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[Cites 9, Cited by 1]

Madras High Court

G. Babu vs The Director General, Railway ... on 6 January, 2005

Author: V. Kanagaraj

Bench: V. Kanagaraj

ORDER

V. Kanagaraj, J

1. The prayer in the Writ Petition is to issue a Writ of Mandamus to call for the records of the second respondent in Order No. M/XP-227/28/83 dated 2.9.1993 as confirmed by the order dated 11.8.1995, made in proceedings No. X/P-227-1099 by the first respondent, quash the same and direct the respondents to reinstate the petitioner in service from 2.9.1993 onwards with all consequential benefits.

2. The case of the petitioner is that he was working as constable in the Railway Protection Force from 1976; that on 29.6.1992, a charge was framed against him relating to certain traveling allowance bills; that on 18.7.1992, while he was on duty at about 11.30 A.M., the Assistant Security Commissioner, enquired him about the charge memo. issued to him and asked him to come and meet him at his office; that on 21.7.1992, when the petitioner met the Assistant Security Commissioner at his office at about 10.30 hours, he asked him to come with the original charge memo. and Rs. 15,000/- so as to help him in the disciplinary proceedings case, further stating that since he was opting for the Driver's Test, if the departmental enquiry is held, his future would be spoiled; that the petitioner told him that he could not spare such a huge amount, for which the Assistant Security Commissioner reduced the amount to Rs. 10,000/- and split the same into two installments of Rs. 5,000/- each to be paid at the time of extending help in the Driver's promotion; that again on 23.7.1992, he met the petitioner in the lift and told him that he was waiting to help the petitioner for which he asked him to part with a sum of Rs. 5,000/- with the original charge memo.; that the petitioner made a complaint to the Director General of Railway Protection Force at New Delhi bringing to his notice all the facts.

3. The further case of the petitioner is that the Director General of Railway Protection Force has directed the Chief Security Commissioner to make enquiries into the allegations contained in the complaint of the petitioner and to submit a report; that the Chief Security Commissioner conducted a discreet enquiry and came to the conclusion that the allegations and averments contained in the complaint are without any evidence either through witnesses or documents and are therefore fictitious and frivolous; that an inference was drawn to the effect that such allegations were made by the petitioner only with a motive to malign the image of the Assistant Security Commissioner who is the Disciplinary Authority in the disciplinary proceedings; that on the basis of the report of the Enquiry Officer dated 27.11.1992, a charge memo. was issued to the petitioner on 15.12.1992 alleging that while functioning as a constable, the petitioner had submitted a report to the Director General making certain allegations against Shri Fernandez and since those allegations were false, the petitioner had committed an act grossly insubordinate or insolent to his higher officer which is punishable under Section 9(1) of the Railway Protection Force Act; that after conducting the enquiry, the Enquiry Officer has submitted his report on 17.7.1993, holding that the charge against the petitioner has been proved; that a letter dated 20.7.1993, along with the report of enquiry officer was forwarded to the petitioner, directing him to submit his explanation to the Disciplinary Authority; that the petitioner has submitted his explanation on 23.7.1993; that by order dated 2.9.1993, the explanation of the petitioner was rejected and the petitioner was dismissed from service with immediate effect; Aggrieved by the order of dismissal, the petitioner has preferred an appeal to the first respondent on 30.9.1993, which was rejected by the first respondent by an order dated 9.8.1995. Aggrieved by the said order of dismissal as well as the order rejecting the appeal the petitioner has come forward to file this Writ Petition on certain grounds as brought forth in the grounds of Writ Petition.

4. In the counter affidavit filed on behalf of the respondents, besides generally denying the allegations of the petition, they would further submit that there is no evidence to prove the allegation that when the petitioner met the Assistant Security Commissioner, Tondiarpet, Marshaling Yard, in his room, he demanded Rs. 15,000/- for getting rid off his Disciplinary proceedings; that the Assistant Security Commissioner has no power either to destroy the Disciplinary proceedings file or to close the said proceedings and he has also no power to held anybody to get through the drivers test and it is false and fabricated story concocted on the part of the petitioner to malign the image and reputation of his superior officer; that since the charges are proved during the full fledged departmental enquiry, the disciplinary authority has rightly imposed the penalty of dismissal from service; that in uniformed force, leveling false allegations against the superior officers, is a serious mistake and the punishment imposed is quite reasonable; that the defence witnesses have not stated anything worth considering except to speak supporting the allegations brought earlier by the petitioner; that none of the defence witnesses is quite significant; that the evidence of these witnesses do not enjoy any credibility as could be seen from the fact that they have been recipients of several memos. and charge memos. for various anti-departmental activities; that their version that a senior officer of the rank of Assistant Security Commissioner had come and confided with them and had demanded money from the petitioner is totally unbelievable and does not merit consideration in the absence of any other corroboratory factors; that the petitioner was given ample opportunity by P.W.2, who conducted the preliminary enquiry, for producing any evidence and witnesses to substantiate the allegations made by the petitioner against the Assistant Security Commissioner, but he had not cited any defence witnesses at the time of preliminary enquiry; that it was only later at the time of initiation of Disciplinary proceedings, he managed to get the witnesses as an afterthought so as to substantiate his version before the enquiry officer in order to escape from the consequences of the Disciplinary proceedings; that the Enquiry Officer had rightly held that defence witnesses 3 and 4 have adduced indirect evidence and hence no credence could be given to the above evidence. On such averments, they would pray for dismissal of the above Writ Petition.

5. Heard the learned Senior Counsel appearing for the petitioner and the learned counsel for the respondent as well and the materials placed on record have also been perused.

6. During arguments, the learned senior counsel for the petitioner would submit that the penalty of dismissal from service is disproportionate to the charge framed against the petitioner; that the respondent did not establish any motive against the petitioner for making the complaint and hence, the respondent ought to have given the benefit of doubt to the petitioner; that even assuming that the charge has been proved by the Enquiry Officer, the disciplinary authority ought not to have imposed the extreme penalty of dismissal from service; that the charge framed against the petitioner was not so serious a misconduct so as to warrant the imposition of the extreme penalty of dismissal from service; that inasmuch as the respondents have not established any motive for the petitioner to make the complaint against Shri Edger Fernandez, the preponderance of probability would require a reasonable inference that the facts stated in the complaint were true and on that basis the respondents ought not to have imposed the extreme penalty of dismissal from service; that the enquiry officer has not given due credence regard to the evidence of the Defence witnesses; that it is the settled law that only if the previous service of the workman shows that he is habitual offender of this nature, the capital punishment of dismissal from service is required; that the petitioner has been put in service for more than 16 years and that he is not an habitual offender and that the capital punishment of dismissal from service awarded against him is liable to be set aside; that the Disciplinary Authority and the Appellate Authority have not properly appreciated the evidence of the Defence Witnesses and hence the order of punishment is liable to be set aside.

7. At this juncture, the learned senior counsel appearing for the petitioner would cite three judgments reported in (1) 2002-I LLJ Madras 726 (Thangaraj A. v. Presiding Officer, Labour Court and Anr.) (2) (Ranjit Thakur v. Union of India and Ors.) (3) (2001) 2 Supreme Court Cases 386 (Om Kumar and Ors. v. Union of India)

8. In the first judgment cited above on the part of the learned senior counsel for the petitioner, a learned single Judge of this Court has held:

"rule of law is very clear that while exercising Section 11-A of the Act the Courts are bound to examine the previous service of the workman and it should be considered. It is settled law that if the previous service of the workman shows that he is habitual offender of this nature, the capital punishment of dismissal from service is required."

With reference to the present case, there is no material on record about the service condition of the workman that he was habitual offender of this nature. The reasoning given by the first respondent that it is not a fit case where Section 11-A will not be attracted is not correct. The award of dismissal from service is disproportionate and as such dismissal order is set aside... that it is just and proper punishment to the petitioner by appointing him as fresh candidate whereby he loses his entire back service and not entitled to back wages."

9. In the second judgment cited above on the part of the learned senior counsel for the petitioner the Honourable Apex Court has held:

"The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the court-material and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. The non-compliance of the mandate of Section 130 is an infirmity which goes to the root of the jurisdiction and without more, vitiates the proceedings. In the present case the records of the proceedings do not indicate that the appellant was asked whether he objects to be tried by any officer, sitting at the court-martial. This imparts a basic infirmity to the proceedings and militates against and detracts from the concept of a fair trial. Therefore, there is non-compliance with the mandate of Section 130 with the attendant consequence that the proceedings of the summary court-martial are rendered infirm in law."

10. In the last judgment cited above on the part of the learned senior counsel for the petitioner, it has been held by the Honourable Apex Court that "The punishment imposed on V was one of the major punishments. On a consideration of the report of Justice Chinnappa Reddy, the report of the enquiry officer - which are no doubt both adverse to the officer, and the recommendations of the UPSC which were favourable to the officer on both occasions and the order of the disciplinary authority which accepted the finding as to misconduct, it must be held that the administrator's decision in the primary role is not violative of Wednesbury rules. The punishment awarded was a major punishment. Therefore, it is not necessary to refer the matter to the Vigilance Commissioner for further upward revision of the punishment."

On such arguments, the learned senior counsel for the petitioner would pray for the relief extracted supra.

11. On the other hand, the learned counsel for the respondents, besides reiterating the averments of the counter, would cite four judgments reported in (1) (Union of India v. Parma Nanda) (2) (State of U.P. and Ors. v. Nandkishore Shukla and Anr.) (3) (State of T.N. v. Thiru K.V. Perumal and Ors.) (4) .

12. In the first judgment cited above on the part of the learned counsel for the respondents it has been held by the Honourable Apex court that "Where the person, without enquiry is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine the adequacy of the penalty imposed in the light of the conviction and sentence inflicted on the person. If the penalty impugned is apparently unreasonable or un-called for, having regard to the nature of the criminal charge, the Tribunal may step in to render substantial justice. The Tribunal may remit the matter to the competent authority for reconsideration or by itself substitute one of the penalties provided under clause(a)."

13. In the second judgment cited above on the part of the respondents it has been held by the Honourable Apex Court that "It is settled law that the court is not a court of appeal to go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a government servant based upon the misconduct proved against him. Its proportionality also cannot be gone into by the Court. The only question is whether the disciplinary authority would have passed such an order. It is settled law that even one of the charges, if held proved and sufficient for imposition of penalty by the disciplinary authority or by the appellate authority, the court would be loath to interfere with that part of the order. The order of removal does not cast stigma on the respondent to disable him from seeking any appointment elsewhere. Under these circumstances, the High Court was wholly wrong in setting aside the order."

14. In the third judgment cited above on the part of the respondents, it has been held:

"The Tribunal seems to be under the impression that the inquiry officer/disciplinary authority is bound to supply each and every document that may be asked for by the delinquent officer/employee. It is wrong there. Their duty is only to supply relevant documents and not each and every document may be asked for by the delinquent officer/employee."

15. In the last judgment cited above on the part of the respondents, it has been held by the Honourable Apex Court that "While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority."

Citing the above judgments, the learned counsel for the respondents would pray for dismissal of the above writ petition.

16. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned senior counsel for the petitioner and the learned counsel appearing for the respondents contra, what could be assessed, on an overall consideration of the facts and circumstances encircling the whole affair connected to the above writ petition coming to be filed on the part of the petitioner, is that while he was working as a constable in the Railway Protection Force from 1976, on 29.6.1992 a charge memo. was issued to him relating to certain traveling allowance bill; that while he was on duty, on 18.7.1992 the Assistant Security Commissioner enquired about the charge memo. issued to the petitioner and as per his directions he met him at his office when the Assistant Security Commissioner is alleged to have told him that he would help him in the disciplinary proceedings provided he paid a sum of Rs. 15,000/- as illegal gratification and after a bargain reduced his demand to Rs. 10,000/- and splitting up the same into two instalments, asked him to pay the same and that the petitioner made a complainant with the Director General of Railway Protection Force at New Delhi bringing these facts to his notice and these allegations having been enquired into on a discrete enquiry held by the Chief Security Commissioner, and on submitting his report dated 27.11.1992 it came to be seen that the allegations were without any support of evidence or truth attached to the same and they were false, frivolous and fictitious and they were made with an intention to malign and mar the reputation and image of the Assistant Security Commissioner who is the disciplinary authority in the petitioner's disciplinary proceeding.

17. It further comes to be seen that based on the said report, a charge memo. was issued to the petitioner dated 15.12.1992 to the effect of the above charge and following the procedures established under law with due opportunity for the petitioner to be heard, an enquiry was held for the commission of delinquency of gross insubordination or insolent to his higher officer punishable under Section 9(1) of the Railway Protection Force Act and ultimately the enquiry officer found him guilty of the charge resulting in the disciplinary authority dismissing the petitioner from service with immediate effects on giving a further opportunity for the petitioner along with the enquiry report and hence the petitioner preferred an appeal to the first respondent and since the same came to be rejected by an order dated 9.8.1995, aggrieved, the petitioner has come forward to file the above writ petition seeking for the relief extracted supra.

18. On the backdrop of the above facts and in full consideration of the propositions held by the upper forums of law, particularly, the Hon'ble Apex Court which have been cited for and against the petitioner by the learned senior counsel and the learned counsel for the respondents, if any decision has to be validly arrived at this Court is not able to find any procedural irregularity or lack of opportunity in violation of the principles of natural justice either in ordering the enquiry for the delinquencies against the petitioner or in the appointment of the enquiry officer for the conduct of the enquiry or the very conduct of the enquiry following the procedures established for such disciplinary proceedings or even the findings arrived at by the enquiry officer as per his report holding the petitioner guilty of the delinquencies for which he stood charged against and therefore, so far as the findings of the enquiry rendered by the enquiry officer thereby finding the petitioner guilty of the charge are concerned, this Court is of the view that there is absolutely no room to cause any interference into the well considered and merited findings rendered by the enquiry officer.

19. However, based on the findings of the enquiry officer the punishment given by the disciplinary authority thereby dismissing the petitioner from service since being hotly contested on the part of the petitioner, it has become incumbent on the part of this Court to go into the question 'whether, in the context of the gravity of the charge and the finding rendered by the enquiry officer, the disciplinary authority could go to the extent of dismissing the petitioner from service altogether?' which is the only point for consideration so far as the above writ petition is concerned.

20. The judgments cited supra on the part of the petitioner would suggest that the law is settled that if the past career of the delinquent is unblemished, the capital punishment of dismissal need not be resorted to. Different arguments are also advanced taking into consideration of those judgments cited on the part of the respondents that the Court of Judicial Review should not, normally, interfere with the decision of the disciplinary authority who is to consider the quantum of punishment and its proportionality cannot be gone into.

21. So far as the case in hand is concerned the charges leveled against the petitioner are of such nature attributing ill-motives so as to lower the character and conduct of the superior officer and even though a severe punishment is required to be inflicted for such delinquencies coming to be proved, still, this Court is of the view that it cannot go up to that extent so as to warrant the punishment of dismissal with which the life of the delinquent is doomed. It cannot also be said that the delinquency committed by the petitioner is the gravest act that personnel of the discipline force could go out since there could be commission of more grave offences than one in hand, but the punishment awarded to the petitioner for the offence charged even though is not the gravest possible and therefore, the punishment inflicted since being very severe, it is only proper to mold the punishment modifying the dismissal order into one of compulsory retirement, which will serve the ends of justice and hence the following order:-

In result,
(i) the above writ petition is partly allowed;
(ii) so far as the finding given by the disciplinary authority as per its report dated 17.7.1993 holding that the charge against the petitioner has been proved is concerned, it is confirmed;
(iii) however, the punishment inflicted since being very severe, it is mold modifying the dismissal order into one of compulsory retirement and the same is ordered accordingly;
(iv) No costs.