ATTAR SINGH vs UNION OF INDIA & ORS.

In this petition under Articles 226 and 227 of

the Constitution of India, the petitioner, a retired

Assistant Security Commissioner, Railway Protection Force

(RPF), Ahmedabad, has prayed as under:-

"B. This Hon''ble Court may be pleased to issue a Writ of Mandamus and/or any other appropriate Writ, Order or direction to quash and set aside the order directing institution of Departmental Proceedings against the petitioner pursuant to the charge sheet;

C. Pending final disposal of this Petition this Hon''ble Court may stay the Departmental Proceedings arising out of the Articles of Charges framed against the Petitioner."

Before proceeding with the main contentions

raised in this petition, it is necessary to give brief

facts about the case. That a complaint was lodged

against one Shri S.K.Sharma, Inspector, RPF, Ahmedabad,

Western Railways on 06.12.2008 levelling allegations

under the Prevention of Corruption Act and the charge

against the petitioner was under Sections 343, 348 and

120B of the Indian Penal Code in the charge sheet

registered as Special Case No.51 of 2010 with Special

Judge, CBI Court No.3, Ahmedabad. By an order dated

06.08.2012, Director, RPF, Railway Board communicated to

Additional Chief Security Commissioner, RPF, Western

Railways, Mumbai, informing him that in terms of Rule

9(1) of the Railway Service (Pension) Rules, 1993, on

behalf of Hon''ble President of India, sanction was

accorded for institution of departmental proceedings as

per the Railway Servants (Discipline & Appeal) Rules,

1968 against the petitioner. Accordingly, Article of

Charges came to be issued along with an order for

conducting departmental proceedings on 11.09.2012. Upon

receiving such an order, the petitioner made a

representation to the respondent on 19.09.2012 to stay

the departmental inquiry. However, departmental

proceedings against the petitioner continued. Thereafter

also, the petitioner received various communications,

i.e. on 10.07.2013 and 14.07.2013 about preliminary

hearing of the case pursuant to departmental proceedings

and therefore, the petitioner is constrained to approach

this Court so as to challenge initiation of departmental

proceedings against the petitioner as illegal and

contrary to the provisions of the Railway Service

(Pension) Rules, 1993 on several main amongst other

grounds.

Shri I.H.Syed, learned Counsel appearing for

the petitioner would contend that the respondent

authority lacks power to initiate departmental

proceedings against the petitioner in view of no

amendment carried out in the Railway Servants (Discipline

& Appeal) Rules, 1968 and the Pension Rules, 1993. It is

submitted that the Railway Protection Force Act, 1957

provides Section 2 containing definition. Section 2(1)

(a) defines "Force". Clause-(c) defines "Member of the

Force" and Clause-(f) defines "Superior Officer".

Section 3 is about "Constitution of the Force". Section

4 pertains to "Appointment and power of superior

officers". The petitioner herein falls in the category

of superior officer holding post of Assistant Security

Commissioner at the time of retirement, which is

equivalent to Assistant Commandant. Section 10 of the

Act, 1957 is about Officers and Members of the Force

deemed to be Railway Servants and every member of the

force shall, for all purposes, be regarded as Railway

servant within the meaning of the Indian Railway Act,

1890 other than Chapter-VIA and shall be entitled to

exercise of powers conferred on Railway servant by or

under that Act. Section 21 of the Act, 1957 confers

powers to make Rules upon the Central Government by

notification in the official gazette. Sub-section (1) of

Section 21 reads as under:-

"(1) The Central Government may, by notification in the official gazette make rules for carrying out the purposes of this Act."

3.1 Chapter-XI under the head of "Discipline and

Conduct" of the Railway Protection Force Rules, 1987

framed in exercise of Section 21 of the Railway

Protection Force Act, 1957 contains Rule 132, i.e. Rules

governing discipline. Rule 132.1 reads as under:-

"132.1 Save as otherwise provided in these rules, the Railway Servants (Discipline and Appeal) Rules, 1968 as amended from time to time shall, so far as may be, apply to superior officers subject to the modifications that-

(a) in sub-rule (1) of rule 3 of the said rules, clause (b) shall be omitted;

(b) references to "General Manager", wherever they occur in the said rules, shall be substituted by references to "Director General, Railway Protection Force."

3.2 The Railway Servants (Discipline and Appeal)

Rules, 1968 are framed in exercise of powers conferred by

proviso to Article 309 of the Constitution of India and

Rule 3 about application of the Rules, which reads as

under:-

"Application - (1) These rules shall apply to every Railway servant but shall not apply to-

(a) any member of the All India Services;

(b) any member of the Railway Protection Force as defined in the Railway Protection Force Act, 1957 (23 of 1957);

(c) any person in casual employment; and

(d) any person for whom special provision is made, in respect of matters covered by these rules by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions.

(2) Notwithstanding anything contained in sub- rule (1), the President may, by order, exclude any class of Railway servants from the operation of all or any of these rules."

3.3 Under Railway Servants (Discipline and Appeal)

Rules, 1968, Rule 2(1)(e) defines "Railway Servant" and

Clause-(f) defines ''Service'' means a service under the

Ministry of Railways. Rule 2(1)(e) reads as under:-

"(e) ''Railway servant'' means a Railway servant as defined in clause 43 of Rule 103 of Volume I of the Indian Railway Establishment Code (Fifth Edition-1985) and includes any such Railway servant on foreign service or whose services are temporarily placed at the disposal of any other department of the Central Government or a State Government or a local or other authority;"

3.4 Rule 9 of the Railway Services (Pension) Rules,

1993 as amended upto 2013 empowers the President to accord sanction to initiate departmental proceedings.

Rule 9 reads as under:-

"9. Right of the President to withhold or withdraw pension

(1) The President reserves to himself the right of withholding or withdrawing a pension or gratuity, or both, either in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any peculiar loss caused to the railway, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement;

Provided that the Union Public Service Commission shall be consulted before any final orders are passed.

Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of rupees three thousand five hundred per mensem."

3.5 One of the main contentions raised by Shri

I.H.Syed, learned Counsel appearing for the petitioner is

that Rule 132.1 no doubt provides applicability of the

Railway Servants (Discipline and Appeal) Rules, 1968 to

superior officer of Railway Protection Force, but subject

to the modification of the Railway Servants (Discipline

and Appeal) Rules, 1968, viz. deletion of Rule 3(1)(b) of

the Rules, 1968. Though Rule 132.1, by which Rule 3(1)

(b) of the Railway Servants (Discipline and Appeal)

Rules, 1968 is omitted, but applicability thereof is

subject to corresponding amendment to be carried out in

the Rules, 1968, particularly Rule 3(1)(b) of the Rules.

RPF Rules are framed under Section 21 of the Act, 1957

while the Railway Servants (Discipline & Appeal) Rules,

1968 are framed under proviso to Article 309 of the

Constitution of India.

As against this, Mr.Siraj Gori, learned

Standing Counsel appearing for respondent authorities

contended that purport and purpose of Rule 132.1, either

on plain and simple reading or even by applying

harmonious reading of provisions of both the Rules, viz.

The Railway Protection Force Rules, 1987 and the Railway

Servants (Discipline and Appeal) Rules, 1968 in

juxtaposition to Section 10 of the Railway Protection

Force Act, 1957 do not require any corresponding

amendment, viz. Deletion of Rule 3(1)(b) of the Rules,

1968.

4.1. Mr.Gori, learned Standing Counsel has placed on

record copies of Railway Protection Force Rules, 1959 and

Railway Protection Force Regulations, 1966. That Rules

of 1959 were framed in exercise of powers conferred by

Section 21 of the RPF Act, 1957 and were notified on

10.09.1959 and were published in the Gazette of India

Part-II also on 10.09.1959.

4.2 Rule 39 under the head of "Discipline" in

Chapter-IX is about "Rules governing discipline". Sub-

rule (1) of Rule 39 reads as under:-

"(1) Superior Officers shall be governed by the rules applicable to gazetted railway servants of corresponding rank in respect of disciplinary proceedings, punishments, appeals, revisions and representations."

Sub-rule (2) of Rule 39 reads as under:-

"(2) The members of the Force shall in such matters be governed by the rules in this chapter."

4.3 It is submitted that the applicability of the

Discipline and Appeal Rules of railway servant was thus

statutorily recognized since enactment of 1959 Rules and

in the Rules of 1987, framed in exercise of powers under

Section 21 of the Railway Protection Force Act, 1957,

under Chapter-XI, a specific provision was made under

Rule 132 with heading "Rules governing discipline", in

which in clear terms in Clause-(a) of Rule 132.1, Clause- (b) in sub-rule (1) of Rule 3 of the Railway Servants

(Discipline and Appeal) Rules, 1968 came to be omitted

and the word "shall" used therein mandated such omission.

4.4 Further, in consonance with requirement of sub-

section (3) of Section 21 of the Railway Protection Force

Act, 1957, the Railway Protection Force Rules, 1987 were

laid on the table of both Houses of the Parliament and as

per the correspondence 19.02.1991 addressed by Under

Secretary, Lok Sabha Secretariat, it is stated that no

motion for modification or annulment of the Railway

Protection Force Rules, 1987 was adopted by the Lok

Sabha. Likewise, another correspondence dated 14.02.1991

from Under Secretary, Rajya Sabha Secretariat reveals

that the above Rules were laid on the table of the house

(Rajya Sabha) for a period of 30 days while it was in

session. However, the House has not so far passed any

resolution concerning the aforesaid Rules.

4.5 According to Shri Gori, sub-section (3) of

Section 21, after the Rules framed in exercise of powers

under Section 21 of the Act, 1957 are tabled while each

of the houses of the Parliament is in session for a total

period of 30 days, irrespective of any resolution passed

thereon, either with modification or otherwise, such

Rules shall take effect once it is notified and so

published in the Government gazette.

4.6 It is next contended that the Rules framed

under Chapter-XI - Discipline and Conduct are uniformly

applied and all the superior officers are governed by the

Railway Servants (Discipline and Appeal) Rules, 1968.

As against above, Mr.I.H.Syed reinforces his

submissions that procedure undertaken in exercise of

powers under Section 21 of the Railway Protection Force

Act and publishing the Rules of 1987 in the official

Government gazette taking a route of Parliament approval,

however required corresponding amendment /modification

/deletion of Rule 3(1)(b) of the Railway Servants

(Discipline and Appeal) Rules, 1968, framed under proviso

to Article 309 of the Constitution of India ''Subject to''

which is admittedly not undertaken.

In view of the rival submissions as above,

certain undisputed facts emerge on record as under:-

I. The petitioner is charged for not

maintaining absolute integrity, devotion

to duty and acted in a manner unbecoming

of a Railway Servant in contravention of

Rule-3.I (i), (ii) and (iii) of the

Railway Services (Conduct) Rules, 1966.

II. In exercise of powers conferred upon

Hon''ble the President of India under Rule-

9 of the Railway Services (Pension) Rules,

1993, sanction was accorded to institute

departmental proceedings against the

petitioner.

III. The above departmental proceeding shall be

instituted by Additional Chief Security

Commissioner, Railway Protection Force,

Western Railways in accordance with the

procedure laid down in Rule-9 of the

Railway Services (Discipline & Appeal)

Rules, 1968.

Therefore, so far as powers conferred upon

Hon''ble the President of India under Rule 9 of the

Railway Services (Pension) Rules, 1993 are concerned, at

this stage, we are not inclined to deliberate on

contentions raised, but the issue remains in a narrow

compass so far as failure to carry out amendment in Rule-

3(1)(b) of the Railway Servants (Discipline and Appeal)

Rules, 1968 framed in exercise of powers conferred under

proviso to Article 309 of the Constitution of India.

On perusal of record of the case, viz. the

Railway Protection Force Act, 1957, the Railway

Protection Force Rules, 1987 framed thereunder in

exercise of powers conferred under Section 21 of the Act,

1957, in juxtaposition to the Railway Servants

(Discipline and Appeal) Rules, 1968, no doubt by Rule

132.1 of the the Railway Protection Force Rules, 1987

framed in exercise of powers under Section 21 the Railway

Protection Force Act, 1957, sub-rule (8) of Rule 3 of the

Railway Servants (Discipline and Appeal) Rules, 1968 is

mandated to be deleted, but in view of language of Rule-

132.1, the above modification shall have to be carried

out in the Rules, i.e. the Railway Servants (Discipline

and Appeal) Rules, 1968 by following due procedure as

envisaged. So far as other issues, viz. definition

contained in the Railway Protection Force Act, 1957 of

"force" as per Section 2(1)(a) and clause-(c) about

"member of the Force", clause-(f) about "superior

officer" and Section 4 about "Appointment and powers of

superior officers", the petitioner, in the capacity as an

Assistant Security Commissioner (retired), remains

undisputed. The contention of Mr.Gori about placement of

the Railway Protection Force Rules, 1987 before both the

House of Parliament as per correspondence dated 14 and

19th February 1991, also remains undisputed, but it does

not carry case of the respondents any further since no

deletion of Rule-3(1)(b) of the Railway Servants

(Discipline and Appeal) Rules, 1968 is made so far.

Therefore, on the above issue alone, we find

that so long as the above deletion of sub-rule(1)(b) of Rule-3 of the Railway Servants (Discipline and Appeal)

Rules, 1968 has not taken effect, viz. consequent to

amendment of Rule 132.2 of RPF Rules, the petitioner

could not have been subjected to disciplinary proceedings

by following procedure under Rule-9 of the Railway

Servants (Discipline and Appeal) Rules, 1968. Therefore,

exercise of powers by respondents of initiating

departmental proceedings by following procedure under

Rule 9 of the Railway Servants (Discipline and Appeal)

Rules, 1968 is without any basis in law and therefore, it

is illegal and unsustainable and the impugned orders

deserve to be interfered with in exercise of powers under

Article 226 of the Constitution of India. Thus, we have

no hesitation in allowing this writ petition under

Article 226 of the Constitution of India by quashing and

setting aside the orders impugned dated 06.08.2012 and

11.09.2012 passed by the respective respondents of

directing institution of departmental proceedings against

the petitioner and also the charge sheet.

The writ petition is allowed accordingly. Rule

is made absolute. No order as to costs.