High Court Kerala High Court

Geetha Krishnankutty vs The Director General on 19 June, 2009

Kerala High Court
Geetha Krishnankutty vs The Director General on 19 June, 2009
       

  

  

 
 
  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