Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 360 (CAL)

Sudhir Kumar Singh v. Union of India

2016-04-18

SANJIB BENERJEE

body2016
JUDGMENT : There are two aspects to this petition: the first being a grievance that the petitioner remains suspended from the Railway Protection Force though the charge was not furnished to him within a period of thirty days from the date of suspension; and, that the charge-sheet dated September 8, 2015 refers to a preliminary inquiry report but does not cite the author of the report and others named in the report as relevant witnesses. 2. The Union says that following the incident of the petitioner attacking a colleague with a country-made revolver, a preliminary inquiry was directed to be conducted and the petitioner was placed on suspension with effect from March 17, 2014. The Union says that the petitioner dodged the preliminary inquiry and stayed away without any reason for the period of nearly a year. The Union suggests that it is inconceivable that the petitioner actively delays the preliminary inquiry and the consequent issuance of the charge-sheet, but the petitioner will rush to court to complain of the extended period of suspension which was a result of the petitioner’s antics. 3. The petitioner, however, refers to Rules 117 and 141 of the Railway Protection Force Rules, 1987 to suggest that the Railway Rules would apply in matters not specifically provided for by the said Rules of 1987. According to the petitioner, the Railway Servants (Discipline and Appeals) Rules, 1968 require a review of a suspension after 90 days and for enhanced subsistence allowance at the rate of 75% of the regular salary upon the period of suspension being extended. The petitioner claims that if the matter is not reviewed within 90 days of the suspension, the order of suspension would be deemed to have been revoked. 4. Rule 117 of the said Rules prescribes generally that in respect of matters not covered by the said Rules of 1987, “the provisions contained in the extant Railway Rules as applicable to railway servants of corresponding grades” would be applicable. 5. Rule 141 of the said Rules of 1987 provides that a member of the RPF would draw subsistence allowance and other allowances “in accordance with extant Railways Rules.” 6. The matters pertaining to suspension of a member of the RPF are covered by, inter alia, Rules 135, 136 and 139 to 144 of the said Rules of 1987. 5. Rule 141 of the said Rules of 1987 provides that a member of the RPF would draw subsistence allowance and other allowances “in accordance with extant Railways Rules.” 6. The matters pertaining to suspension of a member of the RPF are covered by, inter alia, Rules 135, 136 and 139 to 144 of the said Rules of 1987. Various fields are covered by such Rules, beginning with when an employee may be suspended to deemed suspension to conditions pertaining to suspension and the like. The second proviso to Rule 135 of the said Rules of 1987 mandates that a charge on which a member has been placed under suspension, shall be furnished within a period of thirty days from the date of suspension “after which the incumbent shall be deemed to have been reinstated if no such charge is made available to him …” 7. The further proviso to the said Rule makes the second proviso thereto inapplicable when an order of suspension against a member of RPF is on the “grounds that he has engaged himself in activities prejudicial to the interest and security of the State or a criminal case involving moral turpitude is pending against him.” 8. Thus, Rule 135 of the said Rules of 1987 envisages a maximum period of suspension before disciplinary action of thirty days, subject to the charges being furnished to the concerned employee; the exception being in the two situations recognised in the third proviso to the Rule. When the period of suspension permissible under the said Rules of 1987 is specifically provided for therein, neither Rule 117 nor Rule 141 would come into play for any other Railway Rules to be looked at for such purpose. The said Rules of 1987 are clear: that unless the situations covered by the third proviso to Rule 135 applies, an employee cannot remain suspended before the disciplinary action for more than thirty days prior to the charge being furnished. 9. In other words, if the situations envisaged in the third proviso to Rule 135 of the said Rules do not apply, an employee suspended under the said Rules may be charged within thirty days of the date of suspension, or be deemed to have been reinstated upon the suspension order standing automatically revoked. 10. 9. In other words, if the situations envisaged in the third proviso to Rule 135 of the said Rules do not apply, an employee suspended under the said Rules may be charged within thirty days of the date of suspension, or be deemed to have been reinstated upon the suspension order standing automatically revoked. 10. Rule 117 is the general, omnibus Rule that allows other Railway Rules to be applied in respect of any matter which is not covered by the said Rules of 1987. Rule 141 of the said Rules on the hand, pertains only to the extent of allowance. 11. The petitioner seeks to rely on the Rules of 1968 to establish the period of suspension that an RPF employee may suffer. However, such period is clearly indicated in Rule 135 and no other rules can be looked at once the matter is covered by the said Rules of 1987. The petitioner, probably, seeks to rely on the Rules of 1968 to obtain enhanced subsistence allowance of 75% of the salary, but Rule 141 of the said Rules of 1987 permits the foreign provision of any other rules to be imported therein only pertaining to subsistence allowance and no other matter. Since the period of the subsistence is already covered by Rule 135 of the said Rules of 1987, Rule 141 of the said Rules cannot be seen to allow the enhanced allowance payable under any other Railway Rules to be applicable to an RPF employee. 12. Indeed, the second proviso of Rule 135 is more beneficial to the petitioner herein. It is the admitted position that despite the petitioner being placed under suspension on March 17, 2014, he was issued the charge-sheet on September 8, 2015. Thus, after the period of thirty days from March 17, 2014, the suspension of the petitioner is deemed to have been revoked till such time that, at least, the charge-sheet was presented to the petitioner. Once the original order of suspension stood revoked and no subsequent order of suspension was made, the petitioner cannot be regarded as remaining in suspension and the petitioner is entitled to reinstatement and full salary subject to the petitioner having reported for duty. 13. Once the original order of suspension stood revoked and no subsequent order of suspension was made, the petitioner cannot be regarded as remaining in suspension and the petitioner is entitled to reinstatement and full salary subject to the petitioner having reported for duty. 13. Accordingly, the first limb of challenge in the petition succeeds to the extent that the petitioner will be deemed to have been reinstated in service on April 18, 2014, though the petitioner will be entitled to full salary from the time that the petitioner reports for duty at his last place of posting. The petitioner will only be entitled to subsistence allowance at the usual rate for the period beginning April 18, 2014 till the day preceding the petitioner next reporting for duty, but such period will subsequently be considered as full service period for reckoning the retiral or terminal dues of the petitioner in accordance with law. The petitioner is not permitted full salary for such period because of the delay on the petitioner’s part to approach the court and the failure of the petitioner to demonstrate that he had reported for duty on any day after April 17, 2014 and was turned away. This direction will also not prevent the respondents from passing a fresh order of suspension against the petitioner in accordance with law during the continuation of the disciplinary proceedings. 14. As to the petitioner’s grievance pertaining to the charge-sheet and the list of witnesses recorded thereunder, it is premature to entertain such objection at this stage. It is elementary that when a disciplinary action has been initiated, the delinquent must exhaust his remedies in the domestic forum before he approaches this extraordinary jurisdiction. The only remarkable exception to this general rule is when the charge-sheet does not disclose any misconduct or the same is issued without jurisdiction or the same appears to be absurd to the meanest mind. It is not the petitioner’s case here that the charge-sheet does not disclose any misconduct or that the same has been issued in error of jurisdiction or the same is absurd. 15. As a consequence, the grievance as to the charge-sheet is not entertained at this stage and the petitioner is left free to pursue whatever objections that the petitioner may have before the various stages of the domestic forum. 15. As a consequence, the grievance as to the charge-sheet is not entertained at this stage and the petitioner is left free to pursue whatever objections that the petitioner may have before the various stages of the domestic forum. It is only after the petitioner’s remedies in the different tiers of the domestic forum are exhausted that the petitioner may approach this extraordinary jurisdiction, if necessary. 16. Since the petitioner appears not to have responded to the charge-sheet of September 8, 2015 for more than seven months, the petitioner is permitted a week from date to file the petitioner’s written response thereto whereupon the respondents will conclude the disciplinary action as expeditiously as possible and, preferably, within June 30, 2016. The petitioner will refrain from making any prayer for adjournment in course of the disciplinary proceedings and the respondents will be at liberty to not show any indulgence on such account. 17. WP 5824(W) of 2016 is disposed of without any order as to costs. 18. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.