Madras High Court
Lourduswamy A. vs Deputy Chief Security Commissioner, ... on 3 April, 2007
Equivalent citations: (2008)IILLJ31MAD
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao, S. Palanivelu
JUDGMENT Elipe Dharma Rao, J.
1. The writ appeal is directed against the order of the learned single Judge dismissing the writ petition filed challenging the order of dismissal from service on the alleged ground of theft of railway property.
2. The appellant herein joined the Railways as a Rakshak on February 21, 1969 and on the charge that one Ponnusamy Nadar, who was involved in a case of theft of Railway properties, had given a confessional statement that the offence was committed with the support and connivance of some RPF Staff including the appellant, a show-cause notice dated November 7, 1981 was issued. The appellant submitted his explanation on November 20, 1981. By order dated December 2, 1981, the Security Officer, Southern Range, dismissed the appellant from service with effect from December 9, 1981 forenoon without holding any enquiry to establish the charge. The appellant preferred an Appeal to the Appellate Authority on December 14, 1981, but the same was rejected by the Chief Security Officer on February 23, 1992. While so, the said; Ponnusamy Nadar, on whose confessional statement, the appellant was dismissed, was acquitted by the Chief Judicial Magistrate by order dated December 6, 1982 in Case No. 87/1982. As against the rejection of his Appeal, the appellant preferred W.P. No. 3290/1982, which was later transferred to the Central Administrative Tribunal as Application No. 204/1985. The Tribunal allowed the said Application on February 14, 1986 and quashed: the order dated December 2, 1981 giving liberty to the Security Officer to hold an enquiry as per Rule 44 and pass orders based on the findings recorded in the enquiry. Pursuant to the orders of the Tribunal, the appellant was reinstated in: service by order dated May 25, 1986. Thereafter, the appellant made a representation dated February 13, 1989 to the Chief Security Commissioner requesting for regularisation of his service from November 7, 1982 (i.e., the, date of suspension) to June 25, 1986 (i.e., the date of reinstatement) and by communication dated November 9, 1989, the appellant was informed that regularisation of the said period can be decided only after the finalisation of the, disciplinary proceedings against him. It is only after the said communication that a Charge Memo was issued on December 5, 1989. The appellant was not called upon to submit his explanation to the said Charge Memo and he was also not furnished with the documents sought for at the time of enquiry. Ultimately, on May 22, 1990, on conclusion of the enquiry, the appellant was found guilty and imposed with the punishment of removal from service with effect from May 27, 1990.
3. The Appeal preferred by the appellant as against the said order was rejected by the Appellate Authority on August 18, 1990. O.A. No. 283/1991 filed by the appellant against the rejection of his Appeal before the Central Administrative Tribunal was returned by the Tribunal for want of jurisdiction. Thereafter, the appellant filed the writ petition before this Court and as already stated, it was dismissed. Hence, the present writ appeal.
4. Learned senior counsel appearing for the appellant contended that there has been an inordinate delay of over 8 years in framing the charges and that the said unreasonable and unexplained delay has resulted in violation of principles of natural justice. Learned senior counsel further contended that the order of dismissal dated December 2, 1981 passed initially by the 2nd respondent was set aside by the Tribunal giving liberty to hold a fresh enquiry. However, in the meantime, Ponnusamy Nadar, on whose alleged confessional statement, the appellant was charged, was acquitted and in such circumstances, there was no necessity for the respondents to conduct a fresh enquiry, that too, after a lapse of nearly 8 years. According to the learned senior counsel, the said Ponnusamy Nadar was neither examined during enquiry nor his alleged confessional statement was produced or a copy of the same was furnished to the appellant, which has vitiated the entire proceedings. It is also submitted by the learned senior counsel that the departmental witness, M.O. Dias, retired Inspector, though, is stated to have submitted a report on September 21, 1981 regarding the alleged incident which is the basis for the charges, the copy of the said report was neither marked during enquiry nor a copy was given to the appellant in spite of demand of the same to enable him to cross-examine the said witness while he was in the box. This action, according to the learned senior counsel of the respondents is contrary to Rule 153.13 of RPF Rules. The same conduct was adopted by the respondents in respect of the alleged special report of S. Paramasivam, Inspector. The learned senior counsel submitted that when Ponnusamy Nadar had stated that four other RPF Personnel had assisted him in committing the crime, it is not known why the appellant alone was singled out and charge-sheeted while the others were transferred and left scot-free without even being issued with a Charge Memo. On these grounds, the learned senior counsel would contend that the learned single Judge erred in dismissing the writ petition and prayed for allowing the writ appeal.
5. On the other hand, learned Standing counsel appearing for the Railways would submit that there are materials available on record to show that based on the confessional statement of Ponnusamy Nadar, the appellant was charge-sheeted. Moreover, as per the findings of the Enquiry Officer, on the date of occurrence, namely, September 20, 1981, the appellant had submitted in his oral statement that he availed one day casual leave which was sanctioned by A. Sathiyanathan/GOC(W). But, in his written statement, he stated that his leave was sanctioned by the ASOR/TPJ. This discrepancy, according to the Enquiry Officer, was vital and it creates a doubt regarding the genuineness of the case of the appellant. According to the Standing counsel for the Railways/the appellant was given sufficient opportunity to defend his case and after proper consideration of all materials, the order of dismissal came to be passed and as such, there is no illegality or infirmity in the said order.
6. Heard the learned Counsel on either side and went through the entire materials placed on record. Apart from inordinate and unexplained; delay in initiating in framing the charges, there is no material to show that the stolen property was recovered from the possession of the appellant. Moreover, we see that the confessional statement of Ponnusamy Nadar, based on which the appellant was charge-sheeted was neither marked nor a copy of the same was furnished to the appellant. That apart, the said Ponnusamy Nadar was not examined during the departmental enquiry nor was he made available for cross-examination by the appellant. Therefore, unless the contents of the confessional statement is corroborated by the oral evidence of Ponnusamy Nadar, it cannot be taken into consideration as an admissible piece of evidence. Moreover, it is an admitted fact that the said Ponnusamy Nadar was acquitted by the Criminal Court as regards the said offence. In such circumstances, we are of the view that the Department ought not to have proceeded against the appellant and dismissed from service. In the absence of direct evidence to connect the appellant to the offence, solely on the basis of circumstantial evidence, when it lacks corroboration, the major punishment of dismissal from service, imposed on the appellant is illegal and unsustainable. It is not known why the appellant alone was singled out and meted out different treatment while there were other persons, as per the confessional statement of Ponnusamy Nadar, involved in the alleged theft. The conduct of the Department in imposing the capital punishment of dismissal from service without even conducting an enquiry at the first instance speaks volumes about their intention.
7. Hence, we are of the view that the order of the learned single Judge cannot be sustained and the same is set aside. The Writ Appeal is allowed. The appellant is directed to be paid 50% of the back wages and other terminal benefits, within a period of 3 months from the date of receipt of a copy of this order. No costs.