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2016 Supreme(Cal) 858
IN THE HIGH COURT OF CALCUTTA
Sanjib Benerjee, J.
Sudhir Kumar Singh - Petitioner
Versus
Union of India & ors. - Respondents
Decided On : 18-04-2016
W.P. 5824(W) of 2016
For the Petitioner: Mr. Pratik Majumder
For the U.O.I. : Mr. Animesh Kanti Ghoshal, Mr. Kallol Kumar Maity
Suspension of an employee under the Railway Protection Force Rules, 1987, cannot exceed thirty days unless the situations covered by the third proviso to Rule 135 apply, and the employee is deemed to be reinstated if no charge is furnished within that period.
Headnote:
RAILWAY PROTECTION FORCE - SUSPENSION - RAILWAY PROTECTION FORCE RULES, 1987 - RULE 135 - RAILWAY SERVANTS (DISCIPLINE AND APPEALS) RULES, 1968 - SUSPENSION OF EMPLOYEE - PERIOD OF SUSPENSION - CHARGE-SHEET - FURNISHING OF CHARGE-SHEET WITHIN THIRTY DAYS FROM THE DATE OF SUSPENSION - EXTENSION OF SUSPENSION BEYOND THIRTY DAYS - CONDITIONS - LIST OF WITNESSES - OBJECTION TO LIST OF WITNESSES - EXHAUSTION OF DOMESTIC REMEDIES - JURISDICTION OF COURT - REVIEW OF SUSPENSION AFTER 90 DAYS - ENHANCED SUBSISTENCE ALLOWANCE - RAILWAY RULES - APPLICABILITY.
Fact of the Case:
Petitioner, a member of the Railway Protection Force (RPF), was suspended on March 17, 2014, following an incident of attacking a colleague with a country-made revolver. The petitioner was not furnished with a charge-sheet within 30 days from the date of suspension, as required by Rule 135 of the Railway Protection Force Rules, 1987. The petitioner challenged the suspension and the charge-sheet in the High Court.
Finding of the Court:
The High Court held that the petitioner was deemed to have been reinstated in service on April 18, 2014, 30 days after the suspension, as the charge-sheet was not furnished within the prescribed period. The court also held that the petitioner was entitled to full salary from the time he reported for duty at his last place of posting, but only subsistence allowance at the usual rate for the period from April 18, 2014, till the day preceding his next reporting for duty.
Issues: 1. Whether the petitioner was deemed to have been reinstated in service after 30 days of suspension due to the failure of the respondents to furnish a charge-sheet within the prescribed period? 2. Whether the petitioner's objection to the charge-sheet and the list of witnesses recorded thereunder was premature and should be addressed in the domestic forum?
Ratio Decidendi: 1. The court held that Rule 135 of the Railway Protection Force Rules, 1987, clearly provides that an employee cannot remain suspended before disciplinary action for more than thirty days prior to the charge being furnished, unless the situations covered by the third proviso to the Rule apply. 2. The court held that the petitioner's grievance pertaining to the charge-sheet and the list of witnesses recorded thereunder was premature and should be addressed in the domestic forum, as it was not the petitioner's case that the charge-sheet did not disclose any misconduct or that the same had been issued in error of jurisdiction or was absurd.
Final Decision: 1. The court held that the petitioner was deemed to have been reinstated in service on April 18, 2014, and was entitled to full salary from the time he reported for duty, but only subsistence allowance at the usual rate for the period from April 18, 2014, till the day preceding his next reporting for duty. 2. The court declined to entertain the petitioner's grievance pertaining to the charge-sheet and the list of witnesses recorded thereunder at that stage and directed the petitioner to pursue the objections before the domestic forum.
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. 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 Rul
