IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1111 of 2009()
1. GEETHA KRISHNANKUTTY,
... Petitioner
2. ABIL KRISH.K., S/O.LATE G.KRISHNANKUTTY,
3. ANUJA KRISHNAN (MINOR),
Vs
1. THE DIRECTOR GENERAL, RAILWAY
... Respondent
2. THE CHIEF SECURITY OFFICER,
3. N.K.PRADMANABHAN, ASST.SECURITY
4. P.V.SUBRAMANIAN, ENQUIRY OFFICER
5. UNION OF INDIA, REPRESENTED BY
6. DIVISIONAL SECURITY COMMISSIONER
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :19/06/2009
O R D E R
K. BALAKRISHNAN NAIR
&
C.T. RAVIKUMAR, JJ.
---------------------------------------------
W.A. NO. 1111 OF 2009
---------------------------------------------
Dated this the 19th day of June, 2009
JUDGMENT
Ravikumar, J.
The appellants are the legal heirs of the writ petitioner who got
themselves impleaded as additional petitioners on the death of the
petitioner. The facts of the case in succinct are as hereunder:
The petitioner was an Inspector in the Railway Protection Force.
In the year 1995, as per Ext.P2 memo of charges, disciplinary proceedings
were initiated against him alleging the misconduct of accepting illegal
gratification from prospective appointees in the Railway Protection Force
for the purpose of verification of their character and antecedents.
Dissatisfied with his reply to the charges, an enquiry was ordered and it
was held by an Assistant Security Commissioner. On culmination of the
enquiry, Ext.P8 report was submitted by him holding the charge framed
against the petitioner as proved beyond reasonable doubt. Thereupon, a
copy of the enquiry report was served on the petitioner and he was
afforded an opportunity to file representation against the same. After
W.A. NO. 1111/2009 2
considering Ext.P3 representation submitted by the petitioner in that
behalf, the Disciplinary Authority vide Ext.P4 order dated 30.10.1997
imposed on him the punishment of removal from service. Aggrieved by
the same, he preferred Ext.P5 appeal. However, the Appellate Authority
agreed with the findings of the Disciplinary Authority and passed Ext.P6
order rejecting his appeal. Though the revision filed by the petitioner
against Ext.P6 was rejected, as is evident from Ext.R1(D) viz. Order No.
97/Sec.(E)DAR-3/45 dated 22.2.2001, the petitioner had not chosen to
challenge the same in the Original Petition.
2. According to the appellants, the petitioner had an unblemished
service till he was issued with Ext.P2 memo of charges. In that view, it
was contended that the penalty imposed on the petitioner is highly
disproportionate to the charge found against him. Further, it was
contended that another person, allegedly his accomplice, was also
proceeded against in a different proceedings in disregard to Rule 163 of
the Railway Protection Force Rules (hereinafter referred for short “the
Rules” only) and was imposed with only a penalty of compulsory
retirement. Violation of certain procedures in the matter of conducting
enquiry was also raised. Tenability of the very ‘charge’ on the ground that
Rule 42.5 of the Rules forbids deployment of the member of the Force
W.A. NO. 1111/2009 3
for verification of antecedents and character of any employee was also
raised by the appellants. The appointment of the Enquiry Officer was also
illegal according to them, since going by Rule 248 of the Rules, the
Enquiry Officer to be appointed for enquiry against an employee of the
rank of an Inspector has to be of and above the rank of Security
Commissioner. Yet another contention of the appellants to assail the
action on the part of the respondents was that the petitioner was not
afforded with a second show cause notice regarding the punishment and
that its failure had resulted in violation of the principles of natural justice
and consequently vitiated the entire proceedings.
3. The respondents have filed a counter affidavit supporting the
impugned orders and stating , inter alia, as hereunder:
The office of the Divisional Security Commissioner,
Thiruvananthapuram had received oral and written complaints that the
petitioner and his assistant C.A.K. Unnithan had accepted illegal
gratification from the prospective appointees to the post of Constables in
the Railway Protection Force in connection with the verification and
sending of the verification reports. He was charge sheeted after the
preliminary enquiry. Ext.P8 report was submitted by the Enquiry Officer
after a detailed enquiry conducted strictly adhering to the prescribed
W.A. NO. 1111/2009 4
procedures and also the principles of natural justice. After the enquiry,
Ext.P8 report was served on the petitioner and Ext.P4 order was passed by
the Disciplinary Authority after considering the representation of the
petitioner against the said report. Ext.P6 order was passed by the
Appellate Authority after a careful consideration of the appeal filed by the
petitioner against Ext.P4. Though the petitioner had preferred Ext.R1(a)
revision petition, the same was rejected as per Ext.R1(d). The petitioner
did not choose to challenge the same in the Writ Petition. There is
absolutely no basis for the contentions regarding violation of the principles
of natural justice. The Assistant Security Commissioner was empowered
to conduct the enquiry in view of the rules. Sri. C.A.K. Unnithan against
whom separate proceedings had been initiated and a punishment of
compulsory retirement was imposed had only assisted the petitioner and he
was his subordinate. The contention regarding non-issuance of show
cause notice prior to the imposition of penalty, it is stated that the Rules do
not envisage issuance of such a notice. In short, the respondents have
categorically denied all the averments and allegations and at the same time
justified their actions and orders in their counter affidavit.
4. The learned Single Judge elaborately considered the rival
contentions and declined to accept the contentions against the impugned
W.A. NO. 1111/2009 5
orders issued by the respondents and consequently dismissed the Writ
Petition. Hence, this appeal.
5. We heard the counsel for the appellants as also the Standing
Counsel for the Railways. Both the parties reiterated all the
aforementioned contentions before us. Firstly, we may deal with the
challenge against the charge. The charge against the petitioner, as per
Ext.P2 reads as follows:
“Shri G. Krishnankutty is charged with corrupt
and improper practice in that he, as Inspector of
the RPF Post, Quilon directly and indirectly
solicited and accepted for appointment as
Constables in the RPF, by improperly using his
position for his personal gain and has acted in a
manner unbecoming of a member of a disciplined
Force. Sri.G.Krishnankutty thus violated the
provisions of Rule 146.7(i) & (iii) of RPF Rules
1987 and Rule 3(1)(iii) of Railway Services
Conduct Rules, 1966.”
The appellants contended that the charge extracted above is
unsustainable in so far as Rule 42.5 of the Rules stipulates that no member
of the Force shall be deployed for verifying the antecedents and character
of any employee. They further contended that the alleged misconduct is
in the process of verifying the antecedents and character of prospective
W.A. NO. 1111/2009 6
appointees to the post and, therefore, the charge memo itself is
unsustainable. Rule 42.5 of the Rules reads thus:
“42.5. No member of the Force shall be
called deployed for serving order of dismissal or
removal from service or suspension on any
railway servant or to verify the antecedents or
character of any employee.”
A bare reading of the said Rule would reveal that it relates only to
verification of antecedents and character of an employee. Admittedly, the
petitioner was deputed not for verifying the antecedents and character of
existing employees of the Force, but he was deputed for verifying the
antecedents and character of prospective employees to the post of
Constables in the Railway Protection Force. Therefore, the appellants’
contention against the tenability of the charge, relying on Rule 42.5 of the
Rules, is without any basis. It was considering the said aspects of the
matter that the learned Single Judge rightly rejected the contentions
against the sustainability of the charge. We may hasten to add that an
allegation of racketeering by a member of the Force especially using his
official position is definitely a matter which deserves a detailed
departmental enquiry. In the said circumstances, the appellants are not
legally entitled to raise the question of tenability of the said charge
W.A. NO. 1111/2009 7
against the petitioner. Therefore, we find no merit in the contentions of the
appellants against the charge levelled against the petitioner.
6. The main contention of the appellants is that the petitioner was
not served with a second show cause notice regarding the punishment
imposed on him and that the said failure has resulted in violation of the
principles of natural justice and consequently vitiated the entire
proceedings. The said contention of the appellants is absolutely untenable
in the light of the 42nd amendment to the Constitution of India and also
the decisions of the Apex Court in Union of India v. Tulsiram Patel
reported in A.I.R. 1985 S.C. 1416 and Managing Director, ECIL v. B.
Karunakar reported in A.I.R. 1994 S.C. 1074. Prior to the 42nd
amendment, it was thought an opportunity to make representation should
be afforded to a delinquent employee before imposing the punishment on
the basis of the findings in the enquiry. However, the said opportunity to
make representation before imposing the punishment was eliminated by
the 42nd amendment. This position is no more res integra. In view of the
decisions of the Honourable Apex Court mentioned supra, a delinquent
employee is not entitled to a show cause notice regarding punishment. In
view of the above said position of law, the appellants cannot raise any
grievance on account of non-affording of an opportunity to the petitioner
W.A. NO. 1111/2009 8
to make representation, regarding the punishment, to the Disciplinary
Authority.
7. The contention of the appellants with respect to the appointment
of the Enquiry Officer in the light of Rule 248 of the Rules is
misconceived. As per the said Rule, an enquiry in respect of an allegation
raised against an Inspector in the Railway Protection Force has to be
conducted by an Enquiry Officer of and above the rank of a Security
Commissioner. In fact, it relates to enquiry prior to initiation of
prosecution. The relevant rule in regard to disciplinary proceedings is
Rule 153.2.1 of Chapter XII of the Rules. The said rule reads thus:
“153.2.1 Whenever the 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.”
The said rule makes it abundantly clear that in the matter of disciplinary
proceedings against an enrolled member of the Railway Protection Force,
the Disciplinary Authority may itself enquire into the matter or appoint an
W.A. NO. 1111/2009 9
Enquiry Officer higher in rank to the delinquent member, but not below
the rank of an Inspector. In this case, admittedly, the Enquiry officer was
an Assistant Security Commissioner in the Railway Protection Force and
he is indisputably higher in rank to the petitioner. After adverting to the
said provisions, the learned Single Judge has rightly arrived at the
conclusion that there is absolutely no illegality in the matter of
appointment of the Enquiry Officer to enquire into the charges against the
petitioner. We endorse the findings of the learned Single Judge on this
issue.
8. In regard to the contention of the appellant regarding violation of
Rule 163 of the Rules, it can be seen that it is nothing but a claptrap. Rule
163 of the Rules reads thus:
“163: Procedure when two or more enrolled
members are involved:
Where two or more enrolled members of
the Force including those on deputation to the
Force are involved in any case, the disciplinary
authority may make an order directing that the
disciplinary action against two or all of them
may be taken in a common proceeding.”
The latter part of the Rule makes it clear that the Disciplinary Authority,
W.A. NO. 1111/2009 10
in respect of an enquiry wherein two or more enrolled members of the
Railway Protection Force are involved, may pass an order directing to take
disciplinary action against them in a common proceeding. In other words,
it is only an enabling provision. In this case, the Disciplinary Authority
thought it fit to initiate disciplinary action separately against the
petitioner and the other delinquent employee. On that sole basis, the
appellant cannot contend that the disciplinary proceedings are vitiated. In
this case, as rightly held by the learned Single Judge, the appellants had
failed to prove the prejudice caused on account of the alleged violation of
the said Rules. In fact, they did not have any such case. There is no
specific pleadings to that effect. Evidently no argument was also
advanced in that regard before the learned Single Judge. Of course, it is
stated by them that by separate proceedings, one Sri. A.K.Unnithan, who
was allegedly an accomplice of the petitioner, was imposed with a
punishment of compulsory retirement from service. But, based on that, no
pleadings were made to show the prejudice caused to the petitioner on
account of violation of Rule 163 of the Rules. Therefore, the question of
prejudice on account of violation of the Rules cannot be considered in this
appeal, as it was never pleaded or urged before the learned Single Judge.
9. Appellants pointed out that the co-delinquent of the petitioner
W.A. NO. 1111/2009 11
was awarded only the punishment of compulsory retirement from service.
So, the imposition of the punishment of dismissal from service on him is
not justified, it is contended. The said contention is plainly untenable. It
will not be inapposite or inappropriate to view the commission or omission
of a higher officer, having higher duty and responsibilities, than that of
his subordinate officer, who had acted under his instruction, differently by
the concerned authority. The same cannot be said to be a flaw or error
vitiating the disciplinary action warranting interference.
10. According to the appellants, the petitioner had an unblemished
service till the incident that culminated in Ext.P4 order. Soliciting and
accepting illegal gratification by an employee is a grave action and it is
also an action against the public. When it is committed by a public
servant, he does not deserve any sympathy merely because of the fact that
upto that date he had never indulged in such matters.
11. It is a settled position of law that the degree of proof required in
disciplinary proceedings is much lesser than that required in criminal
proceedings. Existence of some evidence regarding the
commission/omission alleged as misconduct will be sufficient to find the
delinquent guilty and to award appropriate punishment on him in a
W.A. NO. 1111/2009 12
departmental proceedings. In this case, the appellants do not have a case
that it is a case of no evidence. There is no violation of the principles of
natural justice in conducting the enquiry and all the authorities, viz. the
Disciplinary, Appellate and Revisional, have issued orders strictly
adhering to the provisions of law. In the light of the gravity of the charge
that was proved against the petitioner, the appellants cannot be heard to
say that it is highly disproportionate to the gravity of the misconduct.
12. The long and short of the aforesaid discussions is that the
appellants have failed to make out a case warranting interference with the
judgment of the learned Single Judge. According to us, there is no merit
in the grounds raised in the Memorandum of Writ Appeal as also in the
contentions raised before us.
The appeal is accordingly dismissed.
(K. BALAKRISHNAN NAIR)
JUDGE
(C.T. RAVIKUMAR)
JUDGE
sp/
W.A. NO. 1111/2009 13
K.BALAKRISHNAN NAIR
&
C.T. RAVIKUMAR, JJ.
W.A. NO. 1111/2009
JUDGMENT
19th June, 2009
W.A. NO. 1111/2009 14