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Radha Mohan Prasad, J.—This writ petition is directed against the orders contained in Annexure 13, whereby and where under the advice of the Union Public Service Commission (hereinafter referred to as ''the Commission'') has been conveyed to the Secretary to the Government of India, Railway Board, Ministry of Railway on the departmental proceeding against the petitioner wherein it has been considered that the ends of justice would be met in this case if the entire monthly pension otherwise admissible to him (the petitioner) is withheld on a permanent basis and, further, the gratuity admissible to him be released and Annexure 14 conveying that the President, on consideration of the facts and circumstances of the case and also taking into account all other aspects relevant to the case, has concluded that the ends of justice would be met in this case if the entire monthly pension otherwise admissible to the petitioner is withheld on a permanent basis and, further, the gratuity admissible to him should be released. The petitioner has also challenged the validity of the appellate order passed by the Chief Security Commissioner, R.P.F., Eastern Railway, contained in Annexure 18, saying that the delinquent has duly received all other retirement benefits like gratuity and provident fund as per the order of Hon''ble President of India and it is not within his competence to alter the order of the Hon''ble President of India in any way and thus rejecting and disposing of the appeal. In short, the relevant facts are that only three months before the date of superannuation of the petitioner on 31.8.1993 he was detailed for cash safe escorting duty Ex-BRKA to GMO by 132 Dn. Passenger train along with Naik Late Budhan Shaw and Constable T.C. Singh on 27.5.1993. The petitioner being the senior most officer was the leader of the team. The allegation is that he did not board in Guard''s lobby which was close to luggage in which cash safes were lodged, despite availability of space. He rather boarded in SLR No. ER/7834 and got mixed up with passengers and thereby facilitated the commission of dacoity in the said luggage at Arigada B. H. Thus, he failed to maintain proper alertness by standing near doors to take prompt action against miscreants who fled away with Railway cash of Rs. 2,28,677/- and vouchers for Rs. 46,71,403/- excluding earning of Kamandi Railway Station along with 29 rounds of ammunition of Constable T.C. Singh and Naik Late Budhan Shaw. It is alleged that the petitioner was sitting just near the east window and when the criminals threw bombs, he failed to react and did not fire at them despite availability of Rifle No. P-14/96003 with 25 rounds with him issued by command certificate no. 30(5)93 dated 27.5.1993. It is further alleged that while the dacoity was committed in the luggage compartment of SLR No. ER/7834 at GMO/end hardly 10 meters away from him and Late Naik Budhan Shaw was crying for help, who was in Guard''s lobby next to him, he despite availability of rifle with ammunitions did not show proper courage to tame at the criminals, rather he concealed himself at Barka/end of the said passenger compartment of S.L.R. and did not fire at the criminals which tantamount to an act of cowardice. It is also alleged that the petitioner was senior most among three staff detailed for cash safe escorting duty by train No. 132 Dn. Ex. BRKA to GMO on 27.5.1993 failed to properly command his juniors by keeping them in one group in Guard''s lobby next to the luggage compartment in which cash safes were loaded. Thus, he failed to remain in one group for better protection of cash safes and prove closer watch over cash safes from hitch. He also failed to ask for safety chains which were available with HC/R.B. Rawat who issued arms and ammunition and thereby he committed offence of violation of duty under rule 147(i) of the Railway Protection Force Rules, 1987 (hereinafter referred to as ''the Rules'').
Accordingly, a departmental proceeding was initiated against the petitioner by serving charge sheet dated 26.6.1993. On 1.7.1993 the petitioner pleaded not guilty to the charges leveled against him. He, however, claimed to have demanded documents. The enquiry was to be taken up on 10.7.1993 when inspection of documents etc. was permitted and 19.7.1993 was fixed to examine the prosecution witnesses in pursuance of Annexure 4 in which it was made clear that in case of failure to attend the departmental enquiry at the appointed date, time and place, the enquiry will be conducted ex parte. On 19.7.1993 his co-delinquent Constable T.C. Singh together with all witnesses were present and as such, the witnesses were examined in chief and the statement was left open for the cross-examination by the delinquent Naik.
In all six prosecution witnesses were examined. The petitioner was absent and for a considerable time his resumption was awaited and lastly 18.8.1993 was fixed for the enquiry, about which an intimation was served on him at his native place. On this date he appeared. The concerned witnesses were present but he was reluctant to allow the enquiry to proceed under the pretext that he is not feeling well and he should be given some more time to defend his case. It is also alleged that he was reluctant to receive any paper or to cross-examine any of the witnesses which, according to the enquiry officer, was nothing but a dilatory tactics adopted by him to waste the time as he was to superannuate on 31st August, 1993. A decision, therefore, was taken to proceed ex parte, for which a notice was served earlier to charged party. However, according to the petitioner, he protested against the alleged bias action of the enquiry officer. He claims to have produced the certificate of Railway Doctors about his sickness but the enquiry was completed on 26.8.1993 and a report was submitted, vide Annexure 12. The enquiry officer on consideration of the evidence on record came to the conclusion that the delinquent petitioner is guilty of the charges levelled against him.
The enquiry report was considered by the disciplinary authority (Ministry of Railways) and according to the petitioner, on considering the circumstances of the case and other deficiencies in the provision of security and the overwhelming strength of the criminals armed with superior weapons and his spotless service record found it sufficient to propose a tentative suspension of 25% in pension for two years only and submitted the same to the Commissioner but the Commissioner ignoring the entire suggestion referred the matter to the Commission, which considered that the ends of justice would be met if the entire monthly pension otherwise admissible to the petitioner be withheld on a permanent basis and, further, that the gratuity admissible to him be released and advised accordingly, vide Annexure 13. Thereafter the matter was considered by the President, who concluded that the ends of justice would be met if the entire monthly pension otherwise admissible to him is withheld on a permanent basis and, further, the gratuity admissible to him should be released, which has been communicated to the petitioner, vide Annexure 14.
Thereafter the petitioner filed represervation on 26.4.1996 to the Chief Security Commissioner, Easterh Railway, Calcutta, vide Annexure 15 and appeal to the President, vide Annexure 16, against withholding of his monthly pension under the provisions of rule 18 of the Railway Servants (Discipline and Appeal) Rules, 1968 (hereinafter referred to as the Discipline & Appeal Rules). However, in the year 1997 he moved this Court by filing writ petition, bearing C.W.J.C. No. 1906 of 1997, but after some argument, the same was sought to be withdrawn on the ground that the statutory appeal is pending before the appellate authority and this Court, vide order dated 3.11.1998 (Annexure 17) allowed the prayer with the liberty to pursue the appeal. As it related to pension, the Court directed the appellate authority to dispose of the appeal in accordance with law. The writ application was, accordingly, dismissed as withdrawn. Thereafter the Chief Security Commissioner has passed the aforementioned order, contained in Annexure 18, saying that it is not within his competence to alter the order of the Hon''ble President of India and thus rejecting and disposing of the appeal.
Initially, the learned counsel for the petitioner contended that the disposal of the appeal, vide Annexure 18, is not in accordance with law and the petitioner has been deprived of his legal right to regular and lawful disposal of the appeal. According to the learned counsel for the petitioner, despite the order of this Court (Annexure 17), the appeal has not been disposed of on merit. In fact, the Chief Security Commissioner has disposed of the appeal simply by saying that it is not within his competence to alter the order of the Hon''ble President of India in any way, which is not proper.
On the other hand, learned Additional Standing Counsel appearing for the respondents has submitted that in fact, no appeal lies against the order of punishment imposed by Hon''ble President of India. In this regard he referred to the provisions contained in rule 17 of the Discipline & Appeal Rules, which is the provision relating to orders against which no appeal lies. The said provision read as follows :-
Orders against which no appeal ties:-Notwithstanding anything contained in this part, no appeal shall lie against-
(i) any order made by the President;
(ii) any order of an interlocutory nature or of the nature of step-in-aid of the final disposal of a disciplinary proceedings, other than an order of suspension;
(iii) any order passed by an inquiring authority in the course of an inquiry under Rule 9.
It is, thus, submitted that as the order of punishment, contained in Annexure 14, was passed by the Hon''ble President, the same is not appeasable and was final.
On the other hand, learned counsel for the petitioner has submitted that rule 17 of the Discipline & Appeal Rules will have no application to the facts and circumstances of the present case. It is submitted that under rule 18 a railway servant is entitled to prefer an appeal against an order reducing or withholding the pension or denying the maximum pension admissible to him under the rules if he is a pension able railway servant. In this regard he referred to the provisions contained in clause (c) of sub-rule (v) of rule 18, which is as follows:-
Orders against which appeal lies :-Subject to the provisions of Rule 17, railway servant may prefer an appeal against all or any of the following orders, namely :-
x x x x x
(v) an order :-
x x x x x
(c) reducing or withholding the pension or denying the maximum pension admissible to him under the rules if he is a pension able railway servant;
It is submitted that the clarifications of the said Rules also show that the railway servants have got a right to prefer an appeal against an order which denies or varies to his disadvantage his pay, allowances, pension, provident fund benefits, service gratuity or other conditions of service as regulated by rules or agreement and also against an order reducing or withholding the pension or denying the maximum pension admissible to him under the rules if he is a pensionable railway servant. As such, according to him, the appeal preferred by the petitioner against the order, contained in Annexure 14, was maintainable and it ought to have been disposed of on consideration of the points raised therein.
This Court is unable to accept the said submission of the learned counsel for the petitioner. It is true that rule 18 of the Discipline & Appeal Rules provides that the railway servant may prefer an appeal against an order reducing or withholding the pension or denying the maximum pension admissible to him under the rules if he is a pension able railway servant but it is subject to the provisions of rule 17 which provides that no appeal shall lie against any order made by the President. In the present case, the impugned order, contained in Annexure 14, has been passed by the Hon''ble President of India and as such, the same was not an appealable order in view of the bar under rule 17. The provision for appeal, contained in rule 18, shall only be attracted to the cases which are not covered by rule 17, which provides about the orders against which no appeal lies. As such, this Court does not find any merit in the contention of the petitioner that the appellate order is not sustainable. In fact, the Chief Security Commissioner has rightly disposed of the appeal by saying that it was not within his competence to alter the order of Hon''ble President of India in any way in terms of rule 9 of the Railway Services (Pension) Rules, 1993 (hereinafter referred to as the ''Pension Rules'').
Learned Additional Standing Counsel has rightly contended that, in fact, the Hon''ble President of India while passing the impugned order (Annexure 14) has exercised the power under rule 9 of the Pension Rules as the petitioner had superannuated on 31.8.1993 i.e., before the said order was passed. It is submitted that under rule 9(1) of the Pension Rules the President has the right of withholding or withdrawing a pension or gratuity, or both, either 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 pecuniary loss caused to the Railway, it, in any departmental or judicial proceedings, the pensioner in found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement provided that the Commission is to be consulted before any final orders are passed. The departmental proceedings referred to in sub-rule (1) if instituted while the railway servant was in service whether before his retirement or during his re-employment shall after the final retirement of. the railway servant is deemed to be proceeding under the said rule and is to be continued and concluded by the authority by which they were commenced in the same manner as if the railway servant had continued in service. Under proviso to sub-rule (2) where the departmental proceedings are instituted by an authority subordinate to the President, that authority is to submit a report recording its findings to the President. Admittedly, the departmental proceeding against the petitioner was instituted before his retirement and as such, the same shall be deemed to be proceeding under sub-rule (1) of rule 9 of the Pension Rules after his retirement and the same has thus been continued and concluded after consultation with the Commission and passing of the final order by Hon''ble President. It is thus submitted that no appeal lies against the order of the President.
Learned counsel for the petitioner, in reply, submitted that, in fact, the impugned punishment are covered by rules 148 and 149 of the Railway Protection Force Rules, 1987. Rule 148 gives description of punishment and rule 149 provides for other minor punishments. It is submitted that under rule 149.1 enrolled members of the Force, being railway servant are also to be subject to the minor punishments contained in clauses (a) and (b) which include reduction or withholding of the maximum pension admissible under the Pension Rules for a specified period and Chapter XIII of the said Rules provides the provisions relating to appeals and revision. According to the learned counsel for the petitioner, under rule 212.1 an enrolled member may appeal against an order imposing upon him any of the punishments specified in rules 148 and 149 to the authority immediately superior to the authority imposing the punishment and, thus, according to him, the petitioner was legally entitled to maintain the appeal preferred before the Hon''ble President of India.
This Court does not find any substance in the submission of the learned counsel for the petitioner. The appeal against the order passed by the Hon''ble President of India, contained in Annexure 14, in my opinion, is wholly misconceived and, therefore, this Court does not find any infirmity in the order disposing of the appeal, vide Annexure 18. Rule 214 provides for submission of appeals and under the said provision every appeal, whether the appellant is still in the Force or not, is to be submitted to the authority before the authority appealed against. However, under rule 215.1 the authority which made the order appealed against may withhold the appeal if it is an appeal which made against the order from which no appeal lies besides for other reasons mentioned therein and the appellant is to be informed about the same. Rule 17 clearly provides that no appeal lies against any order made by the President. As in the present case, the so called appeal was preferred against the order made by the President, the authority under rule 215.1 had rightly earlier withheld the appeal but, however, in view of the order of this Court on the writ petition filed by the petitioner, referred to above, he had no option but to dispose of the appeal by the order, contained in Annexure 18. As such, this Court does not find any infirmity in the said order.
Learned counsel for the petitioner then submitted that in passing the impugned order (Annexure 14) the President has exercised the power under rule 9 of the Pension Rules. As such, according to him, the action under the said provision is permissible only where the charges are of grave misconduct or negligence during the period of service. According to him, in the present case, charges would show that they are not of grave misconduct. It is not alleged that there was any deliberate inaction on the part of the petitioner in protecting Railway cash and vouchers besides earning of Kamandi Railway Station and 29 rounds of ammunition of Constable T.C. Singh and Naik Late Budhan Shaw. According to the learned counsel for the petitioner, the two criminals were caught after hot chase and the rifle looted from Late Naik Budhan Shaw was recovered but the cash was taken away by the rest of the criminals. A criminal case of dacoit and loot was lodged in which the petitioner was also shown as witness. It is submitted that the petitioner did his best to protect the railway property and the life of the deceased, but the department preferred to suspend him and set up a departmental enquiry by issuing a chargesheet against him and the impugned punishment has been awarded without affording reasonable opportunity to him.
Learned Additional Standing Counsel appearing for the respondents has submitted that the petitioner, in fact, is not entitled to contest the finding of the enquiry officer as he was afforded all reasonable opportunities, including for inspection of the documents in addition to the copies of the documents supplied to him, but he absented and even on the date he was present did not co-operate in the conduct of the enquiry. It is submitted that, in fact, his attempt was that his superannuation date i.e. 31.8.1993 may pass during pendency of enquiry, which is also evident from the fact that he kept sitting in the enquiry on 18.8.1993, but did not cross-examine the present witnesses or sign statement of the witnesses. The enquiry officer finding that his inaction was nothing but only a dilatory tactics proceeded ex parte on the basis of the evidence on record and found him guilty of the charges leveled against him. It is thus submitted that although the charges are grave, but still Hon''ble President of India took lenient view and ordered only for withholding of pension and directed for payment of gratuity and other retiral dues.
This Court finds substance in the submission of the learned Additional Standing Counsel. The charges against the petitioners, which are mentioned in the enquiry report (Annexure 12), are grave so much so that when the criminals attacked, he failed to react and fire at them, despite availability of arms and ammunition and, further, that when Naik Late Budhan Shaw was crying for help, he concealed himself near BRKA/end of SLR, which was an act of cowardice and an offence under rule 147(viii). The other charge that he, being a senior most officer, did not properly command his contingent for obtaining safety chains and boarding in Guard''s lobby in one group and thereby committed an offence of violation of duty under rule 147(1) of the Rules also amounts to gross negligence. All these charges have been found proved by the enquiry officer. Under such circumstances, this Court finds substance in the submission of the learned Additional Standing Counsel that the petitioner having knowingly allowed the proceeding to continue ex parte cannot now assail the finding of the enquiry officer on the ground of denial of reasonable opportunity, particularly when he has failed to show any perversity in the said finding on the basis of the evidence on record. Accordingly, this Court does not find any merit in the writ petition and the same is dismissed. However, in the facts and circumstances, there shall be no order as to costs.