2026 INSC 1047 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2026

(Arising out of SLP (C) No. 13645 of 2023)

UNION OF INDIA & ORS. … APPELLANTS

VERSUS

RAMDHANI PRASAD … RESPONDENT

J U D G M E N T

VIPUL M. PANCHOLI, J.

1. Leave granted.

2. The present appeal assails the judgment and order dated

12.01.2023 passed by the High Court of Judicature at Allahabad

in Second Appeal No. 676 of 1991, whereby the High Court

dismissed the second appeal preferred by the present appellants

and affirmed the judgment and order dated 07.12.1990 passed in

Civil Appeal No. 30 of 1989 by the learned Additional Civil Judge,

Gorakhpur (for brevity, “the First Appellate Court”). The High

Court held that the respondent had been appointed as a ‘Rakshak’

2

in the Railway Protection Special Force (for brevity, “the RPSF”) by

the Commandant/Chief Security Officer and therefore, his

removal by the subordinate authority i.e. the Adjutant/Assistant

Commandant, was in violation of Article 311(1) of the Constitution

of India (for brevity, “the Constitution”).

2.1. The First Appellate Court allowed the appeal preferred by

the present respondent and reversed the judgment and

order dated 03.12.1988 passed in Case No. 2662 of 1986

by the learned Additional Munsif Magistrate, Gorakhpur

(for brevity, “the Trial Court”). The First Appellate Court

held that the respondent had been appointed by the

Commandant/Chief Security Officer pursuant to the call

letter dated 03.05.1979, whereas the order of removal dated

18.03.1983 was passed by the Adjutant, who was

subordinate to the appointing authority. Therefore, it was

held that the removal was contrary to Article 311(1) of the

Constitution. It was further held that the ex-parte

departmental enquiry had denied the respondent a

reasonable opportunity of defending himself, particularly in

view of his medical condition and accordingly, declared the

3

order of removal dated 18.03.1983 and the departmental

appellate order dated 07.11.1984 invalid.

2.2. The Trial Court, on the other hand, held that the present

respondent (original plaintiff) was validly appointed as a

Rakshak by the Assistant Commandant vide Battalion

Order dated 04.12.1979, upon successful completion of his

initial training. It further held that the Adjutant was

competent to pass the order of removal in accordance with

the applicable Railway Protection Force Rules, 1959 (for

brevity, “the Rules”) and that the order of removal had been

validly passed.

3. As per the pleadings of the parties, the material facts giving rise to

the present appeal are set out hereinbelow:

3.1. The respondent was enlisted as a Recruit (under training)

for the post of Rakshak in the RPSF and was called upon to

report for training at the Battalion headquarters of 2Bn

RPSF, Gorakhpur, vide call letter dated 03.05.1979 issued

by the Commandant. The said call letter, inter alia, provided

that the appointment was subject to successful completion

4

of the prescribed initial training and provided for a period

of probation.

3.2. Upon successful completion of the initial training, B.O. No.

2BN/9/4/9/409 dated 04.12.1979 was issued by the

Assistant Commandant from Headquarters, 2nd Battalion,

RPSF, Gorakhpur, recording that the concerned recruits

had been appointed as Rakshaks with effect from

04.12.1979 and posted to their respective battalions. The

respondent, at Serial No. 47, was allotted personal number

2612 and posted to the 7th Battalion.

3.3. Thereafter, Battalion Order No. 461/1979 dated

29.12.1979 was issued by the Adjutant for Commandant.

The said Order was subsequently superseded by Battalion

Order No. 58/1980 dated 25.02.1980 issued by the

Adjutant for Commandant, which recorded that the

concerned Rakshaks had already been issued appointment

orders with effect from 04.12.1979 by the Assistant

Commandant of the 2nd Battalion and were accordingly to

be treated as regular Rakshaks with effect from that date.

5

3.4. While in service, the respondent was granted 15 days of

Casual Leave along with Permission Leave from 09.05.1982

to 26.05.1982 however he failed to resume duty on

27.05.1982 and remained absent until 06.08.1982, for a

period of 72 days, without any intimation to the competent

authority.

3.5. Consequently, a charge-sheet dated 01.10.1982 was issued

to the respondent under Rule 44 of the Rules, stating gross

negligence and breach of discipline. The respondent

acknowledged receipt of the charge-sheet and submitted his

response. Thereafter, the Enquiry Officer fixed the

departmental enquiry for 01.01.1983 and communicated

the same to the respondent.

3.6. Vide order dated 01.01.1983, the Enquiry Officer recorded

that the respondent had failed to appear for the enquiry and

that the memorandum of charges could not be served upon

him. The Enquiry Officer thereafter recorded the statement

of the concerned Company Commander, who deposed that

the respondent had been granted leave from 09.05.1982 to

26.05.1982 but had failed to resume duty on 27.05.1982.

6

It was further stated that the respondent subsequently

reported for duty on 05.08.1982 along with a private

medical certificate, whereupon he was sent for medical

examination and was taken on duty after being declared fit.

Thereafter, the Enquiry Officer proceeded ex-parte and

submitted his report to the disciplinary authority.

3.7. On 24.02.1983, the Enquiry Officer submitted his report

holding that the charges levelled against the respondent

stood established.

3.8. Thereafter, a Show Cause Notice dated 26.02.1983 was

issued by the Adjutant to the respondent proposing the

penalty of removal from service. The respondent did not

submit any representation in response to the said notice.

Consequently, the Adjutant passed the order dated

18.03.1983 removing the respondent from service.

Aggrieved thereby, the respondent preferred an appeal

before the Commandant, which came to be rejected vide

order dated 07.11.1984.

3.9. Aggrieved by the order of removal and the departmental

appellate order, the respondent instituted a civil suit before

7

the Trial Court seeking, inter alia, a declaration that the

order of removal dated 18.03.1983 and the appellate order

dated 07.11.1984 were illegal, void and contrary to the

principles of natural justice and Article 311 of the

Constitution. The Trial Court dismissed the suit, holding

that the respondent had been validly appointed by the

Assistant Commandant and that the order of removal had

been validly passed by the Adjutant, who was an officer not

below the rank of Assistant Commandant.

3.10. Thereafter, the respondent preferred an appeal before the

First Appellate Court. The First Appellate Court allowed the

appeal and held that the order of removal dated 18.03.1983

and the appellate order dated 07.11.1984 were invalid, as

the respondent had been appointed by the

Commandant/Chief Security Officer, whereas the order of

removal had been passed by the Adjutant, who was

subordinate in rank to the appointing authority and

accordingly, the order of removal was in violation of Article

311(1) of the Constitution.

8

3.11. Aggrieved by the judgment of the First Appellate Court, the

appellants preferred a second appeal before the High Court.

The High Court, by the impugned judgment and order dated

12.01.2023, dismissed the second appeal and affirmed the

judgment of the First Appellate Court. The High Court

proceeded on the basis that the respondent had been

appointed by the Chief Security Officer/Commandant,

whereas his removal had been ordered by the Assistant

Security Officer/Assistant Commandant/Adjutant, who

was subordinate to the appointing authority, and

consequently held that the order of removal was in violation

of Article 311(1) of the Constitution.

3.12. Aggrieved by the impugned judgment and order passed by

the High Court, the appellants have preferred the present

appeal before this Court.

4. Mr. Vikramjit Banerjee, learned Additional Solicitor General

appearing on behalf of the appellants, made the following

submissions:

4.1. Learned counsel submitted that the impugned judgment

proceeds on an erroneous factual premise that the

9

respondent was appointed by the Chief Security

Officer/Commandant. According to learned counsel, the

appointment order dated 04.12.1979 demonstrates that the

respondent was appointed as a Rakshak by the Assistant

Commandant, 2nd Battalion, RPSF, Gorakhpur. The earlier

communication dated 03.05.1979 issued by the

Commandant was merely a call letter requiring the selected

candidates to join initial training and did not constitute an

appointment order. It is submitted that the Call Letter was

merely a direction to report for the mandatory initial

training and did not constitute an appointment, as there is

no provision within the RPSF framework to appoint any

staff prior to the successful completion of the initial

training. Therefore, it is submitted that the High Court as

well as the First Appellate Court erred in treating the call

letter dated 03.05.1979 as the appointment order of the

respondent and on that basis holding that the Assistant

Commandant/Adjutant was subordinate to the appointing

authority.

10

4.2. It is further submitted that the appointment order dated

04.12.1979 was accompanied by the posting order of the

respondent to the 7th Battalion, RPSF and thus constituted

the operative appointment order. The subsequent Battalion

Order No. 58/1980 dated 25.02.1980 further confirmed

that, upon successful completion of initial training, the

respondent had been appointed as a Rakshak with effect

from 04.12.1979. Reliance is placed on Ramanand Singh

v. State of Bihar ,

1 wherein this Court held that

appointment and posting orders can be simultaneously

issued.

4.3. It is contended that under the Rules, the Assistant Security

Officer/Assistant Commandant was competent to appoint a

Rakshak under Rule 20 read with Schedule I and was also

empowered under Rule 43 read with Schedule II to impose

the prescribed disciplinary penalties, including removal

from service. Therefore, the Adjutant/Assistant

Commandant who passed the order dated 18.03.1983 was

not an authority subordinate to the appointing authority,

1

(1984) 2 SCC 447.

11

but an authority competent to exercise the relevant

disciplinary powers under the Rules.

4.4. It is further contended that the respondent had been

proceeded against for gross negligence and breach of

discipline on account of his prolonged and unauthorised

overstay after expiry of sanctioned leave. A charge-sheet

dated 01.10.1982 was issued under Rule 44 of the Rules,

which, according to the appellants, was acknowledged by

the respondent and followed by his written defence. Then,

an Enquiry Officer was appointed and the respondent was

informed of the date of enquiry. Despite such notice, the

respondent failed to appear, resulting in the enquiry

proceeding ex-parte. Thereafter, the disciplinary authority

considered the enquiry report and issued a show-cause

notice before passing the order of removal dated

18.03.1983.

4.5. Learned counsel further relied upon the service record of

the respondent to contend that the incident in question was

not an isolated instance but formed part of a pattern of

overstaying sanctioned leave on earlier occasions. It is

12

submitted that the respondent had remained absent

without authority for a substantial period from 27.05.1982

to 06.08.1982, despite being required to resume duty on

27.05.1982. It is further submitted that although the

respondent was given full opportunity to participate in the

enquiry and was even declared “fit for travel” by the railway

doctor, he willfully failed to attend the departmental

enquiry and that is why the enquiry proceeded ex-parte.

4.6. It is urged that the respondent has been out of service since

his removal on 18.03.1983 and therefore, the well-settled

principle of “No work, no pay” applies to him, which

provides that the employee has to prove by leading evidence

that he was not gainfully employed during the period he

remained out of employment. Reliance is placed upon the

decision of this Court in the case of P. Karuppaiah (Dead)

through Legal Representatives v. General Manager,

Thiriuvalluvar Transport Corporation Limited .

2

4.7. Lastly, it is submitted that the present case is covered by

the judgment of this Court in the case of Union of India &

2

(2018) 12 SCC 663.

13

Anr. v. Chandra Pal Pandey and the connected matter ,

3

wherein it was held that the power of appointment does not

rest exclusively with the Chief Security Officer only and

other superior officers can also make appointments, in

accordance with the delegation and rules. Therefore,

learned counsel prayed that the impugned judgment be set

aside and the order of removal of the respondent be

restored.

5. Mr. Mananjay Mishra, learned counsel appearing on behalf of the

respondent, submitted that the impugned judgment of the High

Court does not warrant any interference of this Court.

5.1. It is submitted that the respondent was appointed by the

Commandant/Chief Security Officer, 2nd Battalion, RPSF,

Gorakhpur and not by the Assistant Commandant. The

communication dated 03.05.1979 issued by the

Commandant was the appointment order pursuant to

which the respondent joined the service and underwent

initial training. The subsequent order dated 04.12.1979

issued by the Assistant Commandant was only a posting

3

1993 Supp (2) SCC 176.

14

order issued after completion of training and could not be

treated as the respondent's appointment order.

5.2. It is also submitted that the respondent had also been

issued a certificate of appointment by the Chief Security

Officer/Commandant and that the First Appellate Court

had correctly appreciated the documents on record,

particularly Paper No. 65-Ka, establishing that the

respondent had been appointed by the Commandant. The

finding of the First Appellate Court, according to the

respondent, was based upon the documentary evidence and

was rightly affirmed by the High Court.

5.3. It is further submitted that once the Commandant/Chief

Security Officer is treated as the appointing authority, the

order of removal dated 18.03.1983, passed by the

Adjutant/Assistant Commandant, was contrary to Article

311(1) of the Constitution, since the removing authority

was subordinate in rank to the authority which had

appointed the respondent. Reliance is placed upon the

judgment of this Court in Krishna Kumar v. Divisional

15

Assistant Electrical Engineer, Central Railway ,

4

wherein this Court held that the protection under Article

311(1) is attracted with reference to the authority by which

the employee was appointed and that delegation of the

power of appointment does not alter the hierarchical status

of the delegate. An officer subordinate in rank does not

become equal in rank merely because certain powers of

appointment have been delegated to him. Learned counsel

submitted that the principle in Krishna Kumar (supra)

supports the case of the respondent and the relevant

enquiry was not merely whether the Assistant

Commandant possessed disciplinary powers under the RPF

Rules, but who had appointed the respondent. If the

Commandant/Chief Security Officer was the appointing

authority, the subsequent conferment or exercise of

disciplinary powers by a subordinate officer could not

overcome the constitutional protection under Article 311(1).

5.4. Learned counsel also relied upon Ramanand Singh

(supra) in support of the proposition that the question of

4

(1979) 4 SCC 289.

16

the appointing authority has to be determined from the

actual appointment and the contemporaneous orders

constituting the appointment and posting of the employee.

It is submitted that on a proper appreciation of the

documents in the present case, the order dated 03.05.1979

issued by the Commandant constituted the appointment,

whereas, the order dated 04.12.1979 merely related to

posting after completion of training.

5.5. Learned counsel stated that the appellants’ reliance upon

Rule 20 read with Schedule I and Rule 43 read with

Schedule II of the RPF Rules, 1959, is misplaced. It is

contended that the fact that the Assistant Security

Officer/Assistant Commandant/Adjutant may have been

vested with certain powers under the Rules did not answer

the constitutional question under Article 311(1) and the

material question remained whether the authority passing

the order of removal was subordinate in rank to the

authority which had appointed the respondent.

5.6. It is submitted that the departmental enquiry itself stood

vitiated by a gross violation of the principles of natural

17

justice. The respondent had been directed to appear before

the Enquiry Officer on 01.01.1983, but he could not attend

because he was suffering from illness and was undergoing

treatment at the Railway Hospital, Gorakhpur. Despite the

respondent having intimated his illness, the Enquiry Officer

proceeded ex-parte and concluded the proceedings on the

very same day after recording the evidence of the

prosecution witness. It is urged that the contemporaneous

medical record established that the respondent was under

treatment from 29.12.1982 to 07.03.1983 and was declared

fit only on 08.03.1983. Therefore, the respondent could not

have been treated as deliberately avoiding the enquiry. The

subsequent medical correspondence obtained by the

department itself corroborated the illness of the respondent

during the relevant period.

5.7. It is further submitted that the respondent had requested

supply of the charge-sheet and relevant documents so as to

enable him to prepare his defence, however, the charge-

sheet was never duly served upon him and, significantly,

the contemporaneous proceedings dated 01.01.1983

18

recorded that the memorandum of charges could not be

served upon the respondent on account of his non-

appearance and that the enquiry thereafter proceeded ex-

parte. Learned counsel submitted that consequently, the

respondent was deprived of a meaningful opportunity to

defend himself. It is further submitted that the show-cause

notice dated 26.02.1983 was also not served upon the

respondent and was returned undelivered, while he was

undergoing treatment at the Railway Hospital. Therefore, it

is submitted that the final order of removal dated

18.03.1983 was passed without affording him an effective

opportunity to represent against the findings of the enquiry.

5.8. On the allegation of unauthorised overstay, learned counsel

submitted that the respondent had suffered an accident on

25.05.1982, resulting in a fracture of his left hand and the

respondent continued being absent after expiry of leave due

to the treatment for his injury. Thereafter, the respondent

reported back, produced medical documents, was medically

examined and then he was declared medically fit.

Thereafter, the respondent approached the department and

19

repeatedly sought permission to resume duty and then

pursued his departmental remedies and instituted civil

proceedings challenging the removal order. Therefore, it is

submitted that the subsequent conduct of the respondent

also demonstrates that he had not voluntarily abandoned

service and thus the allegation of deliberate or habitual

misconduct is without any merit.

5.9. Lastly, learned counsel submitted that the First Appellate

Court had, upon appreciation of the evidence, set aside the

orders dated 18.03.1983 and 07.11.1984 and the High

Court had rightly affirmed those findings and therefore, the

present appeal ought to be dismissed.

6. Having heard learned counsel for the parties and having perused

the material on record, the principal question which arises for our

consideration is whether the respondent was appointed to the post

of Rakshak by the Commandant/Chief Security Officer pursuant

to the Call Letter dated 03.05.1979, as held by the First Appellate

Court and affirmed by the High Court, or whether his appointment

was made by the Assistant Commandant/Assistant Security

20

Officer pursuant to the B.O. No. 2BN/9/4/9/409 dated

04.12.1979.

7. The answer to this question must be analyzed from the

contemporaneous documentary record. The Call Letter dated

03.05.1979, was issued by the Commandant, to the selected

candidates to report for the prescribed initial training and the

respondent was required to undergo such training before being

appointed as a regular Rakshak. The Call Letter made the

proposed appointment expressly conditional upon successful

completion of such training. The relevant paragraphs of the Call

Letter read as under:

“4. Your appointment as a RK in RPSF, in scale of Rs.200-240 plus allowances

and special pay, will subject to your successful completion of initial training. You

should note that your failure to qualify the prescribed training will render you

liable to be discharged from service.

…

9. If you accept the offer on the terms and conditions stipulated above, you

should report to No.2 Battalian Railway Protection Special Force, P.O., Rejshi

Camp, Gorakhpur [U.P] by 3.5.79 failing which it will be deemed that you are not

interested in the appointment as such your candidature for the post will be

treated as cancelled.

…

Sd/-

COMMANDANT”

8. Upon successful completion of the initial training, Battalion Order

No. 2BN/9/4/9/409 dated 04.12.1979, was issued by the

Assistant Commandant, which records the appointment of the

21

recruits as Rakshaks with effect from 04.12.1979 and were posted

to the respective Battalions. The respondent was allotted personal

number 2612 and posted to the 7th Battalion. Subsequently,

Battalion Order No. 58/1980 dated 25.02.1980 expressly recorded

that the appointment orders as Rakshaks had already been issued

with effect from 04.12.1979. The relevant paragraphs of the

Battalion Order dated 04.12.1979 reads as under:

“On successful completion of initial training the following RK/ Rects. Of ‘E’ [Tra]

Coy who are already allocated to different Battalions are appointed as RK in

grade Rs.200-240 and Rs.25/- Spl. Pay per month with affect from 4.12.1979,

plus usual allowance admissible under rules from time to time are posted to the

Bns as noted against each.

…

47 2612 Ram Dhani Pd. Panchu -do-

…

Sd/-

ASSTT. COMMANDANT

NO.2BN /RPSF/GKP.”

9. On perusal, we are of the view that the distinction between the two

documents is material. The Call Letter dated 03.05.1979 did not

contain an unconditional declaration that the respondent stood

appointed as a regular Rakshak, however, it expressly made the

proposed appointment conditional upon successful completion of

initial training and used expressions such as “accept the offer” and

“candidature for the post”. Consequently, the respondent was

22

required to successfully complete the prescribed training before

his appointment could take effect as a regular member of the

RPSF.

10. In contrast, the Battalion Order dated 04.12.1979 recorded that

on successful completion of initial training, the concerned recruits

were “appointed as RK” in the prescribed grade with effect from

04.12.1979 and were posted to the respective Battalions. The

submission of the respondent that the Order dated 04.12.1979

was merely a posting order is misplaced, because an order may

validly operate as both an order of appointment and an order of

posting as held in the decision of Ramanand Singh (supra).

11. The subsequent Battalion Order No. 58/1980 dated 25.02.1980

also recorded that the recruits, including the respondent, who had

successfully completed their initial training and whose

appointment orders as Rakshaks with effect from 04.12.1979 had

already been issued, were to be treated as regular Rakshaks. It

further recorded that the personal numbers subsequently allotted

under the earlier order stood cancelled since personal numbers

had already been allotted under the order dated 04.12.1979.

23

12. However, the First Appellate Court proceeded on the basis that the

Call Letter dated 03.05.1979 constituted the appointment order

and that the Order dated 04.12.1979 was merely a posting order.

The High Court adopted the same approach and consequently

proceeded to examine the validity of the removal order on the basis

that the Commandant/Chief Security Officer was the appointing

authority. In our view, the Courts below erred in the interpretation

of the language used in the two documents.

13. It is well settled that while determining the authority by which an

employee was appointed for the purposes of Article 311(1) of the

Constitution, the court is required to ascertain the authority which

in fact made the appointment with reference to the order of

appointment and the statutory or regulatory framework governing

such appointment. Once that authority is identified, the

constitutional protection under Article 311(1) has to be examined

with reference to the hierarchical position of the authority which

subsequently passes the order of dismissal or removal.

14. A similar view was taken by this Court in Krishna Kumar (supra),

the relevant paragraphs are reproduced as under:

“4. Article 311(1) of the Constitution provides that no person who is a member of

a civil service of the Union or an all-India service or a civil service of a State or

24

holds a civil post under the Union or a State shall be dismissed or removed by

an authority subordinate to that by which he was appointed. The simple question

for determination is whether, as alleged by the appellant, he was removed from

service by an authority subordinate to that which had appointed him. The

relevant facts are but these and these only: The appellant was appointed as a

Train Lighting Inspector under an order issued by the Chief Electrical Engineer

and was removed from service under an order passed by the Divisional Assistant

Electrical Engineer, Central Railway, Nagpur. The narrow question, therefore, for

consideration is whether the Divisional Assistant Electrical Engineer is

subordinate in rank to the Chief Electrical Engineer. None of the affidavits filed

by Shri Sarathy, who passed the order of removal says that the post of Divisional

Assistant Electrical Engineer is equivalent to that of the Chief Electrical Engineer

in the official hierarchy. That the former is not higher in rank than the latter is

self-evident. In the circumstances, it seems clear that the appellant was removed

from service by an authority which is subordinate in rank to that by which he

was appointed.

…

6. Besides, delegation of the power to make a particular appointment does not

enhance or improve the hierarchical status of the delegate. An Officer

subordinate to another will not become his equal in rank by reason of his coming

to possess some of the powers of that another. The Divisional Engineer, in other

words, does not cease to be subordinate in rank to the Chief Electrical Engineer

merely because the latter's power to make appointments to certain posts has

been delegated to him.”

15. Applying the aforesaid principle to the present case, we are of the

view that the appointment of the respondent as a regular Rakshak

was made pursuant to Battalion Order No. 2BN/9/4/9/409 dated

04.12.1979 issued by the Assistant Commandant, 2nd Battalion,

RPSF, Gorakhpur. The name of the respondent, personal number

and posting are specifically recorded therein. The subsequent

Battalion Order dated 25.02.1980 further confirms that his

appointment as a regular Rakshak had already been made with

effect from 04.12.1979. Thus, the documents do not support the

conclusion of the First Appellate Court and the High Court that

25

the Commandant/Chief Security Officer was the authority which

appointed the respondent.

16. Having determined the identity of the appointing authority, the

next question is whether the Adjutant who passed the Order of

Removal dated 18.03.1983 was subordinate in rank to the

Assistant Commandant who had appointed the respondent and

whether the removal of the respondent was in accordance with the

law. The relevant extract of the Order of Removal is reproduced as

under:

“I have no option to held the case indefinitely and by his conduct makes to believe

that he is not interested in his service. I confirm the penalty as proposed in the

show cause notice of removal from service with immediate effect.

Sd/-

(I. J. Singh)

Adjutant.

No. 7BN/DAR/MAJ/28/82- 678 Dated 18.03.1983”

17. At this stage, it is relevant to refer to the statutory scheme

governing the appointment and disciplinary control of members of

the RPSF. Section 4 of the Railway Protection Force Act, 1957 (for

brevity, “the RPF Act”) recognises the offices of Chief Security

Officer, Security Officer and Assistant Security Officer as offices of

superior officers and provides that such officers shall exercise the

powers and authority conferred upon them by or under the Act.

26

Section 6 of the Act provides that the appointment of members of

the Force shall rest with the Chief Security Officer, who is required

to exercise that power in accordance with the Rules made under

the Act. However, the proviso to Section 6 expressly contemplates

that the power of appointment may also be exercised by such other

superior officer as the Chief Security Officer concerned may specify

in that behalf. Thus, the statutory scheme does not make the Chief

Security Officer the exclusive authority competent to make

appointments to the Force. Section 6 of the RPF Act is reproduced

as under:

“6. Appointment of members of the Force – The appointment of members of the

Force shall rest with the Chief Security Officers who shall exercise that power in

accordance with Rules made in this Act.

Provided that the power of appointment under this section may also be exercised

by such other superior officers as the Chief Security Officer concerned may by

order specify in this behalf.”

18. The Rules framed under the Act give effect to this statutory

scheme. Rule 20 provides that the powers of superior officers to

appoint members of the Force shall be as specified in Schedule I.

Schedule I expressly confers upon the Assistant Security Officer

the power to appoint Senior Rakshaks and Rakshaks. The same

are reproduced as under:

“20. POWERS OF APPOINTMENT: - The powers of superior officers to appoint

members of the Force shall be as specified in Schedule-I.

27

…

SCHEDULE-I

(Rule 20)

Powers of Superiors Officers to make appointments to the Force.

Chief Security

Officer

Security Officer Assistant

Security

Officer

All Members

of the Force

Sub-Inspectors,

Assistant Sub-

Inspectors, Head

Rakshaks,

Senior

Rakshaks,

Rakshaks

Senior

Rakshaks,

Rakshaks

…”

19. Thus, the statutory scheme, read with the Rules, recognises the

Assistant Security Officer as a competent authority to appoint a

Rakshak.

20. Similarly, the disciplinary powers are distributed by the Rules.

Rule 43 provides that the disciplinary authority, for the purpose

of imposing any particular penalty or passing any disciplinary

order, shall be the authority specified in Schedule II in whose

administrative control the member of the RPSF is serving and shall

include any authority superior to such authority. Schedule II

confers upon the Assistant Security Officer the power to impose

the penalty of removal upon Senior Rakshaks and Rakshaks. The

same is reproduced as under:

28

“43. DISCIPLINARY AUTHORITY: The disciplinary authority in respect of a

member of the Force for the purpose of imposing any particular penalty or the

passing of any disciplinary order shall be the authority specified in this behalf in

Schedule II in whose administrative control the member is serving and shall

include any authority superior to such authority.

…

SCHEDULE II

(See rules 40 and 43)

Sl.

No

Nature of

Disciplinary

Order

Inspector

General

Chief

Security

Officer

Security

Officer

Assistant

Security

Officer

1. Suspension All Members

of the Force

All Members

of the Force

All Members

of the Force

All Members

of the Force

of and below

the Class of

Sub-

Inspectors

2. (a) Dismissal Do. Do. All members

of the Force

except

Inspectors

and Sub-

Inspectors

No powers

(b) Removal Do. Do. Do. Senior

Rakshaks

and

Rakshaks

…”

21. Section 9 of the RPF Act is also relevant for our consideration, it

provides that subject to Article 311 of the Constitution and the

Rules made under the Act, any superior officer may dismiss,

suspend or reduce in rank a member of the RPSF whom he

considers remiss or negligent in the discharge of his duty or unfit

for the same. Thus, Section 9 makes the exercise of disciplinary

29

power subject both to Article 311 of the Constitution and Rule 43

of the Rules. Section 9 is reproduced as under:

“9. Dismissal, removal, etc. of members of the Force – (1) Subject to the

provisions of Article 311 of the Constitution and to such rules as the Central

Government may make under this Act, any superior officer may -

(i) dismiss, suspend or reduce in rank any member of the Force whom he shall

think remiss or negligent in the discharge of his duty, or unfit for the same; or …”

22. On a conjoint reading of Sections 6 and 9 of the RPF Act and Rules

20 and 43 read with Schedules I and II of the Rules, it is inferred

that although control in the matter of appointment rests with the

Chief Security Officer, the statutory scheme permits the exercise

of the power of appointment by other superior officers competent

under the Rules. The Rules expressly confer upon the Assistant

Security Officer the power to appoint Senior Rakshaks and

Rakshaks and also confer upon such authority the power to

impose the penalty of removal upon Senior Rakshaks and

Rakshaks.

23. This interpretation is consistent with the decision of this Court in

Chandra Pal Pandey (supra), wherein Sections 6 and 9 of the

RPF Act were considered in conjunction with the Rules framed

thereunder, and it was held that the expression that appointment

“shall rest” with the Chief Security Officer does not mean that the

30

power of appointment is exclusively vested in that officer. The

proviso to Section 6 itself contemplates exercise of the power by

other superior officers and the Rules may validly confer such

power upon them. The relevant paragraphs are reproduced as

under:

“14. A bare reading of the Act, particularly Section 6, will show that the Act

contemplates that the “appointment of members of the Force shall rest with the

Chief Security Officer” who is supposed to exercise powers in accordance with

the Rules made under the Act. The proviso to Section 6 contemplates other

authorities being authorised for making the appointment as may be delegated to

such officers by the Chief Security Officer. Therefore, there can be no doubt that

the Act contemplates appointment of members of the Force not only by the Chief

Security Officer but also by others. The question, therefore, arises is what is the

meaning of the expression “appointment of members of the Force shall rest with

the Chief Security Officer”? The expression “rest” in this Section conveys the idea

of overall control of appointment resting with the Chief Security Officer subject to

the provisions of the Rules. As we have stated earlier Section 6 of the Act

contemplates appointment of the members of the Force by such authorities as

may be authorised. The proviso to Section 6 contemplates specifically written

order of delegation by the Chief Security Officer but this does not derogate from

the power of the rule-making authority to confer the said power. The Section and

the proviso in our opinion do not rest the power of appointment merely with the

Chief Security Officer. What is contemplated is that the Chief Security Officer will

have overall control in the matter of appointment and that control be exercised in

accordance with the Rules. If the Rules provide for appointment by other superior

officers, it cannot be said to be in derogation of the Act or the purposes of the Act.

15. A bare reading of Section 9 of the Act also shows that it is only subject to the

provisions of Article 311 of the Constitution and to such rules as the Central

Government may make under the Act, that any superior officer could exercise the

powers mentioned in Section 9(1)(i) of the Act. If only the Chief Security Officer,

who is one of the superior officers, alone has the powers of dismissal on the

hypothesis that he alone was competent to appoint members of the Force then

Section 9 of the Act would not have been worded in the manner it has been so

enacted.”

24. Applying the above discussion to the facts of the present case, the

Order dated 04.12.1979 was issued by the Assistant

Commandant, 2nd Battalion, RPSF, Gorakhpur, expressly

appointing the respondent as a Rakshak with effect from

31

04.12.1979 upon successful completion of his initial training. The

appellants have placed on record that Shri I.J. Singh, the

Adjutant, who passed the Order of Removal dated 18.03.1983, was

of the same rank as the Assistant Commandant/Assistant

Security Officer who had made the appointment. The Trial Court,

upon consideration of the pleadings and evidence, recorded a

finding that the Adjutant was not lower in rank than the Assistant

Commandant. The respondent has not disputed the same and has

not placed anything on record to establish that the Adjutant was

subordinate in rank to the Assistant Commandant who had

appointed the respondent, neither before this Court nor before the

Courts below. As discussed hereinabove, the Assistant

Commandant/Assistant Security Officer/Adjutant is competent to

impose the penalty of removal upon the Rakshaks under the

Rules. At this stage, it is relevant to note that the constitutional

prohibition contained in Article 311(1) is attracted only where the

order of dismissal or removal is passed by an authority

subordinate in rank to the authority by which the employee was

appointed, whereas, this essential ingredient of Article 311 is

absent in the facts of the present case.

32

25. Accordingly, we are of the view that the respondent was appointed

as a regular Rakshak by the Assistant Commandant/Assistant

Security Officer, 2nd Battalion, RPSF, Gorakhpur, pursuant to the

Battalion Order No. 2BN/9/4/9/409 dated 04.12.1979 and the

said order operated as the appointment order as well as the

posting order. The Call Letter dated 03.05.1979 issued by the

Commandant was only a communication requiring the selected

candidates to report for and undergo the prescribed initial training

and did not constitute the operative appointment order.

26. Consequently, the Order of Removal dated 18.03.1983, having

been passed by an authority which was not subordinate in rank

to the authority which had appointed the respondent and which

was competent under Schedule II of the Rules to impose the

penalty of removal upon a Rakshak, cannot be held invalid on the

ground of violation of Article 311(1) of the Constitution. Therefore,

the contrary conclusion reached by the First Appellate Court and

affirmed by the High Court is unsustainable.

27. The respondent has raised a contention before us that the

departmental enquiry stood vitiated on account of violation of the

principles of natural justice. The Trial Court, upon consideration

33

of the material on record, rejected the said contention and held

that the respondent had full knowledge of the charge-sheet, the

appointment of the Enquiry Officer and the disciplinary

proceedings and that there was no material to establish that he

had sought an opportunity to participate in the enquiry or had

otherwise approached the department before the order of removal

was passed. However, the First Appellate Court took a different

view and held that, having regard to the fact that the respondent

was ill on 29.12.1982 and that the enquiry was fixed for

01.01.1983, proceeding ex-parte on the date fixed, without

affording him a further opportunity, had resulted in denial of a

reasonable opportunity of defence. The First Appellate Court also

relied upon the medical record showing that the respondent

remained under treatment up to 07.03.1983 and was declared fit

on 08.03.1983 and consequently, held that the departmental

proceedings were contrary to the principles of natural justice. The

High Court, while affirming the judgment of the First Appellate

Court, did not record any finding on the issue of violation of the

principles of natural justice.

34

28. Upon perusal of the material on record, it transpires that the

respondent had acknowledged receipt of the charge-sheet dated

01.10.1982 and had submitted his response thereto. Thereafter,

the Enquiry Officer fixed the enquiry for 01.01.1983 and notice of

the same was communicated to the respondent. The respondent

failed to appear on the date fixed, whereupon the Enquiry Officer

proceeded ex-parte and submitted his report holding the charges

to be established. Thereafter, a Show Cause Notice dated

26.02.1983 proposing the penalty of removal from service was

issued to the respondent, however, he did not submit any

representation thereto. The principles of natural justice require

that a reasonable opportunity of defence be afforded to the

delinquent employee. In the present case, the respondent was

made aware of the disciplinary proceedings and was afforded an

opportunity to participate therein. Accordingly, on the facts and

circumstances of the present case, the departmental enquiry

cannot be held to be vitiated merely on the ground that it

proceeded ex-parte and therefore, the contention raised by the

respondent alleging violation of the principles of natural justice is

rejected.

35

29. For the aforesaid reasons, the present appeal is allowed. The

judgment and order dated 12.01.2023 passed by the High Court

of Judicature at Allahabad in Second Appeal No. 676 of 1991 is

hereby set aside. Consequently, the judgment and order passed by

the First Appellate Court is also set aside. The Trial Court has not

committed any error while dismissing the suit filed by the present

respondent (original plaintiff). Accordingly, the Order of Removal

of the respondent dated 18.03.1983 passed by the Adjutant is

hereby restored.

30. Pending application, if any, shall stand disposed of.

……………………………..J.

[ARAVIND KUMAR]

……………………………..J.

[VIPUL M. PANCHOLI]

NEW DELHI

SEPTEMBER 24, 2026