed.
As already indicated above, the said reasons assigned by the disciplinary authority are patently fallacious inasmuch as once the Division Bench of the Court had remitted the matter for a fresh inquiry and the charges were not found proved against the petitioner as such, in the absence of any documents or evidence to prove the charges against the petitioner, the earlier removal order dated 05.08.1976 could not be read as evidence against the petitioner more particularly when it is the inquiry officer who is specifically required to prove the charges against the petitioner.
Even if the charges were not proved by the inquiry officer certain reasons should have emerged from the order of the disciplinary authority including evidence against the petitioner to hold the charges as proved but as already indicated above, no reasons emerge from the order of the disciplinary authority dated 11.07.2012 to indicate that the charges as levelled against the petitioner have been found proved and the reasoning adopted by the disciplinary authority of the earlier removal order dated 05.08.1976 to be read as evidence can be said to be only laughable and patently misconceived and obviously cannot stand scrutiny in the eyes of law”, the Court further observed while allowing the petition.
The Court set aside the orders dated 11.07.2012 & 03.09.2012.
“Keeping in view the aforesaid reason, there would not be any occasion for a fresh inquiry to be conducted against the petitioner more particularly when he is aged about 79 years. As such, with the setting aside of the removal order dated 05.06.2012, the petitioner would be entitled for all consequential benefits except the arrears of pay on the principle of ‘ No work No Pay’.
Let the entire consequential benefit be given to the petitioner within a period of three months from the date of receipt of a certified copy of the order”, the order reads.