IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 21/10/2005
Coram
The Hon'ble Mr. Justice N.KANNADASAN
W.P.No.17643 of 1997
G.Babu .. Petitioner
-Vs-
1.The Director General
Railway Protection Force,
Rail Bhavan,
Rafi Ahmed Kidwai Marg,
New Delhi - 110 002.
2.The Chief Security Commissioner,
Railway Protection Force,
Southern Railway,
Moore Market Complex,
6th Floor,
Chennai - 600 003.
3.The Divisional Security Commissioner,
Railway Protection Force,
Southern Railway,
Moore Market Complex,
Chennai - 600 003. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying for the issue of a Writ of Certiorarified Mandamus, calling for the
records of the second respondent in Order No.M/XP-227/28/93 dated 2 .9.1993 as
confirmed by the order of the fifth respondent in proceedings No.X/P-227-1099
dated 11.8.1995, quash the same and direct the respondents to reinstate the
petitioner in service from 2.9.1993 onwards with all consequential benefits.
!For Petitioner : Mr.Vijay Narayan, Senior
Counsel for Mr.R.Parthiban
^For Respondents : Mr.R.Thiagarajan, Senior
Counsel for
Mr.V.G.Sureshkumar
:JUDGMENT
The above writ petition is filed for the relief as stated
therein.
2. The petitioner has entered into the services of the
Railway Protection Force in the year 1976. While he was working as a
Constable, on 29.6.1992 a charge was framed against him relating to claim made
by the petitioner in respect of his travelling allowance. According to the
petitioner, on 18.7.1992, while he was on duty at about 11.00 A. M., the
Assistant Security Commissioner by name Shri Edgar Fernandez visited the place
of duty and took the petitioner to the lonely place for a secret conversation
and directed the petitioner to meet him during the rest time. As per his
directions, the petitioner met the Assistant Security Commissioner on
21.7.1992, during which time, the petitioner was promised that the said
Officer would help him in the disciplinary proceedings and also would ensure
that he would get further promotion as a Driver, for which a sum of
Rs.15,000/- was demanded, which was later on reduced to Rs.10,000/-.
Subsequently, the petitioner had chosen to make a complaint to the Director
General of Railway Protection Force viz., the first respondent herein, about
the demand made by the said Shri Edgar Fernandez. Consequently, the first
respondent has directed the Chief Security Commissioner to make enquiries on
the allegations made in the complaint of the petitioner and accordingly an
enquiry was conducted and a report was arrived at that the said complaint is a
frivolous one. On the basis of the said report, a charge sheet was issued to
the petitioner on 15.12.1992 to the effect that the petitioner had submitted a
false complaint to the first respondent making allegations against Shri Edgar
Fernandez and thereby the petitioner had committed an act of grossly
insubordinate or insolent to his higher Officer which is punishable under
Section 9(1) of the Railway Protection Force Act. Consequent to the said
charges, an Enquiry Officer was appointed who submitted a report after
conducting an enquiry. The third respondent, by order dated 2.9.1993, has
passed an order of punishment of dismissal from service which was confirmed by
the appellate authority viz., the second respondent by proceedings dated
11.8.1995. Aggrieved against the said orders, the above writ petition is
filed.
3. The respondents resisted the above writ petition by
contending that there is no procedural irregularity on the part of the
disciplinary authority while passing an order of dismissal and the finding is
arrived at by considering the oral and documentary evidences available on
record. It is also contended that the appellate authority also confirmed the
order of the disciplinary authority and the order of punishment does not
suffer from any infirmity or irregularity.
4. The learned senior counsel appearing for the petitioner
contended that a careful perusal of the oral evidence adduced by the witnesses
disclose that the complaint preferred by the petitioner cannot be termed as a
frivolous complaint and as such, the findings of the disciplinary authority as
well as the appellate authority are perverse and liable to be set aside.
Learned senior counsel further contended that there is no necessity on the
part of the petitioner to make a complaint of this nature as against the
higher authority risking his very employment and as such, the allegation to
the effect that the higher Officer had claimed the said amount as bribe ought
to have been accepted as a true one. It is also contended that the petitioner
has not committed any irregularity during his entire tenure of service from
the date of his appointment viz., 1976 and for the first time he was served
with the charge memo for a false claim made in respect of travelling allowance
which is pertaining to a magre amount and in the course of the proceedings
initiated in respect of the said charges, the incident of demand of bribe took
place for which the authorities ought not to have imposed a major penalty of
dismissal. He also contended that the authorities have failed to apply their
mind while awarding the punishment of dismissal considering the nature of the
charges in support of which the witnesses tendered evidence as set out in the
complaint and accordingly seeks the relief.
5. Per contra, learned senior counsel for the respondents
contended that inasmuch as a finding is arrived at by the disciplinary
authority only after careful examination of the entire evidence on record
viz., the oral and documentary and an order of dismissal was passed, which was
later on affirmed by the appellate authority, this Court in exercise of its
powers conferred under Article 226 of the Constitution is not entitled to
reappreciate the entire evidence on record and to come to a contrary
conclusion. Learned senior counsel also contended that the authorities have
followed the rules and regulations meticulously while conducting the
disciplinary proceedings and finally came to the conclusion that the charges
were proved and as such, the order of dismissal cannot be interfered with.
6. As regards the quantum of punishment is concerned, he
contended that the authorities have rightly awarded the said punishment
considering the fact that the petitioner is employed in a disciplined Force
and such allegations have to be viewed seriously. Learned senior counsel
further contended that the relief as claimed in the writ petition cannot be
granted and at any rate, if such a relief is granted, the respondents are
bound to pay huge amount by way of backwages to the petitioner which would
amount to grant of premium to the person like the petitioner who made reckless
allegation.
7. I have considered the rival contentions of the learned
senior counsels appearing on either side.
8. A perusal of the relevant materials disclose that the
third respondent while passing final order of dismissal, has followed all the
procedures which is expected to be followed in a disciplinary case of this
nature and a conclusion is arrived at. Admittedly, there was a preliminary
investigation on receipt of the complaint made by the petitioner and it is
only thereafter, the charges were framed and an Enquiry officer was appointed
and the petitioner was given due and adequate opportunity to adduce all
evidence including oral evidence. The Enquiry Officer has submitted a report
after analysing all the materials on record and subsequently the disciplinary
authority viz., the third respondent has passed an order of dismissal by
considering the entire materials on record.
9. Even though the learned senior counsel has drawn my
attention about the nature of evidence adduced by the witnesses to
substantiate that the disciplinary authority has not arrived at a correct
conclusion, this Court has to bear in mind that while exercising its
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 the 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. The above view is supported by the principles of the Apex Court in
its decision in Lalit Popli vs. Canara Bank and Others (2003 (3) SCC 583).
10. Similarly, the Apex Court in its decision in
B.C.Chaturvedi vs. Union of India (1995 (6) SCC 749) held that the scope of
judicial review is limited only to the extent of decision making process and
when the findings of the disciplinary authority are based on some evidence,
the Court cannot reappreciate its evidence and substitute its own findings. A
similar view is taken subsequently by the Apex Court in its decision in
R.S.Saini vs. State of Punjab (1999 (8) SCC 90).
11. In the light of the above principles, I do not see any
reason to interfere with the findings of the disciplinary authority wherein it
is held that the petitioner is guilty of the charges.
12. As regards the next contention viz., the quantum of
punishment is concerned, it is pertinent to refer to the specific ground urged
by the petitioner in the appeal submitted before the first respondent which
reads as follows:-
“that the penalty imposed on me is too heavy and beyond all cannons of
justice and is disproportionate and cannot be implemented against me and
deserves to be vacated and set aside.”
The above passage is set out as a preamble in the memorandum of appeal
submitted by the petitioner to the Chief Security Commissioner viz., the
second respondent herein. Apart from the above said specific ground urged in
the appeal, the petitioner has chosen to raise several grounds attacking the
order of the third respondent. A perusal of the order of the appellate
authority dated 11.8.1995 discloses that the various grounds of attack in the
appeal was not at all dealt with including the quantum of punishment. In
fact, the second respondent who is an appellate authority constituted under
the statute is expected to deal with all the grounds urged in the appeal. The
order of the appellate authority per se discloses that the petitioner was
deprived of a valuable right of an appeal which was disposed of by merely
referring to the fact that there was no procedural lapse and the appellant was
given fair opportunity and all the rules were followed correctly. Though this
court, in normal circumstances, would remit the matter to the concerned
appellate authority, to examine the matter afresh, considering the long delay
viz., the period of dismissal till date, such course is not adopted and the
matter requires for consideration to what extent the relief could be granted
to the petitioner at least on the question relating to the quantum of
punishment.
13. In this regard, it is useful to refer to the various
principles of the apex Court wherein it is held that normally the Court should
not interfere with the quantum of punishment; and only if the punishment is
“shockingly” disproportionate to the misconduct proved and it shocked the
conscience of the Court even then the Court would remit the matter to the
authority and they would not substitute the said punishment. However, the
Apex Court has also observed that in rare situations, the Court itself can
substitute its own punishment by awarding an alternative penalty. In this
connection it is useful to refer to the decisions rendered in Ranjit Thakur
vs. Union of India (1987 (4) SCC 611); B.C.Chatturvedi vs. Union of India
(1995 (6) SCC 749); and in Union of India vs. Ganayutham (1997 (7) SCC 463).
14. In the light of the principles laid down in the above
decisions, I am of the opinion that the quantum of punishment can be
interfered with in the instant case for the following reasons:-
1. The petitioner has entered in to services in the year 1976
and was chargesheeted for the first time in the year 1992 relating to an
irregularity in the claim of travelling allowance bills pertaining to a meagre
amount and till such time, the petitioner has not committed any irregularity
during his service.
2. A chargesheet is framed in the course of the disciplinary
proceedings relating to the claim of travelling allowance bills on the ground
that a complaint is given by the petitioner as against his superior officer to
the effect that he has demanded a sum of Rs.15,000/- which was later on
reduced to Rs.10,000/- to extend necessary help.
3. Though a finding is rendered by the disciplinary authority
that the allegations are found to be frivolous, it cannot be completely
brushed aside that some witnesses who have given evidence supported the case
of the petitioner, though their evidence were discarded and this Court has not
interfered with the ultimate findings by considering the limited scope
involved under Article 226 of the Constitution.
4. The appellate authority has not rendered any finding
either on various grounds urged on the memorandum of appeal or on the specific
grounds raised with regard to the quantum of punishment and the appeal was
disposed of in a casual manner.
5. For a charge of this nature, a major penalty of dismissal
is ordered which shocks the conscience of this Court.
6. Even on earlier occasion, when the matter was heard by an
another learned Judge, his Lordship observed that the petitioner cannot be
awarded with such a major penalty and a punishment of stoppage of increment
for a period of three years would be sufficient to meet the ends of justice,
but however, the said order could not be passed and an order of compulsory
retirement was ordered, which came to be recalled subsequently by order dated
8.7.2005 for the reasons as set out therein.
15. For the aforesaid reasons, the writ petition is disposed
of in the following terms:
a) The writ petition is partly allowed in so far as the
quantum of punishment is concerned, and the finding by the disciplinary
authority in holding that the petitioner is guilty of charges is concerned,
the said finding is confirmed.
b) The punishment inflicted upon the petitioner is set aside
and the punishment of order of dismissal is modified as a stoppage of
increment for a period of three years with cumulative effect.
c) The petitioner is liable to be reinstated forthwith; at any
rate not later than the period of 30 days from the date of receipt of a copy
of this order.
d) The petitioner is not entitled for any backwages but
however, the service of the petitioner should be treated as in continuous
service, which shall accrue to his future service benefits.
16. The writ petition is disposed of in the above terms. No
costs.
Internet : Yes
Index : Yes
Svn
To
1.The Director General
Railway Protection Force,
Rail Bhavan,
Rafi Ahmed Kidwai Marg,
New Delhi – 110 002.
2.The Chief Security Commissioner,
Railway Protection Force,
Southern Railway,
Moore Market Complex,
6th Floor,
Chennai – 600 003.
3.The Divisional Security Commissioner,
Railway Protection Force,
Southern Railway,
Moore Market Complex,
Chennai – 600 003.