Andhra HC (Pre-Telangana)
N.H. Lamani vs Central Govt., Ministry Of Rlys And Ors. on 21 June, 1993
Equivalent citations: 1993(2)ALT436, (1994)ILLJ475AP
ORDER Motilal B.Naik, J.
1. Petitioner entered into service of the Railway Protection Force on June 15, 1970 as 'Rakshak', which is now re-designated as 'Constable of RPF'. Subsequently, he was promoted as Naik on July 3, 1986. He had put in around 15 years of service without any blemish and had earned some monetary awards and few merit certificates. While so, under Rule 152 of the Railway Protection Force Rules, 1987 (hereinafter referred to as 'the Rules'), a charge-memo was issued to the petitioner, which was received by him on April 14, 1990. The charges are as under:
"1. He assaulted the off-duty constable 758 D.S. Naik of Hubli Post at about 22.30 hours of March 15, 1990 and beaten him with the help of four outsiders near Railway Quarter No. 477 in Cement Chawl, Hubli causing serious head injuries to the constable.
2. He made similar attempt on March 5, 1990 at MRJ Pay Office to assault the said constable with rifle and knife while both of them on cash escort duties with separate pay clerks at Miraj Circle.
3. He was arrested by PSI/Keshwapur Police Station, Hubli in Crime No. 30-90 Under Sections 324, 323, 504 read with 34 IPC in connection with the incident of assault on D.S. Naik at Hubli on March 15, 1990.
4. By the said acts, the Naik N.H. Lamani had violated the para 3(i)(iii) of the Railway Service (Conduct) Rules, 1966 and thereby unbecoming of railway servant in general and RPF in particular".
2. The Enquiry Officer found first part of charge No. 1 i.e., the petitioner assaulted the off-duty constable 758 D.S. Naik of Hubli post at about 22-30 hours (10-30 p.m.) on March 15, 1990, as not proved. However, the Enquiry Officer found that the later part of charge No. 1, i.e., the petitioner with the help of four outsiders beat Constable 758, D.S. Naik near railway quarter No. 477 and caused serious head injuries, was proved. The finding as regards charge No, 2 is that pointing out a knife at D.S. Naik by the petitioner does not necessarily mean that he was trying to stab him and, therefore, that part of the charge was not proved. However, since the witnesses corroborated that the petitioner tried to hit D.S. Naik with rifle, it was proved. As regards charge Nos. 3 and 4 i.e., the arrest of the petitioner and violation of service rules, the Enquiry Officer found them as proved.
3. The entire controversy rests on two incidents - (i) the incident, which is said to have taken place on March 15, 1990 at about 10.30 p.m. near railway quarter No.477 in Cement Chawl, Hubli causing serious head injury to one D.S. Naik, Constable and (ii) the incident which is said to have taken place on March 5. 1990 at Miraj Pay Office resulting in assault on D.S. Naik by the petitioner with the help of a rifle and a knife. Consequent upon the incident of March 15, 1990, Keshwapur Police arrested the petitioner and registered a case in Crime No. 30/90 under Sections 324, 323, 504 read with Section 34 of the Indian Penal Code. On coming to know that D.S. Naik was admitted in the hospital, the officials of the Railway Protection Force made investigation as to the circumstances leading to the incident and a report dated April 7, 1990 was submitted by one L.N. Tahiliani, the then Inspector, RPF Post, Hubli, pursuant to which charges were framed against the petitioner. The Divisional Security Commissioner, RPF, the 4th respondent, initiated enquiry by appointing one Sunil Kumar Sinha, ASC/Hubli, who after due tenquiry, held that the charges were 'proved more or less'. On the basis of the recommendation of the Enquiry Officer, the 4th respondent issued proceedings dated September 11, 1990 removing the petitioner from service with immediate effect. As against the above proceedings, the petitioner preferred an appeal to the Chief Security Commissioner, RPF, the 3rd respondent on September 20, 1990, which was also dismissed affirming the proceedings of the 4th respondent. As against the dismissal of the appeal, the matter was carried by way of a further appeal, to the Director General, RPF, the 2nd respondent, which was also dismissed by order dated May 23, 1991. It is the order dated September 11, 1990 of the 4th respondent removing the petitioner from service, as confirmed by respondents 2 and 3 in appeals, which is impugned in this writ petition.
4. Sri M. Ramachandra Reddy, learned counsel for the petitioner, has contended that incidents, which have taken place "outside the office premises" and "outside the duty hours" unconnected to the nature of work of the petitioner, cannot form part of the disciplinary enquiry and, therefore, basing on those incidents, initiating enquiry and passing the impugned order are void ab initio; there was no complaint to the authorities by D.S. Naik, who is said to be the victim; in the absence of any complaint by him, there was no basis for holding enquiry and passing the impugned order. It is further contended that as per the version of the respondents, the petitioner assaulted D.S. Naik near Cement Chawl, Hubli causing serious head injury to him on March 15, 1990 around 10-30 p.m. but during the course of enquiry, it was revealed by D.S. Naik that an attempt to assault him was also made by the petitioner with rifle and knife when both of them were taking rest on March 5, 1990. It is stated that in order to invite a departmental enquiry, it is necessary that the incident has to take place "during the course of office duty" and "within the office premises". It is also contended that when the Enquiry Officer himself held that the charges were 'proved more or less', it is really pathetic that the 4th respondent has acted in a way which is contrary to all norms. It is further contended that when the Criminal Court was seized with the matter, the 4th respondent ought not to have proceeded with the departmental enquiry, for, if it is allowed, it would amount to double jeopardy. In support of his contentions, Sri Reddy has placed before this Court a copy of the judgment of the J.M.F.C. Second Court, Hubli, dated October 1, 1991 in C.C No. 1260 of 1990. The last paragraph is to the effect that the accused (petitioner herein) is acquitted of the offences punishable under Sections 323, 324 and 504 IPC. That being the finding of the Criminal Court, according to the learned counsel, the impugned order, passed basing on the same allegations, which were subject matter of the criminal case, cannot sustain. Counsel further contends that according to the Enquiry Officer, there was some dispute between the petitioner and D.S. Naik with regard to some chit amount and the root cause for the incident of March 5, 1990 could be purely a private dispute, which cannot be said that the incident took place "during the course of office duty" and "within the office premises".
5. Sri Ramakrishna, learned counsel for the respondents, has vehemently opposed the contentions raised by the learned counsel for the petitioner. He has drawn my attention to the Statement of Objects and Reasons of RPF Act No. LX of 1985 and contended that in order to make the RPF an armed force of the Union and to make it a more efficient and effective instrument for discharging its responsibilities, additional powers have been conferred on members of the Force, such as, to arrest without warrant, to restrain misbehaviour on the part of the members, enforcement of discipline, imposition of penalties for various offences, etc., and a special code has been contemplated as provided in Rule 146 of the Rules. Sri Ramakrishna contends that Clause (xii) of Rule 147 indicates that "assaulting or otherwise ill- treating any enrolled member of the Force subordinate to him in rank or position" would also amount to 'offences relatable to duties of enrolled members' and, therefore, the respondent authorities are competent to impose major as well as minor punishments depending upon the nature of misconduct. It is further contended that the incident of March 15, 1990 had its origin from the incident of March 5, 1990, which had taken place "during office hours" and "within the office p remises" and as such the offence would fall within the purview of Rule 47 and that, therefore, the respondent-authorities are justified in imposing the punishment. Sri Ramakrishna further contends that if lenience is shown to a person like the petitioner, the morale of the RPF would be affected and, therefore, no interference is warranted.
6. The crucial question that would, therefore, fall for consideration is whether the incident of March 15, 1990 and the alleged incident of March 5, 1990 (no complaint was since lodged) would fall within the definition of "act committed while on duty" and "within the office premises". The entire enquiry report would indicate that there was some dispute between the petitioner and D.S. Naik regarding some money and, therefore, the zenith of the incident could be traced to the amounts payable. The incident of March 15, 1990 is said to have taken place around 10-30 p.m. near railway quarter No. 477 in Cement Chawl, Hubli. The incident of March 5, 1990 is said to have taken place at Miraj Pay Office while the petitioner who was on cash escort duty with Pay Unit No. 4, had happened to stay in the cash office for night rest. A perusal of order of the first appellate authority, i.e., respondent No. 3 (Force Order No. 324/90) would indicate that according to the version of one Wonkar, ASIPF, Miraj, D.S. Naik told him that the petitioner was due to him Rs. 5,500/- in a chit transaction. But the finding of the 3rd respondent at sub-para (iv) of para 5 reads as under:
"It has come on record that the appellant (petitioner herein), while he was on cash escort duty at Miraj on March 5, 1990, consumed alcohol and played cards with D.S. Naik and others. It is also proved beyond doubt that bickering took place in a closed room of the Pay Office, Miraj on March 5, 1990 at about 20.20 hours between the appellant and D.S. Naik. At that time, the appellant was in drunken state and fell down when D.S. Naik pushed him and became unconscious. On regaining consciousness, the appellant made an attempt to assault D.S Naik with a rifle which was in his possession. Even though the said incident was brought to the notice of W.B. Wonkar, ASIPF/MRJ, he did not submit any report on the said incident, since the appellant and D.S. Naik compromised. D.S. Naik too did not report the matter to the IPF/UBL on return from cash escort duty from Miraj".
This being the finding of the 3rd respondent, it is hard to disbelieve the existence of previous enmity between the petitioner and D.S. Naik. It is evident from the finding that the incident of March 5, 1990 was not reported by D.S. Naik. The incident is said to have taken place in a place of rest though the petitioner and D.S. Naik were on escort duty and any proceedings, based on such an incident, against which there was no complaint, would be amounting to "building coming up without a base".
7. Coming to the incident of March 15, 1990, admittedly it had taken place near railway quarter No. 477 in Cement Chawl, Hubli around 10-30 p.m. It cannot be said that this incident had taken place" within the office premises" or when the petitioner and/or D.S. Naik were on duty. The submission made by Sri Ramakrishna to justify the action of the respondents in making this Court believe that this offence is 'relatable to duties of enrolled members' in terms of clause (xii) of Rule 147 cannot be accepted. Unless and otherwise there is specific clarification, any private dispute between two employees of the RPF would not fall within the purview of Clause (xii) of Rule 147. In the absence of any specific clarification, the code of behaviour of members of the RPF cannot be extended to private disputes.
8. In this context, it is necessary to refer to the decision of the Supreme Court in Glaxo Laboratories (1) Ltd. v. Presiding Officer, Meerut, (1984-I-LLJ-16). Their Lordships, while considering the connotation of 'misconduct' committed within the premises of the establishment or within the vicinity thereof," held: (pp. 19-21):
"Numerous acts of misconduct such as drunkenness, fighting indecent or disorderly behaviour, use of abusive language, wrongfully interfering with the work of other employees etc., are not per se misconduct. Each one of them have correlation to the time or place where it is committed. Such acts of misconduct would be misconduct punishable only if committed within the premises of the establishment or in the vicinity thereof. What constitutes establishment or its vicinity would depend upon the facts and circumstances of each case.
To enable an employer to peacefully carry on his industrial activity, the Act confers powers on him to prescribe conditions of service including enumerating acts of misconduct when committed within the premises of the establishment. The employer has hardly any extra territorial jurisdiction. He is not the custodian of general law and order situation nor the Guru or mentor of his workmen for their well regulated cultural advancement. If the power to regulate the behaviour of the workmen outside the duty hours and at any place wherever they may be was conferred upon the employer, contract of service may be reduced to contract of slavery. The employer is entitled to prescribe conditions of service more or less specifying the acts of misconduct to be enforced within the premises where the workmen gather together for rendering service. The employer has both power and jurisdiction to regulate the behaviour of the workmen within the premises of the establishment, or for peacefully carrying on the industrial activity in the vicinity of the establishment".
Further held:
".....If the expression 'committed within the premises of the establishment or in the vicinity thereof is given a wide construction so as to make the clause itself meaningless and redundant, the penal statute would become so vague and would be far beyond the requirement of the situation as to make it a weapon of torture. A clause with a statutory flavour 'like legislation must at all costs be interpreted in such a manner that it would not operate as a rogue's charter (Devis and Sons Ltd. v. Atkins, (1977) ICR 662)".
9. The above decision of the Supreme Court would abundantly make it clear that the authorities cannot bring any activity, which has taken place between two employees outside the premises and not during the course of office hours, within the purview of incident which has taken place during the course of duty and within the office premises, terming the offence as 'relatable to duties of enrolled members'. There cannot be any compromise on the question of discipline and obeying the orders of superiors by the members of armed forces. The primary object of the RPF is to ensure better protection and security to railway property. Any dishonesty or disobedience or causing loss to the property of the railways by any member of the RPF would call for a severe punishment. In the instant case, there was no loss caused to the railway property by the petitioner nor was he found unfair or negligent in his duties. The entire history of the case would go to show that some altercation took place between the petitioner and one D.S. Naik "outside the office premises" and "outside the duty hours" and that the incident had no nexus with the nature of work of the petitioner. Secondly, there was no complaint by D.S. Naik against the petitioner as to the alleged incident of March 5, 1990 and, therefore, basing on assumptions and presumptions, the respondent authorities cannot impose punishment on the petitioner to this magnitude.
10. Sri Ramakrishna, learned counsel for the respondents, contends that this Court, under Article 226 of the Constitution of India, cannot sit as an appellate Court and reassess the evidence. I am aware of the limitation this Court has while exercising jurisdiction under Article 226 of the Constitution. I am not stretching my hand beyond a reasonable point and, therefore, the apprehension that this Court is reassessing the evidentiary value is unfounded. The entire foundation of the case is based on two incidents dated March 5, 1990 and March 15, 1990. As far as the incident dated March 15, 1990 is concerned, as already stated, there was no complaint by D.S. Naik against the petitioner. Coming to the incident of March 5, 1993, this incident took place "outside the office premises" and "outside the duty hours" and the Criminal Court also acquitted the petitioner of the charges. That being the background of the case, the argument of learned counsel for the respondents that this Court cannot reassess or sit as an appellate authority in proceedings under Article 226 is lamentable. On the contrary, I am of the view, the High Court can interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is also wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. This view of mine is supported by the decision of the Supreme Court in State of A.P. v. C. Venkata Rao (1976-I-LLJ-21). Paragraph 21 of the said decision makes this proposition very clear. In given circumstances, this Court cannot sit as a silent spectator when the authorities have acted in a most astonishing manner which shocks the judicial conscience.
11. In M. Ram Mohan Rao v. The APSRTC, , a Division Bench of this Court, of which I was a member, held:
"The High Court has jurisdiction not merely to quash the penalty of dismissal imposed upon the delinquent officer but also to scale it down suitably so that he may not go unpunished as such. The penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution."
The proposition laid down by the Division Bench in the above decision was not disturbed by the Supreme Court in S.L.P (Civil) No. 6780/ 92 dated November 13, 1992 filed by the APSRTC.
12. Sri Ramakrishna, learned counsel for the respondents, has relied on the decisions of the Supreme Court in State of Maharashtra v. Mad-hukar Narayana Mardikar, (1991-I-LLJ-269) Nelson Motis v. Union of India, (1992-II-LLJ-744) State of Punjab v. Ram Singh (1992 II CLR 401) and the decision of this Court in APSRTC v. K. Seshagiri Rao, 1991 (2) An .W.R. 49. There is no dispute as to the proposition laid down in those decisions. But the crux of the issue in the case on hand rests on a different footing and, therefore, the matter has to be decided in a way appropriate in the circumstances. In my view, the decisions of the Supreme Court in Glaxo Laboratories (I) Ltd. v. Presiding Officer, Meerut, (supra) and State of A.P. v. C. Venkata Rao, (supra) are more relevant to the facts of the present case. I am inclined to hold that justice must be tempered with mercy and the erring official should be given an opportunity to reform himself and prove to be loyal and disciplined. There is nothing on record in this case, indicating that due to acts of the petitioner, the respondent-authorities suffered any damage or loss. As observed by me, purely a private affair between two employees cannot be termed as indiscipline amounting to 'offence relatable to duties of enrolled members'. On the contrary, the petitioner, who was awarded with merit certificates, suffered mental agony and hardship. The code of conduct contemplated cannot be extended to undefined boundaries. If this is allowed, I am afraid, even the personal liberty of the employees can be bridled by the authorities. A Full Bench of this Court in APSRTC v. Labour Court, Guntur , held that "the right to public employment is undoubtedly a new form of property. It is not only a vast source of patronage for the Government but is also a great source of living and happiness to our unemployed millions". The right to public employment when held to be a new form of property, the respondent-authorities cannot deny the petitioner this valuable right on certain vague and unfounded grounds, which, in my view, cannot stand to legal scrutiny.
13. As far as the contention that when once the Criminal Court is seized with the matter, the respondent-authorities ought not to have proceeded with the departmental enquiry, it is settled law that the authorities are not prevented from proceeding with departmental enquiry even though the Criminal Court is seized with the matter. Therefore, I am not inclined to accept the contention of the learned counsel for the petitioner that departmental proceedings against the petitioner pending criminal case would be amounting to double jeopardy.
14. As discussed above and in the facts and circumstances of the case, I hold that the respon-
dents have no jurisdiction to enquire into the allegations which are totally unconnected with the service conditions or the nature of service of the petitioner. Therefore, the impugned proceedings cannot sustain. Accordingly, proceedings dated September 11, 1990 of the 4th respondent removing the petitioner from service are set aside. Consequently, the order of the 3rd respondent dated November 23, 1990 and of the 2nd respondent dated May 23, 1991 affirming the order of the 4th respondent, are also set aside.
15. When once the order of removal is set aside, what is the relief that could be granted to the petitioner? In an article "Proportionality: Neither Novel Nor Dangerous" written by M/s. Jeffrey Jowell and Anthony Lester Q.C., in the Journal "New Direction in Judicial Review Administration (Current Legal Problems)" and published by me Faculty of Laws of the University College, London, the authors have mentioned that proportionality, as a recognised general principle of law originated in Germany and has more recently been adopted in France and other member States of the European Economic Community. In M. Ram Mohan Rao's case (supra), the Division Bench observed:
"This Court would venture to stale that it is not only a recognised principle of law originated on the continent, but, of late, it has come to be recognised as a general principle of law recognised by all civilized nations in the world. Otherwise, the consequent of such a wayward action taken against the delinquent officer by imposing vastly disproportionate penalties on persons, who were guilty of committing minor wrongs, will lead to an imbalance in the judicial equilibrium, which was necessarily to be maintained under all systems of law. At the same time, it must be ensured that the officers who are authorised to impose such penalties may not get away with the feeling that whatever penalty is imposed by them will go unchecked at the hands of the Court before whom the matters may be brought. They should also bear in mind that their action is always subject to review by the competent Courts and the Courts would not hesitate in setting right the wrongs done by them in passing orders of this nature without applying their mind".
16. Unmistakably, the facts and circumstances of the present case would indicate that the respondents have acted without applying their mind. Therefore, the appropriate relief that could be granted to the petitioner in the given circumstances is to direct the respondent authorities to reinstate the petitioner into service within two weeks from the date of receipt of this order. I accordingly do so. The petitioner shall be paid one-half of the arrears of salary for the period from the date of termination till the date of reinstatement, which, in my view, is a reasonable compensation the petitioner could be entitled to. The above arrears shall be paid within four weeks from the date of reinstatement. The petitioner shall also be entitled to all the consequential benefits accruing consequent upon his reinstatement as if he is in service. The period between the date of termination and the date of reinstatement shall be treated as on duty.
17. Before parting with the case, it is hoped that the petitioner would act in future with alertness and without inviting unnecessary troubles himself contributing misery to his family. It is also hoped that the respondent-authorities would display the spirit of 'forget and forgive' and allow the petitioner to discharge his duties promptly.
18. The writ petition is accordingly allowed. No order as to costs.