Madras High Court
M.Subramani vs The Deputy Chief Security Commissioner on 8 October, 2012
Author: T.Raja
Bench: T.Raja
IN THE H IGH COURT OF JUDICATURE AT MADRAS
DATED: 08.10.2012
CORAM
THE HONOURABLE Mr. JUSTICE T.RAJA
W.P.Nos.41697 of 2002 and 31939 of 2002
M.Subramani ... Petitioner in W.P.No.41697 of 2002
N.G.Ananthakrishnan ... Petitioner in W.P.No.31939 of 2002
Vs.
1. The Deputy Chief Security Commissioner,
Railway Protection Force,
Chennai 600 003.
2. The Divisional Security Commissioner,
Railway Protection Force,
Chennai 600 003.
3. The Assistant Security Commissioner/W&S/PER,
Office of the Divisional Security Commissioner,
Railway Protection Force,
Chennai 600 003. ... Respondents in both W.Ps.
PRAYER in W.P.No.41697 of 2002: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari, to call for the records relating to the impugned order of the first respondent in Proceedings No.M/XP 227/7/2k dated 24.07.2001 confirming the orders issued by the second respondent in Proceedings No.M/XP 227/7/2k dated 09.05.2001 and the third respondent in Proceedings No.M/XP 227/7/2k dated 20.02.2001 and quash the same and grant the petitioner all consequential benefits.
PRAYER in W.P.No.31939 of 2002: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari, to call for the records relating to the impugned order of the first respondent in Proceedings No.M/XP 227/8/2k dated 24.07.2001 confirming the orders issued by the second respondent in Proceedings No.M/XP 227/8/2k dated 09.05.2001 and the third respondent in Proceedings No.M/XP 227/8/2k dated 20.02.2001 and quash the same and grant the petitioner all consequential benefits.
For Petitioner
in both W.Ps. : Mr.P.Mohanraj
For Respondents
in both W.Ps. : Mr.M.Dhamodharan, SCGSC
COMMON ORDER
The two writ petitions were filed in the year 2002 by N.G.Anantha Krishnan and M.Subramani challenging the impugned order passed by the first respondent in his proceeding Nos.M/XP 227/8/2k and M/XP 227/7/2k dated 24.07.2001 confirming the orders issued by the second respondent in his Proceedings Nos.M/XP 227/8/2k and M/XP 227/7/2k dated 09.05.2001 and the third respondent in his proceedings Nos.M/XP 227/8/2k and M/XP 227/7/2k dated 20.02.2001, to quash the same with further direction to grant all consequential benefits.
2. When the facts related to both the writ petitions and the respondents are also common, this Court, with the consent of both sides, took up the matter for final disposal.
3. When N.G.Anantha Krishnan, writ petitioner in W.P.No.31939 of 2002 was working as Constable (362) NGO/RPF/Post, Southern Railway, Chennai-3 and when M.Subramani, writ petitioner in W.P.No.41697 of 2002, was working as Head Constable (443), NGO/RPF/Post, Southern Railway, Chennai 3, they were issued with a charge sheet under Rule 153 of RPF Rules, 1987 in and by the Proceedings of the Assistant Security Commissioner/W&S/PER, dated 11.05.2000, it was alleged that when they were deputed to Gudur Railway Station to check the seal condition of the SLR of express trains with instructions to inform IPF/GPD and DSCR in respect of finding out any defective seals from the parcels, they failed to do the same. Therefore, they were placed under suspension by the 3rd respondent, the Assistant Security Commissioner / W&S / Per, with effect from 21.04.2000 for their omissions and commissions as mentioned in the suspension order dated 21.04.2000. Followed by the suspension order, they were issued with a charge sheet as mentioned above under Rule 153 of RPF Rules 1987 for the following charges.
That the said Sri.N.G.Ananda Krishnan, Con362/NGO/MAS was deputed at GDR Rly. Station to check the seal condition of the SLR of the Express Trains with instructions to inform IPF/GPD and DSCR in case of any defective seals noticed. But, on 13.04.2000 he had made perfunctory seal check of Train No.7043 along with Sri.M.Subramani HC/443 NGO/MAS checked the SLR No.7562, and made no entry in his seal check book regarding defective condition of seal and obtained the signature of Chief Guard. Later on knowing about the criminal interference between SPE and NYP, he had added a remark in the Seal Check book as E/S Seal cut and hanging but failed to arrange tape seal to the seal defectiveness duly informing SM on duty and Chief Guard besides IPF/GPD and DSCR of the above incident which amounts to negligence of duty.
Thus he has contravened Rule 146.2(i) & 146.6(iii) of RPF Rules, 1987. That the said Sri.M.Subramani, HC 443/NGO/MAS was deputed at GDR Rly. Station to check the seal condition of the SLR of the express trains with instructions to inform IPF/GPD and DSCR in case of any defective seals noticed. But, on 13.04.2000 he had made perfunctory seal check of Train No.7043 along with Sri.N.G.Ananda Krishnan, Con362/NGO/MAS checked the SLR No.7562, and made no entry in his seal check book regarding defective condition of seal and obtained the signature of Chief Guard. Later on knowing about the criminal interference between SPE and NYP, he had added a remark in the Seal Check book as E/S Seal cut and hanging but failed to arrange tape seal to the seal defectiveness duly informing SM on duty and Chief Guard besides IPF/GPD and DSCR of the above incident which amounts to negligence of duty.
Thus he has contravened Rule 146.2(i) & 146.6(iii) of RPF Rules, 1987.
4. The petitioners subsequently submitted their explanations. As the explanation offered by the petitioners were not satisfactory, they were subjected to enquiry by appointing an Enquiry Officer. One Mr.K.M.Sugumaran, Inspector was nominated as Enquiry Officer to conduct the enquiry and finally, the said Enquiry Officer, on completion of enquiry, submitted his report. Subsequently, the petitioners were issued with the second show cause notice along with the Enquiry Officer's report. Thereafter, when the representations were given by the petitioners requesting the disciplinary authority not to accept the report of the Enquiry Officer which held them guilty, the Disciplinary authority accepting the records of the report of the Enquiry Officer, imposed the punishment of reduction in Time Scale of pay by one stage for a period of one year with recurring effect. Aggrieved by the same, they preferred an appeal to the Divisional Security Commissioner / Second respondent, within the prescribed time. But, the second respondent rejected the petitioners' appeal by proceedings dated 09.05.2001. Aggrieved by the same, the petitioners submitted revision petitions to the Deputy Chief Security Commissioner, RPF, Southern Railway / the first respondent herein, who also rejected their revision petitions by the present impugned orders dated 24.07.2001 and as against the same, the present writ petitions have been filed.
5. The learned counsel for the petitioners only pleaded that the petitioners were subjected to disciplinary proceedings by appointing the Enquiry Officer Mr.K.M.Sugumaran. The Enquiry Officer, who is supposed to consider the validity of the charges on the basis of the evidence produced by both sides after chief and cross examinations, wrongly sat in the place of Presenting Officer and enquired both the petitioners by putting leading questions eliciting informations in favour of the Department and finally, found them guilty. When the approach of the Enquiry Officer was challenged by the petitioners both in the appeals and revisions before the respondents herein, nowhere in the order passed by the appellate authority or revisional authority, the respondents have considered the case of the petitioners.
6. When the ratio laid down by the Apex Court in the case of Moni Shanker Vs. Union of India and another, reported in 2008 3 SCC 484, holding that asking leading questions by the Enquiry Officer was improper as it turned the Enquiry Officer into prosecutor, the disciplinary authority having failed to appoint any Presenting Officer, deliberately appointed the Enquiry Officer and committed serious mistake in allowing him to prosecute the petitioners. Therefore, the punishment imposed by the disciplinary authority against the petitioners as confirmed by both the appellate authority and revisional authority are liable to be set aside. Inasmuch as the cumulative effect of illegalities or irregularities having been properly brought to the notice of the appellate authority, none of the respondents have considered the grievances. Therefore, the entire departmental proceedings, culminatingly imposing the punishment has to be held as vitiated. It is further contended that the Enquiry Officer acted as a Prosecuting Officer, but, not as a quasi judicial authority. Hence, the disciplinary authority cannot accept the report of the Enquiry Officer for the simple reason that the petitioners have not been granted the reasonable opportunity of being heard. In other words, it was also contended that even though an enquiry was held, in the core of enquiry, without even appointing the Presenting Officer from department side, by merely appointing an enquiry officer, who admittedly in the present case, interrogated by putting all leading questions wrongly elicited all information from the petitioners, such an approach is unsustainable in law, hence, the impugned orders are liable to be set aside.
7. In response to the submissions, the learned counsel appearing for the respondents would submit that the punishment imposed against the petitioners are only minor in nature, therefore, as per Rule, when the respondents are entitled to hold enquiry, non appointment of the Presenting Officer cannot be found against the respondent. Again, he argued that the punishment imposed against the petitioners are only minor in nature.
8. The arguments made on technical grounds that the Enquiry Officer has gone into the issues of the presenting officer and prosecuted the petitioners, thereupon, he reached wrong conclusions, hence, the same are liable to be set aside, are acceptable. When the Enquiry Officer was appointed, the report submitted by the Enquiry Officer on completion of the enquiry shows that the Enquiry Officer has not conducted the enquiry as an independent quasi judicial authority. In fact, the records show that the Enquiry Officer has prosecuted the petitioners by asking all leading questions in the place of Presenting Officer. Admittedly, no Presenting Officer was appointed and there was no records to the contrary and the learned counsel for the respondent was not able to show the appointment of Presenting Officer in these cases.
9. Further, the punishment imposed against the petitioners, viz. reduction in Time Scale of pay by one stage for a period of one year with recurring effect is also not minor in nature. Therefore, it is not open to the respondents to say that the punishment imposed against the petitioners are only minor in nature. When the above punishments are major in nature, in my considered opinion, the challenge made by the petitioners that the Department should have appointed Enquiry Officer along with the Presenting Officer and the Presenting Officer alone could conduct the departmental proceedings by examining their witnesses and thereafter, should have allowed the petitioners to cross examine the witnesses of the department, carries merits. In the present case, the records show that the Enquiry Officer alone has conducted the enquiry on behalf of the respondents. In that view of the matter, as per the ratio laid down by the Apex Court in Moni Shanker Vs. Union of India and another, reported in 2008 3 SCC 484 , the impugned orders are liable to be interfered with.
10. In the above said judgment of the Apex Court, it has been held that the departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. It was further held therein that the Courts exercising power of judicial review are entitled to consider whether relevant piece of evidence has been taken into consideration and irrelevant facts excluded therefrom, while proving misconduct against an employee. Therefore, the proceedings initiated for imposition of a major penalty certainly needs an appointment of Presenting Officer to examine the departmental witnesses.
11. In view of this, this Court sets aside the impugned orders with a direction to the respondents to appoint a new Enquiry Officer along with the Presenting Officer and thereafter, to proceed further with the case on merits and in accordance with law.
12. With the above directions, the writ petitions are allowed. No costs.
ogy To
1. The Deputy Chief Security Commissioner, Railway Protection Force, Chennai 600 003.
2. The Divisional Security Commissioner, Railway Protection Force, Chennai 600 003.
3. The Assistant Security Commissioner/W&S/PER, Office of the Divisional Security Commissioner, Railway Protection Force, Chennai 600 003