# Hari Shanker Pandey v. Union of India

- **Citation:** (2016) 4 ILRA 470
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-04
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-shanker-pandey-v-union-of-india-43655
- **Pages:** 7

## Headnote

Section 3 Railway Property (Unlawful Possession) Act not pursued as articles had no railway marks and
evidence was doubtful; in departmental enquiry also no proof they were railway/stolen property, yet guilt
presumed and key records withheld, denying fair opportunity - Held, charge not proved; dismissal
unsustainable. (Paras 2-5, 10-15)

Writ Allowed - Dismissal and subsequent appellate/revisional orders quashed; petitioner to be treated in
continuous service with all consequential benefits. (Para 16)

## Text

470 INDIAN LAW REPORTS ALLAHABAD SERIES
3. In the present case, we note from the record that the domicile certificate which was
granted to the petitioner has been cancelled by the Sub Divisional Magistrate. In our view, the
provisions of Section 5 (2) and Section 6 must receive a purposive interpretation. The cancellation
of a domicile certificate amounts in law to the rejection of the application for the grant of domicile
certificate. While cancelling a domicile certificate, what essentially the Sub-Divisional Magistrate
does in such a case, is to hold that the applicant is not entitled to the domicile certificate for the
reasons indicated in the order of cancellation. Hence, both as a matter of fact and law, the
consequence of the cancellation of a domicile certificate is to lead to the rejection of the application
for the issuance of a domicile certificate.

4. Once the matter is considered in this perspective, we are of the view that an appeal
would be maintainable against the cancellation of a domicile certificate by the Sub-Divisional
Magistrate under Section 6 of the Adhiniyam, 2011.

5. The object and purpose of enacting the law was to provide a stipulated time limit for the
grant of service of a notified nature and to provide a remedy where service was either not granted
or the request for the service was rejected.

6. Having regard to the object and purpose and having due regard to the interpretation of
Section 5 (2) of the Ahiniyam, 2011, we are of the view that an appeal would be maintainable.

7. For these reasons, we relegate the petitioner to the remedy of appeal under Section 6
before the Collector and District Magistrate. Hence, such an appeal shall be considered in
accordance with law, subject to the observations made above. In the event that the petitioner files
an appeal within one month from today, the appeal shall be disposed of within three months from
the date of receipt of the appeal.

8. The writ petition is, accordingly, disposed of. There shall be no order as to costs.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No.- 9762 Of 1985

Hari Shanker Pandey ...Petitioner
Versus
Union of India ...Respondent

Counsel for Petitioner:
Sri Tej Pal, Sri Raj Kumar, Sri S.P. Singh
4 All. Hari Shanker Pandey Vs Union Of India
471
Counsel for the Respondent:
S.C., Lalji Sinha, Satya Prakash Mishra

RPF Dismissal on Alleged Railway Property - Senior Rakshak dismissed for alleged unauthorised
possession of wooden plank and window frames treated as stolen railway property; criminal case under
Section 3 Railway Property (Unlawful Possession) Act not pursued as articles had no railway marks and
evidence was doubtful; in departmental enquiry also no proof they were railway/stolen property, yet guilt
presumed and key records withheld, denying fair opportunity - Held, charge not proved; dismissal
unsustainable. (Paras 2-5, 10-15)

Writ Allowed - Dismissal and subsequent appellate/revisional orders quashed; petitioner to be treated in
continuous service with all consequential benefits. (Para 16)

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Petitioner is aggrieved by the orders impugned, dismissing him from service, and its
affirmance in review, appeal & revision.

2. The facts giving rise to filing of this petition are that petitioner was initially appointed as
Rakshak in the Railway Protection Force in 1962, and was subsequently promoted to the post of
Senior Rakshak on 1.12.1977. He got posted in Coy No. 2 at out post Kannauj in April, 1982.
Petitioner asserts that while posted as such, he recovered 7 bags of cement belonging to Railways
from the custody of the respondent no. 6 i.e. Assistant Sub Inspector, Bhopal Singh on 23.4.1982,
in which he was charge-sheeted arrested and later bailed out. It is claimed that the respondent no. 6,
on such count, maintained enmity with the petitioner. On 6.5.1982, upon receiving information
from one Rama Shanker, about certain stolen railway property being kept at petitioner's quarter,
respondent no. 6 is stated to have gone to petitioner's official quarter at 8.15 p.m. and upon pointing
of said Rama Shanker, it is claimed that one wooden plank and two window frames were recovered
from his house. Petitioner claims that he was assaulted by respondent no. 6 on the next day and a
medical certificate has been annexed to substantiate it. It is also claimed that a complaint was also
made by the petitioner in this regard. On the basis of the alleged stolen railway property recovered
from the premises of petitioner, a criminal investigation was instituted. In view of the pendency of
such criminal investigation, petitioner was placed under suspension on 7.5.1982. Disciplinary
proceedings were also initiated against the petitioner and a charge-sheet was served upon him on
28.9.1982. The charge-sheet states that on the basis of the information received, respondent no.6
alongwith his colleague recovered the offending material, i.e. stolen railway property from the
possession of petitioner and proceedings under Section 3 of the Railway Protection Act were
instituted being case Crime No. 7 of 1982, which was reprehensible for a railway employee.
Petitioner initially submitted a letter dated 28.9.1982 demanding certain documents for enabling
him to file a reply. It seems that petitioner was permitted to inspect the documents which were
available and found relevant. Petitioner, however, again submitted a letter on 11.10.1982 stating
that documents relating to criminal proceedings, which is stated to have been initiated against the
petitioner has not been supplied to him. This letter was replied by the respondents on 14.10.1982,
stating that whatever documents were demanded, had already been permitted to be inspected and
the remaining documents have no relevance for the present purposes and, therefore, such request
472 INDIAN LAW REPORTS ALLAHABAD SERIES
was denied. It seems that petitioner thereafter proceeded to submit his reply to the charge-sheet. In
the reply submitted by the petitioner, it was categorically stated that he has been framed by
respondent no. 6, as he felt aggrieved on account of petitioner having seized the railway property
from him, wherein charge-sheet had been submitted and he had to ultimately seek bail. In para-15
of the reply, petitioner has specifically stated that there was no visible mark upon the recovered
property, which may show that the property recovered was a railway property. It was also stated
that no documents were brought on record to show even otherwise that in relevant records
maintained by the railways, the plank and windows were shown as stolen property of the railways.
It was, therefore, stated that the entire accusation against petitioner is false and is a result of a
conspiracy hatched against him by the respondent no. 6 which had no basis or substance. The
charges, accordingly were emphatically denied.

3. It would also be relevant to notice that the case crime registered against the petitioner
under Section 3 of the Railway Protection Act, was investigated and ultimately matter was referred
to prosecution cell, for launching prosecution against the petitioner. The file appears to have been
examined by the prosecution officer and on the basis of the materials available on record, it was
opined that the charge levelled against the petitioner was not made out. Such opinion was based
upon the fact that the property recovered had no railway marks nor it had been established that such
property could not be shown to be possessed by anybody else. Doubts were expressed upon the
recovery memo as it had not mentioned the time when the concerned officials had left and reached
the official quarter of petitioner and who were other persons residing with the petitioner in the same
quarter. It may be noticed that after such objection was raised by the prosecution cell, proceedings
under Section 3 of the Act were not proceeded further against the petitioner. No document had been
brought on record to show that any criminal complaint was filed, although according to the
respondents, criminal prosecution was not launched as the value of railway property was less than
Rs. 50.

4. Since the petitioner had denied the charges levelled against him as such, the inquiry
proceedings commenced. The inquiry officer submitted his report in the matter, which is Annexure
- 12 to the writ petition.

5. Learned counsel for the petitioner has taken the Court through the inquiry report in order
to contend that though witnesses were produced before the inquiry officer to demonstrate that the
offending materials were found at the quarter of the petitioner, but no evidence was adduced to
show that the offending property was either a stolen property of the railways or that it carried any
distinctive mark to show that it belongs to railways. The enquiry officer, however, proceeded on
the assumption that offending goods belonged to the railways and had been stolen and
consequently, proceeded to submit report, holding the charges to have been proved against the
petitioner. A show cause notice was thereafter issued on 12.12.1983 as to why he be not removed
from service. Petitioner submitted his exhaustive reply to the notice in which it was again reiterated
that no material had been brought on record by the employers before the inquiry officer to
demonstrate that the wooden plank and the two windows, found in the petitioner's quarter, either
belonged to the railways or that it was a stolen property. It was also stated that the total value of the
4 All. Hari Shanker Pandey Vs Union Of India
473
property was less than Rs. 40/- and as such in terms of the relevant circular, it could not have
formed the basis for any disciplinary proceedings against the petitioner.

6. Attention of the Court has also been invited to para-37 of the reply submitted by the
petitioner in which it was categorically stated that only on the basis of the oral statement, it was
presumed that the offending property belongs to the railways. The disciplinary authority, after
having considered the entire matter, found the charges to be proved after rejecting the reply to show
cause notice. The disciplinary authority, consequently, proceeded to dismiss the petitioner from
service vide order dated 2.3.1983. Aggrieved by the said order, petitioner preferred an appeal
which has also been rejected. The review petition and revision filed has also been rejected.

7. Counter affidavit has been filed by the railways in which it has been stated that the
criminal proceedings were not proceeded further against the petitioner for the reason that the seized
goods were valued at less than Rs. 50/- and it was treated to be a petty case, as such, in terms of the
Railway board circular, criminal proceedings were not proceeded further. The averments made in
the writ petition have been denied by the respondents in the counter affidavit.

8. Rejoinder affidavit has been filed by the petitioner reiterating the stand taken in the writ
petition.

9. I have heard Sri Rakesh Pandey and Sri Raj Kumar for the petitioner and Sri Satya
Prakash Mishra for the respondents and have perused the record.

10. From the materials available on record, it transpires that before initiation of
proceedings against the petitioner by the railways on 7th of May, 1982 petitioner had recovered 7
bags of cement from the residence of respondent no.6, on 23.4.1982 which led to initiation of
criminal proceedings against him, resulting in his arrest and filing of a charge-sheet, wherein he
was subsequently granted bail. It is in close proximity to this event that respondent no. 6 is stated to
have received information from one Rama Shanker Tiwari about existence of some railway
property unauthorisedly lying in the premises allotted to the petitioner. Evidence was lead that
Rama Shanker Tiwari was also living in the same house, with the petitioner and on account of
some differences with petitioner, he asked him to leave. Rama Shanker Tiwari is stated to have
taken respondent no.6 to the house of petitioner on 6.5.1982 at 8.15 p.m. and from the house of the
petitioner one wooden plank and two wooden shuttering windows, allegedly of passenger coach
were recovered from the petitioner's quarter. A recovery memo was also prepared in which
petitioner is also stated to have signed. Criminal investigation is stated to have commenced against
the petitioner but it is not in dispute that the same was not pressed. According to the respondent, the
reason for not pressing the criminal proceedings against the petitioner was that the property itself
was valued at less than Rs. 40/- and in terms of the railway Board circular, it was treated to be a
petty case for which prosecution was not required to be launched. According to the petitioner, the
reason for the criminal prosecution not to have been launched, was the report of the prosecution
officer, who found inherent inconsistency in the investigation conducted. The prosecution report,
which has been brought on record, clearly supports petitioner's claim that the property had no
474 INDIAN LAW REPORTS ALLAHABAD SERIES
railway marks and it could not be said that such property could not be owned by anyone except
railways. It was also opined by the prosecution officer that apart from petitioner, one Rama
Shanker and another lady Vimla were residing in the same quarter and it was not clear as to who
had stolen the property, and if at all it was a stolen property, it needed further investigation. The
report of the prosecution has been brought on record of this petition as Annexure-4, which is not
denied. In reply, it has been stated in paragraph 16 of the counter affidavit that a subsequent note
was placed by C.W.S. asserting that property belonged to the railways. However, it has not been
stated that opinion expressed in the note enclosed as Annexure-6 to the counter affidavit was ever
accepted or prosecution was launched. Moreover, during the course of inquiry, no evidence was
produced to demonstrate that property in question belonged to the railways and specific objection
taken by petitioner in this regard has also not been dealt with, at any stage. It is, however, admitted
to both the parties that criminal prosecution was not launched against the petitioner.

11. In the disciplinary proceedings, which were initiated against the petitioner, a specific
objection has been raised by the petitioner at all stage of the proceedings that the property was not
shown as a stolen property of the railway neither it had any distinct marks upon it to show that the
property belongs to the railways but despite it neither any evidence was brought on record to rebut
it nor any consideration is reflected on this aspect.

12. Attention of the court has been invited to Rule-153, which deals with the procedure for
imposing major punishment. Rule-153.19 states that a charge is deemed to have been proved if
after considering evidence before him inquiry officer believes the ingredients constituting the
charge to exist or consider their existence so probable that a prudent man ought, under the
circumstances of the case to act upon the suggestion that they exist. The precise charge levelled
against the petitioner was of being in unauthorised possession of the railway property. Such a
charge could be proved only if it was shown that the property belonged to the railways or that it
was railway's stolen property. In case the property was treated to be a stolen property then criminal
proceedings were required to have been initiated. Attention of the Court has also been invited to
Rule-221.1 of the Railway Protection Force Rules, 1987 which reads as Under:

" 221.1. Every Posts Commander shall enter or cause to be entered, reports of all
special occurrences on railways and all crimes against railway property in such records and
registers and in such manner as are specified in these rules, or as may be specified by the
Directives".

13. From the materials which have been brought on record, it is apparent that no such
record was produced at any stage of the inquiry to show that the offending goods were at any point
of time, recorded in the relevant records as a stolen property or as a crime against the railway
property. It is further to be observed that the prosecution, at all stage of the proceedings, proceeded
upon the assumption that the property recovered from the petitioner's house belonged to the
railways and that it was unauthorisedly kept in his quarter. However, no evidence was brought on
record to show that the property, infact, was a railway property. It is not in dispute that no
distinctive marks appeared upon the wooden plan or the wooden windows. It was also not shown
4 All. Hari Shanker Pandey Vs Union Of India
475
that none else could own such property. The prosecution for the purposes of refusing to proceed
against the petitioner in criminal proceedings has also opined that there were no distinctive marks
upon the property to show that it belongs to the railways. In the absence of any evidence brought on
record before the inquiry officer and in the disciplinary proceedings, a presumption could not have
been drawn that the wooden plank or the wooden windows belonged to the railways. As railway
authorities failed to prove the property to be belonging to the railways, no charge against the
petitioner could be said to have been made out or proved. The finding of guilt against the petitioner
thus is not backed by any evidence, and the same is clearly erroneous.

14. The matter has to be viewed from a different perspective also. It is not in dispute that at
the instance of the petitioner, 7 bags of stolen cement had been seized from the house of the
respondent no. 6. It is also not in dispute that a charge-sheet was filed and respondent no. 6 was
sent to jail and subsequently, he was enlarged on bail. It is within a proximity of less than a month
that the complaint was made by the respondent no. 6 against the petitioner. The information about
the offending materials lying in the premises of the petitioner is stated to have been given by one
Rama Shanker in respect of whom it is alleged that he had been living with petitioner and was
asked to leave. The inquiry officer has also returned a finding that the enmity of respondent no. 6
and differences with Rama Shanker had been established. In the absence of any material to show
that such property belongs to the railway, the proceedings initiated at the instance of respondent
no.6 ought to have been viewed with greater caution. The inquiry officer had relied upon the
statement of one of the petitioner's witnesses who stated that the wooden plank and windows were
found at a distance of 4 steps from petitioner's quarter. There were no independent witness even
otherwise to show that this property had been recovered from the petitioner. These aspects have
completed been omitted from consideration. It may also be borne in mind that the value of the
property, which is stated to have been recovered from the petitioner was less than rs. 40/- . The
allegation of the petitioner that he had been framed at the instance of respondent no. 6, could not
have been lightly brushed aside.

15. For the aforesaid reasons recorded above, this Court is of the considered opinion that
the allegation against the petitioner of being in unauthrosed possession of railway property was not
made out. The disciplinary proceedings also do not inspire confidence inasmuch as petitioner's plea
of providing relevant material relating to criminal proceedings launched against him were not made
available to him. This was relevant because the details of movement of respondent no. 6 to the
petitioner's house etc. were all relevant in the peculiar facts and circumstances of the present case
and denial of such documents had denied reasonable opportunity to the petitioner to defend
himself.

16. For the reasons and discussions aforesaid, this Court is of the opinion that the orders of
dismissal passed against the petitioner, as affirmed in appeal, review and revision cannot be
sustained. Writ Petition succeeds and is allowed. Orders dated 2.3.1983, 6.9.1983, 19.1.1984 and
19.1.1985 are set aside. Petitioner shall be treated to have continued in service and he would be
entitled to all service and terminal benefit.
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476 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.2.2016

BEFORE

THE HON'BLE ARUN TANDON, J.
THE HON'BLE MOHD. TAHIR, J.

Writ C No.- 15716 Of 2004

Smt. Radhika Devi ...Petitioner
Versus
Nagar Panchayat Varanasi & Ors. ...Respondents

Counsel for the Petitioner:
C.K. Parekh

Counsel for the Respondents:
C.S.C., R.K. Pandey, S.K. Shukla

Petitioner before this Court, who is residing within the territorial limits of Nagar Panchayat Chakia,
District- Chandauli, is aggrieved by the bye-laws which have been framed by the Nagar Panchayat Chakia as
enforced under notification published in the official gazette dated 26th October, 2002. It has been provided
that any person desirous to transfer any immovable property within the limits of Municipality shall make an
application seeking permission from the Adhyaksh/ Executive Officer, Nagar Panchayat, Chakia after on
payment of 2 % of the total value of the sale consideration calculated at the circle rate. On such application
being made, permission shall be granted by the Adhyaksh/ Executive Officer.

We have no hesitation to hold that the bye-laws as framed by the Municipal Board requiring deposit 2 %
to the value of the property covered by transfer deed with the Municipal Board is ultra vires to 128-A of the
Municipality Act, 1916, and therefore illegal and inoperative in the eyes of law.

Accordingly, the writ petition is allowed. All consequential action be taken accordingly.

Held: Para-

Case Law discussed:

(Delivered by Hon'ble Arun Tandon, J.
&
Hon'ble Mohd. Tahir, J.)

1. Heard Sri C.K. Parekh, learned counsel for the petitioner, learned Standing Counsel
appearing on behalf of respondent no. 3.

2. Nobody is present on behalf of respondent nos. 1 and 2.