Union Of India Thru.Dig Cum Chief Security Comm. Railway Protection Special Force New Delhi & Ors. vs Ravi Prakash Meena

Heard learned counsel appearing on behalf of the parties.

This is a bunch of appeals filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 arising out of similar judgments dated 18.01.2023 passed in similar writ petitions bearing Writ-A No. 28653 of 2019 (Ravi Prakash Meena Vs. Union of India & Others), Writ-A No. 28636 of 2019 (Kunverjeet Singh Vs. Union of India & Others) and Writ-A No. 28659 of 2019 (Mohit Kumar Vs. Union of India & Others).

We have taken up Special Appeal No. 52 of 2023 as the leading appeal. Facts and issues involved in all the appeals are similar. Impugned judgments are also similar.

The facts of the case, in brief, are that disciplinary proceedings were initiated against the respondent, which resulted in a minor punishment being imposed vide punishment order dated 20.08.2018 passed by the disciplinary authority, which was for withholding of next increment for a period of one year with cumulative effect. The authority superior to the disciplinary authority, who happened to be the D.I.G. cum C.S.C./R.P.S.F., in exercise of powers under Rule 219.4 of the Railway Protection Force Rules, 1987 [hereinafter referred to as 'the Rules, 1987'], called for the records and formed an opinion, as contained in his order dated 11.07.2019, that given the seriousness and gravity of the allegations against the delinquent employee, a minor punishment was not justified which is required to be enhanced, therefore, he issued a show cause notice to the respondent giving him an opportunity to explain as to why higher punishment should not be imposed on him for passing the comments, as referred in the charge sheet issued earlier, on social media platforms, which ratifies and praises the act of murder of a superior officer on duty, by his subordinate. It is informed that a response was submitted by the respondent, which according to the appellants before us, was considered, and thereafter, another order was passed on 24.09.2019 proposing to hold an inquiry for imposition of major punishment against the respondent under Rule 153 of the Rules, 1987, accordingly, charges were framed by the same order which were issued to the respondent. It is this order dated 24.09.2019 containing the decision to initiate disciplinary proceedings for imposition of a major punishment, framing the charges and issuing the same to the respondent, which was put to challenge by him by means of the writ petition bearing Writ-A No. 28653 of 2019 referred hereinabove. The other two writ petitions also involve similar facts and issues.

The Writ Court has allowed the writ petition on the ground that under Rule 219.4, such decision could not have been taken beyond a period of one year as was prohibited under the first proviso to the aforesaid rule. Secondly, learned Single Judge was of the opinion that Clause (b) of Rule 219.4 has to be read in reference to the power given by Clause (a) to (c) of Rule 219.4. The same can only be in support of the aforesaid rules and cannot enhance the power of the superior authority to the extent that it may proceed to hold inquiry at its own level which is not permissible under any canon of the said rules. The Writ Court opined that superior authority cannot hold an inquiry at its own level but can only look into the order passed by the disciplinary authority. Clause (b) of Rule 219.4 cannot be read so exhaustively as to permit the superior authority to hold a de novo inquiry, totally ignoring the inquiry already conducted and the order passed by the disciplinary authority. It opined that even otherwise, both the orders are passed beyond the period of one year which cannot be passed as barred by the first proviso to the aforesaid Rule.

The contention of the appellants' Counsel was that the proceedings for enhancement of punishment and fresh inquiry were initiated within a period of one year from the date of the order of punishment which was dated 02.08.2018, as, the show cause notice was issued to the respondent on 11.07.2019, after forming a prima facie opinion in this regard, which amounted to initiation of the process as referred in the first proviso to Rule 219.4 of the Rules, 1987. Secondly, he submitted that the interpretation of Rule 219.4 by the Writ Court is not sustainable. The Rule permitted the superior authority to direct any other authority to make such further inquiry as may consider proper in the circumstances of the case and these words appearing in Clause (c) of Rule 219.4 cannot be given a restrictive meaning but should be understood and applied so as to advance the object which is sought to be achieved. In this regard, he also referred to the power of the superior authority to enhance the punishment as contained in Clause (b) of the aforesaid Rule. He also invited our attention to Rule 151.1, according to which, the superior authority is included in the definition of disciplinary authority. For all these reasons and also relying upon a Division Bench judgment of the Delhi High Court in Vikas Vs. Union of India & Others, reported in 2020 (6) SLR 126, he submitted that the Writ Court judgment is not sustainable.

Learned counsel appearing for the respondents, on the other hand contended, that for considering the application of first proviso to Rule 219.4, it is the order dated 24.09.2019 which is to be taken into consideration and not the earlier order dated 11.07.2019. Secondly, the power to initiate disciplinary proceedings, which is the stage of issuance of charge sheet, is vested only with the disciplinary authority and not with the superior authority. In this regard, he invited our attention to Rule 153.4 of the Rules, 1987. It is also his contention that such initiation of disciplinary proceedings cannot be done by the superior authority nor can the said superior authority issue a charge sheet. The other argument advanced by the respondents' counsel was that the enhancement spoken of in Clause (b) of Rule 219.4 means an enhancement within the contours of the minor punishment as defined in the Rules and not beyond it, in the sense that, from minor punishment one cannot enhance it to major punishment.

We have considered the submissions of the learned counsel for the rival parties and perused the records. Rule 219.4 of the Rules, 1987 reads as under:-

The first proviso to the aforesaid Rule says - "that no action under this sub-rule shall be initiated after the expiry of one year from the date of the order aforesaid", meaning thereby, any action, as mentioned in Clauses (a) to (c) of Rule 219.4, can be initiated only within a period of one year from the date of the order of punishment. In this case, the order of punishment is dated 02.08.2018. When we go through the scheme of the Rules, we find that initiation spoken of in first proviso is of the proceeding as envisaged in Rule 219.4. Rule 219.4 empowers any authority superior to the authority making the original order, either on its own motion or otherwise, to call for the records of a inquiry and revise any order made under these Rules and he may: (a) confirm, modify or set aside the order ; or (b) confirm, enhance, reduce or set aside the punishment imposed by the order, or impose any punishment where no punishment has been imposed ; or (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case ; or (d) pass such other orders as it may deem fit. The D.I.G. cum C.S.C./R.P.S.F. is an authority superior to the Commandant, who had passed the order of punishment on 02.08.2018. The said superior authority formed an opinion on 11.07.2019 that the punishment imposed by the disciplinary authority was not commensurate with the gravity of the allegations, which were very serious, and according to him, they warranted a higher punishment, therefore, he formed an opinion that the minor punishment which had been granted needs to be enhanced, and in this context, he issued a show cause notice as was mandatory under the third proviso to the aforesaid Rule 219.4, which provides that in case it is proposed to enhance punishment further, the aggrieved member shall be given an opportunity to show cause either orally or in writing as to why his punishment should not be enhanced, therefore, the initiation of the proceedings under Rule 219.4 is by the order dated 11.07.2019 by which an opinion was formed by the superior authority in terms of the aforesaid Rule that a higher punishment was required, which necessarily and consequentially, required a show cause notice to be issued. Once a show cause notice was issued based on such opinion, the proceedings under Rule 219.4 stood initiated for the purposes of the first proviso to Rule 219.4 and therefore, the contention of learned counsel for the respondent to the contrary, is not acceptable and is rejected. In view of the aforesaid discussion, one of the grounds / findings on which the writ petitions have been allowed i.e. the proceedings were not initiated within the time limit prescribed by the first proviso to Rule 219.4 is factually incorrect and is not sustainable. At this stage, we are informed by learned counsel for the appellants that in the two connected appeals, appeals as prescribed against the punishment order, had also been preferred, therefore, the period of one year mentioned in the first proviso to Rule 219.4 would get enhanced by the contents of the second proviso to the same Rule which is an additional factor in favour of the appellants. We may in this very context consider the argument of the learned counsel for the respondent that the enhancement referred in Clause (b) is, in fact, an enhancement within the contours of the punishment awarded i.e. if the punishment is a petty one, any other petty punishment could have been awarded but not a higher punishment in the form of a minor punishment or a major punishment, so on and so forth, meaning thereby, as in this case, if one of the several minor punishments enumerated in the Rules, 1987 had been imposed and the superior authority wanted to impose a higher punishment then he could impose any other punishment under the category of minor punishment but could not have imposed a major punishment. This argument has been advanced only to be rejected.

In this regard, we have gone through the Rules of 1987 and find that the punishments have been categorized under Chapter XII heading 'Disciplinary and Penal Punishments'. They have been categorized under Rule 148 to 149.1 which read as under:-

On a perusal of the prescription of punishments, we find that there is a broad categorization of punishments into Major punishments, Minor punishments, Petty punishments and other minor punishments. While there is no sub-categorization within the broad head - Major punishment; Minor punishment and Petty punishment, meaning thereby, for example within the category of punishments, there is no further categorization as to which is a lesser punishment and which is a higher punishment, nevertheless, likewise, there is no sub-categorization within the minor punishment as to whether if any such punishment is lesser punishment and the other is higher punishment. In these circumstances, in our understanding, enhancement of punishment would include a situation where the superior authority forms an opinion, justifiably so, that instead of a minor punishment, a major punishment is to be imposed, as in this case. The contention to the contrary is therefore, rejected. Within a category of punishment, there could be less severe punishment viz-a-viz a more severe punishment, say for example, under minor punishments, the next increment being withheld only for one year without cumulative effective and next increment being withheld for one year with cumulative effect, would obviously be two different punishments within the same category having different effect, the latter could be termed more severe than the other, but it does not mean that the word 'enhanced' used in Clause (b) of Rule 219.4 does not permit enhancement of a punishment from a 'minor punishment' to a 'major punishment'. Such an understanding and interpretation of the Rule would be against the very scheme and object sought to be achieved. Enhancement can be within the category of minor punishment, so to say, or from minor punishment to major punishment. There is no such embargo in Rule 219.4 as suggested by counsel for respondent, therefore, the contention of learned counsel for the respondents that such enhancement can be only within the category of punishment as imposed by the disciplinary authority is not sustainable.

As regards, competence of the superior authority to initiate the disciplinary proceedings himself and issue a charge sheet, we have perused Rule 153.4 of the Rules, 1987 on which heavy reliance was placed by learned counsel for the respondent, and, we find that essentially the said Rule pertains to initiation of disciplinary proceedings and issuance of charge sheet originally, i.e. at the initial stage, by the disciplinary authority. The Disciplinary authority has been defined and explained in Rule 151.1 as under:

Apparently, as per definition of the disciplinary authority, it includes any authority superior to such authority, meaning thereby, any authority superior to the disciplinary authority, can also act as disciplinary authority thus, ipso facto, he can also exercise the powers vested by Rule 153.4 of the Rules, 1987. In the case at hand, it is not in dispute that the D.I.G. cum C.S.C./ R.P.S.F. is an authority superior to the disciplinary authority who was the Commandant, therefore, the superior authority is also a disciplinary authority and he can very well initiate disciplinary proceedings and also issue a charge sheet, and in that eventuality, the provisions of Rule 153.4 will apply at the level of the superior authority and the contention of the counsel for the respondent to the contrary, is not acceptable and is therefore, rejected. In view of the aforesaid, the contention of the counsel for the respondent do not hold ground nor can we sustain the findings / observations of the Writ Court on the same lines.

We are of the opinion that the observations and reasoning given by the Writ Court as regards the Rule position and authority of the superior authority, is contrary to the provisions contained in Rule 219.4 and the object for which the said provision has been inserted. The object of the said provision is to vest the superior authority with a sort of revisional power, wherein he can revise any order made under the Rules, such as the one at hand where a minor punishment was imposed and can take any of the actions as envisaged in Clauses (a) to (d) of Rule 219.4, subject to the provisos thereto. In the case at hand, the disciplinary authority called upon the respondents to show cause as to why a higher punishment be not imposed and they responded to the same. Thereafter, the disciplinary authority issued the order dated 24.09.2019 initiating disciplinary proceedings for imposition of a higher punishment i.e. a major punishment under Rule 153 of Rules, 1987, framed the charges and issued the same to the respondents so that they may respond and further inquiry may be held. It is this very order dated 24.09.2019 which has been quashed. We are of the considered opinion that, in principle, the superior authority was entitled to enhance the punishment imposed by the disciplinary authority under Clause (b) of the Rule 219.4, and was also entitled under Clause (c) thereof to either remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case. The words 'further inquiry' used in the second part of Clause (c) is to be given a wide meaning and the words are wide enough to include a situation where the superior authority forms an opinion under Rule 219.4 that the punishment imposed is not commensurate with the gravity of the charges leveled against the respondent-employee, who is liable to be imposed a higher punishment, for which, in a case such as the one at hand, where from a minor punishment the proposal is to impose a higher punishment and a separate procedure is prescribed for the same, apart from the show cause notice required to be issued under the third proviso, such superior authority in view of Rule 151.1 read with Rule 153.4 is entitled to take a decision to initiate such inquiry / proceedings for imposition of major punishment and for that purpose to frame and issue a charge sheet also for such inquiry being conducted. Clause (c) would include such a situation also, wherein, the superior authority forms an opinion that a major punishment may be required to be imposed for which a fresh inquiry may be required, as has been ordered in this case. The decision of the superior authority, in principle, fell within the contours of Rule 219.4. We may also put it on record that withholding of next increment with cumulative effect is a minor punishment under Rule 148.3 in the Rules of 1987.

However, having said so, we find that there is a lapse committed by the superior authority, that is, once he had called upon the delinquent employee to show cause as to why higher punishment should not be imposed on him and the respondent submitted his response to the same, then the least that was required to be done in keeping with the principles of natural justice, as also, the spirit of Rule 219.4 is that the said response should have been considered before passing the order dated 24.09.2019, and a decision should have been taken finally that such proceedings for imposition of major punishment are required and after taking such decision, may be, by the same order, such fresh proceedings could have been initiated. This has not been done. On a reading of the order dated 24.09.2019, we find that there is no such decision, taking into consideration, the representation submitted by the respondent-employees in terms of the show cause notice dated 11.07.2019. We asked the counsel for the appellants to enlighten us in this regard from the records, but he could not show any such decision from the record, therefore, while the superior authority was well within his rights under Rule 219.4 to proceed as he did by issuing the show cause notice dated 11.07.2019 but he has faltered in not considering the representations and in not taking a decision, as referred hereinabove, but has straightaway passed the order dated 24.09.2019 which only for this lapse cannot be sustained. This will, therefore, require a fresh decision to be taken by the said superior authority.

A question could be raised as to whether passing of such an order now after so many years would not be hit by the first proviso to Rule 219.4? We are of the considered opinion that it will not be so because it speaks of initiation of proceedings, which in this case took place within the period of one year vide issuance of the show cause notice dated 11.07.2019, as already discussed earlier. The first proviso does not say that the final order should have been passed within the one year but it only says that the proceedings should have been initiated under Rule 219.4 within a period of one year, which already stands satisfied.

In view of the above, while we do not find any merit in the submissions of the learned counsel for the respondent nor in the reasoning given by the Writ Court in its judgments dated 18.01.2023 passed in similar writ petitions bearing Writ-A No. 28653 of 2019, Writ-A No. 28636 of 2019 & Writ-A No. 28659 of 2019 which we set aside. We are of the opinion that for the reasons given hereinabove, the orders dated 24.09.2019 cannot be sustained and are also liable to be set aside with liberty, however, to the superior authority to take a fresh decision in light of the observations made hereinabove. We, accordingly, set aside the order dated 24.09.2019 and allow all the three writ petitions in part.

The appeals are also allowed but only in part, as aforesaid.