Surya Mani Sharma & Ors vs Union Of India & Ors

SURYA MANI SHARMA & ORS. ..... APPELLANTS

VERSUS

UNION OF INDIA & ORS. ..... RESPONDENTS

O R D E R

1. By this common judgment and order, we propose to

dispose of all these appeals as the issues raised are

interconnected and similar.

2. The appellants herein were Constables (Rakshak)

[one being Head Rakshak and the other two being

Rakshaks] with the Railway Protection Force. One of the

respondents herein namely Sub Inspector (Investigation),

Railway Protection Force lodged a complaint in respect

of theft of G.P. Sheets at Police Station Hirapur,

Disrict Burdwan. A case was registered and thereafter

the appellants were put under suspension. However,

subsequently, the aforesaid order of suspension was

revoked. After revocation of the aforesaid suspension

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order an order was passed by the respondents terminating

the services of the appellants herein by exercising the

power vested under Rule 47 of the Railway Protection

Force Rules, 1959. The said order was passed on 5th

February, 1981.

3. The aforesaid order came to be challenged by the

appellants by filing a writ petition in the High Court

which was registered as Civil Rules No. 1117W to 1119W

of 1981. A learned Single Judge of the Calcutta High

Court took up the aforesaid Writ Petitions for final

hearing and by judgment and order dated 14th March, 1991

the said writ petitions were allowed and the impugned

order of termination was set aside. The High Court also

directed that the appellants should be reinstated in

service and the period of suspension would be treated as

the period spent on duty and that the appellants would

be entitled to all service benefits excepting the

arrears of salaries which the Court directed that they

would receive only to the extent of 50 per cent of the

arrears of salaries which would have been payable to

them had they continued in service.

4. Being aggrieved by the said judgment and order

dated 14th March, 1991, of the learned Single Judge of

the Calcutta High Court, an appeal was filed before the

Division Bench of the High Court. The High Court,

C.A. Nos. 1471-1473 of 2005

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however, allowed the said appeal holding that the order

passed by the respondents terminating the service was

justified. According to the Division Bench, it was a

case where it was not reasonably practicable to hold an

inquiry. However, the appellants being aggrieved filed

the present appeals on which we have heard the learned

counsel appearing for the parties.

5. When the matter was taken up, the counsel

appearing for the parties have taken us through the

records. A perusal of the said record indicates that

the records showing the satisfaction of the Authority

that it was not possible to hold an inquiry due to the

circumstances and the reasons which were formally

recorded in the records of the respondents could not be

produced before the learned Single Judge by the

respondents or even before us. The learned Single Judge

in the judgment had observed that the report of the

inquiry dated 10th October, 1980, had not been produced

before the Court. Since no material was placed which

could justify the action taken under Rule 47 of the

Railway Protection Force Rules, the order terminating

the service was set aside. The Division Bench, however,

has referred to reasons recorded insofar as S.M. Sharma

is concerned which is extracted from the order itself

which was issued under Rule 47 of the Rules aforesaid.

C.A. Nos. 1471-1473 of 2005

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It does not appear from the tenor of the said judgment

that any additional record wherein such satisfaction was

recorded was produced before the Division Bench.

6. Before us also no such record is placed either by

filing a counter affidavit or otherwise and, therefore,

it could not be shown to us that any reason has been

recorded to justify the action of not holding an

appropriate inquiry which is required to be done

otherwise. The power provided to the Authority under

Rule 47 is an extraordinary power which must be

exercised with due care and attention and also upon

proper application of mind. Such a power cannot be

exercised arbitrarily as in the present matter the

respondents have not been able to show us any record to

justify the action of the respondent in not holding an

inquiry.

7. Therefore, we are of the opinion that the impugned

judgment and order passed by the Division Bench is

required to be set aside which we hereby do. While

doing so, we restore the order of the learned Single

Judge. We are however, informed that except for

appellant No. 4 Bhanu Pratap Dubey all other appellants

have already reached the age of superannuation. We are

also informed that all the appellants were reinstated in

service after the order was passed by the learned Single

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Judge and received the benefit till June, 2002 i.e., all

the benefits that were ordered to be given to them by

the learned Single Judge. However, since the order of

the learned Single Judge was set aside by the Division

Bench on 13th March, 2002, thereafter the services of the

appellants again stood terminated and they remained out

of service till the date of their superannuation. We,

however, do not intend to pass any order for payment of

any back wages for the aforesaid period from 2002 namely

the date of their subsequent order of release on till

the date of their superannuation/reinstatement but we

order that all these appellants shall be entitled to

continuity of service and other benefits for the purpose

of payment of pension and gratuity.

8. As informed earlier by the learned counsel that

Bhanu Pratap Dubey is yet to attain the age of

superannuation, he shall, therefore, be reinstated in

service giving him continuity of service and all other

benefits but except for payment of any arrear salaries

between the period from 2002 to the date of

reinstatement which shall be issued by the respondents

as expeditiously as possible preferably within a period

of four weeks from the date of receipt of copy of this

order.

9. We dispose of the appeals in terms of the

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aforesaid observations.

.........................J [DR. MUKUNDAKAM SHARMA]

.........................J [ANIL R. DAVE] NEW DELHI SEPTEMBER 07, 2011.