# Virendra Prasad Dubey v. Senior Divisional Security Commissioner, RPF, Allahabad and others

- **Citation:** (2005) 4 ILRA 1251
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-18
- **Case number:** Civil Misc. Writ Petition No.32302 of 1997
- **Bench:** V.C. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-prasad-dubey-v-senior-divisional-security-commissioner-rpf-allahabad-40787
- **Pages:** 7

## Headnote

Railway Protection Force Rules 1987Rule-148, 153 read with fundamental
Rules-Rule-56-Compulsorily RetirementPetitioner-a
constable
in
R.P.F.
proceeded
on
medical
leave-w.e.f.
4.11.93-10.11.94-time
to
time
leave
application-duly
received
by
the
authorities-after 10 years services-major
punishment of compulsorily retirement
awarded at the age 35 years-without
serving
the
chargesheet,
without
affording opportunity-absence from duty
cannot be termed as will full absence-No
grave misconduct-impugned order can
not sustained.

Held: Para 11
It is settled law that the order of
dismissal/ removal from service can be
awarded only for the acts of grave
nature
or
as
cumulative
effect
of
continued
misconduct
preventing
incorrigibility or complete unfitness for
police service. Merely one incident of
absence and that too because of bad
health and being on valid and justified
grounds/ reasons cannot become basis
to award such punishment. It is an
admitted fact that the respondents had
received
the
application
for
leave
alongwith medical certificates. In such
circumstances it can never be termed as
willful absence without any information
to the competent authority and also can
never be termed as grave misconduct.
Under
the
above
said
facts
and
circumstances and the pleadings of the
instant case, in my view no case to
award such major punishment to the
petitioner is made out and the decision
of the disciplinary authority inflicting a
penalty of removal from service by the
impugned
order
dated
6.10.1994
(Annexure No. 1 to the writ petition) is
ultra vires of Rule 56 (j) of the
Fundamental Rules and is liable to be set
aside. The major punishment of removal
from service by way of compulsory
premature
retirement
is
thus
also
excessive and disproportionate.
Case law discussed:
AIR 1985 SC-931
2004(2) UPLBEC-1294

## Text

4 All] Virendra Pd. Dubey V. Senior Divisional Security Commissioner R.P.F. and others
1251
legal enforceable right for absorption in
other Government departments.

19. For the reasons stated above, the
writ petition fails and is dismissed without
any order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2005

BEFORE
THE HON'BLE V.C. MISRA, J.

Civil Misc. Writ Petition No.32302 of 1997

Virendra Prasad Dubey
...Petitioner
Versus
Senior Divisional Security Commissioner,
RPF, Allahabad and others ...Respondents

Counsel for the Petitioner:
Sri P.N. Saxena
Sri R.K. Tiwari
Sri M.M. Srivastava
Sri R.K. Srivastava

Counsel for the Respondents:
Sri B.B. Paul
Sri Govind Saran
S.C.

Railway Protection Force Rules 1987Rule-148, 153 read with fundamental
Rules-Rule-56-Compulsorily RetirementPetitioner-a
constable
in
R.P.F.
proceeded
on
medical
leave-w.e.f.
4.11.93-10.11.94-time
to
time
leave
application-duly
received
by
the
authorities-after 10 years services-major
punishment of compulsorily retirement
awarded at the age 35 years-without
serving
the
chargesheet,
without
affording opportunity-absence from duty
cannot be termed as will full absence-No
grave misconduct-impugned order can
not sustained.

Held: Para 11
It is settled law that the order of
dismissal/ removal from service can be
awarded only for the acts of grave
nature
or
as
cumulative
effect
of
continued
misconduct
preventing
incorrigibility or complete unfitness for
police service. Merely one incident of
absence and that too because of bad
health and being on valid and justified
grounds/ reasons cannot become basis
to award such punishment. It is an
admitted fact that the respondents had
received
the
application
for
leave
alongwith medical certificates. In such
circumstances it can never be termed as
willful absence without any information
to the competent authority and also can
never be termed as grave misconduct.
Under
the
above
said
facts
and
circumstances and the pleadings of the
instant case, in my view no case to
award such major punishment to the
petitioner is made out and the decision
of the disciplinary authority inflicting a
penalty of removal from service by the
impugned
order
dated
6.10.1994
(Annexure No. 1 to the writ petition) is
ultra vires of Rule 56 (j) of the
Fundamental Rules and is liable to be set
aside. The major punishment of removal
from service by way of compulsory
premature
retirement
is
thus
also
excessive and disproportionate.
Case law discussed:
AIR 1985 SC-931
2004(2) UPLBEC-1294

(Delivered by Hon'ble V.C. Misra, J.)

1. Heard Sri P.N. Saxena, Senior
Advocate assisted by Sri R.K. Tiwari,
learned counsel for the petitioner and Sri
Govind Saran, Advocate learned standing
counsel on behalf of the respondents
Nos.1, 2 and 3.

2. The facts of the case in brief are
that the petitioner was appointed as a
constable in Railway Protection Force by
posting at Allahabad on 18.5.1984. In
1252 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
July 1989, the petitioner was transferred
to the outpost Mughal Sarai (MGS) under
the Incharge Protection Force (IPF),
Chunar. On 19.8.1992, the petitioner
proceeded on medical leave by taking sick
memo and remained as outdoor patient in
the Railway Hospital, Mughal Sarai till
4.1.1993. On 5.1.1993, the petitioner was
discharged from sick list by the Divisional
Medical
Officer-I,
Eastern
Railway
(DMO-I, E.R.), Mughal Sarai in the midst
of the treatment without mentioning the
fact that the petitioner was fit for duty.
The petitioner had to under-go treatment
by a private doctor Dr. A.K. Mehta at
Ballia with effect from 6.1.1993 and
remained under his treatment till 20th
August 1994. During this period, the
petitioner
sent
several
notices
and
information's to the concerned authority
through registered post with proper
medical certificate (PMC) before the
Incharge Protection Force, Chunar. The
petitioner was referred by Dr. A.K. Mehta
to Dr. D. Rai, at District Hospital, Ballia
for further treatment where he remained
under
treatment
from
20.8.1994
to
30.10.1994. Meanwhile, the disciplinary
proceedings were initiated against the
petitioner by the Railway authorities and
in the proceedings, 2 charges were framed
against him, which are as under :-
1-
og
fnukad
5.1.1993
ls
Mh0,e0vks0@bZ0vkj0@,e0th0,l0 )kjk fld fyLV ls
fMLpktZ fd;s tkus ds ckn u vki dUVzksfyax vQlj ds
le{k mifLFkr gq, vkSj u dksbZ lwpuk HkstkA

2-
og fnukad 5.1.1993 ls vkt 1⁄4vkjksi i= tkjh
djus dh frfFk1⁄2 rd vukf/kd`r :i ls vuqifLFkfr jgkA

3. The enquiry officer Sri D.L. Shah
vide its report dated 8.9.1994 submitted
before the respondent no.1 recommended
that the proceedings be initiated against
the petitioner under Rule 153 of the
Railway Protection Force Rules, 1987
(hereinafter referred to as 'the Rules,
1987') and held that both the charges 1 &
2 mentioned hereinabove were proved.
The
disciplinary
authority-respondent
no.1 vide its order dated 6.10.1994
compulsorily
retired
the
petitioner
prematurely at the age of 35 years by
imposing the major penalty, under the
provisions of Rules 148 and 153 of the
Rules, though he had only completed 10
years of service.

4. The relevant portions of Rules
148 and 153 of the Rules, 1987 are
reproduced as under: -

"148. Description of Punishments:

148.1. Any of the following punishments
may, for good and sufficient reasons and
as hereinafter provided, be imposed on an
enrolled member of the Force.

148.2 Major punishments:

(a) Dismissal from service (which shall
ordinarily be a disqualification for future
employment under the Government.)
(b) Removal from service (which shall
not be a disqualification for future
employment under the Government.)
(c) Compulsory retirement from service.
(d) Reduction in rank or grade.

148.3 Minor punishments:

(a) Reduction to a lower stage in the
existing scale of pay.
(b) Withholding of next increment with
or without corresponding postponement
of subsequent increments.
(c) Withholding of promotion for a
specified period.
4 All] Virendra Pd. Dubey V. Senior Divisional Security Commissioner R.P.F. and others
1253
(d) Removal
from
any
office
of
distinction or deprivation of any special
emoluments.
(e) Censure.

148.4:
Petty punishments:

(a) Fine to any amount not exceeding
seven days' pay.

(b) Confinement to quarter-guard for a
period not exceeding fourteen days with
or without punishment drill, extra guard
duty, fatigue duty or any other punitive
duty.

(c) Reprimand.

148.5: Explanation:...............

"153
Procedure for imposing major
punishments.-

(1) Without prejudice to the provisions
of the Public Servants Inquiries Act,
1850, no order of dismissal, removal,
compulsory retirement or reduction in
rank shall be passed on any enrolled
member of the Force (save as mentioned
in Rule 61) without holding an inquiry, as
far as may be in the manner provided
hereinafter, in which he has been
informed in writing of the grounds on
which it is proposed to take action, and
has
been
afforded
a
reasonable
opportunity of defending himself.

(5) The
disciplinary
authority
shall
deliver or cause to be delivered to the
delinquent member, at lease seventy-two
hours before the commencement of the
inquiry, a copy of the articles of charge
the
statement
of
imputations
of
misconduct or misbehaviour and a list of
documents and witnesses by which each
article of charge is proposed to be
sustained and fix a date when the inquiry
is to commence; subsequent dates being
fixed by the Inquiry Officer.

(10) At the commencement of the inquiry
the party charged shall be asked to enter a
plea of 'guilty' or 'not guilty' after which
evidence necessary to establish the charge
shall be let in. The evidence shall be
material to the charge and may either be
oral or documentary. If oral -

(a) it shall be direct,
(b) it shall be recorded by the Inquiry
Officer in the presence of the party
charged; and

the party charged shall be allowed to
cross-examine the witnesses.

(12) All the evidence shall be recorded, in
the presence of the party charged, by the
Inquiry Officer himself or on his dictation
by a scribe. Cross-examination by the
party charged or the fact of his declining
to cross-examine the witness, as the case
may be, shall also be recorded. The
statement of each witness shall be read
over to him and explained, if necessary, in
the language of the witness, whose
signature shall be obtained as a token of
his having understood the contents.
Statement shall also be signed by the
Inquiry Officer and the party charged.
Copy of each statement shall be given to
the party charged who shall acknowledge
receipt on the statement of witness itself.
The Inquiry Officer shall record a
certificate of having read over the
statement to the witness in the presence of
the party charged.

(13) Documentary exhibits, if any, are to
be numbered while being presented by the
1254 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
concerned witness and reference of the
number shall be noted in the statement of
the witness. Such documents may be
admitted in evidence as exhibits without
being formally proved unless the party
charged does not admit the genuineness of
such a document and wishes to crossexamine the witness who is purported to
have signed it. Copies of the exhibits may
be given to the party charged on demand
except in the case of voluminous
documents, where the party charged may
be allowed to inspect the presence of
Inquiry Officer and take notes.

(14) Unless specifically mentioned in
these rules, the provisions by the Code of
Criminal Procedure, 1973 and the Indian
Evidence Act, 1872 shall apply to the
departmental proceedings under these
rules."

4. While passing the order of
compulsory
retirement
against
the
petitioner, the respondent no.1 held that
only one charge regarding unauthorized
absence stood proved whereas the other
charge, i.e., absence from duty without
intimation was not proved in view of the
required information and notice sent by
the petitioner to the concerned authority
from time to time.

5. After the passing of this order, the
petitioner being still ill was treated in the
nearest railway hospital, Ballia/N.E.R.
with effect from 1.11.1994 to 10.11.1994
and a certificate was issued by the
concerned Medical Officer that he was
henceforth fit for duty. On 11.11.1994,
the petitioner approached the Senior
Divisional Medical Officer/ER Hospital,
Mughal Sarai for necessary attestation
and at the back of the fitness certificate it
was endorsed that the petitioner was fit
for duty. The petitioner approached the
concerned authority with the written
application to permit him to join his duty
but he was not allowed on the ground that
he had already been compulsorily retired
with effect from 6.10.1994.

6. The petitioner being aggrieved
preferred an appeal under the Rules
before the respondent no.2, which was
dismissed vide order-dated 31.7.1995.
The said order was intimated to the
petitioner by respondent no.1 annexed
with its order-dated 2.8.1995. Being
aggrieved by the order dated 31.7.1995
the petitioner preferred a revision on
7.12.1994 before the respondent no.3,
which too was dismissed on 22.7.1996 the
information of which was served on the
petitioner through letter dated 26.7.1996.

7. This writ petition has been filed
by
the
petitioner
challenging
the
impugned
orders
dated
6.10.1994,
31.7.1995 and 22.7.1996 passed by
respondents no. 1,2 & 3 respectively, on
the ground that disciplinary proceedings
under Rule 153 of the Rules were initiated
against the petitioner without serving any
charge sheet on him nor he was provided
any reasonable opportunity or facility to
defend his case, even the witnesses were
not
examined
in
accordance
with
procedure and law during the disciplinary
proceedings. Learned counsel for the
petitioner
has
also
submitted
that
compulsory retirement of an employee
can be made only after he has either
attained the age of 50 years or 55 years, as
the case may be, in terms of F.R. 56 (j) of
the
Fundamental
Rules
and
Supplementary
Rules
Chapter
IX
(hereinafter
referred
to
as
'the
Fundamental Rules'), which deals with
retirement and not otherwise, and thus the
4 All] Virendra Pd. Dubey V. Senior Divisional Security Commissioner R.P.F. and others
1255
petitioner had been wrongly and illegally
retired compulsorily prematurely at the
age of about 35 years only. He has
further contended that there being no
dispute that the petitioner had been ill and
had been submitting proper medical
certificates
regularly,
the
award
of
punishment of removal from service by
way of compulsory retirement was wholly
unreasonable and disproportionate to the
alleged charge of misconduct and also
that no punishment could be awarded on
the basis of the charge no. 2 which was
only consequential to charge no. 1, which
admittedly had not been proved and
dropped by the disciplinary authority. It
has been specifically stressed by the
learned counsel for the petitioner that the
impugned order of punishment of removal
from service by way of compulsory
retirement passed by the disciplinary
authority, which was affirmed in appeal
and revision, by quasi-judicial orders also
demonstrates complete non-application of
mind. Relevant portions of Rule 56 (j) of
the Fundamental Rules reads as under:

"56 (j) Notwithstanding anything
contained in this rule, the appropriate
authority shall, if it is of the opinion that it
is in the public interest so to do, have the
absolute right to retire any Government
servant by giving him notice of not less
than three months in writing or three
months' pay and allowances in lieu of
such notice:.

(i) if he is, in Group 'A' or Group 'B'
service or post in a substantive, quasipermanent or temporary capacity and hd
entered
Government
service
before
attaining the age of 35 years, after he has
attained the age of 50;
(ii)in any other case after he has attained
the age of fifty- five years;
Provided that nothing in this clause shall
apply to a Government servant referred to
in clause (e), who entered Government
service on or before the 23rd July, 1966."

Learned counsel for the petitioner in
support of his arguments has placed
reliance upon the decisions rendered in
Marari Mohan Deb Vs. Secretary to the
Government of India & others (AIR 1985
S.C. 931) and in Bhagwan Lal Arya Vs.
Commissioner of Police, Delhi & others
(2004) 2 UPLBEC 1294).

8. The case of the respondents, as
referred to in paras-4 & 5 of the counter
affidavit is that the petitioner had
absented himself from duty without any
authority and did not report thereafter till
his services were dispensed with by virtue
of his compulsory retirement under the
provisions of Rule 153 of the Rules. Since
the charges were of very serious nature,
the petitioner deserved the punishment
awarded
to
him.
Learned
counsel
appearing for the respondents placed
reliance on a decision of Punjab and
Haryana High Court given on May 22,
1998 in the case of Raj Kumar Vs. Union
of India & others (Writ Petition No. 9129
of 1997).

9. I have looked into the record of
the case and heard learned counsel for the
parties at length and on the above
pleadings, the following questions of law
arise for consideration;

1.
Whether the impugned order of
major punishment by way of
compulsory retirement prematurely
awarded to the petitioner who had
only attained the age of 35 years
and had completed only 10 years of
1256 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
service is in breach of the Rule 56
(j) of the Fundamental Rules?

2.
Whether the major penalty inflicted
on
the
petitioner
is
grossly
disproportionate to the misconduct
alleged against him and, therefore,
is
totally
unjust,
unfair
and
inequitable as contended?

10. From perusal of the pleadings of
the parties and after hearing learned
counsel for the parties, I find that it is
admitted by the respondents that out of
two charges framed against the petitioner,
one charge regarding absence from duty
without intimation was not made out since
required
information's
and
notices
regarding ill-health and treatment sent by
the petitioner was duly received by the
concerned authorities from time to time,
whereas on the charge of unauthorized
absence from duty he has been removed
from service imposing major punishment
of compulsory retirement prematurely. As
per law the petitioner could be retired
compulsorily prematurely only in strict
compliance of the Rule 56 (j) of the
Fundamental Rules and not otherwise.
The learned counsel for the respondents
has been unable to show any other
provisions of law applicable to the case of
the petitioner under which compulsory
premature retirement order could be
passed. Thus when no such compulsory
premature
retirement
order
could
normally be passed in the case of the
petitioner then the same could not be
imposed by way of major punishment
either.

11. The relevant Rule 56 (j) of the
Fundamental Rules provides that the
appropriate authority if is of the opinion
that it is in the public interest to
compulsorily
retire
prematurely
a
Government servant, he has the absolute
right to retire the Government servant
provided the Government servant had
attained the age of 50 years as per subclause (i) or in any other case after he has
attained the age of fifty five years as per
sub clause (ii) of this Rule. In my view by
no stretch of imagination the alleged
misconduct against the petitioner can be
considered to be an act of grave
misconduct or continued misconduct
indicating incorrigibility and complete
unfitness for service of the petitioner. It is
not the case of the respondents that the
petitioner was habitual absentee. He had
to proceed on leave under compulsion
because of his grave condition of health.
It is settled law that the order of dismissal/
removal from service can be awarded
only for the acts of grave nature or as
cumulative
effect
of
continued
misconduct preventing incorrigibility or
complete unfitness for police service.
Merely one incident of absence and that
too because of bad health and being on
valid and justified grounds/ reasons
cannot become basis to award such
punishment. It is an admitted fact that the
respondents had received the application
for leave alongwith medical certificates.
In such circumstances it can never be
termed as willful absence without any
information to the competent authority
and also can never be termed as grave
misconduct. Under the above said facts
and circumstances and the pleadings of
the instant case, in my view no case to
award such major punishment to the
petitioner is made out and the decision of
the disciplinary authority inflicting a
penalty of removal from service by the
impugned
order
dated
6.10.1994
(Annexure No. 1 to the writ petition) is
ultra vires of Rule 56 (j) of the
4 All] Virendra Pd. Dubey V. Senior Divisional Security Commissioner R.P.F. and others
1257
Fundamental Rules and is liable to be set
aside. The major punishment of removal
from service by way of compulsory
premature
retirement
is
thus
also
excessive and disproportionate. Also
looking into the circumstances of the case
as the petitioner may not get any other job
at his present age and also because of the
stigma attached to him on account of the
impugned punishment as a result of which
not only he but also his entire family,
which is totally dependant on him, will be
forced
to
starve.
Such
mitigating
circumstances warrant that the impugned
order of punishment passed by the
disciplinary
authority
by
way
of
compulsorily
retiring
the
petitioner
prematurely should be quashed. The
above said questions formulated for
considerations are decided accordingly.

12. In the result, the impugned
orders dated 6.10.1994 (Annexure No. 1
to the writ petition) passed by respondent
no.
1-
Senior
Divisional
Security
Commissioner/ R.P.F., Northern Railway,
Allahabad,
order
dated
31.7.1995
(Annexure No. 2 to the writ petition)
passed
by
respondent
no.
2-
the
Additional Chief Security Commissioner/
Railway
Protection
Force,
Northern
Railway, Baroda House, New Delhi and
the order dated 22.7.1996 (Annexure No.
3 to the writ petition) passed by
respondent no. 3- the Chief Security
Commissioner/ Railway Protection Force,
Baroda House, New Delhi are hereby
quashed and the matter is sent back to the
disciplinary authority for considering and
passing a reasoned and speaking order
afresh
in
the
light
of
the
above
observations and in accordance with law
and
procedure
after
affording
full
opportunity to the petitioner within a
period of three months from the date a
certified copy of this order is placed
before
the
disciplinary
authority
concerned by the petitioner.

The writ petition is allowed to the
extent indicated above. No order as to
costs.
-----------