Union of India v. Hayat Khan — 1979 DIGILAW 33 (PAT)

JUDGMENT Chaudhary Sia Saran Sinha, J. This second appeal by the appellant, Union of India is directed against the judgment dated 9.7.74 of the learned District Judge, Singhbhum at Chaibasa by which he set aside the judgment and decree of the Additional Munsif, Chaibasa passed in Title Suit no. 24 of 1971. 2. In view of the limited contentions raised before this Court, the relevant facts, which are more or less admitted, may briefly be stated. The respondent Hayat Khan was a confirmed member of the Railway Protection Force in the South Eastern Railway, be having been initially appointed as a Rakshak on 26.8.1958. In course of his duty on 12.3. 1967 he was posted at Chakradharpur. While posted there two allegations were levelled against him, namely, that he absented from duty without possession and indulged in smuggling 70 K.G. of rice. The Assistant Security Officer of the said railway embarked on a departmental enquiry against the respondent by submitting charge-sheet against him on 5.6.1967. The enquiry was entrusted to some junior officer of the Railway below the rank of Assistant Security Officer who submitted report to the Assistant Security Officer on 10.12.1967, opining that on the evidence on record the two charges framed stood proved against the respondent. Acting on this recommendation of the Inquiring Officer, the Assistant Security Officer by order dated 30.1.1968 removed the respondent from service with effect from 4.2.1968 on the specific ground that the two charges framed against him stood established. 3. The respondent took up the matter in appeal before the Security Officer of the Railway, the latter undisputedly being superior in rank to the Assistant Security Officer. The Security Officer set aside the order of removal passed by the Assistant Security officer by his order dated 8.5.58 and reinstated the respondent to his original post with effect from 15.5.1968. There is a post of Chief Security officer in the railway who is above in rank both from the Security Officer and the Assistant Security Officer. Acting suo motu, the Chief Security Officer, obviously in his revisional jurisdiction, by order dated 24.7.69 set aside the order of the Security Officer reinstating the respondent and restored the order of the Assistant Security officer removing the respondent from service. The result was that the respondent was again removed from service with effect from 25.7.69. This led-the respondent to institute Title Suit no. The result was that the respondent was again removed from service with effect from 25.7.69. This led-the respondent to institute Title Suit no. 24 of 1971, above mentioned on 2.8.1971. 4. The suit was contested by the appellant. In substance the trial court expressed the view that both the Assistant Security officer and the Chief Security officer were within their rights in passing the orders of removal dated 30.1.68 and restoring the said order by order dated 24.7.69 respectively. The result was that the trial court dismissed the suit of the respondent. 5. On appeal by the respondent the lower appellate court found that the order of the Assistant Security officer dated 30.1.68, attached with stigma as it was, and it having affected the right of the respondent in getting future employment, it was an order of dismissal and not an order of removal simpliciter and that being so the Assistant Security officer of the Railway went beyond his jurisdiction in imposing that penalty, He further found that the Chief Security Officer as well went beyond his jurisdiction while exercising his revisional powers in setting aside the order of the Security Officer and restoring that of the Assistant Security Officer. These orders of the domestic tribunals being without jurisdiction, the further finding of the District Judge was that the plaintiff respondent was entitled to the relief sought for by him in the suit. The result was that he set aside the judgment and. decree of the trial court and there by decreed the plaintiff's suit seeking the declaration that his removal from service was illegal and that he should be deemed to be continuing in service with all benefits and emoluments attached to his post. The defendant appellant has now carried the matter to this Court. 6. Three contentions were raised before this Court by Sri A.K. Chatterjee learned counsel for the appellant. The first was that the impugned order of the Assistant Security Officer merely amounted to removal of the respondent from service and as such he was within his rights to pass that order. The second contention was that under the provisions of the Railway Protection Force Rules, 1959, which rules are admittedly applicable to respondent, the Chief Security Officer was also within his rights to pass his order dated 24.7.69 referred to above competently. The third and the last contention raised by Mr. The second contention was that under the provisions of the Railway Protection Force Rules, 1959, which rules are admittedly applicable to respondent, the Chief Security Officer was also within his rights to pass his order dated 24.7.69 referred to above competently. The third and the last contention raised by Mr. Chatterjee was that there being a provision for appeal even against the order of the Chief Security Officer and the respondent having not availed of that remedy, the suit was not maintainable in the Civil Court. These contentions were resisted by the learned counsel for the respondent, Sri N.N. Roy. 7. No other contentions having been raised, I shall deal with these contentions one by one. The orders of removal against the respondent was passed in a departmental enquiry started against him for dereliction of duty and charge of smuggling which on their very face caried with them serious stigma against the respondent. In spite of the defence of the respondent to the contrary, the Inquiring Officer found these charges proved and his finding was accepted by the Assistant Security Officer and the impugned order dated 30.1.68 of the Assistant Security officer runs as follows :- "RSK 710 Hayat Khan of C.K.P. having been found guilty of the charge of serious misconduct detailed vide C/sheet No. DA/31-67/10429 dt. 5.6.67 is removed from service with effect. From 4.2.1968." Rule 41 of the Railway Protection Force Rules, 1959 (hereinafter referred to as the Railway Rules) lays down the different kind of penalties which can be imposed on a member of the force, namely, Rakshak and they are enumerated as dismissal, removal, compulsory retirement, reduction to a lower class etc. As to what is the distinction between removal and dismissal is well settled by now. It is sometimes noticed that the employer while passing orders having the effects of dismissal term them as removal for obvious purposes. This necessitates a critical examination of the order that is passed. In the case of S.R. Tiwari V. The District Board, Agra their lordships held that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. This necessitates a critical examination of the order that is passed. In the case of S.R. Tiwari V. The District Board, Agra their lordships held that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct, and it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order, though in the form merely of determination of employment, is in reality a cloak for an order of dismissal as a matter of punishment, the Court would not be debarred merely because of the form of the order in giving effect to the rights conferred by statutory rules upon the employee. As stated above, the order of the Assistant Security officer visits the respondent with stigma and his removal is based squarely on his misconduct and is this by way of punishment. Learned counsel for the appellant could not point me out any thing in the Railway Rules or any other rules of the Railway to show that there was no bar to the re-employment of an employee removed for his misconduct proved in a departmental enquiry. The removal of the respondent based as it is on his misconduct will ordinarily stand in his way of getting employment any where else. Judged In this light I have no hesitation at all in agreeing with the finding of the District Judge that the impugned order of the Assistant Security officer is an order of dismissal of the respondent from service and not an order of removal simpliciter. 8. Coming to the competency of the Assistant Security Officer to pass the impugned order. rule 43 of the Rules read with schedule II there of would show that the Assistant Security Officer has no powers to inflict the punishment of dismissal of any member of the railway force and this position was not disputed on behalf of the appellant. If the impugned order passed by the Assistant Security Officer amounts to dismissal, as it does, the Assistant Security Officer would not be competent at all to pass the said order and the same as rightly found by the lower appellate court would be without jurisdiction. If the impugned order passed by the Assistant Security Officer amounts to dismissal, as it does, the Assistant Security Officer would not be competent at all to pass the said order and the same as rightly found by the lower appellate court would be without jurisdiction. Thus the first contention raised by A.K. Chatterjee must fall. 9. Coming to the second contention of Sri Chatterjee, chapter 10 of the Railway Rules which comprises of rules 51 to 62, deals with appeal revision and petition. Rule 51 deals with appeal against order of suspension with which we are not concerned in the instant case. Rules 52 deals with appeal against order Imposing penalties. I shall deal in detail with rule 52 at a later stage while dealing with third contention raised by Sri Chatterjee. Rule 58 deals with the consideration of appeals. After laying down provisions for appeal and matters ancillary there to, rule 60 deals with revision. Sub-rule (1) of rule 60 lays down that any authority superior to the authority making the order may on its own motion, or otherwise revise the order (whether original or appellate) passed by such lower authority. The proviso to sub-rule (1) of rule 60 lays down a limitation which as conceded, is not relevant for the purpose of this appeal. Sub rule (2) of rule 60 runs as follows :- "The revising authority may remit, vary or enhance the punishment imposed, or may order a fresh enquiry or the taking of further evidence in the case as it may consider necessary." Sub-rule (3) of rule 60 while referring to the provisions of sub-rule 58 states that the provisions of rules 58 would apply so far as may be to such order in revision. The provisions of three sub-rules of rules 60, as they stand, appear to be complementary to each other and none of them can be read in isolation. While the provision of rule 58 relating to consideration of appeal have been made applicable to revision the same stands controlled by the words "so far as may be" to such order in revision. The powers of the revising authority have specifically been laid down in sub-rule 60 and it consist of three parts. The revising authority has been given the power either to remit the punishment or vary the same or to enhance it. The powers of the revising authority have specifically been laid down in sub-rule 60 and it consist of three parts. The revising authority has been given the power either to remit the punishment or vary the same or to enhance it. He has also the powers to order fresh enquiry or the taking of further evidence as considered necessary by him. The order of the Assistant Security Officer passed duly in an appeal, it was rightly conceded by Sri Chatterjee that the basic order of which the Chief Security Officer took cognizance suo motu was the order of the Security Officer, by which he set aside the order of removal of the respondent and reinstated him. The Security officer having not imposed any punishment on the respondent at all, there was no question of the Chief Security Officer remitting or varying or enhancing any punishment to enable him to exercise his revisional jurisdiction under sub-rule (2) of rule 60. Obviously he did not order for any fresh enquiry or the taking of further evidence Thus the impugned order of the Chief Security Officer was beyond his competence and consequently without jurisdiction. The contention of Sri A.K. Chatterjee, however, was that since the Chief Security officer was a revising authority; he should be deemed to possess even such powers as are beyond the scope of sub-rule(2)of rule 60 and incidentally he made reference to the revisional powers of this Court in respect of civil and criminal matters. It is not possible to accept this contention of Sri Chatterjee. Once the revisional powers flow from the Rules they have to be exercised within the four corners of the said rules and not beyond them. In view of all these, in agreement with the lower appellate court. I hold that the Chief Security Officer went beyond his powers while passing the impugned order dated 24.7.69 and thus acted in excess of the jurisdiction conferred on him. Thus the second contention also fails. 10. This takes us to the third contention of the learned counsel for the appellant. This contention too has to be negatived on the two grounds. Thus the second contention also fails. 10. This takes us to the third contention of the learned counsel for the appellant. This contention too has to be negatived on the two grounds. Undisputedly no such plea about the maintainability of the suit on this score was taken in either of the two courts below and it may be too late for the appellant to raise any such plea for the first time in this Court in second appeal. 11. Secondly sub-rule (l) of rule 52 states that a member may appeal against an order imposing upon him any of the penalties in rule 41 to the authority immediately superior to the authority imposing the penalty. There is a note to this rule which states that appeals against the order of the Chief Security Officer shall lie to the Inspector General and against this order w the Central Government. The sub rule (2) of rule 52 provides as follows:- "There shall be no second appeal. But when the appellate authority imposes a penalty higher than the one appealed against, an appeal shall lie to the authority next superior to the appellate authority only if the penalty imposed by the appellate authority is higher than what "was within the competence of the authority which imposed the original penalty. The respondent went in appeal before the Security Officer and he succeeded there and was reinstated. Any appeal by him against the order of the Chief Security Officer would have thus been incompetent particularly been the Railway rules do not provide any appeal against orders passed in revision. This contention thus 81 so fails. 12. The three contentions raised before this Court having been negatived, this appeal must fail and it is, therefore, dismissed. In the facts and circumstances of this case, however, there will be no order for costs of this second appeal and the parties shall bear their own costs of this second appeal. I may however, like to make it clear that if after implementing the decree passed by the lower appellate court, which is hereby confirmed, the appellant is advised to proceed against the Respondent afresh, of course, in accordance with law and the railway rules, this order of this Court will not stand in the way of any such action. Appeal dismissed.