IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23/11/2007
CORAM
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE S.PALANIVELU
WRIT APPEAL No.392 of 2002
S.Pitchai Namassivayam ..Appellant
Vs
1. The Divisional Security Commissioner
Railway Protection Force
Southern Railway
Palghat Division
Palghat.
2. The Chief Security Commissioner
Railway Protection Force
Southern Railway
Moore Market Complex
Madras 600 003. ..Respondents
Appeal under Clause 15 of the Letters Patent.
For appellant : Mr.N.G.R.Prasad for M/s.Row & Reddy.
For respondents : Mr.M.Vellaisamy
J U D G M E N T
S.PALANIVELU,J.
This appeal is filed by the writ petitioner against
the order, dated 21.09.2000, made in W.P.No.11687 of 1993,
wherein his prayer for reinstatement into service was
rejected.
2. According to the appellant, he joined Railway
Protection Force (RPF) as a Constable in the year 1963; he
was promoted as Assistant Sub-Inspector of RPF (ASIRPF) in
the year 1984 and posted at Coimbatore Railway Junction,
under the control of one Govindarajan, Inspector of RPF. One
Krishnamoorthy was the Sub-Inspector of RPF and another
Krishnamoorthy was the Head Constable of R.P.F., attached to
Special Intelligence Wing; that there were numerous
anonymous petitions against the said Govindarajan, regarding
purchase of motorcycle without permission and construction
of a building in his native place and there were other
complaints also to the effect that he used to consume liquor
with two Constables at Guru Travels, Raja Travels etc., at
Coimbatore; while so, Govindarajan smelt a rat on the
appellant that anonymous complaints might have been shot at
him, only at the behest of the appellant; hence,
Govindarajan threatened the appellant and was waiting for an
opportunity to cook up a case against the appellant and to
see that he would be sent out from service; in the backdrop
of the above circumstances, the appellant was proceeded with
the charges and the said Govindarajan was the mastermind for
the false charges against the appellant.
3. The allegations against the appellant go thus :
On 29.12.1991, from 08.00 hours onwards, the
appellant was on duty. At 14.00 hours, some outsiders
brought in a lorry bearing registration No.MDB 2569 and
parked the same near Foot Over Bridge on a road leading to
telephone exchange near RPF Post. The individuals, who
alighted from the lorry had a talk with one Ramasamy, who
was a Watchman, appointed by the contractor, to safeguard
the stores in the Railway Junction. About 3000 old released
railway tiles were stacked in the store, which were under
the custody of Ramasamy. After a conversation with the said
Ramasamy, the occupants of the lorry loaded about 2000 such
tiles kept in the store and the lorry was about to leave the
spot. At that point of time, the appellant came to the
place and asked Ramasamy about his authority for removal of
the railway property. The Watchman was brought to RPF Post
by the appellant, for further interrogation. The Watchman
promised and offered money to the appellant. He collected a
sum of Rs.900/- from the occupants of the lorry and paid
Rs.750/- to the appellant, keeping the remaining amount with
him. After collecting Rs.750/-, the appellant allowed the
vehicle to proceed with 2000 stolen railway tiles. One
David, Supervisor of GS & Company, which is a Contractor,
reported about the missing of 2000 railway tiles from the
railway old retiring room. The said complaint was lodged
with RPF Inspector on 03.01.1992.
4. On getting information through some sources,
Govindarajan, IPF, on 30.12.1991, made a preliminary
enquiry and found that there were prima facie materials for
framing charges and to conduct enquiry. Hence, the
following charges were framed against the appellant :
“Charge No.1: Shri S.Pitchai
Namasivayam, ASIPF/CBE is hereby
charged under Rule 153 of RPF Rules
1987 for failure to maintain absolute
integrity and devotion to duty in
that he has unlawfully and wilfully
permitted the removal of 2000
released Railway tiles stocked in the
Contractor’s Store nearby to RPF
Post/CBE in lorry No.MDB 2569 ON
29.12.91 for monetary benefit.
Charge No.2 : ASIPF Pitchai
Namasivayam having abetted an offence
against the Rly.property on 29.12.91
as stated above failed to prevent the
unlawful removal of released tiles
belonging to Railway from
Rly.premises and also to inform his
superior officer about the incident
which he was bound to do as a member
of a disciplined force.”
5. One P.K.Anandan, Assistant Security Commissioner,
was appointed as the Enquiry Officer, who, on enquiry, gave
a finding that the appellant was guilty of the charges. It
was communicated to the appellant along with a show cause
notice, for which, the appellant, on 11.06.1992, submitted a
representation, denying the charges and explaining the
incidents and other connected circumstances. Not content
with the said representation, on 29.06.1992, the Divisional
Security Commissioner, RPF, Palghat, issued proceedings,
removing the appellant from service with effect from
01.07.1992, treating the period of suspension from
16.01.1992 to 30.06.1992 as the period of suspension only.
The Writ Petition filed by the appellant was dismissed by
the learned single Judge and hence he filed this appeal.
6. Mr.N.G.R.Prasad, learned counsel for the
appellant, would vehemently contend that the Enquiry Officer
had woefully failed to appreciate the materials on record in
their proper perspective and had he analysed and scanned the
available factors consciously, he might have come to a
different conclusion, that the appellant was not guilty.
7. Repelling the said argument, learned counsel for
the respondents would submit that the conduct of the enquiry
was proper and the findings rendered by the Enquiry Officer
were more appropriate.
8. The core of contention of the learned counsel for
the appellant is that the version of Ramasamy is not
corroborated by other two witnesses, namely, Mohammed, lorry
driver, and A.Ali, an iron scrap merchant, who were
reportedly present at the time of occurrence in the place,
and if the statements given by them are carefully
scrutinised, it would come to light that they have not
mentioned anything about the presence of the appellant at
the place of occurrence, who merely stated that Rs.1,000/-
was given to the Watchman and lorry driver got Rs.100/- from
Ali.
9. During the course of preliminary enquiry by the
Inspector, though both Mohammed and Ali did not speak about
the role played by the appellant, one K.K.Anand Kumar, a
Constable, who was on shift duty, during the relevant point
of time on 29.12.1991 from 08.00 hours to 16.00 hours,
specifically mentioned that the appellant was talking with
an old man, who was a well known person to RPF Staff,
however, he could not understand what they were talking.
10. On a perusal of the statements recorded by the
Enquiry Officer and his findings, it is found that the
enquiry was conducted properly.
11. In the recent judgment delivered by the
Honourable Apex Court in MATHURA PRASAD vs. UNION OF INDIA
[(2007) 1 SCC 437], considering the entire case law on the
subject of judicial review, the Honourable Apex Court has
categorically and in no uncertain terms has ruled:
“When an employee, by reason of an alleged act of
misconduct, is sought to be deprived of his
livelihood, the procedures laid down under the sub-
rules are required to be strictly followed. A
judicial review would lie even if there is an
error of law apparent on the face of the record.
If statutory authority uses its power in a manner
not provided for in the statute or passes an order
without application of mind, judicial review would
be maintainable. Even an error of fact for
sufficient reasons may attract the principles of
judicial review.”
12. The Supreme Court, in State of A.P. v. Rama Rao,
1964 (2) L.L.J. 150 : AIR 1963 SC 1723 : 1964 (3) SCR 25,
has observed that the findings recorded in the domestic
enquiry can be characterised as perverse, if it is shown
that such findings are not supported by any evidence on
record or are not based on the evidence adduced by the
parties or no reasonable person could have come to those
findings on the basis of that evidence.
13. If the Court finds that the Enquiry Officer has
arrived at erroneous findings, resulting in miscarriage of
justice and deprival of his livelihood, it could very well
interfere with them as has been held by the Honourable Apex
Court in Mathura Prasad case, cited supra.
14. Learned counsel for the appellant placed
reliance upon a decision of the Apex Court in Hardwari Lal
v. State of U.P. and others, 1999 (8) Supreme Court Cases
582, in which it was held thus :
“3. Before us, the sole ground urged
is as to the non-observance of the
principles of natural justice in not
examining the complainant, Shri
Virender Singh, and the witness,
Jagdish Ram. The Tribunal as well as
the High Court have brushed aside the
grievance made by the appellant that
the non-examination of those two
persons has prejudiced his case.
Examination of these two witnesses
would have revealed as to whether the
complaint made by Virender Singh was
correct or not and to establish that
he was the best person to speak to
its veracity. So also, Jadish Ram,
who had accompanied the appellant to
the hospital for medical examination,
would have been an important witness
to prove the state or the condition
of the appellant. We do not think
the Tribunal and the High Court were
justified in thinking that non-
examination of these two persons
could not be material. In these
circumstances, we are of the view
that the High Court and the Tribunal
erred in not attaching importance to
this contention of the appellant.”
15. In the above said case discussed by the Supreme
Court, the complainant and another material witness were not
examined. Hence, it was concluded that those two persons
should have been examined and their non-examination was
vital. But, in the case on hand, material witnesses have
been examined and they have also mentioned about the role
played by the appellant. In addition, the Enquiry Officer
has rendered his findings, on the basis of convincing
materials.
16. Yet another aspect put forth by the learned
counsel for the appellant is that in Crime No.4 of 1999,
Mohammed and Ali were the accused, however, the appellant
was not on the array as accused and that very fact would be
sufficient to conclude that the appellant is not guilty.
The learned counsel would further submit that the High Court
is fully competent to interfere with the findings of the
domestic enquiry officer. For the said submission, he cited
a Division Bench decision of this Court in State of Madras
v. Kandaswamy, 1972 MLJR 374, in which it was held that the
High Court is justified under Article 226 to examine the
evidence to satisfy itself whether the conclusion of the
Tribunal is correct. In the said decision, it was also
observed that adequacy or inadequacy of evidence to support
a finding is not within the jurisdiction of the High Court
under Article 226; but when a complaint is made that there
is no acceptable evidence at all to support the impugned
conclusion of the Tribunal or that no Tribunal with a duty
to weigh the evidence could possibly have come to that
conclusion, it is the duty of the Court under Article 226 to
find out whether the complaint so made is justified or not.
17. The learned counsel also drew attention of this
Court to a decision of the Apex Court in Kuldeep Singh v.
Commissioner of Police and others, 1999 (2) Supreme Court
Cases 10, in which it was held as below :
“6. It is no doubt true that the High
Court under Article 226 or this Court
under Article 32 would not interfere
with the findings recorded at the
departmental enquiry by the
disciplinary authority or the enquiry
officer as a matter of course. The
Court cannot sit in appeal over those
findings and assume the role of the
appellate authority. But this does
not mean that in no circumstance can
the Court interfere. The power of
judicial review available to the High
Court as also to this Court under the
Constitution takes in its stride the
domestic enquiry as well and it can
interfere with the conclusions reached
therein if there was no evidence to
support the findings or the findings
recorded were such as could not have
been reached by an ordinary prudent
man or the findings were perverse or
made at the dictates of the superior
authority.”
18. We have bestowed our careful attention to the
entire features in the enquiry report, whereupon we conclude
that they are neither perverse nor based on no evidence.
19. Adverting to the proposition of law with regard
to the contention of the appellant that he is not indulged
in criminal case, this Court follows the decision of the
Supreme Court in G.M.Tank v. State of Gujarat and another,
2006 (3) CTC 494 : 2006 (5) SCALE 582, in which it is held
that though the degree of proof before the domestic enquiry
officer and the criminal court is with a chain of
difference, still, the honourable acquittal by the criminal
court has to be taken note of.
20. It is also a settled law that merely because the
accused is acquitted, the power of the authority concerned
to continue the departmental enquiry is not taken away nor
is its discretion in any way fettered.
21. In G.M.Tank’s case (supra), it was further
observed that the two proceedings, criminal and
departmental, are entirely different; they operate in
different fields and have different objectives and while the
object of criminal trial is to inflict appropriate
punishment on the offender, the purpose of enquiry
proceedings is to deal with the delinquent departmentally
and to impose penalty in accordance with Service Rules.
22. Hence, it is to be observed in this case that
though the appellant was not shown as accused in the
criminal proceedings, initiation of departmental proceedings
against him is not barred at all.
23. As an epilogue, one more point to be noticed in
this matter is, the conduct of the appellant during the
pendency of departmental proceedings against him, which is
such that while the witness Ramasamy was coming to attend
the departmental proceedings enquiry, the appellant,
accompanied by two persons, threatened him with dire
consequences, besides pushing him down, to which effect the
said Ramasamy also gave a statement on 01.04.1992, which was
forwarded to the Enquiry Officer by the IPF.
24. We have gone through the entire records, with
rapt attention, which makes us to conclude that the guilt of
the appellant has been proved in the domestic enquiry and,
on the basis of which, he has been removed from service.
25. As regards the quantum of punishment imposed on
the appellant, learned counsel for the appellant garnered
support from a decision of the Supreme Court in U.P.SRTC v.
Ram Kishan Arora, 2007 (4) Supreme Court Cases 627, wherein,
referring to an earlier decision in U.P.SRTC v. Suresh Pal,
2006 (8) SCC 108 : 2006 SCC (L&S) 1905, it was observed as
under :
“9. In U.P.SRTC v. Suresh Pal, 2006
(8) SCC 108 : 2006 SCC (L&S) 1905,
this Court stated the law, thus : SCC
pp.110-11, paras 8-9)‘8. Normally, the courts
do not substitute the
punishment unless it is
shockingly
disproportionate and if
the punishment is
interfered or
substituted lightly in
the punishment in
exercise of their
extraordinary
jurisdiction then it
will amount to abuse of
the process of court.
If such kind of
misconduct is dealt with
lightly and the courts
start substituting the
lighter punishment in
exercising the
jurisdiction under
Article 226 of the
Constitution then it
will give a wrong signal
in the society. All the
State Road Transport
Corporations in the
country have gone in red
because of the
misconduct of such kind
of incumbents,
therefore, it is time
that misconduct should
be dealt with an iron
hand and not leniently.
"
26. There is no quarrel with regard to the
proposition laid down by the Honourable Apex Court in the
above judgment. However, in the case on hand, the charges
levelled against the appellant, who is expected to maintain
complete devotion and diligence, are very grave in nature.
Since it has already been held that all the procedures
contemplated under law have duly been complied with by the
Enquiry Officer, affording sufficient and reasonable
opportunities to the delinquent and has arrived at an
unerring conclusion that the charges are proved and the
disciplinary authority has also inflicted a just and quite
proportionate punishment on the delinquent, we find no
ground to cause our interference into such well reasoned
findings arrived at by the Enquiry Officer and the
punishment imposed by the disciplinary authority.
In the light of the above discussions, we hold that
the order of the learned single Judge is quite in order and
it deserves to be confirmed, consequent to which, this Writ
Appeal stands dismissed. No costs.
dixit/Rao
To
1. The Divisional Security Commissioner,
Railway Protection Force,
Southern Railway,
Palghat Division,
Palghat.
2. The Chief Security Commissioner,
Railway Protection Force,
Southern Railway,
Moore Market Complex,
Madras 600 003.