# Arvind Kumar Gupta v. Tax Recovery Officer, NOIDA and others

- **Citation:** (2005) 1 ILRA 185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-09-01
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-gupta-v-tax-recovery-officer-noida-and-others-40351
- **Pages:** 5

## Headnote

Constitution of India-Art. 226-Railway
Protection Force Rules, 1987-Rr. 155,
156, 157-Removal from Service-Absence
without leave-Disciplinary proceedingsEnquiry-Neither any procedural fault nor
any mistake in fact finding by enquiry
officer-Petitioner's guilt proceed-Which
was rightly affirmed by disciplinary
authority-Removal
rightly
passed
unishment
not
disproportionate-No
interference called for.

Held: Para 10

Undisputedly,
there
is
neither
any
procedural fault nor any mistake in the
fact finding arrived at by the inquiry
officer, where the guilt against the
petitioner was proved, which has rightly
been
affirmed
by
the
competent
authority/disciplinary authority. In the
facts and circumstances, the competent/
disciplinary authority has rightly passed
the order of removal of the petitioner
from service. This Court is unable to
make analysis or to draw any inference
in respect of mitigating the quantum of
punishment
on
the
ground
of
disproportionality, as there is nothing,
which shocks the conscience of the
Court,
therefore,
this
Court
is
not
inclined
to
invoke
its
extraordinary
discretionary jurisdiction under Article
226 of the Constitution to make any
interference in the fact finding arrived at
by the disciplinary authority.
Case law discussed:
2002 (3) ESC All. 256
(2003) 2 UPLBEC 1496
(1994) 3 UPLBEC 1597
JT 99 (1) SC 319
2001 (4) AWC 2976
2003 (1) ESC Cal 421
2002 (1) ESC All 327
2002 (1) ESC All 361
(2004) 2 UPLBEC 1461
(2004) 2 UPLBEC 1469
AIR 1996 SC 736

## Text

http://www.allahabadhighcourt.nic.in
1All] Arvind Kumar Gupta V. Tax Recovery Officer, NOIDA and others
185
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2004

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No.10545 of 1998.

Laxman Singh

...Petitioner
Versus
The Director General, Railway Protection
Force (RPF), Railway Board, New Delhi
and others

 ...Respondents

Counsel for the Petitioner:
Sri A.B. Singh

Counsel for the Respondents:
Sri Tarun Verma
Sri Anand Kumar
Sri J.S. Pandey
S.C.

Constitution of India-Art. 226-Railway
Protection Force Rules, 1987-Rr. 155,
156, 157-Removal from Service-Absence
without leave-Disciplinary proceedingsEnquiry-Neither any procedural fault nor
any mistake in fact finding by enquiry
officer-Petitioner's guilt proceed-Which
was rightly affirmed by disciplinary
authority-Removal
rightly
passed
unishment
not
disproportionate-No
interference called for.

Held: Para 10

Undisputedly,
there
is
neither
any
procedural fault nor any mistake in the
fact finding arrived at by the inquiry
officer, where the guilt against the
petitioner was proved, which has rightly
been
affirmed
by
the
competent
authority/disciplinary authority. In the
facts and circumstances, the competent/
disciplinary authority has rightly passed
the order of removal of the petitioner
from service. This Court is unable to
make analysis or to draw any inference
in respect of mitigating the quantum of
punishment
on
the
ground
of
disproportionality, as there is nothing,
which shocks the conscience of the
Court,
therefore,
this
Court
is
not
inclined
to
invoke
its
extraordinary
discretionary jurisdiction under Article
226 of the Constitution to make any
interference in the fact finding arrived at
by the disciplinary authority.
Case law discussed:
2002 (3) ESC All. 256
(2003) 2 UPLBEC 1496
(1994) 3 UPLBEC 1597
JT 99 (1) SC 319
2001 (4) AWC 2976
2003 (1) ESC Cal 421
2002 (1) ESC All 327
2002 (1) ESC All 361
(2004) 2 UPLBEC 1461
(2004) 2 UPLBEC 1469
AIR 1996 SC 736

(Delivered by Hon'ble R.B. Misra, J.)

1. Heard Sri A.B. Singh, learned
Counsel for the petitioner, and Sri Tarun
Verma,
learned
Counsel
for
the
respondents.

2. In this petition prayer has been
made for quashing the impugned order
dated 31.10.1995 passed by the Divisional
Security
Commissioner,
Railway
Protection Force, Varanasi terminating
the service of the petitioner on the
allegations of absence from duty without
proper intimation and also for overstaying
without
sanctioned
leave
without
sufficient cause.

3. It appears that the petitioner was
appointed in the Railway Protection
Special Force (hereinafter in short called
as 'RPSF') on 01.05.1967 and he was
transferred to Railway Protection Force
(hereinafter in short called as 'R.P.F.') on
05.09.1981. As per his service record,
during tenure of his service in R.P.S.F.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
186
and R.P.F. the petitioner was punished on
nine occasions. The petitioner was given
weekly rest on 16.11.1994 and he was to
present on duty on 17.11.1994, however,
he absented himself from duty without
any
authority.
The
petitioner
was
informed by ordinary letter followed by
registered letter at his residential address
indicating him to join the duty, but no
reply was received from his side,
therefore, after lapse of nine months the
Assistant Security Commissioner, R.P.F.,
Varanasi proceeded against the petitioner
under Rule 153 of the Railway Protection
Force Rules, 1987. For this purpose, a
charge-sheet was issued against the
petitioner on 08.08.1995 on the following
charges:-

"He was spared to avail one day Rest
on 16.11.94and thereafter he was required
to pick up duty on 17.11.94 from 16/- hrs.
But he failed to report for duty and is
over-stayed with effect from17.11.94
without any proper authority."

4. Sri J.P. Mishra, Inspector R.P.F.,
North Eastern Raily, Allahabad City was
appointed
as
Inquiry
Officer.
The
petitioner was alleged to have absented
himself from duty from 17.11.1994 to
30.08.1995 and the petitioner said to have
absented for treatment from Assistant
Divisional Medical Officer, Deoria Sadar
and from the certificate issued by the
Assistant Divisional Medical Officer,
Deoria it appears that the petitioner was
on the sick list from 16.11.1994 to
22.11.1994, but thereafter he did not turn
up for further treatment, however, he was
discharged
from
the
hospital
on
23.11.1994. The medical certificate of
private Doctor submitted by the petitioner
was not accepted, as there was a hospital
in
Manduwadih,
Varanasi
Cantt.,
however, the petitioner did not get any
treatment there instead of he proceeded
for Deoria. The petitioner also did not
inform about his illness during 48 hours
as required under Indian Railway Medical
Manual. The inquiry officer fixed the date
of inquiry on 20.08.1995, however, due to
absence of the petitioner the inquiry could
not be conducted, therefore, the same was
commenced from 02.09.1995 and after
affording opportunity of hearing and after
scrutiny of documents, the Inquiry Officer
submitted his finding on 25.09.1995
holding the charges against the petitioner
as proved. The competent/disciplinary
authority after realizing the entire records
has observed as under:-

"i) The Party Charged was spared to
avail one day rest on 16.11.94 and
was to resume duty on 17.11.94 from
16/- hrs. But he over-stayed from
17.11.94 to 30.8.95.
ii) He
reported
back
on
31.8.95
Forenoon alongwith RMC for the
period from 16.11.94 to 22.11.94,
PMC from 23.11.94 to 20.8.95 and
again RMC from 21.8.95 to 30.8.95.
He was discharged from Sick list with
effect
from
23.11.94
for
nonattendance and apparently thereafter,
he reported sick with Private Doctor.
iii) He states that he had been sending
intimations
about
his
sick-ness
regularly but as per statements of the
prosecution
witnesses
no
such
intimations appeared to have been
received in this office.
iv) Mere sending of intimation does not
serve the purpose unless he received
an Express intimation of grant of
extension. In the extent case, he made
presume favourable to him that the
extension might have been granted to
him. It was not incumbent upon the
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1All] Laxman Singh V. The Director General, R.P.F. and others
187
administration to send his any effort
of intimation and in case intimation
was received by him, he should have
presumed otherwise that his request
was not considered.
v) In accordance with the provisions of
Indian Railway Medical Memo, a
Railway servant reporting sick must
send certificate within 48/- hours of
reporting sick but in the extant case,
no sick certification was submitted by
the Party charged to his superiors.
Since he failed to comply with the
provisions of Medical Manual, he is
also not entitled to the privileges
granted in accordance with the
Railway Rules.
vi) He has also not explained the
circumstances under which he was
discharged from the sick list of the
Railway Doctor and why he preferred
to report sick with the Private
Doctor."

5. In view of the above observations,
the competent authority affirmed the
findings of the inquiry officer and keeping
in view totality of the facts and
circumstances the removal order in view
of Section 156 (3) of Railway Protection
Force Rules, 1987 (hereinafter in short
called as the 'Rules') was passed and the
period from 17.11.1994 to30.08.1995 was
treated as leave without pay.

6.

In
the
counter
affidavit
endeavourance has been to strengthen the
stand in consonance to the findings of the
disciplinary authority and inquiry officer.

Futile endeavourance has been made
on behalf of petitioner through the
rejoinder affidavit to controvert the
contents of the counter affidavit and to
reiterate the stand taken in the writ
petition.

7. It has been argued on behalf of
petitioner that in view of the judgments in
2002 (3) E.S.C. Alld. 256 (Mirza Barkat
Ali Vs. Inspector General of Police,
Allahabad
and
others),
(2003)
2
U.P.L.B.E.C.
1496
(Sant
Kumar
Upadhyay Vs. State of U.P. and others),
(1994) 3 U.P.L.B.E.C. 1597 (R.N. Mall
Vs. Union of India and another), J.T. 99
(1) SC 319 (Syed Zaheer Hussain Vs.
Union of India and others), 2001 (4)
A.W.C. 2976 (L/NK Musafir Yadav Vs.
Commandant,
47
Bn.,
C.R.P.F.Gandhinagar
(Gujarat)
and
another), 2003 (1) E.S.C. (Cal.) 421
(Jadurouth Vs. State of West Bengal and
others), 2002 (1) E.S.C. (All.) 327 (
Sukhbir Singh, Constable No. 2306 Civil
Police Vs. S.S.P., Agra and others),2002
(1) E.S.C. (All.) 361(Jiya Lal Pandey Vs.
Commandant Railway Protection Force,
Northern
Railway,
Lucknow
and
others),(2004) 2 U.P.L.B.E.C. 1461 (Raj
Kishore Yadav Vs. U.P. Public Service
Tribunal, Indra Bhawan, Lucknow and
others), (2004) 2 U.P.L.B.E.C. 1469
(Academy of Business Management Gyan
Sthali,
Hapur
Road,
Modi
Nagar,
Ghaziabad and another Vs. State of U.P.
and others) and also in view of two
unreported judgments dated 29.07.1997
passed by this Court in Civil Misc. Writ
Petition No. 11850 of 1994 (Satyendra
Singh Vs. Union of India through Chief
Security
Commissioner,
Railway
Protection Force, Cuard and another)
and 07.05.1997 passed by this Court in
Writ Petition No. 26779 of 1994 (Jai
Kishan Vs. Deputy Inspector General of
Police, Meerit Range, Meerut and others)
the
punishment
awarded
by
the
disciplinary authority is disproportionate
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
188
to the charges levelled against the
petitioner.

8. In order to analyse the real
position, it is necessary to refer the Rules
155, 156 and 157 of the 'Rules' as under:-
"155. Determination of punishment.-In
determining
the
punishment,
the
character, previous bad record and
punishment of party charged shall not be
taken into consideration unless in a case
where they are made subject matter of a
specific charge in the proceeding itself.
Offences connoting moral turpitude shall
be carefully distinguished from smaller
lapses of conduct. It is essential that the
punishment shall be inflicted keeping in
view the nature of duties expected from
the member of the Force and the
misconduct by him.
156. Imposing
of
punishment
of
dismissal, etc.-Before coming to any
lower
punishment,
the
disciplinary
authority with a view to ensuring the
maintenance of integrity in the Force
shall consider the award of punishment of
dismissal or removal from service to any
member of the Force in the following
cases, namely: --
(a) Dismissal :
(i) conviction by a criminal court;
(ii) serious misconduct or indulging in
committing or attempting or abetting
an offence against railway property;
(iii) discreditable conduct affecting the
image and reputation of the Force;
(iv) neglect of duty resulting in or likely
to result in loss to the railway or
danger to the lives of persons using
the railway;
(v) insolvency or habitual indebtedness;
and
(vi) obtaining
employment
by
concealment
of
his
antecedents
which
would
ordinarily
have
debarred him from such employment.

(b) Removal from service :
(i) any of the misconduct for which he
may be dismissed under clause (a)
above;
(ii) repeated minor misconducts;
(iii) absence from duty without proper
intimation
or
overstay
beyond
sanctioned leave without sufficient
cause.

157. Reduction in the rank, grade or in
the scale of pay.-(1) No enrolled
member of the Force shall be reduced to a
rank lower than to which he was first
appointed to the service nor shall he be
reduced permanently in the sense that he
shall never be eligible for repromotion
however
meritorious
his
subsequent
service may be.
(2) When reduction to a lower rank,
grade or a lower stage in the scale of pay
is ordered, the order shall also specify--
(i) the date from which it will take effect
and the period (in terms of years and
months) for which the punishment
shall be operative;
(ii) the stage in the scale of pay (in terms
of rupees) to which the enrolled
member of the Force is reduced; and
(iii) the extent (in terms of years and
months), if any, to which the
punishment referred to at (i) above
shall be with or without cumulative
effect;
Provided that when the punishment
or reduction to a lower stage in the scale
of pay is imposed during the currency of
reduction
in
rank,
the
disciplinary
authority shall clearly indicate in the
punishment
order
whether
the
two
punishments shall run concurrently or the
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1All] Laxman Singh V. The Director General, R.P.F. and others
189
subsequent
punishment
shall
be
implemented after the expiry of the first
punishment.

(3) Withholding of increment.-In
the case of withholding of increment as
punishment, the order shall state the
period for which the increment is to be
withheld and whether it shall have the
effect of postponing further increments."

9. It has been submitted on behalf of
the respondents that in AIR 1996 SC 736
(State of U.P. and others Vs. Ashok
Kumar Singh and another) the delinquent
police constable was charge-sheeted for
absenting himself from duty without leave
on several occasions, the decision and
concurrence of the High Court to the
findings of Tribunal on the issue of
modifying punishment of removal from
service of writ petitioner on the ground
that it was not commensurate to the
gravity of offence was held to be not
justified by the Supreme Court and the
punishment
of
removing
the
writ
petitioner was acknowledged to be legally
correct.

10. I have heard learned counsels for
the parties. Undisputedly, there is neither
any procedural fault nor any mistake in
the fact finding arrived at by the inquiry
officer, where the guilt against the
petitioner was proved, which has rightly
been
affirmed
by
the
competent
authority/disciplinary authority. In the
facts and circumstances, the competent/
disciplinary authority has rightly passed
the order of removal of the petitioner
from service. This Court is unable to
make analysis or to draw any inference in
respect of mitigating the quantum of
punishment
on
the
ground
of
disproportional, as there is nothing, which
shocks the conscience of the Court,
therefore, this Court is not inclined to
invoke its extraordinary discretionary
jurisdiction under Article 226 of the
Constitution to make any interference in
the fact finding arrived at by the
disciplinary authority.

11.

In
view
of
the
above
observations,
the
writ
petition
is
dismissed.
Petiton Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2001

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 36070 of 2001

Tribhuwan Dhar Mishra and others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Lalji Pandey
Sri Vikas Budhwar

Counsel for the Respondents:
Sri S.P. Singh
S.C.

Constitution of India-Arts. 14 and 226Discrimination
Appointment
seasonal
Collection
Amins-long
standing
experience and services ignored without
any
justification-persons
not
even
named in list being juniors to petitioner
outers Given appointments-such action
of
State
authorities,
to
be
hostile
discrimination-Impugned orders liable to
set aside.

Held: Para 18