Andhra Pradesh High Court - Amravati
Y. Venkateshwarlu vs The Union Of India, Rep. By Its Chief ... on 21 June, 2022
THE HON'BLE Dr.JUSTICE K. MANMADHA RAO
WRIT PETITION No.18529 of 2012
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief:
".....Issue Writ order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent No.3 in imposing the punishment of reduction of the petitioner's rank of ASIPF who is in the grade pay of Rs. 4200/- as Constable in the Grade Pay of Rs.2000/- for a period of 3 years with cumulative effect which is modified by the 2nd respondent vide Proc.Force Order No 88/2012 (X/P.227/153/ Appeal/YV /2012) dated 23.05.2012 to that of reduction to the rank of Head Constable for a period of 2 years with cumulative effect based on the incompetent regular enquiry officer who is in the rank of Inspector/RPF who is below the rank of Asst Security Commissioner who conducted the preliminary enquiry is illegal arbitrary and violative of Article 14, 16, 311 proviso of the Constitution of India apart from the Judgment in W.P.No.23404/2004, dated 22.12.2004 and consequently direct the respondents to continue the petitioner as Assistant Sub Inspector/RPF with all consequential benefits like seniority promotion etc., and pass such other orders."
2. Heard the learned counsel for the petitioner and the learned Standing Counsel for Railways for the respondents.
3. The claim of the petitioner is that he was appointed as R.P.F.Constable on 18.11.1979 and promoted to the post of Assistant Sub Inspector on 01.11.2004. The superior officer of the petitioner by name Sri V.D.Raju started harassing him for not obliging his orders i.e to collect illegal amount from the hawkers in the railway stations and running trains as mamul and to pay the same to him. Thereafter Sri V.D Raju, Sub- Inspector had lodged a false complaint against the petitioner that the petitioner did not book a case against Smt.Rizwana, vendor of eatables, who sell the eatables unofficially in 2 the trains from Kurnool top Dhramavaram, though she was apprehended on 06-06-2010 by the staff of Annathapur and taken to the RPF Office, Ananthapur. Basing on the complaint, the 3rd respondent had appointed K.M.Sukumaran, Assistant Security Commissioner /RPF/ Guntakal as preliminary enquiry officer, who conducted the enquiry and submitted his report to the 3rd respondent vide Proc.No. G/XP.Complaints/ATP/10, dated 14.06.2010. Thereafter he issued a charge sheet No.G/XP.227/153/09/YV/2010, dated 21.06.2010 against the petitioner splitting the same charge into 5 charges and appointed Sri Kota Joji ,IPF/Kadapa as enquiry officer, who cannot be appointed as the enquiry officer as per the railway rules. It is held by this Court in WP No 23404 of 2004, dated 22.12.2004 that the appointment of enquiry officer in the rank of Inspector when the preliminary enquiry conducted by the rank of Assistant Security Commissioner who is admittedly superior officer is bad and against the Railway Rules.
4. Petitioner further contended that basing on the enquiry report of the Sri Kota Joji, who is subordinate to the Assistant Security Commissioner, the 3rd respondent had imposed the punishment of reduction of rank from ASIPF drawing pay at Rs.15,480/- in the pay scale of Rs.5200-20200+G.P.Rs 4200 to Constable at pay of Rs.11,200/- in the scale of pay 5200- 20200+G.P.Rs 2000 for a period of 3 years with cumulative effect vide Divisional Order No.98/2010 (No G/XP.227/153/09/YV/2010),dated 20.10.2010. Aggrieved by the same the petitioner filed a W.P.No 29422 of 2010, dated 19.01.2012 and this Court granted interim orders stating that petitioner to be continued as Assistant Sub- Inspector and writ petition was disposed of directing the petitioner to 3 approach the appellate authority. In pursuance of the same the petitioner had submitted a representation on 17.03.2012 to the 1st respondent to drop the charge against him and to cancel the transfer order, but the 2nd respondent treated as resubmission of the appeal on 08.04.2012 did not consider the grounds and had modified the punishment instead of cancelling the same to that of reduction to the rank of Head Constable for a period of 2 years with cumulative effect vide Proc.No.X/P.227/153/ Appeal/YV/2012 , dated 23.05.2012 and did not consider his revision remedy and passed Force Order No.94/2012 and same was communicated to the 3rd respondent vide letter No. X/P.677/GT/2010/Vol.III, dated 25.05.2012, conforming the revision order to the rank of Head constable for a period of 2 years with cumulative effect vide Force Order No.88/2012, dated 23.05.2012 and consequently the petitioner was transferred to Vijayawada Division, which was communicated by 3rd respondent to the petitioner vide D.O.No.55/2012 (No.G/XP.677/Vol.V/2012), dated 04.06.2012, basing on that report the controlling officer Inspector had relieved the petitioner with normal transfer benefits with effect from 05.06.2012 as per proceedings No.IX/08/TRFD/ATP/2012, dated 05.06.2012, which is illegal and arbitrary.
5. Per contra, the respondents filed counter affidavit by denying all material averments made in the writ affidavit and contending that the petitioner was charged with the major penalty charge sheet under Rule 153 of Railway Protection Force Rules 1987 vide memorandum No:G/XP.227/153/09/YV/2010 dated 21.6.2010, while he was working at Dharmavaram, RPF Out post. The petitioner filed two writ petitions 25328 of 2010 and 29422 of 2010 on the very same issue and not having succeeded in the earlier writ petitions he 4 resorted to filing the this writ petition on the same issues of proceedings vide Divisional Order No. 98 of 2010, dated 20.10.2010 of 3rd respondent and raised the settled issue that he has already adjudicate upon by this Court in W.P.No.29422 of 2010 wherein it was held that the matter decided by the court without touching the merits of the case and petitioner had to approach the appellate authority within 30 days. The news paper cited by the petitioner shows the alleged misbehavior of the RPF officer with a lady hawker and based on that the 3rd respondent issued a major penalty and appointed Sri.Kota Joji to conduct a regular DAR enquiry. Petitioner had not submitted any appeal inspite of court direction and after compulsion from the office he had submitted his representation on 17.03.2012 and thereafter once again the 2nd respondent advised the petitioner to submit the appeal through letter dated 04.04.2012 vide No.X/P.648/2/2010/12, again the petitioner had re-submitted the same representation/appeal. On 08.04.2012 the petitioner has not bought any new defence to deny the averments made in the writ affidavit. Hence, requested to dismiss the writ petition.
6. During hearing, learned counsel for the petitioner vehemently contended that the inaction of the respondents is illegal, and requested to issue a direction. Whereas, learned Standing Counsel for the respondents reiterated the contents urged in the Court Affidavit.
7. Learned counsel for the petitioner mainly contended that the petitioner has not obliged the illegal orders of the immediate officer one V.D.Raju, Sub-Inspector lodged a false complaint against the petitioner alleging that the petitioner has not booked a case against one Smt. Rizwana, who is vendor of eatables in the trains, in spite of 5 apprehended on 06.06.2010 by the railway staff. Basing on the complaint an enquiry was initiated by the 3rd respondent and appointed K.M.Sukumaran, Assistant Security Commissioner, RPF, Guntakal and he submitted a report dated 14.06.2010. Basing on the preliminary enquiry report of the Assistant Security Commissioner Mr. K.M.Sukumaran issued Charge Sheet dated 21.06.2010 against the petitioner and appointed Mr. Kota Joji, IPF/ Kadapa as Enquiry Officer, who is subordinate officer in rank to the Assistant Security Commissioner K.M.Sukumaran as such he cannot be appointed as Enquiry Officer as per the Railway Rules. Basing on the enquiry report by the subordinate officer the 3rd respondent imposed the punishment of reduction from rank of ASIPF drawing the pay at Rs. 14,580/- in the pay scale of Constable at pay of Rs. 11,200/- for a period of 3 years with cumulative effect as per Divisional Order No. 98 of 2010, dated 20.10.2010, which is illegal and arbitrary.
8. Rule 153.2.1 of the Railway Protection Force Rules, 1987 reads as follows:
"Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against an enrolled member of the Force, it may itself inquire into or appoint an Inquiry Officer higher in rank to the enrolled member charged but not below the rank of Inspector, or institute a Court of Inquiry to inquire into the truth thereof."
9. If there is any misconduct or misbehavior against the petitioner, it may itself inquire into or appoint an enquiry officer, who is higher in rank to the petitioner, who is charged, but not below the rank of him. In the instant case, the enquiry was conducted by a subordinate officer, basing on his report the 3rd respondent imposed the punishment of reduction of from the rank of ASIPF to Constable, 6 which is violative of Rule 153.2.1 of the Railway Protection Force Rules, 1987 as cited supra.
10. Under Rule 153(2) of Railway Protection Force Rules, 1987 (for short, 'the Rules'), whenever disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an enrolled member of the Force, it may itself inquire into, or appoint an Inquiry Officer higher in rank to the enrolled member charged but not below the rank of Inspector, or institute a court of Inquiry to inquire into the truth thereof. This Rule provides for the disciplinary authority to appoint an Enquiry Officer above the rank of enrolled member charged but in any case he should not be less than the rank of Inspector. The contention of the learned counsel for the respondents is that since the petitioner is in the cadre of ASIPF, the 3rd respondent appointed the enquiry officer in the cadre of Assistant Security Commissioner, RPF, Guntakal, and the same is not against this rule. But, the learned counsel for the petitioner contended that the rules governing the service conditions of the Railway employees would also be applicable.
11. Under clause (3) of these Discipline, Appeal & Conduct Rules, these Rules shall apply to every railway servant but shall not apply to:-
a. any member of the All India Services;
b. any member of the Railway Protection Force as defined in the Railway Protection Force Act, 1957".
12. No doubt, this provision excludes the Railway Protection Force from the purview of this Discipline, Appeal & Conduct Rules, 7 but, in my considered opinion, the Rules 21, 86, 117, 145 and 146 (1) of the RPF Rules read together in juxtaposition as they have got to be, it is clear that the rules governing the service conditions of the railway employees and the directives issued from time to time shall also be applicable to the members of the Armed Reserve Force. In one of the circulars issued by the Railway Board in its letter dated 10.4.1962, when it was brought to the notice of the Board that in certain cases departmental enquiry was held by an officer of a status lower than the one who had conducted the fact finding enquiry and that in such cases there was a possibility of the enquiry officer being influenced by the findings of the superior authority, the Board have considered the matter and decided that the departmental enquiries for disciplinary action should not be entrusted to an officer lower in status than that of the officer who conducted the fact finding enquiry.
13. Rule 248.1 of the Railway Protection Force Rules, 1987, which reads as follows:
" Whenever a complaint against the misconduct of any member of the Force is received from the members of the public or where such complaint is received through a court wherein civil or criminal proceedings against a member of the Force have been instated or otherwise, and controlling officer of such member of the Force is of the opinion that allegations are verifiable or otherwise an inquiry is called for, he may proceed to inquire himself into the complaint against a member of the Force specified in column (1) of the table below or depute any other officer as specified in the corresponding entry in column (2) of the said table:
Members of the Force against Inquire Officer
whom complaints received
(1) (2)
Constables/(***)/Head Of and above the rank of
Constables Inspector.
Sub-Inspector/ Assistant Of and above the rank of
Sub-Inspector Assistant Commandant.
Inspector/Assistant Of and above the rank of
Security Commissioner Security Commissioner.
Security Commissioner or above (Principal Chief Security
Commissioner) or the
(Chief Security
Commissioner) or the
Deputy Chief Security
Commissioner, if so
authorized by him.
8
14. As could be seen from the Rules 248.1 of the Railway Protection Force Rules, 1987, it is made clear that the rank of the petitioner is ASIPF. Even assuming for a moment, if really the petitioner committed any misconduct or committed any irregularity, the Inquiry has to be conducted through the rank of Assistant Commandant as per Column (2) shown above. Here, in the instant case, an enquiry was conducted against the petitioner through the subordinate officer in rank to the Assistant Security Commissioner, which is unfair on the part of the respondents.
15. So, in this case admittedly a preliminary enquiry was conducted by the Assistant Security Commissioner. Since the 3rd respondent appointed the enquiry officer lower cadre than that of the petitioner, there is every possibility of the Enquiry Officer being influenced by the findings of the superior authority, which is not in accordance with the rules governing the service conditions of the writ petitioner.
16. Learned Standing Counsel for the respondents placed reliance on a decision of this Court in W.P.No. 22025 of 2020, dated 26.02.2021, wherein it was held that Section 14 of the Act vests the jurisdiction on the Tribunal, the powers and authority exercised by the Courts is statutory and thereby the question of entertaining any writ petition by this Court and question of issuing any direction to the respondent - railways while exercising power under Article 226 of the Constitution of India does not arisen when a statutory tribunal is constituted such issues relating to the employees under the control of Central Government including railways. But the said Writ Petition is filed seeking relief to grant family pension to the petitioner therein after obtaining the decree and judgment from the competent civil 9 court. Therefore such similar issue is not involved in the present writ petition, hence the above case law is not applicable to this case.
17. Viewing from any angle, this Court opines that the enquiry conducted by the Inquiring Authority is improper as per rules as cited supra. Therefore, the respondent authorities failed to conduct enquiry as per rules. Therefore the punishment imposed by the 3rd respondent against the petitioner is declared as illegal and arbitrary and same is hereby set aside. Further directing the respondents to continue the petitioner as Assistant Sub Inspector/ RPF with all consequential benefits like seniority, promotion etc., within a period of four (04) weeks from the date of receipt of a copy of this order. It is left open for the respondents to proceed with enquiry in accordance with law, if so advised against the petitioner.
18. With the above direction, the writ petition is disposed of. No costs.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 21.06.2022.
KK 10 THE HON'BLE Dr.JUSTICE K. MANMADHA RAO WRIT PETITION No.18529 of 2012 Date:21.06.2022.
KK